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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Legal rights - On arrest or detention - To test validity through habeas corpus - Remedies for denial of rights - Procedural remedies - Habeas corpus

Wednesday, September 06, 2017 @ 8:48 AM  


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Appeal by Chhina, an immigration detainee, from the dismissal of his application for habeus corpus. The appellant claimed he was a Pakistani citizen. He was granted refugee status in July 2008. His status was revoked in 2012 on the basis that he had misrepresented his identity to the Canadian government and was involved in criminal activity. He had been convicted of several offences in Canada, including weapons and fraud offences. He served three years of a criminal sentence before being taken into immigration detention in April 2013. He was released six months later and disappeared. He was detained on criminal charges in November 2015 and returned to immigration detention the next day. Since 2013, the Canadian Border Services Agency (CBSA) had been taking steps to return the appellant to Pakistan. However, Pakistan did not recognize his citizenship or his entitlement to return. The appellant had had 12 detention review hearings. His detention was continued each time on the basis that he was unlikely to appear to face immigration proceedings. Chhina applied for habeus corpus arguing that his detention was continuing, lengthy and of uncertain duration, and was therefore illegal. He asserted his rights under s. 10(c) of the Canadian Charter of Rights and Freedoms (Charter) to have the validity of his immigration detention determined and to be released if the detention was not lawful. He also invoked his s. 7 and s. 9 Charter rights. The chambers judge declined to exercise his jurisdiction to hear the habeas corpus application on the basis that there was a complete, comprehensive and expert procedure for review of an administrative decision, thereby applying the Peiroo exception to the general availability of the writ. He found that the appellant’s detention was not arbitrary, as it was lawful pursuant to the machinery of immigration control and noted the appellant had failed to comply with his conditions when he was previously released. He also found that the appellant had only been detained for 10 months at the time of the hearing (excluding his previous detention in 2013) and there was no evidence the immigration-related purpose of his detention was futile. He further held that any immigration issue could be dealt with by the Federal Court pursuant to the Immigration and Refugee Protection Act and Federal Courts Act. The issues on appeal were whether the chambers judge correctly concluded that access to habeas corpus was unavailable, and, if not, whether the habeas corpus application should be determined by the Alberta Court of Appeal or be referred back to the Court of Queen's Bench.

HELD: Appeal allowed. The appellant was not precluded from bringing forward a writ of habeas corpus. The Alberta superior court had, and should exercise, jurisdiction to hear the appellant’s habeas corpus application on its merits. Allowing access to habeas corpus would not interfere with the purposes of the Immigration and Refugee Protection Act. While the appellant’s detention was a matter of immigration control, since he lost his status to remain in Canada and was detained due to his failure to observe conditions of immigration release in the past, the only forum in which he could directly challenge the legality of his on-going detention as contrary to his Charter rights and to obtain a Charter remedy was through the superior court by way of habeas corpus. Applications such as the one in this case did not require expertise in immigration law. Access to habeas corpus was more readily available in local superior courts, where leave to appeal was not required. In the superior court, the legality of a detention was determined by a single judge informed in the law, as opposed to a series of Immigration Department (ID) officers without Charter experience constrained by others' decisions. Moreover, even in circumstances where leave to appeal an ID decision to the Federal Court was granted, judicial review was a discretionary remedy. On judicial review, the onus would be on the detainee to show that the decision of the ID was unreasonable, incorrect, or procedurally unfair. This was less favourable than habeas corpus, a non-discretionary remedy. Given that necessary factual findings concerning unlawful detention and justifiability had not been made and the appellant had undergone additional detention hearings since the chamber judge’s decision was rendered, it was appropriate to return the habeas application to the Court of Queen's Bench for determination on the merits.

Chhina v. Canada (Minister of Public Safety and Emergency Preparedness), [2017] A.J. No. 840, Alberta Court of Appeal, M.S. Paperny, B.K. O'Ferrall and S.J. Greckol JJ.A., July 31, 2017. Digest No. TLD-Sept42017004