Mr. Dorsey and Mr. Salah were both individuals in federal custody who were denied security reclassification and transfer to lower a security penitentiary. They sought to review those decisions by way of habeas corpus. Habeas corpus is known as the “great writ of liberty” – a powerful mechanism to challenge the legality of detention and ensure court review of detention. It is essential to s. 7 and s. 9 of the Charter and independently protected by s. 10(c) of the Charter.
Mr. Dorsey and Mr. Salah’s habeas corpus application was dismissed, as was their appeal. The lower court and majority of the Ontario Court of Appeal found that that reclassification and transfer refusals are not subject to habeas corpus review because they do not constitute a “deprivation of residual liberty”. The dissent in the Court of Appeal concluded that a transfer denial decision crystallizes a deprivation of residual liberty, and so habeas corpus review available.
The BCCLA intervened to argue that all illegal detentions must be swiftly and robustly reviewed to ensure the rule of law is upheld inside prisons. Excluding denials of security reclassification from habeas corpus review is out of sync with this Court’s modern jurisprudence, which has urged to not unduly restrict the availability of the writ and incrementally expanded the availability of the writ to prisoners facing deprivations of their residual liberty in different contexts. This justifies revisiting “deprivation of residual liberty” to give it an interpretation that is broad and alive to realities prisoners face.
Security classifications are a hugely impactful decision on the liberty of prisoners and their experience while in custody, such as access to programing, which is generally only available at lower and medium security levels. Completion of programming also increases likelihood that security classification will be then lowered, parole will be granted, and transition from higher to lower security classifications also supports successful re-entry and reintegration. Systemic racism plays a role in classification decision making. The evidence shows that Indigenous and racialized people are not only overincarcerated but over-securitized within carceral institutions. Discriminatory practices create systemic barriers to cascading to greater liberty. Yet currently, a decision to deny a prisoner transfer to a lower decision security classification and penitentiary can only be challenged through the internal grievance process and then that decision in the Federal Court by way of judicial review. This process is deeply flawed, inadequate, and subject to long delays.
