immigration Detention Class Action

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 domestic and international legal rules, immigration detention is an administrative measure that cannot be punitive in nature and Immigration Detainees should be separated from those held from criminal reasons. Despite this, many Immigration Detainees are imprisoned in Provincial Prisons (facilities designed specifically for punitive purposes), where they are co-mingled with 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 time spent in immigration detention—approximately two-thirds—is spent 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.

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.

For more details, please view the Statement of Claim  here