Court of Appeal Decision of the Week

Court of Appeal: ‘Don’t mix habeas corpus and s. 12 of the Charter’

Case: Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681 (CanLII)

Keywords: Immigration claim; habeas corpus; s. 12 of the Charter; Brown v. Canada (Public Safety), 2018 ONCA 14 (CanLII)

Synopsis:

Mr. Ebrahim Toure’s immigration claim is denied by the Immigration and Refugee Board pursuant the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). Thereafter, his application for judicial review is refused and he is placed on a conditional departure order with terms and conditions pending removal from Canada.

After failing to report for a required interview with Canada Border Security Agency, he is arrested and detained at the Toronto Immigration Holding Centre (“IHC”). Mr. Toure is found to be a flight risk. Attempts are made to remove him to Guinea, but Guinean authorities find his birth certificate fraudulent and he is refused entry. Upon his return to Canada, and until the order under appeal, Mr. Toure is detained at the Central East Correctional Centre (“CECC”) rather than the IHC, a “lower risk facility”. While at the CECC, all 56 detention reviews conclude that continued detention is required.

Mr. Toure believes his continued detention is unlawful. He commences an application for release pursuant to the Habeas Corpus Act, R.S.O. 1990, c. H. 1 and ss. 7, 9, 10(c), 12 and 24(1) of the Canadian Charter of Rights and Freedoms. The Application Judge does not grant the habeas corpus application but finds Mr. Toure’s detention at CECC to be cruel and unusual. He is transferred back to the IHC, pending future detention review and removal. Mr. Toure appeals the order dismissing his habeas corpus application. The Minister of Public Safety and Emergency Preparedness cross-appeal the order granting Mr. Toure’s s. 24(1) relief. The Court of Appeal dismisses Mr. Toure’s appeal and allows the Minister’s cross-appeal.

Importance:

The Court of Appeal found the Application Judge was correct. Mr. Toure failed to raise a legitimate ground upon which to question the legality of his detention. As such, there was no foundation for jurisdiction. (See para. 17).

For the Court, the Application Judge’s reasons properly applied the legal test at the jurisdictional stage, appropriately considered Mr. Toure’s prospects for removal within a reasonable time, and could not be read as an endorsement of indefinite detention based on non-cooperation. The habeas corpus application should not have been granted. (See para. 49).

With respect to the Minister’s cross-appeal, the Court of Appeal reaffirmed what it recently said in Brown v. Canada (Public Safety), 2018 ONCA 14 (CanLII). In summary, habeas corpus applications and Charter claims don’t mix. Why? Here’s the Court’s explanation:

Habeas corpus applications are intended to be quick and impose a low threshold on the applicant. The onus largely falls on the authorities to justify the legality of the detention at issue. This stands in stark contrast to Charter s. 12 applications in which the applicant must create an evidentiary foundation sufficient to meet the high bar required by such proceedings. The difference in thresholds to be met by the applicant makes it difficult to hear both habeas corpus and Charter claims together in an expeditious manner while also providing the necessary evidentiary foundation. (See para. 79).

In other words, habeas corpus applications move fast. Too fast for an applicant to create an appropriate evidentiary foundation for the purpose of meeting the “high bar” set by s. 12 of the Charter.

In this particular case, the result of mixing habeas corpus and s. 12 was the Application Judge’s “failure to determine” why Mr. Toure’s detention “rose to a level that was abhorrent or intolerable or so excessive as to outrage ordinary standards of decency”. (See para. 77). Instead, he relied on the duration of Mr. Toure’s detention to find the s. 12 breach. At the same time, however, the Application Judge found the detention to be lawful – even ordering that it should continue, albeit at a different location. The Court of Appeal regarded this as an internal inconsistency. (See para. 80).

Counsel for the Appellant: Jared Will (Jared Will & Associates, Toronto) and Jean Marie Vecina (Vecina Law, Toronto)

Counsel for the Respondents: Judy Michaely, Christopher Crighton and Susan Gans (Justice Canada, Toronto)

Counsel for the Intervener: Michael Dunn and Andrea Bolieiro (Constitutional Law Branch at Ontario Ministry of the Attorney General, Toronto)

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Posted: Wednesday, August 15, 2018