Habeas corpus, examimation, powers of review
Habeas corpus is a subject which has not attracted much attention from legal writers and there has been no thorough examimation of the nature of review which may be exercised on habeas corpus.1 The aim of this article is to provide a critical and comprehensive account of the scope of review which is available on habeas corpus in Canada. The subject is a technical one but may be of crucial importance in those situations where habeas corpus is still a useful remedy. It is not proposed to discuss all aspects of the law of habeas corpus but simply to outline the nature of the powers of review which are available. In dealing with any aspect of the law of habeas corpus we are confronted by the vagaries of the common law and with a somewhat bewildering array of technical rules. The remedy as it exists in Canada is derived from English common law and it is important to read the Canadian authorities in the light of their common law origins. This paper aims to explore the common law background, to expound the rules which determine the scope of review and, hopefully, through a careful analysis of the cases, to demonstrate that the scope of review available on habeas corpus is not as narrow as is sometimes suggested.
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Robert J. Sharpe, “Habeas Corpus in Canada” (1975-1976) 2:2 DLJ 241.