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OFFENCES AND ENFORCEMENT - Release from detention

Friday, May 10, 2019 @ 2:21 PM  


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Appeal by Canada’s Minister of Public Safety and Emergency Preparedness (Minister) from a judgment of the Alberta Court of Appeal setting aside a decision dismissing Chhina’s application for habeas corpus. A deportation order was issued against Chhina after his refugee status was vacated and was declared inadmissible to Canada due to both misrepresentations in his refugee application and his involvement in criminal activity. Chhina failed to respect his release conditions and was eventually taken back into immigration custody. He applied for habeas corpus, arguing that his immigration detention had become unlawful because of its length and uncertain duration. The chambers judge declined jurisdiction to consider Chhina’s application for habeas corpus on the basis that the Immigration and Refugee Protection Act (IRPA) already provided a comprehensive legislative framework. The Alberta Court of Appeal reversed that decision and remitted the matter for a new hearing on the merits. The Court of Appeal saw clear differences between the review and relief available via the IRPA process as compared to an application for habeas corpus, finding the latter broader and more advantageous where the challenge related to the length and indeterminate nature of the detention. The appeal concerned the scope and application of the exception such that an applicant would be precluded from bringing an application for habeas corpus.

HELD: Appeal dismissed. The writ of habeas corpus was not a discretionary remedy. It was issued as of right where the applicant successfully challenged the legality of a detention. Two instances were recognized where a provincial superior court could have declined to hear such application. The first arose where a prisoner sought to attack the legality of his conviction or sentence. The second exception arose in the field of immigration law. The Peiroo exception precluding habeas corpus in immigration matters was never intended to preclude habeas corpus review of every detention arising in the immigration context, whatever the nature of the challenge to the legality of the detention. Unlike in Peiroo, Chhina’s application for habeas corpus had nothing to do with whether his inadmissibility or deportation were rightly or wrongly decided. IRPA proceedings did not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which Chhina had challenged the legality of his detention. The broad review provided by habeas corpus grappled with detention as a whole. A provincial superior court should decline its habeas corpus jurisdiction only when faced with a complete, comprehensive and expert scheme which provided review that was at least as broad and advantageous as habeas corpus with respect to the grounds raised by the applicant.

Canada (Public Safety and Emergency Preparedness) v. Chhina, [2019] S.C.J. No. 29, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté and R. Brown JJ., May 10, 2019. Digest No. TLD-May62019015SCC