Habeas Corpus - Venue. 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 interesting issue of when the Ontario Superior Court has jurisdiction (ie. is the venue) to hear a habeas corpus application challenging a federal court-ordered detention, here under the IRPA:
(3) Application for habeas corpus in the Superior Court [SS: this is the lower court ruling being challenged]
 On July 14, 2021, Mr. Mahjoub commenced an application in the Superior Court seeking a writ of habeas corpus with certiorari in aid. Specifically, Mr. Mahjoub seeks to be relieved of all the conditions of his detention, except for the requirement that he keep the peace, surrender his passport and notify the CBSA of any change of address. Mr. Mahjoub takes the position that the deprivation of his liberty for a lengthy and uncertain period is unlawful and violates his rights under ss. 7, 9 and 12 of the Charter.
 In response, the Minister brought a motion to stay the application on the basis that habeas corpus is not available in the Superior Court against the order of a Federal Court judge. In addition, the Minister argued that the application should be stayed because Mr. Mahjoub has a right of appeal from his conditions of release under the IRPA and because the security scheme under the IRPA is at least as advantageous as a habeas corpus application.
 In a decision dated February 15, 2022, the motion judge granted the Minister’s motion and stayed the application.
 As the first step in his analysis, the motion judge rejected the Minister’s argument that the Superior Court in Ontario does not have jurisdiction to grant habeas corpus in this case because the original order was made by the Federal Court. The motion judge explained that Mr. Mahjoub does not take issue with the finding that he is a security risk or the deportation order. Rather, the question raised by Mr. Mahjoub is “whether the lengthy and uncertain duration of the deprivation of his liberty violates his Charter rights”. The motion judge concluded that the Superior Court has jurisdiction to consider a habeas corpus application that raises this issue.
(3) Whether the Superior Court has jurisdiction [SS: this is the appeal ruling, upholding the lower court]
 The Minister argues that the motion judge erred in law in holding that the Superior Court has jurisdiction to grant habeas corpus in relation to an order made by the Federal Court. I reject this argument. There is no blanket principle that the Superior Court cannot grant habeas corpus in relation to an order made by the Federal Court. While habeas corpus is generally not available in one superior court to alter or attack an order made by another superior court, a recognized exception is where the applicant seeks to establish, as here, that a detention is unlawful because it breaches the applicant’s Charter rights.
 The general rule at common law is that a superior court order is not subject to collateral attack by another superior court through a prerogative writ, including habeas corpus: R. v. Sarson, 1996 CanLII 200 (SCC),  2 S.C.R. 223, at para. 23. In part, the rationale for this principle is that habeas corpus challenges the legality of a detention, and orders made by a superior court are presumptively lawful unless they are successfully challenged on appeal.
 In R. v. Gamble, 1988 CanLII 15 (SCC),  2 S.C.R. 595, at paras. 67 and 74, a majority of the Supreme Court of Canada held that this is an overly technical approach to the availability of habeas corpus where an applicant alleges a Charter breach. The Court held that, in such cases, habeas corpus may be available in relation to an order made by a superior court where “the appeal process may not be able to vindicate an applicant’s Charter interest in having the legality of his or her deprivation of liberty reviewed”. In Sarson, at paras. 41 and 43, the Supreme Court confirmed this “expanded” approach to habeas corpus, but cautioned that it is only available where “the applicant is able to demonstrate that his or her detention fails to accord with the principles of fundamental justice, or otherwise offends the Charter”.
 In this case, Mr. Mahjoub argues that the ongoing and indeterminate length of the restrictions on his liberty violate his Charter rights. This was recognized by the motion judge when he rejected the Minister’s argument that the Superior Court does not have jurisdiction to grant habeas corpus. In my view, given the grounds on which Mr. Mahjoub seeks habeas corpus, the fact that he seeks to challenge restrictions on his liberty imposed by the Federal Court on its own does not preclude the Superior Court in Ontario from considering his application.
 Rather, as addressed below, the viability of Mr. Mahjoub’s application for habeas corpus should be considered through the lens of the two established exceptions. As discussed below, these are carefully tailored exceptions. They are meant to respect the decisions from other courts or the legislated processes for challenging a detention, while nevertheless recognizing the key role habeas corpus plays in protecting a person’s liberty interest.