OVERVIEW

[1] On July 21, 2020, Mahamed Mahjoub filed an Application for a writ of habeas corpus with certiorari in aid. He seeks an order that he be relieved of the terms and conditions of release imposed by the Federal Court. The Applicant argues that the deprivation of his liberty for a lengthy and uncertain duration is unlawful in that it violates ss. 7, 9 and 12 of the Charter of Rights and Freedoms.

[2] The Minister of Public Safety and Emergency Preparedness; the Respondent, brings this motion pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to stay the Application. The Respondent argues that the conditions of the Applicant’s release were imposed by a designated judge of the Federal Court and habeas corpus in the Superior Court is not available to review an order of a Federal Court judge. The Respondent also argues that the security certificate scheme set out in Division 9 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) provides a complex and comprehensive process that is at least as advantageous as a habeas corpus application, and therefore the exception set out in Peiroo v. Canada (MEI) (1989), 1989 184 (ON CA), 69 O.R. (2d) 253 (C.A.) (the Peiroo exception) applies.

[3] The Applicant argues that there is no valid basis for the provincial superior court to decline habeas corpus jurisdiction. The Applicant relies on the recent decisions of the Ontario Court of Appeal in Chaudhary v. Canada (MPSEP), 2015 ONCA 700, 127 O.R. (3d) 401, and the Supreme Court of Canada in Canada (MPSEP) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467, which allowed habeas corpus review of immigration detentions. The Applicant also argues that the security certificate scheme set out in the IRPA is not as advantageous as habeas corpus and therefore the Peiroo exception does not apply in this case.

[4] For the reasons set out below I allow the Respondent’s motion and stay the Application.

BACKGROUND FACTS

[5] The Applicant is an Egyptian national. He came to Canada in December 1995. On his arrival to Canada, he obtained refugee status. In June 2000, he was arrested and detained under the former Immigration Act.

Security Certificate Scheme

[6] In 2001, Parliament passed the IRPA. Under the IRPA, when the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (the Ministers) determine that a non-citizen is inadmissible to Canada on national security grounds, they may sign a security certificate and refer the matter to the Federal Court for assessment. The matter will proceed to a hearing before a security-screened and designated judge of the Federal Court. The designated judge determines if the security certificate is reasonable. If the judge finds the security certificate is reasonable, the person is ordered deported. The judge may order the detention of the person or release the person pending deportation with or without conditions.

[7] In 2000, a security certificate was signed with respect to the Applicant. In 2001, a designated judge determined that the Applicant was inadmissible to Canada and ordered him deported. He was placed in immigration detention while he awaited deportation. In 2007, the Applicant was released from detention, on conditions.

[8] In 2008, Parliament made several amendments to the IRPA scheme. The amendments were in response to the decision of the Supreme Court in Charkaoui (Re), 2007 SCC 9, [2007] 1 S.C.R. 350, in which the Court found that elements of the prior security certificate scheme violated the Charter. The amendments included the establishment of special advocates to protect the person’s interests in the in-camera hearings.

Security Certificate and Federal Court Hearing 2008

[9] After the new scheme came into force in 2008, the Minister signed a new security certificate naming the Applicant. The certificate was referred to the Federal Court for a determination of its reasonableness.

[10] The hearing took place before the designated judge in the Federal Court. Following over 100 days of testimony, the designated judge found there were reasonable grounds to believe that the Applicant is a member of the Al Jihad (AJ) and its splinter or sub-group, the Vanguards of Conquest (VOC). The AJ and VOC are terrorist groups active in Egypt. The Federal Court found the Applicant to be a security risk and ordered his deportation. The Federal Court of Appeal dismissed the Applicant’s appeal. The Supreme Court of Canada did not grant leave to appeal.

[11] The Applicant had refugee status and as a result, before he could be deported, a Danger Opinion was required for consideration by a delegate of the Minister of Citizenship and Immigration. A Danger Opinion is currently being prepared. Depending on the outcome of that process, the Applicant may be deported.

Federal Court Hearings Regarding the Conditions of Release

[12] The Applicant is not currently detained. In June 2007, the Federal Court ordered the Applicant’s release from detention on stringent conditions that required supervision. His two sureties withdrew their undertakings in 2009 which resulted in the Applicant’s return to detention. After an additional eight months detention, the Applicant was released on conditions in 2009.

[13] Pursuant to the IRPA, a detained person is entitled to a review of their detention or release on conditions every six months. On the review, the designated judge of the Federal Court must determine if the person’s release under conditions would be a risk to national security, would endanger the safety of any person or if the person is unlikely to appear.

[14] The Applicant exercised his right to have the Federal Court review the conditions of his release on numerous occasions. The Federal Court determined that the Applicant continues to pose a danger to the security of Canada and that conditions of his release are necessary to ensure that he does not resume contact with persons who are engaged in terrorism. The Federal Court adjusted or removed conditions over time, as required.

[15] The Federal Court most recently modified the conditions of the release, by order dated February 9, 2021. This order was negotiated on the consent of the Applicant. Currently the conditions of release prevent the Applicant from communicating with persons he knows are supporters of terrorism or violent jihad or have a criminal record. His electronic devices and social media are monitored. He is required to notify the Canadian Border Services Agency (CBSA) of any travel to distant locations and of changes to his residence.

[16] The Applicant did not appeal the order dated February 9, 2021. He has been eligible for a further review of the release conditions since August 2021 but has not pursued the review.

The Application for Habeas Corpus

[17] The Notice of Application was issued on July 14, 2021. The Applicant seeks a writ of habeas corpus with certiorari in aid. He seeks an order that he be relieved of the terms and conditions of release set out in the consent order, subject to a requirement that he keep the peace, surrender his passport or travel documents (if any) to the CBSA and provide notice to the CBSA of any change of address.

THE ISSUES

[18] I will address the following issues:

a. Is a Federal Court order subject to habeas corpus review in the Superior Court?

b. If a habeas corpus application is available, does one of the two exceptions apply:

Is habeas corpus available when the IRPA has conferred jurisdiction on the Federal Court of Appeal to correct the errors of the lower court?
Does the security certificate scheme provide for a “complete, comprehensive and expert” process for the review of conditions of release?

ANALYSIS

The Legislative Framework

Security Certificate Procedure

[19] The IRPA provides that the Ministers may issue a warrant for the arrest and detention of a person named in a security certificate if they have reasonable grounds to believe that the person is a danger to national security, or to the safety of any person, or is unlikely to appear at a proceeding for removal: s. 81. Within 48 hours of the person’s detention, a judge of the Federal Court is required to review the reasons for the detention: s. 82(1), IRPA. Until the determination of whether the security certificate is reasonable, the judge shall conduct another review of the reasons for the detention every six months: s. 82(2), IRPA.

[20] If the person is released from detention under conditions, the person may apply to the Federal Court for another review of the reasons for continuing the conditions if a period of six months has expired: s. 82(4), IRPA. Ongoing reviews are available every six months. An appeal to the Federal Court of Appeal is available from the decision of the Federal Court judge if the judge certifies that a serious question of general importance is involved: s. 82.3, IRPA.

Constitutionality of the Security Certificate Scheme in the IRPA

[21] The security certificate scheme was first set out in the 2001 version of the IRPA. Although the Supreme Court in Charkaoui found that certain sections of the IRPA violated the Charter, the Court upheld the provisions with respect to reviewing detention and conditions of release:

In summary, the IRPA, interpreted in conformity with the Charter, permits robust ongoing judicial review of the continued need for and justice of the detainee’s detention pending deportation. On this basis, I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter, provided that reviewing courts adhere to the guidelines set out above. Thus, the IRPA procedure itself is not unconstitutional on this ground. However, this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter: Charkaoui, at para. 123.

[22] The security certificate scheme in the IRPA, both before and after the 2008 amendments, requires a designated judge of the Federal Court to consider material relied on by the Ministers to determine whether the arrest and detention of the person is reasonable. This is to be contrasted with matters which do not involve matters of national security. In non-security matters, an administrative tribunal; the Immigration Division of the Immigration and Refugee Board, is responsible for reviewing the reasonableness of the arrest and detention.

[23] The role of designated judges of the Federal Court with respect to national security matters was considered by Benotto RSJ (as she then was) in R. v. Zundel, 2003 23552 (Ont. S.C.), aff’d 2004 15295 (Ont. C.A.), 241 DLR (4th) 362, leave to appeal refused, [2004] S.C.C.A. No. 316:

There is also the comprehensive statutory framework of the IRPA. Parliament clearly intended that the Federal Court have exclusive jurisdiction to determine whether persons who are the subject of security certificates under sections 76, 77 and 83 should continue to be detained. The exclusive jurisdiction to review the reasons for the continued detention of a permanent resident is given to the Federal Court. The Federal Court has expertise and experience in immigration law and law pertaining to national security. It is the effective and appropriate forum. This proposition has been confirmed by the Supreme Court of Canada: Zundel, at para. 14.

[24] Following the 2008 amendments, the Supreme Court considered the constitutionality of the security certificate scheme in Harkat (Re), 2014 SCC 37, [2014] 2 S.C.R. 33, at para. 4:

I conclude that that the IRPA scheme is constitutional. Crafting a regime that achieves a fundamentally fair process while protecting confidential national security information is a difficult task. The scheme must apply to a broad range of cases, implicating a variety of national security concerns. Parliament’s response to this challenge has been to confer on judges the discretion and flexibility to fashion a fair process, in the particular case before them. If this is impossible, judges must not hesitate to find a breach of the right to a fair process and to grant whatever remedies are appropriate, including a stay of proceedings.

The Writ of Habeas Corpus

[25] This Application is for a writ of habeas corpus with certiorari in aid. Habeas corpus has been described as the “Great Writ of Liberty”: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 19. It is a means to review the validity of a detention authorized or imposed by a federal board or tribunal: Chaudhary, at paras. 38, 41.

[26] The writ of habeas corpus is directed to the person having custody or control of the detainee to provide justification for the detention: Chhina, at para. 19. The person who applies for habeas corpus must initially establish a loss of freedom and identify a basis on which to allege that the loss of freedom was unlawful: Lee v. Canada (Attorney General), 2018 ABQB 40, at para. 65. The onus then shifts to the person having custody of the applicant to establish that the ongoing detention is justified.

[27] Habeas corpus jurisdiction lies almost exclusively in the superior courts of the provinces. Except in limited circumstances, a provincial superior court has no inherent discretion to refuse to review the case. If the applicant raises a legitimate doubt as to the reasonableness of the detention, the superior court judge is required to examine the substance of the decision: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 78.

[28] In May, at para. 44, the Supreme Court stated that habeas corpus jurisdiction is to be declined by provincial superior courts only in limited circumstances:

To sum up therefore, the jurisprudence of this Court establishes that prisoners may choose to challenge the legality of a decision affecting their residual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicial review. As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so. Habeas corpus jurisdiction should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court. The option belongs to the applicant. Only in limited circumstances will it be appropriate for a provincial superior court to decline to exercise its habeas corpus jurisdiction. For instance, in criminal law, where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be, habeas corpus will not be available (i.e. Gamble). Jurisdiction should also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision (i.e. Pringle and Peiroo).

[29] In Chaudhary, the Ontario Court of Appeal set out the two areas where the superior court should exercise its discretion to decline habeas corpus jurisdiction, at paras. 42, 43:

Habeas corpus is issued as of right and as a matter of principle should "not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court. The option belongs to the applicant" (May, at para. 44). The Supreme Court has outlined two areas where a superior court should exercise its discretion to decline habeas corpus jurisdiction. The first exception is in the criminal context. Habeas corpus cannot be used to challenge the legality of a conviction. The appeal processes must be followed.

The second exception is pertinent to these appeals. The court, citing Peiroo, explained that a second limitation "gradually developed in the field of immigration law" and is a "limited discretion to refuse to entertain applications for prerogative relief in immigration matters" (May, at para. 39). In those matters, where there is a "complete, comprehensive and expert statutory scheme [in place] 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" (May, at para. 40).

[30] In Chhina, at para. 18, the Supreme Court stated that a provincial superior court should decline its habeas corpus jurisdiction only in limited circumstances:

The writ of habeas corpus is not a discretionary remedy; it issues as of right where the applicant successfully challenges the legality of a detention. A provincial superior court may not decline jurisdiction to hear such an application merely because alternative remedies are available (May, at paras. 34 and 44). Such a court may only decline jurisdiction where the legislator 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” (May, at para. 40; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 65). As Mr. Chhina’s case illustrates, this analysis must be undertaken regarding the nature of the specific challenge to the legality of the detention raised in the habeas corpus application.

Issue 1 - Is a Federal Court order subject to habeas corpus review in the Superior Court?

Position of the Parties

[31] The Applicant seeks habeas corpus review of the order of the Federal Court that imposed conditions of his release. It is his position that the ongoing restrictions on his liberty are unlawful, and that the provincial superior court has jurisdiction to review the order that imposed the restrictions.

[32] The Respondent argues that the Applicant is seeking a “redo” with respect to the conditions of his release, and that the habeas corpus application is a collateral attack on the consent order issued by the Federal Court. The Federal Court is a superior court of record: Charkaoui, at para. 136. The Respondent states that, barring exceptional circumstances that are not present in this case, an order of a superior court is not subject to habeas corpus review in another superior court. The Respondent argues that the writ of habeas corpus is only available with respect to orders of inferior courts and tribunals.

[33] At common law, prerogative writs are available against inferior courts and tribunals: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, at para. 42. In R. v. Sarson, 1996 200 (SCC), [1996] 2 S.C.R. 223, at para. 23, the Supreme Court stated that habeas corpus is to challenge the decision of an inferior court or administrative tribunal, and is not available with respect to an order of the superior court:

Accordingly, at common law, the jurisdiction of a superior court was insulated from collateral attacks, which included applications for habeas corpus. Only the jurisdiction of an inferior court or tribunal could be subject to a habeas corpus challenge. It follows that where the imprisonment of the accused was ordered by a superior court of criminal jurisdiction having general jurisdiction over the offence, the prisoner's only hope of release was in a direct appeal of the convicting court's decision: a habeas corpus attack could never succeed.

[34] In the security certificate scheme, the decisions with respect to the detention and conditions of release are made by designated judges of the Federal Court and not by administrative tribunals such as the Immigration Division of the Immigration and Refugee Board. The Respondent argues that as a superior court of record, the Federal Court is at the same level as provincial superior courts and therefore the superior court has no supervisory role over the Federal Court: Zundel, at para. 13.

[35] The Applicant argues that his habeas corpus application is not a collateral attack on the decision of the Federal Court, but instead is a review of the legality of the ongoing restriction of his liberty. Although the IRPA provides exclusive jurisdiction to the Federal Court to determine whether persons who are subject to security certificates should continue to be detained, only provincial superior courts have the authority to consider habeas corpus applications: Zundel, at para. 8.

[36] The Applicant also argues that there is no general proposition that a writ of habeas corpus in a provincial superior court is not available to review an order of another superior court. The Applicant referred to several cases that allowed habeas corpus review of detentions ordered by superior courts: R. v. Miller, 1985 22 (SCC), [1985] 2 S.C.R. 613; Argentina v. Mellino, 1987 49 (SCC), [1987] 1 S.C.R. 536; R. v. Gamble, 1988 15 (SCC), [1988] 2 S.C.R. 595; Gallichon v. Commissions or Corrections, 1995 1649 (ON CA), 1995 CarswellOnt 986, [1995] O.J. No. 2744 (C.A.); Steele v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385; and Forster v. Canada (Correctional Services), 2019 ONCA 91.

[37] The cases referred to above have unique facts and may be of limited precedential value: Lee v. Canada (Attorney General), 2018 ABQB 40, at para. 117. The cases also do not involve the writ of habeas corpus to review the decision of the Federal Court with respect to detention under a security certificate issued pursuant to the IRPA.

[38] The Applicant states that the issue raised in the Application is not to review or challenge the decision of the Federal Court that the Applicant is a security risk or the imposition of the deportation order. The Applicant claims that the issue to be addressed is whether the lengthy and uncertain duration of the deprivation of his liberty is unlawful. This is the same issue raised in Chaudhary and Chhina.

[39] The Applicant states that provincial superior courts have no inherent discretion to refuse to consider habeas corpus applications. If the applicant proves any deprivation of liberty and raises a legitimate ground to question the legality of the deprivation, the matter must proceed to a hearing: Khela, at para. 41. The Supreme Court in Khela, stated as follows, at para. 78:

Second, the writ remains non-discretionary as far as the decision to review the case is concerned. If the applicant raises a legitimate doubt as to the reasonableness of the detention, the provincial superior court judge is required to examine the substance of the decision and determine whether the evidence presented by the detaining authorities is reliable and supports their decision. Unlike the Federal Court in the context of an application for judicial review, a provincial superior court hearing a habeas corpus application has no inherent discretion to refuse to review the case (see Farbey, Sharpe and Atrill, at pp. 52-56). However, a residual discretion will come into play at the second stage of the habeas corpus proceeding, at which the judge, after reviewing the record, must decide whether to discharge the applicant.

[40] The Applicant argues that given the historical importance of habeas corpus, the exceptions for limiting habeas corpus jurisdiction should be “carefully evaluated and should not be allowed to expand unchecked”: May, at para. 50. The Applicant also argues that the use of habeas corpus to provide Charter relief should not be “displaced by overly rigid rules”: Gamble, at para. 66.

Summary

[41] The first step in the analysis is to define the specific issue raised in the habeas corpus application. If the issue goes to the core decision made by a superior court, such as the conviction or sentence, it will be considered to be a collateral attack on the order and habeas corpus will not be available: May, at para. 36. Here, the Applicant is not taking issue with the finding that he is a security risk or with respect to the deportation order. The question is framed as to whether the lengthy and uncertain duration of the deprivation of his liberty violates his Charter rights. This is the same issue raised by the applicants in Chaudhary and Chhina. In those cases, the courts concluded that the superior court had jurisdiction to consider the habeas corpus applications.

[42] As noted by the Court of Appeal in Chaudhary, at para. 75:

At the outset, it is important that the issue be properly framed. The issue being raised by the appellants in their habeas corpus applications is not whether grounds for a period of detention under the IRPA exist nor the factual findings of the [Immigration Division] that support those grounds. Rather, it is whether they can exercise their constitutionally protected right to habeas corpus and to have a court rule on whether their detentions, when viewed through the lens of ss. 7 and 9 of the Charter and international instruments such as the International Covenant on Civil and Political Rights, to which Canada is a signatory, have become illegal because of their length and uncertain duration. In other words, in those exceptional cases where persons are detained for lengthy periods on immigration matters with no end to the detention in sight, the issue is whether detainees can be deprived of their constitutional right to challenge, through habeas corpus, the continued detentions pending resolution of the immigration matters.

[43] Here, the Applicant has framed the question as an inquiry into the legality of the ongoing restriction on his liberty and not as a collateral attack on the core findings of the Federal Court judge. I am satisfied that the Applicant has established an ongoing restriction on his liberty and raised a legitimate doubt as to the reasonableness of the restriction. Where an applicant raises an issue with respect to the reasonableness of the detention, a provincial superior court judge has no inherent discretion to refuse to hear the habeas corpus application, except in the case of two limited circumstances (which are addressed below).

Issue 2 - Do either of the two limited exceptions to habeas corpus apply in the circumstances of this case?

[44] A provincial superior court should decline habeas corpus jurisdiction only where:

a statute confers jurisdiction on a court of appeal to correct the errors of a lower court; or,
the legislator 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: May, at paras. 40, 44; see also Chaudhary, at paras. 42, 43; Chhina, at para. 18.

1. Is habeas corpus available when the IRPA has conferred jurisdiction on the Federal Court of Appeal to correct the errors of the lower court?

[45] Habeas corpus is not available in the criminal context to challenge the legality of a conviction: Chaudhary, at para. 42. Provincial superior courts should decline habeas corpus where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court. The remedy of habeas corpus is not a substitute for the person’s statutory right of appeal: May, at paras. 36, 50.

[46] In the security certificate procedure, the decision with respect to detention or release on conditions is made by a designated judge of the Federal Court, instead of an administrative tribunal. The IRPA confers jurisdiction to the Federal Court of Appeal to correct errors of the lower court. The legislation provides that an appeal is available if the Federal Court certifies a serious question of general importance for the court’s determination: IRPA, s. 82.3. As noted in Harkat v. Canada (MCI), 2021 FCA 85, at para 15, Parliament prohibited appeals where a question has not been certified. Section 79 of the IRPA provides that there is no right of appeal from an interlocutory decision in the proceeding.

[47] I am of the view that there is an appeal procedure in place for the Applicant to challenge the order. The Applicant seeks an order to be relived of the conditions of release set out in the consent order dated February 9, 2021. The Applicant did not seek to appeal the order and did not request that the Federal Court certify the question for appeal.

[48] I find that the Applicant may not use the writ of habeas corpus to challenge an order of the Federal Court when he has not pursued an appeal to the Federal Court of Appeal as set out in the IRPA. As noted by Wilson J. in Gamble, at para. 74, “courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process.”

2. Is the security certificate scheme a “complete, comprehensive and expert” process for the review of conditions of release?

[49] The second limitation to the scope of habeas corpus has developed in immigration matters: May, at para. 39. Habeas corpus will not be available if there is a “complete, comprehensive and expert statutory scheme [in place] which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous”: Chaudhary, at paras. 42, 43. This is known as the Peiroo exception. The Peiroo exception has been described by the Supreme Court as follows:

In sum, the Peiroo exception can be more clearly articulated as follows: an application for habeas corpus will be precluded only when a complete, comprehensive and expert scheme provides for review that is at least as broad and advantageous as habeas corpus with respect to the challenges raised by the habeas corpus application. An administrative scheme may be sufficient to safeguard the interests protected by habeas corpus with respect to some types of challenges but may also need to be re-examined with respect to others. It is thus essential to consider how the challenge to the unlawful detention is framed in the habeas corpus application: Chhina, at para. 40.

[50] The Respondent argues that the security certificate scheme at issue in this Application is a complete statutory procedure with respect to the detention of individuals who may be a risk to national security. The security certificate scheme was found to be constitutional in Charkaoui, at para. 123 and Harkat (Re), at para. 4. The Respondent states that the security certificate scheme provides greater safeguards to a detainee than the immigration detention system. The Respondent also states that the security certificate procedure is as advantageous to the detainee as habeas corpus.

[51] I was directed to four cases which considered the application of habeas corpus with respect to a detention under the security certificate scheme of the IRPA: Baroud v. Canada (MCI) (1995), 22 O.R. (3d) 225 (C.A.); Zundel; Jaballah v. Canada (AG) (2005), 2005 30315 (ON SC), 258 D.L.R. (4th) 161 (Ont. S.C.); and Almrei v. Canada (AG) (2005), 50 Imm. L.R. (3d) 310 (Ont. S.C.). In each case the court found that habeas corpus was not available because there was a complex comprehensive and complete system in place that was as advantageous to the applicant as habeas corpus.

[52] In Baroud, the Ontario Court of Appeal considered the applicability of habeas corpus with respect to a security detention under the Immigration Act. The applicant argued that his continued detention was in breach of his Charter rights and brought an application for a writ of habeas corpus. The Court referred to the Peiroo exception and concluded, at para. 12, that the “trial procedure in the Federal Court is an adequate and effective alternative remedy which provides relief to the appellant in a forum where proceedings related in the appellant’s detention are in progress.”

[53] In Zundel, the applicant sought a writ of habeas corpus with respect to his incarceration following the issuance of a security certificate pursuant to the IRPA. The Crown brought a motion for a stay of proceedings. The court stated that the test to be met by the applicant is whether the available review process in the Federal Court is inappropriate or less advantageous than the habeas corpus jurisdiction of the superior court: at para. 9. The court concluded that the legislature had put in place a “comprehensive statutory framework” with respect to persons who are the subject of security certificates. The court found that the habeas corpus application was an attempt to “bypass the comprehensive statutory scheme and usurp a process currently underway” and declined jurisdiction to consider the application: at para. 16.

[54] In dismissing the appeal, the Court of Appeal referenced the Peiroo exception. The Court found that the designated judge of the Federal Court had the jurisdiction to consider constitutional issues: at para. 9. The Court of Appeal also referred to Reza v. Canada, 1994 91 (SCC), [1994] 2 S.C.R. 394, in which the Court approved of a portion of the reasons of Abella, J.A. which were summarized as follows, at para. 17:

She held that the discretion to decline to hear such a case surely exists when not only does the Federal Court have concurrent jurisdiction to deal with the matter, it also has expertise and experience in immigration law, administrative law and Federal Court procedure, the core issues of the respondent’s application. She also found it significant that the Federal Court has an exclusive mandate over immigration matters and found the principles from Perioo […] (dealing with habeas corpus) were applicable. Abella J.A. noted that the failure to decline to exercise jurisdiction would raise concerns over forum-shopping, inconsistency and multiplicity of proceedings.”

[55] In Jaballah the Crown brought a motion for a stay of the detainee’s habeas corpus application. Mr. Jaballah had been detained pursuant to a security certificate issued under the IRPA. The finding of the Federal Court judge with respect to the reasonableness of the security certificate was appealed to the Federal Court of Appeal. While the appeal was pending, Mr. Jaballah brought a habeas corpus application arguing that detention pursuant to a security certificate issued under the IRPA was unconstitutional. In granting the stay of the habeas corpus application, Trafford J. stated, at para. 43, that “immigration matters are best dealt with by the Federal Court under the comprehensive, and complex, scheme of the IRPA.” He further stated, at para. 45, that the Federal Court has “substantial experience and expertise on immigration matters,” and the Federal Court is “by far, the most convenient forum to decide any such application.”

[56] In Almrei v. Canada (Attorney General), 2003 17113 (ONSC), the applicant was detained on a security certificate. He brought a habeas corpus application to be permitted to wear standard-issue footwear and additional clothing because of the cold conditions in the detention facility. The Court found that there were no compelling reasons to deprive the applicant of the standard-issue footwear and granted the order sought: at para. 39. Mr. Almrei brought a subsequent application for habeas corpus review of the detention order. The Attorney General brought a motion for a stay of proceedings pursuant to s. 106 of the Courts of Justice Act. In Almrei v. Canada (AG) (2005), 50 Imm. L.R. (3d) 310 (Ont. S.C.), the court held that the constitutional remedies including the conditions of detention “could have and to some extent were litigated at the Federal Court.” The court found that the Federal Court was the appropriate forum to address the person’s concerns and granted the stay: at paras. 29 and 31.

[57] The cases relied upon by the Applicant; Chhina and Chaudhary, do not consider whether habeas corpus is available with respect to a detention pursuant to the security certificate scheme under Division 9 of the IRPA. Those cases dealt with habeas corpus applications with respect to detention reviews conducted by the immigration administrative tribunal pursuant to Division 6 of the IRPA. The Supreme Court in Chhina and the Ontario Court of Appeal in Chaudhary did not refer to the earlier Ontario Court of Appeal decision in Zundel. The courts did not state that the Peiroo exception no longer applies with respect to all matters involving habeas corpus and immigration detention.

[58] Here, the issue is whether statutory security certificate scheme set out in Division 9 of the IRPA, is as advantageous to the detainee as habeas corpus. It is therefore necessary to consider whether the security certificate scheme provides a “complete, comprehensive and expert scheme” with respect to the specific challenge raised in the habeas corpus Application.

[59] The first step in the analysis is to determine on what basis the Applicant is challenging the order. The Applicant seeks to be relieved of the terms and conditions of release set out in the consent order of Justice Brown dated February 9, 2021, with the exception that he keep the peace, surrender his passport or travel documents (if any) to the CBSA and provide notice to the CBSA of any change of address.

[60] The second step is to determine whether, in matters involving the terms and conditions of a release of a person detained on a security certificate, the procedure set out in the IRPA is as advantageous to the detainee as habeas corpus review.

The detention is ordered and reviewed by Federal Court Judges

[61] In the security certificate scheme in the IRPA, the order with respect to detention or conditions on release is made by a designated judge of the Federal Court. The role of designated Federal Court judges in the security certificate scheme is to be contrasted with the detention and release provisions of the IRPA in which an administrative board makes these decisions.

[62] The designated judge of the Federal Court has jurisdiction to determine the constitutional issues raised in the habeas corpus proceeding. The judge may determine not only whether the security certificate scheme is constitutionally valid but also whether the effect on the applicant is unconstitutional: Jaballah. A judge of the Federal Court has the necessary expertise and jurisdiction to determine the same issues that would be before a judge of the superior court on a habeas corpus application. As noted in Charkaoui, “the IRPA, interpreted in conformity with the Charter, permits robust ongoing judicial review of the continued need for and justice of the detainee’s detentions pending deportation”: at para. 123.

[63] I am satisfied that in the security certificate scheme, the role of Federal Court judges allows for judicial review of detention orders and conditions of release that is as advantageous as the judicial review that is available in a habeas corpus application to a provincial superior court.

Onus on the Ministers

[64] The Applicant argues that the review procedure under the IRPA is not as advantageous for the detainee as in a habeas corpus application with respect to the issue of onus. In a habeas corpus application, once the detainee shows that there are reasonable and probable grounds that the detention may be unlawful, the onus shifts to the jailer to justify why the person is being detained. The Applicant argues that on a review of detention or conditions on release under the IRPA, the onus practically shifts to the detainee to show that there has been a change in circumstances.

[65] Section 82(5) of the IRPA provides that on a review of a person detained under a security certificate, the judge shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person, or that they would be unlikely to attend a proceeding for removal if released under conditions. In each detention review, the Ministers are required to address the following factors:

i) Past decisions relating to the danger and the history of the procedures pertaining to reviews of detention, release from detention with conditions and the decisions made;

ii) The Court’s assessment of the danger to the security of Canada associated with the Applicant in light of all the evidence presented;

iii) The decision, if any, on the reasonableness of the certificate;

iv) The elements of trust and credibility related to the behaviour of the Applicant after having been released with conditions and his compliance with them;

v) The uncertain future as to the finality of the procedures;

vi) The passage of time; and

vii) The impact of the conditions of release on the Applicant and his family and the proportionality between the danger posed by the Applicant and the conditions of release: Harkat v. Canada (MCI), 2013 FC 795, at para. 26.

[66] As stated in Harkat (2013), at para 27:

The burden is on the Minister to establish that the danger is such that the terms and conditions of release must be created and maintained (see Mahjoub (Re), 2013 FC 10 at para 14, 225 ACWS (3d) 122). In order to satisfy that burden, the Ministers must present evidence that identifies the danger, as well as an assessment of whether the danger is minimal or severe and the justification for that assessment. The Minister must then identify the terms and conditions. To make such a determination, the designated judge will consider all of the evidence presented by both parties in closed and public hearings during prior reviews in addition to the submissions made by all counsels including the special advocates.

[67] There have been several reviews of the Applicant’s conditions of release. The Applicant states that his hearings have not been a truly de novo hearings. The Applicant argues that as a practical matter, he had the onus to demonstrate that there had been a change of circumstances since the last detention order.

[68] The judges who reviewed the conditions of the Applicant’s release did not apply an onus shift. In Mahjoub (Re), 2016 FC 808, the court stated that the Ministers have the initial burden to establish danger. The judge found that the Ministers satisfied the burden and concluded that the Applicant remained a danger to national security: Mahjoub (Re), at paras. 75, 76. In Mahjoub (Re), 2015 FC 1232, the judge reviewed the confidential material filed by the Ministers and was satisfied that the Applicant continued to be a danger to the security of Canada: at para. 78. In Mahjoub (Re), 2014 FC 720, the Ministers relied on a threat assessment along with the Applicant’s behaviour and lack of candour to establish that the danger remained unchanged: at paras. 49, 50. In each case the onus was on the Ministers to establish that the Applicant was a danger to Canada and that the conditions of release ought to be maintained.

[69] As stated in Mahjoub (Re), 2013 FC 10, at para. 60:

In a review of the conditions of release of a named person pursuant to subsection 82(5) of the IRPA, the onus is on the Ministers to demonstrate that the named person poses a danger to the security of Canada and that particular measures in place or proposed are necessary to address that danger.

[70] I am satisfied that the onus in the security certificate scheme is as advantageous to the detainee as habeas corpus. In the reviews of the Applicant’s conditions of release, the onus remained on the Ministers to establish that he continues to be a danger to society and that the conditions on release are necessary.

Broad Range of Timely Remedies

[71] In the security certificate procedure, the detained person is entitled to a review of the conditions of release by a designated judge of the Federal Court, six months after the conclusion of the previous review or earlier if circumstances warrant: IRPA, ss. 82(4) and 82.1(1). On a review, the judge has a wide range of remedies available. The judge may order detention, release with conditions, amend the conditions, or release the person without conditions: IRPA, s. 82(5). I am of the view that the range of relief in the Federal Court is no less advantageous than the relief available with habeas corpus.

[72] I am also of the view that the timeliness of the hearing by the Federal Court judge under the security certificate scheme is as advantageous as habeas corpus. The detainee is entitled to a review every six months. No leave is required.

Role of Special Advocates

[73] Detention under the security certificate system may involve matters of national security. It may be necessary for some of the evidence to be heard in camera. The security certificate scheme provides for the participation of special advocates in the in-camera hearing to protect the interests of the detainee. The special advocates must be appointed and are mandated to protect the detained person’s interests: IRPA, s. 85.1.

[74] The national security implications of a hearing under the security certificate scheme requires special safeguards to protect both the detainee and national security. As noted by the Supreme Court in Harkat (Re), at para. 4, the security certificate scheme is a fair process to the detainee while protecting confidential national security information.

[75] The Applicant’s case involves confidential information with respect to the danger to the security of Canada: Mahjoub (Re) (2015), at para. 68. That information has been reviewed and considered by the Federal Court judge in the in-camera hearings. In a habeas corpus application in the provincial superior courts, the national security information could be prohibited pursuant to the Canada Evidence Act: Canada Evidence Act, R.S.C. 1985, c. C-5, s. 38.02.

[76] I am of the view that the ability of the Federal Court judge in security certificate matters to consider evidence of national security which may be inculpatory or exculpatory to the detainee, and the role of special advocates to represent the detainee in the in camera hearing, is a more advantageous procedure than that available on a habeas corpus application in a provincial superior court.

Summary

[77] In Zundel, the Ontario Court of Appeal held that the security certificate process established by Parliament is not inappropriate or less advantageous than habeas corpus jurisdiction: Zundel, at para. 7. The Court of Appeal found that the IRPA contains a “comprehensive scheme to review the validity of security certificates,” and that the Federal Court has “particular expertise” with respect to issues of immigration and national security: at para. 6. The Court of Appeal concluded that the Peiroo exception applies and that it was appropriate that the superior court should decline its habeas corpus jurisdiction.

[78] The recent decisions of the Ontario Court of Appeal in Chaudhary and the Supreme Court of Canada in Chhina involve the applicability of habeas corpus in the detention and release provisions for immigration detention set out in Division 6 of the IRPA. Those cases did not consider the issue addressed in Zundel, which was the availability of habeas corpus in the security certificate scheme.

[79] The security certificate scheme requires issues of detention and release to be made by security-screened Federal Court judges and not by an administrative tribunal. The judges have the jurisdiction to consider the constitutionality of the detention and have available to them the same remedies that would be available to a provincial superior court judge on a writ of habeas corpus. The onus for establishing that the conditions of release are appropriate, remains on the Ministers. The security certificate scheme may require the court to consider evidence that relates to matters of national security. In those circumstances, the security certificate procedure allows for in camera hearings and the appointment of special advocates to represent the person in the in-camera proceedings.

[80] The Legislature carved out a separate procedure for dealing with detained persons who are a risk to the security of Canada. I am satisfied that the security certificate scheme in the IRPA is a “complex, complete and comprehensive procedure” for the review of detention and release conditions that involve matters of national security. I find that the security certificate scheme is more advantageous to detainees than the immigration detention scheme considered in Chaudhary and Chhina and is as advantageous as habeas corpus.

[81] I conclude that the Peiroo exception applies with respect to the review of detentions or conditions of release ordered pursuant to the security certificate scheme set out in Division 9 of the IRPA. I find that habeas corpus is not available in the circumstances of this case. I allow the Respondent’s motion and stay the Application.

DISPOSITION

[82] I allow the Respondent’s motion and make the following order:

a. The Application is stayed.

b. The Respondent is successful on the Application and is presumptively entitled to its costs. If the Respondent seeks its costs of the Application and if the parties are unable to come to an agreement, the Respondent may deliver its written costs submissions within 14 days of the date of this endorsement. The submissions shall not exceed three pages excluding the bill of costs and caselaw. The Applicant may deliver its written submissions in response, on the same basis, within 14 days of receiving the Respondent’s submissions.

DATE: February 15, 2022

Mahjoub v. The Minister of Public Safety and Emergency Preparedness, 2022 ONSC 3671

Case Summary

OVERVIEW

BACKGROUND FACTS

Security Certificate Scheme

Security Certificate and Federal Court Hearing 2008

Federal Court Hearings Regarding the Conditions of Release

The Application for Habeas Corpus

THE ISSUES

ANALYSIS

The Legislative Framework

Security Certificate Procedure

Constitutionality of the Security Certificate Scheme in the IRPA

The Writ of Habeas Corpus

Issue 1 - Is a Federal Court order subject to habeas corpus review in the Superior Court?

Position of the Parties

Summary

Issue 2 - Do either of the two limited exceptions to habeas corpus apply in the circumstances of this case?

1. Is habeas corpus available when the IRPA has conferred jurisdiction on the Federal Court of Appeal to correct the errors of the lower court?

2. Is the security certificate scheme a “complete, comprehensive and expert” process for the review of conditions of release?

The detention is ordered and reviewed by Federal Court Judges

Onus on the Ministers

Broad Range of Timely Remedies

Role of Special Advocates

Summary

DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 1

Legislation 4