Court File and Parties
Court File No.: CV-16-564402 Date: 2017-05-15 Ontario Superior Court of Justice
Between: Zhenhua Wang and Chunxiang Yan, Applicants – and – Her Majesty the Queen in Right of Canada, The Minister of Public Safety and Emergency Preparedness, and the Canada Border Services Agency, Respondents
Counsel: Rocco Galati and Reem Zaia, for the Applicants James Todd and Nicholas Dodokin, for the Respondents
Heard: April 24, 2017
Reasons for Decision
DIAMOND J.:
Overview
[1] The applicants are husband and wife, and citizens of both the People’s Republic of China and the Dominican Republic. On or about March 7, 2014, and while in Canada under extended temporary resident visas, the applicants were arrested by the Canada Border Services Agency (“CBSA”) which had received information that the applicants allegedly had multiple fraudulent identities and were fugitives from justice in China.
[2] As the CBSA felt there were grounds to believe that the applicants misrepresented themselves in their original immigrations applications, pursuant to the Immigration and Refugee Protection Act, S.C. 2001 c.27 and its underlying regulations (“IRPA”), the applicants were initially placed in immigration detention pending an admissibility hearing into misrepresentation. Before the admissibility hearing could proceed, the applicants made refugee claims which led, by operation of law, to the withdrawal of the admissibility hearing.
[3] The Immigration and Refugee Board of Canada’s (“IRB”) Immigration Division initially ordered the continued detention of the applicants, but on November 16, 2015 the applicants were ordered released from custody under house arrest on specific terms and conditions, and they have remained under house arrest to this date.
[4] After attempting to seek further modifications to their terms of release, the applicants commenced this application seeking the issuance of a writ of habeas corpus releasing them from their current house arrest, or, in the alternative, amending their terms of release.
[5] The applicants’ request for a writ of habeas corpus is opposed by the Attorney General of Canada (“AG”). Within this application, the AG also brings a preliminary motion pursuant to section 106 of the Courts of Justice Act seeking a stay of this application on the basis of lack of jurisdiction.
[6] Both the AG’s motion and the application were argued before me on April 24, 2017, and I took my decision under reserve.
[7] These are my Reasons for Decision.
Background
[8] The applicants are foreign nationals, and citizens of both China and the Dominican Republic. On September 30, 2012, they entered Canada under temporary resident visas which they had obtained from the Canadian Embassy in the Dominican Republic. After obtaining a six month extension to their resident visas, they left Canada in or around August 2013.
[9] On March 29, 2014, the applicants re-entered Canada after obtaining further temporary resident visas from the Canadian Embassy in the Dominican Republic. Prior to their second entry into Canada, the CBSA received information that the applicants allegedly possessed multiple identities and were fugitives allegedly involved in a multi-level marketing pyramid scheme which defrauded approximately 60,000 people of approximately $180,000,000.00 (CAD).
The Arrest
[10] Pursuant to section 55 of the IRPA, the applicants were arrested by the CBSA on March 7, 2014, and placed in custody. By late May 2014, the CBSA referred the applicants to the Immigration Division for an admissibility hearing. The applicants remained in custody on the basis that they were flight risks and unlikely to appear at their pending admissibility hearing.
[11] On June 23, 2014, and prior to the commencement of their admissibility hearing, the applicants made formal refugee claims which, as previously stated, led by operation of law to the withdrawal of the admissibility hearing.
Detention Reviews
[12] The applicants’ first detention review occurred on July 23, 2014. Over the next 14 months, the applicants were the subject of three unsuccessful detention reviews by the Immigration Division which found on each occasion that the applicants were unlikely to appear and had both the willingness and financial means to elude detection in Canada.
[13] However, the applicants sought judicial review of all three of the Immigration Division’s decisions, and each decision was in turn quashed by the Federal Court. Each of the presiding Federal Court judges found aspects of each decision to be unreasonable sending the matter back for a rehearing. The applicants provided the court with the following timeline setting out the chronological history of their detention reviews:
| Event | Hearing Dates | Immigration Division Decision Date | Judicial Review Hearing Dates | Judicial Review Decision Dates |
|---|---|---|---|---|
| Detention Review #1 | August. 1, 13, 27, 29, September 3, 19, 24, 29, 2014 | December 11, 2014 | January 19, 2015 | January 21, 2015 |
| Detention Review #2 | February 11, 2015 | April 2, 2015 | May 6, 2015 | June 8, 2015 |
| Detention Review #3 | June 19, 2015 | August 24, 2015 | September 24, 015 | September 28, 2015 |
The Federal Court Action
[14] There is no dispute between the parties that during the above time period the applicants remained in custody. On October 16, 2015, the applicants issued a Statement of Claim in the Federal Court against several government officials involved in the applicants’ arrest and continued detention. In that Federal Court proceeding, the applicants sought damages and a writ of habeas corpus.
[15] On September 16, 2016, the applicants’ Federal Court action was struck out in its entirety. The applicants have appealed that decision to the Federal Court of Appeal and I understand that the appeal is currently pending.
The Applicants are Released
[16] Shortly after the issuance of the applicants’ Federal Court action, a further detention review occurred. On November 16, 2015 the Immigration Division ordered the applicants released from detention subject to various terms and conditions. The AG submits that those terms and conditions were proposed by the applicants themselves. In any event, the applicants did not seek judicial review of the terms of their release, which included:
- the posting of a $20,000.00 performance bond,
- that the applicants reside at all times and be present 24 hours, 7 days a week at 85 Hollingham Road, Markham, Ontario (“the Hollingham property”) save for medical emergencies or as otherwise provided for in the order for release,
- that the applicants fully co-operate with the CBSA in obtaining travel documents, and
- that the applicants not engage in any education or employment without government authorization.
[17] To ensure compliance with their terms of release, there is electronic surveillance and two guards at the Hollingham property at all times. To the extent that the applicants may leave the Hollingham property (i.e., to attend church once a week), the guards must accompany the applicants. The applicants complain that the associated costs of the surveillance and security guards are exorbitant and lay at their feet on a monthly basis.
Requests for Modified Terms of Release
[18] The applicants were released from custody on December 2, 2015. Thereafter, the applicants made three separate applications to the Immigration Division to obtain modifications to the terms and conditions ordered as part of their release. Those applications were granted by the Immigration Division in orders dated April 1, 2016, April 29, 2016 and October 7, 2016.
[19] The applicants thereafter filed a fourth application to the Immigration Division seeking more significant modifications to the terms and conditions of their release. That fourth application was dismissed on February 28, 2017. Based upon the record before me, it does not appear that the applicants sought judicial review of that decision by the Federal Court.
[20] The applicants commenced the within application on November 18, 2016.
The Refugee Claims
[21] It is important to consider the status of the applicants’ refugee hearing, which commenced on January 13, 2015. The record discloses that the Minister of Citizenship and Immigration (“Minister”) intervened and took the position that the applicants were ineligible to make refugee claims due to alleged serious criminality abroad.
[22] In early July 2015, the Minister was ordered to disclose various materials to the applicants, but relying upon section 37 of the Canada Evidence Act, R.S.C 1984 c. C5, the Minister claimed public interest privilege and refused to disclose certain material to the applicants. As a result, the refugee hearing was held in abeyance pending the determination of the Minister’s privilege claims.
[23] On May 4, 2016, the Federal Court released a decision finding that certain documents over which the Minister claimed privileged were relevant, and ordered redacted versions of documents to be disclosed. That decision did not find that the Minister’s decision constituted an abuse of process.
[24] On December 29, 2016, the IRB’s Refugee Protection Division issued a further decision finding that the Minister’s conduct in failure to disclose relevant documentation to the applicants during the refugee hearing “breached the duties of candor and disclosure and amounted to an abuse of process”.
[25] As a result, the Refugee Protection Division ordered the applicants’ refugee hearing to proceed on a de novo basis before a different panel, with the applicants’ testimony to date obtained in the first hearing to be struck out.
The Test for Habeas Corpus
[26] As held by the Supreme Court of Canada in Mission Institution v. Khela, 2014 SCC 24, a successful application for habeas corpus must satisfy three criteria:
(a) the applicant must establish that he/she has been deprived of liberty;
(b) once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question the deprivation’s legality; and,
(c) if the applicant raises such a ground, the onus then shifts to the respondent authorities to show that the deprivation of liberty was lawful.
[27] On its preliminary motion for a stay, the AG submits that this Court should decline to exercise its habeas corpus jurisdiction because the applicants cannot satisfy the first criteria of the test for habeas corpus; namely, that they have been deprived of their liberty. Specifically, the AG submits that what the applicants are seeking is no more than a lower form of restriction, and not a return to a level of restriction which they previously possessed.
[28] While it is arguable that the AG’s preliminary motion for a stay is superfluous (in that its position on the motion, if accepted, would result in a dismissal of the application in any event), in my view the merits of the AG’s position stand or fall on the issue of whether the applicants’ current house arrest amounts to a detention or deprivation of their liberty.
[29] In Khela, the Supreme Court of Canada noted that both the Federal Court and the provincial Superior Courts are “tasked with reviewing decisions made within the federal prison walls”. As such, before I can assess whether the applicants’ detention was unlawful, I must first find that they have been and continue to be detained within the walls of their residence.
[30] I thus embark upon a review of the relevant jurisprudence, both in the immigration and criminal/extradition contexts, focusing upon the concept of detention and whether the applicants can satisfy the first criteria of the habeas corpus test.
The Chaudhary Jurisprudence
[31] In May v. Ferndale Institution, 2005 SCC 82, the Supreme Court of Canada held that provincial Superior Courts should decline jurisdiction to hear habeas corpus applications in two limited circumstances:
(a) where a statute confers jurisdiction on an appellate court to correct the errors of a lower court and release the applicant if need be, or
(b) where the legislature has put in place a complete, comprehensive and expert procedure for review of an administrative decision.
[32] The applicants place great reliance upon the Court of Appeal for Ontario’s decision in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700. In Chaudhary, the Court of Appeal held that the legislative scheme and review process created under the IRPA is both not as broad, and less advantageous than the remedy of habeas corpus. Notwithstanding the fact that several Supreme Court of Canada decisions seem to have held that the Immigration Detention review regime is a complete, comprehensive and expert scheme for the review of detention, in Chaudhary the Court of Appeal ruled that habeas corpus applications should nevertheless be heard where the detention has become unduly lengthy, and its continued duration remains uncertain.
[33] Two substantive decisions have since applied Chaudhary and granted habeas corpus applications in an immigration context. In R. v. Ogiamien, 2016 ONSC 4126, Jamil Osai Ogiamien (“Ogiamien”) was subject to an immigration hold and detained in custody for 25 months. Justice Coats found that Ogiamien established that his detention was not only lengthy, but was of uncertain duration. As a result, Ogiamien’s habeas corpus application was granted.
[34] I note that, as in Chaudhary itself, Ogiamien was detained at correctional facilities and complexes throughout the entire 25 month period. In coming to her decision, Justice Coats specifically stated as follows (my emphasis in bold):
“In coming to this conclusion that Mr. Ogiamien’s detention was very lengthy, I have considered that throughout his detention he has been held in a maximum security part of a corrections facility (the remand area). This has for the most part been at Maplehurst and for a short period at Central North Corrections Centre. The length of detention must be considered in this context. He has been held on immigration detention in a maximum security part of a facility for 25 months.”
[35] In the recent decision of Ali v. Canada (Attorney General), 2017 ONSC 2660, Justice Nordheimer found that Mr. Ali’s detention of over seven years was more than lengthy to satisfy the first Chaudhary requirement, and that Mr. Ali’s continued detention was uncertain as there was “no reason to believe, given all of the efforts that have been undertaken to date, that any breakthrough in Mr. Ali’s case is going to be made in the immediate future.”
[36] Once again, as in both Chaudhary and Ogiamien, Ali was held in custody at various detention centres and correctional centres during the entire seven year period. As such, these three decisions were all concerned with habeas corpus applications made by applicants who were detained in custody.
House Arrest
[37] Surprisingly, there is limited jurisprudence dealing with the issue of whether house arrest constitutes detention for the purpose of a habeas corpus application.
[38] In In the Matter of the Extradition Act and Rakesh Saxena, 2004 BCSC 1323, the applicant Rakesh Saxena (“Saxena”) was subject to highly restrictive bail conditions, including 24 hour house arrest at his own expense, all during the time his extradition proceedings were ongoing. In that context, Saxena asked the court to exercise its jurisdiction to hear his application for habeas corpus.
[39] The court dismissed Saxena’s application on the grounds that his detention or deprivation of liberty was open to consideration by the Court of Appeal in two already existing proceedings, and Saxena therefore had an adequate and effective alternative remedy through the appeal and judicial review processes under the Extradition Act S.C. 1999 c.18. Notably, the court ended its analysis with the following:
“It is therefore unnecessary to consider the alternative bases put forward by the Attorney General for declining to hear the habeas corpus application. In particular, I make no comment as to the interesting issue of whether habeas corpus is available to a person such as Mr. Saxena, who is not in government custody as such, but is subject to court-ordered house arrest monitored by private security officers while also subject to committal and surrender orders for extradition.”
[40] Saxena subsequently renewed his efforts to pursue a writ of habeas corpus. In the decision of Thailand v. Saxena, 2009 BCSC 67, the court dismissed Saxena’s renewed habeas corpus application on the basis that the Extradition Act provided him with a complete and comprehensive statutory regime (i.e. the same reasoning as in the 2004 decision). In paragraph 2 of that decision, the court stated:
“The respondents do not concede that habeas corpus is available to someone like the applicant who has been granted judicial interim release in the form of house arrest. I do not have to decide that issue.”
[41] Interestingly, in R. v. T.W.O., 2013 NSSC 448, the court granted a habeas corpus application when the applicant’s status changed from being under community supervision with house arrest to being committed to incarceration. In other words, the habeas corpus application was successful when the applicant was incarcerated anew, although it is unclear from that decision whether the applicant ever advanced a habeas corpus application while he was subject to house arrest.
Are the Applicants Detained?
[42] The writ of habeas corpus was developed to address the deprivation of an individual’s liberty in an expeditious manner. As held by the Supreme Court of Canada in Dumas v. Leclerc Institution, [1996] 1 S.C.R. 38:
“Habeas corpus is available to challenge an unlawful deprivation of liberty. In the context of correctional law, there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty.”
[43] The AG argues that since the applicants were released from custody, their terms of release have become progressively less restrictive right up until the Immigration Division’s February 28, 2017 decision dismissing the applicants’ most recent request for modifications of their terms of release. As such, the AG submits that there has been no further deprivation of liberty.
[44] The applicants argue that ever since their arrest, their physical liberty has been “in one form (jail) or another (complete house arrest), deprived.” The applicants rely upon the stringent nature of the terms of their release in support of their position that they have been deprived of their residual liberty.
[45] I am guided by the analysis of Justice Kane in R. v. Ethier, 2009 ONSC 11429. In Ethier, the applicant was arrested and subsequently released from custody on terms and conditions which included house arrest with supervision and control by a surety. The applicant argued that his house arrest constituted detention, and brought a habeas corpus application seeking to be released or freed from that condition of recognizance as it allegedly constituted detention and a deprivation of his constitutional liberty.
[46] In dismissing the habeas corpus application, Justice Kane held as follows (his emphasis in bold):
“This condition of house arrest issued under s. 515(2) does not constitute detention of Brother Ethier. The applicant is not in jail. The above condition of bail, although restricting his liberty, was a condition of his release from jail. The wording of s. 515 and S. 519 of the Criminal Code distinguish between an accused being detained in custody and being released from detention. The relevant portions of these sections are:
515(1) ……… where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall … order, in respect of that offence, that the accused be released on his giving an undertaking without conditions unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified.
515(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
515 (6) Detention in custody - Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and …….
519(1) Release of accused - Where a justice makes an order under 515(1), (2), (7) or (8),
(a) if the accused thereupon complies with an order, the justice shall direct that the accused be released
(i) forthwith, if the accused is not required to be detained in custody in respect to any other matter, or
(ii) as soon thereafter as the accused is no longer required to be detained in custody in respect of any other matter…..
Notwithstanding the limitations to his liberty under this condition of bail, the applicant is not presently detained under s.515 of the Criminal Code. Parliament is presumed to have intended a distinction in the use of the terms detention, detained in custody and release from custody. Until his release from custody on conditions including house arrest, Brother Ethier was, but is no longer detained. 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.”
[47] Justice Kane made his decision in the context of a criminal proceeding. As such, the applicants no doubt rely upon Chaudhary with a view to convincing this Court to come to a different conclusion as this application is brought in an immigration context.
[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. At paragraphs 38-40 of Chaudhary, the Court of Appeal held:
“The prerogative writ of habeas corpus is “a cornerstone of liberty” and “a means of judicial control over the arbitrary behaviour of the executive government”. It is “one of the most important safeguards of the liberty of the subject”: M. Groves, “Habeas corpus, Justiciability and Foreign Affairs” (2013) 11:3 N.Z. J. Pub. & Int’l L. 587, at p. 588. It is also “the most significant means of protecting individual liberty”: R.J. Sharpe, J. Farbey & S. Atrill, The Law of Habeas Corpus, 3rd ed. (New York: Oxford University Press, 2011), at p. 1. The writ is thus often referred to as the “Great Writ of Liberty”: see May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 19; R. v. Gamble, [1988] 2 S.C.R. 595, [1988] 2 S.C.R. 595, at p. 645. It has also been described as “the great and efficacious writ, in all manner of illegal confinement”: D. Parkes, “The ‘Great Writ’ Reinvigorated? Habeas corpus in Contemporary Canada” (2012) 36 Man. L.J. 351, at p. 352.
Most significantly in Canada, it is guaranteed by s. 10 (c) of the Charter, which reads as follows: “Everyone has the right on arrest or detention … to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” As explained by the Supreme Court of Canada in May, [at para. 22]:
Habeas corpus is a crucial remedy in the pursuit of two fundamental rights protected by the Canadian Charter of Rights and Freedoms: (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7 of the Charter); and (2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter).
Sharpe at p. 21 described the traditional form of review available on habeas corpus as follows:
The writ is directed to the gaoler or person having custody or control of the applicant. It requires that person to return to the court, on the day specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the return discloses a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matter directly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant.”
[49] In any event, a review of the provisions in Division 6 of the IRPA discloses that the words chosen by Parliament seem to distinguish between a foreign national being detained in custody and being released from detention.
[50] Section 55 of the IRPA permits the arrest and detention of a permanent resident or foreign national with or without a warrant on specific grounds.
[51] Section 56(1) of the IRPA provides as follows:
“An officer may order the release from detention of a permanent resident or a foreign national before the first detention review by the Immigration Division if the officer is of the opinion that the reasons for the detention no longer exist. The officer may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer considers necessary.”
[52] Pursuant to section 58(1) of the IRPA, the Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied that inter alia, he/she is a danger to the public or unlikely to appear for an admissibility hearing. If the Immigration Division is satisfied of the existence of such factors, then it shall order the continued detention of the permanent resident or foreign national.
[53] Pursuant to section 58.1(1) of the IRPA, if a foreign national is released, the Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions that he or she considers necessary.
[54] Upon request by an applicant, the Immigration Division may order the applicant’s release on any terms or conditions that the Immigration Division considers necessary, which would include house arrest. 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.
[55] I agree with the AG that the applicants are now seeking to have less restrictive terms substituted for the ones to which they are currently subjected. There has been no deprivation of liberty. Rather, the applicants’ liberty has been incrementally increasing since their release from custody. The fact that the applicants now complain that their current terms and conditions are too onerous does not satisfy the criteria that they are detained. As held by the Court of Appeal for Ontario in R. v. Panday, 2007 ONCA 598:
“My observation about the wording of this provision is that Parliament has created a clear dichotomy between, on the one hand, pre‑trial release and, on the other hand, pre‑trial detention in custody. Put bluntly, bail is not jail. The wording of s. 515 makes it clear that bail is what an accused person seeks in order to stay out of jail.
In saying this, I do not suggest that bail is not a restraint on the liberty of an accused person. It is a restraint and, where there are strict bail conditions, it can be a serious restraint. However, statutory words must be given their natural meaning, and the natural meaning of “release”, “detention” and “custody” suggests that there is a fundamental difference between bail and jail. The natural meaning of these words − known at a practical, common sense level by all accused persons who seek bail − is that the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.”
[56] The applicants have already successfully obtained variations and modifications to their terms of release from the Immigration Division, and it is still open to them to seek a further variance or modification of those terms before the Immigration Division, and, if necessary, before the Federal Court by way of an application for judicial review.
[57] Accordingly, for these reasons the application is dismissed.
Costs
[58] I would urge the parties to try and resolve the issues of costs of this application. In the absence of such an agreement, the parties may deliver written costs submissions for my review and consideration.
[59] The AG may serve and file its costs submissions within 10 business days of the release of these Reasons. Those submissions shall be no more than five pages including a Bill of Costs.
[60] The applicants shall thereafter have an additional 10 business days from the receipt of the respondents’ costs submissions to deliver their responding costs submissions which shall also be no more than five pages including a Bill of Costs.
Diamond J. Released: May 15, 2017