Canada SC | Detained immigrant’s application for habeas corpus may be allowed where remedy under Immigration Act is less advantageous to detainee

Canada SC

“Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention……. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited.”

Supreme Court of Canada: The Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Brown, JJ. dismissed an appeal filed by Minister of Public Safety and Emergency Preparedness against the judgment of Court of Appeal for Alberta whereby a detained immigrant’s application for habeas corpus was allowed.

Respondent herein entered Canada under a pseudo name and obtained refugee status. Later on, his refugee status was vacated and he was declared inadmissible to Canada due to misrepresentations in his refugee application and his involvement in criminal activity. Thus, a deportation order was issued against him. He was placed in immigration detention in a maximum security unit. Immigration officials reviewed his detention on a monthly basis, each time upholding the decision that he should be detained. Respondent filed a habeas corpus application under Section 10 (c) of the Canadian Charter of Rights and Freedoms on the ground that his detention had become unlawful, because it had become lengthy and indeterminate and the conditions of his detention were inappropriate, breaching his rights under Sections 7 and 9 of the Charter. The Chambers Judge declined to consider respondent’s application on the basis that the scheme set out in the Immigration and Refugee Protection Act, 2001 (IRPA) satisfied the Peiroo exception[1]. The Court of Appeal reversed this decision and allowed the respondent’s application.

The Court, by a majority of 6:1, noted that there are only two exceptions to the availability of habeas corpus: (i) challenging the legality of a criminal conviction where a statute provides for a right of appeal; (ii) it is not available in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review as broad as that available by way of habeas corpus.

It was opined that IRPA was a complete, comprehensive and expert scheme for immigration matters generally, but the statutory scheme set out in the IRPA did not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which the respondent had challenged the legality of his detention, i.e., the length, uncertain duration and conditions of his detention.

It was held that the IRPA scheme fell short in at least three important ways: (i) the onus in detention review was less advantageous to detainees than in habeas corpus proceedings; (ii) the scope of immigration detention review before the Federal Courts was narrower than that of a superior court’s consideration of a habeas corpus application and; (iii) habeas corpus provided a more timely remedy than that afforded by judicial review. Therefore, the appeal was dismissed.[ Minister of Public Safety and Emergency Preparedness and Attorney General of Canada v. Tusif Ur Rehman Chhina, 2019 SCC OnLine Can SC 12, decided on 10-05-2019]

[1] Where Parliament has put in place a complete, comprehensive and expert statutory scheme providing for review of detention that is at least as broad as, and no less advantageous than habeas corpus review, superior courts should decline to exercise their habeas corpus jurisdiction in favour of that statutory scheme. (Peiroo v. Canada (Minister of Employment & Immigration, (1989), 69 O.R. (2d) 253.

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