


COURT OF APPEAL FOR ONTARIO

CITATION: Ogiamien v. Ontario (Community Safety and
    Correctional Services), 2017 ONCA 839

DATE: 20171102

DOCKET: C62415 & C63154

Sharpe, Rouleau and van Rensburg JJ.A.

BETWEEN

Jamil Osai Ogiamien

Applicant (Respondent)

and

Her Majesty the Queen in Right of Ontario as
    represented by the Ministry of Community Safety and Correctional Services, and
    Maplehurst Correctional Complex and the
Attorney General of Canada

Respondents in
    Application (
Appellant
)

AND BETWEEN

Jamil Osai Ogiamien

Applicant

and

Her Majesty the Queen in Right of Ontario as represented by
    the Ministry of Community Safety and Correctional Services, and Central North Correctional
    Centre

Respondents in Application

Sharon Stewart Guthrie, Nicholas Dodokin, Monmi Goswami,
    and Marcia Pritzker Schmitt, for the appellant

Jamil Osai Ogiamien, acting in person

Brian Whitehead, for the Ministry of Community Safety
    and Correctional Services and the Attorney General of Ontario

Barbara Jackman, as
amicus

curiae

Heard: September 19, 2017

On appeal from the judgments of Justice Kendra D. Coats
    of the Superior Court of Justice, dated June 1, 2016, with reasons reported at
    2016 ONSC 4126, and dated November 24, 2016.

Sharpe J.A.:

[1]

The
    Attorney General of Canada appeals two decisions involving the detention of the
    respondent, Jamil Ogiamien, an individual who had been detained on account of
    what the AG alleges is an outstanding deportation order. The first decision
    granted Ogiamiens request for
habeas corpus
on the ground that the
    detention was lengthy and of uncertain duration and that it could no longer be
    justified (C62415). The AG argues that the application judge made palpable and
    overriding errors of fact in granting
habeas corpus
and that she also
    erred by imposing conditions on Ogiamiens release and assuming jurisdiction to
    supervise any re-incarceration by immigration authorities. The second decision
    granted Ogiamiens request for release following his re-arrest by immigration
    officials (C63154).

[2]

For
    the following reasons, I conclude that the application judge did not err by
    ordering Ogiamiens release

on
habeas
    corpus.
However, I conclude that she did err by assuming jurisdiction to
    supervise any decision of the immigration authorities to re-incarcerate
    Ogiamien. As that condition should not have been imposed, the subsequent
    application to release Ogiamien should not have been entertained. However, as
    the AG did not, at the time, oppose the conditions and Ogiamiens subsequent
    application for judicial interim release was done on consent, I would not
    disturb the application judges decision to once again release Ogiamien.
    However, the clause in which the application judge re-asserted supervisory
    jurisdiction over re-incarceration by the immigration authorities should be
    struck from the order and there should be provisions in the order allowing for the
    amendment or vacating of the order by the ID.

BACKGROUND FACTS

[3]

While
    there is a lengthy and extensive history to this matter, for the purposes of
    this appeal, the essential facts may be briefly stated. Ogiamien came to the
    United States from Africa as a young boy with his uncle as an undocumented
    immigrant. In 2001, he fled from criminal proceedings in the United States and
    entered Canada without permission and under an assumed name. In February 2002,
    he was ordered deported because he had misrepresented his identity and because he
    had since incurred two criminal convictions in Canada. In July 2002, he was returned
    to the United States to face the outstanding criminal proceedings. A
    certificate of departure was issued upon his return to the United States.

[4]

Following
    further criminal proceedings and an unsuccessful refugee claim in the United
    States, Ogiamien was deported back to Canada in 2005. He was detained for
    identity purposes by the Canada Border Services Agency (CBSA) but then
    released on conditions in January 2006 by the Immigration Division of the
    Immigration and Refugee Board (the ID) on the ground that the time until the removal
    order would be executed was indeterminate. Following his release, he moved to
    Montréal, married, had a son, established a business, and established contact
    with his siblings in Canada from whom he had been separated as a child. He
    reported to the CBSA in accordance with the ID release order, albeit on a
    somewhat irregular basis. He faced a number of criminal charges in Canada between
    2009 and 2012. From 2006 until 2013, the CBSA took no steps to re-incarcerate
    him.

[5]

Ogiamien
    was detained on criminal charges in Ontario in April 2013. As a result, he did
    not report to the CBSA under the terms of his ID release order. A CBSA arrest
    warrant was issued in February 2014 on the grounds that he had failed to report
    and that he was unlikely to appear for removal from Canada. The officer who
    issued the warrant testified in the
habeas corpus
proceedings that if
    he had known that Ogiamien failed to report because of his criminal detention, he
    would not have issued the warrant. When Ogiamien was released on bail for the
    criminal charges in May 2014, he was arrested pursuant to the CBSA warrant and
    remained in detention. The immigration detention at issue on this appeal began
    at that time. The criminal charges that led to his initial incarceration in
    April 2013 were withdrawn on July 16, 2014. His immigration detention was
    reviewed on a monthly basis by the ID but Ogiamien remained detained until his
    release on
habeas corpus
in June 2016. At that time, Ogiamien had been
    detained for immigration reasons for approximately 25 months.

HABEAS CORPUS

PROCEEDINGS

[6]

Ogiamien
    commenced his
habeas corpus
application in August 2014. Initially, he sought
    access to legal resources and writing materials to allow him to challenge his
    detention in the Federal Court. The application evolved over the next several
    months. The application judge attempted to ascertain whether Ogiamien had an
    effective remedy in the Federal Court. In October 2015, following the
    appointment of
amicus
and the release of this courts decision in
Chaudhary
    v. Canada,
2015 ONCA 700, 127 O.R. (3d) 401, the
habeas corpus
application was amended to assert that Ogiamiens detention had become unlawful
    due to its length and uncertain duration. The application judge heard several
    witnesses regarding Ogiamiens detention and the availability of relief in the
    Federal Court.

[7]

Ogiamien
    commenced another
habeas corpus
application challenging the conditions
    of his detention. He was successful at first instance:
Ogiamien v. Ontario
,
    2016 ONSC 3080, 132 O.R. (3d) 176. However, this court allowed an appeal from
    that decision and set it aside:
Ogiamien v. Ontario (Community Safety and
    Correctional Services)
, 2017 ONCA 667.

DECISION OF THE
    APPLICATION JUDGE ON THE
HABEAS CORPUS
APPLICATION

[8]

The
    application judge found that Ogiamien had established reasonable and probable
    grounds that his detention was lengthy and of uncertain continued duration, and
    that the AG had failed to meet its onus of establishing that Ogiamiens continued
    detention was necessary to further the machinery of immigration control. She
    determined that Ogiamien was entitled to be released on
habeas corpus
.
    The AG did not argue that the application judge lacked authority to quash the
    detention order and impose certain terms and conditions on Ogiamiens release. Clause
    13 of the conditions specified that the application judge would retain
    jurisdiction to review any subsequent arrest or detention.

SUBSEQUENT PROCEEDINGS

[9]

About
    five months later, on October 5, 2016, Ogiamien was re-arrested by a CBSA
    officer because the officer believed Ogiamien had breached the conditions of
    his release by inaccurately completing an application for a Nigerian travel
    document. Ogiamiens sister withdrew as his surety and the AG consented to Ogiamien
    filing a new application for judicial interim release. However, at the hearing,
    the AG argued that absent a fresh
habeas corpus
application, there was
    no legal mechanism pursuant to which the application judge could consider
    Ogiamiens second application for release. The application judge rejected this
    argument, and held that the breaches alleged by the AG, including Ogiamiens
    completion of the Nigerian travel document, did not warrant his
    re-incarceration. She ordered his release on conditions similar to the first
    release order.

ISSUES

[10]

The following issues are
    raised on these appeals:

First
    Appeal
(C62415)

1.

Did the application judge err in finding that Ogiamien
    had met the threshold established in
Chaudhary
for assuming
habeas corpus
jurisdiction?

2.

Did the application judge err in finding that
    the detention was unlawful?

3.

Were there additional grounds upon which the
    application judge could have granted
habeas corpus
?

4.

Did the application judge err by quashing the ID
    detention order and imposing conditions to be supervised by her upon Ogiamiens
    release?

Second Appeal
(C63154)

5.

Did the application judge err by considering Ogiamiens
    request for release from immigration detention when he was re-arrested following
    his release on
habeas corpus
?

ANALYSIS

1.

Did the
    application judge err in finding that Ogiamien had met the threshold established
    in Chaudhary for assuming habeas corpus jurisdiction?

2.

Did the
    application judge err in finding that the detention was unlawful?

[11]

Habeas corpus
applications proceed in two stages that correspond to the first two issues. At
    the first stage, 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.

The availability of
habeas corpus
in relation to
    immigration detention

[12]

Chaudhary
deals
    with the availability of
habeas corpus
in the context of
the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27
    (the IRPA).
Chaudhary
recognizes that
habeas corpus
is the most significant legal remedy available to protect personal liberty. The
    common law and constitutional right to
habeas corpus
serves to ensure
    the protection of two other
Charter
rights, namely the s. 7 right not
    to be deprived of liberty except in accordance with the principles of
    fundamental justice and the s. 9 right not to be arbitrarily detained or
    imprisoned:
Chaudhary
,

at para. 39, citing
May v. Ferndale Institution
, 2005 SCC 82,
    [2005] 3 S.C.R. 809, at para. 22.

[13]

Chaudhary
considered this principle and the decision of this court in
Peiroo v. Canada
    (Minister of Employment and Immigration)
(1989), 69 O.R. (2d) 253, 60
    D.L.R. (4th) 574, leave to appeal refused, [1989] S.C.C.A. No. 322 in relation
    to lengthy immigration detentions.
Chaudhary
held, at para. 81, that a
    detention that is longer than is reasonably necessary to further the machinery
    of immigration control cannot be justified.
Chaudhary
accepted, at
    para. 3, the so-called 
Peiroo
exception, adopted by the Supreme
    Court in
Reza v. Canada
, [1994] 2
    S.C.R. 394, and
May
, at
    para. 40,
and held that
in immigration matters, where a
    complete, comprehensive and expert statutory scheme provides for a review that
    is at least as broad as and no less advantageous than
habeas corpus
,
habeas
    corpus
is precluded.
However, at para. 54,
Chaudhary
rejected
    the proposition that the
Peiroo
exception amounts to
a
    blanket exclusion of
habeas corpus
in immigration-related matters. Rather,
    this court held that where the issue is the legality of a continuing lengthy
    detention of uncertain duration,
habeas corpus

jurisdiction
    may be available as the process under the IRPA for the review of such detentions
    is not as broad and is less advantageous than
habeas corpus
.

[14]

Habeas corpus
cannot be used to mount a collateral attack on immigration decisions for which
    a comprehensive review process exists. However, where the applicant is subject
    to an immigration detention that has become illegal and violates the
    applicants s. 7 and 9
Charter
rights,
habeas corpus
will lie
    if the statutory scheme provides a less efficacious remedy.

[15]

In
Chaudhary,
this
    court noted three important differences between the IRPA process and
habeas
    corpus
that makes resort to
habeas corpus
in the Superior Court
    appropriate in the case of lengthy immigration detentions of uncertain
    duration.

[16]

First, on
habeas
    corpus
, the issue is whether, given its length and uncertain duration, the
    detention can be justified as furthering an immigration-related purpose. Under
    the IRPA scheme, the only issue for the ID is whether one of the five grounds
    for detention listed in s. 58 of the IRPA has been established. As
Chaudhary
puts it, at para. 84, 
the question that the court is to answer
    on a
habeas corpus
application is clearly more favourable to the [applicants]
    than the question to be answered on judicial review under
IRPA
.

[17]

Second, on
habeas corpus
, the onus is on the Minister to justify the
    detention despite its length and uncertain duration. On an IRPA review, the
    Minister need only show that one of the grounds listed in s. 58 is satisfied
    and bears no onus in relation to the length and uncertain duration of the
    detention. Furthermore, the Minister is entitled to rely on the reasons given
    at prior detention hearings, and the ID must identify clear and compelling
    reasons to depart from those prior decisions to detain. This means that the
    longer the process continues, the more difficult it becomes for the applicant
    to show that a ground under s. 58 does not exist:
Chaudhary
, at paras.
    87-89.

[18]

Third, while recourse
    from the ID process is available by way of judicial review to the Federal
    Court, judicial review is discretionary and the applicant must obtain leave.
Habeas corpus
issues as of right upon establishing a
    deprivation of liberty and grounds to question the legality of the detention.
Habeas corpus
in the provincial Superior Courts also
    provides a local forum to access a remedy that can be obtained more quickly
    than judicial review in the Federal Court.

The
Chaudhary
Threshold for
Habeas
    Corpus
Jurisdiction: Legitimate Grounds to Question the Legality of the
    Detention

[19]

The application judge
    applied the
Chaudhary
test to determine at the first stage that she
    should assume
habeas corpus
jurisdiction. She found that Ogiamien had
    raised a legitimate ground upon which to question the legality of his
    detention, namely, that as in
Chaudhary
, his immigration detention was
    lengthy and of uncertain duration.

[20]

Before this court, the
    AG repeated most of the arguments made before the application judge. The AG
    acknowledges that these arguments relate to factual findings made by the application
    judge and that a deferential standard of review applies to those findings.

[21]

The AG submits that
    the cause of the lengthy detention was Ogiamiens failure to discharge his
    obligation to establish his identity. The application judge made clear findings
    of fact rejecting that contention. I am not persuaded that the AG has advanced
    any argument that would justify this court in interfering with the application
    judges findings.

[22]

The reason for Ogiamiens
    immigration arrest and detention was that he had failed to report and that he
    was alleged to be a flight risk. As the application judge stated at para. 61:
    His detention had nothing to do with establishing his identity or country of
    origin. It is therefore not reasonable to count against him any lack of cooperation
    in establishing his identity. I see no reason to reverse that finding. Ogiamien
    was not detained to enable CBSA to determine his identity or country of origin.
    While he undoubtedly had an obligation to provide information as to his
    identity, I do not think that on the facts of this case, any failure on his
    part to fulfil that duty has a significant bearing on the assessment of the length
    of his detention.

[23]

The AG takes issue
    with the application judges reliance on the fact that subsequent to Ogiamiens
    release in January 2006 and prior to his arrest in 2014 CBSA appears to have
    done nothing to investigate Ogiamiens claimed identity and nationality. In my
    view, the application judge did not err in taking into account the entire
    history of the immigration proceedings and the conduct of the CBSA to assess
    the length of the detention. The CBSAs failure to conduct an effective
    investigation for over eight years, combined with the fact that Ogiamien was
    not arrested because of any problem in determining his identity or country of
    origin, supports the application judges inference that the length of the
    detention could not be explained away because of any lack of cooperation on Ogiamiens
    part.

[24]

Nor do I accept that
    the application judge made a palpable and overriding error of fact in finding
    that Ogiamien did cooperate to some extent with the CBSA regarding his
    identity. She carefully considered the evidence and did not gloss over some of Ogiamiens
    evasive and inaccurate responses to CBSA inquiries. The application judge noted
    and took into account the fact that Ogiamien had provided some incomplete and
    inaccurate information regarding his mother and his siblings and that some of
    the statements he made were evasive and difficult, if not impossible, to reconcile.
    She concluded, at para. 68, I accept that Mr. Ogiamien did not completely
    fulfill his responsibility to establish his identity. However, she rejected
    the contention that any lack of cooperation on his part should be considered to
    undermine his claim of a lengthy detention, concluding at para. 69 that [a]ny fault
    for the length of the detention cannot be laid solely on Mr. Ogiamien. He had
    cooperated to some extent, for example, by agreeing to be interviewed by both
    the Zimbabwean and Nigerian governments and by providing the CBSA with other
    information about his background. Moreover, as the application judge found, for
    the most part the CBSA had conducted its investigation during the period of Ogiamiens
    detention without asking for his assistance.

[25]

In my view, these
    findings were supported by the record and I see no reason to interfere with
    them on appeal.

[26]

Nor do I agree that
    the application judge erred by rejecting the contention that Ogiamiens failure
    to participate in the statutory ID reviews or to seek judicial review in the
    Federal Court should be held against him in calculating the length of his
    detention. He participated in the ID reviews for the first 18 months of his
    detention and there was nothing to suggest that either the ID or the Federal
    Court would have released him had he pursued those processes. That conclusion
    is consistent with the reasons in
Chaudhary
where the shortcomings of
    the ID process and judicial review, compared to
habeas corpus
, are
    fully explained. As the application judge noted, for most of the time Ogiamien
    had been self-represented. She also noted the difficulty he experienced in
    accessing the materials he would need to seek legal recourse in the Federal
    Court, which prompted him to seek
habeas corpus
at the outset
. I see no reason to disturb
    these findings, which are well supported by the record.

[27]

I would not disturb
    the application judges rejection of the AGs argument that Ogiamien could be
    faulted for failing to provide identity documents from Nigeria, alleged by the
    AG to be his country of origin. There was nothing to suggest that he possessed
    such documents.

[28]

I see no error in the
    application judges finding that Ogiamien had established that his detention
    was of uncertain duration. She concluded, at para. 78, that there is no way to
    reasonably estimate, with any degree of specificity, an end date to his
    immigration detention. There was no evidence in the record before her to
    suggest that identity documents required to effect Ogiamiens removal would be
    forthcoming in a timely manner from the Nigerian authorities.

[29]

I note as well that
    the application judge accepted Ogiamiens contention that as a certificate of
    departure had been issued upon his return to the United States in 2002, there
    is a genuine issue as to whether the deportation order remains valid.  That
    issue may have to be resolved by the Federal Court before he could be deported.

[30]

Accordingly, I conclude that the application judge made no
    error that would justify this court disturbing her finding that Ogiamien satisfied
    the first stage of the
habeas corpus
analysis by
    showing that there is a legitimate ground upon which to question the legality
    of the detention, namely, that the detention was of lengthy and uncertain
    duration.

The AGs Onus: Legal Justification of the
    Detention for Immigration-Related Purposes

[31]

At the second stage,
    the onus shifts to the AG to justify the detention. The AG submitted that the
    immigration purpose justifying the detention was that Ogiamien is a flight
    risk. The application judge rejected that argument, at para. 88, listing
    several factors, including the fact that he 
was on immigration
    release from 2006 to 2014 and never tried to leave Canada.

[32]

The application
    judges reliance on this fact is problematic. The fact that a person subject to
    a deportation order has not tried to leave the country does not support an
    inference that he or she is not a flight risk in the immigration context.

[33]

However, the
    application judges finding that Ogiamien was not a flight risk did not rest on
    that fact alone. He had established a life in Canada and he has a Canadian
    child. While his reporting record was far from perfect, for eight years he
    lived in the community on conditional release, and he never disappeared or went
    underground. The cause of his failure to report, which led to his arrest in
    2014, was that he was detained on criminal charges. He had presented a viable
    release plan which the application judge found, at para. 89, appropriately
    mitigated any concerns with respect to flight risk. The timing of Ogiamiens
    deportation remains uncertain, so the risk of flight was not increased on that
    account.

[34]

I do not agree with
    the AGs submission that the application judge erred by relying on the fact
    that Ogiamien has a son in Canada as a factor. The
Immigration and Refugee
    Protection Regulations
, SOR/2002-227, s 245 (g) list the
    existence of strong ties to a community in Canada as a factor to be considered
    on the issue of flight risk. Lack of ties to the community may militate in
    favour of detention (see
Canada (Minister of Citizenship &
    Immigration) v. B188
, 2011 FC 94 at para. 43), and it has
    been held in some cases that ties to the community support the inference that
    the individual would appear for removal: see
Canada (Minister of
    Citizenship & Immigration) v. B478
, 2011 FC 23 at para.
    18.


[35]

The AG concedes that
    the application judge was entitled to consider the fact that Ogiamien had been
    held in maximum security as a factor at the first stage of the
habeas
    corpus
application. However, the AG asserts that she erred by considering
    it again in determining whether the AG had met the onus of justifying the
    legality of the detention. Assuming, without deciding, that the conditions of
    confinement should not have been considered at the second stage, I do not think
    that it carried any significant weight in the application judges analysis of
    the legality of the detention.

[36]

When the record is
    considered as a whole, I see no legal error and I am satisfied that there is
    sufficient evidence to support the application judges finding that the AG
    failed to demonstrate that Ogiamiens continued detention was justified on the
    ground that he is a flight risk.

[37]

Accordingly, I am not
    persuaded that there are grounds to interfere with the application judges crucial
    findings that Ogiamiens detention was lengthy and of uncertain duration, and
    that the AG failed to satisfy the onus of demonstrating that the detention was
    reasonably necessary to further the machinery of immigration control.

3.

Were
    there additional grounds upon which the application judge could have granted
    habeas corpus?

[38]

Ogiamien raised
    several other grounds in support of his
habeas corpus
application. His
    principal additional argument was that the removal order was executed in July
    2002 when he was sent to the United States to face the outstanding criminal
    charges. He submitted that a certificate of departure was completed and the
    removal order is therefore no longer valid. He also submitted that his initial detention
    was invalid as the officer was not familiar with the facts and could not make
    an informed decision on the need to detain. He complained that the ID hearings
    reviewing his detention were unfair and that he should not be held in a maximum
    security facility rather than in a CBSA holding centre.

[39]

The application judge
    declined to consider these arguments as she concluded that Ogiamien should be
    released on the ground that his detention was lengthy and of uncertain duration
    and that it could no longer be justified.
Amicus
invites us to
    consider these alternate grounds. The AG responds with the submission that
habeas
    corpus
can only be granted in relation to an immigration detention on the
    specific ground identified in
Chaudhary
.

[40]

As I would affirm the
    application judges decision to order Ogiamiens release on
habeas corpus
,
    it is not necessary for me to consider these additional grounds. However, as
    the points were argued, and for the sake of completeness, I offer these
    comments.

[41]

I do not accept the
    AGs contention that
habeas corpus
will only be available in
    immigration matters in the case of lengthy detentions of uncertain duration and
    that the reach of
Chaudhary
is restricted to its precise facts. That
    submission ignores the more general principle upon which
Chaudhary
rests. The general rule is that the provincial Superior Courts retain residual
    jurisdiction to entertain
habeas corpus
applications in the case of
    wrongful imprisonment.
Habeas corpus
has never been a discretionary
    remedy but is issued as of right and as a matter of general principle,
habeas
    corpus
jurisdiction should not be declined merely because of the existence
    of an alternative remedy:
May
, at paras. 33-34. However, where there
    is an appeal or other more appropriate route to the court, collateral methods
    of attack are discouraged. This applies to immigration matters, where courts
    have a limited discretion to refuse to entertain applications for prerogative
    relief:
May
, at para. 39.
Habeas corpus
will be excluded,
    but only where Parliament has put in place a complete, comprehensive and
    expert statutory scheme which provides for a review at least as broad as that
    available by way of
habeas corpus
and no less advantageous:
May
,
    at para. 40. It follows 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.

[42]

On the other hand, I
    do not accept
amicus

submission that
    the additional grounds raised by Ogiamien fall within the scope of that
    principle. In my view, determining whether the removal order is still valid
    falls squarely within the jurisdiction of the Federal Court under the IRPA.
    Similarly, any issue as to the initial arrest was a matter for the ID, and the
    fairness of ID hearings was subject to the supervision of the Federal Court on
    judicial review under the IRPA. As I have already noted, the issue of the place
    of detention and conditions of imprisonment have already been dealt with in a
    separate
habeas corpus
application.

4.

Did
    the application judge err by quashing the ID detention order and by imposing
    conditions to be supervised by her upon Ogiamiens release?

[43]

The AG concedes that on
    the
habeas corpus
application, it accepted that the application judge had
    the power to quash the ID detention order and impose conditions on Ogiamiens
    release. Before this court, the AG shifts its position and submits that the
    application judge erred in taking these steps. Ordinarily, a party is not
    entitled to change its position in this manner. However, the points were fully
    argued by
amicus
and we were asked to settle the matter. The AG
    indicated in oral argument that it did not intend at this point to take any
    steps to detain Ogiamien under the removal order. In these circumstances, it is
    appropriate for us to deal with the legal issues raised.

Quashing the Immigration Detention Order

[44]

The AG argues that
    only the Federal Court could quash the detention order and that the application
    judge exceeded her jurisdiction in doing so. In my view, the issue of whether
    the application judge should have quashed the detention order in the context of
    this proceeding is purely academic and of no practical effect. Once Ogiamien
    was released on
habeas corpus
, the effect of the detention order was
    exhausted. He could not be re-arrested on the authority of the detention order,
    whether or not it was quashed. It is a longstanding principle in the law of
habeas
    corpus
that where the remedy is granted, a second arrest is precluded if
    it is substantially for the same cause as the first, such that it would raise
    for the court the same question with reference to the validity of the grounds
    of detention as the first:
Attorney-General for Hong Kong v. Kwok-a-Sing
(1873), L.R. 5 P.C. 179, at p. 202 (P.C.). Accordingly, I would not give effect
    to this ground of appeal.

Imposing Conditions of Release

[45]

The application
    judges order released Ogiamien on terms that she described as judicial
    interim release pending his removal from Canada. The conditions of release
    included a recognizance in the amount of $30,000 without deposit but with a
    named surety who was required to make a deposit of $1,000, as well as further conditions
    including a curfew and regular reporting. The order also provided that the
    Superior Court and the application judge would remain seized of the matter to
    deal with any requested changes or alleged breaches and would monitor any
    attempt to re-incarcerate Ogiamien on the basis of any alleged breach of the
    terms. As originally drafted, clause 13 provided that the conditions imposed
    shall not limit CBSAs arrest and detention powers under IRPA; however, if the
    intention is to re-incarcerate, the matter shall be brought back before this
    Court within 72 hours of the arrest or on the very next business day the court
    is open. When Ogiamien was re-arrested, and then again released by the
    application judge, clause 13 was amended to provide that it did in fact limit
    CBSAs statutory authority: This clause limits CBSAs arrest and detention
    powers as legislated under the IRPA when any factual matter encompassed by this
    Order forms the basis of the CBSA Officers decision to arrest and detain
    pursuant to section 55 of the IRPA.

[46]

The AG submits that on
habeas corpus
, the application judge could only order Ogiamiens
    release and that she had no authority to impose conditions.

[47]

I do not accept
    the general proposition advanced by the AG that a judge has never had authority
    to impose conditions when granting
habeas corpus
. I agree with the
    submission of
amicus
that such a rigid view would unduly impair the
    inherent powers of the Superior Court to ensure that its orders are effective.
    It would also be inconsistent with the need to ensure that the fundamental
    common law and constitutional right to
habeas corpus
remains a
    flexible and effective remedy.  As the Supreme Court of Canada observed in
Mission
    Institution v. Kehla,
at para. 54: 
This remedy is crucial
    to those whose residual liberty has been taken from them by the state, and this
    alone suffices to ensure that it is rarely subject to restrictions.

[48]

It would be
    inconsistent with the public interest if the judge on
habeas corpus
lacked the authority to impose appropriate conditions to protect public safety
    and respect for the law.
Moreover, there are cases where outright
    or unconditional release would be inappropriate but where incarceration is not
    justified. In such cases, applicants would be denied access to the remedy of
habeas corpus
because judges would
    inevitably feel compelled to maintain detention if their only other option was
    outright release. To deprive the Superior Court of jurisdiction to craft an
    appropriate order in such a case would represent an undue and unwarranted
    restriction on the remedy of
habeas corpus
.

[49]

The case law provides
    many examples where release on
habeas corpus
is
    conditional.
Amicus
refers to the prison transfer
    cases where the order on
habeas corpus
is not
    that the successful applicant be released outright but that he or she be
    transferred to a less restrictive form of incarceration: see
R.
    v. Miller
, [1985] 2 S.C.R. 613, 52 O.R. (2d) 585. Most directly on
    point is the historical use of
habeas corpus
as
    the principal means of securing bail pending trial in criminal proceedings: see
    Judith Farbey and R. J. Sharpe,
The Law of Habeas Corpus
,
3rd ed. (Oxford: Oxford
    University Press, 2011) at pp. 148, 153-156. Bail is a form of conditional
    release. Section 7 of the
Habeas Corpus Act
,
    R.S.O. 1990, c. H.1, a pre-Confederation statute that continues to apply in
    Ontario, confirms the use of a
habeas corpus

to obtain bail. Bail has also been granted on
habeas corpus
in relation to both immigration and
    extradition detentions:
Ex parte Augustin
,

[1976]
    C.A. 478, 31 C.C.C. (2d) 160 (Que. C.A.);
Re Lawrence and the
    United States and The Queen
(1980), 54 C.C.C. (2d) 551 (Man. C.A.).
    Post-
Chaudhary
decisions of the Superior Court
    have imposed conditions on release from immigration detention on
habeas corpus
. As noted by Nordheimer J. in
Ali v. Canada (Attorney General)
, 2017 ONSC 2660, at para.
    40: If this court is ordering a release, then it is this court that should set
    the appropriate terms and conditions. See also
Scotland v.
    Canada (AG)
, 2017 ONSC 4850, at paras. 78-79.

[50]

The strict and rigid
    proposition advanced by the AG cannot withstand scrutiny in the face of these
    authorities and the principle that
habeas corpus

must remain a flexible and effective remedy.

[51]

On the other hand, I
    agree with the submission that the application judge erred by assuming the
    power in clause 13 to review any attempt by the CBSA to arrest or detain Ogiamien
     for breach of conditions or pursuant to its statutory powers under the IRPA.

[52]

First, as I have
    already noted, on the basis of the law of
habeas corpus
, the CBSA
    could not re-arrest or re-incarcerate Ogiamien following his release on the
    same grounds the application judge had found were wanting in law. It was therefore
    unnecessary for the application judge to retain jurisdiction to ensure that Ogiamien
    did not simply enter a revolving door that would immediately return him to the
    same lengthy and indeterminate detention from which he had just emerged.

[53]

Second, a judge
    ordering judicial interim release does not ordinarily retain jurisdiction to
    supervise the enforcement of the conditions imposed. In my view, the
    application judge should not have retained jurisdiction to deal with any breach
    of conditions.

[54]

Third, and most
    important, unless and until the Federal Court determines that Ogiamien is no
    longer subject to a valid deportation order, he remains subject to the IRPA
    scheme.
Chaudhary
makes it clear that his release on
habeas corpus
does not alter that fact. The IRPA provides in s. 55 for issuance of warrants
    and the power to arrest and detain foreign nationals where there are reasonable
    grounds to believe that the foreign national is a danger to the public or is
    unlikely to appear for examination, for an admissibility hearing, for removal
    from Canada or at a proceeding that could lead to the making of a removal
    order. Section 56(1) gives an officer the power to release such an individual
    on any conditions, including the payment of a deposit or the posting of a
    guarantee for compliance with the conditions, that the officer considers
    necessary. If an officer does not grant release on conditions, s. 57 provides
    for review of any detention by the ID within 48 hours, a second review within 7
    days and further reviews every 30 days thereafter. Section 58(3) provides for
    release on conditions. Releasing Ogiamien on
habeas corpus
did not
    exempt him from that scheme. In my respectful view, in the face of this
    statutory scheme, the application judge should not have assumed the authority
    that she did in clause 13 to require the CBSA to bring the matter back before
    her in the event Ogiamien were rearrested pursuant to the IRPA.

[55]

It is common ground
    that the order for judicial interim release effectively ended when Ogiamien was
    re-arrested and it is therefore unnecessary to deal with clause 13 in the first
    appeal (C62415). However, as that clause was varied and attached to the
    subsequent order for judicial interim release, I would allow the second appeal
    (C63154), with respect to those parts of the order by which the application
    judge retained jurisdiction.

[56]

When
    a Superior Court judge decides on
habeas corpus
to release a person subject to a removal order on conditions, the
    judge should be mindful that after release, the person will remain subject to
    the IRPA scheme until the removal order is executed or set aside. The judge
    obviously cannot make an order in the name of the ID but the judge should
    recognize that the IDs jurisdiction will be invoked if the person is
    re-arrested. Any conditions the judge imposes should take that into account and
    the judge should endeavor to minimize the potential for jurisdictional
    confusion and conflict.

[57]

This
    can be achieved in two ways.

[58]

First,
    the judge should be mindful of the conditions typically imposed by the ID.
    These appear to be very similar to conditions typically imposed on judicial
    interim release. The IRPA and regulations confer wide discretion upon the ID
    and CBSA officers to impose conditions on release. Section 58(3) of the IRPA
    provides that the ID may 
impose any conditions that it considers
    necessary, including the payment of a deposit or the posting of a guarantee for
    compliance with the conditions when making a release order. There appear to be
    no prescribed standard terms but the Immigration, Refugees and Citizenship
    Canada,
ENF 20 Detention
(Operational Manual, December 22, 2015), at pp.
    17-18, gives the following examples of conditions that may be imposed:

·

report, when requested to do so by an officer, to any place, on
    any date and at any time for the purposes of arranging for their departure and
    removal from Canada;

·

report to an officer on the date and time stipulated at the CBSA
    office nearest to their residence and thereafter (indicate frequency, e.g.,
    every Tuesday);

·

report to the Immigration Division of the IRB at the date and
    time stipulated, as required by the Immigration Division for their
    admissibility hearing and for any continuation thereof;

·

report for any appointments ordered by an officer, to the place,
    on the date and at the time stipulated;

·

inform the CBSA in writing without delay of any criminal charges
    or convictions;

·

if a person decides to leave Canada, they must notify an officer
    of their departure arrangements, and must have their departure verified by an
    officer.

[59]

Second, to minimize
    jurisdictional conflict and confusion, the order imposing conditions should
    provide that the conditions may be varied either by order of the court or of
    the ID. If the court is asked to vary the conditions, the court should
    ordinarily decline to exercise its jurisdiction and defer to the ID.

[60]

This approach allows
    the Superior Court to deal with matters as they stand at the time the order
    releasing the person subject to a removal order has been made, but also allows
    the ID to deal with subsequent developments under the regime of the IRPA.

[61]

Accordingly, in
    addition to striking clause 13, I would also strike clause 12 and replace it
    with a term providing the conditions may be varied or vacated if circumstances
    change by order of either the Superior Court or ID and amend clauses 3, 5, and
    11 to provide that those conditions may also be varied or vacated if
    circumstances change by either the court or the ID.

5.

Did
    the application judge err by considering Ogiamiens request for release from
    immigration detention when he was re-arrested following his release on habeas
    corpus?

[62]

As I have noted, the application
    judge should not have assumed jurisdiction over the supervision of the
    conditions of Ogiamiens release in clause 13. She therefore should not have
    considered Ogiamiens second application for release. However, the AG consented
    to Ogiamien bringing that fresh application. The AG does not seek to
    re-incarcerate Ogiamien at this point. As I have already indicated, clause 13 is
    to be struck from the conditions of release. Accordingly, it is neither
    appropriate nor necessary for me to consider this ground of appeal further.

DISPOSITION

[63]

Accordingly, I would
    not disturb the application judges order of release on
habeas corpus
.
I would accordingly dismiss the appeal
    in C62415 but allow the appeal in C63154 in part as indicated in para. 61.

[64]

An order has been made
    for the payment of the fees of
amicus
and, in my view, this is not a
    case in which any other order for costs should be made.

Released: November 2, 2017

Robert J. Sharpe
    J.A.

I agree Paul Rouleau
    J.A.

I agree K. van Rensburg
    J.A.


