Federal inmates refused a lower security classification can use habeas corpus to challenge their continued confinement at a more restrictive level, the Supreme Court of Canada ruled in a 6–3 decision on November 21, 2025. They do not first need formal recognition of a right to the lower classification.
The decision in Dorsey v. Canada (Attorney General), 2025 SCC 38, resolved a threshold question about access to judicial review of detention. It did not order either appellant transferred or released from prison. Frank Dorsey and Ghassan Salah had both been reclassified and moved to minimum-security facilities before the Supreme Court hearing.
Writing for the majority, Justice Mary Moreau held that continued detention under more restrictive conditions can deprive an inmate of liberty even when nothing has changed in the inmate’s formal status. A prisoner need not first experience the greater freedom being sought to challenge allegedly unlawful restrictions.
A dispute about the courthouse door
Both men sought reclassification from medium to minimum security in 2019. Dorsey’s case management team, assessment manager and warden supported the move, but a regional official refused it after assessing a moderate public-safety risk. Salah initially received support from his case management team, but a new assessment manager identified a moderate escape risk and the warden refused his request.
The men brought habeas corpus applications in Ontario’s Superior Court. That procedure allows a court to examine whether detention is lawful. The application judge, and a majority of the Ontario Court of Appeal, concluded that it was unavailable in these circumstances because the refusals had not changed the men’s existing conditions or denied an already acquired entitlement to greater liberty.
Dorsey was subsequently approved for reclassification and transfer in October 2021; Salah was reclassified and transferred in May 2024. Their appeal was therefore moot by the time it reached the Supreme Court. The Court nevertheless heard it because the issue was of public importance.
Liberty inside prison
The majority’s analysis centred on the freedom a person retains while incarcerated. Different security levels impose materially different constraints. Moreau reasoned that an inmate unlawfully kept at a higher security level can suffer the same deprivation as someone unlawfully transferred to that level.
The comparison concerns actual physical constraints, rather than classification labels alone. Whether a refusal deprives someone of liberty depends on the circumstances; an insignificant or trivial limitation does not qualify. The majority pointed to the effects security placement can have on correctional programs, family visits, work opportunities and eventual reintegration into the community.
Access to habeas corpus is not a finding that the requested transfer must occur. The applicant must first establish a deprivation of liberty and then raise a legitimate ground for questioning its lawfulness. That ground must have some basis in both fact and law. Once those requirements are met, the burden shifts to the state to justify the detention as lawful.
Potential grounds include an unfair process, a decision outside the authority of correctional officials, or an unreasonable decision that is arbitrary or lacks an evidentiary foundation. The majority treated this second stage as a meaningful screen against unsupported claims. The Court did not decide whether Dorsey or Salah had met that requirement, given that their individual disputes were moot.
The majority also rejected the argument that internal grievance procedures or Federal Court judicial review displaced habeas corpus. It emphasized the remedy’s ability to address the lawfulness of detention as a whole and its importance as an accessible and timely means of protecting liberty.
Review does not guarantee a move
The majority distinguished access to a hearing from the relief available after the full record is examined. Correctional Service Canada can present evidence explaining why the inmate’s security classification remains justified, even where a particular decision is the focus of the challenge.
A successful application in this setting concerns release to a less restrictive facility, not release from the prison sentence. Moreau said courts can impose conditions and, depending on the circumstances and the overall legality of the detention, maintain the existing classification. The ruling therefore did not make a defect in a reclassification decision an automatic ticket to minimum security.
Three judges would have kept a narrower rule
Justices Suzanne Côté and Malcolm Rowe, joined by Justice Mahmud Jamal, dissented. They would have required an existing legal entitlement to greater liberty before habeas corpus could challenge a refusal to reduce security. In their view, the men’s unchanged classifications did not establish the necessary deprivation of liberty.
The dissent considered internal grievances and Federal Court judicial review the appropriate routes for these disputes. It warned that the majority’s broader approach could draw courts into correctional administration, increase litigation over prison conditions and weaken the urgency associated with habeas corpus. Those were concerns about the consequences of the new approach, not findings about its effects after the judgment.
The dissent also questioned whether the requirement to raise a legitimate ground would effectively filter claims and disputed the majority’s account of remedial flexibility. The disagreement went beyond the two appellants: it concerned how courts should distinguish unlawful restraint from administrative decisions about prison management.
The majority allowed the appeal but made no further order because both men had already obtained the reclassifications and transfers at issue. It made no costs order. The practical change was access to a legal remedy for inmates alleging unlawful continued confinement at a higher security level, with the lawfulness of any individual case still to be established.
