In today’s ruling, “I think the Supreme Court just wanted to make the statement that habeas corpus is not a discretionary remedy, it’s really an important part of our legal system,” says Nico Breed of Nota Bene Law Group Inc. in Calgary, who represented the respondent along with Barbara Jackman, Chris Reed and Farah Saleem.
The Supreme Court had previously established two limited exceptions to the availability of habeas corpus as a remedy to immigration detainees. First, a provincial superior court should decline jurisdiction in an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence. Second, a provincial superior court should decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous.”
The issue before the court in this case was whether the Alberta Court of Queen’s Bench had erred in declining its jurisdiction to entertain the respondent’s application for habeas corpus on the basis that the IRPA satisfies the second exception. In a 6-1 decision, the court decided that it did not.
“The parties do not contest that the statutory scheme set out in the IRPA provides a complete, comprehensive and expert procedure for the review of immigration matters generally,” Justice Andromache Karakatsanis wrote for the majority, with Chief Justice Richard Wagner and justices Michael Moldaver, Clément Gascon, Suzanne Côté and Russell Brown concurring.
“What this case emphasizes, however, is that the determination of whether such a scheme is as broad and advantageous as habeas corpus must be considered with respect to the particular basis upon which the lawfulness of the detention is challenged.”
The respondent, Tusif Ur Rehman Chhina, arrived in Canada from Pakistan under another name in December 2006 and was granted refugee status, which was later vacated, owing to misrepresentations made in his refugee application and involvement in criminal activity. He was then placed in immigration detention pending deportation from Canada.
The Immigration and Review Board held 12 reviews of Chhina’s immigration detention pending deportation from Canada and each time ordered continued detention. After 10 months, Chhina applied to the Court of Queen’s Bench of Alberta for a writ of habeas corpus on the grounds that his detention was lengthy and indeterminate and, therefore, illegal; his challenges were made under s. 7 and 9 of the Charter of Rights and Freedoms.
Chhina spent 13 months in a maximum-security facility in Alberta, in lockdown for 22 hours per day, as Alberta does not have specific immigration detention centres.
The Court of Queen’s Bench declined to exercise jurisdiction to hear the habeas corpus application; the Court of Appeal allowed an appeal and remitted the application to the Court of Queen’s Bench for a rehearing on its merits. Since that time, Chhina has been deported to Pakistan, so the appeal heard by the Supreme Court was on the legal issues in question.
In today’s decision, the majority of the Supreme Court found that the IRPA scheme fell short in three ways. “First, the onus in detention review under the IRPA is less advantageous to detainees than in habeas corpus proceedings,” Karakatsanis wrote. “Second, the scope of review before the Federal Courts is narrower than that of a provincial superior court’s consideration of a habeas corpus application. Third, habeas corpus provides a more timely remedy than that afforded by judicial review.”
In dissenting reasons, Justice Rosalie Abella found that If the IRPA is interpreted properly, it does offer as generous a regime as does a habeas corpus application.
“I sympathize a bit with her dissent,” Anthony Navaneelan, a staff lawyer at the Refugee Law Office in Toronto and a member of the intervener Canadian Association of Refugee Lawyers, told Legal Feeds. He agrees that the Immigration Division should be able to look at all conditions of detention, which in today’s ruling the majority of the court found was beyond the scope of its normal review.
However, in habeas applications, “the burden is squarely on the government, not the applicant,” he says. Under IRPA, length of detention is just one factor to be considered, whereas in habeas applications, “if detention is considered to be lengthy and indeterminate, [the detainee] will almost certainly be released.”
Breed, who represented the respondent, calls the decision “extremely important for those lengthy detainees, where they struggle every month to get released, the case is not moving forward” and can now apply to superior courts for habeas corpus.
It’s also important that the Supreme Court found that “the Immigration Division does not have jurisdiction to look at conditions of detention,” but that the superior court judges can look at those. “I am very happy about that,” in part because in Calgary, and Alberta, immigration detention centres do not exist, and “my client was kept with criminals in high-security detention. He was only allowed out for an hour and a half per day. A detainee can now use habeas corpus to say this is not acceptable and reasonable.”
The most important aspect of the decision “is that habeas corpus is a fundamental right enshrined in the Charter, and it is now available to immigration detainees all over the country,” says Breed. Ontario courts have already been allowing habeas corpus applications since the 1989 appellate court decision in Peiroo v. Canada (Minister of Employment and Immigration) that established the second exception to habeas corpus applications in immigration detention cases.
“Now the Supreme Court has said ‘this is enshrined in our law and is available to immigration detainees,’” Breed says.