Habeas Corpus

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• < Procédure et pratique
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General Principles

Habeas Corpus refers to the common law prerogative writ of relief that challenges the detention of a detainee. A prerogative writ is a manner of correcting errors of jurisdiction made by inferior courts as well as correcting failures of natural justice or procedural fairness.

This prerogative writ was also imported into section 10(c) of the Charter:

10. Everyone has the right on arrest or detention...

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

– CCRF

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Section 10(c) does not change the law of habeas corpus so much as it constitutionally entrenches it.

Jurisdiction

Superior provincial courts have the ability to hear habeas corpus applications seeking to review decisions by prison authorities to reduce "residual liberty" for federal inmates. The Superior Courts also have discretion to decline jurisdiction to review under Habeas Corpus where there exists a "complete, comprehensive and expert procedure for review." The Parole Board of Canada is one such form of review.

Burden of Proof

The onus of proof to establish the deprivation rests on the applicant while the onus to establish the lawfulness of the deprivation rests on the detaining authority.

Requirements

An application for habeas corpus requires:

1. a deprivation of liberty and
2. that the deprivation be unlawful.

The writ of habeas corpus requires a "generous and flexible interpretation."

Timing

A failure to pursue options of appeal within the appropriate time limitation can close access to habeas corpus.

Review of Parole Decisions

Courts should refuse to hear habeas corpus applications that challenge the Parole Board of Canada, including parole officers. Such form of review is an abuse of the court's process.

Review of Bail Decisions

Absent exceptional circumstances, a decision to deny an application for release on bail pending sentencing is not subject of habeas corpus review.

Procedure

The applicant's personal attendance in court is necessary for an application of habeas corpus:

Appearance in person — habeas corpus

774.1 Despite any other provision of this Act, the person who is the subject of a writ of habeas corpus must appear in court in person.
2002, c. 13, s. 77; 2022, c. 17, s. 50(E).

– CCC (CanLII), (Jus.)

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Detention on inquiry to determine legality of imprisonment

775 Where proceedings to which this Part applies have been instituted before a judge or court having jurisdiction, by or in respect of a person who is in custody by reason that he is charged with or has been convicted of an offence, to have the legality of his imprisonment determined, the judge or court may, without determining the question, make an order for the further detention of that person and direct the judge, justice or provincial court judge under whose warrant he is in custody, or any other judge, justice or provincial court judge, to take any proceedings, hear such evidence or do any other thing that, in the opinion of the judge or court, will best further the ends of justice.
R.S., 1985, c. C-46, s. 775; R.S., 1985, c. 27 (1st Supp.), s. 203.

– CCC (CanLII), (Jus.)

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Provincial Rules of Court will have some direction on the exact process required for making application and responding to one.

Deprivation of Liberty

Occupancy of a Cell

The "double bunking" of inmates is generally not considered a from of deprivation of residual liberty. Similarly, housing an inmate in a double occupancy room instead of a usual single occupancy does not engage a deprivation of liberty.

Access to Resources in Custody

The restriction on access to legal research and other aspects of criminal legal proceedings.

Bail Conditions

A habeas corpus application cannot be brought to challenge house arrest bail conditions.

Sufficiency of Reasons

A decision to suspend parole must be accompanied by reasons. Where reasons are not given, the decision becomes unlawful, jurisdiction is lost, and so is reviewable under hebeas corpus.

An inmate who is transferred to a higher security level of prison must be provided with sufficient information to permit a meaningful opportunity to challenge the allegations or else jurisdiction may be lost.

See Also

• Mandamus, Certiorari, and Prohibition
• Appeals#Prerogative Writs