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SCC rules immigration detainees can apply to provincial superior courts for habeas corpus

Updated: Jan 18, 2023

"Michael Battista of Toronto’s Battista Migration Law Group, co-counsel with Adrienne Smith for the intervener Egale Canada Human Rights Trusts, called the ruling “very thorough and very clear.”

“It aligns with what Egale argued — that the current immigration regime for detention reviews does not allow for a consideration of the conditions of detention, and habeas corpus is a superior remedy in those circumstances,” he explained. “The narrow ratio is that on habeas corpus applications involving people detained under our immigration legislation, courts must look to the specific grounds raised to determine whether habeas corpus is available.”

While the decision does expand the legal remedies available to long-term immigration detainees, who previously were confined to processes under IRPA, Battista doubts the courts will see many more habeas corpus applications.

“The immigration detention review regime will still be the default process,” he predicted. Moreover, “superior courts will retain the ability to refuse to hear habeas corpus applications in appropriate circumstances — and the government may decide to release a detainee rather than fight it out in superior courts.”

Battista noted that the ruling is useful for both criminal lawyers and the immigration law bar. “Criminal lawyers have been provided powerful statements from our highest court about the importance of habeas corpus in protecting our liberty interests,” he advised. “Immigration lawyers now have an additional tool in our toolbox for remedying lengthy or harsh detention.”

Battista also predicted that Justice Abella’s dissent “will be very helpful in imposing rigorous standards on decision makers in immigration detention reviews.”

He added that if the government wants to improve the immigration detention review framework, the court has provided guidance on what needs to be addressed."

"SCC rules immigration detainees can apply to provincial superior courts for habeas corpus" - By Cristin Schmitz - The Lawyer's Daily


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