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Habeas Corpus - Exceptions. Dorsey v. Canada (Attorney General)
In Dorsey v. Canada (Attorney General) (SCC, 2025) the Supreme Court of Canada allowed inmate appeals, these brought against lower court dismissals finding against them on applications "for habeas corpus ad subjiciendum with certiorari in aid, seeking orders that CSC either transfer them to minimum-security institutions or justify their continued detention in medium-security settings. Although their applications were not formally brought under the Canadian Charter of Rights and Freedoms, the appellants alleged that their continued classification engaged their ss. 7, 9, 10(c) and 12 Charter rights".
The court considers whether "a provincial superior court may decline to hear a habeas corpus application on its merits", under recognized exceptions:(2) No Barrier to Habeas Corpus Posed by Other Avenues of Review or Remedial Jurisdiction
[80] There are only two instances where a provincial superior court may decline to hear a habeas corpus application on its merits. The first is when a detainee attacks the legality of their conviction or sentence, which should be challenged through the appeal mechanisms set out in the Criminal Code, R.S.C. 1985, c. C-46 (Gamble, at p. 636). The second is when a “complete, comprehensive and expert scheme provides for review that is at least as broad and advantageous as habeas corpus with respect to the challenges raised by the habeas corpus application” (Chhina, at para. 40). In May, this Court made it clear that the internal grievance procedure made available under the CCRA for reclassification decisions is not a “complete, comprehensive and expert statutory scheme” (para. 63; see also paras. 62 and 64; Reza v. Canada, 1994 CanLII 91 (SCC), [1994] 2 S.C.R. 394, at p. 405). Nor can provincial superior courts decline jurisdiction in favour of Federal Court jurisdiction (May, at paras. 65-72).
[81] Neither of the parties argued that decisions denying security reclassification fall within one of the two jurisdictional exceptions. This case is not about concurrent jurisdiction, nor is it about the scope of review for assessing the legality of the deprivation. Instead it hinges on the narrow issue of whether a particular security reclassification outcome is capable of triggering threshold access to the writ (R.F., at para. 88). Nevertheless, the respondent argues that inmates denied lower security reclassification still have several avenues available for remedying their continued detention, such as CSC’s internal grievances procedure and judicial review in Federal Court.
[82] This argument has no bearing on whether habeas corpus is available to review decisions rejecting lower security reclassifications. As stated in May:The proper scope of the availability of habeas corpus must be considered first on its own merits, apart from possible problems arising from concurrent or overlapping jurisdiction. The general importance of this remedy as the traditional means of challenging deprivations of liberty is such that its proper development and adaptation to the modern realities of confinement in a prison setting should not be compromised by concerns about conflicting jurisdiction. [Emphasis deleted.]
(para. 31, quoting Miller, at p. 641.) The denial of a lower security classification constitutes a deprivation of liberty and therefore falls within the proper scope of a habeas corpus review on the merits. I note that the decision of whether a statutory scheme constitutes a “complete, comprehensive and expert statutory scheme for review that is at least as broad and advantageous as habeas corpus” is also context-dependent (Chhina, at para. 40). The availability of other forms of relief is not an impediment to the availability of habeas corpus (see May, at paras. 65-72; Khela, at paras. 43-49; Chhina, at paras. 64-67).
[83] Moreover, the alternative forms of relief may be inadequate for inmates who have been denied lower security reclassifications because they lack a timely, independent review and the effective remedy of release to a lower security facility. This Court has consistently held that the writ of habeas corpus in provincial superior courts is more advantageous to detainees in comparison to judicial review in Federal Court (see May, at paras. 65-72; Khela, at paras. 43-49; Chhina, at paras. 64-67). The following differences are often highlighted: (1) a habeas corpus application can be reviewed more rapidly (often within a week) whereas judicial review can only be commenced in Federal Court 160 days following the impugned decision (Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1(2); Federal Court Rules, SOR/98-106, rr. 301 to 314); (2) the remedy following a successful judicial review in Federal Court will generally be an order for redetermination, not release — there is no history of mandamus being used by the Federal Court to release a detainee (see Chhina, at para. 65); (3) the scope of review in habeas corpus is broader as it reviews the legality of the detention as a whole, rather than one particular administrative decision (see para. 64); (4) judicial review is discretionary and the onus remains on the applicant to prove unlawfulness, unlike the shifting onus at the third stage of the habeas corpus analysis; and (5) there is greater local access to provincial superior courts (Khela, at para. 47).
[84] The respondent also argues that provincial superior courts lack the remedial jurisdiction to order that inmates be placed in a lower security institution where they have never previously been housed. This is because provincial superior courts lack jurisdiction over certiorari, mandamus, or declaratory relief in relation to federal administrative bodies (R.F., at paras. 80-83).
[85] This argument adopts a very narrow understanding of habeas corpus relief that is contrary to this Court’s jurisprudence.
[86] First, while a provincial superior court does not have an inherent discretion to refuse to conduct a review of a habeas corpus application, there is discretion at the third stage of the proceeding, after a judge has reviewed the record (Khela, at para. 78). Habeas corpus is the review of the legality of the detention, and while the lawfulness of a particular decision may be the focal point of the review, the state can tender evidence as to why an applicant should nevertheless not be discharged. I agree with the intervener, the John Howard Society of Canada, that CSC may lead evidence with respect to the substantive overall legality of the detention and the judge can consider this evidence when determining whether to grant the remedy of release (transcript, at pp. 99-100).
[87] Second, while release remains the standard remedy for habeas corpus, courts are empowered under their inherent jurisdiction to attach strict conditions to such release. As Justice Sharpe explained in Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220:I do not accept the general proposition . . . that a judge has never had authority to impose conditions when granting habeas corpus. I agree with the submission . . . that such a rigid view would unduly impair the inherent powers of the Superior Court to ensure that its orders are effective. It would also be inconsistent with the need to ensure that the fundamental common law and constitutional right to habeas corpus remains a flexible and effective remedy. [para. 47] [88] In keeping with the flexible nature of habeas corpus, courts have crafted tailored conditions on release to reflect the specific circumstances before them. Upon determining that a decision denying an inmate’s lower security classification is unlawful, a court retains discretion to order release to a less restrictive facility (with or without conditions) or, depending on the circumstances, maintain the inmate’s present classification. For example, in Ogiamien, conditions were placed on the applicant’s release because “outright or unconditional release would be inappropriate” (para. 48; see also para. 49). Likewise, while the court in Leinen v. Mission Institution (Warden), 2025 BCCA 257, rejected the imposition of conditions designed solely to avoid administrative inconvenience, it agreed that judges could impose conditions on release to address public safety concerns and promote respect for the law (para. 64).
[89] In sum, the availability of the writ is not circumscribed by alternative avenues of redress, and this Court has previously found that alternative paths are neither timely nor provide as effective relief as habeas corpus. The remedy following a successful application is release to a less restrictive security facility, but CSC may tender evidence during the third stage of habeas corpus application as to why a specific security classification is nonetheless justified and judges retain discretion to not discharge an applicant. Finally, as both a right and remedy, habeas corpus has always been flexible and adaptable to contemporary deprivations of liberty. Lower courts retain the ability to craft appropriate conditions when granting relief. . Canada (Public Safety and Emergency Preparedness) v. Chhina
In Canada (Public Safety and Emergency Preparedness) v. Chhina (SCC, 2019) the Supreme Court of Canada set out two exceptions to where the Superior Court has jurisdiction to consider habeas corpus:[1] The writ of habeas corpus is an ancient legal remedy that remains fundamental to individual liberty and the rule of law today. Dating back to the 13th century, this writ guarantees the individual’s protection from unlawful deprivations of liberty. Entrenched in s. 10(c) of the Canadian Charter of Rights and Freedoms, the right to habeas corpus permits those in detention to go before a provincial superior court and demand to know whether the detention is justified in law. If the relevant authority cannot provide sufficient justification, the person must be released.
[2] Despite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability. First, a provincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in the Criminal Code, R.S.C. 1985, c. C-46 (see R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, at pp. 636-37). Second, a provincial superior court should also decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 40). This second exception has come to be known as the Peiroo exception (see Peiroo v. Canada (Minister of Employment and Immigration) (1989), 1989 CanLII 184 (ON CA), 69 O.R. (2d) 253 (C.A.)).
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[25] To date, this Court has recognized only two instances where a provincial superior court may decline to hear a habeas corpus application. The first allows a provincial superior court to decline jurisdiction where a prisoner seeks to attack the legality of their conviction or sentence, determinations properly challenged through the appeal mechanisms set out in the Criminal Code (Gamble, at p. 636). The second exception arose in the field of immigration law. In Peiroo, the applicant sought issuance of a writ of habeas corpus with certiorari in aid, contesting a finding that there was no credible basis for her refugee claim and arguing that there was therefore no basis for a removal order issued against her. The Ontario Court of Appeal found that the Immigration Act, R.S.C. 1985, c. I-2, then in force established a comprehensive scheme regulating the determination and review of immigration claims in a manner that was “as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid” (Peiroo, at p. 261).
[26] Both of these exceptions acknowledge the development of sophisticated procedural vehicles in our modern legal system and their ability to fully protect fundamental rights such as habeas corpus.
[27] Statutory appeals in criminal matters, previously circumscribed by the common law writs of certiorari and error, were introduced some 500 years after habeas corpus (V. M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L.R. 446, at p. 448). Although the Court affirmed the Criminal Code exception in the context of a Charter challenge in Gamble, the rule pre-empting habeas corpus applications where a statutory appeal is available long pre-dates the Charter (see: In re Trepanier (1885), 1885 CanLII 66 (SCC), 12 S.C.R. 111; In re Sproule (1886), 1886 CanLII 51 (SCC), 12 S.C.R. 140, at p. 204; Goldhar v. The Queen, 1960 CanLII 65 (SCC), [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, 1965 CanLII 94 (SCC), [1966] S.C.R. 356; Karchesky v. The Queen, 1967 CanLII 92 (SCC), [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, 1980 CanLII 207 (SCC), [1980] 2 S.C.R. 265).
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A. Determining When the Exception Applies
[41] How, then, does a court determine whether there is “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” such that an applicant will be precluded from bringing an application for habeas corpus (May, at para. 40)?
[42] First, it is necessary to ask upon what basis the legality of the detention is being challenged. In other words, what are the grounds in the applicant’s habeas corpus application? Reference to the categories in Dumas may be helpful to this inquiry. Is the applicant challenging an initial decision that resulted in detention, such as a removal order? Are they challenging the conditions of their detention? Or are they challenging the length and uncertain duration of their detention? Precisely delineating the grounds for the habeas corpus application is necessary in order to determine whether there is an effective statutory remedy to address those grounds.
[43] Second, it is necessary to ask whether there is a complete, comprehensive and expert scheme that is as broad and advantageous as habeas corpus in relation to the specific grounds in the habeas corpus application. Elements of the IRPA detention review scheme may speak to whether the scheme is complete, comprehensive and expert. However, the main issue in this case, and the focus of the parties’ submissions, is whether IRPA review is as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina challenged the legality of his detention. In this inquiry, it may be helpful to look at whether a statutory scheme fails entirely to include the grounds set out in the application for habeas corpus. If so, the scheme will not be as broad and advantageous as habeas corpus. The scheme will also fail to oust habeas corpus if it provides for review on the grounds in the application, but the review process is not as broad and advantageous as that available through habeas corpus, considering both the nature of the process and any advantages each procedural vehicle may offer.
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[71] Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention. A provincial superior court should decline its habeas corpus jurisdiction only when faced with a complete, comprehensive and expert scheme which provides review that is at least as broad and advantageous as habeas corpus with respect to the grounds raised by the applicant. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 28). The IRPA has been held to be a complete, comprehensive and expert scheme for immigration matters generally, but it is unable to respond to Mr. Chhina’s challenge in a manner that is as broad and advantageous as habeas corpus and the Alberta Court of Queen’s Bench erred in declining to hear Mr. Chhina’s habeas corpus application. For these reasons, I would allow the motion to adduce new evidence and dismiss the appeal with costs on the basis agreed by the parties. . Wang v Canada
In Wang v. Canada (Ont CA, 2018) the court states exceptions to the application of the common law writ of habeas corpus:[17] As referenced in May, there are two exceptions to the availability of habeas corpus. One is where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court and to release the affected person, if necessary. The other is where a legislator has put in place a complete, comprehensive and expert procedure for review of an administrative decision affecting a person’s liberty.
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