



COURT OF APPEAL FOR ONTARIO

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

DATE: 20180813

DOCKET: C64522

Doherty, LaForme and Hourigan JJ.A.

BETWEEN

Ebrahim Toure

Applicant (Appellant/

Respondent by way of
    cross-appeal)

and

The Minister of Public
    Safety & Emergency Preparedness
, Minister of Immigration, Refugees
    & Citizenship,
Attorney General of Canada


Respondents
    (Respondents/

Appellants by way of cross-appeal)

Jared Will and Jean Marie Vecina, for the appellant

Judy Michaely, Christopher Crighton and Susan Gans, for
    the respondents

Michael Dunn and Andrea Bolieiro, for the intervener,
    Attorney General of Ontario

Heard: May 23, 2018

On appeal from the judgment of Justice A.J. OMarra of
    the Superior Court of Justice, dated October 5, 2017, with reasons reported at 2017
    ONSC 5878, 53 Imm. L.R. (4th) 188.

H.S. LaForme J.A.:

INTRODUCTION

[1]

Ebrahim Toure
believed his
continued detention for immigration removal from Canada was unlawful
.
    He commenced an application for release from immigration detention 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
. His
habeas corpus
application
was dismissed. Relief was, however, granted under s. 24(1) for a
    violation of his s. 12
Charter
rights. The
    application judge found that Mr. Toures detention in a maximum security jail
    was cruel and unusual and ordered his transfer to an immigration detention
    centre. Accordingly, Mr. Toure was removed from the maximum security provincial
    facility at
Central East Correctional Centre
(CECC)
    to the Toronto Immigration Holding Centre (IHC), pending future detention
    reviews and removal.

[2]

Mr. Toure appeals the application judges order
    dismissing his
habeas corpus

application. At
    the same time, the Minister of Public Safety and Emergency Preparedness and the
    Attorney General of Canada (the Minister) seek leave to appeal the application
    judges order granting Mr. Toure s. 24(1) relief for violating his s. 12
Charter
rights.

[3]

For the following reasons, I conclude that Mr.
    Toures appeal should be dismissed and the Ministers cross-appeal should be
    allowed.

BRIEF BACKGROUND

[4]

In June 2012, Mr. Toure, who claimed to be
    Guinean, had his immigration claim denied by the Immigration and Refugee Board
    under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
). His
    application for judicial review was refused and he was placed on a conditional
    departure order with terms and conditions pending his removal from Canada. He
    failed to report for a required interview with the Canadian Border Security
    Agency (CBSA) resulting in his arrest and his detention at the IHC in February
    2013. Following a detention review in February 2013, he was found to be a
    flight risk and his continued detention was ordered.

[5]

Attempts were made by the CBSA to remove Mr.
    Toure to Guinea, however, Guinean authorities found that his Guinean birth
    certificate was fraudulent and refused him entry. He told Guinean authorities
    that he was not Guinean but had status in The Gambia through his father.
    Further, he was unable to speak or understand French, the official language of
    Guinea. On his return to Canada he continued to proclaim that his citizenship
    was Guinean.

[6]

Since his return to Canada in April 2013, and
    until the order under appeal, Mr. Toure had been detained in the CECC rather
    than the IHC. The CBSA claims he does not meet the criteria for detention in a
    lower risk facility; the only one in Ontario being the IHC. At the time of his
    appeal he has had more than 56 detention reviews; all have concluded that his
    continued detention is required because he poses a flight risk, specifically
    that he would not appear for removal.

ISSUES

[7]

On the appeal, Mr. Toure submits that the
    application judge erred in three respects: (1) he improperly applied the legal test
    at the jurisdictional stage; (2) he found there was a reasonable prospect of
    removal within a reasonable time; and (3) he sanctioned indefinite detention.

[8]

On the cross-appeal, the Minister submits the
    application judge committed the following errors: (1) he failed to properly
    identify and apply the legal test to decide whether Mr. Toures detention
    constituted a breach of s. 12 of the
Charter
;
    and (2) in factually concluding that the duration and conditions of Mr. Toures
    detention constituted a breach of s. 12.

(a)

Jurisdiction and Mootness

[9]

Before proceeding to discuss the main issues
    just identified, I will briefly dispose of two peripheral matters. First, this
    court was satisfied that these appeals were properly before us, rather than the
    Divisional Court as provided for in s. 8(1) of the
Habeas Corpus Act
. We agreed with the positions of the parties, namely: (i) the
    cross-appeal concerned the s. 24(1)
Charter
remedy that was granted to Mr. Toure for a breach of his s. 12
Charter
rights; and (ii) Mr. Toure sought relief under ss. 10(c) and 24(1)
    of the
Charter
, in addition to
habeas
    corpus
. Accordingly, s. 6(2) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 provides this court the
    requisite jurisdiction to hear the appeals.

[10]

Second, Mr. Toure argues that the cross-appeal
    is moot as he is currently detained at the IHC rather than the CECC pursuant to
    the order under cross-appeal, and neither the Minister nor the Intervener seek
    an order that he be transferred out of the IHC. He submits that any decision on
    the cross-appeal will not resolve a live controversy affecting the rights of
    the parties.

[11]

We do not agree that the cross-appeal is clearly
    moot. And in any event, having regard to the factors identified in
Borowski
    v. Canada (A.G.)
, [1989] 1 S.C.R. 342, we conclude that
    it is appropriate to decide the matter. The interests of judicial economy would
    be better served by rendering a decision on the cross-appeal, the adversarial
    context remains and the cross-appeal was fully argued by all sides, and
    rendering a decision in these circumstances is consistent with the role of the
    judiciary.

I.        THE APPEAL

Issue 1:
Did the application judge err in applying the required test at the
    jurisdictional stage?

[12]

Habeas corpus
applications proceed in
    two stages. First, the applicant must show that he or she has been deprived of
    liberty and that there is a legitimate ground upon which to question the
    legality of the detention. If the applicant succeeds in meeting that threshold,
    the onus shifts to the authorities to show that the deprivation of liberty is
    lawful: see
Mission Institution v. Khela,
2014 SCC 24,
[2014] 1 S.C.R. 502, at para. 30
.

[13]

In Mr. Toures case, the issue for the
    application judge was whether Mr. Toures
habeas corpus
application was directed solely at his detention pending
    disposition of his immigration issues. A detention that is longer than is
    reasonably necessary to further the machinery of immigration control cannot be
    justified and continued detention will violate the detainees ss. 7 and 9
Charter
rights;
his continued detention
    would be unlawful:
Chaudhary v. Canada (Public Safety and Emergency
    Preparedness)
, 2015 ONCA 700, 127 O.R. (3d) 401, at para.
    81
. The two-stage process then proceeds in the following
    fashion.

[14]

First, in order that his
habeas corpus
application could be heard on the merits, Mr. Toure had the onus to
    show that reasonable and probable grounds existed for his complaint.
    Specifically, as his application alleged, his detention is unlawful because:
    (i) it has been exceptionally lengthy; and, (ii) his continued
detention
    is of uncertain duration.

[15]

Second, if Mr. Toure established his complaint,
    the Minister was required to satisfy the court that, despite its length and
    uncertain duration, the continued detention of Mr. Toure was still justified
    because it is reasonably necessary to further the machinery of immigration
    control:
Chaudhary,
at para. 81.
Thus,
    if there was no reasonable prospect that the detentions immigration related
    purposes would be achieved within a reasonable time, Mr. Toures continued
    detention would violate his
Charter
rights. What is a reasonable
    prospect of his removal within a reasonable time will depend on the
    circumstances.

(a)

The
    First Stage Conclusion

[16]

The application judge referenced the test
    described by this court in
Chaudhary
to
    determine at the first stage whether he should assume
habeas corpus
jurisdiction. He first found that Mr. Toures detention from the
    time he admitted he was Gambian  calculated at 21 months  was unduly lengthy.
    However, in his reasons under the heading uncertain duration, at para. 41, he
    described the issue as follows:

I agree with the respondent that the applicant
    does not satisfy the uncertain duration criteria simply by asserting that no
    scheduled date for removal has been set. The issue is whether removal will
    occur within a reasonable time. What will be considered reasonable will depend
    on the circumstances, which includes the applicants emerging cooperation with
    the removal process, the direct participation of the country to which he will
    be removed and satisfying its requirements to obtain the necessary travel
    documents.

He went on to state at para. 44:

It cannot be said that there is no reasonable
    prospect that some development is likely to occur that will provide the
    necessary documentation to permit the applicant to be removed, rendering his
    detention indeterminate.

[17]

And at para. 45 he concluded: the applicant has
    not satisfied the criteria that his detention, although lengthy, is of
    uncertain duration. In other words, he found that Mr. Toure had failed to
    raise a legitimate ground upon which to question the legality of his detention;
    there was no foundation to assume jurisdiction.

(b)

Submissions

[18]

Mr. Toure submits the application judge erred at
    this first stage in two respects. First, he contends the application judge
    erroneously asked whether Mr. Toures removal would occur in a reasonable time.
    He argues that the only question at this stage was whether the future length of
    detention was uncertain. The approach taken, he says, had the effect of
    shifting the onus on to Mr. Toure. It is the Minister, he says, once
    jurisdiction has been established, that must demonstrate that the detention is
    legal despite its length and uncertain duration  that there is a reasonable
    prospect that the detentions immigration-related purposes would be achieved
    within a reasonable time.

[19]

The second error, Mr. Toure argues, occurred
    when the application judge determined that he only had jurisdiction to hear the
    application if Mr. Toure established that his detention was both lengthy and of
    uncertain duration. In support of his submission that this is now wrong in law,
    he relies on this courts decision in
Ogiamien v. Ontario (Community
    Safety and Correctional Services)
, 2017 ONCA 839, [2017]
    O.J. No. 5702 (
Ogiamien #2)
, which was
    released subsequent to the decision under appeal.

[20]

I cannot accept either submission. My
    explanation for this will be set out below in reverse order.

(c)

Analysis

(i)

Extent of the Superior Courts Jurisdiction

[21]

The test set out in
Chaudhary
governing when the Superior Court can exercise its jurisdiction to
    hear an application by an immigration detainee is conjunctive.
Chaudhary
, at para. 81, makes it clear that, in the circumstances of that
    case, the detention complained of at the jurisdiction stage must be both very
    lengthy and of uncertain duration. This was affirmed in this courts recent
    decision in
Brown v. Canada (Public Safety)
,
    2018 ONCA 14, 420 D.L.R. (4th) 124, at para. 32.

[22]

Mr. Toure submits that jurisdiction of a
    Superior Court to hear
habeas corpus
applications brought by immigration detainees is not limited to cases of
    lengthy detentions of uncertain duration. He argues that, on his application,
    the application judge took an unnecessarily narrow view of his jurisdiction. He
    relies on
Ogiamien #2
in support.

[23]

I accept Mr. Toures general submission and his
    reliance on
Ogiamien #2
; the principle applied
    in
Chaudhary
is not restricted to the specific
    facts considered in that case. In
Ogiamien #2
,
    at para. 41, this court rejected the contention that
habeas corpus
will only be available in immigration matters in the case of
    lengthy detentions of uncertain duration. It went on in that same paragraph to
    explain that:

Chaudhary
rests on the general
    principle that the Superior Court retains its residual jurisdiction to
    entertain
habeas corpus
applications where the
IRPA
process of review under the supervision
    of the Federal Court is less advantageous than
habeas corpus
, and where releasing the applicant would not alter the immigration
    status of the applicant or amount to a collateral attack on an immigration
    decision. The principle applied by this court in
Chaudhary
is not restricted to the specific facts considered in that case.

[24]

However, I do not accept Mr. Toures submission
    that the application judge erred because he concluded that he could take
    jurisdiction only if the first part of the
Chaudhary
test was met. I say this for several reasons.

[25]

First,
Ogiamien #2
was released after the application judge rendered his decision in
    this matter. Second, the decision, while recognizing that there may be other
    exceptional circumstances where
habeas corpus
is available to an immigration detainee, maintains the
Chaudhary
test.

[26]

The question regarding any issue in immigration
habeas
    corpus
matters, other than in the case of lengthy
    detentions of uncertain duration, will be, whether there is a complete,
    comprehensive and expert alternative remedy that is as broad and advantageous
    as a
habeas corpus
application:
Chhina
    v. Canada (Public Safety and Emergency Preparedness)
, 2017
    ABCA 248, 56 Alta. L.R. (6th) 1, at para. 34. The application must not be a
    challenge to the detainees immigration status. Rather, it must address the
    question of whether the detention furthers the machinery of immigration
    control.

[27]

Third, and most significant, Mr. Toure
    specifically relied on the
Chaudhary
test in
    support of his application. He did not argue that the court had jurisdiction to
    hear his application because of other exceptional circumstances. The necessary
    question referenced in
Chhina

was neither
    raised by nor addressed by Mr. Toure, or consequently by the application judge,
    in his
habeas corpus
application. Any such
    arguments raised for the first time on appeal should not be considered.

(ii)

Shifting of the Onus

[28]

The question here is whether the application judges description
    of Mr. Toures onus at the jurisdiction stage as including, whether
removal will occur within a reasonable time had the effect of
    shifting the Ministers onus on to him. In my view, it did not.

[29]

Chaudhary
does not set a maximum length
    of detention; instead, it prescribes 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 detainees rights not to be
    detained arbitrarily or for indefinite periods:
Brown
, at para. 31. Further, this court noted in
Brown
at para. 32:

While the length of the detention is a
    critical factor in that analysis, the question of when it can be reasonably
    anticipated that the removal order will be executed is another important
    consideration. In that sense, it is principally a forward-looking test and not
    one where reasonable decisions are later made to appear as having been
    unreasonable with the benefit of hindsight.

[30]

Thus, in assessing uncertain duration, a
    reviewing body is to have regard for the facts of the case at the time of the application.
    This may involve consideration of whether there is a reasonable prospect that
    removal will be achieved within a reasonable time.

[31]

The application judge considered the relevant
    facts and concluded that Mr. Toures continued detention was not of uncertain
    duration. Rather, looking forward, he found it would be ended within a time
    that is reasonable in all the circumstances. In doing so, he did not improperly
    shift any onus.

Issue 2: Did the
    application judge err in finding that there was a reasonable prospect of
    removal within a reasonable time?

[32]

In deciding that Mr. Toure had not established
    that his detention was of uncertain duration, the application judge considered
    whether there was a reasonable prospect that his removal would be achieved
    within a reasonable time. He concluded that it would and briefly described why at
    para. 43:

[I]n this matter a breakthrough will occur
    as soon as the applicant confirms identifying information and provides truthful
    and accurate information about his history in Gambia, necessary to assist in
    securing his travel document, particularly when interviewed by the Gambian
    authorities, an interview which is pending.

[33]

Mr. Toure submits the application judge
    committed numerous errors in arriving at his ultimate finding. I do not agree.

(a)

Alleged
    Errors of Fact

[34]

It was open to the application judge to conclude
    that a breakthrough would occur with Mr. Toures cooperation. The application
    judge acknowledged Mr. Toures emerging cooperation with the removal process,
    accepted that there were steps Mr. Toure could take to assist the process, and
    concluded that a breakthrough could occur as soon as he did so. Mr. Toures own
    actions and assertions throughout make this more than unfounded speculation.

[35]

Mr. Toure cites
Ali v. Canada
    (Minister of Citizenship and Immigration)
,
2015 FC 1012, [2015] F.C.J.
    No. 1008 and
Canada (Minister of Citizenship and Immigration) v. Li
,
2009 FCA 85, [2010]
    2 F.C.R. 433 to argue that the application judge erred in relying on uncertain future
    events in the removal process. He submits that these uncertainties can be of no
    assistance. These cases are distinguishable on their facts. Further, they make
    clear that in assessing uncertain duration a reviewing body is to have regard
    to the actual facts of the case. In this case, the lack of certainty about the
    Gambian embassy interview, which Mr. Toure points to, is of less importance
    than Mr. Toures cooperation.

[36]

It is important to note that Mr. Toure is not being
    detained because of his failure to cooperate, as he claims. His detention is in
    fact because of concerns, based on his past conduct, of him failing to appear
    for proceedings involving his immigration issues when required to do so. His
    non-cooperation is but one factor - a significant one to be sure - in the
    CBSAs ongoing efforts to remove him from Canada.

[37]

Mr. Toure also complains that the application
    judge did not fairly consider his mental health, that he has no criminal
    charges, and that he is not a danger to the public. He argues that more
    importance was unfairly placed on his varying cooperation with the CBSA. The
    application judge did not err in his consideration of these issues given that he
    was deciding whether Mr. Toures detention was of uncertain duration. Mr.
    Toures complaints about these other factors are not relevant to this issue.

[38]

On a fair review of the record, there is a
    reasonable prospect that Mr. Toures current situation is going to
    change. More specifically, there is a reasonable prospect that some
    development is likely to occur that will provide the necessary documentation
    that would permit Mr. Toure to be removed. It seems clear that Mr. Toures
    detention is not likely to continue for an indeterminate period. His cooperation
    will undoubtedly expedite what needs to follow.

[39]

Finally, the application judge was not required
    to calculate precisely what would constitute a reasonable time. The onus was on
    Mr. Toure to demonstrate that his detention was of an uncertain duration. He
    failed to do so.

(b)

Procedural Fairness Regarding Disclosure

[40]

Contrary to the submissions of Mr. Toure, there
    was no breach of procedural fairness at his
habeas corpus
application regarding disclosure. I reach this conclusion for two
    reasons.

[41]

First, the fact that the application judge noted
    that Mr. Toure had not pursued juridical review or an adjournment regarding the
    Immigration Divisions refusal to grant further disclosure had nothing to do
    with his conclusion on disclosure, such as it was.

[42]

Second, Mr. Toure did not make a motion before
    the application judge for disclosure in his
habeas corpus
application. He had brought a previous unsuccessful motion before a
    different judge, which he did not appeal. Although Mr. Toures counsel did
    reference disclosure in his submissions on his
habeas corpus
application; he did not bring a second motion. Instead, at the
    conclusion of the oral evidence, Mr. Toures counsel handed the application
    judge a list of documents he felt should be disclosed. When asked whether he
    intended to pursue a motion with respect to these documents, counsel stated
    that he would only do so in the event the court concluded that [the Minister]
    may have met their burden in proving the legality of detention.

[43]

On this record, the disclosure issue is far from
    being an example of severe unfairness and a breach of fundamental justice, as
    Mr. Toure submits. There is no merit whatsoever in this submission.

Issue 3 - Did the application judge sanction
    indefinite detention?

[44]

Mr. Toure submits that the justification
    underpinning the application judges decision is that a detainees lack of
    active cooperation with removal proceedings will justify indefinite detention.
    He says that Mr. Toures detention, according to the application judge:

has been and will continue to be lawful for
    however long that he does not cooperate with removal efforts. In other words,
    indefinite detention is a just punishment for non-cooperation with deportation.

[45]

This interpretation of the application judges
    conclusion is a flawed reading of his reasons, in my view. When his reasons are
    read as a whole and fairly considered, they do not endorse indefinite detention
    in the immigration context based on non-cooperation alone. To the contrary,
    they clearly reveal that the application judge properly considered Mr. Toures
    lack of cooperation only as an important factor in his ongoing detention. As
    the Minister notes, it is a well-established principle that unexplained delay
    or lack of diligence should count against the offending party: see
Ali
    v. Canada (Attorney General)
, 2017 ONSC 2660, 137 O.R.
    (3d) 498, at para. 22. This does not convert the lack of cooperation into the
    reason for detention.

[46]

Non-cooperation is clearly a factor that may
    contribute to the length of someones detention. In Mr. Toures case, the
    application judge, while noting that his failure to cooperate in the past with
    the CBSA is a significant factor, also considered all the other facts of the
    case. This included a summary of the CBSA efforts to identify Mr. Toure, the
    failed attempt to remove him to Guinea, and his reason for continued detention,
    namely, he was found to be a flight risk.

[47]

Mr. Toure argues that his detention is contrary
    to international norms against indefinite detention. This submission is
    contrary to the jurisprudence and has not persuaded me that Mr. Toures
    detention runs afoul of Canadas international commitments. Canadas
    immigration detention system operates differently from the regimes in other
    nations, but it remains constitutionally compliant primarily because it
    provides an effective review process that meets the requirements of Canadian
    law:
Brown
, at paras. 37-38. Importantly, the
    constitutionality of the immigration detention scheme was simply not at issue
    below.

[48]

This submission is without merit.

[49]

In the result, I would dismiss the appeal.

II. THE CROSS-APPEAL

Section 12 of the
Charter

[50]

Mr. Toure argued that his detention in a maximum
    security provincial facility for an extended period of time constituted cruel
    and unusual punishment and was contrary to s. 12 of the
Charter
. He did not submit an affidavit or testify on the application
    hearing. His counsel submitted that no personal evidence was required for Mr.
    Toure to meet his low evidentiary burden on the
habeas corpus
application. It appears that this approach was not adjusted to take
    into account the more difficult task faced by Mr. Toure in seeking relief under
    s. 24(1) of the
Charter
for an infringement of
    s. 12.

[51]

Applicants must meet a low threshold at the
    jurisdictional stage of a
habeas corpus
application.
    They must demonstrate that they have been deprived of liberty, and that a
reasonable or probable ground exists for their complaint: see
Chaudhary
, at para. 81.
In other words, an applicant
    need only lead enough evidence to show there is a cause to doubt the legality
    of his detention: see
May v. Ferndale Institution
, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 71. Once this threshold is
    met, the
court can exercise its jurisdiction to hear
    the
habeas corpus
application, and the onus to
    prove the legality of the detention falls on the authorities.

[52]

In contrast, applicants seeking s. 24(1) relief
    for infringement of their s. 12 rights face a high bar: see
Ogiamien
    v. Ontario (Community Safety and Correctional Services)
,
    2017 ONCA 667, 416 D.L.R. (4th) 124 (
Ogiamien #1
), at para. 9. The burden is on the applicant to show, on a balance
    of probabilities, that s. 12 has been infringed: see
R. v. Collins
, [1987] 1 S.C.R. 265, at p. 277. As I discuss below, this requires
    demonstrating that the treatment is such that it would outrage the standards of
    decency, or that Canadians would find it abhorrent.

[53]

The difference in what an applicant must
    demonstrate on a
habeas corpus
application
    versus a s. 12 application seeking s. 24(1) relief is central to the outcome of
    this cross-appeal.

[54]

As I noted earlier, there are two alleged errors
    the Minister claims the application judge made in concluding that the duration
    and conditions of Mr. Toures detention constituted a breach of s. 12 of the
Charter
. The first is his identification and application of the legal test.
    The second is in regards to his findings of fact. I will discuss each of these
    submissions in turn.

(1)

The Test to Assess Cruel and Unusual Treatment

[55]

In conducting his s. 12
Charter
analysis, the application judge first referred to the Supreme
    Courts decision in
Charkaoui v. Canada (Citizenship and
    Immigration)
, 2007 SCC 9, [2007] 1 S.C.R. 350, which held
    that the immigration detention review scheme in the
IRPA
and its regulations does not violate s. 12. This is because, as
Charkaoui
states at para. 123, [
IRPA
]
    permits robust ongoing judicial review of the continued need for and justice of
    the detainee's detention pending deportation. However,
Charkaoui
also cautions that there is the possibility that at a certain
    point  a particular detention constitutes cruel and unusual treatment  and
    therefore infringes the
Charter
.

[56]

The application judge referred to the Supreme
    Courts decision in
Regina v. Smith
,
[1987] 1 S.C.R. 1045
for the
    framework for determining whether a detention constitutes cruel and unusual
    punishment. In particular, he relied on
Smith
at p. 1072 where Lamer J. described cruel and unusual punishment in the
    sentencing context as being grossly disproportionate to appropriate
    punishment and so excessively lengthy as to outrage standards of decency (the
    majority of the court agreed on this point). The application judge added to
    this that gross disproportionality is made out where the length of imprisonment
    is abhorrent or intolerable to society. This is consistent with
R.
    v. Morrissey
, 2000 SCC 39, [2000] 2 S.C.R. 90, at para.
    26, wherein Gonthier J., writing for the majority, equated grossly
    disproportionate punishment with punishment that Canadians would find 
    abhorrent or intolerable.

[57]

The Minister and the Intervener argue that the
    application judge did not follow the framework endorsed in
Ogiamien
    #1
, at para. 10: (1) determine what treatment would have
    been appropriate, and (2) measure the actual treatment against this benchmark.
    While the application judge did not refer to or rely on this case in reaching
    his decision, I do not accept that his approach in his analysis amounts to an
    error.

[58]

As it was in
Ogiamien #1
, Mr. Toures case is about treatment and not punishment. In either
    case however, the test to establish a violation of s. 12 is the same. The words
    cruel and unusual colour each other and together express a standard or
    norm. That is, Mr. Toure is not required to establish each separately, and
    cruel and unusual is a high bar to meet:
Ogiamien #1
, at paras. 7-9.

[59]

Ogiamien #1
, in my view,

did
    not set out the specifically referenced two-step process as the only possible
    manner of assessing s. 12 claims. Indeed, the framework followed in
Ogiamien
    #1
was a recognition of the approach revealed in a
    statement in
Smith
, at p. 1072. That is, cruel
    and unusual punishment is grossly disproportionate to what would have been
    appropriate. I am satisfied that the application judge specifically followed
Smith
and the two-step approach implied by this statement.

[60]

I do not believe that
Ogiamien #1
should be read as finding the approach taken by the application
    judge improper or inconsistent with asking whether the treatment is grossly
    disproportionate to the treatment that can be justified and is so excessive as
    to outrage standards of decency.

(2)

The findings and determination of the application
    judge on s. 12

[61]

As expressed in
Ogiamien #1
at para. 54, a determination of whether treatment is cruel and
    unusual requires a focus on the effect of the conduct in question  does it
    give rise to cruel and unusual treatment?

[62]

In essence, the application judge accepted Mr.
    Toures general assertion that his treatment of being detained in the CECC
    rather than in a facility dedicated to immigration detention amounted to cruel
    and unusual treatment. More specifically, he accepted that given Mr. Toures flight
    risk concerns, the CBSA criteria for a lower security placement, and Mr.
    Toures personal circumstances, his detention in a maximum security facility
    in which prisoners are maintained on remand or to serve provincial reformatory
    periods of incarceration of less than two years, as opposed to the IHC, is so
    excessive to be considered abhorrent and intolerable to our society: paras. 75
    and 88. He made several findings to support this conclusion, which I will
    briefly describe below.

[63]

First, the application judge addressed the
    process of detaining an immigration detainee. He noted that the CBSA decides
    whether to direct the detainee to a provincial maximum security facility or a
    location with a lesser degree of security. He seems to accept Mr. Toures submission
    that this process falls short of providing any legal basis for making such a
    decision.

[64]

Second, the application judge noted that in Mr.
    Toures case there has been an ongoing process of review that has considered
    the issue of detention as
Charkaoui

requires.
    However, he also found that the place of his detention has not been considered
    on the reviews; [he] has also no means to challenge his placement in the much
    harsher conditions of provincial jail.

[65]

Third, the application judge noted that Mr. Toure
    has been detained for more than four years at the CECC. He then referred to a
    psychiatric assessment of Mr. Toure conducted on August 14, 2017, which
    revealed that he displayed symptoms of a dissociative state having intruding
    auditory and visual hallucinations.

[66]

Fourth, he noted that Mr. Toure is considered a
    flight risk by the Immigration Division, but that no assessment has been
    undertaken as to whether his imprisonment is the most minimally impairing and
    proportionate disposition to deal with his risk. According to the criteria set
    out in the CBSA National Risk Assessment for Detention Guide, he more qualifies
    for placement in a less secure environment than a provincial detention centre.

[67]

Finally, he concluded at para. 87 that while at
    the CECC Mr. Toure spent almost one and a half years in lockdown. Mr. Toure
    has spent more time in a maximum security facility than someone convicted of a
    serious crime of violence.

[68]

For these reasons, the application judge held,
    at para. 88, that:

The duration and conditions in which Mr. Toure
    has been kept has made his detention both cruel and unusual. The condition and
    duration of his detention is so excessive to be considered abhorrent and
    intolerable to our society. The applicants s. 12 rights have been breached as
    a result.

[69]

The application judge ordered that Mr. Toure be
    removed forthwith from the maximum security provincial facility to the IHC,
    pending future detention reviews and removal. The order does not preclude
    alternate forms of community-based control where considered appropriate and
    necessary to minimize flight risk pending removal.

(3)

Did Mr. Toure Meet the High Threshold to
    Establish a s. 12
Charter
Breach?

[70]

At the outset, it is long established that
Charter
applications should not be made in a factual vacuum. As has been
    repeatedly noted in these reasons, it is Mr. Toures onus to put forward a
    rigorous record to overcome the high threshold required to demonstrate a breach
    of s. 12 of the
Charter
. In my view, the
    evidence in this case falls far short of concluding that Mr. Toure has met this
    high bar of showing his treatment was cruel and unusual. The errors made by the
    application judge are largely linked to the lack of evidentiary foundation.

[71]

First, the application judge erred in finding
    that there is no legal basis for the process by which the CBSA makes decisions
    regarding an immigration detainees placement of detention. The general
    immigration detention policies and procedures were not the subject of the
    underlying application. As the application judge noted,
Charkaoui
found the review scheme in the
IRPA
and its regulations consistent with s. 12 of the
Charter
because it provides for meaningful ongoing review taking into
    account the context and circumstances of an individual case.

[72]

Mr. Toure had a mechanism to challenge his place
    of detention and to raise the conditions of the CECC with the CBSA. The
    jurisprudence supports this as did the Ministers evidence on the application.
    The application judge failed to properly consider this evidence, including that
    Mr. Toure had not asked the CBSA to transfer locations: see
Brown
, at para. 38. The location of detention is a proper issue for
    immigration detainees to raise with the CBSA. Particularly, if the location of
    their detention is not consistent with how they fit within the CBSAs own
    criteria. If this query is ignored, this decision is the proper subject of
    judicial review.

[73]

The evidence supports the decision to place Mr.
    Toure at the CECC, which was a discretionary decision reviewable by the Federal
    Court. While Mr. Toure met several criteria for placement in a lower security
    detention centre, he also met several criteria for placement in a more secure,
    maximum facility. Mr. Toure provided no evidence to the contrary.

[74]

Second, there is no evidence beyond the August
    14, 2017 psychiatric assessment and nothing from Mr. Toure as to how it impacts
    on him or how it assists in establishing his claimed s. 12
Charter
breach. Notably, the only time Mr. Toure has relied on the
    psychiatric assessment referenced by the application judge was at the hearing.

[75]

Finally, while I accept that the application
    judge miscalculated the time Mr. Toure spent in lockdown, I do not necessarily
    agree that this was a palpable and overriding error. However, the application
    judge did err in two material ways regarding the evidence of lockdowns: (i) he
    did not explain how the lockdowns, or any conditions, departed from the
    ordinary conditions of detention in a manner that was grossly disproportionate;
    and (ii) he failed to examine the actual effect of lockdowns on Mr. Toure: see
Ogiamien
    #1
, at paras. 10, 54, 62, 68.

[76]

The only evidence about the conditions of his detention at the CECC
    was the lockdown information. Mr. Toure provided virtually no evidence of how
    those conditions specifically affected him. There was no evidence whatsoever
    about:

1.
the particulars of the CECCs size, categories of inmates, or
    placement options, for example high risk, low risk, or those on remand; and,

2.
the CECCs daily living conditions such as the number of
    inmates in a holding cell, recreation options or socialization.

[77]

The application judges failure to determine how
    the lockdowns or conditions at the CECC rose to a level that was abhorrent or
    intolerable or so excessive as to outrage the standards of decency are fatal
    errors in Mr. Toures case.

[78]

Before concluding, I would make a final comment
    about the problems inherent in hearing
Charter
claims together with
habeas corpus
applications. As this court observed in
Brown
,
    at para. 20:

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 persons
    deprivation of liberty:
May v. Ferndale Institution
, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 69. Courts are to give
    priority to such applications as they are deemed to be urgent.

[79]

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.

[80]

In Mr. Toures case, the application judges
    decision is internally inconsistent in that he found the detention to be lawful
    and that it ought to continue. However, he then relied on the duration of the
    detention to find a s. 12
Charter
breach. The
    urgency of the
habeas corpus
application was
    impacted by such an approach as was the approach to meeting the high bar
    imposed by s. 12.

DISPOSITION

[81]

For all the foregoing reasons, I would dismiss
    the appeal and grant the cross-appeal.

Released: DD AUG 13 2018

H.S. LaForme J.A.

I agree. Doherty J.A.

I agree. C.W. Hourigan
    J.A.


