Paragraph 10(c) – Habeas corpus

Provision

10. Everyone has the right on arrest or detention:

  1. To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Similar provisions

Similar provisions may be found in the following Canadian laws and international instruments that are legally binding on Canada: subparagraph 2(c)(iii) of the Canadian Bill of Rights; article XXV of the American Declaration of the Rights and Duties of Man; and article 9(4) of the International Covenant on Civil and Political Rights.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: articles 7(5) and (6) of the American Convention on Human Rights; and article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Constitution of the United States of America contains a provision limiting the ability of Congress to suspend the common law right to habeas corpus, but does not itself expressly confer habeas corpus jurisdiction (see Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229 (U.S. Supreme Court)).

Purpose

The Supreme Court has described the nature of habeas corpus as follows:

In an earlier incarnation, habeas corpus was a means to ensure that the defendant in an action was brought physically before the Court… Over time, however, the writ was transformed into a vehicle for reviewing the justification for a person’s imprisonment… Indeed, by the late 17th century, Vaughan C.J. of the Court of Common Pleas stated that “[t]he Writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it” (Mission Institution v. Khela, [2014] 1 SCR 502 at paragraph 27 [citations omitted]).

In May v. Ferndale Institution, [2005] 3 S.C.R. 809, the majority of the Supreme Court stated that “[h]abeas 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 (section 7 of the Charter ); and (2) the right not to be arbitrarily detained or imprisoned (section 9 of the Charter )” (at paragraph 22).

Analysis

Paragraph 10(c) entrenches a guarantee that was already well-developed at common law. Charter jurisprudence confirms that habeas corpus is both a free-standing right, under paragraph 10(c), and a constitutional remedy available under subsection 24(1) for breaches of other Charter rights, such as sections 7 and 9 (Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 at paragraphs 90-94 (Charkaoui I); May, supra; Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Pearson, [1992] 3 S.C.R. 665; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385).

The guarantee in paragraph 10(c) is buttressed by several related Charter provisions. Section 9 provides a guarantee against arbitrary detention and imprisonment, while paragraph 11(e) stipulates that reasonable bail is not to be denied without just cause. In addition, section 7 guarantees liberty and security of the person and the right not to be deprived thereof, save in accordance with principles of fundamental justice.

In R. v. Miller, [1985] 2 S.C.R. 613, the Supreme Court determined that paragraph 10(c) of the Charter is not limited to habeas corpus simpliciter, but also encompasses certiorari-in-aid with affidavit material filed in support of the application.

The Supreme Court has described the analysis as follows: “To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful” (Khela, supra at paragraph 30).

1. Jurisdiction of courts to hear habeas corpus applications

Canadian appellate courts have extensively discussed the exercise of habeas corpus jurisdiction (see, e.g., May, supra; Khela, supra at paragraph 27; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 OR (2d) 253; 60 DLR (4th) 574 (C.A.), leave to appeal to S.C.C. refused, [1989] 2 S.C.R. x (note); Chaudhary, supra; Chhina v. Canada (Public Safety and Emergency Preparedness), 2017 ABCA 248, leave to appeal to S.C.C. requested).

In Peiroo, supra, the Ontario Court of Appeal established that superior courts should decline to exercise habeas corpus jurisdiction where the legislature has put in place a complete, comprehensive and expert procedure for review of an administrative decision that is at least as broad as that available by way of habeas corpus and no less advantageous. In that case, the court found the administrative review scheme established by the then Immigration Act, R.S.C. 1985, c. I-2, to be such a scheme. The Peiroo exception to the exercise of habeas corpus jurisdiction has been affirmed by the Supreme Court, in May, supra and Khela, supra. See the below discussion regarding access to habeas corpus in the immigration detention context.

Privative clauses have generally been held not to exclude resort to habeas corpus. The Newfoundland Supreme Court concluded that despite a Criminal Code provision precluding habeas corpus applications, the detained person had a constitutional right to seek habeas corpus and that his application had to be considered (R. v. Jack, [1982] 38 Nfld. & P.E.I.R. 471(Nfld S. Ct., T. D). Similarly, privative clauses in the Ministry of Correctional Services Act,R.S.O. 1980, c. 275, were held not to immunize the provincial parole board from jurisdictional review by way of habeas corpus (R. v. Cadeddu (1982), 40 OR (2d) 128, 146 DLR (3d) 629, 32 CR (3d) 355 (H.C.), appeal to the OCA abated (1983), 41 OR (2d) 481, 146 DLR (3d) 653).

2. Availability of habeas corpus

Since the entry into force of the Charter, the content and scope of paragraph 10(c) have not been greatly developed in Canadian jurisprudence. The Supreme Court generally seems to approach paragraph 10(c) as constitutionalizing a pre-existing right to habeas corpus (see e.g., Khela, supra at paragraphs 27-29). The right to habeas corpus under the Charter is thus generally understood to be equivalent in scope and content to habeas corpus at common law and under statute.

In Charkaoui I, the Supreme Court stated that paragraph 10(c) of the Charter protects a “right to prompt review” of detention (Charkaoui I, supra). The Supreme Court ruled that the lack of prompt detention review for foreign nationals detained under a security certificate violated the guarantee against arbitrary detention in section 9 of the Charter, and referred to that guarantee as encompassing the right to prompt review of detention under paragraph 10(c) of the Charter (at paragraph 91).

While paragraph 10(c) was not invoked in Gamble, supra, in its discussion of the availability of habeas corpus as a remedy under subsection 24(1), a majority of the Supreme Court expressed the view that, where habeas corpus is sought as a Charter remedy, distinctions existing in the relevant common law that have become uncertain, technical, artificial or non-purposive should be rejected. The writ of habeas corpus should be flexibly and generously adapted so that it can continue to protect liberty interests now constitutionally protected under the Charter (see also Idziak, supra). This purposive and generous approach is reflected, for example, in the Court’s recognition that an individual can invoke habeas corpus as a means of challenging increased or secondary detention even where success would not result in the release of the prisoner from a lawful primary detention (Miller, supra; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Morin v. Shu Review Committee, [1985] 2 SCR 662; May, supra; Khela, supra).

Detained persons can use habeas corpus as an avenue to seek bail if they do not otherwise have a statutory right to do so (Khadr v. Bowden Institution, 2015 ABQB 261, referring to the pre-Charter decision of R. v. Hicks (1981), 129 DLR (3d) 146 (ABCA).

In the context of immigration detention, appellate courts in Ontario and Alberta have recently distinguished Peiroo, discussed above. Appellate courts in those jurisdictions have decided that applicants who have been in immigration detention for lengthy periods and whose detentions are to continue for an uncertain duration have the right to choose whether to have their detention-related issues heard in the Federal Court through judicial review, or in the provincial superior court through habeas corpus applications (Chaudhary, supra; Chhina, supra. See contra Apaolaza-Sancho v. Director of Établissement de détention de Rivière-des-Prairies, 2008 QCCA 1542). The Ontario and Alberta courts of appeal have decided that if an applicant for habeas corpus can show that his or her immigration detention has been exceptionally lengthy and is of uncertain continued duration, and where it cannot be justified for immigration purposes, a continued detention will unjustifiably limit the detainee’s section 7 and section 9 Charter rights and will no longer be legal (Chaudhary, supra at paragraph 81; Chhina, supra at paragraph 68; Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839 at paragraph 16). When granting habeas corpus in this context, the court may impose appropriate conditions of release to protect public safety and respect for the law (Ogiamien, supra at paragraphs 47-61). Courts should not combine the hearing of both a habeas corpus application and a Charter damages application (Brown v. Canada (Public Safety), 2018 ONCA 14 at paragraphs 49-56, leave to appeal to S.C.C. requested).

Section 1 considerations specific to this paragraph

In Charkaoui I, supra, the Supreme Court concluded, without explicit analysis, that the breach of section 9 and paragraph 10(c) was not saved by section 1. This would appear to indicate that section 1 is available as a potential defence to infringements of paragraph 10(c).

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