The recent decision of the Ontario Superior Court of Justice in Richard v. The Attorney General of Canada, 2024 ONSC 3800, illustrates that the amendments to the preferable procedure requirements in the Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6, (“CPA”) are not a bar to Charter breach claims asserted by vulnerable class members. The court certified the class proceeding on behalf of all persons who were detained for immigration purposes in a provincial or territorial correctional facility since May 16, 2016, including a subclass of individuals with a mental health condition. The claim asserts causes of action for Charter breaches and in negligence.
Immigrants can be detained in circumstances specified by legislation. This action does not challenge that legislation, which has been found to be constitutional. Rather, the complaint is that the detention is meant to be administrative and cannot be punitive in nature. Despite this legal imperative, Canada has a longstanding practice of incarcerating immigration detainees in provincial prisons. While imprisoned, immigration detainees are subjected to the same rules, conditions and treatment as the general criminal population. This is punitive, the claim alleges.
The Plaintiffs allege that this practice is contrary to ss. 7, 9, 12 and 15 of the Charter and a breach of a duty of care owed by Canada to the immigration detainees. Based on statistics maintained by Canada, 8,360 people were detained in a provincial prison between the start of the class period until July 18, 2023. The practice continues, so the numbers continue to grow.
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