For refugee and immigration lawyers

Habeas Corpus

Legal Aid Ontario (LAO) covers meritorious habeas corpus applications to the Ontario Court of Appeal for immigration detainees who have been in custody for a minimum of 180 days. A habeas corpus application will compel the Superior Court to examine the reason(s) for the detention and determine if those reasons are valid.

LAO process

Every LAO immigration client in detention for a minimum of 180 days is eligible to receive an opinion or merit assessment certificate for three hours. A refugee appellate panel lawyer will examine the reasons why the client has been detained and provide an opinion regarding the likelihood of success of a habeas corpus application.

The merits of the opinion will be evaluated by LAOs Refugee and Immigration Area Committee, typically within seven business days. If the committee determines there is merit, a habeas corpus application certificate will be granted for up to 16 hours, plus hearing time.

Background

On October 20, 2015, the Ontario Court of Appeal determined that immigration detainees who want to challenge the legality of their detention are not limited to Federal Court judicial reviews of Immigration Division decisions, but may choose instead to apply to the Superior Court for habeas corpus. The decision, Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 (CanLII), changes the legal landscape for immigration detainees by providing them with a potentially powerful new legal remedy.

While the decision may be appealed to the Supreme Court of Canada and overturned there, at this point in time LAO has decided to ensure the availability of legal aid coverage for habeas corpus applications to the Ontario Court of Appeal.

Questions

Contact your LAO refugee panel officer.