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
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
Justice Sharpe's endorsement read in full:
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.
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
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
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.
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