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In Dorsey v Canada (Attorney General), 2025 SCC 38 [Dorsey], the Supreme Court of Canada (“SCC”) marks not only an important victory for inmates in federal correctional facilities but also a step forward in the application of access to justice arguments in administrative law. As the decision underscores, Dorsey will play an important role in shaping both habeas corpus case law and assessing the degree of access to justice in complex administrative regimes.
Facts
The Statutory Scheme
Correctional Service Canada (“CSC”) assigns federal inmates to maximum, medium, or minimum-security facilities. CSC must take reasonable steps to ensure inmates are held in the least restrictive environment in the circumstances, considering several factors: the seriousness of the offence; institutional behaviour; and potential for violent behaviour (Dorsey, para 10).
The threshold for medium-security classification under federal law is “a low to moderate probability of escape and a moderate risk to the safety of the public”, and that the inmate requires a “moderate degree of supervision and control” (Dorsey, para 11). The threshold for minimum-security classification is for inmates with “a low probability of escape and a low risk to the safety of the public” (Dorsey, para 11). These inmates require only “a low degree of supervision and control” (Dorsey, para 11).
Inmates held in medium- or maximum-security facilities are entitled to a review of their security classification at least every two years (Dorsey, para 14). The facility’s institutional head often decides that review. In situations involving dangerous offenders, the institutional head’s decision must be supported by the Regional Deputy Commissioner (“RDC”) and approved by the Assistant Commissioner, Correctional Operations and Programs (Dorsey, para 13). An inmate may grieve this approval decision, which can ultimately be judicially reviewed (Dorsey, para 15).
The Parties
Frank Dorsey (“Mr. Dorsey”) is a federal prisoner. Mr. Dorsey, who has been incarcerated since 1999, was designated as a dangerous offender (Dorsey, para 16). In 2019, he requested a security reclassification from a medium-security institution to a minimum-security institution. Although his case management team approved the request, the RDC denied it because Mr. Dorsey posed a moderate public safety risk (Dorsey, para 17). Eventually, upon a 2021 review, Mr. Dorsey was transferred to minimum security.
Ghassan Salah (“Mr. Salah”) is similarly a federal inmate who sought to be transferred from a medium-security institution to a minimum-security institution. That request was initially supported, then denied, and finally approved in May 2024, when Mr. Salah was transferred to a minimum-security facility.
Because Mr. Dorsey and Mr. Salah were transferred to minimum-security facilities at the time of the appeal, the SCC did not order the transfers; however, it still considered the issue given its public importance.
The Dispute
Before Mr. Dorsey and Mr. Salah were transferred to minimum-security facilities, they both challenged the decisions not to reclassify them from medium- to minimum-security institutions. Rather than pursuing judicial review, they filed applications in 2019 for habeas corpus ad subjiciendum with certiorari in aid under Ontario’s Habeas Corpus Act, RSO 1990, c. H.1 (Dorsey, para 21). The legal issue that followed was whether habeas corpus was available to challenge a refusal to reclassify a federal inmate to a lower-security facility.
Judicial History
The Ontario Superior Court of Justice
Drawing on established case law, the application judge outlined that access to the writ of habeas corpus requires not only a deprivation of liberty but also a legitimate ground to question its legality. A deprivation of liberty includes a continuation of the deprivation of liberty, as established in Dumas v Leclerc Institute, [1986] 2 SCR 459 [Dumas]. However, the application judge found that this Dumas category is available only in cases of “extended detentions or detentions of uncertain behaviour” or “in criminal cases where the sentence imposed has become unlawful” (Dorsey, para 24).
The applicants appealed.
The Court of Appeal for Ontario
The majority at the Court of Appeal for Ontario held that this Dumas category is available only when an inmate becomes entitled to greater liberty than that afforded by their continued detention (Dorsey, para 25). In the majority’s view, the appellants were required to obtain the minimum-security status and subsequently be denied a transfer to a minimum-security facility to claim an unlawful continuation of a deprivation of liberty.
In dissent, Simmons JA concluded that, when an inmate is unlawfully denied reclassification, a case for habeas corpus is established because that unlawful denial amounts to a continuation of the inmate’s deprivation of liberty. In these circumstances, the inmate would need to demonstrate that there were not only legitimate grounds for questioning the denial’s lawfulness but also that the reclassification would otherwise have been made (Dorsey, para 28).
The applicants appealed.
Issue
The single issue on appeal at the SCC was: Is habeas corpus available to challenge the CSC’s refusal to reclassify an inmate to a lower security level? (Dorsey, para 29).
The SCC’s Decision
The Framework
The majority outlined the two criteria for establishing a successful habeas corpus application: (1) a deprivation of liberty that is (2) unlawful (Dorsey, para 36). The majority then held that a habeas corpus application proceeds in three stages. First, the applicant must demonstrate that he or she has been deprived of liberty (Dorsey, para 38). Second, the applicant must raise a legitimate ground to question the legality of the deprivation (Dorsey, para 38). Third, the onus shifts to the detaining authority to establish the lawfulness of the deprivation of liberty (Dorsey, para 38).
Note, however, that not all steps of the framework will be followed in the event a claim does not satisfy the first step or, as in this case, the detention is a moot point.
Is there a deprivation of liberty?
The majority found that a continuation of the deprivation of liberty can be challenged by way of habeas corpus only if the continuation of an initially valid deprivation of liberty becomes unlawful (Dorsey, para 40). Unlawfulness is established when an initial detention was valid, but the extended length or uncertainty of the detention is called into question (Dorsey, para 40). To satisfy step one, the applicant must prove that his or her current state of confinement is more restrictive of their liberty than the state of confinement they allegedly ought to be in (Dorsey, para 43).
Applying this framework to the facts, the majority concluded that an inmate would establish a deprivation of liberty if it were demonstrated that the continuing state of incarceration is more restrictive of their liberty than the allegedly lawful state they seek to be released to. As such, a security reclassification decision detaining an inmate in a more restrictive facility than the one in which the inmate ought to be detained would amount to an unlawful detention. In reaching this conclusion, the majority held that an applicant need not prove an “entitlement” to the less restrictive state to establish a deprivation of liberty (Dorsey, para 63).
Is there a legitimate ground for questioning the lawfulness of the deprivation of liberty?
At the second step of the analysis, the majority outlined that, for a detention to be lawful, the decision maker must: (1) have jurisdictional authority to order the detention; (2) ensure the decision-making process is procedurally fair; and (3) make a decision that is both reasonable and Charter-compliant (Dorsey, para 45). In other words, the applicant needs to identify an “arguable case” and present “a sound legal basis for their claim” (Dorsey, para 74). This step enables courts to decline to hear cases that do not meet the legal basis threshold.
By extension, the majority found that precluding a court from assessing the lawfulness of a more restrictive type of continued confinement runs contrary to the purposive approach adopted under the habeas corpus framework (Dorsey, para 79). However, because the appellants had already been transferred to minimum-security facilities, the application of habeas corpus to the legality of their respective detentions was moot (Dorsey, para 79).
Analysis
The Administrative Law Perspective
This case underscores an important tension in administrative law: the relationship between the judiciary and the executive in the context of correctional facilities. On the one hand, the majority’s reasons provide clear reasons why a habeas corpus application, rather than judicial review, is preferable in these circumstances. On the other hand, the dissent points to Parliament’s intent to create an administrative regime governing this subject area over the provincial superior courts.
In my view, while both perspectives offer compelling analyses of the issue, the dissent’s reasons fall short in that they do not grapple meaningfully with an internal contradiction. Specifically, the dissent relies on the administrative state and judicial review as preferable means for resolving these types of disputes. Yet, this reliance runs contrary to a primary aim of administrative law: access to justice.
In recent years, the SCC has held that access to justice is a driving principle of administrative law. Indeed, in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the majority held that a legislature may choose to delegate decision-making power to an administrative decision-maker due to its proximity to stakeholders, its ability to render decisions promptly, its efficiency, and streamlined proceedings, to promote access to justice (Vavilov, para 29).
In practice, resolving these correctional disputes through administrative law rather than the provincial superior court’s habeas corpus jurisdiction inhibits access to justice. Therefore, by emphasizing Parliament’s intent to create an administrative state governing this subject area, the dissent welcomes a legal analysis that diverges from the stated goals of administrative law.
Access to Justice
The legal stakes in federal correctional facility disputes involving inmates are exceptionally high. Determining whether someone will live in a medium- or minimum-security facility affects the facilitation of family facetime, rehabilitation, societal reintegration, and eventual release timelines (Dorsey, para 69). It follows that access to justice for inmates is notably important in these situations. As illustrated below, the majority made this point clear near the end of its decision.
Moreau J concluded that the SCC has historically held that habeas corpus is more advantageous than judicial review through the Federal Court system (Dorsey, para 83). In previous decisions, the SCC has emphasized several factors supporting this conclusion. For example, a habeas corpus application is reviewed often within a week of its filing, whereas judicial reviews can only be commenced 160 days after the impugned decision is executed (Dorsey, para 83). Moreover, there is greater local access to provincial superior courts, and the remedy available on judicial review in these cases is almost always an order for redetermination rather than release (Dorsey, para 83).
It is also noteworthy that the majority held, “…marginalized Black and Indigenous inmates are more likely to be over-classified, meaning they are more likely to be assessed at a higher security level than their non-marginalized peers” (Dorsey, para 72). Not only is this disproportionate over-classification problematic in and of itself, but it has a ripple effect by ultimately moving more Black and Indigenous inmates to restrictive security facilities with limited access to rehabilitative and reintegrative opportunities. Thus, limiting access to the writ of habeas corpus in these circumstances, in favour of judicial review, would consequently work against efforts to provide access to rehabilitative spaces like a Healing Lodge or to reintegrate into society through minimum-security facilities (Dorsey, para 72).
Accordingly, when the dissent observes that the majority is sidestepping the administrative law framework adopted in Vavilov, the dissent also appears to sidestep the important role of access to justice in that framework (Dorsey, para 159). Of course, deference to administrative decision makers plays a role in the Vavilov framework, but so does an appreciation for the underlying reasons for that deference—including access to justice (Vavilov, para 29). The dissent’s reply to this point is simply that inmates have access to the internal appeal mechanism and, ultimately, to judicial review. But, this point begs the question: What is the quality of that access to justice? As the majority makes clear, the quality is minimal, especially for Black and Indigenous inmates.