published on 2 August 2019 @ 2:15 pm · COMMENT
Habeas Corpus is a Possible Solution for Immigration Detention
Immigration lawyers everywhere whose clients include those being held in immigration detention have a new avenue for seeking the release of their clients, thanks to the the Supreme Court’s decision in Minister of Public Safety and Emergency Preparedness, et al. v. Tusif Ur Rehman Chhina, 2019 SCC 29. In this seminal decision, the Supreme Court confirmed the availability of a writ of habeas corpus to those being held in immigration detention.
The writ of habeas corpus was initially a writ at common law, and was later included in Section 10(c) of the Canadian Charter of Rights and Freedoms, which gives everyone “the right, on arrest or detention […] to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” It is an essential remedy to protect individuals from unlawful deprivations of liberty.
Jurisdiction to hear and grant requests for a writ of habeas corpus remains with the provincial courts, including requests in the immigration context, unlike all other immigration matters, which fall within the jurisdiction of the Federal Court.
Prior to the Supreme Court’s decision in Chhina, there was conflicting case law at the provincial level regarding whether an individual being held in immigration detention was able to request a writ of habeas corpus to secure release from a lengthy immigration detention.
In Peiroo v. Canada (Minister of Employment and Immigration) (1989), 60 DLR (4th) 57 (Ont CA), the Ontario Court of Appeal considered whether it should exercise its jurisdiction to consider a request for a writ of habeas corpus from an individual held in immigration detention. The Court, in this decision, established an exemption to the requirement for provincial courts to consider a request for a writ of habeas corpus where Parliament has established “a comprehensive scheme to regulate the determination of such claims […] [which] is as broad or broader than the traditional scope of review by way of habeas corpus”. The Ontario Court of Appeal declined jurisdiction, as there was a statutory review and appeal process in place to provide the appellant with the relief she sought.
Since Peiroo was decided in 1989, and since the immigration legislative scheme was overhauled in 2001 with the introduction of the Immigration and Refugee Protection Act (“IRPA”), provincial courts have been divided as to whether to exercise jurisdiction to hear a request for a writ of habeas corpus from immigration detainees. In Apalolaza-Sancho c. Director of Établissement de detention de Rivière-des-Prairies, 2008 QCCA 1542, the Quebec Court of Appeal did not find any basis on which to conclude that the IRPA was not a comprehensive legislative scheme described in the Peiroo exemption, and declined jurisdiction.
However, the Ontario Court of Appeal in Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 found that the Peiroo exemption was “not a blanket exclusion of habeas corpus in immigration-related matters” and that where “the issue is the legality of a continuing and lengthy detention of uncertain duration, the review process created by the IRPA is not as broad and is less advantageous than habeas corpus.” The Court found that there were differences between the statutory scheme under the IRPA and habeas corpus that made habeas corpus broader and more advantageous to the appellants when the issue is whether a continued detention has become illegal due to the length and uncertainty of their continued duration. The Court concluded that the appeals should be allowed and the applications be sent back to the Ontario Superior Court of Justice for consideration on the merits of the request for a writ of habeas corpus.
It was with this legal backdrop that the Alberta courts considered the case brought forth by Tusif Ur Rehman Chhina. Chhina had been in immigration detention for a total of 26 months over two periods of time, and maintained that his detention was continuing, lengthy, and of uncertain duration. He therefore brought an application to the Alberta Court of Queen’s Bench for a writ of habeas corpus. In considering whether he should exercise his jurisdiction to hear the habeas corpus application, the chambers judge considered the decision in Chaudhary, and found that it established a “threshold question” to be decided, and that the applicant had an onus to show reasonable and probable grounds that his detention had become very lengthy and of uncertain duration. The chambers judge concluded that at this stage in Chhina’s immigration matters, any immigration issue could be dealt with by the Federal Court, and that Chhina had not demonstrated that his detention was both very lengthy and of uncertain duration that would bring him within the scope of the decision in Chaudhary. He therefore declined jurisdiction on the basis that IRPA did provide a comprehensive legislative scheme as described in the Peiroo exemption.
Chhina then appealed this decision to the Alberta Court of Appeal in Chhina v. Canada (Public Safety and Emergency Preparedness), 2017 ABCA 248. The Court of Appeal disagreed with the assessment of the chambers judge, relying heavily on the same reasoning applied by the Ontario Court of Appeal in Chaudhary, concluding that the Peiroo exemption does not apply to preclude habeas corpus where it is alleged that the immigration detention is continuing, lengthy and of uncertain duration so as to violate the applicant’s constitution rights.
Almost six months after the Supreme Court heard the case of Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, the judgment of the Court was rendered on May 10, 2019. In a lengthy 6-1 decision written by Justice Karaktsanis for the majority, with Justice Abella dissenting, the Supreme Court has concluded that the detention review scheme outlined in the Immigration and Refugee Protection Act (“IRPA”) is not at least as broad and advantageous as habeas corpus, and therefore does not fall within the Peiroo exception. Accordingly, the Court affirmed Mr. Chhina’s right to have his application for habeas corpus heard by the provincial judge.
Justice Karaktsanis summarized the majority’s findings regarding the scope of the Peiroo exemption as follows at para. 40:
In sum, the Peiroo exception can be more clearly articulated as follows: an application for habeas corpus will be precluded on when a complete, comprehensive and expert scheme provides for review that it at least as broad and advantageous as habeas corpus with respect to the challenges raised by the habeas corpus application. An administrative scheme may be sufficient to safeguard the interests protected by habeas corpus with respect to some types of challenges, but may also need to be re-examined with respect to others. It is thus essential to consider how the challenge to the unlawful detention is framed in the habeas corpus application.
Justice Karaktsanis went on to conclude that the basis for Mr. Chhina’s challenge was different than in the Peiroo matter, as he was not challenging whether his inadmissibility or deportation was rightly or wrongly decided, but whether he was being held in inappropriate conditions and whether the duration of his detention had become indeterminate and overly lengthy.
Having identified the basis for Mr. Chhina’s application for habeas corpus, Justice Karaksanis went on to review the IRPA detention scheme to determine if the scope of the review under the legislation included a review of the grounds raised by Mr. Chhina. She found at paras. 59 and 71 that the detention review process established by IRPA was not as broad or advantageous as habeas corpus where an applicant alleges that their detention is unlawful because it is lengthy and of an uncertain duration. As a result, Justice Karaktsanis concluded that the chambers judge of the Alberta Court of Queen’s Bench erred in declining to hear Mr. Chhina’s application for habeas corpus.
This decision is significant for all immigration counsel that represent clients held in immigration detention. In cases where the immigration detention review process fails to address the lawfulness of an individual’s continued detention, jurisdiction lies with the provincial courts to hear applications for habeas corpus. However, it is important to keep in mind that this case was solely about the jurisdiction of provincial courts to hear such applications; it remains to be seen how provincial courts will consider the merits of applications for habeas corpus from immigration detainees.
For a full review of the history of habeas corpus in the immigration context and the Supreme Court’s decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, please see our four-part series in the Lawyer’s Daily: