COURT OF APPEAL FOR ONTARIO DATE: 20230126 DOCKET: M53812 (C70956)

Sossin J.A. (Case Management Judge)

BETWEEN

Frank Dorsey and Ghassan Salah Applicants (Appellants)

and

The Attorney General of Canada Respondent (Respondent)

and

The John Howard Society of Canada Intervener

Counsel: Jessica Orkin, Adriel Weaver, Simon Borys, and Kate Mitchell, for the appellants John Provart and Wendy Wright, for the respondent Paul Quick, for the intervener John Howard Society of Canada Geetha Philipupillai and Saneliso Moyo, for the proposed intervener the Black Legal Action Centre Jessica D. Rose, for the proposed intervener the Canadian Association of Elizabeth Fry Societies Nader R. Hasan and Dan Goudge, for the proposed intervener the Canadian Civil Liberties Association Alison Craig, for the proposed intervener the Canadian Prison Law Association

Heard: in writing

REASONS FOR DECISION

OVERVIEW

[1] This case involves a challenge to the application of the law of habeas corpus. In Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, at p. 464, the Supreme Court of Canada held that, in the carceral context, habeas corpus is available to challenge an unlawful deprivation of liberty in three circumstances: (1) the initial deprivation of liberty; (2) a substantial change in conditions amounting to a further deprivation of liberty; and (3) a continuation of a deprivation of liberty, where it becomes unlawful.

[2] The applicants, Frank Dorsey and Ghassan Salah (appellants) applied, pursuant to the Habeas Corpus Act, R.S.O. 1990, c. H.1, and the Canadian Charter of Rights and Freedoms, ss. 7, 9, 10(c), and 12, for a writ of habeas corpus ad subjiciendum, with certiorari in aid if necessary, and for orders that they be transferred to minimum-security institutions unless the respondent, on behalf of the Correctional Service of Canada, can justify their continued detention in a medium-security institution.

[3] The application judge denied the applications on the basis that habeas corpus is not available to challenge the refusal of the applicants’ request for a transfer to a lower security institution as the refusal does not amount to a deprivation of their liberty.

[4] The John Howard Society of Canada (JHSC)’s status as an added party has been confirmed (see Dorsey v. Canada (Attorney General), 2022 ONCA 762), but the terms of the intervention remain to be determined.

[5] The Civil Liberties Association (CCLA), the Black Legal Action Centre (BLAC), the Canadian Association of Elizabeth Fry Societies (CAEFS), and the Canadian Prison Law Association (CPLA) are seeking leave to intervene as friend of the court.

[6] For the reasons that follow, I grant intervention to each of the proposed interveners. This appeal raises an issue of constitutional and public importance, which transcends the immediate parties. Each of the proposed interveners is a well-established organization with special expertise. The proposed submissions provide a distinct perspective on the issue before the court.

[7] As addressed further below, the concerns Canada raises with respect to the interventions supporting either the arguments or the outcome sought by the appellants can be addressed by specific terms of intervention (e.g., providing Canada additional pages for its responding factum and more time for oral argument).

ANALYSIS

[8] The parties agree that r. 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 governs the question of interveners being added as parties to a proceeding.

[9] Rule 13 provides:

Leave to Intervene as Added Party

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

Leave to Intervene as Friend of the Court

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

Leave to Intervene in Divisional Court or Court of Appeal

13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.

(2) Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of Ontario or a judge designated by either of them.

[10] In deciding these motions, the court will typically consider the general nature of the case, the issues that arise in the case, and the contribution that the proposed intervener can make to resolving those issues without doing an injustice to the parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167; Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2022 ONCA 755, at para. 3; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10; and Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8.

[11] The appellants consent to all of these motions for intervention.

[12] Canada opposes these motions either on the basis that the interveners will introduce new issues on appeal or that their proposed submissions are duplicative of the appellants’ argument.

[13] The moving parties each argue that the nature of the issues before the court are of constitutional and public importance, which transcend the immediate parties. Habeas corpus is a legal remedy that is fundamental to the protection from unlawful deprivations of liberty and the rule of law.

[14] They each submit that their intervention would not cause injustice to the parties as they do not seek to expand the issues on appeal, or the appeal record, and will adhere to the existing schedule for the appeal. They also request that no costs be ordered for or against them.

[15] I briefly address each proposed intervention below.

a) Canadian Civil Liberties Association

[16] The CCLA is a well-recognized national organization dedicated to the furtherance of civil liberties in Canada. One of CCLA’s major objectives is the protection of the rights of prisoners and detainees from arbitrary or excessive use of power, with a focus on issues and cases that result in broad, systemic change.

[17] The CCLA submit that they would make a useful contribution in this specific case by arguing that deprivation of liberty sufficient to trigger habeas corpus review occurs whenever the state makes a decision regarding the manner of a prisoner’s confinement that results in a prisoner being confined in conditions that are substantially more restrictive than the least restrictive option available.

[18] Canada opposes the CCLA’s intervention on the basis that the CCLA’s proposed submissions are indistinguishable from the appellants’ arguments and therefore will not further assist the Court.

[19] In my view, the CCLA’s submissions are not duplicative of the appellant’s submissions. The appellant’s main argument is that habeas corpus is available to challenge continuing deprivations of residual liberty arising from discretionary decisions, including those rendered under ss. 28. and 29 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, under the third Dumas category (continuation of a deprivation of liberty becomes unlawful).

[20] In contrast, the CCLA argues that any state decision, which results in an ongoing deprivation of liberty and is substantially inconsistent with the least restrictive option, always triggers habeas corpus under the second Dumas category (substantial changes in conditions amounting to a further deprivation of liberty). According to the CCLA, this would include not only where the state imposes further deprivations of liberty, but also where the state refuses to accord a prisoner additional liberty rights that they have lawfully sought, such as transfers to a lower security prison.

[21] I conclude the CCLA meets the threshold for intervention.

b) Black Legal Action Centre

[22] BLAC is a not-for-profit speciality legal clinic with the mandate to address individual and systemic anti-Black racism in Ontario. BLAC has specialized knowledge on anti-Black racism in the criminal system. Given its expertise, BLAC can provide the court with the unique perspective of the impact of denying access to habeas corpus review for a denial of a transfer to a lower security institution on Black inmates.

[23] BLAC submits that it would make a useful contribution by focusing its arguments on the impacts of denying habeas corpus review on Black inmates, through the lens of substantive equality and s. 15 Charter values. BLAC would argue that these constitutional values ought to inform the court’s analysis of the availability of habeas corpus. Further, the unique vulnerability of Black inmates in the security classification process against the backdrop of systemic racism in the correctional system demands that habeas corpus be equally, and meaningfully, available to Black inmates.

[24] Canada argues that BLAC’s proposed intervention impermissibly and unnecessarily expands the scope of the appeal to include a Charter analysis, when there is no evidence on the record sufficient to permit this Court to undertake a Charter analysis. According to Canada, BLAC is asking this court to admit experts’ evidence on statistics related to Black inmates led in other cases by way of judicial notice without permitting the parties to challenge such evidence or present contrary evidence.

[25] I disagree. The reference to constitutional values in the interpretation and application of statutory criteria does not transform this appeal into a Charter case.

[26] I conclude that BLAC also has met the threshold for intervention.

c) Canadian Association of Elizabeth Fry Societies

[27] CAEFS is the non-profit association of the self-governing and community-based Elizabeth Fry Societies. The objective of the CAEFS includes addressing and promoting the human rights of criminalized women, trans, non-binary and Two-Spirit people (women and gender-diverse people). CAEFS has significant involvement with Indigenous women who are disproportionately represented among the women CAEFS serves. CAEFS prioritizes and promotes the classification of incarcerated women to progressively less restrictive conditions of confinement, at systemic and individual levels.

[28] CAEFS submits that it will make a useful contribution by submitting that the court should consider substantive equality as a factor in their determination of whether a particular continuing deprivation of liberty attracts Charter protection. A purposive and expansive approach to a Court's jurisdiction to hear habeas corpus matters must reflect the lived experience of incarceration for a range of inmates, including its differential impact on Indigenous inmates, women and gender-diverse inmates.

[29] CAEFS will highlight that women and gender-diverse inmates experience unique deprivations of liberty compared to male inmates. For example, the exclusive availability of the Mother-Child Program (MCP) for lower-security prisoners has a distinctive impact on the Charter rights of incarcerated women. The availability of the MCP implicates ss. 7 and 15 Charter rights of imprisoned mothers.

[30] Once again in this context, Canada argues that the CAEFS intervention attempts to convert this appeal into a Charter case. For the same reasons set out above, I do not accept this argument. Raising Charter values as part of the backdrop against which habeas corpus rules must be applied is not the same as challenging the application of those rules under the Charter.

d) Canadian Prison Law Association

[31] The CPLA is a national organization made up of lawyers, paralegals, and academics who work on behalf of federal and provincial inmates in the provision of legal services, research on prison law issues, and in making representations to legislative and other government bodies. One of the goals of the CLPA is to improve the human rights and civil liberties of federal prisoners. Federal inmates in Ontario form part of the core of the CPLA’s clientele, so the CPLA would provide a broader perspective to the court.

[32] The CPLA submits that it would make a useful contribution by contrasting the constitutional and statutory protection of the liberty interests at stake in transfer decisions, and why such interests may be disregarded in light of the asymmetrical, policy-based decision-making structures and the institutional factors that may often pull against the least restrictive principle.

[33] The CPLA will highlight the history of institutional resistance to the least restrictive principle within the Correctional Service of Canada, and the history of the least restrictive principle as arising from Charter principles.

[34] Canada argues that the CPLA’s proposed submissions are duplicative of the submissions of the added party, JHSC.

[35] The CPLA acknowledges that it builds on the JHSC’s submissions on the original application but also points out that this differs from the proposed JHSC’s submissions on appeal. I see no concern with the various interveners coordinating their submissions to be complementary rather than duplicative.

[36] In my view, the CPLA meets the threshold for intervention.

CONCLUSIONS

[37] In my view, each of the criteria set out in the case law on interventions favours granting intervention in this case.

a) Nature of the case

[38] The nature of the case and issue on appeal support granting intervention. The issue before the court is whether refusal of transfers to a lower security institution amounts to a deprivation of liberty such that the writ of habeas corpus is available. Habeas corpus is a constitutional right entrenched in s. 10(c) of the Charter and is a legal remedy that is fundamental to the protection from unlawful deprivations of liberty: see Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467, at paras. 1 and 20-21. The issue before the court is of public importance and transcends the immediate parties.

[39] This is not a private dispute, but instead one involving the state. As such, the more onerous standard for interventions in private disputes does not apply here: Foster v. West, 2021 ONCA 263, at para. 11; Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 23; and Huang v. Fraser Hillary’s Limited, 2018 ONCA 277, at para. 5.

[40] I am not persuaded by Canada’s argument that habeas corpus applications are not well-suited for interveners because habeas corpus applications are meant to be an expeditious process. This is not a standard habeas corpus application and this appeal relates to a threshold issue regarding what constitutes a “deprivation of liberty” such that that habeas corpus is available.

b) Useful contribution

[41] The proposed interveners are well-positioned to assist the court as they are all established and reputable organizations with specialized knowledge and expertise. As discussed above, I am satisfied that the specific submissions of the proposed interveners will make a useful contribution to the court for this appeal.

[42] The last issue in these motions is whether the interveners’ contributions could cause injustice in this case.

c) Injustice to the Parties

[43] There is no injustice to the parties from the positions of the proposed interveners as they do not inappropriately weigh in on the actual merits of the appeal. Rather, the proposed interveners are advancing legal arguments that are properly the subject of an intervention: R. v. Doering, 2021 ONCA 924, at para. 22. To the extent the proposed interveners are taking a position on the outcome of the appeal, in my view, that is simply a reflection that the crux of this appeal is the legal threshold for triggering a deprivation of liberty. This appeal is not a fact-specific inquiry. It is not contested that the appellants were denied transfers to a lower security institution. Of course, the factual context and the distinct perspectives offered by the proposed interveners may be relevant to the interpretation of the legal threshold.

[44] Courts have recognized that interveners need not be disinterested in the outcome of the case and may be generally aligned with a position of one of the parties: see e.g., Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749, at para. 19. In this case, all the proposed interveners are aligned with the position of the appellants. Canada has raised the concern of injustice to Canada from having to respond to multiple interveners.

[45] In Jones v. Tsige, at para. 28, this court recognized that while the court should be cautious of the “potential injustice to an original litigant by an accumulation of intervenors”, the court should also not “be quick to dispatch those with some value to add for this reason alone” as “[a]ssistance from intervenors can come in assorted shades and from different perspectives.” It is particularly important in appeals involving the state and raising issues of public importance that the court hear from different perspectives.

[46] While being mindful of five interventions aligned with the appellants, any potential injustice to the respondent can be cured by the terms of the order granting intervention.

d) Terms of intervention

[47] While not all the proposed interveners take a position on the appeal, each seeks to support in different ways the positions to be advanced by the appellants. Each friend of the court intervener seeks terms which include a factum of between 10-15 pages. In my view, 10 pages is sufficient to add the distinct perspective each intervener proposes. As an added party, JHSC is in a different position and its factum may be up to 15 pages.

[48] In light of the additional facta supporting positions advanced by the appellants, Canada should receive extra pages in its factum to enable it to respond to these interventions, though some arguments may be applicable to multiple interveners. Therefore, Canada’s factum may be up to a limit of 75 pages.

[49] With respect to oral argument, the appellants will have 1.5 hours for their submissions. The four friend of court interveners (CCLA, BLAC, CAEFS and CPLA) shall have 10 minutes each to make their submissions. Again, the JHSC as an added party intervener is in a different position and shall have 15 minutes for its oral submissions. Canada will have 1.5 hours overall to respond to the appellants and to the interveners. Therefore, the appeal shall be scheduled for one day.

[50] The interveners will not be entitled to nor subject to an order for payment of costs for the appeal.

DISPOSITION

[51] The motions for intervention are granted. There shall be no order as to costs.

“L. Sossin J.A.”