The importance of the writ of habeas corpus cannot be overstated; predating the magna carta itself, it has been described by Adam Smith as the “great security against suppression," by William Blackstone as the “great and efficacious writ in all manner of illegal confinement," and by many more as the “Great Writ of Liberty." Habeas corpus requires a public authority detaining a person to bring them before a court to justify the legality of their detention; if the detention is found to be unlawful, the court must order their release. Expanding on the law of habeas corpus, the Supreme Court in Dorsey v. Canada (Attorney General), 2025 SCC 38 (“Dorsey”), found that a decision to deny an inmate a lower security classification can trigger the inmate’s habeas corpus rights.
A brief history of habeas corpus
Entrenched in section 10(c) of the Charter, habeas corpus is used to review the justification for a person’s imprisonment. As such, its protection extends to ensure that our rights to liberty under section 7 and our rights to not be arbitrarily detained under section 9 are upheld.
For many years, habeas corpus was considered unavailable to inmates, since inmates were seen as having no remaining liberty interests once lawfully imprisoned. However, this understanding changed in the mid-1980s, when the Supreme Court of Canada recognized that inmates still have “residual liberty”. However, while the courts recognized that habeas corpus was available to challenge unlawful deprivations of inmates’ residual liberty, it was generally limited to situations where the conditions of confinement changed in some negative way—such as being placed in a more restrictive form of detention. That said, an unresolved question remained: could inmates invoke habeas corpus where they were denied a less restrictive form of detention, such as being denied a lower security classification?
The courts below found that inmates could not invoke habeas corpus where they were denied a lower security classification
Under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), inmates are classified to maximum, medium, or minimum-security levels, with placement intended to be in the least restrictive environment appropriate to their case. In Dorsey, two federal inmates serving sentences in medium-security prisons applied for transfer to minimum-security facilities. Their case management teams recommended the transfers, but senior correctional officials rejected those recommendations.
Both inmates applied for habeas corpus under the Habeas Corpus Act, R.S.O. 1990, c. H1. They alleged that the denial to lower their security classification unlawfully kept them in more restrictive conditions. The Ontario Superior Court of Justice dismissed the applications and held that the denial of reclassification does not amount to a deprivation of their residual liberty, since there was no change in the status quo. A divided Court of Appeal agreed.
The Supreme Court found that inmates can invoke habeas corpus where they are denied a lower security classification
The Supreme Court overturned the Court of Appeal for Ontario and found that the decision to deny an inmate a lower security classification is reviewable by way of habeas corpus, because it has the qualitative effect of restricting liberty. Justice Moreau, writing for the majority, held that security classifications and placements have a profound impact on an inmate’s experience and, in many cases, the length of incarceration. If an inmate is wrongfully denied reclassification and held in a higher-security facility than recommended, that deprivation of liberty is equivalent to an unlawful transfer to a more restrictive environment.
Justice Moreau noted that whether a security reclassification constitutes a deprivation of liberty ultimately depends on the context: the key question is whether the decision imposes actual physical constraints or restrictions that are more severe than those in a less restrictive setting. Thus, not every change or denial will qualify. If a security reclassification results in only a trivial or insignificant limitation on an inmate’s rights, it does not amount to a deprivation of liberty for habeas corpus purposes.
Further, the availability of habeas corpus is not constrained by alternative avenues of redress. For example, neither the CCRA grievance process nor the availability of judicial review in the Federal Court block access to habeas corpus, and concerns about overlapping forums should not limit the writ’s development. Instead, there are only two circumstances where a provincial superior court judge may decline to hear a habeas corpus application on its merits:
1. If the challenge is to the legality of a detainee’s conviction or sentence (which should proceed through criminal appeals); or
2. If a statutory review scheme exists that is as comprehensive and effective as habeas corpus.
The dissent would have allowed the appeal
Justices Côté and Rowe, writing for the dissent, disagreed with the use of habeas corpus as a substitute for judicial review in the correctional system. The dissent opined that allowing inmates to use habeas corpus to contest reclassification denials risks transforming the writ into a broad tool for reviewing administrative decisions, rather than a focused remedy for genuine deprivations of liberty. This approach, they warned, undermines the coherence of administrative law by permitting superior courts to bypass established judicial review procedures—such as remitting matters for reconsideration by correctional authorities—and instead grant direct release through habeas corpus.
Key takeaways
- The Supreme Court held that the decision to deny an inmate’s reclassification to a lower-security institution is susceptible to habeas corpus. The inmate must show that “their current state of confinement is more restrictive of their liberty than the state of confinement they allegedly ought to be in."
- The Supreme Court laid out the following reasons for why the writ of habeas corpus in provincial superior courts is the better option for federal inmates than judicial review in Federal Court: (1) a habeas corpus application can be reviewed more rapidly than an application for judicial review; (2) the remedy following a successful judicial review will generally be an order for redetermination, not release; (3) the scope of review in habeas corpus is broader as it reviews the legality of the detention as a whole, rather than one particular administrative decision; (4) judicial review is discretionary and the onus remains on the applicant to prove unlawfulness, whereas the onus shifts at the third stage of the habeas corpus analysis; and (5) there is greater local access to provincial superior courts.
- Federal inmates now have a more efficient option to challenge decisions that deny their transfer to a lower security prison. However, the dissent argues that placing these matters in provincial superior courts may cause more delay, due to a backlog of cases. Only time will tell whether access to the provincial courts will speed up these challenges.
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