{"id":19539,"date":"2017-09-01T17:20:47","date_gmt":"2017-09-01T21:20:47","guid":{"rendered":"https:\/\/lawjournal.mcgill.ca\/?post_type=articles&p=19539"},"modified":"2019-11-19T17:30:49","modified_gmt":"2019-11-19T22:30:49","slug":"separate-but-unequal-immigration-detention-in-canada-and-the-great-writ-of-liberty","status":"publish","type":"articles","link":"https:\/\/mcgill-lawjournal-new.nixa.ca\/fr\/article\/separate-but-unequal-immigration-detention-in-canada-and-the-great-writ-of-liberty\/","title":{"rendered":"Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty"},"content":{"rendered":"

Introduction<\/h1>\n

It has been more than six decades since the Supreme Court of the United States made the rather obvious observation that \u201cseparate but equal\u201d is a fiction wherever those so separated are politically and socially disadvantaged.[1]<\/a> During the same intervening decades, Canada has maintained a distinct legal regime for the detention of non-citizens under its immigration laws. The power to detain non-citizens is broader, and the protections afforded to non-citizen detainees fewer, than under any other legal regime known to Canadian law.[2]<\/a> Under this regime, where detention is, by definition, of indeterminate length, long-term detentions in maximum-security criminal facilities have become common and widespread.[3]<\/a> Notwithstanding the state\u2019s broad powers to detain non-citizens under immigration legislation, courts have, until recently, held that the right of all detainees to seek release by way of habeas corpus<\/em>, enshrined in section\u00a010(c) of the Canadian Charter of Rights and Freedoms<\/em>,[4]<\/a> was inapplicable to immigration detainees. Non-citizens were segregated out of the jurisdiction of provincial superior courts to grant habeas corpus<\/em> relief on the premise that the legal regime already in place for them is \u201cseparate but equal\u201d.[5]<\/a><\/p>\n

The laxity afforded by this \u201cseparate but equal\u201d legal universe allowed the executive branch and its administrative tribunals to develop practices and norms that further disadvantaged immigration detainees. As we seek to demonstrate in this article, the legal regime for detaining non-citizens in Canada disregards the most basic norms of procedural fairness and Charter<\/em> rights. This disregard continues notwithstanding the fact that sections 7, 9, and 12 of the Charter <\/em>apply to \u201ceveryone\u201d in Canada and ought therefore to protect equally against unjust, arbitrary, and cruel detentions.[6]<\/a> Without any particular attempt to justify this reality, Canada has endorsed a policy of exceptionalism when it comes to the liberty of non-citizens.[7]<\/a><\/p>\n

The fallacy of the \u201cseparate but equal\u201d status of the immigration detention regime in Canada was recently recognized by the Court of Appeal for Ontario in Chaudhary<\/em>.[8]<\/sup><\/a> The court found that immigration detainees face inequalities in challenging indefinite detention through administrative review and judicial review to the Federal Court,[9]<\/a> and must therefore have the right to seek release by way of habeas corpus<\/em> applications in provincial superior courts. This holding in Chaudhary<\/em>, in turn, has allowed for greater scrutiny of the immigration detention regime. Later this year, in an appeal of an Alberta decision following Chaudhary<\/em>, the Supreme Court of Canada will hear arguments and will then effectively decide whether Chaudhary <\/em>will be overruled or applied nationwide.[10]<\/a> As argued below, the brief career of immigration detention habeas corpus <\/em>in Ontario has already demonstrated the necessity of preserving superior court jurisdiction over immigration detainees.<\/p>\n

In an effort to deconstruct the myth that the Canadian immigration detention regime is \u201cseparate but equal\u201d, Part I of this article reviews the structure of the immigration detention regime in Canada and highlights its deficiencies. Part\u00a0II examines the emergence of habeas corpus<\/em> as a remedy in the immigration detention context and as the key mechanism by which the notion of \u201cseparate but equal\u201d is being debunked in the courtroom and subjected to broader public scrutiny. Finally, Part\u00a0III looks at the advantages of habeas corpus<\/em> applications and charts some terrain for future litigation. In so doing, we hope to contribute more broadly to the literature on the dilution and distortion of Charter<\/em> rights when applied in the domain of immigration law.[11]<\/a> We also seek to initiate a discussion among practitioners and scholars on the intersection of habeas corpus<\/em> and immigration detention, and the potential of habeas corpus <\/em>litigation as one <\/em>strategic tool for exposing and reversing the segregation and unequal treatment of immigration detainees.[12]<\/a><\/p>\n

<\/a>I.\u00a0\u00a0 A Review of Immigration Detention in Canada<\/h1>\n

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

<\/a>A.\u00a0 Separate but Unequal: Deficiencies in Canada\u2019s Immigration Detention Regime<\/h2>\n

The IRPA <\/em>and the IRPR <\/em>set out the statutory framework for the detention of foreign nationals and permanent residents in Canada. After a foreign national or permanent resident is arrested and detained under the IRPA<\/em>,[19]<\/a> it falls to the Immigration Division, a branch of the Immigration and Refugee Board of Canada\u2014the administrative tribunal that decides immigration and refugee cases in Canada\u2014to determine whether detention is justified under the IRPA<\/em>.[20]<\/a> The Immigration Division is required to order the release of a detained foreign national or permanent resident unless it \u201cis satisfied\u201d that: (a) the individual is a danger to the public; (b) the individual is unlikely to appear for removal or an immigration proceeding; (c) the Minister of Public Safety is taking necessary steps to inquire into a reasonable suspicion that the individual is inadmissible on the grounds of security, violating human or international rights, serious criminality, criminality, or organized criminality; or (d) the Minister \u201cis of the opinion\u201d that a foreign national\u2019s identity has not been, but may be, established.[21]<\/a> In the final case, the Division must also be satisfied either that the Minister is making reasonable efforts to establish identity or that the detainee has not \u201creasonably cooperated\u201d in this respect.[22]<\/a> Sections\u00a0244 to 247 of the IRPR<\/em> provide certain non-exhaustive factors that \u201cshall be taken into consideration\u201d when the Immigration Division is assessing whether a person is unlikely to appear (i.e. is a flight risk), is a danger to the public, or is a foreign national whose identity has not been established.[23]<\/a><\/p>\n

Of particular note for present purposes are the silences that resonate from these provisions. Absent from these provisions are: (1) procedural protections for detainees in the detention review process; (2) a grant of jurisdiction to the Immigration Division to review or control the conditions of an individual\u2019s continued detention, a matter left solely to the discretion of the Canadian Border Services Agency (CBSA); and (3) any requirements to release the detainee where his or her detention has become indefinite or unhinged from its immigration-related purpose.[24]<\/a> We turn to an examination of the deficiencies that flow from these three silences.[25]<\/a><\/p>\n

<\/a>1.\u00a0\u00a0 Silence\u00a01: Procedural Unfairness and Evidentiary Issues<\/h3>\n

Under the regime as implemented, the Minister is represented at each detention review before the Immigration Division by a Hearings Officer. The Hearings Officer presents the Minister\u2019s case based on oral submissions, and does not, in the normal course of things, present evidence in support of the factual allegations made in those submissions.[26]<\/a> Though Hearings Officers present the case against the detainee, they are neither sworn as witnesses nor subject to cross-examination. They generally have no first-hand knowledge of the facts alleged, and rely on file notes and correspondence from other CBSA officers. Thus, virtually all of the factual basis for detention is presented in the form of unsworn hearsay, where even the person relaying the hearsay information is not subject to cross-examination.[27]<\/a> The absence of strict rules of evidence is standard in the administrative tribunal context\u2014but the engagement of the liberty interest is rare in proceedings before administrative tribunals, Unlike in criminal law, where exceptions to the rule against hearsay are rigorously enforced because liberty is at stake,[28]<\/a> reliance on hearsay is the norm in the detention of non-citizens.<\/p>\n

The reliance on hearsay is compounded by the absence of advance disclosure. Unlike other domains where liberty is at stake, and the right to advance disclosure is well-established,[29]<\/a> there is no substantive or procedural rule requiring the Minister to disclose in advance the information<\/em> on which a Hearings Officer will rely in seeking continued detention. The only disclosure rule, found in the Immigration Division Rules<\/em>, requires advance disclosure of documents<\/em> that the Minister will tender at the hearing.[30]<\/a> Because the CBSA is permitted to make its case on the basis of the Hearings Officer\u2019s oral representations alone, the use of documents at hearings is exceptional, and thus so is the applicability of the regulatory disclosure obligation.[31]<\/a><\/p>\n

Finally, the absence of procedural protections is compounded by the continuing effect of prior orders to detain. Once an Immigration and Refugee board member orders a person\u2019s detention, members in subsequent reviews of that detention are to depart from a prior decision to detain only where they can provide \u201cclear and compelling\u201d reasons to do so.[32]<\/a> As the Court of Appeal for Ontario notes in Chaudhary<\/em>, the Minister can simply rely on the reasons given at prior detention hearings without presenting any further evidence in favour of continued <\/em>detention, and it is the detainee who bears the burden of furnishing grounds for departing from prior decisions.[33]<\/a> In this context, it is unsurprising that detention reviews become increasingly perfunctory as the accumulation of past orders becomes the basis for continued detention. Where the detainee is unable to marshal new facts or present novel alternatives to detention, there is a tendency for the Immigration Division to simply note the absence of new facts, adopt the conclusions reached in prior reviews, and maintain detention. Little to no attention is paid to the Minister\u2019s burden to prove that detention remains<\/em> justified.[34]<\/a><\/p>\n

<\/a>2.\u00a0\u00a0 Silence\u00a02: Conditions of Detention and Treatment of Immigrants as Criminals<\/h3>\n

There is nothing in the legislative regime that curtails the Minister of Public Safety\u2019s discretion as to where and how immigration detainees are held as the IRPA<\/em> is silent with respect to the location and conditions of detention. The authority to detain is exercised in practice by the CBSA, which has interpreted this power as conferring an unfettered discretion to detain migrants wherever and however it sees fit.[35]<\/a> The Immigration Division has no jurisdiction to review the CBSA\u2019s decisions regarding the locations and conditions of a non-citizen\u2019s detention.[36]<\/a><\/p>\n

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

Once the CBSA transfers a detainee to a provincial jail, it loses control over the conditions of their detention.[41]<\/a> Thus, immigration detainees in provincial jails are managed solely under the rules of those institutions, which are designed and run as institutions for housing criminals. The conditions in some provincial jails in Canada are notoriously inhumane, and the situation in Ontario, where most immigration detainees are held, has received particular attention.[42]<\/a> Immigration detainees are subject to co-mingling with the criminal population, lockdowns, segregation, limited access to health care, and more. They suffer the same abuses and deprivations as the criminal remand and sentenced populations in the jails notwithstanding the fact that the CBSA pays a twenty per cent premium over and above the actual cost of their detention. Immigration detainees in provincial jails are subject to these conditions despite the important fact that they are simply not criminals and only a very small percentage are even being held on the basis of an alleged danger to the public.[43]<\/a> Thus, in practice, the majority of Canada\u2019s immigration detainees are separate and unequal in all but the conditions of their confinement, where they are treated as ordinary criminals.[44]<\/a> The legislative regime silently condones this reality.<\/p>\n

<\/a>3.\u00a0\u00a0 Silence\u00a03: No Mandate to Cease Indefinite and Arbitrary Detention<\/h3>\n

Once the Immigration Division finds that there are grounds for detention (e.g. identity, flight risk, or danger to the public), section\u00a0248 of the IRPR<\/em> provides a list of \u201cother factors\u201d for consideration in determining whether release is appropriate. These other factors were added to the IRPR <\/em>following the Federal Court\u2019s 1994 judgment in Sahin<\/em>.[45]<\/a> In that case, Justice Rothstein observed that \u201cwhat amounts to an indefinite detention for a lengthy period of time may, in an appropriate case, constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice\u201d and therefore violate section\u00a07 of the Charter<\/em>.[46]<\/a> He further found that \u201cwhen any number of possible steps may be taken by either side and the times to take each step are unknown, I think it is fair to say that a lengthy detention, at least for practical purposes, approaches what might be reasonably termed \u2018indefinite.\u2019\u201d[47]<\/a> He thus concluded that consideration of what are now the section\u00a0248 factors was necessary to guard against unconstitutionally indefinite detention.[48]<\/sup><\/a><\/p>\n

The section\u00a0248 factors include the existence of alternatives to detention; the length of time in detention; whether there are any elements that can assist in determining the length of time for which that detention is likely to continue; and, if so, that length of time.[49]<\/a> While these factors provide a good overview of what should be important in deciding to continue detention, they remain deficient and cannot cure the statutory scheme under the IRPA<\/em>. Of particular note is the absence<\/em> of both (a) a definition of what constitutes an unacceptable length of time in detention and (b) a mandate to release the detainees where \u201cthe length of time that detention is likely to continue\u201d cannot be ascertained. Thus, the Immigration Division is empowered to maintain detention wherever it finds that one or more of the statutory grounds are present. And while the Immigration Division must consider<\/em> the length and indefinite nature of a detention, neither the indefinite nature of a detention nor the fact that it has become unhinged from its underlying immigration purpose are, in themselves, grounds for release.[50]<\/a> Consequently, the Immigration Division is statutorily empowered to maintain indefinite and arbitrary detentions. Further, particularly in cases where a detainee\u2019s criminal past has been invoked in favour of a danger finding, these \u201cother factors\u201d are routinely given short shrift, paving the way for lengthy, and at times indefinite, detentions.[51]<\/a> In contrast, several other jurisdictions impose statutory time limits to immigration detention or at least require release where the detention has exceeded the time reasonably necessary in the circumstances or where there is no reasonable prospect of removal.[52]<\/a> Perhaps unsurprisingly, the UN\u2019s Human Rights Committee has found that the absence of a legislative limit on the duration of immigration detention in Canada violates the protection against arbitrary detention enshrined in article\u00a09(1) of the International Covenant on Civil and Political Rights<\/em>.[53]<\/a><\/p>\n

Compounding the absence of a legislative limit on the duration of detention, Canada\u2019s legislative scheme does not require the Minister to justify the length of detention or its indefinite duration. As noted by the Court of Appeal for Ontario in Chaudhary<\/em>, \u201cthe Minister needs only satisfy one of the listed criteria in section\u00a058 to shift the onus to the detainee. The Minister need not explain or justify the length of the detention and its uncertain duration.\u201d[54]<\/a> Similarly, the Minister is not required to prove that the detention\u2019s immigration purpose is, in fact, reasonably attainable in the foreseeable future.[55]<\/a> As such, detention under the IRPA<\/em> can be continued even where it has become unhinged from its immigration-related purpose.<\/p>\n

<\/a>B.\u00a0 The Constitutionality of Indefinite Immigration Detention Pre-Chaudhary<\/h2>\n

After initial consideration by the Federal Court in Sahin,<\/em>[56]<\/a> the issue of indefinite detention in the immigration context was considered in 2007 by the Supreme Court of Canada in Charkaoui<\/em>.[57]<\/a> Charkaoui<\/em> addressed the detention regime for national security detainees under the security certificate regime. The Court held that \u201c[d]enying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel and unusual.\u201d[58]<\/a> The Court, however, also held that immigration detention of indeterminate duration can be constitutional if accompanied by a \u201cmeaningful process of ongoing review\u201d that takes the Sahin<\/em> factors[59]<\/a> and \u201cthe context and circumstances of the individual case\u201d into account.[60]<\/a><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 Charkaoui<\/em> thus establishes that, at a minimum, the power to detain for an indefinite period of time under the IRPA<\/em> must be tempered by a meaningful process of review sufficiently rigorous to ensure that detainees are released when their detention can no longer be justified. Charkaoui <\/em>did not, however, address the constitutionality of the process of review available to immigration detainees before the Immigration Division and did not decide whether that particular review mechanism is constitutionally sufficient.[61]<\/a> While courts have previously stated\u2014inaccurately\u2014that Charkaoui<\/em> affirmed the constitutionality of the detention review regime before the Immigration Division for regular immigration detainees,[62]<\/a> it is only very recently, in Brown <\/em>FC \u2014a decision now under appeal\u2014, that a court properly pronounced itself on the constitutionality of this process.[63]<\/a><\/p>\n

Two points from the Federal Court\u2019s decision in Brown <\/em>FC are particularly relevant for present purposes. First, the Federal Court recognized that there was evidence of \u201cmaladministration\u201d of the detention provisions of the IRPA<\/em> that resulted in constitutionally deficient proceedings,[64]<\/a> but held that the provisions were themselves constitutional provided that they are applied in adherence to a number of stated principles, including that \u201cdetention may continue only for a period that is reasonable in all of the circumstances.\u201d[65]<\/a> While the Supreme Court stated in Charkaoui<\/em> that detention under the IRPA<\/em> must retain a connection to an immigration-specific purpose, such as examination under the Act<\/em> or deportation,[66]<\/a> it left intact the legislative regime that empowers the Immigration Division to continue indefinite and arbitrary detentions. The Federal Court followed suit in Brown <\/em>FC, <\/em>and put the ball back into the Immigration Divi sion\u2019s court, setting minimal parameters for the constitutional application of the law as currently written and upholding the law, despite its silence with respect to those very parameters.[67]<\/a> Thus, as Rayner Thwaites observed with respect to the judgment in Charkaoui<\/em>, the Federal Court judgment in Brown <\/em>FC has left the constitutionality of the immigration detention scheme \u201c\u2018intact but uncertain\u2019 in its operation.\u201d[68]<\/a><\/p>\n

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

In conclusion, despite the deficiencies of the IRPA<\/em> detention scheme that we have articulated, it has\u2014at least for now\u2014been upheld as constitutional. The silences discussed above, however, leave the door open to detentions that, while pursuant to a purportedly constitutional regime, still violate the basic rights of individual detainees. In the next Part, we turn to how habeas corpus<\/em> became available as a remedy to those violations.<\/p>\n

<\/a>II.\u00a0 The Right of Immigration Detainees to Habeas Corpus<\/em><\/h1>\n

<\/a>A.\u00a0 The Peiroo Exception Misapplied: Denying Immigration Detainees
\nHabeas Corpus Relief<\/h2>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 Habeas corpus<\/em> is a simple and elegant remedy:<\/p>\n

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

The Supreme Court of Canada has recognized that \u201c[h<\/em>]abeas corpus<\/em>\u00a0is in fact the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.\u201d[71]<\/a><\/p>\n

For over three decades, and despite the fact that the constitutional limits of immigration detention and the process of review remained untested, immigration detainees were deprived of their right under section\u00a010(c) of the Charter<\/em> to seek release by way of habeas corpus<\/em>. The basis for this decision was the 1989 Court of Appeal for Ontario decision in Peiroo<\/em>, which held that there was a statutory scheme that provided \u201ca comprehensive scheme for review and appeal at each stage of the immigration proceedings\u201d and thus habeas corpus<\/em> relief was therefore not available.[72]<\/a><\/p>\n

A brief description of the facts in Peiroo <\/em>reveals the manner in which it was subsequently misapplied by other courts, including the Supreme Court of Canada. The appellant in Peiroo<\/em> filed a habeas corpus<\/em> application to challenge a deportation order.[73]<\/a> She contested the immigration adjudicator\u2019s finding that there was no credible basis for her refugee claim and unsuccessfully applied for the issuance of a writ of habeas corpus<\/em> in the Ontario Superior Court of Justice to halt her deportation.[74]<\/a> The Court of Appeal for Ontario rejected the appeal on jurisdictional grounds, finding that the remedy of habeas corpus<\/em> was not available \u201cby reason of the existence of alternative remedies available to the appellant\u201d to challenge the no credible basis finding and her resultant deportation.[75]<\/a> The court noted that the writ of habeas corpus<\/em> should be considered an \u201cextraordinary remedy\u201d and that generally there is no recourse to such a remedy \u201cwhere there is an alternative remedy available, such as an appeal.\u201d[76]<\/a> The court found that the appellant had alternative remedies available to her\u2014namely provisions of judicial review to the Federal Court and appeal to the Federal Court of Appeal\u2014which the court considered to be as broad as, if not broader than, the superior court\u2019s habeas corpus<\/em> jurisdiction.[77]<\/a> On this basis, the Court of Appeal for Ontario held that superior courts should decline to exercise their habeas corpus<\/em> jurisdiction and force the issues to be litigated, if at all, by way of judicial review in the Federal Court.[78]<\/a><\/p>\n

In its 1994 judgment in Reza v. Canada<\/em>, the Supreme Court endorsed Peiroo <\/em>and held that an Ontario judge \u201cproperly exercised his discretion\u201d to decline jurisdiction to decide an immigration matter on the basis that \u201cParliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum.\u201d[79]<\/a> The respondent had claimed refugee protection in Canada and a two-member panel found that he did not have a credible basis for his claim. His claim was not referred to the Immigration and Refugee Board and a deportation order was issued.[80]<\/a> That decision was challenged by way of a habeas corpus <\/em>application.<\/em> In the dissenting judgment of the Court of Appeal for Ontario, which the Supreme Court of Canada endorsed, the application was characterized as \u201cat heart, an attempt to have the credible basis decision and the deportation order reviewed and relitigated by a different forum by recharacterizing and reformulating as constitutional the outcomes and procedures the [respondent] had previously (and unsuccessfully) invoked.\u201d[81]<\/a> The Supreme Court of Canada approved of the application of the \u201cPeiroo <\/em>exception\u201d on these facts and found that the court below had properly declined to exercise its habeas corpus<\/em> jurisdiction.<\/p>\n

In 2005, the Supreme Court of Canada rendered judgment in May v. Ferndale Institution<\/em>.[82]<\/a> The Court, in obiter<\/em>, held that Peiroo<\/em> and Reza<\/em> stood for the proposition that \u201cin 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<\/em> and no less advantageous, habeas corpus<\/em> is precluded.\u201d[83]<\/a> It is unclear whether or not the Court intended to affirm a blanket exception to habeas corpus<\/em> in immigration matters, regardless of the issue raised. While both Peiroo<\/em> and Reza<\/em> involved attempts to challenge a deportation, neither involved immigration detention, and neither therefore engaged section\u00a010(c) of the Charter<\/em>.[84]<\/a> The Court\u2019s laconic treatment of the \u201cPeiroo<\/em> exception\u201d in May <\/em>left room for doubt on the scope of the exception particularly because the court did not address the question of whether the \u201cPeiroo <\/em>exception\u201d could be applied in cases where the person is in fact detained notwithstanding the clear language of section\u00a010(c) of the Charter<\/em>.<\/p>\n

Even before May,<\/em> however, the Peiroo<\/em> exception had already been relied upon to reject habeas corpus <\/em>applications for release from immigration detention.[85]<\/a> The same approach was then maintained following May.<\/em>[86]<\/a> The disadvantages of challenging one\u2019s detention under the IRPA<\/em> regime as compared to a habeas<\/em> corpus <\/em>application were simply ignored or discounted in these judgments.[87]<\/a> As a result, until 2015, the review mechanisms available to immigration detainees were held to be \u201cseparate but equal\u201d and such detainees were, on that basis, denied their constitutional right under section\u00a010(c) of the Charter<\/em> to seek release by way of habeas corpus<\/em>.<\/p>\n

<\/a>B.\u00a0 Chaudhary: Habeas Corpus Relief for Immigration Detainees<\/h2>\n

When Chaudhary <\/em>came before the Court of Appeal for Ontario in May 2015, a wave of grassroots activism by migrant justice organizations and a hunger strike by immigration detainees inside a maximum-security jail had recently brought heightened public awareness to the issue of immigration detention in Canada.[88]<\/a> The timing was ripe for a decision exploring the burdens and disadvantages faced by immigration detainees under their \u201cseparate but equal\u201d regime.<\/p>\n

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

First, the Court of Appeal\u2019s decision begins to more precisely define the constitutional limitations on indefinite immigration. For example, the court held that:<\/p>\n

A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention\u2019s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee\u2019s\u00a0ss.\u00a07<\/a>\u00a0and\u00a09<\/a>\u00a0Charter<\/em><\/a>\u00a0rights and no longer be legal.[90]<\/a><\/p>\n

While much remains to be desired in refining this standard, the content given to the protections against indefinite and arbitrary detention in Chaudhary<\/em> is important. Whereas Sahin<\/em> and Charkaoui<\/em> had left the difficult normative questions wholly unanswered,[91]<\/a> the requirement for the Minister to prove the existence of a \u201creasonable prospect of removal within a reasonable time\u201d to render the detention lawful begins to provide some substance to the applicable norms.<\/p>\n

Second, the court refused the government\u2019s invitation to apply Peiroo <\/em>and opened the door to challenging the constitutionality of ongoing detention via habeas corpus<\/em>. To do so, the court made findings which, despite their patency and repeated argument to the same effect, had remained obfuscated in prior case law.[92]<\/a> The court noted that the Peiroo<\/em> exception could not be a blanket bar to habeas corpus<\/em> in immigration matters because its rationale, as explained above, applied in respect of the examination and deportation elements of the immigration regime, not to the power of detention itself.[93]<\/a> Whereas Peiroo<\/em> and its progeny stood for the principle that habeas corpus<\/em> \u201ccannot be used to mount a collateral attack of immigration decisions,\u201d[94]<\/a> a habeas corpus<\/em> application seeking a determination as to the legality of an ongoing detention is a matter entirely distinct from seeking a determination on ongoing immigration matters relating to the right to enter or remain in Canada.[95]<\/a> When a court is faced with a habeas corpus<\/em> application related solely<\/em> to detention, it is not answering a question with regards to the immigration status of the applicant: \u201c[a]ll that will be decided is whether there continues to be a constitutionally valid basis for their detentions pending those immigration decisions and dispositions.\u201d[96]<\/a><\/p>\n

Applying the broader principles articulated by the Supreme Court in May <\/em>and Khela<\/em>,[97]<\/a> the Court of Appeal for Ontario then found that the procedures available under the IRPA<\/em> are not as broad and advantageous as those available in a habeas corpus<\/em> application, and that superior courts should not therefore decline habeas corpus <\/em>jurisdiction. In support of this finding, the Court of Appeal identified three \u201ccritical differences\u201d, briefly reviewed below, between the IRPA <\/em>review mechanisms and habeas corpus<\/em> processes: the question the court is asked to answer, the onus, and the review process.[98]<\/a><\/p>\n

First, the question the court is asked to answer on a habeas corpus<\/em> application is \u201cwhether, because of their length and the uncertainty as to their continued duration, the detentions have become illegal, in violation of the detainees\u2019 sections 7 and 9 Charter<\/em> rights and international instruments to which Canada is a signatory.\u201d[99]<\/a> This question is different from the immigration detention review process where<\/p>\n

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

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

Third, the court noted the important differences between the judicial review process available to challenge the legality of Immigration Division decisions and a habeas corpus<\/em> application.[103]<\/a> Whereas judicial review under the IRPA<\/em> requires leave from the Federal Court and is itself a discretionary remedy, habeas corpus <\/em>is non-discretionary.[104]<\/a> Further, whereas in a judicial review the immigration detainee has the onus of showing that the Immigration Division\u2019s detention was \u201cunreasonable, incorrect or procedurally unfair,\u201d there is no deference to be shown to the Immigration Division\u2019s prior decision in a habeas corpus<\/em> application.[105]<\/a> It is also notable that, even if it finds that the decision to detain was unreasonable, the Federal Court has no jurisdiction to order release\u2014it can only send the matter back for redetermination by another member of the Division, who may order continued detention.[106]<\/a><\/p>\n

Upon finding that the IRPA<\/em> regime, including judicial review in the Federal Court, is less advantageous, and in fact insufficient to ensure respect for detainees\u2019 Charter <\/em>rights, the Court of Appeal in Chaudhary <\/em>opened the door to habeas<\/em> corpus<\/em> applications for immigration detainees in Ontario where the issue raised is whether the length and uncertain duration of the detention renders it contrary to sections\u00a07 and 9 of the Charter<\/em>.[107]<\/a> The Court of Appeal of Alberta in Chhina<\/em> has recently followed Chaudhary<\/em>, and there is no principled reason why the same result should not follow elsewhere in Canada, as all provincial superior courts exercise the same inherent jurisdiction to hear habeas corpus<\/em> applications.[108]<\/sup><\/a><\/p>\n

While the government did not seek leave to appeal Chaudhary <\/em>to the Supreme Court of Canada, the Minister did seek leave to appeal in Chhina. <\/em>Leave to appeal was granted and a hearing date was set for November 2018. Although the government had not previously contested the jurisdictional issue and effectively conceded the terms set by Chaudhary <\/em>in Ontario, it is apparent that its position differs in Alberta and before the Supreme Court of Canada. As a result, the question of whether immigration detention is an exception to the right of habeas corpus <\/em>will now be brought to a final answer from Canada\u2019s highest court, which will have to grapple with the question of whether the immigration detention regime under the IRPA<\/em> the separate but equal.<\/p>\n

<\/a>C.\u00a0 Challenging Immigration Detention Under Chaudhary<\/h2>\n

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

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

In Brown <\/em>ONSC, the applicant sought release pursuant to habeas corpus<\/em>, as well as Charter <\/em>damages.[111]<\/a> However, the applicant was deported before the conclusion of the matter. As a result, the Ontario Superior Court of Justice considered only whether Mr.\u00a0Brown was entitled to Charter<\/em> damages on the basis of his past detention. While Justice O\u2019Marra applied Chaudhary<\/em>, he rejected the claim for Charter<\/em> damages, finding that there was no Charter<\/em> breach. The court\u2019s key conclusion was that the applicant had been held pursuant to a constitutionally-compliant regime and that his Charter <\/em>rights had therefore not been breached.[112]<\/a> Further, despite the clear conclusion by the Court of Appeal for Ontario in Chaudhary <\/em>that meeting the criteria of detention was not<\/em> the only question when assessing the constitutionality of the detention, Justice O\u2019Marra still concluded that there was no violation of sections\u00a09 or 12 of the Charter<\/em> because the detention was maintained pursuant to the criteria set out in the IRPA <\/em>and was for the valid purpose of removal.[113]<\/a> On appeal, these fact-intensive findings were not disturbed.<\/em>[114]<\/a> The Court of Appeal proceeded to also find that the superior court should not consider arguments for monetary damages as a remedy for Charter <\/em>breaches in the context of habeas corpus <\/em>applications. Because, in its view, the question to be answered under Chaudhary <\/em>is based on a forward-looking analysis, and in light of the expeditious nature of habeas corpus<\/em>, the Court of Appeal found claims for Charter <\/em>damages should be brought in a separate application and heard on a normal schedule.[115]<\/a> Mr.\u00a0Brown has sought leave to appeal this decision to the Supreme Court of Canada.<\/p>\n

In Canada (Minister of Citizenship and Immigration) v.<\/em> Dadzie<\/em>, the applicant, who had been held in immigration detention for two-and-a-half years, brought an application for habeas corpus<\/em> relief.[116]<\/a> In assessing whether the applicant had established that his detention was lengthy and of uncertain duration, the Superior Court of Justice held that it could take into account the nature of the place of the applicant\u2019s detention\u2014a maximum security facility\u2014in deciding whether the applicant had met his onus under a habeas corpus<\/em> application.[117]<\/a> Justice Clark clarified that the period of detention under review was that of the present<\/em> detention, and the court was not to consider the applicant\u2019s past detention\u2014he had been detained but released in the past, prior to the detention under review.[118]<\/a> With regards to the cooperation of the applicant, Justice Clark found that delay caused by the applicant to the deportation process should be held against him.[119]<\/a> Justice Clark concluded that, based on the facts of the case, the uncertainty of how long the applicant would remain in detention was \u201clargely, if not entirely, a function of his failure to cooperate in a forthright and meaningful way.\u201d[120]<\/a> As he found the applicant responsible for the length and uncertain duration of his ongoing detention, Justice Clark determined that the Chaudhary <\/em>threshold was not met.[121]<\/a><\/p>\n

In Ali<\/em>, the Ontario Superior Court of Justice considered an immigration detention of over seven years.[122]<\/a> Unlike in Brown <\/em>ONSC, Justice Nordheimer (as he then was) in Ali<\/em> rejected the government\u2019s argument that the court should decline to exercise jurisdiction because the detention review process complied with the Charter<\/em>. While the issue in Brown<\/em> was not one of jurisdiction, it is clear that the court took such an approach in finding no breach of the Charter<\/em>.[123]<\/a> Relying on Chaudhary<\/em>, Justice Nordheimer disagreed with this position, stating that \u201cnotwithstanding the complete, comprehensive and expert scheme for the review of a detention under the IRPA<\/em>, habeas corpus<\/em> petitions involving immigration detainees should nonetheless be heard in this court, on their merits, in exceptional circumstances.\u201d[124]<\/a> On the requirement of exceptionality, Justice Nordheimer observed that \u201ca detention of more than seven years must be seen as being exceptional under any proper definition of that word.\u201d[125]<\/a> The court also found that the detention was uncertain and that, given all the efforts undertaken to date, \u201c[t]here is no reason to believe … that any breakthrough in Mr.\u00a0Ali\u2019s case is going to be made in the immediate future.\u201d[126]<\/a><\/p>\n

The court then considered the next issue, whether the Minister established that the immigration detainee\u2019s detention was justified for immigration purposes. The Minister relied on the detainee\u2019s alleged lack of cooperation as justifying the continued detention.[127]<\/a> While the Minister tried to analogize Mr.\u00a0Ali\u2019s case to Dadzie<\/em>, Justice Nordheimer rejected this comparison, finding instead that \u201cthe individual facts of each case will determine whether the detainee\u2019s failure to co-operate with the authorities is sufficient to justify his\/her continued detention.\u201d[128]<\/a> He concluded that it could not be said that there was a lack of meaningful cooperation by Mr.\u00a0Ali.[129]<\/a><\/p>\n

Importantly, Justice Nordheimer also underlined that it is untenable to assert that \u201ca lack of cooperation by a detainee can justify detention indefinitely.\u201d[130]<\/a> Such an interpretation, he noted, \u201ccould justify the continued detention of a person forever.\u201d[131]<\/a> The court also noted the perversity of the view that concluding otherwise would reward<\/em> the detainee who does not cooperate, an argument that had previously been advanced by the Minister and accepted in the Federal Court.[132]<\/a> As noted in Ali<\/em>: \u201cThe purpose under the IRPA<\/em> is not the punishment of uncooperative detainees. For the continued detention of the individual to be proper, it must be necessary to further a legitimate immigration purpose.\u201d[133]<\/a><\/p>\n

Less than six months later, Justice O\u2019Marra of the Ontario Superior Court of Justice adopted yet a different stance on the sections\u00a07 and 9 Charter <\/em>issues in Toure <\/em>SC.[134]<\/a> There, Justice O\u2019Marra found, as in Dadzie<\/em>, that it was the detainee\u2019s prior lack of cooperation that engendered the delays in removal and that there remained a reasonable prospect of removal provided that Mr. Toure continued to cooperate with the CBSA in its removal efforts.[135]<\/a> While not stated explicitly, the logic of the Toure<\/em> judgment, like that of Dadzie<\/em> and a companion judgment of the Federal Court in Lunyamila<\/em>,[136]<\/a> is that a detainee\u2019s non-cooperation with removal can justify indefinite detention. The Court of Appeal for Ontario maintained this logic\u2014at least implicitly\u2014in Toure<\/em>.[137]<\/a><\/p>\n

More promisingly, however, Justice O\u2019Marra found that Mr. Toure\u2019s right to be free of cruel and unusual treatment under section\u00a012 of the Charter <\/em>was breached by the decision to hold him in a maximum security criminal facility over the five years of his detention. The court noted the Immigration Division\u2019s lack of jurisdiction to control the location and conditions of detention, and found that the review mechanism did not therefore fulfill the constitutional requirement, stipulated by the Supreme Court in Charkaoui<\/em>, that there be a process \u201cthat takes into account the context and circumstances of the individual case.\u201d[138]<\/a> In addition to offering a scathing critique of the mistreatment of Mr. Toure, Justice O\u2019Marra ordered that Mr. Toure be transferred to a minimum security IHC.[139]<\/a> The section\u00a012 analysis in Toure<\/em> highlights the fact, as noted above, that the silence of the IRPA<\/em> detention review regime with respect to the location and conditions of detention renders it constitutionally deficient.<\/p>\n

However, on appeal, the Court of Appeal for Ontario concluded that \u201cthe evidence\u201d in Mr. Toure\u2019s case fell \u201cfar short of concluding\u201d that Mr. Toure met the \u201chigh bar of showing that his treatment was cruel and unusual\u201d.[140]<\/a> In allowing the government\u2019s cross-appeal on section\u00a012, the Court of Appeal concluded that the application judge\u2019s errors were \u201clargely linked to the lack of evidentiary foundation.\u201d[141]<\/a> Without reference to its own recent finding in Brown<\/em> that appellate review of Charter<\/em> findings on habeas corpus<\/em> appeals is to be deferential to the application judge\u2019s findings, the Court of Appeal in Toure<\/em> disagreed with the lower court\u2019s finding that the evidence established a section\u00a012 breach and allowed the appeal on that basis.[142]<\/a><\/p>\n

In Scotland<\/em>, which was never appealed, the Superior Court of Justice made a number of findings that highlight the important role of habeas<\/em> corpus <\/em>litigation in shedding light on the separate and unequal nature of the detention review processes under the IRPA<\/em>.[143]<\/a> The court in Scotland<\/em> provides a trenchant criticism of the CBSA\u2019s conduct and the detention review process. Justice Morgan found: that Mr. Scotland had been detained for \u201cconduct that is not morally blameworthy and that is not aimed at fulfilling its statutory purpose\u201d and his detention was thus arbitrary; that the Immigration Division had failed to retain its impartiality and had unjustifiably deferred to the views of the CBSA; and further that the Division\u2019s reliance on its own prior decisions to justify ongoing detention amounted to a \u201cclosed circle of self-referential and circuitous logic from which there is no escape.\u201d[144]<\/a> Foreshadowing a finding that the Court of Appeal would soon affirm in Ogiamien<\/em>,[145]<\/a> the judgment in Scotland <\/em>also suggests that superior court Justices in Ontario should exercise their habeas<\/em> corpus<\/em> jurisdiction more broadly to supervise the legality of the detention and to ensure that detention is substantively justifiable in light of its purpose.[146]<\/a><\/p>\n

Despite the mixed outcomes in applying Chaudhary<\/em> and in terms of the relief sought by detainees, it is undeniable that habeas corpus <\/em>applications have in some cases meaningful remedies for some long-term immigration detainees, shed much needed light on the persistent injustice in current practices concerning immigration detention, and underscored the deficiencies in the law itself.[147]<\/a> The door opened in Chaudhary <\/em>has allowed some detainees to step outside of the \u201cclosed circle of self-referential and circuitous logic\u201d under which their detentions had been repeatedly maintained and successfully seek a fresh assessment of the legality of their detentions.[148]<\/a> In the next and final Part, we discuss critical issues that need to be considered and addressed in future habeas corpus<\/em> litigation under the Chaudhary<\/em> framework.<\/p>\n

<\/a>III. Habeas Corpus<\/em> Applications as a Litigation Strategy<\/h1>\n

<\/a>A.\u00a0\u00a0 Why Habeas Corpus?<\/h2>\n

While immigration detention habeas corpus<\/em> litigation is still in its early days, it is clear that the advantages of challenging immigration detention through habeas corpus<\/em> are profound. Habeas corpus<\/em> provides a process that actually accords with the risk of imprisonment that is at stake. It allows immigration detainees to access many of the fundamental procedural rights that are absent from the IRPA<\/em> scheme. As rightly emphasized in Chaudhary<\/em>, the substantive question to be answered in a habeas corpus <\/em>application\u2014whether detention has become unhinged from removal\u2014actually functions to terminate arbitrary and indefinite immigration detentions. In this section, we review the concrete advantages of challenging detention in a habeas<\/em> corpus <\/em>application.<\/p>\n

<\/a>1.\u00a0\u00a0 Straight to the Point<\/h3>\n

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

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

<\/a>2.\u00a0\u00a0 Disclosure Requirements<\/h3>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 Habeas corpus<\/em> applications place a production requirement on the Crown. In initiating the application under a provincial Habeas Corpus Act<\/em>, the detainee can seek to compel disclosure of the Immigration Division\u2019s file, and the records from the institutions where they have been concerning the conditions of confinement.[151]<\/a> While the scope of the CBSA\u2019s obligation to disclose its records in the context of a habeas corpus <\/em>application has been limited by two recent lower court decisions in Ontario,[152]<\/a> even under this restrictive view, the CBSA is required to disclose in advance the evidence on which the state will rely in seeking to justify ongoing detention in the habeas corpus <\/em>application. This requirement, while not wholly satisfactory, is a significant improvement vis-\u00e0-vis the procedural rights afforded to detainees in detention reviews under the IRPA<\/em> where advance disclosure is rare.<\/p>\n

<\/a>3.\u00a0\u00a0 Cross-Examination<\/h3>\n

Unlike a process where continued detention based on hearsay is the norm, habeas corpus<\/em> also presents a means to test these allegations through cross-examination. The state\u2019s evidence of danger, flight risk, or non-cooperation that sustains lengthy detentions must here be either sworn in an affidavit or given viva voce<\/em>. In either case, the evidence is subject to cross-examination in an adversarial process. There is no such mechanism as of right in the IRPA<\/em> scheme to meaningfully scrutinize the Minister\u2019s allegations.<\/p>\n

<\/a>4.\u00a0\u00a0 De Novo<\/em> Assessment of the Evidence<\/h3>\n

The judge on a habeas corpus<\/em> application owes no deference to any past decision to maintain detention.[153]<\/a> As such, the question is no longer just whether anything is \u201cnew\u201d after an additional month of the detainee being locked in a cell, which he or she may have inhabited for periods longer than half a decade. Instead, habeas corpus<\/em> presents a chance for a global assessment of the present facts and circumstances of the detention and is concerned only with whether continued detention is legal at the present time rather than asking if some new development justifies a departure from a prior decision.<\/p>\n

<\/a>5.\u00a0\u00a0 Burden on the Jailor<\/h3>\n

Related to the de novo<\/em> assessment, habeas corpus <\/em>restores the fundamental procedural principle that the burden of justification for a deprivation of liberty lies with the party seeking to impose or maintain detention. As noted in Chaudhary<\/em>, the IRPA<\/em> scheme as applied pursuant to the Federal Court of Appeal\u2019s judgement in Thanabalasingham<\/em> effectively shifts the burden to the detainee to prove that the situation has changed in the past thirty days.[154]<\/a> For detainees, who are typically left to sit for seventeen hours a day or more in the cell of a maximum security prison with no access to much of the evidence in their case, this is a profoundly unjust state of affairs.[155]<\/a> Habeas corpus <\/em>applications restore a fair allocation of the burden to justify the deprivation of liberty.<\/p>\n

Further, in cases where detention for removal is justified by \u201cnon-cooperation\u201d, the Minister must, on habeas corpus<\/em>, actually put forward evidence to meet their burden. In Ali<\/em>, where the applicant was imprisoned for seven years based on the state\u2019s hunch that he was concealing information about his identity, the Ontario Superior Court of Justice refused to countenance this position: \u201cThe authorities cannot discharge the onus that rests on them to demonstrate that the continued detention of Mr.\u00a0Ali is justified, for immigration purposes, based on skepticism and speculation.\u201d[156]<\/a><\/p>\n

<\/a>6.\u00a0\u00a0 The Question Asked and the Court that Answers It<\/h3>\n

Finally, and perhaps most significantly, habeas corpus<\/em> brings detained non-citizens into courts with unmatched expertise in matters of detention and the Charter <\/em>in a process that directly concerns itself with the constitutionality of their ongoing detention. It is uncontroversial that detention issues are the \u201cdaily fare\u201d of Superior Courts, and as the Supreme Court stated in Khela<\/em>, \u201cwhen a loss of liberty is involved, the superior courts are well versed in the Charter<\/em><\/a> rights that apply.\u201d[157]<\/a><\/p>\n

As noted above, the Court of Appeal for Ontario in Chaudhary <\/em>was unequivocal that if a lengthy detention has become indefinite, the detention will breach the Charter<\/em>. Although identical Charter <\/em>issues arise before the Immigration Division and on judicial review at the Federal Court, the Federal Court has never found a Charter <\/em>breach in these circumstances. <\/em>In fact, to the contrary, there is an alarming line of authority in Federal Court jurisprudence holding that it is an error of law for the Immigration Division to order release on Charter <\/em>grounds based solely on a finding that a detention has become indefinite.[158]<\/a> This line of authority cannot be squared with Chaudhary<\/em>, or with protections against arbitrary detention under sections\u00a07 and 9 of the Charter<\/em> in any other context. In this light, access to the Superior Courts through habeas corpus<\/em> has proved to be the only access to Charter <\/em>protections against arbitrary detention meaningfully available to immigration detainees.<\/p>\n

If there was ever an illustration of how differently two courts can conceive of the Charter, <\/em>it is the contrast between the Federal Court\u2019s decision in Lunyamila <\/em>and the Ontario Superior Court\u2019s decision in Ali<\/em>.[159]<\/a> Both decisions address the issue of indefinite detention for a detainee alleged to be uncooperative with removal. In Lunyamila, <\/em>Chief Justice Crampton of the Federal Court considered the case of an applicant with a long history of violent crimes who would not sign a declaration that would allow for travel documents to be issued to effect his deportation.[160]<\/a> While the facts of Lunyamila <\/em>presented an exceptional level of danger to the public for an immigration detainee\u2014including attacks against strangers\u2014Chief Justice Crampton made no effort to limit his ruling to the facts. The Federal Court held that even in the case of detention solely based on flight risk, where a detainee is not cooperating with removal, the balance must always<\/em> favour continued detention.[161]<\/a><\/p>\n

In considering the habeas corpus<\/em> application in Ali<\/em>, on the other hand, the Ontario Superior Court directly addressed the government\u2019s reliance on Lunyamila<\/em>.[162]<\/a> After attempting to distinguish the case on its facts, Justice Nordheimer plainly stated his disagreement with the judgment insofar as it can be read for a general principle legalizing indefinite detention.[163]<\/a> He noted that the rationale from Lunyamila <\/em>could be read as justifying detention \u201cforever\u201d, and affirmed that<\/p>\n

[t]o authorize the Government to hold a person indefinitely, solely on the basis of noncooperation, would be fundamentally inconsistent with the well-established principles underlying ss. 7 and 9 of the Charter.\u00a0It would also be contrary to Canada\u2019s human rights obligations.[164]<\/sup><\/a><\/p>\n

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

B.\u00a0 <\/a>Effectively Litigating Habeas Corpus: Beyond Chaudhary<\/h2>\n

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

<\/a>1.\u00a0\u00a0 Reaching the Chaudhary<\/em> Threshold<\/h3>\n

As noted above, under Chaudhary<\/em>, the door to habeas corpus <\/em>at the superior court is a showing of \u201creasonable and probable grounds\u201d that an immigration detention is lengthy and of uncertain duration.[166]<\/a> At that point, the detainee\u2019s onus is met, and the burden falls to the government to demonstrate that the detention is nevertheless legal.[167]<\/a><\/p>\n

As early as the second habeas corpus<\/em> decision applying Chaudhary<\/em>, the government was successful in relieving itself of its legal burden to justify detention. In Dadzie<\/em>, Justice Clark of the Ontario Superior Court found that a detention of over two years was neither lengthy nor of uncertain duration because it was the applicant\u2019s non-cooperation<\/em> that was the cause of this state of affairs.[168]<\/a> While this decision was largely a product of its facts, a caution is nonetheless in order. The analytical approach in Dadzie <\/em>and Toure <\/em>subverts the very essence of habeas<\/em> corpus<\/em>: that it is the jailor that bears the burden to justify the lawfulness of detention.[169]<\/a> Under Chaudhary <\/em>and Charkaoui<\/em>, the state may invoke a detainee\u2019s lack of cooperation to seek to justify a long and indeterminate detention.[170]<\/a> However, this consideration is just that: a justification. As such, the assessment of a detainee\u2019s non-cooperation belongs at the justification stage of the analysis. When this factor is inserted into the threshold question, as was the case in Dadzie<\/em> and again in Toure<\/em>, it shifts the burden back onto the detainee to prove that their own detention is unlawful.[171]<\/a> The error of the courts in both Dadzie <\/em>and Toure <\/em>is that they asked only whether non-cooperation should count against the detainee: they did not consider either the allocation of the burden or at what stage in the analysis alleged non-cooperation should be considered.<\/p>\n

In order to preserve the ground gained in Chaudhary<\/em>, questions of non-cooperation, which may regularly arise in long-term detention cases, must fall to the state to prove, and must not therefore be imported into the jurisdictional threshold stage of the analysis. This approach retains the essence of habeas corpus<\/em>, and accords with Chaudhary <\/em>where the applicants\u2019 detentions were found lengthy and of uncertain duration based on the plain meaning of those terms.[172]<\/a> It also retains analytical coherence as the alternative would lead to an imprecise weighing of unlike properties, balancing \u201ctime in detention\u201d against how much the detainee has or has not cooperated. Allegations that the detainee is not cooperating with removal efforts and arguments that such non-cooperation justifies further detention must be assessed at the stage of the lawfulness of the detention. Otherwise, the most critical component of habeas corpus<\/em>, the detaining party\u2019s burden to prove the legality of detention, is eroded. If the detainee is required, at the jurisdictional threshold stage, either to prove his or own cooperation with removal efforts or to establish that any non-cooperation does not justify continue detention, then the state is relieved of its burden to establish the legality of the detention.<\/p>\n

2.\u00a0\u00a0 Uncovering the Whole Factual Picture<\/h3>\n

In Toure<\/em>, the Ontario Superior Court of Justice held that the Charter <\/em>did not require the Minister to disclose either Mr. Toure\u2019s full CBSA file or even a specific list of documents germane to the allegation being advanced by the Minister.[173]<\/a> The court held that the Minister had disclosed sufficient documents to allow the applicant to know the case to meet in his habeas corpus <\/em>application. The effect of this holding is that the government will not necessarily be obligated to disclose all records relevant to cooperation or the foreseeability of removal even in habeas corpus <\/em>proceedings. Evidence that is relevant to the determinative questions at issue may remain unknown to both the applicant and the presiding judge. This holding can only be reached by disregarding the second of two requirements for a fair detention review process set out by the Supreme Court in Charkaoui<\/em>[174]<\/a> and reiterated in Harkat<\/em>: \u201cthe right to know and meet the case, and the right to have a decision made by the judge on the facts and the law<\/em>.\u201d[175]<\/a> In a proceeding decided in the adversarial context, if the state does not have to make full disclosure, no party is in a position to ensure that the judge is \u201cexposed to the whole factual picture\u201d and thus able to make an informed decision on the facts and law.[176]<\/a><\/p>\n

This critical fair process requirement will remain absent if the decision in Toure <\/em>on this point is allowed to stand. On appeal, the Court of Appeal for Ontario declined to address the issue in substance, simply asserting that the lack of disclosure was not a \u201csevere unfairness\u201d sufficient to breach the principles of fundamental justice on the facts of the case.[177]<\/a> While the issue remains unsettled, the judgments in Toure<\/em> represent a problematic shift towards a separate and unequal fairness standard for immigration detainees whereby diluted disclosure obligations suffice because they do not result in \u201csevere unfairness\u201d.<\/p>\n

<\/a>3.\u00a0\u00a0 Beyond the Chaudhary<\/em> Threshold<\/h3>\n

Finally, the logic of Chaudhary <\/em>extends beyond detentions that are long and indefinite. In the latter section of the Chaudhary <\/em>decision,[178]<\/a> the Court of Appeal for Ontario, using the framework from May<\/em> and Khela<\/em>, considered whether the IRPA<\/em> scheme was as broad and advantageous as that available by way of habeas corpus<\/em>. The court found that it was not and that there is therefore no basis for a court to decline to exercise its habeas corpus<\/em> jurisdiction. Some of the initial decisions that followed Chaudhary <\/em>have referred to this jurisdiction as \u201cexceptional\u201d[179]<\/a> and treated length and indefinite duration as threshold issues that must be assessed in order for the court to take habeas corpus<\/em> jurisdiction.[180]<\/a> The judgment in Scotland<\/em> rejected this approach, and instead collapsed the issues of lengthy detention and indefinite detention into its analysis of the legality of the detention\u2014refusing to consider them in the abstract as threshold issues.[181]<\/a><\/p>\n

The Court of Appeal for Ontario has itself now stated in Ogiamien<\/em>, in considering the findings about the IRPA<\/em> scheme made in Chaudhary<\/em>, that there is no principled reason that habeas corpus<\/em> jurisdiction should be limited to cases where the detention is exceptionally lengthy and of uncertain future duration.[182]<\/a> Justice Sharpe, writing for the court, rejected the Minister\u2019s argument to the effect that Chaudhary<\/em> was \u201crestricted to its precise facts.\u201d[183]<\/a> Justice Sharpe further noted that such a submission ignored \u201cthe more general principle upon which Chaudhary<\/em> rests,\u201d which is that:<\/p>\n

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

What remains to be seen is the extent to which superior courts will recognize that the \u201cIRPA process of review under the supervision of the Federal Court\u201d is always<\/em> \u201cless advantageous than habeas corpus<\/em>\u201d, and that the remedy should therefore always be available to challenge the lawfulness of an immigration detention. This prospect has been rendered somewhat more remote by the Court of Appeal for Ontario\u2019s judgment in Toure<\/em>, where it found that it remains the detainee\u2019s burden to demonstrate exceptional circumstances justifying the exercise of habeas corpus <\/em>jurisdiction.[185]<\/a> In so finding, the Court appears to be relieving the government of its burden to demonstrate that the jurisdiction should be declined.<\/p>\n

As set out in detail above, the findings in Chaudhary<\/em> on the advantages of habeas corpus<\/em> over the detention review scheme apply equally to other situations where immigration detainees seek to challenge the legality of their detention and there remains no principled reason why it should be limited to \u201cexceptional\u201d cases. The advantages that stem from the onus being on the state, the less favourable review process in Federal Court, the expertise of the Superior Court in Charter<\/em> rights, and the choice, timeliness, and nature of the remedy, are all important advantages for a detainee challenging the lawfulness of their detention regardless of its length and uncertain duration. Each of these factors makes the IRPA<\/em> scheme less advantageous than habeas corpus<\/em>. Having overcome the misapplication of Peiroo<\/em>, as long as the detainee\u2019s habeas corpus<\/em> application is directed not at their immigration status, but at the lawfulness of their ongoing detention, there is no principled reason that the rationale of Chaudhary <\/em>should not extend to them as well.<\/p>\n

It is also difficult to reconcile the right to habeas corpus<\/em> and release by the court that determines the legality of detention under section\u00a010(c) of the Charter<\/em> with a regime that places the burden on the detainee to show exceptional circumstances justifying habeas corpus <\/em>review. If the \u201cPeiroo <\/em>exception\u201d<\/em> does not apply, then the right to habeas corpus<\/em> remains the applicable rule, and detainees ought not be required to establish that their cases constitute an exception to the (inapplicable) exception.<\/p>\n

The availability of habeas<\/em> corpus<\/em> in a broader range of cases is significant. There are a range of cases of illegal detention that do not meet the \u201clengthy and indeterminate duration\u201d threshold where the IRPA<\/em> scheme is clearly less advantageous than habeas corpus<\/em>. For example, a detention where there is no reasonable prospect of removal from the outset should not have to wait until the detention is \u201clengthy\u201d before its arbitrariness can be challenged. Similarly, if a detainee is subject to an unreasonable Immigration Division decision to continue detention, but does not want to languish in jail while the judicial review process runs its course and a re-hearing is held by the Immigration Division following judicial review, habeas corpus <\/em>is a faster and more direct mechanism to end the illegal detention. Other challenges could go towards the Minister\u2019s unlawful placement of immigration detainees in maximum security provincial jails. Finally, as long as the Designated Foreign National detention regime remains on the books,[186]<\/a> habeas corpus <\/em>would provide the most advantageous mechanism to quickly and directly challenge the constitutionality of a detention on this basis.<\/p>\n

While the Court of Appeal did not in Ogiamien <\/em>take the next step to acknowledge that, on the Chaudhary <\/em>reasoning that it had reaffirmed, there would be no principled basis to deny the right to seek habeas corpus <\/em>to anyone detained under the IRPA<\/em> regime, that is the only logical conclusion to be drawn. Immigration detainees should have access to habeas corpus<\/em> to contest the legality of their detention because the IRPA<\/em> scheme is less advantageous and cannot therefore serve to supplant their section\u00a010(c) Charter <\/em>right to challenge their detention by way of habeas corpus<\/em>.<\/p>\n

<\/a>Conclusion<\/h1>\n

The effect of successful habeas corpus<\/em> litigation in Canada could be the beginning of the end of the fiction of a \u201cseparate but equal\u201d detention scheme for non-citizens. By allowing non-citizens access to provincial superior courts, the immigration detention regime may no longer be able to operate in a state of exception, divorced from the principles of justice that apply to all other persons who face imprisonment in Canada.<\/p>\n

Given the deficiencies of the detention review regime as legislated and as applied, it remains necessary for the availability of habeas corpus<\/em> review to exist in parallel to the Immigration Division regime. The writ should not be treated as \u201cexceptional\u201d, but rather as a Charter <\/em>right owed equally to those imprisoned under the immigration detention regime. This would be consistent with the clear language of section\u00a010(c) of the Charter<\/em> and the Supreme Court of Canada\u2019s recent position on habeas corpus<\/em> for other administrative regimes that govern detentions where the option of which avenue to pursue belongs to the detainee.[187]<\/a> It is only by affirming Chaudhary<\/em> and preserving habeas corpus <\/em>for immigration detainees and that the Supreme Court can maintain an internally consistent position and ensure that immigration detainees are not relegated to a separate but unequal legal regime. In the same vein, the pernicious effects of having relegated immigration detainees to the separate but unequal IPRA<\/em> regime should serve as a warning against the establishment of a distinct version of the right of habeas corpus<\/em>\u2014with inverted burdens of proof and justification and diluted procedural rights\u2014for immigration detainees.<\/p>\n

Moving forward, there may even be hope that the immigration detention jurisprudence of the provincial superior courts will cross-pollinate into the Federal Court and the Immigration Division and allow Charter <\/em>protections to more meaningfully enter these regimes. Ultimately, until the defects of the IRPA<\/em> scheme are remedied and the Federal Court and Immigration Division properly appreciate that the term \u201ceveryone\u201d in sections\u00a07, 9 and 12 of the Charter<\/em> applies equally to non-citizens, access to habeas corpus <\/em>will remain vital.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/u><\/p>\n

[1]<\/a> \u00a0\u00a0 See Brown v Board of Education of Topeka<\/em>, 347 US 483 at\u00a0493\u201395, 74\u00a0S Ct 686 (1954). As Stephanie J Silverman and Petra Molnar write, immigration detainees are faced with not only the deprivation of their basic liberty interests but also the \u201cirreparable psychological, physical, and social damage\u201d that detention inflicts. See Stephanie J Silverman & Petra Molnar, \u201cEveryday Injustices: Barriers to Access to Justice for Immigration Detainees in Canada\u201d (2016) 35:1 Refugee Survey Q\u00a0109 at\u00a0109 [Silverman & Molnar, \u201cEveryday Injustices\u201d]. Those detained do not hold the same rights as Canadians and are managed and excluded. As Silverman and Molnar note: \u201c[L]egislation, rhetoric, policies and rule-making governance systems imported from the carceral setting are constructing detainees as the ultimate foreigners. They must be identified, managed, and incapacitated\u201d (ibid<\/em> at\u00a0115). See also Anna Pratt, Securing Borders: Detention and Deportation in Canada <\/em>(Vancouver: UBC Press, 2005) [Pratt, Securing Borders<\/em>]; Mary Bosworth & Sarah Turnbull, \u201cImmigration Detention, Punishment, and the Criminalization of Migration\u201d in Sharon Pickering & Julie Ham, eds, The Routledge Handbook on Crime and International Migration <\/em>(Oxford: Routledge, 2015) 91 at\u00a097; Amy Nethery & Stephanie J Silverman, eds, Immigration Detention: The Migration of a Policy and its Human Impact <\/em>(Abingdon, UK: Routledge, 2015).<\/p>\n

[2]<\/a> \u00a0\u00a0 For a discussion of the immigration detention regime in Canada, see Silverman & Molnar, \u201cEveryday Injustices\u201d, supra<\/em> note 1; Janet Cleveland, \u201cNot so Short and Sweet: Immigration Detention in Canada\u201d in Nethery & Silverman, supra<\/em> note\u00a01, 79; Rayner Thwaites, The Liberty of Non-Citizens: Indefinite Detention in Commonwealth Countries <\/em>(Oxford: Hart, 2014)\u00a0ch\u00a08 [Thwaites, Liberty of Non-Citizens<\/em>]; Arghavan Gerami, \u201cChallenging Prolonged and Indefinite Immigration Detention: Necessary Amendments to the Immigration and Refugee Protection Act<\/em>\u201d (2016) 10:1 JPPL\u00a0205.<\/p>\n

[3]<\/a> \u00a0\u00a0 Immigration detainees in Canada are housed either in administrative \u201cImmigration Holding Centers\u201d (IHCs) or in provincial jails. According to the data available, a majority of time spent in immigration detention is actually spent in the latter\u2014i.e. in provincial maximum security jails. See Brendan Kennedy, \u201cCaged by Canada\u201d, The Toronto Star<\/em> (17 March 2017), online: <https:\/\/www.thestar.com>, archived at https:\/\/perma.cc\/
\n4M9Q-U3Q4 [Kennedy, \u201cCaged by Canada\u201d] (finding that two-thirds of immigration detainees, including almost all of the long-term detainees, are held in maximum-security provincial jails). See also Ali v Canada (AG)<\/em>, 2017 ONSC\u00a02660 (Cross-examination of John Helsdon on 7 March 2017 at para\u00a0135) (confirming that two-thirds of the total number of days spent in immigration detention in Canada are spent in provincial jails). These findings contributed to the judgment in Ali v Canada (AG)<\/em>, 2017 ONSC\u00a02660, 137 OR (3d)\u00a0498 [Ali<\/em>]. For more data on the number of people detained in Canada and an overview of the conditions of immigration detention in provincial correctional facilities, see e.g. Silverman & Molnar, \u201cEveryday Injustices\u201d, supra<\/em> note\u00a01 at\u00a0115,\u00a0117\u2013120; Stephanie J Silverman, \u201cIn the Wake of Irregular Arrivals: Changes to the Canadian Immigration Detention System\u201d (2014) 30:2 Refuge\u00a027 at\u00a030ff; Hanna Gros & Paloma van Groll, \u201cWe Have No Rights\u2019: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada\u201d (2015) University of Toronto Faculty of Law International Human Rights Program Report at\u00a029, online: <https:\/\/ihrp.law.
\nutoronto.ca\/We_Have_No_Rights>.<\/p>\n

[4]<\/a> \u00a0\u00a0 Part I of the Constitution Act<\/em>, 1982<\/em>, being Schedule B to the Canada Act 1982<\/em> (UK), 1982, c\u00a011 [Charter<\/em>].<\/p>\n

[5]<\/a> \u00a0\u00a0 The leading case to this effect is Peiroo v Canada (Minister of Employment and Immigration) <\/em>(1989), <\/em>69 OR (2d)\u00a0253, 60 DLR (4th)\u00a0574 [Peiroo <\/em>cited to OR]. In Peiroo<\/em>, the Court of Appeal for Ontario concluded that it \u201cshould leave the review of immigration matters with the Federal Court of Canada\u201d and thus declined to grant the appellant the remedy of habeas corpus<\/em> (ibid<\/em> at\u00a0262). As discussed herein, the Court of Appeal for Ontario held in Chaudhary v Canada <\/em>(Public Safety and Emergency Preparedness)<\/em>, 2015 ONCA 700, 127 OR (3d)\u00a0401 [Chaudhary<\/em> ONCA] that Peiroo<\/em> does not in fact justify denial of habeas corpus<\/em> to immigration detainees where the issue raised is the length and indefinite nature of the detention. This finding was recently affirmed in Ogiamien v Ontario (Community Safety and Correctional Services)<\/em>, 2017 ONCA\u00a0839 at para\u00a013, [2017] OJ No\u00a05702 (QL) [Ogiamien<\/em> ONCA]. See notes\u00a085, 86, and 92 below for the cases applying Peiroo<\/em> to immigration detainees.<\/p>\n

[6]<\/a> \u00a0\u00a0 For example, in a recent detention review the Immigration Division held that it did not \u201cneed documentation from the Minister to accept what the Minister [was] saying about what has been happening so far,\u201d and repeatedly referenced accepted institutional practice as grounds for denying basic procedural protections under the Charter<\/em>. See Re<\/em> Ebrahim Toure<\/em> (15 June 2017) 0003-133-00505, Immigration and Refugee Board.<\/p>\n

Discretion and the exercise of that discretion in a broad manner has \u201calways been a component of the administration of Canadian immigration law\u201d and the Immigration Division\u2019s reluctance to apply basic procedural rights afforded under the Charter<\/em> is perhaps only a reflection or an extension of that reality. For further discussion on discretion and the Canadian immigration system, see e.g. Anna C Pratt, \u201cDunking the Doughnut: Discretionary Power, Law and the Administration of the Canadian Immigration Act\u201d (1999) 8:2 Soc & Leg Stud\u00a0199 at\u00a0201 [Pratt, \u201cDunking the Doughnut\u201d]. As Pratt explains, it is a long-standing feature of the immigration detention regime that immigration detainees are afforded fewer rights than Canadians in general. In 1999, she noted that \u201c[w]hile those who are detained may experience their detention as punishment, they are not accorded the degree of rights and protections that would be theirs if they were actually being punished<\/em>\u201d (ibid<\/em> at\u00a0206 [emphasis in original]). As noted in note 11, the Charter<\/em> has been interpreted as possessing its own form of \u201cseparate but equal\u201d with the rights under ss\u00a07, 9, 12 and\u00a015 of the Charter<\/em> being constricted or limited when applied to non-citizens in Canada. On judges\u2019 inability to untangle disputes over the right to remain from the right to personal liberty, see generally Daniel Wilsher, \u201cWhither Presumption of Liberty? Constitutional Law and Immigration Detention\u201d in Michael J Flynn & Matthew B Flynn, eds, Challenging Immigration Detention: Academics, Activists and Policy-Makers<\/em> (Cheltenham, UK: Edward Elgar, 2017)\u00a066.<\/p>\n

[7]<\/a> \u00a0\u00a0 The notion that non-citizens and citizens do not share the same liberty interests is not limited to Canada. As Justice Kennedy of the United States Supreme Court wrote in his dissenting opinion in Zadvydas v Davis<\/em>, 533 US\u00a0678 (2001) at\u00a0717 [Zadvydas<\/em>], \u201c[t]he reason detention is permitted at all is that a removable alien does not have the same liberty interest as a citizen does.\u201d This kind of legal exceptionalism is all too commonly drawn with regards to the rights of refugees and migrants. See e.g. Hannah Arendt, The Origins of Totalitarianism<\/em>, 3rd ed (San Diego: Harcourt, Brace & Company, 1973) at\u00a022; Giorgio Agamben, Means without End: Notes on Politics<\/em>, translated by Vincenzo Binetti & Cesare Casarino (Minneapolis: University of Minnesota Press, 2000)\u00a0at\u00a015\u201328; Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership <\/em>(Princeton: Princeton University Press, 2006).<\/p>\n

[8]<\/a> \u00a0\u00a0 Supra<\/em> note\u00a05. See also Ogiamien <\/em>ONCA, supra<\/em> note 5 at paras\u00a015\u201318, where the Court of Appeal for Ontario provided further clarification on the scope of habeas corpus<\/em> and its decision in Chaudhary<\/em>. Also note that while this article focuses primarily on Ontario case law and specifically on Chaudhary<\/em>, the Court of Appeal for Alberta recently endorsed and applied Chaudhary<\/em> in Chhina v Canada (Public Safety and Emergency Preparedness)<\/em>, 2017 ABCA\u00a0248 at para\u00a08, 56 Alta LR (6th)\u00a01, leave to appeal to SCC granted, 37770 (3 May 2018) [Chhina<\/em>].<\/p>\n

[9]<\/a> \u00a0\u00a0 Chaudhary <\/em>ONCA, supra<\/em> note 5 at paras\u00a089\u201396. The only statutory remedy for detainees who wish to contest a decision to maintain their detention under the Immigration and Refugee Protection Act<\/em>, SC\u00a02001, c\u00a027 [IRPA<\/em>] lies under s\u00a072(1) of the IRPA,<\/em> whereby a permanent resident or foreign national can file an application for leave to seek judicial review at the Federal Court. While the judicial review process may provide an effective mechanism for reviewing the decisions of administrative tribunals in general, the same cannot be said in the specific context of reviewing the detention of immigration detainees in Canada. Also note that the Federal Court is a statutory court, and has no inherent jurisdiction. Its constitutive statute, the Federal Courts Act<\/em>, RSC\u00a01985, c\u00a0F-7, s\u00a018(2), does not grant it habeas corpus<\/em> jurisdiction. The application for judicial review is thus the only remedy available in the Federal Court and under the IRPA <\/em>for detainees. While one judge of the Federal Court speculated to the contrary in Warssama v Canada (Citizenship and Immigration)<\/em>, 2015 FC\u00a01311 at paras\u00a040\u201346, [2015] FCJ No\u00a01356 (QL), it remains that the Federal Court is statutory and simply does not have habeas corpus <\/em>jurisdiction (except in the court martial context). See Mission Institution v Khela<\/em>, 2014 SCC\u00a024 at para\u00a032, [2014] 1 SCR\u00a0502 [Khela<\/em>].<\/p>\n

[10]<\/a> \u00a0 See Chhina, supra<\/em> note\u00a08.<\/p>\n

[11]<\/a> \u00a0 The erosion of the constitutional rights that non-citizens in Canada are equally entitled to under the Charter<\/em> is a small but growing area of academic study. See e.g. Gerald Heckman, \u201cRevisiting the Application of Section 7 of the Charter<\/em> in Immigration and Refugee Protection\u201d (2017) 68 UNBLJ\u00a0312; Catherine Dauvergne, \u201cHow the Charter <\/em>Has Failed Non-Citizens in Canada: Reviewing Thirty Years of Supreme Court of Canada Jurisprudence\u201d (2013) 58:3 McGill LJ\u00a0663; Rayner Thwaites, \u201cDiscriminating Against Non-Citizens Under the Charter<\/em>: Charkaoui<\/em> and Section 15\u201d (2009) 34:2 Queen\u2019s LJ\u00a0670.<\/p>\n

[12]<\/a> \u00a0 While there has been significant work on immigration detention in Canada and elsewhere\u2014see notes\u00a02, 3, 44, 52, 87; Alan Desmond, \u201cThe Development of a Common EU Migration Policy and the Rights of Irregular Migrants: A Progress Narrative?\u201d (2016) 16:2 Human Rights L Rev\u00a0247\u2014the issue of habeas corpus<\/em> as a remedy to indefinite immigration detention in Canada has received little academic attention. This is perhaps because, previous to Chaudhary<\/em>, the possibility of habeas corpus<\/em> seemed foreclosed. On habeas corpus<\/em> as a remedy to detention more generally, see Judith Farbey, RJ Sharpe & Simon Atrill, The Law of Habeas Corpus<\/em>, 3rd ed (Oxford: Oxford University Press, 2011); Debra Parkes,\u00a0\u201cThe \u2018Great Writ\u2019 Reinvigorated? Habeas Corpus<\/em> in Contemporary Canada\u201d (2012) 36:1 Man LJ\u00a0351; Matthew Groves, \u201cThe Use of Habeas Corpus<\/em> to Challenge Prison Conditions\u201d (1996) 19:2 UNSWLJ\u00a0281.<\/p>\n

[13]<\/a> \u00a0 Supra<\/em> note\u00a09, s\u00a055(1)ff.<\/p>\n

[14]<\/a> \u00a0 SOR\/2002-227 [IRPR<\/em>].<\/p>\n

[15]<\/a> \u00a0 In Khela<\/em>, supra\u00a0<\/em>note\u00a09 at paras\u00a043\u201349, the Supreme Court of Canada made clear that the comparative advantages of habeas corpus<\/em> applications must be considered in determining whether a court can or should decline to exercise its habeas jurisdiction<\/em>.<\/p>\n

[16]<\/a> \u00a0 Indefinite detention is understood in the jurisprudence as an indeterminate period of detention that has exceeded the period of time reasonably necessary to carry out the immigration-related purpose of the detention, being either examination for purposes of assessing the right to enter or remain in the country or deportation upon finding that the person has no right to remain in Canada. See Chaudhary<\/em> ONCA, supra<\/em> note\u00a05 at para\u00a081; Sahin v Canada (Minister of Citizenship and Immigration)<\/em>, [1995] 1 FCR\u00a0214 at\u00a0229\u201331, 85 FTR\u00a099 (TD).<\/p>\n

[17]<\/a> \u00a0 Ibid. <\/em>Most frequently, this occurs where a non-citizen is detained for purposes of deportation but there is no reasonable prospect of deportation within a reasonable time.<\/p>\n

[18]<\/a> \u00a0 See generally supra<\/em> note 3. The profound impacts felt by those detained ought to remain at the core of any discussion of law in this area. As noted in Stephanie J Silverman & Evelyne Massa, \u201cWhy Immigration Detention is Unique\u201d (2012) 18:6 Population, Space & Place\u00a0677 at\u00a0678:<\/p>\n

Put frankly, people deteriorate the longer they are detained. Children, torture survivors, and other vulnerable people are at particular risk of suffering lifelong psychological damage from even short periods of immigration detention. Research conducted in the UK, Australia, Canada, and the US, amongst other states, exhaustively documents the negative impact of immigration detention on the mental and physical health of detainees.<\/p>\n

[19]<\/a> \u00a0 With some exceptions where the individual is a \u201cdesignated foreign national\u201d (DFN), which is not the focus of this article, the IRPA<\/em>, supra<\/em> note\u00a09, s\u00a055(1), provides that an immigration officer can arrest and detain a permanent resident or foreign national where the officer has \u201creasonable grounds to believe\u201d that the permanent resident or foreign national is \u201cinadmissible and is a danger to the public or is unlikely to appear for examination, for an admissibility hearing, for removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister.\u201d A foreign national can also be detained where the immigration officer is not satisfied of the foreign national\u2019s identity. A permanent resident or foreign national may also be detained upon entry into Canada if the immigration officer considers it \u201cnecessary\u201d for completion of an examination or has \u201creasonable grounds to suspect\u201d that the individual \u201cis inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality\u201d (ibid<\/em>, s\u00a055(3)). An immigration officer has the discretion to release a foreign national or permanent resident before the first detention review if the officer \u201cis of the opinion\u201d that the reasons for detention no longer exist (ibid<\/em>, s\u00a056(1)). For further discussion of the regime for DFNs, see Luke Taylor, \u201cDesignated Inhospitality: The Treatment of Asylum Seekers Who Arrive by Boat in Canada and Australia\u201d (2015) 60:2 McGill LJ\u00a0333.<\/p>\n

[20]<\/a> \u00a0 The Immigration Division is required to review the reasons for the continued detention of a foreign national or permanent resident within the first forty-eight hours, at least once during the seven days following the initial review and then at least once during each thirty-day period following the seven-day review. See IRPA<\/em>, supra <\/em>note 9, ss\u00a057\u201358.<\/p>\n

[21]<\/a> \u00a0 Ibid<\/em>, s\u00a058(1).<\/p>\n

[22]<\/a> \u00a0 Ibid<\/em>, s\u00a058(1)(d).<\/p>\n

[23]<\/a> \u00a0 Supra <\/em>note 14, ss\u00a0244\u201347. Of note with respect to these provisions is that there is no provision in the IRPA <\/em>or IRPR <\/em>that requires consideration of criteria that speak to an assessment of whether an individual is a current<\/em> danger to the public. Past convictions and prior danger opinions can support a danger finding without regard for the passage of time, rehabilitation or the actual facts and circumstances underlying the convictions or other findings. As a result, for example, a decade-old conviction for a relatively minor offence under the Controlled Drugs and Substances Act<\/em>, SC 1996, c\u00a019 is a factor in support of a finding that they are a danger to the public. See e.g. Ali<\/em>, supra <\/em>note 3 at paras\u00a015, 24, 34 and the records of detention review proceedings before the Federal Court in Brown v Canada (Citizenship and Immigration)<\/em>, 2017 FC\u00a0710, 25 Admin LR (6th)\u00a0191, leave to appeal to the FCA granted [Brown<\/em> FC]. In Brown<\/em>, the reviews held from September 2011 to August 2016 all found that Mr.\u00a0Brown was a danger to the public solely because of his criminality prior to the detention. See ibid<\/em> (Evidence, Reason of Detention Review on 10 December 2012): \u201cI am satisfied that you are both a danger to the public and unlikely to appear for removal for the same reasons [as previous ones]. You have already been given numerous times I am sure you do not need that repeated to you\u201d; ibid<\/em> (Evidence, Reason of Detention Review on 12 February 2014): \u201cIn the matter of danger to the public, again I uphold the prior decisions. … You also have some serious convictions of recent vintage from May of 2011\u201d; ibid<\/em> (Evidence, Record of Hearing for Detention Review on 2 July 2014): \u201cI won\u2019t go into detail on the concerns regarding danger to the public and unlikely to appear. They\u2019ve been stated many times\u201d; ibid<\/em> (Evidence, Record of Hearing for Detention Review on 12 November 2015): \u201cWith respect to finding of danger to the public I note that you have approximately 17 convictions and they are fairly serious … Today though I do find that the concerns that have been raised by my colleagues at your previous detention reviews still remain valid\u201d; ibid<\/em> (Evidence, Record of Decision in Detention Review on 15 March 2016): \u201cSo Mr.\u00a0Brown\u2019s detention will continue today on both statutory grounds. There definitely did not appear to be any new significant changes in the circumstances of his case that would make me come to a different decision that I myself have or that my colleagues have so far at detention review hearings.\u201d<\/p>\n

[24]<\/a> \u00a0 Cf<\/em> Chaudhary<\/em> ONCA, supra <\/em>note\u00a05 at\u00a0para\u00a081.<\/p>\n

[25]<\/a> \u00a0 Many of the deficiencies discussed in the following sections were detailed in the recently released report that contains a summary of the findings of an independent auditor who reviewed over 300 detention review hearings before the Immigration Division. See Immigration and Refugee Board of Canada, Report of the 2017\/2018 External Audit (Detention) <\/em>(20 July 2018), available online: <https:\/\/irb-cisr.gc.ca\/en\/transparency\/reviews-audit-evaluations\/Pages\/ID-external-audit-1718.aspx>, archived at https:\/\/perma.cc\/
\nFJ66-XLK9.<\/p>\n

[26]<\/a> \u00a0 The standard practice is described in Brown <\/em>FC supra<\/em> note\u00a023 (Cross-examination of Parminder Singh on 13 March 2017 at paras\u00a030\u201334; Affidavit of Parminder Singh sworn on 10 February 2017 at para\u00a07). For discussion, see Brown<\/em> FC, supra <\/em>note\u00a023\u00a0at\u00a0paras\u00a0121\u201328.<\/p>\n

[27]<\/a> \u00a0 <\/em>Ibid<\/em>. See also Gros & van Groll, supra<\/em> note 3\u00a0at\u00a056; Kennedy, \u201cCaged by Canada\u201d, supra <\/em>note 3; Citizenship and Immigration Canada, ENF 3: Admissibility, Hearings and Detention Review Proceedings <\/em>(2015), s\u00a06.5; Citizenship and Immigration Canada, ENF 20: Detention<\/em> (2015), ss\u00a05.5, 6. See also IRPA<\/em>, supra<\/em> note\u00a09,\u00a0173(d), which authorizes the Immigration Division to accept hearsay evidence, but does not expressly state that hearsay evidence can form the basis of a decision to detain.<\/p>\n

[28]<\/a> \u00a0 See e.g. R\u00a0v F (WJ)<\/em>, [1999] 3 SCR\u00a0569 at\u00a0para\u00a07, 178 DLR (4th)\u00a053.<\/p>\n

[29]<\/a> \u00a0 See R\u00a0v\u00a0Stinchcombe<\/em>, [1991] 3 SCR\u00a0326 at\u00a0343\u201344, 68 CCC (3d)\u00a01; R\u00a0v\u00a0O\u2019Connor<\/em>, [1995] 4 SCR\u00a0411 at paras\u00a073\u201374,\u00a0100, 130 DLR (4th)\u00a0235. In other contexts, see e.g. Mental Health Act<\/em>,\u00a0RSO 1990, c\u00a0M7,\u00a0s\u00a035(3); Corrections and Conditional Release Act<\/em>, SC 1992, c 20, s\u00a0141.<\/p>\n

[30]<\/a> \u00a0 <\/strong>SOR\/2002-229, s\u00a026.<\/p>\n

[31]<\/a> \u00a0 See Brown<\/em> FC, supra<\/em> note\u00a023 (the Federal Court observed that Mr.\u00a0Brown raised \u201clegitimate concerns about the timeliness and quality of pre-hearing disclosure\u201d at para\u00a0127). In particular, a Hearings Officer with the CBSA admitted that disclosure was \u201cnot always provided in advance\u201d to the detainee and documents were \u201csometimes produced only at the detention review\u201d (ibid <\/em>at para\u00a0126). The officer further acknowledged that \u201cdetainees and counsel may not have an adequate opportunity to request documents or provide rebuttal\u201d (ibid<\/em>). The Federal Court ultimately found that any failure by the government in its disclosure practises was an issue of maladministration and not an indication that the statutory scheme is unconstitutional (ibid <\/em>at para\u00a0127). The fact remains, however, that the legislative regime does not mandate advance disclosure. Moreover, in practice, Hearings Officers are not assigned until the day before the hearing, which precludes meaningful advanced disclosure. See Brown<\/em> FC, supra <\/em>note\u00a023 (Cross-examination of Parminder Singh on 13 March 2017 at paras\u00a0140, 432\u2013446). Even subsequent to the Brown<\/em> FC judgment, the CBSA appears to have taken no action to ensure timely disclosure. See Dadzie v Canada<\/em>, Toronto\u00a0CR-17-9-196-140 (Ont Sup Ct) (Cross-examination of Merfed Douri on 29 September 2017 at paras\u00a054\u201366).<\/p>\n

[32]<\/a> \u00a0 See Canada (Minister of Citizenship and Immigration) v Thanabalasingham<\/em>,\u00a02004 FCA\u00a04 at\u00a0para\u00a010, 236 DLR (4th) 329 [Thanabalasingham<\/em>].<\/p>\n

[33]<\/a> \u00a0 Supra<\/em> note\u00a05 at\u00a0paras\u00a088\u201390. The court noted that, as the length of the detention increases, it becomes increasingly difficult for the detainee to find a \u201cclear and compelling reason\u201d for the Immigration Division to depart from prior decision and order release or to argue that an additional 30 days spent in detention since the last review constitutes a \u201cclear and compelling reason\u201d to depart from an earlier decision, and cited statistical evidence demonstrative of this problematic phenomenon. In the recent judgment in Brown <\/em>FC, supra<\/em> note\u00a023 at\u00a0paras\u00a0116\u201320, the Federal Court noted the criticism levelled in Chaudhary<\/em>, but affirmed Thanabalasingham<\/em> without further analysis.<\/p>\n

[34]<\/a> \u00a0 See the detention review decisions in Brown <\/em>FC, supra <\/em>note\u00a023. See also Gros & van Groll, supra<\/em> note 3\u00a0at\u00a027\u201328.<\/p>\n

[35]<\/a> \u00a0 CBSA Manager of the Detentions Unit in the Inland Enforcement Program Management Division John Helsdon confirmed this position in Brown <\/em>FC, supra<\/em> note\u00a023 (Affidavit of John Helsdon sworn on 28 March 2017 at para\u00a06) and in Ali<\/em>, supra <\/em>note\u00a03 (Cross-examination of John Helsdon on 7 March 2017 at paras\u00a092\u2013103). On the discretion afforded to Canada\u2019s immigration machinery, see Pratt, \u201cDunking the Doughnut\u201d, supra<\/em> note\u00a06.<\/p>\n

[36]<\/a> \u00a0 See IRPA<\/em>, supra <\/em>note\u00a09, s\u00a058(3); Brown<\/em> FC, supra <\/em>note\u00a0<\/em>23 at\u00a0para\u00a0129,\u00a0citing Canada (Minister of Citizenship and Immigration) v Jama<\/em>, 2007 CanLII\u00a012831 (Can IRB); Toure v\u00a0Canada (Minister of Public Safety)<\/em>, 2017 ONSC\u00a05878 at\u00a0paras\u00a071\u201372, [2017] OJ No\u00a05295 (QL) [Toure <\/em>SC]. See also Immigration and Refugee Board of Canada, Guideline 2: Guideline on Detention<\/em> (2013), s\u00a01.1.4, which describes the powers of Members of the Immigration Division to be limited to either order continued detention or release. In Toure v Canada (Public Safety & Emergency Preparedness)<\/em>, 2018 ONCA\u00a0681 at paras\u00a071\u201372, 2018 CarswellOnt\u00a013232 (WL Can) [Toure <\/em>ONCA], the Court of Appeal for Ontario found that a detainee\u2019s ability to lodge a complaint to the CBSA about conditions of detention was sufficient. This is to be contrasted with what was established in PS v Ontario<\/em>, 2014 ONCA\u00a0900\u00a0at para\u00a092, 123 OR (3d)\u00a0651, which held that the body with jurisdiction to review non-punitive detention must \u201chave the procedures and powers necessary to render a decision that is minimally restrictive on liberty in light of the circumstances necessitating the detention.\u201d For more discussion on this point, see Gros & van Groll, supra<\/em> note\u00a03 at\u00a088.<\/p>\n

[37]<\/a> \u00a0 See Brown <\/em>FC, supra<\/em> note\u00a023 (Affidavit of John Helsdon sworn on 28 March 2017 at paras\u00a07\u201314); Ali<\/em>, supra <\/em>note\u00a03 (Affidavit of John Helsdon sworn on 28 March 2017 at paras\u00a07\u201312). For example, until recently, the IHC in Laval would accept detainees with a criminal record, whereas the IHC in Toronto would not do so because its insurance policy precluded it. See Ali<\/em>, supra<\/em> note\u00a03 (Cross-examination of John Helsdon on 7 March 2017 at paras\u00a0106\u201307).<\/p>\n

[38]<\/a> \u00a0 See Standard Minimum Rules for the Treatment of Prisoners<\/em>, UNCPCTO, 1st Sess, Annex, Agenda Item 1 UN Doc A\/Conf\/6\/1, (1956) 67\u00a0at\u00a068\u00a0(Rule 8); United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)<\/em>, GA Res 70\/175, UNGAOR, 70th Sess, Sup No 49, UN Doc A\/70\/49 (2015) 806 at\u00a0813, 832 (Rules\u00a011, 122); Canadian Red Cross, \u201cAnnual Report on Detention Monitoring Activities in Canada\u201d (2012\u20132013) at\u00a038ff, online: Global News <https:\/\/shawglobalnews.
\nfiles.wordpress.com\/2014\/11\/red-cross-reports-on-canada-s-immigration-detention-system.pdf>; UNHCR, Guidelines on Applicable Criteria and Standards relating to the Detention\u00a0of\u00a0Asylum-Seekers<\/em>\u00a0(February\u00a01999) at\u00a09\u201310 (Guideline\u00a010),\u00a0online: <http:\/\/
\nwww.unhcr.org\/protection\/globalconsult\/3bd036a74\/unhcr-revised-guidelines-applicable-criteria-standards-relating-detention>, archived at https:\/\/perma.cc\/46RE-GCW5; International Covenant on Civil and Political Rights<\/em>, 19 December 1966, 999 UNTS\u00a0171, art\u00a010(2) (entered into force 23 March 1976, accession by Canada 19 May 1976, Can TS 1976 No 47) [ICCPR<\/em>]; Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment<\/em>, GA Res 43\/173, UNGAOR, 43rd Sess, Supp No 49, UN Doc A\/43\/49 (1988)\u00a0297\u00a0at\u00a0298\u00a0(Principle 8). For EU rules, see EC, Commission<\/em> Directive 2008\/115\/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals<\/em>, [2008] OJ, L 348\/98, art\u00a016(1) [Directive 2008<\/em>].<\/p>\n

[39]<\/a> \u00a0 See the sources cited in supra<\/em> note\u00a03.<\/p>\n

[40]<\/a> \u00a0 See Brown<\/em> FC, supra<\/em> note\u00a023 (Affidavit of John Helsdon sworn on 28 March 2017 at para\u00a07).<\/p>\n

[41]<\/a> \u00a0 This is expressly stated in the memorandum of understanding between the CBSA and the Ontario Ministry of Community Safety and Correctional Services regarding immigration detainees that was executed on 21 January 2015. See Ali<\/em>, supra <\/em>note\u00a03 (Evidence, Agreement Between Canada and Ontario respecting detention of persons detained under the Immigration and Refugee Protection Act (IRPA)<\/em> executed on 21 January 2015, s\u00a02.17) [CBSA-Ontario MOU]. This was confirmed Brown <\/em>FC, supra<\/em> note\u00a023 (Cross-examination of John Helsdon on 7 March 2017 at paras\u00a036\u201337).<\/p>\n

[42]<\/a> \u00a0 See e.g. R v Jordan,\u00a0<\/em>[2002] OJ No\u00a05250 (QL) at paras\u00a04\u20135, 9 (Ont Sup Ct); Ogiamien v\u00a0Ontario<\/em>, 2016 ONSC\u00a03080, 132 OR (3d)\u00a0176 [Ogiamien <\/em>ONSC] (the treatment of Mr. Ogiamien, an immigration detainee, at Maplehurst Correctional Complex was held to be \u201cso excessive as to outrage standards of decency; was disproportionate; and was degrading\u201d at para 268), aff\u2019d 2017 ONCA\u00a0667; Ali<\/em>, supra<\/em> note\u00a03 at paras\u00a035\u201337; Toure <\/em>SC, supra<\/em> note\u00a036 at para\u00a072; Ombudsman Ontario, Out of Oversight,<\/em> Out of Mind<\/em> (Office of the Ombudsman of Ontario, 2017) at\u00a013, online: <https:\/\/www.ombudsman.on.ca\/
\nFiles\/sitemedia\/Documents\/Resources\/Reports\/SORT\/Out_of_Oversight-EN-accessible.
\npdf>; Kristin Rushowy, \u201c\u2018Serious Problems\u2019 in Use of Segregation in Prisons, Ontario Ombudsman Reports\u201d, The Toronto Star<\/em> (20 April 2017), online: <https:\/\/www.thestar.
\ncom>, archived at https:\/\/perma.cc\/Y3KZ-VVBT; Kennedy, \u201cCaged by Canada\u201d, supra <\/em>note\u00a03.<\/p>\n

[43]<\/a> \u00a0 See Brown<\/em>, supra<\/em> note\u00a023 (Cross-examination of John Helsdon on 7 March 2017 at paras\u00a094\u201399, 126\u201329); CBSA-Ontario MOU, supra<\/em> note\u00a041, s\u00a04.<\/p>\n

[44]<\/a> \u00a0 This is the case even though only about 6% of detainees are held on the ground that they constitute a danger to the public. See Brown<\/em> FC, supra<\/em> note\u00a023 (Cross-examination of John Helsdon on 7 March 2017 at paras\u00a094\u201399, 126\u201329). For judicial critiques of the unjustified overuse of provincial jails, see e.g. Ali, supra<\/em> note 3 at paras\u00a035\u201336; Toure <\/em>SC, supra <\/em>note 36 at\u00a0paras\u00a079\u201391. On the criminalization of migrants, known as \u201ccrimmigration\u201d, and rising trends in the imprisonment of migrants, see e.g. Bosworth & Turnbull, supra<\/em> note\u00a01\u00a0at 97; Cleveland, supra <\/em>note 2 at\u00a084; Juliet Stumpf, \u201cThe Crimmigration Crisis: Immigrants, Crime, and Sovereign Power\u201d (2006) 56:2 Am U L Rev\u00a0367; Matthew B Flynn, \u201cFrom Bare Life<\/em> to Bureaucratic Capitalism: Analyzing the Growth of the Immigration Detention Industry as a Complex Organization\u201d (2016) 8:1 Contemporary Readings in L & Social Justice\u00a070.<\/p>\n

[45]<\/a> \u00a0 Supra<\/em> note\u00a016 at\u00a0231.<\/p>\n

[46]<\/a> \u00a0 Ibid <\/em>at\u00a0229.<\/p>\n

[47]<\/a> \u00a0 Ibid<\/em>.<\/p>\n

[48]<\/a> \u00a0 Ibid<\/em> at\u00a0230\u201332.<\/p>\n

[49]<\/a> \u00a0 In Charkaoui\u00a0v\u00a0Canada (Citizenship and Immigration)<\/em>, 2007 SCC\u00a09 at paras\u00a0112\u201320, [2007] 1 SCR\u00a0350 [Charkaoui<\/em>], the Supreme Court reaffirmed the importance of these factors.<\/p>\n

[50]<\/a> \u00a0 See Canada (Minister of Public Safety and Emergency Preparedness) v Okwerom, <\/em>2015 FC\u00a0433 at para\u00a08, 2015 CarswellNat\u00a01060 (WL Can) [Okwerom<\/em>]; Canada (Minister of Citizenship and Immigration) v\u00a0B147, <\/em>2012 FC\u00a0655 at paras\u00a053\u201356, 412 FTR\u00a0203 [B147<\/em>].<\/p>\n

[51]<\/a> \u00a0 See e.g. Bruzzese v Canada (Public Safety and Emergency Preparedness<\/em>), 2014 FC\u00a0230 at paras\u00a083, 87, [2015] 2 FCR\u00a0693. This was the case, for example, in Ali<\/em>, supra<\/em> note\u00a03 at para\u00a015, and in Brown <\/em>FC, supra<\/em> note\u00a023. The Immigration Division reviews at issue in Brown <\/em>(Immigration Division file No 0003-A4-01743) include the following observations by the decision-maker. From the 10 December 2012 review: \u201cI am satisfied that you are both a danger to the public and unlikely to appear for removal for the same reasons [y]ou have already been given numerous times[.] I am sure you do not need that repeated to you.\u201d From the 12 February 2014 review: \u201cIn the matter of danger to the public, again I uphold the prior decisions … You also have some serious convictions of recent vintage from May of 2011.\u201d From the 2 July 2014 review: \u201cI won\u2019t go into detail on the concerns regarding danger to the public and unlikely to appear. They\u2019ve been stated many times.\u201d From the 12 November 2015 review: \u201cWith respect to finding of danger to the public I note that you have approximately 17 convictions and they are fairly serious … Today though I do find that the concerns that have been raised by my colleagues at your previous detention reviews still remain valid.\u201d From the 15 March 2016 review: \u201cSo Mr.\u00a0Brown\u2019s detention will continue today on both statutory grounds. There definitely did not appear to be any new significant changes in the circumstances of his case that would make me come to a different decision that I myself have or that my colleagues have so far at detention review hearings.\u201d<\/p>\n

[52]<\/a> \u00a0 A discussion of immigration detention regimes in other jurisdictions is beyond the scope of this article. It is to be noted, however, that the governing instrument in the European Union, Directive 2008<\/em>, supra<\/em> note\u00a038, Preamble, para\u00a016, arts\u00a015(5)\u2013(6), provide that detention for immigration purposes can only be used where less coercive measures would not be sufficient, and places a hard limit on the duration of detention for removal\u20146 months in normal circumstances, which can be extended to 18 months where removal is delayed because of non-cooperation by either the detainee or a third state. The European Court of Justice has interpreted the durational cap strictly\u201418 months is the hard limit even where there are concerns over a danger to the public. See Mahdi<\/em>, C-146\/14 PPU at paras\u00a068\u201371, ECLI:EU:C:2014:1320. In the UK there are well-established common law principles (the \u201cHardial Singh Principles\u201d) that limit detention to the \u201cperiod that is reasonable in all the circumstances\u201d and mandate release where \u201cit becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period.\u201d See Lumba v Secretary of State for the Home Department<\/em>, [2011] UKSC 12 at para 22, [2012] 1 AC 245. See also R (on the Application of I) v Secretary of State for the Home Department<\/em>, [2002] EWCA Civ\u00a0888 at para\u00a047, [2003] INLR\u00a0196. The law in the United States is in a state of flux. In 2001, the Supreme Court of the United States (SCOTUS) held that, in some circumstances, detention in excess of 6 months cannot be justified where there is not a reasonable prospect of removal. See Zadvydas<\/em>, supra<\/em> note\u00a07 at\u00a0698\u2013701. On Zadvydas, <\/em>see T Alexander Aleinikoff, \u201cDetaining Plenary Power: The Meaning and Impact of Zadvydas v Davis<\/em>\u201d (2002) 16:2 Geo Immigr LJ\u00a0365; David A Martin, \u201cGraduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v Davis<\/em>\u201d [2001] Sup Ct Rev\u00a047. On more recent developments, see Christina Elefteriades Haines & Anil Kalhan, \u201cDetention of Asylum Seekers en Masse: Immigration Detention in the United States\u201d in Nethery & Silverman supra <\/em>note\u00a01, 69; Mary Holper, \u201cThe Beast of Burden in Immigration Bond Hearings\u201d (2016) 67:1 Case W Res L Rev\u00a0<\/em>75. In Jennings v Rodriguez<\/em>, 583 US\u00a0(2018), SCOTUS recently held that the relevant statutory provision did not itself require that immigration detainees be granted bond hearings every six months, and that the court below had erred in interpreting it as such. The majority decision, however, declined to rule on the constitutional issue, and remanded the matter back to the 9th<\/sup> Circuit Court with the instruction to address any constitutional challenge to the statute, and that matter remains pending at the time of writing.<\/p>\n

[53]<\/a> \u00a0 See Working Group on Arbitrary Detention, Opinions Adopted by the Working Group of Arbitrary Detention at its Sixty-ninth Session<\/em>, No 15\/2014 (Canada)<\/em>, UNHRCOR, 69th Sess, UN Doc A\/HRC\/WGAD\/2014\/15 (2014)\u00a0at\u00a0para\u00a023. See also Concluding Observations on the Sixth Periodic Report of Canada<\/em>, UN Human Rights Committee, 2015, UN Doc CCPR\/C\/CAN\/CO\/6\u00a0at\u00a0paras\u00a012\u201314; ICCPR, supra <\/em>note\u00a038,\u00a0art 9(1). The same principle has been affirmed in other opinions of the working group. See Working Group on Arbitrary Detention, Opinions Adopted by the Working Group on Arbitrary Detention at its Sixty-second Session, No 56\/2011 (Lebanon)<\/em>, UNHRCOR, 62nd Sess, UN Doc A\/HRC\/WGAD\/2011\/56 (2011) at para\u00a013; Working Group on Arbitrary Detention, Revised Deliberation No 5 on Deprivation of Liberty of Migrants (Advance Edited Version)<\/em>, UNHRCOR, online: <http:\/\/www.ohchr.org\/Documents\/Issues\/Detention\/RevisedDeliberation_AdvanceEditedVersion.pdf>.<\/p>\n

[54]<\/a> \u00a0 Supra<\/em> note\u00a05 at\u00a0para\u00a086.<\/p>\n

[55]<\/a> \u00a0 Conversely, the Division is not required to first find that there is a reasonable prospect of removal before ordering continued detention.<\/p>\n

[56]<\/a> \u00a0 See supra <\/em>note\u00a016 and accompanying text.<\/p>\n

[57]<\/a> \u00a0 Supra <\/em>note\u00a049.<\/p>\n

[58]<\/a> \u00a0 Ibid<\/em> at para\u00a096. Furthermore, the Court held that \u201conerous conditions of release that seriously restrict a person\u2019s liberty without affording an opportunity to challenge the restrictions\u201d may also support the argument that the detention is cruel or unusual (ibid<\/em>).<\/p>\n

[59]<\/a> \u00a0 See supra <\/em>note\u00a016. These are the factors now codified in IRPR<\/em>, supra <\/em>note\u00a014, s\u00a0248.<\/p>\n

[60]<\/a> \u00a0 Charkaoui<\/em>, supra <\/em>note\u00a049 at para\u00a0107.<\/p>\n

[61]<\/a> \u00a0 The differences between the security certificate review detention process and the detention review process before the Immigration Division are stark. First, unlike proceedings before the Immigration Division, security certificate review is conducted by judges who, according to the Court in Charkaoui<\/em>, supra <\/em>note\u00a049 at para\u00a039, adopt a rigorous and non-deferential approach to the Minister\u2019s case. For discussions of the perfunctory approach often adopted by the Immigration Division, see Gros & van Groll, supra<\/em> note\u00a03 at\u00a027\u201328; Scotland v Canada (AG)<\/em>, 2017 ONSC\u00a04850 at paras\u00a061\u201363, 2017 CarswellOnt\u00a012509 (WL Can) [Scotland<\/em>]. Second, prior decisions are not binding in the way that they are in the Immigration Division (see supra <\/em>note\u00a032 and surrounding text). Third, the Minister is actually under a duty of timely disclosure and is required to present evidence in support of its position. There is extensive literature on Charkaoui <\/em>and the security certificate regime. See e.g. Rayner Thwaites, \u201cProcess and Substance: Charkaoui<\/em> I in the Light of Subsequent Development\u201d (2011) 62 UNBLJ\u00a013 [Thwaites, \u201cProcess and Substance\u201d]; Catherine Dauvergne, \u201cSecurity and Migration in the Less Brave New World\u201d (2007) 16:4 Soc & Leg Stud\u00a0<\/em>533; Colleen Bell, \u201cSubject to Exception: Security Certificates, National Security and Canada\u2019s Role in the \u2018War on Terror\u2019\u201d (2006) 21:1 CJLS\u00a0<\/em>63; Thwaites, Liberty of Non-Citizens<\/em>, supra<\/em> note\u00a02 at\u00a0237ff.<\/p>\n

[62]<\/a> \u00a0 See e.g. Canada (Minister of Citizenship and Immigration) v Li<\/em>, 2009 FCA\u00a085\u00a0at para\u00a041, [2010] 2 FCR\u00a0433; Brown v Canada (Ministry of Public Safety and Emergency Preparedness)<\/em>, 2016 ONSC\u00a07760 at para\u00a099, 371 CRR (2d)\u00a057\u00a0aff\u2019d 2018 ONCA\u00a014, 2018 CarswellOnt\u00a0144 (WL Can) [Brown <\/em>ONSC].<\/p>\n

[63]<\/a> \u00a0 Supra<\/em> note\u00a023.<\/p>\n

[64]<\/a> \u00a0 Ibid <\/em>at para\u00a0120, where the Federal Court found that if the Immigration Division does not respect the standards it is supposed to follow in practice, \u201cthis is a problem of maladministration, not an indication that the statutory scheme is itself unconstitutional.\u201d<\/p>\n

[65]<\/a> \u00a0 Ibid<\/em> at\u00a0para\u00a0159.<\/p>\n

[66]<\/a> \u00a0 Supra<\/em> note\u00a049 at paras\u00a0124\u201330, citing A (FC) v Secretary of State for the Home Department<\/em>, [2004] UKHL\u00a056, [2005] 2 AC\u00a068.<\/p>\n

[67]<\/a> \u00a0 Supra <\/em>note\u00a023 at\u00a0para\u00a0159.<\/p>\n

[68]<\/a> \u00a0 Thwaites, \u201cProcess and Substance\u201d, supra <\/em>note\u00a061 at\u00a033. The language of \u201cintact but uncertain\u201d is borrowed from Kent Roach, \u201cCharkaoui<\/em> and Bill\u00a0C-3: Some Implications for Anti-Terrorism Policy and Dialogue between Courts and Legislatures\u201d (2008) 42 SCLR (2d)\u00a0281 at\u00a0307.<\/p>\n

[69]<\/a> \u00a0 Brown <\/em>FC, supra<\/em> note\u00a023 at\u00a0paras\u00a0113(d),\u00a0152.<\/p>\n

[70]<\/a> \u00a0 Khela, supra <\/em>note\u00a09 at para\u00a030.<\/p>\n

[71]<\/a> \u00a0 Ibid<\/em> at para\u00a029.<\/p>\n

[72]<\/a> \u00a0 Peiroo<\/em>, supra<\/em> note\u00a05 at\u00a0261.<\/p>\n

[73]<\/a> \u00a0 Ibid <\/em>at\u00a0256\u201357.<\/p>\n

[74]<\/a> \u00a0 Ibid<\/em>.<\/p>\n

[75]<\/a> \u00a0 Ibid<\/em> at\u00a0257.<\/em><\/p>\n

[76]<\/a> \u00a0 Ibid<\/em>.<\/p>\n

[77]<\/a> \u00a0 Ibid<\/em> at\u00a0258.<\/p>\n

[78]<\/a> \u00a0 Ibid <\/em>at\u00a0262. It bears emphasis that it has never been contested that superior courts have jurisdiction to hear habeas corpus<\/em> applications by immigration detainees, the issue has always been one of whether they should exercise their discretion<\/em> to decline to hear them on grounds that the Federal Court is a more appropriate forum.<\/p>\n

[79]<\/a> \u00a0 [1994] 2 SCR\u00a0394 at\u00a0405, 116 DLR (4th)\u00a061 [Reza<\/em>].<\/p>\n

[80]<\/a> \u00a0 Ibid<\/em> at\u00a0397\u201398.<\/p>\n

[81]<\/a> \u00a0 Ibid<\/em> at\u00a0402. Mr. Reza had applied for leave to the Federal Court of Appeal to challenge the deportation order, but it was rejected, as were his other attempts, including a humanitarian and compassionate grounds application (ibid <\/em>at\u00a0398). It was only after this that he brought an application to the Ontario Court (General Division) for a declaration that the \u201ccredible basis\u201d scheme, among other issues, was violated the Charter <\/em>(ibid <\/em>at\u00a0398).<\/p>\n

[82]<\/a> \u00a0 2005 SCC\u00a082, [2005] 3 SCR\u00a0809 [May<\/em>].<\/p>\n

[83]<\/a> \u00a0 Ibid<\/em> at para\u00a039.<\/p>\n

[84]<\/a> \u00a0 Section\u00a010(c) of the Charter<\/em>, supra<\/em> note\u00a04, expressly provides for the right of \u201ceveryone\u201d who is \u201cdetained\u201d to have the validity of their detention \u201cdetermined by way of habeas corpus<\/em> and to be released if the detention is now lawful\u201d.<\/p>\n

[85]<\/a> \u00a0 R v Pacificador<\/em>, 1998 CarswellOnt\u00a0743 (WL Can) at para\u00a07, [1998] OJ No\u00a0658 (QL); Baroud v Canada (Minister of Citizenship and Immigration)<\/em>, 22 OR (3d)\u00a0255, 121 DLR (4th)\u00a0308 [Baroud<\/em>]; Zundel v R<\/em>, 2003 CanLII\u00a023552 at para\u00a09, 127 ACWS (3d)\u00a0116 (ON SC).<\/p>\n

[86]<\/a> \u00a0 See Kippax v Canada (AG)<\/em>, 2014 ONSC\u00a03685 at paras\u00a013\u201316, 114 WCB (2d)\u00a0318; Sancho c Quebec (Directeur de l\u2019\u00e9tablissement p\u00e9nitencier \u00e0 Rivi\u00e8re-des-Prairies<\/em>), 2008 QCCS\u00a05346 at paras\u00a03\u20136, 2008 CarswellQue\u00a011027 (WL Can) [Sancho<\/em>]; Apaolaza-Sancho c Quebec (Director of \u00c9tablissement de d\u00e9tention de Rivi\u00e8re-des-Prairies)<\/em>, 2008 QCCA\u00a01542, [2008] QJ No\u00a07743 (QL) [Apaolaza-Sancho<\/em>]; Chaudhary v\u00a0Canada<\/em>, 2015 ONSC\u00a01503 at para\u00a026, [2015] OJ No\u00a01055 (QL) [Chaudhary <\/em>ONSC].<\/p>\n

[87]<\/a> \u00a0 The stilted logic of applying the Peiroo<\/em> exception when the remedy sought is release from detention was acknowledged by the Court of Appeal for Ontario in Baroud, supra<\/em> note\u00a085, where the court noted that that the substantive remedies sought in both Peiroo <\/em>and Reza<\/em> were in fact available in the Federal Court, and that this was a relevant ground for distinguishing such cases from a situation where the remedy sought was release. It would be another twenty years, however, before the same court expressly recognized, in Chaudhary<\/em> ONCA, supra <\/em>note\u00a05, that the Peiroo<\/em> exception is simply inapplicable where the issue is the legality of a lengthy detention.<\/p>\n

[88]<\/a> \u00a0 See Anne-Marie Yvon, \u201cCanada: d\u00e9tention arbitraire de sans-papiers\u201d<\/em>, Radio Canada International <\/em>(10 June 2014), online: <www.rcinet.ca>, archived at https:\/\/perma.cc\/
\n5KLA-GY42; Doug Hempstead, \u201cFree Jailed Immigrants, Group Tells Feds\u201d, The Ottawa Sun <\/em>(15 June 2014), online: <ottawasun.com>, archived at https:\/\/perma.cc\/D9YP-SP5Q; Jessica Nyznik, \u201cLindsay\u00a0Detainees\u00a0on\u00a0Hunger Strike\u201d, The Peterborough Examiner <\/em>(19 June 2015), online: <www.thepeterboroughexaminer.com>, archived at https:\/\/perma.cc\/S43L-4YKK. On resistance inside and outside of sites of immigration detention, see Alessandro Spena, Letter to the Editor, \u201cResisting Immigration Detention\u201d (2016) 18:2 Eur J Migr & L\u00a0<\/em>201; Rachel Kronick et al, \u201cInternational Solidarity to End Immigration Detention\u201d (2017) 389:10068 Lancet\u00a0<\/em>501.<\/p>\n

[89]<\/a> \u00a0 Chaudhary <\/em>ONSC, supra <\/em>note\u00a086 at para\u00a026.<\/p>\n

[90]<\/a> \u00a0 Chaudhary<\/em> ONCA, supra<\/em> note\u00a05 at\u00a0para\u00a081.<\/p>\n

[91]<\/a> \u00a0 For an incisive criticism of the Supreme Court\u2019s failure in Charkaoui<\/em> to provide content to the norms pronounced, see Thwaites, \u201cProcess and Substance\u201d, supra<\/em> note\u00a061 at\u00a018, 33.<\/p>\n

[92]<\/a> \u00a0 See e.g. Baroud, supra <\/em>note\u00a085; Eze Nelson c\u00a0Canada (Ministre de la s\u00e9curit\u00e9 publique et protection civile)<\/em>, 2006 QCCS\u00a03075, [2006] JQ no\u00a05404 (QL);\u00a0Sancho, supra <\/em>note\u00a086; Apaolaza-Sancho<\/em>, supra<\/em> note\u00a086.<\/p>\n

[93]<\/a> \u00a0 Chaudhary<\/em> ONCA, supra<\/em> note\u00a05 at paras\u00a054,\u00a071. Notably, the Court of Appeal for Ontario in Baroud, supra <\/em>note\u00a085 had already noted in 1995 that the nature of the remedy sought (release from detention versus reversing some other immigration decision) could distinguish Peiroo <\/em>and Reza<\/em>, but none of the subsequent judgments paid heed. Baroud <\/em>was pleaded two decades earlier by Barbara Jackman, the same counsel as in Chaudhary<\/em>.<\/p>\n

[94]<\/a> \u00a0 Chaudhary<\/em> ONCA, supra <\/em>note\u00a05 at\u00a0para\u00a071.<\/p>\n

[95]<\/a> \u00a0 Ibid<\/em> at\u00a0paras\u00a060,\u00a063.<\/p>\n

[96]<\/a> \u00a0 Ibid<\/em> at\u00a0para\u00a072.<\/p>\n

[97]<\/a> \u00a0 May<\/em>, supra<\/em> note\u00a082 at paras\u00a035, 44; Khela<\/em>, supra <\/em>note\u00a09 at\u00a0para\u00a055ff.<\/p>\n

[98]<\/a> \u00a0 Chaudhary<\/em> ONCA, supra<\/em> note\u00a05 at\u00a0para\u00a079. This was further explained in Ogiamien <\/em>ONCA, supra<\/em> note\u00a05 at paras\u00a015\u201318.<\/p>\n

[99]<\/a> \u00a0 Chaudhary<\/em> ONCA, supra<\/em> note\u00a05 at\u00a0para\u00a081.<\/p>\n

[100]<\/a> Ibid <\/em>at\u00a0para\u00a082.<\/p>\n

[101]<\/a> Ibid<\/em> at\u00a0paras\u00a087\u201388. See also supra<\/em> notes\u00a029\u201330 and accompanying text.<\/p>\n

[102]<\/a> Chaudhary <\/em>ONCA, supra<\/em> note\u00a05 at\u00a0paras\u00a086,\u00a091.<\/p>\n

[103]<\/a> Ibid <\/em>at\u00a0paras\u00a092\u201396.<\/p>\n

[104]<\/a> Ibid<\/em> at para\u00a094.<\/p>\n

[105]<\/a> Ibid<\/em> at paras\u00a095\u201396. For two examples of this deferential approach see, among many, see Khaira v\u00a0Canada (Minister of Citizenship and Immigration)<\/em>, 2004 FC\u00a062 at para\u00a09, 43 Imm LR (3d)\u00a072; Ahmed v\u00a0Canada (Minister of Citizenship and Immigration)<\/em>, 2015 FC\u00a0876 at para\u00a020, [2015] FCJ No\u00a0944 (QL) [Ahmed<\/em> FC\u00a0876]. Even in cases where the court has expressly averred to the constitutionality of the detention, it has deferred to the Immigration Division\u2019s weighing of the regulatory factors. For example, in Ahmed<\/em> FC 876, Justice Fothergill said indefiniteness was a section 7 issue, but the Immigration Division properly weighed it against other factors (ibid <\/em>at paras\u00a027,\u00a035). The UK courts have also rejected the notion that any deference is owed to the administrative decision where the legality of detention is challenged on a habeas corpus<\/em> application. See Farbey, Sharpe & Atrill, supra<\/em> note 12\u00a0at\u00a0139, n 85.<\/p>\n

[106]<\/a> See Gerami, supra <\/em>note\u00a02 at\u00a0217\u201328; Ahmed v Canada (Minister of Citizenship and Immigration),<\/em>\u00a02015 FC\u00a0792 at para\u00a014, 36 Imm LR (4th)\u00a0235; Ahmed<\/em> FC\u00a0876, supra<\/em> note\u00a0105 at paras\u00a023\u201324;\u00a0Ahmed v Canada (Minister of <\/em>Citizenship and Immigration)<\/em>, 2015 FC\u00a01012 at para\u00a020, 2015 CarswellNat\u00a04788 (WL Can). While it has been suggested that the court could direct the Immigration Division to order release upon redetermination of the matter (ibid <\/em>at para 18), this would be highly exceptional and the authors are not aware of any case in which this has been done.<\/p>\n

[107]<\/a> Legal Aid Ontario has changed their policy to fund applications by immigration detainees to exercise their rights for release at the Superior Court. See Petra Molnar\u00a0&\u00a0Stephanie J Silverman, \u201cCracks Where the Light Gets in: Recent Legal Breakthroughs in Detention and Crimmigration in Canada\u201d,\u00a0Metropolitics<\/em> (7 December 2016), online: <www.metropolitiques.eu>, archived at https:\/\/perma.cc\/V682-38KX.<\/p>\n

[108]<\/a> See Chhina<\/em>, supra<\/em> note\u00a08.<\/p>\n

[109]<\/a> 2016 ONSC\u00a04126 at paras\u00a095\u201396, [2016] OJ No\u00a04002 (QL).<\/p>\n

[110]<\/a> Ogiamien <\/em>ONCA, supra <\/em>note\u00a05.<\/p>\n

[111]<\/a> Brown<\/em> ONSC, supra<\/em> note\u00a062 at para\u00a01.<\/p>\n

[112]<\/a> Ibid <\/em>at para\u00a099\u2013113.<\/p>\n

[113]<\/a> Ibid<\/em> at para\u00a0103. Cf<\/em> Chaudhary<\/em> ONCA, supra<\/em> note\u00a05 at paras\u00a075, 81\u201382.<\/p>\n

[114]<\/a> Brown v Canada (Minister of Public Safety & Emergency Preparedness)<\/em>, 2018 ONCA\u00a014, 420 DLR (4th)\u00a0124 [Brown <\/em>ONCA].<\/p>\n

[115]<\/a> Ibid <\/em>at paras\u00a019\u201321, 51\u201356<\/p>\n

[116]<\/a> 2016 ONSC\u00a06045 [2016] OJ No\u00a05185 (QL) [Dadzie<\/em>].<\/p>\n

[117]<\/a> Ibid<\/em> at para\u00a033.<\/p>\n

[118]<\/a> Ibid<\/em> at para\u00a035.<\/p>\n

[119]<\/a> Ibid<\/em> at para\u00a036.<\/p>\n

[120]<\/a> Ibid<\/em> at para\u00a065.<\/p>\n

[121]<\/a> Ibid<\/em> at para\u00a060.<\/p>\n

[122]<\/a> Supra<\/em> note\u00a03 at\u00a0para\u00a023.<\/p>\n

[123]<\/a> Brown <\/em>ONSC, supra<\/em> note\u00a062 at paras\u00a06, 99\u2013100.<\/p>\n

[124]<\/a> Ali<\/em>, supra<\/em> note\u00a03 at para\u00a017. The exceptional circumstances are the requirement that the detention \u201chas become unduly lengthy, and its continuing duration is uncertain\u201d (ibid<\/em>).<\/p>\n

[125]<\/a> Ibid <\/em>at para\u00a019.<\/p>\n

[126]<\/a> Ibid <\/em>at para\u00a020.<\/p>\n

[127]<\/a> Ibid<\/em> at para\u00a021.<\/p>\n

[128]<\/a> Ibid<\/em> at para\u00a022.<\/p>\n

[129]<\/a> Ibid<\/em> at para\u00a023.<\/p>\n

[130]<\/a> Ibid<\/em> at para\u00a025.<\/p>\n

[131]<\/a> Ibid<\/em> at para\u00a026.<\/p>\n

[132]<\/a> See Canada (Minister of Public Safety and Emergency Preparedness) v\u00a0Lunyamila<\/em>, 2016 FC\u00a01199 at paras\u00a095, 114, [2017] 3 FCR\u00a0428 [Lunyamila<\/em>].<\/p>\n

[133]<\/a> Supra<\/em> note\u00a03 at para\u00a026.<\/p>\n

[134]<\/a> Supra<\/em> note\u00a036 at\u00a0paras\u00a046\u201366.<\/p>\n

[135]<\/a> Ibid<\/em> at para\u00a066. In comparing Chaudhary <\/em>and Ali <\/em>with the decisions in Brown <\/em>ONSC and Toure<\/em> SC, the Ontario Superior Court\u2019s responses to long-term detention line up with the \u201crights-protecting\u201d and \u201crights-precluding\u201d model proposed in Rayner Thwaites, Liberty of Non-Citizens<\/em>, supra<\/em> note\u00a02 at\u00a015\u201316. In the \u201crights-protecting\u201d model, the focus is purely on the reasonable foreseeability of removal, and when the time the removal will be carried out cannot be identified with precision, the detention can no longer be justified by an immigration purpose. In the \u201crights-precluding\u201d model, exhibited in Brown <\/em>ONSC, <\/em>the state is given broad deference in exercising its immigration power and the notion of \u201cpending deportation\u201d is widely stretched to apply no matter what contingencies may stand in the way. For examples of the \u201crights-precluding\u201d model, see Brown <\/em>ONCA, supra <\/em>note\u00a0<\/em>62 at paras\u00a0103, 109; Brown <\/em>ONCA, supra <\/em>note\u00a0114 at paras\u00a028\u201329; and Toure<\/em> SC, supra<\/em> note\u00a036 at\u00a0paras\u00a063\u201365. In this model, the court sees its role as only to ensure the government is making bona fide <\/em>efforts. So long as the state is able to show it is acting in good faith, the detention remains lawful regardless of how practically foreseeable deportation may be, and how long the detention may still last: see Thwaites, Liberty of Non-Citizens<\/em>, supra<\/em> note\u00a02 at\u00a016\u201317.<\/p>\n

[136]<\/a> Supra<\/em> note\u00a0132.<\/p>\n

[137]<\/a> In assessing whether the application judge sanctioned indefinite detention, the Court of Appeal found that the application judge had properly considered \u201clack of cooperation\u201d as \u201can important factor\u201d in the ongoing detention and that \u201cit is a well-established principle that unexplained delay or lack of diligence should count against the offending party.\u201d Further, \u201c[n]on-cooperation is clearly a factor that may contribute to the length of someone\u2019s detention.\u201d See Toure<\/em> ONCA, supra<\/em> note\u00a036 at paras\u00a044\u201349. Despite its statement that the application judge\u2019s reasons do not sanction indefinite detention on the basis of non-cooperation, the Court of Appeal upheld the finding that the detention could not become unlawful unless it was shown that the detainee had been cooperating with removal, and thus at least implicitly endorsed the analysis of the court below.<\/p>\n

[138]<\/a> Toure <\/em>SC, supra <\/em>note\u00a036 at\u00a0paras\u00a068\u201372, citing Charkaoui, supra <\/em>note\u00a049 at para\u00a0107.<\/p>\n

[139]<\/a> Toure <\/em>SC, supra<\/em> note\u00a036 at\u00a0paras\u00a067\u201392.<\/p>\n

[140]<\/a> Toure<\/em> ONCA, supra<\/em> note\u00a036 at para\u00a070.<\/p>\n

[141]<\/a> Ibid<\/em>.<\/p>\n

[142]<\/a> Compare Brown <\/em>ONCA, supra <\/em>note\u00a0114, at paras\u00a036, 48; Toure<\/em> ONCA, supra <\/em>note\u00a036 at para\u00a070. Notably, the Court of Appeal in Toure <\/em>ONCA relies on the fact that Mr. Toure could have raised his objection to being held in a maximum-security jail with the CBSA and sought judicial review of that decision if dissatisfied in order to justify its finding that there was no section 12 breach because he failed to do so. The Court of Appeal makes no attempt to reconcile this finding with the requirement stipulated in Charkaoui<\/em> that the conditions of detention be subject to a process of ongoing<\/em> review (Charkaoui, supra<\/em> note\u00a049 at paras\u00a0107, 123) and fails to explain how the failure to lodge a formal complaint with the CBSA rendered the experience of detention any less cruel and unusual. The Court of Appeal also substitutes its view of the evidence for that of the application judge in finding, without explanation of analysis, that: \u201cWhile Mr. Toure met several criteria for placement in a lower security detention centre, he also met several criteria for placement in a more secure, maximum facility. Mr. Toure provided no evidence to the contrary\u201d (see Toure<\/em> ONCA, supra <\/em>note\u00a036 at para\u00a073). This lack of deference to the factual findings of the court below is particularly problematic in this instance because it is the Court of Appeal that has misapprehended the evidence. The fact is that Mr. Toure met none of the conditions for being held in a maximum security facility and it is the Court of Appeal\u2019s statement that he \u201cmet several of the criteria for placement in a more secure, maximum facility\u201d that lacks evidentiary foundation. Perhaps most problematically, the Court of Appeal appears to have disagreed with the application judge\u2019s assessment of the psychiatric evidence without even attempting to explain how the court below had erred, or why it drew a different conclusion from that evidence.<\/p>\n

[143]<\/a> Supra<\/em> note\u00a061.<\/p>\n

[144]<\/a> Ibid <\/em>at paras\u00a059, 61\u201363, 71, 74.<\/p>\n

[145]<\/a> Supra<\/em> note\u00a05 at para\u00a041.<\/p>\n

[146]<\/a> See Scotland<\/em>, supra<\/em> note\u00a061 at paras\u00a053\u201354, 71.<\/p>\n

[147]<\/a> See e.g. Kennedy, \u201cCaged by Canada\u201d, supra<\/em> note\u00a03; Brendan Kennedy, \u201cMaximum-Security Jail Ruled Unconstitutional in Immigration Detention Case\u201d, The Toronto Star<\/em> (5 October 2017), online: <https:\/\/www.thestar.com>, archived at https:\/\/perma.cc\/
\n4W7N-W6LD; Brendan Kennedy, \u201c\u2018Why is this Man in Prison?\u2019, Judge Asks Government Lawyer in Immigration Detention Case\u201d, The Toronto Star<\/em> (13 August 2017), online: <https:\/\/www.thestar.com>, archived at https:\/\/perma.cc\/LZV5-ABWV. This is just a small sample of the extensive media coverage that has been done on immigration detention in the past few years since Chaudhary<\/em>. See also the findings in Toure<\/em> SC, supra<\/em> note\u00a036 at\u00a0paras\u00a067ff and Scotland<\/em>, supra <\/em>note\u00a061 at paras\u00a059, 61\u201363, 67, 71, 74.<\/p>\n

[148]<\/a> Ibid <\/em>at para\u00a074. See also Silverman & Molnar, \u201cEveryday Injustices\u201d, supra<\/em> note\u00a01 at\u00a0109\u201310, where access to habeas corpus <\/em>is expressly conceptualized as an access to justice mechanism for immigration detainees. For a description of the use of habeas corpus <\/em>by prisoners detained in Guantanamo Bay by the US military as a means of reaching outside of the unfair processes under which they were detained and seeking justice in regular courts, see James Oldham, \u201cThe DeLloyd Guth Visiting Lecture in Legal History: Habeas Corpus<\/em>, Legal History, and Guantanamo Bay\u201d (2012) 36:1 Man LJ\u00a0361 at\u00a0380.<\/p>\n

[149]<\/a> See e.g. Khela<\/em>, supra<\/em> note\u00a09 at para\u00a052; Ogiamien <\/em>ONCA,<\/em> supra<\/em> note\u00a05 at para\u00a047.<\/p>\n

[150]<\/a> Justice Robert J Sharpe, Book Review of\u00a0The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth\u00a0<\/em>by DJ Clark & G McCoy, (2001) 1:2 OUCLJ\u00a0287 at\u00a0292. See also Parkes, supra<\/em> note\u00a012 at\u00a0354\u201355,\u00a0360. Parkes discusses the flexibility of habeas corpus<\/em> and its gap-filling functions which allow one to step through procedural barriers and get a decision on the merits.<\/p>\n

[151]<\/a> For example, in Ontario, the Habeas Corpus Act<\/em>, RSO 1990, c\u00a0H1, s\u00a05 allows a person to seek production of the evidence concerning their \u201crestraint of liberty\u201d. See also Habeas Corpus Act<\/em>, RSPEI 1988, c\u00a0H-1, s\u00a09.<\/p>\n

[152]<\/a> See Toure v\u00a0Canada (Minister of Public Safety and Emergency Preparedness)<\/em> 2017 ONSC\u00a05533 (decision on motion for disclosure) [Toure<\/em> Disclosure]; Toure <\/em>SC, supra<\/em> note\u00a036 (decision on the merits).<\/p>\n

[153]<\/a> See Chaudhary<\/em> ONCA, supra <\/em>note\u00a05 (\u201c[h]abeas corpus <\/em>allows the court to take a step back and look at the evidence without the burden of previous ID decisions. The appellants will not be required to show that there has been a change from prior dispositions\u201d at\u00a0para\u00a091).<\/p>\n

[154]<\/a> Thanabalasingham<\/em>, supra<\/em> note 32 at paras\u00a014\u201316; Chaudhary <\/em>ONCA, supra<\/em> note 5 at paras\u00a085\u201390.<\/p>\n

[155]<\/a> In Ali<\/em>, supra <\/em>note\u00a03 at para\u00a037, <\/em>the court noted the unfairness of requiring detainees to show they are now no longer a flight risk or danger despite having no access to any programming that could aid in rehabilitation, all while subjected to lockdowns and appalling prison conditions that only harm their mental and physical health.<\/p>\n

[156]<\/a> Ibid <\/em>at para\u00a032.<\/p>\n

[157]<\/a> Supra<\/em> note\u00a09 at para\u00a057.<\/p>\n

[158]<\/a> See Ahmed <\/em>FC 876, supra<\/em> note\u00a0105 at paras\u00a025\u201327; Okwerom<\/em>, supra<\/em> note\u00a050 at para\u00a08; B147<\/em>, supra<\/em> note\u00a050 at paras\u00a053\u201356.<\/p>\n

[159]<\/a> Lunyamila<\/em>, supra <\/em>note\u00a0132; Ali<\/em>, supra<\/em> note\u00a03.<\/p>\n

[160]<\/a> Lunyamila<\/em>, supra<\/em> note\u00a0132 at paras\u00a08\u201311.<\/p>\n

[161]<\/a> Ibid<\/em> at paras\u00a01\u20133.<\/p>\n

[162]<\/a> Supra<\/em> note\u00a03 at paras\u00a021\u201326.<\/p>\n

[163]<\/a> Ibid<\/em> at para\u00a026.<\/p>\n

[164]<\/a> Ibid<\/em> at para\u00a027.<\/p>\n

[165]<\/a> See Silverman & Molnar, \u201cEveryday Injustices\u201d, supra<\/em> note\u00a01 at\u00a0110.<\/p>\n

[166]<\/a> Supra<\/em> note\u00a05 at para\u00a081.<\/p>\n

[167]<\/a> It remains to be determined exactly when the detainee\u2019s onus of reasonable and probable grounds are met and it is clear from the mixed outcomes applying Chaudhary<\/em>, discussed above, that the courts are struggling with this issue.<\/p>\n

[168]<\/a> Supra<\/em> note\u00a0116 at paras\u00a065, 71.<\/p>\n

[169]<\/a> See Khela<\/em>, supra<\/em> note\u00a09 at para\u00a040.<\/p>\n

[170]<\/a> Charkaoui, supra <\/em>note\u00a049 at paras\u00a0108, 114, citing Sahin<\/em>, supra<\/em> note\u00a016 at 231\u201332.<\/p>\n

[171]<\/a> Dadzie<\/em>, supra<\/em> note\u00a0116 at paras\u00a028, 36; Toure <\/em>SC, supra <\/em>note\u00a036 at\u00a0paras\u00a021\u201345. It should be noted that the centrality of \u201ccooperation\u201d to many of these decisions is ripe for discrimination as cultural and socio-economic factors such as knowledge of birth dates and different spellings of a name are invoked to prove that a detainee is not cooperating in establishing their identity. See Ali, supra <\/em>note 3 at paras\u00a07\u20138; Toure<\/em> SC, supra<\/em> note\u00a036 (Cross-examination of Dale Lewis on 27 September 2017). On race and immigration detention, see generally Bosworth & Turnbull, supra<\/em> note\u00a01; Pratt, Securing Borders<\/em>, supra <\/em>note\u00a01,\u00a0ch\u00a04.<\/p>\n

[172]<\/a> For example, the 20-month detention of the applicant Carmelo Bruzzese was found to be \u201clengthy\u201d. See Chaudhary<\/em> ONCA, supra<\/em> note\u00a05 at\u00a0paras\u00a0113\u201315.<\/p>\n

[173]<\/a> Toure <\/em>Disclosure, cited in Toure<\/em> SC, supra<\/em> note\u00a036\u00a0paras\u00a050\u201360.<\/p>\n

[174]<\/a> Supra<\/em> note\u00a049 at para\u00a029.<\/p>\n

[175]<\/a> Canada (Citizenship and Immigration) v\u00a0Harkat, <\/em>2014 SCC\u00a037 at para\u00a041, [2014] 2 SCR\u00a033 [emphasis added]<\/p>\n

[176]<\/a> Ibid <\/em>at para\u00a051.<\/p>\n

[177]<\/a> Toure <\/em>ONCA, supra<\/em> note\u00a036, at paras\u00a041\u201343. Unfortunately, the Court of Appeal\u2019s finding that the disclosure issue was not fully argued before the application judge is simply incorrect. Contrary to what is stated by the Court of Appeal, the disclosure issued was fully argued. The statement referenced by the Court was made at the close of the evidence on this second day of the hearing (September 27, 2017). The disclosure issued was fully argued on the third day of the hearing (September 28, 2017).<\/p>\n

[178]<\/a> Supra<\/em> note\u00a05 at\u00a0paras\u00a075\u2013106.<\/p>\n

[179]<\/a> Ali<\/em>, supra<\/em> note\u00a03 at para\u00a017.<\/p>\n

[180]<\/a> See ibid<\/em>; Toure<\/em> SC, supra<\/em> note\u00a036 at para\u00a019. On appeal, the Court of Appeal for Ontario accepted Mr. Toure\u2019s submission that \u201cthe principle applied in Chaudhary <\/em>is not restricted to the specific facts considered in that case.\u201d See Toure<\/em> ONCA, supra <\/em>note\u00a036 at para\u00a023. Yet, at the same time, the Court of Appeal rejected Mr. Toure\u2019s submission that the application judge erred because he concluded that he only had jurisdiction to decide the issue if the first part of the Chaudhary<\/em> test was met because <\/em>Mr. Toure had specifically relied on Chaudhary<\/em> in support of his application and he failed to argue that the court had jurisdiction to hear his application because of other \u201cexceptional circumstances\u201d. In arriving at this conclusion, the Court of Appeal appears to be saying\u2014although the decision is less than clear on this point\u2014that a court may have jurisdiction to hear a habeas corpus<\/em> application in situations other than that set out in Chaudhary<\/em>, but that, at the very least, this needs to be specifically argued by the detainee (ibid<\/em> at paras\u00a021\u201327). The Court of Appeal appears to be suggesting is that detainees bear the burden of justification to show that the Court should hear the application, rather than placing the burden on the state to show that the circumstances are such that jurisdiction should be declined.<\/p>\n

[181]<\/a> Supra<\/em> note\u00a061 at paras\u00a051\u201358.<\/p>\n

[182]<\/a> Supra <\/em>note\u00a05 at para\u00a041.<\/p>\n

[183]<\/a> Ibid<\/em>.<\/p>\n

[184]<\/a> Ibid.<\/em><\/p>\n

[185]<\/a> Toure<\/em> ONCA, supra<\/em> note\u00a036 at paras\u00a021\u201327.<\/p>\n

[186]<\/a> See generally Taylor, supra <\/em>note\u00a019.<\/p>\n

[187]<\/a> See May<\/em>, supra<\/em> note\u00a082 at para\u00a044, cited in Khela<\/em>, supra<\/em> note\u00a09 at para\u00a044.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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