Habeas Corpus - Peiroo Exception. Mahjoub v. Canada (Public Safety and Emergency Preparedness)
In Mahjoub v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2023) the Court of Appeal considered the 'Peiroo' exception to the availability of habeas corpus:
 Second, the motion judge considered the application of the “Peiroo exception”, which refers to this court’s decision in Peiroo v. Canada (Minister of Employment and Immigration) (1989), 1989 CanLII 184 (ON CA), 69 O.R.(2d) 253 (C.A.), leave to appeal to S.C.C. refused,  S.C.C.A. No. 322. This is an exception originally developed in the immigration context to the effect that habeas corpus is not available where there is a “complete, comprehensive and expert scheme” that provides for “a review at least as broad as that available by way of habeas corpus”: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29,  2 S.C.R. 467, at para. 2; see also, May v. Ferndale Institution, 2005 SCC 82,  3 S.C.R. 809, at para. 40. The motion judge found that the security certificate scheme under the IRPA is at least as advantageous as an application for habeas corpus. He summarized his reasons for reaching this conclusion as follows:This Peiroo analysis continues at paras 77-95.
The security certificate scheme requires issues of detention and release to be made by security-screened Federal Court judges and not by an administrative tribunal. The judges have the jurisdiction to consider the constitutionality of the detention and have available to them the same remedies that would be available to a provincial superior court judge on a writ of habeas corpus. The onus for establishing that the conditions of release are appropriate, remains on the Ministers. The security certificate scheme may require the court to consider evidence that relates to matters of national security. In those circumstances, the security certificate procedure allows for in camera hearings and the appointment of special advocates to represent the person in the in-camera proceedings.....
(5) Whether the Peiroo exception applies
 Mr. Mahjoub argues that the motion judge erred in finding that his proposed application for habeas corpus falls within the Peiroo exception. He argues that the motion judge failed to consider the disadvantages of the review process under the IRPA. I disagree that the motion judge erred in finding that the Peiroo exception applies in this case.
 I start this part of the analysis with a review of the Peiroo exception, followed by a consideration of the arguments made by Mr. Mahjoub about why habeas corpus is more advantageous than the review process under the IRPA in addressing the Charter issues he seeks to raise. Ultimately, I conclude that, because of the unique advantages of the review procedure under the IRPA, habeas corpus is not more advantageous for Mr. Mahjoub to challenge the length and indeterminacy of the restrictions on his liberty.
(1) The Peiroo exception
 As indicated above, the Peiroo exception provides that a superior court should decline jurisdiction to hear an application for habeas corpus where there is a comprehensive and expert procedure for reviewing the detention which is at least as advantageous as habeas corpus. As indicated above, in Chhina, at para. 29, the Supreme Court explained that, as with the criminal appeal exception, the purpose of the Peiroo exception is to realize judicial economy, avoid duplicative proceedings, and reduce the possibility of inconsistent decisions and forum shopping. However, the courts have rejected the idea that the Peiroo exception serves as a blanket exception to the availability of habeas corpus in all immigration contexts: Chhina, at para. 33; Chaudhary, at para. 74. Rather, in deciding whether the exception applies, a court must look at the grounds on which a detention is challenged and the specific review scheme that applies to the detention at issue.
 In Chhina, the Supreme Court emphasized that, in determining whether there is a complete and expert procedure, the court should not look at the matter from a general perspective but, rather, from the perspective of the “particular basis” upon which an applicant challenges the lawfulness of a detention: at para. 5. The court should ask “whether the IRPA provides a review procedure that is at least as broad and advantageous as habeas corpus regarding the specific challenges to the legality of the detention raised by the habeas corpus application”: Chhina, at para. 6. This is because an “administrative scheme may be sufficient to safeguard the interests protected by habeas corpus with respect to some types of challenges, but may also need to be re-examined with respect to others”: Chhina, at para. 40.
 In Chhina, at para. 43, the Supreme Court also instructed that, in determining whether an administrative scheme is as broad and advantageous as habeas corpus, it is not only necessary to look at whether the review process allows for consideration of the specific issue an applicant seeks to raise, but also whether the review procedure is as broad and advantageous as habeas corpus for determining that issue:
[T]he main issue in this case, and the focus of the parties’ submissions, is whether IRPA review is as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina challenged the legality of his detention. In this inquiry, it may be helpful to look at whether a statutory scheme fails entirely to include the grounds set out in the application for habeas corpus. If so, the scheme will not be as broad and advantageous as habeas corpus. The scheme will also fail to oust habeas corpus if it provides for review on the grounds in the application, but the review process is not as broad and advantageous as that available through habeas corpus, considering both the nature of the process and any advantages each procedural vehicle may offer. [Emphasis added.] In Chhina, the Supreme Court found that the scheme at issue in that case was less advantageous than habeas corpus. Notably, Mr. Chhina was not detained under the security certificate provisions of the IRPA. Rather, he was detained pursuant to Division 6 of the IRPA, which allows for the detention of a person who is believed to be inadmissible to Canada in certain specified circumstances. In that context, the original detention decision and subsequent review decisions are made by an officer of the Immigration Division – not a Federal Court judge: Chhina, at para. 49. The IRPA prescribes the specific issues the officer is to consider when conducting an administrative review: Chhina, at paras. 55-56. These decisions are subject to judicial review in the Federal Court and thereafter to appeal in the Federal Court of Appeal on a certified question: Chhina, at para. 50. Mr. Chhina sought to challenge his conditions of detention as well as the length and indeterminacy of his detention on Charter grounds. Having regard to the review process in Division 6 of the IRPA and its regulations, the Supreme Court held that habeas corpus provided three advantages over the process under Division 6 of the IRPA: 1) the onus under the IRPA was less advantageous to the detainee than on habeas corpus; 2) the scope of review on an application for judicial review is narrower than habeas corpus; and 3) habeas corpus is more timely than an application for judicial review: Chhina, at para. 59.
 Similarly, in Chaudhary, this court found that the Peiroo exception did not apply in circumstances where applicants challenged the length and indeterminacy of their detentions under Division 6 of the IRPA. In that case, the court also found that habeas corpus was more advantageous than the review process under Division 6 of the IRPA based on a comparison of the scope of review, onus and timeliness of both procedures: Chaudhary, at para. 79.
 In this case, relying on R. v. Zundel, 2003 CanLII 23552 (Ont. S.C.), aff’d 2004 CanLII 15295 (ON CA), 241 D.L.R. (4th) 362 (Ont. C.A.), leave to appeal refused,  S.C.C.A. No. 316, the Minister argues that this court has already decided that procedures under Division 9 of the IRPA for reviewing a detention are as advantageous as habeas corpus. However, in my view, while Zundel is relevant and persuasive, it is not determinative of the issues in this case. In Zundel, the applicant sought habeas corpus of his detention on the basis of an argument that provisions of the IRPA were unconstitutional and that the review process itself was taking too long: Zundel (Ont. S.C.), at para. 10. This court upheld the determination by Benotto R.S.J., as she then was, that the Peiroo exception applied: Zundel (Ont. C.A.), at para. 7. However, Zundel was decided before Chhina. Applying the same reasoning of the Supreme Court in Chhina, Zundel cannot stand for the broad proposition that habeas corpus is unavailable to challenge all detentions made pursuant to Division 9 of the IRPA. Rather, in order to determine whether the exception applies, it is necessary to look at the specific grounds upon which Mr. Mahjoub seeks habeas corpus and whether the review procedure under the IRPA is at least as advantageous as habeas corpus for addressing those grounds.
 Mr. Mahjoub argues that the review procedures under the IRPA are not as broad and advantageous as habeas corpus for two reasons. First, he argues that the scope of the review is not as broad as on habeas corpus, and that he cannot raise his Charter issues and fully challenge the length and indeterminacy of his conditions of release. Second, on an application for habeas corpus, the burden is on the Minister to justify the lawfulness of his conditions of release, including their length and indeterminacy, whereas the review procedure under the IRPA effectively requires Mr. Mahjoub to demonstrate that the length and indeterminacy of his conditions of release are a breach of his Charter rights. As discussed below, I would reject both these arguments because they do not accord with the review process under Division 9 of the IRPA. More significantly, as held by the motion judge, these arguments lose sight of the unique and clear advantages of the procedure in the Federal Court; specifically, the availability of judges and special advocates who can deal with information and evidence that is subject to security concerns.