October 28, 2015
Appeal Court Rules Detainees Can Challenge Detention to Superior Court
The Court of Appeal for Ontario has provided an important alternative for immigration detainees seeking to challenge the legality of their continued detention. The decision released last week (2015 ONCA 700) confirmed that, while the Ontario Superior Court of Justice must defer to the expertise of the Federal Court of Canada for immigration matters, the Ontario Superior Court does have jurisdiction to decide applications of habeas corpus challenging continued detention.
The decision under appeal was released in March of this year, wherein the Honourable Justice Campbell of the Superior Court ruled that he could not hear the case of four long-term immigration detainees because the only recourse was to the Federal Court of Canada, under the Immigration and Refugee Protection Act. Now, the Court of Appeal has held otherwise. Specifically, the Honourable Justice Rouleau, speaking for the Court of Appeal, framed the habeas corpus issue as follows:
 The question a habeas corpus application would answer is whether the detentions, because of their length and their uncertain duration, have become illegal and in violation of the appellants’ ss. 7 and 9 Charter rights. As such, the immigration status of the appellants will not be affected. They will still be subject to removal. All that will be decided is whether there continues to be a constitutionally valid basis for their detentions pending those immigration decisions and dispositions.
Justice Rouleau went on to consider the applicability of a legal exception which would preclude applications of habeas corpus for immigration detainees if a complete, comprehensive and expert statutory scheme provides for a review that is at least as broad as and no less advantageous than habeas corpus. Here, Justice Rouleau found that this exception does not apply with respect to challenges regarding immigration detention, writing:
 […] I do not consider Peiroo and the other cases confirming the Peiroo exception to stand for the principle that habeas corpus is always precluded in immigration-related matters. Nor do I view the IRPA as having 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” (May, at para. 40) where, as here, the decision sought to be reviewed is the continuation of a lengthy detention of uncertain duration.
 In R. v. Gamble, at p. 641, the Supreme Court emphasized that in matters of liberty:
[a] purposive approach should … be applied to the administration of Charter remedies as well as to the interpretation of Charter rights, and in particular should be adopted when habeas corpus is the requested remedy, since that remedy has traditionally been used for, and is admirably suited to, the protection of the citizens’ fundamental right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice. The superior courts in Canada have, I believe, with the advent of the Charter and in accordance with the sentiments expressed in the habeas corpus trilogy of Miller, Cardinal and Morin displayed both creativity and flexibility in adapting the traditional remedy of habeas corpus to its new role.
This case confirms that applicants who face continued indefinite detentions should not be deprived of their Charter right to habeas corpus. Rather, they may choose whether to challenge their continued detention by way of Judicial Review to the Federal Court of Canada, or by applying for habeas corpus to the Superior Court of Ontario. This is an important decision which provides further recourse for detainees, some of whom have been detained for years on immigration grounds.