SEPARATE BUT UNEQUAL: IMMIGRATION DETENTION IN CANADA AND THE GREAT WRIT OF LIBERTY.

• Author: Anstis, Siena

Canada maintains a separate legal regime for immigration detainees who, until recently, were denied the right to seek release by way of habeas corpus. This denial of one of the most deeply entrenched rights at common law and under the Canadian Charter of Rights and Freedoms was justified by the proposition that the immigration detention scheme is "separate but equal"--that it provides an adequate remedy such that habeas corpus is not necessary. Perhaps unsurprisingly, this "separate but equal" regime has failed to provide basic procedural and substantive protections that are available in other Canadian legal regimes where liberty is at stake. However, in 2015, the Court of Appeal for Ontario reignited the availability of habeas corpus as a remedy to indefinite detention in the immigration context in Chaudhary v. Canada (Public Safety and Emergency Preparedness). By reversing a line of cases that had confined immigration detainees to review by an administrative tribunal and judicial review in the Federal Court, Chaudhary has opened the door to the superior courts for immigration detainees. This article provides a review of the immigration detention system in Canada, the applicable legislation, procedures, and case law, and canvasses the impact of Chaudhary on the rights of immigration detainees. It then considers the benefits of habeas corpus as a litigation strategy, the role it has played in debunking the "separate but equal" myth, and suggests other potential issues now ripe for further litigation.

Le Canada opere un regime juridique distinct pour les detenus issus de l'immigration. Jusqu'a recemment, ceux-ci se voyaient refuser le droit de demander leur liberation par voie d'habeas corpus. Cette negation de l'un des droits les plus profondement enracines en common law et en vertu de la Charte canadienne des droits et libertes etait justifiee par la proposition selon laquelle le regime de detention en matiere d'immigration est >, de sorte que Y habeas corpus ne serait pas necessaire. Sans surprise, ce regime > a echoue a assurer des protections procedurales et substantives de base disponibles dans d'autres regimes juridiques canadiens ou la liberte de la personne est en jeu. Cependant, en 2015, la Cour d'appel de l'Ontario a de nouveau rendu disponible le recours a l'habeas corpus comme moyen de remedier a la detention indefinie dans le contexte de l'immigration dans l'affaire Chaudhary v. Canada (Public Safety and Emergency Preparedness). En renversant une serie de decisions qui avaient confine l'adjudication des detentions du domaine de l'immigration a un tribunal administratif et a un controle judiciaire devant la Cour federale, Chaudhary a ouvert la porte au recours devant les tribunaux superieurs pour les detenus en matiere d'immigration. Cet article presente un examen du systeme de detention en matiere d'immigration au Canada, de la legislation, des procedures et de la jurisprudence applicables, et analyse l'impact de Chaudhary sur les droits des detenus de l'immigration. Il considere ensuite les avantages de Yhabeas corpus comme une strategie de contentieux, le role qu'il a joue dans la demystification du mythe > et suggere que d'autres poursuites potentielles sont maintenant disponibles pour de nouveaux litiges.

Introduction I. A Review of Immigration Detention in Canada A. Separate but I Unequal: Deficiencies in Canada's Immigration Detention Regime 1. Silence 1: Procedural Unfairness and Evidentiary Issues 2. Silence 2: Conditions of Detention and Treatment of Immigrants as Criminals 3. Silence 3: No Mandate to Cease Indefinite and Arbitrary Detention B. The Constitutionality of Indefinite Immigration Detention Pre-Chaudhary II. The Right of Immigration Detainees to Habeas Corpus A. The Peiroo Exception Misapplied: Denying Immigration Detainees Habeas Corpus Relief B. Chaudhary: Habeas Corpus Relief for Immigration Detainees C. Challenging Immigration Detention Under Chaudhary III. Habeas Corpus Applications as a Litigation Strategy A. Why Habeas Corpus? 1. Straight to die Point 2. Disclosure Requirements 3. Cross-Examination 4. De Novo Assessment of the Evidence 5. Burden on the Jailor 6. The Question Asked and die Court that Answers It B. Effectively Litigating Habeas Corpus; Beyond Chaudliary 1. Reaching the Chaudhary Threshold 2. Uncovering die Whole Factual Picture 3. Beyond die Chaudhary Threshold Conclusion Introduction

It has been more than six decades since the Supreme Court of the United States made the rather obvious observation that "separate but equal" is a fiction wherever those so separated are politically and socially disadvantaged. (1) During the same intervening decades, Canada has maintained a distinct legal regime for the detention of non-citizens under its immigration laws. The power to detain non-citizens is broader, and the protections afforded to non-citizen detainees fewer, than under any other legal regime known to Canadian law. (2) Under this regime, where detention is, by definition, of indeterminate length, long-term detentions in maximum-security criminal facilities have become common and widespread. (3)

Notwithstanding the state's broad powers to detain non-citizens under immigration legislation, courts have, until recently, held that the right of all detainees to seek release by way of habeas corpus, enshrined in section 10(c) of the Canadian Charter of Rights and Freedoms, (4) was inapplicable to immigration detainees. Non-citizens were segregated out of the jurisdiction of provincial superior courts to grant habeas corpus relief on the premise that the legal regime already in place for them is "separate but equal". (5)

The laxity afforded by this "separate but equal" legal universe allowed the executive branch and its administrative tribunals to develop practices and norms that further disadvantaged immigration detainees. As we seek to demonstrate in this article, the legal regime for detaining non-citizens in Canada disregards the most basic norms of procedural fairness and Charter rights. This disregard continues notwithstanding the fact that sections 7, 9, and 12 of the Charter apply to "everyone" in Canada and ought therefore to protect equally against unjust, arbitrary, and cruel detentions. (6) Without any particular attempt to justify this reality, Canada has endorsed a policy of exceptionalism when it comes to the liberty of non-citizens. (7)

The fallacy of the "separate but equal" status of the immigration detention regime in Canada was recently recognized by the Court of Appeal for Ontario in Chaudhary. (8) The court found that immigration detainees face inequalities in challenging indefinite detention through administrative review and judicial review to the Federal Court, (9) and must therefore have the right to seek release by way of habeas corpus applications in provincial superior courts. This holding in Chaudhary, in turn, has allowed for greater scrutiny of the immigration detention regime. Later this year, in an appeal of an Alberta decision following Chaudhary, the Supreme Court of Canada will hear arguments and will then effectively decide whether Chaudhary will be overruled or applied nationwide. (10) As argued below, the brief career of immigration detention habeas corpus in Ontario has already demonstrated the necessity of preserving superior court jurisdiction over immigration detainees.

In an effort to deconstruct the myth that the Canadian immigration detention regime is "separate but equal", Part I of this article reviews the structure of the immigration detention regime in Canada and highlights its deficiencies. Part II examines the emergence of habeas corpus as a remedy in the immigration detention context and as the key mechanism by which the notion of "separate but equal" is being debunked in the courtroom and subjected to broader public scrutiny. Finally, Part III looks at the advantages of habeas corpus applications and charts some terrain for future litigation. In so doing, we hope to contribute more broadly to the literature on the dilution and distortion of Charter rights when applied in the domain of immigration law. (11) We also seek to initiate a discussion among practitioners and scholars on the intersection of habeas corpus and immigration detention, and the potential of habeas corpus litigation as one strategic tool for exposing and reversing the segregation and unequal treatment of immigration detainees. (12)

1. A Review of Immigration Detention in Canada

   This Part provides a brief overview of the legal regime for immigration detention in Canada, as contained in the Immigration and Refugee Protection Act (IRPA) (13) and the Immigration and, Refugee Protection Regulations (IRPR). (14) While the constitutionality and fairness of the relevant provisions is not the focus of this article, it is necessary to identify the deficiencies in the legislative regime governing immigration detention in Canada to fully understand the importance of habeas corpus to immigration detainees. (15) To that end, one must be mindful not only of what the legal regime says about the parameters of immigration detention but also, perhaps more importantly, what it fails to say. We endeavour to highlight these silences in our review. Over and above that, we seek to highlight three overarching and unjustifiable features of the detention regime: it allows for indefinite administrative detention; (16) it allows for detention that is arbitrary because there is no subsisting connection to its underlying purposes; (17) and it allows for the preventive detention of non-citizens under conditions that are far harsher and more restrictive than can be justified in the circumstances. (18)

   1. Separate but Unequal: Deficiencies in Canada's Immigration Detention Regime

      The IRPA and the IRPR set out the statutory framework for the detention of foreign nationals and permanent residents in Canada. After a foreign national or permanent resident is arrested...