SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 114/14
DATE: 2014-12-12

RE: JAMIL OSAI OGIAMIEN, Applicant

AND:

HER MAJESTY THE QUEEN, Respondent

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTRY OF COMMUNITY SAFETY AND CORRECITONAL SERVICES, and the MAPLEHURST CORRECTIONAL COMPLEX, Respondents

BEFORE: Coats J.

COUNSEL:
Jamil Osai Ogiamien, Self Represented

Sharon Guthrie, Counsel for the Respondent, Her Majesty the Queen

Brian G. Whitehead, Counsel for the Respondent, Maplehurst Correctional Complex

ENDORSEMENT

Introduction

[1] Mr. Ogiamien is a self-represented inmate in custody at Maplehurst Correctional Complex (Maplehurst). He is being detained pursuant to an order made by the Canada Border Services Agency under s.55(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 [IRPA].

[2] Mr. Ogiamien has brought a habeas corpus application in which he challenges the legality of his detention, as well as his restricted access to legal materials for the purpose of challenging his detention. He asks this Court to order his release or, alternatively, to order his transfer to an Immigration Detention Centre so that he can have more liberal access to legal materials.

[3] The Respondents in this application are the Attorney General of Canada as well as the Attorney General of Ontario, represented by the Ministry of Community Safety and Correctional Services and the Maplehurst Correctional Complex. By this endorsement, I am making the Attorney General of Canada a party to this application.

[4] The AG of Canada argues that Mr. Ogiamien’s application should be dismissed because the issue is res judicata, having already been litigated in the SCJ before Durno J., who dismissed the Applicant’s prior application for habeas corpus. The AG of Canada also argues that the SCJ should decline to exercise its jurisdiction in this matter because the Applicant has access to a remedy in the Federal Court, which, given the immigration issues raised by his application, is the appropriate forum in which to hear this matter. Finally, the AG of Canada submits that the application itself is devoid of merit because Mr. Ogiamien’s detention is lawful.

[5] The AG of Ontario made submissions on the application as it relates to Mr. Ogiamien’s argument that his access to the Federal Court and to legal materials has been restricted by Maplehurst. In response, the AG of Ontario submits that a remedy in habeas corpus does not lie against such matters because they do not constitute a deprivation of liberty; nor do they constitute a restrictive condition that is imposed on Mr. Ogiamien in particular and not applied to other inmates. It submits that Maplehurst has acted in accordance with Ministry policy in providing Mr. Ogiamien with assistance to obtain legal materials and to access the Federal Court. Any limitations he has experienced, therefore, flow from the inevitable consequences of being in a custodial institution – including resource limitations and the need to balance his right to represent himself with the safety and security of the institution.

[6] For the following reasons, I have concluded that the evidentiary record before me is insufficient to determine this Court’s jurisdiction to entertain the application at this time. As such, I have decided to reserve my decision on this application and to adjourn the matter for two months. During this time, Mr. Ogiamien will have the opportunity to avail himself of resources that will assist him in pursuing this remedy in Federal Court. On the basis of his efforts and the outcome thereof, this Court will be able to determine whether Mr. Ogiamien does, in fact, have a remedy available to him in Federal Court, and accordingly whether this Court has jurisdiction to entertain the application. On the return date, I will have to determine what further evidence I need to hear, if any.

Overview

[7] Mr. Ogiamien is a citizen of Zimbabwe. He immigrated to the United States in 1980. In November 2001, he entered Canada and was arrested two weeks later for using forged documents at an Ontario Driver’s Licensing Office. He pled guilty and received a six-month sentence on January 31, 2002. During his time in custody, Mr. Ogiamien initiated a refugee claim application, and on June 24, 2002, he was notified that he was eligible to apply for refugee status. His application was subsequently abandoned, however, because on July 11, 2002, Mr. Ogiamien was extradited to the United States to face charges of forgery and identity theft. He was convicted of these charges on March 24, 2004 in Washington State, and received a four-month sentence.

[8] In January 2005, while on parole, Mr. Ogiamien was arrested by the United States immigration department and sent to Canada on August 25, 2005 under a reciprocal agreement between the two countries. Upon arriving in Canada, he was detained by the Canada Border Services Agency (CBSA) and was referred to the Immigration Division for identification and removal to Zimbabwe. His deportation has been stayed since that time because the CBSA has been unable to confirm his identity and true country of origin.

[9] On January 20, 2006, Mr. Ogiamien’s detention was reviewed by the Immigration Division. He was released from detention on a $1,000 bond that included various terms and conditions, including monthly reporting to the CBSA. Mr. Ogiamien remained on bail for the next three years. In January 7, 2009, the Immigration Division determined Mr. Ogiamien to be a low flight risk, and his conditioned reporting frequency was reduced from once a month to once every two months.

[10] On August 28, 2009, Mr. Ogiamien was arrested in Montreal, Quebec on charges of credit card fraud. He was released on his own recognizance, and continued his obligations to report on his immigration and criminal matters.

[11] On March 29, 2013, Mr. Ogiamien was arrested by the Peel Regional Police Department in Brampton, Ontario, and charged with impaired driving and possession of marijuana. Again he was released on a cash bond of $1,500. He appeared in court on April 24, 2013, and the case was adjourned to June 2013.

[12] On April 25, 2013, Mr. Ogiamien was again arrested by the Peel Regional Police Department and charged with robbery, procurement of prostitution, living off the avails of prostitution, and exercise of control over a prostitute. His previous bond of $1,500 posted on March 29, 2013 was revoked, and he was thereafter detained and transferred to Maplehurst in Milton, Ontario, on April 26, 2013.

[13] While Mr. Ogiamien remained in custody at Maplehurst pending his March and April 2013 charges, a warrant for his arrest was issued for his removal from Canada on February 10, 2014, on the basis that he had violated his immigration bond conditions by not reporting to CBSA as required. On March 25, 2014, Mr. Ogiamien appeared in Brampton Courthouse on his criminal law charges. At that point, he was arrested in relation to his immigration matters on the basis that he was in violation of his reporting conditions.

[14] In April and July, 2014, Mr. Ogiamien was ultimately acquitted of all of the April and March 2013 charges. However, Mr. Ogiamien has remained in custody due to the immigration hold of which he had been notified on March 25, 2014. My understanding is that he is not currently being held in relation to any criminal matter.

[15] On May 7, 2014, the Immigration Division began conducting monthly detention reviews for Mr. Ogiamien pursuant to s.57(2) of the IRPA. To date, Mr. Ogiamien has had nine detention reviews since that date, which were held on: May 7, May 14, June 11, June 8, August 6, September 3, October 1, November 3, and December 1, 2014. He has been denied release on each of these reviews on the basis that he is unlikely to appear for removal from Canada – given his involvement in several breach-of-trust offences and because he claimed to be afraid to return to Zimbabwe.

[16] In June 2014, Mr. Ogiamien filed a writ of habeas corpus with the Superior Court of Justice in Brampton. On August 7, 2014, Durno J. declined to deal with the application because it was an immigration matter.

[17] Mr. Ogiamien filed another writ of habeas corpus, this time with the Superior Court of Justice in Milton. He appeared in court in Milton on August 22, 2014. The matter was adjourned to September 12 in order for Maplehurst to bring various records requested by Mr. Ogiamien, including: Maplehurst’s policy regarding self-represented inmates, written complaints made to Maplehurst by Mr. Ogiamen, details of their lockdown dates in the preceding year, and any record of disclosure time afforded to Mr. Ogiamien in the preceding year.

[18] On September 12, 2014, Mr. Ogiamien was before the Superior Court in Milton. Mr. Ogiamien was advised that there was an issue as to whether the SCJ had jurisdiction to entertain his application. However, no counsel had appeared for Maplehurst or the federal government. Therefore, Crown counsel in Milton was asked to attend court to assist in the matter, and the Crown subsequently notified Maplehurst and the federal Crown of the application and the next court date. Copies of several cases pertinent to the issue of jurisdiction were provided to Mr. Ogiamien, and the application was thereafter adjourned to September 26, 2014.

[19] On September 26, 2014, copies of various documents were given to Mr. Ogiamien, and the matter was set to return for argument on October 8, 2014. On October 8 and 10, 2014, the parties appeared before me in order to make submissions on the habeas corpus application. During this hearing, Mr. Ogiamien argued that his detention was unlawful, and that his right to defend himself was being violated by the fact that he was being denied access to legal resources and to writing materials. On October 10th, Mr. Ogiamien was provided with several additional cases relating to his claim, and transcripts of the October 8th and 10th hearings were ordered for him. He was invited to file any further written submissions by October 24th, and the Respondents were invited to file any responding submissions by October 31st. The matter was thereafter adjourned to November 14, 2014, in order for a decision to be rendered.

[20] On November 14, 2014, Mr. Ogiamien advised the Court that he was having difficulties at Maplehurst completing his submissions. As a result, I ordered Mr. Ogiamien to be brought to court on the days of November 17 and 18, 2014 to work on his written submissions in the cells. The matter was set to be spoken to on November 21, 2014. On November 18th, I ordered Mr. Ogiamien to be returned to court for an additional day on November 19th to complete his paperwork in the cells.

[21] By November 21, 2014, Mr. Ogiamien had substantially completed his written submissions. I ordered him to serve and file his submissions by November 26, and I ordered the Respondents to serve and file their responding submissions by December 5th. The matter was thereafter adjourned to December 12, 2014, for a decision to be rendered.

Issues

[22] It is clear from a review of Mr. Ogiamien’s updated materials, as well as his oral submissions in Court, that his application for habeas corpus has evolved considerably since it was originally field in August 2014. Initially, Mr. Ogiamien’s complaint lay in the fact that he was being denied access to legal resources and writing materials, which he required in order to challenge his detention before the Federal Court. His application now, however, additionally challenges the legality of his on-going immigration detention. As part of his relief, he asks this Court to order his release from Maplehurst; alternatively, he seeks a transfer to an Immigration Detention Centre in order to obtain more liberal access to legal resources for the purposes of his defence.

[23] The following issues have been raised by the parties:

1. Whether this application is res judicata?

2. If the answer to #1 is no, whether the SCJ should decline to exercise jurisdiction because the Applicant has a remedy in the Federal Court?

3. If the answer to #1 and #2 is no, whether the application for habeas corpus should be dismissed because Mr. Ogiamien’s detention is lawful?

Analysis

1. Whether this application is res judicata

Position of the Parties

[24] The AG of Canada argues that this application is res judicata because the SCJ’s jurisdiction to provide relief for Mr. Ogiamien’s immigration detention was already litigated before Durno J. in the Brampton Superior Court. Justice Durno dismissed Mr. Ogiamien’s application on August 7, 2014 because it raised immigration issues that should instead be brought before the Federal Court.

Application

[25] There is no evidence before me regarding the specific relief sought by Mr. Ogiamien in the proceeding before Durno J. Nor is there any evidence as to the record or issues placed before Durno J. for consideration. Furthermore, as mentioned previously, Mr. Ogiamien’s application has evolved significantly in the last two months. He has also considerably expanded his submissions and the materials in support of his application. There is no evidence that the issues and the evidentiary record before me were already reviewed and considered by Durno J. Therefore, the AG of Canada has not satisfied me that this issue is res judicata.

2. Whether the SCJ should decline to exercise jurisdiction because the Applicant has a remedy in the Federal Court?

Position of the Parties

[26] The Respondents’ position is that this Court should decline to exercise jurisdiction because the Federal Court is the more appropriate forum in which to litigate this issue. Mr. Ogiamien’s application, they argue, raises matters of immigration law over which the Federal Court has plenary supervisory jurisdiction.

[27] Mr. Ogiamien, on the other hand, urges this Court to entertain his petition for habeas corpus on the basis that he has been unable to obtain a remedy in Federal Court. He has failed to do so for several reasons. First, he has been unable to obtain legal aid to assist him. Second, he has had limited access to legal resources and has faced difficulty obtaining transcripts and reasons from his detention reviews in order to prepare his application for judicial review in Federal Court. Both of these factors are significant in light of the fact that detention reviews are conducted every 30 days; if an applicant does not complete an application for review and appear in Federal Court within this time, his application will be rendered moot by the next detention review.

[28] Third, he argues that his immigration arrest and on-going detention was unlawful, and that despite this the Immigration Division has renewed his detention order at each monthly review. His initial immigration hold arose because he had violated his reporting conditions. It has been continuously renewed on the basis that he is unlikely to appear for removal because of his prior reporting violations and his involvement in numerous breach-of-trust offences. However, Mr. Ogiamien asserts that: his last conviction occurred over twelve years ago; he has fully complied with his bail conditions without incident for seven years; the only reason he was unable to report as of March 2013 is because he was in custody on other charges, of which he was fully acquitted; the Immigration Division was notified by a CBSA agent on his September 3, 2014 hearing that he did not breach his bail conditions when he missed his report date because he was in custody at the time; he is not currently the subject of an admissibility hearing or a removal order that would justify his continued detention; and there is no new element that has arisen since he was initially released on bail on January 20, 2006 to justify his renewed and ongoing detention.

Law

[29] Mr. Ogiamien was arrested in March 2013 pursuant to s.55(1) of the IRPA, which reads:

55. (1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and 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 by the Minister under subsection 44(2).

[30] Pursuant to s.57(2), he has had monthly detention reviews since that time. The discretion of the Immigration Division in ordering the continued detention of an individual is governed by s.58(1). Section 58(1) reads:

58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that

(a) they are a danger to the public;

(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);

(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality;

(d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or

(e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.

[31] Decisions of the Immigration Division are subject to judicial review under s.72(1), which reads:

72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.

[32] The jurisprudence on this issue reveals several guiding principles. First, it is clear that the Superior Court generally has concurrent jurisdiction with the Federal Court to review detention orders imposed by a federal body by way of issuance of a writ of habeas corpus. This concurrent jurisdiction extends to the review of any detention orders imposed by a federal board, commission, or other tribunal as defined by s.2 of the Federal Courts Act (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 [May]).

[33] However, one important exceptions to the SCJ’s concurrent jurisdiction with the Federal Court to review detention orders imposed by federal bodies arises where there is in place a complete, comprehensive, and expert procedure for review of an administrative decision (May at para 44). The field of immigration law has been said to fall within this exception. In May, the SCC endorsed the finding of the Ontario Court of Appeal (ONCA) in Peiroo v. Canada (minister of Employment & Immigration) (1989) 1989 184 (ON CA), 69 O.R. (2d) 253, in which the ONCA declared that:

Parliament has established in the [Immigration Act]….a comprehensive scheme to regulate the determination of such claims and to provide for review and appeal in the Federal Court of Canada of decisions and orders made under the Act, the ambit of which review and appeal is as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid. In the absence of any showing that the available review and appeal process established by Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction of the Supreme Court of Ontario, it is my view that this court should, in the exercise of its discretion, decline to grant relief upon the application for habeas corpus in the present case, which clearly falls within the purview of that statutory review and appeal process. [pp. 261-62 of Peiroo; cited at para 39 of May] [emphasis in May]

[34] The SCC went on to note some of the features of the scheme of review under the Immigration Act, R.S.C. 1985, c. 1-2 (all of which are in place today under the IRPA) which distinguished it from other contexts:

The Immigration Act in force at the time of Peiroo provided for an appeal from decisions of immigration authorities to an independent administrative tribunal, the Immigration Appeal Division, vested with all the powers of a superior court of record including jurisdiction to issue summons, administer oaths and enforce its orders: S.C. 1976-77, c. 52 (am. S.C. 1988, c. 35), s. 71.4(2). It was a process wherein the impartiality of the adjudicator was statutorily assured, the grounds for review were articulated, and the process for review was clearly laid out: ss. 63, 64 and 71.4 to 78. A detailed procedure was also provided for the manner in which applications and appeals were to be brought before the Federal Court: ss. 83.1 to 85.2.

[35] The SCC concluded that “because 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, habeas corpus is precluded” (para 40).

[36] The SCC’s decision in May has been followed by this Court and various appellate courts: Apaolaza-Sancho v. Director of Établissement de détention de Rivière-des Prairies, 2008 QCCA 1542; Fairfield v. Canada (Minister of Immigration Board) 2009 BCCA 391; Mission Institution v. Khela, 2014 SCC 24 at para 55; Kippax, Alan and Attorney General of Canada, 2014 ONSC 3685.

[37] Most recently, the Ontario Superior Court of Justice considered this issue in Kippax, Alan and Attorney General of Canada, 2014 ONSC 3685 [Kippax]. In Kippax, the applicant was being detained pursuant to an order of the Immigration Division of the Immigration and Refugee Board of Canada, pending his deportation. The Immigration Division conducted monthly detention reviews, each resulting in a further detention order due to the applicant’s flight risk and danger to the public. The applicant sought an order for habeas corpus with certiorari in aid before the SCJ in Ontario. Justice Macdonald, who heard the application, reviewed the case law in Peiroo and May. He confirmed that the review and appeal rights under the IRPA are “as broad or broader than the scope of review by way of habeas corpus with certiorari in aid” [para 13]. Justice Macdonald concluded that, under those circumstances, the relief sought was precluded [para 17].

Application

[38] The case-law clearly demonstrates that the Superior Court should generally decline a habeas corpus petition in immigration law matters in favour of the expertise and jurisdiction of the Federal Court.

[39] However, this principle assumes and is fundamentally based on the rationale that the IRPA constitutes a comprehensive scheme governing the regulation, review, and appeal of such claims. Indeed, the remedies available under the IRPA are said to be “at least as broad as that available by way of habeas corpus and no less advantageous” (May at para. 40).

[40] In this case, the record before me shows that Mr. Ogiamien has continuously challenged the legality of his detention before the Immigration Division. However, on numerous occasions, the panel has indicated that it will not be reviewing the legality of his arrest or detention because their mandate is to review the detention in accordance with the factors laid out under s.58(1). As a result of this, Mr. Ogiamien’s detention has been continuously renewed on the basis that he is unlikely to appear. However, the assertion that he is unlikely to appear is based on his past reporting violations that themselves arose because Mr. Ogiamien was in custody on criminal charges and therefore unable to appear. This was also the reason for his initial immigration arrest and detention in March 2014. He was subsequently acquitted of those criminal charges, and there is nothing in the record thus far to indicate that any new element has arisen which would justify his ongoing detention.

[41] Thus, Mr. Ogiamien is being detained on the same grounds as his initial arrest and detention, even though those grounds may no longer exist. Yet the Immigration Division will not examine the legality of his arrest and detention. Under these circumstances, it is difficult to conclude that the remedy of a monthly detention review under the IRPA is “as broad as that available by way of habeas corpus and no less advantageous.” Mr. Ogiamien, of course, has another remedy available: he can bring an application for judicial review before the Federal Court. In fact, he attempted to do so on August 20, 2014 when he filed an application for leave to appeal and for judicial review. For reasons not entirely clear on the record, this application did not proceed.

[42] There may be valid reasons for why Mr. Ogiamien has thus far been unsuccessful in accessing the Federal Court. The record shows that on numerous correspondents to the Federal Court and to Maplehurst, as well as in the course of his detention hearings, Mr. Ogiamien has expressed difficulty in accessing transcripts and reasons for his detention orders, as well as legal resources to prepare his defence. He has also expressed the need for legal aid or an amicus curiae to help him prepare his application.

[43] Importantly, however, in correspondence sent to Mr. Ogiamien on August 20, September 3, and September 30, 2014, the Federal Court has provided him with detailed information on the process for filing an application for leave and judicial review as well as any accompanying motion for relief. He was also provided with precedents for this purpose. Further, the AG of Canada has now provided Mr. Ogiamien with detailed information regarding access to legal aid and an immigration lawyer.

[44] The record indicates that Mr. Ogiamien has since filed a second application on October 20, 2014, for leave to appeal his detention order of October 1, 2014. He received the written decision of that order on October 28, 2014. His next detention review hearing was scheduled for October 31, 2014. On the same day that he received the written decision on October 28, 2014, Mr. Ogiamien wrote to the Federal Court to ask whether they would entertain his application for leave it if was perfected prior to October 31, 2014. However, any response to this letter is not produced on the record, and the AG of Canada has indicated that his appeal has not yet been perfected.

[45] The AG of Canada has, however, advised this Court that the 30-day time limit for perfecting his application for leave and for judicial review has not yet started to run, pursuant to Rule 9(4) and 10(1)(b) of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22. Mr. Ogiamien will have had at least two detention reviews since that date. However, the AG of Canada further advises that the Federal Court has discretion to entertain an application notwithstanding its mootness, and that it has done so in the past.

[46] In light of these factors, this Court is unable to determine at this time whether Mr. Ogiamien has a remedy in Federal Court. Therefore, any decision as to this Court’s jurisdiction to entertain his application for habeas corpus is premature. Accordingly, this matter should be adjourned for two months. During this adjournment, Mr. Ogiamien will have the opportunity to avail himself of all of the information and resources now at his disposal. On the basis of his efforts to do so and the outcome thereof, this Court will be better able to determine whether, in fact, he has a meaningful remedy available in that forum.

[47] Therefore, this Court will reserve its decision on this issue for two months.

3. Whether the application for habeas corpus should be dismissed because Mr. Ogiamien’s detention is lawful?

[48] Given my findings with respect to issue #2, it is unnecessary and premature for me to consider the merits of the habeas corpus application at this point. Accordingly, this issue will be reserved until this Court can review any developments that arise during the adjournment.

Conclusion

[49] This Court will reserve its decision on jurisdiction and merits of the application until Mr. Ogiamien has been given an opportunity to avail himself of legal resources to assist him in pursuing a remedy in Federal Court.

[50] The parties are ordered to return on a date to be determined in February, 2015 in order to make further submissions. At that point, this Court will assess its jurisdiction to entertain this application based on whether Mr. Ogiamien has made efforts to obtain a remedy in Federal Court and whether and to what extent that remedy was available to him. Maplehurst will also be required to satisfy the Court that it has facilitated Mr. Ogiamien’s access to legal resources and to the Federal Court in accordance with Ministry Policy.

[51] Accordingly, the application is adjourned.

Coats J.

Date: December 12, 2014