Supreme Court Of Canada Affirms Access To Habeas Corpus For Immigration Detainees

The Supreme Court of Canada has breathed new life into the ancient writ of habeas corpus in a 6-1 decision1 affirming that detainees under the Immigration and Refugee Protection Act2 are not barred from seeking review of their detention by way of habeas corpus.

At issue in the appeal was whether an exception to the availability of habeas corpus in certain immigration contexts — known in the jurisprudence as the "Peiroo exception"3 — extended to circumstances where a person deprived of liberty under the IRPA seeks to challenge the legality of their detention by way of habeas corpus. According to the Peiroo exception case law, this depended on whether the immigration legislation "has put in place 'a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous.'"4 After a thorough examination of habeas corpus and the IRPA detention review scheme, a majority of the Supreme Court of Canada concluded that the IRPA scheme did not fall within the Peiroo exception. In so doing, the Supreme Court of Canada has affirmed a line of recent appellate jurisprudence5 which had opened the door to superior courts for immigration detainees seeking access to habeas corpus to challenge their detention.

The respondent Mr. Chhina had challenged his detention under the IRPA on the grounds that it was of a lengthy and uncertain duration.6 For the purpose of this challenge, the majority concluded that the IRPA detention review scheme was not "as broad and advantageous" as habeas corpus in at least three ways.

First, the majority concluded that the onus on review was more favourable to the detainee on habeas corpus than it is under the IRPA. This is because under the IRPA scheme the onus on the government is limited to demonstrating the presence of a statutory ground for detention,7 after which the onus shifts to the detainee to establish that continued detention would be unlawful by reason of its length and likely duration.8 By contrast, under habeas corpus, once the detainee establishes a legitimate ground to challenge detention, the onus shifts upon the government "to justify the legality of the detention in any respect."9 In addition, under the IRPA scheme the government could satisfy its onus by relying on reasons for ordering detention given at prior detention hearings.10 As a result, "the [IRPA] scheme fail[ed] to provide the detainee with the fresh and...