Habeas Corpus

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 92572)

General Principles

See also: Mandamus, Certiorari, and Prohibition

Habeas Corpus refers to the common law prerogative writ of relief that challenges the detention of a detainee. A prerogative writ is a manner of correcting errors of jurisdiction made by inferior courts as well as correcting failures of natural justice or procedural fairness.[1]

This prerogative writ was also imported into section 10(c) of the Charter:

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.


Note up: 10

Section 10(c) does not change the law of habeas corpus so much as it constitutionally entrenches it.[2]


Superior provincial courts have the ability to hear habeas corpus applications seeking to review decisions by prison authorities to reduce "residual liberty" for federal inmates.[3] The Superior Courts also have discretion to decline jurisdiction to review under Habeas Corpus where there exists a "complete, comprehensive and expert procedure for review."[4] The Parole Board of Canada is one such form of review.[5]

Burden of Proof

The onus of proof to establish the deprivation rests on the applicant while the onus to establish the lawfulness of the deprivation rests on the detaining authority.[6]


An application for habeas corpus requires: [7]

  1. a deprivation of liberty and
  2. that the deprivation be unlawful.

The writ of habeas corpus requires a "generous and flexible interpretation."[8]


A failure to pursue options of appeal within the appropriate time limitation can close access to habeas corpus.[9]

  1. R v Forsythe, 1980 CanLII 15 (SCC), [1980] 2 SCR 268, 53 CCC (2d) 225, per Laskin CJ
  2. R v Re Day, 1984 CanLII 5618 (NS SC), 62 NSR (2d) 67 (NSSC)
    R v Wilson, 1986 CanLII 5024 (MB QB), 42 Man R (2d) 222 (Man. Q.B.), per Dureault J
    R v Reimer, 1987 CanLII 7125 (MB CA), 47 Man. R. (2d) 156, per Hall JA
  3. R v Shoemaker, 2019 ABCA 266 (CanLII), per curiam, at para 7 ("Provincial superior courts have the jurisdiction, by way of an application for habeas corpus, to review the validity of decisions by prison authorities to reduce the “residual liberty” of a federal inmate")
    May v Ferndale Institution, 2005 SCC 82 (CanLII), [2005] 3 SCR 809 , per LeBel and Fish JJ
    Mission Institution v Khela, 2014 SCC 24 (CanLII), [2014] 1 SCR 502, per Lebel J, at paras 33 to 34
    R v Miller, 1985 CanLII 22 (SCC), [1985] 2 SCR 613, 24 DLR (4th) 9, per Le Dain J, at para 35
  4. May v Ferndale Institution, supra
  5. Blais v Canada (Attorney General), 2012 NSCA 109 (CanLII), 1018 APR 198, per curiam
  6. May, supra
  7. May v Ferndale Institution, supra at 74
  8. Idziak v Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 SCR 631, [1992] SCJ No 97, per Cory J, at para 26
  9. Boviz v Canada (Attorney General), 2018 ABQB 215 (CanLII), per Henderson J, at para 18
    Ewanchuk v Canada (Parole Board), 2015 ABQB 707 (CanLII), AJ No 1219, per Graesser J, at paras 87 to 88, aff’d on other grounds 2017 ABCA 145 (CanLII), per curiam

Review of Parole Decisions

Courts should refuse to hear habeas corpus applications that challenge the Parole Board of Canada,[1] including parole officers.[2] Such form of review is an abuse of the court's process.[3]

  1. Armaly v Canada (Parole Service), 2001 ABCA 280 (CanLII), 299 AR 188, leave to appeal to SCC refused, 29130 (3 April 2002)
    Lee v Attorney General of Canada, 2018 ABQB 40 (CanLII), 403 CRR (2d) 194, per Shelley J, at paras 147 to 151
  2. Latham v Alberta, 2018 ABQB 141 (CanLII), per Henderson J, at paras 26 to 27
  3. Boviz v Canada (Attorney General), 2018 ABQB 215 (CanLII), per Henderson J, at para 22
    Lee v Attorney General of Canada, supra, at para 151
    Latham #2, supra, at paras 28 to 29

Review of Bail Decisions

Absent exceptional circumstances, a decision to deny an application for release on bail pending sentencing is not subject of habeas corpus review.[1]

  1. R v Passera, 2017 ONCA 308 (CanLII), 352 CCC (3d) 478, per curiam


The applicant's personal attendance in court is necessary for an application of habeas corpus:

Appearance in person — habeas corpus

774.1 Despite any other provision of this Act, the person who is the subject of a writ of habeas corpus must appear in court in person.
2002, c. 13, s. 77; 2022, c. 17, s. 50(E).


Note up: 774.1

Detention on inquiry to determine legality of imprisonment

775 Where proceedings to which this Part applies have been instituted before a judge or court having jurisdiction, by or in respect of a person who is in custody by reason that he is charged with or has been convicted of an offence, to have the legality of his imprisonment determined, the judge or court may, without determining the question, make an order for the further detention of that person and direct the judge, justice or provincial court judge under whose warrant he is in custody, or any other judge, justice or provincial court judge, to take any proceedings, hear such evidence or do any other thing that, in the opinion of the judge or court, will best further the ends of justice.
R.S., 1985, c. C-46, s. 775; R.S., 1985, c. 27 (1st Supp.), s. 203.


Note up: 775

Provincial Rules of Court will have some direction on the exact process required for making application and responding to one.[1]

  1. NS: Rule 7 of the Civil Procedure Rules
    ON: Judicial Review Procedure Act, R.S.O. 1990, c. J.1 and Rule 68 Civil Procedure Rules
    BC: Rule 23-3 Supreme Court Civil Rules, BC Reg 168/2009

Deprivation of Liberty

Occupancy of a Cell

The "double bunking" of inmates is generally not considered a from of deprivation of residual liberty.[1] Similarly, housing an inmate in a double occupancy room instead of a usual single occupancy does not engage a deprivation of liberty.[2]

Access to Resources in Custody

The restriction on access to legal research and other aspects of criminal legal proceedings.[3]

Bail Conditions

A habeas corpus application cannot be brought to challenge house arrest bail conditions.[4]

Sufficiency of Reasons

A decision to suspend parole must be accompanied by reasons. Where reasons are not given, the decision becomes unlawful, jurisdiction is lost, and so is reviewable under hebeas corpus.[5]

An inmate who is transferred to a higher security level of prison must be provided with sufficient information to permit a meaningful opportunity to challenge the allegations or else jurisdiction may be lost.[6]

  1. See: R v BRL v Canada, [2000] F.C.J. No 108(*no CanLII links)
    R v Robert Collin v The Solicitor General of Canada, [1983] 1 F.C. 496(*no CanLII links)
    Piche v Canada (Solicitor General), 1989 CanLII 7246 (FCA), [1989] F.C.J. No 204, per MacGuigan JA
  2. Mennes v Canada (Attorney General), 2008 CanLII 6424 (ON SC), per MacDougall J
  3. MCCargar v Canada, 2017 ABQB 416 (CanLII), 63 Alta LR (6th) 88, per Henderson J
  4. R v Ethier, 2009 CanLII 11429 (ON SC), 2009 CarswellOnt 1391 (Ont. SCJ), per Kane J
  5. Woodhouse v Williams Head Institution, 1999 BCCA 432 (CanLII), [2010] BCJ 1005, per Mackenzie JA
  6. Khela v Mission Institution, 2010 BCSC 721 (CanLII), [2010] BCJ 971, per Bruce J

See Also