“The key takeaway is that the Court of Appeal has agreed entirely with what the lower court did,” said class counsel Jonathan Foreman of Foreman & Company.
“What’s important about this case overall is that the problem is a really unique human rights and social justice problem,” he added.
“If you were to speak to most Canadians, I think they’d be surprised to learn that our immigration system involves keeping people in jail when they’re not charged with any criminal offence.”
In Richard v. Canada (Attorney General), 2025 ONCA 713, the relevant period was between May 15, 2016, and July 18, 2023. The CBSA had entered into agreements with provinces and territories to house the detainees at a daily rate. There were a total of 8,360 immigration detainees that were held in 87 provincial and territorial prisons across Canada.
The plaintiffs Tyron Richard and Alexis Garcia Paez brought a class action. Their motion was certified, with the class consisting of these immigration detainees and a subclass of the detainees who had mental health conditions.
The action challenges CBSA’s “use of provincial prisons to effect detention” under the Immigration and Refugee Protection Act (IRPA) “on the basis that it violates the Charter and negligently harms the detainees.”
The plaintiffs plead that the detention of immigration detainees in provincial prisons is unlawful, as prisons are “purpose-built to punish crime,” and immigration detainees held in those prisons are treated as if they are criminal inmates.
The defendant, the Attorney General of Canada, appealed the certification, arguing that the motion judge erred in finding that it was not plain and obvious that breaches of ss. 7, 9, 12 and 15 of the Charter and the negligence claim would fail and in finding that common issues were raised.
They challenged the location and conditions of detention, which were determined by internal CBSA guidelines and agreements with provinces and territories, and not the IRPA, as it does not mention the location of detention.
Canada argued in the lower court that physical conditions in provincial prisons aligned with the administrative nature of immigration detention. The plaintiffs argued that it did not align because immigration detainees were subject to the same punitive conditions as criminal inmates.
The motion judge found the plaintiffs had pleaded material facts that could support their claim that provincial prisons “have a grossly disproportionate impact on a detainee’s liberty interest.” Justice Jonathon George rejected Canada’s argument that the motion judge did not understand that detention is not always punitive.
He stated the question on whether detention was punitive or administrative could only be answered at a merits hearing and noted that courts have held that criminal pretrial detention is punitive and those convicted are likely to have time reduced for pretrial custody.
As well, those accused of crimes pending trial have protections such as bail and a trial within a reasonable time, “neither of which are constitutionally protected safeguards in the immigration context.” He did not find any error in the motion judge’s certification of the s. 7 claim.
“There are examples where people are kept for a long period of time,” Foreman said. “There’s a process even where, when people are kept for a really long time, they continue to come back before the Immigration and Refugee tribunal for reviews.”
Justice George also found the certification of the s. 9 claim to be sound. The motion judge had found that this claim could arise “since detention is arbitrary when not authorized by law.” IRPA requires the statute to be implemented according to the Charter and international law and does not contain authorization for detention in provincial prisons. The plaintiffs had a tenable claim that their incarceration in provincial prisons cannot be authorized by IRPA’s administrative goals.
Foreman said that Canada is signatory to a number of international human rights instruments and commitments, including those that say that immigrants should not be detained in a manner that is punitive. The claim alleges that it’s failing to meet the standard of conduct and responsibilities that it committed to.
“The motion judge found that the respondents’ pleadings describe common practices in provincial prisons — such as strip searches, the use of restraints, and restricted communication with the outside world — which could render the detention punitive and grossly disproportionate to the administrative purpose of detention under the IRPA,” wrote Justice George.
Canada’s argument on the s. 12 claim was that the motion judge failed to recognize that s. 12 violations are rare and extraordinary. The appellate court rejected this argument as the motion judge correctly found it was not plain and obvious this would fail. The plaintiff’s allegation that placing immigration detainees in a penal institution was dehumanizing and degrading will only be resolved with a full evidentiary record.
On s. 15, Canada argued that “there is no basis for a discrimination claim rooted in non-citizenship.” The motion judge held that pleaded facts “could support the claim that exposing non-citizens to the carceral system without criminal charge has the effect of reinforcing, perpetuating, and exacerbating the disadvantages and vulnerabilities associated with being a non-citizen.”
The plaintiffs had argued that the CBSA’s practice “exposes non-citizens to incarceration in prison for purely administrative reasons, whereas citizens can only be incarcerated under our criminal law.”
“There’s no basis on which a Canadian citizen could be placed in a jail unless they were charged with a criminal offence,” emphasized Foreman, on the s. 15 claim. “Yet, in the immigration setting, it’s like a default practice, so a non-citizen was placed in a jail for a non-criminal purpose.”
The Supreme Court of Canada had previously noted that a s. 15 claim on citizenship may succeed where detention is no longer related to the goal of deportation. The alleged punitive effects may render such detachment from the administrative purpose, making this claim available.
The motion judge acknowledged that class members were acutely vulnerable, facing “language barriers, cultural differences, lack of familiarity with Canadian culture, unfamiliarity with Canadian laws, lack of resources, a lack of official travel documentation, and mental health issues.”
The pleaded facts could sustain a negligence claim on the basis that Canada has a duty of care in administering the detention regime in IRPA and breached that duty by holding immigration detainees in provincial prisons, causing reasonably foreseeable damages. It was found that the claim did not “challenge core policy decisions” and was “pregnant with allegations of negligence at the operational level.”
Foreman said the Charter claims and negligence claim were consistent with a number of other cases related to incarceration.
“These are criminal law examples. If you were to place, for example, a youth with mental health problems in segregation in jail, that has become a major dispute in the law,” he said. “So this case is building on some of those earlier cases, and there are now a series of cases that deal with government responsibility to be incarcerated.”
Canada argued that certain common issues would become individual because the detainees were placed in provincial prisons for different reasons based on individualized assessments, referring to the form that CBSA uses to determine whether the IHC or provincial prison is appropriate while considering various factors.
The motion judge found this was irrelevant given the plaintiff’s claim that Canada “cannot ever lawfully impose punitive detention on an immigration detainee, regardless of the circumstances.” Even if this was relevant, there was some basis for systemic commonality in the decision-making process and the form itself.
“Further, there was some basis in fact that the CBSA’s placement decisions were guided by policies and practices that had nothing to do with individualized assessments of detainees, including overcrowding and IHC capacity,” the court wrote.
Immigration detainees in IHCs had greater privacy, autonomy and access to information on their legal status, the motion judge had noted, holding that the trial court could explore the common issues without evidence from individual class members.
“In staking out its position Canada appears to assume that because detention under the IRPA is supposed to be administrative, that the detention in question is in fact administrative and therefore lawful,” wrote Justice George.
“That could very well be the finding at the end of the day, but if there is some basis in fact to suggest that immigration detention in provincial prisons is unlawful across the proposed class, this issue is for the common issues judge to decide.”
Canada did not identify any palpable and overriding errors. The appeal was dismissed. Justices Bradley Miller and Peter Lauwers agreed.
The CBSA said it is reviewing the decision to determine possible next steps and declined to comment further due to ongoing litigation.
Counsel for the plaintiffs were also Jean-Marc Metrailler and Annie Legate-Wolfe of Foreman & Company, Jonathan Lisus and Zain Naqi of Lax O’Sullivan Lisus Gottlieb, Cory Wanless and Adam Babiak of Phillips Barristers and Subodh Bharati of SSB Law.
Counsel for Attorney General of Canada were Negar Hashemi, Sharon Stewart, Rishma Bhimji, Nimanthika Kaneira and Jazmeen Fix.
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