Habeas Corpus and the Immigration Detention of Non-citizen, The Lawyer’s Daily (May 30, 2018)

30 May Habeas Corpus and the Immigration Detention of Non-citizen, The Lawyer’s Daily (May 30, 2018)

HABEAS CORPUS AND THE IMMIGRATION DETENTION OF NON-CITIZEN
By Nikolay Y. Chsherbinin

Immigration detentions of non-citizens must only be for an immigration-related purpose. Undoubtedly, a detention is never pleasant. However, it is not the detention itself, or even its length, that is objectionable, but its unlawfulness. Often non-citizens are being detained on a faulty factual premise, inadvertent errors or criminal charges without a conviction. Once detained, it is difficult to secure a release and the detention can span years.

A case in point is Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, where the Court of Appeal for Ontario (ONCA) revisited the availability of habeas corpus in the context of the Immigration and Refugee Protection Act (IRPA) and clarified grounds upon which it could be granted.

In Ogiamien, in January 2006, the Immigration Division of the Immigration and Refugee Board released Jamil Osai Ogiamien from detention on conditions, one of which required him to report to the Canada Border Services Agency (CBSA). In April 2013, Ogiamien was arrested on criminal charges. As a result, he did not report to the CBSA, which issued an arrest warrant on the grounds that Ogiamien failed to report and that he was unlikely to appear for removal from Canada.

In May 2014, Ogiamien was released on bail for the criminal charges but remained detained, because his criminal detention morphed into immigration pursuant to the CBSA’s arrest warrant. After approximately 25 months in immigration detention, Ogiamien was released on habeas corpus. Five months later, the CBSA rearrested Ogiamien, because it believed he had breached the conditions of his release by inaccurately completing an application for a Nigerian travel document. An Ontario Superior Court justice released Ogiamien and held that the alleged breaches did not warrant his reincarceration. The Attorney General of Canada (AG) appealed.

Habeas corpus is the most significant legal remedy available to protect personal liberty. It is a non-discretionary remedy and issues as of right. In Chaudhary v. Canada, 2015 ONCA 700, the ONCA recognized the availability of habeas corpus in the context of the IRPA, which proceeds in two stages: (1) a detainee must show that he has been deprived of liberty and that there is a legitimate ground upon which to question the legality of the detention; and (2) if the detainee is successful in meeting that threshold, the onus shifts to the government to show that the deprivation of liberty is lawful.

In Ogiamien, the AG argued that habeas corpus will only be available in immigration matters in the case of lengthy detention of uncertain duration. The ONCA rejected this argument, because it ignores the more general principle that a provincial court retains residual jurisdiction to entertain habeas corpus in the case of wrongful imprisonment.

The ONCA reaffirmed that habeas corpus will be excluded, but only where 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 and “no less advantageous.”

While the IRPA system is comprehensive, the IRPA-based process of review under the supervision of the Federal Court is less advantageous than habeas corpus. For example, a hearing on a habeas corpus application in a provincial court can be obtained more rapidly than a hearing on a judicial review application in the Federal Court, where leave must be obtained before a hearing can even be scheduled.

Notably, in determining the lawfulness of a continuing immigration detention, a court does not require to have expertise in immigration law, because those are fundamentally detention and not immigration decisions. The habeas corpus decisions will be made weighing various factors, as well as Charter rights and values. These are by and large the same factors that make up the daily fare of provincial courts.

In Mission Institution v. Khela, 2014 SCC 24, the Supreme Court of Canada aptly noted: “there is no reason to assume that the Federal Court is more expert than the superior courts in determining whether a deprivation of liberty is lawful.”

In Ogiamien, the AG further argued that the provincial judge could only have ordered Ogiamien’s release, but she had no authority to impose conditions. The court disagreed, stating: “it would be inconsistent with the public interest if the judge on habeas corpus lacked the authority to impose appropriate conditions to protect public safety and respect for the law.”

In Ali v. Canada (Attorney General), 2017 ONSC 2660, Justice Ian Nordheimer observed that if a provincial court is ordering a release, then it is that court that should set the appropriate terms and conditions.

Ogiamien underscores an important principle: where the purpose of the immigration detention will not be achieved within a reasonable time, the detention is arbitrary. It reaffirms the Superior Court’s jurisdiction to decide habeas corpus applications not only in cases of lengthy immigration detention of uncertain duration, but in all other cases, because the process under the IRPA for such detentions is not as broad and is less advantageous than habeas corpus. In the context of immigration detentions, a provincial court’s jurisdiction to refuse to entertain habeas corpus applications is, thus, very limited.

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