Protracted Immigration Detention and Compressed Proceedings: Habeas Corpus and Charter Claims in Brown v Canada (Public Safety)
In Brown v Canada (Public Safety), 2018 ONCA 14 [Brown], the Ontario Court of Appeal (“ONCA”) found that Alvin Brown’s rights not to be arbitrarily imprisoned or subjected to cruel and unusual punishment were not breached—despite the fact that he had been detained for five years awaiting immigration removal, and the existence of international guidelines against such protracted detention. In its decision, the ONCA also clarified that superior courts should not combine the hearing of habeas corpus and Charter applications.
Alvin Brown was born in Jamaica and moved to Canada when he was eight years old in 1983, becoming a permanent resident in 1984. Later in life, Brown struggled with drug addictions, and between 1999 and 2010 he had eighteen convictions to his name, including some for violent offences. Due to serious criminality, Brown’s permanent residency was terminated and the Canadian government issued a removal order.
After serving his last criminal sentence in 2011, Brown was detained by Canadian Border Services Agency (“CBSA”) in order to execute the removal order. Although briefly released on terms and conditions, Brown was again detained in a maximum-security prison for breaching bail conditions and because he was found to be a danger to the public. Over the next five years, Brown’s detention was renewed every thirty days, and his removal was delayed because the Jamaican consulate lost his passport and birth certificate. In January 2016, the Jamaican consulate again delayed the removal application over concerns for mental health issues related to Brown’s alleged schizophrenia. After several months, Jamaican authorities confirmed that they could accommodate Brown’s mental condition, and in September 2016, he was removed to Jamaica.
Application Judge’s Decision
Before his removal, Brown filed a combined habeas corpus and Charter application, claiming that his detention while awaiting removal violated his rights under sections 7, 9, and 12 of the Canadian Charter of Rights and Freedoms [Charter]. After his removal, the habeas corpus aspect of his application was moot, but he continued his Charter claim, seeking $1,500 per day of his detention in damages. The application judge found that (1) there had been no violation of due process under section 7, and so his deprivation of liberty was “in accordance with the principles of fundamental justice”; (2) that Brown’s detention was valid and did not violate his section 9 right “not to be arbitrarily detained or imprisoned”; and finally (3) that Brown received adequate care during detention and was not “subjected to any cruel and unusual treatment or punishment,” in accordance with section 12.
Brown appealed, arguing that the application judge erred in finding that there was no breach of his Charter rights.
Although habeas corpus was not an issue on appeal, Justice Rouleau, writing in a unanimous three-panel ONCA decision, clarified that though the superior courts have broad discretion in proceedings, they should not combine the hearing of habeas corpus and Charter applications. Justice Rouleau insisted that courts must give priority to habeas corpus applications and treat them as urgent,
“Because of the importance of the interests at stake, habeas corpus is intended to be a manner of quickly resolving the issue of the lawfulness of a person’s deprivation of liberty.” (Brown, para 20)
However, the combination of habeas corpus with a Charter application “distorts what is otherwise intended to be an expeditious process” because Charter claims inevitably result in delays (Brown, para 21). Moreover, the habeas corpus application could press the matter to an early hearing, creating the risk that the record required for a proper hearing and disposition of the Charter claims may be incomplete (para 22). Although Justice Rouleau found that these problems with a hybrid application occurred in this case—which created a record insufficient to rule on damages for Charter breaches—he nevertheless held that the record was sufficient to ascertain whether the breaches actually occurred, and thus, the application judge had proceeded appropriately.
Sections 7 and 9
Brown maintained that the application judge erred in focusing the sections 7 and 9 analyses on due process, arguing that instead the court should have separately considered the arbitrary and indefinite nature of Brown’s detention and applied the principles set out in Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 [Chaudhary]. Chaudhary states that a “detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control,” and continued detention will violate sections 7 and 9 when “there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time,” with reasonableness depending on the circumstances (Chaudhary, para 81). If the court had done so, Brown argued, it would have concluded that Brown’s detention had become illegal after 18 months because there was “no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time” (Brown, para 27; quoting Chaudhary, para 81).
The ONCA found that the application judge did not err in his analysis of sections 7 and 9 because the CBSA’s fact-driven determination that Brown was a flight risk and danger to public safety deserves deference, and Brown was treated fairly procedurally as the CBSA conducted a quasi-judicial review every thirty days pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Justice Rouleau disagreed with Brown that Chaudhary establishes a maximum length of detention but rather requires,
[A] fact-driven analysis in which there is a balancing of the statutory reasons for detention and the prospect of removal within a reasonably foreseeable timeframe against a detainee’s rights not to be detained arbitrarily or for indefinite periods.” (Brown, para 31)
The ONCA also accepted the application judge’s findings that despite the continued delays from Jamaican authorities, the CBSA reasonably believed that his removal would be achieved.
International Norms on Immigration Detention
Brown further submitted that the court should have compared the practice of other jurisdictions and that Canada should adopt international norms by setting a maximum period of detention for removal purposes. For example, the United Nations Human Rights Office of the High Commissioner’s Working Group on Arbitrary Detention has drafted guidelines requiring states to establish a maximum period of detention that must not be of excessive length (III.3), and the European Union (“EU”) directive 2008/115 mandates that each member state “shall set a limited period of detention, which may not exceed six months” (15.5).
Justice Rouleau, however, found no basis for Brown’s argument that detention beyond 18 months should be considered illegal. Although Brown provided references to court and tribunal decisions, along with laws and directives from other jurisdictions, presumably much like the EU directive, the ONCA rejected his argument because he failed to lead expert evidence explaining how immigration regimes operate in those jurisdictions and how their detainee rights compare to Canadian protections (Brown, para 37). Justice Rouleau insisted that the IRPA “operates quite differently” from regimes such as the EU’s, and that, although it may lead to lengthy and indeterminate detention, the legislation “meets the requirements of Canadian law” (para 38; quoting Charkaoui v Canada (Citizenship and Immigration),  1 SCR 350).
Brown argued that his five-year detention in a maximum-security prison, as being grossly disproportionate to its removal purposes and exacerbating his mental health, amounted to cruel and unusual punishment. Although Brown’s detention was lengthy, the ONCA found that it did not violate his section 12 rights because the CBSA was diligent in trying to bring about his removal and the delays were beyond their control. The ONCA also agreed with the application judge’s rejection of Brown’s expert evidence from two psychologists who testified that he had received inadequate mental health treatment while in detention, finding the evidence of the institution’s medical records more persuasive.
Brown also argued that the application judge did not give enough weight to the toll the long detention and the stress of not knowing when it would end had on his mental health. However, the ONCA noted that the application judge did not ignore such facts and that it was “not up to this court to reweigh all of the evidence” (Brown, para 47).
The ONCA ultimately dismissed the appeal, upholding the application judge’s findings that there were no Charter breaches. Because of the “compressed nature” of the proceedings below, affected by the habeas corpus application, the ONCA found the record inadequate for determining Charter damages, suggesting that the outcome could have been different had Brown filed stand-alone applications.
No matter how diligently or procedurally fair the CBSA acted in trying to achieve Brown’s removal, five years is an unreasonable amount of time to detain someone for immigration removal. Brown’s detention may have proceeded in accordance with the IRPA and met the requirements of Canadian law, but the ONCA failed to adequately address Brown’s contention that Canada should follow international norms in limiting immigration-related detention. Even if the IRPA is vastly different from the EU regime, the allowance of a five-year detention in comparison to a six-month maximum in other jurisdictions makes Canadian immigration law appear archaic and draconian.
Brown also establishes a potentially important precedent on habeas corpus and Charter applications, serving as a cautionary tale to warn future applicants to ensure such claims are made separately. Justice Rouleau’s strong words against this combined application suggest that only separate claims will be given proper treatment and consideration. But what will this mean for procedural efficiency? Perhaps this precedent will ensure that habeas corpus applications are heard more expeditiously, but it could also create the risk of justifying even more protracted Charter proceedings.