Wang et al. v. Her Majesty the Queen in Right of Canada et al.

[Indexed as: Wang v. Canada]

Ontario Reports

Court of Appeal for Ontario

Hourigan, Nordheimer and Harvison Young JJ.A.

October 3, 2018

143 O.R. (3d) 161 | 2018 ONCA 798

Case Summary

Habeas corpus — Availability — Applicants released from immigration detention on terms and conditions that included house arrest — Applicants applying for habeas corpus — Application judge erring in finding that habeas corpus was not available to applicants as they were not held in custody — Purpose of habeas corpus being to protect individuals against any wrongful restraints on their liberty.

The applicants were released from immigration detention on terms and conditions that amounted to virtual house arrest. When their application to the Immigration Division of the Immigration and Refugee Board for modifications to the terms and conditions was rejected, they brought an application in the Superior Court of Justice for a writ of habeas corpus. The application judge found that habeas corpus was not available to the applicants as they were not being held in custody. The application was dismissed. The applicants appealed.

Held, the appeal should be allowed.

The application judge wrongly concluded that in order for there to be an infringement of liberty to which the writ of habeas corpus could apply, there has to be a detention in a custodial facility. The purpose of habeas corpus is to protect individuals against any wrongful restraints on their liberty. Once some form of deprivation of liberty is demonstrated, the first phase of the first stage of the application of habeas corpus is met. Whether the balance of the requirements for habeas corpus were met in this case was a matter for the Superior Court of Justice to determine when the application was fully argued.

Authorities Cited

Cases Referred to:

Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 127 O.R. (3d) 401, [2015] O.J. No. 5438, 2015 ONCA 700, 343 C.R.R. (2d) 146, 92 Admin. L.R. (5th) 147, 390 D.L.R. (4th) 598, 340 O.A.C. 211, 38 Imm. L.R. (4th) 210, 259 A.C.W.S. (3d) 131

Ewanchuk v. Canada (Attorney General), [2017] A.J. No. 333, 2017 ABQB 237, 54 Alta. L.R. (6th) 135, 378 C.R.R. (2d) 1, [2017] 9 W.W.R. 533, 354 C.C.C. (3d) 119, 138 W.C.B. (2d) 365

Lee v. Canada (Attorney General), [2018] A.J. No. 51, 2018 ABQB 40, 403 C.R.R. (2d) 194

May v. Ferndale Institution, [2005] 3 S.C.R. 809, [2005] S.C.J. No. 84, 2005 SCC 82, 261 D.L.R. (4th) 541, 343 N.R. 69, [2006] 5 W.W.R. 65, J.E. 2006-103, 220 B.C.A.C. 1, 49 B.C.L.R. (4th) 199, 204 C.C.C. (3d) 1, 34 C.R. (6th) 228, 136 C.R.R. (2d) 146, 68 W.C.B. (2d) 59

R. v. Ethier, [2009] O.J. No. 1118

Other cases referred to:

Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, 24 D.L.R. (4th) 44, 63 N.R. 353, [1986] 1 W.W.R. 577, J.E. 86-41, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 15 W.C.B. 331

Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991

Mission Institution v. Khela, [2014] 1 S.C.R. 502, [2014] S.C.J. No. 24, 2014 SCC 24, 2014EXP-1049, J.E. 2014-569, EYB 2014-235045, 455 N.R. 279, 64 Admin. L.R. (5th) 171, 351 B.C.A.C. 91, 307 C.C.C. (3d) 427, 306 C.R.R. (2d) 66, 9 C.R. (7th) 1, 112 W.C.B. (2d) 458

Morin v. Canada (National Special Handling Unit Review Committee), [1985] 2 S.C.R. 662, [1985] S.C.J. No. 80, 24 D.L.R. (4th) 71, 63 N.R. 363, 16 Admin. L.R. 264, 23 C.C.C. (3d) 132, 49 C.R. (3d) 26, 15 W.C.B. 336

R. v. Downes (2006), 79 O.R. (3d) 321, [2006] O.J. No. 555, 208 O.A.C. 324, 205 C.C.C. (3d) 488, 37 C.R. (6th) 46, 69 W.C.B. (2d) 12 (C.A.)

R. v. Gamble, [1988] 2 S.C.R. 595, [1988] S.C.J. No. 87, 89 N.R. 161, J.E. 89-44, 31 O.A.C. 81, 45 C.C.C. (3d) 204, 66 C.R. (3d) 193, 37 C.R.R. 1, 6 W.C.B. (2d) 72

R. v. Miller, [1985] 2 S.C.R. 613, [1985] S.C.J. No. 79, 24 D.L.R. (4th) 9, 63 N.R. 321, 14 O.A.C. 33, 16 Admin. L.R. 184, 23 C.C.C. (3d) 97, 49 C.R. (3d) 1, 15 W.C.B. 332

R. v. Panday (2007), 87 O.R. (3d) 1, [2007] O.J. No. 3377, 2007 ONCA 598, 228 O.A.C. 160, 226 C.C.C. (3d) 349, 51 C.R. (6th) 126, 163 C.R.R. (2d) 152, 76 W.C.B. (2d) 148

R. v. Pearson, [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, 144 N.R. 243, J.E. 92-1760, 52 Q.A.C. 1, 77 C.C.C. (3d) 124, 17 C.R. (4th) 1, 12 C.R.R. (2d) 1, 17 W.C.B. (2d) 576

Toure v. Canada (Minister of Public Safety and Emergency Preparedness), [2018] O.J. No. 4230, 2018 ONCA 681

Statutes referred to:

Canadian Charter of Rights and Freedoms, s. 10(c)

Criminal Code, R.S.C. 1985, c. C-46

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55

Authorities referred to:

Sharpe, R.J., et al., The Law of Habeas Corpus, 3rd ed. (Oxford: Oxford University Press, 2011)

Proceedings

APPEAL from the judgment of J. Diamond J., [2017] O.J. No. 2438, 2017 ONSC 2841 (S.C.J.) dismissing an application for habeas corpus.

Counsel:

Rocco Galati, for appellants.

James Todd and Nicholas Dodokin, for respondents.

The judgment of the court was delivered by

Judgment

[1] NORDHEIMER J.A.:

The appellants appeal from the judgment of Diamond J., dated May 15, 2017, that dismissed their application for habeas corpus. The application judge concluded that, because the applicants were not being held in custody, they were not detained and therefore the writ of habeas corpus could not apply. The following reasons explain why I have determined that the application judge erred in his conclusion.

I. Background

[2]

The appellants are foreign nationals, possessing citizenship in China and the Dominican Republic. They entered Canada as visitors on September 30, 2012 on visas they obtained from the Canadian Embassy in the Dominican Republic. In August 2013, the appellants departed Canada after obtaining a six-month extension to their visa. The appellants entered Canada again on November 30, 2013, after obtaining another temporary resident visa on August 19, 2013 from the Canadian Embassy in the Dominican Republic.

[3]

In November 2013, the Canada Border Services Agency ("CBSA") received information that the appellants had multiple identities and were fugitives from China. The information alleged that the appellants entered into a multi-level marketing and pyramid scheme in which they defrauded approximately 60,000 people of approximately CDN$180 million.

[4]

On March 7, 2014, the appellants were arrested by the CBSA under s. 55 of Immigration and Refugee Protection Act, S.C. 2001, c. 27 and detained for an admissibility hearing on the grounds of misrepresentation. On May 26, 2014, the appellants were referred by the CBSA to the Immigration Division of the Immigration and Refugee Board for their admissibility hearing, the purpose of which was to determine whether they could remain in Canada. Before their admissibility hearing began, the appellants made refugee claims on June 23, 2014, which led, by operation of law, to the withdrawal of the minister's request for an admissibility hearing.

[5]

The appellants' first detention review occurred on July 23, 2014. Over the next 14 months, the appellants were the subjects of three detention reviews by the Immigration Division. On each occasion, the Immigration Division ordered the appellants' continued detention, finding they were unlikely to appear and had both the willingness and financial means to elude detection in Canada. The appellants sought judicial review of all three of the Immigration Division's decisions, and each decision, in turn, was quashed by the Federal Court.

[6]

On November 16, 2015, following the third successful judicial review application, the Immigration Division ordered the appellants' release from detention, subject to terms and conditions that the appellants had proposed. Those terms and conditions amounted to virtual house arrest. In addition, the appellants were required to pay for the costs of armed security guards to maintain a 24/7 presence outside of their home, one positioned at the front of the home and the other at the rear. The cost of maintaining this security is borne by the appellants and runs to approximately $130,000 per month.

[7]

On April 1, 29 and October 7, 2016, the appellants requested and obtained modifications to their terms and conditions of release through applications to the Immigration Division. Those modifications permitted them to spend time outside in their backyard, and to leave their home, under security escort, for outings related to groceries, banking and church services.

[8]

On November 27, 2016, the appellants filed another application with the Immigration Division to make further modifications to their terms and conditions. This application was rejected on February 28, 2017. The appellants did not seek judicial review of this decision. Instead, they filed the application for habeas corpus which led to the judgment that is the subject of this appeal.

II. The Application

[9]

In response to the appellants' application, the respondents brought a preliminary motion seeking a stay of the application on the basis that the Superior Court lacked jurisdiction to hear it.

[10]

The application judge dismissed the application. He gave detailed reasons for doing so. He noted that the preliminary motion was arguably superfluous because it, in essence, duplicated the question to be determined on the application itself. The application judge identified the central issue to be determined as "whether the applicants' current house arrest amounts to a detention or deprivation of their liberty" (reasons, at para. 28). On that issue, the application judge concluded, at para. 54:

When the applicants in the case before me were released from custody on terms and conditions that included house arrest, they were no longer detained for the purpose of a writ of habeas corpus.

III. Analysis

[11]

In my view, the application judge erred in the above conclusion. He did so in two related respects. One is that he equated detention for the purposes of habeas corpus with incarceration in a custodial facility. The other is that he appears to have restricted the operation of habeas corpus only to situations where a person is formally detained rather than to broader situations where liberty interests are infringed. Put more simply, the application judge wrongly concluded that in order for there to be an infringement of liberty, to which the writ of habeas corpus could apply, there had to be a detention of the individual in a custodial facility. That view does not find support in the case law nor does it accord with the fundamental constitutional values that underlie the important remedy reflected in the principle of habeas corpus. In order to explain my conclusion, a review of some of the applicable case law is required.

[12]

Before embarking on that review, however, I would point out that the scope of the writ of habeas corpus constitutes a question of law. The standard of review is, thus, one of correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 8.

[13]

I begin with the decision in May v. Ferndale Institution, [2005] 3 S.C.R. 809, [2005] S.C.J. No. 84, 2005 SCC 82. While May involved a challenge by federal inmates to the reclassification of their security level within the federal penitentiary system, and was thus factually distinct from the situation here, the importance of the decision for current purposes lies in its review of the history and principles surrounding habeas corpus.

[14]

The majority in May reviewed the purpose behind the writ of habeas corpus. Fish and LeBel JJ., at para. 21, quoted from a decision of Black J. in the United States Supreme Court where he said that the purpose of habeas corpus was "the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty". That protection was stated in broad terms. It was not restricted to imprisonment but to any restraint on a person's liberty. Such restraints can take many different forms.

[15]

The decision in May went on to consider other cases that had touched on the purpose of habeas corpus. It referred to the Supreme Court of Canada's trilogy of decisions in R. v. Miller, [1985] 2 S.C.R. 613, [1985] S.C.J. No. 79; Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78; Morin v. Canada (National Special Handling Unit Review Committee), [1985] 2 S.C.R. 662, [1985] S.C.J. No. 80. The court in May pointed out, at para. 31, that in Miller (at para. 36), Le Dain J. had also described habeas corpus as "the traditional means of challenging deprivations of liberty". Again, there was no suggestion that the remedy was restricted to incarceration. The court then went on to consider the exceptions to the general right of an individual to resort to habeas corpus to challenge their detention, a subject to which I will return shortly.

[16]

Lastly, the court in May reinforced the importance of the remedy of habeas corpus and the care which courts ought to take in making any determination that it was not available as a route to challenge restrictions on a person's liberty. Fish and LeBel JJ. said, at para. 50:

Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeas corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well defined and limited.

[17]

As referenced in May, there are two exceptions to the availability of habeas corpus. One is where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court and to release the affected person, if necessary. The other is where a legislator has put in place a complete, comprehensive and expert procedure for review of an administrative decision affecting a person's liberty.

[18]

The first exception has no application to the circumstances here. Rather, it is the second exception upon which the respondents rely in this case and they do so based on the assertion that the Immigration and Refugee Protection Act is such a complete, comprehensive and expert procedure.

[19]

The application judge did not directly address whether this second exception applied, presumably because he concluded that the appellants were not detained and therefore habeas corpus jurisdiction did not lie with the court. He did refer to this court's decision on that issue in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 127 O.R. (3d) 401, [2015] O.J. No. 5438, 2015 ONCA 700, but he did so only for the purpose of distinguishing the result in that case from the situation that was before him. He said, at para. 48:

In my view, the Court of Appeal in Chaudhary implicitly held that for habeas corpus purposes -- even in an immigration context -- detention means jail or imprisonment.

In reaching that conclusion, the application judge referred to paras. 38-40 of the reasons in Chaudhary.

[20]

I do not agree with the conclusion that the application judge drew from those three paragraphs. The first paragraph refers to the history of the prerogative writ and its purpose. The second paragraph refers to the fact that the remedy of habeas corpus is specifically guaranteed by s. 10(c) of the Canadian Charter of Rights and Freedoms. The third paragraph quotes from Justice Sharpe's text on the subject. While the particular quotation taken by the application judge does refer to the traditional form of review as being directed to the "gaoler or person having custody" of the applicant, it also notably identifies the issue to be determined as being the reason why a person "is exercising restraint" over the applicant.

[21]

In my view, Chaudhary does not support the narrow interpretation given by the application judge to the remedy of habeas corpus. Indeed, the rationale in Chaudhary, fairly read, would support the opposite view.

[22]

Admittedly, the most common use of the writ of habeas corpus is where a person is being held in custody and they have not, for whatever reason, been granted a hearing respecting their qualification for release from custody. But there is nothing in the history of the remedy that would justify limiting its reach solely to situations where a person is being held in custody. The most common use should neither eclipse nor exclude other possible uses.

[23]

The core protection afforded by the writ of habeas corpus is the protection of a person's liberty. That is, the protection of the right that every individual has to go about their daily life without interference by the state. Where the state acts to restrict the liberty of the individual, then the individual must have the right to seek a review of the legitimacy of those restrictions. As Rouleau J.A. said in Chaudhary, at para. 94:

Habeas corpus issues as of right once a detainee proves a deprivation of liberty and raises a legitimate ground upon which to question the legality of that deprivation.

(Emphasis added)

[24]

This conclusion is also consistent with the proper approach to be taken to habeas corpus applications. As pointed out in Mission Institution v. Khela, [2014] 1 S.C.R. 502, [2014] S.C.J. No. 24, 2014 SCC 24, at para. 30, 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.

[25]

It is the first stage that we are concerned with in this case. Importantly, the first stage is not described as requiring the applicant to be detained in custody, or to be incarcerated, or to be held in a custodial facility, or any other such language. The key to the first stage is simply, but crucially, a deprivation of liberty. I note, on this point, that applicants must meet a low threshold at the jurisdictional stage of a habeas corpus application: Toure v. Canada (Minister of Public Safety and Emergency Preparedness), [2018] O.J. No. 4230, 2018 ONCA 681, at para. 51.

[26]

In reaching his conclusion, the application judge placed considerable reliance on the decision in R. v. Ethier, [2009] O.J. No. 1118. In that case, the accused challenged the house arrest condition of his release on criminal charges through a habeas corpus application. The application judge dismissed the application, principally on the basis that habeas corpus had no role to play since there was a process within the Criminal Code, R.S.C. 1985, c. C-46 to challenge bail determinations, as confirmed in R. v. Pearson, [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99. However, the application judge in Ethier also said, at para. 10:

The historical use of a Writ of Habeas Corpus directing a jailer to deliver up the person in custody is not applicable to the applicant following his release from detention.

[27]

I note three things with respect to this statement. The first is that it was not central to the issue that the application judge had to determine in that case and thus could fairly be characterized as obiter. The second is that it was not, in any event, an authority that was binding on the application judge in the case at bar. The third, and most important, is that the statement is wrong in law. The application judge in Ethier made the same error that the application judge did here, that is, in restricting the scope of the writ of habeas corpus to situations of incarceration, that is, detention in its strictest form.

[28]

As the decision in May makes clear, habeas corpus potentially applies to any situation where the state restrains the liberty of the subject. A person subject to house arrest is a person who has had their liberty restricted. They are unable to do that which every other ordinary citizen is entitled to do. As Sharpe J.A. aptly put it in his dissenting reasons in R. v. Panday (2007), 87 O.R. (3d) 1, [2007] O.J. No. 3377, 2007 ONCA 598, at para. 63:

Bail and jail are different points on a continuum between complete freedom and total deprivation of liberty. Strict conditions amounting to house arrest significantly constrain liberty and push bail towards the total deprivation of liberty end of the continuum.

See, also, R. v. Downes (2006), 79 O.R. (3d) 321, [2006] O.J. No. 555 (C.A.), at para. 29.

[29]

A further decision of importance to this issue is R. v. Gamble, [1988] 2 S.C.R. 595, [1988] S.C.J. No. 87, where the writ of habeas corpus was used to challenge a parole ineligibility provision. Parole, of course, takes effect after a person is released from custody. In commenting on the flexibility that is important to the remedy, especially in the context of Charter rights, Wilson J. said, at para. 64:

There is no doubt that considerable uncertainty has clouded the scope of review open to a court on an application for habeas corpus and it is understandable that courts have, in general, not bound themselves to limited categories or definitions of jurisdictional review when the liberty of the subject was at stake.

(Citations omitted)

[30]

The respondents maintain that there is no scope for the application of habeas corpus to this case because there is no deprivation of liberty involved. They rely in particular on two decisions of the Alberta Court of Queen's Bench in support of their position. One is Ewanchuk v. Canada (Attorney General), [2017] A.J. No. 333, 2017 ABQB 237 and the other is Lee v. Canada (Attorney General), [2018] A.J. No. 51, 2018 ABQB 40. I note that it does not appear that the application judge was referred to either of these decisions.

[31]

Ewanchuk does not assist in this case. It involved an application for habeas corpus brought by an unrepresented inmate who had a variety of complaints about his incarceration including rude staff, improper food preparation, the inmate grievance procedure, and issues over medical services, telephones and other amenities. Significantly, Mr. Ewanchuk did not seek his release as part of his application. Rather, he sought damages as compensation for his complaints. It is not hard to understand why, in those circumstances, the judge concluded, at para. 68, that "[Mr.] Ewanchuk has not sought any relief that could result from a habeas corpus application." I do note that the judge made a comment, in passing, that habeas corpus applies to persons who are "detained". I do not view the judge's comment as being intended as an exhaustive statement on the legal boundaries of the remedy. However, if that was the intention, then the statement is unduly restrictive and does not accord with the law, as I have explained above.

[32]

Lee also does not assist. I note that it too appears to be an application that was brought by an unrepresented inmate. Mr. Lee was incarcerated at the time of his application, serving a life sentence for murder. While the material that he filed was confusing, it appears that Mr. Lee was challenging the failure of the Parole Board of Canada to consider his parole applications and also challenging his life sentence. The decision in Lee does not address the issue that falls to be determined here. I do note, in passing, that the judge correctly observed, at para. 57, that habeas corpus is intended to "test the legality of a deprivation of liberty".

[33]

In the end result, the issue before this court is a very narrow one. It is simply whether habeas corpus can apply where a person seeks to challenge a deprivation of liberty that arises from a situation other than being held in a custodial facility, that is, other than detention in its strictest form. Contrary to the conclusion of the application judge, I say that it can. Once some form of deprivation of liberty is demonstrated, the first phase of the first stage for the application of habeas corpus is met. This conclusion is consistent with the history of the writ of habeas corpus and its fundamental purpose. As Justice Sharpe says in his text, The Law of Habeas Corpus, 3rd ed. Oxford University Press, 2011, at p. 182:

Habeas corpus is a quick, efficient remedy which may in principle be used at any stage of the legal process, and there are a number of conceivable situations where a party who is not actually in a prison cell may wish to seek the relief of habeas corpus.

[34]

Whether the balance of the requirements for habeas corpus are met in this case is a matter for the Superior Court of Justice to determine when the application is fully argued.

IV. Conclusion

[35]

The appeal is allowed and the judgment below is set aside. The appellants sought to have us grant the application and impose conditions of release. We decline to do so. This court is not the proper forum for any such determination. Rather, the application is remitted back to the Superior Court of Justice to proceed in accordance with these reasons.

[36]

In accordance with the agreement of the parties, there will be no order for costs of the appeal nor of the original application.

Appeal allowed.

End of Document