Articulating Habeas Corpus.

Luke "Lantern" Thompson
5 min readJun 4, 2021


In R. v. Miller, [1985] 2 S.C.R. 613, the Supreme Court determined that section 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).-Charterpedia-section 10(c)-Habeas Corpus.

HABEAS CORPUS is perhaps one of the most powerful legal tools a political prisoner can use when he or she has been arrested. Even though this writ allows the prisoner to make the authorities justify their detention, the onus will be on the prisoner to articulate why his or her detention is unlawful.

Establishing that one has been deprived of liberty.

If you have been arrested for the victimless crime of smoking a prohibited substance, then you do not need to be imprisoned unless you have a criminal record which indicates that you may be a high risk individual. A high risk individual is someone who has the propensity to steal or assault others in order to obtain drugs. Assessing a persons propensity to commit criminal acts to obtain drugs should not be based on the persons past alone, but on the personality and character of the person in the present. If the person is genuine(a quality that can be deduced intuitively) in stating that he will not take the prohibited substance, but the judge counters by saying that the prisoner is still a high risk individual due to him having withdrawal symptoms, then he can ask to have a medically trained surety intervene when his withdrawal symptoms arise. This surety could be a friend who has a background in healthcare or an unaffiliated healthcare worker who visits him periodically. The prisoner should not speak of him or her having withdrawal symptoms as that is up to the judiciary to recognize in their own evaluation. Even though all victimless crimes ought to be expunged, we have to use this example to suit the status quo in the meantime.

If a person is arrested for assault, but the charge is based on hearsay, then the accused has the right to be free before his trial. If the person is arrested for an assault that caused great bodily injury, but the glass pattern analysis and pathological evidence shows that it was most likely a simple assault that led to a more harmful injury due to the accident that occurred after the assault, then the prisoner still has a right to apply for Habeas Corpus. For instance, if a scuffle breaks out near a store front window and one of the combatants causes his opponent to fall through the glass, then the circumstantial evidence can not be used to assert that the person charged has a propensity to commit extreme acts of violence. If a motorist has been arrested for drinking and driving because they failed a breathalyzer test, but is coherent, responsive and fully coordinated in their movements, than they can apply to end their imprisonment because they are not a demonstrable danger to themselves or others. The anti-DUI checkpoints that have been set up to prevent drunk driving do not prevent dangerous driving. Dangerous driving can only be prevented when an officer stops a driver who is driving in a manner that can be considered suspicious. If a person is arrested for not giving an officer his or her ID when they are not a witness of a crime or have not been suspected of committing a crime, then the prisoner must apply for Habeas Corpus immediately as a provincial offense does not warrant prolonged imprisonment.

Step 1 and step 2 of the application process are inseparable because the prisoner may as well prove that they have been deprived of liberty all in one step. Whenever someone is put in a cell, they are deprived of Liberty. Why then do I have to get past step one to get to step 2? The application process ought to be swift to avoid backlog.

Tenuous reasoning from the judge can be identified by the prisoner if he or she:

  1. Commits a subtle ad hominine by telling that the prisoner wanted to make a “spectacle” or is doing this just to put on a “show”.
  2. Makes an argument from past history to justify prolonged imprisonment. For example, if a person has a history of domestic abuse, but is currently divorced and has not not committed a violent crime, then that does not justify him or her being imprisoned as they are not in an environment which causes their domestic wrongdoings of the past to surface. The judge can use past history to make a decision as long as it doesn’t represent the totality of the prisoners character if he has a record of non violent offenses. A prisoner who has a a history of violence against random people will hopefully have their application rejected as it would be reckless for the judge to guess as to weather or not the prisoners past impulses have left him.
  3. It is reckless for the judge to make decisions based on how remorseful the prisoner appears to be. If the prisoners emotions are effected the emotions of the judge, then his application must be suspended until the conditions allow for neutral decision making.
  4. If the judge argues that the nature of the charge is too severe to allow for prisoner to be free, then he also must entertain the alternatives proposed by the prisoner. If the prisoner says he will sign and undertaking, undergo house arrest or agrees to wear an ankle monitor, then the judge must decide weather or not these measures would provide a sufficient deterrence.