Dorsey v. Canada (Attorney General), 2023 ONCA 843, 2025 SCC 38 (41132)
“Two federal inmates applied to be transferred from medium‑ to minimum‑security institutions. Despite having been recommended for reclassification and transfer to minimum‑security facilities, in each case an administrative decision‑maker rejected their reclassification. Both inmates filed applications for habeas corpus ad subjiciendum with certiorari in aid, seeking orders that they either be transferred to minimum‑security institutions or that their continued detention in medium‑security settings be justified.
The inmates’ applications were joined for the limited purpose of determining a common threshold legal issue: whether habeas corpus is available to challenge a refusal to reclassify an inmate to a lower security facility. The application judge concluded that the inmates’ circumstances did not fall within the third category — a continuation of a deprivation of liberty that has become unlawful — set out in Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459. Because there was no change in status quo, she was satisfied that the inmates’ residual liberty had not been reduced. Habeas corpus was therefore not available to them. The Court of Appeal dismissed the inmates’ appeal. The majority held that the third category of Dumas is only available if an inmate becomes entitled to greater liberty than that afforded by their continued detention, and that the inmates could only have access to that category if that status was obtained and they were not transferred. At the time the appeal before the Court was heard, both inmates had been reclassified and transferred to minimum‑security facilities following review at the statutorily‑required date.”
The SCC (6:3) allowed the appeal.
Justice Moreau wrote as follows (at paras. 6-7, 73, 89):
“…the decision to continue a particular, more restrictive form of confinement instead of placing an inmate in a lower security facility results in a deprivation of liberty. The effect of being continually held in a higher security facility is substantially the same as an inmate being involuntarily transferred to a higher security facility. Both inmates face greater restrictions on their daily lives and both are deprived of their liberty relative to the facility in which they potentially ought to be placed. As I outline, any distinction between the two is erroneously based on a formalistic understanding of a deprivation of liberty.
Furthermore, the existence of alternative procedures does not impact the threshold availability of habeas corpus when a lower security classification is denied to an inmate. Should an inmate prove a deprivation of liberty and raise a legitimate ground to question the legality of the deprivation, a hearing on the merits must follow. The writ is non-discretionary and release, in this case to a lower security facility, remains the remedy, however, courts have a degree of flexibility to impose appropriate conditions on release in the case before them. …
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.
…
In sum, the availability of the writ is not circumscribed by alternative avenues of redress, and this Court has previously found that alternative paths are neither timely nor provide as effective relief as habeas corpus. The remedy following a successful application is release to a less restrictive security facility, but CSC may tender evidence during the third stage of habeas corpus application as to why a specific security classification is nonetheless justified and judges retain discretion to not discharge an applicant. Finally, as both a right and remedy, habeas corpus has always been flexible and adaptable to contemporary deprivations of liberty. Lower courts retain the ability to craft appropriate conditions when granting relief.”