May 28, 2019
Unlawful Immigration Detentions and Habeas Corpus: The Case of Tusif Ur Rehman Chhina
The Supreme Court of Canada has ruled in Chhina (2019 SCC 29) that immigration detainees may challenge the lawfulness of their detention in provincial courts.
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 13th 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,  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.