The Supreme Court of Canada recently issued a very significant decision in its judgement of the case of Dorsey v. Canada (aka the Attorney General) that expanded prisoners’ rights regarding their movement and security classification. In its decision, the court ruled that federal inmates can use the writ of habeas corpus to challenge a refusal to transfer them to a lower-security prison.
Before the Supreme Court’s ruling, an inmate’s only recourse to a refusal of their application to be moved to a different prison followed an internal grievance process that was then followed by a lengthy judicial review in federal court.
The Dorsey decision introduces the option to use habeas corpus, a legal action that allows an individual to appear before a judge to challenge the legality of their detention or confinement. Habeas corpus provides a swifter and more robust review process.
Habeas corpus is a fundamental pillar of our democratic legal system, ensuring that freedom and liberty are not curtailed without recourse to appeal. It is a legal procedure that requires a person to be brought before a court to determine if their detention is lawful. Habeas corpus is Latin for: “you have the body.” It was established in 1679 in England and protects against unlawful imprisonment by giving a judge the power to review the justification for a person’s detention. If the court finds the detention unlawful, the individual can be released or have their conditions of detention changed.
In its decision, the court affirmed that prisoners do not lose all rights when they enter prison as punishment for a crime. Prisoners, the court maintains, retain “residual liberty,” a degree of freedom they continue to have while in a correctional institution. The judge notes that a security classification directly impacts those liberties, as a higher security level imposes more supervision, restrictions on movement and stricter daily routines.
This Supreme Court ruling establishes that a senior prison official’s decision to deny a transfer recommendation by a case management team can now be challenged in a provincial superior court. The current system is too arbitrary and places too much unchecked power in the hands of those officials.
Legal advocates suggest the decision could help address systemic discrimination within the federal prison system, as Black and Indigenous prisoners are statistically more likely to be placed in higher security institutions.
That being said, the spectre of a notorious serial killer such as Paul Bernardo being allowed to transfer to a lower security prison environment must never be countenanced. The challenge referenced in the Dorsey case resulted from the decision of a senior prison official to disregard the recommendation of a case management team to move a three-time murderer to a medium security prison. Such a move raised obvious concerns from his victims’ families who fear the decision falling to the whim of a court judge who might be sympathetic to the prisoner’s request.
Too often victims (that is to include the families and friends of the victim) are left standing outside the system and the impact upon them of a cold and calculated decision by the courts are not taken properly into account.
In implementing the court’s decision in the Dorsey Case, the government must put in place robust safeguards to ensure the most heinous of criminals remain in the most secure facilities. Rehabilitation is an important, and too often underperformed aspect, of our penal institutions, but the science clearly indicates that some individuals cannot be “cured” of their sociopathy and therefore must remain securely locked up and away from open society.
