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Habeas Corpus - Prisoners

. Dorsey v. Canada (Attorney General)

In Dorsey v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered habeas corpus where prisoners applied to transfer to lower-security prison facilities, but were denied.

At paras 15-35 the court usefully reviews the lower court decision and the appeal submissions of the parties (including intervenors), and then continues with it's own analysis from paras 36-62 - raising the issue of 'residual liberty' [defined in para 36]:

[28] Only one issue is raised on this appeal: does a refusal to reclassify and transfer an inmate to a lower-security institution constitute a deprivation of residual liberty reviewable by way of habeas corpus?



[36] As discussed earlier, to be successful in an application for habeas corpus, the applicant must first establish that they have been deprived of their liberty. If they can establish a deprivation, they must raise a legitimate ground upon which to question its legality. If the applicant accomplishes that, the onus then shifts to the respondent authorities to show that the deprivation of liberty was lawful: Khela, at para. 30. This appeal concerns only the first part of the test – was there a deprivation of liberty?

[37] In the correctional context, habeas corpus is available in order to protect an inmate’s “residual liberty” – that is, the freedoms that remain available to an inmate notwithstanding the restraints imposed by incarceration: Khela, at para. 34; Miller, at para. 32.

[38] As the application judge noted, while not a closed list, Dumas identifies three general ways in which a deprivation of liberty may arise in the context of a detention. A deprivation of liberty may relate to 1) the initial decision requiring the detention, or to a restriction of residual liberty resulting from 2) a change in the conditions of the detention or 3) the continuation of the detention.

[39] While the three categories are not exhaustive, they are often used by applicants to pinpoint the nature of their alleged deprivation of liberty: Chhina, at para. 23. The appellants claim that the denial of their requests for transfers to a minimum security facility falls squarely under the third Dumas category.

[40] The problem with the appellants’ argument is that it presumes they are entitled to reclassification to a minimum security institution. This is misguided. There is no standalone entitlement to a minimum security classification simply because the CCRA directs CSC to take all reasonable steps to ensure inmates are placed into the “least restrictive environment”. This very argument was considered, and rejected, by the British Columbia Court of Appeal in L.V.R.:
The appellant argues that Dumas is distinguishable because it addressed parole, which he describes as a “privilege”, as opposed to being held at an institution with the lowest restrictions, which he describes as an “entitlement”. He argues that he suffers a deprivation of residual liberty because his entitlement to be in a minimum security facility is deprived. In my view, he misconceives his entitlement under the CCRA. His entitlement is qualified and is subject to considerations that find expression in the classification process.
[41] As noted earlier, the preponderance of provincial superior court decisions, and decisions of appellate courts from other provinces, over the past decade have similarly relied on Dumas and held that there is no deprivation of residual liberty where a security classification has been, as in the appellants’ case, maintained. While these cases have only persuasive value, they are instructive in two respects. First, they confirm that transfer refusals would fall under the third Dumas category, which addresses CCLA’s argument that they are also covered by the second. They are also consistent with the general proposition that no inmate is entitled to be placed at a minimum security institution. Here, the denial of transfers to minimum security institutions resulted in the appellants remaining in the same position they were before their requests. Their residual liberty was therefore not further deprived nor were they placed in a more restrictive form of confinement.

[42] As in L.V.R., the court in Lao held that the “reduction of [a] security classification itself is not an entitlement” and that “[a]n inmate can have no expectation that [such] a request will be granted”. The court noted that reclassification “is not the kind of decision, based on [a] weighing of enumerated factors, that allows [an inmate] to say [they] were entitled to a reduction and [were] deprived of it”. Rather, a transfer denial only constitutes a deprivation of residual liberty where the inmate establishes that they are entitled to be placed in a lower-security institution. Put differently, a deprivation of residual liberty under the third Dumas category will only arise if the inmate becomes entitled to greater liberty than that afforded by their continued detention at the same security level.

[43] Contrary to what the appellants claim, their situation does not fall within the third Dumas category. Both appellants had been classified as medium security inmates and were incarcerated at medium security institutions. Therefore, as it was put in Dumas, they had not “acquire[d] the status” of a minimum security classification. To hold otherwise would effectively make habeas corpus available to every federal inmate in respect of every security classification decision. As noted by the application judge, there is nothing to compel or warrant opening this floodgate. CSC’s grievance procedure and judicial review in the Federal Court remain available to inmates in these circumstances. The perceived shortcomings of these remedies are not a legitimate basis for this court to make habeas corpus available as a collateral method of attacking every security classification decision. Indeed, the Supreme Court has highlighted the need for courts to restrict the growth of such collateral methods: May, at para. 35.

[44] It is worth repeating that Mr. Dorsey did ultimately obtain a minimum security rating on a subsequent review, which then entitled him to a transfer. If, after Mr. Dorsey was reclassified, CSC still declined to move him to a lower security facility, habeas corpus would have been available. Again, however, this is not what occurred.

[45] It is important to remember that habeas corpus applications are different than Charter applications, and that, while the engagement of an inmate’s liberty interest might be readily established on a Charter application, this is an entirely different question than whether an inmate can establish the requisite deprivation of residual liberty for habeas corpus. In short, Charter engagement is not coextensive with the threshold on a habeas corpus application.

[46] Based on the principles established in Dumas, the appellants have not demonstrated a deprivation of their residual liberty.

[47] The question then becomes whether the Supreme Court’s decisions which postdate Dumas – particularly Khela and Chhina – have changed or recalibrated Dumas in a way that supports the appellants’ position. The answer is no.

[48] Each of the Supreme Court’s post-Dumas decisions supports the proposition that a deprivation of residual liberty under the third Dumas category will only arise when the conditions of an inmate’s continued detention have somehow changed. Indeed, only where the nature of a continued detention has changed can there be a possible basis for questioning its legality on a habeas corpus application. Where an inmate is simply kept at the same security level, the requisite change in conditions will only occur if the inmate becomes entitled to greater liberty than that afforded by their current confinement.

[49] For example, although the inmates in Cardinal had their detention in administrative segregation simply maintained, the conditions of that detention changed when the inmates were denied a hearing to which they became entitled after the Segregation Review Board recommended transfer to the general inmate population: Cardinal, at para. 21. That is, the inmates became entitled to an avenue to greater liberty, but had that entitlement denied. The denial changed the nature of their continued detention in administrative segregation and transformed it into a deprivation of residual liberty.

[50] Unlike the inmates in Cardinal, the appellants did not become entitled to anything that might have afforded them greater liberty. As explained earlier, inmates have no standalone entitlement to a minimum security classification. Accordingly, the nature of the appellants’ continued detention in medium security remained unchanged.

[51] Khela supports rather than supplants these principles. In Khela, the inmate was subjected to an involuntary and emergency transfer from a medium security institution to a maximum security institution, with the question being whether a provincial superior court could review the reasonableness of that transfer decision. The Supreme Court, focusing on the Attorney General of Canada’s argument that a reasonableness review should be left with the Federal Court exercising judicial review powers, set out the previously discussed two-step procedure on a habeas corpus application.

[52] The appellants focus on the following passage from Khela, at para. 72, which they argue supports their position that habeas corpus is available in circumstances like theirs:
[U]ltimately then, where a deprivation of liberty results from a federal administrative decision, that decision can be subject to either two forms of review [being habeas corpus and judicial review], and the inmate may choose the forum he or she prefers.
[53] This passage, however, cannot be read in isolation. Later on, at para. 91, the Supreme Court, per LeBel J., held:
As I mentioned above, the writ of habeas corpus will issue if (1) the applicant has been deprived of his or her liberty and (2) that deprivation was unlawful.
He similarly noted, at para. 77:
The intervener the BCCLA argues that the application of a standard of review of reasonableness should not change the basic structure or benefits of the writ. I agree. First, the traditional onuses associated with the writ will remain unchanged. Once the inmate has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer was reasonable in light of all the circumstances. [Emphasis added.]
[54] It is important to understand that, because it was uncontested that Mr. Khela’s involuntary transfer to a maximum security institution from a medium security institution amounted to a deprivation of his residual liberty, the court did not even address the meaning of that concept, which is what is at issue in the appellants’ case.

[55] Put another way, although the word “reasonableness” appears in the passage above, it is clearly in reference to the second part of the two-step habeas corpus test – namely, whether the applicant has raised a legitimate ground upon which to question the legality of their continued detention – and has nothing at all to do with the first step or with how a deprivation of liberty is categorized.

[56] While Khela did not specifically address Dumas, the court made this notable point about when the writ is available to inmates:
Le Dain J. also held in Miller that relief in the form of habeas corpus is available in a provincial superior court to an inmate whose “residual liberty” has been reduced by a decision of the prison authorities … Decisions which might affect an offender’s residual liberty include, but are not limited to, administrative segregation, confinement in a special handling unit and, as in the case at bar, a transfer to a higher security institution. [Emphasis added.]
[57] The Supreme Court’s view on this issue could not be any clearer: the writ of habeas corpus is available to an inmate only when their residual liberty has been reduced or, put differently, deprived.

[58] In Chhina – the Supreme Court’s most recent discussion of habeas corpus – Karakatsanis J., while addressing jurisdiction in an immigration context, offers us some helpful guidance, with specific reference to Dumas:
[Dumas] helpfully illustrates different circumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged. A deprivation of liberty may relate to (1) the initial decision requiring the detention; or to a further deprivation of liberty based on (2) a change in the conditions of the detention; or (3) the continuation of the detention.

While not exhaustive, this list may be particularly helpful in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining the relevant case-law. For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initial deprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution is emblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration, which may engage ss. 7 and 9 of the Charter, as was argued here (and in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220).
[59] The majority in Chhina confirms the two-step process in habeas corpus applications, and affirms the Dumas categories.

[60] The appellants further argue that Chhina stands for the proposition that there need not be a change in the inmate’s situation in order to commence a habeas corpus application. This submission, however, overlooks the fact that Mr. Chhina proceeded on the basis that his immigration detention was indeterminate and that there was no reasonable prospect that his immigration proceeding would be completed within a reasonable amount of time. That is to say, Chhina did not address a discrete decision about Mr. Chhina’s status in a correctional setting, but rather whether his detention was Charter-compliant. Mr. Chhina’s situation is not analogous to someone who is serving a sentence, like the appellants. As Chhina was not concerned with the carceral setting, it should not be read as a statement on deprivations of liberty in that context.

[61] As discussed already, although Khela widens the scope of review at the second stage of the analysis, it says nothing of the first stage. It therefore cannot be said that Khela expanded the threshold requirement, which is where the appellants failed in the court below. And, again, Chhina addresses habeas corpus in an immigration context.

[62] Finally, and in any event, the appellants did not present their case in the court below, or on appeal, as a fourth category not covered by Dumas. In other words, they did not seek to expand what everyone accepts is a non-exhaustive list of categories; they argued that they fell within the well-established and previously defined third Dumas category, which the application judge correctly rejected.


[63] For these reasons, I would dismiss the appeal.
. Dorsey v. Canada (Attorney General)

In Dorsey v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered several amicus intervention applications in appeals of prisoner habeas corpus denials:
[1] This case involves a challenge to the application of the law of habeas corpus. In Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459, at p. 464, the Supreme Court of Canada held that, in the carceral context, habeas corpus is available to challenge an unlawful deprivation of liberty in three circumstances: (1) the initial deprivation of liberty; (2) a substantial change in conditions amounting to a further deprivation of liberty; and (3) a continuation of a deprivation of liberty, where it becomes unlawful.
. Little v. Canada (Attorney General)

In Little v. Canada (Attorney General) (Ont CA, 2022) the Court of Appeal considered habeas corpus in the context of prisoners:
[24] In May, the Supreme Court of Canada explained and clarified the habeas corpus jurisdiction of a superior court in the context of the rights of prisoners. In that case, as a result of a direction from the CSC, inmates serving life sentences were classified as minimum or medium security according to a computer program and transfers from minimum to medium occurred without disclosure of the scoring matrix used by the program. Some affected inmates applied for habeas corpus with certiorari in aid for an order directing CSC officials to transfer them back to minimum security.

[25] The Supreme Court held: 1) the inmates could choose whether to pursue a remedy of judicial review in Federal Court or seek habeas corpus in a provincial superior court, i.e., there is concurrent jurisdiction; 2) as a matter of principle, a provincial superior court should exercise its habeas corpus jurisdiction when it is requested to do so, and should not decline jurisdiction merely because an alternative, possibly more convenient remedy may be available; 3) provincial superior courts should only decline habeas corpus jurisdiction in two circumstances: a) where a statute such as the Criminal Code gives a court of appeal the jurisdiction to correct the errors of a lower court and order release; or b) where the legislature has put in place a complete, comprehensive, and expert procedure for review of administrative matters, such as the one Parliament created for immigration matters; and 4) the grievance procedure provided for in the CCRA does not constitute the type of complete, comprehensive, and expert procedure for reviewing decisions regarding inmates’ confinement that allows a court to decline habeas corpus jurisdiction: May, at paras. 44, 62-64.

[26] In Graham, this court found that unlike the CCRA grievance procedure, the Parole Board review system established by the CCRA is a complete, comprehensive, and expert procedure for administering the parole review process, and constitutes one of the two exceptions to the rule in May where a superior court may decline habeas corpus jurisdiction: at para. 10.


Issue 2: Did the application judge err by finding that the parole system was a complete, comprehensive, and expert procedure for the minimum security issue?

[42] As a result of my finding that the rehabilitative impasse issue was not before the application judge, the next issue is whether the application judge erred in concluding that the appellant’s argument regarding minimum security, which was before her, fell under the second May exception.

[43] As described above, the Supreme Court in May held that a superior court may refuse jurisdiction over a habeas corpus application where the legislature has put in place a complete, comprehensive, and expert procedure for review. This procedure must be at least as broad and no less advantageous than the review available by way of habeas corpus: May, at para. 40. The court provided the example of the review system for prerogative relief in immigration matters set out in Peiroo v. Canada (Minister of Employment and Immigration) (1989), 1989 CanLII 184 (ON CA), 69 O.R. (2d) 253 (C.A.), leave to appeal refused, [1989] 2 S.C.R. x, and referred to this exception as the “Peiroo exception”: May, at paras. 39-41.

[44] In Graham, this court held that the parole review process set out in the CCRA is an example of a Peiroo exception: at paras. 10, 15-16. In my view, the application judge made no error in declining habeas corpus jurisdiction on the basis that the Board’s use of material placed before it by the CSC constituted part of the role of the Board in making its parole decision and therefore came within the Peiroo exception from May.


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Last modified: 23-12-23
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