



COURT OF APPEAL FOR ONTARIO

CITATION: Wang v. Canada, 2018 ONCA 798

DATE: 20181003

DOCKET: C63889

Hourigan, Nordheimer and Harvison Young JJ.A.

BETWEEN

Zhenhua Wang and Chunxiang Yan

Applicants (Appellants)

and

Her Majesty the Queen in right of Canada, The
Minister of Public Safety and Emergency Preparedness, and the Canada Border
Services Agency

Respondents (Respondents)



Rocco Galati, for the appellants

James Todd and Nicholas Dodokin, for the respondents

Heard: September 24, 2018

On appeal from the judgment of Justice James Diamond of
the Superior Court of Justice dated May 15, 2017, with reasons reported at 2017
ONSC 2841.

Nordheimer J.A.:

[1]

The appellants appeal from the judgment of Diamond J., dated May 15, 2017
that dismissed their application for
habeas corpus
. The application
judge concluded that, because the applicants were not being held in custody,
they were not detained and therefore the writ of
habeas corpus
could
not apply. The following reasons explain why I have determined that the
application judge erred in his conclusion.

I: Background

[2]

The appellants are foreign nationals, possessing citizenship in China
and the Dominican Republic. They entered Canada as visitors on September 30,
2012 on visas they obtained from the Canadian Embassy in the Dominican
Republic. In August 2013, the appellants departed Canada after obtaining a
six-month extension to their visa. The appellants entered Canada again on November
30, 2013, after obtaining another Temporary Resident Visa on August 19, 2013
from the Canadian Embassy in the Dominican Republic.

[3]

In November 2013, the Canada Border Services Agency ("CBSA")
received information that the appellants had multiple identities and were
fugitives from China. The information alleged that the appellants entered into
a multi-level marketing and pyramid scheme in which they defrauded
approximately 60,000 people of approximately $180,000,000 Canadian.

[4]

On March 7, 2014, the appellants were arrested by the CBSA under s. 55
of
Immigration and Refugee Protection Act
, S.C. 2001, c. 27, and
detained for an admissibility hearing on the grounds of misrepresentation. On
May 26, 2014, the appellants were referred by the CBSA to the Immigration Division
of the Immigration and Refugee Board for their admissibility hearing, the
purpose of which was to determine whether they could remain in Canada. Before
their admissibility hearing began, the appellants made refugee claims on June
23, 2014, which led, by operation of law, to the withdrawal of the Minister's
request for an admissibility hearing.

[5]

The appellants' first detention review occurred on July 23, 2014. Over
the next 14 months, the appellants were the subjects of three detention reviews
by the Immigration Division. On each occasion, the Immigration Division ordered
the appellants' continued detention, finding they were unlikely to appear and
had both the willingness and financial means to elude detection in Canada. The
appellants sought judicial review of all three of the Immigration Division's
decisions, and each decision, in turn, was quashed by the Federal Court.

[6]

On November 16, 2015, following the third successful judicial review
application, the Immigration Division ordered the appellants' release from detention,
subject to terms and conditions that the appellants had proposed. Those terms
and conditions amounted to virtual house arrest. In addition, the appellants
were required to pay for the costs of armed security guards to maintain a 24/7
presence outside of their home, one positioned at the front of the home and the
other at the rear. The cost of maintaining this security is borne by the
appellants and runs to approximately $130,000 per month.

[7]

On April 1, 29, and October 7, 2016 the appellants requested and
obtained modifications to their terms and conditions of release through
applications to the Immigration Division. Those modifications permitted them to
spend time outside in their backyard, and to leave their home, under security
escort, for outings related to groceries, banking, and church services.

[8]

On November 27, 2016, the appellants filed another application with the
Immigration Division to make further modifications to their terms and
conditions. This application was rejected on February 28, 2017. The appellants
did not seek judicial review of this decision. Instead, they filed the
application for
habeas corpus
which led to the judgment that is the
subject of this appeal.

II: The
application

[9]

In response to the appellants application, the respondents brought a
preliminary motion seeking a stay of the application on the basis that the
Superior Court lacked jurisdiction to hear it.

[10]

The
application judge dismissed the application. He gave detailed reasons for doing
so. He noted that the preliminary motion was arguably superfluous because it,
in essence, duplicated the question to be determined on the application itself.
The application judge identified the central issue to be determined as whether
the applicants current house arrest amounts to a detention or deprivation of their
liberty (reasons at para. 28). On that issue, the application judge concluded,
at para. 54:

When the applicants in the case before me were released
from custody on terms and conditions that included house arrest, they were no
longer detained for the purpose of a writ of
habeas corpus
.

III: Analysis

[11]

In
my view, the application judge erred in the above conclusion. He did so in two related
respects. One is that he equated detention for the purposes of
habeas
corpus
with incarceration in a custodial facility. The other is that he
appears to have restricted the operation of
habeas corpus
only to situations
where a person is formally detained rather than to broader situations where
liberty interests are infringed. Put more simply, the application judge wrongly
concluded that in order for there to be an infringement of liberty, to which
the writ of
habeas corpus

could apply, there had to be a
detention of the individual in a custodial facility. That view does not find
support in the case law nor does it accord with the fundamental constitutional
values that underlie the important remedy reflected in the principle of
habeas
corpus
. In order to explain my conclusion, a review of some of the
applicable case law is required.

[12]

Before
embarking on that review, however, I would point out that the scope of the writ
of
habeas corpus
constitutes a question of law. The standard of review
is, thus, one of correctness:
Housen v. Nikolaisen
, 2002 SCC 33,
[2002] 2 S.C.R. 235, at para. 8.

[13]

I
begin with the decision in
May v. Ferndale Institution
, 2005 SCC 82,
[2005] 3 S.C.R. 809. While
May
involved a challenge by federal inmates
to the reclassification of their security level within the federal penitentiary
system, and was thus factually distinct from the situation here, the importance
of the decision for current purposes lies in its review of the history and
principles surrounding
habeas corpus
.

[14]

The
majority in
May
reviewed the purpose behind the writ of
habeas
corpus
. Fish and LeBel JJ., at para. 21, quoted from a decision of Black
J. in the United States Supreme Court where he said that the purpose of
habeas
corpus
was the protection of individuals against erosion of their right
to be free from wrongful restraints upon their liberty. That protection was
stated in broad terms. It was not restricted to imprisonment but to any
restraint on a persons liberty. Such restraints can take many different forms.

[15]

The
decision in
May
went on to consider other cases that had touched on
the purpose of
habeas corpus
. It referred to the Supreme Court of
Canadas trilogy of decisions in
R. v. Miller
, [1985] 2 S.C.R. 613;
Cardinal
v. Director of Kent Institution
, [1985] 2 S.C.R. 643;
M
orin v.
National Special Handling Review Committee,
[1985] 2 S.C.R. 662. The
court pointed out, at para. 31, that in
Miller
, Le Dain J. had also
described
habeas corpus
as the traditional means of challenging
deprivations of liberty. Again, there was no suggestion that the remedy was
restricted to incarceration. The court then went on to consider the exceptions
to the general right of an individual to resort to
habeas corpus
to
challenge their detention, a subject to which I will return shortly.

[16]

Lastly,
the court reinforced the importance of the remedy of
habeas corpus
and
the care which courts ought to take in making any determination that it was not
available as a route to challenge restrictions on a persons liberty. Fish and
LeBel JJ. said, at para. 50:

Given the historical importance of
habeas corpus
in the protection of various liberty interests, jurisprudential developments
limiting
habeas corpus
jurisdiction should be carefully evaluated and
should not be allowed to expand unchecked. The exceptions to
habeas corpus
jurisdiction and the circumstances under which a superior court may decline
jurisdiction should be well defined and limited.

[17]

As
referenced in
May
, there are two exceptions to the availability of
habeas
corpus
.

One is where
a statute confers jurisdiction on a court of appeal to correct the errors of a
lower court and to release the affected person, if necessary. The other is
where a legislator has put in place a complete, comprehensive and expert
procedure for review of an administrative decision affecting a persons
liberty.

[18]

The
first exception has no application to the circumstances here. Rather, it is the
second exception upon which the respondents rely in this case and they do so
based on the assertion that the
Immigration and Refugee Protection Act
is such a complete, comprehensive and expert procedure.

[19]

The
application judge did not directly address whether this second exception applied,
presumably because he concluded that the appellants were not detained and
therefore
habeas corpus
jurisdiction did not lie with the court. He
did refer to this courts decision on that issue in
Chaudhary v. Canada
(Minister of Public Safety and Emergency Preparedness)
,
2015 ONCA
700, 127 O.R. (3d) 401, but he did so only for the purpose of distinguishing the
result in that case from the situation that was before him. He said, at para.
48:

In my view, the Court of Appeal in
Chaudhary
implicitly held that for
habeas corpus
purposes -- even in an
immigration context -- detention means jail or imprisonment.

In reaching that conclusion, the application judge
referred to paras. 38-40 of the reasons in
Chaudhary
.

[20]

I
do not agree with the conclusion that the application judge drew from those
three paragraphs. The first paragraph refers to the history of the prerogative
writ and its purpose. The second paragraph refers to the fact that the remedy
of
habeas corpus
is specifically guaranteed by s. 10(c) of the
Canadian
Charter of Rights and Freedoms
. The third paragraph quotes from Justice
Sharpes text on the subject. While the particular quotation taken by the
application judge does refer to the traditional form of review as being
directed to the gaoler or person having custody of the applicant, it also
notably identifies the issue to be determined as being the reason why a person
is exercising restraint over the applicant.

[21]

In
my view,
Chaudhary
does not support the narrow interpretation given by
the application judge to the remedy of
habeas corpus
. Indeed, the
rationale in
Chaudhary
, fairly read, would support the opposite view.

[22]

Admittedly,
the most common use of the writ of
habeas corpus
is where a person is being
held in custody and they have not, for whatever reason, been granted a hearing
respecting their qualification for release from custody. But there is nothing
in the history of the remedy that would justify limiting its reach solely to
situations where a person is being held in custody. The most common use should
neither eclipse nor exclude other possible uses.

[23]

The
core protection afforded by the writ of
habeas corpus
is the
protection of a persons liberty. That is, the protection of the right that
every individual has to go about their daily life without interference by the
state. Where the state acts to restrict the liberty of the individual, then the
individual must have the right to seek a review of the legitimacy of those
restrictions. As Rouleau J.A. said in
Chaudhary
, at para. 94:

Habeas corpus
issues as of right
once a detainee
proves a deprivation of liberty
and raises a legitimate ground upon which
to question the legality of that deprivation. (Emphasis added).

[24]

This
conclusion is also consistent with the proper approach to be taken to
habeas
corpus

applications. As pointed out in
Mission Institution v.
Khela
, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 30,
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.

[25]

It
is the first stage that we are concerned with in this case. Importantly, the
first stage is not described as requiring the applicant to be detained in
custody, or to be incarcerated, or to be held in a custodial facility, or any
other such language. The key to the first stage is simply, but crucially, a
deprivation of liberty. I note, on this point, that applicants must meet a low
threshold at the jurisdictional stage of a
habeas corpus
application:
Toure
v. Canada (Minister of Public Safety and Emergency Preparedness)
, 2018
ONCA 681 at para. 51.

[26]

In
reaching his conclusion, the application judge placed considerable reliance on
the decision in
R. v. Ethier
, 2009 CanLII 11429 (ON SC). In that case,
the accused challenged the house arrest condition of his release on criminal
charges through a
habeas corpus
application. The application judge
dismissed the application, principally on the basis that
habeas corpus
had no role to play since there was a process within the
Criminal Code
to challenge bail determinations, as confirmed in
R. v. Pearson
, [1992]
3 S.C.R. 665. However, the application judge in
Ethier
also said, at
para. 10:

The historical use of a Writ of
Habeas Corpus directing a jailer to deliver up the person in custody is not
applicable to the applicant following his release from detention.

[27]

I
note three things with respect to this statement. The first is that it was not
central to the issue that the application judge had to determine in that case
and thus could fairly be characterized as
obiter
. The second is that it
was not, in any event, an authority that was binding on the application judge
in the case at bar. The third, and most important, is that the statement is
wrong in law. The application judge in
Ethier
made the same error that
the application judge did here, that is, in restricting the scope of the writ
of
habeas corpus
to situations of incarceration, that is, detention in
its strictest form.

[28]

As
the decision in
May
makes clear,
habeas corpus
potentially applies
to any situation where the state restrains the liberty of the subject. A person
subject to house arrest is a person who has had their liberty restricted. They
are unable to do that which every other ordinary citizen is entitled to do. As
Sharpe J.A. aptly put it in his dissenting reasons in
R. v. Panday
,
2007 ONCA 598, 87 O.R. (3d) 1, at para. 63:

Bail and jail are different points
on a continuum between complete freedom and total deprivation of liberty.
Strict conditions amounting to house arrest significantly constrain liberty and
push bail towards the total deprivation of liberty end of the continuum.

See also
R. v. Downes
(2006), 79 O.R. (3d) 321
(C.A.), at para. 29.

[29]

A
further decision of importance to this issue is
R. v. Gamble
, [1988] 2
S.C.R. 595, where the writ of
habeas corpus
was used to challenge a
parole ineligibility provision. Parole, of course, takes effect after a person
is released from custody. In commenting on the flexibility that is important to
the remedy, especially in the context of
Charter
rights, Wilson J.
said, at para. 64:

There is no doubt that
considerable uncertainty has clouded the scope of review open to a court on an
application for
habeas corpus
and it is understandable that courts
have, in general, not bound themselves to limited categories or definitions of
jurisdictional review when the liberty of the subject was at stake. [Citations
omitted.]

[30]

The
respondents maintain that there is no scope for the application of
habeas
corpus
to this case because there is no deprivation of liberty involved. They
rely in particular on two decisions of the Alberta Court of Queens Bench in
support of their position. One is
Ewanchuk v. Canada (Attorney General)
,
2017 ABQB 237 and the other is
Lee v. Canada (Attorney General)
, 2018
ABQB 40. I note that it does not appear that the application judge was referred
to either of these decisions.

[31]

Ewanchuk
does not assist in this case. It involved an application for
habeas corpus
brought by an unrepresented inmate who had a variety of complaints about his
incarceration including rude staff, improper food preparation, the inmate
grievance procedure, and issues over medical services, telephones and other
amenities. Significantly, Mr. Ewanchuk did not seek his release as part of his
application. Rather he sought damages as compensation for his complaints. It is
not hard to understand why, in those circumstances, the judge concluded, at
para. 68, that Mr. Ewanchuk has not sought any relief that could result from a
habeas corpus
application. I do note that the judge made a comment,
in passing, that
habeas corpus
applies to persons who are detained. I
do not view the judges comment as being intended as an exhaustive statement on
the legal boundaries of the remedy. However, if that was the intention, then
the statement is unduly restrictive and does not accord with the law, as I have
explained above.

[32]

Lee
also does not assist. I note that it too appears to be an application that was
brought by an unrepresented inmate. Mr. Lee was incarcerated at the time of his
application, serving a life sentence for murder. While the material that he
filed was confusing, it appears that Mr. Lee was challenging the failure of the
Parole Board of Canada to consider his parole applications and also challenging
his life sentence. The decision in
Lee
does not address the issue that
falls to be determined here. I do note, in passing, that the judge correctly
observed, at para. 57, that
habeas corpus
is intended to test the
legality of a deprivation of liberty.

[33]

In
the end result, the issue before this court is a very narrow one. It is simply
whether
habeas corpus
can apply where a person seeks to challenge a
deprivation of liberty that arises from a situation other than being held in a
custodial facility, that is, other than detention in its strictest form. Contrary
to the conclusion of the application judge, I say that it can. Once some form
of deprivation of liberty is demonstrated, the first phase of the first stage
for the application of
habeas corpus
is met.  This conclusion is
consistent with the history of the writ of
habeas corpus
and its
fundamental purpose. As Justice Sharpe says in his text,
The Law of Habeas
Corpus
, 3rd ed. Oxford University Press, 2011 at p. 182:

Habeas corpus is a quick,
efficient remedy which may in principle be used at any stage of the legal
process, and there are a number of conceivable situations where a party who is
not actually in a prison cell may wish to seek the relief of habeas corpus.

[34]

Whether
the balance of the requirements for
habeas corpus
are met in this case
is a matter for the Superior Court of Justice to determine when the application
is fully argued.

IV:
Conclusion

[35]

The
appeal is allowed and the judgment below is set aside. The appellants sought to
have us grant the application and impose conditions of release. We decline to
do so. This court is not the proper forum for any such determination. Rather,
the application is remitted back to the Superior Court of Justice to proceed in
accordance with these reasons.

[36]

In
accordance with the agreement of the parties, there will be no order for costs
of the appeal nor of the original application.

Released: October 3, 2018

I.V.B. Nordheimer J.A.

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

I agree. Harvison Young J.A.


