“Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention… and any exceptions to its availability must be carefully limited.”
What Is A Writ Of Habeas Corpus And Why Is It Important?
The writ of habeas corpus dates back to the 13th century and is an ancient legal remedy that remains fundamental to individual liberty and the rule of law today. Entrenched in section 10(c) of the Charter,an individual has the right to“validity of the detention … and to be released if the detention is not lawful.”
On May 18, 2016, the Applicant, C, filed a writ for habeas corpus on the grounds that his immigration detention was unduly lengthy and indeterminate, and that there was no comprehensive procedure for review under the Immigration and Refugee Protection Act.The Respondent Minister argued that the Court of Queen’s Bench should decline jurisdiction and apply the Peiroo exception, as immigration issues should be dealt with by the Federal Court pursuant to the IRPAand Federal Courts Act. The chambers judge determined the Applicant’s detention has not met the threshold test as established in Chaudhary v Canada (Minister of Public Safety and Emergency Preparedness), and denied to hear C’s application for habeas corpus.C appealed the decision.
After having conducted a purposive analysis of the IRPA scheme, the writ of habeas corpus, the five May factors,and the Charter,the Alberta Court of Appeal concluded that “thePeiroo exception does not apply to preclude habeas corpus in everyimmigration detention matter.” The decision was upheld by the Supreme Court of Canada in its judgment rendered in May 2019. The matter was remitted to the Court of Queen’s Bench for determination on the merits.
The takeaway from the majority opinion in Chhinais, although the length and likely duration of detention can be reviewed under the IRPA scheme, that the review is not as broad and advantageous as that of habeas corpus. The majority expressed:
The onus in detention review is less advantageous to detainees than in habeas corpus proceedings; the scope of immigration detention review before the federal courts is narrower than that of a superior court’s consideration of a habeas corpus application; and habeas corpus provides a more timely remedy than that afforded by judicial review.
One would infer that the IRPA scheme therefore fails to provide relief that is as broad and advantageous as habeas corpus in C’s constitutional challenge. However, as Justice Abella voiced in her dissenting opinion, if habeas corpus is the broader and more advantageous route, why would any detainee want to relegate themselves to pursue a remedy under themore restricted reviewas mandated by the IRPA? If you or someone you know needs legal help or a criminal lawyer to defend your rights, MEHDI AU LLP is a full-service firm that is serving clients across GTA and Ontario. We accept Legal Aid Certificates for Criminal and Family Matters.
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