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COVID-19 and scheduling a habeas corpus application

Habeas corpus can be used to challenge a deprivation of liberty, and it requires that an application be brought in the Superior Court. COVID-19 presents unique challenges to anyone looking to bring such an application.

In light of COVID-19, the Ontario Superior Court of Justice has largely suspended operations. An updated notice was released on April 2, 2020, advising of how the Superior Court would operate during the outbreak:

Matters that are considered urgent can proceed, with some modifications where necessary (teleconferencing, etc.). The notice states: “Bail, Bail Review, Detention Review, Guilty Pleas and Sentencing will continue to be prioritized for in-custody persons in urgent circumstances. Habeas corpus applications will be conducted.”

While the notice allows habeas corpus applications to be heard, two decisions released last week found that not all habeas corpus applications will be heard. The Chief Justice of the Superior Court had originally directed that only urgent matters would be heard, and habeas corpus applications were not identified as urgent. In those decisions (which were released before the April 2, 2020 updated notice was published), the judges held that habeas corpus applications being brought by prisoners to challenge involuntary transfers were not urgent matters. As such, they were adjourned to June to set new dates.

It remains to be seen whether the court will now allow all habeas corpus applications to proceed or whether the urgency of each application will be considered. Habeas corpus applications are about challenging a deprivation of liberty, and a decision to adjourn a hearing for weeks or months can cause substantial prejudice. While people may want to have their applications heard now, that might not be possible.

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