Courts can order that a detained person be brought before them, and require the authorities to justify any and all aspects of the detention. Courts have used this power, the writ of habeas corpus, since the 13^th century to check abuses of power and end arbitrary detentions.

Habeas corpus is a protected right under article 10(c) of the Canadian Charter of Rights and Freedoms and section 2(c)(iii) of the quasi-constitutional Canadian Bill of Rights.  Thanks to the Constitution Act, 1867, provincial superior courts handle habeas corpus matters (May v. Ferndale, [2005] 3 S.C.R. 809).

However, legislators can create alternative processes to review detentions. If the alternative processes are “as broad as or broader” in scope than habeas corpus, then the courts cannot order habeas corpus; the detainee is supposed to use the alternative process instead.

Mr. Chhina was detained while awaiting removal from Canada, as he had previously evaded the immigration authorities. He was held in a maximum-security prison and kept on lockdown. Mr. Chhina alleged that his detention was unlawful due to its length, uncertain duration, and inappropriate conditions. The Immigration and Refugee Protection Act (IRPA) provided for a review of this detention at the Immigration Division of the Immigration and Refugee Board (“the Board”). The Board must review immigration detentions after 48 hours, then after 7 days, and then every 30 days If Board makes an unreasonable decision, the Federal Court can ask the Board to redetermine its decision.

The SCC ultimately held that this IRPA process was not as broad as habeas corpus proceedings when it comes to challenging the conditions and length of an immigration detention.

First, the SCC found the IRPA process had a different onus of proof. In habeas corpus proceedings, the government is responsible for proving the detention is lawful. In the IRPA process, the Board assumes the detention has been lawful, and the detainee is responsible for proving why it should end.

Second, the IRPA process has a much narrower scope. Habeas corpus vets whether the overall detention is consistent with the detainee’s rights. Among other things, it allows Mr. Chhina to challenge the conditions of his detention. In practice, the Board does not question the conditions of detention; it generally asks only whether there are new reasons to release the detainee. In turn, the Federal Court rarely vets the conditions, finitude, length, and other aspects of the detention in full; it generally only considers whether the Board’s decision was reasonable enough to be left alone, or whether the Board should have to revisit its decision.

Third, the IRPA process is not as timely. Provincial superior courts tend to schedule habeas corpus with priority. In the IRPA process, going through the Board and then the Federal Court typically takes a long time; the Federal Court generally takes 85 days to provide leave for a hearing, and rarely makes a final decision before 30 days pass and the Board has made a new decision – at which point, the Federal Court proceeding is moot. In practice, does not only delay relief from the Federal Court – it may make it inaccessible in many cases.

While habeas corpus has previously been ruled unavailable in the immigration context, the SCC held that habeas corpus was only off-limits in those cases because the detainees were not actually challenging the lawfulness of their detention, but rather the lawfulness of their removal from Canada. Unlike them, Mr. Chhina was genuinely challenging his detention conditions.

Justice Abella dissented from the majority of the SCC. While she agreed that the IRPA process fell short of habeas corpus proceedings in practice, she found that the IRPA could and should be interpreted to create a process as broad as habeas corpus. Justice Abella concluded that the proper remedy was not to make habeas corpus available to immigration detainees, but rather to improve the IRPA process so that met her interpretation of IRPA – by placing the onus on the Minister, and also allowing detainees to challenge any aspect of their detention. However, Justice Abella rejected the majority’s argument on timeliness, as she pointed out the Federal Court had the power to expedite its timelines where necessary.

The post Unlawful Immigration Detentions and Habeas Corpus: The Case of Tusif Ur Rehman Chhina first appeared on Bellissimo Law Group.

At the personal level, the Immigration Division (ID) will continue to be at the front line in deciding detention review cases at first instance. The cases from both the Federal Courts and superior courts have reiterated the responsibility of applying the Charter in immigration detention cases falls squarely on the shoulders of ID members. A number of critical questions arise given these developments.  In my view, a couple rise to the forefront.  Specifically, how have the recent habeas corpus decisions and the Brown v. Canada decision at the Federal Court, in particular, impacted the conduct of detention review proceedings?  What factors, if any, do members at the ID have to consider beyond the legislative and regulatory detention review regime in the Immigration and Refugee Protection Act (IRPA)[3] and the Immigration and Refugee Protection Regulations (IRPR)[4] to remain Charter compliant?

A bright light has been shone on the substantive and procedural rights at play beyond those which are enumerated in the legislative context. While the IRPA and the IRPR enumerate non-exhaustive lists of relevant considerations in determining a detainee’s substantive constitutional rights, ID members must also look to the procedural rights guaranteed by the Charter that have been interpreted and applied in recent jurisprudence to ensure the principles of fundamental justice are observed.   In all, recent jurisprudential developments have added depth, colour, and practical application to the conduct of detention review proceedings.

The cases on the ID’s jurisdiction are clear: apply the Charter. Members should look to case law, particularly the recent habeas corpus decisions of the superior courts to help them determine thorny issues like whether a detainee’s detention has been too lengthy or is not justified.  The analysis of a given detention begins with a determination if it is justified, which should be rooted in the section 9 protection against arbitrary detention. Members must also be cognizant that section 7 guarantees procedural protections. These procedural protections are no less significant than the substantive rights that govern detention reviews generally. These include a number of factors highlighted above.  Violations of even one of the procedural guarantees should lead to release of a detainee even when the Minister has satisfied the enumerated factors in section 248 of the IRPR.   Members should look to case law – not limited to the immigration sphere – to add depth, colour, and practical application to the substantive as well as the procedural guarantees in sections 7, 9, and 12 of the Charter.  These complex legal issues will continue to unfold as the jurisprudential and likely the legislative evolution of the IRPA unfolds.  The resulting changes are likely to alter the manner in which detention reviews are conducted and will impact the courtrooms, hearing rooms, holding facilities, ports of entry and everywhere in between.

For more information on Detention Reviews please click here.

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The post Detention Reviews, Habeas Corpus and the Charter Navigating a New & Evolving Legal Landscape first appeared on Bellissimo Law Group.

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:

[72] 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:

[111] […] 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.

[112] 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.

The post Appeal Court Rules Detainees Can Challenge Detention to Superior Court first appeared on Bellissimo Law Group.