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Habeas Corpus - General. Mahjoub v. Canada (Public Safety and Emergency Preparedness)
In Mahjoub v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2023) the Court of Appeal considers habeas corpus as an historical discretionary challenge to the state's deprivation of liberty, and it's two exceptions:(1) Habeas Corpus
[49] Habeas corpus is available to challenge an unlawful deprivation of liberty.
[50] In Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 29, the Supreme Court emphasized that habeas corpus “has become an essential remedy in Canadian law” and that it is essential to the protection of fundamental rights entrenched in the Charter, such as the s. 7 right not to be deprived of the right to liberty except in accordance with the principles of fundamental justice and the s. 9 right not to be arbitrarily detained or imprisoned: see also May, at para. 22. Moreover, s. 10(c) of the Charter specifically provides for the right to challenge a detention by way of habeas corpus:10 Everyone has the right on arrest or detention
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(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [Emphasis added.] [51] Habeas corpus is not a discretionary remedy. A provincial superior court is required to grant habeas corpus where it is satisfied that the applicant is unlawfully detained: Chhina, at para. 18.
[52] As held in Khela, at para. 30, in order to succeed on an application for habeas corpus, applicants must establish that (1) they have been deprived of liberty; and (2) there are legitimate grounds for challenging the legality of the deprivation of liberty. If applicants are able to establish these criteria, the onus shifts to the responding authority to show that the deprivation of liberty was lawful: see also Chhina, at para. 17; May, at para. 74.
[53] Provincial superior courts have inherent jurisdiction to hear an application for habeas corpus: Chhina, at para. 17; May, at para. 29. However, there are two limited exceptions where a superior court should decline jurisdiction to hear an application for habeas corpus. In Chhina, at para. 2, the Supreme Court described the two exceptions as follows:Despite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability. First, a provincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in the Criminal Code, R.S.C. 1985, c. C-46 (see R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, at pp. 636-37) [SS: this exception needs a name, the court refers to it as the 'route of appeal' exception at para 62]. Second, a provincial superior court should also decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 40). This second exception has come to be known as the Peiroo exception (see Peiroo v. Canada (Minister of Employment and Immigration) (1989), 1989 CanLII 184 (ON CA), 69 O.R. (2d) 253 (C.A.)). [Emphasis added.] [54] In Chhina, at para. 29, the Supreme Court explained that the rationale for the two exceptions is to ensure that “the constitutional right to habeas corpus is protected, while also realizing judicial economy, avoiding duplicative proceedings, and reducing the possibility of inconsistent decisions and forum shopping”. . Canada (Public Safety and Emergency Preparedness) v. Chhina
In Canada (Public Safety and Emergency Preparedness) v. Chhina (SCC, 2019) the Supreme Court of Canada canvasses the history and status of habeas corpus:[17] Provincial superior courts have inherent jurisdiction to hear habeas corpus applications (May, at para. 29). An application for habeas corpus requires the applicant to establish a deprivation of liberty and to raise a legitimate ground for questioning the legality of that deprivation. If this is accomplished, the onus then shifts to the authority in question to show that the deprivation of liberty is lawful. In order for detention to be lawful, the decision-maker must have authority to order detention, the decision-making process must be fair, and the decision to detain must be both reasonable and compliant with the Charter (May, at para. 77; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 72). Changes in conditions or orders leading to further deprivations of liberty may also be challenged in the same manner. Where, as here, the application is brought with certiorari in aid, the court hearing the application conducts its review on the basis of the record that resulted in the decision (J. Farbey, R. J. Sharpe and S. Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 45; Mission Institution v. Khela, at para. 35; R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, at p. 624).
[18] The writ of habeas corpus is not a discretionary remedy; it issues as of right where the applicant successfully challenges the legality of a detention. A provincial superior court may not decline jurisdiction to hear such an application merely because alternative remedies are available (May, at paras. 34 and 44). Such a court may only decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May, at para. 40; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 65). As Mr. Chhina’s case illustrates, this analysis must be undertaken regarding the nature of the specific challenge to the legality of the detention raised in the habeas corpus application.
[19] Habeas corpus — which roughly translates to “produce the body” — was a familiar phrase in 13th century English civil procedure; it required the defendant of an action to be brought physically before the court (Farbey, Sharpe and Atrill, at p. 2). During the 15th and 16th centuries, habeas corpus took on its modern form, permitting an applicant to demand justification for their detention (at p. 4) and becoming the “great and efficacious writ in all manner of illegal confinement” (W. Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs (2016), by T. P. Gallanis, at p. 89). Habeas corpus has never been “a static, narrow, formalistic remedy”; rather, over the centuries, it “has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty” (May, at para. 21, citing Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243).
[20] Habeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape. Before the advent of the Charter, s. 2 of the Canadian Bill of Rights, S.C. 1960, c. 44, established that no law of Canada would be construed or applied so as to deprive a person of a determination on the validity of their detention, and provided for release where that detention was found to be unlawful. In 1982, habeas corpus became a constitutional right entrenched in s. 10(c) of the Charter:10. Everyone has the right on arrest or detention
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(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [21] The review of legality under habeas corpus is broad, often protecting and interacting with other Charter rights, including: the right to life, liberty and security of the person, as guaranteed by s. 7; the right not to be arbitrarily detained or imprisoned, as guaranteed by s. 9; and the right not to be subjected to any cruel and unusual treatment or punishment, as guaranteed by s. 12.
[22] The case of Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459, helpfully illustrates different circumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged. A deprivation of liberty may relate to (1) the initial decision requiring the detention; or to a further deprivation of liberty based on (2) a change in the conditions of the detention; or (3) the continuation of the detention.
[23] While not exhaustive, this list may be particularly helpful in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining the relevant case-law. For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initial deprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution is emblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration, which may engage ss. 7 and 9 of the Charter, as was argued here (and in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220).
[24] Regardless of how a deprivation of liberty arises, the importance of the “great writ of liberty” underlies the general rule that exceptions to the availability of habeas corpus must be limited and carefully defined.
[25] To date, this Court has recognized only two instances where a provincial superior court may decline to hear a habeas corpus application. The first allows a provincial superior court to decline jurisdiction where a prisoner seeks to attack the legality of their conviction or sentence, determinations properly challenged through the appeal mechanisms set out in the Criminal Code (Gamble, at p. 636). The second exception arose in the field of immigration law. In Peiroo, the applicant sought issuance of a writ of habeas corpus with certiorari in aid, contesting a finding that there was no credible basis for her refugee claim and arguing that there was therefore no basis for a removal order issued against her. The Ontario Court of Appeal found that the Immigration Act, R.S.C. 1985, c. I-2, then in force established a comprehensive scheme regulating the determination and review of immigration claims in a manner that was “as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid” (Peiroo, at p. 261).
[26] Both of these exceptions acknowledge the development of sophisticated procedural vehicles in our modern legal system and their ability to fully protect fundamental rights such as habeas corpus.
[27] Statutory appeals in criminal matters, previously circumscribed by the common law writs of certiorari and error, were introduced some 500 years after habeas corpus (V. M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L.R. 446, at p. 448). Although the Court affirmed the Criminal Code exception in the context of a Charter challenge in Gamble, the rule pre-empting habeas corpus applications where a statutory appeal is available long pre-dates the Charter (see: In re Trepanier (1885), 1885 CanLII 66 (SCC), 12 S.C.R. 111; In re Sproule (1886), 1886 CanLII 51 (SCC), 12 S.C.R. 140, at p. 204; Goldhar v. The Queen, 1960 CanLII 65 (SCC), [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, 1965 CanLII 94 (SCC), [1966] S.C.R. 356; Karchesky v. The Queen, 1967 CanLII 92 (SCC), [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, 1980 CanLII 207 (SCC), [1980] 2 S.C.R. 265).
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[71] Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention. A provincial superior court should decline its habeas corpus jurisdiction only when faced with a complete, comprehensive and expert scheme which provides review that is at least as broad and advantageous as habeas corpus with respect to the grounds raised by the applicant. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 28). The IRPA has been held to be a complete, comprehensive and expert scheme for immigration matters generally, but it is unable to respond to Mr. Chhina’s challenge in a manner that is as broad and advantageous as habeas corpus and the Alberta Court of Queen’s Bench erred in declining to hear Mr. Chhina’s habeas corpus application. For these reasons, I would allow the motion to adduce new evidence and dismiss the appeal with costs on the basis agreed by the parties. . Chaudhary v. Canada (Public Safety and Emergency Preparedness)
In Chaudhary v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2015) the Court of Appeal comments usefully on habeas corpus:C. The writ of habeas corpus
[38] The prerogative writ of habeas corpus is "a cornerstone of liberty" and "a means of judicial control over the arbitrary behaviour of the executive government". It is "one of the most important safeguards of the liberty of the subject": M. Groves, "Habeas corpus, Justiciability and Foreign Affairs" (2013), 11(3) N.Z. J. Pub. & Int'l L. 587, at p. 588. It is also "the most significant [page413] means of protecting individual liberty": R.J. Sharpe, J. Farbey and S. Atrill, The Law of Habeas Corpus, 3rd ed. (New York: Oxford University Press, 2011) ("Sharpe"), at p. 1. The writ is thus often referred to as the "Great Writ of Liberty": see May v. Ferndale Institution, [2005] 3 S.C.R. 809, [2005] S.C.J. No. 84, 2005 SCC 82, at para. 19; R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, [1988] S.C.J. No. 87, at p. 645 S.C.R. It has also been described as "the great and efficacious writ, in all manner of illegal confinement": D. Parkes, "The aeGreat Writ' Reinvigorated? Habeas corpus in Contemporary Canada" (2012), 36 Man. L.J. 351, at p. 352.
[39] Most significantly in Canada, it is guaranteed by s. 10(c) of the Charter, which reads as follows: "Everyone has the right on arrest or detention . . . to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful." As explained by the Supreme Court of Canada in May, at para. 22: Habeas corpus is a crucial remedy in the pursuit of two fundamental rights protected by the Canadian Charter of Rights and Freedoms: (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7 of the Charter); and (2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter). [40] Sharpe, at p. 21, described the traditional form of review available on habeas corpus as follows:The writ is directed to the gaoler or person having custody or control of the applicant. It requires that person to return to the court, on the day specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the return discloses a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matter directly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant. [41] It is well established that habeas corpus jurisdiction lies almost exclusively in the superior courts of the provinces. Included in this broad jurisdiction is the authority to hear habeas corpus applications with certiorari in aid "to review the validity of a detention authorized or imposed by a federal board, commission or other tribunal as defined by s. 2 of the Federal Court Act, [R.S.C. 1985, c. F-7]": R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, [1985] S.C.J. No. 79, at p. 626 S.C.R.
[42] Habeas corpus is issued as of right and as a matter of principle should "not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court. The option belongs to the applicant" (May, at para. 44). The Supreme Court has outlined two areas where a superior court should exercise its discretion to decline habeas corpus [page414] jurisdiction. The first exception is in the criminal context. Habeas corpus cannot be used to challenge the legality of a conviction. The appeal processes must be followed.
[43] The second exception is pertinent to these appeals. The court, citing Peiroo, explained that a second limitation "gradually developed in the field of immigration law" and is a "limited discretion to refuse to entertain applications for prerogative relief in immigration matters" (May, at para. 39). In those matters, where there is a "complete, comprehensive and expert statutory scheme [in place] which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded" (May, at para. 40). . R. v. Budlakoti
In R. v. Budlakoti (Ont CA, 2021) the Court of Appeal considered basics of habeas corpus in the context of a prisoner:[16] Habeas corpus is an ancient writ that protects a person from unlawful confinement: May v. Ferndale Institution, 2005 SCC 82, at para. 19. To be granted relief, an applicant must 1) establish that they have been deprived of liberty and 2) raise a legitimate ground upon which to question its legality. Once both are established, the onus shifts to the respondent to show that the deprivation of liberty is lawful: Mission Institution v. Khela, 2014 SCC 24, at para. 30; May, at para. 74.
[17] In the context of prisoner claims, there are three different deprivations of liberty that may be challenged: an initial deprivation; a substantial change in conditions amounting to a further deprivation of liberty; and a continuation of the deprivation of liberty, which was lawful but has become unlawful: R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, at pp. 637-38.
[18] In Gamble, the court expanded the availability of habeas corpus and held that it can be used to obtain declaratory relief under s. 24(1) of the Charter.
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[22] Second, I see no error in the application judge’s conclusion that the circumstances alleged by the applicant relating to food, medication, internet, phone, documents, yard time, and professional visits “do not go to the nature of the detention and do not amount to a more restrictive form of confinement.” There is nothing in the record to suggest that the applicant is being treated worse than “the general inmate population” at OCDC or that his “form of confinement or detention” is one in which “the actual physical constraint or deprivation of liberty … is more restrictive or severe than the normal one in an institution”: R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, at p. 641. . Wang v Canada
In Wang v. Canada (Ont CA, 2018) the court canvasses the history and purpose behind the writ of habeas corpus:[13] I begin with the decision in May v. Ferndale Institution, 2005 SCC 82 (CanLII), [2005] 3 S.C.R. 809. While May involved a challenge by federal inmates to the reclassification of their security level within the federal penitentiary system, and was thus factually distinct from the situation here, the importance of the decision for current purposes lies in its review of the history and principles surrounding habeas corpus.
[14] The majority in May reviewed the purpose behind the writ of habeas corpus. Fish and LeBel JJ., at para. 21, quoted from a decision of Black J. in the United States Supreme Court where he said that the purpose of habeas corpus was “the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty”. That protection was stated in broad terms. It was not restricted to imprisonment but to any restraint on a person’s liberty. Such restraints can take many different forms.
[15] The decision in May went on to consider other cases that had touched on the purpose of habeas corpus. It referred to the Supreme Court of Canada’s trilogy of decisions in R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613; Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643; Morin v. National Special Handling Review Committee, 1985 CanLII 24 (SCC), [1985] 2 S.C.R. 662. The court pointed out, at para. 31, that in Miller, Le Dain J. had also described habeas corpus as “the traditional means of challenging deprivations of liberty”. Again, there was no suggestion that the remedy was restricted to incarceration. The court then went on to consider the exceptions to the general right of an individual to resort to habeas corpus to challenge their detention, a subject to which I will return shortly.
[16] Lastly, the court reinforced the importance of the remedy of habeas corpus and the care which courts ought to take in making any determination that it was not available as a route to challenge restrictions on a person’s liberty. Fish and LeBel JJ. said, at para. 50:Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeas corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well defined and limited.
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