REVISED STATUTES, 1989
1 This Act may be cited as the Liberty of the Subject Act. R.S., c. 253, s. 1.
Acts of Imperial Parliament adopted
2 (1) The Act of the Imperial Parliament, passed in the thirty-first year of the reign of King Charles the Second, entitled An Act for the Better Securing the Liberty of the Subject, and for the Prevention of Imprisonment Beyond the Seas and the Act of the Imperial Parliament, passed in the fifty-sixth year of the reign of King George the Third, entitled An Act for More Effectually Securing the Liberty of the Subject and all Acts of the Imperial Parliament passed in addition to, or amendment of, or on the same subject as the said recited Acts, or either of them, shall have full force and effect in the Province, so far as the same are applicable therein.
Authority and power of Supreme Court
(2) The Supreme Court, and the judges thereof, have the same authority and power over cases within the purview of such Acts in the Province as the courts mentioned in such Acts, and the judges thereof, have in England.
Application of Acts in Province
(3) The rights and remedies, and the obligations, punishments, and penalties conferred and imposed by the said statutes, or either of them, are conferred and imposed upon and made applicable to persons within the Province, as fully as if such Acts were re-enacted, and specially extended to the courts, judges, officers and persons within the Province.
Habeas corpus preserved
(4) This Section shall not be construed to abrogate or abridge the remedy of an order in the nature of habeas corpus at common law, but the same exists in full force and is the undoubted right of the people of the Province. R.S., c. 253, s. 2.
3 In all motions and proceedings on orders in the nature of habeas corpus where the care and custody of infant children are concerned, the judges of the Supreme Court shall deal therewith according to the principles of equitable jurisprudence. R.S., c. 253, s. 3.
Application for writ of habeas corpus
4 (1) The order in the nature of habeas corpus, whether under statute or at common law, may be applied for to, and be granted by, a judge of the Supreme Court, returnable before himself, or any other judge , or before the Court, and may be applied for to, and may be granted by the Court, returnable to itself, or to a judge at chambers, at any time, including vacation.
Return by keeper of jail or prison
(2) Where it would be attended with unnecessary delay, expense or inconvenience to bring in the body of a person illegally restrained of his liberty before the Court or judge, the Court or judge, upon sufficient cause shown by or on behalf of any person confined in any jail or prison, may, in the discretion of such Court or judge, instead of granting an order in the nature of habeas corpus cum causa requiring the keeper of such jail or prison to bring the prisoner before the Court or a judge in order that the legality of such imprisonment may be inquired into, and discharge, bailment or recommitment had thereon, by order of the Court, or by order of the judge in writing, signed by him with his name, addition of office and place of residence, require and direct such keeper to return to the Court, or to the judge, whether or not such person is detained in such jail or prison, together with the day and cause of his having been taken and detained. R.S., c. 253, s. 4.
Duty to make return
5 (1) Such keeper shall immediately, upon the receipt of such order, make a true and full return in writing to the Court, or to the judge, of the day and cause of such taking and detention as would be required in case of a return to an order in the nature of habeas corpus.
Process included with return
(2) Every such return shall include a copy of the process, warrant or order upon which the prisoner is held where the same is made in a criminal matter, or upon any summary complaint or conviction before any justice of the peace.
(3) Such Court or judge may enforce obedience to such order by process of contempt in the same manner as a proper return may be compelled to be made to a writ of habeas corpus. R.S., c. 253, s. 5.
Procedure after return received
6 (1) Upon return to such order, the Court or judge may proceed to examine into and decide upon the legality of the imprisonment and make such order, require such verification and direct such notices or further returns in respect thereto as are deemed necessary or proper for the purposes of justice.
Order for discharge or bail
(2) The Court by order, or the judge by order in writing signed as aforesaid, may require the immediate discharge of the prisoner or may direct his bailment in such manner, and for such purpose, and with the like effect and proceeding, as is allowed upon habeas corpus.
(3) Such bail, when ordered, may be entered into before any justice of the peace specially named in such order, or any justice of the county or place if no such justice is named. R.S., c. 253, s. 6.
Duty to communicate and obey order
7 Such keeper shall, immediately upon the receipt of any order of the Court or a judge in relation to a prisoner in custody, communicate the same to such prisoner, and give him a true copy thereof if demanded and obey the requirements of the same. R.S., c. 253, s. 7.
Authority to require production and examine
8 In all cases whether under statute or at common law, or under the provisions of this Act, the Court or a judge may require the production of all such proceedings, documents and papers relating to the matter in question, before whomsoever and in whose possession soever they are as to the Court or judge appear necessary for the elucidation of the truth, and may also examine into the truth of the return to any order in the nature of habeas corpus or order granted under this Act, in the same manner as such examination is provided for in cases under the before mentioned Act of Parliament, passed in the fifty-sixth year of the reign of King George the Third. R.S., c. 253, s. 8.
9 (1) In cases in which an order in the nature of habeas corpus is issued under the authority of this Act, at common law or otherwise, or an order in lieu thereof made under this Act the Court or judge may direct the issuing of an order in the nature of certiorari or order in lieu thereof directed to the person by whom or by whose authority any person is confined or restrained of his liberty, or other person having the custody or control thereof, requiring him to certify and return to the Court or judge as by the order may be provided, all the evidence, depositions, convictions, and all proceedings had or taken, touching or concerning such confinement, or restraint of liberty, to the end that the same may be viewed and considered by the Court or judge, and to the end that the sufficiency thereof to warrant such confinement or restraint may be determined.
Application of subsection (1)
(2) Subsection (1) shall apply on an application for an order in the nature of certiorari to remove a warrant, conviction or order for the purpose of being quashed and also on any motion to quash a warrant, conviction or order which has been previously removed by a an order in the nature of certiorari on an application to the Supreme Court or judge thereof.
Application of subsections (1) and (2)
(3) Subsections (1) and (2) shall apply notwithstanding that the order in the nature of certiorari may have been taken away by any Act or law in force in the Province. R.S., c. 253, s. 9.
10 Every wilful neglect or disobedience of an order of the Court, or judge, in relation to a prisoner, shall be punishable as a contempt by fine and imprisonment, or either, at the discretion of the Court. R.S., c. 253, s. 10.
Jurisdiction to consider return
11 The matter of the return made to the order of a judge may be heard and decided by any other judge of the Supreme Court, who shall have the same power and jurisdiction in respect thereto as the judge by whom the first order was made. R.S., c. 253, s. 11.
Effect of order
12 (1) No order made under this Act shall require or enable the keeper of any jail or prison to discharge the prisoner from any commitment or charge other than that specified in the order, but it shall be the duty of the keeper in every return to specify the several causes of commitment and detention, if more than one.
(2) If between the time of making the return and receiving an order for the discharge or bailment, any other warrant, process or order has been delivered to him, requiring the detention of the prisoner upon any charge of a criminal nature, or upon summary complaint or conviction, such keeper shall, without any further order, make and transmit to the Court or judge an additional return with a copy of such warrant, process or order and the time of receiving the same, and such return may be dealt with by the Court or judge as if made pursuant to an order granted for that purpose. R.S., c. 253, s. 12.
Civil remedy preserved
13 No person who has been falsely imprisoned shall by reason of this Act be deprived or restrained from his remedy by civil action against any person who has illegally caused such imprisonment, but the Court or judge ordering, under statute or at common law or under this Act, the discharge of the prisoner from such imprisonment may by order exempt any sheriff, keeper of a jail or any officer or person from civil action who appears to the Court or judge to have acted upon the warrant or order of any judge or justice according to the requirements of the same without malice or evil intent although such warrant or order is bad in form or substance, and any such order of exemption shall be a defence to any action brought against such sheriff, keeper, officer or person. R.S., c. 253, s. 13.
14 (1) Whenever the application, whether under the habeas corpus Acts or at common law or under this Act for the discharge of the prisoner has been once refused by any one judge sitting alone, it shall not be lawful to renew the application before him, or before any other judge, except upon some ground not taken on the former application, but such prisoner may appeal according to the existing practice from such refusal of the judge to the Appeal Division of the Supreme Court, and thereupon the writ of habeas corpus or order in lieu thereof under the provisions in this Act, the return thereto and all and singular the affidavits, depositions, evidence, conviction and all other matter used on such application shall be certified to the Appeal Division of the Supreme Court by the proper officer under the seal of the Court.
Jurisdiction of Appeal Division
(2) The Appeal Division of the Supreme Court shall thereupon, upon the application of the prisoner, fix a time for hearing and hear and determine the appeal at an early day, whether in or out of the prescribed sessions of the Court, and if the Court allows the appeal, it shall order the immediate discharge of the prisoner and he shall be discharged accordingly, provided, however, that nothing herein contained shall be deemed to abridge the right of such prisoner to apply to the Appeal Division of the Supreme Court in the first instance for his discharge from custody or to abrogate the power and authority of the judge to refer any such application of such prisoner to the Appeal Division or to make any writ of habeas corpus or order in lieu thereof returnable before such Court. R.S., c. 253, s. 14.
Notice of application for discharge
15 (1) Notwithstanding this Act or any other Act or law, the Court or judge in cases in which a writ of habeas corpus ad subjiciendum is issued under the authority of this Act or at common law or otherwise, or an order in lieu thereof is made under this Act, or an order nisi or summons for an order of habeas corpus ad subjiciendum is granted or issued, except where imprisonment is under civil process, shall not decide upon the legality of the imprisonment or order the discharge of the person imprisoned unless notice in writing of an application for the discharge of such person or the order nisi or summons has been served on the Attorney General or on the prosecuting officer for the county in which the person is imprisoned, together with a copy of every affidavit, exhibit and other document to be used in support of such application.
Form and service of notice
(2) The grounds on which the application will be made must be set forth fully in such notice, order nisi or summons and unless the Court or judge otherwise orders there shall be at least two clear days between the service of said notice, order nisi or summons and the making of said application.
Reference of application
(3) Where such application is made to a judge, he shall refer the application to the Appeal Division of the Supreme Court if requested so to do by or on behalf of the Attorney General and if such request is made he shall not order the discharge of the person imprisoned, and such request may be made at any time before a formal order for the discharge of such person is actually made and issued. R.S., c. 253, s. 15.