The "Great Writ" Reinvigorated? Habeas Corpus in Contemporary Canada


n his engaging essay delivered at the 2nd Annual DeLloyd J Guth Visiting Lecture in Legal History at Robson Hall in 2012, “Habeas Corpus, Legal History and Guantanamo Bay,” Professor James Oldham provides insight into the contemporary debates in the United States about the scope and significance of the ancient writ of habeas corpus. In Canada, there has also been controversy in recent years about the availability of habeas corpus review and its relationship to other remedies and avenues for judicial review of imprisonment and other forms of detention. There are some significant similarities, as well as divergences, between Canadian, American, and British law with respect to the doctrine, procedure, and availability of habeas corpus. This short prelude to Professor Oldham’s article will not seek to canvass those substantial bodies of case law and commentary. Rather, it will discuss some of the ways the writ has played, and should continue to play, an important role in promoting access to justice and protecting basic liberty interests, particularly in these law and order times. The focus will be on developments in the law since the Canadian Charter of Rights and Freedoms was enacted, touching on two important features of a modern doctrine of habeas corpus – namely flexibility and gap-filling, both of which Professor Oldham also develops in his essay.