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Habeas Corpus - Prisoners (2). Dorsey v. Canada (Attorney General)
In Dorsey v. Canada (Attorney General) (SCC, 2025) the Supreme Court of Canada allowed inmate appeals, these brought against lower court dismissals finding against them on applications "for habeas corpus ad subjiciendum with certiorari in aid, seeking orders that CSC either transfer them to minimum-security institutions or justify their continued detention in medium-security settings. Although their applications were not formally brought under the Canadian Charter of Rights and Freedoms, the appellants alleged that their continued classification engaged their ss. 7, 9, 10(c) and 12 Charter rights".
Here the court considers whether a prisoner's "denial of lower security reclassification is a deprivation of liberty":(a) Relative Restrictions in Liberty
[53] A security reclassification decision has three possible outcomes: a transfer to a higher security facility, a transfer to a lower security facility, or no transfer. Of course, inmates who are reclassified to a lower security facility will not require access to the writ. Both May and Khela dealt with reclassification decisions where the outcome was a transfer to a higher security facility. Here, the outcome of the reclassification decision is a continuation of a current security classification.
[54] As noted above, the analysis must inquire into whether there is a restriction on liberty as between two states of confinement. For example, the relational focus in Miller was on administrative segregation versus the general population within one federal facility; however, in my view, the same relative comparison applies as between two separate facilities (i.e., an inmate being held in a maximum-security facility is more deprived of his liberty than if he was placed in a medium-security facility). In Miller, establishing a deprivation of liberty required proof of “a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution” (p. 641). Transposing this logic onto security reclassifications, the salient comparison is between a current restrictive classification in contrast to another, less restrictive, classification.
[55] Undoubtedly, not all carceral conditions will constitute deprivations of liberty. My colleagues note that “habeas corpus is not an unrestricted remedy to challenge an ever-widening range of conditions of incarceration” (para. 160). I do not contend otherwise. Again, in Miller, this Court explained that habeas corpus is not meant “to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population” (p. 641).
[56] Since the Miller trilogy, courts have held that denial of or inability to access rehabilitative programming does not constitute a deprivation of liberty (Mapara v. Ferndale Institution (Warden), 2012 BCCA 127, 318 B.C.A.C. 139, at paras. 12-15; Lord v. Coulter, 2007 BCSC 1758, 72 Admin. L.R. (4th) 264, at paras. 60-63, aff’d 2009 BCCA 62, 266 B.C.A.C. 122; Rain v. Canada (Parole Board), 2015 ABQB 639, at para. 15). Furthermore, in Ewanchuk v. Canada (Attorney General), 2017 ABQB 237, 354 C.C.C. (3d) 119, the court held that habeas corpus does not apply in situations involving temporary lock downs and other intermittent forms of detention; rude, abusive, or inattentive staff; exposure to dangerous inmates; complaints about food, medical accommodations, and hygiene; complaints that the inmate grievance procedures are ineffective; inadequate mail services and searches of mail; inadequate access or excessively expensive telephone communications; and restrictions that impede legal research, document preparation, and litigation activities (para. 65). Likewise, in Mennes v. Canada (Attorney General), 2008 CanLII 6424, the Ontario Superior Court of Justice held that housing an inmate in a double occupancy room instead of a single occupancy room does not engage a deprivation of liberty (paras. 27-28).
[57] Contrary to my colleagues’ suggestion, access to habeas corpus has not undergone and, following this appeal, does not risk undergoing unrestrained expansion. The examples listed above demonstrate that habeas corpus is circumscribed to carceral conditions which amount to a deprivation of liberty. Carceral conditions which do not result in a deprivation of liberty cannot form the basis for habeas corpus review. This Court has previously recognized that “[t]he conditions of imprisonment have traditionally been understood as falling within the purview of correctional institutions, not courts” (John Howard Society of Saskatchewan, at para. 40). These reasons should not be read as departing from that established understanding. The mere loss of certain privileges is distinct from an unlawful decision to maintain a more restrictive form of incarceration (Miller, at p. 641).
[58] It is important not to conflate the three Dumas categories, which assist solely in determining the nature of the deprivation, with an analysis of whether there is a deprivation of liberty between two distinct forms of confinement. The analysis of deprivations of liberty does not merely assess whether a change has occurred; if that were so, it would effectively eliminate the third Dumas category. The analysis must focus on whether the inmate is currently in a state of confinement that is relatively more restrictive of his liberty than where he allegedly ought to be.
[59] It is less difficult to identify when a deprivation has arisen with respect to the first and second categories, namely, when a change results in depriving the inmate of liberty relative to his prior state. These two categories require an overt change in liberty, so courts can readily establish a deprivation so long as the change is between relative states of liberty deprivation and not mere privileges. The analysis of a “deprivation of liberty” for these first two categories has tended to be straightforward. For instance, in May, this Court concluded in one pithy paragraph that a deprivation of liberty was established when inmates were transferred to a higher security facility (para. 76).
[60] Turning to the third category, a continual confinement that results in a deprivation of liberty, the analysis remains one of comparing two relative states. The analysis here is the same as above. An inmate will establish a deprivation of liberty if they demonstrate that their current continuing state of incarceration is more restrictive of their liberty than the allegedly lawful state they seek to be released to. For example, in Cardinal, where the applicants were lawfully placed in administrative segregation but it was their continued confinement in segregation, as opposed to the general population, that was found to be unlawful.
[61] Establishing a deprivation of liberty is not contingent on a change in status quo. A “change in status quo” speaks to the first and second Dumas categories and is useful only as a proxy for comparing two distinct states of liberty restriction. Unlike the first and second categories of Dumas, which are defined by a change in conditions, the third category is marked by the distinct absence of any change. If it were necessary to show that an inmate had previously experienced a greater degree of liberty, and then was deprived of such liberty, there would conceptually be no space left for the third category.
[62] I can see no principled reason for permitting access to the writ based solely on an inmate having already experienced greater freedom (such as before being placed in segregation) but, conversely, prohibiting access to the writ because one seeks — but has not yet experienced — greater freedom. I reject the lower courts’ and the respondent’s assertion that, because an inmate has never enjoyed a less restrictive form of imprisonment, they have not been deprived of liberty. This formalistic, and unduly narrow, interpretation of liberty deprivation is discordant with both the general tenor of our Court’s jurisprudence on habeas corpus and a purposive interpretation of Charter rights. As Justice Wilson stated in Gamble, “the effects of a deprivation of liberty or a continuation of a particular form of deprivation of liberty should be reviewed from a qualitative perspective” (p. 644). The concept of status quo serves no purpose when analyzing whether a continual state of confinement is a deprivation of liberty.
(b) No Entitlement Necessary
[63] In my view, the courts below erred in holding that an applicant must first prove an “entitlement” to the less restrictive state in order to establish a deprivation of liberty. The respondent echoed this line of reasoning, arguing that, for a continuation to be tantamount to a deprivation of liberty, it must involve circumstances where an initially lawful detention becomes “unlawful because of a change in the legal entitlement of the detainee” (R.F., at para. 60). Entitlement has never formed part of the analysis for a deprivation of liberty; rather, a legal entitlement to a certain form of incarceration is the outcome of a successful habeas corpus application, after being heard on its merits. A requirement of entitlement at the first stage of an application would preclude an arbitrarily detained applicant from ever having their application heard.
[64] Reliance on entitlement appears to come from a misinterpretation of Dumas, which dealt with an inmate challenging a continuation of his deprivation of liberty. In that case, Mr. Dumas was initially granted day parole by the National Parole Board (“NPB”), conditional on his acceptance into a community residential centre. In the interim, Mr. Dumas committed various disciplinary offences and, following a review, the NPB revoked their prior approval of day parole before it ever took effect. Mr. Dumas commenced a habeas corpus application challenging his denial of day parole. This Court concluded that he had no right to habeas corpus, holding that the “continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful” (p. 464). The Court noted that: “In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee” (ibid.). When a decision to grant parole is conditional, an “inmate only becomes a parolee if and when the condition is fulfilled” (ibid.). In the case of Mr. Dumas, because the condition was never fulfilled: he was never granted parolee status and therefore had no right to habeas corpus (p. 465).
[65] Based on these facts, access to habeas corpus was denied because Mr. Dumas failed to raise legitimate grounds for challenging the legality of his deprivation of liberty — the second prerequisite for accessing a merits hearing. This Court was clear that Mr. Dumas had not alleged that the NPB acted without jurisdiction, deprived him of procedural fairness, or infringed the Charter (Dumas, at p. 465). In other words, Mr. Dumas failed to provide a legitimate ground for questioning the deprivation. I note that Dumas was decided well before this Court held in Khela that habeas corpus was available to challenge the substantive reasonableness of an administrative decision-maker.
[66] Moreover, there was no entitlement to the less restrictive state of liberty in Cardinal, a case dealing with a continuation of liberty deprivation. In Cardinal, the applicants were moved from a medium- to maximum-security facility following a hostage-taking situation. The applicants were immediately placed in segregation. The Segregation Review Board subsequently recommended that the applicants be moved to the general population, but the Director maintained the right to refuse this recommendation. This Court held that the Director’s decision to continue to hold the applicants in segregation was unlawful because it was procedurally unfair (p. 661). However, had the Director notified the applicants that he intended to reject the Segregation Review Board’s recommendation and provided them with an opportunity to be heard, procedural fairness would have been met and the decision to continue the segregation could have been found to have been lawful (pp. 659-60). Therefore, importantly, at no point did the applicants have a crystallized entitlement to be transferred to the general population. Rather, a recommendation was made and a decision-maker declined that recommendation. Notably, the remedy for the procedural unfairness was to release the applicants into the general population of a new institution, despite having had no prior interaction with that population.
[67] As these cases demonstrate, the first stage requires an applicant to establish that their present state of liberty is restricted relative to that which they allegedly ought to lawfully be in, and does not require that they establish a formal entitlement. The focus is on the effect of a particular type or level of detention and must be reviewed from a qualitative perspective. This stage should not function to prevent access to the writ based on formalistic distinctions.
(c) Impact of Security Reclassification
[68] Turning to the impact of security reclassification decisions within the federal correctional system, in my view, it is clear that their effect may be to unlawfully detain an inmate in a higher, more restrictive facility than they lawfully ought to be detained in. Federal inmates’ security classifications and placements have a profound impact on their qualitative experience of incarceration and, in many instances, also on its duration.
[69] Security classification and placement will impact the degree of access an inmate has to correctional programs, rehabilitative opportunities, private family visits, work opportunities, and temporary absences, as well as the eventual timing of their release, all of which may well impact their successful reintegration into the community. For inmates serving life or indeterminate sentences, such as the appellants, transfer to a minimum-security facility is often the prerequisite to a conditional release.
[70] This Court has recognized the non-trivial and substantial liberty restrictions as between minimum-, medium-, and maximum-security federal facilities and established that a transfer to a higher security facility constitutes a deprivation of liberty (see, e.g., May; Khela). In my view, an inmate unlawfully held for an extended period at a higher security facility, having been wrongly denied a reclassification, faces the same deprivation of liberty as an inmate who has been unlawfully transferred to a higher security facility.
[71] Whether a security reclassification results in a deprivation of liberty is ultimately context-dependent. It will depend on whether the decision results in actual physical constraints or deprivations of liberty that are more restrictive or severe than another, less restrictive security classification. Security reclassification decisions that, in practice, result in an insignificant or trivial limitation on an inmate’s rights would not constitute a deprivation of liberty for the purposes of habeas corpus.
[72] Moreover, as several interveners point out, marginalized Black and Indigenous inmates are more likely to be over-classified, meaning they are more likely to be assessed at a higher security level than their non-marginalized peers (see, e.g., I.F., Aboriginal Legal Services, at paras. 9-15; I.F., Black Legal Action Centre, at paras. 10-12; I.F., Canadian Association of Elizabeth Fry Societies, at para. 10). Over-classification disproportionately places Black and Indigenous inmates in higher, more restrictive security facilities with a lesser degree of access to rehabilitative opportunities that promote successful reintegration into the community upon release. Notably, the inability to reach a lower security classification can preclude inmates from qualifying for culturally responsive environments and programming, such as the Healing Lodge (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 65; A.F., at para. 40). In turn, impeding access to the writ will disproportionately impact these marginalized groups’ ability to cascade to lower security levels and, ultimately, to rehabilitate and reintegrate.
[73] To summarize, the decision to increase a security classification is a deprivation of liberty, as is the decision to deny a lower security classification. However, in both situations, access to habeas corpus will still require an applicant to raise a legitimate ground for the unlawfulness of that particular decision. What amounts to legitimate grounds must be assessed on a case-by-case basis. As discussed above, at the second stage, an applicant must raise a legitimate ground to question the lawfulness of the denial of a lower security classification because it was either procedurally unfair, unreasonable, outside the decision maker’s jurisdiction, failed to comply with the Charter, or a combination of these reasons. Failure to raise a legitimate ground at the second stage will result in the dismissal of the habeas corpus application. This requirement ensures that only claims with a sound legal foundation proceed to the merits, thereby preventing misuse of the writ.
[74] Within the context of a denial of a lower security reclassification, it would be at this second threshold stage that a court could decline to proceed to a hearing on the merits. An application that fails to establish proper grounds, which provide a legal basis for the claim of unlawfulness, will not proceed to stage three of the habeas corpus process. I do not agree that permitting access to habeas corpus in these circumstances will open the floodgates as the respondent suggests (R.F., at para. 107, citing application judge’s reasons, at para. 49). At this second stage, the applicant is required to raise a legitimate ground to question the lawfulness of the deprivation of their liberty. To do so, they must identify an arguable issue and present a sound legal basis for their claim (see Farbey and Sharpe, at p. 53). Importantly, this second stage engages the courts’ gatekeeping function and courts should take care to decline to hear a case on its merits where the applicant does not meet this threshold (see Khela, at para. 41).
[75] The governing test, as articulated in Dumas and affirmed in May, Khela, and subsequent cases, remains unchanged. This Court has consistently applied the test in line with the expansive and purposive approach to habeas corpus recognized in Dumas. In the present context — where unlawful restraints on liberty arise from the wrongful denial of security reclassifications — the remedy clearly falls within the established scope. The traditional onuses associated with the writ should remain unchanged; once the inmate demonstrates a deprivation of liberty, all that is required is that they cast a doubt on the lawfulness of the deprivation (Khela, at para. 77). To unduly narrow this scope would constitute a departure from the Court’s settled jurisprudence. Should Parliament consider this application of the remedy too broad, it retains the authority to respond by enacting a complete, comprehensive and expert procedure for review of federal reclassification refusals (May, at paras. 40 and 44).
[76] Preventing applications with a proper legal basis from proceeding to the third stage out of fear of opening the floodgates would run contrary to the very foundation of the law of habeas corpus. Courts can, and have, guarded against a flood of cases by declining applications that lack a legal basis. However, once a sound legal basis is established, courts should not be reluctant to allow such applications to proceed. The second stage of the application is not concerned with the capacity of correctional institutions to justify the seemingly unlawful detention; rather, it is focused on ensuring meaningful access to justice to protect inmates’ liberty rights.
[77] The purposive and qualitative approach to habeas corpus leads me to conclude that a deprivation of liberty is established when an inmate has been denied a lower security reclassification. Prematurely filtering out reclassification decisions that continue, rather than definitively alter, a particular form of confinement fails to assess the reality of inmates’ lives within the walls of a prison. Whether or not that decision is lawful is a distinct and separate question in the analysis, with respect to which the applicant must raise a legitimate ground. An unreasonable or arbitrary decision to refuse a lower security classification is an unlawful deprivation of liberty and the appropriate remedy is release to a lower security facility.
[78] Habeas corpus remains one of the few tools available for inmates to effectively challenge and remedy a wrongful restraint on their residual liberty. It would be antithetical to the purpose of the “great and efficacious writ” if courts were precluded from assessing the lawfulness of a particular, more restrictive form of continued confinement. In recognition of the courts’ traditional role as a safeguard of the liberty of inmates, Gamble held that “[r]elief in the form of habeas corpus should not be withheld for reasons of mere convenience”, reinforcing that access to the writ must not be subject to procedural roadblocks (p. 635).
[79] The above analysis answers the issue on appeal: a decision denying reclassification to a lower security institution is a deprivation of residual liberty reviewable by way of habeas corpus. It follows that the courts below erred in concluding that the appellants could not seek to challenge the reclassification refusals of the detaining authorities in their cases. Both appellants have now been reclassified and moved to minimum-security facilities, and therefore the application of habeas corpus to the legality of their particular detentions is now moot. However, the parties raised some additional concerns which I will briefly address.
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