Habeas Corpus Act, R.S.O. 1990, c. H.1Skip to content
Habeas Corpus Act
R.S.O. 1990, CHAPTER H.1
Historical version for the period December 31, 1990 to June 21, 2006.
In what cases hab. corp. ad subjiciendum may be awarded, and by whom
1. (1) Where a person, other than a person imprisoned for debt, or by process in any action, or by the judgment, conviction or order of the Ontario Court (General Division) or other court of record is confined or restrained of his or her liberty, a judge of the Ontario Court (General Division), upon complaint made by or on behalf of the person so confined or restrained, if it appears by affidavit that there is reasonable and probable ground for the complaint, shall award a writ of habeas corpus ad subjiciendum directed to the person in whose custody or power the person so confined or restrained is, returnable immediately before the judge so awarding the writ, or before any judge of the Ontario Court (General Division). R.S.O. 1990, c. H.1, s. 1 (1).
Notice of application for writ of habeas corpus
(2) Notice in writing of every application for a writ of habeas corpus ad subjiciendum shall be given to the Attorney General at least forty-eight hours before the making of the application and the Attorney General is entitled as of right to be heard either in person or by counsel upon the application. R.S.O. 1990, c. H.1, s. 1 (2).
Service of writ
2. The writ may be served either personally by actual delivery thereof to the person to whom it is directed or by leaving it with his or her employee or agent at the place where the person is so confined or restrained. R.S.O. 1990, c. H.1, s. 2.
Disobedience of writ
3. If the person to whom the writ is directed wilfully neglects or refuses to make a return or pay obedience thereto, he or she shall be deemed guilty of contempt of court, and the court or judge, upon proof by affidavit of such wilful neglect, refusal or disobedience, may issue a warrant for apprehending and bringing the person before the court or judge to the end that he or she may be bound to Her Majesty with two sufficient sureties in such sum as in the warrant is expressed, conditioned that he or she will appear on the day named in the warrant to answer the matter of the contempt. R.S.O. 1990, c. H.1, s. 3.
4. In case of neglect or refusal to become bound as aforesaid, the court or judge may commit such person to a correctional institution in the county wherein the person resides or may be found, there to remain until he or she becomes bound as aforesaid or is discharged by order of the court or a judge, and, if he or she becomes bound, the recognizance shall be returned and filed and continues in force until the matter of the contempt has been heard and determined, unless sooner ordered by the court or judge to be discharged. R.S.O. 1990, c. H.1, s. 4.
Issue of writ of certiorari
5. Where a writ of habeas corpus ad subjiciendum is issued under the authority of this Act or otherwise, the court or judge may direct the issue of a writ of certiorari directed to the person by whom or by whose authority any person is confined or restrained of his or her liberty, or other person having his or her custody or control, requiring the person to certify and return to the court or judge as by the writ may be provided, all the evidence, depositions, conviction and all proceedings had or taken, touching or concerning such confinement or restraint of liberty. R.S.O. 1990, c. H.1, s. 5.
Procedure on return of writ
6. When upon a return to a writ of habeas corpus ad subjiciendum it is alleged that the person is detained by reason of a conviction or order other than a conviction or order of the Ontario Court (General Division) or other court of record, upon the return of the writ of certiorari, it is the duty of the court or judge to examine and consider the proceedings had and taken to ascertain if the proceedings show that the person restrained has been convicted of any offence against the law and that there is any evidence to sustain the conviction, or that upon the evidence the person accused is guilty of an offence against the law and that the conviction, though irregular, ought to be amended or drawn so as to duly describe the offence of which the person accused is guilty, and in such cases to remand the person detained to custody but otherwise to order his or her discharge. R.S.O. 1990, c. H.1, s. 6.
Procedure for inquiring into the truth of the matters alleged in the return
7. Although the return to a writ of habeas corpus ad subjiciendum is good and sufficient in law, the court or judge before whom the writ is returnable may examine into the truth of the facts set forth in the return, by affidavit or other evidence, and may order and determine touching the discharging, bailing or remanding of the person. R.S.O. 1990, c. H.1, s. 7.
Appeal from remand to custody
8. (1) Where a person confined or restrained of his or her liberty is brought before a judge upon a writ of habeas corpus ad subjiciendum and is remanded into custody upon the original order or warrant of commitment or by virtue of any warrant, order or rule of such judge, such person may appeal from the decision or judgment of the judge to the Divisional Court, and thereupon the writ of habeas corpus ad subjiciendum, the return thereto, and the affidavits, depositions, evidence, conviction and other proceedings shall be certified by the proper officer to the Divisional Court. R.S.O. 1990, c. H.1, s. 8 (1).
Court may order discharge
(2) The Divisional Court shall thereupon hear and determine the appeal without formal pleadings and, if the Court determines that the confinement or restraint is illegal, shall so certify to the person having the custody or charge of the person so confined or restrained, and shall order his or her immediate discharge, and he or she shall be discharged accordingly. R.S.O. 1990, c. H.1, s. 8 (2).
Appeal to Court of Appeal
9. An appellant under section 8 may appeal from the decision of the Divisional Court to the Court of Appeal. R.S.O. 1990, c. H.1, s. 9.
Application of Act
10. This Act extends to all writs of habeas corpus ad subjiciendum awarded in pursuance of the Act passed in England in the 31st year of the reign of King Charles the Second, commonly called The Habeas Corpus Act, or otherwise in as ample and beneficial a manner as if such writs and the cases arising thereon had been specially named and provided for in this Act. R.S.O. 1990, c. H.1, s. 10.