Court of Appeal for Ontario

Date: 2018-06-29 Docket: C63889 Judges: Hourigan, Benotto and Fairburn JJ.A.

Between

Zhenhua Wang and Chunxiang Yan Appellants

and

Her Majesty the Queen in right of Canada, the Minister of Public Safety and Emergency Preparedness, and the Canada Border Services Agency Respondents

Counsel

Rocco Galati, for the appellants

James Todd and Nicholas Dodokin, for the respondents

Andrea Bolieiro, for the Attorney General for Ontario

Heard

April 30, 2018

Appeal

On appeal from the judgment of Justice J.F. Diamond of the Superior Court of Justice dated May 15, 2017, sitting without a jury, denying the applicants' request for a writ of habeas corpus.

Reasons for Decision

Jurisdiction

[1] This matter arises from an appeal against an order dismissing an application for habeas corpus in an immigration detention case: Wang v. Canada, 2017 ONSC 2841. At the outset of the appeal on April 30, 2018, counsel were asked for submissions on whether the court has jurisdiction to hear the appeal. Counsel were specifically asked to address the potential implications of s. 8(1) of the Habeas Corpus Act, R.S.O. 1990, c H.1 ("HCA"). That provision reads:

Appeal from remand to custody

8. (1) Where a person confined or restrained of his or her liberty is brought before a judge upon a writ of habeas corpus ad subjiciendum and is remanded into custody upon the original order or warrant of commitment or by virtue of any warrant, order or rule of such judge, such person may appeal from the decision or judgment of the judge to the Divisional Court, and thereupon the writ of habeas corpus ad subjiciendum, the return thereto, and the affidavits, depositions, evidence, conviction and other proceedings shall be certified by the proper officer to the Divisional Court. R.S.O. 1990, c. H.1, s. 8 (1).

[2] After brief oral submissions were provided, the court directed that counsel provide written submissions on the jurisdictional issue. In light of the appellants' position that s. 8(1) of the HCA cannot apply with respect to an application in the nature of habeas corpus brought under ss. 10(c) and 24(1) of the Canadian Charter of Rights and Freedoms, the Attorney General for Ontario was also invited to make written submissions on the jurisdictional point.

[3] Those submissions have now been received and considered. For the following reasons, we find that the court has jurisdiction to hear the appeal.

Factual Background

[4] The appellants are citizens of China and the Dominican Republic. They originally entered Canada on temporary resident visas in 2012. Pursuant to s. 55 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the appellants were arrested by the Canadian Border Services Agency in 2014 and held in immigration detention.

[5] There have been a number of detention reviews by the Immigration Division of the Immigration and Refugee Board followed by successful applications for judicial review brought in Federal Court. In November 2015, the Immigration Division ordered the appellants released from custodial detention and placed under house arrest. Since then, they have brought two successful applications before the Immigration Division to vary the terms and conditions of the order governing their house arrest. A third application to the Immigration Division to alter the terms of their release order was dismissed on February 2017.

[6] The appellants did not seek to have that decision judicially reviewed by the Federal Court. Instead, they pursued an application for a writ of habeas corpus in the Superior Court of Justice. The respondent then brought a motion pursuant to s. 106 of the Courts of Justice Act to have the appellants' application stayed for jurisdictional reasons on the basis that the appellants could not meet a precondition to invoking a writ of habeas corpus. Specifically, the respondent claimed that the appellants could not establish that they had been subjected to a deprivation of liberty.

Deprivation of Liberty as a Prerequisite

[7] As noted in Khela v. Mission Institution, 2014 SCC 24, at para. 30, a deprivation of liberty is a first step in determining whether habeas corpus can issue: "To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he or she has been deprived of liberty." Once a court has assessed the nature of the control or the restriction of rights and determined that the circumstances constitute a "significant curtailment of personal freedom", a writ of habeas corpus is available to question the legality of that control or restriction: Judith Farbey and R.J. Sharpe, The Law of Habeas Corpus, 3rd ed (Toronto: Oxford University Press, 2011), at pp. 194-195. In other words, habeas corpus is available to question the legality of deprivations of liberty. Where there is no deprivation of liberty, there is no need for habeas corpus.

[8] Diamond J. determined that the basis upon which the motion to stay the application directly overlapped with the first legal hurdle on the application for habeas corpus. Both required the court to answer whether the appellants were subjected to a deprivation of liberty. Accordingly, he concluded that the respondent's motion for a stay of proceedings was arguably "superfluous".

[9] In the end, Diamond J. did not decide the motion to stay. Instead, he dismissed the application for a writ of habeas corpus because he determined that there was no deprivation of liberty. Given his decision that there had been no restraint on the appellants' liberty, he was not required to go on and consider the actual test for habeas corpus.

Jurisdictional Analysis

[10] Although they take different positions, the parties and Attorney General for Ontario agree that this court has jurisdiction to hear the appeal from the Superior Court order dismissing the application for habeas corpus. We agree.

[11] Section 8(1) of the HCA – directing appeals to the Divisional Court – only applies where the circumstances set out in that provision are present. For s. 8(1) to apply, the person appealing must have been "confined or restrained of his or her liberty" and been "brought before a judge upon a writ of habeas corpus ad subjiciendum" and been "remanded into custody upon the original order or warrant of commitment or by virtue of any warrant, order or rule of such judge". Only where these statutory criteria are met, will the appellant be required to appeal the "decision or judgment of the judge to the Divisional Court". In all other situations, the appeal will lie to this court pursuant to s. 6(1)(b) of the CJA, as a final order of a judge of the Superior Court of Justice. The question, therefore, is whether the criteria under s. 8(1) of the HCA are met in this case.

[12] The answer to that question does not depend upon whether the decision being appealed from is correct or not. The answer is driven by the nature of the order being appealed from.

[13] Here, the application was dismissed on the basis that there was no deprivation of liberty. Whether that decision is right or wrong will be the subject of review on appeal. The question for purposes of jurisdiction, though, is whether that finding (no deprivation of liberty) triggers the application of s. 8(1). We conclude that it does not.

[14] Because the nature of Diamond J.'s dismissal order rests on his finding that the appellants were not deprived of liberty, the first prong of s. 8(1) is not met. The appellants are not "confined or restrained" of their liberty. Accordingly, there is no need to assess the remaining criteria in s. 8(1). The order appealed falls outside the scope of s. 8(1) of the HCA. Consequently, an appeal lies to this court under s. 6(1)(b) of the CJA.

Constitutional Issues

[15] Although the appellants raise additional arguments in favour of jurisdiction, including a constitutional attack on s. 8 of the HCA, there is no need to address these issues. However, our silence on those issues should not be construed as an agreement with the positions advanced, particularly in light of the absence of any Notice of Constitutional Question as required by s. 109 of the CJA.

Conclusion

[16] The parties should proceed to obtain the earliest date available for the hearing of the appeal.

"C.W. Hourigan J.A."

"M.L. Benotto J.A."

"Fairburn J.A."