Corps de l’article

Introduction

It has been more than six decades since the Supreme Court of the United States made the rather obvious observation that “separate but equal” is a fiction wherever those so separated are politically and socially disadvantaged.[1] During the same intervening decades, Canada has maintained a distinct legal regime for the detention of non-citizens under its immigration laws. The power to detain non-citizens is broader, and the protections afforded to non-citizen detainees fewer, than under any other legal regime known to Canadian law.[2] Under this regime, where detention is, by definition, of indeterminate length, long-term detentions in maximum-security criminal facilities have become common and widespread.[3] Notwithstanding the state’s broad powers to detain non-citizens under immigration legislation, courts have, until recently, held that the right of all detainees to seek release by way of habeas corpus, enshrined in section 10(c) of the Canadian Charter of Rights and Freedoms,[4] was inapplicable to immigration detainees. Non-citizens were segregated out of the jurisdiction of provincial superior courts to grant habeas corpus relief on the premise that the legal regime already in place for them is “separate but equal”.[5]

The laxity afforded by this “separate but equal” legal universe allowed the executive branch and its administrative tribunals to develop practices and norms that further disadvantaged immigration detainees. As we seek to demonstrate in this article, the legal regime for detaining non-citizens in Canada disregards the most basic norms of procedural fairness and Charter rights. This disregard continues notwithstanding the fact that sections 7, 9, and 12 of the Charter apply to “everyone” in Canada and ought therefore to protect equally against unjust, arbitrary, and cruel detentions.[6] Without any particular attempt to justify this reality, Canada has endorsed a policy of exceptionalism when it comes to the liberty of non-citizens.[7]

The fallacy of the “separate but equal” status of the immigration detention regime in Canada was recently recognized by the Court of Appeal for Ontario in Chaudhary.[8] The court found that immigration detainees face inequalities in challenging indefinite detention through administrative review and judicial review to the Federal Court,[9] and must therefore have the right to seek release by way of habeas corpus applications in provincial superior courts. This holding in Chaudhary, in turn, has allowed for greater scrutiny of the immigration detention regime. Later this year, in an appeal of an Alberta decision following Chaudhary, the Supreme Court of Canada will hear arguments and will then effectively decide whether Chaudhary will be overruled or applied nationwide.[10] As argued below, the brief career of immigration detention habeas corpus in Ontario has already demonstrated the necessity of preserving superior court jurisdiction over immigration detainees.

In an effort to deconstruct the myth that the Canadian immigration detention regime is “separate but equal”, Part I of this article reviews the structure of the immigration detention regime in Canada and highlights its deficiencies. Part II examines the emergence of habeas corpus as a remedy in the immigration detention context and as the key mechanism by which the notion of “separate but equal” is being debunked in the courtroom and subjected to broader public scrutiny. Finally, Part III looks at the advantages of habeas corpus applications and charts some terrain for future litigation. In so doing, we hope to contribute more broadly to the literature on the dilution and distortion of Charter rights when applied in the domain of immigration law.[11] We also seek to initiate a discussion among practitioners and scholars on the intersection of habeas corpus and immigration detention, and the potential of habeas corpus litigation as one strategic tool for exposing and reversing the segregation and unequal treatment of immigration detainees.[12]

I. A Review of Immigration Detention in Canada

This Part provides a brief overview of the legal regime for immigration detention in Canada, as contained in the Immigration and Refugee Protection Act (IRPA)[13] and the Immigration and Refugee Protection Regulations (IRPR).[14] While the constitutionality and fairness of the relevant provisions is not the focus of this article, it is necessary to identify the deficiencies in the legislative regime governing immigration detention in Canada to fully understand the importance of habeas corpus to immigration detainees.[15] To that end, one must be mindful not only of what the legal regime says about the parameters of immigration detention but also, perhaps more importantly, what it fails to say. We endeavour to highlight these silences in our review. Over and above that, we seek to highlight three overarching and unjustifiable features of the detention regime: it allows for indefinite administrative detention;[16] it allows for detention that is arbitrary because there is no subsisting connection to its underlying purposes;[17] and it allows for the preventive detention of non-citizens under conditions that are far harsher and more restrictive than can be justified in the circumstances.[18]

A. Separate but Unequal: Deficiencies in Canada’s Immigration Detention Regime

The IRPA and the IRPR set out the statutory framework for the detention of foreign nationals and permanent residents in Canada. After a foreign national or permanent resident is arrested and detained under the IRPA,[19] it falls to the Immigration Division, a branch of the Immigration and Refugee Board of Canada—the administrative tribunal that decides immigration and refugee cases in Canada—to determine whether detention is justified under the IRPA.[20] The Immigration Division is required to order the release of a detained foreign national or permanent resident unless it “is satisfied” that: (a) the individual is a danger to the public; (b) the individual is unlikely to appear for removal or an immigration proceeding; (c) the Minister of Public Safety is taking necessary steps to inquire into a reasonable suspicion that the individual is inadmissible on the grounds of security, violating human or international rights, serious criminality, criminality, or organized criminality; or (d) the Minister “is of the opinion” that a foreign national’s identity has not been, but may be, established.[21] In the final case, the Division must also be satisfied either that the Minister is making reasonable efforts to establish identity or that the detainee has not “reasonably cooperated” in this respect.[22] Sections 244 to 247 of the IRPR provide certain non-exhaustive factors that “shall be taken into consideration” when the Immigration Division is assessing whether a person is unlikely to appear (i.e. is a flight risk), is a danger to the public, or is a foreign national whose identity has not been established.[23]

Of particular note for present purposes are the silences that resonate from these provisions. Absent from these provisions are: (1) procedural protections for detainees in the detention review process; (2) a grant of jurisdiction to the Immigration Division to review or control the conditions of an individual’s continued detention, a matter left solely to the discretion of the Canadian Border Services Agency (CBSA); and (3) any requirements to release the detainee where his or her detention has become indefinite or unhinged from its immigration-related purpose.[24] We turn to an examination of the deficiencies that flow from these three silences.[25]

1. Silence 1: Procedural Unfairness and Evidentiary Issues

Under the regime as implemented, the Minister is represented at each detention review before the Immigration Division by a Hearings Officer. The Hearings Officer presents the Minister’s case based on oral submissions, and does not, in the normal course of things, present evidence in support of the factual allegations made in those submissions.[26] Though Hearings Officers present the case against the detainee, they are neither sworn as witnesses nor subject to cross-examination. They generally have no first-hand knowledge of the facts alleged, and rely on file notes and correspondence from other CBSA officers. Thus, virtually all of the factual basis for detention is presented in the form of unsworn hearsay, where even the person relaying the hearsay information is not subject to cross-examination.[27] The absence of strict rules of evidence is standard in the administrative tribunal context—but the engagement of the liberty interest is rare in proceedings before administrative tribunals, Unlike in criminal law, where exceptions to the rule against hearsay are rigorously enforced because liberty is at stake,[28] reliance on hearsay is the norm in the detention of non-citizens.

The reliance on hearsay is compounded by the absence of advance disclosure. Unlike other domains where liberty is at stake, and the right to advance disclosure is well-established,[29] there is no substantive or procedural rule requiring the Minister to disclose in advance the information on which a Hearings Officer will rely in seeking continued detention. The only disclosure rule, found in the Immigration Division Rules, requires advance disclosure of documents that the Minister will tender at the hearing.[30] Because the CBSA is permitted to make its case on the basis of the Hearings Officer’s oral representations alone, the use of documents at hearings is exceptional, and thus so is the applicability of the regulatory disclosure obligation.[31]

Finally, the absence of procedural protections is compounded by the continuing effect of prior orders to detain. Once an Immigration and Refugee board member orders a person’s detention, members in subsequent reviews of that detention are to depart from a prior decision to detain only where they can provide “clear and compelling” reasons to do so.[32] As the Court of Appeal for Ontario notes in Chaudhary, the Minister can simply rely on the reasons given at prior detention hearings without presenting any further evidence in favour of continued detention, and it is the detainee who bears the burden of furnishing grounds for departing from prior decisions.[33] In this context, it is unsurprising that detention reviews become increasingly perfunctory as the accumulation of past orders becomes the basis for continued detention. Where the detainee is unable to marshal new facts or present novel alternatives to detention, there is a tendency for the Immigration Division to simply note the absence of new facts, adopt the conclusions reached in prior reviews, and maintain detention. Little to no attention is paid to the Minister’s burden to prove that detention remains justified.[34]

2. Silence 2: Conditions of Detention and Treatment of Immigrants as Criminals

There is nothing in the legislative regime that curtails the Minister of Public Safety’s discretion as to where and how immigration detainees are held as the IRPA is silent with respect to the location and conditions of detention. The authority to detain is exercised in practice by the CBSA, which has interpreted this power as conferring an unfettered discretion to detain migrants wherever and however it sees fit.[35] The Immigration Division has no jurisdiction to review the CBSA’s decisions regarding the locations and conditions of a non-citizen’s detention.[36]

One way that the CBSA exercises its discretion is in deciding whether to detain non-citizens in specialized immigration holding centres (IHCs) or in provincial jails. There are currently only three IHCs in Canada, and both the conditions within them and the criteria for admission vary significantly.[37] Though it is contrary to international human rights standards to detain migrants in criminal facilities,[38] overall, sixty-six per cent of the days migrants spend in detention in Canada are spent in provincial criminal jails.[39] In areas of Canada where there is no IHC (i.e. anywhere outside of Toronto, Vancouver, or Montreal), immigration detainees are automatically placed in provincial jails.[40] In regions where there are IHCs, the CBSA still decides, at its discretion, whether a particular detainee will be held in a jail or in an IHC.

Once the CBSA transfers a detainee to a provincial jail, it loses control over the conditions of their detention.[41] Thus, immigration detainees in provincial jails are managed solely under the rules of those institutions, which are designed and run as institutions for housing criminals. The conditions in some provincial jails in Canada are notoriously inhumane, and the situation in Ontario, where most immigration detainees are held, has received particular attention.[42] Immigration detainees are subject to co-mingling with the criminal population, lockdowns, segregation, limited access to health care, and more. They suffer the same abuses and deprivations as the criminal remand and sentenced populations in the jails notwithstanding the fact that the CBSA pays a twenty per cent premium over and above the actual cost of their detention. Immigration detainees in provincial jails are subject to these conditions despite the important fact that they are simply not criminals and only a very small percentage are even being held on the basis of an alleged danger to the public.[43] Thus, in practice, the majority of Canada’s immigration detainees are separate and unequal in all but the conditions of their confinement, where they are treated as ordinary criminals.[44] The legislative regime silently condones this reality.

3. Silence 3: No Mandate to Cease Indefinite and Arbitrary Detention

Once the Immigration Division finds that there are grounds for detention (e.g. identity, flight risk, or danger to the public), section 248 of the IRPR provides a list of “other factors” for consideration in determining whether release is appropriate. These other factors were added to the IRPR following the Federal Court’s 1994 judgment in Sahin.[45] In that case, Justice Rothstein observed that “what amounts to an indefinite detention for a lengthy period of time may, in an appropriate case, constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice” and therefore violate section 7 of the Charter.[46] He further found that “when any number of possible steps may be taken by either side and the times to take each step are unknown, I think it is fair to say that a lengthy detention, at least for practical purposes, approaches what might be reasonably termed ‘indefinite.’”[47] He thus concluded that consideration of what are now the section 248 factors was necessary to guard against unconstitutionally indefinite detention.[48]

The section 248 factors include the existence of alternatives to detention; the length of time in detention; whether there are any elements that can assist in determining the length of time for which that detention is likely to continue; and, if so, that length of time.[49] While these factors provide a good overview of what should be important in deciding to continue detention, they remain deficient and cannot cure the statutory scheme under the IRPA. Of particular note is the absence of both (a) a definition of what constitutes an unacceptable length of time in detention and (b) a mandate to release the detainees where “the length of time that detention is likely to continue” cannot be ascertained. Thus, the Immigration Division is empowered to maintain detention wherever it finds that one or more of the statutory grounds are present. And while the Immigration Division must consider the length and indefinite nature of a detention, neither the indefinite nature of a detention nor the fact that it has become unhinged from its underlying immigration purpose are, in themselves, grounds for release.[50] Consequently, the Immigration Division is statutorily empowered to maintain indefinite and arbitrary detentions. Further, particularly in cases where a detainee’s criminal past has been invoked in favour of a danger finding, these “other factors” are routinely given short shrift, paving the way for lengthy, and at times indefinite, detentions.[51] In contrast, several other jurisdictions impose statutory time limits to immigration detention or at least require release where the detention has exceeded the time reasonably necessary in the circumstances or where there is no reasonable prospect of removal.[52] Perhaps unsurprisingly, the UN’s Human Rights Committee has found that the absence of a legislative limit on the duration of immigration detention in Canada violates the protection against arbitrary detention enshrined in article 9(1) of the International Covenant on Civil and Political Rights.[53]

Compounding the absence of a legislative limit on the duration of detention, Canada’s legislative scheme does not require the Minister to justify the length of detention or its indefinite duration. As noted by the Court of Appeal for Ontario in Chaudhary, “the Minister needs only satisfy one of the listed criteria in section 58 to shift the onus to the detainee. The Minister need not explain or justify the length of the detention and its uncertain duration.”[54] Similarly, the Minister is not required to prove that the detention’s immigration purpose is, in fact, reasonably attainable in the foreseeable future.[55] As such, detention under the IRPA can be continued even where it has become unhinged from its immigration-related purpose.

B. The Constitutionality of Indefinite Immigration Detention Pre-Chaudhary

After initial consideration by the Federal Court in Sahin,[56] the issue of indefinite detention in the immigration context was considered in 2007 by the Supreme Court of Canada in Charkaoui.[57] Charkaoui addressed the detention regime for national security detainees under the security certificate regime. The Court held that “[d]enying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel and unusual.”[58] The Court, however, also held that immigration detention of indeterminate duration can be constitutional if accompanied by a “meaningful process of ongoing review” that takes the Sahin factors[59] and “the context and circumstances of the individual case” into account.[60]

Charkaoui thus establishes that, at a minimum, the power to detain for an indefinite period of time under the IRPA must be tempered by a meaningful process of review sufficiently rigorous to ensure that detainees are released when their detention can no longer be justified. Charkaoui did not, however, address the constitutionality of the process of review available to immigration detainees before the Immigration Division and did not decide whether that particular review mechanism is constitutionally sufficient.[61] While courts have previously stated—inaccurately—that Charkaoui affirmed the constitutionality of the detention review regime before the Immigration Division for regular immigration detainees,[62] it is only very recently, in Brown FC —a decision now under appeal—, that a court properly pronounced itself on the constitutionality of this process.[63]

Two points from the Federal Court’s decision in Brown FC are particularly relevant for present purposes. First, the Federal Court recognized that there was evidence of “maladministration” of the detention provisions of the IRPA that resulted in constitutionally deficient proceedings,[64] but held that the provisions were themselves constitutional provided that they are applied in adherence to a number of stated principles, including that “detention may continue only for a period that is reasonable in all of the circumstances.”[65] While the Supreme Court stated in Charkaoui that detention under the IRPA must retain a connection to an immigration-specific purpose, such as examination under the Act or deportation,[66] it left intact the legislative regime that empowers the Immigration Division to continue indefinite and arbitrary detentions. The Federal Court followed suit in Brown FC, and put the ball back into the Immigration Divi sion’s court, setting minimal parameters for the constitutional application of the law as currently written and upholding the law, despite its silence with respect to those very parameters.[67] Thus, as Rayner Thwaites observed with respect to the judgment in Charkaoui, the Federal Court judgment in Brown FC has left the constitutionality of the immigration detention scheme “‘intact but uncertain’ in its operation.”[68]

Second, the Federal Court specifically held that the availability of habeas corpus relief is, in part, what renders detention under the IRPA scheme Charter-compliant, and thus entrusted the provincial superior courts with the role of supervising the legality of immigration detentions.[69] As we argue below, when it comes to deciding the scope and availability of habeas corpus in future litigation, this point cannot be given short shrift.

In conclusion, despite the deficiencies of the IRPA detention scheme that we have articulated, it has—at least for now—been upheld as constitutional. The silences discussed above, however, leave the door open to detentions that, while pursuant to a purportedly constitutional regime, still violate the basic rights of individual detainees. In the next Part, we turn to how habeas corpus became available as a remedy to those violations.

II. The Right of Immigration Detainees to Habeas Corpus

A. The Peiroo Exception Misapplied: Denying Immigration Detainees Habeas Corpus Relief

Habeas corpus is a simple and elegant remedy: 

[T]he applicant must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful.[70]

The Supreme Court of Canada has recognized that “[h]abeas corpus is in fact the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.”[71]

For over three decades, and despite the fact that the constitutional limits of immigration detention and the process of review remained untested, immigration detainees were deprived of their right under section 10(c) of the Charter to seek release by way of habeas corpus. The basis for this decision was the 1989 Court of Appeal for Ontario decision in Peiroo, which held that there was a statutory scheme that provided “a comprehensive scheme for review and appeal at each stage of the immigration proceedings” and thus habeas corpus relief was therefore not available.[72]

A brief description of the facts in Peiroo reveals the manner in which it was subsequently misapplied by other courts, including the Supreme Court of Canada. The appellant in Peiroo filed a habeas corpus application to challenge a deportation order.[73] She contested the immigration adjudicator’s finding that there was no credible basis for her refugee claim and unsuccessfully applied for the issuance of a writ of habeas corpus in the Ontario Superior Court of Justice to halt her deportation.[74] The Court of Appeal for Ontario rejected the appeal on jurisdictional grounds, finding that the remedy of habeas corpus was not available “by reason of the existence of alternative remedies available to the appellant” to challenge the no credible basis finding and her resultant deportation.[75] The court noted that the writ of habeas corpus should be considered an “extraordinary remedy” and that generally there is no recourse to such a remedy “where there is an alternative remedy available, such as an appeal.”[76] The court found that the appellant had alternative remedies available to her—namely provisions of judicial review to the Federal Court and appeal to the Federal Court of Appeal—which the court considered to be as broad as, if not broader than, the superior court’s habeas corpus jurisdiction.[77] On this basis, the Court of Appeal for Ontario held that superior courts should decline to exercise their habeas corpus jurisdiction and force the issues to be litigated, if at all, by way of judicial review in the Federal Court.[78]

In its 1994 judgment in Reza v. Canada, the Supreme Court endorsed Peiroo and held that an Ontario judge “properly exercised his discretion” to decline jurisdiction to decide an immigration matter on the basis that “Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum.”[79] The respondent had claimed refugee protection in Canada and a two-member panel found that he did not have a credible basis for his claim. His claim was not referred to the Immigration and Refugee Board and a deportation order was issued.[80] That decision was challenged by way of a habeas corpus application. In the dissenting judgment of the Court of Appeal for Ontario, which the Supreme Court of Canada endorsed, the application was characterized as “at heart, an attempt to have the credible basis decision and the deportation order reviewed and relitigated by a different forum by recharacterizing and reformulating as constitutional the outcomes and procedures the [respondent] had previously (and unsuccessfully) invoked.”[81] The Supreme Court of Canada approved of the application of the “Peiroo exception” on these facts and found that the court below had properly declined to exercise its habeas corpus jurisdiction.

In 2005, the Supreme Court of Canada rendered judgment in May v. Ferndale Institution.[82] The Court, in obiter, held that Peiroo and Reza stood for the proposition 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.”[83] It is unclear whether or not the Court intended to affirm a blanket exception to habeas corpus in immigration matters, regardless of the issue raised. While both Peiroo and Reza involved attempts to challenge a deportation, neither involved immigration detention, and neither therefore engaged section 10(c) of the Charter.[84] The Court’s laconic treatment of the “Peiroo exception” in May left room for doubt on the scope of the exception particularly because the court did not address the question of whether the “Peiroo exception” could be applied in cases where the person is in fact detained notwithstanding the clear language of section 10(c) of the Charter.

Even before May, however, the Peiroo exception had already been relied upon to reject habeas corpus applications for release from immigration detention.[85] The same approach was then maintained following May.[86] The disadvantages of challenging one’s detention under the IRPA regime as compared to a habeas corpus application were simply ignored or discounted in these judgments.[87] As a result, until 2015, the review mechanisms available to immigration detainees were held to be “separate but equal” and such detainees were, on that basis, denied their constitutional right under section 10(c) of the Charter to seek release by way of habeas corpus.

B. Chaudhary: Habeas Corpus Relief for Immigration Detainees

When Chaudhary came before the Court of Appeal for Ontario in May 2015, a wave of grassroots activism by migrant justice organizations and a hunger strike by immigration detainees inside a maximum-security jail had recently brought heightened public awareness to the issue of immigration detention in Canada.[88] The timing was ripe for a decision exploring the burdens and disadvantages faced by immigration detainees under their “separate but equal” regime.

The applicants in Chaudhary were four long-term immigration detainees who sought habeas corpus relief and challenged the applicability of the Peiroo exception. In the first instance, the Ontario Superior Court of Justice had applied the Peiroo line of authority, and refused to assume habeas corpus jurisdiction.[89] On appeal, the Court of Appeal reversed this holding. Two aspects of its decision are important.

First, the Court of Appeal’s decision begins to more precisely define the constitutional limitations on indefinite immigration. For example, the court held that:

A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s ss. 7 and 9 Charter rights and no longer be legal.[90]

While much remains to be desired in refining this standard, the content given to the protections against indefinite and arbitrary detention in Chaudhary is important. Whereas Sahin and Charkaoui had left the difficult normative questions wholly unanswered,[91] the requirement for the Minister to prove the existence of a “reasonable prospect of removal within a reasonable time” to render the detention lawful begins to provide some substance to the applicable norms.

Second, the court refused the government’s invitation to apply Peiroo and opened the door to challenging the constitutionality of ongoing detention via habeas corpus. To do so, the court made findings which, despite their patency and repeated argument to the same effect, had remained obfuscated in prior case law.[92] The court noted that the Peiroo exception could not be a blanket bar to habeas corpus in immigration matters because its rationale, as explained above, applied in respect of the examination and deportation elements of the immigration regime, not to the power of detention itself.[93] Whereas Peiroo and its progeny stood for the principle that habeas corpus “cannot be used to mount a collateral attack of immigration decisions,”[94] a habeas corpus application seeking a determination as to the legality of an ongoing detention is a matter entirely distinct from seeking a determination on ongoing immigration matters relating to the right to enter or remain in Canada.[95] When a court is faced with a habeas corpus application related solely to detention, it is not answering a question with regards to the immigration status of the applicant: “[a]ll that will be decided is whether there continues to be a constitutionally valid basis for their detentions pending those immigration decisions and dispositions.”[96]

Applying the broader principles articulated by the Supreme Court in May and Khela,[97] the Court of Appeal for Ontario then found that the procedures available under the IRPA are not as broad and advantageous as those available in a habeas corpus application, and that superior courts should not therefore decline habeas corpus jurisdiction. In support of this finding, the Court of Appeal identified three “critical differences”, briefly reviewed below, between the IRPA review mechanisms and habeas corpus processes: the question the court is asked to answer, the onus, and the review process.[98]

First, the question the court is asked to answer on a habeas corpus application is “whether, because of their length and the uncertainty as to their continued duration, the detentions have become illegal, in violation of the detainees’ sections 7 and 9 Charter rights and international instruments to which Canada is a signatory.”[99] This question is different from the immigration detention review process where

[t]he [Immigration Division] and the Federal Court on judicial review are not tasked with the question of determining whether the immigration detention no longer reasonably furthers the machinery of immigration control and is or has become illegal based on Charter or human rights principles.[100]

Second, unlike a detention review where the Minister can satisfy his or her onus by simply referring to the reasons given at prior detention hearings,[101] in habeas corpus review the issues are considered afresh and the onus is on the Minister to show that the detention is legal despite its length and its uncertain duration. Proving that one of the statutory grounds provided in the IRPA is made out is insufficient and the Minister must justify the length and indefinite nature of the detention.[102]

Third, the court noted the important differences between the judicial review process available to challenge the legality of Immigration Division decisions and a habeas corpus application.[103] Whereas judicial review under the IRPA requires leave from the Federal Court and is itself a discretionary remedy, habeas corpus is non-discretionary.[104] Further, whereas in a judicial review the immigration detainee has the onus of showing that the Immigration Division’s detention was “unreasonable, incorrect or procedurally unfair,” there is no deference to be shown to the Immigration Division’s prior decision in a habeas corpus application.[105] It is also notable that, even if it finds that the decision to detain was unreasonable, the Federal Court has no jurisdiction to order release—it can only send the matter back for redetermination by another member of the Division, who may order continued detention.[106]

Upon finding that the IRPA regime, including judicial review in the Federal Court, is less advantageous, and in fact insufficient to ensure respect for detainees’ Charter rights, the Court of Appeal in Chaudhary opened the door to habeas corpus applications for immigration detainees in Ontario where the issue raised is whether the length and uncertain duration of the detention renders it contrary to sections 7 and 9 of the Charter.[107] The Court of Appeal of Alberta in Chhina has recently followed Chaudhary, and there is no principled reason why the same result should not follow elsewhere in Canada, as all provincial superior courts exercise the same inherent jurisdiction to hear habeas corpus applications.[108]

While the government did not seek leave to appeal Chaudhary to the Supreme Court of Canada, the Minister did seek leave to appeal in Chhina. Leave to appeal was granted and a hearing date was set for November 2018. Although the government had not previously contested the jurisdictional issue and effectively conceded the terms set by Chaudhary in Ontario, it is apparent that its position differs in Alberta and before the Supreme Court of Canada. As a result, the question of whether immigration detention is an exception to the right of habeas corpus will now be brought to a final answer from Canada’s highest court, which will have to grapple with the question of whether the immigration detention regime under the IRPA the separate but equal.

C. Challenging Immigration Detention Under Chaudhary

As discussed further on, Chaudhary has made inroads in bringing greater transparency and accountability to the detention of non-citizens under immigration legislation in Canada. That said, the outcomes in these cases have been mixed, and not all courts have agreed that a detention of several years is sufficiently lengthy to justify the exercise of habeas corpus jurisdiction.

In R. v. Ogiamien, the first post-Chaudhary decision in Ontario, the Superior Court of Justice found that an immigration detainee, who had been detained for just under two years, should be released.[109] Without delving into the Charter issues, Justice Coats simply found that there was no lawful basis for the detention as the Minister had not met its burden to show that the detainee was a danger or a flight risk. These findings were subsequently affirmed by the Court of Appeal for Ontario.[110]

In Brown ONSC, the applicant sought release pursuant to habeas corpus, as well as Charter damages.[111] However, the applicant was deported before the conclusion of the matter. As a result, the Ontario Superior Court of Justice considered only whether Mr. Brown was entitled to Charter damages on the basis of his past detention. While Justice O’Marra applied Chaudhary, he rejected the claim for Charter damages, finding that there was no Charter breach. The court’s key conclusion was that the applicant had been held pursuant to a constitutionally-compliant regime and that his Charter rights had therefore not been breached.[112] Further, despite the clear conclusion by the Court of Appeal for Ontario in Chaudhary that meeting the criteria of detention was not the only question when assessing the constitutionality of the detention, Justice O’Marra still concluded that there was no violation of sections 9 or 12 of the Charter because the detention was maintained pursuant to the criteria set out in the IRPA and was for the valid purpose of removal.[113] On appeal, these fact-intensive findings were not disturbed.[114] The Court of Appeal proceeded to also find that the superior court should not consider arguments for monetary damages as a remedy for Charter breaches in the context of habeas corpus applications. Because, in its view, the question to be answered under Chaudhary is based on a forward-looking analysis, and in light of the expeditious nature of habeas corpus, the Court of Appeal found claims for Charter damages should be brought in a separate application and heard on a normal schedule.[115] Mr. Brown has sought leave to appeal this decision to the Supreme Court of Canada.

In Canada (Minister of Citizenship and Immigration) v. Dadzie, the applicant, who had been held in immigration detention for two-and-a-half years, brought an application for habeas corpus relief.[116] In assessing whether the applicant had established that his detention was lengthy and of uncertain duration, the Superior Court of Justice held that it could take into account the nature of the place of the applicant’s detention—a maximum security facility—in deciding whether the applicant had met his onus under a habeas corpus application.[117] Justice Clark clarified that the period of detention under review was that of the present detention, and the court was not to consider the applicant’s past detention—he had been detained but released in the past, prior to the detention under review.[118] With regards to the cooperation of the applicant, Justice Clark found that delay caused by the applicant to the deportation process should be held against him.[119] Justice Clark concluded that, based on the facts of the case, the uncertainty of how long the applicant would remain in detention was “largely, if not entirely, a function of his failure to cooperate in a forthright and meaningful way.”[120] As he found the applicant responsible for the length and uncertain duration of his ongoing detention, Justice Clark determined that the Chaudhary threshold was not met.[121]

In Ali, the Ontario Superior Court of Justice considered an immigration detention of over seven years.[122] Unlike in Brown ONSC, Justice Nordheimer (as he then was) in Ali rejected the government’s argument that the court should decline to exercise jurisdiction because the detention review process complied with the Charter. While the issue in Brown was not one of jurisdiction, it is clear that the court took such an approach in finding no breach of the Charter.[123] Relying on Chaudhary, Justice Nordheimer disagreed with this position, stating that “notwithstanding the complete, comprehensive and expert scheme for the review of a detention under the IRPA, habeas corpus petitions involving immigration detainees should nonetheless be heard in this court, on their merits, in exceptional circumstances.”[124] On the requirement of exceptionality, Justice Nordheimer observed that “a detention of more than seven years must be seen as being exceptional under any proper definition of that word.”[125] The court also found that the detention was uncertain and that, given all the efforts undertaken to date, “[t]here is no reason to believe ... that any breakthrough in Mr. Ali’s case is going to be made in the immediate future.”[126]

The court then considered the next issue, whether the Minister established that the immigration detainee’s detention was justified for immigration purposes. The Minister relied on the detainee’s alleged lack of cooperation as justifying the continued detention.[127] While the Minister tried to analogize Mr. Ali’s case to Dadzie, Justice Nordheimer rejected this comparison, finding instead that “the individual facts of each case will determine whether the detainee’s failure to co-operate with the authorities is sufficient to justify his/her continued detention.”[128] He concluded that it could not be said that there was a lack of meaningful cooperation by Mr. Ali.[129]

Importantly, Justice Nordheimer also underlined that it is untenable to assert that “a lack of cooperation by a detainee can justify detention indefinitely.”[130] Such an interpretation, he noted, “could justify the continued detention of a person forever.”[131] The court also noted the perversity of the view that concluding otherwise would reward the detainee who does not cooperate, an argument that had previously been advanced by the Minister and accepted in the Federal Court.[132] As noted in Ali: “The purpose under the IRPA is not the punishment of uncooperative detainees. For the continued detention of the individual to be proper, it must be necessary to further a legitimate immigration purpose.”[133]

Less than six months later, Justice O’Marra of the Ontario Superior Court of Justice adopted yet a different stance on the sections 7 and 9 Charter issues in Toure SC.[134] There, Justice O’Marra found, as in Dadzie, that it was the detainee’s prior lack of cooperation that engendered the delays in removal and that there remained a reasonable prospect of removal provided that Mr. Toure continued to cooperate with the CBSA in its removal efforts.[135] While not stated explicitly, the logic of the Toure judgment, like that of Dadzie and a companion judgment of the Federal Court in Lunyamila,[136] is that a detainee’s non-cooperation with removal can justify indefinite detention. The Court of Appeal for Ontario maintained this logic—at least implicitly—in Toure.[137]

More promisingly, however, Justice O’Marra found that Mr. Toure’s right to be free of cruel and unusual treatment under section 12 of the Charter was breached by the decision to hold him in a maximum security criminal facility over the five years of his detention. The court noted the Immigration Division’s lack of jurisdiction to control the location and conditions of detention, and found that the review mechanism did not therefore fulfill the constitutional requirement, stipulated by the Supreme Court in Charkaoui, that there be a process “that takes into account the context and circumstances of the individual case.”[138] In addition to offering a scathing critique of the mistreatment of Mr. Toure, Justice O’Marra ordered that Mr. Toure be transferred to a minimum security IHC.[139] The section 12 analysis in Toure highlights the fact, as noted above, that the silence of the IRPA detention review regime with respect to the location and conditions of detention renders it constitutionally deficient.

However, on appeal, the Court of Appeal for Ontario concluded that “the evidence” in Mr. Toure’s case fell “far short of concluding” that Mr. Toure met the “high bar of showing that his treatment was cruel and unusual”.[140] In allowing the government’s cross-appeal on section 12, the Court of Appeal concluded that the application judge’s errors were “largely linked to the lack of evidentiary foundation.”[141] Without reference to its own recent finding in Brown that appellate review of Charter findings on habeas corpus appeals is to be deferential to the application judge’s findings, the Court of Appeal in Toure disagreed with the lower court’s finding that the evidence established a section 12 breach and allowed the appeal on that basis.[142]

In Scotland, which was never appealed, the Superior Court of Justice made a number of findings that highlight the important role of habeas corpus litigation in shedding light on the separate and unequal nature of the detention review processes under the IRPA.[143] The court in Scotland provides a trenchant criticism of the CBSA’s conduct and the detention review process. Justice Morgan found: that Mr. Scotland had been detained for “conduct that is not morally blameworthy and that is not aimed at fulfilling its statutory purpose” and his detention was thus arbitrary; that the Immigration Division had failed to retain its impartiality and had unjustifiably deferred to the views of the CBSA; and further that the Division’s reliance on its own prior decisions to justify ongoing detention amounted to a “closed circle of self-referential and circuitous logic from which there is no escape.”[144] Foreshadowing a finding that the Court of Appeal would soon affirm in Ogiamien,[145] the judgment in Scotland also suggests that superior court Justices in Ontario should exercise their habeas corpus jurisdiction more broadly to supervise the legality of the detention and to ensure that detention is substantively justifiable in light of its purpose.[146]

Despite the mixed outcomes in applying Chaudhary and in terms of the relief sought by detainees, it is undeniable that habeas corpus applications have in some cases meaningful remedies for some long-term immigration detainees, shed much needed light on the persistent injustice in current practices concerning immigration detention, and underscored the deficiencies in the law itself.[147] The door opened in Chaudhary has allowed some detainees to step outside of the “closed circle of self-referential and circuitous logic” under which their detentions had been repeatedly maintained and successfully seek a fresh assessment of the legality of their detentions.[148] In the next and final Part, we discuss critical issues that need to be considered and addressed in future habeas corpus litigation under the Chaudhary framework.

III. Habeas Corpus Applications as a Litigation Strategy

A. Why Habeas Corpus?

While immigration detention habeas corpus litigation is still in its early days, it is clear that the advantages of challenging immigration detention through habeas corpus are profound. Habeas corpus provides a process that actually accords with the risk of imprisonment that is at stake. It allows immigration detainees to access many of the fundamental procedural rights that are absent from the IRPA scheme. As rightly emphasized in Chaudhary, the substantive question to be answered in a habeas corpus application—whether detention has become unhinged from removal—actually functions to terminate arbitrary and indefinite immigration detentions. In this section, we review the concrete advantages of challenging detention in a habeas corpus application.

1. Straight to the Point

The flexibility and effectiveness of habeas corpus has been widely recognized and defended.[149] At its best, habeas corpus permits a detainee to cut through procedural obstacles and insist upon an impartial assessment of the legality of his or her detention. As explained by Justice Sharpe:

The rich historical hodgepodge of factors and influences shaping habeas corpus has ... traditionally been used to ensure that important constitutional principles are followed and that the law is sufficiently supple and flexible to achieve justice in a wide range of cases.[150]

2. Disclosure Requirements

Habeas corpus applications place a production requirement on the Crown. In initiating the application under a provincial Habeas Corpus Act, the detainee can seek to compel disclosure of the Immigration Division’s file, and the records from the institutions where they have been concerning the conditions of confinement.[151] While the scope of the CBSA’s obligation to disclose its records in the context of a habeas corpus application has been limited by two recent lower court decisions in Ontario,[152] even under this restrictive view, the CBSA is required to disclose in advance the evidence on which the state will rely in seeking to justify ongoing detention in the habeas corpus application. This requirement, while not wholly satisfactory, is a significant improvement vis-à-vis the procedural rights afforded to detainees in detention reviews under the IRPA where advance disclosure is rare.

3. Cross-Examination

Unlike a process where continued detention based on hearsay is the norm, habeas corpus also presents a means to test these allegations through cross-examination. The state’s evidence of danger, flight risk, or non-cooperation that sustains lengthy detentions must here be either sworn in an affidavit or given viva voce. In either case, the evidence is subject to cross-examination in an adversarial process. There is no such mechanism as of right in the IRPA scheme to meaningfully scrutinize the Minister’s allegations.

4. De Novo Assessment of the Evidence

The judge on a habeas corpus application owes no deference to any past decision to maintain detention.[153] As such, the question is no longer just whether anything is “new” after an additional month of the detainee being locked in a cell, which he or she may have inhabited for periods longer than half a decade. Instead, habeas corpus presents a chance for a global assessment of the present facts and circumstances of the detention and is concerned only with whether continued detention is legal at the present time rather than asking if some new development justifies a departure from a prior decision.

5. Burden on the Jailor

Related to the de novo assessment, habeas corpus restores the fundamental procedural principle that the burden of justification for a deprivation of liberty lies with the party seeking to impose or maintain detention. As noted in Chaudhary, the IRPA scheme as applied pursuant to the Federal Court of Appeal’s judgement in Thanabalasingham effectively shifts the burden to the detainee to prove that the situation has changed in the past thirty days.[154] For detainees, who are typically left to sit for seventeen hours a day or more in the cell of a maximum security prison with no access to much of the evidence in their case, this is a profoundly unjust state of affairs.[155] Habeas corpus applications restore a fair allocation of the burden to justify the deprivation of liberty.

Further, in cases where detention for removal is justified by “non-cooperation”, the Minister must, on habeas corpus, actually put forward evidence to meet their burden. In Ali, where the applicant was imprisoned for seven years based on the state’s hunch that he was concealing information about his identity, the Ontario Superior Court of Justice refused to countenance this position: “The authorities cannot discharge the onus that rests on them to demonstrate that the continued detention of Mr. Ali is justified, for immigration purposes, based on skepticism and speculation.”[156]

6. The Question Asked and the Court that Answers It

Finally, and perhaps most significantly, habeas corpus brings detained non-citizens into courts with unmatched expertise in matters of detention and the Charter in a process that directly concerns itself with the constitutionality of their ongoing detention. It is uncontroversial that detention issues are the “daily fare” of Superior Courts, and as the Supreme Court stated in Khela, “when a loss of liberty is involved, the superior courts are well versed in the Charter rights that apply.”[157]

As noted above, the Court of Appeal for Ontario in Chaudhary was unequivocal that if a lengthy detention has become indefinite, the detention will breach the Charter. Although identical Charter issues arise before the Immigration Division and on judicial review at the Federal Court, the Federal Court has never found a Charter breach in these circumstances. In fact, to the contrary, there is an alarming line of authority in Federal Court jurisprudence holding that it is an error of law for the Immigration Division to order release on Charter grounds based solely on a finding that a detention has become indefinite.[158] This line of authority cannot be squared with Chaudhary, or with protections against arbitrary detention under sections 7 and 9 of the Charter in any other context. In this light, access to the Superior Courts through habeas corpus has proved to be the only access to Charter protections against arbitrary detention meaningfully available to immigration detainees.

If there was ever an illustration of how differently two courts can conceive of the Charter, it is the contrast between the Federal Court’s decision in Lunyamila and the Ontario Superior Court’s decision in Ali.[159] Both decisions address the issue of indefinite detention for a detainee alleged to be uncooperative with removal. In Lunyamila, Chief Justice Crampton of the Federal Court considered the case of an applicant with a long history of violent crimes who would not sign a declaration that would allow for travel documents to be issued to effect his deportation.[160] While the facts of Lunyamila presented an exceptional level of danger to the public for an immigration detainee—including attacks against strangers—Chief Justice Crampton made no effort to limit his ruling to the facts. The Federal Court held that even in the case of detention solely based on flight risk, where a detainee is not cooperating with removal, the balance must always favour continued detention.[161]

In considering the habeas corpus application in Ali, on the other hand, the Ontario Superior Court directly addressed the government’s reliance on Lunyamila.[162] After attempting to distinguish the case on its facts, Justice Nordheimer plainly stated his disagreement with the judgment insofar as it can be read for a general principle legalizing indefinite detention.[163] He noted that the rationale from Lunyamila could be read as justifying detention “forever”, and affirmed that

[t]o authorize the Government to hold a person indefinitely, solely on the basis of noncooperation, would be fundamentally inconsistent with the well-established principles underlying ss. 7 and 9 of the Charter. It would also be contrary to Canada’s human rights obligations.[164]

There is nothing about the fact that the Federal Court is sitting in judicial review that should prevent it from acting to prohibit arbitrary and indefinite detention. However, the fact that it has not done so, and that on habeas corpus the Ontario Superior Court thus far has, is a development that cannot be ignored. The ability for non-citizens to enter a forum where their liberty may be treated as equally deserving of protection, and where they can access procedures through which the detention can be meaningfully challenged, speaks to the necessity of habeas corpus jurisdiction over immigration detention in Canada, a right that, to date, has been expressly recognized only in Alberta and Ontario.[165] In Chhina, the Supreme Court will decide whether or not immigration detainees across will have access to habeas corpus or remain relegated to the separate but unequal regime created under the IRPA.

B. Effectively Litigating Habeas Corpus: Beyond Chaudhary

The judgment in Chaudhary is a deeply important step in protecting non-citizens from illegal detention. However, much remains to be done. In this subpart, we identify three areas of importance in future immigration habeas corpus litigation. The first is about preserving the ground gained in Chaudhary. The second is about ensuring that disclosure requirements remain meaningful in habeas corpus applications. The third concerns the need to continue to expand the judgment in Chaudhary to its logical conclusion: if it is the IRPA detention review process as a whole that is less advantageous than habeas corpus, then habeas corpus jurisdiction must extend to all immigration detainees seeking release on grounds that their detention is unlawful.

1. Reaching the Chaudhary Threshold

As noted above, under Chaudhary, the door to habeas corpus at the superior court is a showing of “reasonable and probable grounds” that an immigration detention is lengthy and of uncertain duration.[166] At that point, the detainee’s onus is met, and the burden falls to the government to demonstrate that the detention is nevertheless legal.[167]

As early as the second habeas corpus decision applying Chaudhary, the government was successful in relieving itself of its legal burden to justify detention. In Dadzie, Justice Clark of the Ontario Superior Court found that a detention of over two years was neither lengthy nor of uncertain duration because it was the applicant’s non-cooperation that was the cause of this state of affairs.[168] While this decision was largely a product of its facts, a caution is nonetheless in order. The analytical approach in Dadzie and Toure subverts the very essence of habeas corpus: that it is the jailor that bears the burden to justify the lawfulness of detention.[169] Under Chaudhary and Charkaoui, the state may invoke a detainee’s lack of cooperation to seek to justify a long and indeterminate detention.[170] However, this consideration is just that: a justification. As such, the assessment of a detainee’s non-cooperation belongs at the justification stage of the analysis. When this factor is inserted into the threshold question, as was the case in Dadzie and again in Toure, it shifts the burden back onto the detainee to prove that their own detention is unlawful.[171] The error of the courts in both Dadzie and Toure is that they asked only whether non-cooperation should count against the detainee: they did not consider either the allocation of the burden or at what stage in the analysis alleged non-cooperation should be considered.

In order to preserve the ground gained in Chaudhary, questions of non-cooperation, which may regularly arise in long-term detention cases, must fall to the state to prove, and must not therefore be imported into the jurisdictional threshold stage of the analysis. This approach retains the essence of habeas corpus, and accords with Chaudhary where the applicants’ detentions were found lengthy and of uncertain duration based on the plain meaning of those terms.[172] It also retains analytical coherence as the alternative would lead to an imprecise weighing of unlike properties, balancing “time in detention” against how much the detainee has or has not cooperated. Allegations that the detainee is not cooperating with removal efforts and arguments that such non-cooperation justifies further detention must be assessed at the stage of the lawfulness of the detention. Otherwise, the most critical component of habeas corpus, the detaining party’s burden to prove the legality of detention, is eroded. If the detainee is required, at the jurisdictional threshold stage, either to prove his or own cooperation with removal efforts or to establish that any non-cooperation does not justify continue detention, then the state is relieved of its burden to establish the legality of the detention.

2. Uncovering the Whole Factual Picture

In Toure, the Ontario Superior Court of Justice held that the Charter did not require the Minister to disclose either Mr. Toure’s full CBSA file or even a specific list of documents germane to the allegation being advanced by the Minister.[173] The court held that the Minister had disclosed sufficient documents to allow the applicant to know the case to meet in his habeas corpus application. The effect of this holding is that the government will not necessarily be obligated to disclose all records relevant to cooperation or the foreseeability of removal even in habeas corpus proceedings. Evidence that is relevant to the determinative questions at issue may remain unknown to both the applicant and the presiding judge. This holding can only be reached by disregarding the second of two requirements for a fair detention review process set out by the Supreme Court in Charkaoui[174] and reiterated in Harkat: “the right to know and meet the case, and the right to have a decision made by the judge on the facts and the law.”[175] In a proceeding decided in the adversarial context, if the state does not have to make full disclosure, no party is in a position to ensure that the judge is “exposed to the whole factual picture” and thus able to make an informed decision on the facts and law.[176]

This critical fair process requirement will remain absent if the decision in Toure on this point is allowed to stand. On appeal, the Court of Appeal for Ontario declined to address the issue in substance, simply asserting that the lack of disclosure was not a “severe unfairness” sufficient to breach the principles of fundamental justice on the facts of the case.[177] While the issue remains unsettled, the judgments in Toure represent a problematic shift towards a separate and unequal fairness standard for immigration detainees whereby diluted disclosure obligations suffice because they do not result in “severe unfairness”.

3. Beyond the Chaudhary Threshold

Finally, the logic of Chaudhary extends beyond detentions that are long and indefinite. In the latter section of the Chaudhary decision,[178] the Court of Appeal for Ontario, using the framework from May and Khela, considered whether the IRPA scheme was as broad and advantageous as that available by way of habeas corpus. The court found that it was not and that there is therefore no basis for a court to decline to exercise its habeas corpus jurisdiction. Some of the initial decisions that followed Chaudhary have referred to this jurisdiction as “exceptional”[179] and treated length and indefinite duration as threshold issues that must be assessed in order for the court to take habeas corpus jurisdiction.[180] The judgment in Scotland rejected this approach, and instead collapsed the issues of lengthy detention and indefinite detention into its analysis of the legality of the detention—refusing to consider them in the abstract as threshold issues.[181]

The Court of Appeal for Ontario has itself now stated in Ogiamien, in considering the findings about the IRPA scheme made in Chaudhary, that there is no principled reason that habeas corpus jurisdiction should be limited to cases where the detention is exceptionally lengthy and of uncertain future duration.[182] Justice Sharpe, writing for the court, rejected the Minister’s argument to the effect that Chaudhary was “restricted to its precise facts.”[183] Justice Sharpe further noted that such a submission ignored “the more general principle upon which Chaudhary rests,” which is that:

[T]he Superior Court retains its residual jurisdiction to entertain habeas corpus applications where the IRPA process of review under the supervision of the Federal Court is less advantageous than habeas corpus, and where releasing the applicant would not alter the immigration status of the applicant or amount to a collateral attack on an immigration decision.[184]

What remains to be seen is the extent to which superior courts will recognize that the “IRPA process of review under the supervision of the Federal Court” is always “less advantageous than habeas corpus”, and that the remedy should therefore always be available to challenge the lawfulness of an immigration detention. This prospect has been rendered somewhat more remote by the Court of Appeal for Ontario’s judgment in Toure, where it found that it remains the detainee’s burden to demonstrate exceptional circumstances justifying the exercise of habeas corpus jurisdiction.[185] In so finding, the Court appears to be relieving the government of its burden to demonstrate that the jurisdiction should be declined.

As set out in detail above, the findings in Chaudhary on the advantages of habeas corpus over the detention review scheme apply equally to other situations where immigration detainees seek to challenge the legality of their detention and there remains no principled reason why it should be limited to “exceptional” cases. The advantages that stem from the onus being on the state, the less favourable review process in Federal Court, the expertise of the Superior Court in Charter rights, and the choice, timeliness, and nature of the remedy, are all important advantages for a detainee challenging the lawfulness of their detention regardless of its length and uncertain duration. Each of these factors makes the IRPA scheme less advantageous than habeas corpus. Having overcome the misapplication of Peiroo, as long as the detainee’s habeas corpus application is directed not at their immigration status, but at the lawfulness of their ongoing detention, there is no principled reason that the rationale of Chaudhary should not extend to them as well.

It is also difficult to reconcile the right to habeas corpus and release by the court that determines the legality of detention under section 10(c) of the Charter with a regime that places the burden on the detainee to show exceptional circumstances justifying habeas corpus review. If the “Peiroo exception” does not apply, then the right to habeas corpus remains the applicable rule, and detainees ought not be required to establish that their cases constitute an exception to the (inapplicable) exception.

The availability of habeas corpus in a broader range of cases is significant. There are a range of cases of illegal detention that do not meet the “lengthy and indeterminate duration” threshold where the IRPA scheme is clearly less advantageous than habeas corpus. For example, a detention where there is no reasonable prospect of removal from the outset should not have to wait until the detention is “lengthy” before its arbitrariness can be challenged. Similarly, if a detainee is subject to an unreasonable Immigration Division decision to continue detention, but does not want to languish in jail while the judicial review process runs its course and a re-hearing is held by the Immigration Division following judicial review, habeas corpus is a faster and more direct mechanism to end the illegal detention. Other challenges could go towards the Minister’s unlawful placement of immigration detainees in maximum security provincial jails. Finally, as long as the Designated Foreign National detention regime remains on the books,[186] habeas corpus would provide the most advantageous mechanism to quickly and directly challenge the constitutionality of a detention on this basis.

While the Court of Appeal did not in Ogiamien take the next step to acknowledge that, on the Chaudhary reasoning that it had reaffirmed, there would be no principled basis to deny the right to seek habeas corpus to anyone detained under the IRPA regime, that is the only logical conclusion to be drawn. Immigration detainees should have access to habeas corpus to contest the legality of their detention because the IRPA scheme is less advantageous and cannot therefore serve to supplant their section 10(c) Charter right to challenge their detention by way of habeas corpus.

Conclusion

The effect of successful habeas corpus litigation in Canada could be the beginning of the end of the fiction of a “separate but equal” detention scheme for non-citizens. By allowing non-citizens access to provincial superior courts, the immigration detention regime may no longer be able to operate in a state of exception, divorced from the principles of justice that apply to all other persons who face imprisonment in Canada.

Given the deficiencies of the detention review regime as legislated and as applied, it remains necessary for the availability of habeas corpus review to exist in parallel to the Immigration Division regime. The writ should not be treated as “exceptional”, but rather as a Charter right owed equally to those imprisoned under the immigration detention regime. This would be consistent with the clear language of section 10(c) of the Charter and the Supreme Court of Canada’s recent position on habeas corpus for other administrative regimes that govern detentions where the option of which avenue to pursue belongs to the detainee.[187] It is only by affirming Chaudhary and preserving habeas corpus for immigration detainees and that the Supreme Court can maintain an internally consistent position and ensure that immigration detainees are not relegated to a separate but unequal legal regime. In the same vein, the pernicious effects of having relegated immigration detainees to the separate but unequal IPRA regime should serve as a warning against the establishment of a distinct version of the right of habeas corpus—with inverted burdens of proof and justification and diluted procedural rights—for immigration detainees.

Moving forward, there may even be hope that the immigration detention jurisprudence of the provincial superior courts will cross-pollinate into the Federal Court and the Immigration Division and allow Charter protections to more meaningfully enter these regimes. Ultimately, until the defects of the IRPA scheme are remedied and the Federal Court and Immigration Division properly appreciate that the term “everyone” in sections 7, 9 and 12 of the Charter applies equally to non-citizens, access to habeas corpus will remain vital.