Barrister and Solicitor
Legal Writing and Research
Judicial Review - Habeas Corpus
Chaudhary v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2015)
In this immigration detention case the Court of Appeal considered whether, despite their failure to obtain their release within the immigration appeal system of the Federal Court, the appellants could avail themselves of the common law prerogative writ remedy of habea corpus in the Superior Court. During an extended analysis of the merits of the two legal regimes, in which it decided that the appellants could do so (thus sending the cases to Superior Court for this purpose), the court expounded usefully on the nature of habeas corpus as follows :
C. The writ of habeas corpus
 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 means of protecting individual liberty”: R.J. Sharpe, J. Farbey & S. Atrill, The Law of Habeas Corpus, 3rd ed. (New York: Oxford University Press, 2011), at p. 1. The writ is thus often referred to as the “Great Writ of Liberty”: see May v. Ferndale Institution, 2005 SCC 82 (CanLII),  3 S.C.R. 809, at para. 19; R. v. Gamble, 1988 CanLII 15 (SCC),  2 S.C.R. 595, at p. 645. It has also been described as “the great and efficacious writ, in all manner of illegal confinement”: D. Parkes, “The ‘Great Writ’ Reinvigorated? Habeas corpus in Contemporary Canada” (2012) 36 Man. L.J. 351, at p. 352.
 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). 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. 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),  2 S.C.R. 613, at p. 626.
 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 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.
 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).