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Immigration - Detention. Richard v. Canada (Attorney General)
In Richard v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown appeal, here brought against a motion judge's certification of a class proceeding where "the Canada Border Services Agency (“CBSA”) placed some immigration detainees ... in provincial prisons instead of Immigration Holding Centers (“IHCs”)".
Here the court considered immigration 'detention' under both Charter 7 and 9, this in a class proceeding certification context:[15] Canada essentially argues that because immigration detention is intended to be administrative, the respondents’ detention in provincial jails was in fact administrative. The problem with this argument is that Parliament’s intention is not determinative. The relevant question is whether the detention is in fact punitive or administrative, which can only be answered on a full evidentiary record at a merits hearing.
[16] Further, Canada’s attempt to analogize immigration detention to pre-trial detention in the criminal context is misplaced. First, even if not designed to be so, courts have held that criminal pre-trial detention is, in effect, punitive, and those ultimately convicted of a criminal offence are likely to have their sentences reduced to account for the time they spent in pre-trial custody: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 41; R v. Jean, 2008 BCCA 465, 242 C.C.C. (3d) 569, at para. 17. Second, those accused of crimes being held pending trial are afforded several protections including the right to reasonable bail and a trial within a reasonable time, neither of which are constitutionally protected safeguards in the immigration context.
[17] Canada wades into the merits when it argues that “the conditions of immigration detention in a [provincial prison] are not a punishment nor are they punitive, consistent with this Court’s holding in Ogiamien.” In Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, 416 D.L.R. (4th) 124, this court held that lockdowns at a provincial correctional facility did not deprive two inmates of their “residual liberty” in prison, and in any case were in accordance with the principles of fundamental justice because they were necessary to manage risk and ensure safety at the facility: paras. 75-85. Ogiamien does not stand for the proposition that immigration detainees are not subject to penal conditions in provincial prisons, or that those conditions, including lockdowns, can never amount to a s. 7 violation. The inquiry here is whether prison conditions are rationally connected to immigration detention’s administrative objective and not to the objective of safeguarding the safety and security of prison staff and inmates, as was the case in Ogiamien.
[18] There is no basis to disturb the motion judge’s certification of the respondents’ s. 7 claim.
Section 9
[19] Section 9 of the Charter protects individuals from being arbitrarily detained or arrested. Canada does not quarrel with the motion judge’s recitation of the relevant principles, nor does it identify any palpable and overriding error.
[20] The motion judge’s analysis of the s. 9 claim, found at paras. 196-217 of his reasons, is sound. Relying on the Supreme Court’s decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54, the motion judge found that a s. 9 claim could arise since detention is arbitrary when not authorized by law. He referred to the relevant pleaded facts, including that s. 3(3) of the IRPA requires that the statute be implemented in accordance with the Charter and international law, and that the IRPA and its regulations contain no explicit authorization for detention in provincial prisons. Earlier in his reasons, the motion judge also referred to Enforcement Manual 20: Detention (“ENF-20”), which sets the guiding principles for CBSA treatment of immigration detainees and provides that “immigration detention is an administrative detention and must not be punitive in nature.” On these facts, the motion judge concluded that the respondents have a “tenable claim that incarceration of Immigration Detainees in provincial prisons cannot be authorized by IRPA, which is alleged to be designed for administrative and not punitive immigration goals.”
[21] Canada argues that the practice of placing immigration detainees in provincial prisons is not arbitrary because it is informed by non-arbitrary, objective factors as articulated in the National Risk Assessment for Detention (“NRAD”), a form used by CBSA officers to determine if an immigration detainee should be held in an IHC or provincial prison. However, lack of arbitrariness in the NRAD does not save the appellant from the arbitrariness that flows from the detention itself not being authorized by law as articulated in Grant.
[22] Referring again to Brown, Canada argues that there can be no question about the lawfulness or authority of the IRPA. However, as discussed already, Brown casts no judgment on the practice of immigration detention in provincial prisons.
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