Canada (Public Safety and Emergency Preparedness) v. Chhina

Canada (Public Safety and Emergency Preparedness) v. Chhina
Collection
Supreme Court Judgments
Date
2019-05-10
Neutral citation
2019 SCC 29
Report
[2019] 2 SCR 467
Case number
37770
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Alberta
Subjects
Courts
Notes
Case in brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467
Appeal Heard: November 14, 2018 Judgment Rendered: May 10, 2019 Docket: 37770
Between:
Minister of Public Safety and Emergency
Preparedness and Attorney General of Canada
Appellants
and
Tusif Ur Rehman Chhina
Respondent
- and -
End Immigration Detention Network, Canadian Association of Refugee Lawyers, Defence for Children International-Canada, Amnesty International Canada (English Branch), Community & Legal Aid Services Programme, Canadian Council for Refugees, Queen’s Prison Law Clinic, Egale Canada Human Rights Trust, British Columbia Civil Liberties Association, Canadian Civil Liberties Association and Canadian Prison Law Association
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Brown JJ.
Reasons for Judgment: (paras. 1 to 71)
Karakatsanis J. (Wagner C.J. and Moldaver, Gascon, Côté and Brown JJ. concurring)
Dissenting Reasons: (paras. 72 to 147)
Abella J.
Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467
Minister of Public Safety and Emergency Preparedness and
Attorney General of Canada Appellants
v.
Tusif Ur Rehman Chhina Respondent
and
End Immigration Detention Network,
Canadian Association of Refugee Lawyers,
Defence for Children International‑Canada,
Amnesty International Canada (English Branch),
Community & Legal Aid Services Programme,
Canadian Council for Refugees,
Queen’s Prison Law Clinic,
Egale Canada Human Rights Trust,
British Columbia Civil Liberties Association,
Canadian Civil Liberties Association and
Canadian Prison Law Association Interveners
Indexed as: Canada (Public Safety and Emergency Preparedness) v. Chhina
2019 SCC 29
File No.: 37770.
2018: November 14; 2019: May 10.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for alberta
Courts — Jurisdiction — Habeas corpus — Exceptions to exercise of jurisdiction by provincial superior courts — Immigration detainee applying for habeas corpus — Superior court declining jurisdiction to hear application on basis that detention review scheme in Immigration and Refugee Protection Act is complete, comprehensive and expert statutory scheme providing for review at least as broad as that available by way of habeas corpus and no less advantageous — Whether superior court erred in declining jurisdiction — Immigration and Refugee Protection Act, S.C. 2001, c. 27 .
After C’s refugee status was vacated and a deportation order was issued, he was placed in immigration detention in a maximum security unit. Immigration officials reviewed C’s detention on a monthly basis, each time upholding the decision that he should be detained. After 13 months in detention, C filed an application for habeas corpus on the ground that his detention was unlawful both because it had become lengthy and indeterminate and because the conditions of his detention were inappropriate, thus breaching his rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms . The chambers judge declined jurisdiction to consider C’s application on the basis that the scheme set out in the Immigration and Refugee Protection Act (“IRPA ”) satisfied one of the two limited exceptions to the availability of habeas corpus, as the legislator had 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 (the Peiroo exception). The Court of Appeal allowed C’s appeal, holding that the exception did not apply and that the chambers judge should have exercised his discretion to hear the application.
Held (Abella J. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté and Brown JJ.: The IRPA does not provide a review procedure that is at least as broad and advantageous as habeas corpus regarding the specific challenges to the legality of the detention raised by C’s habeas corpus application. Accordingly, C was entitled to have his application heard by the chambers judge.
The writ of habeas corpus is an ancient legal remedy that remains fundamental to liberty and the rule of law. Entrenched in s. 10(c) of the Charter, the right to habeas corpus permits those in detention to go before a provincial superior court and demand to know whether the detention is justified in law. A limited exception to this right arises where the legislator 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. However, exceptions to the availability of habeas corpus must be interpreted restrictively. The determination of whether a scheme is as broad and advantageous as habeas corpus must be considered with respect to the particular basis upon which the lawfulness of the detention is challenged in the habeas corpus application. It is necessary to ask upon what basis the legality of the detention is being challenged, and whether there is a complete, comprehensive and expert scheme that is as broad and advantageous as habeas corpus in relation to the specific grounds in the application. The scheme will not be as broad and advantageous as habeas corpus if it fails entirely to include the grounds set out in the application, or 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.
Applying this framework to C’s case reveals that the statutory scheme set out in the IRPA is unable to effectively address the challenge raised by his application in a manner that is as broad and advantageous as habeas corpus. The IRPA provides a detailed scheme to deal with the review of detention in the immigration context. Once an initial detention order has been made, the IRPA review process provides for periodic internal review of detention, for judicial review of those decisions by the Federal Court, and for appeals to the Federal Court of Appeal. Immigration officials are experts in applying their statutory mandates, and the Federal Court contributes an additional layer of immigration‑related expertise. The grounds for ordering or continuing detention are clear. However, IRPA proceedings do not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which C has challenged the legality of his detention — that is, the length, uncertain duration and conditions of his detention. Once the Minister has established grounds for detention, immigration officers must consider factors which may weigh in favour of release, which include: the reason for detention; the length of time in detention; whether detention is likely to continue and, if so, how long; any unexplained delays or unexplained lack of diligence; alternatives to detention; and, the principles applicable to s. 7 of the Charter. 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. The IRPA scheme therefore fails to provide relief that is as broad and advantageous as habeas corpus in response to C’s challenge to the legality of the length and uncertain duration of his detention.
Per Abella J. (dissenting): The appeal should be allowed. The superior court properly declined to exercise its habeas corpus jurisdiction in favour of the complete, comprehensive and expert scheme to which C was entitled under the IRPA .
There should be assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty. That is why the IRPA should be interpreted in a way that guarantees the fullest possible range of scrutiny for detention, including the conditions of detention. Nothing in the language of the IRPA precludes such a comprehensive review. Rather, the basis for the entire scheme in the IRPA requires it. Excluding the possibility of reviewing all aspects of immigration detention, including its conditions and lawfulness, essentially and inappropriately reads out the detention review process in the IRPA and elevates habeas corpus into the only meaningful route offering detainees a full review of their detention. The better approach is to continue to read the language of the IRPA in a manner that is as broad and advantageous as habeas corpus and that ensures the complete, comprehensive and expert review of immigration detention, as all of the Court’s previous jurisprudence has done.
Habeas corpus has historic roots which have spawned a variety of statutory remedies whose goal is to preserve the same protections. These can be found in the IRPA . Their legitimacy as a genuine alternative to habeas corpus was judicially considered and endorsed in Pringle v. Fraser, [1972] S.C.R. 821, Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253, Reza v. Canada, [1994] 2 S.C.R. 394, and May v. Ferndale Institution, [2005] 3 S.C.R. 809. Each of these decisions emphasized that the habeas corpus‑like remedies available in the IRPA scheme are as broad as or broader than the traditional scope of review by way of habeas corpus. The IRPA scheme was intended to provide the same fulsome, Charter‑compliant review of immigration detention as habeas corpus. The Charter informs the interpretation of the IRPA in a manner that allows for the fullest possible review of a detainee’s loss of liberty. The IRPA must therefore be interpreted in a way that gives it the widest possible scope for implementing its objectives. The suggestion that a full review of detention can only occur under habeas corpus departs from a long-standing jurisprudential consensus. There is no principled reason to abandon the sound logic in Pringle, Peiroo, Reza and May. The Court has consistently endorsed the exception limiting the availability of habeas corpus review for immigration matters. Disturbing this jurisprudence will lead to forum shopping, inconsistent decision‑making, and multiplicity of proceedings.
Nothing in the language of the statutory scheme restricts the scope of IRPA detention review to a partial review which must be supplemented by habeas corpus. On the contrary, the IRPA scheme is structured to provide detainees with at least the same rights they would receive on habeas corpus review. All detentions must be reviewed regularly, and review hearings are structured to be expeditious and accessible. Immigration officers are responsible for bringing the detainee before the Immigration Division for all review hearings. The Immigration Division can require the parties to appear, and may order the continued detention of a detainee, their unconditional release, or their release on conditions. A detainee may also apply for leave and judicial review to the Federal Court. In addition, no onus is placed on the detainee, unlike in the case of habeas corpus applications. The IRPA scheme must be interpreted harmoniously with the Charter values that shape the contours of its application and the scheme must be applied in a manner that is at least as rigorous and fair as habeas corpus review. The Immigration Division must weigh the purposes served by immigration detention against the detained individual’s ss. 7 , 9 and 12 Charter rights. That necessarily includes consideration of the conditions of detention, and it ensures the protection of Charter rights.
Section 248 of the Immigration and Refugee Protection Regulations requires the Immigration Division to consider factors to determine if detention should continue. The factors ensure that extended periods of detention do not violate the Charter. The Immigration Division must weigh the state’s immigration objectives against the detained individual’s right to be free from arbitrary or indefinite restraints on liberty. A prior, fact‑driven determination that the individual constitutes a flight risk or a danger to the public is entitled to deference. The justification for continued detention decreases as the length of time in detention increases, and the evidentiary burden on the detaining authority increases as the length of detention increases. The Immigration Division must consider conditions of and alternatives to detention, including release. Delays or lack of diligence on the part of the immigration authorities must be considered. The anticipated future length of detention must also be considered, which requires an estimation of how long detention is likely to continue. The Immigration Division is better positioned to assess and address this factor than the superior courts on habeas corpus. The process of review demands that the Immigration Division consider at least the same considerations that superior courts weigh on habeas corpus review. Properly interpreted, therefore, the IRPA scheme provides for the fullest possible review of immigration detention, and, where detention is said to violate ss. 7, 9 and 12 of the Charter, the review process allows for at least the same substantive assessment as that undertaken by superior courts on habeas corpus review. Since the Court has repeatedly affirmed that habeas corpus will not lie if the statutory alternative provides a remedy that is at least as favourable, the superior court properly declined to exercise its habeas corpus jurisdiction.
Cases Cited
By Karakatsanis J.
Distinguished: Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253; considered: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; referred to: R. v. Gamble, [1988] 2 S.C.R. 595; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Miller, [1985] 2 S.C.R. 613; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409; Jones v. Cunningham, 371 U.S. (1962); Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459; Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401; Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; In re Trepanier (1885), 12 S.C.R. 111; In re Sproule (1886), 12 S.C.R. 140; Goldhar v. The Queen, [1960] S.C.R. 431; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547; Korponay v. Kulik, [1980] 2 S.C.R. 265; Pringle v. Fraser, [1972] S.C.R. 821; Reza v. Canada, [1994] 2 S.C.R. 394; Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572; Brown v. Canada (Citizenship and Immigration), 2017 FC 710, 25 Admin. L.R. (6th) 191; Canada (Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 1199, [2017] 3 F.C.R. 428; Canada (Public Safety and Emergency Preparedness) v. Mehmedovic, 2018 FC 729; Canada (Public Safety and Emergency Preparedness) v. Torres, 2017 FC 918; Canada (Minister of Public Safety and Emergency Preparedness) v. Karimi‑Arshad, 2010 FC 964, 373 F.T.R. 292; Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132; Canada (Citizenship and Immigration) v. B386, 2011 FC 175, [2012] 4 F.C.R. 220; In re Storgoff, [1945] S.C.R. 526; Palmer v. The Queen, [1980] 1 S.C.R. 759; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
By Abella J. (dissenting)
Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Pearson, [1992] 3 S.C.R. 665; Staetter v. British Columbia (Director of Adult Forensic Psychiatric Services), 2017 BCCA 68; Pringle v. Fraser, [1972] S.C.R. 821; Peiroo v. Canada (Minister of Employment & Immigration) (1989), 69 O.R. (2d) 253, leave to appeal refused, [1989] 2 S.C.R. x; Reza v. Canada, [1994] 2 S.C.R. 394; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; In re Storgoff, [1945] S.C.R. 526; R. v. Governor of Pentonville Prison, ex parte Azam, [1973] 2 All E.R. 741, aff’d [1973] 2 All E.R. 765; Reference re Constitution Act, 1867, s. 92(10)(a) (1988), 64 O.R. (2d) 393; Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124; Ali v. Canada (Minister of Public Safety and Emergency Preparedness), 2017 ONSC 2660, 137 O.R. (3d) 498; Canada (Minister of Citizenship and Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433; Canada v. Dadzie, 2016 ONSC 6045; R. v. Miller, [1985] 2 S.C.R. 613; Reza v. Canada (1992), 11 O.R. (3d) 65; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5.
Statutes and Regulations Cited
Canadian Bill of Rights, S.C. 1960, c. 44, s. 2 .
Canadian Charter of Rights and Freedoms, ss. 7 , 9 , 10c), 12 .
Code of Civil Procedure, CQLR, c. C‑25.01, art. 82 para. 3.
Corrections and Conditional Release Act, S.C. 1992, c. 20 .
Corrections and Conditional Release Regulations, SOR/92‑620, s. 81(1).
Criminal Code, R.S.C. 1985, c. C‑46 .
Criminal Procedure Rules of the Supreme Court of the Northwest Territories, SI/98‑78, rr. 103 to 107.
Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93‑22, rr. 10(1), 11, 13.
Federal Courts Rules, SOR/98‑106, r. 302.
Habeas Corpus Act, R.S.O. 1990, c. H.1, s. 1(1).
Immigration Act, R.S.C. 1985, c. I‑2.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1) (h), (3) (d), 57 , 58 , 72 , 74 (d), 151 , 162(1) , 172(2) .
Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 244 to 249, 248.
Immigration Division Rules, SOR/2002‑229, rr. 9, 20(1), 21, 23.
Nova Scotia Civil Procedure Rules, r. 7.13(1).
Public Service Employment Act , S.C. 2003, c. 22 .
Authors Cited
Blackstone, William. Commentaries on the Laws of England, Book III: Of Private Wrongs, by Thomas P. Gallanis. Oxford: Oxford University Press, 2016.
Del Buono, Vincent M. “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L.R. 446.
Farbey, Judith, Robert J. Sharpe and Simon Atrill. The Law of Habeas Corpus, 3rd ed. New York: Oxford University Press, 2011.
Sharpe, Robert J. The Law of Habeas Corpus. Oxford: Clarendon Press, 1976.
APPEAL from a judgment of the Alberta Court of Appeal (Paperny, O’Ferrall and Greckol JJ.A.), 2017 ABCA 248, 56 Alta. L.R. (6th) 1, [2017] 11 W.W.R. 637, 25 Admin. L.R. (6th) 279, 415 D.L.R. (4th) 732, [2017] A.J. No. 840 (QL), 2017 CarswellAlta 1432 (WL Can.), setting aside a decision of Mahoney J. of the Alberta Court of Queen’s Bench, Number 160576914X1, dated September 2, 2016, dismissing an application for habeas corpus. Appeal dismissed, Abella J. dissenting.
Donnaree Nygard and Liliane Bantourakis, for the appellants.
Nico G. J. Breed, Barbara Jackman, Chris Reid and Farah Saleem, for the respondent.
Swathi Sekhar and Maija Martin, for the intervener End Immigration Detention Network.
Jared Will and Joshua Blum, for the intervener the Canadian Association of Refugee Lawyers.
Farrah Hudani, Jeffrey Wilson and Christina Doris, for the intervener Defence for Children International‑Canada.
Laïla Demirdache and Jamie Liew, for the intervener Amnesty International Canada (English Branch).
Subodh Bharati and Suzanne Johnson, for the intervener the Community & Legal Aid Services Programme.
Erica Olmstead, Molly Joeck and Peter H. Edelmann, for the intervener the Canadian Council for Refugees.
Nader Hasan, Gillian Moore and Paul Quick, for the intervener the Queen’s Prison Law Clinic.
Michael Battista and Adrienne Smith, for the intervener the Egale Canada Human Rights Trust.
Frances Mahon, for the intervener the British Columbia Civil Liberties Association.
Ewa Krajewska and Pierre N. Gemson, for the intervener the Canadian Civil Liberties Association.
Simon Borys and Simon Wallace, for the intervener the Canadian Prison Law Association.
The judgment of Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté and Brown JJ. was delivered by
Karakatsanis J. —
I. Overview
[1] The writ of habeas corpus is an ancient legal remedy that remains fundamental to individual liberty and the rule of law today. Dating back to the 13th century, this writ guarantees the individual’s protection from unlawful deprivations of liberty. Entrenched in s. 10 (c) of the Canadian Charter of Rights and Freedoms , the right to habeas corpus permits those in detention to go before a provincial superior court and demand to know whether the detention is justified in law. If the relevant authority cannot provide sufficient justification, the person must be released.
[2] Despite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability. First, a provincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in the Criminal Code, R.S.C. 1985, c. C-46 (see R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 636-37). Second, a provincial superior court should also decline jurisdiction where the legislator 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” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 40). This second exception has come to be known as the Peiroo exception (see Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (C.A.)).
[3] In this case, Mr. Chhina applied for habeas corpus, arguing that his immigration detention had become unlawful under the Charter because of its length and uncertain duration. He also challenged his detention on the basis that he was being held in inappropriate lockdown conditions at a maximum security unit.
[4] This Court must determine whether the Alberta Court of Queen’s Bench erred in declining its jurisdiction to entertain Mr. Chhina’s application for habeas corpus on the basis that the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA ), satisfies the second exception.
[5] The parties do not contest that the statutory scheme set out in the IRPA provides a complete, comprehensive and expert procedure for the review of immigration matters generally. This was the conclusion reached by the Ontario Court of Appeal in Peiroo. What this case emphasizes, however, is that the determination of whether such a scheme is as broad and advantageous as habeas corpus must be considered with respect to the particular basis upon which the lawfulness of the detention is challenged.
[6] Therefore, the Peiroo exception does not bar habeas corpus applications with respect to all deprivations of liberty arising from the immigration scheme. Rather the question here is whether the IRPA provides a review procedure that is at least as broad and advantageous as habeas corpus regarding the specific challenges to the legality of the detention raised by the habeas corpus application.
[7] In my view, it does not. Mr. Chhina did not challenge his immigration status, deportation order or detention order as failing to respect the IRPA . Rather, he claimed that his continued detention had become unlawful because its length, conditions and uncertain duration violated his Charter rights. The IRPA does not provide for review that is at least as broad and advantageous as habeas corpus for such matters. Mr. Chhina was therefore entitled to have his application for habeas corpus heard by a judge of the Alberta Court of Queen’s Bench.
II. Background
[8] The respondent, Tusif Chhina, entered Canada under another name in December 2006 and obtained refugee status approximately two years later. In February 2012, Mr. Chhina’s refugee status was vacated and he was declared inadmissible to Canada due to both misrepresentations in his refugee application and his involvement in criminal activity. A deportation order was issued against him.
[9] Following time spent in criminal custody, Mr. Chhina was taken into immigration detention in April 2013. However, in light of delays in obtaining travel documents from Pakistan, Mr. Chhina was released with conditions seven months later. Mr. Chhina failed to respect his conditions and disappeared for a year, but he was eventually taken back into immigration custody in November 2015. He was detained in the Calgary Remand Centre, a maximum security unit which keeps inmates on lockdown 22 and a half hours a day. Pursuant to s. 57 of the IRPA , immigration officials reviewed Mr. Chhina’s detention on a monthly basis, each time upholding the decision that he should be detained.
[10] Mr. Chhina filed his habeas corpus application in May 2016, arguing that his immigration detention had become unlawful both because it had become lengthy and indeterminate and because the conditions of his detention were “inappropriate” (Court of Queen’s Bench of Alberta Reasons, No. 160576914X1, September 2, 2016 (unreported), at p. 2). At the time of his application before the Alberta Court of Queen’s Bench, he had spent a total of 13 months in immigration detention.
[11] The chambers judge declined jurisdiction to consider Mr. Chhina’s application for habeas corpus, citing the IRPA as a comprehensive legislative framework that would satisfy the Peiroo exception.
[12] The Alberta Court of Appeal (2017 ABCA 248, 56 Alta. L.R. (6th) 1) reversed that decision, holding that the chambers judge should have exercised his discretion to hear Mr. Chhina’s habeas corpus application. Given the importance of the writ, the court noted that exceptions to the availability of habeas corpus must be limited and well-defined. As such, a chambers judge should decline to hear habeas corpus applications only in limited circumstances, beyond which the decision to decline jurisdiction constitutes an error of law.
[13] While acknowledging the holding in Peiroo, Greckol J.A., writing for the court, concluded that the exception does not bar habeas corpus applications in all immigration-related matters. She distinguished Mr. Chhina’s challenge noting that, unlike the applicant in Peiroo, Mr. Chhina did not contest determinations regarding his inadmissibility or deportation. Instead, he 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.
[14] Through this lens, Greckol J.A. 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. As such, the Peiroo exception did not apply to Mr. Chhina’s case and the matter was remitted to the Court of Queen’s Bench for a hearing on the merits of the habeas corpus application.
[15] Travel documents were subsequently obtained for Mr. Chhina and he was removed from Canada in September 2017. Thus, the arguments regarding his detention are now moot. But as Mr. Chhina’s case illustrates, habeas corpus applications are often evasive of review, as the shifting factual circumstances frequently render the application moot before appellate review can be obtained (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 14). Given the importance of clearly delineating the exceptions to habeas corpus, it is appropriate for this Court to consider the legal issues raised by Mr. Chhina’s appeal notwithstanding its mootness. No party has objected to this Court doing so.
III. Issues
[16] This appeal concerns the scope and application of the Peiroo exception, providing the Court with an opportunity to clarify when a complete, comprehensive and expert statutory scheme provides for review that is as broad and advantageous as habeas corpus such that an applicant will be precluded from bringing an application for habeas corpus.[1]
IV. Analysis
[17] Provincial superior courts have inherent jurisdiction to hear habeas corpus applications (May, at para. 29). An application for habeas corpus requires the applicant to establish a deprivation of liberty and to raise a legitimate ground for questioning the legality of that deprivation. If this is accomplished, the onus then shifts to the authority in question to show that the deprivation of liberty is lawful. In order for detention to be lawful, the decision-maker must have authority to order detention, the decision-making process must be fair, and the decision to detain must be both reasonable and compliant with the Charter (May, at para. 77; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 72). Changes in conditions or orders leading to further deprivations of liberty may also be challenged in the same manner. Where, as here, the application is brought with certiorari in aid, the court hearing the application conducts its review on the basis of the record that resulted in the decision (J. Farbey, R. J. Sharpe and S. Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 45; Mission Institution v. Khela, at para. 35; R. v. Miller, [1985] 2 S.C.R. 613, at p. 624).
[18] The writ of habeas corpus is not a discretionary remedy; it issues as of right where the applicant successfully challenges the legality of a detention. A provincial superior court may not decline jurisdiction to hear such an application merely because alternative remedies are available (May, at paras. 34 and 44). Such a court may only decline jurisdiction where the legislator 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” (May, at para. 40; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 65). As Mr. Chhina’s case illustrates, this analysis must be undertaken regarding the nature of the specific challenge to the legality of the detention raised in the habeas corpus application.
[19] Habeas corpus — which roughly translates to “produce the body” — was a familiar phrase in 13th century English civil procedure; it required the defendant of an action to be brought physically before the court (Farbey, Sharpe and Atrill, at p. 2). During the 15th and 16th centuries, habeas corpus took on its modern form, permitting an applicant to demand justification for their detention (at p. 4) and becoming the “great and efficacious writ in all manner of illegal confinement” (W. Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs (2016), by T. P. Gallanis, at p. 89). 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” (May, at para. 21, citing Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243).
[20] Habeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape. Before the advent of the Charter, s. 2 of the Canadian Bill of Rights, S.C. 1960, c. 44 , established that no law of Canada would be construed or applied so as to deprive a person of a determination on the validity of their detention, and provided for release where that detention was found to be unlawful. In 1982, habeas corpus became a constitutional right entrenched in s. 10 (c) of the Charter :
10. Everyone has the right on arrest or detention
. . .
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
[21] The review of legality under habeas corpus is broad, often protecting and interacting with other Charter rights, including: the right to life, liberty and security of the person, as guaranteed by s. 7 ; the right not to be arbitrarily detained or imprisoned, as guaranteed by s. 9 ; and the right not to be subjected to any cruel and unusual treatment or punishment, as guaranteed by s. 12 .
[22] The case of Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, helpfully illustrates different circumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged. A deprivation of liberty may relate to (1) the initial decision requiring the detention; or to a further deprivation of liberty based on (2) a change in the conditions of the detention; or (3) the continuation of the detention.
[23] While not exhaustive, this list may be particularly helpful in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining the relevant case-law. For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initial deprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution is emblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration, which may engage ss. 7 and 9 of the Charter , as was argued here (and in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220).
[24] Regardless of how a deprivation of liberty arises, the importance of the “great writ of liberty” underlies the general rule that exceptions to the availability of habeas corpus must be limited and carefully defined.
[25] To date, this Court has recognized only two instances where a provincial superior court may decline to hear a habeas corpus application. The first allows a provincial superior court to decline jurisdiction where a prisoner seeks to attack the legality of their conviction or sentence, determinations properly challenged through the appeal mechanisms set out in the Criminal Code (Gamble, at p. 636). The second exception arose in the field of immigration law. In Peiroo, the applicant sought issuance of a writ of habeas corpus with certiorari in aid, contesting a finding that there was no credible basis for her refugee claim and arguing that there was therefore no basis for a removal order issued against her. The Ontario Court of Appeal found that the Immigration Act, R.S.C. 1985, c. I-2, then in force established a comprehensive scheme regulating the determination and review of immigration claims in a manner that was “as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid” (Peiroo, at p. 261).
[26] Both of these exceptions acknowledge the development of sophisticated procedural vehicles in our modern legal system and their ability to fully protect fundamental rights such as habeas corpus.
[27] Statutory appeals in criminal matters, previously circumscribed by the common law writs of certiorari and error, were introduced some 500 years after habeas corpus (V. M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L.R. 446, at p. 448). Although the Court affirmed the Criminal Code exception in the context of a Charter challenge in Gamble, the rule pre-empting habeas corpus applications where a statutory appeal is available long pre-dates the Charter (see: In re Trepanier (1885), 12 S.C.R. 111; In re Sproule (1886), 12 S.C.R. 140, at p. 204; Goldhar v. The Queen, [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, [1980] 2 S.C.R. 265).
[28] The IRPA, for its part, is a product of the rise of the modern administrative state: a parallel justice system established alongside the courts of law to provide accessible, expert, and expeditious adjudication of a broad spectrum of claims. For example, the decision in Pringle v. Fraser, [1972] S.C.R. 821, holding that the Immigration Act, R.S.C. 1952, c. 325, ousted provincial superior court jurisdiction to entertain a writ of certiorari, was an early recognition of the possibility that a legislature could create alternative avenues of review through administrative bodies.
[29] Both of these exceptions target similar concerns, primarily the “need to restrict the growth of collateral methods of attacking convictions or other deprivations of liberty” (May, at para. 35). By affirming such statutory schemes, the standard set out in May ensures the constitutional right to habeas corpus is protected, while also realizing judicial economy, avoiding duplicative proceedings, and reducing the possibility of inconsistent decisions and forum shopping.
[30] At issue in this appeal is the scope of the Peiroo exception and, more specifically, whether that exception precludes habeas corpus for all determinations made under immigration legislation. The appellant argues that it does, pointing to this Court’s description of the Peiroo exception in May, where we stated: “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, at para. 40).
[31] In my view, this statement was never intended to preclude habeas corpus review of every detention arising in the immigration context, whatever the nature of the challenge to the legality of the detention. I do not see May as standing for such a broad proposition. I say this for three reasons.
[32] First, the IRPA was not before the Court in May. In that case, a number of federal prisoners who were transferred from minimum to medium-security institutions brought habeas corpus applications to challenge this transfer to a more restrictive form of custody. The warden of the institution argued that the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA ), set out a comprehensive statutory scheme that provided effective remedies comparable to habeas corpus — a proposition this Court did not accept. In that context, the Court compared the CCRA not to t