Skip to content

SCC forces habeus corpus into the scandalous immigration detention review process

Free at last! Free at last! Thank habeas corpus, they are free at last.

Well, it’s a bit late in the day for Tusif Ur Rehman Chhina, whose habeas corpus application was upheld by the Supreme Court after he was released from jail and on to an airplane bound for Pakistan, but still, point made.

In Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, the Supreme Court of Canada upheld the ancient writ of habeas corpus as having direct application to non-citizens held in immigration detention — held as in held and held and held and held for lengthy, protracted periods of detention with no apparent hope of release.

The detention review process under the Immigration and Refugee Protection Act was found to be inadequate and the result of “maladministration within the IRPA scheme.”

Maladministration! Albeit the polite language, a necessary coming to terms with what immigration lawyers have known forever — that the immigration division and its so-called timely review process sucked — was an embarrassingly faulty process favouring the minister and was not in any way a true assessment of the lawfulness of imprisonment and the possibility of release.

There, I said it — and it feels good.

Many of us in the immigration bar had given up on even trying to get our clients released from detention, seeing it as a waste of clients’ money and everyone’s time. At the last detention review I attended, I represented the detainee only because the transcript revealed that, at the last review, the immigration division member had told the detainee to bring a lawyer next time, as “. . . if the minister still has no travel document, I will release you,” quoth the member. Next time came. No travel document. Same member. No release. “I will release you,” nevermore quoth the member. I am Charlie Brown again, trusting that Lucy will keep the ball in place and let me kick it, fairly, just one time.

It was not to be, and like Charlie Brown, I flipped into the air, shoes and socks flying away, and summersaulted to a brutal landing once again. But, maybe, never again. Now we have the possibility of habeas corpus and a real judge, one from the Superior Court, scrutinizing the detention with a wrinkled brow. These are serious judges. The wrinkles came honestly, through making careful comparisons of what the state was saying and the truth.

The significance of Chhina is in its jurisdictional aspects. The Supreme Court rejected the notion that IRPA provided as broad and advantageous a process to challenge the legality of a detention as habeas corpus does. Habeas corpus is an ancient writ developed through the English common law as a means to force the king to bring forward a prisoner. Through this process, the reasons for imprisonment would be tested to make sure the detention was for a lawful purpose rather than an arbitrary whim — based on anything from personal hatred, politics or even bureaucratic incompetence. Henry VII apparently disliked a lot of people and kept arresting them.

Habeas corpus has limits, however, and will be precluded when a complete, comprehensive and expert scheme provides for review of detention that is at least as broad and advantageous as habeas corpus. The court found that the immigration scheme did not measure up, ostensibly for three reasons.

The first reason given by the court related to the onus at detention hearings. Under IRPA, the minister need only make a prima facie case for continued detention to shift the onus on to the detainee to justify release. In a habeas corpus application, the onus falls squarely on the minister to justify the legality of the detention in any respect.

The second reason relates to the scope of review by the Federal Court. The court will only review the last decision made by the immigration division, which itself may rely on previous decisions to detain. In habeas corpus, the issue is detention as a whole.

Finally, habeas corpus provides a timelier remedy than those available under IRPA. Leave is required for judicial review, and perfecting an application for judicial review can take up to 85 days. In contrast, habeas corpus is a swift and imperative remedy.

So, there it is. At its core, habeas corpus is a democracy’s recognition that, though a state may have tangible enforcement power — or maybe because it does — the people have pens that must be more powerful.