Court of Appeal for Ontario

Date: November 2, 2017

Docket: C62415 & C63154

Judges: Sharpe, Rouleau and van Rensburg JJ.A.

Parties

Between

Jamil Osai Ogiamien Applicant (Respondent)

and

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, and Maplehurst Correctional Complex and the Attorney General of Canada Respondents in Application (Appellant)

AND BETWEEN

Jamil Osai Ogiamien Applicant

and

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, and Central North Correctional Centre Respondents in Application

Counsel

Sharon Stewart Guthrie, Nicholas Dodokin, Monmi Goswami, and Marcia Pritzker Schmitt, for the appellant

Jamil Osai Ogiamien, acting in person

Brian Whitehead, for the Ministry of Community Safety and Correctional Services and the Attorney General of Ontario

Barbara Jackman, as amicus curiae

Heard: September 19, 2017

On appeal from: the judgments of Justice Kendra D. Coats of the Superior Court of Justice, dated June 1, 2016, with reasons reported at 2016 ONSC 4126, and dated November 24, 2016.

Decision

Sharpe J.A.:

[1] Introduction

[1] The Attorney General of Canada appeals two decisions involving the detention of the respondent, Jamil Ogiamien, an individual who had been detained on account of what the AG alleges is an outstanding deportation order. The first decision granted Ogiamien's request for habeas corpus on the ground that the detention was lengthy and of uncertain duration and that it could no longer be justified (C62415). The AG argues that the application judge made palpable and overriding errors of fact in granting habeas corpus and that she also erred by imposing conditions on Ogiamien's release and assuming jurisdiction to supervise any re-incarceration by immigration authorities. The second decision granted Ogiamien's request for release following his re-arrest by immigration officials (C63154).

[2] For the following reasons, I conclude that the application judge did not err by ordering Ogiamien's release on habeas corpus. However, I conclude that she did err by assuming jurisdiction to supervise any decision of the immigration authorities to re-incarcerate Ogiamien. As that condition should not have been imposed, the subsequent application to release Ogiamien should not have been entertained. However, as the AG did not, at the time, oppose the conditions and Ogiamien's subsequent application for judicial interim release was done on consent, I would not disturb the application judge's decision to once again release Ogiamien. However, the clause in which the application judge re-asserted supervisory jurisdiction over re-incarceration by the immigration authorities should be struck from the order and there should be provisions in the order allowing for the amendment or vacating of the order by the ID.

Background Facts

[3] While there is a lengthy and extensive history to this matter, for the purposes of this appeal, the essential facts may be briefly stated. Ogiamien came to the United States from Africa as a young boy with his uncle as an undocumented immigrant. In 2001, he fled from criminal proceedings in the United States and entered Canada without permission and under an assumed name. In February 2002, he was ordered deported because he had misrepresented his identity and because he had since incurred two criminal convictions in Canada. In July 2002, he was returned to the United States to face the outstanding criminal proceedings. A certificate of departure was issued upon his return to the United States.

[4] Following further criminal proceedings and an unsuccessful refugee claim in the United States, Ogiamien was deported back to Canada in 2005. He was detained for identity purposes by the Canada Border Services Agency ("CBSA") but then released on conditions in January 2006 by the Immigration Division of the Immigration and Refugee Board (the "ID") on the ground that the time until the removal order would be executed was indeterminate. Following his release, he moved to Montréal, married, had a son, established a business, and established contact with his siblings in Canada from whom he had been separated as a child. He reported to the CBSA in accordance with the ID release order, albeit on a somewhat irregular basis. He faced a number of criminal charges in Canada between 2009 and 2012. From 2006 until 2013, the CBSA took no steps to re-incarcerate him.

[5] Ogiamien was detained on criminal charges in Ontario in April 2013. As a result, he did not report to the CBSA under the terms of his ID release order. A CBSA arrest warrant was issued in February 2014 on the grounds that he had failed to report and that he was unlikely to appear for removal from Canada. The officer who issued the warrant testified in the habeas corpus proceedings that if he had known that Ogiamien failed to report because of his criminal detention, he would not have issued the warrant. When Ogiamien was released on bail for the criminal charges in May 2014, he was arrested pursuant to the CBSA warrant and remained in detention. The immigration detention at issue on this appeal began at that time. The criminal charges that led to his initial incarceration in April 2013 were withdrawn on July 16, 2014. His immigration detention was reviewed on a monthly basis by the ID but Ogiamien remained detained until his release on habeas corpus in June 2016. At that time, Ogiamien had been detained for immigration reasons for approximately 25 months.

Habeas Corpus Proceedings

[6] Ogiamien commenced his habeas corpus application in August 2014. Initially, he sought access to legal resources and writing materials to allow him to challenge his detention in the Federal Court. The application evolved over the next several months. The application judge attempted to ascertain whether Ogiamien had an effective remedy in the Federal Court. In October 2015, following the appointment of amicus and the release of this court's decision in Chaudhary v. Canada, 2015 ONCA 700, 127 O.R. (3d) 401, the habeas corpus application was amended to assert that Ogiamien's detention had become unlawful due to its length and uncertain duration. The application judge heard several witnesses regarding Ogiamien's detention and the availability of relief in the Federal Court.

[7] Ogiamien commenced another habeas corpus application challenging the conditions of his detention. He was successful at first instance: Ogiamien v. Ontario, 2016 ONSC 3080, 132 O.R. (3d) 176. However, this court allowed an appeal from that decision and set it aside: Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667.

Decision of the Application Judge on the Habeas Corpus Application

[8] The application judge found that Ogiamien had established reasonable and probable grounds that his detention was lengthy and of uncertain continued duration, and that the AG had failed to meet its onus of establishing that Ogiamien's continued detention was necessary to further the machinery of immigration control. She determined that Ogiamien was entitled to be released on habeas corpus. The AG did not argue that the application judge lacked authority to quash the detention order and impose certain terms and conditions on Ogiamien's release. Clause 13 of the conditions specified that the application judge would retain jurisdiction to review any subsequent arrest or detention.

Subsequent Proceedings

[9] About five months later, on October 5, 2016, Ogiamien was re-arrested by a CBSA officer because the officer believed Ogiamien had breached the conditions of his release by inaccurately completing an application for a Nigerian travel document. Ogiamien's sister withdrew as his surety and the AG consented to Ogiamien filing a new application for judicial interim release. However, at the hearing, the AG argued that absent a fresh habeas corpus application, there was no legal mechanism pursuant to which the application judge could consider Ogiamien's second application for release. The application judge rejected this argument, and held that the breaches alleged by the AG, including Ogiamien's completion of the Nigerian travel document, did not warrant his re-incarceration. She ordered his release on conditions similar to the first release order.

Issues

[10] The following issues are raised on these appeals:

First Appeal (C62415)

1. Did the application judge err in finding that Ogiamien had met the threshold established in Chaudhary for assuming habeas corpus jurisdiction?

2. Did the application judge err in finding that the detention was unlawful?

3. Were there additional grounds upon which the application judge could have granted habeas corpus?

4. Did the application judge err by quashing the ID detention order and imposing conditions to be supervised by her upon Ogiamien's release?

Second Appeal (C63154)

5. Did the application judge err by considering Ogiamien's request for release from immigration detention when he was re-arrested following his release on habeas corpus?

Analysis

1. Did the application judge err in finding that Ogiamien had met the threshold established in Chaudhary for assuming habeas corpus jurisdiction?

2. Did the application judge err in finding that the detention was unlawful?

[11] Habeas corpus applications proceed in two stages that correspond to the first two issues. At the first stage, the applicant must show that he or she has been deprived of liberty and that there is a legitimate ground upon which to question the legality of the detention. If the applicant succeeds in meeting that threshold, the onus shifts to the authorities to show that the deprivation of liberty is lawful: see Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 30.

The availability of habeas corpus in relation to immigration detention

[12] Chaudhary deals with the availability of habeas corpus in the context of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"). Chaudhary recognizes that habeas corpus is the most significant legal remedy available to protect personal liberty. The common law and constitutional right to habeas corpus serves to ensure the protection of two other Charter rights, namely the s. 7 right not to be deprived of liberty except in accordance with the principles of fundamental justice and the s. 9 right not to be arbitrarily detained or imprisoned: Chaudhary, at para. 39, citing May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 22.

[13] Chaudhary considered this principle and the decision of this court in Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253, 60 D.L.R. (4th) 574, leave to appeal refused, [1989] S.C.C.A. No. 322 in relation to lengthy immigration detentions. Chaudhary held, at para. 81, that a detention that is longer than is reasonably necessary to further the machinery of immigration control cannot be justified. Chaudhary accepted, at para. 3, the so-called "Peiroo exception", adopted by the Supreme Court in Reza v. Canada, [1994] 2 S.C.R. 394, and May, at para. 40, and held that "in immigration matters, where a complete, comprehensive and expert statutory scheme provides for a review that is at least as broad as and no less advantageous than habeas corpus, habeas corpus is precluded." However, at para. 54, Chaudhary rejected the proposition that the Peiroo exception amounts to "a blanket exclusion of habeas corpus in immigration-related matters." Rather, this court held that where "the issue is the legality of a continuing lengthy detention of uncertain duration", habeas corpus jurisdiction may be available as the process under the IRPA for the review of such detentions "is not as broad and is less advantageous than habeas corpus."

[14] Habeas corpus cannot be used to mount a collateral attack on immigration decisions for which a comprehensive review process exists. However, where the applicant is subject to an immigration detention that has become illegal and violates the applicant's s. 7 and 9 Charter rights, habeas corpus will lie if the statutory scheme provides a less efficacious remedy.

[15] In Chaudhary, this court noted three important differences between the IRPA process and habeas corpus that makes resort to habeas corpus in the Superior Court appropriate in the case of lengthy immigration detentions of uncertain duration.

[16] First, on habeas corpus, the issue is whether, given its length and uncertain duration, the detention can be justified as furthering an immigration-related purpose. Under the IRPA scheme, the only issue for the ID is whether one of the five grounds for detention listed in s. 58 of the IRPA has been established. As Chaudhary puts it, at para. 84, "the question that the court is to answer on a habeas corpus application is clearly more favourable to the [applicants] than the question to be answered on judicial review under IRPA."

[17] Second, on habeas corpus, the onus is on the Minister to justify the detention despite its length and uncertain duration. On an IRPA review, the Minister need only show that one of the grounds listed in s. 58 is satisfied and bears no onus in relation to the length and uncertain duration of the detention. Furthermore, the Minister is entitled to rely on the reasons given at prior detention hearings, and the ID must identify "clear and compelling reasons" to depart from those prior decisions to detain. This means that the longer the process continues, the more difficult it becomes for the applicant to show that a ground under s. 58 does not exist: Chaudhary, at paras. 87-89.

[18] Third, while recourse from the ID process is available by way of judicial review to the Federal Court, judicial review is discretionary and the applicant must obtain leave. Habeas corpus issues as of right upon establishing a deprivation of liberty and grounds to question the legality of the detention. Habeas corpus in the provincial Superior Courts also provides a local forum to access a remedy that can be obtained more quickly than judicial review in the Federal Court.

The Chaudhary Threshold for Habeas Corpus Jurisdiction: Legitimate Grounds to Question the Legality of the Detention

[19] The application judge applied the Chaudhary test to determine at the first stage that she should assume habeas corpus jurisdiction. She found that Ogiamien had raised a legitimate ground upon which to question the legality of his detention, namely, that as in Chaudhary, his immigration detention was lengthy and of uncertain duration.

[20] Before this court, the AG repeated most of the arguments made before the application judge. The AG acknowledges that these arguments relate to factual findings made by the application judge and that a deferential standard of review applies to those findings.

[21] The AG submits that the cause of the lengthy detention was Ogiamien's failure to discharge his obligation to establish his identity. The application judge made clear findings of fact rejecting that contention. I am not persuaded that the AG has advanced any argument that would justify this court in interfering with the application judge's findings.

[22] The reason for Ogiamien's immigration arrest and detention was that he had failed to report and that he was alleged to be a flight risk. As the application judge stated at para. 61: "His detention had nothing to do with establishing his identity or country of origin. It is therefore not reasonable to count against him any lack of cooperation in establishing his identity." I see no reason to reverse that finding. Ogiamien was not detained to enable CBSA to determine his identity or country of origin. While he undoubtedly had an obligation to provide information as to his identity, I do not think that on the facts of this case, any failure on his part to fulfil that duty has a significant bearing on the assessment of the length of his detention.

[23] The AG takes issue with the application judge's reliance on the fact that subsequent to Ogiamien's release in January 2006 and prior to his arrest in 2014 CBSA appears to have done nothing to investigate Ogiamien's claimed identity and nationality. In my view, the application judge did not err in taking into account the entire history of the immigration proceedings and the conduct of the CBSA to assess the length of the detention. The CBSA's failure to conduct an effective investigation for over eight years, combined with the fact that Ogiamien was not arrested because of any problem in determining his identity or country of origin, supports the application judge's inference that the length of the detention could not be explained away because of any lack of cooperation on Ogiamien's part.

[24] Nor do I accept that the application judge made a palpable and overriding error of fact in finding that Ogiamien did cooperate to some extent with the CBSA regarding his identity. She carefully considered the evidence and did not gloss over some of Ogiamien's evasive and inaccurate responses to CBSA inquiries. The application judge noted and took into account the fact that Ogiamien had provided some incomplete and inaccurate information regarding his mother and his siblings and that some of the statements he made were evasive and difficult, if not impossible, to reconcile. She concluded, at para. 68, "I accept that Mr. Ogiamien did not completely fulfill his responsibility to establish his identity". However, she rejected the contention that any lack of cooperation on his part should be considered to undermine his claim of a lengthy detention, concluding at para. 69 that "[a]ny 'fault' for the length of the detention cannot be laid solely on Mr. Ogiamien." He had cooperated to some extent, for example, by agreeing to be interviewed by both the Zimbabwean and Nigerian governments and by providing the CBSA with other information about his background. Moreover, as the application judge found, for the most part the CBSA had conducted its investigation during the period of Ogiamien's detention without asking for his assistance.

[25] In my view, these findings were supported by the record and I see no reason to interfere with them on appeal.

[26] Nor do I agree that the application judge erred by rejecting the contention that Ogiamien's failure to participate in the statutory ID reviews or to seek judicial review in the Federal Court should be held against him in calculating the length of his detention. He participated in the ID reviews for the first 18 months of his detention and there was nothing to suggest that either the ID or the Federal Court would have released him had he pursued those processes. That conclusion is consistent with the reasons in Chaudhary where the shortcomings of the ID process and judicial review, compared to habeas corpus, are fully explained. As the application judge noted, for most of the time Ogiamien had been self-represented. She also noted the difficulty he experienced in accessing the materials he would need to seek legal recourse in the Federal Court, which prompted him to seek habeas corpus at the outset. I see no reason to disturb these findings, which are well supported by the record.

[27] I would not disturb the application judge's rejection of the AG's argument that Ogiamien could be faulted for failing to provide identity documents from Nigeria, alleged by the AG to be his country of origin. There was nothing to suggest that he possessed such documents.

[28] I see no error in the application judge's finding that Ogiamien had established that his detention was of uncertain duration. She concluded, at para. 78, "that there is no way to reasonably estimate, with any degree of specificity, an end date to his immigration detention." There was no evidence in the record before her to suggest that identity documents required to effect Ogiamien's removal would be forthcoming in a timely manner from the Nigerian authorities.

[29] I note as well that the application judge accepted Ogiamien's contention that as a certificate of departure had been issued upon his return to the United States in 2002, there is a genuine issue as to whether the deportation order remains valid. That issue may have to be resolved by the Federal Court before he could be deported.

[30] Accordingly, I conclude that the application judge made no error that would justify this court disturbing her finding that Ogiamien satisfied the first stage of the habeas corpus analysis by showing that there is a legitimate ground upon which to question the legality of the detention, namely, that the detention was of lengthy and uncertain duration.

The AG's Onus: Legal Justification of the Detention for Immigration-Related Purposes

[31] At the second stage, the onus shifts to the AG to justify the detention. The AG submitted that the immigration purpose justifying the detention was that Ogiamien is a flight risk. The application judge rejected that argument, at para. 88, listing several factors, including the fact that he "was on immigration release from 2006 to 2014 and never tried to leave Canada."

[32] The application judge's reliance on this fact is problematic. The fact that a person subject to a deportation order has not tried to leave the country does not support an inference that he or she is not a flight risk in the immigration context.

[33] However, the application judge's finding that Ogiamien was not a flight risk did not rest on that fact alone. He had established a life in Canada and he has a Canadian child. While his reporting record was far from perfect, for eight years he lived in the community on conditional release, and he never disappeared or went underground. The cause of his failure to report, which led to his arrest in 2014, was that he was detained on criminal charges. He had presented a viable release plan which the application judge found, at para. 89, appropriately mitigated any concerns with respect to flight risk. The timing of Ogiamien's deportation remains uncertain, so the risk of flight was not increased on that account.

[34] I do not agree with the AG's submission that the application judge erred by relying on the fact that Ogiamien has a son in Canada as a factor. The Immigration and Refugee Protection Regulations, SOR/2002-227, s 245 (g) list "the existence of strong ties to a community in Canada" as a factor to be considered on the issue of flight risk. Lack of ties to the community may militate in favour of detention (see Canada (Minister of Citizenship & Immigration) v. B188, 2011 FC 94 at para. 43), and it has been held in some cases that ties to the community support the inference that the individual would appear for removal: see Canada (Minister of Citizenship & Immigration) v. B478, 2011 FC 23 at para. 18.

[35] The AG concedes that the application judge was entitled to consider the fact that Ogiamien had been held in maximum security as a factor at the first stage of the habeas corpus application. However, the AG asserts that she erred by considering it again in determining whether the AG had met the onus of justifying the legality of the detention. Assuming, without deciding, that the conditions of confinement should not have been considered at the second stage, I do not think that it carried any significant weight in the application judge's analysis of the legality of the detention.

[36] When the record is considered as a whole, I see no legal error and I am satisfied that there is sufficient evidence to support the application judge's finding that the AG failed to demonstrate that Ogiamien's continued detention was justified on the ground that he is a flight risk.

[37] Accordingly, I am not persuaded that there are grounds to interfere with the application judge's crucial findings that Ogiamien's detention was lengthy and of uncertain duration, and that the AG failed to satisfy the onus of demonstrating that the detention was reasonably necessary to further the machinery of immigration control.

3. Were there additional grounds upon which the application judge could have granted habeas corpus?

[38] Ogiamien raised several other grounds in support of his habeas corpus application. His principal additional argument was that the removal order was executed in July 2002 when he was sent to the United States to face the outstanding criminal charges. He submitted that a certificate of departure was completed and the removal order is therefore no longer valid. He also submitted that his initial detention was invalid as the officer was not familiar with the facts and could not make an informed decision on the need to detain. He complained that the ID hearings reviewing his detention were unfair and that he should not be held in a maximum security facility rather than in a CBSA holding centre.

[39] The application judge declined to consider these arguments as she concluded that Ogiamien should be released on the ground that his detention was lengthy and of uncertain duration and that it could no longer be justified. Amicus invites us to consider these alternate grounds. The AG responds with the submission that habeas corpus can only be granted in relation to an immigration detention on the specific ground identified in Chaudhary.

[40] As I would affirm the application judge's decision to order Ogiamien's release on habeas corpus, it is not necessary for me to consider these additional grounds. However, as the points were argued, and for the sake of completeness, I offer these comments.

[41] I do not accept the AG's contention that habeas corpus will only be available in immigration matters in the case of lengthy detentions of uncertain duration and that the reach of Chaudhary is restricted to its precise facts. That submission ignores the more general principle upon which Chaudhary rests. The general rule is that the provincial Superior Courts retain residual jurisdiction to entertain habeas corpus applications in the case of wrongful imprisonment. Habeas corpus "has never been a discretionary remedy" but "is issued as of right" and "as a matter of general principle, habeas corpus jurisdiction should not be declined merely because of the existence of an alternative remedy": May, at paras. 33-34. However, where there is an appeal or other more appropriate route to the court, collateral methods of attack are discouraged. This applies to immigration matters, where "courts have a limited discretion to refuse to entertain applications for prerogative relief": May, at para. 39. Habeas corpus will be excluded, but only where "Parliament 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": May, at para. 40. It follows that Chaudhary rests on the general principle that the Superior Court retains its residual jurisdiction to entertain habeas corpus applications where the IRPA process of review under the supervision of the Federal Court is less advantageous than habeas corpus, and where releasing the applicant would not alter the immigration status of the applicant or amount to a collateral attack on an immigration decision. The principle applied by this court in Chaudhary is not restricted to the specific facts considered in that case.

[42] On the other hand, I do not accept amicus' submission that the additional grounds raised by Ogiamien fall within the scope of that principle. In my view, determining whether the removal order is still valid falls squarely within the jurisdiction of the Federal Court under the IRPA. Similarly, any issue as to the initial arrest was a matter for the ID, and the fairness of ID hearings was subject to the supervision of the Federal Court on judicial review under the IRPA. As I have already noted, the issue of the place of detention and conditions of imprisonment have already been dealt with in a separate habeas corpus application.

4. Did the application judge err by quashing the ID detention order and by imposing conditions to be supervised by her upon Ogiamien's release?

[43] The AG concedes that on the habeas corpus application, it accepted that the application judge had the power to quash the ID detention order and impose conditions on Ogiamien's release. Before this court, the AG shifts its position and submits that the application judge erred in taking these steps. Ordinarily, a party is not entitled to change its position in this manner. However, the points were fully argued by amicus and we were asked to settle the matter. The AG indicated in oral argument that it did not intend at this point to take any steps to detain Ogiamien under the removal order. In these circumstances, it is appropriate for us to deal with the legal issues raised.

Quashing the Immigration Detention Order

[44] The AG argues that only the Federal Court could quash the detention order and that the application judge exceeded her jurisdiction in doing so. In my view, the issue of whether the application judge should have quashed the detention order in the context of this proceeding is purely academic and of no practical effect. Once Ogiamien was released on habeas corpus, the effect of the detention order was exhausted. He could not be re-arrested on the authority of the detention order, whether or not it was quashed. It is a longstanding principle in the law of habeas corpus that where the remedy is granted, a second arrest is precluded if it is "substantially for the same cause as the first", such that it would raise for the court "the same question with reference to the validity of the grounds of detention as the first": Attorney-General for Hong Kong v. Kwok-a-Sing (1873), L.R. 5 P.C. 179, at p. 202 (P.C.). Accordingly, I would not give effect to this ground of appeal.

Imposing Conditions of Release

[45] The application judge's order released Ogiamien on terms that she described as "judicial interim release pending his removal from Canada". The conditions of release included a recognizance in the amount of $30,000 without deposit but with a named surety who was required to make a deposit of $1,000, as well as further conditions including a curfew and regular reporting. The order also provided that the Superior Court and the application judge would remain seized of the matter to deal with any requested changes or alleged breaches and would monitor any attempt to re-incarcerate Ogiamien on the basis of any alleged breach of the terms. As originally drafted, clause 13 provided that the conditions imposed "shall not limit CBSA's arrest and detention powers under IRPA; however, if the intention is to re-incarcerate, the matter shall be brought back before this Court within 72 hours of the arrest or on the very next business day the court is open." When Ogiamien was re-arrested, and then again released by the application judge, clause 13 was amended to provide that it did in fact limit CBSA's statutory authority: "This clause limits CBSA's arrest and detention powers as legislated under the IRPA when any factual matter encompassed by this Order forms the basis of the CBSA Officer's decision to arrest and detain pursuant to section 55 of the IRPA".

[46] The AG submits that on habeas corpus, the application judge could only order Ogiamien's release and that she had no authority to impose conditions.

[47] I do not accept the general proposition advanced by the AG that a judge has never had authority to impose conditions when granting habeas corpus. I agree with the submission of amicus that such a rigid view would unduly impair the inherent powers of the Superior Court to ensure that its orders are effective. It would also be inconsistent with the need to ensure that the fundamental common law and constitutional right to habeas corpus remains a flexible and effective remedy. As the Supreme Court of Canada observed in Mission Institution v. Kehla, at para. 54: "This remedy is crucial to those whose residual liberty has been taken from them by the state, and this alone suffices to ensure that it is rarely subject to restrictions."

[48] It would be inconsistent with the public interest if the judge on habeas corpus lacked the authority to impose appropriate conditions to protect public safety and respect for the law. Moreover, there are cases where outright or unconditional release would be inappropriate but where incarceration is not justified. In such cases, applicants would be denied access to the remedy of habeas corpus because judges would inevitably feel compelled to maintain detention if their only other option was outright release. To deprive the Superior Court of jurisdiction to craft an appropriate order in such a case would represent an undue and unwarranted restriction on the remedy of habeas corpus.

[49] The case law provides many examples where release on habeas corpus is conditional. Amicus refers to the prison transfer cases where the order on habeas corpus is not that the successful applicant be released outright but that he or she be transferred to a less restrictive form of incarceration: see R. v. Miller, [1985] 2 S.C.R. 613, 52 O.R. (2d) 585. Most directly on point is the historical use of habeas corpus as the principal means of securing bail pending trial in criminal proceedings: see Judith Farbey and R. J. Sharpe, The Law of Habeas Corpus, 3rd ed. (Oxford: Oxford University Press, 2011) at pp. 148, 153-156. Bail is a form of conditional release. Section 7 of the Habeas Corpus Act, R.S.O. 1990, c. H.1, a pre-Confederation statute that continues to apply in Ontario, confirms the use of a habeas corpus to obtain bail. Bail has also been granted on habeas corpus in relation to both immigration and extradition detentions: Ex parte Augustin, [1976] C.A. 478, 31 C.C.C. (2d) 160 (Que. C.A.); Re Lawrence and the United States and The Queen (1980), 54 C.C.C. (2d) 551 (Man. C.A.). Post-Chaudhary decisions of the Superior Court have imposed conditions on release from immigration detention on habeas corpus. As noted by Nordheimer J. in Ali v. Canada (Attorney General), 2017 ONSC 2660, at para. 40: "If this court is ordering a release, then it is this court that should set the appropriate terms and conditions." See also Scotland v. Canada (AG), 2017 ONSC 4850, at paras. 78-79.

[50] The strict and rigid proposition advanced by the AG cannot withstand scrutiny in the face of these authorities and the principle that habeas corpus must remain a flexible and effective remedy.

[51] On the other hand, I agree with the submission that the application judge erred by assuming the power in clause 13 to review any attempt by the CBSA to arrest or detain Ogiamien for breach of conditions or pursuant to its statutory powers under the IRPA.

[52] First, as I have already noted, on the basis of the law of habeas corpus, the CBSA could not re-arrest or re-incarcerate Ogiamien following his release on the same grounds the application judge had found were wanting in law. It was therefore unnecessary for the application judge to retain jurisdiction to ensure that Ogiamien did not simply enter a revolving door that would immediately return him to the same lengthy and indeterminate detention from which he had just emerged.

[53] Second, a judge ordering judicial interim release does not ordinarily retain jurisdiction to supervise the enforcement of the conditions imposed. In my view, the application judge should not have retained jurisdiction to deal with any breach of conditions.

[54] Third, and most important, unless and until the Federal Court determines that Ogiamien is no longer subject to a valid deportation order, he remains subject to the IRPA scheme. Chaudhary makes it clear that his release on habeas corpus does not alter that fact. The IRPA provides in s. 55 for issuance of warrants and the power to arrest and detain foreign nationals where there are reasonable grounds to believe that the foreign national is "a danger to the public or is unlikely to appear for examination, for an admissibility hearing, for removal from Canada or at a proceeding that could lead to the making of a removal order". Section 56(1) gives an officer the power to release such an individual on "any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer considers necessary." If an officer does not grant release on conditions, s. 57 provides for review of any detention by the ID within 48 hours, a second review within 7 days and further reviews every 30 days thereafter. Section 58(3) provides for release on conditions. Releasing Ogiamien on habeas corpus did not exempt him from that scheme. In my respectful view, in the face of this statutory scheme, the application judge should not have assumed the authority that she did in clause 13 to require the CBSA to bring the matter back before her in the event Ogiamien were rearrested pursuant to the IRPA.

[55] It is common ground that the order for judicial interim release effectively ended when Ogiamien was re-arrested and it is therefore unnecessary to deal with clause 13 in the first appeal (C62415). However, as that clause was varied and attached to the subsequent order for judicial interim release, I would allow the second appeal (C63154), with respect to those parts of the order by which the application judge retained jurisdiction.

[56] When a Superior Court judge decides on habeas corpus to release a person subject to a removal order on conditions, the judge should be mindful that after release, the person will remain subject to the IRPA scheme until the removal order is executed or set aside. The judge obviously cannot make an order in the name of the ID but the judge should recognize that the ID's jurisdiction will be invoked if the person is re-arrested. Any conditions the judge imposes should take that into account and the judge should endeavor to minimize the potential for jurisdictional confusion and conflict.

[57] This can be achieved in two ways.

[58] First, the judge should be mindful of the conditions typically imposed by the ID. These appear to be very similar to conditions typically imposed on judicial interim release. The IRPA and regulations confer wide discretion upon the ID and CBSA officers to impose conditions on release. Section 58(3) of the IRPA provides that the ID may "impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions" when making a release order. There appear to be no prescribed standard terms but the Immigration, Refugees and Citizenship Canada, ENF 20 Detention (Operational Manual, December 22, 2015), at pp. 17-18, gives the following examples of conditions that may be imposed:

• report, when requested to do so by an officer, to any place, on any date and at any time for the purposes of arranging for their departure and removal from Canada;

• report to an officer on the date and time stipulated at the CBSA office nearest to their residence and thereafter (indicate frequency, e.g., every Tuesday);

• report to the Immigration Division of the IRB at the date and time stipulated, as required by the Immigration Division for their admissibility hearing and for any continuation thereof;

• report for any appointments ordered by an officer, to the place, on the date and at the time stipulated;

• inform the CBSA in writing without delay of any criminal charges or convictions;

• if a person decides to leave Canada, they must notify an officer of their departure arrangements, and must have their departure verified by an officer.

[59] Second, to minimize jurisdictional conflict and confusion, the order imposing conditions should provide that the conditions may be varied either by order of the court or of the ID. If the court is asked to vary the conditions, the court should ordinarily decline to exercise its jurisdiction and defer to the ID.

[60] This approach allows the Superior Court to deal with matters as they stand at the time the order releasing the person subject to a removal order has been made, but also allows the ID to deal with subsequent developments under the regime of the IRPA.

[61] Accordingly, in addition to striking clause 13, I would also strike clause 12 and replace it with a term providing the conditions may be varied or vacated if circumstances change by order of either the Superior Court or ID and amend clauses 3, 5, and 11 to provide that those conditions may also be varied or vacated if circumstances change by either the court or the ID.

5. Did the application judge err by considering Ogiamien's request for release from immigration detention when he was re-arrested following his release on habeas corpus?

[62] As I have noted, the application judge should not have assumed jurisdiction over the supervision of the conditions of Ogiamien's release in clause 13. She therefore should not have considered Ogiamien's second application for release. However, the AG consented to Ogiamien bringing that fresh application. The AG does not seek to re-incarcerate Ogiamien at this point. As I have already indicated, clause 13 is to be struck from the conditions of release. Accordingly, it is neither appropriate nor necessary for me to consider this ground of appeal further.

Disposition

[63] Accordingly, I would not disturb the application judge's order of release on habeas corpus. I would accordingly dismiss the appeal in C62415 but allow the appeal in C63154 in part as indicated in para. 61.

[64] An order has been made for the payment of the fees of amicus and, in my view, this is not a case in which any other order for costs should be made.

Released: November 2, 2017

"Robert J. Sharpe J.A."

"I agree Paul Rouleau J.A."

"I agree K. van Rensburg J.A."