Habeas Corpus

Habeas Corpus is one of the oldest writs . Dating back in its present form to the mid-fifteenth and sixteenth centuries, it permits the court to require the Crown to bring a detained person before it to determine whether the deprivation of that person’s liberty is unlawful. If it is, the detention must be set aside. Known as the “Great Writ” , habeas corpus has been entrenched in s. 10(1) of the Canadian Charter of Rights and Freedoms.

In recent years, habeas corpus has become a remedy frequently sought in Superior courts by inmates seeking to challenge internal prison decisions, including decisions relating to the terms of their placement within the institution. The Supreme Court of Canada has affirmed that the writ may be used “to release a person from a particular form of detention although the person will lawfully remain under some other restraint of liberty.” Transfer to solitary confinement – a serious deprivation of liberty and security of the person – is often the target of such a challenge.

There has been growing recognition over the last half-century that solitary confinement is a very severe form of incarceration, and one that has a lasting psychological impact on prisoners.

William Poulos, Barrister

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