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In 1982, Canada adopted the Canadian Charter of Rights and Freedoms.  This constitutional document has much in common with the American Bill of Rights, but does contain some differences.  Section 10 of the Charter states that “every one 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.”[1]  This right can be suspended by legislation.[2]  While a law suspending habeas corpus can be challenged on constitutional grounds, the courts can uphold such a law if it finds that law to be “demonstrably justified in a free and democratic society.”[3]  However, even if a law suspending habeas corpus is declared to be unconstitutional by a court, that decision can be overridden by Parliament if it expressly declares that the impugned law shall operate notwithstanding the provisions of the Charter.[4]  This provision was inserted in the Charter to preserve the principle of Parliamentary supremacy, but it has never been invoked on the federal level.

The substantive law in Canada respecting habeas corpus and other prerogative writs or forms of judicial relief was derived from the laws of England and Wales and still contains many similar substantive features.  However, Canada has developed its own procedures for applying the principles of habeas corpus.  In criminal cases, applications for writs of habeas corpus ad subjiciendum can be filed with a trial court and an appeal from the decision of that court can be taken to the highest provincial courts, the Courts of Appeal.  A final appeal to the Supreme Court of Canada is possible if leave is obtained.[5]  The Criminal Code states that “an appeal in habeas corpus matters shall be heard by the court to which the appeal is directed at an early date, whether in or outside of the prescribed sessions of the court.”[6]

The Federal Court Act gives the Federal Court of Canada exclusive original jurisdiction to hear applications for writs of habeas corpus ad subjiciendum with respect to members of the Canadian Forces serving outside of the country.[7]  Appeals can be taken first to the Federal Court of Appeal and then to the Supreme Court of Canada with leave.[8]  In these cases, the provincial courts are not involved.

In Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 S.C.C. 9, available at http://scc.lexum.umontreal.ca/en/2007/2007scc9/2007scc9.html (external link) (last visited Jan. 7, 2009), the Supreme Court reviewed the law allowing the government to detain persons deemed to be inadmissible to Canada on national security grounds.  These persons were not charged with any crimes and the Supreme Court recognized their right to seek a writ of habeas corpus.  The Supreme Court did not rule that all such detentions were unconstitutional, but that the detainees had a right to have their cases reviewed by an independent counsel.  Thus, persons suspected of having ties to terrorist organizations were granted the right to seek a writ of habeas corpus and Parliament was required to amend its laws allowing for detentions of persons deemed to be inadmissible.[9]  Whether Parliament’s response will survive further judicial scrutiny is an outstanding question that will likely be taken up by the Supreme Court at a later date.

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Prepared by Stephen Clarke
Senior Foreign Law Specialist
May 2007

Updated by Stephen Clarke
Senior Foreign Law Specialist
March 2009

  1. Constitution Act, 1982, pt. I, § 10(c), being Sched. B to the Canada Act, 1982, c. 11 (U.K.), available at http://laws.justice.gc.ca/en/Const/annex_e.html#Ispan> (external link) (last visited Jan. 7, 2009). [Back to Text]
  2. Id. § 33. [Back to Text]
  3. Id. § 1. [Back to Text]
  4. Id. § 33. [Back to Text]
  5. Criminal Code, R.S.C. ch. C-46, § 784 (1985), as amended, available at http://laws.justice.gc.ca/en/showtdm/cs/C-46?noCookie (external link) (last visited Jan. 7, 2009). [Back to Text]
  6. Id. [Back to Text]
  7. Federal Courts Act, R.S.C. ch. F-37, § 18 (1985), as amended, available at http://laws.justice.gc.ca/en/showdoc/cs/F-7/bo-ga:s_17/20090105/en
    ?command=home &caller=SI&search_type =all&shorttitle=federal %20courts%20act&day=5&month =1&year=2009&search_domain=
    cs&showall=L&statuteyear =all&lengthannual=50&length=50&noCookie (external link)
    (last visited Jan. 7, 2009). [Back to Text]
  8. Id. [Back to Text]
  9. An Act to Amend the Immigration and Refugee Protection Act, 2008 S.C., ch. 3, available at http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Parl=39&Ses=2&Mode=1&Pub=Bill&Doc=C-3_4 (external link) (last visited Jan. 13, 2009). [Back to Text]

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Last Updated: 09/16/2014