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Habeas Corpus - Overview

. 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.


[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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