Court of Appeal for Ontario
Date: August 13, 2018 Docket: C64522
Justices: Doherty, LaForme and Hourigan JJ.A.
Between
Ebrahim Toure Applicant (Appellant/Respondent by way of cross-appeal)
and
The Minister of Public Safety & Emergency Preparedness, Minister of Immigration, Refugees & Citizenship, Attorney General of Canada Respondents (Respondents/Appellants by way of cross-appeal)
Counsel
For the Appellant: Jared Will and Jean Marie Vecina
For the Respondents: Judy Michaely, Christopher Crighton and Susan Gans
For the Intervener, Attorney General of Ontario: Michael Dunn and Andrea Bolieiro
Heard: May 23, 2018
On Appeal
On appeal from the judgment of Justice A.J. O'Marra of the Superior Court of Justice, dated October 5, 2017, with reasons reported at 2017 ONSC 5878, 53 Imm. L.R. (4th) 188.
H.S. LaForme J.A.:
Introduction
[1] Ebrahim Toure believed his continued detention for immigration removal from Canada was unlawful. He commenced an application for release from immigration detention pursuant to the Habeas Corpus Act, R.S.O. 1990, c. H.1 and ss. 7, 9, 10(c), 12 and 24(1) of the Canadian Charter of Rights and Freedoms. His habeas corpus application was dismissed. Relief was, however, granted under s. 24(1) for a violation of his s. 12 Charter rights. The application judge found that Mr. Toure's detention in a maximum security jail was cruel and unusual and ordered his transfer to an immigration detention centre. Accordingly, Mr. Toure was removed from the maximum security provincial facility at Central East Correctional Centre ("CECC") to the Toronto Immigration Holding Centre ("IHC"), pending future detention reviews and removal.
[2] Mr. Toure appeals the application judge's order dismissing his habeas corpus application. At the same time, the Minister of Public Safety and Emergency Preparedness and the Attorney General of Canada (the "Minister") seek leave to appeal the application judge's order granting Mr. Toure s. 24(1) relief for violating his s. 12 Charter rights.
[3] For the following reasons, I conclude that Mr. Toure's appeal should be dismissed and the Minister's cross-appeal should be allowed.
Brief Background
[4] In June 2012, Mr. Toure, who claimed to be Guinean, had his immigration claim denied by the Immigration and Refugee Board under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). His application for judicial review was refused and he was placed on a conditional departure order with terms and conditions pending his removal from Canada. He failed to report for a required interview with the Canadian Border Security Agency ("CBSA") resulting in his arrest and his detention at the IHC in February 2013. Following a detention review in February 2013, he was found to be a flight risk and his continued detention was ordered.
[5] Attempts were made by the CBSA to remove Mr. Toure to Guinea, however, Guinean authorities found that his Guinean birth certificate was fraudulent and refused him entry. He told Guinean authorities that he was not Guinean but had status in The Gambia through his father. Further, he was unable to speak or understand French, the official language of Guinea. On his return to Canada he continued to proclaim that his citizenship was Guinean.
[6] Since his return to Canada in April 2013, and until the order under appeal, Mr. Toure had been detained in the CECC rather than the IHC. The CBSA claims he does not meet the criteria for detention in a lower risk facility; the only one in Ontario being the IHC. At the time of his appeal he has had more than 56 detention reviews; all have concluded that his continued detention is required because he poses a flight risk, specifically that he would not appear for removal.
Issues
[7] On the appeal, Mr. Toure submits that the application judge erred in three respects: (1) he improperly applied the legal test at the jurisdictional stage; (2) he found there was a reasonable prospect of removal within a reasonable time; and (3) he sanctioned indefinite detention.
[8] On the cross-appeal, the Minister submits the application judge committed the following errors: (1) he failed to properly identify and apply the legal test to decide whether Mr. Toure's detention constituted a breach of s. 12 of the Charter; and (2) in factually concluding that the duration and conditions of Mr. Toure's detention constituted a breach of s. 12.
(a) Jurisdiction and Mootness
[9] Before proceeding to discuss the main issues just identified, I will briefly dispose of two peripheral matters. First, this court was satisfied that these appeals were properly before us, rather than the Divisional Court as provided for in s. 8(1) of the Habeas Corpus Act. We agreed with the positions of the parties, namely: (i) the cross-appeal concerned the s. 24(1) Charter remedy that was granted to Mr. Toure for a breach of his s. 12 Charter rights; and (ii) Mr. Toure sought relief under ss. 10(c) and 24(1) of the Charter, in addition to habeas corpus. Accordingly, s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides this court the requisite jurisdiction to hear the appeals.
[10] Second, Mr. Toure argues that the cross-appeal is moot as he is currently detained at the IHC rather than the CECC pursuant to the order under cross-appeal, and neither the Minister nor the Intervener seek an order that he be transferred out of the IHC. He submits that any decision on the cross-appeal will not resolve a live controversy affecting the rights of the parties.
[11] We do not agree that the cross-appeal is clearly moot. And in any event, having regard to the factors identified in Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, we conclude that it is appropriate to decide the matter. The interests of judicial economy would be better served by rendering a decision on the cross-appeal, the adversarial context remains and the cross-appeal was fully argued by all sides, and rendering a decision in these circumstances is consistent with the role of the judiciary.
I. The Appeal
Issue 1: Did the application judge err in applying the required test at the jurisdictional stage?
[12] Habeas corpus applications proceed in two stages. First, 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.
[13] In Mr. Toure's case, the issue for the application judge was whether Mr. Toure's habeas corpus application was directed solely at his detention pending disposition of his immigration issues. A detention that is longer than is reasonably necessary to further the machinery of immigration control cannot be justified and continued detention will violate the detainee's ss. 7 and 9 Charter rights; his continued detention would be unlawful: Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, at para. 81. The two-stage process then proceeds in the following fashion.
[14] First, in order that his habeas corpus application could be heard on the merits, Mr. Toure had the onus to show that reasonable and probable grounds existed for his complaint. Specifically, as his application alleged, his detention is unlawful because: (i) it has been exceptionally lengthy; and, (ii) his continued detention is of uncertain duration.
[15] Second, if Mr. Toure established his complaint, the Minister was required to satisfy the court that, despite its length and uncertain duration, the continued detention of Mr. Toure was still justified because it is reasonably necessary to further the machinery of immigration control: Chaudhary, at para. 81. Thus, if there was no reasonable prospect that the detention's immigration related purposes would be achieved within a reasonable time, Mr. Toure's continued detention would violate his Charter rights. What is a reasonable prospect of his removal within a reasonable time will depend on the circumstances.
(a) The First Stage Conclusion
[16] The application judge referenced the test described by this court in Chaudhary to determine at the first stage whether he should assume habeas corpus jurisdiction. He first found that Mr. Toure's detention from the time he admitted he was Gambian — calculated at 21 months — was unduly lengthy. However, in his reasons under the heading "uncertain duration", at para. 41, he described the issue as follows:
I agree with the respondent that the applicant does not satisfy the uncertain duration criteria simply by asserting that no scheduled date for removal has been set. The issue is whether removal will occur within a reasonable time. What will be considered reasonable will depend on the circumstances, which includes the applicant's emerging cooperation with the removal process, the direct participation of the country to which he will be removed and satisfying its requirements to obtain the necessary travel documents.
He went on to state at para. 44:
It cannot be said that there is no reasonable prospect that some development is likely to occur that will provide the necessary documentation to permit the applicant to be removed, rendering his detention indeterminate.
[17] And at para. 45 he concluded: "the applicant has not satisfied the criteria that his detention, although lengthy, is of uncertain duration." In other words, he found that Mr. Toure had failed to raise a legitimate ground upon which to question the legality of his detention; there was no foundation to assume jurisdiction.
(b) Submissions
[18] Mr. Toure submits the application judge erred at this first stage in two respects. First, he contends the application judge erroneously asked whether Mr. Toure's removal would occur in a reasonable time. He argues that the only question at this stage was whether the future length of detention was uncertain. The approach taken, he says, had the effect of shifting the onus on to Mr. Toure. It is the Minister, he says, once jurisdiction has been established, that must demonstrate that the detention is legal despite its length and uncertain duration — that there is a reasonable prospect that the detention's immigration-related purposes would be achieved within a reasonable time.
[19] The second error, Mr. Toure argues, occurred when the application judge determined that he only had jurisdiction to hear the application if Mr. Toure established that his detention was both lengthy and of uncertain duration. In support of his submission that this is now wrong in law, he relies on this court's decision in Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, [2017] O.J. No. 5702 ("Ogiamien #2"), which was released subsequent to the decision under appeal.
[20] I cannot accept either submission. My explanation for this will be set out below in reverse order.
(c) Analysis
(i) Extent of the Superior Court's Jurisdiction
[21] The test set out in Chaudhary governing when the Superior Court can exercise its jurisdiction to hear an application by an immigration detainee is conjunctive. Chaudhary, at para. 81, makes it clear that, in the circumstances of that case, the detention complained of at the jurisdiction stage must be both very lengthy and of uncertain duration. This was affirmed in this court's recent decision in Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124, at para. 32.
[22] Mr. Toure submits that jurisdiction of a Superior Court to hear habeas corpus applications brought by immigration detainees is not limited to cases of lengthy detentions of uncertain duration. He argues that, on his application, the application judge took an unnecessarily narrow view of his jurisdiction. He relies on Ogiamien #2 in support.
[23] I accept Mr. Toure's general submission and his reliance on Ogiamien #2; the principle applied in Chaudhary is not restricted to the specific facts considered in that case. In Ogiamien #2, at para. 41, this court rejected the contention that habeas corpus will only be available in immigration matters in the case of lengthy detentions of uncertain duration. It went on in that same paragraph to explain 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.
[24] However, I do not accept Mr. Toure's submission that the application judge erred because he concluded that he could take jurisdiction only if the first part of the Chaudhary test was met. I say this for several reasons.
[25] First, Ogiamien #2 was released after the application judge rendered his decision in this matter. Second, the decision, while recognizing that there may be other exceptional circumstances where habeas corpus is available to an immigration detainee, maintains the Chaudhary test.
[26] The question regarding any issue in immigration habeas corpus matters, other than in the case of lengthy detentions of uncertain duration, will be, whether there is a complete, comprehensive and expert alternative remedy that is as broad and advantageous as a habeas corpus application: Chhina v. Canada (Public Safety and Emergency Preparedness), 2017 ABCA 248, 56 Alta. L.R. (6th) 1, at para. 34. The application must not be a challenge to the detainee's immigration status. Rather, it must address the question of whether the detention furthers the machinery of immigration control.
[27] Third, and most significant, Mr. Toure specifically relied on the Chaudhary test in support of his application. He did not argue that the court had jurisdiction to hear his application because of other exceptional circumstances. The necessary question referenced in Chhina was neither raised by nor addressed by Mr. Toure, or consequently by the application judge, in his habeas corpus application. Any such arguments raised for the first time on appeal should not be considered.
(ii) Shifting of the Onus
[28] The question here is whether the application judge's description of Mr. Toure's onus at the jurisdiction stage as including, "whether removal will occur within a reasonable time" had the effect of shifting the Minister's onus on to him. In my view, it did not.
[29] Chaudhary does not set a maximum length of detention; instead, it prescribes a fact-driven analysis in which there is a balancing of the statutory reasons for detention and the prospect of removal within a reasonably foreseeable timeframe against a detainee's rights not to be detained arbitrarily or for indefinite periods: Brown, at para. 31. Further, this court noted in Brown at para. 32:
While the length of the detention is a critical factor in that analysis, the question of when it can be reasonably anticipated that the removal order will be executed is another important consideration. In that sense, it is principally a forward-looking test and not one where reasonable decisions are later made to appear as having been unreasonable with the benefit of hindsight.
[30] Thus, in assessing uncertain duration, a reviewing body is to have regard for the facts of the case at the time of the application. This may involve consideration of whether there is a reasonable prospect that removal will be achieved within a reasonable time.
[31] The application judge considered the relevant facts and concluded that Mr. Toure's continued detention was not of "uncertain duration". Rather, looking forward, he found it would be ended within a time that is reasonable in all the circumstances. In doing so, he did not improperly shift any onus.
Issue 2: Did the application judge err in finding that there was a reasonable prospect of removal within a reasonable time?
[32] In deciding that Mr. Toure had not established that his detention was of uncertain duration, the application judge considered whether there was a reasonable prospect that his removal would be achieved within a reasonable time. He concluded that it would and briefly described why at para. 43:
…[I]n this matter a "breakthrough" will occur as soon as the applicant confirms identifying information and provides truthful and accurate information about his history in Gambia, necessary to assist in securing his travel document, particularly when interviewed by the Gambian authorities, an interview which is pending.
[33] Mr. Toure submits the application judge committed numerous errors in arriving at his ultimate finding. I do not agree.
(a) Alleged Errors of Fact
[34] It was open to the application judge to conclude that a breakthrough would occur with Mr. Toure's cooperation. The application judge acknowledged Mr. Toure's emerging cooperation with the removal process, accepted that there were steps Mr. Toure could take to assist the process, and concluded that a breakthrough could occur as soon as he did so. Mr. Toure's own actions and assertions throughout make this more than "unfounded speculation."
[35] Mr. Toure cites Ali v. Canada (Minister of Citizenship and Immigration), 2015 FC 1012, [2015] F.C.J. No. 1008 and Canada (Minister of Citizenship and Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433 to argue that the application judge erred in relying on uncertain future events in the removal process. He submits that these uncertainties can be of no assistance. These cases are distinguishable on their facts. Further, they make clear that in assessing uncertain duration a reviewing body is to have regard to the actual facts of the case. In this case, the lack of certainty about the Gambian embassy interview, which Mr. Toure points to, is of less importance than Mr. Toure's cooperation.
[36] It is important to note that Mr. Toure is not being detained because of his failure to cooperate, as he claims. His detention is in fact because of concerns, based on his past conduct, of him failing to appear for proceedings involving his immigration issues when required to do so. His non-cooperation is but one factor - a significant one to be sure - in the CBSA's ongoing efforts to remove him from Canada.
[37] Mr. Toure also complains that the application judge did not fairly consider his mental health, that he has no criminal charges, and that he is not a danger to the public. He argues that more importance was unfairly placed on his varying cooperation with the CBSA. The application judge did not err in his consideration of these issues given that he was deciding whether Mr. Toure's detention was of uncertain duration. Mr. Toure's complaints about these other factors are not relevant to this issue.
[38] On a fair review of the record, there is a reasonable prospect that Mr. Toure's current situation is going to change. More specifically, there is a reasonable prospect that some development is likely to occur that will provide the necessary documentation that would permit Mr. Toure to be removed. It seems clear that Mr. Toure's detention is not likely to continue for an indeterminate period. His cooperation will undoubtedly expedite what needs to follow.
[39] Finally, the application judge was not required to calculate precisely what would constitute a reasonable time. The onus was on Mr. Toure to demonstrate that his detention was of an uncertain duration. He failed to do so.
(b) Procedural Fairness Regarding Disclosure
[40] Contrary to the submissions of Mr. Toure, there was no breach of procedural fairness at his habeas corpus application regarding disclosure. I reach this conclusion for two reasons.
[41] First, the fact that the application judge noted that Mr. Toure had not pursued juridical review or an adjournment regarding the Immigration Division's refusal to grant further disclosure had nothing to do with his conclusion on disclosure, such as it was.
[42] Second, Mr. Toure did not make a motion before the application judge for disclosure in his habeas corpus application. He had brought a previous unsuccessful motion before a different judge, which he did not appeal. Although Mr. Toure's counsel did reference disclosure in his submissions on his habeas corpus application; he did not bring a second motion. Instead, at the conclusion of the oral evidence, Mr. Toure's counsel handed the application judge a list of documents he felt should be disclosed. When asked whether he intended to pursue a motion with respect to these documents, counsel stated that he would only do so "in the event the court concluded that [the Minister] may have met their burden" in proving the legality of detention.
[43] On this record, the disclosure issue is far from being an example of severe unfairness and a breach of fundamental justice, as Mr. Toure submits. There is no merit whatsoever in this submission.
Issue 3: Did the application judge sanction indefinite detention?
[44] Mr. Toure submits that the justification underpinning the application judge's decision is that "a detainee's lack of active cooperation with removal proceedings will justify indefinite detention." He says that Mr. Toure's detention, according to the application judge:
…has been and will continue to be lawful for however long that he does not cooperate with removal efforts. In other words, indefinite detention is a just punishment for non-cooperation with deportation.
[45] This interpretation of the application judge's conclusion is a flawed reading of his reasons, in my view. When his reasons are read as a whole and fairly considered, they do not endorse indefinite detention in the immigration context based on non-cooperation alone. To the contrary, they clearly reveal that the application judge properly considered Mr. Toure's lack of cooperation only as an important factor in his ongoing detention. As the Minister notes, it is a well-established principle that unexplained delay or lack of diligence should count against the offending party: see Ali v. Canada (Attorney General), 2017 ONSC 2660, 137 O.R. (3d) 498, at para. 22. This does not convert the lack of cooperation into the reason for detention.
[46] Non-cooperation is clearly a factor that may contribute to the length of someone's detention. In Mr. Toure's case, the application judge, while noting that his failure to cooperate in the past with the CBSA is a significant factor, also considered all the other facts of the case. This included a summary of the CBSA efforts to identify Mr. Toure, the failed attempt to remove him to Guinea, and his reason for continued detention, namely, he was found to be a flight risk.
[47] Mr. Toure argues that his detention is contrary to international norms against indefinite detention. This submission is contrary to the jurisprudence and has not persuaded me that Mr. Toure's detention runs afoul of Canada's international commitments. Canada's immigration detention system operates differently from the regimes in other nations, but it remains constitutionally compliant primarily because it provides an effective review process that meets the requirements of Canadian law: Brown, at paras. 37-38. Importantly, the constitutionality of the immigration detention scheme was simply not at issue below.
[48] This submission is without merit.
[49] In the result, I would dismiss the appeal.
II. The Cross-Appeal
Section 12 of the Charter
[50] Mr. Toure argued that his detention in a maximum security provincial facility for an extended period of time constituted cruel and unusual punishment and was contrary to s. 12 of the Charter. He did not submit an affidavit or testify on the application hearing. His counsel submitted that no personal evidence was required for Mr. Toure to meet his low evidentiary burden on the habeas corpus application. It appears that this approach was not adjusted to take into account the more difficult task faced by Mr. Toure in seeking relief under s. 24(1) of the Charter for an infringement of s. 12.
[51] Applicants must meet a low threshold at the jurisdictional stage of a habeas corpus application. They must demonstrate that they have been deprived of liberty, and that a reasonable or probable ground exists for their complaint: see Chaudhary, at para. 81. In other words, an applicant need only lead enough evidence to show "there is a cause to doubt the legality of his detention": see May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 71. Once this threshold is met, the court can exercise its jurisdiction to hear the habeas corpus application, and the onus to prove the legality of the detention falls on the authorities.
[52] In contrast, applicants seeking s. 24(1) relief for infringement of their s. 12 rights face a high bar: see Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, 416 D.L.R. (4th) 124 ("Ogiamien #1"), at para. 9. The burden is on the applicant to show, on a balance of probabilities, that s. 12 has been infringed: see R. v. Collins, [1987] 1 S.C.R. 265, at p. 277. As I discuss below, this requires demonstrating that the treatment is such that it would outrage the standards of decency, or that Canadians would find it abhorrent.
[53] The difference in what an applicant must demonstrate on a habeas corpus application versus a s. 12 application seeking s. 24(1) relief is central to the outcome of this cross-appeal.
[54] As I noted earlier, there are two alleged errors the Minister claims the application judge made in concluding that the duration and conditions of Mr. Toure's detention constituted a breach of s. 12 of the Charter. The first is his identification and application of the legal test. The second is in regards to his findings of fact. I will discuss each of these submissions in turn.
(1) The Test to Assess Cruel and Unusual Treatment
[55] In conducting his s. 12 Charter analysis, the application judge first referred to the Supreme Court's decision in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, which held that the immigration detention review scheme in the IRPA and its regulations does not violate s. 12. This is because, as Charkaoui states at para. 123, "[IRPA] permits robust ongoing judicial review of the continued need for and justice of the detainee's detention pending deportation". However, Charkaoui also cautions that there is the possibility that "at a certain point … a particular detention constitutes cruel and unusual treatment … and therefore infringes the Charter".
[56] The application judge referred to the Supreme Court's decision in Regina v. Smith, [1987] 1 S.C.R. 1045 for the framework for determining whether a detention constitutes cruel and unusual punishment. In particular, he relied on Smith at p. 1072 where Lamer J. described cruel and unusual punishment in the sentencing context as being "grossly disproportionate" to appropriate punishment and so excessively lengthy "as to outrage standards of decency" (the majority of the court agreed on this point). The application judge added to this that gross disproportionality is made out where the length of imprisonment is abhorrent or intolerable to society. This is consistent with R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26, wherein Gonthier J., writing for the majority, equated grossly disproportionate punishment with punishment "that Canadians would find … abhorrent or intolerable".
[57] The Minister and the Intervener argue that the application judge did not follow the framework endorsed in Ogiamien #1, at para. 10: (1) determine what treatment would have been appropriate, and (2) measure the actual treatment against this benchmark. While the application judge did not refer to or rely on this case in reaching his decision, I do not accept that his approach in his analysis amounts to an error.
[58] As it was in Ogiamien #1, Mr. Toure's case is about treatment and not punishment. In either case however, the test to establish a violation of s. 12 is the same. The words "cruel" and "unusual" colour each other and together express a standard or norm. That is, Mr. Toure is not required to establish each separately, and "cruel and unusual" is a high bar to meet: Ogiamien #1, at paras. 7-9.
[59] Ogiamien #1, in my view, did not set out the specifically referenced two-step process as the only possible manner of assessing s. 12 claims. Indeed, the framework followed in Ogiamien #1 was a recognition of the approach revealed in a statement in Smith, at p. 1072. That is, cruel and unusual punishment is "grossly disproportionate to what would have been appropriate". I am satisfied that the application judge specifically followed Smith and the two-step approach implied by this statement.
[60] I do not believe that Ogiamien #1 should be read as finding the approach taken by the application judge improper or inconsistent with asking whether 'the treatment is grossly disproportionate to the treatment that can be justified and is so excessive as to outrage standards of decency'.
(2) The Findings and Determination of the Application Judge on s. 12
[61] As expressed in Ogiamien #1 at para. 54, a determination of whether treatment is cruel and unusual requires a focus on the effect of the conduct in question — does it give rise to cruel and unusual treatment?
[62] In essence, the application judge accepted Mr. Toure's general assertion that his treatment of being detained in the CECC rather than in a facility dedicated to immigration detention amounted to cruel and unusual treatment. More specifically, he accepted that given Mr. Toure's flight risk concerns, the CBSA criteria for a lower security placement, and Mr. Toure's personal circumstances, his detention in "a maximum security facility in which prisoners are maintained on remand or to serve provincial reformatory periods of incarceration of less than two years", as opposed to the IHC, is "so excessive to be considered abhorrent and intolerable to our society": paras. 75 and 88. He made several findings to support this conclusion, which I will briefly describe below.
[63] First, the application judge addressed the process of detaining an immigration detainee. He noted that the CBSA decides whether to direct the detainee to a provincial maximum security facility or a location with a lesser degree of security. He seems to accept Mr. Toure's submission that this process falls short of providing any legal basis for making such a decision.
[64] Second, the application judge noted that in Mr. Toure's case there has been an ongoing process of review that has considered the issue of detention as Charkaoui requires. However, he also found that the place of his detention has not been considered on the reviews; "[he] has also no means to challenge his placement in the much harsher conditions of provincial jail".
[65] Third, the application judge noted that Mr. Toure has been detained for more than four years at the CECC. He then referred to a psychiatric assessment of Mr. Toure conducted on August 14, 2017, which revealed that he displayed symptoms of a dissociative state having intruding auditory and visual hallucinations.
[66] Fourth, he noted that Mr. Toure is considered a flight risk by the Immigration Division, but that no assessment has been undertaken as to whether his imprisonment is the most minimally impairing and proportionate disposition to deal with his risk. According to the criteria set out in the CBSA National Risk Assessment for Detention Guide, he more qualifies for placement in a less secure environment than a provincial detention centre.
[67] Finally, he concluded at para. 87 that while at the CECC Mr. Toure spent almost one and a half years in lockdown. "Mr. Toure has spent more time in a maximum security facility than someone convicted of a serious crime of violence".
[68] For these reasons, the application judge held, at para. 88, that:
The duration and conditions in which Mr. Toure has been kept has made his detention both cruel and unusual. The condition and duration of his detention is "so excessive to be considered abhorrent and intolerable to our society". The applicant's s. 12 rights have been breached as a result.
[69] The application judge ordered that Mr. Toure be removed forthwith from the maximum security provincial facility to the IHC, pending future detention reviews and removal. The order does not preclude alternate forms of community-based control where considered appropriate and necessary to minimize flight risk pending removal.
(3) Did Mr. Toure Meet the High Threshold to Establish a s. 12 Charter Breach?
[70] At the outset, it is long established that Charter applications should not be made in a factual vacuum. As has been repeatedly noted in these reasons, it is Mr. Toure's onus to put forward a rigorous record to overcome the high threshold required to demonstrate a breach of s. 12 of the Charter. In my view, the evidence in this case falls far short of concluding that Mr. Toure has met this high bar of showing his treatment was cruel and unusual. The errors made by the application judge are largely linked to the lack of evidentiary foundation.
[71] First, the application judge erred in finding that there is no legal basis for the process by which the CBSA makes decisions regarding an immigration detainee's placement of detention. The general immigration detention policies and procedures were not the subject of the underlying application. As the application judge noted, Charkaoui found the review scheme in the IRPA and its regulations consistent with s. 12 of the Charter because it provides for meaningful ongoing review taking into account the context and circumstances of an individual case.
[72] Mr. Toure had a mechanism to challenge his place of detention and to raise the conditions of the CECC with the CBSA. The jurisprudence supports this as did the Minister's evidence on the application. The application judge failed to properly consider this evidence, including that Mr. Toure had not asked the CBSA to transfer locations: see Brown, at para. 38. The location of detention is a proper issue for immigration detainees to raise with the CBSA. Particularly, if the location of their detention is not consistent with how they fit within the CBSA's own criteria. If this query is ignored, this decision is the proper subject of judicial review.
[73] The evidence supports the decision to place Mr. Toure at the CECC, which was a discretionary decision reviewable by the Federal Court. While Mr. Toure met several criteria for placement in a lower security detention centre, he also met several criteria for placement in a more secure, maximum facility. Mr. Toure provided no evidence to the contrary.
[74] Second, there is no evidence beyond the August 14, 2017 psychiatric assessment and nothing from Mr. Toure as to how it impacts on him or how it assists in establishing his claimed s. 12 Charter breach. Notably, the only time Mr. Toure has relied on the psychiatric assessment referenced by the application judge was at the hearing.
[75] Finally, while I accept that the application judge miscalculated the time Mr. Toure spent in lockdown, I do not necessarily agree that this was a palpable and overriding error. However, the application judge did err in two material ways regarding the evidence of lockdowns: (i) he did not explain how the lockdowns, or any conditions, departed from the ordinary conditions of detention in a manner that was grossly disproportionate; and (ii) he failed to examine the actual effect of lockdowns on Mr. Toure: see Ogiamien #1, at paras. 10, 54, 62, 68.
[76] The only evidence about the conditions of his detention at the CECC was the lockdown information. Mr. Toure provided virtually no evidence of how those conditions specifically affected him. There was no evidence whatsoever about:
the particulars of the CECC's size, categories of inmates, or placement options, for example high risk, low risk, or those on remand; and,
the CECC's daily living conditions such as the number of inmates in a holding cell, recreation options or socialization.
[77] The application judge's failure to determine how the lockdowns or conditions at the CECC rose to a level that was abhorrent or intolerable or so excessive as to outrage the standards of decency are fatal errors in Mr. Toure's case.
[78] Before concluding, I would make a final comment about the problems inherent in hearing Charter claims together with habeas corpus applications. As this court observed in Brown, at para. 20:
Because of the importance of the interests at stake, habeas corpus is intended to be a manner of quickly resolving the issue of the lawfulness of a person's deprivation of liberty: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 69. Courts are to give priority to such applications as they are deemed to be urgent.
[79] Habeas corpus applications are intended to be quick and impose a low threshold on the applicant. The onus largely falls on the authorities to justify the legality of the detention at issue. This stands in stark contrast to Charter s. 12 applications in which the applicant must create an evidentiary foundation sufficient to meet the high bar required by such proceedings. The difference in thresholds to be met by the applicant makes it difficult to hear both habeas corpus and Charter claims together in an expeditious manner while also providing the necessary evidentiary foundation.
[80] In Mr. Toure's case, the application judge's decision is internally inconsistent in that he found the detention to be lawful and that it ought to continue. However, he then relied on the duration of the detention to find a s. 12 Charter breach. The urgency of the habeas corpus application was impacted by such an approach as was the approach to meeting the high bar imposed by s. 12.
Disposition
[81] For all the foregoing reasons, I would dismiss the appeal and grant the cross-appeal.
Released: August 13, 2018
"H.S. LaForme J.A."
"I agree. Doherty J.A."
"I agree. C.W. Hourigan J.A."
