Habeas Corpus

• Author: Matthew Asma/Matthew Gourlay
• Pages: 173-192

173

Habeas Corpus

6

I. Introduction ............................................. 

II. Key Concepts in This Chapter ............................... 

III. The Two-Stage Review ...................................... 

A. First Stage: Whether to Issue the Writ of Habeas Corpus .... 

B. Second Stage: Reviewing the Validity of the Detention ...... 

C. Specic Procedural Points ............................. 

IV. Habeas Corpus Not Available if a Complete Statutory

Alternative Exists ......................................... 

A. Detention Pending Trial ............................... 

B. Imprisonment Following Conviction .................... 

C. Detention Following an NCR Verdict .................... 

V. Appeals ................................................. 

© 2023 Emond Montgomery Publications. All Rights Reserved.

174 Charter Remedies in Criminal Cases

I. Introduction

The writ of habeas corpus is an ancient common law remedy, now constitutionally

entrenched in Canada by section10(c) of the Charter. The remedy is both procedural

and substantive. It provides, first, a procedure for review by an impartial judge of the

validity of a person’s detention, and, second, if the detention is unlawful, it provides

authority to order the person released or other restrictions on their liberty removed.

The right to habeas corpus review is recognized by the Supreme Court of Canada as

an important protection of both the Charter section7 right to liberty and the Charter

section9 right to be free from unreasonable detention.1

Habeas corpus involves a two-stage review. First, the claimant must establish a

deprivation of liberty and must raise a legitimate reason to question the legality of that

deprivation. If the claimant does both those things, then a writ of habeas corpus must

issue (subject to a major exception, described below and explained in SectionIV).

The eect of the writ is to bring the claimant personally before the judge for the sec-

ond stage of review. At the second stage, on return of the writ, the legal burden shifts

onto the authorities responsible for detaining the claimant to prove that the detention

or the conditions thereof are lawful.2

Significantly for criminal practitioners, the remedy of habeas corpus is generally

not available if another eective remedy is provided by law.3 Given that procedures

around bail, bail review, and appeals against conviction and sentence have all been

codified in Canada, this means that habeas corpus is rarely sought and even more rarely

granted in criminal matters. However, it retains an important residual function when

the constitutionality of the statutory scheme by which the claimant was denied liberty

is itself under attack.

When invoked as a civil remedy, habeas corpus is still frequently used to challenge

the conditions of imprisonment for prisoners serving sentences (see SectionIV.B.4,

below) and also to challenge immigration detentions (not addressed in this text).4

1 May v Ferndale Institution, 2005 SCC 82 at para 22.

2 Mission Institution v Khela, 2014 SCC 24 at para 30.

3 May v Ferndale Institution, supra note 1 at para 50; Canada (Public Safety and Emergency Pre-

paredness) v Chhina, 2019 SCC 29 at para 2.

4 But see, generally, Canada (Public Safety and Emergency Preparedness) v Chhina, supra note 3.

Box 6.1 Charter Section 10(c)

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.

© 2023 Emond Montgomery Publications. All Rights Reserved.