Case: Brown v. Canada (Public Safety), 2018 ONCA 14 (CanLII)
Keywords: Charter Damages; Habeas Corpus
The Appellant, Mr. Brown, is a Jamaican citizen. He arrives to Canada in 1983, becoming a permanent resident by 1984. Between 1999 and 2010, he has a total of 18 convictions, some for violent offences. He is formerly addicted to crack cocaine and alcohol and it is alleged he suffers from schizophrenia. In 2005, his permanent residency is terminated and a removal order from Canada is issued because of “serious criminality”.
Prior to being deported to Jamaica, Mr. Brown is detained for the purpose of removal in a maximum security institution for five years (during which time the Jamaican consulate and Canadian Border Services Agency (CBSA) officials attempt to verify his Jamaican nationality). He brings a habeas corpus application and seeks damages under s. 24(1) as a remedy for alleged breaches of his ss. 7, 9 and 12 rights. On September 7, 2016, Mr. Brown is finally removed to Jamaica after the issuance of a travel document.
Mr. Brown is deported before his application (which includes a Charter damages claim) is decided, and so the habeas corpus portion of his application is dismissed as moot. He nonetheless proceeds with the Charter claim, which alleges that, prior to his eventual deportation, the detention he suffered was cruel, unusual, arbitrary and indefinite. Following dismissal of his Charter damages claim, Mr. Brown appeals, arguing the application judge erred. The Court of Appeal disagrees, dismissing the appeal and finding the Application Judge was entitled to deference in concluding the process by which he was detained was procedurally fair and that multiple factors warranted his detention.
The decision is significant because it offers an extremely practical roadmap for those seeking Charter damages in the context of detention issues and s. 9. This topic has attracted considerable attention since the Supreme Court of Canada’s decision in Vancouver (City) v. Ward, 2010 SCC 27 (CanLII),  2 S.C.R. 28, and the recent Omar Khadr settlement (which made headlines during the summer of 2017).
The Court of Appeal has stated clearly that, where Charter damages are sought for an alleged illegal detention, they are to be sought through standalone Charter applications or by way of an action, and not as part of a habeas corpus application. (See para. 56).
Rouleau J.A., writing for the Court of Appeal, stated:
In my view, Charter damage claims cannot be joined to habeas corpus applications. As I have explained earlier habeas corpus is intended to be an expeditious process to determine whether a restriction on liberty of a person is legal at a given point in time. It is not, nor should it become, a potentially complex and protracted process in which entitlement to s. 24(1) damages is determined. (See para. 52).
The Court of Appeal expressed the view that tacking a Charter damages claim to habeas corpus “…distorts what is otherwise intended to be an expeditious process” and “inevitably results in significant delays to the hearing of the habeas corpus application”. (See para. 21). Citing May v. Ferndale Institution, 2005 SCC 82 (CanLII),  3 S.C.R. 809, at para. 69, the Court of Appeal found that habeas corpus is intended to be a manner for quickly resolving the issue of a person’s deprivation of liberty. (See para. 20).
Counsel for the Appellant: Jean Marie Vecina and Jared Will (Vecina Law Professional Corporation, Toronto)
Counsel for the Respondents: Bernard Assan, Martin Anderson and Mélissa Mathieu (Justice Canada, Toronto)