Supreme Court holds that federal prisoners can challenge a refusal to transfer them to a lower security prison.
The Supreme Court of Canada has determined that denying a federal prisoner reclassification and transfer to a lower-security institution is reviewable by way of habeas corpus. In a 6-3 judgement in Dorsey v. Canada (Attorney General), the Court held that such refusals constitute a deprivation of prisoners’ “residual liberties” and thus trigger the right to habeas corpus review.
Background
Jessica Orkin and Adriel Weaver represented the appellants, Mr. Dorsey and Mr. Salah. They are federal prisoners who sought reclassification and transfer from medium to minimum-security institutions. Their requests were supported by case management teams who endorsed their suitability for a lower-security placements. Despite this, correctional administrative decisionmakers denied their reclassifications. As a result, the appellants remained in medium-security institutions. Each applied for a writ of habeas corpus under Ontario’s Habeas Corpus Act, challenging the deprivation of their residual liberties.
Habeas corpus
Historically, habeas corpus served to protect a detainee’s right to be physically brought before the court. The writ, now constitutionally protected under s.10(c) of the Canadian Charter of Rights and Freedoms, has evolved into an important safeguard against unlawful or unjustifiable detention.
Supreme Court jurisprudence has repeatedly taken a broad and accessible approach to the writ in the correctional context, including in cases involving segregation and other substantial liberty restrictions. In Mission Institution v. Khela, the Court clarified that to access the writ of habeas corpus, the applicant must show there has been a deprivation of liberty, and raise legitimate grounds to question its legality. Once that threshold is met, the respondent authorities bear the onus of justifying the legality of the deprivation. In Dumas v. Leclerc Institute, the SCC described three categories of liberty deprivation in the correctional context:
- the initial deprivation of liberty;
- a substantial change in the conditions amounting to a further deprivation of liberty; and
- a continuation of the deprivation of liberty.
Judicial History
The issue on appeal was whether habeas corpus is available to challenge security reclassification decisions. Both the Ontario Superior Court and the Ontario Court of Appeal concluded that the appellants’ claims could not be characterized as a “continuation of the deprivation of liberty,” as required by the third Dumas category. The Superior Court held that the refusal to transfer the inmates did not effect a change in the ‘status quo’ as their liberties had not been reduced. The majority of the Court of Appeal elaborated that to establish a continuing deprivation under the third Dumas category, a prisoner must show they are entitled to greater liberties than their current detention and have been denied access to the state of greater liberty. In effect, according to the Court of Appeal, unlawful continuation of a deprivation of liberty would only arise where the applicant was reclassified as minimum security, and not transferred accordingly.
The Decision
The Supreme Court rejected the lower courts’ restrictive approach, holding that the determination of whether a deprivation has occurred must “be undertaken from a qualitative perspective.” A deprivation of liberty arises when the applicant’s current state of confinement entails a restriction on their relative or residual liberties to a greater degree than it lawfully should. In these instances, habeas corpus is available to challenge such unjust infringements.
The Court criticized the lower courts’ “misinterpretation of Dumas” in holding that inmates must prove an entitlement to greater liberty to establish a deprivation of liberty under the third Dumas category. An applicant need only show that their confinement is more restrictive than it ought to be, not that they have been formally granted a right to a reduced security classification. It rejected the lower courts’ and respondent’s “formalistic, and unduly narrow, interpretation of liberty deprivation,” observing that it would limit the availability of habeas corpus to circumstances where there is a change in the status quo, and would effectively eliminate the third Dumas category.
Recognition of Liberty Interests and Systemic Context
The Court emphasized the meaningful liberty interest at stake in security classification decision. Lower-security institutions typically allow prisoners greater access 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.” It concluded that a prisoner unlawfully held for an extended period at a higher security facility, having been wrongly denied a reclassification, faces the same deprivation of liberty as one who has been unlawfully transferred to a higher security facility.
The Court highlighted submissions made by Saneliso Moyo and Geetha Philipupillai who represented the intervenor Black Legal Action Centre. These submissions underscored the systemic over-classification of Black and Indigenous inmates and the disproportionate placement of racialized individuals in higher-security facilities. The court thus observed that a narrow approach to habeas corpus would disproportionately impact this already marginalized prisoners’ ability to cascade to lower security levels, and ultimately, to rehabilitate and reintegrate.
Floodgates and Alternative Remedies
The dissenting justices cautioned that expanding access to habeas corpus could open the “floodgates” to habeas corpus applications. The majority rejected this concern, noting the superior court’s gatekeeping function to manage any potential influx. The majority expressed confidence that meritless applications, or those that lack the proper legal basis will be declined.
The respondents also argued that prisoners should rely on CSC’s internal grievances procedure or seek judicial review in Federal Court. The majority disagreed, noting several advantages of habeas corpus: quicker timelines, a more effective and responsive available remedy (as compared to the redetermination remedy generally available on judicial review), the shift in onus to the correctional authority, more accessible provincial superior courts, and a wider scope of review than judicial review typically permits.
Takeaways
Dorsey marks a significant affirmation of habeas corpus as a valuable tool for inmates seeking to challenge security reclassification refusals. By adopting a qualitative, rights-focused, and purposive approach, the SCC has affirmed the continuing salience of “the great writ of liberty” in ensuring that the rule of law runs behind prison walls.
Lawyers
Jessica Orkin, Adriel Weaver, Saneliso Moyo, Geetha Philipupillai