Earlier this month, the Supreme Court delivered its decision in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29, which dealt with the availability of habeas corpus to control the constitutionality of a person’s continued detention by Canadian immigration authorities. More precisely the issue was whether the detention review scheme set up by the Immigration and Refugee Protection Act (IRPA) and regulations made under it was ” is as broad and advantageous ”  to the detainee than a habeas corpus application. By a 6-1 majority, the Court held that although the IRPA (concededly) provide an adequate review scheme for challenges based on immigration law issues, it did not do so for those aimed at the unconstitutionality of the “length, conditions and uncertain duration” of immigration detention.
Justice Karakatsanis writes for the majority (the Chief Justice and Justices Moldaver, Gascon, Côté, and Brown). She begins by pointing out that habeas corpus, an ancient common law recourse, has long been the law’s principal remedy for controlling the legality of a person’s detention. Despite its antiquity, “[h]abeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape”.  Access to it is a constitutional right, and cannot be denied unless legislation has put in place a full alternative meeting the “as broad advantageous” test. The system of appeal in criminal cases is one example of such an alternative; the system of judicial review of the merits of immigration decisions leading to detention is another. Indeed, the Court had, in the past, made an obiter suggestion that review procedures under the IRPA replaced habeas corpus, but Justice Karakatsanis finds that they were “never intended to preclude habeas corpus review of every detention arising in the immigration context”. 
The question is whether the IRPA procedures are sufficient with respect to the particular type of claim raised by an applicant. In this case, the applicant “challenged the length, uncertain duration and conditions of his detention”.  The regulations made under the IRPA instruct the Immigration Division of the Immigration and Refugee Board, which is required to regularly review all immigration detentions, to take the length and expected duration of detention into account but, Justice Karakatsanis finds, they still fall short of providing a substitute habeas corpus review. For one thing, they place the onus on the detainee to justify release, rather than on the government to justify detention. Moreover, “[i]n practice, the periodic reviews mandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances”.  Because judicial review in the Federal Court must focus on an individual decision on a periodic review, it may fail to address the previous decisions that form the basis of the one under review. Besides, it appears that judicial review never results in an order of release but, at most, in the matter being remitted to the Immigration Division for a re-determination. Finally, habeas corpus proceedings are likely to be much more prompt than a judicial review. Meanwhile, detention conditions are simply not among the grounds the Immigration Division is required to consider when deciding whether to continue detaining a person. This too is in contrast to habeas corpus review, where the court can look into all aspects of an ongoing detention.
Justice Abella dissents. In her view, the liberty interests of immigration detainees can and must be protected by a proper interpretation and application of the IRPA and its regulations. She is concerned that the majority’s decision will, in practice nullify the detention review scheme set up by the IRPA, as detainees turn to habeas corpus instead. “It is far more consistent with the purposes of the scheme”, Justice Abella insists, “to breathe the fullest possible remedial life into the” IRPA.  Jutice Abella emphasizes the obligation of administrative decision-makers under the IRPA “to exercise their discretion in accordance with the Charter“,  as well as the need to interpret the IRPA in way that maximizes constitutional protections. As a result, she rejects what she sees as the applicant’s “attempt to ignore the body explicitly and exclusively tasked with carrying out the purposes of IRPA by wrapping his immigration detention with a Charter ribbon”. 
Specifically, Justice Abella disagrees with the majority, as well as with a number of lower-court decisions on issues such as where the onus lies in proceedings before the Immigration Division, whether these proceedings can rely on prior decisions as the basis of the case for ongoing detention, and the possibility of review of detention conditions. She argues for “[i]mporting Charter principles into the exercise of administrative discretion under IRPA“,  which translates into “an obligation to weigh the purposes served by immigration detention against the detained individual’s … Charter rights”.  Conditions of detention, as well as its length, can be part of this analysis, by means of reading them into a consideration of “alternatives to detention”, which is required by the regulations. Provided that the administrative decision-makers act consistently with the relevant Charter values, the IRPA scheme will be as effective in securing liberty as habeas corpus review.
The majority is right. Adopting Justice Abella’s approach would have requires the courts to ignore the way in which the IRPA scheme has been applied by the administrative decision-makers, to expect these decision-makers to suddenly discover a commitment to the Charter of which they have so far shown little evidence, and to also to re-write the applicable regulations. Her approach rests, moreover, on the fiction that administrative decision-makers ― in this case, members of the Immigration Division, which she describes as “an independent, quasi-judicial administrative tribunal with specialized knowledge of immigration matters” ― are no different from superior court judges when it comes to upholding the constitution. Yet they are nothing more than civil servants, neither independent in any real way nor required to be legally qualified, and the conceit that they understand and can uphold the constitution as well as judges is nothing more than another instance of post-truth jurisprudence in Canadian administrative law. Of course, this is not true of the judges of the Federal Court, who may review the Immigration Division’s detention decisions, but since this review is supposed to be deferential, it is not clear how much protection it can really offer.
Despite Justice Abella’s protestations to the contrary, it is difficult to avoid the impression that, for her, the supposed integrity of an administrative scheme is more important than “assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty”.  She seems more preoccupied by likelihood of detainees bypassing the Immigration Division than by the established practice of the Immigration Division failing to give effect to their constitutional rights. Justice Abella’s lack of attention to the evidence of actual practice discussed by the majority and cheerful insistence that everything can be made right by high-minded exhortation are of a piece with her majority opinion in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61,  3 SCR 909, which I discussed here, and they are no more justified now than they were then. As for Justice Abella’s suggestion that the applicable regulations can be effectively re-written in the name of upholding Charter values, it is certainly consistent with her professed rejection of the Rule of Law. But the “rule of justice”, which Justice Abella would like to see prevail, is unlikely to come about from the empowering of administrative decision-makers at the expense of independent courts.
Chhina nicely illustrates a point that this blog has taken up quite a few times. As I put it here,
there is much more to the administrative state economic than labour boards or arbitrators … People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law.
Or, as co-blogger Mark Mancini wrote more recently, “in the 21st century, administrative agencies are armed with the most repressive powers of the state”. The administrative state is the state of prisons, of border control, of professional regulators determined to silence their members if not to impose official ideology on them. Justice Abella, in her naïve faith in the administrative state, is oblivious to its frequently oppressive reality.
Here is a question, by the way: what about Justice Karakatsanis? Nobody would have suspected her, I believe, of being a secret anti-administrativist. She joined Justice Abella’s Kanthasamy opinion, for instance and, more strikingly, was the author of the majority opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47,  2 SCR 293, for whose insistence that administrative decision-makers are experts, no matter their real qualifications, I had originally come up with the “post-truth jurisprudence” label . But there is another tendency in Justice Karakatsanis’ opinions, notably her dissents in R v Fearon, 2014 SCC 77,  3 SCR 621 and R v Saeed, 2016 SCC 24,  1 SCR 518: a distrust of Supreme Court reminders to law enforcement about the importance of constitutional rights as means to secure these rights effectively. In Chhina, this distrust seems to have proved sufficiently strong to overcome Justice Karakatsanis’ normal faith in the administrative state.
Be that as it may, Justice Karakatsanis and a strong majority of the Supreme Court uphold the traditional remedy of habeas corpus, and of the independent courts as the dispensers of this remedy, as opposed to the second-rate ersatz purveyed by the administrative state. Justice Karakatsanis probably does not think of it in this way, but her decision also vindicates the thinking of that great bogeyman of progressive pro-administrativsts, A.V. Dicey. Contrasting the position of “countries possessing a constitution formed by a deliberate act of legislation” with that of the United Kingdom, Dicey wrote that in the former
you may say with truth that the rights of individuals to personal liberty flow from or are secured by the constitution. In England the right to individual liberty is part of the constitution, because it is secured by the decisions of the Courts, extended or confirmed as they are by the Habeas Corpus Acts. (117)
He emphasized the importance of “that inseparable connection between the means of enforcing a right and the right to be enforced” (118) ― well established, he argued, in the United Kingdom, but often neglected by “foreign constitutionalists”. For this reasons, although “[t]he Habeas Corpus Acts dedared no principle and define no rights … they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”. (118) Such articles are only valuable if they are joined with “skill in providing means for giving legal security to the rights declared”. (118) Dicey would, I would like to think, be satisfied with the skill shown by the Supreme Court here.
NOTE: My friend Pierre Gemson (along with our fellow McGillian Ewa Krajewska) represented the Canadian Civil Liberties Association, which intervened in the case. Well done!