Chaudhary et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al., (2015) 340 O.A.C. 211 (CA)

• Judge: Juriansz, Rouleau and Hourigan, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 06, 2015
• Jurisdiction: Ontario
• Citations: (2015), 340 O.A.C. 211 (CA);2015 ONCA 700

Chaudhary v. Can. (2015), 340 O.A.C. 211 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.024

Immigration detainees, jurisdiction, provincial superior courts - HABEAS CORPUS. Amina Chaudhary, Michael Mvogo, Carmelo Bruzzese and Glory Anawa (appellants) v. Minister of Public Safety & Emergency Preparedness, Minister of Citizenship & Immigration, Attorney General of Canada, Attorney General of Ontario, and Superintendent of the Central East Correctional Centre (respondents)

(C60222; C60223; C60224; C60225; 2015 ONCA 700)

Indexed As: Chaudhary et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al.

Ontario Court of Appeal

Juriansz, Rouleau and Hourigan, JJ.A.

October 20, 2015.

Summary:

The four applicants (Chaudhary, Mvogo, Bruzzese and Anawa) applied for habeas corpus with certiorari in aid, seeking their immediate release from custody, and claiming that their continued detention was unlawful. All of the applicants had been detained in custody by various orders of the Immigration Division of the Immigration and Refugee Board.

The Ontario Superior Court, in a decision with neutral citation 2015 ONSC 1503, declined to exercise its habeas corpus jurisdiction because the Immigration and Refugee Protection Act put into place a comprehensive statutory review mechanism as broad and advantageous as habeas corpus (i.e., there was a adequate alternate remedy). The applicants appealed.

The Ontario Court of Appeal allowed the appeal, set aside the decision below and remitted the applications of two of the applicants (Anawa and Chaudhary) to the Ontario Superior Court of Justice for consideration on the merits. The court did not remit Bruzzese's and Mvogo's applications as they were no longer detained.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention - Review or release - The Ontario Court of Appeal reviewed the statutory scheme for detention and detention review under the Immigration and Refugee Protection Act (Can.) - See paragraphs 27 to 37.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention - Review or release - [See Habeas Corpus - Topic 511 ].

Civil Rights - Topic 3504

Detention and imprisonment - General - Right to habeas corpus - The Ontario Court of Appeal discussed generally the prerogative writ of habeas corpus and the guarantee of habeas corpus in s. 10(c) of the Charter - See paragraphs 38 to 44.

Civil Rights - Topic 3504

Detention and imprisonment - General - Right to habeas corpus - [See Habeas Corpus - Topic 511 ].

Habeas Corpus - Topic 1

General - [See first Civil Rights - Topic 3504 ].

Habeas Corpus - Topic 2

General - When available - [See Habeas Corpus - Topic 511 ].

Habeas Corpus - Topic 501

Jurisdiction to issue writ - General - The Ontario Court of Appeal stated that "It is well established that habeas corpus jurisdiction lies almost exclusively in the superior courts of the provinces. Included in this broad jurisdiction is the authority to hear habeas corpus applications with certiorari in aid 'to review the validity of a detention authorized or imposed by a federal board, commission or other tribunal' as defined by s. 2 of the Federal Court Act ..." - See paragraph 41.

Habeas Corpus - Topic 501

Jurisdiction to issue writ - General - The Ontario Court of Appeal stated that "Habeas corpus is issued as of right and as a matter of principle should 'not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court. The option belongs to the applicant' ... The Supreme Court has outlined two areas where a superior court should exercise its discretion to decline habeas corpus jurisdiction. The first exception is in the criminal context. Habeas corpus cannot be used to challenge the legality of a conviction. The appeal processes must be followed ... The Court, citing Peiroo [Ont. C.A. 1989], explained that a second limitation 'gradually developed in the field of immigration law' and is a 'limited discretion to refuse to entertain applications for prerogative relief in immigration matters' ... In those matters, where there is a 'complete, comprehensive and expert statutory scheme [in place] which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded' ..." - See paragraphs 42 and 43.

Habeas Corpus - Topic 511

Jurisdiction to issue writ - Jurisdiction of provincial superior courts over immigration detainees - The four applicants were detained under various orders of the Immigration Division of the Immigration and Refugee Board - The applicants applied for habeas corpus with certiorari in aid, claiming that their continued detention was unlawful - The Ontario Superior Court declined to exercise its habeas corpus jurisdiction, relying on the exception in Peiroo (Ont. C.A. 1989) (i.e., because the Immigration and Refugee Protection Act (IRPA) put into place a comprehensive statutory review mechanism as broad and advantageous as habeas corpus) - The applicants appealed - The Ontario Court of Appeal allowed the appeal - The Peiroo exception was not a blanket exclusion of habeas corpus in immigration-related matters - Further, the court held that where, as in the current appeals, the issue was the legality of a continuing lengthy detention of uncertain duration, the review process created by the IRPA was not as broad and was less advantageous than habeas corpus - See paragraphs 50 to 106.

Habeas Corpus - Topic 621

Jurisdiction to issue writ - Ontario courts - General - [See both Habeas Corpus - Topic 501 and Habeas Corpus - Topic 511 ].

Habeas Corpus - Topic 1505

Bars to issue of writ - Existence of alternate remedy - [See Habeas Corpus - Topic 511 ].

Cases Noticed:

Peiroo v. Minister of Employment and Immigration (1989), 34 O.A.C. 43; 69 O.R.(2d) 253 (C.A.), leave to appeal dismissed (1989), 104 N.R. 319; 62 D.L.R.(4th) viii (S.C.C.), consd. [para. 3].

Bruzzese v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 449 F.T.R. 231; 24 Imm. L.R.(4th) 97; 2014 FC 230, refd to. [para. 11].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 38].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 38].

R. v. Miller, [1985] 2 S.C.R. 613; 63 N.R. 321; 14 O.A.C. 33, refd to. [para. 41].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 66].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 67].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348; 21 C.R.R.(2d) 236; 24 Imm. L.R.(2d) 117, refd to. [para. 67].

Pringle v. Fraser, [1972] S.C.R. 821, refd to. [para. 69].

Francis v. Canada (Minister of Citizenship and Immigration) et al. (1999), 125 O.A.C. 248; 49 O.R.(3d) 136, refd to. [para. 73].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 76].

Canada (Minister of Citizenship and Immigration) v. Romans (2005), 272 F.T.R. 48; 44 Imm. L.R.(3d) 165; 2005 FC 435, refd to. [para. 77, footnote 1].

Canada (Minister of Citizenship and Immigration) v. B046 (2011), 394 F.T.R. 217; 100 Imm. L.R.(3d) 139; 2011 FC 877, refd to. [para. 83].

Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572; 315 N.R. 91; 236 D.L.R.(4th) 329; 2004 FCA 4, refd to. [para. 87].

Bains v. Minister of Employment and Immigration (1990), 109 N.R. 239; 47 Admin L.R. 317 (F.C.A.), refd to. [para. 94].

Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 678, refd to. [para. 108].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 110].

Bruzzese v. Canada, 2015 FC 922, refd to. [para. 114].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(c) [para. 39].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 55 [para. 29]; sect. 57 [para. 32]; sect. 58(1) [para. 33]; sect. 72(1) [para. 37].

Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 248 [para. 34].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Authors and Works Noticed:

Groves, M., Habeas Corpus, Justiciability and Foreign Affairs (2013), 11:3 N.Z. J. Pub. & Int'l L. 587, p. 588 [para. 38].

Parkes, D., The Great Writ Reinvigorated? Habeas Corpus in Contemporary Canada (2012) 36 Man. L.J. 351, p. 352 [para. 38].

Sharpe, R.J., Farbey, Judith, and Simon, Atrill, The Law of Habeas Corpus (3rd Ed. 2011), pp. 1 [para. 38]; 21 [para. 40].

Counsel:

Jean Marie Vecina, for the appellants, Michael Mvogo and Amina Chaudhary;

Barbara Jackman, for the appellant, Carmelo Bruzzese;

Swathi Sekhar, for the appellant, Glory Anawa;

Martin Anderson, Jocelyn Espejo-Clarke, Nicholas Dodokin and Sophia Karantonis, for the respondents.

This appeal was heard on May 6, 2015, before Juriansz, Rouleau and Hourigan, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court on October 20, 2015, by Rouleau, J.A.