November 15, 2017

Detention Reviews, Habeas Corpus and the Charter Navigating a New & Evolving Legal Landscape

In an upcoming issue of ImmQuest and the Immigration Law Reporter we will be examining some of the legal and operational issues surrounding the high-profile cases regarding long term detention, habeas corpus and the Charter of Rights and Freedoms [1](Charter).  The issues surrounding immigration detention are large and national but also personal. The evolving jurisprudence from the Federal Court and the Ontario Superior Court[2] informing the constitutional intersection of immigration detention law with the Charter has national scope and large implications.

At the personal level, the Immigration Division (ID) will continue to be at the front line in deciding detention review cases at first instance. The cases from both the Federal Courts and superior courts have reiterated the responsibility of applying the Charter in immigration detention cases falls squarely on the shoulders of ID members. A number of critical questions arise given these developments.  In my view, a couple rise to the forefront.  Specifically, how have the recent habeas corpus decisions and the Brown v. Canada decision at the Federal Court, in particular, impacted the conduct of detention review proceedings?  What factors, if any, do members at the ID have to consider beyond the legislative and regulatory detention review regime in the Immigration and Refugee Protection Act (IRPA)[3] and the Immigration and Refugee Protection Regulations (IRPR)[4] to remain Charter compliant?

A bright light has been shone on the substantive and procedural rights at play beyond those which are enumerated in the legislative context. While the IRPA and the IRPR enumerate non-exhaustive lists of relevant considerations in determining a detainee’s substantive constitutional rights, ID members must also look to the procedural rights guaranteed by the Charter that have been interpreted and applied in recent jurisprudence to ensure the principles of fundamental justice are observed.   In all, recent jurisprudential developments have added depth, colour, and practical application to the conduct of detention review proceedings.

The cases on the ID’s jurisdiction are clear: apply the Charter. Members should look to case law, particularly the recent habeas corpus decisions of the superior courts to help them determine thorny issues like whether a detainee’s detention has been too lengthy or is not justified.  The analysis of a given detention begins with a determination if it is justified, which should be rooted in the section 9 protection against arbitrary detention. Members must also be cognizant that section 7 guarantees procedural protections. These procedural protections are no less significant than the substantive rights that govern detention reviews generally. These include a number of factors highlighted above.  Violations of even one of the procedural guarantees should lead to release of a detainee even when the Minister has satisfied the enumerated factors in section 248 of the IRPR.   Members should look to case law – not limited to the immigration sphere – to add depth, colour, and practical application to the substantive as well as the procedural guarantees in sections 7, 9, and 12 of the Charter.  These complex legal issues will continue to unfold as the jurisprudential and likely the legislative evolution of the IRPA unfolds.  The resulting changes are likely to alter the manner in which detention reviews are conducted and will impact the courtrooms, hearing rooms, holding facilities, ports of entry and everywhere in between.

For more information on Detention Reviews please click here.

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