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Supreme Court adopts submissions of Borys Law in landmark immigration detention case

On May 10, 2019, the Supreme Court of Canada released its decision in Canada (Public Safety and Emergency Preparedness) v. Chhina. The majority upheld the decision of the Court of Appeal of Alberta, which found that immigration detainees can bring habeas corpus applications to challenge their detention. The fact that a review procedure exists under the Immigration and Refugee Protection Act does not bar those in immigration detention from seeking recourse in the courts.

Simon Borys (of Borys Law) and Simon Wallace, on behalf of the Canadian Prison Law Association, intervened at the Supreme Court of Canada. The CPLA advocated for the Court to recognize that habeas corpus is meant to be a broad remedy that protects against a wide range of deprivations of liberty.

The majority confirmed as much in its decision, at paras 22-24:

[22]           The case of Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, helpfully illustrates different circumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged. A deprivation of liberty may relate to (1) the initial decision requiring the detention; or to a further deprivation of liberty based on (2) a change in the conditions of the detention; or (3) the continuation of the detention.

[23]           While not exhaustive, this list may be particularly helpful in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining the relevant case-law. For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initial deprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution is emblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration, which may engage ss. 7 and 9 of the Charter, as was argued here (and in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401; and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220).

[24]           Regardless of how a deprivation of liberty arises, the importance of the “great writ of liberty” underlies the general rule that exceptions to the availability of habeas corpus must be limited and carefully defined.



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