COURT OF APPEAL FOR ONTARIO
CITATION: Mahjoub v. Canada (Public Safety and Emergency Preparedness), 2023 ONCA 259
DATE: 20230417
DOCKET: C70456
Feldman, Hoy and Favreau JJ.A.
BETWEEN
Mohamed Mahjoub
Applicant (Appellant)
and
The Minister of Public Safety and Emergency Preparedness
Respondent (Respondent)
Paul Slansky, Yavar Hameed, and Nicholas Pope, for the appellant
Marianne Zorić, John Provart and Mahan Keramati, for the respondent
Heard: October 12, 2022 by video conference
On appeal from the order of Justice William S. Chalmers of the Superior Court of Justice, dated February 15, 2022, with reasons reported at 2022 ONSC 3671.
Favreau J.A.:
A. overview
[1] The appellant, Mohamed Mahjoub, came to Canada from Egypt and was granted refugee status. He has since been found to pose a threat to Canada’s national security and is subject to a deportation order.
[2] Before the deportation order can be implemented, the respondent, the Minister of Public Safety and Emergency Preparedness (the “Minister”), must complete a Danger Opinion to determine the extent of the risk Mr. Mahjoub poses and whether he should be deported. In the meantime, Mr. Mahjoub is not in detention, but he is subject to various conditions of release. The latest version of his conditions of release is based on a consent order made by the Federal Court in 2021.
[3] After the consent order was made, Mr. Mahjoub brought an application for habeas corpus in the Superior Court of Justice for Ontario seeking to be relieved from his conditions of release. On the application for habeas corpus, Mr. Mahjoub seeks to argue that the length and indefinite period of time he has been subject to the conditions imposed on his liberty breach his rights under ss. 7, 9 and 12 of the Charter of Rights and Freedoms (the “Charter”).
[4] The Minister brought a motion to stay the application on the basis that the Superior Court did not have jurisdiction or, alternatively, that the Superior Court should decline to hear the application. The motion judge granted the motion and stayed Mr. Mahjoub’s application for habeas corpus. While the motion judge found that the Superior Court has jurisdiction to grant habeas corpus in connection with an order made by the Federal Court, he held that it was appropriate to stay the application in this case because the application falls within both recognized circumstances where a Superior Court should refuse to entertain an application for habeas corpus. First, the motion judge found that Mr. Mahjoub had an appropriate appeal route under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) to challenge the Federal Court order imposing his conditions of release. Second, the motion judge held that the review procedure under the IRPA constitutes a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous (referred to as the “Peiroo exception”).
[5] Mr. Mahjoub appeals the stay of his application for habeas corpus on the grounds that the motion judge erred in finding that the Superior Court should decline to hear the application based on both of these exceptions.
[6] I would dismiss the appeal. While I agree with Mr. Mahjoub that the motion judge erred in finding that Mr. Mahjoub had an adequate route of appeal, I agree with the motion judge that the IRPA provides Mr. Mahjoub with a comprehensive and expert procedure for reviewing his conditions of release and that the review procedure is at least as advantageous as an application for habeas corpus. As explained below, the onus is on the Minister to demonstrate that the conditions of release are necessary, and constitutional questions raised by the appellant can be addressed in the review process. Most significantly, under the IRPA, the Federal Court has exclusive jurisdiction and a special advocate system to address sensitive national security information that may be relevant in assessing the reasonableness of Mr. Mahjoub’s ongoing conditions and the length of time he has been subject to those conditions.
B. Security Certificate scheme under the IRPA
[7] In order to review the specific circumstances of Mr. Mahjoub’s case and to address the issues on appeal, it is helpful to start with a review of the provisions in the IRPA dealing with security certificates.
(1) Process for determining whether a person poses a threat to national security
[8] Division 9 of the IRPA addresses the process the Minister and the Federal Court are required to follow in dealing with people who pose a threat to national security.
[9] Section 76 of the IRPA, which sets out the definitions in Division 9, specifies that references to “judge” means “the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice”. In other words, only the Chief Justice or a judge of the Federal Court designated by the Chief Justice has the jurisdiction to decide issues dealing with security certificates in the Federal Court.
[10] Section 77(1) of the IRPA gives the Minister the power to sign a certificate stating that a permanent resident or foreign national is inadmissible to Canada on various grounds, including grounds of security. Once the certificate is signed, it must be referred to the Federal Court. Section 78 of the IRPA requires a judge of the Federal Court to determine whether the certificate is reasonable and, if not, to quash the certificate. Section 79 of the IRPA provides for a right of appeal to the Federal Court of Appeal, but only if the judge who decided the reasonableness of the certificate “certifies that a serious question of general importance is involved and states the question”. Section 80 provides that a certificate that is determined to be reasonable is “conclusive proof” that the person is inadmissible and is deemed to constitute a removal order without the need for a further hearing.
[11] Pursuant to s. 115(1) of the IRPA, a person recognized as a refugee cannot be removed from Canada if there is a risk that they will be persecuted, tortured or subject to cruel and unusual punishment. However, s. 115(2)(b) of the IRPA provides that s. 115(1) does not apply where a person has been found inadmissible based on grounds of security if the Minister is of the opinion that the person should not remain in Canada “on the basis of the nature and severity of the acts committed or of danger to the security of Canada.”
(2) Detention and conditions of release pending removal
[12] Besides addressing the procedure for determining whether a person should be removed from Canada on the basis of a threat to national security, the IRPA addresses the detention or conditions that can be imposed pending that determination.
[13] Section 81 of the IRPA gives the Minister the power to issue a warrant for the arrest and detention of a person named in a security certificate if the Minister has reasonable grounds to believe that the person is a danger to national security, or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
[14] Section 82(1) provides that, within 48 hours of the person’s detention, a judge of the Federal Court is required to commence a review of the reasons for the person’s detention. In addition, pursuant to s. 82(2), as long as the person remains detained and until there is a determination of whether the certificate is reasonable, a Federal Court judge is to review the reasons for detention at least every six months.
[15] Pursuant to s. 82(4) of the IRPA, if the person is released from detention under conditions, the person may apply to the Federal Court for a review of the continuing conditions six months after the conclusion of the previous review.
[16] Section 82(5) of the IRPA sets out the powers of a Federal Court judge on review of a detention or of release on conditions:
(5) On review, the judge
(a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or
(b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate. [Emphasis added.]
[17] Section 82.1(1) specifies that a judge has the power to vary an order on review “if the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”.
[18] There is no automatic right of appeal for a detainee from a decision regarding detention or conditions of release. Rather, s. 82.3 of the IRPA provides that a Federal Court judge must certify a serious question of general importance, and state the question, before the matter can proceed to the Federal Court of Appeal.
(3) Protection of information and appointment of special advocate
[19] In Charkaoui v. Canada, 2007 SCC 9, [2007] 1 S.C.R. 350, the Supreme Court of Canada found that a previous version of the provisions in the IRPA setting out the process in the Federal Court for confirming the reasonableness of security certificates violated s. 7 of the Charter. The basis for this finding was that the previous version of the IRPA allowed the Federal Court to conduct a hearing in the absence of the person subject to the security certificate: at para. 5. Non‑sensitive material could be disclosed to the person involved, but sensitive information that might compromise national security could not be disclosed if the government objected: at para. 5. The Supreme Court held that this process violated the right of the individual being subject to the security certificate to know the case to be met: at para. 54. While the Supreme Court recognized that there may be legitimate reasons for withholding some evidence from a person subject to a security certificate, the provisions in place at the time did not minimally impair the person’s rights because there are protections that could be put in place that are less impairing, such as the use of special advocates: see paras. 70, 86, and 87.
[20] In response to the decision, the security certificate procedure in the IRPA was amended, including by mandating the participation of special advocates. In Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33, the Supreme Court found that these amendments to the IRPA do not breach s. 7 of the Charter.
[21] Accordingly, the provisions of the IRPA dealing with security certificates now include specific procedures for dealing with information and evidence that the Minister believes should not be disclosed to the public or the person subject to the security certificate because disclosure could be injurious to national security or endanger the safety of a person. These procedures are set out in ss. 83 to 87 of the IRPA, and they apply to a review of conditions of release made pursuant to s. 82(4).
[22] Section 83(1)(c) of the IRPA provides that hearings can be held in camera and ex parte, when the Minister is presenting evidence that could be injurious to national security or endanger the safety of any person. However, s. 83(1)(b) of the IRPA requires the designated Federal Court judge to appoint one or more special advocates to protect the interests of the person named in a security certificate in closed hearings.
[23] Special advocates must have security clearance and their “role is to protect the interests of the named person and ‘to make up so far as possible for the [named person’s] own exclusion from the evidentiary process’”: Harkat, at para. 35. Pursuant to s. 85.1(1) and (2) of the IRPA, during the closed hearings, the special advocate is to perform the functions that the lawyer for the person named in a security certificate performs in open court; this includes challenging the claim that information and evidence should not be disclosed, and testing the relevance, reliability and sufficiency of that evidence: Harkat, at para. 35. In the context of closed hearings, special advocates are entitled to make submissions and cross‑examine witnesses: IRPA, s. 85.2(a) and (b); Harkat, at para. 35.
C. Mr. Mahjoub’s Background
[24] Mr. Mahjoub is an Egyptian national. He came to Canada in December 1995, and he was granted refugee status in 1996.
(1) Federal Court’s determination that Mr. Mahjoub poses a security risk
[25] In June 2000, a security certificate was issued against Mr. Mahjoub on the basis that there were reasonable grounds to believe that he was a member of a terrorist organization and that he had engaged in acts of terrorism.
[26] On October 5, 2001, Nadon J. of the Federal Court determined that the security certificate issued in June 2000 was reasonable. Nadon J. found that Mr. Mahjoub was, or had been, a member of the Al Jihad and/or Vanguards of Conquest terrorist organizations, and that he had worked for and met with Osama bin Laden.
[27] On February 23, 2007, the Supreme Court of Canada released its decision in Charkaoui which, as reviewed above, declared that the security certificate regime in place at the time under the IRPA was unconstitutional. The court gave Parliament one year to amend the IRPA.
[28] In 2008, after the amendments to the IRPA came into force, the Minister signed a new security certificate respecting Mr. Mahjoub. The certificate was referred to the Federal Court for a determination of its reasonableness.
[29] The hearing in the Federal Court took place before Blanchard J. and included over 100 days of testimony. In Mahjoub (Re), 2013 FC 1092, released on October 25, 2013, Blanchard J. found that there were reasonable grounds to believe that Mr. Mahjoub is a member of an active terrorist group in Egypt, specifically the Al Jihad and its sub-group, the Vanguards of Conquest. On this basis, he found that Mr. Mahjoub poses a security risk and ordered his deportation. On July 19, 2017, the Federal Court of Appeal dismissed Mr. Mahjoub’s appeal from that decision: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344. On May 17, 2018, the Supreme Court of Canada dismissed his application for leave to appeal.
[30] Given that Mr. Mahjoub has refugee status, the Minister must obtain a Danger Opinion in accordance with s. 115(2)(b) of the IRPA before he can be deported. The Danger Opinion has not yet been completed.
(2) Status of Mr. Mahjoub’s detention since 2000
[31] In 2000, when the first security certificate was issued, Mr. Mahjoub was arrested and placed in immigration detention.
[32] Mr. Mahjoub remained in detention until June 2007, when he was released on various conditions. The conditions included a requirement that he be supervised by his sureties, that he stay at home with some exceptions, and that he have no internet connection.
[33] In 2009, Mr. Mahjoub’s sureties withdrew their undertakings. As a result, Mr. Mahjoub was returned to detention.
[34] After eight months, Mr. Mahjoub was once again released from detention on conditions. The conditions included GPS monitoring, a curfew, and unsupervised daily outings with notice to the Canadian Border Services Agency (“CBSA”).
[35] Pursuant to the IRPA, Mr. Mahjoub is entitled to a review of his conditions of release every six months. Mr. Mahjoub has requested such a review several times. The Federal Court has found that Mr. Mahjoub continues to pose a danger to the security of Canada and that conditions continue to be necessary to ensure that he does not resume communications with persons involved in terrorism. However, over time, the Federal Court has adjusted and modified his conditions. For example, in 2013, Mr. Mahjoub was allowed to use a computer connected to the internet and a cell phone, but his use of these devices was subject to monitoring by the CBSA.
[36] The most recent Federal Court order setting the conditions for Mr. Mahjoub’s release was made on February 9, 2021. The order was negotiated and made on consent. Mr. Mahjoub’s current conditions of release prevent him from communicating with people he knows are supporters of terrorism or violent jihad or who have a criminal record. His electronic devices and social media are also subject to electronic monitoring. In addition, he is required to advise the CBSA of any travel to distant locations and of any changes to his residence.
[37] Mr. Mahjoub did not seek to appeal the February 9, 2021 order, nor has he sought another six-month review.
(3) Application for habeas corpus in the Superior Court
[38] 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.
[39] 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.
[40] In a decision dated February 15, 2022, the motion judge granted the Minister’s motion and stayed the application.
[41] 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.
[42] The motion judge then considered the two limited exceptions under which a superior court should refuse to take jurisdiction over an application for habeas corpus. He found that both exceptions apply in this case.
[43] First, he found that the court should refuse jurisdiction because the IRPA contains a mechanism for correcting errors made by the Federal Court, and Mr. Mahjoub did not follow that procedure. He reasoned as follows:
I am of the view that there is an appeal procedure in place for the Applicant to challenge the order. The Applicant seeks an order to be relieved of the conditions of release set out in the consent order dated February 9, 2021. The Applicant did not seek to appeal the order and did not request that the Federal Court certify the question for appeal.
I find that the Applicant may not use the writ of habeas corpus to challenge an order of the Federal Court when he has not pursued an appeal to the Federal Court of Appeal as set out in the IRPA. As noted by Wilson J. in Gamble, at para. 74, “courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process.”
[44] 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), 69 O.R.(2d) 253 (C.A.), leave to appeal to S.C.C. refused, [1989] 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, [2019] 2 S.C.R. 467, at para. 2; see also, May v. Ferndale Institution, 2005 SCC 82, [2005] 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:
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.
D. issues on appeal
[45] Mr. Mahjoub submits that the motion judge erred in staying the application for two reasons:
a. The motion judge erred in applying the exception based on Mr. Mahjoub’s rights of appeal because the exception only applies in the criminal context and because the IRPA does not in fact give him a full right of appeal; and
b. The motion judge erred in applying the Peiroo exception because, in considering whether the IRPA scheme is as advantageous as habeas corpus, he incorrectly assessed key elements of the scheme, including whether the applicant effectively bore the onus and the scope of the Federal Court’s review.
[46] The Minister’s position is that the motion judge did not err in finding that Mr. Mahjoub has a right of appeal in the Federal Court and that the scheme under the IRPA is as advantageous as habeas corpus. However, the Minister argues that the motion judge erred in finding that the Superior Court in Ontario has jurisdiction to grant habeas corpus in relation to an order made by the Federal Court.
[47] Therefore, the issues on appeal are as follows:
a. Does the Superior Court have jurisdiction over the application for habeas corpus?
b. Did the motion judge err in finding that Mr. Mahjoub has a right of appeal from his conditions of release and that such a right of appeal should preclude him from bringing the application?
c. Did the motion judge err in finding that the security scheme under the IRPA is as advantageous as habeas corpus and that the Peiroo exception should therefore preclude him from bringing the application?
[48] Before addressing these specific issues, I start with a general discussion about the availability of habeas corpus.
E. Discussion
(1) Habeas Corpus
[49] Habeas corpus is available to challenge an unlawful deprivation of liberty.
[50] In Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 29, the Supreme Court emphasized that habeas corpus “has become an essential remedy in Canadian law” and that it is essential to the protection of fundamental rights entrenched in the Charter, such as the s. 7 right not to be deprived of the right to liberty except in accordance with the principles of fundamental justice and the s. 9 right not to be arbitrarily detained or imprisoned: see also May, at para. 22. Moreover, s. 10(c) of the Charter specifically provides for the right to challenge a detention by way of habeas corpus:
10 Everyone has the right on arrest or detention
…
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [Emphasis added.]
[51] Habeas corpus is not a discretionary remedy. A provincial superior court is required to grant habeas corpus where it is satisfied that the applicant is unlawfully detained: Chhina, at para. 18.
[52] As held in Khela, at para. 30, in order to succeed on an application for habeas corpus, applicants must establish that (1) they have been deprived of liberty; and (2) there are legitimate grounds for challenging the legality of the deprivation of liberty. If applicants are able to establish these criteria, the onus shifts to the responding authority to show that the deprivation of liberty was lawful: see also Chhina, at para. 17; May, at para. 74.
[53] Provincial superior courts have inherent jurisdiction to hear an application for habeas corpus: Chhina, at para. 17; May, at para. 29. However, there are two limited exceptions where a superior court should decline jurisdiction to hear an application for habeas corpus. In Chhina, at para. 2, the Supreme Court described the two exceptions as follows:
Despite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability. First, a provincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in the Criminal Code, R.S.C. 1985, c. C-46 (see R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 636-37). Second, a provincial superior court should also decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 40). This second exception has come to be known as the Peiroo exception (see Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (C.A.)). [Emphasis added.]
[54] In Chhina, at para. 29, the Supreme Court explained that the rationale for the two exceptions is to ensure that “the constitutional right to habeas corpus is protected, while also realizing judicial economy, avoiding duplicative proceedings, and reducing the possibility of inconsistent decisions and forum shopping”.
[55] This appeal deals with the motion judge’s application of both exceptions. The specific scope of each exception is discussed in more detail below. However, before addressing the exceptions, I first address the Minister’s jurisdiction argument.
(2) Standard of review
[56] The Superior Court’s decision whether to decline habeas corpus on the basis of a recognized exception is discretionary: R. v. Graham, 2011 ONCA 138, 275 O.A.C. 200, at para. 19[1]. Accordingly, this court will only interfere with the motion judge’s decision if he made an error of law or principle, or if he made a palpable and overriding error of fact or mixed fact and law.
(3) Whether the Superior Court has jurisdiction
[57] 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.
[58] 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] 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.
[59] In R. v. Gamble, [1988] 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”.
[60] 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.
[61] 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.
(4) Whether the route of appeal exception applies
[62] 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.
[63] 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, [2019] 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.
[64] 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.
[65] 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.
[66] Again, in my view, the proper lens through which the court should look at this matter is the Peiroo exception, which was specifically developed to address the availability of habeas corpus in the immigration context. I now turn to that analysis.
(5) Whether the Peiroo exception applies
[67] 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.
[68] 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
[69] 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.
[70] 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.
[71] 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.]
[72] 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.
[73] 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.
[74] In this case, relying on R. v. Zundel, 2003 CanLII 23552 (Ont. S.C.), aff’d 241 D.L.R. (4th) 362 (Ont. C.A.), leave to appeal refused, [2004] 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.
[75] 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.
[76] I now turn to address the specific arguments Mr. Mahjoub makes about the disadvantages of this process as compared to habeas corpus.
(2) The Federal Court can address Mr. Mahjoub’s arguments regarding the length and indeterminacy of his detention
[77] As mentioned above, Mr. Mahjoub argues that the review process under the IRPA is disadvantageous because it is based on a review of the change in circumstances from one review to another, and this precludes him from arguing that the overall length of time he has been subject to restrictions on his liberty is a breach of his Charter rights. In contrast, on an application for habeas corpus, the Superior Court can “take a step back” and look at whether the overall length and indeterminacy of the conditions of release violate his Charter rights. I disagree.
[78] As indicated above, s. 82(4) of the IRPA gives a person subject to conditions of release in the context of security certificate proceedings a right to review those conditions every six months. On a review, pursuant to s. 82.1(1), the designated judge can vary conditions of release “if the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”.
[79] The test developed by the Federal Court to review previous conditions of release under s. 82(4) of the IRPA involves considering the following seven factors:
1. The history of proceedings and past decisions pertaining to reviews of detention and release from detention with conditions;
2. The court’s assessment of the danger to the security of Canada or to other persons associated with the applicant in light of all the evidence presented;
3. The decision, if any, on the reasonableness of the certificate;
4. The elements of trust and credibility related to the behaviour of the applicant after having been released with conditions and his compliance with them;
5. The uncertain future as to the finality of the procedures;
6. The passage of time; and
7. The impact of the conditions of release on the applicant and his family and the proportionality between the danger posed by an applicant and the conditions of release.
See Mahjoub (Re), 2014 FC 720, at para. 44; Mahjoub (Re), 2017 FC 603, at para. 42; see also Harkat v. Canada (Minister of Citizenship and Immigration), 2013 FC 795, at para. 26; Charkaoui, at paras. 110-21.
[80] It is evident from the factors listed above that the Federal Court is to consider the overall length of the detention or, as in this case, the length of time conditions of release have been imposed when conducting a review. For example, the court is to look at the passage of time and the uncertainty of the future. Therefore, while s. 82.1(1) of the IRPA specifies that a judge has the power to vary an order on review where they are satisfied that there has been a “material change in the circumstances that led to the order”, the test developed under this provision is retrospective as well as prospective, and allows the court to look at the overall length of the conditions of detention.
[81] Mr. Mahjoub has sought several reviews of his detentions and conditions of release in the Federal Court. On each review, the Federal Court has written comprehensive reasons and has considered each of the factors separately: see Mahjoub (Re), 2011 FC 506; Canada (MCI) v. Mahjoub, 2012 FC 125; Mahjoub (Re), 2013 FC 10; Mahjoub (Re), 2013 FC 1257; Mahjoub (Re), 2014 FC 720; Mahjoub (Re), 2015 FC 1232; Mahjoub (Re), 2016 FC 808; Mahjoub (Re), 2017 FC 603. Moreover, the Federal Court has consistently considered the length of time the proceedings are taking, and has stated that this factor weighs in Mr. Mahjoub’s favour.
[82] In addition, as with the Superior Court, the Federal Court has jurisdiction to consider Charter issues: Federal Courts Act, R.S.C. 1985, c. F-7, s. 17(1). There is nothing preventing Mr. Mahjoub from raising the issue of whether the length and indeterminacy of his detention violate his Charter rights as part of his request for a review. In fact, the Federal Court’s review decision in 2017 refers to Mr Mahjoub’s intention to bring a Charter application. While it appears that the matter was never argued, the Federal Court did not rule that Mr. Mahjoub was precluded from making the argument; rather, there appeared to be issues over whether the review and Charter issues should be heard together or separately: Mahjoub (Re), 2017 FC 334, at paras. 1-2.
[83] In arguing that the Federal Court will not consider the overall length and indeterminacy of his detention, Mr. Mahjoub urges this court to look at the practical realities of how the Federal Court has handled his prior reviews. He argues that the court has not looked at the overall length and indeterminacy of time over which he has been subject to conditions or release, but rather only looks at whether there have been changes in circumstance over the review period. Again, looking at the review decisions, I am not satisfied that the Federal Court has refused to review the overall length or uncertain future of his restrictions, especially given that these are factors the court is mandated to consider. In addition, unlike in Chhina or Chaudhary where the courts were presented with systemic evidence about how the review process under Division 6 of the IRPA works practically, Mr. Mahjoub did not put forward any evidence in support of his argument that the practical realities of the review scheme under the security certificate scheme in Division 9 of the IRPA mean that he cannot effectively advance the arguments he seeks to advance in the habeas corpus application.
[84] Finally, Mr. Mahjoub’s argument that the scope of the review process in the IRPA precludes him from making arguments about the overall length and indeterminacy of his conditions of release is undermined by the fact that the last time he sought such a review hearing in the Federal Court was in 2017. Since that time, Mr. Mahjoub and the Minister have agreed to two consent orders, in 2018 and 2021, varying and attenuating the conditions of his release. In 2021, rather than proceeding to a review hearing in the Federal Court, Mr. Mahjoub brought his application for habeas corpus in the Superior Court. In the circumstances, given that Mr. Mahjoub has not sought a review of his conditions of release on the basis of their length and indeterminacy since 2017, there is no basis for determining that the Federal Court would not allow him to raise the issues he now seeks to raise in the Superior Court on habeas corpus.
(3) The onus is on the Minister
[85] Mr. Mahjoub argues that the onus of proof is a disadvantage for him in the IRPA review process as compared to habeas corpus. I disagree.
[86] On habeas corpus, an applicant must raise a legitimate ground for review of a detention, after which “the onus is on the Minister to justify the legality of the detention in any respect”: Chhina, at para. 60.
[87] As the motion judge found, in the security certificate context, the onus is on the Minister to prove that detention or conditions of release remain necessary. This is evident from the Federal Court’s decision in Mahjoub (Re), 2013 FC 10, at para. 60, where the court states “in a review of the conditions of release of a named person pursuant to subsection 82(5) of the IRPA, the onus is on the Ministers to demonstrate that the named person poses a danger to the security of Canada and that particular measures in place or proposed are necessary to address that danger.” It is also evident from the other Federal Court decisions reviewing the conditions of Mr. Mahjoub’s release, where the court has consistently emphasized that the burden is on the Minister.
[88] Relying on Chhina and Chaudhary, Mr. Mahjoub again argues that the practical realities of the review process under the IRPA make the burden of proof disadvantageous. However, the scheme at issue in Chhina and Chaudhary is different than in this case. Under the review scheme in Division 6 of the IRPA, the Minister only has to establish a prima facie case for detention based on one factor in a list of factors, after which the onus shifts to the detainee: Chhina, at para. 60; Chaudhary, at para. 86. In addition, in Chhina, at para. 63, and Chaudhary, at para. 89-90, the applicants had put forward evidence that, as a matter of practice, officers in the Immigration Division placed the burden on detainees to show that there was a change in circumstances from one review to another. There is no such evidence in this case.
[89] Accordingly, there is no evident disadvantage with respect to the burden of proof to Mr. Mahjoub in seeking a review under the IRPA.
(4) The security certificate scheme has unique advantages
[90] Most importantly, in this case, it is necessary to take a step back and look at the process under the IRPA from a broader perspective. The Supreme Court in Chhina, at para. 43, held that a statutory “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): see also para. 58. Consequently, unique advantages presented by a statutory scheme, as compared to habeas corpus, should be considered.
[91] To that extent, I note that none of the cases since Chhina have considered the Peiroo exception in the context of the security certificates scheme in the IRPA. This is a highly specialized statutory scheme, with unique advantages of its own: Zundel (Ont. C.A.), at paras. 5-6. Only designated judges of the Federal Court are entitled to consider whether Mr. Mahjoub poses a security risk, and whether he should be in detention while this issue is determined and, if not, his conditions of release. Some of the information and evidence relevant to these inquiries can be kept from Mr. Mahjoub and a special advocate is available to represent his interests. This is quintessentially what one would describe as a specialized and expert process.
[92] If the application for habeas corpus were allowed to proceed in the Superior Court, the judge of that court would not have the authority to consider the full evidence that may be relevant to determining whether the length of time Mr. Mahjoub has been subject to conditions and the nature of those conditions is justified. For example, there may be a reasonable explanation for the delay in conducting the Danger Opinion, but the explanation may be based on information that cannot be released to the public because of issues of national security or because it poses a risk to others. In addition, the special advocate system is only available in the Federal Court system.
[93] During the hearing, Mr. Mahjoub’s counsel argued that the Superior Court could work with the Federal Court to ensure that the relevant information is available to the Superior Court judge. There is no provision for such a process in the IRPA and therefore no legal basis on which such a procedure could be devised. More to the point, it is difficult to understand how such a convoluted and uncertain process is more advantageous than Mr. Mahjoub proceeding with another review request in the Federal Court, where he can raise the Charter issues that he seeks to raise on the application for habeas corpus.
[94] I recognize that this reasoning is akin to saying that the Superior Court does not have jurisdiction over an application for habeas corpus in cases involving security certificates. Given the Federal Court’s exclusive jurisdiction over the information and evidence relevant to issues of national security, applications for habeas corpus in the security context will likely indeed be generally unavailable. Recognizing the fundamental importance of habeas corpus in protecting liberty interests, this decision does not foreclose the possibility that such a case could proceed by way of an application for habeas corpus in the Superior Court. However, in the circumstances of this case, I am satisfied that the specialized procedure under the IRPA for reviewing Mr. Mahjoub’s conditions of release is at least as broad and advantageous as an application for habeas corpus in the Superior Court.
(6) Conclusion
[95] While I agree with Mr. Mahjoub that the motion judge erred in finding that the criminal appeal exception applies to this case, he made no error in concluding that the Peiroo exception applies and that Mr. Mahjoub’s application for habeas corpus should be stayed.
F. Disposition
[96] I would dismiss the appeal.
[97] As agreed between the parties, the Minister is entitled to costs of $2,000, inclusive of HST and disbursements.
Released: April 17, 2023 “K.F.”
“L. Favreau J.A.”
“I agree. K. Feldman J.A.”
“I agree. Alexandra Hoy J.A.”
[1] However, as noted in Graham, at footnote 3, “once jurisdiction is accepted and it is established that the applicant’s detention is illegal, the decision whether to grant habeas corpus is not discretionary”.