Immigration Detainees Granted Access to Habeas Corpus

21st Oct 2015 Comments Off on Immigration Detainees Granted Access to Habeas Corpus

On October 20, 2015, the Court of Appeal for Ontario (the “ONCA”) released its decision in Chaudhary v. Canada (Public Safety and Emergency Preparedness) (“Chaudhary”).  The ONCA has ruled that the immigration detention review system provided for in the Immigration and Refugee Protection Act (“IRPA”) does not provide an effective forum for detainees to challenge their continued detention. Effective immediately, detainees will be able to apply to the Ontario Superior Court of Justice for habeas corpus to challenge their continued detentions.

Habeas Corpus

Habeas Corpus, latin for “you shall have the body,” is a recourse in law whereby a detained individual can apply to a court for a determination on whether their detention or imprisonment is unlawful.  If the court rules that the detaining entity is acting beyond its authority, then it must release the detainee.   Habeas Corpus is commonly regarded as a cornerstone of liberty.  It is enshrined by s. 10(c) of the Canadian Charter of Rights and freedoms, which provides that “everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Under what is known as the “Peiroo exception,” the Supreme Court of Canada in May v. Ferndale Institution stated that in immigration matters habeas corpus is precluded where federal legislation provides a complete, comprehensive and expert statutory scheme which contains a review process that is at least as broad as and no less advantageous than habeas corpus.

The ONCA in Chaudhary determined that the immigration detention review system provided for in the IRPA does not meet these requirements.

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