Executive Summary: Key Legal and Evidentiary Issues

• Legality of detaining immigration detainees in provincial prisons rather than Immigration Holding Centers under the Charter.

• Adequacy of the pleadings for Charter breaches (sections 7, 9, 12, and 15) and systemic negligence.

• Distinction between administrative and punitive detention and its impact on detainees’ rights.

• Commonality of issues for class certification, including whether systemic practices can be litigated collectively.

• Scope of Canada’s duty of care to detainees and whether operational negligence claims can proceed.

• Determination of appropriate remedies, including damages and whether they can be assessed on an aggregate basis.

Facts of the case

Between May 15, 2016, and July 18, 2023, the Canada Border Services Agency (CBSA) detained certain non-citizens under the Immigration and Refugee Protection Act (IRPA) in provincial prisons instead of specialized Immigration Holding Centers (IHCs). This practice affected 8,360 immigration detainees, including a subclass with mental health conditions, who were held in 87 provincial and territorial prisons across Canada. The CBSA’s agreements with provinces and territories enabled this arrangement, with detainees housed at a daily rate.

Tyron Richard and Alexis Garcia Paez, representing the affected detainees, initiated a class action under the Class Proceedings Act. Their claim did not challenge the lawfulness of detention under the IRPA itself, but rather the practice of placing immigration detainees in provincial prisons. They argued that such detention was unlawful, punitive, and contrary to the Charter, and that it resulted in negligent harm to detainees. The core of their argument was that prisons are designed for punishment, not administrative immigration detention, and that detainees were treated as criminal inmates.

Certification of the class action and the legal issues

The motion judge certified the class action, finding that the Charter and negligence claims were adequately pleaded and not “plain and obvious” to fail. The judge also found an identifiable class and a sufficient basis in fact for the proposed common issues. Canada, represented by the Attorney General, appealed this certification, arguing that the claims disclosed no cause of action, that the motion judge misunderstood the nature of detention, and that common issues could not be resolved without individual findings.

Discussion of Charter and negligence claims

The Court of Appeal addressed whether the claims under sections 7 (life, liberty, and security of the person), 9 (arbitrary detention), 12 (cruel and unusual treatment), and 15 (equality) of the Charter could proceed. The court distinguished this case from previous decisions, noting that the challenge was to the location and conditions of detention, not the statutory authority to detain. The court found that the pleadings, if proven, could support claims that detention in provincial prisons was punitive and grossly disproportionate to the administrative purpose of immigration detention.

The court also found that the motion judge properly applied the legal tests for striking claims and for class certification. It rejected Canada’s arguments that previous case law (such as Brown v. Canada and Ogiamien v. Ontario) precluded the claims, emphasizing that the facts and legal issues in those cases were different.

On the negligence claim, the court held that the pleadings alleged a systemic practice—detaining immigration detainees in provincial prisons—that could support a class-wide duty of care and breach. The court distinguished this case from Brazeau v. Canada, finding the pleadings more akin to those in Francis v. Ontario, where systemic negligence was certified.

Policy terms and relevant clauses

The case involved interpretation of the IRPA and its silence on the location of detention, as well as internal CBSA guidelines such as Enforcement Manual 20: Detention (ENF-20), which states that immigration detention must not be punitive. The court noted that the IRPA requires implementation in accordance with the Charter and international law, and that the CBSA’s practices must align with these principles.

Outcome and ruling

The Court of Appeal dismissed Canada’s appeal, upholding the certification of the class action. The court found no palpable and overriding error in the motion judge’s findings on the adequacy of the pleadings, the existence of common issues, or the appropriateness of class-wide remedies. The court emphasized that the core issue—whether detaining immigration detainees in provincial prisons is unlawful—could be determined on a class-wide basis. The parties were invited to resolve costs by agreement or written submissions, but the exact amount of costs or monetary award had not been determined at the time of the decision. The successful party in this appeal was the class of immigration detainees, represented by Richard and Garcia Paez.