CANADA (PUBLIC SAFETY AND EMERGENCY PREPAREDNESS) v. CHHINA 2019 SCC 29

Detainees under the Immigration and Refugee Protection Act are allowed to seek review of their detention by way of habeas corpus except in two exceptional cases.

After ceasing his refugee status, Mr. Chhina was ordered to be deported. He was placed in immigration detention in maximum security, where he was reviewed every month, and every time his decision of detention was upheld. After 13 months of the detention period, Chhina filed a petition of habeas corpus and contended that his detention was unlawful as it has become indefinite and lengthy and hence was against his right to personal liberty and right against wrongful search and seizure under s.7 and s.9 of Canadian Charter of Rights and Freedoms. The chambers judge declined Chhina’s application on the grounds that it falls under Peiroo exception, i.e. the legislator has put in place a complete and comprehensive study of the scheme set out in the Immigration and Refugee Protection Act (IRPA) and have also analyzed statutory scheme which provides an evaluation of the scheme in a broader way as the writ of habeas corpus would provide. However, the Court of Appeal allowed the respondents to appeal on the grounds that the exception would not be applied, and the chambers judge had the discretion to hear the application of habeas corpus.

The primary issue in this appeal was to analyze the scope of application and check whether this comes under the Peiroo exception, and if the court provides a complete and comprehensive study of the scheme, can it be precluded that no application shall be brought for habeas corpus. The writ of habeas corpus is a fundamental and traditional remedy for those in detention who can claim to go before a provincial superior court and demand to check whether the detention is justified by law or not. There are only two exceptions where a person cannot file a writ of habeas corpus i.e. when the challenge is regarding their punishment, or they’re being found guilty and when there is another process that is better, comprehensive and complete than habeas corpus.

However, this exception has to be interpreted by the judge of the court based on facts. Applying this framework to Chhina’s case, the court held that the statutory scheme set out in the IRPA is unable to effectively address the challenge raised by his application in a manner that is as broad and advantageous as habeas corpus.

The majority at the SC held that the IRPA process was not comprehensive and did not completely satisfy the broader condition. There were various reasons for this contention. That in the detention review process, someone’s detention would be analyzed every thirty days, but they are generally based on previous decisions. In a habeas corpus application, the judge would start afresh and independently review whereas Immigration division does not provide any fresh review of conduct; instead, base their review on previous decisions. Thus concluding that the remedies available in case of judicial review of IRPA are limited than those available in habeas corpus.

For these reasons, the majority of the bench said that the IRPA does not prescribe any review procedure that has a similar procedure that is as broad and advantageous as the habeas corpus and therefore, the court declared that the Alberta Court of Queen’s Bench erred in declining to hear the application of Mr. Chhina.