To Have the Point: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29

For the second time in six months, the Supreme Court of Canada has released a decision in a judicial review case brought by an applicant seeking a procedural solution to a substantive problem. In Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, as in R. v. Bird, 2019 SCC 7 (noted here), the Court in its treatment of the procedural issues missed or glossed over an important point of substance. At least in Chhina there is an excellent, clear-eyed dissent from Abella J., which provides a solution to the substantive problem.

Mr. Chhina first arrived in Canada in 2006 and successfully claimed refugee status. But he made false representations in doing so. He also engaged in criminal activity. For these reasons, his refugee status was vacated and a deportation order was issued against him. He was placed in immigration detention pending removal. which depended on the acquisition of travel documents from Pakistan. At one point he was released on conditions, which he did not respect, and was put back in detention in 2015. Soon after, he sought a writ of habeas corpus from the superior court in Alberta, alleging that his detention was unlawful because of its length and uncertain duration. The superior court declined jurisdiction and, although the case continued to the Supreme Court, which reversed this first-instance decision, Mr. Chhina was returned to Pakistan in 2017.

Moot though the underlying case became, an important point of principle was at stake: when can a immigration detainee challenge his or her detention by way of habeas corpus in provincial superior court? On the one hand, Canada’s immigration detention regime is federal and, generally speaking, challenges to the legality, rationality and procedural fairness of federal administrative action must be made in Federal Court. On the other hand, habeas corpus is a “constitutional right” (at para. 20) forming part of the supervisory jurisdiction of the provincial superior courts and, as such, can only be ousted by clear statutory language. Canadian courts have sought to find a compromise between these competing considerations. Habeas corpus is not available of immigration decision-making where there exists “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] 3 S.C.R. 809, at para. 40).

The scheme at issue in Chhina is set out in the Immigration and Refugee Procedure Act, SC 2001, c. 27. Immigration officials may detain suspected unlawful immigrants who pose a danger to the public or are unlikely to appear at a formal hearing (s. 55). A review must be conducted by the Immigration Division of the Immigration and Refugee Board within 48 hours, once more within the next 7 days and every 30 days thereafter (s. 57). At a review, the detainee must be released unless:

• (a) they are a danger to the public;
• (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order…;
• (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality;
• (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or
• (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.

There are, further, a set of considerations to be taken into account in accordance with the Immigration and Refugee Protection Regulations, SOR 2002-227. Section 248 provides:

If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:

(a) the reason for detention;

(b) the length of time in detention;

(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;

(d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; and

(e) the existence of alternatives to detention.

Review decisions can be judicially reviewed in Federal Court (s. 72), with a limited onward appeal to the Federal Court of Appeal on a certified question.

Karakatsanis J. took the view that this scheme was not equivalent to habeas corpus. First, the Federal Court “has interpreted the regulations as imposing the onus on the detainees to demonstrate that their continued detention would be unlawful” (at para. 60). Second, again because of the Federal Court’s interpretation of the scheme, the scope of review under the scheme is limited, because “immigration officials may rely entirely on reasons given by previous officials to order continued detention and remain fully compliant with the IRPA scheme” (at para. 62). By contrast, “[t]he broad review provided by habeas corpus grapples with detention as a whole” (at para. 64). Thirdly, the scheme does not provide a “timely” remedy:

Leave is required for judicial review of a detention decision made under the IRPA, and perfecting an application for leave on judicial review can take up to 85 days (IRPA, s. 72(2)(b); Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rr. 10(1), 11 and 13). As the Federal Court has acknowledged, even in the best of circumstances, it is thus impracticable for judicial review to occur before the next 30-day detention review has been held, rendering the outcome of the judicial review moot (Canada (Citizenship and Immigration) v. B386, 2011 FC 175 (CanLII), [2012] 4 F.C.R. 220, at para. 13; Chaudhary, at para. 94). The remedy of a rehearing restarts the review process, leading to further delays. This cycle of mootness at the judicial review stage acts as a barrier to timely and effective relief (at para. 66).

There are several difficulties with this analysis. Most importantly, it fails (to my mind) to grapple with the central issue. The difficulty presented by cases like Mr. Chhina’s is that, at some indeterminate point, an immigration detention will become so long and of such uncertain duration as to be unlawful — but identifying that point is very difficult. A detention on Day 1 may be lawful but become unlawful by Day 1+n; the problem lies in calculating “n”.

For the most part, the problems identified by Karakatsanis J. all stem from the interpretation of the scheme. That is a substantive problem. The proposed solution is procedural (permitting Mr. Chhina and others to apply for habeas corpus in provincial superior court). But why prefer a procedural solution to a substantive problem, which could be resolved by a more vigorous interpretation of the scheme?

Indeed, Karakatsanis J.’s procedural solution risks transplanting the substantive problem from the scheme to provincial superior courts. Consider what happens after Chhina. Presumably Mr. Chhina (or, given his whereabouts, some other person now in immigration detention) would apply for habeas corpus in provincial superior court as soon as the next detention review takes place. And what would happen then, in the event that he was unsuccessful? Presumably another application for habeas corpus, after the next detention review (or some other subsequent detention review). The provincial superior court would then face precisely the same problem faced under the scheme, namely that the applicant would have to demonstrate that something has changed between the previous application for habeas corpus and the present application for habeas corpus. Worse, someone like Mr. Chhina might bring repeated applications for habeas corpus, compelling a provincial superior court to erect procedural barriers against such claims. This creates a risk that, over time, judicial discretion will be injected into the Great Writ, which, Karakatsansis J. observes, “is not a discretionary remedy; it issues as of right where the applicant successfully challenges the legality of a detention” (at para. 18).

Notice, finally, that in her analysis of timeliness, Karakatsanis J. subtly shifts her focus to the Federal Court alone. But why wouldn’t release by virtue of the review decision, without the involvement of the Federal Court, be a “timely” remedy? Moreover, there is no evidence as to how rapidly the Federal Court deals with such matters (continuing an unfortunate tendency in recent Supreme Court judgments to traduce the competence of the Federal Court) and little or no discussion of Federal Court jurisprudence on the availability of mandamus as a remedy (see my note on D’Errico v. Canada (Attorney General), 2014 FCA 95 here).

In her dissent, Abella J. deals squarely with the substantive problem. As she aptly summarizes her reasons:

The better approach is to continue to read the language of IRPA in a manner that is as broad and advantageous as habeas corpus and ensures the complete, comprehensive and expert review of immigration detention that it was intended to provide, as all of this Court’s previous jurisprudence has done. It is far more consistent with the purposes of the scheme to breathe the fullest possible remedial life into the Act than to essentially invite detainees to avoid the exclusive scheme and pursue their analogous remedies elsewhere (at para. 74).

The solution, as she recognizes, is not to create a procedural solution to a substantive problem, but to ensure that detention reviews, and subsequent judicial reviews, are equal to the task of robustly examining detention reviews with a view to determining whether point “n” has been reached such that the detention has become unlawful. To the extent that Federal Court decisions suggest otherwise, they are wrong to do so (see e.g. para. 127). Adjudicators should bear the principles of the Charter of Rights and Freedoms in mind, particularly the guarantees relating to personal liberty, when assessing the appropriateness of immigration detention:

in carrying out their duties under the IRPA scheme, members of the Immigration Division must ensure the fullest possible review of immigration detention. This includes, and has always included, an obligation to weigh the purposes served by immigration detention against the detained individual’s ss. 7, 9 and 12Charter rights. The Immigration Division’s inquiry into the lawfulness of detention must take into account the detained individual’s s. 7Charter right not to be deprived of liberty except in accordance with the principles of fundamental justice, his or her s. 9 right not to be arbitrarily detained or imprisoned, and the s. 12 right not to be subjected to cruel and unusual treatment or punishment (at para. 130).

On this approach, the regular detention reviews are a feature, not a bug: “The Immigration Division obtains an accurate picture of the detention every 30 days. It can assess progress over time by reviewing past proceedings and anticipating pending proceedings to guard against a violation of the detainee’s Charter rights” (at para. 137). Abella J.’s seems to me to be a much more compelling reading of the scheme, as one designed to vindicate individual rights, not to perpetuate dubious detentions.

Whether Dicey would have approved of the majority or the dissent is a nice question. For my part, I think that Dicey’s emphasis on the importance of interpretation — on the vindication of individual rights through the common law — supports Abella J.’s substantive solution. I suspect that Abella J. might recoil if one were to pin the “Diceyan” label to any of her reasons, but on this occasion the label seems appropriate.

This content has been updated on June 5, 2019 at 10:14.