Validity of Detention Determined

Section 10(c) of the Charter of Rights and Freedoms provides that everyone has the right to challenge the validity of their detention by way of habeas corpus and to be released from custody if detention is proven to be unlawful. This right applies not only in the criminal context, but in other contexts as well, including situations where an individual is being detained for immigration reasons.

What is the Right to have the Validity of Detention Determined by Habeas Corpus?

The right to have the validity of detention determined by habeas corpus ensures that individuals who are being detained have the right to challenge their detention through an application known as a writ of habeas corpus. Only courts of “original inherent jurisdiction” may grant a writ of habeas corpus. In Ontario, this is the Superior Court of Justice.

The application forces the government to “produce” the accused and bring them before a judge to challenge their detention. They must explain the conditions in which they are being held and why they believe their detention to be unlawful, among other things. The detaining authority must then provide justification for the detention, showing that it is in fact lawful. If the detaining authority cannot prove that the detention is lawful, then section 10(c) provides that the detainee must be released.

What is a Writ of Habeas Corpus?

Habeas corpus is Latin for “produce the body”. It is a legal remedy by which the detainee makes an application to be brought before the court to challenge their detention. An individual who is being detained may file a writ of habeas corpus with the court, asking for their detention to be reviewed. In the application, the detainee will provide the court with any relevant evidence including information on the conditions of their detention and why they believe the detention is unlawful.

When is the Right Triggered?

An individual’s section 10(c) right is triggered once they have been detained by a government authority. As long as the individual remains in custody, their section 10(c) rights remain active.

When will the Court Grant a Writ of Habeas Corpus?

The Supreme Court of Canada case of Mission Institute v. Khela, (2014) 1 SCR 502, outlined the applicable analysis for courts to follow in determining an application. The Court stated that for an application to be granted, the detainee must prove that they have been deprived of liberty. They must then outline the legitimate grounds for suggesting that the detention is unlawful. Once the detainee provides legitimate grounds, the burden shifts to the detaining authority to show why the detention is lawful.

Cases

May v. Ferndale Institution, (2005) 3 SCR 809

In the case of May v. Ferndale Institution, the majority of the Supreme Court of Canada affirmed that habeas corpus is an important remedy in Canadian law. It protects two fundamental rights protected by the Charter of Rights and Freedoms. It protects one’s section 7 right to life, liberty, and security of person, as well as the right not to be deprived of those rights except in accordance with the fundamental principles of justice. Habeas corpus also protects individual’s section 9 Charter right to be free from arbitrary detention.

Mission Institute v. Khela, (2014) 1 SCR 502

In the case of Mission Institute. v. Khela, the Supreme Court of Canada outlined the analysis that should be conducted by courts when reviewing a writ of habeas corpus. The Court stated that for an application to be granted, the detainee must prove that they have been deprived of liberty. They must then outline the legitimate grounds for suggesting that the detention is unlawful. Once the detainee provides legitimate grounds, the burden shifts to the detaining authority to show why the detention is lawful.

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