Habeas Corpus

Julia Amelio
July 11, 2019

Existing since the 13th century, habeas corpus is both a free-standing right and, more recently, a right protected under section 10(c) of the Charter.[1] Habeas Corpus translates to “produce the body”.[2] A habeas corpus application is used by persons who feel they are being wrongfully detained. Upon application, the individual is brought before a judge who will determine whether the detainment is lawful. Provincial courts must hear these applications quickly.

The right is available to all individuals in Canada, including refugees and immigrants.[3] Habeas corpus is most often used when a person is being detained against their will and is suffering a deprivation of liberty. Most applications are brought by prisoners detained in correctional institutions and by immigration, child welfare, and mental health detainees.[4] An example of an unlawful detainment is a prisoner being moved from a minimum-security prison to a maximum-security prison without being told why he or she is being moved. If habeas corpus is granted, the individual’s detainment will change such that it is no longer considered illegal. This could include moving a prisoner from a maximum-security back to a minimum-security prison or even releasing the prisoner all together.

The Supreme Court of Canada has described habeas corpus as a “vehicle for reviewing the justification for a person’s imprisonment”.[5] A habeas corpus application will typically be approved in cases where an individual has proved two things:

  1. Their liberty was deprived in some way.[6] Three circumstances typically lead to a deprivation of liberty:
    1. The initial decision to detain an individual;
    2. A change in the conditions of the detention; or
    3. The continuation of the detention[7]
  2. There are legitimate grounds to question the legality of the detention[8]

If the applicant successfully proves these two things, it is then up to the authority detaining the individual to prove that this limitation of the individual’s freedom is legal.[9]

Habeas corpus is limited only in two ways:

  1. It cannot be used by an individual to challenge a finding of guilt or the punishment they received;
  2. It cannot be used if there is another process in place that is as good as, or better than, habeas corpus such as a review and appeal process provided by statute.[10]

[1] Canadian Charter of Rights and Freedoms, s 10(c), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] Colleen M Flood & Lorne Sossin, Administrative Law in Context, 3rd ed (Toronto: Edmond Montgomery Publications Limited, 2018) at 78.

[3] Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 .

[4] Flood and Sossin, supra note 2 at 78.

[5] Mission Institution v Khela, 2014 SCC 24 at para 30 .

[6] Ibid.

[7] Chhinasupra note 3 at para 22.

[8] Khela, supra note 5 at para 30.

[9] Ibid.

[10] Chhina, supra note 3 at para 2.

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Centre for Constitutional Studies
448D Law Centre
University of Alberta
Edmonton, AB T6G 2H5
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