COURT OF APPEAL FOR ONTARIO

CITATION: Chaudhary v. Canada (Public Safety and Emergency
    Preparedness), 2015 ONCA 700

DATE: 20151020

DOCKET: C60222, C60223, C60224 and C60225

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Amina Chaudhary, Michael Mvogo, Carmelo Bruzzese
    and Glory Anawa

Appellants

and

Minister of Public Safety & Emergency
    Preparedness, Minister of Citizenship & Immigration, Attorney General of
    Canada, Attorney General of Ontario, and Superintendent of the Central East
    Correctional Centre

Respondents

Jean Marie Vecina, for the appellants Michael Mvogo and
    Amina Chaudhary

Barbara Jackman, for the appellant Carmelo Bruzzese

Swathi Sekhar, for the appellant Glory Anawa

Martin Anderson, Jocelyn Espejo-Clarke, Nicholas Dodokin,
    and Sophia Karantonis, for the respondents

Heard: May 6, 2015

On appeal from the final judgment of Justice Kenneth L.
    Campbell of the Superior Court of Justice, dated March 6, 2015, with reasons reported
    at 2015 ONSC 1503.

Rouleau J.A.:

OVERVIEW

[1]

The appellants have been in detention awaiting deportation for periods
    ranging from just over two years to in excess of eight years. Their continued
    detentions have been confirmed at each 30-day review conducted by the
    Immigration Division (ID) of the Immigration and Refugee Board (IRB). The
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
) provides
    that a detainee can seek judicial review of ID decisions in the Federal Court,
    with leave. On a very few occasions, some of the appellants did seek such
    review. None but one of the reviews were successful. All remained detained when
    this appeal was heard.

[2]

The issue raised in this appeal is whether the appellants can, instead
    of seeking judicial review in the Federal Court, apply to the Superior Court of
    Justice for
habeas corpus
to challenge their continued detentions.

[3]

Habeas corpus
is an essential remedy in Canadian law and access
    to it is enshrined in s. 10(c) of the
Canadian Charter of Rights and
    Freedoms
. However, it is well established 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. This is commonly known as the

Peiroo
exception, so named for this courts decision in
Peiroo
    v. Minister of Employment and Immigration
(1989)
,
69 O.R. (2d)
    253 (C.A.), leave to appeal refused, [1989] S.C.C.A. No. 322.

[4]

On the agreement of the parties, the sole issue addressed by the
    applications judge was the courts jurisdiction to consider the
habeas
    corpus
applications. The applications judge concluded that the court
    should decline to exercise its
habeas corpus
jurisdiction. In his
    view, the
IRPA
put into place a comprehensive statutory review
    mechanism as broad and advantageous as
habeas corpus
.

[5]

The appellants maintain that where, as here, a detainee argues that the
    detention has become illegal because of its length and the uncertainty of its
    continued duration, the
Peiroo
exception does not apply. This is
    because the challenge is not to the immigration matters themselves, but rather to
    the continued detention beyond what can be justified for immigration-related
    purposes under the
IRPA.
In such circumstances, the appellants argue that
    continued detention contravenes the detainees ss. 7 and 9
Charter
rights and
habeas corpus
should be available as its ambit of review is
    broader and more advantageous to the detainee than the scheme established by
    the
IRPA
.

[6]

The respondents submit that the
Peiroo
exception applies and
    that it removes all immigration matters from the ambit of the courts
habeas
    corpus
jurisdiction. They argue that the applications judges decision
    should stand.

[7]

Upon a careful review of
Peiroo
and the cases that followed, I
    reject the respondents submission that the
Peiroo
exception is as
    broad as they submit. I conclude that
Peiroo
does not create a blanket
    exclusion for all immigration matters, and further, that the exception does not
    apply in the circumstances of the cases under appeal. For the reasons that
    follow, I have concluded that the appeals should be allowed.

BACKGROUND

A.

The appellants

(1)

Carmelo Bruzzese

[8]

Carmelo Bruzzese is a citizen of Italy and has been a permanent resident
    of Canada since 1974. He was 65 years-old at the time of the appeal hearing in
    this court. He had been in immigration detention since his arrest by the Canada
    Border Services Agency (CBSA) on August 23, 2013. At the time of the hearing
    of this appeal, Bruzzese had been detained for one year, eight months. He was reported
    under s. 37(1)(a) of the
IRPA
for inadmissibility on grounds of
    his membership in a criminal organization. There is no evidence he has been
    convicted of any crime in Canada or abroad. Bruzzese has strong ties to Canada:
    his wife and his five adult children are Canadian citizens. He also owns property
    in Canada.

[9]

It is alleged that Bruzzese is a high-ranking member of the Ndrangheta,
    a powerful Mafia-type organization based in Italys Calabria region. Ndrangheta
    operates across the globe and is involved in drug trafficking, money laundering,
    economic and financial crimes, extortion, corrupt tendering, weapons
    trafficking and prostitution. Bruzzese is the subject of an Interpol warrant
    for Mafia association. There was also an Italian warrant issued for his arrest for
    Mafia-type unlawful association pursuant to the Italian Criminal Code; however,
    as there is no equivalent offence in Canadas
Criminal Code
, he could
    not be extradited to Italy to face those charges.

[10]

There
    are 15 ID detention review decisions included in the record. Each of the
    decisions concluded that Bruzzeses detention should continue, based on two
    grounds: that he was unlikely to appear for removal from Canada if he was found
    inadmissible after his admissibility hearing (
IRPA
, s. 58(1)(b)); and
    that he was a danger to the public (
IRPA
, s. 58(1)(a)) due to his
    association with a criminal organization (
Immigration and Refugee
    Protection Regulations
, SOR/2002-227, s. 246(b) (
IRP Regulations
)).

[11]

Bruzzese
    obtained leave to seek judicial review in the Federal Court of two IDs
    decisions. Justice de Montigny heard and dismissed Bruzzeses judicial review
    application:
Bruzzese v. Canada (Public Safety and Emergency Preparedness),
2014 FC 230, 24 Imm. L.R. (4th) 97. The judicial review was of the two
    above-mentioned decisions, but the application judge considered three later
    decisions that also continued Bruzzeses detention.

[12]

The
    application judge concluded that considering the high degree of deference that the
    Federal Court must accord to the IDs determinations, he was unable to find
    that the decisions fell outside the range of possible, acceptable outcomes
    which are defensible in respect of the facts and the law (para. 84).

(2)

Glory Anawa

[13]

Glory
    Anawa is believed to be a citizen of Cameroon, but Cameroon will not recognize
    her documents or identity. She was 29 years old at the time of this appeal
    hearing. She has been detained since the beginning of February 2013, about two
    years, three months by the time of the appeal hearing. She is being detained
    pending the issuance of a travel document by Cameroon. The basis for her
    detention is that she is unlikely to appear for removal.

[14]

Anawa
    says she was born in Cameroon, but she never had a birth certificate or
    national identity document from Cameroon. In 2006, she fled from Cameroon to
    Finland and claimed asylum. She then went to Nigeria. On February 6, 2013,
    Anawa entered Canada from Nigeria alone on a false British passport and claimed
    asylum. She was detained and taken to an immigration holding centre in Toronto.
    She was two months pregnant at the time. She soon withdrew her asylum claim,
    and the Minister commenced removal proceedings against her. She was flown to
    the High Commission of Cameroon in Ottawa to obtain a travel document, but
    Cameroonian authorities refused to recognize her identification documents. In August
    2013, Anawa gave birth to her son, while in detention. Her son remains in
    detention with her.

[15]

In
    March 2014, Anawa filed a pre-removal risk application. Upon filing this
    application, she provided a different story about her travel history, stating
    that her documents from Finland were forged and that she had never been to
    Finland. Her application was refused. Anawa then reverted to her original
    story. In June 2014, Anawa filed a permanent residence application on
    humanitarian and compassionate grounds. This application was refused, and
    judicial review is in process.

[16]

At
    the last review contained in the record, Anawas counsel submitted that Anawas
    detention had effectively become indefinite because the prospects of obtaining
    a travel document from Finland were essentially non-existent. Ministers
    counsel responded that Finnish authorities were still in the process of getting
    a travel document for Anawa, and that her detention was not indefinite as
    Finnish officials had not provided a definitive response on the matter.

[17]

The
    ID member ordered her continued detention, saying: I have no new evidence or
    arguments today that would leave me to make a different finding in respect to
    you being a flight concern. The member also addressed the length of detention,
    and stated that it did not weigh in favour of release here because Anawa had
    been the cause of much of its lengthiness. Although the member agreed that some
    timelines should be in place with respect to a response from Finnish officials,
    the Minister had been diligent. Anawas detention was not indefinite because
    the process was moving forward and Finland had not stated that it would not
    issue a travel document.

(3)

Amina Chaudhary

[18]

Amina
    Chaudhary is either a citizen of India or the United Kingdom. At the time of
    the appeal hearing, she was 53 years old. She immigrated to Canada in 1977. In
    1984, Chaudhary was convicted of first-degree murder for strangling a nine-year
    old boy and sentenced to life in prison, with no parole eligibility for 25
    years. She lost her permanent resident status as a result, and was ordered
    deported in January 1987. In early 2006, when Chaudhary became eligible for day
    parole, the ID detained her on the basis that she was unlikely to appear for
    removal. She was released by the ID in February 2006, on a bond. However, in
    May 2010, Chaudharys day parole was revoked for suspicious behaviour, of which
    she was later cleared. She became eligible for day parole again in August 2012.

[19]

Chaudhary
    has been detained pending removal under the
IRPA
since September 2012,
    two years, eight months at the time of the appeal hearing. However, she is only
    detained for immigration purposes for a maximum of 82 hours every time she is
    scheduled for an unescorted temporary absence from prison, which can occur once
    per month, by order of the parole board. The impediment to her removal is her
    lack of a travel document. She applied for travel documents from both the
    United Kingdom and India, but both countries have refused to issue these
    documents. Chaudhary states that officials from the consulates of these two
    countries told her that neither a passport nor a travel document would issue in
    the future.

[20]

On
    a review in October 2014, the ID member stated that there was no indication
    before [him] that [Chaudhary had] been obstructing the process to obtain a
    travel document and so because of this [he was] a little concerned about length
    of future detention. Despite the prospect of a lengthy detention, there was no
    alternative to consider, let alone one that would offset the concerns in her
    case. The ID member ordered Chaudharys continued detention.

[21]

On
    her subsequent detention review, the ID member concluded that Chaudharys
    detention should continue on the basis that she is unlikely to appear for
    removal, essentially for the same reasons that [she had] been given  at
    previous detention reviews. The member noted that Chaudhary had attempted to
    frustrate the travel document process by lying to both Indian and British
    authorities about her citizenship, and rejected the argument that she was
    stateless. With respect to the length of detention, the member noted that the
    majority of time Chaudhary was detained was not technically immigration
    detention. Ultimately, the length of her detention was due to delays Chaudhary
    herself caused by not being forthright with immigration officials. With respect
    to future length of detention, the member noted again that it did not outweigh
    all the other factors.

(4)

Michael Mvogo

[22]

Michael
    Mvogo is originally from Cameroon. He came to Canada from the United States as
    a visitor under the false identity of a US citizen. He was arrested by the CBSA
    in September 2006, after a criminal conviction brought him to the attention of
    immigration authorities. He had thus been in immigration detention for about eight
    years, eight months at the time of the appeal hearing.

[23]

After
    confirmation that he was not a US citizen, Mvogo said he was from Haiti. In
    January 2011, Mvogo gave his true identity. At the time of the appeal hearing, Cameroon
    officials had not issued a travel document.

[24]

On
    April 20, 2014, the Working Group on Arbitrary Detention of the UN Human Rights
    Council opined that Mvogos detention violated article 9 of the
Universal
    Declaration of Human Rights
and articles 9 and 12 of the
International
    Covenant on Civil and Political Rights
, and that his continued detention
    was unjustified. It made this determination without the benefit of information
    from Canadian authorities, who had not responded to the Working Groups request
    for details.

[25]

Mvogo
    underwent many detention reviews. On a detention review in July 2013, the ID
    member accepted that Mvogo was being more cooperative than he had been in the
    past, which lent some weight in his favour. However, the member still deemed
    him a flight risk. The member ordered Mvogos continued detention. Although the
    member was very concerned about the number of years that Mvogo had spent in
    detention already, he noted that the situation was created largely by things
    outside of the CBSAs control. Up until 2011, it was created by Mvogo. The CBSA
    was investigating and trying to obtain a travel document for Mvogo, and there
    was no lack of diligence on its part in that respect.

[26]

Mvogo challenged three detention review decisions in Federal
    Court. However, his applications for leave and judicial review were dismissed
    for two of them. He was successful in quashing one of his earlier reviews,
    while he was still claiming to be an American citizen, for reviewable error.

B.

The statutory framework under the
IRPA

[27]

Before
    discussing the applications judges decision and the issues in this appeal, it
    is important to outline the statutory scheme for detention review under
IRPA
,
    as it is deeply connected to what the parties argue
.
I will also
    briefly review, in the subsequent section, the importance and broad application
    of the writ of
habeas corpus
.

[28]

The
    scheme of immigration detention and its reviews is set out in Division 6 of the
IRPA
. Detentions are initially ordered by immigration officers or the ID,
    a division of the IRB. Detentions are then automatically reviewed by the ID
    based on timelines and criteria set out in the legislation and regulations. The
    detainee or government can seek judicial review of the IDs review decision in
    the Federal Court.

(1)

Initial detention (s. 55 of the
IRPA
)

[29]

An
    immigration detention must be for an immigration-related purpose: to detain
    someone under the
IRPA
, an immigration officer must have reasonable
    grounds to believe the individual is inadmissible to Canada and is a danger to
    the public or is unlikely to appear for examination, an admissibility hearing,
    removal or a proceeding that could lead to the making of a removal order. Also,
    a foreign national can be detained if an immigration officer is not satisfied
    of his or her identity in the course of any procedure under the
IRPA
.
    Additionally, a permanent resident or foreign national can be detained on entry
    into Canada if an immigration officer considers it necessary for an examination
    to be completed, or has reasonable grounds to suspect the individual is
    inadmissible on grounds of security, violation of human or international
    rights, serious criminality, criminality or organized criminality.

[30]

Designated
    foreign nationals, being those who come to Canada as part of a group and whose
    arrival the Minister has designated as irregular (often in the case of human
    smuggling), must be detained.

[31]

Finally,
    the ID itself may, pursuant to s. 58(2), order the detention of a permanent
    resident or foreign national if it is satisfied that the person is the subject
    of an examination, an admissibility hearing, or a removal order, and that he or
    she is a danger to the public or is unlikely to appear for the examination,
    admissibility hearing or removal from Canada.

(2)

Review of continued detention

(a)

Timelines for review

[32]

When
    a permanent resident or foreign national is detained under the
IRPA
,
    the ID must be notified. The ID must then conduct reviews of the detention at
    periodic intervals. It must hold the first review within 48 hours after the
    individual is detained, or without delay afterward (s. 57(1)). It must conduct
    the second review of the reasons for the continued detention within seven days
    of the first review. From that point forward, it must review the reasons for
    continued detention at least once during each 30-day period following each
    previous review (s. 57(2)).

(b)

The review  the hearing and review criteria

[33]

In
    a review, the ID must, where practicable, hold a hearing, and hear the matter
    without delay (s. 173(a)). The detainee has the right to be represented by
    legal or other counsel, at his or her own expense (s. 167(1)). The ID must
    release the detainee unless it is satisfied, taking into account prescribed
    factors, that he or she meets one of the criteria in s. 58(1). The statutory
    criteria that would justify continued detention generally touch on the
    necessity of detention:

58.
(1) The Immigration
    Division shall order the release of a permanent resident or a foreign national
    unless it is satisfied, taking into account prescribed factors, that

(
a
) they
    are a danger to the public;

(
b
) they
    are unlikely to appear for examination, an admissibility hearing, removal from
    Canada, or at a proceeding that could lead to the making of a removal order by
    the Minister under subsection 44(2);

(
c
) the
    Minister is taking necessary steps to inquire into a reasonable suspicion that
    they are inadmissible on grounds of security, violating human or international
    rights, serious criminality, criminality or organized criminality;

(
d
) the
    Minister is of the opinion that the identity of the foreign national  other
    than a designated foreign national who was 16 years of age or older on the day
    of the arrival that is the subject of the designation in question  has not
    been, but may be, established and they
have not reasonably cooperated
    with the Minister by providing relevant information for the purpose of
    establishing their identity or the Minister is making reasonable efforts to
    establish their identity
; or

(
e
) the
    Minister is of the opinion that the identity of the foreign national who is a
    designated foreign national and who was 16 years of age or older on the day of
    the arrival that is the subject of the designation in question has not been
    established.

[34]

The
    prescribed factors, referred to in s. 58(1), that the ID must take into account
    are outlined in detail in the
IRP Regulations.
The most relevant
    factors for the instant appeals appear in s. 248 of the
IRP Regulations
:

248.
If it is determined that
    there are grounds for detention, the following factors shall be considered
    before a decision is made on detention or release:

(
a
) the
    reason for detention;

(
b
)
the length of time in detention
;

(
c
) whether
    there are
any elements that can assist in
    determining the length of time that detention is likely to continue and, if so,
    that length of time
;

(
d
) any
    unexplained delays or unexplained lack of diligence caused by the Department or
    the person concerned; and

(
e
) the
    existence of alternatives to detention. [Emphasis added.]

[35]

If
    the ID orders the detainees release, it may impose any conditions it considers
    necessary or that are prescribed (ss. 58(3) and (4)).

(c)

The review panel  composition and powers of the ID

[36]

Each
    review is conducted by a single member of the ID. Members of the ID are not
    Governor in Council appointees and they need not be lawyers. They are public
    servants appointed in accordance with the
Public Service Employment Act
,
    S.C. 2003, c. 22, ss. 12, 13. The ID has, in respect of proceedings brought
    before it under the
IRPA
, sole and exclusive jurisdiction to hear and determine
    all questions of law and fact, including questions of jurisdiction (s. 162(1)).
    It has the powers and authority of a commissioner appointed under Part I of the
Inquiries Act
, R.S.C. 1985, c. I-11, and may do any other thing it
    considers necessary to provide a full and proper hearing (s. 165 of the
IRPA
).
    It must deal with proceedings as informally and as quickly as the circumstances
    and considerations of fairness and natural justice permit (s. 162(2)).

(3)

Judicial review of IDs decisions

[37]

Pursuant
    to s. 72(1) of the
IRPA
, a detainee can apply for leave to the Federal
    Court for judicial review of the IDs decisions on continued detention. The
    detainee must file the application within 15 days after he or she is notified
    or becomes aware of the decision. The leave application must be disposed of
    without delay and in a summary way. If leave is granted, the judicial review
    hearing takes place no sooner than 30 days and no later than 90 days after
    leave is granted, unless the parties agree to an earlier day. The judicial
    review application must also be disposed of without delay and in a summary way.
    A detainee can appeal the decision of the Federal Court on judicial review to
    the Federal Court of Appeal only if the Federal Court judge certifies that a
    serious question of general importance is involved, and states the question.

C.

The writ of
habeas corpus

[38]

The prerogative writ of
habeas corpus
is a cornerstone
    of liberty and a means of judicial control over the arbitrary behaviour of
    the executive government. It is one of the most important safeguards of the
    liberty of the subject: M. Groves,
Habeas corpus
, Justiciability and
    Foreign Affairs (2013) 11:3 N.Z. J. Pub. & Intl L. 587, at p. 588. It is
    also the most significant means of protecting individual liberty:
R.J. Sharpe, J. Farbey & S. Atrill,
The Law of Habeas
    Corpus
, 3rd ed. (New York: Oxford University Press, 2011),
    at p. 1.

The writ is thus often referred to as
    the Great Writ of Liberty: see
May v. Ferndale Institution
, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 19;
R. v.
    Gamble
, [1988] 2 S.C.R. 595, at p. 645.

It has also been described as the great and efficacious
    writ, in all manner of
illegal confinement:
D. Parkes, The Great Writ Reinvigorated?
Habeas corpus
in Contemporary Canada (2012) 36 Man. L.J.
    351, at p. 352
.

[39]

Most significantly in Canada, it
    is guaranteed by s. 10(c) of the
Charter,
which reads as
    follows:
Everyone has the right on arrest or
    detention
to have the validity
    of the detention determined by way of
habeas corpus
and to be released if the detention is not lawful.

As explained
    by the Supreme
Court of Canada in
May,
at para. 22:

Habeas corpus
is a crucial remedy in the pursuit of
    two fundamental rights protected by the
Canadian Charter of Rights and
    Freedoms
: (1) the right to liberty of the person and the right not to be
    deprived thereof except in accordance with the principles of fundamental
    justice (s. 7 of the
Charter
); and (2) the right not to be arbitrarily
    detained or imprisoned (s. 9 of the
Charter
).

[40]

Sharpe
    at p. 21 described the traditional form of review available on
habeas
    corpus
as follows:

The writ is directed to the gaoler or person having custody or
    control of the applicant. It requires that person to return to the court, on
    the day specified, the body of the applicant and the cause of his detention.
    The process focuses upon the cause returned. If the return discloses a lawful
    cause, the prisoner is remanded; if the cause returned is insufficient or
    unlawful, the prisoner is released. The matter directly at issue is simply the
    excuse or reason given by the party who is exercising restraint over the
    applicant.

[41]

It
    is well established that
habeas corpus
jurisdiction lies almost
    exclusively in the superior courts of the provinces. Included in this broad
    jurisdiction is the authority to hear
habeas corpus
applications with
certiorari
in aid to review the validity of a detention authorized or imposed by a
    federal board, commission or other tribunal as defined by s. 2 of the
Federal
    Court Act
, R.S.C. 1985, c. F-7:
R. v. Miller
, [1985] 2 S.C.R.
    613, at p. 626.

[42]

Habeas
    corpus
is issued as of right and as a matter of principle should not be
    declined merely because another alternative remedy exists and would appear as
    or more convenient in the eyes of the court. The option belongs to the
    applicant (
May,
at para. 44). The Supreme Court has outlined two
    areas where a superior court should exercise its discretion to decline
habeas
    corpus
jurisdiction. The first exception is in the criminal context.
Habeas
    corpus
cannot be used to challenge the legality of a conviction. The
    appeal processes must be followed.

[43]

The
    second exception is pertinent to these appeals. The Court, citing
Peiroo,
explained that a second limitation gradually developed in the field of
    immigration law and is a limited discretion to refuse to entertain
    applications for prerogative relief in immigration matters (
May
, at
    para. 39). In those matters, where there is a complete, comprehensive and
    expert statutory scheme [in place] which provides for a review at least as
    broad as that available by way of
habeas corpus
and no less
    advantageous,
habeas corpus
is precluded (
May,
at para. 40).

[44]

With
    this legal context in mind, I will now discuss the applications judges
    decision.

D.

The decision of the applications judge

[45]

The
    four appellants brought applications for
habeas corpus
with
certiorari
in aid to the Ontario Superior Court of Justice, claiming their continued
    detentions were unlawful and seeking immediate release.

[46]

The
    applications judge determined that the court should decline to exercise its
habeas
    corpus
jurisdiction to determine the applications. He found, relying on
Peiroo
,
    that the comprehensive statutory mechanism in place for the review of detentions
    in connection with pending immigration matters was the appropriate vehicle for
    prompt review of the lawfulness of detentions in immigration matters. He
    concluded that the legislative scheme permitted an ambit of review at least as
    broad and advantageous as the traditional scope of review by means of
habeas
    corpus
.

[47]

The
    applications judge noted the legislative schemes automatic and regular
    reviews, as well as the fact that the onus rests on the Minister to demonstrate
    that continued detention is justified. The applications judge also noted that
    the ID must consider various factors on review, including the reason for
    detention, the length of detention and alternatives to detention. He referenced
    the speedy and informal nature of immigration detention hearings, the
    availability of expeditious and summary judicial review by the Federal Court, as
    well as the possibility of appeal to the Federal Court of Appeal.

[48]

The
    applications judge noted that leave applications for judicial review could be
    expedited, and that Catzman J.A. in
Peiroo
had expressly considered
    and rejected the argument that the leave requirement rendered judicial review
    less advantageous as compared to
habeas corpus
. Furthermore, he found
    that the ID and the Federal Court have expertise in dealing with the lawfulness
    of continued detention in the context of ongoing immigration matters. The fact
    that the appellants might not be successful there did not render the Federal
    Court either inappropriate or ineffective.

[49]

The
    applications judge agreed with the Crowns submission that a line of cases following
Peiroo
held that a decision to detain is an immigration-related matter
    and the scheme put in place by Parliament for review of these decisions is
    complete, comprehensive and expert (see also
May
, at para. 50). As a
    result, the applications judge agreed that there were obvious policy reasons
    (
May
, at para. 35) supporting the exercise of discretion to decline
habeas
    corpus
jurisdiction:
habeas corpus
would simply amount to a
    collateral attack on decisions made where the legislation has created a complete,
    comprehensive and expert procedure for the judicial review of administrative
    decisions impacting upon individual liberty.

ISSUES

[50]

The
    issue raised by these cases is whether
habeas corpus
with
certiorari
in aid is available to persons claiming that, because of the length and
    the uncertainty of continued duration, their continued detentions pursuant to
    decisions of the ID have become illegal.

[51]

The
    appellants maintain that the applications judge erred in two ways. First, the
    applications judge gave an overly broad interpretation to the line of cases
    interpreting and applying
Peiroo
. Second, the applications judge erred
    in focusing on the process created by the legislation, which provides for
    periodic reviews by the ID of the reasons for detention, rather than on the
    appellants claim that their continued detentions were illegal and in breach of
    their
Charter
rights. In the appellants submission, had the courts
    analysis focused on determining the legality of the detentions, the court would
    have concluded that judicial review of the decisions of the ID by the Federal
    Court, with leave, was not as broad as that available by way of
habeas
    corpus
with
certiorari
in aid, and was less advantageous.

[52]

The
    appellant Carmelo Bruzzese also argues that his removal for immigration
    purposes is a disguised extradition, and that it is an improper use of the
IRPA
scheme and an abuse of process.

[53]

The
    respondents argue that the applications judge correctly found that the
Peiroo
exception properly applied to these cases, because Parliament has put in
    place a complete, comprehensive, and expert scheme for the review of
    immigration detention. As a result, they submit that the appeals should be
    dismissed.

[54]

For
    the reasons that follow, I have concluded that the
Peiroo
exception is
    not a blanket exclusion of
habeas corpus
in immigration-related
    matters. Further, after reviewing the legislative scheme for review of
    immigration detention, I consider that where, as in the current appeals, the
    issue is the legality of a continuing lengthy detention of uncertain duration,
    the review process created by the
IRPA
is not as broad and is less
    advantageous than
habeas corpus
.

ANALYSIS

A.

Does
Peiroo
exclude the writ of
habeas corpus
in all
    matters related to immigration law?

[55]

The
    appellants argue that
Peiroo
and the Supreme Court of Canada cases
    that have confirmed the
Peiroo
exception do not go as far as the
    respondents suggest. The cases do not stand for the proposition that anyone
    involved with the immigration system is deprived of
habeas corpus
. I
    agree.

(1)

Peiroo

[56]

Peiroo
involved an Iranian citizen who, upon arrival in Canada, made a refugee claim.
    Following an inquiry, the Convention Refugee Determination Division of the
    Immigration and Refugee Board determined that Peiroo did not have a credible
    basis for her claim. A removal order issued pursuant to the provisions of
    then-relevant legislation, the
Immigration Act
, R.S.C. 1985, c. I-2.

[57]

The
    claimant contested this finding and the removal orders issuance. She applied
    to the Supreme Court of Ontario for the issuance of a writ of
habeas corpus
with
certiorari
in aid. Her application was dismissed, and she
    appealed to this court. Pending the hearing of the appeal, the execution of her
    removal order was stayed and she was released from detention on strict terms.

[58]

Catzman
    J.A., writing for the court, framed the sole issue on appeal as whether the
    court should exercise its discretion to decline to grant relief upon the
habeas
    corpus
application, because alternative remedies were available to impugn
    the proceedings taken against the claimant.

[59]

Catzman
    J.A. determined that the court should exercise its discretion and declined to
    grant
habeas corpus
relief. He came to this conclusion based on his finding
    that the available remedies under the
Immigration Act
were not less
    expeditious or advantageous than
habeas corpus
because:

·

the grounds and scope for review were as broad or broader than
    those available on
habeas corpus
;

·

the requirement for leave to appeal or to seek judicial review
    did not make the alternative remedy less advantageous; and

·

any alleged disadvantage with respect to the availability or
    timeliness of a stay under the alternative remedy was not made out.

[60]

The
    ratio in
Peiroo
, therefore, is that a comprehensive alternative remedy
    to
habeas corpus
was in place within the administrative structure
    created to regulate immigration matters, and this alternative remedy was as
    broad and as advantageous to the detainee as would be
habeas corpus
.
    In those circumstances, a provincial superior court should exercise its
    discretion and decline to grant relief upon the application for
habeas
    corpus
.

[61]

It
    is important to consider the context for this holding. The
habeas corpus
application
    was brought to challenge the finding that Peiroo had no credible basis for her
    refugee claim, and her removal order. The
habeas corpus
application
    was clearly a collateral attack on core immigration decisions: that she did not
    qualify as a refugee and that she should be deported. It fell squarely within
    the expertise of the immigration authorities and of the Federal Court that
    routinely deal with such issues. There were strong policy reasons for declining
    jurisdiction.

[62]

In
Peiroo
, the
habeas corpus
application was not directed to
    whether detention was warranted pending disposition of the immigration issues.
    In fact, by the time the matter reached this court, the claimant had applied
    for and been released on conditions.

[63]

It
    is apparent, therefore, that the
habeas corpus
applications in the
    instant appeals are quite different. They do not seek a determination of the
    ongoing immigration matters. They seek a determination as to whether the continued
    detentions of the appellants are illegal.

(2)

Other cases that followed
Peiroo

[64]

As
    mentioned above, the Supreme Court of Canada confirmed the
Peiroo
exception
    to
habeas corpus
in other cases. The respondents argue that these
    authorities have broad application and constitute binding authorities that are dispositive
    of these appeals. I disagree.

[65]

The
    2005 case of
May
dealt with an application for
habeas corpus
in the context of a transfer of detainees from a minimum-security institution
    to a medium-security institution. The Supreme Court was asked to decide whether
    the appellant detainees could bring an application for
habeas corpus
in provincial superior courts to review the prisons decision on their
    detentions. The government argued that the proper proceeding was by way of
    judicial review to the Federal Court. The Court ruled that
habeas corpus
jurisdiction should not be declined merely because an alternative remedy
    exists. Jurisdiction should only be declined in limited circumstances, where
    one of the two established exceptions applies. Where neither exception applies,
    the existence of an alternative remedy means that the applicant may choose
    whether to proceed through the alternative remedy (i.e. judicial review) or by
    way of
habeas corpus.
The option belongs to the applicant (para. 44).

[66]

Most recently, the Supreme Court was again asked to
    decide on the issue of
habeas corpus
in the context of a prison transfer. In
Khela v. Mission
    Institution,
2014 SCC 24, [2014] 1 S.C.R.
    502, the Court reiterated the concurrent jurisdiction of the superior courts
    and the Federal Court in considering the lawfulness of a transfer of a detainee
    between institutions.

[67]

The
    respondents also refer to the cases
Reza v. Canada
, [1994] 2 S.C.R.
    394 and
Idziak v. Canada (Minister of Justice)
, [1992] 3 S.C.R. 631. In
Reza,
the Supreme Court confirmed the motions judges decision to
    decline to grant declaratory and injunctive relief to restrain a removal order.
    The second case,
Idziak,
involved an appellant who the United States
    wanted extradited and who had sought
habeas corpus
with
certiorari
in aid in the Supreme Court of Ontario to set aside the warrant of
    surrender.

[68]

In
    my view, none of those cases go as far as suggested by the respondents.
    Although
Reza
was an immigration case, it did not involve
habeas
    corpus
. It concerned declaratory and injunctive relief in the context of a
    constitutional challenge to immigration legislation. This distinction is
    noteworthy because the remedies sought were both discretionary and were
    available in both the provincial courts and the Federal Court. This is in
    contrast to
habeas corpus
, which is a non-discretionary remedy and is
    available only in the provincial superior courts. The Federal Court has no
    jurisdiction to grant it.
Reza
, therefore, is of no assistance in
    resolving the issue herein.

[69]

The
    three other cases were not immigration cases.
Idziak
was an
    extradition case, and the
May
and
Mission
decisions involved
    a challenge of the legality of the transfer of prisoners to higher security
    facilities. The relevance of these cases is that all refer to and confirm the
Peiroo
exception. They confirm that
Peiroo
is good law and, together with
Reza
and
Pringle v. Fraser
[1972] S.C.R. 821, stand for the proposition
    that in matters of immigration law, because 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,
habeas corpus
is precluded (
May,
at para.
    40).

[70]

The
    court was careful, however, to explain that:

Given the historical importance of
habeas corpus
in
    the protection of various liberty interests, jurisprudential developments
    limiting
habeas corpus
jurisdiction should be carefully evaluated and
    should not be allowed to expand unchecked. The exceptions to
habeas corpus
jurisdiction
    and the circumstances under which a superior court may decline jurisdiction
    should be well defined and limited (
May, at
para. 50).

[71]

I
    do not interpret these decisions as having created, as the respondents suggest,
    a wholesale exclusion of
habeas corpus
in any case where an applicant
    is subject to immigration procedures. The Supreme Court, using
Peiroo
as
    an example, held that
habeas corpus
cannot be used to mount a
    collateral attack of immigration decisions, where a complete, comprehensive and
    expert procedure for review of these decisions exists. In
Peiroo,
the
    challenge was to a core immigration matter, a removal order. It is therefore
    only in cases where the procedure set out in the statute to challenge such
    orders is as broad as and no less advantageous than
habeas corpus
that
    the conditions for declining jurisdiction will be met, and the court will
    exercise a
limited
discretion to refuse to entertain applications for
    prerogative relief in immigration matters (
May
, at para. 39)
    (emphasis added).

[72]

The
    appellants challenge in the present case is to the legality of the continued
    lengthy detentions. Where, as here, the issue raised is not, strictly speaking,
    an immigration law matter as in
Peiroo
, the court needs to consider
    whether the issue raised falls within the category of exceptions as defined in
May
.
    The question a
habeas corpus
application would answer is whether the
    detentions, because of their length and their uncertain duration, have become illegal
    and in violation of the appellants ss. 7 and 9
Charter
rights. As
    such, the immigration status of the appellants will not be affected. They will
    still be subject to removal. All that will be decided is whether there
    continues to be a constitutionally valid basis for their detentions pending
    those immigration decisions and dispositions.

[73]

This
    court has previously held that, although immigration matters will generally be
    best dealt with under the comprehensive scheme established under the immigration
    legislation, there will be situations in which the Federal Court is not an
    effective and appropriate forum in which to seek the relief claimed. In those
    rare cases, the Superior Court can properly exercise its jurisdiction:
Francis
    (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration)
(1999), 49 O.R. (3d) 136 (C.A.), leave to appeal granted, [1999] S.C.C.A. No.
    558, at para. 12. Although the relief sought in
Francis
was
    declaratory and injunctive relief, the principle expressed therein is all the
    more relevant when
habeas corpus
is the relief sought because that
    remedy, unlike declaratory and injunctive relief, is non-discretionary. It also
    falls squarely within the superior courts jurisdiction.

[74]

I
    conclude that the
Peiroo
exception is not a blanket exclusion of
habeas
    corpus
in all matters related to immigration law. Therefore, because the
    issue raised by the appellants is not a core immigration issue as was
Peiroo
and seeks only the determination of the legality of the appellants continued
    detentions, these are cases that warrant a careful evaluation as prescribed
    in
May
. This careful evaluation will focus on whether the appellants
    remedies for unlawful detention under the
IRPA
, including judicial
    review, with leave, of ID detention decisions, are at least as broad as, and no
    less advantageous than that available by way of
habeas corpus
.

B.

Is the statutory scheme for detention review under the
IRPA
as
    broad as and no less advantageous than
habeas corpus
?

[75]

At
    the outset, it is important that the issue be properly framed. The issue being
    raised by the appellants in their
habeas corpus
applications is not
    whether grounds for a period of detention under the
IRPA
exist nor the
    factual findings of the ID that support those grounds. Rather, it is whether
    they can exercise their constitutionally protected right to
habeas corpus
and to have a court rule on whether their detentions, when viewed through the
    lens of ss. 7 and 9 of the
Charter
and international instruments such
    as the
International Covenant on Civil and Political Rights
, to which
    Canada is a signatory, have become illegal because of their length and
    uncertain duration. In other words, in those exceptional cases where persons
    are detained for lengthy periods on immigration matters with no end to the
    detention in sight, the issue is whether detainees can be deprived of their
    constitutional right to challenge, through
habeas corpus
, the continued
    detentions pending resolution of the immigration matters.

[76]

Administrative tribunals do, of course, have the authority
    to resolve constitutional questions linked to matters properly before them if
    the legislator gave the tribunal the power to decide questions of law and has
    not clearly withdrawn the tribunals constitutional jurisdiction. Further, the
    tribunal must act consistently with the
Charter

and its values
    when exercising its statutory functions: see
R. v. Conway
, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 78. The
    ID of the IRB has that authority.

[77]

I
    acknowledge, therefore, that an ID official, on a 30-day review, or a judge of
    the Federal court could, after taking into account the factors listed in s. 248
    of the
IRP Regulations,
reach the conclusion that a continued
    detention violated a detainees
Charter
rights and could no longer be
    justified because of its length and the uncertainty of duration. That said, the
    respondents only referred us to one case where a finding of indeterminate
    detention was made. In that case, the ID, because of the length of the
    detention and the availability of an alternative to continued detention under
    the Ontario
Mental Health Act
, R.S.O. 1990, c. M.7, ordered release.
[1]

[78]

As
    noted earlier, however, the existence of an alternative remedy to
habeas
    corpus
does not mean that the court should automatically decline its
    jurisdiction. If, as alleged by the respondents, the review process put in
    place by the
IRPA
to rule on the legality of continued detentions in
    the appellants circumstances is as broad as and no less advantageous than on
habeas
    corpus
,
habeas corpus
should be declined. If it is not as broad
    and is less advantageous,
habeas corpus
should be available to the
    appellants, who will then have the choice of proceeding through the
IRPA
scheme or through
habeas corpus
(
May
, at para. 44). I have
    concluded that the process of detention review under
IRPA
is not as
    broad and is less advantageous than
habeas corpus.

[79]

There
    are three critical differences between the
IRPA
process and
habeas
    corpus
that, taken together, make
habeas corpus
broader and more
    advantageous to the appellants when the issue is whether continued detentions have
    become illegal due to their length and the uncertainty of their continued
    duration. Those three differences are:

·

The question the court is to answer;

·

The onus; and

·

The review process.

[80]

I
    will deal with each of these in turn. Subsequently, I will apply the five
    factors used by the Supreme Court in
May
, as they militate, in my
    view, in favour of concurrent jurisdiction between the superior courts and the
    Federal Court in immigration detention matters of the nature of those raised by
    the appellants.

(a)

The question the court is to answer

[81]

On
    their
habeas corpus
applications, the appellants would have to show
    that reasonable and probable grounds exist for their complaints. The grounds
    will be the exceptional length of their detentions and their uncertain continued
    duration. The question the court will then have to address is whether, because
    of their length and the uncertainty as to their continued duration, the
    detentions have become illegal, in violation of the detainees ss. 7 and 9
Charter
rights and international instruments to which Canada is a signatory. A detention
    cannot be justified if it is no longer reasonably necessary to further the
    machinery of immigration control. Where there is no reasonable prospect that
    the detentions immigration-related purposes will be achieved within a
    reasonable time (with what is reasonable depending on the circumstances), a continued
    detention will violate the detainees ss. 7 and 9
Charter
rights and
    no longer be legal. In responding to the application, the Minister must satisfy
    a court that, despite its length and uncertain duration, the continued
    detention is still justified.

[82]

This
    is to be contrasted with the detention review carried out by the ID where the question
    posed is whether
one
of the five grounds for detention listed in s. 58
    of the
IRPA
has been established. According to the
IRPA,
if
    one of those grounds is shown to exist, the current and future length of
    detention are but factors to be taken into account in making the decision to
    continue detention. The ID and the Federal Court on judicial review are not
    tasked with the question of determining whether the immigration detention no
    longer reasonably furthers the machinery of immigration control and is or has
    become illegal based on
Charter
or human rights principles.

[83]

As
    explained in
Canada (Minister of Citizenship and Immigration) v. B046
,
    2011 FC
877, 100 Imm. L.R. (3d) 139, at paras.
    54-55, the factors listed in s. 248 of the
IRP Regulations
were
inserted to address
Charter
concerns. However, provided that the Immigration Division addresses all of the
    factors and has regard to the evidence before it in assessing the factors in s.
    248, the Federal Court is reluctant to intervene.

[84]

The
    way the question is framed makes a difference. In cases such as those under
    appeal, the question that the court is to answer on a
habeas corpus
application
    is clearly more favourable to the appellants than the question to be answered
    on judicial review under
IRPA
.

(b)

The onus

[85]

The
IRPA
appropriately provides that the onus is always on the Minister to
    demonstrate, on a balance of probabilities, that a detention or continued
    detention is warranted. Once the Minister makes out a
prima facie
case
    for continued detention, the evidentiary burden then shifts to the detainee.

[86]

When,
    however, the issue is whether, because of its length and uncertain duration,
    the detention has become illegal, the
IRPA
scheme does not place the
    onus on the Minister. This is because the Minister needs only satisfy one of
    the listed criteria in s. 58 to shift the onus to the detainee. The Minister
    need not explain or justify the length of the detention and its uncertain
    duration.

[87]

In
    addition, the Minister can satisfy the onus simply by relying on the reasons
    given at prior detention hearings: see
Canada (Minister of Citizenship and
    Immigration) v. Thanabalasingham
, 2004 FCA 4, 236 D.L.R. (4th) 329, at
    paras. 14-16. Although the
IRPA
provides that each detention review
    requires a fresh determination as to whether the detention should continue, and
    that prior decisions are not binding, it is apparent that, in practice, each
    hearing is not truly a
de novo
hearing. This is because each detention
    review must take into consideration all existing factors related to custody,
    which include the reasons for previous detention orders.

[88]

As
    explained in
Thanabalasingham
, even though prior detention decisions
    are not binding at subsequent reviews, the reviewing members must set out
    clear and compelling reasons for departing from them (at para. 10). Such
    reasons can include, for example, relevant new evidence or a reassessment of
    prior evidence based on new arguments (at paras. 6-10). However, given the
    requirement for new evidence or new arguments and given that the Minister can
    rely on previous decisions to establish a
prima facie
case for
    detention, previous decisions become highly persuasive at the very least.

[89]

In
    theory, a detainee, who bares an evidentiary burden in the detention review
    after the Minister establishes a
prima facie
case, could potentially
    succeed in obtaining a release by showing the facts of those prior decisions
    are wrong or at least that they have changed since that time, warranting a
    different decision. However, as the length of detention increases, it becomes
    more and more difficult to argue that an additional 30 days spent in detention
    since the last review constitutes a clear and compelling reason to depart
    from the earlier disposition.

[90]

Further,
    statistics suggest that release becomes less likely as the number of detention
    reviews undergone increases. In response to a request under the
Access to
    Information Act,
R.S.C. 1985, c. A-1, the IRB released various statistics
    from 2013 indicating that out of 1848 detained immigrants released that year,
    1698 had undergone six or less detention reviews. This suggests that they were
    released within five months of the original decision to detain. Another 125 had
    undergone from seven to 18 reviews, suggesting that they had been detained from
    five to 17 months before release. The remaining 25 detainees who were released
    in 2013 had undergone as many as 53 reviews, suggesting that after 18 months of
    detention, release becomes less likely at each successive review.

[91]

In
    contrast, on a
habeas corpus
application
,
the matter will be
    heard afresh with the Minister bearing the onus.
Habeas corpus
allows
    the court to take a step back and look at the evidence without the burden of
    previous ID decisions. The appellants will not be required to show that there
    has been a change from prior dispositions. Further, the onus on the Minister
    will be to show that the detention, despite its length and uncertain duration, is
    nonetheless legal. Simply showing that one of the listed grounds in s. 58 of
    the
IRPA
is present will not satisfy the onus.

(c)

The review process

[92]

Pursuant
    to the
IRPA
, the appellants can seek to have a court review the IDs
    decisions to continue the detention. The application for judicial review is to
    the Federal Court with leave.

[93]

From
    the perspective of the appellants, there are at least two major differences
    between the judicial review process and
habeas corpus
that contribute
    to making
habeas corpus
more advantageous to the detainee.

[94]

First,
habeas corpus
is non-discretionary.
Habeas corpus
issues as
    of right once a detainee proves a deprivation of liberty and raises a
    legitimate ground upon which to question the legality of that deprivation. In
    contrast, under the process established by the
IRPA
, leave must be
    obtained. To succeed on a leave application to the Federal Court, the detainee
    must raise a fairly arguable case for the relief proposed to be sought:
Bains
    v. Canada (Minister of Employment and Immigration)
(1990), 109 N.R. 239
    (F.C.A.) Further, judicial review is an inherently discretionary remedy and the
    court has the authority to determine at the beginning of the hearing whether
    the case should proceed (
Mission
, at para. 41). In that regard, the ID
    decision the detainee seeks to have judicially reviewed will invariably have
    been overtaken by subsequent 30-day reviews heard and decided before the
    judicial review application is heard, which will be taken into account by the
    Federal Court in exercising their discretion.

[95]

Second,
    assuming the detainee obtains leave for judicial review, he or she then bears
    the onus of showing that the IDs decision was unreasonable, incorrect, or
    procedurally unfair, depending on the issue raised.

[96]

This
    is less favourable to the detainee than
habeas corpus,
where the
    Minister bears the onus on the application. As explained in
Mission,
at para. 40:

on an application for judicial review, it is the applicant who
    must show that the federal decision maker made an error, whereas, on an
    application for
habeas corpus
, the legal burden rests with the
    detaining authorities once the prisoner has established a deprivation of
    liberty and raised a legitimate ground upon which to challenge its legality.
    This particular shift in onus is unique to the writ of
habeas corpus
.
    Shifting the legal burden on the detaining authorities is compatible with the
    very foundation of the law of
habeas corpus
, namely that a deprivation
    of liberty is permissible only if the party effecting the deprivation can
    demonstrate that it is justified. [Citations omitted.]

(d)

Additional factors militating in favour of allowing detainees to
    exercise their
Charter
right to access
habeas corpus

[97]

In
May
, the Supreme Court, after having identified the weaknesses in the
    statutory process for the review of prisoner transfer decisions, went on to
    assess the differences between the statutory scheme and
habeas corpus
purposively. According to the Court, a purposive approach to the question
    requires that we look at the entire context. In
May,
this involved
    consideration of five factors that the Court found militated in favour of
    concurrent jurisdiction and provided additional support for allowing federal
    prisoners access to
habeas corpus
(para. 65). I will consider the same
    five factors:

·

The choice of remedies and forum;

·

The expertise of provincial superior courts;

·

The timeliness of the remedy;

·

Local access to the remedy; and

·

The nature of the remedy and the burden of proof.

[98]

As
    I will explain, each of these five factors further supports the conclusion that
    the appellants ought to be allowed to exercise their
Charter
right to
    access
habeas corpus
.

(i)

Choice of remedies and forum

[99]

As
    stated in
May,
at para. 44,
habeas corpus
jurisdiction
    should not be declined merely because another alternative remedy exists and would
    appear as or more convenient in the eyes of the court. The option belongs to
    the applicant.

[100]

The detainees
    right to
habeas corpus
is guaranteed by s. 10(c) of the
Charter
and, as explained earlier, limits to it should be carefully evaluated. The
    Federal Court does not have
habeas corpus
jurisdiction, except with
    respect to a
habeas corpus
application by a member of the Canadian
    Forces serving outside Canada (
Federal Court Act,
s. 17(5)).
Habeas
    corpus
is vested in provincial superior courts and, in principle, because
    of the importance of that remedy, the governing rule is that superior courts
    should exercise their jurisdiction (
May,
at paras. 50 and 67).

[101]

Significantly,
    allowing detainees access to
habeas corpus
in the limited
    circumstances raised by these appeals will not interfere with the central
    purpose of the
IRPA
. The courts
habeas corpus
decisions will
    not affect the ultimate disposition of the immigration matters that underlie
    the detentions. The
habeas corpus
applications will deal only with
    whether detentions, when they have been very lengthy and are of uncertain
    duration, can be continued pending disposition of those immigration matters: see
    also
Idziak,
at pp. 652-653.

(ii)

The expertise of provincial superior courts

[102]

I acknowledge
    that the Federal Court has greater expertise in immigration matters than the superior
    courts and that in such matters, a superior court should, as explained in
Peiroo
,
    defer to the Federal Court. The issues raised by the appellants, however, are
    fundamentally detention decisions. Although they arise in the immigration
    context, the issues raised do not require the court to have expertise in
    immigration law. The
habeas corpus
decisions will be made weighing
    various factors, as well as
Charter
rights and values. These are by
    and large the same factors that make up the daily fare of the superior courts. The
    superior courts are closely connected with the administration of criminal
    justice, and as noted in
Mission,
at para. 57, when a loss of liberty
    is involved, the superior courts are well versed in the
Charter
rights
    that apply. Their expertise in this regard is well-established.

(iii)

The timeliness of the remedy

[103]

A hearing on a
habeas
    corpus
application in a superior court can be obtained more rapidly than a
    hearing on a judicial review application in the Federal Court. In the Federal
    Court, before a hearing can even be scheduled, leave must be obtained. Although
    leave application are to be disposed of without delay and in a summary way (
IRPA,
s. 72(2)(d)), the leave process, when added to the time required to hold the
    judicial review (somewhere between 30 and 90 days following the granting of
    leave unless the parties agree to an earlier date,
IRPA
s. 74(b)) will
    exceed the time required for a
habeas corpus
application.

[104]

The procedure
    for scheduling
habeas corpus
applications varies from province to
    province. They will, however, be heard promptly. Although this factor favours
habeas
    corpus
, I acknowledge that, given the lengthy detentions already
    experienced by the appellants, there is not the same urgency as in other
    matters where
habeas corpus
is sought.

(iv)

Local access to the remedy

[105]

The Supreme
    Court of Canada has recognized the importance of local access to
habeas
    corpus
for inmates of both provincial and federal institutions because of
    the traditional role of the court as a safeguard of the liberty of the subject:
R. v. Gamble
, at p. 635;
May
, at para. 70. Detainees in
    immigration matters who have been detained for a long period with no end to
    their detention in sight are in similarly disadvantaged positions as provincial
    and federal inmates, and they too have greater local access to a provincial
    superior court (
Mission
, at para. 47). In fairness, therefore, they should
    have the same ability to access the
habeas corpus
remedy locally.

(v)

Nature of the remedy and the burden of proof

[106]

As outlined
    earlier, in
habeas corpus
applications, once a legitimate ground is
    raised by the detainee, the onus is placed on the Minister to justify the
    lawfulness of the continued detention. This is the most significant advantage
    favouring
habeas corpus
. Also, as explained earlier, a writ of
habeas
    corpus
is issued as of right where the applicant shows that there is cause
    to doubt the legality of the detention (Sharpe, at p. 58) but a judicial review
    will only be heard if leave is granted by the Federal Court. The Federal Court
    also has the discretion not to proceed with the hearing. Finally, as noted in
May
at para. 71, the Federal Court can deny relief on discretionary grounds.

POST-HEARING SUBMISSIONS

[107]

On August 25,
    2015, this court was advised that Mvogo was removed to Cameroon and was
    therefore no longer in detention.

[108]

On September 30,
    2015, counsel for Bruzzese brought a motion in this court to stay Bruzzeses
    deportation order pending the decision in this appeal. Juriansz J.A. dismissed
    the motion: see
Chaudhary v. Canada (Public Safety and Emergency Preparedness)
,
    2015 ONCA 678. The motion judge was not persuaded that there was a serious
    issue to be tried, because the decision to remove Bruzzese to Italy was
    independent of the issues raised on appeal. Success on appeal would confirm the
    jurisdiction of the Superior Court of Justice to decide on the legality of
    Bruzzeses continued detention, but would not affect the validity of the
    deportation order. Bruzzese has since been deported.

[109]

The respondents
    took the position that Mvogos and Bruzzeses appeals were moot and should
    therefore be dismissed. Counsel for Mvogo and Bruzzese argued that while Mvogo
    and Bruzzese were no longer detained, the court should use its discretion to
    hear the appeals.

[110]

Having regard to
    the factors identified in
Borowski v. Canada (A.G.)
, [1989] 1 S.C.R.
    342, I have concluded that it is appropriate to decide Mvogos and Bruzzeses
    appeals. Both appeals were argued prior to the deportation orders in a full
    adversarial context. The interests of judicial economy would be better served
    by rendering a decision on their appeals. The appeals were limited to a
    determination of the jurisdiction of the court to hear the
habeas corpus
applications. This determination falls squarely within the competence of the
    courts to decide.

CONCLUSION

[111]

In conclusion, I
    do not consider
Peiroo
and the other cases confirming the
Peiroo
exception
    to stand for the principle that
habeas corpus
is always precluded in
    immigration-related matters. Nor do I view the
IRPA
as having 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) where, as here, the
    decision sought to be reviewed is the continuation of a lengthy detention of
    uncertain duration.

[112]

In
R. v.
    Gamble
, at p. 641, the Supreme Court emphasized that in matters of
    liberty:

[a] purposive approach should  be applied to the
    administration of
Charter
remedies as well as to the interpretation of
Charter
rights, and in particular should be adopted when
habeas
    corpus
is the requested remedy, since that remedy has traditionally been
    used for, and is admirably suited to, the protection of the citizens'
    fundamental right to liberty and the right not to be deprived of it except in
    accordance with the principles of fundamental justice. The superior courts
    in Canada have, I believe, with the advent of the
Charter
and in
    accordance with the sentiments expressed in the
habeas corpus
trilogy
    of
Miller
,
Cardinal
and
Morin
displayed both creativity and flexibility in adapting the traditional remedy of
habeas corpus
to its new role.

[113]

The applicants, who
    have been in immigration detentions for lengthy periods and whose detentions
    are to continue for an uncertain duration, should not be deprived of their
Charter
right to
habeas corpus
. They have the right to choose whether to have
    their detention-related issues heard in the Federal Court through judicial
    review of the ID decisions, or in the Superior Court through
habeas corpus
applications.

[114]

With respect to
    the disguised extradition issue raised by Bruzzese, this issue was fully
    litigated in the Federal Court:
Bruzzese v. Canada,
2015 FC 922. This
    question is, in my view, a core immigration matter which comes within the
Peiroo
exception.

[115]

As a result, I
    would allow the appeals, set aside the order and remit the applications of
    Anawa and Chaudhary to the Ontario Superior Court of Justice for consideration
    on the merits. I would not remit Bruzzeses and Mvogos applications as they
    are no longer detained.

[116]

I would make no
    order as to costs as none were sought by the appellants.

Released: October 20, 2015

Paul S. Rouleau J.A.

I agree R.G.
    Juriansz J.A.

I agree C.W.
    Hourigan J.A.

[1]
The respondents cited
Canada (Minister of Citizenship and Immigration) v.
    Romans
, 2005 FC 435, 44 Imm. L.R. (3d) 165. In that case, the Federal Court
    upheld the IDs decision to release Romans, a chronic paranoid schizophrenic
    man held in immigration detention for more than five years, with no end to his
    detention in sight. However, he was not released simply because of the
    detentions length and uncertain duration. The ID also took into account that
    there was an alternative to immigration detention under the Ontario
Mental
    Health Act
, which would have ensured that Romans obtained the treatment he
    needed until he ceased to be a danger to himself and to the public. In fact,
    within 48 hours of the ID decision, all that changed was that Romans detention
    at the Penetanguishene Mental Health Centre went from being under the
IRPA
to
    being under the Ontario
Mental Health Act.


WARNING

THIS
    IS AN APPEAL UNDER THE

CHILD
    AND FAMILY SERVICES ACT

AND
    IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45. (7)
The court may make an order,

(a)     excluding a
    particular media representative from all or part of a hearing;

(b)     excluding
    all media representatives from all or a part of a hearing; or

(c)     prohibiting
    the publication of a report of the hearing or a specified part of the hearing,

where the
    court is of the opinion that the presence of the media representative or
    representatives or the publication of the report, as the case may be, would
    cause emotional harm to a child who is a witness at or a participant in the
    hearing or is the subject of the proceeding.

45. (8)
No person shall
    publish or make public information that has the effect of identifying a child
    who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the childs parent or foster parent or a member of the childs
    family.

45. (9)
The court may make an order prohibiting the
    publication of information that has the effect of identifying a person charged
    with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of Toronto v. E.O., 2015
    ONCA 696

DATE: 20151019

DOCKET: M45587

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Applicant (Respondent in Appeal)

and

E.O.

Respondent (Appellant in Appeal)

E.O., appearing in person

Erin Rose, for the applicant (respondent in appeal)

Heard:  October 5, 2015

ENDORSEMENT

Overview

[1]

The proposed appellant is the biological mother of a child who is the
    subject of child protection proceedings. On April 29, 2014, McLeod J. of the
    Ontario Court of Justice ordered that the child be made a Crown ward, for the
    purpose of adoption, without parental access. The childs father appealed that
    decision to the Superior Court of Justice and, on March 31, 2015, his appeal
    was dismissed. He appealed further to this court. The mother, who did not
    participate in the earlier proceedings, now also wishes to appeal the March 31,
    2015 decision (the Appealed Decision) to this court and brought a motion for
    an order granting her an extension of time to file a Notice of Appeal.

[2]

The mothers motion was heard on October 5, 2015, the scheduled hearing
    date for the fathers appeal of the Appealed Decision. The mother and the
    Childrens Aid Society of Toronto (the CAS) filed affidavits at the hearing
    of the motion. We dismissed the mothers motion, with reasons to follow, and
    proceeded to hear the fathers appeal.

[3]

The following are our reasons for dismissing the mothers motion
    for an extension of time.

[4]

We first provide some background,
    for context. Some details, which are undisputed, are taken from prior judicial
    decisions relating to the child. We then consider the test applicable on a
    motion to extend time to file a Notice of Appeal and explain why it is not met
    in this case.

Background

[5]

The child who is the subject of this appeal  a daughter born November
    19, 2011  is now almost four years old. The mother has not had contact with
    the child since April 11, 2012.

[6]

At the time of the childs birth, the mother was incarcerated for
    fraudulently impersonating a nurse. The father fronted the employment agency
    that hired her out to work as an unqualified nurse. The father cared for the
    child until she was just under five months of age when he too was incarcerated
    for his role in the fraud. While it appeared to the CAS that the father was
    able to care appropriately for the child, the CAS was concerned that the mother
    posed a risk to the child as a result of her history of unstable mental health,
    a pattern of failure to attend to the medical needs of her children, her lack
    of cooperation with the CAS and the fact that she was serving a substantial
    custodial sentence. As a result, the Supervision Order placing the child with
    the father included conditions relating to the mother, including one
    restricting her access to the child.

[7]

After the father was incarcerated, there was no one to care for the
    child. A finding that the child was in need of protection was made on an
    uncontested basis on June 13, 2012. She has been in the continuous care and
    custody of the CAS since then and has resided with her foster mother  and
    proposed adoptive parent  throughout that time.

[8]

On February 12, 2013, the CAS filed an Amended Status Review Application
    and sought an order of Crown wardship with no access for the child.

[9]

On January 28, 2014, the mother, represented by counsel, made an oral
    motion requesting an extension of time to serve and file an Answer and Plan of Care
    in relation to the Crown wardship proceedings. Justice Spence of the Ontario
    Court of Justice dismissed her request, giving oral reasons on the same day. On
    February 11, 2014, the mother served the CAS with a Notice of Appeal of Spence
    J.s order.

[10]

When
    released from custody, the father began exercising access to the child. He opposed
    the CAS application for Crown wardship and sought to regain custody of the
    child. The matter proceeded to trial by way of a status review hearing, held
    over five days in April 2014. On April 29, 2014, the trial judge made the child
    a Crown ward, for the purpose of adoption, without parental access. The mother
    did not attend or participate at the trial.

[11]

On
    March 3, 2015, the CAS brought a motion in the Superior Court of Justice to
    dismiss the mothers appeal of Spence J.s order denying an extension of time
    to file an Answer and Plan of Care for delay. Duty counsel assisted the mother
    and made submissions that included facts not in evidence before the court. In
    his endorsement granting the CAS motion, Perkins J. noted that the mother had
    failed to comply with a court order to perfect her appeal by November 9, 2014.
    He also noted that an appeal by the father to the Superior Court of Justice was
    pending. He wrote that, even if the facts not in evidence were true, it was
    highly unlikely that they would result in an order overturning the order under
    appeal, given the time that had elapsed. Further, the mother had not explained
    her delay.

[12]

The
    fathers appeal of the trial judges decision, making the child a Crown ward, was
    heard at the Superior Court of Justice on March 5, 2015. The father argued that
    the trial judge had made palpable and overriding errors in determining the
    facts on which he relied in ordering a Crown wardship and no parental access.
    The mother did not participate in the appeal. On March 31, 2015, the appeal
    judge released the Appealed Decision, dismissing the fathers appeal.

[13]

The
    father then appealed to this court. Since hearing the mothers motion, we have
    released reasons dismissing the fathers further appeal.

[14]

The father remains subject to a probation order that prohibits
    contact with the mother. The father violated that order by continuing an
    intimate relationship with the mother. That relationship resulted in the birth
    of another child (P) on January 10, 2015.

[15]

Following Ps birth, the mother
    voluntarily placed P into the CAS care and there is an ongoing proceeding in
    respect of her custody. The mother has exercised supervised access to P twice
    per week for two hours since January 2015. On September 18, 2015, the CAS
    issued an Amended Protection Application seeking that P be made a Crown ward
    without access for the purpose of adoption.

The Applicable Test on a Motion
    to Extend Time

[16]

The following factors are relevant
    on a motion to extend time to file a Notice of Appeal: (1) whether the
    appellant formed an intention to appeal within the relevant period; (2) the
    length of and explanation for the delay; (3) any prejudice to the respondent;
    (4) the merits of the appeal; and (5) whether the justice of the case
    requires it:
Kefeli v. Centennial College of Applied Arts and Technology
(2002), 23 C.P.C. (5th) 35 (Ont. C.A.).

[17]

We deal with these factors in
    turn.

[18]

The mothers evidence is that she
    was aware that the father was appealing the Appealed Decision and did not
    consider filing her own appeal until she attended a free legal advice session
    at a legal aid clinic on September 23, 2015, where she was advised to file a
    motion for an extension of time to file a Notice of Appeal. She followed this
    advice and filed her motion for an extension of time on September 28, 2015. The
    approximate six-month delay between the date of the Appealed Decision and the
    time at which the mother sought to file her Notice of Appeal appears to have
    arisen because she had no intention to appeal during that time. She therefore
    did not form such an intention within the relevant period, namely within 30
    days of the Appealed Decision.

[19]

In her affidavit, the mother now
    offers an explanation for her delay in appealing the order of Spence J.
[1]
However, what we must consider on this motion is the reason for her delay in
    appealing the Appealed Decision. As we discuss above, the explanation for this
    latter period of delay is that the mother did not consider appealing the
    Appealed Decision until after she attended a legal advice session at a legal
    aid clinic. The fact that she did not turn her mind to an appeal is not a
    sufficient explanation to warrant granting an extension of time.

[20]

The prejudice that must be considered
    in this case is the prejudice to the child. We reject the argument  advanced
    by counsel for the father, on behalf of the mother  that because the child is
    living with the proposed adoptive mother, there is no prejudice to the child.
    If an extension had been granted, the fathers appeal of the Appealed Decision
    would have had to be adjourned. The foster mother wishes to adopt the child as
    soon as possible. Permanency, at this juncture, is in the childs best
    interests.

[21]

Most importantly, the mothers appeal
    of the Appealed Decision is without merit. She did not participate in the
    appeal or the trial below. She is therefore not in a position to appeal the
    Appealed Decision. Even if she were, in our view, she would have no chance of
    success. The mother has not seen the child in nearly three and one half years.
    Moreover, her affidavit discloses that she is on bail from an immigration hold;
    she received an unfavourable parenting capacity assessment in June 2015 (which
    she contests); and she is on the waiting list for a special treatment program
    for individuals with severe and persistent mental illness. Accordingly, it
    would not be in the childs best interests to remove her from her foster
    mothers care and place her in the mothers custody.

[22]

Having regard to all of the
    foregoing, the justice of the case does not require an extension of time.

[23]

The motion is accordingly dismissed.

Alexandra Hoy A.C.J.O.

K.M. Weiler J.A.

G. Pardu J.A.

[1]
She says her counsel was ineffective and abandoned her case; she was denied
    legal aid when that counsel provided an unfavourable opinion in October 2014;
    she was incarcerated when the CAS sent her documents in October 2014; while she
    was incarcerated and later, while she was on immigration hold, she did not have
    access to those documents; and, when she was released from immigration hold on
    January 15, 2015 on bail, she was recovering from a caesarean section surgery
    and was unable to pick up her property  including the court documents  until
    February 2015.


WARNING

THIS
    IS AN APPEAL UNDER THE

CHILD
    AND FAMILY SERVICES ACT

AND
    IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45. (7)
The court may make an order,

(a)     excluding a
    particular media representative from all or part of a hearing;

(b)     excluding
    all media representatives from all or a part of a hearing; or

(c)     prohibiting
    the publication of a report of the hearing or a specified part of the hearing,

where the
    court is of the opinion that the presence of the media representative or
    representatives or the publication of the report, as the case may be, would
    cause emotional harm to a child who is a witness at or a participant in the
    hearing or is the subject of the proceeding.

45. (8)
No person shall
    publish or make public information that has the effect of identifying a child
    who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the childs parent or foster parent or a member of the childs family.

45. (9)
The court may make an order prohibiting the
    publication of information that has the effect of identifying a person charged
    with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Children's Aid Society of Toronto v. P.M., 2015
    ONCA 695

DATE: 20151019

DOCKET: C60392

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Childrens Aid Society of Toronto

Respondent (Applicant)

and

P.M.

Appellant (Respondent)

Lance Carey Talbot, for the appellant (respondent)

Erin Rose, for the respondent (applicant)

Heard:  October 5, 2015

On appeal from the judgment of Justice Penny of the Superior
    Court of Justice, dated March 31, 2015.

By the Court:

Overview

[1]

The appellants daughter  born
    November 19, 2011  is now almost four years old. She has been the subject of
    child protection proceedings almost since she was born. She has been in the
    continuous care and custody of The Childrens Aid Society of Toronto (the CAS)
    since she was just under five months old, and has resided with her foster
    mother  and proposed adoptive parent  throughout that time.

[2]

The finding that the appellants
    daughter was a child in need of protection was made on an uncontested basis on
    June 13, 2012. A status review was held when the child was two years old. On
    April 29, 2014, the trial judge made the child a Crown ward, for the purpose of
    adoption, without parental access. The appellant appealed that decision to the
    Superior Court of Justice, arguing that the trial judge made palpable and
    overriding errors in determining the facts on which he relied in making his
    order.

[3]

On March 31, 2015, the appeal
    judge dismissed the appeal, providing detailed reasons addressing each of the
    errors allegedly made by the trial judge. The appellant now appeals further to
    this court. He renews the arguments rejected by the appeal judge. He also
    brings a motion for leave to adduce fresh evidence on appeal and argues that this
    evidence compels a different conclusion than that arrived at by the trial
    judge. He seeks a custody order in his favour or an order of Crown wardship
    with access.

[4]

We agree with the appeal judge
    that the trial judge made no palpable and overriding errors in determining the
    facts. The fresh evidence does not affect the disposition of the appeal. It continues
    to be in the childs best interests to remain a Crown ward with no access and
    to be adopted by her foster mother.  Accordingly, we dismiss the appeal.

Background

[5]

Some background provides the necessary
    context.

[6]

The childs mother fraudulently impersonated
    a nurse on multiple occasions and the childs father fronted the employment
    agency that hired her out to work as an unqualified nurse. The child was born while
    the mother was incarcerated for her fraudulent activity. The appellant cared
    for the child until she was just under five months of age when he too was
    incarcerated for his role in the fraud.

[7]

While it appeared to the CAS that
    the appellant was able to care appropriately for the child during that period,
    the CAS was concerned that the mother posed a risk to the child as a result of
    her history of unstable mental health, a pattern of failure to attend to the
    medical needs of her children, her lack of cooperation with the CAS and the
    fact that she was serving a substantial custodial sentence. As a result, the
    Supervision Order placing the child with the appellant included conditions
    relating to the mother and her access to the child, and the appellants
    co-operation with the CAS.

[8]

The trial judge found that the
    appellant breached those conditions and was dishonest with the CAS.

[9]

When the appellant was
    incarcerated for his role in the fraud, there was no one to care for the child.
    She was made a CAS ward and placed in the care of her foster mother.

[10]

In March 2013, the appellant was
    released on probation and began exercising access to the child. He opposed the
    Crown wardship order sought by the CAS and, as indicated above, the matter
    proceeded first to trial and was then unsuccessfully appealed.

[11]

The appellants probation order
    prohibited any contact with the mother.

Alleged Palpable and Overriding Errors

[12]

The appeal judges thorough
    reasons were responsive to the grounds of appeal raised by the appellant. As we
    have indicated, we agree with the appeal judge that the trial judge did not
    make any of the alleged palpable and overriding errors. It is unnecessary for
    us to repeat the appeal judges detailed analysis.

The Proposed Fresh Evidence

[13]

The appellant submits that the
    proposed fresh evidence compels this court to order that he regain custody of
    the child for the following reasons: (a) it dispels the trial judges concern
    about the impact of the appellants and the mothers criminal conduct on the
    safety of the child: time has passed and the appellant and the mother are attempting
    to rebuild a new life together; (b) it addresses the trial judges concern
    regarding his unusual degree of social isolation; and (c) his Plan of Care
    addresses the needs of the child.

[14]

The appellant further submits that
    if custody is not ordered in his favour, the fact  not disclosed at trial
    that the childs mother is Jewish weighs in favour of an access order. He
    argues that, because the child is biracial, as well as half-Jewish, providing
    access to the appellant would permit the child to appreciate her unique
    cultural heritage.

[15]

It is therefore helpful to
    consider what the fresh evidence discloses.

[16]

The evidence reveals that the
    appellant breached his probation order by continuing an intimate relationship
    with the childs mother. This relationship resulted in the birth of another
    child (P) in early 2015. The appeal judge was not aware of this fact.

[17]

Following Ps birth, the mother
    voluntarily placed P into the CAS care and there is an ongoing proceeding in respect
    of her custody. The appellant is currently exercising access to P for one hour
    per week. The mother has, separately, been exercising access to P. The
    appellant deposes that he and the mother plan to reunite and raise P together
    as a family once his probation order prohibiting contact with the mother
    expires on February 4, 2016.
[1]
He wants the child who is the subject of these proceedings to join them.

[18]

The appellant provides evidence
    that he has recently reached out to a community Family Support Organization that
    can provide help and support with parenting; has identified an 8-week
    therapeutic play group that can help the child if she is returned to his care;
    and, in the past month, has gone to a psychologist for an assessment. He says
    he is committed to working with a psychologist to ensure that his parenting of
    the child is strong.

[19]

The fresh evidence also includes
    an affidavit from the mother. She deposes that she has been working on
    addressing many of the issues identified by the CAS and hopes to be slowly
    integrated into the childs life if the child is returned to the appellants
    care. The mother also disclosed that she is Jewish and would raise the child in
    that faith.

[20]

Finally, the fresh evidence
    includes a Plan of Care for the child, prepared by the appellant.

Admission and Effect of Fresh Evidence

[21]

Section 69(6) of the
Child and
    Family Services Act
, R.S.O. 1990, c. C.11 (
CFSA
) sets out that the
    court may receive further evidence relating to events that took place after the
    decision being appealed from.

[22]

Fresh evidence should be admitted in
    child protection proceedings if: (a) it could not have been adduced before; (b)
    it is highly relevant in that it enables the court to make determinations on an
    accurate picture of the situation at hand; (c) it is potentially decisive as to
    the childs best interests; (d) it is credible; (e) it is uncontroverted; and
    (f) it bridges the gap between the evidence submitted in prior hearings and the
    appeal:
Catholic Childrens Aid Society of Metropolitan Toronto v. M. (C.)
,
    [1994] 2 S.C.R. 165, at p. 190.

[23]

A flexible standard should be
    adopted for the admission of fresh evidence in family law cases
involving
    children in circumstances where accurate and up-to-date information concerning
    the best interests of the child, when considered with the evidence adduced at
    trial, might reasonably affect the outcome of the appeal
:
Childrens Aid Society of Oxford Country v. W.T.C.
, 2013 ONCA
    491,
308 O.A.C. 246,
at para. 43.

[24]

Despite this flexible standard, we
    have reservations about the admissibility of the fresh evidence. It largely
    consists of affidavits of the appellant and the mother. Both have been
    convicted of fraud and demonstrated an ongoing pattern of deception and
    non-compliance with court orders. We have concerns about the credibility and
    reliability of parts of the fresh evidence.
[2]
Furthermore, some of the evidence could have been adduced before: the religious
    heritage of the child could have been raised at trial and the birth of P. could
    have been disclosed to the appeal judge. However, portions of it  including
    the evidence of non-compliance with the probation order and the birth of P
    are relevant and uncontroverted.

[25]

In any event, the fresh evidence
    falls far short of warranting interference with the trial judges conclusion
    that Crown wardship without access is in the best interests of the child.

[26]

In determining whether Crown
    wardship was appropriate, the trial judge applied the test set out in
Catholic
    Childrens Aid Society of Metropolitan Toronto v. M. (C.)
and recently confirmed by this
court in
Childrens
    Aid Society of Oxford County v. W.T.C.
This test requires a court to assess
    whether the child continues to be in need of protection and, if so, which of
    the available range of orders is in the childs best interests. As the appeal
    judge noted, the appellants relationship with the mother lied at the heart of
    the CAS and the trial judges concerns about returning the child to the
    appellants care. That concern was not limited to the fact that, as a result of
    the appellant and the mother being partners in crime, the child was left
    without a responsible adult to care for her. The fresh evidence reinforces the
    appellants intention to reunite with the mother and does not dispel the very
    serious concerns that the CAS and the trial judge expressed with respect to the
    mother.

[27]

Further, despite the proposed Plan
    of Care and the efforts recounted in the fresh evidence, we are not persuaded
    that the appellant has the necessary support to raise the child. The Plan of
    Care is not compelling. It contemplates that the appellant would continue to
    work and would immediately send the freshly uprooted child to a full-time
    daycare. He names someone as a back-up caregiver to provide support to him
    until he can reunite with the mother, but no meaningful details are provided
    and there is no corroboration from the named individual. The appellant is only
    now committing to work with a psychologist and the mothers professed steps to
    address the CAS concerns are also very recent. As the trial judge commented,
    multiple issues of parental dysfunction cannot quickly change.

[28]

Nor does the fresh evidence
    warrant interfering with the trial judges decision to deny an access order in
    favour of the appellant. There is a presumption against access where a child
    has been made a Crown ward. The party seeking access must rebut that
    presumption by satisfying both elements of s. 59(2.1) of the
CFSA
: he
    must show that his relationship with the child is beneficial and meaningful to
    the child and that the ordered access will not impair the childs future opportunities
    for adoption.

[29]

In
    order to satisfy the first requirement, the party seeking access must prove, on
    a balance of probabilities, that his existing relationship with the child
    brings a significant, positive advantage to the child. It is not sufficient
    that there are some positive aspects to the relationship:
Childrens Aid
    Society of Niagara Region v. C. (J.)
(2007), 281 D.L.R. (4th) 328 (Ont.
    Div. Ct.), at para. 29
.
At trial, the
    appellant described his relationship with the child as follows: [s]hes very
    comfortable with me. But shes not attached to me, Im aware of that. The
    trial judge found that the appellant had not established much more than a
    friendly relationship with the child and that there was no evidence in this
    case capable of meeting the meaningful and beneficial standard. Moreover, the
    trial judge concluded that the appellant had not met his onus under the second
    branch of s. 59(2.1) to establish that access would not impair the childs
    opportunity for adoption.

[30]

The appeal judge found that the
    evidence from continuing post-trial access visits did not disclose any dramatic
    development in the appellants relationship with the child that warranted
    reconsideration of the trial judges conclusion regarding that relationship.
    The appeal judge also agreed that the appellant had not demonstrated that his
    continued access would not prejudice the possibility of adoption.

[31]

The fresh evidence adduced by the
    appellant does not provide any further proof of a meaningful and beneficial
    relationship between him and the child, as required by s. 59(2.1) of the
CFSA
.
    Furthermore, the fresh evidence does not include proof that continued access
    would not prejudice the possibility of adoption.

[32]

The child should not be left in
    limbo. She is nearly four and her emotional ties are to her foster mother. The risk
    to the child of a disruption of her secure and stable relationship with her
    foster mother and the permanency it affords is obvious. It remains in the
    childs best interests to be a Crown ward without continuing access by the
    appellant.

[33]

The appeal is accordingly
    dismissed.

Released:  AH  OCT 19 2015

Alexandra Hoy A.C.J.O.

K.M. Weiler J.A.

G. Pardu J.A.

[1]
The appeal judge indicated that the restriction expires in April, 2016.

[2]
We note that the affidavit filed by the mother  who is Kenyan  in support of
    her motion for an extension of time to file a notice of appeal of the decision
    of the Superior Court of Justice appeal judge disclosed both that she is
    currently on bail from an immigration hold and that she received an unfavourable
    parenting capacity assessment in June, 2015 (albeit one that the mother
    contests). These material facts were not disclosed in the proposed fresh
    evidence.