Ontario court grants class-action status to immigration detainees suing federal government
The Ontario Superior Court of Justice has certified a class-action lawsuit against the federal government over the use of provincial jails for immigration detainees.
The lawsuit represents 8,360 individuals detained by the Canada Border Services Agency (CBSA) in 87 provincial and territorial jails between 2016 and 2023.
In a decision issued Friday, the court dismissed all 15 objections raised by federal government lawyers attempting to halt the lawsuit.
“Immigration detainees were incarcerated in provincial prisons and faced the same conditions as criminal inmates, including co-mingling with violent offenders, use of restraints such as shackles and handcuffs, strip searches, and severe restrictions on contact and movement,” wrote Justice Benjamin Glustein.
Foreign nationals and permanent residents detained by CBSA under the Immigration and Refugee Protection Act are not accused of any crimes.
“According to Canadian and international law, immigration detention is administrative in nature and cannot be punitive,” states the class action.
“Nonetheless, the CBSA has a longstanding practice of detaining thousands of immigration detainees in provincial prisons through arrangements with provinces and territories. This practice violates the Charter rights of the detainees.”
The federal government has not indicated whether it will appeal the court’s decision.
Deemed a flight risk
Over the years, more than 80 percent of the detainees were held for being flight risks.
The CBSA can choose to hold an immigration detainee either in one of its three immigration holding centers or in jails used under agreements with provincial governments.
Since 2022, most provinces have withdrawn from these agreements, with some citing that the practice contradicts Canada’s human rights obligations.
“It is difficult to imagine living in a place where the government can incarcerate people who have been charged with no crime, in maximum security prisons where they are subjected to cruel conditions including solitary confinement and strip searches,” said immigration lawyer Subodh Bharati, one of the lawyers leading the class action.
“Yet this is what the CBSA does to immigration detainees — some of the most vulnerable people in our country.”
For those Bharati represents, the battle is far from over.
Certification means the court believes there’s enough evidence to justify the lawsuit, but only a future trial will determine whether the group of immigration detainees or the federal government wins the case.
The claim seeks $100 million in damages, to be divided among the complainants if they win.
Radio-Canada reached out to the offices of Public Safety Minister Dominic LeBlanc, who is responsible for the CBSA, and Justice Minister Arif Virani. Neither has provided any comments regarding the Ontario court’s decision.
