The Rise and Rise of Habeas Corpus: Dorsey v. Canada (Attorney General), 2025 SCC 38

The rise and rise of habeas corpus continues, with the Supreme Court of Canada further extending the scope of the Great Writ in Dorsey v. Canada (Attorney General), 2025 SCC 38. This judgment deserves careful analysis, but can only be understood in its historical context. One point that should be made at the outset is that decisions made in prisons are, in principle, just like any other administrative decision, made under statutory authority and therefore subject to compliance with the general principles of administrative law. The difference, in the carceral context, is the availability of a specific remedy additional to conventional administrative law remedies (such as quashing orders and mandatory orders), namely habeas corpus.

For a long time, habeas corpus was unavailable for inmates, on the theory that once they had been deprived of their liberty interests, there was nothing left for habeas to grasp onto. As no less an authority than Lord Denman CJ observed in Ex parte Rogers (1843), 7 Jur. 992:

The object of the writ of habeas corpus is, generally, to restore a person to his liberty, not to pronounce a judgment as to the room or part of a prison in which a prisoner ought to be confined.

Professor Groves expressed a similar view (albeit writing in an Australian context), describing the writ as:

…directed solely to the lawfulness of detention in a substantive sense. If the detention is unlawful the writ must issue. If the detention is lawful any illegality surrounding other aspects of the conduct of authorities is irrelevant. The writ, therefore, cannot provide relief where proper authority to imprison or detain the person exists but the person has been subject to some form of unlawful treatment during incarceration (“The Use of Habeas Corpus to Challenge Prison Conditions” (1996), 19 UNSWLJ 281, at p. 282).

That all changed with a trilogy of Supreme Court of Canada decisions in the mid-1980s. As Le Dain J described matters in R. v. Miller, [1985] 2 SCR 613, “a prisoner is not without some rights or residual liberty” and any “significant deprivation” of that “relative or residual liberty” counts as a deprivation of liberty for the purposes of seeking habeas corpus (at para. 32). An inmate may, as Dickson J had put it in dissent in a previous case, be placed ‘in prison within a prison’ (Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 SCR 602, at p. 622; see also Morin v. Shu Review Committee, [1985] 2 SCR 662). This is the first part of the tripartite analytical framework for habeas corpus: (1) is there a deprivation of liberty? (2) is there a legitimate basis for questioning the lawfulness of the deprivation? (3) is there a justification for detention?

Determining that, as Dickson J insisted, the rule of law could run within penitentiary walls (Martineau, at p. 622) prompts two immediate further questions (which, in turn, prompt a third).

Relative Liberty

First, when will a inmate be placed ‘in a prison within a prison’? Miller and Cardinal dealt with inmates being placed in a special holding unit and in segregation. As such, the deprivation of liberty was obvious. As soon as one takes the view that inmates have residual liberty interests, being placed in a more restrictive form of detention will trigger the right to habeas corpus. But as Le Dain J’s concluding comments in Miller suggested, it will not always be so obvious:

Confinement in a special handling unit, or in administrative segregation … is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought. For the reasons indicated above, I can see no sound reason in principle, having to do with the nature and role of habeas corpus, why habeas corpus should not be available for that purpose. I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution (at para. 35).

Where, though, lies the line between a deprivation of liberty and “the mere loss of certain privileges”?

The analytical framework for answering this question was provided in Dumas v. Leclerc Institute, [1986] 2 SCR 459: “In the context of correctional law, there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty” (at para. 11).

D had been granted parole by the National Parole Board, subject to satisfying some minor conditions. Before he could do so, he was accused of disciplinary offences and, ultimately, the Board reviewed and annulled its earlier decision. D argued that his continued detention was unlawful. The Supreme Court disagreed. There was no challenge to (1) the initial deprivation of liberty and nor had there been (2) any substantial change of circumstances. And there was no (3) continuation of a deprivation of liberty because D was not yet entitled to release at the time the Board annulled its earlier decision:

The continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful. In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. An inmate acquires that status as of the moment the decision to grant him parole takes effect. Thus, if parole is granted effective immediately, he becomes a parolee when the decision is rendered. If, for some reason, the restriction to his liberty continues, he may then have access to habeas corpus. If parole is granted effective at some later date, then the inmate acquires the status of parolee at that date and not at the date of the decision. Similarly, where a decision is made to grant parole but it is subject to the fulfilment of a condition, the inmate only becomes a parolee if and when the condition is fulfilled. If he is not released on parole when the term arrives or the condition is fulfilled, then he may resort to habeas corpus. Finally, if parole is refused, it is obvious that the inmate has not become a parolee and he cannot have recourse to habeas corpus to challenge the decision (at para. 12).

In Dorsey, the applicant had been denied reclassification to a lower-security institution. In holding that this decision was susceptible to habeas corpus, the majority of the Supreme Court (per Moreau J) insisted that the Dumas categories are not rigid or watertight. The focus must always be on whether the inmate can “prove that their current state of confinement is more restrictive of their liberty than the state of confinement they allegedly ought to be in” (at para. 43).

In the third category, the relevant question is relative, as between the position of an inmate in the general prison population and the inmate whose liberty is subject to a greater level of restriction: “An inmate will establish a deprivation of liberty if they demonstrate that their current continuing state of incarceration is more restrictive of their liberty than the allegedly lawful state they seek to be released to” (at para. 60). Accordingly, errors in security classification will generally trigger the availability of habeas corpus: “Federal inmates’ security classifications and placements have a profound impact on their qualitative experience of incarceration and, in many instances, also on its duration” (at para. 68); for example, ” an inmate unlawfully held for an extended period at a higher security facility, having been wrongly denied a reclassification, faces the same deprivation of liberty as an inmate who has been unlawfully transferred to a higher security facility” (at para. 70). That said, “Security reclassification decisions that, in practice, result in an insignificant or trivial limitation on an inmate’s rights would not constitute a deprivation of liberty for the purposes of habeas corpus” (at para. 71). Again, relative liberty is always the touchstone.

And, for Moreau J, it remains the case that the loss of privileges is not the proper subject of a habeas corpus application:

Since the Miller trilogy, courts have held that denial of or inability to access rehabilitative programming does not constitute a deprivation of liberty (Mapara v. Ferndale Institution (Warden), 2012 BCCA 127, 318 B.C.A.C. 139, at paras. 12-15; Lord v. Coulter, 2007 BCSC 1758, 72 Admin. L.R. (4th) 264, at paras. 60-63, aff’d 2009 BCCA 62, 266 B.C.A.C. 122; Rain v. Canada (Parole Board), 2015 ABQB 639, at para. 15). Furthermore, in Ewanchuk v. Canada (Attorney General), 2017 ABQB 237, 354 C.C.C. (3d) 119, the court held that habeas corpus does not apply in situations involving temporary lock downs and other intermittent forms of detention; rude, abusive, or inattentive staff; exposure to dangerous inmates; complaints about food, medical accommodations, and hygiene; complaints that the inmate grievance procedures are ineffective; inadequate mail services and searches of mail; inadequate access or excessively expensive telephone communications; and restrictions that impede legal research, document preparation, and litigation activities (para. 65). Likewise, in Mennes v. Canada (Attorney General), 2008 CanLII 6424, the Ontario Superior Court of Justice held that housing an inmate in a double occupancy room instead of a single occupancy room does not engage a deprivation of liberty (paras. 27-28) (at para. 56).

The dissenting judges in Dorsey disagreed, endorsing the proposition that habeas corpus “is not a means to guarantee a liberty that an incarcerated person has yet to acquire; rather it serves as a remedy against an unlawful restraint on a residual, existing liberty” (at para. 151). It is only when an entitlement to a lower security classification has been established that there can be an interference with liberty. Otherwise, by establishing legitimate grounds for questioning a carceral decision that has an impact on relative liberty, a vast array of carceral decisions would be subject to judicial review by way of habeas corpus:

In relation to inmates, the remedy should continue to be limited to challenge further deprivations of liberty within a prison, notably an inmate’s unlawful transfer to a higher security facility or a more restrictive condition of imprisonment, e.g. administrative segregation. The appellants seek to transform habeas corpus into a generalized alternative to the existing scheme of internal review and judicial review of decisions by administrative decision makers in correctional facilities. That would go well beyond the proper use of habeas corpus (at para. 158).

Grounds for Seeking Habeas Corpus

Second, what are the grounds upon which habeas corpus can be sought? The only one of the Miller trilogy to engage with this issue was Cardinal. There, C had been transferred to a maximum security facility after a hostage-taking incident at his original place of incarceration. At the new facility, he was placed in administrative segregation. Crucially, the Director of the facility declined to follow a recommendation made by the Segregation Review Board that C should be returned to the general population, without giving C the opportunity to comment. This was a breach of procedural fairness:

The issue then is what did procedural fairness require of the Director in exercising his authority, pursuant to s. 40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the Board, if he was satisfied that it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern C.J.S.C. and Anderson J.A. that because of the serious effect of the Director’s decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. With great respect, I do not think it is an answer to the requirement of notice and hearing by the Director, as suggested by Macdonald J.A., that the appellants knew as a result of their appearance before the Segregation Review Board why they had been placed in segregation. They were entitled to know why the Director did not intend to act in accordance with the recommendation of the Board and to have an opportunity before him to state their case for release into the general population of the institution. I do not think the Director was required to make an independent inquiry into the alleged involvement of the appellants in the hostage‑taking incident. He could rely on the information he had received concerning the incident from the warden of Matsqui Institution and the personnel at regional headquarters. At the same time, he had a duty to hear and consider what the appellants had to say concerning their alleged involvement in the incident, as well as anything else that could be relevant to the question whether their release from segregation might introduce an unsettling element into the general inmate population and thus have an adverse effect on the maintenance of good order and discipline in the institution (at para. 21).

In 1985, the organizing principle of judicial review was still ‘jurisdiction’ and it has long been accepted that a breach of procedural fairness is a jurisdictional error. But in the intervening decades we have moved away from jurisdiction (through the pragmatic and functional approach and the standard of review analysis) to the ‘culture of justification’ as the organizing principle of judicial review. Even in the 2000s, the Supreme Court continued to talk in terms of jurisdiction in this particular context. In May v. Ferndale Institution, 2005 SCC 82, [2005] 3 SCR 809, LeBel and Fish JJ explained the grounds for the availability of habeas corpus as follows:

A deprivation of liberty will only be lawful where it is within the jurisdiction of the decision-maker. Absent express provision to the contrary, administrative decisions must be made in accordance with the Charter. Administrative decisions that violate the Charter are null and void for lack of jurisdiction: Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078. Section 7 of the Charter provides that an individual’s liberty cannot be impinged upon except in accordance with the principles of fundamental justice. Administrative decisions must also be made in accordance with the common law duty of procedural fairness and requisite statutory duties. Transfer decisions engaging inmates’ liberty interest must therefore respect those requirements (at para. 77).

There, the inmates had been transferred to a higher-security facility (clearly impinging upon residual liberty) and had been treated procedurally unfairly as the underlying metrics for a scoring matrix had not been disclosed. The inmates also made an argument that they had been treated arbitrarily, but LeBel and Fish JJ saw no basis for intervention on this point. As procedural fairness remained, uncontroversially, jurisdictional in character, there was no need to revisit the Miller trilogy.

However, in Mission Institution v. Khela, 2014 SCC 24, [2014] 1 SCR 502, the Supreme Court had to confront the question of whether reasonableness is an available ground. LeBel J held that it is (albeit in obiter):

…on an application for habeas corpus, the basic question before the court is whether or not the decision was lawful. Thus far, it is clear that a decision will not be lawful if the detention is not lawful, if the decision maker lacks jurisdiction to order the deprivation of liberty (see, for example, R. v. J.P.G. (2000), 2000 CanLII 5673 (ON CA), 130 O.A.C. 343), or if there has been a breach of procedural fairness (see May, Miller and Cardinal). However, given the flexibility and the importance of the writ, as well as the underlying reasons why the jurisdiction of the provincial superior courts is concurrent with that of the Federal Court, it is clear that a review for lawfulness will sometimes require an assessment of the decision’s reasonableness (at para. 52. See also Dorsey at paras. 50, 73 and 77).

Put into the tripartite analytical structure of habeas corpus review — (1) deprivation, (2) basis for unlawfulness, (3) justification of detention — once the applicant can establish a legitimate basis for questioning the lawfulness of a decision affecting relative liberty interests, “the onus shifts to the detaining authority to prove the deprivation was lawful” (Dorsey, at para. 49). Reasonableness is not a perfectly neat fit here, as there is no formal onus shift on reasonableness review: the entirety of the exercise is “holistic” (Dorsey, at para. 50), rather than just the third stage. That said, an applicant does bear an “onus” (Vavilov, at para. 75) to demonstrate that an administrative decision contains errors that are sufficiently serious to warrant judicial intervention (Vavilov, at para. 100). Whether this makes any difference in practice is doubtful; it does highlight, however, the awkwardness of having a bespoke remedial track, marked out by the requirements for habeas corpus, for challenging a certain category of administrative decisions (i.e. those that affect relative liberty). As the dissenters pointed out:

A deprivation may be unlawful due to procedural unfairness, as was the case in Cardinal and Khela, or where the decision maker lacks the jurisdictional authority to order the detention, as was the case in Dumas. The majority even suggests an applicant can establish the decision was unlawful if it lacks an evidentiary foundation or is arbitrary or unreasonable (majority reasons, at para. 45, citing Khela, at para. 67). If all an inmate must do at stage two is to rely on one of these “sound legal bas[es]” and “identify an arguable issue” or “some basis” that the detention is unlawful, a court is unlikely to readily dismiss an application rather than hearing it on its merits (majority reasons, at paras. 46‑47, 74 and 76‑77 (emphasis added)). As a practical matter, the corrections authorities will be required to justify to the court any refusal of a lower security reclassification (at para. 180).

In a nutshell, the availability of habeas corpus evolved along with the principles of administrative law — when these were restricted to jurisdictional errors, habeas corpus too was so restricted; when these expanded to cover substantive unreasonableness, habeas corpus expanded too. Hence the culture of justification reigns in carceral institutions (albeit not always to the extent it ought to: see Professor Mancini).

Superior Court vs Federal Court

But this leads to the third issue, teed up by LeBel J in Khela, at para. 56: “If a court hearing a habeas corpus application cannot review the reasonableness of the underlying decision, then an inmate who has been deprived of his or her liberty as a result of an unreasonable decision does not have a choice of avenues through which to obtain redress but must apply to the Federal Court”. Note that this concern only applies to federal institutions (penitentiaries) and not to provincial institutions (prisons). A penitentiary is a federal board, tribunal or other commission within the meaning of s. 2 of the Federal Courts Act and, thus, its decisions (even those affecting mere privileges) are subject to judicial review in Federal Court. Habeas corpus is only available in provincial superior court. Broadening the availability of the Great Writ expands superior court jurisdiction at the expense of the Federal Court. The dissenters noted several difficulties with this proposition:

First, the familiarity of the Federal Court with such review in the operation of correctional facilities enables proper deference to be given to decisions by correctional administrators. It must be borne in mind that habeas corpus as a remedy is narrow. It does not extend to reweighing the numerous quantitative and qualitative factors involved in security classifications. Habeas corpus is a very blunt instrument and its focus is singular: whether the deprivation of liberty is lawful. Deference is owed to the decisions of correctional administrators because, inter alia, they better understand the penitentiary culture and inmate behaviour that underlies classification decisions.

…

Second, a further practical concern relating to consistency in jurisprudence emerges in the majority’s interpretation, because there will be no way to resolve inconsistencies in the application of habeas corpus and its related jurisprudence given that appeals from the superior courts lie to the provincial courts of appeal while appeals from the Federal Court lie to the Federal Court of Appeal. Short of an appeal to our Court, there will be no way to resolve possible inconsistencies as among provincial courts of appeal. This may not only lead to administrative incoherence in the correctional system but also undermine the uniform development of the law governing liberty and detention across the country, at least as regards federal prisons.

Third, the argument that resort to habeas corpus is required to challenge correctional security classification decisions because existing review mechanisms are insufficient is not compelling; to the contrary, the existing review mechanisms are adequate (in addition to being the mechanisms chosen by Parliament). This includes the normal order of affairs — where an inmate’s classification to maximum- or medium‑security can be revisited every six months, where inmates can request file corrections for reliance on incorrect information, and where an inmate can file a complaint with the Correctional Investigator — as well as the internal grievance process and, finally, judicial review (at paras. 184-187).

They also noted that the observations in Khela about reasonableness review were obiter and that the scope of habeas corpus and remedies under the Federal Courts Act have never been coextensive (at paras. 189-190).

To this, the majority retorted that forms of internal oversight and judicial review available under the Federal Courts Act are inadequate:

This Court has consistently held that the writ of habeas corpus in provincial superior courts is more advantageous to detainees in comparison to judicial review in Federal Court (see May, at paras. 65-72; Khela, at paras. 43-49; Chhina, at paras. 64-67). The following differences are often highlighted: (1) a habeas corpus application can be reviewed more rapidly (often within a week) whereas judicial review can only be commenced in Federal Court 160 days following the impugned decision (Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1(2); Federal Court Rules,SOR/98-106, rr. 301 to 314); (2) the remedy following a successful judicial review in Federal Court will generally be an order for redetermination, not release — there is no history of mandamus being used by the Federal Court to release a detainee (see Chhina, at para. 65); (3) the scope of review in habeas corpus is broader as it reviews the legality of the detention as a whole, rather than one particular administrative decision (see para. 64);(4) judicial review is discretionary and the onus remains on the applicant to prove unlawfulness, unlike the shifting onus at the third stage of the habeas corpus analysis; and (5) there is greater local access to provincial superior courts (Khela, at para. 47) (at para. 83).

The proposition about judicial review applications being “commenced” in Federal Court within 160 days is surely an error: the time limit for seeking judicial review is 30 days. Presumably, Moreau J meant that under the cited provisions of the Federal Courts Rules, it will take 160 days for a file to be ready for hearing in Federal Court. However, timelines can be abridged: there is a substantial body of case law about the circumstances in which the Federal Court will permit an accelerated hearing. For example, in McCulloch v. Canada (Attorney General), 2020 FC 565, Grammond J ordered an expedited timeline for resolution of a carceral decision such that an application for judicial review commenced on April 22, 2020 would be ready for hearing less than a month later, on May 19, 2020. That said, there is no doubt that the strict approach of the federal courts to the requirement to exhaust alternative remedies will lead to delays in many cases. To borrow from another commentator on Dorsey:

The practical outcome of Dorsey is that inmates now have a fast and effective way to challenge decisions denying their applications to transfer to a lower security level. Prior to Dorsey, the only way to challenge such a decision was to proceed through the grievance process set out in the Corrections and Conditional Release Act, and following receipt of a decision on the grievance, to bring an application for judicial review in Federal Court (see Amy Matychuk, here).

Nonetheless, as the dissenters observed, broadening access to habeas corpus might lead to delays in provincial superior courts too (at para. 173), so it is not clear that there is a delay-free way to deal with the issue of the relationship between the Federal Court’s supervisory jurisdiction and the provincial superior courts’ habeas corpus jurisdiction.

Overall, and with apologies for what has turned into a much longer discussion than I anticipated, I suggest there are three takeaways from this decision.

First, the scope of habeas corpus review in provincial superior court has expanded along with the availability of judicial review. The only limit now appears to be that decisions about privileges will not be subject to habeas corpus (though as the dissenters point out, inmates may be able under Dorsey to characterize carceral conditions as limiting liberty: see para. 170).

Second, adapting the habeas corpus framework to the contemporary law of judicial review creates challenges, not least because the “legitimate ground” threshold at step 2 of the habeas corpus analytical framework will surely be surmounted by any pleading that puts the reasonableness or procedural fairness of a decision in issue.

Third, the Supreme Court remains sceptical in its habeas corpus cases about exclusive Federal Court jurisdiction over carceral institutions (see also here). In the contest between the Great Writ and the Federal Courts Act, habeas corpus has routinely emerged victorious. Dorsey is, in that regard, no surprise.

This content has been updated on December 4, 2025 at 17:59.