Maxwell Cohen’s “Some Considerations on the Origins of Habeas Corpus” begins by wondering: “is the history of habeas corpus really, from its inception, the history of personal freedom?”1 If habeas corpus is indeed about personal freedom, can it be invoked to address violations of liberty, such as those presented in the case of Omar Khadr and Guantanamo Bay?
Unpacking the Latin maxim might prove helpful in answering these questions. Habeas is the second conjugation verb habeo, habere meaning “to have” in the second person, singular, present, active, subjunctive. Corpus is a third declension, neuter noun meaning “body” in the accusative. Translated literally, habeas corpus means “you may have the body.” For the sake of descriptive accuracy, the maxim should read: nobis corpus da, an imperative meaning “give us the body”, or curiae corpus da, meaning “give the body to the court.” This is because habeas corpus is a writ which commands the jailor to bring the prisoner to court.2 The jailor must give return to the writ and the presiding judge then determines the sufficiency of the return.3
In her opinion piece in the Globe and Mail, Audrey Macklin states that habeas corpus, now enshrined in the Charter, embodies the right of those whose liberty is at stake to challenge the legality of their detention.4 This is technically true, but habeas corpus should not be understood as a posterchild of liberty and constitutional rights because this fails to account for that writ’s legal history. In the old English legal system, habeas corpus provided an opportunity to reinforce divine right at the expense of personal freedom. In Darnell’s Case,5 five knights were incarcerated by special order of King Charles I after they refused to comply with forced loans. On the issue of whether a special order by the King constituted a sufficient return, Chief Justice Hyde found that “if the King hath done it, and we trust him in great matters, and he is bound by law.”6 Largely, this amounts to the following positivist proposition: if the King says to imprison someone, that constitutes a sufficient reason to do so. While habeas corpus is rooted in the Magna Carta’s promise of due process, the writ is inherently technical and procedural.7 The judge does not adjudicate on the lawfulness of the imprisonment per se but determines more generally whether there exists a lawful reason to hold the prisoner captive. The judge does not consider the merits of the case or engage in the facts which led to the incarceration. The judge only asks: is this generally a good reason to incarcerate someone?
Habeas corpus is not really about personal freedom. It simply ensures that an individual is present at court on a given day. The writ is more similar to a subpoena or a come-out order than an application of s 503 of the Criminal Code8 which requires police to bring the accused before a justice within 24 hours after an arrest has been made. Freedom plays a far bigger role in s 503 and the procedures which follow it than in the traditional habeas corpus analysis. Under the Canadian legal system, the State cannot arrest an individual and then subject them to unfettered police control and endless interrogation simply because the officer has a warrant or reasonable grounds to believe that the individual has committed an offence. The law is clear that the individual must be brought before a judge to answer the charge within a reasonable amount of time. Thereafter, the individual still cannot be incarcerated without the State showing good cause to deny judicial interim release. Whether or not the individual is remanded, they may challenge the legality of the arrest or detention on a pre-trial motion if they plead not guilty. Theoretically, these procedures are intended to safeguard the individual citizen’s liberty.
The merits of the charge for which the individual was arrested will not be addressed in detail at arraignment or at a show cause hearing, similar to the habeas corpus analysis. But the facts of the case and the individual’s circumstances certainly matter; it is not simply a general inquiry. The incarceration, pre-trial or post-trial, must be based on evidence. This is strikingly different from the procedure involved in the habeas corpus writ. This suggests that habeas corpus could not be used successfully in contemporary times in a circumstance where the usual liberty safeguards mentioned above may not apply, such as in the case of Khadr at Guantanamo Bay. It seems like a poor strategy to invoke habeas corpus to defend personal freedom when its own legal history suggests that its link to liberty is only theoretical at best. The writ could only do little to assist Khadr, whose wrongdoing has “never been adjudicated in a proper adversarial process in front of a real court using real rules of evidence.”9
In order to advance the cause of personal freedom, the habeas corpus analysis must be far broader than it was in 15th century England. The analysis must include the merits of the incarceration. If it only amounts to asking whether the reason for imprisonment is sufficient, personal freedom is greatly threatened. Based on the habeas corpus analysis, there would be very few situations in which alleged acts of terrorism would not constitute a sufficient reason to incarcerate an individual. It is important that, in the Canadian legal system, individuals possess the presumption of innocence, the right to liberty, and the right to make full answer and defence.
If the State intends to incarcerate an individual, the State must show cause based on the circumstances of the case. If an individual is incarcerated indefinitely, the State cannot simply point to the idea of terrorism when the individual has not been convicted of any substantive offence in accordance with due process. Proving that an individual such as Khadr committed an act of terrorism constitutes sound reason for incarceration. The fact that terrorism itself is a punishable offence under Canadian law is not.
That type of analysis closely mirrors the positivist rationale for divine right which is simply not constitutional under Canadian law. If habeas corpus is to be an effective tool to safeguard freedom, we must acknowledge its limitations. The habeas corpus procedure requires innovation; specifically, a broader analysis which includes consideration of the facts of the case. Unless the habeas corpus analysis expands in this respect, it will only represent the mere idea of personal freedom, a vague and empty promise that is incapable of effecting positive outcomes in a contemporary world.
1 Maxwell Cohen, “Some Considerations on the Origins of Habeas Corpus” (1938) 16 Can B Rev 92 at 93 [Cohen].
2 Bryan A Garner, Blacks Law Dictionary, 10th ed (2014), sub verbo “habeas corpus”.
3 Darnell’s Case (1627), Cobbett’s Complete Collection of State Trials, 3 Charles 1 at 7 and 52.
4 Audrey Macklin, “Respect the weight of 800 years of law in Khadr’s bail”, The Globe and Mail (27 April 2015) online: <https://www.theglobeandmail.com/opinion/respect-the-weight-of-800-years-of-law-in-khadrs-bail/article24135094/>.
5 Supra note iii.
6 Ibid., at 59.
7 Cohen, supra note i at 94.
8 Criminal Code of Canada RSC 1985, c C-46 [Code].
9 Craig Forcese, “Twelve Points about the Khadr Saga”, National Security Law Blog (7 July 2017) online: <http:// craigforcese.squarespace.com/national-security-law-blog/2017/7/7/twelve-points-about-the-khadr-saga.html>.