Court Of Appeal For Ontario Invokes Transfer Provisions To Hear Habeas Corpus Appeal

In Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681, the Court of Appeal for Ontario recently invoked subsection 6(2) of the Courts of Justice Act to ground jurisdiction to hear an appeal from the dismissal of a habeas corpus application. Under subsection 8(1) of the Habeas Corpus Act, an appeal from such an order lies to the Divisional Court, not the Court of Appeal. In Toure, however, the Court of Appeal had jurisdiction over the Crown's cross-appeal from relief granted under section 24 of the Canadian Charter of Rights and Freedoms, and this permitted the Court of Appeal to assume jurisdiction over the habeas corpus appeal as well.

The appeal transfer provisions of the Courts of Justice Act are discussed in Chapter 1, Part G of Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition. Subsection 6(2) provides that the Court of Appeal for Ontario may assume jurisdiction in an appeal that lies to the Divisional Court (or the Superior Court) where an appeal in the same proceeding lies to the Court of Appeal. This is an efficient expansion of appellate jurisdiction for the Court of Appeal, but its practical significance is limited by an important caveat: As discussed in Sopinka and Gelowitz on the Conduct of an Appeal, where an appeal lies to the Divisional Court only with leave, a party must seek and obtain leave from the Divisional Court before the Court of Appeal may take up the appeal.

Toure is an interesting example of a case where this caveat was not a limitation. Under subsection 8(1) of the Habeas Corpus Act, a person has a right of appeal to the Divisional Courtwithout any requirement to obtain leavewhere his or her habeas corpus application is denied. In Toure, the individual unsuccessfully sought an order releasing him from immigration detention, thereby grounding a...