|
Habeas Corpus - Exceptions. Canada (Public Safety and Emergency Preparedness) v. Chhina
In Canada (Public Safety and Emergency Preparedness) v. Chhina (SCC, 2019) the Supreme Court of Canada set out two exceptions to where the Superior Court has jurisdiction to consider habeas corpus:[1] The writ of habeas corpus is an ancient legal remedy that remains fundamental to individual liberty and the rule of law today. Dating back to the 13th century, this writ guarantees the individual’s protection from unlawful deprivations of liberty. Entrenched in s. 10(c) of the Canadian Charter of Rights and Freedoms, the right to habeas corpus permits those in detention to go before a provincial superior court and demand to know whether the detention is justified in law. If the relevant authority cannot provide sufficient justification, the person must be released.
[2] Despite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability. First, a provincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in the Criminal Code, R.S.C. 1985, c. C-46 (see R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, at pp. 636-37). Second, a provincial superior court should also decline jurisdiction where the legislator 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” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 40). This second exception has come to be known as the Peiroo exception (see Peiroo v. Canada (Minister of Employment and Immigration) (1989), 1989 CanLII 184 (ON CA), 69 O.R. (2d) 253 (C.A.)).
....
[25] To date, this Court has recognized only two instances where a provincial superior court may decline to hear a habeas corpus application. The first allows a provincial superior court to decline jurisdiction where a prisoner seeks to attack the legality of their conviction or sentence, determinations properly challenged through the appeal mechanisms set out in the Criminal Code (Gamble, at p. 636). The second exception arose in the field of immigration law. In Peiroo, the applicant sought issuance of a writ of habeas corpus with certiorari in aid, contesting a finding that there was no credible basis for her refugee claim and arguing that there was therefore no basis for a removal order issued against her. The Ontario Court of Appeal found that the Immigration Act, R.S.C. 1985, c. I-2, then in force established a comprehensive scheme regulating the determination and review of immigration claims in a manner that was “as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid” (Peiroo, at p. 261).
[26] Both of these exceptions acknowledge the development of sophisticated procedural vehicles in our modern legal system and their ability to fully protect fundamental rights such as habeas corpus.
[27] Statutory appeals in criminal matters, previously circumscribed by the common law writs of certiorari and error, were introduced some 500 years after habeas corpus (V. M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L.R. 446, at p. 448). Although the Court affirmed the Criminal Code exception in the context of a Charter challenge in Gamble, the rule pre-empting habeas corpus applications where a statutory appeal is available long pre-dates the Charter (see: In re Trepanier (1885), 1885 CanLII 66 (SCC), 12 S.C.R. 111; In re Sproule (1886), 1886 CanLII 51 (SCC), 12 S.C.R. 140, at p. 204; Goldhar v. The Queen, 1960 CanLII 65 (SCC), [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, 1965 CanLII 94 (SCC), [1966] S.C.R. 356; Karchesky v. The Queen, 1967 CanLII 92 (SCC), [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, 1980 CanLII 207 (SCC), [1980] 2 S.C.R. 265).
....
A. Determining When the Exception Applies
[41] How, then, does a court determine whether there is “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” such that an applicant will be precluded from bringing an application for habeas corpus (May, at para. 40)?
[42] First, it is necessary to ask upon what basis the legality of the detention is being challenged. In other words, what are the grounds in the applicant’s habeas corpus application? Reference to the categories in Dumas may be helpful to this inquiry. Is the applicant challenging an initial decision that resulted in detention, such as a removal order? Are they challenging the conditions of their detention? Or are they challenging the length and uncertain duration of their detention? Precisely delineating the grounds for the habeas corpus application is necessary in order to determine whether there is an effective statutory remedy to address those grounds.
[43] Second, it is necessary to ask whether there is a complete, comprehensive and expert scheme that is as broad and advantageous as habeas corpus in relation to the specific grounds in the habeas corpus application. Elements of the IRPA detention review scheme may speak to whether the scheme is complete, comprehensive and expert. However, the main issue in this case, and the focus of the parties’ submissions, is whether IRPA review is as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina challenged the legality of his detention. In this inquiry, it may be helpful to look at whether a statutory scheme fails entirely to include the grounds set out in the application for habeas corpus. If so, the scheme will not be as broad and advantageous as habeas corpus. The scheme will also fail to oust habeas corpus if it provides for review on the grounds in the application, but the review process is not as broad and advantageous as that available through habeas corpus, considering both the nature of the process and any advantages each procedural vehicle may offer.
....
[71] Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention. A provincial superior court should decline its habeas corpus jurisdiction only when faced with a complete, comprehensive and expert scheme which provides review that is at least as broad and advantageous as habeas corpus with respect to the grounds raised by the applicant. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 28). The IRPA has been held to be a complete, comprehensive and expert scheme for immigration matters generally, but it is unable to respond to Mr. Chhina’s challenge in a manner that is as broad and advantageous as habeas corpus and the Alberta Court of Queen’s Bench erred in declining to hear Mr. Chhina’s habeas corpus application. For these reasons, I would allow the motion to adduce new evidence and dismiss the appeal with costs on the basis agreed by the parties. . Wang v Canada
In Wang v. Canada (Ont CA, 2018) the court states exceptions to the application of the common law writ of habeas corpus:[17] As referenced in May, there are two exceptions to the availability of habeas corpus. One is where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court and to release the affected person, if necessary. The other is where a legislator has put in place a complete, comprehensive and expert procedure for review of an administrative decision affecting a person’s liberty.
|
