Fighting for prisoners’ rights to challenge unlawful conditions of confinement

At a time when 51% of prisoners classified and confined to maximum security prisons are Black and Indigenous, the mass incarceration and hyper-securitization of Indigenous and Black peoples in Canada's prison system, happening under the pretext of public safety considerations, remains a critical racial justice issue. In an order by the SCC’s first Indigenous judge, Justice O’Bonsawin, Pivot was granted leave to intervene at the Supreme Court of Canada in Frank Dorsey and Ghassan Salah v Attorney General of Canada.

This SCC appeal stands to impact the rights of prisoners that seek to challenge security classification decisions that keep them confined in more restrictive federal prisons across so-called Canada. More often than not, Black and Indigenous prisoners are classified at higher security levels than their white counterparts, in a manner that runs counter to correctional laws that require prisoners have access to rehabilitative programming and be kept “in the least restrictive environment”. This is compounded by the social fact that prisoners, particularly those from marginalized communities, have little means to challenge limits on their liberty interests, given CSC’s ineffective grievance system, and a judicial review process that poses significant barriers for already marginalized prisoners to navigate.

Dorsey v. AG of Canada presents a vital opportunity for public interest interveners like Pivot to shed light on the adverse impacts on marginalized people that are systematically placed in higher-security prisons, and the devastating burden this leaves on their liberty, equality, health, and well-being in and beyond prisons.

Case Summary

Two prisoners, Frank Dorsey, a Black person, and Ghassan Salah of Jordanian descent, serving sentences in medium-security prisons, sought security reclassification in order to transfer to a minimum-security prison operated federally by the Correctional Services Canada (“CSC”). In 2019, Dorsey and Salah both sought reclassification, met the relevant criteria for lower security levels, had recommendations for reclassification to lower security, but had their requests for reclassification refused by higher CSC officials. They subsequently sought writs of habeas corpus pursuant to the Habeas Corpus Act, RSO, 1990 c. H1, arguing that the reclassification and transfer denials constituted a deprivation of liberty and violated their rights under ss. 7, 9 and 10(c) of the Charter. They further alleged that the decisions were substantively unreasonable.

At the trial level, Speyer J. ruled that habeas corpus was not available as a remedy because reclassification and transfer denials did not constitute a deprivation of liberty for prisoners, and therefore, could not meet the threshold stage for habeas corpus applications. On appeal, a majority dismissed the claim agreeing with the trial judge. Conversely, Simmons J, writing for the dissent, held that a reclassification decision that withholds a lower security classification in a manner that is arbitrary or unreasonable, is reviewable by way of habeas corpus through provincial courts.

With the pervasive systemic racism and mass incarceration of Indigenous and Black peoples continuing to unfold in Canad's prisons, the Court should decline the invitation to limit the rights of prisoners, that are overwhelmingly Black and Indigenous, to access habeas corpus in provincial courts.

It is vital that we resist the myriad ways that Black and Indigenous prisoners remain burdened by systemic discrimination. The Office of the Correctional Investigator (“OCI”) reports that Black men and Indigenous men receive higher security designations at twice the rate of their non-Black and non-Indigenous counterparts. Pivot has a vested interest in disrupting the various pathways to prisons that keep our communities criminalized and imprisoned. As such, Pivot has established a Prison Law Committee to ensure that Pivot’s intervention in this court challenge is accountable and responsive to the lived realities of communities directly impacted by arrest and imprisonment.

A Supreme Court hearing date for Mr. Dorsey and Mr. Salah has been set for May 13th 2025, and will be live webcast to the public on the SCC website.

Pivot will be represented by Nana Yanful, Yanful Law, and Simone Akyianu, Staff Lawyer at Pivot Legal Society.

Background Materials

• Dorsey v Canada (Attorney General), 2023 ONCA 843.
• Dorsey et al v The Attorney General, 2022 ONSC 2107.