The plaintiffs can pursue their claims that the CBSA violated their Charter rights as a class
The Ontario Court of Appeal has upheld the certification of a class action lawsuit that immigration detainees brought against the federal government, paving the way for the plaintiffs to pursue claims that the Canada Border Services Agency violated the Charter of Rights and Freedoms when it incarcerated them in provincial prisons.
The plaintiffs argued that it is unlawful to hold any immigration detainee in any provincial prison, since prisons are intended to punish crime. The plaintiffs also alleged that immigration detainees held in prisons are treated as though they are criminal inmates.
The Ontario Superior Court of Justice certified Richard v. Canada (Attorney General) last year.
The government appealed that decision to the OCA, arguing that the court was wrong to find that the plaintiffs’ claims – which alleged negligence and multiple breaches of the Charter – were not doomed to fail. The government also took issue with the court’s finding that the class members’ claims raised common issues.
However, the OCA dismissed the government’s appeal of the certification on Wednesday, ruling that the lower court’s rationale for certifying the class was sound.
“The concept that because you’re an immigrant to Canada, you’re held in a jail for administrative purposes – I think that’s an extraordinary practice and it presents itself as an extraordinary legal problem,” Jonathan Foreman, a partner at Foreman & Company who was part of the team that represented the class, told Law Times on Thursday.
“We have non-citizen immigrants who are placed in jail for a non-criminal purpose as a routine matter. And we say that’s discriminatory on the basis that these are non-citizens because citizens of Canada could never be treated this way,” Foreman adds.
“There’s no scenario in which a Canadian ends up in jail unless [they’ve been] charged with a criminal offence or they’re held pending an investigation of the placement of a criminal charge.”
A CBSA spokesperson said the agency is reviewing Wednesday’s decision and will not provide further comment while litigation is ongoing.
Between May 2016 and July 2023, the Canada Border Services Agency placed 8,360 immigration detainees in 87 provincial and territorial prisons instead of immigration holding centers. The CBSA had entered into agreements with every Canadian province and territory except Nunavut to incarcerate the detainees at a daily rate, and the detainees were detained under the Immigration and Refugee Protection Act.
Two detainees, Tyron Richard and Alexis Garcia Paez, filed a motion with the Ontario Superior Court of Justice to certify a class action against the government. The proposed class would comprise the incarcerated detainees.
In its ruling approving the motion, the court noted that the detainees faced the same conditions as criminal inmates, “including co-mingling with violent offenders, use of restraints such as shackles and handcuffs, strip searches, and severe restrictions on contact and movement.” The court added that detainees housed at one of the CBSA’s three immigration holding centers in Toronto, Surrey, British Columbia, and Laval, Quebec did not encounter these conditions.
The court did not rule on the case's merits, but determined that a class proceeding was appropriate to address the plaintiffs’ claims.
The OCA sided with the lower court. The plaintiffs argued that the CBSA had violated ss. 7, 9, 12, and 15 of the Charter, which respectively guarantee the life, liberty and security of the person, the right not to be arbitrarily detained or imprisoned, freedom from cruel and unusual treatment or punishment, and equality under the law.
The appellate court disagreed with the government’s argument that these claims are bound to fail. Part of that argument was that the lower court mischaracterized detention in a prison as always “penal” and “punitive,” which the government said clouded the lower court’s analysis.
However, the OCA said the lower court “was well aware that the purpose of immigration detention is administrative and not punitive.”
The OCA added that the lower court also “clearly understood the nuances of the parties’ respective positions,” including the government’s position that “the physical conditions in provincial prisons, on balance, align with the administrative nature of immigration detention.”
The OCA also tossed out the government’s arguments that the plaintiffs could not sustain their negligence claim, or that the proposed class did not share common issues – one requirement for a lawsuit to proceed as a class action.
The government had argued that a class action was not the best way to proceed with the dispute, since resolving the common issues proposed in the lawsuit required individualized attention paid to different plaintiffs. This is because immigration detainees are placed into provincial prisons for different reasons, and detainees in other prisons face different conditions.
The lower court disagreed. The court found that the individualized circumstances of each detainee in the class were irrelevant, given the plaintiffs’ allegation that Canada cannot ever incarcerate immigration detainees.
The OCA sided with the lower court, finding no reason to disturb the lower court’s ruling.
Foreman, whose co-counsel on the case included Cory Wanless and Subodh Bharati, noted that in the lower court’s certification ruling, the court said the Immigration and Refugee Protection Act requires the CBSA to comply with “international human rights instruments to which Canada is a signatory.” Canada is a party to several international human rights treaties, including the International Covenant on Civil and Political Rights and the Convention Relating to the Status of Refugees.
“Canada has made commitments through international human rights treaties that when Canada receives immigrants and it has to detain them, it will not detain them in a way that is punitive,” Foreman says, adding, “using a jail where immigrants are held alongside criminal populations — we allege that has a punitive character.”
He adds that he believes the issues in the case resonate beyond the class members.
“By comparison, we look at what’s happening in the United States right now with respect to how the immigration regime is being handled there,” Foreman says, referring to the more aggressive approach to immigration in the US.
“In a way, what this action does is it says that Canada has a way that it has committed itself to behave. And this action seeks to enforce that commitment.”
