The October 7, 2015 decision of the Ontario Court of Appeal in R. v. Ogiamien held that the Court of Appeal has no jurisdiction to order a Superior Court judge to issue certain orders and proceed in a certain matter in a much delayed habeas corpus application. The decision also helpfully illustrates that:

  • interlocutory orders are not appealable to the Court of Appeal in a habeas corpus application; and
  • requesting a “show cause” order, and then appealing the refusal to grant it, cannot circumvent the need to first determine issues of jurisdiction in a habeas corpus.

Justice Sharpe’s endorsement read in full:

[1]  The appellant has filed two notices of appeal in relation to his on-going habeas corpus application in the Superior Court of Justice. In the habeas corpus application, the appellant challenges the legality of his detention for immigration purposes. His first notice of appeal relates to the decision of Coats J., the judge hearing the on-going habeas corpus application, refusing the appellant’s “show cause” motion and denying a second “emergency show cause” request. The second notice of appeal relates to a decision of Miller J. refusing to grant a writ of mandamus and a “show cause” order on the ground that the relief sought was duplicative of the issues already raised in the habeas corpus application before Justice Coats.

[2]  There is an issue as to whether the Superior Court should exercise its habeas corpus jurisdiction and until that issue has been resolved, the Superior Court is not in a position to grant the appellant the relief he seeks. This matter was before Justice Coats again yesterday, October 5, when she made a detailed endorsement setting out the timetable for completion of the habeas corpus application. The appellant is clearly frustrated with the time it has taken to have his habeas corpus application decided. I am not in a position to assess who is responsible for the delay but as counsel for the Attorney General agreed, habeas corpus applications should be dealt with quickly and expeditiously. I note that in her October 5 endorsement, Justice Coats lays a significant part of the responsibility for the delay at the feet of the appellant.

[3]  The appellant asks me to direct Justice Coats to issue certain orders and to proceed in certain manner. I have no jurisdiction to grant that relief. The appellant is appealing interlocutory orders made during the course of his habeas corpus application. Those orders are not appealable to this court [and] any intervention from this court must await the final determination of the habeas corpus application. I have no authority to direct the Superior Court judge how she should proceed as until the Superior Court has completed its proceedings and made a final order, this court has no jurisdiction. I do not agree with the appellant’s submission that the refusal to issue a “show cause” order pending determination of the Superior Court’s jurisdiction amounted to a final order from which an appeal lies to this court. The appellant’s request for a show cause order was simply a device to circumvent the need to proceed in an orderly manner and to have the issue of jurisdiction determined first.

[4]  Accordingly, I dismiss this motion and direct that these appeals be removed from the inmate appeals list pending a final decision from the Superior Court on the habeas corpus application.