The court was split on the scope of the remedy for inmates who believe they’ve been wrongly detained
Federal inmates who have been denied relocation to a lower security facility have the right to challenge the denial via a habeas corpus application, a legal remedy available to individuals who believe they have been unlawfully detained and want their circumstances reviewed by a court, the Supreme Court of Canada ruled in a 6-3 decision on Friday.
Writing for the majority, SCC Justice Mary Moreau said access to the remedy must remain broad, in keeping with longstanding case law.
“Given that habeas corpus safeguards against wrongful restraints on liberty, the jurisprudence has remained resolute in upholding the broad and accessible character of the writ,” Moreau wrote in the decision in Dorsey v. Canada (Attorney General).
“This court has consistently held that ‘jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeas corpus jurisdiction… should be well defined and limited.’”
In contrast, the dissent framed habeas corpus as an “extraordinary common law remedy” that is limited in scope. Delivered by Justices Suzanne Côté and Malcolm Rowe, the dissent argued that Friday’s decision will transform the remedy “into a means for judges to summarily substitute their own views for those of correctional administrators.”
Jessica Orkin, a partner at Goldblatt Partners LLP and one of the lawyers representing the two inmates who appealed to the high court, told Canadian Lawyer on Monday that the decision will likely have the effect of requiring a “greater quality of decision making by prison authorities,” though it will not impact her clients at this point.
“When faced with a security reclassification refusal decision that has these hallmarks of unreasonableness or of arbitrariness, [inmates] will be able to decide whether to go to the superior court to challenge that decision,” Orkin says. Moving forward, more inmates will have access to “a rapid hearing and a rapid remedy if they show the decision to be unlawful, or if the state is unable to justify the legality of the decision.”
Orkin adds, “There is a saying that sunlight is disinfecting.
“The scrutiny that comes from knowing that your decisions are going to be looked at by external parties and that you have to justify them can have the impact of making those decisions better.”
The case involves two inmates, Frank Dorsey and Ghassan Salah, who have been incarcerated for decades for unrelated crimes. Both were serving their sentences in medium-security federal prisons.
Each inmate’s case management team recommended that they be transferred to a minimum-security prison. However, senior correctional officials rejected those recommendations. Dorsey and Salah filed habeas corpus applications to challenge the decisions, arguing the correctional officials’ refusal to permit the transfer was an unlawful restriction of their liberty.
The judge dismissed both applications, ruling that habeas corpus could not be used to review the correctional officials’ decision. The Ontario Court of Appeal affirmed the judge’s decision, and the inmates appealed to the SCC. While their applications were pending before the courts, Dorsey and, later, Salah were reclassified by correctional officers and transferred to minimum security prisons.
However, the potential implications of the high court’s decision will stretch beyond the two inmates’ specific circumstances. Moreau wrote that Dorsey and Salah’s appeal tasked the high court with deciding “a narrow question: whether inmates who are denied a lower security classification may access the writ of habeas corpus.”
According to Moreau, the answer is yes. For a habeas corpus application to succeed, applicants need to demonstrate two things: a deprivation of liberty and that the deprivation is unlawful.
A 1986 high court decision, Dumas v. Leclerc Institute, outlines three ways inmates can be deprived of liberty in correctional facilities: through being imprisoned in the first place, a substantial change in the conditions of their imprisonment that amounts to a further deprivation of liberty, or a continuation of the deprivation of liberty.
Moreau stated that the appeal pertains to the last scenario. In her view, she wrote, “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.”
That does not mean that inmates in this scenario will necessarily succeed in securing habeas corpus, however, since they still need to prove that the deprivation of their liberty was unlawful, either because the decision to deny them a lower security classification was procedurally unfair, unreasonable, beyond the decision maker’s jurisdiction, or noncompliant with the Canadian Charter of Rights and Freedoms.
“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,” Moreau wrote. The justice added that she did not believe “permitting access to habeas corpus in these circumstances will open the floodgates” to meritless habeas corpus applications.
“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,” Moreau said. “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… focused on ensuring meaningful access to justice to protect inmates’ liberty rights.”
In their dissent, Côté and Rowe, who are joined by Justice Mahmud Jamal, wrote that they would have dismissed the appeal, arguing that habeas corpus was not available to Dorsey and Salah because they never secured approval to be reclassified and transferred to a lower security facility, and therefore had no legal entitlement to reclassification. This stands in contrast to the scenario in Dumas, where an inmate sought habeas corpus because he was still in detention despite being granted parole.
The dissent also disagreed with the majority’s characterization of the appeal as “narrow.”
“The majority’s characterization of the question on appeal as ‘narrow’ obscures that the consequences of its reasons will be wide‑ranging,” the dissent read.
“Not only will inmates be able to invoke the writ to challenge denials of reclassification and transfer requests, but the decision opens the door to the writ’s use in challenging a wider range of decisions concerning the conditions of their detention,” the dissent continued. “This risks an ensuing surge of habeas corpus applications before the court, limiting their capacity to provide relief to genuine deprivations of liberty.”
In a statement on Friday, a spokesperson for the Correctional Service of Canada said, “The safety and security of our institutions and the public are paramount when making decisions about inmate classification. As such, the Correctional Service of Canada regularly assesses the risks presented by all offenders to ensure that they are placed at the appropriate security level.”
Noting that the CSC currently has “a rigorous case management process” in place, the spokesperson said the agency is reviewing the high court’s decision and has no further comment.
Orkin, the lawyer for Dorsey and Salah, says, “This is a highly regulated area, and there’s no suggestion in any of our arguments that there will be unrestrained release of people to lower security classifications.
“Rather, it is ensuring that those who restrain that liberty – the prison authorities – do so always with justification and that there are rapid remedies available to people whose liberty is being impinged to challenge and to ensure that that is not happening without justification.”
