Federal Court Rejects Challenge to Transgender Inmate's Male Institution Transfer

OUTCOME: Dismissed

Date: 20260714 Docket: T-3278-25 Citation: 2026 FC 948 Ottawa, Ontario, July 14, 2026 PRESENT: The [NAME_1]: [NAME_3] Applicant and ATTORNEY GENERAL OF CANADA Respondent

REASONS AND

JUDGMENT I. Overview [ 1 ] The Applicant [NAME_3] is a post-operative transgender federal inmate who, since 2001, is incarcerated indefinitely as a dangerous offender. Her security classification is maximum. [ 2 ] The dangerous offender or DO designation stems from [NAME_2]’s convictions and sentences for offences committed before she underwent gender-affirming surgery. The offences that [NAME_2] committed include sexual assault (4x), assault-use of force (3x), forcible confinement, and uttering threats. The offences were committed mostly against adult women, and one minor girl. Two of the convictions were for offences she committed while incarcerated. [NAME_2] was diagnosed with gender dysphoria in 2020 and underwent various gender-affirming surgeries in 2024 to construct a vulva, a vagina, and breasts; she no longer has a penis. [ 3 ] [NAME_2] was serving her time in a maximum-security institution for men, Atlantic Institution, in Renous, New Brunswick, when she commenced this application for judicial review. The application challenges the decision of Correctional Service Canada [CSC] to transfer [NAME_2] involuntarily to [NAME_4], in Bath, Ontario, another institution designated for men [Decision]. A stated reason for the transfer was to alleviate [NAME_2]’s Structured Intervention Unit [SIU] status at Atlantic Institution. [ 4 ] [NAME_2] also brought an application for an interlocutory mandatory injunction directing CSC to transfer her to a women’s institution, pending the determination of the judicial review application. The injunction application was dismissed: [NAME_2] v Canada (Attorney General) , 2026 FC 279 [ [NAME_2] No. 1 ]. During the hearing of the injunction application in February 2026, Justice Love Saint-Fleur learned that [NAME_2] was transferred to [NAME_4] in October 2025. [ 5 ] In this judicial review, [NAME_2] does not challenge the authority of CSC to mandate a transfer nor the conclusion that she required a different placement. Rather, [NAME_2] submits that judicial review is confined to a narrow issue, namely, once CSC decided to transfer her, it was required to make a reasonable, lawful, and justified decision about the receiving institution. In my view, CSC did just that, notwithstanding [NAME_2]’s disagreement with the outcome and the decision-maker’s rationale. [ 6 ] Having considered the parties’ written and oral submissions carefully, along with the supporting evidence in their records (i.e. the material they submitted to the Court), as well as the prevailing jurisprudence governing judicial reviews, I am unable to find that [NAME_2] has shown the Decision is unreasonable. It is not without some reluctance that I thus dismiss this judicial review application, because it means leaving [NAME_2], a woman, in a male institution. These Reasons and Judgment should not be viewed, however, as any kind of blanket determination that a transgender or gender-diverse inmate who is designated as a DO cannot be transferred to an institution that aligns with their gender identity, and that may happen eventually for [NAME_2]. Each such case will depend on their unique circumstances. [ 7 ] It bears underscoring that the Decision is highly dependent on the facts. [NAME_2]’s history, both before and after 1986, when she was sentenced to her first federal sentence, is complicated and lengthy, as described in the Background below. The ensuing Analysis examines, in order, whether the Court should hear this matter even though [NAME_2] has not exhausted the internal grievance process, the reasonableness of the Decision, and the appropriate remedy. There also is a preliminary issue, in my view, regarding the identification of the Decision which is the subject of this judicial review.

II. Background [ 8 ] To set the stage for the recounting of [NAME_2]’s history, I begin with [NAME_2]’s application for an interlocutory injunction, which the Court dismissed. It did so essentially on the strength of the balance of convenience factor. Justice Saint-Fleur noted the applicable conjunctive, three-part test for obtaining a mandatory interlocutory injunction, namely, a strong prima facie case, irreparable harm, and balance of convenience: [NAME_2] No. 1 , above at paras 36—37. [ 9 ] Regarding the irreparable harm factor, Justice Saint-Fleur determined that “the gender-related accommodations and supports being provided by CSC adequately mitigate any alleged harm to [NAME_2] resulting from her placement at a men’s institution and thus preventing any harm from becoming irreparable.” Further, any “potential irreparable harm would be counterbalanced by the balance of convenience,” which in Justice Saint-Fleur’s opinion favoured CSC: [NAME_2] No. 1 , above at para 38. [ 10 ] According to Justice Saint-Fleur, “the record shows that [NAME_2] poses a high risk to federally sentenced inmates and staff if she is transferred to a women’s institution.” Further, “[NAME_2]’s risk of physical, emotional, and psychologically violent behaviour is designated as high risk while her risk for sexual recidivism remains well above the average risk level.” Justice Saint-Fleur thus concludes that “[t]he safety of other incarcerated women and staff members in women’s institutions is at risk if [NAME_2] is placed at a women’s institution pending the determination of her judicial review” : [NAME_2] No. 1 , above at paras 41—42, 44. [ 11 ] There is no evidence before the Court on the judicial review that the [NAME_2] No. 1 decision has been appealed. In my view, the current record does not displace, but rather reinforces, Justice Saint-Fleur’s findings. The evidence discloses a pattern of escalating aggressive, violent behaviour, mostly toward women, by [NAME_2]. [ 12 ] According to [NAME_2]’s supporting affidavit, she has known that she was a girl/woman since age seven. The Decision describes that she struggled with attention and focus in school. At around age 12, she was suspended from school for attempting to touch a female student or teacher sexually. The following year she began sexually touching women in her neighbourhood who were walking in the street. By age 16, she was sent to Douglas Hospital where she stayed until she was 18, although she ran away frequently. [ 13 ] The Decision further recounts that, at age 19, [NAME_2] committed her first sexual assault, and break and enter and commit offences, which resulted in her first federal sentence of four years in 1986. During that period, she was reported for sexually touching female staff members. Her second federal sentence commenced in 1991 for sexual assault. Days after “cascading” to medium security in 1993, she was convicted again for sexual assault of a female parole officer. Shortly after release from the latter sentence, and while in provincial custody, [NAME_2] sexually assaulted and forcibly confined a female correctional officer. [ 14 ] According to the Decision, [NAME_2] committed the remainder of the third federal index offences over three days in 1998 by sexually victimizing five women and one minor, in public areas in the community. The first victim was grabbed by the neck and threatened with rape, until a car appeared and [NAME_2] fled. Two of the assaults involved attempting to force women into their cars, while in a third such assault [NAME_2] pushed the woman into her car as the woman was getting out and sexually assaulted her. The other two assaults occurred in a store and in a bus shelter. [ 15 ] The Decision explains that [NAME_2] began her third federal, indeterminate sentence with a DO designation in 2001 for sexual assault (4x), forcible confinement, and assault – intentional use of force (2x). She was transferred in 2002 to the Special Handling Unit [SHU] on an emergency basis because she threatened to sexually assault and kill female staff, and incited other offenders to do the same. [NAME_2] was convicted in 2007 for uttering threats to cause death/harm. She remained in the SHU for 16 years, until she was transferred to the Stony Mountain Institution in 2018. Within two months of the latter transfer, she had sexually assaulted another female staff member for which she was convicted of Assault – Intentional Use of Force in 2021. [ 16 ] As of the date of the Decision (August 12, 2025), [NAME_2] was in her sixth SIU placement in about as many years (i.e. since February 2020). She was admitted to SIUs not only for her own safety but also, at times, for the safety of others and/or the institution. A psychological risk assessment [PRA] was conducted in April 2024 to provide an updated evaluation of [NAME_2]’s risk of recidivism and to identify ways to manage her risk upon transfer to a medium-security setting. [ 17 ] In the course of the assessment, [NAME_2] admitted to many more victims than those against whom the offences for which she was convicted were perpetrated. She believes, however, that the true number is lower than 60. The PRA report notes that incidents of aggressive behaviour toward others had taken place as recently as two months earlier, in the institution. [ 18 ] The PRA report concludes that, notwithstanding the continued risk of recidivism and remaining areas of need, there was sufficient self-reported and documented improvement in [NAME_2]’s behavioural stability since her last assessment in 2022, to warrant a transfer to a medium security institution. It also recommended that she receive mental health services, high intensity sexual offender programming, and gender-affirming care, in the receiving institution. [ 19 ] [NAME_2]’s updated Correctional Plan dated November 19, 2024 indicates that she was declassified in May 2023 and transferred to a medium-security facility in April 2024. That lasted only three months; in July 2024 her security level was increased, and she was returned to a maximum-security institution (i.e. Atlantic Institution). The reasons include that she uttered threats of harm and death on a voice message left to the Office of the Correctional Investigator, and harassing behaviours and crossing boundaries with a female correctional officer. [ 20 ] There is evidence that when [NAME_2] arrived at Atlantic Institution in November 2024 following her gender-affirming surgery, correctional officers discovered that she was hiding razor blades in her sneakers. [ 21 ] [NAME_2] has requested voluntary transfers to 3 of 5 women’s penitentiaries in Canada, all of which were denied. The decision denying the transfer to Joliette Institution for women acknowledges that [NAME_2] “seems to have an increasing motivation to change and has demonstrated some improvement in institutional behaviour.” [ 22 ] The Joliette decision points, however, to “research suggest[ing] that reoffending among transgender individuals who have transitioned from male to female retain reoffending patterns of male offenders.” There is a similar reference to this research in the PRA report, as well as in the updated Correctional Plan. In addition to noting the declassification to medium-security and reclassification to maximum security, the Joliette decision observes that [NAME_2] has been involved in 44 institutional incidents. Despite the lack of details about all 44 incidents, the Joliette decision nonetheless describes that many were violent and involved sexual assaults against women staff. The latest incident is stated to have occurred in July 2024 (i.e. uttering threats of harm and death on a voice message), just one year before the Decision. [ 23 ] I note that, before the Decision issued, [NAME_2] was given an Assessment for Decision, also known as an A4D, recommending the involuntary transfer to [NAME_4] and providing her with an opportunity for rebuttal to the proposed transfer. [NAME_2] provided her rebuttal orally to the SIU Manager at Atlantic Institution; it was captured in a casework record log on July 25, 2025. Both the A4D and the rebuttal refer to [NAME_2]’s unwillingness to integrate in a male institution because of her safety concerns as a woman. She stated her belief that CSC is passing off a problem from one site to another without addressing the core issue. [ 24 ] I further note that [NAME_2]’s parole officer at Atlantic Institution, [NAME_5], provided an affidavit in this proceeding. In her affidavit, affirmed on September 9, 2025, [NAME_5] describes that, in the last several months, [NAME_2] had become increasingly verbally abusive towards women staff members in particular, that she was denied access to a female staff member toward whom she has shown fixation since February 2025, and that there are several women staff members with whom [NAME_2] cannot have access because of inappropriate behaviour and comments. [ 25 ] [NAME_5] also succinctly describes the involuntary transfer process in her affidavit. According to [NAME_5], inmates can be transferred involuntarily to an institution at the same security level, following their initial penitentiary placement. As alluded above, the involuntary transfer process typically involves, and essentially involved here, the following process before an inmate is transferred: A parole officer will complete an A4D report outlining why a transfer is recommended; The inmate will be provided with the A4D report, the notice of the transfer recommendation, and any information used in making the decision; The inmate will be permitted to make a rebuttal; and A final decision then will be made by the warden about whether to transfer the inmate or not. [ 26 ] [NAME_5] explains further that for gender-diverse inmates, there are additional steps in the process laid out in and governed by certain Commissioner’s Directives [CDs], namely, [NAME_6], CD 710-2 and CD 710-2-3. [NAME_5]’s affidavit and the Decision refer to the latter as a CD, I note that it in fact is a Guideline [GL] and, more properly, is referred to as GL 710-2-3 (as it is referred to in the Respondent’s Memorandum of Fact and Law).

Accordingly, I also refer to it as GL 710-2-3 in these reasons. [ 27 ] In cross-examination, [NAME_5] agreed that there is a level of vulnerability for a woman with a vagina, i.e. a female inmate, surrounded by men with penises, and that it was fair to say [NAME_2]’s refusal to integrate with the population at Atlantic Institution is consistent with her reasonable fear for her safety. [ 28 ] [NAME_8], the Acting Director of CSC’s Women Offender Sector, also provided an affidavit in this proceeding. She describes that CSC is mandated with the administration of sentences for adult offenders sentenced to two or more years, and that, further to section 2 of the Canadian Human Rights Act , RSC 1989, c H-6, CSC has a legal obligation to accommodate offenders’ gender identity and expression needs. [NAME_10]’s affidavit continues by explaining how that obligation is fulfilled with reference to [NAME_6], in particular. [ 29 ] [NAME_10] notes that, as of July 26, 2025, CSC identified 125 gender diverse individuals in custody, representing approximately 0.84% of the total incarcerated population. Of these, 88 are transgender women, with 82% housed in men’s institutions and 18% housed in women’s institutions. She provides reasons why placement requests to a women’s institution might be denied, including overriding health and safety concerns that cannot be mitigated effectively. Denial does not foreclose the requested placement, but the inmate would need to wait six months to reapply, or sooner if supported by their Case Management Team [CMT]. [NAME_10] identifies significant differences between men’s and women’s institutions, the latter involving multi-level (i.e. minimum- and medium-security) environments. Even women’s maximum-security institutions operate differently than men’s maximum-security institutions, according to [NAME_10]. [ 30 ] On cross-examination, [NAME_10] testified that, although there is limited research, the research they have for gender diverse people, with a history of sexual offending, shows that they respond better to male based programs. She admits, however, that she is not an expert in programming. [ 31 ] The above Background information essentially forms the factual matrix against which the reasonableness of the Decision is considered below.

III. Analysis A. Identification of the Decision under review [ 32 ] I note that [NAME_2]’s judicial review application challenges “a decision of [NAME_11] of the Correctional Service Canada, dated July 25, 2025.” The Notice of Application describes that [NAME_2] received notice of her involuntary transfer to another institution for men on August 12, 2025, purportedly to alleviate placement in the SIU. As discussed below, [NAME_11] is the Warden of Atlantic Institution. Section 5 of CD 710-2 tells us, however, that the Regional Deputy Commissioner or the Assistant Deputy Commissioner, Correctional Operations of the receiving region is the decision-maker for the inter-regional transfer of an inmate to a men’s institution. [ 33 ] I pause to note that, as confirmed recently by the Supreme Court of Canada, Commissioner’s Directives issued by the Commissioner of Corrections pursuant to sections 97 and 98 of the CCRA are binding internal policies: [NAME_12] v Canada (Attorney General) , 2025 SCC 38 at para 9. [ 34 ] Tab E in the Applicant’s Record, Volume I of IV, is titled “Refferal [ sic ] Decision for Institutional Transfer (Involuntary) August 12, 2025” and is comprised of the Referral Decision Sheet for: Inst. Transfer (Involuntary) [Referral] which indicates at the bottom of each page in Tab “E” that it was locked on August 12, 2025. [ 35 ] The Referral in turn is comprised of additional recommendations and the final decision. The first such recommendation is by [NAME_13], Project Officer of the Regional Transfer Board, dated July 25, 2025. In this recommendation, the Regional Transfer Board provided a comment and approved the recommendation to transfer [NAME_2] involuntarily to the Ontario region to provide her with a safe environment and to alleviate her SIU status. In the next part, the Warden of Atlantic Institution, [NAME_11], provided a comment and also approved the recommendation of an involuntary interregional transfer to [NAME_4]. The Warden’s input is dated July 25, 2025. [ 36 ] Next, [NAME_7], A/Mgr Assessment Intervention of Atlantic Institution, expressed support for and approved the recommendation to transfer [NAME_2] involuntarily to [NAME_4]. His comments and approval also are dated July 25, 2025. [ 37 ] What follows [NAME_15]’s comments and approval, and starts on the same page, is the Final Decision by [NAME_16], Assist. Dep. Comm., Correct. Oper. [NAME_16]. This entry provides a rationale and is much longer and more comprehensive than any of the above recommendations. It states at the end “Decision: Approved” and shows the decision date and effective date as August 12, 2025. It indicates that [NAME_2]’s Institutional Adjustment is High, Escape Risk is Moderate, and Risk to Public Safety is High. More significantly, as the Assistant Deputy Commissioner, Correctional Operations, [NAME_16], [NAME_16] is the authority empowered to make the transfer decision pursuant to section 5 of CD 710-2. In other words, it seems to me that, as mandated, the Final Decision is the only consequential decision here. While the three recommendations, which also are part of the Referral, may inform the Final Decision, they nonetheless are simply recommendations, and are not, in my view, decisions. [ 38 ] I note that, notwithstanding the reference in the judicial review application to the “decision of [NAME_11] of Correctional Service Canada dated July 25, 2025,” the parties nonetheless referred to aspects of the Final Decision in their written and oral submissions in this matter. For example, [NAME_2]’s Memorandum of Fact and Law defines the Decision with reference to the “final decision [rendered] on or around August 12, 2025” and to the page in the Referral where the Final Decision begins. The Respondent similarly describes, in its Memorandum of Fact and Law, that “ the Regional Assistant Deputy Commissioner rendered a written, reasons‑based decision on August 12, 2025 ” [my emphasis]. I therefore consider the decision under review is the Final Decision of the Assistant Deputy Commissioner, Correctional Operations, [NAME_16], dated August 12, 2025 [Decision]. All references in these reasons to “Decision” mean the August 12, 2025 Final Decision. [ 39 ] In the end, I consider the reference in the judicial review application to “a decision of [NAME_11] of the Correctional Service Canada, dated July 25, 2025” to be an irregularity. Given the stage to which the proceeding has progressed, I waive the necessity for an amendment to [NAME_2]’s judicial review application and will treat it as though it refers instead to “a decision of [NAME_16], Assistant Deputy Commissioner, Correctional Operations, [NAME_16], dated August 12, 2025” : rules 3, 55 and 56 of the Federal Courts Rules , SOR/98-106. B. [ADDRESS] should hear the judicial review [ 40 ] [NAME_2] submits that the Court should hear the judicial review despite not having exhausted the internal grievance process. I agree, in the circumstances, noting that the Respondent did not contest the issue in written or oral submissions on the judicial review, in contrast to the interlocutory injunction motion. [ 41 ] While acknowledging that, generally, an applicant needs to exhaust available alternative remedies before seeking judicial review, the Court nonetheless has discretion to hear the matter: [NAME_18] v Canada (Attorney General) , 2015 SCC 37 [ [NAME_18] ] at paras 37—38, 42—45; [COMPANY_19] v Canada (Attorney General) , 2026 FC 10 at paras 38—40; [NAME_2] No. 1 , above at para 29, citing [NAME_20] v Canada (Attorney General), 2020 FC 1037 at para 61. [ 42 ] A similar issue arose on the interlocutory injunction motion. There, the Respondent argued that the motion was premature because [NAME_2] should have exhausted the internal grievance process available to her before commencing the judicial review. Despite conceding that she had not exhausted the grievance process, and relying on this Court’s decision in [NAME_21] v Canada (Attorney General) , 2007 FC 1058, [NAME_2] urged the Court to hear this case anyway. [ 43 ] Referring to an earlier finding of this Court that the internal grievance process would be inefficient ( [NAME_22] v Canada (Attorney General) , 2019 FC 456 at para 57), Justice Saint-Fleur found it was unclear whether the grievance process could be finalized quickly enough to meet the urgency of the situation. She thus exercised her discretion to hear the motion for an interlocutory injunction: [NAME_2] No. 1 , above at paras 33—34. [ 44 ] Noting that the Court is not bound by the [NAME_2] No. 1 decision, [NAME_2] urges the Court to adopt a similar approach. I see no reason to take a different approach than the one taken by Justice Saint-Fleur. I observe the Corrections and Conditional Release Regulations , SOR/92-620 [ CCRS ], contemplate that an offender may decide to pursue a legal remedy for their complaint or grievance, in addition to the complaint or grievance process, and, if they do so, the review of the complaint or grievance will be deferred until a decision is made on the alternative remedy or the offender abandons the alternative remedy: CCRS , subsection 81(1). This is the situation here. [NAME_2] has pursued judicial review of the Decision and, consequently, any grievance process initiated by her is deferred or stayed, in any event, until the outcome of the judicial process. In other words, the grievance process cannot be expected to produce a timely final result in [NAME_2]’s case. I note in passing that while [NAME_2]’s counsel asserts that [NAME_2] grieved the Decision, there is no evidence before the Court to substantiate this claim. In any event, even if she has not initiated a grievance process, this would not be determinative, in my view, for the reasons below. [ 45 ] There is no evidence that [NAME_2]’s transfer to Millhaven would have been stayed pending the outcome of the grievance process. From my understanding of the record before the Court, [NAME_2] thus was required to seek an injunction with this Court to attempt to stay her transfer to another men’s institution and to seek an interlocutory order to transfer her to a women’s institution. The interlocutory injunction motion necessitated, as a precondition, an application for judicial review of the Decision, which automatically suspended the processing of any grievance (per subsection 81(1) of the CCRS ). [NAME_2] was unsuccessful on her motion, the judicial review process should not be interrupted now, in my view, and she should not have to wait an additional 60 to 80 days pending the determination of her grievance, all because she sought a remedy with this Court that in the end she did not obtain. [ 46 ] Further, because the hearing was scheduled to, and did, proceed, I find it would be an unproductive use and, hence, waste of scarce Court resources to hold the hearing but not determine the matter on its merits, to which I turn my attention next in these reasons. C. [ADDRESS] should hear the judicial review [ 47 ] I cannot say it any more succinctly than the Respondent in their Memorandum of Fact and Law: “[t]he Decision reflects a careful balancing of the Applicant’s current institutional placement, safety, gender identity and preferences, as well as the safety of other inmates and CSC staff, and is supported by a comprehensive evidentiary record, including the Applicant’s psychological risk assessments, institutional history, and a detailed engagement with the Applicant’s submissions and needs.” In other words, I find that [NAME_2] has not met her onus of persuading the Court that the Decision is unreasonable: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ] at para 100. [ 48 ] The parties submit, and I agree, that the presumptive reasonableness standard applies here. When reviewing a decision on this standard, the Court must ask itself if the “decision as a whole is transparent, intelligible and justified” : Vavilov , above at paras 10, 15. [ 49 ] An administrative decision-maker’s reasons need not be perfect, and the Court should not embark on a line-by-line treasure hunt for error: Vavilov , above at paras 91, 102, citing Communications, Energy and Paperworkers Union of Canada, Local 30 v [COMPANY_23] , 2013 SCC 34 at para 54. A decision-maker, however, must “meaningfully grapple with key issues or central arguments raised by the parties;” a failure to do so “may call into question whether the decision maker was actually alert and sensitive to the matter before it” : Vavilov , above at para 128. [ 50 ] When a decision depends on statutory interpretation, the decision-maker’s interpretation must be consistent with the text, context and purpose of the legislation; the decision-maker is not required, however, to perform a formalistic statutory interpretation exercise: Vavilov , above at paras 119—120. That said, a reasonableness review is not about performing a de novo analysis or to determine the “correct” interpretation of a challenged provision. Even if a reasonableness review points strongly in the direction of another interpretation, “a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker” : Vavilov , above at para 124. [ 51 ] The reviewing court must consider whether it can discern from the record the interpretation given by the decision-maker and then determine whether the interpretation is reasonable: Vavilov , above at para 123. In addition, “[t]here is no room for the Court to inject its own policy preferences into the analysis” : [NAME_24] v [NAME_25] , 2022 FCA 145 [ [NAME_24] ] at para 14. [ 52 ] In sum, on a reasonableness review, the Court will “defer to any reasonable interpretation adopted by an administrative decision maker, even if other reasonable interpretations may exist” [emphasis in original]: [NAME_26] v [NAME_27] (Securities Commission), 2013 SCC 67 at para 40; Canada (Attorney General) v Heffel Gallery Limited, 2019 FCA 82 at para 48; [NAME_28] v Canada (Attorney General), 2015 FCA 117 at paras 27-28. [ 53 ] I add that the judicial review application is typically not an opportunity to reargue the interlocutory injunction motion, the determination of which was not appealed: [NAME_29] v [COMPANY_30] , 2001 SCC 44 at para 18; Canada v [NAME_31] , 2024 FCA 22 at paras 34, 39. Further, judicial review on the reasonableness standard is not about whether the decision-maker could have made other inferences, weighed evidence differently, reached a different conclusion, or made a different decision: [NAME_32] v Canada (Citizenship and Immigration) , 2026 FC 625 at paras 21-24. [ 54 ] As the Supreme Court of Canada guides, “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem” : Vavilov , above at para 83. Rather, the focus of the reviewing court is on the words used by the decision-maker and whether, in the context of the applicable the factual and legal constraints before them, the decision is unreasonable. In other words, we do not create our own yardstick by which to measure what the administrative decision-maker did. [ 55 ] Bearing the above principles in mind, I examine next the parties’ submissions about the reasonableness of the Decision. [ 56 ] The crux of [NAME_2]’s arguments, as I understand it, is that a transfer to another institution should be treated in the same way as an inmate’s initial placement in a penitentiary or return to a federal penitentiary after release to the community. According to [NAME_2], this is the only reasonable interpretation of [NAME_6]. The Respondent argues a more nuanced approach to the assessment of inmate transfers, with reference to the relevant provisions of the CCRA , as well as [NAME_6], CD 710-2, and GL 710-2-3. In particular, the Respondent says that the decision-maker (i.e. the Regional Assistant Deputy Commissioner) followed the procedural and substantive requirements of GL 710-2-3 (titled, “Inmate transfer processes” ) in rendering a written, reasons-based Decision. As I will explain, I agree with the Respondent. In other words, [NAME_2] has not shown to the Court’s satisfaction how the Decision is unreasonable, with reference to the rationale provided; her focus is on the outcome, essentially to the exclusion of the decision-maker’s reasons. [ 57 ] In my view, the decision-maker reasonably considered [NAME_6], contrary to [NAME_2]’s submissions, and it was open to the decision-maker to order an involuntary transfer to a male institution in her particular circumstances. The Decision was not made in a vacuum but rather in the context of [NAME_6], CD 710-2 and GL 710-2-3, in addition to the relevant provisions of the CCRA . [ 58 ] After summarizing [NAME_2]’s history, the decision-maker considered the applicable legislative framework, beginning with paragraph 4(g) of the CCRA which captures one of several guiding principles for achieving the purpose described in section 3, that is, to contribute to the maintenance of a just, peaceful and safe society. Specifically, paragraph 4(g) requires correctional policies, programs and practices to respect, among other things, gender differences, sexual orientation, and gender identity and expression, and be responsive to the special needs of women and other groups. [ 59 ] In addition, the Decision indicates that section 28 of the CCRA was considered. This provision mandates that all reasonable steps be taken to ensure that the penitentiary in which an inmate is confined provides them with the least restrictive environment, taking into account several enumerated factors. The Decision states that the following specific factors were considered: the degree and kind of custody and control necessary for the safety of the public, the offender, other persons in the penitentiary and the security of same, along with accessibility to the inmate’s supports in Ontario, as well as a compatible cultural and linguistic environment. It also determined the availability of appropriate programs and services at the receiving site. According to the Decision, [NAME_4] was assessed to be the least restrictive and most appropriate institution at present for housing [NAME_2]. [ 60 ] The Decision also refers to section 33 of the CCRA which states simply that an inmate’s confinement in a SIU will end as soon as possible. The Decision states that because [NAME_2] refused to integrate into Atlantic Institution, and in order to alleviate her SIU status, [NAME_4] was canvassed and is supportive of her transfer. Further, the Decision notes that [NAME_2]’s mental health needs were considered by ensuring access to programs and services is available at the receiving site should she request them. [ 61 ] [NAME_2] argues that her rebuttal was not considered but this is not borne out by the Decision. The casework record log dated July 25, 2025, which recounts [NAME_2]’s oral rebuttal, indicates that she stated the transfer to [NAME_4] will not alleviate her SIU status because she will be going to the SIU there. [NAME_2] emphasized that she would not integrate into any male institution regardless of the security level because her safety as a woman is in jeopardy. She also indicated that she wanted to complete the ICPM High Intensity Sex Offender program she was undertaking and that she was in module 2. [ 62 ] The Decision refers to the July 25, 2025 date and paraphrases the above statements [NAME_2] made on that date. In this regard, the Decision states: “[o]n 2025-07-25 you advised that you do not want to transfer to [NAME_4] or any other male institution, regardless of security level, as you feel that your safety is in jeopardy due to the fact that your sex is now female. You would also like to complete Module Two of the Sex Offender Program at AI…” The Decision further observes that Atlantic Institution’s Institutional Head considered the concerns and noted that the program requirements could be completed while [NAME_2] is housed at [NAME_4]. I am not persuaded that this part of the Decision was unreasonable. [ 63 ] In approving the transfer to [NAME_4], the decision-maker noted that refusal or failure to integrate at the receiving institution may result in [NAME_2]’s transfer to another institution and/or region. This notation repeats, almost verbatim , section 19 of GL 710-2-3. [ 64 ] [NAME_2] argues that the decision-maker did not grapple meaningfully with [NAME_6] which, in her view, provides the transfer framework applicable to gender-diverse inmates. Its purpose is to protect and meet the needs of gender-diverse offenders. She submits that when an offender is first being placed in a penitentiary, [NAME_6] establishes a default rule that they will be placed in an institution that aligns with their gender expression, unless there are overriding health and safety concerns, in which case they will be placed in an institution that aligns with their sex, which is defined by reference to the offender’s anatomy (i.e. their genitalia): [NAME_6], s 36. [ 65 ] [NAME_2] contends that, for transfers, [NAME_6] stipulates that requests to transfer to a different institution type are to be assessed on a case-by-case basis: [NAME_6], s 42. She asserts that [NAME_6] does not address her current circumstances, i.e. an involuntary transfer from one men’s institution to another. According to [NAME_2], the same presumption that applies to intakes, first penitentiary placements, and return to custody – i.e. that the offender be placed according to their preference, unless there are overriding health or safety concerns, in which case they be placed according to their sex – should also apply to involuntary transfers. [ 66 ] She submits that the above contention is supported by two key statutory interpretation concepts: (i) the principle of coherence, in the sense that it would incoherent for a distinct test to apply to transfers other than initial placement decisions, such as in the case of involuntary transfers, and (ii) the presumption against absurdity, meaning that it should not be more onerous for her to obtain placement in a women’s institution partway through her sentence than if she were entering custody for the first time as a newly sentenced offender. [ 67 ] Accordingly, [NAME_2] argues that it goes against [NAME_6]’s purpose to interpret it in such a way that a post-operative trans woman remains in a men’s penitentiary. The only reasonable interpretation of [NAME_6], says [NAME_2], is that gender-diverse offenders are presumptively placed in an institutional setting that aligns with their gender identity and stated preference, unless there are overriding health and safety concerns, in which case, their placement must align with their anatomical sex. The decision is therefore unreasonable in light of [NAME_2]’s sex. I disagree that this is the only reasonable interpretation of [NAME_6] or, more to the point, that the interpretation by the decision-maker here was unreasonable. [ 68 ] [NAME_2]’s submissions overlook section 41 of [NAME_6] which provides that “voluntary and involuntary transfer processes will be completed per CD 710-2 – Transfer of Inmates and GL 710 2 3 – Inmate Transfer Processes.” Subsection 8(a) of CD 710-2 provides that, for an inter-regional transfer to a men’s institution, the Institutional Head of the sending institution will send their recommendation to the Regional Deputy Commissioner or Assistant Deputy Commissioner, Correctional Operations. This is consistent with the Decision mandating [NAME_2]’s involuntary transfer from Atlantic Institution to [NAME_4]. [ 69 ] Further, the [ADDRESS] of Queens Bench (as it then was) has opined, in respect of sections 32—33 of the CCRA that while “[t]he CCRA does not expressly provide for the transfer of SIU-confined inmates to other penitentiaries[, …there is] nothing in the statute or its regulations that would limit the use of this strategy where appropriate” : R v [NAME_33] , 2022 SKQB 156 at para 37. [ 70 ] The Respondent submits that [NAME_6] does not set out the regime for involuntary transfers; rather, CD 710-2 is operative and was followed, along with, I add, GL 710-2-3, specifically sections 26—31 which are headed “Involuntary Transfer.” [NAME_6] addresses the care that a gender-diverse inmate may require, regardless of where they are confined. Paragraph 4(g) of the CCRA lists factors that must be respected by correctional policies, programs and practices, while sections 28 and 33 dovetail in terms of providing the inmate with “the least restrictive environment for that person” taking into account the public’s and the inmate’s safety, as well as others in the penitentiary, and the security of the penitentiary. See also sections 70 and 87 of the CCRA . [ 71 ] [NAME_2]’s argument that section 36 of [NAME_6] governs all placements, the Respondent submits that [NAME_6] reflects a balancing of gender considerations and safety that are considered on a case-by-case basis, which, in my view, is what occurred here. The Respondent further submits that the example given by [NAME_2], of an inmate who is released to the community and then subject to a new intake and new placement, would have a different risk profile and, thus, is not analogous to [NAME_2]’s situation at the present time because of institutional safety concerns, as evidenced by [NAME_5]’s affidavit. I agree. [ 72 ] I am not persuaded by [NAME_2]’s arguments that [NAME_6] has, for all placements and intakes, an underlying presumption that the individual will be placed according to their preference, unless there are overriding health or safety concerns, in which case they will be placed according to their sex. [NAME_2] is operating from the premise that this general presumption applies to intakes, initial placements, and the placement of an offender returning to federal custody, and, therefore, it should apply to involuntary transfers. I disagree, however, with these submissions. They are tantamount, in my view, to a request that the Court create its own yardstick by which to measure the reasonableness of the decision-maker’s interpretation. [ 73 ] I agree that [NAME_6] sets out this presumption in respect of the initial intake for newly sentenced gender diverse offenders:

31. Prior to admission, staff will ensure that newly sentenced gender diverse offenders are provided with an opportunity to indicate if they have a preferred institution type (men’s or women’s). Should CSC have sufficient information to assess the offender’s risks and needs, a case conference per Annex B will occur, without delay, to determine the type of intake site . In cases where CSC cannot assess the offender’s risks and needs, the intake site for initial assessment will be based on their current sex. [My emphasis.] [ 74 ] The presumption also applies to the initial penitentiary placement:

36. After completing the intake assessment process, offenders will be placed according to their gender identity or expression in a men’s or a women’s institution, if that is their preference , regardless of their sex (i.e., anatomy) or the gender/sex marker on their identification documents. In the event there are overriding health or safety concerns that cannot be resolved, the offender will be placed in a site that better aligns with their current sex (i.e., anatomy). [My emphasis]. [ 75 ] GD-100 does not employ the same language, however, in relation to intakes of returning offenders:

33. Gender diverse offenders returning to federal custody from the community will be sent to the institution type (men’s or women’s) that better aligns with their gender identity or expression, if that is their preference, unless there are overriding health or safety concerns that cannot be resolved . In such situations, a case conference per Annex B will be held without delay to determine the most appropriate institution type . [My emphasis.] [ 76 ] The presumption of consistent expression stands for the principle that different words have different meaning: see, [NAME_34], The Construction of Statutes , 7th ed (Toronto: [COMPANY_36], 2022) [[NAME_34]], §8.04. The fact that “sex” is used as a reference point for placement in sections 31 and 36 but is excluded from the language of section 33 indicates, in my view, that the drafter did not intend for “sex” to be a determinative factor regarding intakes for returning offenders. This is also consistent with the maxim of implied exclusion when a pattern of words is used: [NAME_34], §8.09. [ 77 ] The same applies to the sections regarding the voluntary and involuntary transfer of inmates from one type of institution to another. [NAME_6] treats returning offenders and offenders already in custody differently than first-time offenders. Whether it should do so, is beyond the scope of this judicial review: [NAME_24] , above at para 14. [ 78 ] With the foregoing in mind. I disagree with [NAME_2] that any interpretation other than hers would lead to an absurd result in that, if she were a first-time offender, she would be treated differently than how she is currently being treated. In my view, this is precisely the contemplated outcome of the policy. [ 79 ] In sum, the context at the time of the Decision considered [NAME_2]’s refusal to integrate at the Atlantic Institution and that her SIU status was a direct result of her stated fear of integration. The Independent External Decision Maker, in their report under section 37.83 of the CCRA , acknowledged these concerns. CSC had a duty to alleviate [NAME_2]’s SIU status. In addition, there was a breakdown in the relationship with her CMT at Atlantic Institution. The transfer to [NAME_4] would involve accommodation of [NAME_2]’s safety concerns, a new CMT, integration opportunities, and available programming suited to [NAME_2]. Despite her avowal to continue SIU status at [NAME_4] (i.e. [NAME_2]’s rebuttal to the A4D provided to her before the Decision was rendered), it was not a foregone conclusion, in my view, that there would be no integration there. [ 80 ] Noting the Supreme Court’s guidance that “[t]he review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings,” I am not persuaded in the end that the Decision was unreasonable in the present circumstances: Vavilov , above at para 91. [ 81 ] Before turning to the issue of the appropriate remedy, I note that [NAME_2] presented the Court with Charter arguments (i.e. the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]) that were not before the decision-maker. She submits that the Decision does not grapple with the interests at stake and, further, that security of the person and liberty, are close to the surface and easily ascertainable from her rebuttal submissions.

Accordingly, [NAME_2] argues that policies need to be consistent with the Charter , and that international law may inform their interpretation. She also submits that where there is ambiguity in the interpretation of a policy, the interpretation that best conforms to Charter values must be preferred, citing [NAME_37] v [COMPANY_38] , 1999 BCHRT 7 at paras 24—25. [ 82 ] I find that because this contention was not presented to the decision-maker, they are not properly before the Court on judicial review. The decision-maker cannot be faulted for not considering an argument that was not made to them. [ 83 ] Further, while I do not disagree with the principle that the applicable policies must conform to the Charter and that their interpretation may be informed by international law, I note that [NAME_2] has not demonstrated that this necessarily means that she must be placed in a women’s penitentiary. She has not shown how her gender identity is not being respected or how her safety is not being safeguarded. In my view, the adoption and implementation of [NAME_6], the accommodations [NAME_2] receives within the penitentiaries, and the plans in place to ensure that her gender and safety are safeguarded once transferred to [NAME_4], all demonstrate that her gender identity is respected in the penitentiaries and that these institutions are working to ensure that her safety is preserved. [ 84 ] I also note that should [NAME_2] resume or pursue the grievance process, she will not be precluded from making Charter arguments before the administrative decision-maker in that context. This in turn could provide the Court with a fuller record insofar as the Charter arguments are concerned, in the event of a future judicial review. D. The appropriate remedy in the circumstances is that the Applicant remain where she currently is incarcerated, unless or until another transfer decision is made [ 85 ] [NAME_2] argued that if the application for judicial review were granted, the Court should order her transfer to a women’s institution, with the choice of institution left to CSC to determine. The Respondent countered that the granting of the judicial review would mean necessarily that the Decision to transfer [NAME_2] involuntarily was quashed and, therefore, she would be returned to the Atlantic Institution. Because the judicial review will be dismissed, however, this means that the Decision, and [NAME_2]’s involuntary transfer to [NAME_4], which has taken place already, will stand.

IV. Conclusion [ 86 ] For the above reasons, [NAME_2]’s judicial review application will be dismissed. She has not satisfied her onus of establishing that the Decision, with reference to the outcome and the reasons, was unreasonable.

V. Costs [ 87 ] The Respondent has not asked for costs and, therefore, in the circumstances, none are awarded.

JUDGMENT in T-3278-25 THIS COURT’S

JUDGMENT is that : The Applicant’s judicial review application is dismissed. There are no costs. "[NAME_1]" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-3278-25 STYLE OF CAUSE: [NAME_3] v ATTORNEY GENERAL OF CANADA PLACE OF HEARING:

HELD VIA VIDEOCONFERENCE DATE OF HEARING: june 15, 2026

REASONS AND

JUDGMENT: [NAME_1] J. DATED: JUly 14, 2026 APPEARANCES: [NAME_39] [NAME_40] For The ApplicantS [NAME_41] [NAME_42] [NAME_43] SOLICITORS OF RECORD: [NAME_44], Nova Scotia For The Applicant Attorney General of Canada Halifax, Nova Scotia For The Respondent