Canada v Chhina: Should Habeas Corpus be Available to Immigration Detainees?

Author’s Note: A previous article for TheCourt.ca analyzes the decision of the Alberta Court of Appeal, here.

While immigration detention continues to get a lot of scrutiny in the American context, what do we make of Canada’s system? In May 2019, the Supreme Court of Canada (“SCC” or “the Court”) had a chance to look within the immigration detention system when considering Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 [Chhina].

Habeas corpus – meaning “produce the body” – is a writ which protects individuals from unlawful deprivations of liberty by allowing them to “demand justification for their detention” (Chhina, para 19) under s. 10(c) of the Canadian Charter of Rights and Freedoms. However, the writ does not apply in two instances. First, it is not applicable to criminal convictions. Second, it is not available when there is a “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, paras 44 and 50; Peiroo v Canada (Minister of Employment and Immigration), [1989] OR (2d) 253 [Peiroo].  The second exception is called the “Peiroo exception” as per Peiroo.

In Chhina,the SCC considered whether the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA) met the Peiroo exception when considering lengthy and indeterminate immigration detention.

Facts and Procedural History

In February 2012, a deportation order was issued against Mr. Chhina. From this time until April 2013, Mr. Chhina served time in criminal custody for involvement in criminal activity. After his release in April 2013, Mr. Chhina was taken into immigration detention and released with conditions seven months later. Due to breaching conditions, Mr. Chhina was brought back into immigration detention in November 2015 and remained in the Calgary Remand Centre – a maximum security facility where inmates are on lockdown 22.5 hours a day. Mr. Chhina served a total of 13 months in immigration detention (including prior to the release with conditions). On each monthly review of Mr. Chhina’s detention, immigration officials upheld the decision to detain. In May 2016, Mr. Chhina filed a habeas corpus application to the Alberta Superior Court on the basis that his detention was lengthy and indeterminate and under inappropriate conditions.

The judge declined jurisdiction to hear the application citing that the IRPA satisfied the Peiroo exception. On appeal, the Alberta Court of Appeal (ABCA) reversed that decision on the basis that the IRPA did not provide a review as broad and advantageous as habeas corpus (Chhina, para 4) and thus did not satisfy the Peiroo exception. This case was then appealed to the SCC. In September 2017, Mr. Chhina was deported to Pakistan which rendered the issue moot. Despite the issue being moot, the Court decided to hear the case due to the “importance of clearly delineating the exceptions to habeas corpus” (Chhina, para 15).

The question for the SCC was “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” (Chhina, para 6).

At the SCC, the Minister argued that as per the Court’s statement in May v Ferndale, 2005 SCC 82 [May], that “in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded” (May, para 40). The Court clarified that May was not intended to provide a complete prohibition of habeas corpus review on every immigration detention matter (Chhina, para 31). Justice Karakatsanis, writing for the majority, upheld the ABCA’s decision and held that Mr. Chhina was entitled to have his application for habeas corpus heard (Chhina, para 7). Justice Abella dissented, viewing that the IRPA should be interpreted just as broadly and in a manner as advantageous as habeas corpus (Chhina, para 73).

In coming to their conclusion, the majority distinguished this case from others (including May, Peiroo, Pringle, and Reza) that Justice Abella relies on in her dissent (discussed later). Noting that the IRPA was not before the Court in May, Peiroo dealt with a specific claim that does not apply to all immigration matters, and Pringle and Reza dealt with different writs (Chhina, para 33). The majority also went through a helpful review of how to determine when the exception applies: first ask, “upon what basis the legality of the detention is being challenged” and then “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 habeas corpus application” (Chhina, paras 41–44).

In coming to the conclusion that the IRPA does not provide a review scheme as broad and advantageous as habeas corpus, the majority makes two key findings. One, s. 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) – which provides a list of immigration specific factors to consider when reviewing detention – does not include “conditions” as a factor and thus does not allow for a review on this ground (Chhina, para 57).

Second, although s. 248 of IRPR does provide for a review of length and likely duration of detention when considering detention under IRPA, it is not as broad and advantageous as that available in habeas corpus for three reasons. First, Federal courts have interpreted the IRPRas placing the onus on detainees to demonstrate their detention is unlawful, whereas habeas corpus requires the state to demonstrate the detention is justified (Chhina, para 60). Second, the scope of review is limited under IRPA. If a detainee applies for leave to judicial review, a Federal court will consider a single decision made by immigration officials. In their decision making, immigration officials are permitted to rely on reasons given at a prior hearing to justify continued detention. Thus, the scope of the Federal courts is narrower than habeas corpus which considers the full contextual situation and the “detention as a whole” (Chhina, para 64). Third, habeas corpus is a timelier remedy (Chhina, para 66).

Analysis

By making the writ of habeas corpus available to detainees, I believe the SCC made the right decision. When considering unlawful state detentions, we should provide individuals with the most wholesome opportunity for review. However, Justice Abella, dissenting, does provide a convincing counter point where she notes that “the majority’s interpretation has the effect of elevating habeas corpus into the only meaningful route offering detainees a full review of their detention” (Chhina, para 73).  Justice Abella’s concern is that in stating that the IRPA does not provide for a review as wholesome as that of habeas corpus, the Court is interfering with detainees’ rights and the legislature’s intention that these rights are “fully and generously integrated” within the statutory scheme (Chhina, para 72). This is easy to reason – if the IRPA does not provide for a fulsome review of indeterminate detentions, it means individuals are forced to encounter another procedural step to get that full review. While this may seem like the most beneficial or simplified course of action, I am still in favour of habeas corpus being made available to detainees for a few reasons.

First, if habeas corpus was not available, to appeal a decision of immigration officials, a detainee would have to apply for leave for a judicial review. Despite possible hope with the SCC’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, judicial review of administrative decision are incredibly complicated (see TheCourt.ca analysis of Vavlilov here). Further, as noted by the SCC decision in Chhina, habeas corpus is a timelier remedy (Chhina, para 59), and the Minister would be required to justify the detention whereas on judicial review the onus would lie with the applicant (Chhina, para 61). Individuals who have their liberty restricted are deserving of the most efficient forms of appeal.

Second, in my respectful view, Justice Abella’s analysis falls short when she notes that we should “continue” to interpret the IRPA in a manner that is as broad and advantageous as habeas corpus (Chhina, para 74). Justice Abella cites cases such as Pringle, Peiroo, Reza and Mayin support of the proposition that we should not overturn a history of jurisprudence that states the IRPA is as broad and as advantageous as immigration detention. Justice Abella’s view is that the IRPA has been doing an adequate job at this already, and there is therefore no need for habeas corpus. I disagree.

Just a few paragraphs prior to Justice Abella’s dissent, the majority notes that evidence was introduced on appeal “in the form of a troubling audit that found examples of maladministration within the IRPA scheme, resulting in some detainees being kept in a cycle of long-term detention” (Chhina, para 70) and provides examples in paragraph 64. If the prior jurisprudence allowed for a review as broad and as advantageous as habeas corpus, as claimed by Justice Abella, then the cycle of long-term detention, referred to in paragraph 70, would not exist. For the IRPA to be interpreted so it fits within the Peiroo exception, would require fundamental systemic change. Although Justice Abella stresses the importance of administrative schemes being interpreted in accordance with Charter values (Chhina, para 128), her position seems to ignore the structural change that would be required.  

Third, the writ of habeas corpus would provide a more advantageous review on conditions in correctional facilities. Mr. Chhina’s first challenge was based on inappropriate lockdown conditions at Calgary Remand Centre (Chhina, para 45). The Court does not engage with the issue of conditions raised by Mr. Chhina, as they note “this ground of Mr. Chhina’s habeas corpus application was not addressed by the Court of Appeal, nor was it argued before this Court” (Chhina, para 57). They only note that s. 248 of IRPR does not include “conditions” as a factor, the Immigration Division does not have any expressed power to examine conditions, and so habeas corpus would not be precluded on this matter (Chhina, para 57). In her dissent, Justice Abella disagreed and notes that conditions should be read into s. 248 of the IRPR.

Inappropriate lockdown conditions are a concern in many correctional facilities. Immigration detainees, are often brought to correctional facilities, even if they do not have a criminal conviction. There has been little done, provincially, to address the state of provincial jails in Ontario. Imagine the complexity of having an immigration official state that a detention is unjustified due to harsh conditions, yet there are hundreds of persons who are forced to endure these conditions because they have been accused or found guilty of a crime. Although I agree with Justice Abella that immigration officials should be able to make this finding, I am not optimistic that they would easily do so since they are part of the legislative scheme and these are conditions the state is aware of but has implicitly been condoning by not acting on. As the majority aptly notes, on judicial review Federal courts are more likely to send an order for redetermination whereas with habeas corpus “release is ordered immediately once the relevant authority has failed to justify the deprivation of liberty” (Chhina, para 65). Furthermore, due to the difficulties with judicially reviewing administrative decisions, I am not optimistic decisions made by immigration officials would be easily reviewed. Habeas corpus provides a more advantageous opportunity for the courts as a neutral party to make this judgment at first instance. Though not a relevant consideration for determining when habeas corpus is available, it is equally beneficial to note that a court’s decision on this matter would likely have more of an effect of enacting change to these faculties more broadly. For this reason, I am disappointed that neither the Court of Appeal nor SCC used this opportunity to meaningfully engage with the conditions raised in Mr. Chhina’s application. Because conditions were one of Mr. Chhina’s challenges, the case was already moot, and given the importance of this challenge, the SCC should have addressed this issue more substantially.