Court Of Appeal Summaries (August 13 – 17)

Good afternoon,

There were only two substantive civil decisions from the Court of Appeal this week.

In Toure v Canada (Public Safety & Emergency Preparedness), the Court of Appeal dismissed an appeal and allowed a cross-appeal from a decision that denied the appellant/applicant - who was a detainee at the Central East Correctional Centre pending his removal from Canada - his request to be released from immigration detention pursuant to the Habeas Corpus Act, but found the government to have breached the applicant's s. 12 Charter rights. As relief for this breach, the applicant was ordered transferred to the Toronto Immigration Holding Centre. The Court of Appeal found that the application judge made no errors either in law or in fact with respect to the issues around Habeas Corpus, but had made erroneous findings of fact with respect to the s.12 Charter analysis.

In Holterman v Fish, the Court of Appeal dismissed a leave application to appeal a costs award from the end of trial, on the basis that the appellants were attempting to rely evidence that they were unable to introduce at trial. To permit otherwise would be to allow a collateral attack on the previous decision.

Have a great weekend.

John Polyzogopoulos Blaney McMurtry LLP jpolyzogopoulos@blaney.com Tel: 416 593 2953 http://www.blaney.com/lawyers/john-polyzogopoulos

Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681

Keywords: Immigration Detention, Habeas Corpus, Uncertain Duration, Superior Court Jurisdiction, Reasonable Time, Indefinite Detention, Cruel and Unusual Punishment, Gross Disproportionality, Habeas Corpus Act, RSO 1990, c H 1, Charter of Rights and Freedoms, ss. 12 and 24, Immigration and Refugee Protection Act, SC 2001, c 27, Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, Brown v. Canada (Public Safety), 2018 ONCA 14, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, R. v. Smith, [1987] 1 SCR 1045, R. v. Morrissey, 2000 SCC 39

Holterman v. Fish,2018 ONCA 683

Keywords: Costs, Fresh Evidence, Collateral Attack

For short civil decisions, click here.

Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681

[Doherty, LaForme and Hourigan JJ.A.]

Counsel:

J. Will and J.M. Vecina, for the appellant

J. Michaely, C. Crighton and S. Gans, for the respondents

M. Dunn and A. Bolieiro, for the intervener, Attorney General of Ontario

Keywords: Immigration Detention, Habeas Corpus, Uncertain Duration, Superior Court Jurisdiction, Reasonable Time, Indefinite Detention, Cruel and Unusual Punishment, Gross Disproportionality, Habeas Corpus Act, RSO 1990, c H 1, Charter of Rights and Freedoms, ss. 12 and 24, Immigration and Refugee Protection Act, SC 2001, c 27, Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, Brown v. Canada (Public Safety), 2018 ONCA 14, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, R. v. Smith, [1987] 1 SCR 1045, R. v. Morrissey, 2000 SCC 39

Facts:

In June 2012, the appellant, who claimed to be Guinean, had his immigration claim denied by the Immigration and Refugee Board under the Immigration and Refugee Protection Act ("IRPA"). The appellant's application for judicial review was refused and he was placed on a conditional departure order with terms and conditions pending his removal from Canada.

After failing to report for a required interview with the Canadian Border Security Agency ("CBSA"), the appellant was arrested and detained at the Toronto Immigration Holding Centre ("IHC"). Following a detention review in February 2013, he was found to be a flight risk and his continued detention was ordered.

The CBSA attempted to remove the appellant to Guinea. Guinean authorities found that his Guinean birth certificate was fraudulent and refused him entry. Once returned to Canada, the appellant continued to proclaim that he was of Guinean citizenship.

Since the appellant's return to Canada in April 2013, and until the order under appeal, he had been detained in Central East Correctional Centre ("CECC") maximum security facility, rather than the IHC. The CBSA claimed that he did not meet the criteria for detention in a lower risk facility like the IHC. At the time of his appeal, the appellant he had more than 56 detention reviews, all of which concluded that his continued detention was required because he posed a flight risk-specifically that he would not appear for removal.

The appellant commenced an application for release from immigration detention pursuant to the Habeas...

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