Immigration Class Action —
This certified class action brought against the Government of Canada alleges that the practice of holding Immigration Detainees in Provincial Prisons is unlawful.
Class Actions
Case Overview
Every year, thousands of Immigration Detainees are incarcerated in Provincial Prisons, including refugees, migrants, and even permanent residents who have lived here for many years. This proposed class action is brought against the Government of Canada on behalf of those Immigration Detainees, alleging that their detention in Provincial Prisons is unconstitutional and contrary to domestic and international legal standards.
Who is an Immigration Detainee?
Immigration Detainees are non-citizens who are detained pursuant to the Immigration and Refugee Protection Act. The majority of Immigration Detainees are held because the federal government believes they are a flight risk and will not appear for an immigration hearing or for removal from Canada – they are detained solely for this administrative reason, and pose no risk to public safety.
Any Immigration Detainee who has been detained in a Provincial Prison (for immigration purposes) since May 16, 2016, is included in this proposed class action.
More specifically, this action is brought on behalf of:
All persons who were detained by the Canadian Border Security Agency (the “CBSA”) under Division 6 of Part I of the Immigration and Refugee Protection Act in a provincial or territorial correctional facility (“Provincial Prison”) as of May 16, 2016, to the date of certification of this action (the “Class” or “Class Members”), including a subclass of:
All Class Members who were identified by the CBSA as presenting with symptoms, diagnosis, or active treatment for a mental health condition in a National Risk Assessment for Detention form or medical assessment completed prior to, or during, the Class Member’s detention in a Provincial Prison.
What is the class action lawsuit about?
Under Canadian and international legal rules, immigration detention cannot be punitive in nature, because it is done for administrative reasons, not because of criminal conduct by the Immigration Detainee. Therefore, Immigration Detainees should be separated from those held for criminal reasons. Despite this, many Immigration Detainees are imprisoned in Provincial Prisons (facilities designed specifically for punitive purposes), where they are housed alongside those serving criminal sentences. While in prison, Immigration Detainees are subjected to the same restrictive and violent environment as criminal inmates, despite not being detained for any criminal purpose.
The majority of Immigration Detainees—approximately two-thirds—have been held in a Provincial Prison, rather than a specially built immigration holding centre. Unlike convicted criminal inmates who serve a fixed sentence in prison, Immigration Detainees face a potentially indefinite period of incarceration. This uncertain nature of when their detention will end, some stretching for months or even years, can cause or worsen mental health issues.
In June, 2021, a Joint Report was published by Human Rights Watch and Amnesty International condemning the practice of placing Immigration Detainees in prisons. Since that Report was released, one by one, the Provinces have terminated or confirmed that they will not be renewing their contracts with Canada to hold Immigration Detainees in their prisons.
The plaintiffs in the proposed class action lawsuit are two Immigration Detainees who were detained on the grounds that they were flight risks but were sent to maximum security Ontario prisons rather than the Immigration Holding Centre in Toronto.
The plaintiffs allege, on behalf of all Class Members, that detention of Immigration Detainees in Provincial Prisons is a violation of their Charter rights, a breach of the federal government’s tort and fiduciary duties to them, and contrary to domestic and international legal requirements which mandate that immigration detention must be administrative and non-punitive in nature.
The class action also alleges that Immigration Detainees with mental health conditions (i.e. members of the Subclass) are discriminated against in the practice of detention in Provincial Prisons, in violation of their Charter right to equality.
On July 5, 2024, the Ontario Superior Court of Justice certified this class action, to view the full decision please click here
For more details, please view the Statement of Claim here or under the “Documents” Tab.
Contact us
If you believe that you or someone you know is part of this class action lawsuit, we would like to hear from you. Please contact us using the form in the “Ask a Question” Tab, call us at 1-800-991-0286, or email us at reception@waddellphillips.ca. All communications will be kept confidential.
Case Overview
Every year, thousands of Immigration Detainees are incarcerated in Provincial Prisons, including refugees, migrants, and even permanent residents who have lived here for many years. This proposed class action is brought against the Government of Canada on behalf of those Immigration Detainees, alleging that their detention in Provincial Prisons is unconstitutional and contrary to domestic and international legal standards.
Who is an Immigration Detainee?
Immigration Detainees are non-citizens who are detained pursuant to the Immigration and Refugee Protection Act. The majority of Immigration Detainees are held because the federal government believes they are a flight risk and will not appear for an immigration hearing or for removal from Canada – they are detained solely for this administrative reason, and pose no risk to public safety.
Any Immigration Detainee who has been detained in a Provincial Prison (for immigration purposes) since May 16, 2016, is included in this proposed class action.
More specifically, this action is brought on behalf of:
All persons who were detained by the Canadian Border Security Agency (the “CBSA”) under Division 6 of Part I of the Immigration and Refugee Protection Act in a provincial or territorial correctional facility (“Provincial Prison”) as of May 16, 2016, to the date of certification of this action (the “Class” or “Class Members”), including a subclass of:
All Class Members who were identified by the CBSA as presenting with symptoms, diagnosis, or active treatment for a mental health condition in a National Risk Assessment for Detention form or medical assessment completed prior to, or during, the Class Member’s detention in a Provincial Prison.
What is the class action lawsuit about?
Under Canadian and international legal rules, immigration detention cannot be punitive in nature, because it is done for administrative reasons, not because of criminal conduct by the Immigration Detainee. Therefore, Immigration Detainees should be separated from those held for criminal reasons. Despite this, many Immigration Detainees are imprisoned in Provincial Prisons (facilities designed specifically for punitive purposes), where they are housed alongside those serving criminal sentences. While in prison, Immigration Detainees are subjected to the same restrictive and violent environment as criminal inmates, despite not being detained for any criminal purpose.
The majority of Immigration Detainees—approximately two-thirds—have been held in a Provincial Prison, rather than a specially built immigration holding centre. Unlike convicted criminal inmates who serve a fixed sentence in prison, Immigration Detainees face a potentially indefinite period of incarceration. This uncertain nature of when their detention will end, some stretching for months or even years, can cause or worsen mental health issues.
In June, 2021, a Joint Report was published by Human Rights Watch and Amnesty International condemning the practice of placing Immigration Detainees in prisons. Since that Report was released, one by one, the Provinces have terminated or confirmed that they will not be renewing their contracts with Canada to hold Immigration Detainees in their prisons.
The plaintiffs in the proposed class action lawsuit are two Immigration Detainees who were detained on the grounds that they were flight risks but were sent to maximum security Ontario prisons rather than the Immigration Holding Centre in Toronto.
The plaintiffs allege, on behalf of all Class Members, that detention of Immigration Detainees in Provincial Prisons is a violation of their Charter rights, a breach of the federal government’s tort and fiduciary duties to them, and contrary to domestic and international legal requirements which mandate that immigration detention must be administrative and non-punitive in nature.
The class action also alleges that Immigration Detainees with mental health conditions (i.e. members of the Subclass) are discriminated against in the practice of detention in Provincial Prisons, in violation of their Charter right to equality.
On July 5, 2024, the Ontario Superior Court of Justice certified this class action, to view the full decision please click here
For more details, please view the Statement of Claim here or under the “Documents” Tab.
Contact us
If you believe that you or someone you know is part of this class action lawsuit, we would like to hear from you. Please contact us using the form in the “Ask a Question” Tab, call us at 1-800-991-0286, or email us at reception@waddellphillips.ca. All communications will be kept confidential.
Class Action Certified
On July 5, 2024, the superior court of justice certified a class action against the Canadian government regarding the practice of incarcerating non-citizens awaiting immigration proceedings in provincial prisons. Immigration detainees are individuals who have been detained under immigration law for immigration reasons only. This decision allows the lawsuit to move forward to trial as a class action on behalf of approximately 8,600+ immigration detainees detained by Canada in provincial prisons since May 15, 2016.
You can read the decision here:
Richard v. The Attorney General of Canada, 2024 ONSC 3800 (CanLII), https://canlii.ca/t/k5mx6
Canada is appealing from the certification decision. The appeal will likely be heard in the Spring of 2025.
Financial Support for this Action
The Ontario Class Proceedings Fund has agreed to provide financial support for this proceeding. It will reimburse the class counsel for many of the costs associated with prosecuting the action, and it will cover the expense of any adverse court costs that might be made against the plaintiffs. In exchange for assuming these costs and the risk, the Fund will be paid a levy equal to 10% of the net recovery received by the Class if the action was successful, as well as reimbursement of any disbursements that it pays for. The Fund plays an important role in providing access to justice by protecting the plaintiffs from the risk of having to pay hefty court costs if any step in the litigation is not successful, and by funding the expensive disbursements that are involved in prosecuting a lawsuit.
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