Supreme Court of Canada rules inmates can challenge refusals to transfer to lower security prisons

Case on appeal sought to clarify if inmates can challenge decisions by senior officials to deny transfer when recommended by case management teams

Frank Dorsey and Ghassan Salah were serving time in a medium-security federal institution in Ontario when their case management teams in the prison recommended their transfer to minimum security.

Senior prison officials denied the transfer, so the two filed a write of habeas corpus in the Ontario Superior Court of Justice. Habeas corpus is the legal concept that allows a person who is detained or arrested to go before a judge to determine whether their detention is lawful.

The high court in Ontario said habeas corpus did not apply in these circumstances. The Court of Appeal for Ontario agreed and rejected their appeal, then the Supreme Court of Canada agreed to hear the appeal of that decision. In a 6-3 decision released Friday (Nov. 21, 2025) the high court overturned it, stating inmates in these circumstances have at least the right to question a refusal to transfer.

For Dorsey and Salah it's too late, moot in essence, because they've now been transferred to minimum security but the case cements the concept of residual liberty of men and women incarcerated in prisons.

The following is the Supreme Court Case in Brief of Dorsey v. Canada (Attorney General) reprinted with permission of the Supreme Court of Canada.

The Supreme Court of Canada rules that inmates can challenge a refusal to transfer them to a lower security prison.

In this case, the Supreme Court was asked whether a judge can review a refusal to move someone to a lower security prison because they are deprived of their liberty. Prisoners retain residual liberty, which is the level of freedom they have inside the institution. Security classification affects residual liberty because a higher security level means more supervision, limits on movement, and stricter daily routines. The law says that prisoners must be held in conditions that restrict their residual liberty as little as possible, in the circumstances.

Messrs. Dorsey and Salah were both serving their sentences in medium-security federal institutions. Their case management teams recommended that each be transferred to a minimum-security prison. Senior correctional officials rejected those recommendations, keeping the inmates in more restrictive conditions than their case management teams thought appropriate.

Messrs. Dorsey and Salah sought to reverse this decision in the Ontario Superior Court of Justice using habeas corpus. They argued that refusing to transfer them was an unlawful restriction on their liberty. Habeas corpus is a legal concept that requires a person under arrest to be brought before a judge to determine whether their detention is lawful. It allows a judge to review whether a person is being kept in more restrictive conditions than they should be in. The judge dismissed both applications, saying that habeas corpus could not be used to review this type of decision. The Court of Appeal agreed.

The Supreme Court allowed the appeal.

Denying a transfer to a lower security institution can be a deprivation of liberty.

Writing the reasons of the majority of the Supreme Court, Justice Moreau said that habeas corpus is meant to be a broad and accessible remedy that protects against unlawful restraints on liberty. In the prison context, an inmate’s security classification directly affects their residual liberty. Keeping an inmate in a higher security facility after wrongly denying their request for reclassification is an unlawful restriction on the inmate’s residual liberty.

Justice Moreau also explained that an inmate seeking habeas corpus must show a deprivation of liberty and raise a legitimate reason to question whether that restriction is lawful. If they show both elements, a judge must review the decision.

A Case in Brief is prepared by the communications team at the Supreme Court of Canada. You may read the entire judgment at www.scc-csc.ca.

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Paul J. Henderson
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