What Is Habeas Corpus?
Habeas Corpus is an avenue through which illegal detention of a person can be challenged. If you have been illegally detained in an immigration matter, Habeas Corpus can be the solution to your matter. The right to Habeas Corpus has been entrenched in Section 10(c) of the Canadian Charter of Rights and Freedoms which ensures that an individual has the right to question the “validity of the detention and seek release if the detention is unlawful.”
The Evolution Of Habeas Corpus Relief In Immigration Detentions
In Canada, the jurisprudence on the availability of Habeas Corpus to the immigration detainees has undergone significant changes over the years. Initially, the detainees of immigration were not allowed to access the Habeas Corpus protection. A key decision in this regard was the 1989 case Peiroo vs. Canada (Minister of Employment and Immigration), where the court enunciated that “Immigration Refugee Protection Act (IRPA) has been put into place to review immigration matters and the scope of such review process is wider than the traditional scope of review of habeas corpus protection.” The court reasoned that since the IRPA covered a broader scope of review, it should be the preferred mechanism for detainees challenging their detention.
Subsequently, over time, immigration detainees continued to file habeas corpus petition to challenge the legitimacy of their detention. As a result of such filings, in 2015 the immigration detainees were finally allowed to file for habeas corpus petition. The case of Chaudhary vs. Canada resulted as the turning point for immigration detainees and ultimately shifted the onus of proving the legitimacy of the detention on to the government.
In a similar vein, the case of Chinna vs. Canada (Public Safety and Emergency Preparedness) further solidified the availability of Habeas Corpus for immigration detainees. In Chinna, a habeas Corpus application was filed in Queen’s Bench of Alberta to challenge an indeterminate and undue detention in relation to Section 7 and 9 of the Charter which protect individuals’ right to life, liberty, and security of a person and that there was no comprehensive procedure for review under the Immigration and Refugee Protection Act (IRPA).
Initially at Queen’s Bench, Tusif ur Rehman Chinna was barred from utilizing the Habeas Corpus relief. However, at the Alberta Court of Appeal overruled the decision of the lower court and allowed Chinna to proceed with Habeas Corpus protection. Under paragraph 29 till 30 of the Chinna’s case, it was emphasized to a great extent that “as long the detainee is filing to challenge the legitimacy of the detention and not the immigration status, the Habeas Corpus relief is considered appropriate.”
Additionally, a two-part test from the Peirro’s case was reinstated in Chinna while dealing with habeas Corpus immigration detentions: First, it must be seen what is being challenged either the detention, or the conditions during the detention or its length. Secondly, the court needs to assess the grounds on which the Habeas Corpus petition is being filed. If the grounds fall within the ambit of the Immigration and Refugee Protection Act (IRPA), then the case will be dealt by the Immigration and Refugee Protection Act. Otherwise, Habeas Corpus remains available as a legal remedy.
When Can Habeas Corpus Be Used?
Habeas Corpus applications can be filed by the foreigners or anyone under the administrative detention of the immigration authorities. Detentions in the immigration sector can be made on a number of reasons including but not limited to: misrepresentation of documents or identity, unauthorized presence in Canada, national security threats, breach of immigration conditions, conditional release, smuggling or any similar crimes, pending trials or appeals, contempt of court orders, etc. Habeas Corpus applications for immigration detentions are filed before Superior Court of the province and the burden to prove the reasonableness of the detention is on the government instead of the detainee.
The Advantages Of Habeas Corpus
Habeas Corpus has been proved as a quicker and efficient way of release of a detainee as compared to the IRPA review process of detention. This was highlighted in the case of R vs. Cushine, where the detainee was kept in confinement for reasons of previous conviction and that he could be a threat to the society. The Court in Cushine ruled that it was cruel and unusual to detain someone simply because of their past convictions and such detention also contradicts the principles outlined in section 12 of the Charter which protects against treatment or punishment that is cruel and degrading.
We Can Guide You!
Detention in immigration context is challenging and fraught with complexities. Habeas Corpus is an essential legal tool for immigration detainees to seek relief. Pursing a remedy mandated by the IRPA may involve a restricted review, hence making Habeas Corpus a powerful alternative to challenge an unjust detention. Get in touch with us for legal assistance on immigration-related detentions.
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