Canada: Court Of Appeal Summaries (August 13 – 17)

Good afternoon,

There were only two substantive civil decisions from the Court of Appeal this week.

In Toure v Canada (Public Safety & Emergency Preparedness), the Court of Appeal dismissed an appeal and allowed a cross-appeal from a decision that denied the appellant/applicant – who was a detainee at the Central East Correctional Centre pending his removal from Canada – his request to be released from immigration detention pursuant to the Habeas Corpus Act, but found the government to have breached the applicant's s. 12 Charter rights. As relief for this breach, the applicant was ordered transferred to the Toronto Immigration Holding Centre. The Court of Appeal found that the application judge made no errors either in law or in fact with respect to the issues around Habeas Corpus, but had made erroneous findings of fact with respect to the s.12 Charter analysis.

In Holterman v Fish, the Court of Appeal dismissed a leave application to appeal a costs award from the end of trial, on the basis that the appellants were attempting to rely evidence that they were unable to introduce at trial. To permit otherwise would be to allow a collateral attack on the previous decision.

Have a great weekend.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416 593 2953
http://www.blaney.com/lawyers/john-polyzogopoulos

Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681

Keywords: Immigration Detention, Habeas Corpus, Uncertain Duration, Superior Court Jurisdiction, Reasonable Time, Indefinite Detention, Cruel and Unusual Punishment, Gross Disproportionality, Habeas Corpus Act, RSO 1990, c H 1, Charter of Rights and Freedoms, ss. 12 and 24, Immigration and Refugee Protection Act, SC 2001, c 27, Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, Brown v. Canada (Public Safety), 2018 ONCA 14, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, R. v. Smith, [1987] 1 SCR 1045, R. v. Morrissey, 2000 SCC 39

Holterman v. Fish,2018 ONCA 683

Keywords: Costs, Fresh Evidence, Collateral Attack

For short civil decisions, click here.

Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681

[Doherty, LaForme and Hourigan JJ.A.]

Counsel:

J. Will and J.M. Vecina, for the appellant

J. Michaely, C. Crighton and S. Gans, for the respondents

M. Dunn and A. Bolieiro, for the intervener, Attorney General of Ontario

Keywords: Immigration Detention, Habeas Corpus, Uncertain Duration, Superior Court Jurisdiction, Reasonable Time, Indefinite Detention, Cruel and Unusual Punishment, Gross Disproportionality, Habeas Corpus Act, RSO 1990, c H 1, Charter of Rights and Freedoms, ss. 12 and 24, Immigration and Refugee Protection Act, SC 2001, c 27, Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, Brown v. Canada (Public Safety), 2018 ONCA 14, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, R. v. Smith, [1987] 1 SCR 1045, R. v. Morrissey, 2000 SCC 39

Facts:

In June 2012, the appellant, who claimed to be Guinean, had his immigration claim denied by the Immigration and Refugee Board under the Immigration and Refugee Protection Act ("IRPA"). The appellant's application for judicial review was refused and he was placed on a conditional departure order with terms and conditions pending his removal from Canada.

After failing to report for a required interview with the Canadian Border Security Agency ("CBSA"), the appellant was arrested and detained at the Toronto Immigration Holding Centre ("IHC"). Following a detention review in February 2013, he was found to be a flight risk and his continued detention was ordered.

The CBSA attempted to remove the appellant to Guinea. Guinean authorities found that his Guinean birth certificate was fraudulent and refused him entry. Once returned to Canada, the appellant continued to proclaim that he was of Guinean citizenship.

Since the appellant's return to Canada in April 2013, and until the order under appeal, he had been detained in Central East Correctional Centre ("CECC") maximum security facility, rather than the IHC. The CBSA claimed that he did not meet the criteria for detention in a lower risk facility like the IHC. At the time of his appeal, the appellant he had more than 56 detention reviews, all of which concluded that his continued detention was required because he posed a flight risk–specifically that he would not appear for removal.

The appellant commenced an application for release from immigration detention pursuant to the Habeas Corpus Act and the Charter of Rights and Freedoms. The habeas corpus application was dismissed, but the application judge found that the appellant's s.12 Charter rights had been violated Relief was granted under s. 24(1) of the Charter, and the appellant was ordered transferred from the CECC to the IHC.

The appellant appealed the dismissal of the habeas corpus application. At the same time, the Minister of Public Safety and Emergency Preparedness and the Attorney General of Canada (the "Minister") sought leave to appeal the order granting the appellant's s. 24(1) relief for violating his s. 12 Charter rights.

Issues:

Appeal

Did the application judge:

(1) Err in his application of the required test at the jurisdictional stage?

(2) Err in finding that there was a reasonable prospect of removal within a reasonable time?

(3) Sanction indefinite detention?

Cross-Appeal

Did the application judge:

(4) Apply the incorrect legal test to decide whether the appellant's detention constituted a breach of s. 12 of the Charter?

(5) Err in factually concluding that the duration and conditions of the appellant's detention constituted a breach of s. 12?

Holding: Appeal dismissed and cross-appeal allowed.

Reasoning:

Appeal

(1) No, the application judge did not err in his application of the required test at the jurisdictional stage

Habeas corpus applications proceed in two stages. The applicant must show that he 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: Mission Institution v. Khela, 2014 SCC 24, at para. 30. In the appellant's case, the issue was whether his habeas corpus application was directed solely at his detention pending disposition of his immigration issues.

First, in order for the appellant's habeas corpus application to be heard, he had the onus to show that reasonable and probable grounds existed for his complaint, e.g., that his detention was unlawful because (1) it had been exceptionally lengthy; and (2) his continued detention was of uncertain duration.

Second, if the appellant established his complaint, the Minister was required to satisfy the court that, despite its length and uncertain duration, the continued detention was still justified because it is reasonably necessary to further the machinery of immigration control: Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, at para. 81.

If there was no reasonable prospect that the detention's immigration related purposes would be achieved within a reasonable time, the appellant's continued detention would violate his Charter rights. What is a reasonable prospect of removal within a reasonable time will depend on the circumstances.

(a) Extent of the Superior Court's Jurisdiction

The application judge found that the appellant had not satisfied the criteria that his detention, although lengthy – calculated at 21 months from the time the appellant admitted he was Gambian – was of uncertain duration. Both lengthiness and uncertain duration were required to meet the test. Thus, the application judge found that the appellant failed to raise a legitimate ground upon which to question the legality of his detention and there was no foundation to assume jurisdiction.

The appellant also argued that the application judge took too narrow a view of his jurisdiction, since Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839 ("Ogiamien #2") stood for the proposition that Chaudhary is not restricted to the specific facts considered in that case. The appellant relied on para. 41 of Ogiamien #2, where the court in that case rejected the contention that habeas corpus will only be available in immigration matters in the case of lengthy detentions of uncertain duration.

The Court of Appeal here rejected that argument, finding that the application judge did not err in his conclusion that he could take jurisdiction only if the first part of the Chaudhary test was met (i.e. the case must involve lengthy detentions of uncertain duration). This was for the following reasons:

(i) Ogiamien #2 was released after the application judge rendered his decision.

(ii) Ogiamien #2 maintains the Chaudhary test.

(iii) The appellant specifically relied on the Chaudhary test in support of his application.

(b) Shifting of the Onus

The appellant argued that the application judge erroneously asked whether the appellant's removal would occur in a reasonable time, and that this approach shifted the Minister's onus onto him. The Court of Appeal rejected this argument as well. Chaudhary does not set a maximum length of detention; rather, it prescribes a fact-driven analysis in which there is a balancing of the statutory reasons for detention and the prospect of removal within a reasonably foreseeable timeframe against a detainee's rights not to be detained arbitrarily or for indefinite periods.

The Court of Appeal found that the application judge did not improperly shift the Minister's onus onto the appellant. A reviewing body is to have regard for the facts of the case at the time of the application, which may involve considerations of whether there is a reasonable prospect that removal will be achieved within a reasonable time. The application judge considered the relevant facts and concluded that the appellant's continued detention was not of "uncertain duration." Looking forward, the application judge found that it would be ended within a time that was reasonable.

(2) No, the application judge did not err in finding that there was a reasonable prospect of removal within a reasonable time.

(a) Alleged Errors of Fact

The application judge concluded that there was a reasonable prospect that the appellant's removal would be achieved within a reasonable time because as soon as the appellant began cooperating, his travel documents could be secured from the Gambian authorities. It was open to the application judge to conclude that a breakthrough would occur with the appellant's cooperation.

Importantly, the appellant's detention was because of concerns of him failing to appear for proceedings involving his immigration issues when required to do so. There is a reasonable prospect that some development is likely to occur that will provide the necessary documentation that would permit the appellant to be removed. The appellant's cooperation will undoubtedly expedite what needs to follow.

Lastly, the application judge was not required to calculate precisely what would constitute a reasonable time. The onus was on the appellant to demonstrate that his detention was of an uncertain duration, which he failed to do.

(b) Procedural Fairness Regarding Disclosure

There was no breach of procedural fairness at the appellant's habeas corpus application regarding disclosure because:

(i) The fact that the appellant had not pursued juridical review or an adjournment regarding the Immigration Division's refusal to grant further disclosure had nothing to do with the application judge's conclusion on disclosure.

(ii) The appellant did not make a motion before the application judge for disclosure in his habeas corpus application.

(3) No, the application judge did not sanction indefinite detention.

The application judge's reasons did not endorse indefinite detention in the immigration context based on non-cooperation alone. Instead, the reasons reveal that the application judge properly considered the appellant's lack of cooperation only as an important factor in his ongoing detention. Unexplained delay or lack of diligence should count against the offending party: Ali v. Canada (Attorney General), 2017 ONSC 2660, at para. 22.

Cross-Appeal

In the underlying application, the appellant had argued that his detention in a maximum security provincial facility for an extended period of time constituted cruel and unusual punishment and was contrary to s. 12 of the Charter. Applicants seeking s. 24(1) relief for infringement of their s. 12 rights face a high bar. The burden is on the applicant to show, on a balance of probabilities, that s. 12 has been infringed, which requires demonstrating that the treatment is such that it would outrage the standards of decency, or that Canadians would find it abhorrent.

(4) No, the application judge did not apply the incorrect legal test to decide whether the appellant's detention constituted a breach of s. 12 of the Charter.

(a) The Test to Assess Cruel and Unusual Punishment

The Minister and the Intervener argued that the application judge did not follow the framework endorsed in Ogiamien #1, at para. 10: (1) determine what treatment would have been appropriate, and (2) measure the actual treatment against this benchmark. While the application judge did not refer to or rely on this case, the Court of Appeal found that his analysis did not amount to an error.

First, the application judge referred to Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. Charkaoui held that the immigration detention review scheme in the IRPA and its regulations did not violate s. 12. This is because the IRPA permits ongoing judicial review. Charkaoui also cautions that it is possible that a detention could constitute cruel and unusual treatment.

Second, the application judge turned to R. v. Smith, [1987] 1 S.C.R. 1045 for the framework to determine whether a detention constitutes cruel and unusual punishment. In particular, he relied on p. 1072 where cruel and unusual punishment was described in the sentencing context as being "grossly disproportionate" to appropriate punishment and so excessively lengthy "as to outrage standards of decency." The application judge added to this that gross disproportionality is made out where the length of imprisonment is abhorrent or intolerable to society.

The Court of Appeal found that as it was in Ogiamien #1, the appellant's case here was about treatment, not punishment. The test to establish a violation of s. 12 is the same regardless of whether it is regarding treatment or punishment. The words "cruel" and "unusual" colour each other and together express a standard or norm.

Ogiamien #1 did not set out the specifically-referenced two-step process as the only possible manner of assessing s. 12 claims. Indeed, Ogiamien #1's framework was in recognition of the approach revealed in Smith, which is that cruel and unusual punishment is "grossly disproportionate to what would have been appropriate." The application judge followed Smith and the two-step approach implied by the preceding statement. Ogiamien #1 should not be read as finding the approach taken by the application judge to be improper.

(5) Yes, the application judge erred in factually concluding that the duration and conditions of the appellant's detention constituted a breach of s. 12.

(a) The Findings and Determination of the Application Judge on s. 12

The application judge had accepted the appellant's general assertion that his treatment of being detained in the CECC rather than in a facility dedicated to immigration detention amounted to cruel and unusual treatment.

The application judge's findings to support this conclusion included:

(i) The fact that the CBSA decides whether to direct the detainee to a provincial maximum security facility or a location with a lesser degree of security (and that this process falls short of providing any legal basis for making such a decision);

(ii) In this case, while there had been an ongoing process of review, the place of his detention had not been reviewed;

(iii) The fact that the appellant had been detained for more than four years at the CECC; and

(iv) The fact that appellant was considered a flight risk by the Immigration Division, but no assessment has been undertaken as to whether his imprisonment is the most minimally impairing and proportionate disposition to deal with his risk.

(v) The fact that the appellant spent almost one and a half years in lockdown while at the CECC.

(b) The Appellant Did Not Meet the High Threshold to Establish an s. 12 Charter Breach

The onus was on the appellant to put forward a rigorous record to overcome the high threshold required to demonstrate a breach of s. 12 of the Charter. The Court of Appeal found that the evidence in this case fell short of showing that the appellant's treatment was cruel and unusual. The errors made by the application judge were largely linked to the lack of evidentiary foundation.

First, the application judge erred in finding that there was no legal basis for the process by which the CBSA makes decision regarding an immigration detainee's placement of detention. The appellant had a mechanism to challenge his place of detention and to raise the conditions of the CECC with the CBSA. The application judge failed to consider this, as well as the fact that the appellant had not asked the CBSA to transfer locations.

Second, there was no evidence beyond a single psychiatric assessment and nothing from the appellant himself that demonstrated how his placement at the CECC impacted him or how his s. 12 Charter rights were breached.

Third, the application judge committed a fatal error in failing to explain how lockdowns departed from ordinary detention conditions in a manner that was grossly disproportionate, and in failing to examine the actual effect of those lockdowns on the appellant.

The application judge thus failed to show how the lockdowns or conditions at the CECC rose to a level that was abhorrent, intolerable, or so excessive as to outrage the standards of decency.

Holterman v. Fish, 2018 ONCA 683

[Sharpe, Pepall and Roberts JJ.A.]

Counsel:

M.H. and T.T., self-represented appellants

E. Harrison and N. Arnold, for the respondents

Keywords: Costs, Fresh Evidence, Collateral Attack

Facts:

This is an appeal of a costs award made against the appellants at the end of trial.

The appellants discontinued their claim midway through trial after the trial judge pointed out that they had no evidence to establish an essential element of their case. Later, the appellants sought to reopen the claim based on fresh evidence.

The trial judge rejected the motion to reopen on the basis that the fresh evidence could not have affected the outcome. The Court of Appeal dismissed the appeal from that motion, and the Supreme Court dismissed the appellants' motion for leave to appeal. The appellants were ordered to pay the cost of the trial.

As the basis for their argument that they should not be responsible for the respondents' costs, the appellants attempted to rely on the same fresh evidence that was refused by the trial judge on the motion to reopen the claim.

Issue:

(1) Should the appellants be granted leave to appeal the adverse costs award?

Holding: Leave to appeal costs dismissed.

Reasoning:

(1) The appellants allege that the conduct of the respondents should have disentitled them to costs. However, the appellants relied on this very same conduct as the basis for their unsuccessful motion (and unsuccessful appeals) to reopen their claim. This would amount to a collateral attack on those decisions.

In any event, the trial judge considered whether the respondents' conduct should deprive them of costs, and took their conduct into account when he reduced the costs claimed by the respondents to less than partial indemnity. There was no basis upon which to interfere with the discretion of the trial judge.

Short Civil Decisions

Demarco v. Valdman, 2018 ONCA 682

[Sharpe, Juriansz and Roberts JJ.A.]

Counsel:

M. DeMarco, acting in person

S. Turnham, for the respondent

Key Words: Extension of time to file Notice of Appeal

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29 Sep 2018, Speaking Engagement, Toronto, Canada

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