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 Court—without any requirement to obtain leave—where his or her habeas corpus application is denied. In Toure, the individual unsuccessfully sought an order releasing him from immigration detention, thereby grounding a habeas corpus appeal to the Divisional Court. Additionally, the Court of Appeal had jurisdiction over an appeal taken in the same proceeding for purposes of subsection 6(2). Specifically, the Crown cross-appealed from the application judge’s order granting relief under the Charter to transfer the individual from a maximum security jail to an immigration detention centre. As this order was granted pursuant to the Charter, the cross-appeal lay to the Court of Appeal.[1]

Interestingly, the Court of Appeal concluded its jurisdictional analysis by noting that subsection 6(2) gave it “the requisite jurisdiction to hear the appeals” and did not go on to consider expressly whether it ought to exercise that jurisdiction on the facts of the case. Although not reflected in Toure, it is worth noting that subsection 6(2) is discretionary and not automatic. Indeed, there are cases where the Court of Appeal has refused to exercise its discretion under subsection 6(2) even though the parties agreed that the Court ought to hear the appeal. See, for example, Cavanaugh v. Grenville Christian College, 2013 ONCA 139, discussed in our previous post of March 12, 2013.