In re Isbell, [1930] SCR 62

Supreme Court of Canada

In re Isbell, [1930] S.C.R. 62

Date: 1929-05-17

In re Irving J. Isbell

1929: May 17.

Present: Mr. Justice Rinfret in chambers.

Habeas corpus—Criminal law—Person at large on bail—Not entitled to a writ

In order to make a case for habeas corpus in criminal matters, there must be an actual confinement or, at least, the present means of enforcing it. A person may apply for the writ while in the custody of a constable, immediately upon being arrested, and need not wait until he is actually incarcerated. But a person at large on bail is not so restrained of his liberty as to entitle him to the writ.

MOTION by the applicant for the issue of a writ of habeas corpus.

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The facts are fully stated in the judgment of Mr. Justice Rinfret.

A. H. Tanner, K.C., for the applicant.

A. W. Rogers, for the Attorney-General for Ontario.

Rinfret J.—The application is for a writ of habeas corpus.

It is based on a number of grounds, most of which have already been submitted to the Supreme Court of Ontario upon motion to quash the information and other proceedings. The motion was heard by McEvoy J., in chambers, who confirmed the commitment in a very elaborate judgment[1]. Upon appeal, his judgment was affirmed by the Appellate Division[2].

Under such circumstances, it is not usual for a judge of the Supreme Court of Canada to interfere with the decision of the provincial courts (In re Patrick White[3]), but see remarks of the Chief Justice quoting Lord Herschell in In re Seeley[4]. Had I felt that the petition, on its face, presented serious grounds, I would have deemed it advisable to refer the matter to the full court (In re Richard[5]; In re Gray[6]).

But there is, to my mind, a preponderating objection against the issue of the writ.

The prisoner is on bail.

The present Ontario Act (R.S.O. 1927, c. 116, s. 1) applies “where a person * * * is confined or restrained of his liberty”.

The Act of 1866 (29-30 Vict. 45) was similar:

when any person shall be confined or restrained of his or her liberty, etc. (Sec. 1);

and the writ was to be

directed to the person or persons in whose custody or power the party so confined or restrained shall be, etc.

Blackstone, in his Commentaries dealing with the common law writ of habeas corpus, says:

The great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day

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and cause of his caption and detention, and to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf.

Halsbury, Laws of England (vol. 10, no. 90), refers to the writ as

a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. It is a prerogative writ by which the King has a right to inquire into the causes for which any of his subjects are deprived of their liberty.

There is a passage of Hawkins’ Pleas of the Crown (vol. II, pp. 138-139) to the effect

that the person bailed is in the eye of the law, for many purposes, esteemed to be as much in the prison of the court by which he is bailed, as if he were in the actual custody of the proper gaoler.

I do not think however that, generally speaking, a person discharged on bail may be considered as restrained of his liberty for the “purpose” of entitling him to a writ of habeas corpus.

I was referred to a sentence in Lord Campbell’s judgment re Foxhall v. Barnett[7], where he says:

The plaintiff was released only from imprisonment within four walls: he still had to restore himself to a state of freedom; which he did not do until he had the inquisition set aside: till then the imprisonment was not done away with.

But this was in an action for false imprisonment, where the “inquisition” was quashed on certiorari; and the question was whether plaintiff was entitled, under an allegation that he had incurred expenses in procuring his discharge from custody, to recover damages for the expense of quashing the inquisition. Having regard to the nature of the case, I would interpret the words of Lord Campbell as meaning that, until the “inquisition was set aside,” the plaintiff was threatened with imprisonment and any expense incurred for the purpose of “doing away with” it was justifiably incurred.

The only decision in the Canadian courts that I have been able to find, and I was referred to no other, is that of The Queen v. Cameron[8]; but there the petitioner was a physician who resided in the province of British Columbia. He was arrested in that province and brought to Montreal, in the province of Quebec, to answer a charge of defamatory libel. When he was committed for trial, the

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judge admitted him to bail to appear at the November term of the Court of Queen’s Bench, “and in the meantime not to depart the court without leave.” He had not therefore the privilege of going when and where he pleased. No bill of indictment was preferred against him during the two next ensuing terms of the court. He then moved, under a special provision of the statute of Lower Canada (An Act respecting the writ of Habeas Corpus—C.S.L.C., c. 95, s. 7), that his bondsmen be released, and that the recognizance entered into by them and himself be discharged and vacated. The provision of the Act was

that when a person has been committed for a felony and, having prayed to be brought to trial, is not indicted during the next term of the Court of Queen’s Bench after such commitment, the court shall, upon motion made in open court, set the prisoner at liberty upon bail, unless it be shown that the witnesses could not be procured for that term, and, after having asked to be brought to trial, if he be not indicted and tried at the second term after his commitment, that he be discharged from his imprisonment.

Wurtele J. granted the motion and discharged the prisoner. In so doing he used the following language:

But bail is custody and he is constructively in gaol; and he has the same right to be released from his custody as he would have to be released from imprisonment.

The learned judge was addressing himself to the question whether the section applied, notwithstanding the fact that the petitioner was not actually in gaol, and he came to the conclusion that it did. He held that, under the section, a person, who was not indicted and tried for two consecutive terms after his commitment, had an equal “right to be released” whether in prison or under bail. The decision turned exclusively upon the construction of the statute and the very exceptional circumstances of the case.

In my view, in order to make a case for habeas corpus in criminal matters, there must be an actual confinement or, at least, the present means of enforcing it. A person may apply for the writ while in the custody of a constable, immediately upon being arrested, and need not wait until he is actually incarcerated. But a person at large on bail is not so restrained of his liberty as to entitle him to the writ. There are numerous decisions in that sense in the United States. They may be found conveniently collected in the American and English Encyclopedia of Law, 2nd ed., vol. 15, vo. Habeas Corpus, at p. 159.

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In fact, bail is one of the alternative remedies which may be granted upon application for habeas corpus. See The Habeas Corpus Act (R.S.O. 1927, c. 116, s. 7):

7. Although the return to a writ of habeas corpus 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 the person.

The Act of 1866 contained the following provision (29-30 Vict., c 45, s. 3):

And if upon such return it shall appear doubtful on such examination, whether the material facts set forth in the return, or any of them, be true or not, in such case it shall and may be lawful for the said judge or the court to let to bail the said person so confined or restrained, upon his or her entering into a recognizance, with one or more sureties;

As to the statute 31 Car. 2, in re Robert Evan Sproule[9], Sir W. J. Ritchie C. J., said at p. 181:

The statute of 31 Car. 2 was to provide that persons committed for criminal, or supposed criminal matters in such cases where by law they were bailable should be left to bail speedily.

To the above may be added s. 63 of the Supreme Court Act:

63. In any habeas corpus matter before a judge of the Supreme Court, or on any appeal to the Supreme Court in any habeas corpus matter, the court or judge shall have the same power to bail, discharge or commit the prisoner or person, or to direct him to be detained in custody or otherwise to deal with him as any court, judge, or justice of the peace having jurisdiction in any such matters in any province of Canada.

At present, the prisoner is at liberty on bail. He has himself selected that means of avoiding confinement and incarceration. He is on bail on his own application since November, 1928. We are now in May, 1929, and his trial is now proceeding in Toronto.

I should not interfere. The application is dismissed without costs.

Motion dismissed without costs.