The Ontario Superior Court of Justice (ONSC) certified a class action lawsuit on Tuesday involving the Canadian federal government and the detention of 8,360 immigration detainees in 87 provincial prisons across Canada.

The plaintiffs in the class action include two representative plaintiffs, Tyron Richard, and Alexis Garcia Paez, as well as members of a subclass of plaintiffs who have been detained in provincial prisons. In their submissions, the plaintiffs have raised possible violations of Canada’s constitutionally enshrined human rights document, the Canadian Charter of Rights and Freedoms (Charter).

The Canadian Border Services Agency (CBSA) has statutory authority under Division 6 of the Immigration and Refugee Protection Act (IRPA) to detain foreign nationals and permanent residents in Canada. The detention regime under IRPA has been regarded as Charter-compliant and constitutional since 2007 and affirmed in 2020. The plaintiffs acknowledge the detention regime is constitutional but challenge the fact the detainees were held in provincial prisons, which they argue “constitutes a punitive and non-administrative detention.”

The plaintiffs argue that holding immigration detainees in provincial prisons is unlawful according to section 3(3) of IRPA. The plaintiffs claim this practice violates sections 7, 9, 12, and 15 of the Charter and breaches the duty of care Canada owes to the detainees. 

To support their claims, the plaintiffs cite CBSA’s national detention policy manual, Enforcement Manual 20: Detention, which is meant to guide CBSA officers on using detention. According to the manual, immigration detention is “administrative detention and must not be punitive in nature.” The plaintiffs also rely on a previous Supreme Court of Canada decision in which the court held that “[i]mprisonment is always a true penal consequence.”

The Canadian government raised 15 objections regarding the plaintiffs’ Charter violations and negligence claims in the lawsuit. With respect to the government’s first objection to the plaintiffs’ cause of action under section 7 of the Charter, the government argued immigration detention does not engage a person’s rights to liberty and security of the person. However, when applying the relevant law and reviewing the facts, the ONSC found the plaintiffs had successfully shown a cause of action under section 7 and similarly dismissed each of the government’s other objections.

Since the ONSC has certified the class action, the lawsuit now moves into either a settlement between the parties or a trial in which the merits of the plaintiffs’ claims will be determined.