Docket: 25-T-23
Citation: 2026 FC 730
Ottawa, Ontario, June 4, 2026
PRESENT: Madam Justice Conroy
|
BETWEEN:
|
|
KATHERINE BAGNALD
|
|
Applicant
(Moving Party)
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
(Responding Party)
|
REASONS AND ORDER
[1] The Applicant, Katherine Bagnald, sought an interlocutory injunction for an order directing Correctional Services Canada [CSC] to transfer her to a women’s correctional institution until a decision is rendered in her underlying application for judicial review. On March 25, 2025, following a hearing, I granted the interlocutory injunction and pronounced the Order from the bench. I committed to provide written reasons for my decision. These are the written reasons.
I. OVERVIEW
[2] Ms. Bagnald is a transgender woman in her early twenties. She has been outwardly transgender since the age of 13 and began hormone therapy years before her incarceration.
[3] At the time of the motion hearing, she was being held at a correctional institution designated for men.
[4] Her sentence of two years for two robbery convictions and a “failure to comply”
triggered CSC’s intake processes. The first stage of the process, called a Preliminary Assessment, determined where she would be held while her offender intake assessment [OIA] was underway. The OIA leads to an Assessment for Decision. The Assessment for Decision [A4D] will determine where the Applicant is placed to serve the rest of her sentence.
[5] The decision by CSC on her Preliminary Assessment resulted in her January 14, 2025 transfer from the women’s section of a provincial facility to a federal men’s institution. The Preliminary Assessment is the decision challenged in the underlying judicial review.
[6] As of the date of the injunction hearing, CSC had yet to complete the OIA or render an A4D. Absent intervention by this Court, the Applicant would have been held at the men’s institution pending the completion of her OIA and the rendering of her A4D on a date unknown.
[7] On March 25, 2025, I heard arguments for the interlocutory injunction after which I delivered the following Order from the bench:
-
a)The Applicant’s motion for an interlocutory injunction is granted;
-
b)Correctional Services Canada will transfer the Applicant, or cause the Applicant to be transferred, to an appropriate federal institution designated for women;
-
c)If the transfer is by land, it shall occur no later than March 31, 2025, and if the transfer is by air, it shall occur no later than April 4, 2025; and
-
d)Directions on cost submissions.
[8] On the first branch of the interlocutory injunction test, the parties’ arguments focussed on administrative law principles and the wording of certain Commissioners Directives applicable to the intake of gender diverse offenders. The Applicant’s arguments were not based on the Canadian Human Rights Act or the Charter of Rights and Freedoms and nor is this decision.
[9] I find that the Applicant has raised a strong prima facie argument that the impugned decision is unreasonable, as it does not bear the hallmarks of reasonableness– justification, transparency and intelligibility – and arguably fails to respect the legal and factual constraints on the Parole Officer who made the decision.
[10] On the issue of irreparable harm, there is concrete, clear, non-speculative evidence that the Applicant’s mental health has already suffered while at the men’s institution. There is a significant risk of physical harm as well as further mental distress if she is not moved to a women’s institution forthwith. During a previous stint while in remand at a men’s facility, Ms. Bagnald was sexually and physically assaulted, sexually harassed and her mental health suffered significantly. Put simply, the evidence shows that Ms. Bangald is in danger at the men’s institution.
[11] Third, I find the balance of convenience favours the Applicant. In all likelihood, the judicial review will be heard well after the determination of the A4D, thereby depriving Ms. Bagnald of any meaningful remedy even if she succeeds in the underlying application. This, coupled with the strong arguments that the Preliminary Assessment is unreasonable, weighs heavily in the balance of convenience. Further, the evidence does not show that Ms. Baganld is a violent or dangerous offender such that CSC could not reasonably manage her being held in a women’s institution pending determination of her A4D.
II. BACKGROUND
[12] The background canvassed here is based on the affidavits filed in the injunction motion by both parties. These include affidavits from Ms. Bagnald, her community supports and CSC staff. Portions of some affidavits were subject to confidentiality orders.
[13] The Certified Tribunal Record is yet to be filed. Accordingly, nothing in these reasons should be taken as a finding of fact for the purposes of the main judicial review.
[14] The uncontested evidence, supported by medical records, is that Ms. Bagnald has lived openly as a transgender woman since she was 13. She was diagnosed with gender dysphoria and began hormone therapy when she was 17. The materials describe a history of significant trauma, substance dependence, homelessness, and poor mental health. Ms. Bagnald robbed three gas stations to fuel her drug addiction, for which she is now serving a sentence. She reported feeling “she had nothing else to lose in her life, needed help, and wanted to do something significant enough that authorities could not ignore her.”
She expressed remorse for her offences and the impact on the employees at the gas stations she robbed.
[15] In March 2024, the Applicant was arrested, remanded, and transported to a provincial facility. She self-identified as a transwoman and was placed in the women’s section of the Central Nova Scotia Women’s Facility [Provincial Women’s Facility]. She stayed in the Provincial Women’s Facility until late September 2024. Since then, Ms. Bagnald has been bounced back and forth between women’s and men’s facilities.
[16] The evidence is that while Ms. Bagnald was at the Provincial Women’s Facility, her and another inmate were found engaging in sexual acts. Ms. Bagnald was thereafter placed in segregation for 13 days. The other inmate involved later made a sexual assault allegation against Ms. Bagnald. As of the date of the injunction hearing, no charges had been laid against Ms. Bagnald in relation to this incident.
[17] Following her 13-day segregation, the Applicant was transferred to a different provincial facility, the Southwest Nova Scotia Correctional Facility, in a unit designated for men [Provincial Men’s Facility]. This was her first time being incarcerated amongst men.
[18] While at the Provincial Men’s Facility, the Applicant’s evidence is that she was sexually assaulted as well as “physically assaulted numerous times resulting in bruising of [her] face and arms, and a bloody nose”
. She explained she “experienced multiple instances of verbal and sexual harassment from other incarcerated people in direct relation to my transgender status”
. The Applicant’s affidavit details her suffering significant mental health impacts, including a suicide attempt, as a result of being placed at a facility that did not align with her gender identity and because of fears for her safety.
[19] Following a letter sent to Nova Scotia Correctional Services from community advocacy groups (including the Elizabeth Fry Society, the John Howard Society, PATH Legal and the Cloverdale Justice Society), the Applicant was sent back to the Provincial Women’s Facility in December 2024.
[20] On January 3, 2025, the Applicant received a sentence requiring federal incarceration. The sentencing triggered the federal intake process, the relevant parts of which are summarized in the section below. Shortly thereafter, community advocates wrote to CSC urging she be placed at the Nova Institution for Women [Federal Women’s Institution] emphasizing the risks she had faced in men’s custody and the absence of equivalent supports in a men’s institution.
A. Process under Commissioner’s Directive 705
[21] When a person is sentenced to a term requiring federal incarceration, CSC begins the intake process under Commissioner's Directive 705: “Intake assessment process and correctional plan framework”
[CD 705]. This process is comprised of the following stages (CD 705, para 8):
-
Preliminary Assessments (CD 705-1)
-
Information Collection (CD 705-2)
-
Immediate Needs Identification and Admission Interviews (CD 705-3)
-
Orientation (CD 705-4)
-
Supplementary Intake Assessments (CD 705-5)
-
Correctional Planning and Criminal Profile (CD 705-6)
-
Security Classification and Penitentiary Placement (CD 705-7)
-
Assessing Serious Harm (CD 705-8).
[22] At issue in the judicial review is the Preliminary Assessment carried out under Commissioner’s Directive 705-1: “Preliminary Assessments and Post-Sentence Community Assessments”
[CD 705-1]. The Preliminary Assessment determines where the offender will be housed between sentencing and the completion of the OIA. It is conducted by a Community Parole Officer.
[23] Where an offender identifies as gender diverse, Commissioner’s Directive 100 [CD 100] requires CSC to give the offender an opportunity to indicate a preferred institution type. Ms. Bagnald requested placement in a women’s institution.
[24] Central to this motion is paragraph 31 of CD 100, which applies to Preliminary Assessments. It states:
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…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.
[25] Under CD 100, the “sex”
of an offender is determined solely by their current genitalia.
[26] The Preliminary Assessment Report [Report] shows the Parole Officer’s Assessment for Ms. Bagnald was signed off on January 7, 2025, although there is some ambiguity about the timing. The Parole Officer’s Assessment concluded that “[p]ursuant to CD 100, as CSC currently does not have sufficient information to assess Ms. Bagnald’s risks and needs, the intake institution for the OIA will be based on their current sex”
.
[27] On January 10, 2025, CSC told the Applicant that “given CSC policy and outstanding questions regarding her trans-female status, it was determined that she will have to attend the [Federal Men’s Institution] for her OIA. The placement is based on her biological gender which is male at birth”
. The Parole Officer told her there was still a potential to be placed at a women’s institution when they “have a stronger understanding of her risk factors and transition”.
[28] Ms. Bagnald was transferred to the Federal Men’s Institution on January 14, 2025. As of the March 25, 2025 injunction hearing, her OIA remained incomplete and the draft A4D was still under internal review. When asked at the hearing, counsel for the Respondent was unable to provide further information about when the next steps in the intake process might be complete.
B. Applicant’s situation at Federal Men’s Institution
[29] The Applicant is being held at the Regional Reception Unit in the Federal Men’s Institution along with 10 to 13 cis-gender men. At the time her February 7, 2025 affidavit was sworn, she was not being provided with gender appropriate garments. Her affidavit describes being triggered by the environment and engaging in self-harm. She states that she does not feel safe at the Federal Men’s Institution.
[30] A January 16, 2025 letter from her community advocates to the Warden of the Federal Women’s Institution states that “Ms. Bagnald has already experienced sexual assault and sexual harassment during her time at a men's provincial facility before she was transferred to the women's unit. She reported fear for her safety and a sense of hopelessness. She has no institutional charges, and her criminal history involves petty robbery, not sexual violence or violence against women. It is therefore clear that the decision to place her in a men's prison is both transphobic and dangerous.”
[31] The Respondent provided evidence of certain gender related accommodations requested by the Applicant. The most recent accommodations put in place for the Applicant’s benefit are set out in a protocol dated March 10, 2025. These include the following:
-
If strip searches are required, two officers are present and “one must be female conducting the visual inspection of the naked body”
;
-
If frisk searches are required, they are to be carried out with female staff;
-
The Applicant showers when other offenders are secured in their cells;
-
Observations of the Applicant are to be carried out by female staff;
-
If decontamination showers are required, they are to be carried out by female staff; and
-
At least one female staff is to accompany the Applicant on medical escorts.
[32] The Respondent describes the additional “accommodations and supports”
available to the Applicant:
-
Provision of female undergarments;
-
Regular visits to health care;
-
An assigned social worker who meets with the Applicant weekly;
-
Visits with other members of the institutional mental health care team as-needed;
-
Videoconferences for the Applicant to communicate with the Cloverdale Justice Society;
-
A call was arranged between the Applicant and an outreach worker; and
-
Meetings with the Applicant’s case management team on a weekly basis, or more if needed.
C. Different Environments: Women’s vs Men’s Institutions
[33] The Respondent provided evidence on some of the differences between the men’s and women’s institutions at issue here:
-
The Federal Men’s Institution is medium-security.
-
The Federal Women’s Institution houses all security classifications (maximum, medium and minimum).
-
Women assessed as medium or minimum security reside in housing units. There are no cameras in the houses.
-
The Federal Men’s Institution has a designated intake unit called a “Regional Reception Centre”
where offenders are held pending a security classification.
-
The Women’s Institution has no such designated intake area. During the intake process at the Women’s Institution, offenders normally reside in the general medium-security population in a communal type setting in a house.
-
The traditional security systems seen in men’s institutions were described as “quite different than the supportive environment and open layout of women’s institutions.”
The Women’s Institution doesn’t have the “static supervision”
measures found at the Men’s Regional Reception Center where movement is more controlled (i.e., locked doors controlled by staff). The Women’s Institution relies more on “dynamic security”
: free egress to the houses and offenders have personal keys to their bedrooms.
-
The Federal Men’s Institution has CCTV monitoring in all areas except showers and cell interiors, and correctional staff make hourly rounds, The Federal Women’s Institution has no cameras inside the housing units; and
-
The security features at the Women’s Provincial Facility are more akin to the those in a federal men’s penitentiary.
[34] In oral submissions, counsel for the Applicant argued that the comparison provided in the Respondent’s evidence – between the security features of a men’s medium institution and a women’s medium institution – was not apt. The Applicant submitted that the maximum-security areas of the Federal Women’s Institution would better approximate a men’s institution. The Respondent provided no evidence on how maximum-security offenders are housed in the Federal Women’s Institution.
[35] The Respondent’s evidence is that trauma and abuse are significant factors in the life histories of federally sentenced women. The Warden at the Federal Women’s Institution stated that in her experience, “to assess and understand the risks and needs of a gender diverse inmate looking to be penitentiary placed at NIFW [Federal Women’s Institution] with a history of, or allegation of, sexual assault against a woman, as is the case with Ms. Bagnald, requires CSC complete the inmate assessment process. To not understand a proposed incoming inmate’s risks and needs in such a circumstance could jeopardize the safety and security of the inmates already at NIFW.”
[36] While the Respondent provided no evidence on where a cis-gender woman facing an allegation of sexual assault would be housed pending an A4D, it is reasonable to assume that that they would be not be placed in a men’s institution.
III. ANALYSIS
[37] The three-part test for an interlocutory injunction is well-known. The moving party must demonstrate: (1) that the underlying application or action raises a “serious question to be tried;”
(2) irreparable harm will flow if the injunction is refused; and (3) that the balance of convenience favours granting the injunction: RJR-MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at 334 [RJR].
[38] Each element of the test must be met but they are not discrete, watertight compartments. The test should be approached wholistically: strengths with respect to one element can off-set weaknesses with respect to other parts of the test: see RJR at 339. For example, “it stands to reason that where a plaintiff shows a very strong case, the Court may be less demanding with respect to the other criteria. It is also said that the strength of the case may be taken into account when assessing the balance of convenience”
: British Colombia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97.
[39] The Supreme Court of Canada confirmed that “[t]he fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific”
: Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 25
A. Serious Issue
(1) Strength of Case - Applicable Threshold
[40] The threshold to establish the first branch of the test will be higher where a mandatory injunction is sought or if the injunction would, in effect, provide the applicant with the outcome sought in the underlying action: R. v. Canadian Broadcasting Corp., 2018 SCC 5 at para 15 [CBC]; Jacques v. Canada (Attorney General), 2024 FC 26 at para 30.
[41] The parties agree that the interlocutory injunction sought here is mandatory. They however disagree on the applicable threshold to make out the first branch of the injunction test.
[42] The Respondent says because the injunction sought is mandatory, the Applicant must demonstrate that she has a strong prima facie case: CBC at paras 15, 17.
[43] The Applicant, relying on Calin v. Canada (Public Safety and Emergency Preparedness), 2018 FC 731 [Calin], argues the high threshold in CBC does not apply to all mandatory injunctions. She asserts that in certain circumstances, the moving party need only establish a “
prima facie case”
: a standard described as falling between the low “serious issue”
threshold applicable to most prohibitory injunctions, and the “strong
prima facie case”
threshold in CBC.
[44] The Applicant has not been able to point to a case where Calin has been followed. It was however rejected in Robinson v. Attorney General of Canada, 2019 FC 876 at paragraphs 63-64.
[45] I am not convinced that Calin applies in the present context, and I decline to follow it. I conclude that I am bound by the top court’s decision in CBC. Accordingly, the burden is on the Applicant to satisfy the Court that based on a preliminary review of the case, there is a strong likelihood on the law and evidence presented that she will ultimately succeed in the judicial review: CBC at para 17.
(2) Strong prima facie case
[46] The underlying Application raises several grounds for judicial review. My analysis of the first prong of the RJR test is limited to the assertion that the Preliminary Assessment is unreasonable.
[47] The Respondent argues the judicial review is premature “and there are no sufficiently exceptional circumstances to justify early judicial review”
. The Respondent also asserts that the Preliminary Assessment is reasonable in light of CD 100, paragraph 31 and the information before CSC at the relevant time.
[48] The reasons for the outcome of the Preliminary Assessment can be found in two documents: (1) in the Report, and (2) in the Parole Officer’s notes from a January 10, 2025 discussion with the Applicant when she was informed she would be sent to the Federal Men’s Institution.
[49] In summary, the reasons say that the basis for moving the Applicant to a Federal Men’s Institution were: (a) that CSC could not assess Ms. Bangald’s risks and needs; (2) a better understanding of her trans status was required; and (c) that she had male genitalia.
[50] Based on the material in the motion records, I conclude that the Applicant presents a strong prima facie case for judicial review on the basis that the Preliminary Assessment was unreasonable. As explained in Vavilov, it is not enough for a decision to be justifiable, it must also be justified in the reasons provided by the decision maker (para. 86). There are strong indications that the reasons here failed to provide any justification or the requisite degree of intelligibility and transparency.
[51] The reasons do not explain why the CSC could not assess the Applicant’s “risks and needs”
. The reasons repeat this phrase from the CD 100, paragraph 31, verbatim several times. Reasons that simply repeat the language from a directive and then state a peremptory conclusion, provide no assistance in understanding the rationale underlying the decision and will generally be unreasonable: Vavilov at para 102.
[52] There was no explanation of what outstanding questions CSC had about Ms. Bagnald’s transgender status or what effort was made to obtain information about it, beyond obtaining information about her genitalia. If the CSC were to make little to no effort to obtain “sufficient information”
on a gender diverse offender’s risk and needs in the course of a Preliminary Assessment it would inevitably doom offenders who have not undergone transition surgery to be placed in an environment that does not align with their gender identity pending their A4D. There is an argument to be made that such an approach runs contrary to the legal constraints on the CSC, including the constraint set out in s. 4(g) of the Corrections and Conditional Release Act, SC 1992, c 20.
[53] The principles of justification and transparency require that a decision maker’s reasons meaningfully account for the central issues and that a failure to do so may call into question whether the decision maker was actually alert and sensitive to the matter before them: Vavilov at paras 127 – 128. There is a strong argument that the reasons here fail to meaningfully account for the central issues at play. For example, there was no attempt in the reasons to engage with the Applicant’s longtime status as a transwoman and the harm that flows from placing her in an institution that does not align with her gender.
[54] The Respondent’s arguments suggest that the sexual assault allegation was a driving factor (perhaps the driving factor) in the Preliminary Assessment. The Respondent relies on affidavit evidence from the Community Parole Officer which says that in carrying out the Preliminary Assessment she became aware of the sexual assault allegation against the Applicant that was said to occur while she was at the Provincial Women’s Facility. As noted above, the Warden at the Federal Women’s Institution provided affidavit evidence setting out her opinion that Ms. Bagnald ought not be placed there pending the A4D due to the sexual assault allegation.
[55] The reasons for the Preliminary Assessment are however entirely silent about any alleged sexual assault. A section of the Report under the heading “Details regarding identified needs”
lists incidents that occurred while Ms. Bagnald was in remand. One would expect that the sexual assault alleged to have occurred in September 2024 would be listed here, but it is not.
[56] The Respondent’s reliance on extrinsic affidavit evidence regarding the alleged sexual assault to defend the decision is arguably an improper attempt to supplement the reasons after-the-fact. It is impermissible to bootstrap or improve on the reasons for a decision by way of affidavit evidence filed in a judicial review. This undermines transparency and would force the Applicant to hit a moving target: Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255 at para 46-47; Dukuzeyezu v. Canada (Minister of Citizenship and Immigration), 2020 FC 1017 at para 12.
[57] The Respondent asserts that the judicial review is premature. I am not persuaded that this argument is sufficient to displace the strong arguable issues raised or to prevent the Applicant from meeting the first prong of the RJR test: Cooper v. Canada (Attorney General), 2026 FC 279 at para 29 to 34.
[58] Based on the material filed for this motion, I conclude that there is a strong chance that the Applicant will succeed in her argument that the Preliminary Assessment is unreasonable.
B. Irreparable Harm
[59] The question at the second stage of the injunction test is whether a refusal to grant relief could so adversely affect the Applicant that the harm could not be remedied in the event that the judicial review is successful: RJR at p.342. “The nature of the harm must be such that it cannot be quantified in monetary terms or cannot be cured”
: United States Steel Corporation v Canada (Attorney General), 2010 FCA 200 at para 6 [United State Steel], citing RJR. The moving party must provide clear and non-speculative evidence that irreparable harm will flow if the injunction is refused: United States Steel at para 7.
[60] The evidence demonstrates that the Applicant’s placement at the Federal Men’s Institution has already caused her mental health to suffer and has resulted in self-harm. This placement also exposes her to a serious risk of harassment, violence and sexual assault from other inmates. As noted above, during her time in the Provincial Men’s Facility, Ms. Bagnald was subject to sexual assault, harassment and physical violence because of her transgender status. Indeed, the threat to Ms. Bagnald’s safety posed by fellow inmates at the Federal Men's Institution was the foundation for the Respondent's confidentiality motion with respect to one of its affidavits.
[61] On the issue of irreparable harm, the Respondent pointed to the accommodations and individualized protocols itemized above. However, the Respondent conceded that these measures may mitigate, but do not eliminate, the harm to the Applicant. As noted by the Supreme Court, it is the nature of the harm suffered rather than its magnitude that matters: RJR, p. 341; see also Devlin v Canada (Attorney General), 2020 NSSC 238 at para 11-12.
[62] The evidence clearly demonstrates that the Applicant has met the second prong of the injunction test.
C. Balance of Convenience
[63] On the third prong of the RJR test, the Court must determine which party will suffer the greater harm from the granting or refusal of the injunction: RJR at 342. In so doing, the Court can take into consideration the strength of the underlying application and whether an effective and meaningful remedy would be available if the judicial review is ultimately granted: Acti v Canada (Citizenship and Immigration), 2022 FC 336 at para 60; British Colombia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97.
[64] Here the Applicant has met the first prong of the RJR test based on the elevated threshold set out in the CBC case. Further, in the absence of an interlocutory injunction, the Applicant would have been held at the Men’s Institution pending the completion of her OIA and the rendering of her A4D. It is likely that the judicial review will be heard well after the determination of the A4D, thereby depriving the Applicant of any meaningful remedy even if she were to succeed in the underlying Application. The prospect of this remedial injustice weighs heavily in the balance of convenience.
[65] I find that the evidence relied on by the Respondent to assert that the Applicant may pose a risk to the other offenders at the Federal Women’s Institution to be speculative, particularly when contrasted with the clear evidence of danger and harm Ms. Bagnald faces in the Men’s Institution. I am not persuaded that the Federal Women’s Institution would be unable to manage any security risks that Ms. Bagnald may present. Despite what could be characterized as CSC’s prompting of the RCMP, Ms. Bagnald has not been charged as a result of the alleged sexual assault.
[66] Unlike the offenders in Cooper v Canada (Attorney General), 2026 FC 279 and Boulachanis v Canada (Attorney General), 2019 FC 456, reversed, 2019 FCA 100, Ms. Bagnald has not been designated a dangerous offender, she has no history of attempted escapes from prison, she has not assaulted CSC officers, and her criminal convictions involve robbery, not sexual violence or murder. Further, Ms. Bagnald’s gender dysphoria and transition are not of recent vintage and pre-date her incarceration.
[67] I am of the opinion that any difficulties CSC may face in transferring and housing Ms. Bagnald at the Federal Women’s Institution are insufficient to outweigh both the harm she is currently enduring in the Men’s Institution, and the potential remedial injustice should she ultimately succeed in her judicial review. In these circumstances, the balance of convenience clearly favours the Applicant.
IV. CONCLUSION
[68] For the reasons set out above, the interlocutory injunction is granted.
[69] Following the hearing, the parties advised the Court that they have come to an agreement on a lump sum cost award in the amount of $1,500.00, all inclusive, payable by the Respondent to the Applicant. This cost order shall issue.
Email this Content