Supreme Court Allows Use of Habeas Corpus Applications to Challenge Immigration Detention

Writ of Habeas Corpus and an order of release for Henry Vanderburgh

Today, the Supreme Court of Canada (SCC) released its decision in Canada (Public Safety and Emergency Preparedness) v Chhina[1], in which it confirmed the availability of habeas corpus applications for those seeking to challenge their immigration detention.

In this case, Mr. Tusuf Chhina was placed in immigration detention, and when he had been detained for 13 months, he filed a habeas corpus application, “arguing that his immigration detention had been unlawful” based on the conditions and length of his detention.[2] However, the trial judge declined to hear his application, because he felt that the existing legislative framework for challenging immigration detention was sufficient to preclude the use of habeas corpus. According to the “Peiroo exception,” if there is 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,”[3] then that legislative framework is to be used instead of a habeas corpus application to challenge ongoing detention.

In this case, the statutory framework in question was the Immigration and Refugee Protection Act (IRPA), which sets out how immigration detention orders are reviewed. While the trial judge found that IRPA’s review process satisfied the above exception, so a habeas corpus application should not be used, the SCC disagreed, and held that “IRPA proceedings do not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina has challenged the legality of his detention.”[4] One important way in which the SCC noted that the IRPA scheme “falls short” is that even though it sets out that immigration detention cases must be reviewed every 30 days, if the immigration officials make out a prima facie case to continue the immigration detention—which they can do simply by relying on past decisions from the detainee’s hearings—the onus is on the detainee to justify their release, rather than the immigration officials to justify the continued detention.[5] Consequently, the SCC held that these reviews are “susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances.”[6] Additionally, the SCC found that habeas corpus applications provide a more thorough and timely remedy for immigration detainees than the IRPA process.[7]

As a result, the SCC concluded that immigration detainees are able to use habeas corpus applications to challenge their ongoing detention, instead of having to rely solely on the framework set out in IRPA. This is an important victory in affirming the rights of those in immigration detention—allowing them a more robust framework through which to assert their right to liberty and freedom from unlawful detention.

The CCLA intervened in this case before the Supreme Court.


This blog post was written by a CCLA summer law volunteer. Views expressed do not necessarily reflect the views of the CCLA.

[1] 2019 SCC 29.

[2] Ibid at para 10.

[3] May v Ferndale Institution, 2005 SCC 82 at para 40.

[4] Chhina at para 53.

[5] Ibid at paras 59-62.

[6] Ibid at para 62.

[7] Ibid at paras 65-66.