Applying Habeas Corpus in Immigration Cases: Bringing Nuance to the Jurisprudence?

Although the ancient writ of habeas corpus is a significant protection against arbitrary detention (more recently acknowledged through section 10(c) of the Canadian Charter of Rights and Freedoms), our courts have developed two circumstances in which it is not available because other remedies are equally effective, providing the same advantages to those who would claim it. Thus prisoners are not able to call on habeas corpus to challenge their conviction or sentence, since they can adequately appeal both under the Criminal Code. Habeas corpus is also displaced when a statutory scheme provides equivalent protection against arbitrary detention. Canada (Public Safety and Emergency Preparedness) v. Chhina (Chhina) 2019 SCC 29 provides a vital message to legislators about how explicit a legislative scheme must be before it is “as broad and advantageous as habeas corpus … with respect to the particular basis upon which the lawfulness of the detention is challenged” (Chhina, para.5, emphasis in original).

Justice Karakatsanis, for herself and five other judges, held that the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27 fails to provide a procedure equivalent to habeas corpus for Chhina’s specific challenge, that the length, uncertain duration and location of his detention made it unlawful. Justice Abella, in a strongly worded dissent, found that the IRPA does provide protections as advantageous as habeas corpus. The Court considered the issue sufficiently important to consider it even though Chhina had since been deported, making his claim moot.

The majority and the dissent (and the parties) agreed that “the statutory scheme set out in the IRPA provides a complete, comprehensive and expert procedure for the review of immigration matters generally” (Chhina, para.5). The majority and dissent agreed that on its face the IRPA did not adequately address Chhina‘s specific claims. However, the majority’s response was to fill the gap through the appliction of habeas corpus; the dissent would interpret the IRPA to encompass Chhina’s claims.

In Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 (O.R. (2d) 253 (C.A.) (CanLII)), which concerned the IRPA’s predecessor, the Immigration Act, and a claim for refugee status and challenge to a removal order, the Ontario Court of Appeal compared the procedures under the Act and habeas corpus, holding that

Parliament has established in the Act, particularly in the recent amendments which specifically address the disposition of claims of persons in the position of the appellant, a comprehensive scheme to regulate the determination of such claims and to provide for review and appeal in the Federal Court of Canada of decisions and orders made under the Act, the ambit of which review and appeal is as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid. In the absence of any showing that the available review and appeal process established by Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction of the Supreme Court of Ontario, it is my view that this court should, in the exercise of its discretion, decline to grant relief upon the application for habeas corpus in the present case, which clearly falls within the purview of that statutory review and appeal process.

The Supreme Court refused leave to appeal in Peiroo. Subsequently, in May v. Ferndale Institution, [2005] 3 SCR 809, 2005 SCC 82 (CanLII), a case dealing with the transfer of prisoners from a minimum to medium security prison on the basis of an algorithmic review of prisoners who had not completed their anti-violence training, the Supreme Court held that a review of the cases, including Peiroo, showed “that, in matters of immigration law, because Parliament has 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, habeas corpus is precluded” (May, para.40).

The application judge in Chhina refused Chhina’s application for habeas corpus on the basis of Peiroo. However, the Alberta Court of Appeal reversed the decision. Justice Karakatsanis summarized the main point in the Court of Appeal’s decision as that Chhina’s claim differed from Peiroo’s (challenges to decisions about his inadmissibility and deportation). Chhina “challenged the legality of his detention, incidental to those determinations, on Charter grounds. The outcome of Mr. Chhina’s habeas corpus application would have no effect on his immigration status or deportation order, but if successful, would affect his immediate liberty” (Chhina, SCC, para.13). Justice Greckol, for the Alberta Court of Appeal, “saw clear differences between the review and relief available via the IRPA process as compared to an application for habeas corpus, finding the latter broader and more advantageous where the challenge related to the length and indeterminate nature of the detention” (Chhina, SCC, para.14).

Because habeas corpus is not a discretionary remedy, it is not sufficient that there be an alternative remedy for a provincial superior court to decline jurisdiction to hear an application for habeas corpus. As Karakatsanis J. points out, “Habeas corpus has never been ‘a static, narrow, formalistic remedy’; rather, over the centuries, it ‘has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty'” (citations omitted) (Chhina, SCC, para. 19). Constitutionally protected itself by section 10(c) of the Charter, it also interacts with other Charter rights, including section 7’s guarantee of life, liberty and security of the person, section 9’s guarantee not to be arbitrarily detained or imprisoned and section 12’s guarantee not to be subjected to any cruel or unusual punishment (Chhina. SCC, para. 21).

To determine whether habeas corpus applies, it is necessary to first determine “upon what basis the legality of the detention is being challenged” (Chhina, SCC, para.42) and then “where there is a complete, comprehensive and expert scheme is as broad and advantageous as habeas corpus in relation to the specific grounds in the habeas corpus application” (Chhina, SCC, para.43). The issue here, for the majority, is whether the review under the IRPA “is as broad and advantageous as [that provided by] habeas corpus” as far as Chhina’s specific claims are concerned:

… [I]t may be helpful to look at whether a statutory scheme fails entirely to include the grounds set out in the application for habeas corpus. If so, the scheme will not be as broad and advantageous as habeas corpus. The scheme will also fail to oust habeas corpus if it provides for review on the grounds in the application, but the review process is not as broad and advantageous as that available through habeas corpus, considering both the nature of the process and any advantages each procedural vehicle may offer.

(Chhina, SCC, para.43)

Following a review of the IRPA provisions, Karakatsanis J. concludes “the review process set out in the IRPA is detailed and clear. The grounds for ordering or continuing detention are clear. Independent review is assured by judicial review through the Federal Courts. Clear remedies, namely release, exist.” (Chhina, SCC, para.52) Section 248(c) and (d) of the IRPA provide for review of the length and likely duration of detention. However, Karakatsanis J. finds that the processes are not as broad or advantageous as they would be under habeas corpus: the onus is less advantageous under the IRPA, the scope of review by the Federal Courts is narrower than that of the provincial superior court under habeas corpus and “habeas corpus provides a more timely reivew than that afforded by judicial review” (Chhina, SCC, para.59).

As far as onus is concerned, under the IRPA, the Minister is required only to establish a prima facie case on only one ground in order to shift the onus to the detainee to justify release. Under habeas corpus, in contrast, “subject to raising a legitimate ground, the onus is on the Minister to justify the legality of the detention in any respect”. And this matters because it is only under habeas corpus that the onus shifts in this way. (Chhina, SCC, para.60) On judicial review, the onus is on the applicant to show that the decision is unreasonable. Furthermore, the Minister may satisfy the onus by relying on the reasons given at a prior hearing and is encouraged to to do by the Federal Courts, thus making the reviews under the IRPA “susceptible to self-referential reasoning” (Chhina, SCC, para.62); it follows that judicial review is also limited. Habeas corpus provides “the detainee with [a] fresh and focussed review” and “grapplies with detention as a whole”. Rather than the usual order for redetermination, requiring futher hearings, habeas corpus will result in immediate release. The IRPA process will take time, since leave is required for judicial review while courts have prioritized habeas corpus applications.

The majority therefore concludes that while “[t]he IRPA has been held to be a complete, comprehensive and expert scheme for immigration matters generally” (emphasis in original), in this case “it is unable to respond…in a manner that is as broad and advantageous as habeas corpus….” The continued importance of habeas corpus in our legal system today means that “any exceptions to its availability must be carefully limited”. (Chhina, SCC, para.71)

In dissent, Abella J. begins with the same starting point: “there should be assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty”. However, rather than require the scheme under the IRPA to address the specific concern raised by the detainee, she would interpret the scheme to “guarantee[] the fullest possible range of scrutiny for detention, including the conditions of detention” (Chhina, SCC, para.72). Indeed, if there are matters that are not recognized as included in the scheme under the IRPA, why would a detainee choose review under the statute over habeas corpus? Instead, “[t]he better approach is to continue to read the language of the IRPA in a manner that is as broad and advantageous as habeas corpus…as all of this Court’s previous jurisprudence has done”. (Chhina, SCC, para.74)

Justice Abella points out that section 3(3)(d) of the IRPA requires adjudicators to exercise their discretion in conformity with the Charter, meaning that its provisions must be interpreted to allow for “the fullest possible review of a detainee’s loss of liberty” (Chhina, SCC, para.92). In Pringle v. Fraser, [1972] S.C.R. 821, Laskin J., for the Court, held that the Immigration Appeal Board Act ousted certiorari jurisdiction from the provincial superior courts with the respect to issues addressed under the Act (Chhina, SCC, paras.95-96). Comparing certiorari to habeas corpus, he concluded that both can be displaced by appropriate legislation”. I note that since Pringle, habeas corpus has received constitutional recognition, whereas certiorari has not.

Relying on Peiroo, generally accepted as establishing the second exception to the availability of habeas corpus, subsequently approved in May, Abella J. stresses that the Court of Appeal found the Immigration Ac provided a process “‘as broad as or broader than the traditional scope of review by way of habeas corpus‘” (Chhina, SCC para.100). However, Catzman J.A., for the Court, found that the situation in Peirooclearly falls within the purview of that statutoroy review and appeal process” (my emphasis).

As does the majority, Abella J. compares the processes under the IRPA and under habeas corpus, finding that the IRPA scheme is structured to provide detaineeds with at least the same rights they would receive on habeas corpus review” (Chhina, SCC, para.144). Regular reviews, as expeditous and accesible as possible, the range of remedies that take into account public safety and security, the fact that leave for judicial review based on appropriate grounds would be likely to succeed, the requirement of release unless the Minister is able to establish one or more of the grounds identified by the IRPA are met, consistency of detention periods and adjudication with Charter requirements, the onus on the Minister “throughout”, all support the process under the IRPA. Furthermore, Abella J. rejects the assertion that the Minister can rely on reasons in prior hearings; prior evidence must also be “reassessed in light of the detainee’s Charter arguments”.

As to whether the IRPA addresses Chhina’s particular claims, the Charter also requires that the adjudicators “apply the scheme in a manner that is at least as rigorous and fair as habeas corpus review” and that means they “must ensure the fullest possible review of immigration detention”, including the conditions, ensuring conformity to the Charter. (Chhina, SCC, paras. 129 and 130) The Immigration Division has the advantage of a more factual assessment about the length of detention and in other respects undertakes the same inquiry as under habeas corpus. (Indeed, Abella J. notes that Chhina’s application for judicial review before the Federal Court occurred before his application for habeas corpus before the Alberta Court of Queen’s Bench.)

Justice Abella stresses the importance of precedent where there is not a good reason to depart from it. (A sidebar observation: Justice Abella is the only judge sitting on Chhina who also sat on May.) However, the majority distinguish May on two bases: it did not deal with an immigration issue and the jurisprudence on which it was based “did not stand for the broad proposition that habeas corpus will never be available where the detention is related to immigration matters” (Chhina, SCC, paras.32 and 33). Significantly, May cautions against limiting habeas corpus jurisdiction too extensively: “jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked” (Chhina, SCC, para.34, citing May at para.50). Justice Karakatsanis referrred to two recent court of appeal decisions that supported the conclusion that May did not definitely reject the application of habeas corpus when there was a comprehensive legislative scheme addressing the broad subject matter (Chaudhary v Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700 (CanLII) and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839.

Although agreeing on the fundamental nature of individual liberty and the need for the state to justify its intrusion, the majority and dissent in Chhina reach starkly different conclusions with ramifications for legislators intending to create a statutory scheme that might displace provincial superior courts’ jurisdiction over habeas corpus. Prior jurisprudence established that the statutory scheme must be at least as broad and as advantageous to the claimant as habeas corpus. Both the majority and the dissent accept this caveat, although they disagree on the outcome of the comparison of the processes under the IRPA and under habeas corpus.

However, it is in the initial determination of whether the scheme addresses the actual claim brought by the individual. The majority decision stands for the proposition that the scheme must address “the specific challenges to the legality of the detention” raised by the applicant. This places the onus on legislators to ensure that they have addressed all the ways in which the lawfulness of the detention might be infringed. The dissent, however, relying on the application of Charter values, would require that the interpretation of the statute be sufficiently broad to encompass (all) possible challenges. This is not quite “reading in”, rather it might be more described as viewing the statute as implicitly including these grounds, with decisions presumably providing a precedent for similar claims in the future. (This is quite apart from comparing the procedures, which might have to be adapted to address circumstances arising out of those claims.)

The better view is that not only is the prior jurisprudence distinguishable as the majority shows, but it is not definitive about applying the second exception to the availability of habeas corpus: as May says, cited with approval by the majority,

Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeas corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well defined and limited.

(Chhina, SCC, para.50)

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