Appeal Watch: Dorsey v Canada: When does a Security Reclassification Denial Deprive Prisoners of Liberty?

The Supreme Court has recognized that habeas corpus is “the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful” (Mission Institution v Khela, 2014 SCC 24 at para 29 [Khela]). In Dorsey v Canada (Attorney General), the Court will decide [41132] whether that tool is available to an inmate who has been denied a reclassification and transfer request.

Facts

The appellants – Frank Dorsey and Ghassan Salah – were both incarcerated in medium security facilities. Both appellants received recommendations from their case management teams, and their Managers of Assessment and Intervention (“MAI”) that they met the criteria for reclassification to a minimum security facility. Mr. Dorsey, a designated dangerous offender, required approval from the Regional Deputy Commission (“RDC”) for his requested transfer. The RDC denied Mr. Dorsey’s request. After Mr. Salah’s initial request, he was assigned a new MAI who assessed him a moderate escape risk on the basis that Mr. Salah was subject to a deportation order. Mr. Salah’s warden accordingly denied his reclassification and transfer request (Dorsey v Canada (Attorney General), 2023 ONCA 843, paras 1-3 [ONCA]).

Both appellants commenced applications under the Habeas Corpus Act, RSO 1990, c H1 for a writ of habeas corpus ad subjiciendum with certiorari in aid. On an application for habeas corpus, a claimant must 1) establish a deprivation of liberty, and 2) raise a ground for questioning the legality of that deprivation (ONCA, paras 4-6).

Issue

With the consent of the parties, the application judge joined the appellants’ applications for the purpose of determining the threshold question:

• Whether the denial of the appellants’ reclassification and transfer request constitutes a deprivation of liberty (ONCA, paras 6-7).

The application judge determined that habeas was not available because the reclassification denials did not constitute a deprivation of liberty (ONCA, paras 4-6).

Legislative and Regulatory Background

Security Classification Framework

The Correctional Service of Canada (“CSC”) is responsible for the incarceration of inmates serving sentences two years or more. This federal agency operates under the Corrections and Conditional Release Act, SC 1992, c20 (“CCRA”). Pursuant to s30 of the CCRA, the CSC must assign every inmate a security classification in accordance with the factors set out in the Corrections and Conditional Release Regulations, SOR/92-620 (“Regulations”).

“Least Restrictive Environment”

Section 28 of the CCRA requires the CSC to take all reasonable steps to ensure that every inmate receives “the least restrictive classification and is placed in the least restrictive setting appropriate” to the inmate’s circumstances based on several enumerated factors (ONCA, para 13). The language of section 28 makes clear that the determination of security classification will involve discretion; however, the mandatory language in the provision (“the Service shall take all reasonable steps…”) also indicates that the inmate is entitled to be placed in the least restrictive environment appropriate according to the decision-maker’s classification.

What, then, is the impact on the inmate’s entitlement should the decision-maker act arbitrarily, or unlawfully? If the inmate would have been reclassified but for a decision-maker’s arbitrary act, are they deprived of their liberty because the CSC has not taken all reasonable steps to ensure the inmate is placed in the “least restrictive environment”? These are the questions the Court will have to decide when determining the availability of habeas corpus to review reclassification denials.

Under the Regulations, an inmate can grieve a reclassification decision and if they are not satisfied with the result of that process, they can appeal to the Commissioner of Corrections (or to a senior CSC staff member on the Commissioner’s behalf) (ss75-77, 80(1), 80.1). In addition, an inmate can seek judicial review in the Federal Court once they have exhausted the inmate grievance process. Neither appellant pursued judicial review in this case (ONCA, paras 13-14).

What constitutes a deprivation of liberty in a carceral context?  

In the carceral context, deprivation of liberty refers to whether an inmate has been deprived of their residual liberty, i.e. the liberty that remains to an inmate notwithstanding the restraints imposed by incarceration. In Dumas v. Leclerc Institution, Lamer J. (as he then was) described three different deprivations of liberty that could arise in a carceral context: 1) the initial deprivation, 2) a substantial change in conditions amounting to a further deprivation of liberty, and 3) a continuation of the deprivation ([1986] 2 SCR 459, para 11 [Dumas]).

Later Supreme Court habeas decisions have added content to the meaning of “continuation of the deprivation” under the third Dumas category. The Court held in R. v. Gamble, [1988] 2 SCR 595, for example, that habeas was available under the third Dumas category to review a sentence that has become unlawful on account of changes to the law of parole ineligibility (644 [Gamble]), while the recent case of Canada (Public Safety and Emergency Preparedness) v Chhina, explained that the “third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration” (2019 SCC 29, para 23 [Chhina]) in the immigration context.

The appellants submitted that the denial of the reclassification and transfer request amounts to a deprivation under the third Dumas category: the continued deprivation of liberty resulting from the incarceration in a medium-security facility became unlawful and therefore triggering the availability of habeas (ONCA, para 31). The respondent, by contrast, argued that the application judge did not err in determining that habeas corpus was not an available remedy: habeas is not available to challenge all conditions of confinement, only those which restrict an inmate’s residual liberty (ONCA, para 35).

Decision

Majority

The majority, written by George J.A., affirmed the application judge’s decision that the denial of the appellants’ reclassification resulted in no deprivation of residual liberty and thus habeas corpus is not available. George J.A. bases this conclusion on a narrow interpretation of section 28, finding that “there is no standalone entitlement to a minimum security classification simply because the CCRA directs CSC to take all reasonable steps to ensure inmates are placed in the ‘least restrictive environment’” (ONCA, para 40). In other words, the recommendation that an inmate be reclassified to a lower security institution does not crystallize an entitlement under section 28.

Given this conclusion, the majority easily determines that the third Dumas category is not engaged: since the inmate has not “acquire[d] the status” of a minimum security classification, their continuing placement in a medium security institution does not constitute a deprivation of residual liberty (ONCA, para 43). In the majority’s view, recent cases like Khela and Chhina have not “recalibrated” Dumas in any way that supports the appellants’ position (ONCA, para 47). Not only are these cases distinguishable, they stand for the basic proposition that a deprivation of residual liberty under the third Dumas category will only arise when the conditions of the inmate’s continued detention “have somehow changed”: “Where an inmate is simply kept at the same security level, the requisite change in conditions will only occur if the inmate becomes entitled to greater liberty than that afforded by their current confinement” (ONCA at para 48). Mr. Dorsey and Mr. Salah’s initial recommendation of a reclassification, in the majority’s view, changed nothing.   

The majority is particularly concerned about the so-called floodgates argument. In their view, to hold that the refusal to reclassify and transfer an inmate constituted a deprivation of liberty would “effectively make habeas corpus available to every federal inmate in respect of every security classification decision” (ONCA, para 43). According to the majority, the appellants’ position attempts to make habeas corpus available as a collateral remedy to challenge “every security classification decision.” Habeas corpus, in the majority’s view, is not an appropriate remedy for the perceived shortcomings of the CSC grievance process (ONCA, para 43).

Dissent

Simmons J.A., dissenting, accepts the appellants’ position. She does not read Dumas restrictively, and she considers its implications contextually. While the Court in Dumas linked unlawfulness to acquiring a particular status, according to Simmons, they only did so because of the parole context. Therefore, she does not understand Dumas to establish a general rule concerning the point at which an initially valid deprivation becomes unlawful (ONCA, para 106). Instead, the “critical issue in relation to the reviewability by habeas corpus of an initially valid continuing deprivation of liberty is whether the continuing deprivation has become unlawful” (ONCA, para 106).

Drawing on Cardinal v Director of Kent Institution, [1985]2 S.C.R. 643 where an initially valid deprivation crystallises into an unlawful deprivation at the point of an unlawful decision (in Mr. Cardinal’s case, the decision to maintain administrative segregation contrary to the recommendation of the Segregation Review Board), Simmons finds that:

With respect to security classification decisions in the carceral context, I see no reason why a decision to maintain an initially valid security classification should not be considered a deprivation of liberty reviewable by habeas corpus where the reasons for the decision show a legitimate ground for concluding that the only basis for withholding a lower security classification may be arbitrary or unreasonable and therefore unlawful. (ONCA, para 112)

For Simmons J.A., an inmate is not entitled to a lower security classification; however, if the refusal to grant a reclassification and transfer request is arbitrary or unreasonable, then it is unlawful. If that decision is unlawful, then it crystallises a continuing deprivation of liberty under the third Dumas category at the point of which the decision is made making habeas corpus an available remedy (ONCA, para 114).

Analysis

The CCRA establishes an inmate grievance process for precisely the sort of problems that arose in Mr. Dorsey and Mr. Salah’s cases. If an inmate does not agree with a reclassification decision, they may grieve that decision. If that inmate is not satisfied with the result in the grievance process, they can appeal, and, as always, they can subsequently seek judicial review. What is the problem, then? With all this available process, why is habeas necessary?

The problem is significant, and it is only one example of a much broader phenomenon within our federal and provincial institutions – the continued neglect of inmate liberties with little to no effective remedies or processes. An inmate’s security classification engages perhaps their most fundamental residual liberty, and it will have a crucial impact not only on the quality of their carceral experience, but also on any opportunity for conditional release.

In May v Ferndale Institution, the Court held that CSC’s grievance process was not an adequate alternative to habeas corpus because it lacked impartiality (2005 SCC 82, paras 63-64). This process is neither prompt nor neutral in its impacts. As several interveners argued, the inadequacy of the grievance process has a “disproportionate impact on those who are over-represented in the criminal justice system” (ONCA, para 33). Without a timely, effective, and impartial process to review reclassification decisions, inmates’ residual liberty interests risk becoming meaningless.

The Supreme Court affirmed in Gamble that habeas corpus should be approached purposively and expansively (Gamble, para 66). The ONCA majority’s narrow approach to the impact of potentially arbitrary and unreasonable decisions on inmate residual liberty in the face of an untimely and largely ineffective grievance process does not adequately attend to the underlying purpose behind habeas corpus – protecting a citizen’s fundamental right to liberty. The Supreme Court should reject the majority’s formalistic and technical interpretation that severs s7 liberty from the context of habeas. Instead, the Court should interpret deprivation of liberty for the purpose of habeas relief consistently with Charter protected liberty interests under s7. Residual liberty must be carefully safeguarded in the carceral context where the scope of liberty is already at a premium.

This article was edited by Alexandre Cachon.