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In Dorsey v. Canada (Attorney General),1 the Supreme Court of Canada considered whether inmates in the federal prison system can use the writ of habeas corpus to challenge Correctional Service Canada's ("CSC") refusal to reclassify them from medium- to minimum-security institutions. In a 6-3 judgment, a majority of the Court held that habeas corpus is available to review such refusals where they result in an unlawful and continued deprivation of certain freedoms in their daily lives. Although the appeal was moot and the Court therefore did not order the transfers, the majority still addressed the issue given its public importance.2 The dissenting Justices warned that the majority's approach risks transforming habeas corpus into a mechanism for routine oversight of CSC decisions.
Background
The appellants were both placed in medium-security institutions. Both sought reclassification, and their requests were supported by case management teams and institutional staff. CSC denied their requests. Both inmates applied for habeas corpus with certiorari in aid, alleging that the CSC's refusal unlawfully kept them in more restrictive conditions than they were entitled to occupy. The lower courts dismissed the applications and held that the denial of reclassification does not constitute a deprivation of liberty as recognized in Dumas v. Leclerc Institute.3 At the Court of Appeal, a 2-1 majority upheld that view.
A majority of the Supreme Court disagreed.
Majority: Reclassification as a Deprivation of Liberty
Writing for the majority, Moreau J. reaffirmed that habeas corpus remains a flexible and purposive safeguard against unlawful detention. Justice Moreau stressed that inmates are able to invoke habeas corpus in order to contest an unjust limitation on their "residual liberty."4 Habeas corpus, which is "enshrined in s. 10(c) of the Charter,"5 provides a prompt and effective legal solution for addressing any unlawful constraints placed on this remaining personal freedom. She also noted that for habeas corpus cases, the applicant is initially responsible for fulfilling two requirements before the onus shifts to the detaining authority:
- Deprivation of Liberty: The applicant must show that the current conditions of confinement are more restrictive than those in which they "ought to lawfully be".6 This first stage is intended to filter out claims where there is no meaningful or qualitative difference between the two states of confinement.7
- Legitimate Ground to Question Legality: Once a deprivation is established, the inmate must raise a credible basis to question the lawfulness of that deprivation (e.g., arbitrariness, procedural fairness, or non-compliance with statutory criteria).
After the first two stages are met, CSC must justify the lawfulness of the restriction.
Notably, Moreau J. concluded that any requirement that the applicant must first prove they were "entitled" to the less restrictive state before being eligible "would preclude an arbitrarily detained applicant from ever having their application heard."8 In other words, she rejected the view that habeas corpus is available only where an inmate has already experienced the less restrictive conditions they seek. What matters is not prior entitlement to a lower classification but whether the denial of reclassification has the effect of unlawfully keeping the inmate in a more restrictive environment.9
Justice Moreau observed that security classification is not an administrative label but rather impacts "the degree of access an inmate has to correctional programs, rehabilitative opportunities, private family visits, work opportunities, and temporary absences, as well as the eventual timing of their release, all of which may well impact their successful reintegration into the community."10 Whether a given reclassification results in a deprivation of liberty will be context-dependent and assessed on a case-by-case basis, and cannot produce merely "an insignificant or trivial limitation on the inmate's rights."11
Finally, Moreau J. emphasized that neither CSC's grievance process nor judicial review displaces habeas corpus, given its timeliness and directness.12 The majority concluded that denying access to habeas corpus would undermine its constitutional purpose, namely to ensure that unlawful restraints on liberty are subject to judicial scrutiny.
In response to the dissenting Justices, Moreau J. maintained that the majority's approach does not risk an "unrestrained expansion" of the writ of habeas corpus.13 The writ must instead remain "flexible and adaptable to contemporary deprivations of liberty."14
Dissent: A Cautious, Incremental Approach
Justices Côté, Rowe, and Jamal disagreed, pointing to the established limits of habeas corpus and warning against expanding its application. In their view, the scope of habeas corpus has never been unlimited, nor should it become a mechanism for challenging "every feature in the correctional system."15 The dissenting Justices maintained that inmates have access to habeas corpus in this circumstance only where they have an existing legal entitlement to the less restrictive state. Without such entitlement, a refusal to reclassify does not constitute a deprivation of liberty.
The dissenting Justices stressed that habeas corpus should remain an extraordinary remedy, not a vehicle for systemic reform or policy disagreements.16 They note that the majority's approach expands the scope of habeas corpus "to tackle the larger issue of over‑classification, especially without delving into the complex roots of that issue."17 Further, the dissent warned that the implications of the majority's reasoning are far from narrow:
- By eliminating the need for an existing entitlement, habeas corpus could now be invoked in a wider range of disputes over security classification. In particular, the majority's reasoning permits judges to "create and bestow on an inmate an entitlement to be released into a lower security prison, where no such entitlement previously existed." 18
- Permitting a simple "arguable issue" to fulfill the second step of the test could potentially pave the way for frequent challenges to CSC decisions.19
In their view, the majority's holding would draw superior courts into playing a "central role in the administration of the correctional system", contrary to Parliament's intent and to principles of administrative law.20 Expanding habeas corpus into a regular oversight mechanism risks both institutional overreach and unnecessary judicialization of the correctional environment. Such a shift will lead "to a surge of habeas corpus applications."21
Takeaway
Dorsey marks a significant development in the availability of habeas corpus for inmates. The majority's purposive approach confirms that decisions denying lower security reclassification can amount to a reviewable deprivation of residual liberty, even absent prior entitlement. The dissent, however, signals deep concerns about systemic impact and judicial overreach. Correctional authorities may see more habeas corpus applications challenging security classifications, while courts will still require applicants to show both loss of liberty and valid reasons to question its lawfulness.
Footnotes
1. 2025 SCC 38 ["Dorsey"].
2. Dorsey, at para. 30.
5. Dorsey, at para. 33.
6. Dorsey, at para. 67.
7. Dorsey, at para. 43.
8. Dorsey, at para. 63.
9. Dorsey, at paras. 62-63.
10. Dorsey, at para. 69.
11. Dorsey, at para. 71.
12. Dorsey, at para. 89.
13. Dorsey, at para. 47.
14. Dorsey, at para. 89.
15. Dorsey, at para. 91.
16. Dorsey, at para. 175.
17. Dorsey, at para. 175.
18. Dorsey, at para. 98.
19. Dorsey, at para. 100.
20. Dorsey, at para. 99.
21. Dorsey, at para. 201.
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