



COURT OF APPEAL FOR ONTARIO

CITATION: Wang v. Canada (Public Safety and Emergency
    Preparedness), 2018 ONCA 605

DATE: 20180629

DOCKET: C63889

Hourigan, Benotto and Fairburn JJ.A.

BETWEEN

Zhenhua Wang and Chunxiang Yan

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

Rocco Galati, for the appellants

James Todd and Nicholas Dodokin, for the respondents

Andrea
Bolieiro
, for the Attorney
    General for Ontario

Heard: April 30, 2018

On appeal from the judgment of Justice J.F. Diamond of
    the Superior Court of Justice dated May 15, 2017, sitting without a jury,
    denying the applicants request for a writ of
habeas corpus
.

REASONS FOR DECISION

[1]

This matter arises from an appeal against an order dismissing an
    application for
habeas corpus
in
    an immigration detention case
:
Wang v. Canada
, 2017 ONSC 2841.
    At the outset of the appeal on April 30, 2018, counsel were asked for submissions
    on whether the court has jurisdiction to hear the appeal. Counsel were
    specifically asked to address the potential implications of s. 8(1) of the
Habeas
    Corpus Act
, R.S.O. 1990, c H.1 (
HCA
). That provision reads:

Appeal from remand to custody

8. (1) Where a person confined or restrained of his
    or her liberty is brought before a judge upon a writ of
habeas corpus

ad
    subjiciendum
and is remanded into custody upon the original order or
    warrant of commitment or by virtue of any warrant, order or rule of such judge,
    such person may appeal from the decision or judgment of the judge to the
    Divisional Court, and thereupon the writ of
habeas corpus

ad
    subjiciendum
, the return thereto, and the affidavits, depositions,
    evidence, conviction and other proceedings shall be certified by the proper
    officer to the Divisional Court. R.S.O. 1990, c. H.1, s. 8 (1).

[2]

After brief oral submissions were provided, the court directed that
    counsel provide written submissions on the jurisdictional issue. In light of
    the appellants position that s. 8(1) of the
HCA
cannot apply with respect to an application in the
    nature of
habeas corpus
brought under ss. 10(c) and 24(1) of the
Canadian Charter of Rights
    and Freedoms
, the Attorney General for Ontario was also invited to make
    written submissions on the jurisdictional point.

[3]

Those submissions have now been received and considered. For the
    following reasons, we find that the court has jurisdiction to hear the appeal.

[4]

The appellants are citizens of China and the Dominican Republic. They
    originally entered Canada on temporary resident visas in 2012. Pursuant to s.
    55 of the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27,
    the appellants were arrested by the Canadian Border Services Agency in 2014 and
    held in immigration detention.

[5]

There have been a number of detention reviews by the Immigration
    Division of the Immigration and Refugee Board followed by successful applications
    for judicial review brought in Federal Court. In November 2015, the Immigration
    Division ordered the appellants released from custodial detention and placed
    under house arrest. Since then, they have brought two successful applications before
    the Immigration Division to vary the terms and conditions of the order
    governing their house arrest. A third application to the Immigration Division
    to alter the terms of their release order was dismissed on February 2017.

[6]

The appellants did not seek to have that decision judicially reviewed by
    the Federal Court. Instead, they pursued an application for a writ of
habeas
    corpus
in the Superior Court of Justice. The respondent then brought a
    motion pursuant to s. 106 of the
Courts of Justice Act
to have the
    appellants application stayed for jurisdictional reasons on the basis that the
    appellants could not meet a precondition to invoking a writ of
habeas
    corpus.
Specifically, the respondent
    claimed that the appellants could not
establish that they had been subjected
    to a deprivation of liberty.

[7]

As noted in
Khela v. Mission Institution
, 2014 SCC 24, at para.
    30, a deprivation of liberty is a first step in determining whether
habeas
    corpus
can issue: To be successful, an application for
habeas corpus
must satisfy the following criteria.
First,
    the applicant must establish that he or she has been deprived of liberty
.

    Once a court has assessed the nature of the control or the restriction of
    rights and determined that the circumstances constitute a significant
    curtailment of personal freedom, a writ of
habeas corpus
is available
    to question the legality of that control or restriction: Judith Farbey and R.J.
    Sharpe,
The Law of Habeas Corpus,
3
rd
ed (Toronto: Oxford
    University Press, 2011), at pp. 194-195. In other words,
habeas corpus
is
    available to question the legality of deprivations of liberty. Where there is
    no deprivation of liberty, there is no need for
habeas corpus.

[8]

Diamond J. determined that the basis upon which the motion to stay the
    application directly overlapped with the first legal hurdle on the application
    for
habeas corpus
. Both required
    the court to answer whether the appellants were subjected to a deprivation of
    liberty.
Accordingly, he concluded that the respondents motion for
    a stay of proceedings was arguably superfluous.

[9]

In the end, Diamond J. did not decide the motion to stay. Instead, he dismissed
    the application for a writ of
habeas corpus
because he determined that
    there was no deprivation of liberty. Given his decision that there had been no
    restraint on the appellants liberty, he was not required to go on and consider
    the actual test for
habeas corpus
.

[10]

Although
    they take different positions, the parties and Attorney General for Ontario agree
    that this court has jurisdiction to hear the appeal from the Superior Court
    order dismissing the application for
habeas corpus
. We agree.

[11]

Section
    8(1) of the
HCA
 directing appeals to the Divisional Court  only
    applies where the circumstances set out in that provision are present. For s.
    8(1) to apply, the person appealing must have been confined or restrained of
    his or her liberty and been brought before a judge upon a writ of
habeas
    corpus

ad subjiciendum
 and been remanded into custody upon the
    original order or warrant of commitment or by virtue of any warrant, order or
    rule of such judge. Only where these statutory criteria are met, will the appellant
    be required to appeal the decision or judgment of the judge to the Divisional
    Court. In all other situations, the appeal will lie to this court pursuant to
    s. 6(1)(b) of the
CJA
, as a final order of a judge of the Superior
    Court of Justice. The question, therefore, is whether the criteria under s.
    8(1) of the
HCA
are met in this case.

[12]

The
    answer to that question does not depend upon whether the decision being
    appealed from is correct or not. The answer is driven by the nature of the
    order being appealed from.

[13]

Here,
    the application was dismissed on the basis that there was no deprivation of
    liberty. Whether that decision is right or wrong will be the subject of review
    on appeal. The question for purposes of jurisdiction, though, is whether that
    finding (no deprivation of liberty) triggers the application of s. 8(1). We
    conclude that it does not.

[14]

Because
    the nature of Diamond J.s dismissal order rests on his finding that the
    appellants were not deprived of liberty, the first prong of s. 8(1) is not met.
    The appellants are not confined or restrained of their liberty. Accordingly,
    there is no need to assess the remaining criteria in s. 8(1). The order
    appealed falls outside the scope of s. 8(1) of the
HCA.
Consequently, an
appeal lies to this
    court under s. 6(1)(b) of the
CJA
.

[15]

Although
    the appellants raise additional arguments in favour of jurisdiction, including a
    constitutional attack on s. 8 of the
HCA
, there is no need to address
    these issues.  However, our silence on those issues should not be construed as
    an agreement with the positions advanced, particularly in light of the absence
    of any Notice of Constitutional Question as required by s. 109 of the
CJA
.

[16]

The
    parties should proceed to obtain the earliest date available for the hearing of
    the appeal.

C.W. Hourigan
    J.A.

M.L. Benotto
    J.A.

Fairburn J.A.


