Minister of Public Safety v. Emergency, 2019 SCC 29

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 — thatis, the length, uncertain duration and conditions of his detention. Once the Minister has established grounds for detention, immigration officersmust consider factors which may weigh in favour of release, which include: the reason for detention; the length of time in detention; whetherdetention is likely to continue and, if so, how long; any unexplained delays or unexplained lack of diligence; alternatives to detention; and, theprinciples applicable to s. 7 of the Charter.

Although the length and likely duration of detention can be reviewed under the IRPA scheme, thatreview 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 reviewbefore the federal courts is narrower than that of a superior court’s consideration of a habeas corpus application; and habeas corpus provides amore timely remedy than that afforded by judicial review.

The IRPA scheme therefore fails to provide relief that is as broad and advantageous ashabeas 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 corpusjurisdiction 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 beinterpreted in a way that guarantees the fullest possible range of scrutiny for detention, including the conditions of detention. Nothing in thelanguage of the IRPA precludes such a comprehensive review. Rather, the basis for the entire scheme in the IRPA requires it. Excluding thepossibility of reviewing all aspects of immigration detention, including its conditions and lawfulness, essentially and inappropriately reads out thedetention review process in the IRPA and elevates habeas corpus into the only meaningful route offering detainees a full review of theirdetention.

The better approach is to continue to read the language of the IRPA in a manner that is as broad and advantageous as habeas corpusand 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, (SCC), [1972] S.C.R. 821, Peiroo v.

Canada (Minister of Employment and Immigration) (1989), (ONCA), 69 O.R. (2d) 253, Reza v. Canada, (SCC), [1994] 2 S.C.R. 394, and May v. Ferndale Institution, 2005 SCC 82 ,[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 orbroader 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 thatallows 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 widestpossible scope for implementing its objectives. The suggestion that a full review of detention can only occur under habeas corpus departs from along-standing jurisprudential consensus. There is no principled reason to abandon the sound logic in Pringle, Peiroo, Reza and May. The Courthas consistently endorsed the exception limiting the availability of habeas corpus review for immigration matters.

Disturbing this jurisprudencewill 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 besupplemented by habeas corpus. On the contrary, the IRPA scheme is structured to provide detainees with at least the same rights they wouldreceive 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 Divisioncan 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 ofhabeas corpus applications.

The IRPA scheme must be interpreted harmoniously with the Charter values that shape the contours of itsapplication and the scheme must be applied in a manner that is at least as rigorous and fair as habeas corpus review. The Immigration Divisionmust weigh the purposes served by immigration detention against the detained individual’s ss. 7, 9 and 12 Charter rights. That necessarilyincludes 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 todetermine if detention should continue. The factors ensure that extended periods of detention do not violate the Charter. The ImmigrationDivision must weigh the state’s immigration objectives against the detained individual’s right to be free from arbitrary or indefinite restraints onliberty. A prior, fact-driven determination that the individual constitutes a flight risk or a danger to the public is entitled to deference.

Thejustification for continued detention decreases as the length of time in detention increases, and the evidentiary burden on the detaining authorityincreases as the length of detention increases. The Immigration Division must consider conditions of and alternatives to detention, includingrelease. Delays or lack of diligence on the part of the immigration authorities must be considered. The anticipated future length of detention mustalso be considered, which requires an estimation of how long detention is likely to continue.

The Immigration Division is better positioned toassess and address this factor than the superior courts on habeas corpus. The process of review demands that the Immigration Division considerat least the same considerations that superior courts weigh on habeas corpus review. Properly interpreted, therefore, the IRPA scheme providesfor the fullest possible review of immigration detention, and, where detention is said to violate ss. 7, 9 and 12 of the Charter, the review processallows for at least the same substantive assessment as that undertaken by superior courts on habeas corpus review.

Since the Court hasrepeatedly affirmed that habeas corpus will not lie if the statutory alternative provides a remedy that is at least as favourable, the superior courtproperly declined to exercise its habeas corpus jurisdiction. Cases Cited By Karakatsanis J. Distinguished: Peiroo v. Canada (Minister of Employment and Immigration) (1989), (ON CA), 69 O.R. (2d) 253;considered: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; referred to: R. v. Gamble, (SCC), [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, (SCC), [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, (SCC), [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 reTrepanier (1885), 1885 CanLII 66 (SCC), 12 S.C.R. 111; In re Sproule (1886), 1886 CanLII 51 (SCC), 12 S.C.R. 140; Goldhar v. The Queen, (SCC), [1960] S.C.R. 431; Morrison v. The Queen, (SCC), [1966] S.C.R. 356; Karchesky v.

The Queen, (SCC), [1967] S.C.R. 547; Korponay v. Kulik, (SCC), [1980] 2 S.C.R. 265; Pringle v. Fraser, (SCC), [1972] S.C.R. 821; Reza v. Canada, (SCC), [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 andImmigration) v. Tennant, 2018 FCA 132; Canada (Citizenship and Immigration) v. B386, 2011 FC 175, [2012] 4 F.C.R. 220; In re Storgoff, (SCC), [1945] S.C.R. 526; Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; Charkaoui v. Canada (Citizenship andImmigration), 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, (SCC), [1988] 2 S.C.R. 595; R. v. Pearson, (SCC), [1992] 3 S.C.R. 665; Staetter v. British Columbia (Directorof Adult Forensic Psychiatric Services), 2017 BCCA 68; Pringle v. Fraser, (SCC), [1972] S.C.R. 821; Peiroo v. Canada(Minister of Employment & Immigration) (1989), (ON CA), 69 O.R. (2d) 253, leave to appeal refused, [1989] 2 S.C.R. x; Rezav. Canada, (SCC), [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, (SCC), [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), (ON CA), 64 O.R. (2d) 393; Sahin v. Canada (Minister of Citizenship and Immigration), (FC), [1995] 1 F.C. 214; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Canada (Ministerof 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 PublicSafety and Emergency Preparedness), 2017 ONSC 2660, 137 O.R. (3d) 498; Canada (Minister of Citizenship and Immigration) v. Li, 2009 FCA85, [2010] 2 F.C.R. 433; Canada v. Dadzie, 2016 ONSC 6045; R. v. Miller, (SCC), [1985] 2 S.C.R. 613; Reza v. Canada (1992), (ON CA), 11 O.R. (3d) 65; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), (SCC), [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 UniversityPress, 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 anapplication 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 lawtoday.

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 superiorcourt and demand to know whether the detention is justified in law. If the relevant authority cannot provide sufficient justification, the personmust be released. [2] Despite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability.

First, aprovincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application toattack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in theCriminal Code, R.S.C. 1985, c. C-46 (see R. v. Gamble, (SCC), [1988] 2 S.C.R. 595, at pp. 636-37).

Second, a provincialsuperior court should also decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory schemewhich 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), (ON CA), 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 theCharter because of its length and uncertain duration.

He also challenged his detention on the basis that he was being held in inappropriatelockdown 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 thesecond exception. [5] The parties do not contest that the statutory scheme set out in the IRPA provides a complete, comprehensive and expertprocedure for the review of immigration matters generally.

This was the conclusion reached by the Ontario Court of Appeal in Peiroo. What thiscase emphasizes, however, is that the determination of whether such a scheme is as broad and advantageous as habeas corpus must be consideredwith 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 arisingfrom the immigration scheme.

Rather the question here is whether the IRPA provides a review procedure that is at least as broad andadvantageous 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 failingto respect the IRPA. Rather, he claimed that his continued detention had become unlawful because its length, conditions and uncertain durationviolated 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 statusapproximately two years later. In February 2012, Mr. Chhina’s refugee status was vacated and he was declared inadmissible to Canada due toboth 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 lightof delays in obtaining travel documents from Pakistan, Mr. Chhina was released with conditions seven months later. Mr. Chhina failed to respecthis conditions and disappeared for a year, but he was eventually taken back into immigration custody in November 2015. He was detained in theCalgary 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 unlawfulboth because it had become lengthy and indeterminate and because the conditions of his detention were “inappropriate” (Court of Queen’s Benchof Alberta Reasons, No. 160576914X1, September 2, 2016 (unreported), at p. 2).

At the time of his application before the Alberta Court ofQueen’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 acomprehensive 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 judgeshould have exercised his discretion to hear Mr. Chhina’s habeas corpus application. Given the importance of the writ, the court noted thatexceptions to the availability of habeas corpus must be limited and well-defined.

As such, a chambers judge should decline to hear habeascorpus 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 barhabeas corpus applications in all immigration-related matters. She distinguished Mr. Chhina’s challenge noting that, unlike the applicant inPeiroo, Mr. Chhina did not contest determinations regarding his inadmissibility or deportation.

Instead, he challenged the legality of hisdetention, incidental to those determinations, on Charter grounds. The outcome of Mr. Chhina’s habeas corpus application would have no effecton 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 ascompared to an application for habeas corpus, finding the latter broader and more advantageous where the challenge related to the length andindeterminate nature of the detention.

As such, the Peiroo exception did not apply to Mr. Chhina’s case and the matter was remitted to the Courtof 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 ofreview, as the shifting factual circumstances frequently render the application moot before appellate review can be obtained (Mission Institutionv.

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 isappropriate for this Court to consider the legal issues raised by Mr. Chhina’s appeal notwithstanding its mootness. No party has objected to thisCourt doing so. III.

Issues [16] This appeal concerns the scope and application of the Peiroo exception, providing the Court with an opportunity to clarifywhen 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 forhabeas corpus requires the applicant to establish a deprivation of liberty and to raise a legitimate ground for questioning the legality of thatdeprivation. If this is accomplished, the onus then shifts to the authority in question to show that the deprivation of liberty is lawful. In order fordetention to be lawful, the decision-maker must have authority to order detention, the decision-making process must be fair, and the decision todetain 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, theapplication is brought with certiorari in aid, the court hearing the application conducts its review on the basis of the record that resulted in thedecision (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, (SCC), [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 thelegality of a detention. A provincial superior court may not decline jurisdiction to hear such an application merely because alternative remediesare 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 lessadvantageous” (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 mustbe 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 civilprocedure; it required the defendant of an action to be brought physically before the court (Farbey, Sharpe and Atrill, at p. 2).

During the 15thand 16th centuries, habeas corpus took on its modern form, permitting an applicant to demand justification for their detention (at p. 4) andbecoming 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 thecenturies, it “has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongfulrestraints 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 theCharter, 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 aperson 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: theright 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, (SCC), [1986] 2 S.C.R. 459, helpfully illustrates differentcircumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged.

A deprivation ofliberty 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 ofthe 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 libertyfor reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining therelevant case-law.

For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initialdeprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution isemblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type ofdeprivation 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 thatexceptions 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 corpusapplication.

The first allows a provincial superior court to decline jurisdiction where a prisoner seeks to attack the legality of their conviction orsentence, determinations properly challenged through the appeal mechanisms set out in the Criminal Code (Gamble, at p. 636). The secondexception 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 issuedagainst her.

The Ontario Court of Appeal found that the Immigration Act, R.S.C. 1985, c.

I-2, then in force established a comprehensive schemeregulating the determination and review of immigration claims in a manner that was “as broad as or broader than the traditional scope of reviewby 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 andtheir 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, wereintroduced some 500 years after habeas corpus (V.

M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16Alta. L.R. 446, at p. 448). Although the Court affirmed the Criminal Code exception in the context of a Charter challenge in Gamble, the rulepre-empting habeas corpus applications where a statutory appeal is available long pre-dates the Charter (see: In re Trepanier (1885), 1885CanLII 66 (SCC), 12 S.C.R. 111; In re Sproule (1886), 1886 CanLII 51 (SCC), 12 S.C.R. 140, at p. 204; Goldhar v. The Queen, (SCC), [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, (SCC), [1966] S.C.R. 356; Karchesky v.

The Queen, (SCC), [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, (SCC), [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 establishedalongside the courts of law to provide accessible, expert, and expeditious adjudication of a broad spectrum of claims. For example, the decision inPringle v.

Fraser, (SCC), [1972] S.C.R. 821, holding that the Immigration Act, R.S.C. 1952, c. 325, ousted provincial superiorcourt jurisdiction to entertain a writ of certiorari, was an early recognition of the possibility that a legislature could create alternative avenues ofreview through administrative bodies. [29] Both of these exceptions target similar concerns, primarily the “need to restrict the growth of collateral methods of attackingconvictions or other deprivations of liberty” (May, at para. 35).

By affirming such statutory schemes, the standard set out in May ensures theconstitutional right to habeas corpus is protected, while also realizing judicial economy, avoiding duplicative proceedings, and reducing thepossibility 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 habeascorpus for all determinations made under immigration legislation.

The appellant argues that it does, pointing to this Court’s description of thePeiroo exception in May, where we stated: “in matters of immigration law, because Parliament has put in place a complete, comprehensive andexpert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeascorpus 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 immigrationcontext, 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 thisfor three reasons. [32] First, the IRPA was not before the Court in May. In that case, a number of federal prisoners who were transferred fromminimum to medium-security institutions brought habeas corpus applications to challenge this transfer to a more restrictive form of custody. Thewarden of the institution argued that the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), set out a comprehensive statutoryscheme that provided effective remedies comparable to habeas corpus — a proposition this Court did not accept.

In that context, the Courtcompared the CCRA not to the IRPA (although it was then in force), but rather to the Immigration Act considered in Peiroo. The Court concludedthat, unlike the immigration scheme, the corrections statute did not guarantee impartial review, articulate specific and effective remedies, or evenprovide clear grounds upon which transfer decisions could be reviewed (May, at para. 62). [33] Second, the jurisprudence relied on by the Court in May — Peiroo, Pringle, and Reza v.

Canada, (SCC),[1994] 2 S.C.R. 394, — did not stand for the broad proposition that habeas corpus will never be available where the detention is related toimmigration matters. May must be understood in light of the cases cited; the Court did not purport to extend their holdings. Neither Pringle norReza dealt specifically with habeas corpus. Pringle was concerned with certiorari, a writ which, unlike habeas corpus, is not constitutionallyprotected.

Reza did not involve an application for habeas corpus, but a challenge to the constitutionality of the Immigration Act on other grounds.Even Peiroo did not provide that habeas corpus could never lie in the immigration context. It simply determined that the Immigration Act then inforce was “as broad as or broader” than habeas corpus for “immigration matters” like Ms. Peiroo’s claim. Ms.

Peiroo had argued that theadjudicator erred in finding she had no credible basis for her refugee claim and that her detention was therefore ordered illegally. [34] Finally, May itself urges us to interpret exceptions to the availability of habeas corpus restrictively: Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limiting habeas

corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked.

The exceptions to habeas corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well defined and limited. [para. 50] [ 35 ] For these reasons, I do not think May should be interpreted as holding that the Peiroo exception bars all habeas corpus applications that arise in the immigration context, regardless of the grounds raised to challenge detention. [ 36 ] Two recent Ontario Court of Appeal cases — Chaudhary and Ogiamien — recognized that the Peiroo exception does not bar all habeas corpus applications targeting a deprivation of liberty that arises from the immigration scheme. [ 37 ] In Chaudhary , Rouleau J.A., writing for the court, distinguished the case before him from Peiroo by noting that the applicant in Peiroo had challenged aspects of her refugee status itself — an immigration determination for which the IRPA provided review as broad as habeas corpus — whereas the multiple applicants in Chaudhary challenged their detentions on the grounds that the extended duration or indeterminacy of detention offended s. 7 of the Charter .

The Court of Appeal concluded that the IRPA was not as broad or advantageous as habeas corpus with respect to such queries. Moreover, the applicants challenged only their detention: the outcome of the applications would have no effect on their immigration status. Ultimately, provincial superior court jurisdiction was a necessary complement to the statutory scheme in order to protect the constitutional right to habeas corpus . [ 38 ] Sharpe J.A. addressed similar facts in Ogiamien , finding that a 25-month detention — on the basis of an outstanding deportation order — was subject to habeas corpus review .

Although the court found it was unnecessary to consider Mr. Ogiamien’s contention that he should have been detained in an immigration holding centre rather than in a maximum security facility — given that specific complaint had been dealt with in a separate application — it noted that the principle applied in Chaudhary was not restricted to situations involving lengthy detentions of uncertain duration.

Instead, the principle rested upon the Superior Court’s broad residual jurisdiction to entertain habeas corpus applications subject only to the framework set out in May ( Ogiamien , at paras. 38-42 ). [ 39 ] I agree with the Chaudhary and Ogiamien approach, adopted by the Court of Appeal in this case.

This approach properly flows from the principles set out by this Court in May . [ 40 ] In sum, the Peiroo exception can be more clearly articulated as follows: an application for habeas corpus will be precluded only when a complete, comprehensive and expert scheme provides for review that is at least as broad and advantageous as habeas corpus with respect to the challenges raised by the habeas corpus application. An administrative scheme may be sufficient to safeguard the interests protected by habeas corpus with respect to some types of challenges, but may also need to be re-examined with respect to others.

It is thus essential to consider how the challenge to the unlawful detention is framed in the habeas corpus application. A. Determining When the Exception Applies [ 41 ] How, then, does a court determine whether there is “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” such that an applicant will be precluded from bringing an application for habeas corpus ( May , at para. 40 )? [ 42 ] First, it is necessary to ask upon what basis the legality of the detention is being challenged.

In other words, what are the grounds in the applicant’s habeas corpus application? Reference to the categories in Dumas may be helpful to this inquiry. Is the applicant challenging an initial decision that resulted in detention, such as a removal order? Are they challenging the conditions of their detention? Or are they challenging the length and uncertain duration of their detention?

Precisely delineating the grounds for the habeas corpus application is necessary in order to determine whether there is an effective statutory remedy to address those grounds. [ 43 ] Second, it is necessary to ask 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. Elements of the IRPA detention review scheme may speak to whether the scheme is complete, comprehensive and expert.

However, the main issue in this case, and the focus of the parties’ submissions, is whether IRPA review is as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina challenged the legality of his detention. In this inquiry, it may be helpful to look at whether a statutory scheme fails entirely to include the grounds set out in the application for habeas corpus . If so, the scheme will not be as broad and advantageous as habeas corpus .

The scheme will also fail to oust habeas corpus if it provides for review on the grounds in the application, but the review process is not as broad and advantageous as that available through habeas corpus , considering both the nature of the process and any advantages each procedural vehicle may offer. [ 44 ] As I shall explain, applying this framework to the facts of Mr. Chhina’s case reveals that while the statutory scheme set out in the IRPA , including judicial review, may provide adequate review with respect to some matters, it is unable to effectively address the challenge raised by Mr.

Chhina’s application in a manner that is as broad and advantageous as habeas corpus . B. Identifying the Grounds of Mr. Chhina’s Challenge [ 45 ] The first step is to identify the grounds raised in the habeas corpus application. Mr. Chhina challenged the legality of his detention on two grounds: that he was being held in inappropriate conditions and that the duration of his detention had become indeterminate and overly lengthy. Mr.

Chhina argued that the length and duration of his detention violated his rights under ss. 7 and 9 of the Charter because there was no reasonable prospect that the immigration-related purposes justifying his detention would be achieved within a reasonable time. The courts below proceeded on the basis of this second ground: that the lengthy detention of indeterminate duration violated the Charter . [ 46 ] Unlike in Peiroo , Mr. Chhina’s application for habeas corpus had nothing to do with whether his inadmissibility or deportation were rightly or wrongly decided. C.

The IRPA Statutory Review Scheme [ 47 ] In determining whether the scheme provides for review as broad and advantageous as habeas corpus , the court should look at the actual alternatives for detention review realistically available to someone in Mr. Chhina’s circumstances. As this Court stated in May , a “purposive approach . . . requires that we look at the entire context”, which in that case included the relative disadvantages of judicial review in the Federal Court ( May , at para. 65 ).

This examination may include any administrative adjudicators, tribunals, and internal appeal mechanisms, as well as available judicial review or statutory appeal routes. In this case, I consider both the Immigration Division and the judicial review processes in the Federal Courts.

[ 48 ] I begin first with a general overview of how the IRPA scheme functions before considering whether it offers review as broad and advantageous as habeas corpus . The IRPA provides a detailed scheme to deal with the review of detention in the immigration context. Just as in the criminal context, a deprivation of liberty ordered pursuant to the IRPA must always be justified.

Release is the default except where the Minister establishes that: the detainee is a danger to the public or is unlikely to appear at a hearing; the Minister is inquiring as to inadmissibility due to security risks, human rights violations or criminality; or the Minister has concerns about establishing the person’s identity ( IRPA , s. 58(1) ).

Each of these grounds of detention is determined in accordance with a list of immigration-specific factors set out in the Immigration and Refugee Protection Regulations , SOR/2002-227, ss. 244 to 249 ( IRPR ). [ 49 ] Once an initial detention order has been made, the IRPA review process provides for periodic internal review of detention by members of the Immigration Division of the Immigration and Refugee Board, who are appointed in accordance with the Public Service Employment Act , S.C. 2003, c. 22 ( IRPA , ss. 151 and 172(2) ).

A member of the Immigration Division must conduct an initial review within 48 hours of an individual being taken into immigration custody, as well as a review within the 7 following days, and additional reviews every 30 days thereafter ( IRPA , s. 57 ). [ 50 ] The IRPA also explicitly provides for judicial review of those decisions by the Federal Court ( IRPA , s. 72 ). An appeal from this judicial review is available to the Federal Court of Appeal on a certified question of general importance ( IRPA , s. 74 (d)).

All the review processes are intimately linked, as judicial review is circumscribed by the statutory mandate of the original decision-maker. [ 51 ] Lastly, it should be noted that immigration officials are experts in applying their statutory mandate. Given its role in judicial review, the Federal Court has also developed significant familiarity with the immigration context and contributes an additional layer of immigration-related expertise. [ 52 ] As this examination reveals, the review process set out in the IRPA is detailed and clear. The grounds for ordering or continuing detention are clear.

Independent review is assured by judicial review through the Federal Courts. Clear remedies, namely release, exist. [ 53 ] However, as I shall explain, IRPA proceedings do not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina has challenged the legality of his detention. D. Is Review Under the IRPA as Broad and Advantageous as Habeas Corpus? [ 54 ] The scope of review under the IRPA must, of course, actually include the grounds Mr.

Chhina has raised. [ 55 ] Once the Minister has established grounds for detention, immigration officers and members of the Immigration Division must consider factors which may weigh in favour of release, set out at s. 248 of the IRPR : (

a) the reason for detention; (

b) the length of time in detention; (

c) whether . . . that detention is likely to continue and, if so, [how long]; (

d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; and (

e) the existence of alternatives to detention. [ 56 ] To this list, the Federal Court of Appeal has added that the decision-maker must be mindful of the principles applicable to s. 7 of the Charter ( Canada (Minister of Citizenship & Immigration) v. Thanabalasingham , 2004 FCA 4 , [2004] 3 F.C.R. 572, at para. 14 ). [ 57 ] Mr. Chhina challenged the length, uncertain duration and conditions of his detention. The conditions in which a person is detained are notably absent from the language of s. 248 of the IRPR .

Counsel for the appellant conceded as much, adding that the conditions of detention are properly within the ambit of the provincial correctional authorities or the Canadian Border Services Agency, not the Immigration Division ( Brown v. Canada (Citizenship and Immigration) , 2017 FC 710 , 25 Admin. L.R. (6th) 191, at para. 138 ). The Immigration Division has no explicit power to examine harsh or illegal conditions. This is to be contrasted with habeas corpus , which provides for review of any unlawful form of detention.

The inability of a scheme to respond to the specific ground raised in an application of habeas corpus would mean that the scheme does not preclude habeas corpus . However, this ground of Mr. Chhina’s habeas corpus application was not addressed by the Court of Appeal, nor was it argued before this Court. [ 58 ] In contrast to the absence of conditions, the regulations do provide for consideration of the length and likely duration of detention ( IRPR , s. 248(

c) and (d)). The question thus becomes whether review of the length and duration of detention under the IRPA is as broad and advantageous as that available through habeas corpus . This requires consideration of the nature of the review process and any advantages provided by each procedural vehicle. [ 59 ] I conclude that the IRPA does not provide for review as broad and advantageous as habeas corpus where the applicant alleges their immigration detention is unlawful on the grounds that it is lengthy and of uncertain duration. Taken as a whole, the scheme falls short in at least three important ways.

First, the onus in detention review under the IRPA is less advantageous to detainees than in habeas corpus proceedings. Second, the scope of review before the Federal Courts is narrower than that of a provincial superior court’s consideration of a habeas corpus application. Third, habeas corpus provides a more timely remedy than that afforded by judicial review. [ 60 ] Under the IRPA , the Minister need only make out a prima facie case for continued detention (e.g., indicate that the detainee is a continued flight risk) in order to shift the onus to the detainee to justify release.

While the IRPA places the onus on the Minister to demonstrate a ground for detention ( IRPA , s. 58 ), the regulations simply state that the length and likely duration of detention (among other factors) “shall be considered before a decision is made on detention or release” ( IRPR , s. 248). The Federal Court has interpreted the regulations as imposing the onus on the detainees to demonstrate that their continued detention would be unlawful in light of the s. 248 factors ( Thanabalasingham , at para. 16 ; Chaudhary , at para. 86 ; Canada (Public Safety and Emergency Preparedness) v.

Lunyamila , 2016 FC 1199 , [2017] 3 F.C.R. 428). This understanding of who bears the onus is consistent with the general principle that a Charter applicant bears the onus of establishing a Charter infringement. In addition, while s. 248 provides that an Immigration Division member must consider certain factors, the regulations provide no guidance as to how the length and duration of detention are to be considered and, crucially, when these factors might be outweighed by others —

such as the reason for detention. Thus, as Rouleau J.A. has correctly observed, the IRPA does not require the Minister to explain or justify thelength and uncertain duration of a detention, because the Minister need only establish one of the grounds at s. 58 of the scheme in order to shiftthe onus to the detainee (Chaudhary, at para. 86). This contrasts sharply with habeas corpus where, subject to raising a legitimate ground, theonus is on the Minister to justify the legality of the detention in any respect. As noted by this Court in Mission Institution v.

Khela, the onus inhabeas corpus is of particular historical significance: This particular shift in onus is unique to the writ of habeas corpus. Shifting the legal burden on the detaining authorities is compatible with thevery foundation of the law of habeas corpus, namely that a deprivation of liberty is permissible only if the party effecting the deprivation candemonstrate that it is justified. [para. 40] [61] Further, on judicial review to the Federal Court, the onus lies squarely upon the applicant to establish that the decision isunreasonable (Mission Institution v.

Khela, at para. 40). [62] Moreover, under the IRPA the Minister may satisfy its onus by relying on reasons given at a prior detention hearing. Thispractice has been encouraged by the Federal Courts, which have held that, while previous detention decisions are not binding, “if a memberchooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out” (Thanabalasingham, at para. 10; seealso, among others: Canada (Public Safety and Emergency Preparedness) v. Mehmedovic, 2018 FC 729, at para. 19 ; Canada (PublicSafety and Emergency Preparedness) v.

Torres, 2017 FC 918, at para. 20 ; Canada (Minister of Public Safety and EmergencyPreparedness) v. Karimi-Arshad, 2010 FC 964, 373 F.T.R. 292, at para. 16). In other words, immigration officials may rely entirely on reasonsgiven by previous officials to order continued detention and remain fully compliant with the IRPA scheme.

In practice, the periodic reviewsmandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’scircumstances. [63] Thus, the scheme fails to provide the detainee with the fresh and focussed review provided by habeas corpus, where theMinister bears the onus. The fresh evidence filed before this Court emphasizes the above points. An external audit commissioned by the chair ofthe Immigration and Refugee Board offers a timely, and frankly unfortunate, picture of how the scheme is being administered for those in long-term detention.

The 2018 audit highlights how, in practice, detainees do not receive the full benefit of the scheme: - in principle, the Immigration Division should place the onus on the Minister to continue detention; in practice they often fail to doso (2017/2018, Audit, at p. 18); - in principle, the Immigration Division should be approaching each detention review afresh; in practice, the Immigration Division isoverly reliant on past detention review decisions (2017/2018, Audit, pp. 31-32); - in principle, the Immigration Division should be impartial and independent from the Canadian Border Services Agency; in practice,the Immigration Division often overly relies on the Canada Border Services Agency’s submissions (2017/2018, Audit, pp. 17-18); and - in principle, the Immigration Division should be reviewing IRPA detentions for compliance with ss. 7, 9, and 12 of the Charter; inpractice, as a result of their failure to consider each detention review afresh, they do not do so (2017/2018, Audit, pp. 31-32). [64] The second disadvantage of the IRPA scheme is the scope of review.

As a practical matter, the Immigration Division does notconduct a fresh review of each periodic detention, as discussed above; as such, the scope of review before the Federal Courts is correspondinglynarrower than review on habeas corpus. The broad review provided by habeas corpus grapples with detention as a whole. This case, forexample, required a holistic consideration of Mr. Chhina’s Charter rights and how they may have been violated — not by an individual decisionbut by the overall context of his detention.

This type of inquiry is closely tied to the expertise of the provincial superior courts (May, at para. 68;see also Mission Institution v. Khela, at para. 45; Chaudhary, at para. 102). Relief through judicial review on the other hand, may be sought onlywith respect to a single decision, which in the IRPA context is generally the most recent 30-day review (Federal Courts Rules, SOR/98-106, r.302). [65] Further, the remedies available on judicial review are more limited and less advantageous to a detainee than on habeascorpus.

Although the Federal Courts do have limited powers of mandamus — the power to require a decision-maker to take positive action, suchas requiring the Immigration Division to release a detainee — I am aware of no cases in which release has been ordered. To the extent that theycan exercise this power, the remedy is granted only where “certain relatively rarely occurring prerequisites are met” (Canada (Citizenship andImmigration) v. Tennant, 2018 FCA 132, at para. 28 ).

Instead, a successful judicial review will generally result in an order forredetermination, requiring further hearings to obtain release and thereby extending detention. This is to be contrasted with habeas corpus, whererelease is ordered immediately once the relevant authority has failed to justify the deprivation of liberty. [66] Lastly, habeas corpus provides a more timely remedy than those available through the IRPA.

Leave is required for judicialreview of a detention decision made under the IRPA, and perfecting an application for leave on judicial review can take up to 85 days (IRPA, s.72(2)(b); Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rr. 10(1), 11 and 13). As the Federal Court hasacknowledged, even in the best of circumstances, it is thus impracticable for judicial review to occur before the next 30-day detention review hasbeen held, rendering the outcome of the judicial review moot (Canada (Citizenship and Immigration) v.

B386, 2011 FC 175, [2012] 4 F.C.R.220, at para. 13; Chaudhary, at para. 94). The remedy of a rehearing restarts the review process, leading to further delays. This cycle of mootnessat the judicial review stage acts as a barrier to timely and effective relief. [67] In contrast, the importance of habeas corpus as a “swift and imperative remedy” has long been recognized (Mission Institutionv. Khela, at para. 3; In re Storgoff, (SCC), [1945] S.C.R. 526, at p. 591). Courts across the country have acknowledged this byenacting rules that prioritize the hearing of habeas corpus applications.

Habeas corpus writs are “returnable immediately” before a superior courtjudge in Ontario, and the hearing of habeas corpus applications have priority over other business of the court in both Quebec and Nova Scotia(Habeas Corpus Act, R.S.O. 1990, c. H.1, s. 1(1); Code of Civil Procedure, CQLR, c. C-25.01, art. 82 para. 3; Nova Scotia Civil Procedure

Rules, r. 7.13(1); see also Criminal Procedure Rules of the Supreme Court of the Northwest Territories, Canada Gazette, SI/98-78, ss. 103 to107). The advantages habeas corpus offers with respect to timeliness are especially relevant to an application like Mr. Chhina’s, which wasprimarily concerned with the duration of his detention. [68] In sum, the IRPA fails to provide relief that is as broad and advantageous as habeas corpus in response to Mr. Chhina’schallenge to the legality of the length and uncertain duration of his detention. V.

Motion to Vary the Record [69] On appeal before this Court, the respondent brought a motion to vary the record and file new evidence. This new evidenceincluded a troubling audit that found examples of maladministration within the IRPA scheme, resulting in some detainees being kept in a cycle oflong-term detention. [70] While the evidence was not necessary to resolve this appeal, it is admissible pursuant to Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, at p. 775.

The evidence is new, relevant, credible and confirmatory in that it provides statistical evidence supportingthe argument that the IRPA scheme is not as broad and advantageous as habeas corpus for lengthy detentions, particularly with regards to theonus borne by the applicant at each successive detention review. In this case, even without regard to this evidence, it was clear that the statutoryscheme, including judicial review at the Federal Courts, is not as advantageous as habeas corpus given the nature of the challenge. VI.

Conclusion [71] Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality oftheir detention. A provincial superior court should decline its habeas corpus jurisdiction only when faced with a complete, comprehensive andexpert scheme which provides review that is at least as broad and advantageous as habeas corpus with respect to the grounds raised by theapplicant.

Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was inthe days of King John” and any exceptions to its availability must be carefully limited (Charkaoui v. Canada (Citizenship and Immigration), 2007SCC 9, [2007] 1 S.C.R. 350, at para. 28). The IRPA has been held to be a complete, comprehensive and expert scheme for immigration mattersgenerally, but it is unable to respond to Mr. Chhina’s challenge in a manner that is as broad and advantageous as habeas corpus and the AlbertaCourt of Queen’s Bench erred in declining to hear Mr.

Chhina’s habeas corpus application. For these reasons, I would allow the motion toadduce new evidence and dismiss the appeal with costs on the basis agreed by the parties. The following are the reasons delivered by [72] Abella J. (dissenting) — I share the majority’s view that there should be assertive and rigorous scrutiny of the lawfulness ofany deprivation of liberty. That is why, in my respectful view, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), should beinterpreted in a way that guarantees the fullest possible range of scrutiny for detention, including the conditions of detention.

I see nothing in thelanguage of the Act that precludes such a comprehensive review. In fact, I think the basis for the entire scheme requires it.

On the other hand,interpreting it in a way that restricts the contours of the scrutiny unduly interferes with the rights of the detainee and with the legislature’sintention that those rights be fully and generously integrated with the purposes of the whole scheme. [73] Moreover, interpreting the Act in a way that excludes the possibility of reviewing all aspects of immigration detention,including its conditions and lawfulness, essentially and inappropriately reads out the detention review process in IRPA.

Why would any detaineesettle for a partial review of his or her detention under IRPA if they could receive a more expansive one under habeas corpus? By narrowing therange of detention review available under IRPA, the majority’s

interpretation has the effect of elevating habeas corpus into the only meaningfulroute offering detainees a full review of their detention.

This relegates the Act to a second-best role, and creates a two-tier process of detentionreview whereby those who choose the Act’s menu are deemed to be consigned to a lesser remedial buffet. [74] The better approach is to continue to read the language of IRPA in a manner that is as broad and advantageous as habeascorpus and ensures the complete, comprehensive and expert review of immigration detention that it was intended to provide, as all of this Court’sprevious jurisprudence has done.

It is far more consistent with the purposes of the scheme to breathe the fullest possible remedial life into the Actthan to essentially invite detainees to avoid the exclusive scheme and pursue their analogous remedies elsewhere. I. Background [75] Tusif Ur Rehman Chhina was born in Pakistan. He entered Canada in December 2006 and obtained refugee status under afalse name. When the Minister of Citizenship and Immigration discovered Mr. Chhina’s misrepresentation, he applied to the Refugee ProtectionDivision of the Immigration and Refugee Board to remove Mr.

Chhina’s refugee status. [76] The Refugee Protection Division granted the Minister’s application in February 2012. It determined that Mr. Chhina wasinadmissible to Canada on the basis of serious criminality, and issued a deportation order against him. In response to the deportation order, theCanadian Border Services Agency began taking steps to obtain the necessary travel documents for Mr. Chhina’s return to Pakistan. [77] Before he could be deported from Canada, Mr. Chhina was convicted of various criminal offences and incarcerated for threeyears. When he was released in April 2013, Mr.

Chhina was taken immediately into immigration detention on the grounds that he would likelypose a danger to the public and would be unlikely to appear for his removal from Canada if released. [78] As required by the Act, a member of the Immigration Division of the Immigration and Refugee Board reviewed Mr. Chhina’sdetention within 48 hours of this detention and again within 7 days. Thereafter, the Immigration Division reviewed his detention at least every30 days. His release was ordered on terms and conditions by Leeann King after a detention review in November 2013.

Member King explained: [I]t will be an indeterminate amount of time before Pakistan issues a travel document if they even ever do because there’s no way to know whatthe holdup is at this point after full cooperation from Mr. Chhina and his family . . . . So what I have to consider is the Regulations under 248 which are borrowed verbatim from the decision of Sahin which relates to

section 7 of theCharter and detaining people for lengthy and indeterminate amounts of time when there are alternatives to look at, alternatives to detention thatcould reduce the risks posed.

(A.R., vol. II, at p. 106) [79] Mr. Chhina breached the conditions of his release by failing to report to the Canadian Border Services Agency as required.Border Services issued a warrant for his arrest in December 2013, but Mr. Chhina could not be located for a year. He was finally arrested by thepolice in December 2014 for crimes committed since his release.

He was detained on those criminal charges until November 2015, at whichpoint he was again taken directly into immigration detention. [80] The Immigration Division reviewed his detention the next day and ordered his continued detention on the bases that he wasunlikely to appear for removal from Canada and that he posed a danger to the public. The Immigration Division continued to review Mr.Chhina’s detention as required by ss. 57 and 58 of IRPA and s. 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227(Regulations), which guarantee immigration detainees like Mr.

Chhina an opportunity to challenge the lawfulness of their detention before theImmigration Division at least every 30 days. [81] Border Services continued its efforts to return Mr. Chhina to Pakistan. It requested travel documents from Pakistan on threeoccasions over three and one half years. Pakistan did not accede to these requests. While Pakistan had at one time acknowledged that Mr. Chhinawas a Pakistani citizen, it subsequently resiled from that position and said it would not issue a travel document because it could not verify Mr.Chhina’s national status.

Border Services learned that Pakistan refused to issue a travel document in December 2015 and then made efforts toestablish his true identity. [82] Mr. Chhina pursued the statutory remedies available to him to challenge the lawfulness of his continued detention underIRPA.

But he also sought to access the alternative remedy of habeas corpus by emphasizing the constitutional nature of his challenge based onss. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. [83] The application judge in the Court of Queen’s Bench, Mahoney J., declined to exercise habeas corpus jurisdiction on the basisthat the IRPA scheme for immigration detention review provides a complete, comprehensive and expert procedure for the review of ImmigrationDivision decisions.

He found that the case was an immigration matter within the jurisdiction and expertise of the Federal Court. [84] The Alberta Court of Appeal held that the application judge erred in declining to exercise habeas corpus jurisdiction. In itsview, habeas corpus review offers greater advantages to detainees like Mr. Chhina than the IRPA scheme. [85] The Alberta Court of Appeal’s decision, which followed and endorsed the Court of Appeal for Ontario’s decision inChaudhary v. Canada (Minister of Public Safety & Emergency Preparedness) (2015), 2015 ONCA 700 , 127 O.R. (3d) 401 (C.A.),departed from settled law.

This Court has repeatedly held that the IRPA scheme for the review of immigration detention decisions is a complete,comprehensive and expert scheme that is at least as broad as, and no less advantageous than, review by way of habeas corpus. I see no reason todepart from it now. If anything, this case presents an opportunity to confirm that the process and substance of detention reviews under IRPAshould be as advantageous as habeas corpus, so that detainees get expeditious access to the fullest possible review of the terms and conditions oftheir detention. II.

Analysis [86] Habeas corpus, the traditional route to assessing the lawfulness of deprivations of liberty, has historic roots which havespawned a variety of statutory remedies whose goal is to preserve the same protections. These can be found, among other statutes, inthe Criminal Code, R.S.C. 1985, c. C-46, which confers jurisdiction on appellate courts to correct the errors of a lower court and release theapplicant (see, for example, R. v. Gamble, (SCC), [1988] 2 S.C.R. 595, at pp. 636-37; R. v. Pearson, (SCC),[1992] 3 S.C.R. 665 (bail review); Staetter v.

British Columbia (Adult Forensic Psychiatric Services), 2017 BCCA 68 (Review Board custodialdispositions)). [87] They are also found in IRPA. Their legitimacy as a genuine alternative to habeas corpus was judicially considered andendorsed in Pringle v. Fraser, (SCC), [1972] S.C.R. 821; Peiroo v. Canada (Minister of Employment & Immigration) (1989), (ON CA), 69 O.R. (2d) 253 (C.A.), leave to appeal refused, [1989] 2 S.C.R. x; Reza v. Canada, (SCC), [1994]2 S.C.R. 394; May v. Ferndale Institution, 2005 SCC 82 , [2005] 3 S.C.R. 809.

Each of these decisions emphasized that the habeascorpus-like remedies available in what was intended to be an exclusive statutory scheme, were “as broad as or broader than the traditional scopeof review by way of habeas corpus” (Peiroo, at p. 261). [88] The issue in this appeal is whether that remains the case, namely, that the immigration scheme is able to continue to provideas fulsome a package of protections as does habeas corpus, or whether the scheme no longer provides analogous benefits, thereby justifying adeparture from our jurisprudence. [89] Statutory schemes like IRPA that replace habeas corpus with equally effective remedies have long been upheld (Judith Farbeyand Robert J.

Sharpe, with Simon Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 49). As the Court of Appeal for Ontario recentlyobserved in Ogiamien v. Ontario (Community Safety and Correctional Services) (2017), 2017 ONCA 839 , 55 Imm. L.R. (4th) 220(Ont.

C.A.), habeas corpus cannot be used to mount a collateral attack on immigration decisions for which a comprehensive review processexists (para. 14). [90] The statutory scheme for immigration detention review set out in IRPA, together with the Regulations and the ImmigrationDivision Rules, SOR/2002-229, mandates prompt, regular, accessible and Charter-compliant review of immigration detention decisions by theImmigration Division of the Immigration and Refugee Board, an independent, quasi-judicial administrative tribunal with specialized knowledgeof immigration matters, including immigration detention. [91] The IRPA scheme was intended to provide the same fulsome, Charter-compliant review of immigration detention as habeascorpus.

Section 3(3)(

d) of IRPA codifies the Immigration Division members’ obligation to exercise their discretion in accordance with theCharter; Application

(3) This Act is to be construed and applied in a manner that . . . (

d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles ofequality and freedom from discrimination and of the equality of English and French as the official languages of Canada; [92] This means that the Charter governs the exercise of discretion under the Act and informs the

interpretation of its provisions ina manner that allows for the fullest possible review of a detainee’s loss of liberty. The Act must therefore be interpreted in a way that does notcircumscribe its purposes but instead gives it the widest possible scope for implementing its objectives through rigorous substantive detentionreview. The application of the Charter to the IRPA scheme guarantees the full panoply of rights to detained individuals.

This extends to mattersof timeliness and access to the statutory remedies, the nature of the review, onus and expertise. [93] The suggestion that a full review of detention can only occur under habeas corpus is a bow to the seductive attraction of thelabel without recognizing that it unnecessarily fetters the comprehensive review of the lawfulness of detention provided in the Act.

It also departsfrom a long-standing jurisprudential consensus: that the IRPA scheme for the review of immigration detention decisions provides a remedy todetainees that is at least as broad, and no less advantageous than review by way of habeas corpus.

In my respectful view, there is no principledreason to abandon the sound logic in Pringle, Peiroo, Reza and May. [94] At the time Pringle was decided in 1972, the Immigration Appeal Board Act, S.C. 1966-67, c. 90, had recently been amendedto provide a scheme for the review of deportation orders by the Immigration Appeal Board, an independent administrative tribunal vested with allthe powers of a superior court of record.

The applicant appealed to the Board after an immigration official issued a deportation order against him.At the same time, he commenced certiorari proceedings in the superior court to have the deportation order quashed. His application for certiorariwas dismissed at first instance but granted on appeal to the Court of Appeal for Ontario.

Before this Court, the appeal turned on whether thesuperior court had certiorari jurisdiction to quash a deportation order made pursuant to the Immigration Act, R.S.C. 1952, c. 325. [95] Laskin J. concluded that amendments to the Immigration Appeal Board Act establishing the Immigration Appeal Board andconferring certain power to it had “brought into the law a wider avenue for initial appeal from deportation orders than theretofore existed” (p.825). He wrote: [The Immigration Appeal Board Act] and the Immigration Act, and the Regulations promulg

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