Top court says federal prisoners can challenge security transfer denials before judge

The Supreme Court of Canada has ruled federal inmates can challenge the refusal to transfer them to lower security prisons on the grounds their liberty is deprived. 

In a six-to-three ruling, the high court said federal prisoners may access a hearing, known as habeas corpus, to argue before a judge that the conditions they’re imprisoned in are too restrictive.

The case was filed by two federal prisoners who were denied transfers from medium- to minimum-security prisons. The move was recommended by both of their case-management teams, but denied by senior correctional officials. 

The inmates, named Frank Dorsey and Ghassan Salah, tried to overturn their security reclassification rejections in the Ontario Superior Court of Justice. The judge dismissed both applications, saying habeas corpus could not be used in their situation. The Court of Appeal for Ontario agreed.

The Supreme Court of Canada overturned those lower court decisions on Friday with the majority finding that denying an inmate the ability to be transferred to a lower security facility is a deprivation of liberty and that the deprivation is unlawful.

“Broad and effective access to habeas corpus is paramount for those who suffer an unlawful and continued deprivation of their residual liberty and seek to challenge the legality of their confinement,” the judgement said. 

“The courts below erred in holding that an applicant must first prove an ‘entitlement’ to the less restrictive state in order to establish a deprivation of liberty.”

The decision comes too late to change circumstances for Dorsey and Salah, who had been transferred to minimum-security prisons by the time the top bench heard their case last spring.

But the ruling is expected to have broad implications for other federal inmates, who want to challenge the denial of security reclassifications, and could help address systemic discrimination within the federal prison system. 

“It’s a big day,” said Nora Demanti, a prison lawyer based in Montreal. 

“This decision comes with a lot of excitement.… It ultimately facilitates access to justice for a very vulnerable segment of the population.”

Previously available recourse could take years

Before the decision, the only recourse available to federal inmates whose security reclassifications were refused was a grievance followed by a judicial review in Federal Court — a process that could take years.

With the high court’s decision, federal prisoners can now go to superior court within a matter of weeks and bring a habeas corpus application to have that decision scrutinized. 

Even though the dissent disagreed, the majority of the top bench said its ruling won’t open the floodgates for prisoner transfers because it said inmates must raise legitimate grounds to question the denial of their requests. 

The Correctional Service of Canada (CSC) will also be compelled to explain its decisions more thoroughly. 

“The scrutiny that comes from a hearing with a judge, we hope, will change the quality of that justification and force administrators to think more carefully and to explain more carefully the basis of their decisions,” said Jessica Orkin, counsel for Dorsey and Salah, and partner at Goldblatt Partners LLP.

Legal advocates say the decision may shed light on why Black, Indigenous and other racialized prisoners are more likely to be placed in maximum security institutions on initial intake and less likely to cascade down to lower security prisons as quickly, according to the Office of the Correctional Investigator. 

Dorsey is Black and Salah is Jordanian.

“I’m hoping that this provides the opportunity for us to feel emboldened to take on these matters, to assist these prisoners, to question these decisions,” said Demar Kemar Hewitt, executive director and general counsel at the Black Legal Action Centre, which intervened in the case. 

“One by one, we chip away at the disadvantage that racialized inmates are facing in the provincial and federal institutions.”

The CSC said it regularly assesses the risks of all offenders to ensure they are placed at the appropriate security level.

“The safety and security of our institutions and the public are paramount when making decisions about inmate classification,” the CSC said in a statement sent to CBC News.

“All transfers of inmates to lower levels of security occurs only after CSC has duly considered public safety.”

The CSC added it is reviewing the decision and unable to comment further.