Immigration Detention and Habeas Corpus

Abstract

In Canada (Public Safety and Emergency Preparedness) v Chhina (“Chhina”), a majority of the Supreme Court of Canada found that immigration detainees in detention of lengthy and uncertain duration may access habeas corpus relief at provincial superior courts. The majority held that the detention review scheme under the governing statute did not accord as broad and advantageous protection as that provided by habeas corpus. The author argues that Chhina is a positive development with missed opportunities. The Supreme Court laudably clarified the case law and narrowed the exception that previously barred immigration detainees from seeking any form of habeas corpus relief. Further, in finding that the governing detention review scheme is not as broad and advantageous as habeas corpus, the majority adopted a pragmatic approach and focused on how detention reviews are conducted, not on how they ought to be performed. Notwithstanding these strengths, the majority missed an opportunity to resolve the conflicting case law on three common issues that arise when detainees in lengthy immigration detention file habeas corpus petitions: (i) determining when a detention becomes unduly lengthy such that it is unlawful; (ii) developing a singular approach to calculating the duration of detention; and (iii) establishing the proper weight that should be ascribed to detainee cooperation in habeas corpus applications. Moreover, in omitting substantive discussions of the broader context surrounding immigration detention, the majority missed a valuable opportunity to fully shine the light on the shortcomings of immigration detention and in the process potentially usher in systemic changes.