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| John L. Hill |
On Nov. 21, the Supreme Court of Canada handed down its decision in Dorsey v. Canada (Attorney General), 2025 SCC 38. It ruled that federal inmates may use habeas corpus to challenge decisions refusing to transfer them to lower-security prisons.
The court held that prisoners retain residual liberty, the degree of freedom they have within a correctional institution, and that security classification directly affects that liberty. A denial of a recommended transfer to a less restrictive setting can therefore amount to a deprivation of liberty.
In the cases of Frank Dorsey and Ghassan Salah, both inmates had been recommended for transfer to minimum security, but senior correctional officials rejected those recommendations. Their attempts to challenge these refusals through habeas corpus were dismissed by the Superior Court and the Court of Appeal, which both held that such decisions were not reviewable.
Traditionally, the only remedy would be to grieve the refusal to a transfer to lesser security, a process that could take a year or more before bringing an application for judicial review in the Federal Court.
The Supreme Court’s latest decision upends this practice. Writing for the majority, Justice Mary T. Moreau emphasized that habeas corpus is intended to be a flexible, accessible safeguard against unlawful restraints on liberty. If an inmate can show (1) a deprivation of liberty and (2) a legitimate basis to question the lawfulness of that deprivation, a court must review the decision. Accordingly, the court allowed the appeals and affirmed that improper refusals to reclassify a prisoner to a lower security level may be scrutinized through habeas corpus.
Justice Moreau, writing for the majority, summed up the importance of granting access to “the Great Writ” of liberty in these words: “This Court has recognized that the writ, as both a right and remedy, must remain flexible and purposive in order to respond to unlawful deprivations of liberty. Moreover, the writ must remain available and accessible to those individuals whose liberty has been most restricted living within penitentiary walls. These individuals, already facing significant deprivations of their liberty, should have access to the expedient and effective relief long offered by habeas corpus where the deprivation of liberty becomes unlawful. A qualitative approach must be taken when assessing the meaning of ‘deprivation of liberty,’ which focuses on the actual effect of a particular form of confinement.”
This decision is precedent-setting for several key reasons:
First, it expands the scope of habeas corpus in the prison context. Before this ruling, many courts held that security-classification decisions, including refusals to transfer inmates to lower security, were not reviewable by habeas corpus. Inmates often had to rely on slower, more technical judicial-review processes in the Federal Court. The Supreme Court has now confirmed that habeas corpus can directly review transfer and classification decisions when they affect an inmate’s liberty. This is a significant broadening of the remedy.
Second, it recognizes that security classification is equivalent to a deprivation of liberty. For the first time at the Supreme Court level, the court clearly states that an inmate’s residual liberty is meaningfully reduced by higher security placements. Furthermore, a refusal to lower a security level can amount to a deprivation of liberty. This elevates the legal importance of correctional security decisions, which were previously treated as administrative matters within the discretion of Correctional Service Canada (CSC).
Third, it strengthens judicial oversight of correctional decision-making. The decision signals that courts must step in when inmates raise legitimate concerns about unlawful restrictions on their liberty. It pushes back against a long-standing trend of judicial deference to CSC’s internal expertise on classification and transfer decisions.
This increases accountability for senior correctional managers and CSC’s reclassification practices, which have been frequently criticized for inconsistency or risk aversion.
The Dorsey decision confirms that habeas corpus remains a broad, accessible remedy. Justice Moreau emphasized that habeas corpus is intended to be simple and robust, not narrow or technical. The court reaffirmed that prisoners need not resort to complex administrative law proceedings when their liberty is at stake. This ensures inmates can challenge unlawful restrictions more quickly and effectively.
It is expected that this decision may affect a wide range of future prison cases because security classification underpins many decisions that prison administrators are tasked with making, such as access to programs, movement within the institution, eligibility for work releases and placement in structured intervention units or segregation-like conditions.
This decision could open the door to many more habeas corpus applications involving improper risk assessments, discriminatory or arbitrary classification decisions and failure to follow case-management recommendations.
The decision is precedent-setting because it fundamentally changes how courts treat internal prison decisions, recognizing them as judicially reviewable deprivations of liberty and significantly expanding inmates’ access to habeas corpus.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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