PhD student Molly Joeck, with research assistance from three JD students (Christopher Fukushima, Jean Murray, and James Long) appeared before the Supreme Court of Canada last fall as part of a landmark immigration detention case, alongside two co-counsels, Erica Olmstead and Peter Edelmann.
The high-profile case, Minister of Public Safety and Emergency Preparedness v Chhina, is about the right of immigration detainees to challenge the lawfulness of their detention by way of habeas corpus – a legal provision allowing anyone being held in custody the right to challenge their detention before a judge. Currently, the ability of noncitizens to challenge their detention on immigration grounds via habeas corpus is unclear because of a decision of the Ontario Court of Appeal dating from 1989, Peiroo v Canada.
The case in question was brought forward by Tusif Ur Rehman Chhina, a Pakistani citizen who sought refugee protection in Canada but was detained after authorities learned he had a criminal record. The Immigration and Review Board held 12 reviews of his detention but he was ordered to remain detained each time. He has since been deported back to Pakistan.
In November last year, the Supreme Court of Canada heard from interveners who argued that immigration detainees do not always receive a fair hearing and sometimes end up incarcerated indefinitely. Molly intervened as co-counsel for the Canadian Council for Refugees.
“The work that Molly and her co-counsel did on this case is truly outstanding, and is sure to influence the development of the law in this field,” said Efrat Arbel, Assistant Professor, Allard School of Law and one of Molly’s PhD supervisors. “The detailed research conducted by the JD research team lends invaluable support to the arguments raised.”
We recently had the opportunity to speak with Molly about the case and her experiences.
In your view, what are some of the implications of the upcoming Supreme Court of Canada decision regarding this case?
The impact of the case could be a clear and much-needed entrenchment of the right to habeas corpus for immigration detainees. However, and importantly, the Supreme Court’s decision will likely be premised upon an analysis of the flaws in the immigration detention review system. An audit of this system published in 2018 contained horrifying examples of immigration detainees subjected to lengthy periods of detention – up to seven years – without sufficient access to justice, including legal counsel, evidence, and mental health and social supports, while their procedural rights are routinely violated. I think that many advocates are hopeful that this analysis will spur reform at the Immigration Division of the Immigration and Refugee Board, which is the administrative tribunal that adjudicates immigration detention.
Have the current detention laws been challenged in the past? If not, why do you think it has taken so long for a challenge to be brought forward on this issue?
The issue at hand – access to habeas corpus for immigration detainees – was hardly litigated from the year 1989, when Peiroo was decided, until 2014, when the Ontario Court of Appeal rendered its decision in Chaudhary indicating that immigration detainees have access to habeas corpus where their detention has become lengthy and indefinite. There is also a broader challenge to the immigration detention regime ongoing in the Federal Courts in the matter of Brown v Canada. It is worth noting that there has been an increase in litigation around issues of immigration detention in recent years as the number of immigration detainees has increased. Pre-9/11, immigration detention was not as prominent a practice in Canada for purposes of enforcement of our immigration laws. Post-9/11, we have entered an era of the securitization of migration, where noncitizens are, sadly, often viewed as security threats, and treated accordingly.
What were some of the challenges and surprises of working on such a landmark case?
As an intervener, we were permitted to file a 10-page factum, and were granted five minutes to make oral submissions (which were made by my very talented colleague, Erica Olmstead). We were a very small piece of the bigger puzzle, in which the applicant and the respondent play the biggest role. The challenge is to say something meaningful and coherent in that limited space and time. These strict guidelines mean that every sentence in the 10-page factum must be carefully crafted to ensure that it is relevant to the broader point. In the end, I felt strongly that our factum was the most refined piece of legal writing I have ever worked on.
As for surprises – I guess I would say I was surprised by how human all the lawyers and judges seemed in the end. As a law student, Supreme Court judges seem almost superhuman, as do the lawyers who appear in front of them. As a result, I think that as a junior lawyer I never really believed that I would be capable of grasping the complexity of the legal issues with which the SCC is confronted. Being this close to a Supreme Court case made me see that, though many of the individuals who litigate at that level are exceptionally talented, they are also sometimes just as stumped by these complicated issues as the rest of us. That was both reassuring and validating as a young woman lawyer in a field dominated by older men.
How have your experiences as a graduate student influenced or informed your approach in working on this case?
Academia challenges you to perpetually question assumptions, and step back in order to consider the bigger picture, inquiring as to what the theoretical or legal underpinnings of what you’re studying may be. Legal practice, on the other hand, often doesn’t require this bigger picture analysis, and in fact generally requires the contrary. What your focus has to be is the best interests of your client – regardless of what the broader context may be. You can’t sacrifice the interests of your client in order to pursue systemic change in the context of a given instance of litigation. However, a case doesn’t make it up to the Supreme Court unless the issues at hand impact a significant number of individuals beyond the named applicant. The advocacy required therefore necessitates an understanding of the legal and conceptual underpinnings of the broader system and issues. As a result, the skills that academia hones come into play with Supreme Court advocacy, and I felt like I was better able to contribute because of the skills I’ve gained through my graduate studies in law.
Molly Joeck is currently pursuing her PhD, while working as a lawyer with Edelmann and Co., practicing in all areas of immigration and refugee law.