Simon Peter Borys

Two federal inmates serving indeterminate sentences applied for reclassification from medium- to minimum-security facilities.

Despite recommendations from their case management teams and wardens, administrative decision-makers denied the reclassifications.

The appellants sought habeas corpus ad subjiciendum with certiorari in aid, challenging the denials as unlawful deprivations of their residual liberty.

The majority held that a decision to deny a lower security reclassification constitutes a deprivation of liberty reviewable by way of habeas corpus, as it has the qualitative effect of restricting liberty without requiring proof of a change in status quo or a pre-existing legal entitlement to the less restrictive state.

The dissent maintained that habeas corpus is only available where an inmate has acquired a legal entitlement to the lower security classification, consistent with the framework in Dumas.

As both appellants had been reclassified and transferred by the time the appeal was heard, the Court allowed the appeal on the moot legal question of public importance.

The appellants, Frank Dorsey and Ghassan Salah, appealed a Superior Court decision that denied their applications for habeas corpus to challenge the Correctional Service of Canada's refusal to reclassify and transfer them to lower-security institutions.

The application judge found that these denials did not constitute a deprivation of residual liberty reviewable by habeas corpus.

The Court of Appeal, in a majority decision, upheld the application judge's finding, concluding that a refusal to reclassify an inmate to a lower security level, without a change in the conditions of detention or an entitlement to greater liberty, does not amount to a deprivation of residual liberty for the purposes of habeas corpus.

The Court affirmed that the existing grievance procedure and judicial review in the Federal Court are the appropriate avenues for such challenges.

The dissenting judge argued that an unlawful reclassification refusal could crystallize an initially lawful deprivation of liberty into an unlawful one, making it reviewable by habeas corpus.

This decision addresses motions for leave to intervene in an appeal concerning the availability of habeas corpus to challenge the refusal of prisoner transfers to lower security institutions.

The appellants, Frank Dorsey and Ghassan Salah, sought to overturn a lower court's denial of their habeas corpus application.

The Court of Appeal granted intervention to the Canadian Civil Liberties Association, the Black Legal Action Centre, the Canadian Association of Elizabeth Fry Societies, and the Canadian Prison Law Association, finding that the appeal raises issues of constitutional and public importance.

The court determined that the proposed interveners offered distinct and useful perspectives, and that their participation would not cause injustice to the parties, even if aligned with the appellants' position.

The Court of Appeal addressed the status of an intervener, the John Howard Society of Canada (JHSC), in an appeal.

The JHSC had been granted party intervener status in the court below.

While the appellants and respondent consented to the JHSC's continued leave to intervene as an added party, they disagreed on the scope of its participation.

The court clarified that interveners granted party status in the lower court generally expect to continue as parties on appeal without needing a fresh motion, unless there are intervening events or exceptional circumstances.

The JHSC's status as an added party intervener was confirmed, with the terms of participation to be determined later.

The applicants, federal inmates, sought a writ of habeas corpus to challenge the Correctional Service of Canada's (CSC) refusal to reclassify them to minimum security, which prevented their transfer to lower-security institutions.

The core legal question was whether such a refusal constitutes a "deprivation of liberty" reviewable by habeas corpus.

The court, applying the principle of judicial comity and reviewing extensive jurisprudence, concluded that maintaining an existing security classification does not amount to a deprivation of liberty, as it does not impose new or additional constraints on residual liberty.

Consequently, habeas corpus was not an available remedy, and the applications were dismissed.

The applicant, a federal inmate, brought a habeas corpus application challenging his security reclassification from medium to maximum and his involuntary transfer to Millhaven Institution.

The transfer was prompted by an incident where the applicant made a threatening remark to a correctional officer.

The applicant argued the decision was unreasonable and procedurally unfair due to inadequate information sharing and insufficient reasons.

The court dismissed the application, finding that the Correctional Service of Canada's decision was reasonable given the applicant's behaviour and risk factors, and that the process was procedurally fair.

The applicant, a federal inmate serving a life sentence, applied for habeas corpus after being involuntarily transferred from a minimum to a medium-security institution.

The transfer was based on allegations of his involvement in institutional subcultures, which he denied.

The court found that the Correctional Service of Canada failed to meet its disclosure obligations under section 27 of the Corrections and Conditional Release Act by not providing the applicant with the Security Reclassification Scale (SRS) information.

This failure rendered the transfer decision procedurally unfair and unreasonable.

The application for habeas corpus was granted, and the applicant was ordered to be returned to a minimum-security institution.

The John Howard Society of Canada (JHSC) brought a motion for leave to intervene as an added party in three joined habeas corpus applications.

The applicants, who are inmates, challenged the denial of their requests to transfer to minimum-security institutions.

The JHSC sought to intervene on the threshold question of whether such a denial constitutes a deprivation of liberty.

The court granted the motion on terms, finding that the JHSC had a genuine interest and could make a useful contribution regarding the constitutional and practical context of transfer decisions.

However, the court restricted the JHSC from participating in the development of the evidentiary record to avoid duplication and prejudice.

The applicant sought judicial review of a decision by the Ontario Parole Board refusing to order a new hearing for her temporary absence permit application.

Prior to the judicial review hearing, the applicant was granted parole, rendering the application moot.

The applicant argued the court should still hear the matter to provide guidance to the Board on the proper framework for assessing temporary absence cases.

The Divisional Court declined to hear the application, applying the doctrine of mootness and emphasizing that the court's role on judicial review is to assess the reasonableness of specific decisions, not to impose analytical frameworks on administrative decision-makers.

The application was dismissed.

The applicant, a federal inmate, sought habeas corpus with certiorari in aid to challenge his reclassification from medium to maximum security and subsequent involuntary transfer.

The court found the Correctional Service of Canada's decision to be reasonable and procedurally fair, based on a holistic review of the applicant's conduct, including involvement in contraband importation and prior misconducts.

The application was dismissed, and the applicant was ordered to pay costs.

The applicants, federal inmates, applied for habeas corpus seeking transfers to minimum-security institutions.

The respondent, the Attorney General of Canada, brought a motion under Rule 2.1.01 of the Rules of Civil Procedure to summarily dismiss the applications as frivolous, arguing that a refusal to transfer to a lower security classification does not constitute a deprivation of liberty.

The court dismissed the motion, noting that jurisprudence is divided on whether such a refusal amounts to a deprivation of liberty, and therefore the applications were not clearly frivolous or abusive on their face.

The applicant, a young person charged with terrorism-related offences, sought certiorari to quash a youth justice court judge's decision.

The judge had ruled that the Crown was entitled to apply for a de novo bail hearing under s. 33(1) of the Youth Criminal Justice Act (YCJA), notwithstanding that the young person had previously been released into the care of responsible persons under s. 31(1) of the YCJA by a justice of the peace.

The applicant argued that s. 31 constituted a distinct release scheme, and challenges should proceed under s. 31(4), not s. 33(1).

The Superior Court dismissed the application, affirming that s. 33(1) provides a mechanism for a youth justice court judge to conduct a de novo bail hearing, integrating with the Criminal Code provisions and the YCJA's purpose of providing enhanced procedural protections and avoiding youth incarceration.

An inmate, Brian Hickey, sought a writ of habeas corpus with certiorari in aid to challenge his emergency transfer from a minimum to a medium security institution, arguing the decision was unreasonable and procedurally unfair.

The court found the transfer decision reasonable, based on credible allegations of threats against his step-father and deteriorating behaviour, which increased his public safety risk.

The court also determined that procedural fairness was met, including the proper withholding of certain information under s. 27(3) of the Corrections and Conditional Release Act.

The application was dismissed.

The applicant, a federal inmate convicted of second degree murder, sought habeas corpus with certiorari in aid requiring his transfer from medium to minimum security.

He argued that maintaining his medium security classification despite favourable psychological reports and recommendations from his case management team constituted an unlawful deprivation of liberty.

The court held that refusal to grant a less restrictive security classification does not amount to a deprivation of residual liberty where the inmate has never previously enjoyed the lower classification.

In any event, the court found the warden’s decision reasonable, given concerns about the inmate’s continued denial of responsibility and its relevance to risk assessment under the Corrections and Conditional Release Act.

Following a successful habeas corpus and certiorari application challenging a correctional institution’s decision to reclassify the applicant from minimum to medium security, the court addressed the issue of costs.

The applicant did not seek costs despite succeeding on the judicial review application.

The court therefore declined to award costs to any party.

The judge also declined to comment on the broader argument that prisoners should never face cost consequences when bringing unsuccessful habeas corpus–type judicial review applications.

The applicant sought judicial review of a correctional decision reclassifying his offender security level from minimum to medium security.

The decision acknowledged that the Security Reclassification Scale may have been inflated due to an inaccurate count of recorded institutional incidents, but correctional authorities failed to address that concern when making the final determination.

The court held that the resulting decision lacked justification, transparency, and intelligibility under the reasonableness standard.

Because the respondent could not demonstrate that the transfer decision fell within the range of acceptable outcomes, the decision was found unreasonable.

The application was granted and the applicant was ordered returned to a minimum security institution.