Frank Dorsey et al. v. Attorney General of Canada

by | May 11, 2023 | Test Cases

There is a crisis of mass incarceration and anti-Black racism in the criminal justice system. One of the forms this takes is that Black prisoners serve longer sentences at higher levels of security without access to critical rehabilitative programming. The Appellants, Frank Dorsey, a Black man, and Ghassan Salah, are two prisoners who have been denied transfer to a lower security classification. These denials occurred after both Mr. Dorsey and Mr. Salah received approvals from their case management teams for such transfers. The transfers were then disapproved by Correctional Services Canada (CSC). Mr. Dorsey and Mr. Salah brought an application seeking to confirm the availability of habeas corpus to challenge an arbitrary or unreasonable denial of such a transfer.

Justice Speyer of the Superior Court of Justice held that habeas corpus is not available, relying heavily on a line of Superior Court decisions which hold that habeas corpus is only available for a transfer to a higher security classification, as such a transfer engages a prisoner’s residual liberty interest.

The Appellants now seek to appeal Justice Speyer’s decision to the Court of Appeal for Ontario.

On November 28, 2022, BLAC applied for intervener status in this appeal.

On January 26, 2023, Justice Sossin granted BLAC intervener status in this appeal.

On March 7, 2023, BLAC filed its factum and argued that the impacts of denying habeas corpus should weigh in the Court’s consideration of the appeal, including as follows:

  1. Substantive equality and s. 15 Charter values ought to inform the Court’s analysis of the availability of habeas corpus;
  2. The unique vulnerability of Black prisoners in the security classification process demands that habeas corpus be equally, and meaningfully, available to Black prisoners; and,
  3. The availability of habeas corpus to Black prisoners, such as Mr. Dorsey, is a critical judicial avenue to mitigate systemic racism in the prison system.

The appeal is scheduled for May 29, 2023. BLAC is represented by Geetha Philipupillai and Saneliso Moyo of Goldblatt Partners, who are providing pro bono support.