Habeas corpus allowed for immigration detainees

Immigration lawyers are lauding an Ontario Court of Appeal ruling that will allow immigration detainees to apply to the Superior Court of Justice for habeas corpus to challenge their incarceration.

It’s a concept that failed before the courts in the past, including the 1995 case involving Wahid Khalil Baroud that lawyer Barbara Jackman unsuccessfully argued at the time. She says there’s some vindication now that the appeal court has found otherwise 20 years later in a case in which she acted as a representative for one of the four appellants in Chaudhary v. Canada (Public Safety and Emergency Preparedness).

“It’s an important ruling in that it provides immigration detainees direct access to the court, which they didn’t have until this decision,” says Jackman, noting detainees seeking review of their detentions can now apply directly to the Superior Court. The change, she notes, will allow for a speedier hearing of matters and submissions of evidence and “puts the onus on the government to justify why they’re keeping the person detained for so long.”

According to Jackman, the decision brings relief to some people who have been in detention for years — some of them for almost a decade — without knowing how long it would last.

Under the current system, detainees get a first review for potential release by the immigration division of the Immigration and Refugee Board after 48 hours and then another in seven days if the first was unsuccessful. All subsequent detention reviews take place every 30 days thereafter. The Immigration and Refugee Protection Act allows for detainees to seek judicial review of the immigration division’s decisions at the Federal Court but didn’t provide for habeas corpus where the statutory scheme was deemed to be at least as comprehensive. Jackman, however, says that option was never a successful route for detainees who would remain in detention while the appeals went on.

Before the appeal court, Jackman argued habeas corpus should be available because the challenge to continued detention isn’t to the immigration matters themselves but to the ongoing incarceration beyond what can be justified for immigration-related purposes. Jackman also argued the exception arising from Peiroo v. Minister of Employment and Immigration doesn’t apply, which, as the court stated in its ruling, deals with the notion of a complete, comprehensive, and expert statutory scheme that provides for a review that’s at least as broad as, and no less advantageous than, habeas corpus. Counsel for the respondents argued the Peiroo exception does apply and suggested it removes all immigration matters from the scope of the courts’ habeas corpus jurisdiction.

The appeal court, however, found otherwise. “I conclude that Peiroo does not create a blanket exclusion for all immigration matters, and further, that the exception does not apply in the circumstances of the cases under appeal,” wrote Justice Paul Rouleau in the Oct. 20 decision in Chaudhary.

“There are three critical differences between the [Immigration and Refugee Protection Act] process and habeas corpus that, taken together, make habeas corpus broader and more advantageous to the appellants when the issue is whether continued detentions have become illegal due to their length and the uncertainty of their continued duration,” he added, citing the question the court is to answer, the onus, and the review process.

Rouleau also found the procedure wouldn’t affect applicants’ immigration status because habeas corpus would simply determine whether the detentions, because of their length and uncertain duration, had become a violation of their rights under the Charter of Rights and Freedoms.

Immigration lawyer Nikolay Chsherbinin says the decision paves the way for a more neutral assessment of the lawfulness of an immigration detainee’s prolonged detention.

“It is refreshing to see the Ontario Court of Appeal recognizing that the process of detention reviews under [the Immigration and Refugee Protection Act] is not as broad and is less advantageous than habeas corpus,” he says. “The availability of habeas corpus relief to immigration detainees serves as a much-needed bulwark against the immigration division’s often bewildering decisions to continue detentions.”

Immigration lawyer Chantal Desloges says the decision brings about a “wider, broader, and more favourable scheme” for long-term detainees through the Superior Court and suggests it represents a major shift in the review process.

“The immigration bar is really delighted with the ruling because basically it gives long-term detainees another option for applying for relief,” she says.

According to Desloges, habeas corpus is a more favourable scheme for detainees looking to challenge the legality of a lengthy detention under the Charter as the onus is on the government to prove that continued incarceration is appropriate rather than placing the burden on the detainee to demonstrate that it’s unfair.

“At the end of the day, they said yes, habeas corpus is more permissive and it’s more advantageous to the person who’s detained,” says Desloges.

“Unless all you’re trying to do is mount a collateral attack on an underlying immigration decision, if you’re truly just challenging the legality of the detention, then the provincial court would have just as much jurisdiction to handle that as the immigration scheme would.”

The ruling, she suggests, provides a better balance. “It’s definitely going to be a big benefit for that small number of people who are subject to what is close to indefinite detention. It strikes a perfect balance between not opening the gate too wide but providing a reasonable alternative for people who are trapped in this endless cycle of detention,” says Desloges.

Lawyer Robin Seligman agrees it was a “very significant” decision and that the Superior Court will be a more suitable venue for detainees to appeal their detentions.

“Traditionally, these cases keep getting bumped back to the Federal Court and many times the remedy is not there,” she says. “Once somebody has been refused [release from detention], it just keeps getting revisited by different board members and they just rely on the previous decisions, so it seems like wasted effort.”

The previous system, she says, put great onus on detainees to prove their circumstances had changed since the previous review and, in most cases, the longer the time served, the harder it was to win release.

“In reality, that’s how it works. It becomes almost impossible to get people released. The only place for review was the Federal Court, and that is not necessarily a satisfactory remedy and it takes time and money. But the Court of Appeal of Ontario is very used to hearing detention cases and has proper experience and expertise in that area.”

The Canada Border Services Agency declined to comment on the ruling last week.

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