Court Certifies Class Action Against Federal Practice of Holding Immigration Detainees in Prisons
Karunjit Singh
Originally published on Law360 Canada, formerly, The Lawyer’s Daily, © LexisNexis Canada Inc.
The Ontario Superior Court has certified a class action against the federal government over the use of provincial prisons to hold immigration detainees between 2016 and 2023.
In Richard v. The Attorney General of Canada, 2024 ONSC 3800, released on July 5, Justice Benjamin Glustein rejected arguments that claims alleging the practice violated immigration detainees’ Charter rights were bound to fail.
“Detainees were incarcerated in provincial prisons and encountered 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 judge wrote.
The representative plaintiffs, Tyron Richard and Alexis Garcia Paez, were two of 8,360 persons detained by the Canadian Border Services Agency (CBSA) and incarcerated in 87 provincial and territorial prisons across Canada.
These individuals were detained under provisions of the Immigration and Refugee Protection Act (IRPA), which permits the arrest and detention of non-citizens for identity verification, public protection and ensuring their appearance at future immigration proceedings.
According to the CBSA’s enforcement manuals, immigration detention is an administrative detention and must not be punitive in nature.
However, the plaintiffs alleged that they were subjected to the same rules, conditions and treatment as the general criminal population.
These conditions were not imposed on immigration detainees at immigration holding centres (IHCs), which are considered the default detention facility for immigration detention. The CBSA only runs three IHCs with a combined total capacity of 406 persons.
Starting with B.C. in 2022, provinces began announcing that they were ending their agreements with CBSA to hold immigration detainees in provincial prisons. All such agreements with provinces will end by Sept. 18, 2024.
In an affidavit, Richard described his life in prison as “a living hell” and that visits with his friends and family were conducted in booths through glass, using a telephone and limited to only 15 to 20 minutes.
He submitted that he was subjected to dozens of strip searches while in prison.
“I was required to strip off my clothes, turn around, bend over, spread my buttocks, and undergo an inspection of my anus by a guard with a flashlight, and to undergo a visual inspection under and next to my genitals,” Richard said in an affidavit.
Garcia Paez described his experience in prison as “very traumatizing” with a “violent” atmosphere. He submitted that he was also subjected to strip searches.
Richard and Garcia Paez brought an action alleging that the practice of holding immigration detainees in prisons violated their rights under ss. 7, 9, 12, and 15 of the Charter and was a breach of a duty of care owed by Canada to the immigration detainees.
They brought an action on behalf of immigration detainees who were held in prisons during the relevant period, seeking damages and other declaratory relief restraining the alleged unlawful behaviour.
They also sought to certify a subclass of additional claims on behalf of immigration detainees with mental health conditions.
Canada objected to the proposed certification, arguing that the plaintiffs’ pleadings did not disclose a cause of action under the relevant sections of the Charter or for a claim of negligence.
With respect to allegations that the practice violated the plaintiffs’ right to liberty under s. 7 of the Charter, Canada submitted that the detention scheme was carefully tailored to safeguard public safety and the integrity of Canada’s immigration and refugee protection regime.
The Crown argued that detention may be justified under certain circumstances, such as border security, public safety or ensuring compliance with immigration laws, provided it is conducted in accordance with principles of fundamental justice.
Justice Glustein noted that the Crown cited no authority that detention by incarceration of an individual does not engage rights to liberty and security of the person under s. 7.
“The common issues judge can consider the merits of Canada’s position on whether incarceration (rather than detention) is ‘carefully tailored’ or ‘justified,’” noting that it wasn’t plain and obvious that the claim of deprivation of the right to liberty and security of the person would fail.
Canada also argued that the plaintiffs’ s. 9 claim was bound to fail, citing Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, in which the Federal Court of Appeal held that the immigration detention scheme, when carried out in a manner consistent with fundamental principles of justice and proportionality, was not in breach of s. 9 of the Charter.
Justice Glustein rejected this argument, noting that it was not beyond doubt that the analysis in Brown applied to the case at bar.
“[I]n the present case, the plaintiffs do not challenge the constitutionality of the immigration detention system. Rather, the plaintiffs challenge the CBSA practice of incarcerating Immigration Detainees in provincial prisons,” the judge wrote.
The court noted that the plaintiffs had alleged material facts to support a claim that the impugned incarceration was not authorized by IRPA, the regulations or international law and that they had argued that the practice of incarcerating immigration detainees in provincial prisons is contrary to Charter rights ab initio.
The court held that the plaintiffs’ claim disclosed a cause of action for the breach of s. 9 of the Charter.
Canada also argued that the plaintiffs’ claim does not disclose a cause of action under s. 12 of the Charter, which provides the right to not be subjected to cruel or unusual punishment.
The court rejected Canada’s argument that the punitive treatment of immigration detainees incarcerated in provincial prisons did not rise to the level of being “grossly disproportionate,” concluding that it was a merits-based argument that should be determined on a full record.
Canada also argued that the plaintiffs’ claim that CBSA practice constituted discrimination under s. 15, both based on citizenship and mental disability disclosed no cause of action.
The Crown argued that it was beyond doubt that there could be no distinction based on citizenship because the immigration detention process, by definition, applies only to non-citizens.
The plaintiffs submitted that their claim was not rooted in differential treatment regarding the right to remain in Canada but in differential treatment regarding the circumstances in which one may be detained in a penal institution.
Justice Glustein observed that the material facts alleged by the plaintiffs supported a claim that the CBSA practice of incarcerating immigration detainees in provincial prisons was not related, in effect or practice, to the administrative detention required under the IRPA.
Canada also submitted that there was no discrimination based on mental stability as the decision to place an immigration detainee in a provincial prison was rationally connected to the capacities of the different kinds of facilities in terms of ensuring the safety of the detainee and others and the kinds of medical care that are available in each facility.
The court held this was a merits-based position and that factual issues would need to be resolved at trial on a full evidentiary record.
Justice Glustein held that the s. 15 claim disclosed a cause of action based on citizenship and mental disability.
Canada also argued that the plaintiffs’ claim did not disclose a cause of action in negligence as it was plain and obvious that the CBSA decision to incarcerate immigration detainees in provincial prisons was a core policy decision and was immune from liability.
The Crown argued that the CBSA practice was a core policy decision because the agreements were signed by high-level officers whose official responsibility required them to assess and balance public policy considerations.
The court held that the determination of whether the CBSA practice was an operational or policy decision would depend on the evidence at a common issues trial and the application of any factual findings to the relevant legal principles.
The court held that it was not plain and obvious that the CBSA practice was a core policy decision.
Justice Glustein certified the action as a class proceeding for the proposed class and subclass pursuant to s. 5 of the Class Proceedings Act.
A spokesperson for the CBSA, Karine Martel, said that the decision that leads to placement in a provincial facility is limited to the most difficult cases when there are serious concerns about danger to the public, or to other detainees or staff.
“This often means the person has been convicted of an offence in Canada or abroad, such as sexual offences, violence, weapons, or drug trafficking,” Martel told Law360 Canada in an email.
The spokesperson noted that when someone is held for being unlikely to appear, they may also have prior convictions and outstanding charges for violent crimes, such as attempted murder and aggravated sexual assault, or may have demonstrated violent, noncompliant and unpredictable behaviour that places them, other detainees, the guards and medical personnel at risk.
“The CBSA assessment of these individuals is that they are likely to continue to carry out activities related to serious criminality and possibly disappear to avoid removal,” she added.
Martel noted that as the provinces have indicated that they are no longer willing to support immigration detention in their facilities, the CBSA is taking steps to house higher-risk individuals in its own facilities.
“Our priority remains to remove inadmissible individuals from Canada as soon as possible, with a particular focus on individuals who are inadmissible for reasons such as serious criminality,” she said.
Co-counsel for the class, Cory Wanless of Waddell Phillips PC, said that the vast majority of the immigration detainees held in prisons during the class period were detained by the CBSA based solely on concerns that they may not appear at future immigration proceedings.
“In fact, 80 per cent of immigration detainees in prisons were held on the ground of ‘flight risk’ alone. The representative Plaintiff Tyron Richards is a prime example of this,” he told Law360 Canada in an email.
80 per cent of immigration detainees in prisons were held on the ground of ‘flight risk’ alone. The representative Plaintiff Tyron Richards is a prime example of this
He added that it was not acceptable to hold immigration detainees in prisons, regardless of the reason, noting that any issues regarding criminality can be and are dealt with by the criminal justice system in Canada.
“Canada must stop the harmful practice of incarcerating immigration detainees in prisons — whether provincial or federal — for once and for all,” said Cory Wanless of Waddell Phillips PC, co-counsel for the class,” he said in a release.
Jonathan Foreman and Jean-Marc Metrailler of Foreman & Company and Subodh Bharati also acted as counsel for the plaintiffs.
Counsel for Canada were David Tyndale, Rishma Bhimji, Nimanthika Kaneira, and Jazmeen Fix of Justice Canada.
