Habeas corpus arguments strengthened

Author/ ​Anita Balakrishnan Publication/ Law Times

Judges at the Court of Appeal for Ontario said they will allow an appeal on whether immigrants facing “virtual house arrest” meet the requirements for habeas corpus.Rocco Galati, a Toronto-based constitutional lawyer and sole practitioner who represented the appellants, said the case is an example of law evolving for Canada’s immigration system, which he says he views as a “gulag”-like form of imprisonment. “I view the immigration detention system as Canada’s gulag,” Galati says.“[This decision] helps in the sense that they can more easily access habeas corpus and argue for release.” The case involved Zhenhua Wang and Chunxiang Yan, who are citizens of China and the Dominican Republic but have been in Canada on and off since 2012, according to the decision, Wang v. Canada, 2018 ONCA 798, written by Justice Ian Nordheimer with justices C. William Hourigan and Alison Harvison Young concurring. Central to the case were the restrictions placed on Wang and Yan in the course of their detention by immigration officials. “The core protection afforded by the writ of habeas corpus is the protection of a person’s 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,” Nordheimer wrote in the decision, released on Oct. 3. Justice Canada’s Immigration Law Division was represented by James Todd and Nicholas Dodokin. Wang and Yan face multiple allegations, including claims that they have multiple identities, were fugitives from China and entered into a multi-level marketing and pyramid scheme in which they defrauded approximately 60,000 people of approximately $180 million. These allegations led to their arrest by the Canada Border Services Agency in March 2014, Nordheimer wrote. In three different detention reviews in the 14 months following July 2014, 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 decision said, adding that prior applications for judicial review were quashed in Federal Court. Ultimately, in 2015, Wang and Yan were successful in getting a release from detention, albeit under terms and conditions that amounted to “virtual house arrest,” including paying $130,000 per month for round-the-clock security guards and security escort for tasks such as going to the backyard, to get groceries, going to the bank and going to church, Nordheimer wrote. Galati says his clients have never been charged or convicted of anything either in Canada or China and are victims of the fraud scheme themselves. He notes that Wang and Yan are refugee claimants and says he doesn’t know whether the justice department plans to appeal. When Wang and Yan tried again to modify the terms and conditions of their release in 2016, they were rejected, prompting the application for habeas corpus. Initially, the habeas corpus request — which the Ministry of Justice defines as “a means to ensure that the defendant in an action was brought physically before the Court . . . transformed into a vehicle for reviewing the justification for a person’s imprisonment” — was rejected by the Ontario Superior Court of Justice in 2017. “There has been no deprivation of liberty. Rather, the applicants’ liberty has been incrementally increasing since their release from custody. The fact that the applicants now complain that their current terms and conditions are too onerous does not satisfy the criteria that they are detained,” wrote Justice James Diamond in Wang et al. v. Canada (Attorney General), 2017 ONSC 2841. But the Court of Appeal’s decision overturned that finding, referring the matter back to the Superior Court of Justice. “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,” Nordheimer wrote in the decision.Joel Sandaluk, a Toronto immigration lawyer at Mamann Sandaluk & Kingwell LLP, says the Ontario courts seem to be recognizing the need for greater oversight of immigration proceedings.“What’s happened recently is that the immigration division and Immigration and Refugee Board has been criticized a lot, especially in the Toronto region, for keeping people in custody far longer than they should be,” Sandaluk says. Gordon Campbell, senior barrister and managing lawyer of Aubry Campbell MacLean in Alexandria, Ont., said in an email statement that the decision empowers lawyers to proactively invoke habeas corpus “where repeated reviews have unreasonably led to no improvements in restrictions.”

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