Overview

In May 2025, Pivot Legal Society (“Pivot”), alongside several public interest groups, intervened in Dorsey v, Canada (Attorney General), 2025 SCC 38.^[1] Dorsey was an appeal brought by prisoners that affirms access to habeas corpus to challenge continued unlawful confinement in more restrictive prisons (or facilities) that deprive a person of their liberty.

In a 6-3 majority decision and win for prisoners’ rights, the SCC affirmed that security classification decisions withholding lower security from a prisoner are reviewable by way of habeas corpus because it qualitatively effects that person’s liberty.^[2] Critically, the Court recognizes that release to a lower security facility is the appropriate remedy to be sought through habeas corpus applications when a prisoner is unlawfully or arbitrarily detained by the state.^[3]

Background

The appellants Frank Dorsey, a Black Canadian; and Ghassan Salah, of Jordanian descent, were two prisoners that were confined to medium-security facilities. In 2019, Dorsey and Salah separately sought reclassification to a minimum-security prison operated federally by Correctional Services Canada (“CSC”). Both prisoners met the relevant criteria for reclassification and initially received approvals, but subsequently had their requests refused by higher-up CSC officials. The prisoners sought to challenge these denials by applying for writs of habeas corpus pursuant to the Habeas Corpus Act, R.S.O. 1990, c. H-1, arguing that the reclassification decisions were a deprivation of liberty and violated their rights under sections 7, 9 and 10(c) of the Charter.^[4] Further, they argued that these decisions were substantively unreasonable.

Mr. Dorsey had been incarcerated since 1999 on prostitution-related offences, and, by the time of his request for transfer to a minimum-security prison in 2019, he was eligible for statutory release. Mr. Salah had been incarcerated since 2004, and would be eligible for day parole in 2026. Yet, like many Black, racialized and Indigenous prisoners who serve indeterminate sentences (lasting practically in length until death),^[5] or longer sentences in maximum prisons, Mr. Dorsey had been classified at medium security, with little opportunity to engage in the rehabilitative programming that he needed to successfully achieve parole.^[6] In fact, CSC used his inability to demonstrate a period of supervision in minimum-security as the basis upon which to repeatedly deny his parole. Mr. Salah was considered a safety risk due to his migration status, which made him subject to deportation, with little opportunity to displace that risk assessment.

Our Argument

Pivot’s arguments were informed by consultation with the Prison Law Committee, a group of allied organizations including Prisoners’ with HIV/AIDS Support Action Network (“PASAN”), and people with lived, policy and legal expertise on prison and correctional law issues.^[7] The Committee met monthly to refine our arguments to the Court, and consists of Black, Indigenous, queer and white folks with a deep commitment to prisoners’ justice through anti-colonial frameworks. The Committee was integral to ensuring that Pivot’s intervener arguments reflected the material implications for incarcerated people of restricting provincial courts’ habeas corpus jurisdiction in relation to lower security classification decisions.^[8]

Centrally, we argued that Black and racialized prisoners like Mr. Dorsey and Mr. Salah face significant barriers when seeking transfer to minimum-security prisons, where there are more opportunities for correctional programming, fewer physical restraints on mobility/movement within prison facilities, and better chances to access rehabilitative and re-entry programs that can prepare a prisoner for reintegration back into community. This, compounded by a significant lack of culturally-appropriate programming,^[9] means that already marginalized prisoners are routinely impeded from accessing programs that are critical to their correctional and release planning.^[10] Committee members stressed that security classification and early risk assessments follow prisoners throughout their custody, and constrain prisoners’ and formerly incarcerated people’s chances to heal and address the psychological toll of prisons.

As we raised in our factum to the Court, CSC has continually evolved its pattern of warehousing marginalized groups in increasingly physically isolating conditions, often creating what the courts have warned is “a prison within prisons” that unlawfully restrains a person’s liberty.^[11] This is not uncommon in maximum prisons, where a high level of use of force incidents occur (46% of all incidents nationally), and where Black and Indigenous peoples are overwhelmingly confined.^[12] CSC historically misused solitary confinement, which was found to violate peoples’ rights and international norms.^[13] It subsequently adopted the practice of ’administrative segregation’, a form of solitary confinement by another name that has also now been abolished.^[14] Further, the Office of the Correctional Investigator (OCI), Canada’s independent watchdog for federal prisons, reports that CSC’s existing pattern of containing and reprimanding prisoners in higher security (max) facilities or segregation-like conditions of structured intervention units (“SIUs”) uniquely affects Black and Indigenous groups, as well as prisoners with mental health needs.^[15] Access to release through habeas corpus is vital to prevent the state from unlawfully depriving prisoners’ of their liberty.

We also argued that restricting access to habeas corpus for marginalized groups would impose undue barriers to access to justice. The OCI reports that racial disparities persist in conditions of confinement, length of sentences, release, and community re-entry.^[16] It is well established that Black and Indigenous prisoners endure longer sentences, spend more time in SIUs, and experience more use of force by COs.^[17] Additionally, they have less access to culturally appropriate programming, and fewer opportunities to engage in rehabilitative and reintegration programs, and more barriers to achieving parole at their first opportunity.^[18] Clearly, the legislative goals of rehabilitation and reintegration are not served when marginalized groups are kept continually confined to higher security prisons, with little means to challenge the degree of confinement, especially when the decision to limit a person’s liberty is unreasonable, arbitrary or in violation of a person’s Charter rights.^[19]

This is a powerful recognition of a basic truth that incarcerated people and advocates have been saying for years: classification and placement decisions are not administrative technicalities – they are decisions about liberty. The majority confirms that a deprivation of liberty can occur even when the status quo has not changed, so long as the person shows that their current conditions are more restrictive than the conditions they ought to be lawfully held in. This is a crucial shift: it recognizes that incarceration is not static, and that rights do not freeze the moment a sentence is imposed.

– Lorraine, Prison Law Committee Member

The Majority Decision affirms that prisoners retain fundamental rights to habeas corpus to challenge unlawful conditions of confinement, including overclassification that disproportionately impacts marginalized groups

Moreau J., writing for the majority, held that habeas corpus is available to challenge correctional decisions withholding a lower security classification because it qualitatively effects a person’s liberty. By taking a qualitative and purposive approach to assessing the meaning of deprivation of liberty in habeas corpus applications, the Court appropriately focuses the analysis on the actual effect of a particular form of confinement on a prisoner.^[20]

This Court has recognized that the writ, as both a right and remedy, must remain flexible and purposive in order to respond to unlawful deprivations of liberty. Moreover, the writ must remain available and accessible to those individuals whose liberty has been most restricted living within penitentiary walls. These individuals, already facing significant deprivations of their liberty, should have access to the expedient and effective relief long offered by habeas corpus where the deprivation of liberty becomes unlawful.

Moreau J., Dorsey at para 2

There are several significant takeaways from the majority’s decision affirming habeas corpus where the state continually deprives a person of their liberty.

First, the Court establishes that denial of lower security classification can constitute a significant deprivation of liberty. In the majority’s view, there is no difference between a claimant who seeks release from being held indefinitely in a more restrictive setting (including max or solitary-like conditions), and a claimant who is involuntarily transferred from a lesser to a more restrictive institutional setting. both risk facing a significantly higher degree of restriction on their liberty than they ought lawfully be subjected to.^[21]

Second, the SCC has rejected the Ontario Court of Appeal’s approach, which required a prisoner to show entitlement to a greater degree of freedom at the first stage of a habeas application. Following Dorsey, a prisoner must establish (1) that there is a deprivation of liberty; and (2) a ground for questioning the lawfulness of the detention. ^[22] The burden of proof then shifts to the detaining authority to justify the lawfulness of the detention.^[23] We agree that the burden of proving and justifying the lawfulness of the detention is more appropriately discharged by the detaining authority, and that this conceptual distinction is integral to safeguarding liberty interests which are foundational to habeas corpus applications, and further protected under the Charter.^[24]

Third, the Court has recognized that over-classification of prisoners disproportionately affects Black and Indigenous communities, and that this context can be appropriately considered by courts in assessing whether a reclassification decision significantly impairs a person’s liberty.^[25] We are encouraged by the majority’s finding that the analysis of whether a security reclassification has resulted in a person being deprived of their liberty will be context-dependent,^[26] and presumably, will allow judges to consider the broader social context and systemic harms that marginalized prisoners endure. We argued in our factum that Ewert already recognizes the risks of overestimating prisoners in terms of access to rehabilitative programs which can either support or impede release planning. Ultimately, the majority agreed that it must account for systemic issues relating to security over-classification of Black and Indigenous prisoners, particularly given the ways in which it impedes their ability to meaningfully rehabilitate and access opportunities for release.^[27]

Fourth, the SCC affirms that release from a prison to a lower security facility is the appropriate remedy when the state decides to continue to confine a person more restrictively than they ought to be,^[28] From an abolitionist lens, the court’s holding that prisoners can seek release in such circumstances provides a basis for the state to implement the OCI’s recommendations for a “decarceration strategy” that utilizes and expands alternatives to incarceration for Indigenous, Black and other marginalized groups, including for healing lodges which are significantly underutilized as CSC routinely impedes Indigenous communities access to them.^[29] In this vein, the federal government should commit to removing structural barriers for prison alternatives by reallocating resources from prisons to re-entry programs that are community-determined, culturally relevant and accessible for Indigenous, Black and other racialized groups.

The dissenting opinion discounts the systemic realities of overincarceration and oversecuritization that marginalized prisoners endure

The dissent warns of floodgates, but the majority reminds us that the real danger is allowing unlawful confinement to go unchallenged.

– Lorraine, Prison Law Committee Member

The dissenting judges, who also recently appeared to be opposed to prisoners’ justice in John Howard Society v. Saskatchewan (AG),^[30] argue that habeas corpus should not be used to address systemic issues relating to the over-classification of marginalized prisoners. In their view, doing so is a “perilous endeavour” that inappropriately broadens the scope of habeas corpus.^[31] They argue that habeas corpus is limited to dealing with restraints on liberty and should be narrowly focused on individual claims of unlawful detention. In our view, an approach that discounts systemic harms would ignore the well-established social context of systemic discrimination experienced by Black, Indigenous, and racialized communities within and beyond prisons.

The dissent also argues that allowing provincial habeas corpus jurisdiction over lower security classification would open the floodgates to prisoners collateral attacks on CSC’s operational decisions.^[32] We know, however, that incarcerated people endure restrictive prison environments that are rife with violence, with little, if any, oversight or public scrutiny over correctional decisions. The dissenters’ preferred approach would create more barriers to justice for marginalized prisoners.^[33]

Further, the dissenting judges stress that deference should be owed to correctional authorities, whom they argue “understand penitentiary culture and inmate behaviour that underlies classification decisions.”^[34] In our view, this ignores the inherent punitive nature of prisons, and encourages the climate of impunity in which CSC routinely operates. Given CSC’s monopoly on the use of force, institutional charges, and threats of segregation-like conditions wielded disproportionately against Black and Indigenous peoples behind prison walls, habeas corpus remains a critically important access to justice mechanism to reduce the systemic harms visited upon already marginalized communities.

Conclusion

While we applaud the Court for recognizing that limits to a prisoner’s liberty must be assessed contextually, we remain cautious of the majority’s decision to iterate examples of purported trivial or insignificant forms of deprivation of liberty, such as when a facility engages in intermittent lockdowns, or when the state denies access to rehabilitative programming which is critical for racialized groups’ access to healing justice.^[35] Similarly, the dissenters’ opinion reveals the inherent dangers of approaching the deprivation of liberty analysis in a vacuum apart from incarcerated people’s lived realities. These are not insignificant or trivial restrictions on prisoners’ liberty or equality interests, and courts will need to be attuned to the ways in which marginalized prisoners are adversely impacted by security classification and resulting limits on liberty and access to critical health, social and rehabilitative supports.

^[1] Dorsey v Canada (Attorney General), 2025 SCC 38 [“Dorsey”].

^[2] Dorsey, supra note 1, at para 2.

^[3] Dorsey, supra note 1, at para 77.

^[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [“Charter”].

^[5] Canada, Office of the Correctional Investigator, Annual Report 2021-2022, (Ottawa, Public Works and Government Services Canada, 2022) at 46 [“OCI 2021-2022”].

^[6] OCI 2021-2022 at 52. The OCI reports that Black individuals have the largest proportion incarcerated in maximum security prisons, and the smallest proportion in minimum prisons, as compared to their white counterparts. For example, on December 12, 2021, 18.4% of Black individuals were in maximum security and 12.3% were in minimum security compared to 10.3% of White prisoners in maximum security and 19.8% in minimum security.

^[7] See for instance, Canada, Standing Senate Committee on Human Rights, Human Rights of Federally-Sentenced Persons (Ottawa: Senate, 2021) at 121 [“Human Rights of Federally-Sentenced Persons”]; United Nations Office on Drugs and Crime, The United Nations Standard Minimum Rules for the Treatment of Prisoners, (2015) [“the Nelson Mandela Rules”].

^[8] The Prison Law Committee simultaneously provided submissions to the UN Independent Expert Panel on Equality in Law Enforcement regarding systemic racism affecting people of African descent in the criminal legal system, where we argue that CSC’s flawed security classification system reproduces and perpetuates systemic racism for Black, Carribean, African and Indigenous communities.

^[9] See for instance, Eidzadirad, Ardavan, & Rai Reece, Decolonizing community re-entry: Effective case studies of community-led programs and services to support formerly incarcerated individuals in Canada, (2025), The Interdisciplinary Journal of Student Success 4: 67-92.

^[10] Ibid.

^[11] R v Miller, 1985 2 SCR 613 at paras 32-33 [“Miller”]; May v Ferndale, 2005 SCC 82 at para 27 [“May v Ferndale”]. See also, British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 228 at para 101 [“BCCLA v Canada”].

^[12] Canada, Office of the Correctional Investigator, Annual Report 2023-2024, (Ottawa, Public Works and Government Services Canada, 2024) at 3.

^[13] BCCLA v Canada at paras 163-167, 170-172.

^[14] OCI 2021-2022 at 59. See also Mandela Rules, this convention prohibits indefinite or prolonged forms of involuntary separation of prisoners from the general prison population such as solitary confinement, isolation, segregation, special care units or restricted housing whether as disciplinary sanction or to maintain order and security. Further, prolonged solitary confinement is defined as confinement for a time period in excess of 15 days.

^[15] OCI, Annual Report 2021-2022, at 59: As per the OCI, Black individuals are overrepresented in SIUs, and more likely than their white counterparts to experience stays of 60 days or longer.

^[16] OCI 2021-2022 Report at 78-91; Canada, Office of the Correctional Investigator, Annual Report 2022-2023, (Ottawa, Public Works and Government Services Canada, 2023), at 112-123 [“OCI 2022-2023 Report”].

^[17] OCI, Annual Report 2021-2022, at 57.

^[18] OCI, Annual Report 2021-2022, at 57.

^[19] Dorsey, supra note 1, at para 45; see also Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 at para 17 [“Chinna”]; May v Ferndale, supra note 11, at para 77: The SCC affirms that a detention is only lawful when it is within the detaining body’s jurisdictional authority, the process is procedurally fair, and the decision is reasonable and Charter-compliant.

^[20] Dorsey, supra note 1, at para 2.

^[21] Dorsey, supra note 1, at para 6.

^[22] Dorsey, supra note 1, at para 45. Chhina, supra note 19, at para 17; May v Ferndale, supra note 11, at para 77

^[23] Ibid at para 49.

^[24] Ibid at para 38. See also Charter ss 7, 9, 10(c).

^[25] Dorsey, supra note 1, at para 72.

^[26] Ibid at para 71

^[27] Dorsey, supra note 1, at para 71.

^[28] Dorsey, supra note 1, at para 77.

^[29] CCRA s. 81. Canada, Office of the Correctional Investigator, Annual Report 2022-2023, (Ottawa, Public Works and Government Services Canada, 2022) at 55 [“OCI 2022-2023”].

^[30] John Howard Society v. Saskatchewan (AG), 2025 SCC 6.

^[31] Dorsey, supra note 1, at para 175.

^[32] Dorsey, supra note 1, at para 197.

^[33] Ibid at para 96.

^[34] Dorsey, supra note 1, at para 184.

^[35] Ibid at para 56.