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Habeas Corpus - Procedure. 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".
Here the court reviews procedural steps of habeas corpus applications:B. Legal Framework for Habeas Corpus Applications
[36] The criteria for a successful habeas corpus application are well established, requiring (1) a deprivation of liberty and (2) that the deprivation be unlawful (Khela, at para. 30).
[37] The application for habeas corpus proceeds in three stages.
[38] As a threshold matter, legal access to the writ requires that an applicant establish that they have been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful (Khela, at para. 30; Farbey and Sharpe, at p. 85; May, at para. 74). If the applicant meets this onus, the onus for establishing the lawfulness of the deprivation of liberty shifts to the detaining authority (May, at para. 74; Khela, at para. 30). As stated by this Court in Khela, this shifting onus plays a crucial and historically significant role in habeas corpus applications:This particular shift in onus is unique to the writ of habeas corpus. Shifting the legal burden onto the detaining authorities is compatible with the very foundation of the law of habeas corpus, namely that a deprivation of liberty is permissible only if the party effecting the deprivation can demonstrate that it is justified. [para. 40] [39] Lastly, inmates may apply for certiorari in aid of habeas corpus, which permits the institutional decision-making record to be brought before the judge (Khela, at para. 35).
(1) Stage One: Deprivation of Liberty
[40] In Dumas, this Court outlined three possible deprivations of liberty within the correctional context: “. . . the initial deprivation of liberty, a substantial change in conditions [of confinement] amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty” (p. 464). This appeal focuses on the third category, a “continuation” of liberty deprivation. Examples of continued deprivations — both in and outside the carceral context — can be found in Chhina and Cardinal, where the initial detention was valid, but due to the extended length or uncertainty of the duration of the detention, it became unlawful. As the Court confirmed in Dumas, it is only if the continuation of an initially valid deprivation of liberty becomes unlawful that it can be challenged by way of habeas corpus (ibid.). The third Dumas category is assessed on temporal length, unlike the first and second categories which are grounded in a sudden change in the status quo.
[41] I note that these categories are not exhaustive, but rather they assist “in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order” (Chhina, at para. 23). This Court has applied these categories broadly to frame a particular type of deprivation, but the actual analysis of whether a deprivation has occurred must always be undertaken from a qualitative perspective (R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, at p. 644). As stated in Gamble, any distinctions regarding the availability of habeas corpus review that are “uncertain, technical, artificial and, most importantly, non-purposive should be rejected” (p. 640).
[42] Within the carceral context, a deprivation of liberty is always relative, often dealing with various restrictions on an inmate’s residual liberty. As emphasized in Miller, “a prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution” (p. 637 (emphasis added)).
[43] Establishing the first element of a habeas corpus application therefore requires that an inmate prove that their current state of confinement is more restrictive of their liberty than the state of confinement they allegedly ought to be in. For example, an inmate in segregation is deprived of his liberty relative to those inmates not placed in segregation. The case law has now recognized certain obvious relative restrictions as between states of confinement, such as segregation in contrast to general population and the tiered restrictions on liberty as between minimum-, medium-, and maximum-security federal facilities (see, e.g., Cardinal, May, and Khela).
[44] The writ of habeas corpus exists to release a person from an unlawful deprivation of their liberty. Care must be taken not to lose sight of this objective. The first stage functions to filter out frivolous claims where there is no qualitative difference in liberty as between two states of confinement. All applications for habeas corpus, irrespective of a particular Dumas category, face further filtering at the second stage: raising a legitimate ground to question the lawfulness of the deprivation of their liberty.
(2) Stage Two: Legitimate Ground for Questioning the Lawfulness of the Deprivation of Liberty
[45] Once an applicant has proven a deprivation of their liberty, they must next raise a legitimate ground for questioning the legality of their current state of liberty deprivation. In order for a detention to be lawful, the decision maker must have jurisdictional authority to order the detention, the decision-making process must be procedurally fair, and the decision to detain must be both reasonable and Charter-compliant (Chhina, at para. 17; May, at para. 77). A detention will be unreasonable if it is arbitrary or lacking an evidentiary foundation (Khela, at para. 67).
[46] With respect to the second stage, the applicant must establish a basis for the alleged grounds of unlawfulness. This means that, as preliminary matter, the applicant’s allegations and grounds pleaded must disclose some basis in fact and law that would allow the court to conclude that the continued deprivation of liberty is unlawful (see Khela, at para. 41; May, at para. 33).
[47] It bears repeating that the writ of habeas corpus is non-discretionary, meaning that “the matter must proceed to a hearing if the inmate shows some basis for concluding that the detention is unlawful” (Khela, at para. 41 (emphasis in original)). Therefore, if an inmate “raise[s] an arguable issue there is no room for discretion: the matter should proceed to hearing so that a full and proper determination can be made” (Farbey and Sharpe, at p. 53).
[48] Both appellants initially sought relief pursuant to Ontario’s Habeas Corpus Act, R.S.O. 1990, c. H.1. I should point out that s. 1(1) of the Act requires “reasonable and probable ground for the complaint” as opposed to requiring a “legitimate ground” for questioning the legality of the deprivation of liberty. Whether these requirements are conceptually different, or impose a different burden on the applicant, is not a question before this Court. As such, a technical analysis of the implications of this linguistic difference is not necessary to resolve this appeal. As neither of the parties presented arguments on this subject, I will refrain from further comment.
(3) Stage Three: Burden Shifts to Detaining Authority To Justify the Detention
[49] After the applicant has discharged the burden of (1) establishing a deprivation of liberty and (2) raising a legitimate ground to question the lawfulness of that deprivation, the onus shifts to the detaining authority to prove the deprivation was lawful.
[50] Although this appeal is concerned solely with access to habeas corpus where a reclassification request is refused, I note with respect to the ultimate merits that it is for the hearing judge to determine whether a particular breach of the CCRA is unfair or whether a decision was truly unreasonable, having reviewed the full evidentiary record. As this Court stated in Khela, “not all breaches of the CCRA or the CCRR will be unfair. . . . [T]he reviewing judge must determine whether that error or that technicality rendered the decision procedurally unfair” (para. 90). Likewise, decisions are not unreasonable merely because certain indicia point in the opposite direction, and it is for a hearing judge, with access to the full record, to make a holistic determination (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 102 and 105). . R. v. Codina
In R. v. Codina (Ont CA, 2021) the Court of Appeal considered a habeas corpus application:[2] There are two stages in determining whether a habeas corpus application should be granted. First, the court must determine whether reasonable and probable grounds exist for the complaint. Second, if the court is satisfied that the grounds exist, then the application is heard on its merits: R. v. Olson, 1989 CanLII 120 (SCC), [1989] 1 S.C.R. 296, at p. 298. . Boone v Ontario (Community Safety and Correctional Services)
As to what the procedure is for habeas corpus, the court in Boone v Ontario (Community Safety and Correctional Services) (Ont CA, 2014) states:[43] First, once a deprivation of liberty has been shown, and the applicant has raised a legitimate ground on which to question its validity, the onus shifts to the Crown to show that the deprivation was lawful. Secondly, where a deprivation of liberty has occurred, and a legitimate ground to question its validity has been raised, the hearing judge must proceed to a hearing; there is no discretion to do otherwise. Finally, the hearing judge retains a “residual discretion” at this second stage of the proceedings to decide, after reviewing the record, whether to discharge the applicant: see Khela, at paras. 30 and 78.
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[45] It is true that habeas corpus is a remedy that issues as of right (ex debito justitiae) once the unlawful nature of the detention is established. It cannot be denied because another, equally effective remedy – such as judicial review – exists. That was the issue debated in May and Khela. As LeBel J. affirmed in Khela, however, the non-discretionary nature of the writ relates to whether the applicant has raised a legitimate basis for questioning the legality of the detention, not to the ultimate determination of whether, on the whole of the record, the unlawful nature of the detention is established. There remains a residual discretion in this regard. At paras. 77 and 78, he said:First, the traditional onuses associated with the writ will remain unchanged. Once the inmate has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer was reasonable in light of all the circumstances.
Second, the writ remains non-discretionary as far as the decision to review the case is concerned. If the applicant raises a legitimate doubt as to the reasonableness of the detention, the provincial superior court judge is required to examine the substance of the decision and determine whether the evidence presented by the detaining authorities is reliable and supports their decision. Unlike the Federal Court in the context of an application for judicial review, a provincial superior court hearing a habeas corpus application has no inherent discretion to refuse to review the case (see Farbey, Sharpe and Atrill, at pp. 52-56).[4] However, a residual discretion will come into play at the second stage of the habeas corpus proceeding, at which the judge, after reviewing the record, must decide whether to discharge the applicant. [46] Where there has been a denial of the right to a fair hearing, the administrative decision will always be unlawful. However, not all procedural breaches will necessarily result in procedural unfairness and the denial of the right to a fair hearing: see Khela, at para. 90; Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent), 2010 ONCA 856 (CanLII), 2010 ONCA 856, at paras. 65-67; and Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KG (F.C.A.), 2006 FCA 398 (CanLII), 2006 FCA 398, [2007] 4 F.C.R. 101, at para. 24. . Brown v. Canada (Public Safety)
In Brown v. Canada (Public Safety) (Ont CA, 2020) the Court of Appeal emphasized that a habeas corpus application should normally be considered promptly:[19] Although I acknowledge that superior courts have broad discretion as to the scheduling of proceedings, they should not combine the hearing of both a habeas corpus application and a Charter damages application, as was done here.
[20] Because of the importance of the interests at stake, habeas corpus is intended to be a manner of quickly resolving the issue of the lawfulness of a person’s deprivation of liberty: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 69. Courts are to give priority to such applications as they are deemed to be urgent.
[21] If, as here, a habeas corpus application is allowed to be joined with a claim for Charter damages, it distorts what is otherwise intended to be an expeditious process. It inevitably results in significant delays to the hearing of the habeas corpus application and gives the Charter damages claim a higher priority for hearing than it would otherwise receive. . Wang v Canada
In Wang v Canada (Ont CA, 2018) the court comments on procedure as follows:[24] This conclusion is also consistent with the proper approach to be taken to habeas corpus applications. As pointed out in Mission Institution v. Khela, 2014 SCC 24 (CanLII), [2014] 1 S.C.R. 502 at para. 30, habeas corpus applications proceed in two stages. First, the applicant must show that he or she has been deprived of liberty and that there is a legitimate ground upon which to question the legality of the detention. If the applicant succeeds in meeting that threshold, the onus shifts to the authorities to show that the deprivation of liberty is lawful.
[25] It is the first stage that we are concerned with in this case. Importantly, the first stage is not described as requiring the applicant to be detained in custody, or to be incarcerated, or to be held in a custodial facility, or any other such language. The key to the first stage is simply, but crucially, a deprivation of liberty. ... . Forster v Canada (Correctional Services)
In Forster v. Canada (Correctional Service) (Ont CA, 2019) the court discussed a complex habeas corpus case where the matter was really criminal but was advanced under the Rules of Civil Procedure:C. Analysis
[11] The importance of habeas corpus can hardly be understated. The right to test the validity of one’s detention by habeas corpus is guaranteed by s. 10(c) of the Charter. The scope of the protection afforded by this right is complex and has required guidance from the Supreme Court of Canada on many occasions. In May v. Ferndale Institution, 2005 SCC 82 (CanLII), [2005] 3 S.C.R. 809, the Court held that there is a limited power in the Superior Courts to decline to exercise habeas corpus jurisdiction. LeBel and Fish JJ. wrote, at para. 44:Habeas corpus should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court….Only in limited circumstances will it be appropriate for a provincial superior court to decline to exercise its jurisdiction. For instance, in criminal law, where a statute confers jurisdiction on a court of appeal to correct a lower court and release the applicant if need be, habeas corpus will not be available…Jurisdiction should also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision. [Emphasis added.] In para. 68 of his reasons, the application judge relied on May as a basis for “declining to hear this case.”
[12] Declining to exercise habeas corpus jurisdiction is different from striking out an application on a summary basis. In Mission Institution v. Khela, 2014 SCC 24 (CanLII), [2014] 1 S.C.R. 502, at para. 78, the Court held that “[u]nlike the Federal Court in the context of an application for judicial review, a provincial superior court hearing a habeas corpus application has no inherent discretion to refuse to review the case.” Stated differently, “if the prisoner does raise an arguable issue there is no room for discretion: the matter should proceed to hearing so that a full and proper determination can be made. The non-discretionary nature of habeas corpus is an important difference between it and other prerogative writs:” Judith Farbey, Robert J. Sharpe and Simon Atrill, The Law of Habeas Corpus, 3rd ed. (New York: Oxford University Press, 2011), at p. 53.
[13] As noted above, the respondent relied on the civil rules as the foundation for its pre-emptive motion to strike this habeas corpus application. However, this reliance was misplaced in a number of respects. First, the respondent relied on r. 21.01(3)(a) – “lack of jurisdiction over the subject matter.” However, it would appear that the application judge did not apply this sub-rule. Instead, he found that it was “plain and obvious” that the appellant’s claim could not succeed. This language – “plain and obvious” – is more appropriate to r. 21.01(1)(b), which governs a “motion to strike out a pleading on the ground that it discloses no reasonable cause of action or defence”: see Paton Estate v. Ontario Lottery and Gaming Commission, 2016 ONCA 458 (CanLII), 131 O.R. (3d) 273, at para. 12; and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at paras. 17-22.
[14] More profoundly, neither civil rule was applicable in the circumstances of this case. This habeas corpus application was criminal in nature; it arises directly from the imposition of a penal sanction under the Criminal Code: see Vukelich v. Mission Institution, 2005 BCCA 75 (CanLII), 252 D.L.R. (4th) 634, at para. 32. Accordingly, this application was governed by the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 (“the criminal rules”). Rule 43 provides the foundation for prerogative relief applications, including habeas corpus.
[15] On appeal, the respondent’s position has shifted. It now relies on a number of criminal rules (rr. 1.04(1), (2), 2.01, and 6.11). Moreover, the respondent attempts to fortify its position by invoking R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631, stressing the need to prevent the criminal courts from becoming clogged by unmeritorious cases such as the appellant’s.
[16] The criminal rule that is most applicable to these proceedings is r. 6.11(2), which provides:Upon application by the respondent that a notice of application does not show a substantial ground for the order sought, a judge of the court may, if he or she considers that the matter is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily and cause the applicant to be advised accordingly.[1] [Emphasis added.] [17] This rule sets the bar quite high. The application must fail to show a “substantial ground for the order sought”; it must be “frivolous and vexatious”; and it must be capable of being determined “without a full hearing.” Even if these criteria are met, the power to dismiss remains discretionary. The test for dismissal under r. 6.11(2) differs substantially from, and is more onerous than, the tests under r. 21.01(1)(b) and r. 21.01(3)(a) of the civil rules. Moreover, unlike the r. 21.01 tests, the test under s. 6.11(2) contemplates summary dismissal without notice to the applicant – in other words, an application so devoid of merit it can be disposed of ex parte.
[18] In my view, it cannot be said that the appellant’s claim “does not show a substantial ground” or that it is “frivolous or vexatious”, for the following three reasons. First, when his previous habeas corpus application was terminated, it was “without prejudice” to commencing a new application. The appellant did just that by launching his new application. The new application is not, therefore, vexatious.
[19] Second, the appellant raises grounds that are arguably unique, operating outside of the Lyons/Gamble/Sarson/Gallichon framework. The appellant’s habeas corpus claims do not challenge the legality of his continued detention on the basis of legislative shifts; instead, he argues that the initial warrant of committal was invalid at the time it was issued.
[20] Third, whether the appellant could have raised these complaints at his 1995 appeal from sentence is not a foregone conclusion; it is a live issue, the resolution of which may well turn on the scope of this court’s dispositional powers under s. 759 of the Criminal Code that were in force at the time of the 1995 appeal.
[21] I return to the authorities (in para. 9, above) that were urged on the application judge by the respondent in support of its motion to strike. They have no application to this case. Those decisions involved prisoners seeking habeas corpus relief in response to lateral transfers between maximum security institutions. In each case, it was determined that there was no cognizable deprivation of liberty for habeas corpus purposes. This is very different from the situation faced by the appellant who, after 30 years, seeks to challenge the legality of his initial and continued detention as a dangerous offender.
[22] I acknowledge that the application judge provided detailed reasons for his decision. He grappled with the merits of the application. However, his judgment was rendered in response to a motion for summary dismissal, predicated on inapplicable civil rules. Given the unique nature of the appellant’s habeas corpus application, it was neither expedient nor in the interests of justice to short circuit his application through a procedure not contemplated by the criminal rules.
[23] The appellant argues that, if the application judge erred in striking his application, this court should consider the habeas corpus claim on the merits and grant him the relief that he seeks. The respondent resists this approach. It claims that the case cannot be decided on the merits because the record is incomplete. The respondent wishes to adduce evidence in support of its position.
[24] Even though the record is incomplete as a result of the respondent’s misplaced motion to strike, I would not be prepared to adjudicate on the merits of the appellant’s claim on the record that is presently before this court, and without the benefit of any further findings that a judge may make after a full hearing on the merits.
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