Re Shepherd and Minister of Employment & Immigration*
(1989) 70 O.R. (2d) 765 (C.A.)
APPEAL from a judgment of Austin J., infra, dismissing an application for a writ of habeas
corpus ad subjiciendum with certiorari in aid to review a deportation order.
D. Fletcher Dawson, for appellant.
Urszula Kaczmarozyk, for Crown, respondent.
The judgment appealed from is as follows:
October 20, 1989.
AUSTIN J.:—This is an application for a writ of habeas corpus ad subjiciendum with certiorari in
aid. The applicant is an American citizen who has been detained in Canada and ordered deported to
the United States. Although habeas corpus is normally resorted to where the detention is attacked,
in the present case, as in most "immigration cases", the real attack is not on the detention order but
upon the deportation order.
Joseph Arlan Shepherd (the spelling on his birth certificate) was born in Sweetwater,
Tennessee, on January 5, 1953. He was married in the United States, had two sons and was
divorced in 1976. In 1978 he was living in Tennessee when he was charged with a number of
offences including two rapes, two murders and aggravated assault of a police officer. He was
arrested and imprisoned pending trial on those charges. He escaped custody and came to Canada.
For some years he lived in London, Ontario, under the name of James Joseph Tripp. He was
employed from time to time. He had a common law relationship of some duration and two children
were born of that relationship, a son in 1981 and a daughter in 1986.
In November, 1988, Tripp was identified as Shepherd. On November 18, 1988, he was
arrested by or on behalf of Canadian immigration authorities and has been in custody since that
Section 27 of the Immigration Act, R.S.C. 1985, c. I-2, authorizes an inquiry to be made
where there is information that a resident is a person who, if he were to apply for entry as an
immigrant, would not be permitted to enter the country. In the event that the inquiry so concludes,
the individual in question may be given a departure notice or be made the subject of a deportation
Application for leave to appeal to S.C.C. and stay of execution dismissed December 14, 1989
(Dickson C.J.C., Wilson, La Forest, Sopinka and Conr JJ.).
order. In the case of a notice, a deadline for departure is stipulated but the destination is not. In the
case of an order, the Act stipulates conditions which determine the destination. In Shepherd's case,
it would be the United States. The distinction between a departure notice and a deportation order
has significance in this case because with respect to at least one of the murder charges, the penalty
upon conviction could be capital punishment.
An inquiry was commenced on Monday, November 21, 1988. It was continued on
November 28 and December 8, 1988, and on February 3, 1989. It was concluded on February 16,
1989. There were in effect four allegations against Shepherd, each being founded on a provision of
1. That he had entered Canada as a visitor and had remained after he ceased to be a visitor;
2. that he was unable or unwilling to support himself;
3. that he had worked in Canada contrary to the Act and regulations;
4. that he had been convicted of an offfence under the Criminal Code.
The adjudicator appointed under the Act found on February 16, 1989, that items 2, 3 and 4
had been established. The conclusion on item 2 was based upon an application for and receipt of
benefits from the Ministry of Community and Social Services. The conviction was in 1987 for
"soliciting". The adjudicator ordered that Shepherd be deported.
THE HABEAS CORPUS APPLICATION
This application was launched the following day, February 17, 1989. Counsel for the
Minister had been advised on February 15th that in the event a deportation order was made, this
application would be brought. Counsel for the Minister was advised on February 16th that the
application would be returnable at 9:15 a.m. on the 17th in London. Counsel for the Minister was in
Toronto and advised counsel for Shepherd in London that he would not be appearing on the
application but that he was not consenting to it.
The application came on before McKeown J. at 9:15 a.m. on February 17, 1989. He held
that "[t]his court has jurisdiction to review the detention of the Applicant . . ." and ordered the writ
to be returned at the earliest possible date, in London or Toronto. In the meantime, he ordered that
Shepherd remain within the jurisdiction of the court and that he not be removed by the Minister.
To complete the background, two other matters should be noted.
The first is that during the inquiry Shepherd claimed refugee status. This claim was based
upon his being a member of a group requiring special protection, namely, those people in custody in
the United States charged with sexual offences. A hearing was held with respect to this claim on
December 29, 1988. A decision was handed down on February 3, 1989, dismissing the claim.
The other matter to be noted is that s. 83.1(1) of the Act provides for a review of the
adjudicator's decision to issue a deportation order. Such a review is by the Federal Court of Appeal,
but only with leave. An application for leave was made on behalf of Shepherd on March 2, 1989.
That application was dismissed by the Federal Court of Appeal, without reasons, on April 26, 1989.
APPLICANT'S POSITION ON THE APPLICATION FOR HABEAS CORPUS
As I understand the submissions made on behalf of Shepherd, there are two complaints:
(A) The deportation proceedings were carried out in such a manner as to deny Shepherd
fundamental justice. As a result, the adjudicator lost jurisdiction to make the order he did.
(B) The deportation proceedings were really a disguised extradition carried out in such a
manner as to deny Shepherd the benefit of a provision in the extradition treaty between
Canada and the United States, thereby violating his rights under the Canadian Charter of
Rights and Freedoms.
A. Denial of fundamental justice
This part of Shepherd's case consists of five specific points:
1. opening the inquiry to the media;
2. refusing to issue subpoenas;
3. refusing an adjourment;
4. refusing to consider an argument;
The Act, s. 29(2) and (3), provides that an inquiry shall be held in camera, with two
exceptions. One is where the person being investigated requests or permits a person or persons to
attend and the adjudicator is satisfied that such attendance will not impede the inquiry. The second
exception is where a member of the public
persuades the adjudicator that opening the inquiry to the public would not impede it and that neither
the subject of the inquiry nor any member of his family would be adversely affected.
The discovery and arrest of Shepherd excited great interest on the part of the media in
Canada and the United States. Shepherd's family here were besieged and the media applied
formally for the inquiry to be made public.
his was resisted by Shepherd. No evidence was received although the media tendered a
sheaf of newspaper clippings, apparently to show that there had already been so much coverage that
more could not possibly adversely affect Shepherd or his family. Counsel for the media submitted
that the media, as part of the public, had a right to attend and that in effect, the onus was on
Shepherd to establish adverse effect. Counsel for Shepherd relied on s. 29(3) as placing the onus on
The adjudicator ruled in favour of the media saying: "I'm going to find that the public
interest in this case outweighs any adverse effects that may be suffered on you or your family. "
Counsel for Shepherd now argues that the adjudicator reversed the statutory onus, and in
doing so, in the circumstances of this case, adversely affected Shepherd's ability to defend himself.
It is argued that the adjudicator thereby lost jurisdiction.
The adjudicator was placed in a very difficult position. There was understandably a great
deal of interest on the part of the public, at least in London and Tennessee. In view of the nature of
the specific charges outstanding against Shepherd, there would also be some question as to whether
opening the inquiry to the public would adversely affect Shepherd by inhibiting him. In the result,
Shepherd himself refused to testify. It seems to me that it would be highly improbable that making
the hearing public would beneficially affect his family and that accordingly, the adjudicator might
well have ruled the other way.
Shepherd, however, is in a Catch 22 situation in that it is not at all clear that the admission
of the public to the hearing did in fact inhibit him. The hearing of this habeas corpus proceeding is
also public and if Shepherd was inhibited or limited in some fashion at the inquiry, there is
presumably no way in which he can in these proceedings establish that fact. In these circumstances,
therefore, I am unable to conclude that he was prejudiced or that the adjudicator lost jurisdiction.
2. Refusal of subpoenas
One of the arguments put forward on behalf of Shepherd was and is that the deportation
proceedings were really an extradition proceeding in disguise. To establish this proposition, counsel
for Shepherd asked that the adjudicator issue subpoenas to a newspaper reporter and two
policemen. The reporter was said to have interviewed the district attorney in Tennessee responsible
for prosecuting Shepherd and to have heard him make statements that could support a finding that
the deportation proceedings were really a disguised extradition. The two policemen were thought to
have similar information.
The adjudicator refused to issue the subpoenas. He took.the position, as I understand this
reasons, that he only had to decide four questions, namely, the four set out above under the heading
inquiry and that whether or not the proceedings were a disguised extradition was not relevant in
deciding those four questions.
Counsel for Shepherd does not quarrel with that reasoning. He points out, however, that in
the event the adjudicator found against Shepherd on any of the four questions, there would then be
an additional question to decide, namely, whether to issue a departure notice or a deportation order.
In making that decision, s. 32(7)(a) of the Act requires the adjudicator to have "regard to all the
circumstances of the case". Counsel for Shepherd argues that one such circumstance is whether or
not this proceeding was really an extradition in disguise. Counsel also noted that when the
subpoenas were asked for, it was clearly pointed out that the evidence in question was wanted, inter
alia, for the purpose of a decision under s. 32(7)(a).
That this is so is made clear in counsel's letter of February 10, 1989, to the adjudicator. In
refusing to issue the subpoenas, the adjudicator did not deal expressly with this second reason for
wanting the witnesses. He did recognize that he had to decide the question whether to issue a
departure notice or a deportation order and that in so doing, he had to consider all the circumstances
of the case. It appears that he either overlooked the allegation of disguised extradition in this
context or chose to regard it as not being one of the "circumstances of the case". In
either of these events, that might well have caused him to lose jurisdiction.
3. Refusal to adjourn
In order to develop evidence on the allegation as to disguised extradition and possibly on the matter
of the four questions referred to above under the heading inquiry, counsel applied under the Privacy
Act, R.S.C. 1985, c. P-21, to the Ministry of Employment and Immigration for the contents of the
Ministry's file on Shepherd.
Time passed and nothing was heard from the Ministry on the subject. On February 15,
1989, counsel for Shepherd telephoned the Ministry and was advised that there was a file, that it
was approximately 500 pages in length, that it was necessary to review it before releasing it,
that approximately 120 pages had been reviewed thus far, that 103 pages could be released almost
immediately and that it would require approximately six weeks to two months to complete the
Counsel advised the adjudicator of this situation on the following day and requested that the
inquiry be adjourned pending receipt of the material.
The adjudicator refused the adjournment upon the grounds that the inquiry had been going
since November 21, 1988, counsel had had ample opportunity to gather evidence and there was no
assurance that there was anything of value in the Ministry's file.
In reviewing both the refusal to issue subpoenas and the refusal to adjourn, it should be
noted that those events occurred on February 16, 1989. Both involved evidence which was not
immediately available and about which little was known. The habeas corpus application was heard
on September 28th and October 5, 1989, over seven months later. There was no indication on the
habeas corpus application whether the witnesses in question had been interviewed, whether any
attempt had been made to examine them under oath, whether the material from the Ministry file had
been received and, if received, whether there was anything helpful in it.
While the adjudicator’s rulings are to be judged as of February 16th, the total silence as to
the intervening months suggests that Shepherd was not prejudiced by those rulings.
4. Refusal to consider argument
Counsel for Shepherd argued that if extradition proceedings had been used, Shepherd would
have had the benefit of art. 6 of the Extradition Treaty Between Canada and the United States of
America. That article provides that:
When the offense for which extradition is requested is punishable by death under the laws
of the requesting State and the laws of the requested State do not permit such punishment
for that offense, extradition may be refused unless the requesting State provides such
assurances as the requested State considers sufficient that the death penalty will not be
imposed, or if imposed, will not be executed.
Counsel's argument, in effect, was that where deportation procedures are used in
circumstances such as these, s. 7 of the Charter operates so as to take away form the adjudicator the
choice between a departure notice and a deportation order and leaves him with only the power to
give a departure notice.
Counsel also argued that the adjudicator refused to consider that argument. In making that
submission, counsel relied on the statement of the adjudicator that: "I'm not going to go into any
more of these Charter arguments at this stage."
In my view, it is not at all clear that the adjudicator meant that he was refusing to consider
that argument. A reading of the transcript suggests equally that he had considered it earlier and was
saying simply that he was not going to consider it again.
Before leaving this point, one other matter should be noted. Section 32(7) of the Act sets out
the conditions under which a departure notice may be issued instead of a deportation order. One of
those conditions is that "that person will leave Canada on or before the date specified in the notice"
This condition was discussed at the inquiry on February 16, 1989: transcript p. 77, lines 7 to
33. The adjudicator held that the onus was on Shepherd to satisfy him that Shepherd would leave a
Canada voluntarily before a certain date and that as there was no evidence at all that he would leave
Canada, the adjudicator had no alternative but to make a deportation order. In this habeas corpus
proceeding, there has been no attack on that finding of fact. Section 32(6) of the Act imposes
positive duty on the adjudicator b to make a deportation order in certain circumstances, circum-
stances which existed here. Section 32(7) in a sense provides for exceptions but requires certain
conditions to be met. One of those conditions not having been met, the adjudicator had no
alternative but to make the order he did.
Where a person is detained for an inquiry, s. 103(6) of the Act requires that the reasons for
detention be reviewed by an adjudicator every seven days. If, on review, the adjudicator is satisfied
that the person poses no danger to the public and will appear for d his inquiry, the person is to be
released on appropriate terms.
The adjudicator who conducted the seven-day reviews on Shepherd's detention was the
same person who conducted the inquiry. One of the questions to be answered on the inquiry is
whether a departure notice or a deportation order should be e issued. That question involves an
assessment as to whether or not the person would leave Canada voluntarily should he be granted a
departure notice. It was argued on behalf of Shepherd that this latter question was so closely related
to the second question to be answered on the seven-day reviews, that to have the same person f
dealing with both, where there had been multiple reviews, raised a reasonable apprehension of bias.
That is, that having repeatedly come to the same conclusion on the seven-day reviews, the adjudi-
cator, whoever he or she might be, would be influenced by those review decisions. There was no
suggestion of bias in fact.
The similarity or relationship of the questions does not strike 9 me as such as to give rise to
any reasonable apprehension of bias.
B. Extradition in disguise?
The theme underlying many of the arguments raised on behalf of Shepherd was that this
was really what the cases have referred h to as a "disguised extradition". That is, that for reasons
unknown to Shepherd, Canadian authorities decided to take the initiative and to bring deportation
proceedings against Shepherd, not for the purpose of ridding the country of him, but for the purpose
of turning him over to American or Tennessee authorities. By taking the initiative, it is argued,
Canada avoids having to consider art. 6 of the extradition treaty. Looking at it from Shepherd's
perspective, he is deprived of the possible benefit of art. 6.
It was argued on behalf of Shepherd that this use of deportation procedures to remove an
individual from Canada to a country where he potentially faces a death penalty contravenes s. 7 of
the Charter, having regard to the availability of extradition and the possible protection from capital
punishment available to an individual removed by extradition.
The Supreme Court of Canada dealt with a similar argument, although not in a capital
punishment case, in United States of America v. Allard (1987), 40 D.L.R. (4th) 102, 33 C.C.C. (3d),
501,  1 S.C.R. 564. At p. 110, La Forest J. speaking for himself, Dickson C.J.C., Beetz and
McIntyre JJ. said:
. . . the mere fact of surrendering, by virtue of a treaty, a person accused of having
committed a crime in another country for trial in accordance with the ordinary procedures
prevailing in that country, does not in itself amount to an infringement of fundamental
justice, certainly when it has been established before a Canadian court that the acts charged
would constitute a crime in Canada if it had taken place here. To arrive at the conclusion
that the surrender of the respondents would violate the principles of fundamental justice, it
would be necessary to establish that the respondents would face a situation that is simply
In MacDonald v. Kindler (1987), 41 D.L.R. (4th) 78,  3 F.C. 34, 32 C.R.R. 346, the
Federal Court of Appeal dealt with the case of an American being deported from Canada to the
United States where the American had already been convicted of murder and a jury had
recommended the death penalty. At pp. 84-5, MacGuigan J. said on behalf of the court:
I can find nothing fundamentally unjust in a legislative provision which requires deportation
as the disposition for a person found illegally in the country. Indeed, such a disposition has
always been regarded as the exactly proportionate consequence of such illegal behaviour;
deportation restores the situation that existed before the illegal entry.
In my view, our courts should not in a case such as this take into account other
possible consequences of deportation, such as the possibility of capital punishment for the
respondent. A similar issue has just been resolved by the Supreme Court in United States of
America v. Allard and Charette . . . where the court held that s. 7 of the Charter did not
prevent extradition to the United States.
MacGuigan J. then quoted the above-noted passage from the reasons of La Forest J. in
Allard and went on to say:
Here we are far from a situation that is “simply unacceptable”. It is true that the respondent,
if deported, will under s. 54 of the Act undoubtedly be deported to the United States. It is
also true that he has been convicted of first degree murder, kidnapping and criminal
conspiracy, that a jury has recommended the imposition of the death penalty for murder, and
that the Pennsylvania court apparently has no discretion to overturn a jury's recom-
mendation of the death sentence (42 Pa.C.S. §9711(g)). Nevertheless, he has the right to
appeal his conviction to the highest court in Pennsylvania. If the sentence of capital
punishment were sustained there, he would have the right to seek executive clemency. The
actual imposition of capital punishment is thus a matter that lies in the realm of conjecture
rather than that of fact, and as Dickson J. (as he then was) wrote for the majority of the
Supreme Court in Operation Dismantle Inc. et al. v. The Queen et al. (1985), 18 D.L.R.
(4th) 481 at p. 491,  1 S.C.R. 441 at pp. 4554, 13 C.R.R. 287:
"Section 7 of the Charter cannot reasonably be read as imposing a duty on the
government to refrain from those acts which might lead to consequences that
deprive or threaten to deprive individuals of their life and security of the person."
Kindlar, of course, is a much stronger case than the present one, there having been no trial,
conviction or recommendation of death penalty in the present case. On the basis of Allard and
Kindler, I conclude that the proposed deportation of Shepherd does not violate s. 7 of the Charter.
The whole question as to what constitutes a disguised extradition was examined in the
reasons of Rouleau J. in Kindler at the trial level, cited as Kindler v. Minister of Employment and
Immigration,  1 F.C. 676, 47 C.R. (3d) 225, and in the reasons of the Federal Court of
Appeal in that case, referred to earlier.
At the trial level, Rouleau J. quashed the Deputy Minister's order to hold an inquiry under s.
27(3) of the Act, the same section under which Shepherd's inquiry was held. Rouleau J. found the
inquiry process to be contrary to s. 7 of the Charter. The Federal Court of Appeal set aside that
order, holding that the inquiry process did not violate s. 7 of the Charter.
From the reasons of the two courts, the following principles emerge:
1. If the purpose of the exercise is to deport the person because his presence is not conducive
to the public good, that is a legitimate exercise of the power of deportation.
2. If the purpose is to surrender the person as a fugitive criminal to a state because it asked for
him, that is not a legitimate exercise of the power of deportation.
3. It is open to the courts to inquire whether the purpose of the government was lawful or
4. The onus is on the party alleging an unlawful exercise of power. It is a heavy onus.
5. To succeed, it would be necessary to hold that the Minister did not genuinely consider it in
the public interest to expel the person in question.
6. The adoption of the Charter has not lessened the onus.
In Kindler, as noted earlier, a jury had already found him guilty and had recommended the
death penalty. He escaped custody and fled to Canada. He was discovered at St. Adele, Quebec, by
the R.C.M.P. at the instigation, and with the assistance, of the F.B.I. There was no evidence of any
request by the U.S. or any state government for extradition. Rouleau J. held [at p. 689] that:
The mere facts that the R.C.M.P. was unaware of the petitioner's illegal presence in Canada
until alerted by the F.B.I., and that both forces cooperated in locating him, and that the arrest
was carried out by members of the General Inquiries Section (of the R.C.M.P.) and not
members of the Immigration Branch, are not sufficient to prove that the Minister did not
genuinely consider it in the public interest to order his deportation. This challenge to the
validity of the deportation proceedings must fail.
In the present case there is little or no evidence that this is an extradition in disguise.
Counsel for Shepherd argues that that is because he was refused subpoenas and refused an
adjournment. Whether the adjudicator was right or wrong in those rulings, there was no such
inhibiting influence on the evidence to be put before the Federal Court of Appeal on the motion for
leave to commence a review of the deportation order or on the evidence to be put before the court
on this habeas corpus application.
Included in the evidence on both were newspaper clippings and other material which
indicated or suggested that:
1. Shepherd was identified by a neighbour who saw an American prograrnrne called
"Unsolved Mysteries" on television. That programme showed photographs of persons
wanted by the F.B.I.
2. The identification was verified by a fingerprint technician of the London police force.
3. Shepherd was then interviewed by a Canadian immigration officer.
4. A London Free Press article suggests that Jerry Estes, a Tennessee district attorney, was in
London in November, 1988, and said he would be seeking the death penalty for Shepherd.
Estes is quoted as saying he was "confident Shepherd would be returned to Tennessee even
under the possibility he would face execution, if convicted".
5. An article in The Toronto Sun of November 24, 1988, has as its headline "U.S. SAYS
FUGITIVE TO BE DEPORTED". The article reads in part as follows:
U.S. authorities say they've been assured Canada won't try to block their efforts to gain
custody of a fugitive who may face the death penalty in Tennessee.
State district attorney Jerry Estes said yesterday Canada Immigration will simply use
deportation proceedings to eject accused sex killer Joseph Arlin Shepherd, 35, from Ontario
on grounds he overstayed his visitor's visa.
In many cases, the Canadian government has forced U.S. authorities to extradite fugitives
and prove there is ample evidence of a crime.
Canada also has the option of insisting the death penalty isn't used.
We've been told by immigration people this is purely a deportation issue and we don't have
to extradite or apply for any such proceedings" Estes said yesterday.
6. An article from the Toronto Sunday Star of November 20, 1988, reads in part as follows:
Shepherd is being held on an immigration warrant and will likely be deported, Inspector Jim
Balmain said yesterday. No criminal charges were laid.
"I don't think we'll have to go through extradition" he added. F.B.I. agents will arrive in
London this week.
But he added that Shepherd is thought to have lived in Vancouver, Calgary and Saskatoon
prior to 1984.
Before making the arrest, police spent several weeks investigating the man to make sure he
This is not the first time an arrest in Canada has been made after a suspect was spotted on
There is little in the foregoing to negative the proposition that the purpose of the exercise is
to deport Shepherd because his presence is not conducive to the public good. Nor is there anything
of consequence in that material to suggest that, from a Canadian point of view, the purpose of the
proceedings was and is to surrender Shepherd as a fugitive criminal to a state because it asked for
him. There is nothing to suggest that the Minister did not genuinely consider it in the public interest
to expel Shepherd. There is, therefore, no basis upon which I can conclude that this is an extradition
Although the foregoing is sufficient to dispose of this matter, in view of the extensive
argument by counsel and in view of the number of other cases with similar facts, I should note one
additional matter. That is the question of the jurisdiction of this court to review the detention of
Shepherd by way of habeas corpus.
In Rodrivuez-Jimenez v. Lower Mainland Regional Correctional Centre (1989), 35 Admin.
L.R. 51 (B.C.S.C.), Shaw J. heard a habeas corpus application to secure the release from custody of
Rodriguez-Jimenez, like Shepherd the subject of a deportation order. As in the present case, an
application for leave had been made to the Federal Court of Appeal and that application had been
dismissed without reasons. After reviewing the circumstances of the detention and deportation
order, Shaw J. concluded that:
(1) The Supreme Court of British Columbia did have Jurisdiction to issue habeas corpus with
certiorari in aid notwithstanding the fact that remedies were available in the Federal Court.
(2) The petitioner had already applied to the Federal Court of Appeal and that court had refused
to stay the orders against the petitioner.
(3) The grounds raised in the Federal Court were in substance the same grounds as those put
before the court on the habeas corpus application.
(4) The Federal Court of Appeal uses as its test on stay applications, the same test that is used
by the courts on interlocutory injunction applications, namely, is there a serious issue to be
(5) Although it gave no reasons, the Federal Court of appeal must have been of the opinion that
the issues raised did not have sufficient substance to meet that test.
(6) In effect the petitioner, having lost in one court of competent jurisdiction, was endeavouring
to have a second hearing of substantially the same issues in another court of competent
Shaw J. declined to exercise the court's jurisdiction in habeas corpus in the particular
circumstances of that case.
While the facts of the present case are different from those in Rodriguez-Jimenez, I find
myself in much the same position as Shaw J. The matters set out on behalf of Shepherd as reasons
why leave should be granted by the Federal Court of Appeal were the same matters complained of
on the habeas corpus application. Had that court given reasons for refusing leave, it might not have
been necessary for me to review the circumstances of the detention and deportation orders in the
present case. Having made that examination, I conclude that the circumstances are not such as to
warrant the exercise of this court's discretion in favour of Shepherd.
In Peiroo v. Canada (Minister of Employment and Immigration) released May 29, 1989
[since reported 69 O.R. (2d) 253, 60 D.L.R. (4th) 574, 8 Imm. L.R. (2d) 89], the Ontario Court of
Appeal assumed it had jurisdiction to grant habeas corpus, for the purpose of discussing the
question whether it should decline such relief where there were alternative remedies. At pp. 12-13
[pp. 261-2 O.R., p. 582 D.L.R.] of the reasons, Catzman J.A~ said:
The result of the foregoing analysis is this. Parliament has established in the Act,
particularly in the recent amendments which specifically address the disposition of claims
of persons in the position of the appellant, a comprehensive scheme to regulate the
determination of such claims and to provide for review and appeal in the Federal Court of
Canada of decisions and orders made under the Act, the ambit of which review and appeal
is as broad or broader than the traditional scope of review by way of habeas corpus with
certiorari in aid. In the absence of any showing that the available review and appeal process
established by Parliament is inappropriate or less advantageous than the habeas corpus
jurisdiction of the Supreme Court of Ontario, it is my view that this court should, in the
exercise of its discretion, decline to grant relief upon the application for habeas corpus in
the present case, which clearly falls within the purview of that statutory review and appeal
I am fortified in this conclusion by the observation that similar considerations
appear to have moved the Supreme Court of Canada to hold that where there is a legislative
initiative purporting to provide a whole scheme or code for the administration and review of
proceedings in a field like immigration (Pringle v. Fraser (1972), 26 D.L.R. (3d) 28, 
S.C.R. 821) or human rights (Board of Governors of Seneca College of Applied Arts and
Technology v. Bhadauria (1981), 124 D.L.R. (3d) 193,  2 S.C.R. 181, 14 B.L.R. 157)
such a scheme should not be by-passed, either by evolving a new cause of action (as in
Bhudauna) or by the use of a prerogative writ (as in Pringle). Both jurisprudence and logic
would suggest that this court should leave the review of immigration matters with the
Federal Court of Canada, which has review and appeal jurisdiction with respect to many
aspects of immigration law and which has geographical jurisdiction throughout Canada, and
thus can deal with claims of refugee claimants wherever their point of entry.
In Peiroo the application for habeas corpus was refused by Hollingworth J. and then by the
Court of Appeal. By the time the matter reached the Court of Appeal, Peiroo had applied for and
been granted leave to have the adjudicator's order reviewed by the Federal Court of Appeal. In the
present case, the application for habeas corpus was brought first by reason of urgency. The fact that
leave was granted by the Federal Court of Appeal in Peiroo and refused in the present case does not
seem to me to make any difference to the applicability of the conclusion reached in Peiroo, i.e., that
in the absence of evidence that the review process is inappropriate or less advantageous, habeas
corpus should be refused.
I conclude that whether one has regard to the merits or to the matter of jurisdiction, the
discretion of this court should not be exercised in favour of Shepherd. The application is therefore
Upon the conclusion of the argument of this matter in London on October 5, 1989, counsel
for Shepherd asked that if the application were to be dismissed, that the dismissal be stayed so as to
provide him with an opportunity to take such steps as might be appropriate. Counsel for the
Minister was not in a position to give any undertaking in this regard. Accordingly, the dismissal of
the application is not to have effect or to be acted upon by the Minister until 15 days from the date
of release of these reasons.
COURT OF APPEAL November24, 1989.
The applicant's appeal to the Court of Appeal (Brooke and Blair JJ.A. and Osler J. (ad hoc))
was dismissed November 24, 1989 The decision of the court endorsed on the appeal record was as
In this case we consider ourselves bound by this court's recent decision in Peiroo v. Canada
(Minister of Employment and Immigration) (1989), 69 O. R. (2d) 253, 60 D.L. R. (4th) 574, 8 Imm.
L.R. (2d) 89. In that case, the court affirmed a decision of a judge of the High Court dismissing an
application for a writ of habeas corpus with certiorari in aid by a person whose claim for refugee
status had been denied by adjudicators acting under the Immigration Act, R.S.C. 1985, c. I-2. In the
Peiroo case, the court held that it should not exercise its discretion to grant habeas corpus because
the Immigration Act provided a comprehensive scheme for review and appeal by the Federal Court
of Canada of decisions made by Immigratian Act adjudicators which was as broad or broader than
the scope of review by way of habeas corpus with certiorari in aid. In delivering the judgment of
the court, Catzman J.A. said at pp. 261-2 O.R., p. 582 D.L.R.:
In the absence of any showing that the available review and appeal process established by
Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction of the
Supreme Court of Ontario, it is my view that this court should, in the exercise of its
discretion, decline to grant relief upon the application for habeas corpus in the present case
which clearly falls within the purview of that statutory review and appeal process.
In Peiroo, the appellant, after the rejection of her claim for refugee status, applied
immediately to the High Court for a writ of habeas corpus rather than employing the review and
appeal procedure provided in the Immigration Act by seeking leave to appeal to the Federal Court
of Appeal. In this case, the appellant, after his deportation was ordered, applied to the Federal Court
of Appeal for leave to appeal as provided in the Immigration Act. After leave was refused, he then
made his application for habeas corpus. The difference in the facts does not affect the grounds for
our decision and, if anything, the case is stronger for noninterference by the courts of this province
where the remedies provided in the Federal Court have been fully exhausted.
Counsel for the appellant advised us that the issues raised here in this appeal were the same
as those raised in the application for leave to the Federal Court of Canada, including the issue of s.
7 of the Canadian Charter of Rights and Freedoms. He also, quite properly, conceded that no relief
was available by way of habeas corpus that could not have been granted under the powers
conferred upon the Federal Court of Appeal by the Federal Court Act, R.S.C. 1985, c. F-7.
In response to questions by members of this court, counsel for the appellant was unable to
demonstrate to us how or in what respect using the language of Mr. Justice Catzman:
. . the available review and appeal process established by Parliament is inappropriate or less
advantageous than the habeas corpus jurisdiction of the Supreme Court of Ontario….
While we may not agree with all of the learned weekly court judge's reasons in the decision
appealed from, we are of the view, nevertheless, for the reasons stated above, that the appeal should