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With the high-profile coverage of Ebrahim Toure and Kashif Ali, issues surrounding immigration detention has received increased scrutiny from public and legal communities alike. In a few weeks, the Supreme Court of Canada (“SCC”) will hear the case of Tusif Ur Rehman Chhina, a man who was held in an Albertan immigration detention facility for over two years (Minister of Public Safety and Emergency Preparedness, et al. v Tusif Ur Rehman Chhina, SCC Docket 37770). With no prospect of being granted release by the Immigration Department, Mr. Chhina applied to Alberta’s Court of Queen’s Bench (“ABQB”) for habeas corpus under s. 10(c) of the Canadian Charter of Rights and Freedoms (“Charter”), which gives applicants the ability to have courts assess the lawfulness of their detention as a right. If Mr. Chhina’s application was successful, he would be released.
The ABQB considered the question of whether for immigration detainees, the court could grant habeas corpus applications and thus be able to order the detainee’s release. That is the question at the heart of the appeal to the SCC. The SCC’s decision will provide much-needed clarification on the scope of the writ of habeas corpus, and potentially expand or narrow judicial remedies in reviewing a person’s immigration detention. The following post will provide an overview of the case, along with a discussion about some conflicting cases on the issues.
Facts & Judicial History
Tusif Ur Rehman Chhina was a Pakistani national. In July 2008, he was granted refugee status in Canada, but he subsequently lost immigration status on the basis of misrepresentation of his identity to immigration officials. His removal from Canada was ordered on the basis of serious criminality after being charged and convicted. Mr. Chhina was arrested and sent to immigration detention on November 2015. Mr. Chhina spent 26 months in custody and had 12 immigration detention review hearings. Each time, the Immigration Department (“ID”) ordered his continued detention. He was never released.
On May 18, 2016, Mr. Chhina filed for habeas corpus, a writ that gives applicants the right for courts to assess and determine whether their detention by state action is lawful. The ABQB has inherent jurisdiction to hear applications of habeas corpus, however, the chambers judge found the court had no jurisdiction to hear the application, stating the immigration detention review procedures and appeals outlined in the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”) should have been followed instead, in assessing the legality of his detention. Mr. Chhina appealed. The Alberta Court of Appeal (“ABCA”) allowed the appeal,?Chhina v Canada (Public Safety and Emergency Preparedness), 2017 ABCA 248 [Chhina], finding that the ABQB should have heard Mr. Chhina’s application. The ABCA remitted the matter back to the ABQB for a determination on the merits.
The Minister of Public Safety and Emergency Preparedness (“the Minister”) has since appealed to the SCC and on September 2017, Mr. Chhina was deported to Pakistan. Leave to appeal was granted despite Mr. Chhina’s deportation.
Habeas corpus and the Peiroo exception
Before the advent of the Charter, the habeas corpus writ was a common law writ used to challenge unlawful detentions by the state. As noted in Chhina, habeas corpus is a significant remedy, as it allows for judicial oversight where the state exercises significant powers to strip a person of their liberty (para 22-23). If a court finds the detention to be unlawful, they can go as far as to order release, or order a less onerous form of detention. Habeas corpus has since been entrenched in the Charter under s.10(c), which provides: “Everyone has 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.”
While a detainee has the right to challenge their detention under habeas corpus, superior courts can choose not to exercise their jurisdiction to hear the application under two exceptions. First, a person, serving time for a criminal conviction cannot use the habeas corpus to circumvent the processes of appealing their conviction and/or sentence. Second, established in the case Peiroo v Canada (Minister of Employment and Immigration,  OR (2d) 253, a court will not hear a habeas corpus application if they conclude that Parliament has instituted “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.”
In Chhina, the ABCA found that the detention review scheme under the IRPA did not fall under the Peiroo exception. In doing so, the Court relied on May v Ferndale Institution, 2005 SCC 82 [May], which established five factors which would favour concurrent jurisdiction of both the administrative scheme in place and the superior court’s power to hear habeas corpus applications: (1) the choice of remedies and forum; (2) the expertise of provincial superior courts; (3) the timeliness of the remedy; (4) local access to the remedy; and (5) the nature of the remedy and the burden of proof.
The ABCA found all five May factors were in favour of allowing concurrent jurisdiction of both the IRPA and habeas corpus. What was particularly persuasive was that an Immigration Division member can order continued detention only if one of the five grounds, listed in s. 58(1) of the IRPA, were satisfactorily established. If there is no change in the detainee’s situation, the Immigration Division can use the same evidence as the previous detention review hearing and continue the detention on a monthly basis. There is no need to assess whether the period of detention, as a whole, was overall unlawful. The habeas corpus application, which looks at the entire period of detention and its legality under the Charter, fills in this legal gap (Chhina, para 55).
May had a very different set of facts than Chhina. The SCC may choose to distinguish the factors they establish in militating for concurrent jurisdiction. In May, the appellants were inmates serving life sentences. The Correctional Service of Canada used a computer application, which made an assessment of whether the applicants should be transferred from their minimum security facility to a medium security institution. The applicants subsequently applied for habeas corpus to stop the transfer. The SCC granted habeas corpus on the grounds that the governing administrative scheme, the Corrections and Conditional Release Act, did not intend to stop inmates from accessing the writ. It has yet to be seen if the SCC will come to the same conclusion with the IRPA, as the IRPA’s immigration detention review procedures are arguably more robust than a computer program.
Besides Chhina, two conflicting provincial court of appeal cases have dealt with whether habeas corpus is accessible for immigration detainees challenging their continued detention: Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 [Chaudhary], and Apaolaza-Sancho c Director of établissement de détention rivière-des-prairies, 2008 QCCA 1542 [Apaolaza-Sancho]. In these two cases, the decision turned on the determination that the IRPA is thorough enough to assess the legality of the detention. Chaudhary, relying heavily on in Chhina, allowed concurrent jurisdiction on the basis that the IRPA does not place an onus on the Minister to show a detention of “length and uncertain duration” is legal, unlike a habeas corpus application (para 85). On the other hand, in Apaolaza-Sancho, the court found the IRPA’s process was as fair and robust in their review as the habeas corpus application, so it agreed with the superior court’s decision not to extend jurisdiction under the Peiroo exception. The court in Apaolaza-Sancho placed particular emphasis on s. 72 of the IRPA, which allows detainees to apply for judicial review with respect to any decision or action by the ID, and that the fact that the applicant had not taken advantage of judicial review for his past twelve immigration detention reviews.
Based on the conflict between Chaudhary and Apaolaza-Sancho, we can anticipate that the SCC will likely conduct an analysis of the procedural strengths and weaknesses of the current IRPA detention review process to arrive at a conclusion. Interestingly, neither case discusses the security or public health and safety objectives of the IRPA in much detail (s.3(1)). It is likely the Minister, as the appellant, will emphasize that the immigration detention process is fair, but is also crafted with a need to assuage public safety concerns.
The Chhina appeal represents an important issue, as it can potentially uphold the right for immigration detainees to access judicial oversight over the legality of their detentions. However, one wonders whether judicial intervention is enough to address the complex web of issues around immigration detention. It should be noted that Ebrahim Toure filed a habeas corpus application after the release of the Chaudhary decision, but his application, and subsequent appeal to the Court of Appeal for Ontario, were both denied on the grounds that his detention was not of an “uncertain duration” (Toure v Canada (Minister of Public Safety and Emergency Preparedness) 2018 ONCA 681). It was not until his case received media coverage that the Immigration Division consented to his release, despite Mr. Toure stating for years that he would agree to any conditions attached to his release. Nevertheless, further judicial oversight in the form of habeas corpus, would be a welcome means to provide immigration detainees another way to obtain relief from arbitrary state detention.