Supreme Court clarifies options for inmates to challenge security reclassifications

In a decision observers say paves the way for illegal detentions to be swiftly and robustly reviewed, the Supreme Court of Canada has found that prisoners can appear before a judge to challenge a refusal to change their security classification. 

The Court said in its 6-3 ruling that prisoners have the option to use habeas corpus to make that challenge, in addition to the current options of a Charter challenge or a judicial review of an administrative decision by the Correctional Service of Canada.

Known as the great writ of liberty, habeas corpus allows an individual to appear before a judge to review an unlawful detention or imprisonment. It dates back to the Magna Carta.

The test of whether the conditions for a habeas corpus hearing are met remains the same as those set out by the Court in Khela in 2014. Inmates must prove a deprivation of liberty and that there is a legitimate ground to question the legality of the deprivation. This can include the endorsement of case management teams, which was the case with the two inmates in the current challenge.

“The existence of alternative procedures does not impact the threshold availability of habeas corpus when a lower security classification is denied to an inmate,” Justice Mary Moreau wrote for the majority. 

“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.”

She concluded that the decision to increase a security classification constitutes a deprivation of liberty, as does the decision to deny a lower security classification; however, in both situations, access to habeas corpus still needs to meet the existing tests.

In the cases at hand, Frank Dorsey, a 64-year-old Black inmate, was designated a dangerous offender. In 2019, despite the recommendation from his case management team, the manager of assessment and intervention (MAI), and the warden, he was denied reclassification from medium security to minimum security. At his next security classification review in 2021, he successfully transferred.

Ghassan Salah, a Jordanian citizen incarcerated since 2004, was serving concurrent life sentences with no eligibility for day parole until 2026. He was also subject to a deportation order because of his citizenship status. In 2019, he requested a security reclassification with the support of his parole officer and the MAI, but the warden denied the request. In May 2024, he was reclassified and transferred to minimum security.

Although both inmates had since been reclassified, the Ontario Superior Court and the Ontario Court of Appeal both denied their challenge.

Moreau noted that marginalized Black and Indigenous inmates are more likely to be assessed at a higher security level than their non-marginalized peers.

“Over-classification disproportionately places Black and Indigenous inmates in higher, more restrictive security facilities with a lesser degree of access to rehabilitative opportunities that promote successful reintegration into the community upon release,” she wrote.

 “Notably, the inability to reach a lower security classification can preclude inmates from qualifying for culturally responsive environments and programming, such as the Healing Lodge.”

Ga Grant, litigation counsel with the BC Civil Liberties Association, which intervened in the case, says the decision is a significant victory for incarcerated people as it paves the way for illegal detentions to be swiftly and robustly reviewed.

“It acknowledges the vital access to habeas corpus, to ensure that a decision that deprives prisoners of their liberty is lawful,” she says. 

“Keeping the writ broad and purposive aligns with foundational Charter rights, including section 7 liberty interests.”

Grant was glad to see the Court recognize that habeas corpus must take into account the lived reality of prisoners and consider the impacts of reclassification decisions and discrimination on Black and Indigenous prisoners. Given the power of the tool, it’s a welcome addition to administrative recourse and Charter challenges.

“There is no other tool that ensures timely and meaningful review,” she says. 

“It allows the court to actually look fresh at the evidence and understand whether the detention as a whole is lawful. No other remedy can really provide that in such a timely manner.”

Jessica Rose, counsel for the Canadian Association of Elizabeth Fry Societies, which also intervened in the case, notes that the impact of this decision on women is particularly notable, even though it did not specifically mention women’s institutions.

They are structured very differently from men’s institutions, operating in clusters with all security levels in the same facility. As a result, even in maximum security, men have more ability to roam within their entire facility.

“For women, the ability to challenge their security classification to potentially cascade down to medium or minimum [security] is so impactful because of how limited their space is that they’re able to inhabit,” Rose says.

University of Ottawa law professor Jamie Chai Yun Liew was counsel for the Canadian Council for Refugees as an intervenor in the case. Speaking on her own behalf, she says this decision recognizes that there is a spectrum of liberty. Even in prison, where freedom is already restricted, there are different levels of restrictions within those institutions.

She adds that while the Court didn’t dwell too much on the intersection between immigration and criminal law as it relates to Sallah, it did recognize the racial bias within the system and the fact that these decisions tend to impact certain people more.

“The Court is really taking up its role to put a check and balance on state agents that have immense power over someone’s liberty,” Liew says. 

“As we know, there are many immigrants and migrants who may be in the prison system, whether they are criminally incarcerated or not. This could have a wide-ranging impact, even for immigrants and migrants who are not facing charges.”

The dissenting judges felt the majority allowed the expansion of habeas corpus to enable superior courts to bypass the usual remedies available, which does an end-run around established administrative law procedures.

Grant says that while judicial economy is important, constitutional rights and ensuring decisions are lawful are even more crucial under the rule of law. A judicial review of an administrative decision is not the same as having a court review fresh evidence and ensure that administrative bodies and tribunals are operating in accordance with the Charter.

“It’s important for the accountability of the system because those internal processes often don’t have the same level of accountability, or the same remedies that the courts can when looking at constitutional rights.”