Immigration and Refugee Protection Act not providing for review as broad and advantageous as habeas corpus

Supreme court | Administrative Law | Prerogative remedies | Habeas corpus in civil proceedings

Applicant applied to Court of Queen's Bench for habeas corpus, arguing that his immigration detention had become unlawful because it had become lengthy and indeterminate and because conditions of his detention were inappropriate. Chambers judge declined jurisdiction to consider applicant's application. Court of Appeal reversed that decision, holding that chambers judge should have exercised his discretion to hear applicant's application. Minister of Public Safety and Emergency Preparedness and Attorney General of Canada appealed. Appeal dismissed. Writ of habeas corpus is ancient legal remedy that remains fundamental to individual liberty and rule of law. Despite importance of habeas corpus, court has carved out two limited exceptions to its availability. One is that provincial superior court should decline jurisdiction where legislator has put in place complete, comprehensive and expert statutory scheme which provides for review at least as broad as that available by way of habeas corpus and no less advantageous. Applicant claimed that his continued detention had become unlawful because its length, conditions and uncertain duration violated his Canadian Charter of Rights and Freedoms rights. Immigration and Refugee Protection Act did not provide for review that was at least as broad and advantageous as habeas corpus for such matters. Applicant was entitled to have his application heard by judge of Court of Queen's Bench.

Canada (Public Safety and Emergency Preparedness) v. Chhina (2019), 2019 CarswellAlta 885, 2019 CarswellAlta 886, 2019 SCC 29, 2019 CSC 29, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2017), 2017 CarswellAlta 1432, 2017 ABCA 248, Marina Paperny J.A., Brian O'Ferrall J.A., and Sheila Greckol J.A. (Alta. C.A.).

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