Habeas Corpus - 'Route of Appeal' 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 considers the 'route of appeal' exception to the availability of habeas corpus applications:
(4) Whether the route of appeal exception applies
 As reviewed above, the first ground on which the motion judge held that the Superior Court should decline to hear Mr. Mahjoub’s application is that he had an appropriate appeal route in the Federal Court of Appeal under the IRPA for challenging his conditions of release. Mr. Mahjoub submits that the motion judge erred in finding that this exception applies for two reasons. First, he argues that this exception only applies to criminal matters. Second, he argues that the appeal provisions under the IRPA do not allow for the correction of errors as required by this exception. I agree that the authorities appear to support Mr. Mahjoub’s argument that this exception only applies to criminal matters. However, this issue does not need to be resolved in the context of this appeal because of the limited appeal route available to Mr. Mahjoub under the IRPA.
 The weight of Supreme Court and other appellate jurisprudence suggests that the first exception to the availability of habeas corpus only applies in the criminal context. For example, in May, at para. 41, the Supreme Court described the two circumstances where a superior court should decline to hear an application for habeas corpus as “the two recognized exceptions to the availability of habeas corpus — criminal appeals and the ‘Peiroo exception’” (emphasis added). The Supreme Court and this court have described the exceptions in similar terms in several other decisions: for example, Chhina, at para. 25; R. v. Bird, 2019 SCC 7,  1 S.C.R. 409, at para. 65; and Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness), 2015 ONCA 700, 390 D.L.R. (4th) 598, at para. 42. As described in these decisions and others, the first exception focuses on the criminal context and the second exception was developed in the immigration context. Given that this matter involves the immigration context, the issue of whether Mr. Mahjoub’s application for habeas corpus is subject to an exception is more properly assessed through the Peiroo exception.
 In any event, in my view, even if the first exception applied, the motion judge erred in finding that Mr. Mahjoub’s right of appeal under the IRPA precludes him from bringing an application for habeas corpus. In his decision, relying on May, at paras. 36 and 50, the motion judge described the principles applicable to the first exception as being that “[p]rovincial courts should decline habeas corpus where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court” and “habeas corpus is not a substitute for the person’s statutory right of appeal”. He went on to find that s. 82.3 of the IRPA provides Mr. Mahjoub with such a right of appeal and that he had not sought to appeal the consent order of February 9, 2021.
 In my view, the motion judge erred when he found that s. 82.3 of the IRPA gives Mr. Mahjoub a right of appeal that would allow the Federal Court of Appeal to correct any errors made by the Federal Court. As reviewed above, s. 82.3 only gives Mr. Mahjoub a right of appeal from a decision reviewing the conditions of his release “if the judge certifies that a serious question of general importance is involved and states the question”. Therefore, as a precondition to an appeal, a Federal Court judge acts as a gate keeper and only serious questions of general importance will be referred to the Federal Court of Appeal. Accordingly, even if Mr. Mahjoub had valid grounds of appeal arising from the specific circumstances of his case, the Federal Court of Appeal would only hear the appeal if a Federal Court judge was satisfied that his appeal raised a serious question of general importance. This is not the same type of appeal available under the Criminal Code, R.S.C., 1985, c. C-46, to correct errors specific to an individual person’s conviction.