Court File and Parties

Court File No.: CV-20-76/CV-20-79 Date: 2022-06-30 Superior Court of Justice – Ontario

Between: Frank Dorsey and Ghassan Salah, Applicants And: The Attorney General of Canada, Respondent

Intervenor: The John Howard Society of Canada

Counsel: Simon Borys, for the Applicants John Provart and Benjamin Wong, for the Respondent Paul Quick, for the Intervenor

Heard: February 2, 2022

Before: J. Speyer

A. Introduction

[1] The applicants are serving sentences in penitentiaries operated by the Correctional Service of Canada (“CSC”). They have each applied, pursuant to the Habeus Corpus Act, R.S.O. 1990, c. H.1, and the Canadian Charter of Rights and Freedoms, ss. 7, 9, 10(c), and 12, for a writ of habeus corpus ad subjicendum, with certiorari in aid if necessary, and for orders that they be transferred to minimum-security institutions unless the respondent, on behalf of the CSC, can justify their continued detention in a medium-security penitentiary.

[2] Transfers from medium security institutions to minimum security institutions cannot occur unless the offender’s security classification allows for their detention in a minimum security institution. Each applicant’s request to be assigned a minimum security classification was denied, and as a result they could not be transferred to a minimum security institution.

[3] Habeas corpus applications proceed in two stages. First, the applicants must show that they have been deprived of liberty and that there is a legitimate ground upon which to question the legality of the deprivation of liberty. If that is established, the onus shifts to the respondent to show that the deprivation of their liberty is lawful: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 30; Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681, at paras. 12 and 51; May v. Ferndale Institution, 2005 SCC 82, [2005] SCR 809, at para. 74; Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467, at para. 17.

[4] On January 25, 2021, pursuant to Rule 5.02 of the Rules of Civil Procedure, I ordered that these habeus corpus applications be joined for the purpose of resolving a question of law common to each application. That question (“the threshold question”) is whether habeus corpus is a remedy available to the applicants to challenge the refusal by CSC to reclassify them to minimum security, which in turn prevents their transfer to minimum security institutions. The resolution of the threshold question turns on whether denial of an offender’s request for re-classification to minimum-security constitutes a deprivation of liberty.

[5] The John Howard Society of Canada (“JHSC”) was granted leave to intervene in the applications in relation to my consideration of the threshold question. [1] The applicants and the JHSC submit that the applicants are deprived of liberty because correctional authorities denied their requests for re-classification from medium to minimum security.

[6] The respondent, on behalf of CSC, takes the position that habeus corpus is not available to review the decisions that result in denial of the applicants’ requests for transfer. CSC submits that habeas corpus is not available to challenge the CSC’s decision to maintain the status quo and not lower the applicants’ security classifications, because the applicants have not established a deprivation of liberty. The decisions do not impose new or additional constraints on the applicants’ residual liberty or deny them an entitlement to fewer restraints on their liberty.

[7] These reasons explain why I have concluded that habeus corpus is not available to the applicants to challenge the denials of their applications for reclassification to minimum security and their requests for transfers to minimum security prisons. The denials of their applications for reclassification to minimum security and their requests for transfers to minimum security prisons do not amount to a deprivation of their liberty.

B. The Applicants

(a) Frank Dorsey

[8] Frank Dorsey is incarcerated at Warkworth Institution, a medium security institution. He has been designated a dangerous offender under s. 753 of the Criminal Code and is serving an indeterminate sentence. He was arrested for his index offences in 1999 and has been incarcerated since then.

[9] Mr. Dorsey applied for a transfer to a minimum-security institution. To succeed, his request had to be approved at several levels. His case management team, the manager of assessment and intervention (“MAI”), and the warden agreed that Mr. Dorsey met the criteria for reclassification to minimum-security. The Deputy Commissioner of Corrections for the Ontario region, by decision dated September 9, 2019, assessed Mr. Dorsey’s public safety rating as moderate, and declined his request for re-classification at the minimum-security level. The Deputy Commissioner is the decision-maker for all offenders who have been found by a court to be dangerous offenders pursuant to the Criminal Code, when the offender is being supported for a first minimum-security classification.

[10] Because Mr. Dorsey was maintained as a medium security offender, he did not meet the security requirements necessary for transfer to a minimum-security institution.

[11] On October 25, 2021, Mr. Dorsey was reclassified as a minimum-security offender by decision of the Assistant Commissioner, Correctional Operations and Programs of the CSC. When this application was heard, his transfer to a minimum-security institution had not occurred.

(b) Ghassan Salah

[12] Ghassan Salah is incarcerated at Bath Institution, a medium security institution. He is serving concurrent life sentences for two counts of first-degree murder. He is ineligible for day parole before 2026. He is a citizen of Jordan and is subject to a deportation order.

[13] Mr. Salah applied for a transfer to a minimum-security institution. His case management team recommended that Mr. Salah’s security classification be assessed as minimum security and that his transfer to a minimum-security institution be approved. The MAI disagreed and recommended that his medium security classification be maintained. The warden agreed with the MAI and Mr. Salah was confirmed as a medium security offender. His request for transfer was denied because he was ineligible for placement at a minimum-security institution.

C. The Security Classification Framework

[14] The Correctional Service of Canada (“CSC”) is required to assign a security classification of maximum, medium or minimum to each offender in accordance with requirements set out in the Corrections and Conditional Release Regulations, SOR/92-620. [2] The general purpose of security classification is to protect the public, employees, and inmates through the appropriate institutional placement of offenders.

[15] All offenders receive a security classification, and this classification determines the facility into which they are placed. Offenders classified as medium and maximum must be re-assessed every two years. A change in circumstances can also result in reclassification.

[16] A Commissioner’s Directive prescribes the offender security reclassification process. The final decision-maker is the Institutional Head (warden), subject to exceptions for, inter alia, offenders serving life sentences for first or second degree murder, and dangerous offenders. These cases require additional quality control and compliance procedures due to their exceptional nature. CSC must ensure that the offender has addressed the risk associated with their circumstances.

[17] The applicants tendered evidence in support of their position that offenders’ experiences in minimum security penitentiaries are different than in medium security penitentiaries. Two affidavits, sworn by retired Deputy Warden Robert Clark and Professor Michael Jackson, provide opinions about the differences between minimum and medium security institutions, the importance of cascading offenders to lower security institutions in preparation for their eventual release into the community, and problems with that process.

[18] CSC disputes the admissibility of these affidavits, and in the alternative submits that they should be given little weight.

[19] I consider it unnecessary to engage in an analysis of the affidavits or in an assessment of the qualifications of the affiants to provide opinion evidence. The issue on this application is a question of law: whether habeus corpus is a remedy available to the applicants to challenge the refusal by CSC to reclassify them to minimum security, which in turn prevents their transfer to minimum security institutions. I accept, and I do not understand CSC to suggest otherwise, that the experiences of offenders in minimum and medium security institutions are different, that restrictions on inmate movement and privileges are fewer in minimum security institutions, and that as a general rule it is desirable that offenders cascade to lower security institutions as they serve their sentences in preparation for their eventual release from prison.

D. Analysis

[20] This judgment is not concerned with the merits of the decisions that refused the applicants’ requests for re-classification and transfer. This judgment is concerned with the availability of the remedy they seek. Habeus corpus is available to challenge a deprivation of liberty. At this stage of these proceedings, the sole question to be determined is whether the applicants were deprived of liberty when their requests for re-classification and transfer to lower security institutions were denied.

(a) The Development of the Writ of Habeas Corpus in the Correctional Context

[21] The writ of habeus corpus has developed over time, and its availability has expanded.

[22] In May v. Ferndale Institution, 2005 SCC 82, [2005] SCR 809, at para. 21, the Supreme Court of Canada confirmed that habeas corpus is a flexible remedy. It is “not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose - the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty”.

[23] The Charter guarantees the right to judicial review of the validity of a detention by resort to habeas corpus:

10. Everyone has the right on arrest or detention (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[24] The Supreme Court of Canada described the nature of an application for habeus corpus in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 SCR 467, at para. 17:

An application for habeas corpus requires the applicant to establish a deprivation of liberty and to raise a legitimate ground for questioning the legality of that deprivation. If this is accomplished, the onus then shifts to the authority in question to show that the deprivation of liberty is lawful. In order for detention to be lawful, the decision-maker must have authority to order detention, the decision-making process must be fair, and the decision to detain must be both reasonable and compliant with the Charter (May, at para. 77; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 72). Changes in conditions or orders leading to further deprivations of liberty may also be challenged in the same manner.

[25] The decision of Dickson J. as he then was, in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 was described in May v. Ferndale, at para. 25, as the “cornerstone for the modern theory and practice of judicial review of correctional decisions”. At p. 622 of Martineau, Dickson J. wrote:

In the case at bar, the disciplinary board was not under either an express or implied duty to follow a judicial type of procedure, but the board was obliged to find facts affecting a subject and to exercise a form of discretion in pronouncing judgment and penalty. Moreover, the board’s decision had the effect of depriving an individual of his liberty by committing him to a “prison within a prison”. In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls.

[26] Historically, habeus corpus was available only to challenge the commitment to custody or detention, but that changed in 1985. In three cases: R. v. Miller, [1985] 2 S.C.R. 613; Cardinal v. Director of Kent Institution, [1985] 2 SCR 643; and Morin v. SHU Review Committee, [1985] 2 S.C.R. 662, the Supreme Court of Canada expanded the scope of habeas corpus by making the writ available to challenge decisions that significantly deprive an inmate of the residual liberty available to the general inmate population, such as a decision to transfer an inmate to a special handling unit or to administrative segregation. Habeas corpus could thus free inmates from a “prison within a prison”. In Miller, at para. 36, LeDain J. explained why habeas corpus should be available in such circumstances:

Confinement in a special handling unit, or in administrative segregation … 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. …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..

[27] However, the Miller court was careful to limit the reach of its decision, at para. 36:

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.

[28] A year later, in Dumas v. LeClerc Institution, [1986] 2 S.C.R. 459, the Supreme Court confirmed the availability of habeus corpus to challenge deprivations of liberty within prison walls. Lamer J. described three different deprivations of liberty that could arise in the correctional context.

Habeas corpus is available to challenge an unlawful deprivation of liberty. 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.

[29] The applicants submit that their situation amounts to “a continuation of the deprivation of liberty” – the third Dumas category. The respondent submits that the applicants’ situation is not embraced by any of the Dumas categories.

[30] In Dumas, the court considered whether the offender was deprived of liberty when the Parole Board conditionally decided to grant him day parole, but later reversed that decision when the condition was not met.

[31] What was challenged in Dumas was the continuation of the deprivation of liberty. There was no challenge to the validity of Mr. Dumas’ initial deprivation of liberty. There was no substantial change in the conditions of his detention because he was never actually released on parole. If he had been released on parole and then reincarcerated pursuant to a decision of the parole board, there would have been a substantial change in conditions amounting to a further deprivation of Mr. Dumas’ liberty which could have been challenged by way of habeas corpus.

[32] The Court concluded that Mr. Dumas was not deprived of liberty, and that his situation did not amount to “a continuation of the deprivation of liberty” reviewable by an application for habeus corpus. The Court explained that because Dumas never became a parolee, he had no right to habeus corpus, because the decision of the Parole Board to grant him parole was reversed and having never become a parolee, his continued detention was not a deprivation of liberty.

[33] In Mission Institution v. Khela, 2014 SCC 24, the Supreme Court considered an application for habeus corpus in circumstances where an inmate was transferred from a medium to a maximum-security institution on an emergency basis. There was no issue in that case that the transfer from medium to maximum security deprived Khela of his residual liberty interests. At para. 34, the Court confirmed that:

… relief in the form of habeas corpus is available in a provincial superior court to an inmate whose “residual liberty” has been reduced by a decision of the prison authorities, and that this relief is distinct from a possible decision to release the inmate entirely from the correctional system … Decisions which might affect an offender’s residual liberty include, but are not limited to, administrative segregation, confinement in a special handling unit and, as in the case at bar, a transfer to a higher security institution.

[34] To summarize, in the correctional law context, deprivations of residual liberty that are subject to habeus corpus review recognized by the case law include transfers from general population to administrative segregation, incarceration in a special handling unit which is reserved for particularly dangerous inmates and is characterized by very restrictive confinement, and transfer to a higher security institution: Khela, at para. 34; May, at para. 25-35; Dumas, at paras. 10-12; Miller, at paras. 27-35; Cardinal v. Director of Kent Institution, [1985] 2 SCR 643, at para.13.

(b) Have the Applicants Been Deprived of Liberty?

[35] The question raised by these applications is not novel. It has been considered by the Superior Court for Ontario numerous times during the last 10 years. It has been considered in other provinces too. The preponderance of the jurisprudence during the past decade concludes that a refusal to reclassify an offender from higher to lower security does not amount to a deprivation of liberty.

[36] In Moldovan v. Canada (Attorney General), 2012 ONSC 2682, at para. 15, MacDonnell J. considered an application for habeus corpus based on the refusal of the applicant’s request to be transferred to a minimum security facility, and concluded:

Insofar as the application for habeus corpus is based on the refusal of the applicant’s request to be transferred to a minimum security facility, it is dismissed. There has been no change in [the offender’s] security classification, the manner in which his sentence is being served, or the location where it is being served and accordingly there has been no deprivation of liberty that is reviewable by way of habeas corpus.

[37] In Robinson v. Attorney General of Canada, 2013 ONSC 7992, Healey J. considered an application for habeus corpus based on the refusal of the offender’s request to be transferred to a minimum security facility and concluded, at para. 11, that Dumas and Moldovan were dispositive of the matter before her. Habeus corpus was not an available remedy because there was no deprivation of Robinson’s liberty because his status remained unchanged.

[38] In Bell v. Canada (Attorney General), 2019 ONSC 540, Casullo J. held at para. 22, in circumstances indistinguishable from those in the instant cases, that “the refusal to transfer is not a deprivation of an inmate’s residual liberty”.

[39] Other cases of this court have similarly concluded that the refusal to transfer an inmate to an institution with lower security does not deprive the inmate of their residual liberty: Canada (Attorney General) v White, 2015 ONSC 6994, at para 21; Ahmad v Canada (Attorney General), 2015 ONSC; Bell v. Canada (Attorney General), 2019 ONSC 540; and Lao v. Canada (Attorney General), 2016 ONSC 1273.

[40] Courts in other provinces have reached the same conclusion - habeus corpus is not available to challenge an inmate’s security classification that precludes transfer to a lower security institution: Palfrey v. Warden of Mission Institution, 2015 BCSC 1777, at paras. 49-51; Pallagi v. Canada (Attorney General of), 2011 QCCS 2423, at paras. 7-9; Mallen c. Page, 2015 QCCS 4197, at paras. 6-8; L.V.R. v. Mountain Institution (Warden), 2016 BCCA 467, at para. 25; Mapara v. Ferndale Institution (Warden), 2012 BCCA 127, at para. 16; Purdy v. Pacific Institution (Warden), 2016 BCSC 1201, at paras. 31-40; Wood v. Canada (Atlantic Institution), 2014 NBQB 135. A few of these decisions warrant additional comment.

[41] In L.V.R. v. Mountain Institution (Warden), 2016 BCCA 467, the British Columbia Court of Appeal held, at para. 25, that “while a decision to transfer an inmate to a more restrictive setting constitutes a deprivation of that inmate’s residual liberty interests, a decision denying an inmate access to less restrictive conditions does not constitute such a deprivation.” In so doing, the court affirmed its earlier decisions in R. v. Wu, 2001 BCCA 90 (a refusal to transfer to lesser security case), and Mapara v. Ferndale Institution, 2012 BCCA 127 (a challenge to refusals by a warden to grant escorted temporary absences).

[42] In Marcil c. Établissement du centre régional de réception (Directeur), 2017 QCCS 1833, the applicant sought to challenge the decision of the CSC to place him in a penitentiary outside of Quebec. Boucher J. summarized situations in which courts have found that a deprivation of liberty has not occurred in the correctional context:

La privation de liberté résiduelle est caractérisée par une réduction de la liberté du détenu par rapport à une situation initiale. C’est pour cette raison que les tribunaux ont décidé que l’habeas corpus ne permet pas de contester les décisions des autorités carcérales qui, bien que désavantageuses pour le détenu, ne comportent pas de diminution de liberté telles que le déni d’une libération conditionnelle qui n’a jamais été en vigueur (Dumas, précité, par. 13), l’attribution d’une cote de sécurité initiale (L.V.R. c. Mountain Institution (Warden), 2016 BCCA 467, par. 36), le maintien d’une cote de sécurité déjà attribuée (Wood c. Établissement de l’Atlantique, 2014 NBQB 135), le refus d’un transfert dans un établissement ayant un niveau de sécurité moins stricte (L.V.R., précité, par. 35; Mallen c. Page, 2015 QCCS 4197, par. 6-8) et le refus d’un transfert dans un établissement choisi par le détenu (Holland c. Canada (Attorney General), 2013 QCCS 5317, par. 15 à 21).

[43] A decision may be disadvantageous to an inmate, but it does not amount to a deprivation of residual liberty unless it is characterized by a reduction in the prisoner’s liberty. The decision of Boucher J. in Marcil was affirmed by the Quebec Court of Appeal in Reynosa Ricci v. Regional Reception Centre, 2018 QCCA 82 (which also considered the appeal of Marcil), in brief reasons that concluded that the judge was right to find that there was no residual loss of liberty in that case, and that habeus corpus “cannot become the usual way to challenge the decisions of the correctional service”.

[44] Before 2012, several decisions of this court came to a different conclusion. In Canada (Attorney General) v. Hollinger, Panet J. reasoned, at para. 16:

The liberty of the individual is in no way less affected in a situation where the individual has a security classification as maximum and is entitled to a medium or lesser security classification and does not receive it as in the reverse situation if the individual were to have, currently, a medium security classification and that is changed to maximum security classification. If the argument of the Respondent were to be accepted, then an individual who was incarcerated, at any classification level, and was entitled to a lower classification or perhaps to release, for example, by a change in the law, the individual would have no resort to the Writ of Habeas Corpus as there was no further deprivation of his liberty. That proposition, in my view, is incorrect.

See also: Musitano v. Canada (Attorney General); R. v. Scarcella, [2009] O.J. No. 2667 (Ont.S.C.J.), para. 20; Hutchinson v. Canada (Attorney General), 2010 ONSC 535; and R. v. Moulton, 2010 ONSC 2448, aff’d 2011 ONCA 85, without deciding whether the refusal of a transfer to a lower security facility was a sufficient deprivation of liberty to engage habeas corpus, as that issue was not raised before the Court of Appeal.

[45] The decisions of this court in Hollinger, Musitano, Hutchison, and Moulton have been overtaken. A consistent line of jurisprudence, beginning with Moldovan, has concluded that that the refusal to transfer an offender to a lower security institution is not a deprivation of an offender’s residual liberty.

(c) Judicial Comity

[46] I am bound by the principle of judicial comity to apply the well-established reasoning of the current jurisprudence of this court, unless one of three circumstances exist.

[47] The principle of judicial comity was recently explained by the Supreme Court of Canada in R. v. Sullivan, 2022 SCC 19, at para. 75:

The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:

1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

(d) The Rationale of This Court’s Most Recent Decisions Has Not Been Undermined

[48] The applicants submit that their situation falls within the third category of deprivation of liberty identified in Dumas: the continuation of a deprivation of liberty which has become unlawful. They argue that their ongoing detention in medium security will amount to a deprivation of liberty where the purported legal justification for that continued detention is arbitrary and unreasonable.

[49] The applicants submit that a “deprivation of liberty” for the purposes of habeas corpus encompasses not only formal detentions or new reductions in residual liberty, but also any circumstances in which an individual continues to experience restrictions on their liberty at the hands of the state. The applicants acknowledge that if their position is correct, that every security classification and re-classification of every offender in the custody of the CSC will be reviewable by superior courts of justice on a reasonableness standard. If the law compels the opening of that floodgate, then it must open. But it is my view that the law does not support that result.

[50] The applicants rely on R. v. Gamble, [1988] 2 S.C.R. 595, Cunningham v. Canada, [1993] 2 S.C.R. 143, Khadr v Edmonton Institution, 2014 ABCA 225, appeal dismissed 2015 SCC 26, R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, Wang v. Canada, 2018 ONCA 798, and Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 SCR 467, to support their position. In my view, these decisions do not support the conclusion advanced by the applicants. I will explain why I have come to that conclusion.

[51] For completeness, I will consider Gamble, Cunningham, and Khadr, decided in 1988, 1993 and 2015, even though they are not “subsequent appellate decisions” that undermine the current prevailing Ontario jurisprudence. Bird, Wang, and Chhina are more recent cases and if they undermine the current prevailing Ontario jurisprudence, I could depart from the earlier Ontario decisions. However, as I will explain, Bird, Wang, and Chhina do not undermine the current prevailing Ontario jurisprudence.

R. v. Gamble, [1988] 2 S.C.R. 595

[52] Ms. Gamble claimed that she was deprived of liberty in a way that offended s. 7 of the Charter and sought relief, including habeus corpus, under s. 24(1) of the Charter. She applied to the Supreme Court of Ontario under s. 24(1) of the Charter for relief against her continued detention pursuant to the condition of her sentence that she was not eligible for parole for 25 years. She based her claim for relief on an alleged violation of s. 7 of the Charter, alleged to have arisen because she was tried and sentenced under the law that was in force at the time of the trial, rather than at the time when the crime was committed.

[53] The Supreme Court of Canada applied the Dumas categories and situated Ms. Gamble’s claim within the third category: her continued deprivation of liberty by operation of the 25‑year parole ineligibility provision became unlawful by reason of the enactment of the Charter. The Court concluded that the continuation of the 25‑year period of parole ineligibility deprived Ms. Gamble of an important residual liberty interest which is cognizable under s. 7 and which could be remedied by way of habeas corpus if found to be unlawful.

[54] Ms. Gamble’s situation bears no resemblance to that of the applicants. The sentence she was serving, and thus her continued deprivation of liberty, became unconstitutional by operation of the Charter.

Cunningham v. Canada, [1993] 2 S.C.R. 143

[55] Cunningham involved the second Dumas category: a change in the conditions of detention, brought about by amendments to the Parole Act that caused Mr. Cunningham to be denied release subject to mandatory supervision and required him to serve his entire sentence until his warrant expiry date in a prison.

[56] Had the Parole Act not been amended, given his good behaviour, Mr. Cunningham would have been released from prison automatically after serving two-thirds of his sentence, subject to mandatory supervision. The effect of the 1986 amendment of the Parole Act was to reduce that expectation of liberty, in the sense that it curtailed the probability of his release on mandatory supervision.

[57] The Supreme Court of Canada concluded that Mr. Cunningham was deprived of liberty because the manner in which his sentence was to be served was altered by qualifying his right to serve a portion of his sentence on mandatory supervision in the community. While the duration of his sentence did not change, the quality of that sentence changed when his expectation of liberty was reduced. That amounted to a change in the conditions of his detention.

Khadr v Edmonton Institution, 2014 ABCA 225, appeal dismissed 2015 SCC 26

[58] The United States transferred Mr. Khadr to Canada to serve the remainder of his American sentence under the International Transfer of Offenders Act, SC 2004, c 21 (“ITOA”). The issue in Khadr was whether Mr. Khadr would serve his sentence in a federal or a provincial adult correctional facility. If his sentence was an adult sentence, he would serve it in a penitentiary. If the sentence could have been a youth sentence if the sentence was imposed in Canada, he would serve it in an adult provincial correctional facility. After being placed in a federal penitentiary, Khadr applied for habeas corpus on the basis that the ITOA mandated his placement in a provincial correctional facility for adults. The resolution of this question involved the interpretation – and interrelationship – of several sections in the ITOA along with other statutory provisions in the Criminal Code and the Youth Criminal Justice Act, S.C. 2002, c. 1.

[59] The Alberta Court of Appeal concluded that a finding that Khadr ought to have been placed in a provincial correctional facility, rather than a penitentiary, would constitute a sufficiently material difference so as to affect his residual liberty. The court did not undertake any analysis of this question, but rather relied on the authority of Mission Institution v. Khela, at para. 54, where the Supreme Court of Canada stated:

This Court has recognized in its decisions that habeas corpus should develop over time to ensure that the law remains consistent with the remedy’s underlying goals: no one should be deprived of their liberty without lawful authority. The significance of habeas corpus to those who have been deprived of their liberty means that it must be developed in a meaningful way (Miller, at pp. 640-41); In May, the Court quoted with approval the statement by Black J. of the United States Supreme Court that habeas corpus is “not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty” (May, at para. 21; Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243; see also the preface to R. J. Sharpe’s The Law of Habeas Corpus (2nd ed. 1989)). This remedy is crucial to those whose residual liberty has been taken from them by the state, and this alone suffices to ensure that it is rarely subject to restrictions.

[60] The Alberta Court of Appeal decided that Khadr’s residual liberty was affected by the decision about whether he was to serve his sentence in a federal penitentiary or a provincial correctional facility because the legal implications of that placement “would constitute a sufficiently material difference so as to affect his residual liberty”. The court did note that “not every move within the prison system will affect a person’s “residual liberty”. The Supreme Court of Canada upheld the decision of the Alberta Court of Appeal without any analysis of the deprivation of liberty issue.

[61] Khadr is best seen as a case where the decision of the correctional authorities as to where he was to serve his sentence deprived him of his right in law to serve the sentence in a provincial correctional facility. The case involved the interpretation of Canadian laws that govern where a sentence such as that imposed on Khadr is to be served.

R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409

[62] Mr. Bird was charged criminally for having breached the residency condition imposed on him by the Parole Board of Canada under a long-term supervision order. The Court was required to decide whether, in defending that charge, it was open to Mr. Bird to collaterally attack the validity of the residency condition on the basis that it contravened his Charter rights. As part of its analysis of that issue, the Court examined whether Mr. Bird could have challenged the lawfulness of the residence condition by any effective mechanism and concluded that he could have applied for habeus corpus. In Bird, it appears to have been assumed that Mr. Bird’s residency condition amounted to a deprivation of liberty. That question was simply not subjected to any scrutiny by the Court.

Wang v. Canada, 2018 ONCA 798

[63] Wang involved a habeus corpus application that was brought to challenge the conditions of house arrest to which the applicant was subject because of an order of the Immigration Division of the Immigration and Refugee Board. The application judge found that because the applicants were not being held in custody, they were not detained and therefore could not resort to habeas corpus to challenge the conditions of their house arrest.

[64] The Court of Appeal held that the application judge wrongly concluded the applicant had to be detained in a custodial facility for there to be an infringement of liberty to which the writ of habeas corpus could apply. The Court of Appeal in Wang did not consider any of the jurisprudence that addresses whether a decision by CSC not to reduce an offender’s security classification amounts to a deprivation of liberty, likely because Wang had nothing to do with the manner in which a sentence of imprisonment is to be served. The Court of Appeal in Wang carefully defined the issue it decided and described as “a very narrow one”: “It is simply whether habeas corpus can apply where a person seeks to challenge a deprivation of liberty that arises from a situation other than being held in a custodial facility, that is, other than detention in its strictest form”.

[65] The Court of Appeal’s decision in Wang does not undermine the rationale of the governing Ontario jurisprudence in the refusal to re-classify and transfer cases.

Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 SCR 467

[66] Chhina does not alter the principles applicable to habeus corpus in prison cases. Chhina provided the Supreme Court with an opportunity to clarify when a complete, comprehensive and expert statutory scheme provides for review that is as broad and advantageous as habeas corpus such that an applicant will be precluded from bringing an application for habeas corpus: Chhina, at para. 16. The Court in Chhina was concerned with delineating the scope of the “Peiroo” exception to habeus corpus jurisdiction that governs immigration cases where a comprehensive legislative framework exists by which immigration detention may be challenged.

[67] Karakatsanis J., for the majority, noted at para. 17 that “changes in conditions or orders leading to further deprivations of liberty may also be challenged in the same manner” as orders for detention. This does not assist the applicants, as in this case there has been no change in the conditions in which the applicants are held, leading to a further deprivation of their liberty.

[68] The majority in Chhina confirmed, at para. 22, that the three categories described in Dumas in 1986, while not exhaustive, continue to illustrate the circumstances in which a deprivation of liberty may arise:

The case of Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, helpfully illustrates different circumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged. A deprivation of liberty may relate to (1) the initial decision requiring the detention; or to a further deprivation of liberty based on (2) a change in the conditions of the detention; or (3) the continuation of the detention.

[69] The Supreme Court of Canada provided guidance as to the scope of the three Dumas criteria, at para. 23:

While not exhaustive, this list may be particularly helpful in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining the relevant case-law. For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initial deprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution is emblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration, which may engage ss. 7 and 9 of the Charter, as was argued here (and in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220).

[70] Chhina does not assist the applicants. The majority decision affirmed the continued authority of Dumas, and its three categories of deprivation of liberty that are amenable to supervision by the Superior Courts on habeus corpus review. While Chhina notes that the three categories are not exhaustive, the applicants do not assert that there exists some fourth category that applies to their situation. To the extent that Chhina provides guidance as to the scope of the third Dumas category, it does not assist the applicants, because, in Chhina, the third category was found to apply to extended detentions or detentions of uncertain duration, such as those that exist in the immigration context. Chhina had nothing to do with the manner in which sentences imposed for the commission of criminal offences are to be served.

(e) Conclusion Regarding the Authorities Relied on by the Applicants

[71] The authorities relied on by the applicants do not conflict with or undermine the cases decided in Ontario and elsewhere in Canada during the last decade that deal specifically with the availability of habeus corpus to challenge the decisions of CSC as to offenders’ security classifications, which in turn impact their eligibility for transfer to institutions with less security.

[72] The cases relied on by the applicants confirm that Dumas remains good law. Habeas corpus is available to challenge an unlawful deprivation of liberty. In the context of correctional law, three types of deprivations of liberty are amenable to habeus corpus review: 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.

[73] The applicants submit that their situation is captured by the third Dumas category, a continuation of the deprivation of liberty, but the third Dumas category does not capture any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. Rather, the third Dumas category appears to have been applied in cases of extended detentions or detentions of uncertain duration, such as may occur in the immigration context, which may engage ss. 7 and 9 of the Charter, and in criminal cases where the sentence imposed has become unlawful.

(f) Conclusion

[74] In these cases, there has not been a new detention of the applicants, that purports to rest on its own foundation of legal authority. There has been no change in the conditions of their imprisonment nor any orders leading to further deprivations of their liberty. There has been no change in their security classification, the way their sentences are being served, or the location where their sentences are being served. They are not subject to a distinct form of confinement or detention in which their actual physical constraint or deprivation of liberty is more restrictive or severe than the normal one in an institution. Their residual liberty has not been reduced by a decision of the prison authorities.

[75] The applicants in effect ask the court to confer on them an entitlement to a minimum-security classification; not to restore a classification of which they have been deprived. They challenge decisions that maintained the status quo and did not deprive them of any liberty that they enjoyed before the decisions were made.

[76] Habeus corpus is not an available remedy because the applicants have not been deprived of liberty, and as a result the applications are dismissed.

Released: June 30, 2022 J. Speyer