2021 QCCA 138, 2021 QCCA 138

Alkhalil c. Correctional Services of the Ministère de la Sécurité Publique 2021 QCCA 138 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007482-217 ( 500-36-009266-191 ) MINUTES OF HEARING DATE: January 25, 2021 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. BENOÎT MOORE, J.A. GUY COURNOYER, J.A.

APPLICANT COUNSEL ROBBY ALKHALIL Mtre ANNIK MAGRI (by videoconference) RESPONDENT COUNSEL THE CORRECTIONNAL SERVICES OF THE MINISTÈRE DE LA SÉCURITÉ PUBLIQUE Mtre EMMANUELLE JEAN Mtre DAVID TREMBLAY ( Bernard, Roy (Justice-Québec) ) (by videoconference) DESCRIPTION: Motion for extension of delay to file a Notice of appeal involving questions of pure law concerning the dismissal of a Motion for Habeas Corpus with Certiorari in Aid (Article 363 C.C.P .) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 10:25 a.m. Commencement of the hearing. Identification of counsel. 10:25 a.m.

Representations by Mtre Jean 10:27 a.m. Submissions by Mtre Magri. 10:34 a.m. With the Court’s permission, the motion is amended by Mtre Magri to make it presentable under art. 363 C.C.P . 10:43 a.m. Submissions by Mtre Jean.

10:49 a.m. Reply by Mtre Magri 10:51 a.m. Recess. 10:59 a.m. Resumption of the hearing. 10:59 a.m. By the Court: judgment – see page 3. Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] Pursuant to s. 77 of the Rules of the Court of Appeal of Quebec in Criminal Matters , the Applicant, Robby Alkhalil, seeks to extend the time limit to file his notice of appeal from a judgment rendered by the Superior Court [1] dismissing his habeas corpus application as moot because he was no longer detained in a provincial correctional institution. [ 2 ] In Snooks c.

Procureur général du Canada , this Court decided that art. 363 of the Code of Civil Procedure , and not s. 784 of the Criminal Code , is applicable to appeals with respect to habeas corpus in correctional matters . [2] [ 3 ] Following this Court’s judgment in Snooks [3] the Court has no jurisdiction under s. 784 of the Criminal Code and s. 77 of our Criminal Rules to extend the time limit to file the notice of appeal. [ 4 ] Given the understandable nature of the procedural mistake, [4] the Applicant, with the Court’s permission, orally amended his motion to make it presentable under art. 363 of the Code of Civil Procedure . [ 5 ] Considering the nature and importance of the writ of habeas corpus , [5] the

summary dismissal of an habeas corpus appeal in correctional matters should be granted sparingly and with caution. [ 6 ] As stated by the Supreme Court in Mission Institution v.

Khela : [6] “ Habeas corpus is in fact the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful”. [ 7 ] In that decision, the Supreme Court nevertheless recognized that in some circumstances, an habeas corpus appeal merits a decision despite being moot. [7] [ 8 ] The factors to be considered in the exercise of the discretion in granting extensions of time under art. 363 C.C.P. includes, most importantly in this case, the merits of the forthcoming appeal. [8] [ 9 ] The respondent did not challenge the circumstances surrounding the delay in filing the appeal.

But, it argued that the case is moot. [ 10 ] In the unique set of circumstances presented, we agree with the motion judge that the lawfulness of the applicant’s past detention was moot in the court below. [9] We also agree with the respondent that the case is moot before this Court. [ 11 ] The Applicant is no longer detained in a provincial correctional institution and is now a federal inmate serving a sentence of approximately 8 years.

Any future review of the lawfulness of his detention in the federal correctional system will have to be considered under the relevant legislation and regulations. [ 12 ] The intended appeal is moot and therefore has no reasonable chance of success. [ 13 ] The motion to extend the time to file a notice should be dismissed. FOR THESE REASONS, THE COURT, [ 14 ] DISMISSES the motion to extend the time to file a notice of appeal under

article 363 of the Code of Civil Procedure , without costs. JACQUES CHAMBERLAND, J.A. BENOÎT MOORE, J.A.

GUY COURNOYER, J.A.