by Lucinda Wong
On May 10, 2019, Canada’s highest court released its decision in Chhina, which addressed the availability of habeas corpus to individuals in immigration detention. Habeas corpus is a writ requiring a person under arrest to be brought before the court to secure a person’s release, unless lawful grounds are shown for their detention.
The writ of habeas corpus was previously unavailable as a solution for immigrants in detention. In Canadian common law, there exists a legal exception where immigrants in detention could not access the remedy of habeas corpus under the Peiroo exception, where “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.” In short, immigrants in detention could not apply for habeas corpus.
In this landmark decision, the Supreme Court of Canada has confirmed that the detention review procedure under the Immigration and Refugee Protection Act (IRPA) does not provide a review procedure that is at least as broad and advantageous as habeas corpus. Accordingly, the Applicant was entitled to have his application heard by the chambers judge.
Immigrants who are under long-term detention (eg. a year or more) now have a new avenue to challenge their ongoing detention. This is critical. Some immigrants are from countries who do not cooperate with removals from Canada. This leads to situations where these immigrants may be trapped an indefinite cycle of detention reviews without end, even if they are not charged with a crime and it is no fault of their own that their home country will not cooperate with removal. This decision may impact a number of immigrants currently held in detention in Calgary and Edmonton.
Government statistics regarding the immigrants in Calgary and Edmonton who are in detention are as follows:
(Source: Western Region IRB)
The Applicant, Tusif Ur Rehman Chhina, was an immigration detainee from Pakistan. He was granted refugee status in Canada in July 2008. This status was vacated in February 2012 on the basis that Mr. Chhina had misrepresented his identity to the Canadian government and was involved in criminal activity. He was convicted of several criminal offences in Canada, for which he served approximately 3 years of a criminal sentence before being taken into immigration detention on April 11, 2013.
The first immigration detention ended on November 14, 2013 and the appellant was released on conditions. He failed to check in with the Canadian Border Services Agency (CBSA) and disappeared for one year. He was re-arrested by the Edmonton Police Service on December 11, 2014 and remained in criminal detention until November 16, 2015, as a result of charges he incurred while on release. After the appellant’s criminal charges were dealt with, he was returned to immigration detention on November 17, 2015, where he remained.
Since April 2013, CBSA had been diligently taking steps to return Mr. Chhina to Pakistan. However, in December of 2015, Pakistani officials stated that they could not verify that Mr. Chhina was a citizen of Pakistan, and refused to issue him a travel document on that basis. CBSA took steps to establish Mr. Chhina’s true identity and requested travel documents from Pakistan on three occasions of 3.5 years. Pakistan refused to accede to those requests.
As of July 1, 2017, Mr. Chhina had been in immigration detention for a total of 26 months. Mr. Chhina had attempted to offer alternatives to detention that were rejected by the CBSA, including house arrest and a $7,500 bond.
On May 18, 2016, Mr. Chhina applied to the Alberta Court of Queen’s Bench for a writ of habeas corpus under Section 10(c) of the Canadian Charter of Rights and Freedoms (“Charter”) to have the validity of his detention determined, and to be released if the detention was not lawful. He also invoked Section 7 of the right to ““life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, and under s 9 to “the right not to be arbitrarily detained or imprisoned”.
Mr. Chhina was ultimately deported back to Pakistan before his hearing at the Supreme Court of Canada.
Decisions of the Court:
The chambers judge initially declined to hear Mr. Chhina’s application for habeas corpus, citing the Peiroo exception and stating that IRPA provided a “complete, comprehensive and expert procedure for review of an administrative decision”.
On appeal, the Alberta Court of Appeal allowed the appeal and found that the application for habeas corpus ought to have been heard by the chambers judge and returned the decision for reconsideration on its merits. The Respondents, the Government of Alberta and the Calgary Remand Center, appealed this decision to the Supreme Court of Canada.
The Supreme Court of Canada found the following:
IRPA proceedings do not provide for review as broad and advantageous as habeas corpus. Mr. Chhina had challenged the legality of his detention on three main grounds: the length, uncertain duration and conditions of his detention;
Although the length and likely duration of detention can be reviewed under the IRPA scheme, that review is not as broad and advantageous as that available through habeas corpus.
The IRPA scheme falls short in at least three important ways:
the onus in detention review is less advantageous to detainees than in habeas corpus proceedings;
the scope of immigration detention review before the federal courts is narrower than that of a superior court’s consideration of a habeas corpus application; and
habeas corpus provides a more timely remedy than that afforded by judicial review to the Federal Court.
On judicial review, the Federal Court often places considerable deference on the expertise of the Tribunal, weakening the effectiveness of the review mechanisms under IRPA. Even if successful, the Federal Court must remit a decision back to the Immigration Division for reconsideration.
This is a significant decision because there is finally an acknowledgement from Canada’s highest court that IRPA does not always provide sufficient means to safeguard the rights of immigrants held in detention. Under certain circumstances, an application for habeas corpus from a provincial superior court ought to be allowed. For immigrants in unusual circumstances who are unable to be deported in a timely fashion, this may be an important solution.
Immigration detentions and removals is a very complex area of the law. If you find yourself facing these issues, it is imperative you get immediate legal assistance.