Richard v. The Attorney General of Canada:

A Critical Analysis of Immigration Detention in Canadian Provincial Jails Under the European Convention on Human Rights

Abstract

On 5 July 2024, the Superior Court of Justice of Ontario declared admissible a class action lawsuit against Canada’s federal government’s policy of detaining immigrants in provincial jails on the basis that it could amount to a violation of several rights protected under the Canadian Charter of Rights and Freedoms. In this article, we engage in a hypothetical exercise in which we seek to establish what would be the outcome of the case if it were to be decided under the Council of Europe’s human rights framework in general, and the European Court of Human Rights’ case law on immigration detention specifically. Building on the evidence provided by several national and international organizations, we argue that Canada’s policy of detaining immigrants in provincial jails would amount to cruel and unusual treatment contrary to article 3 of the European Convention on Human Rights. The conclusions of this article are purely speculative, yet they contribute to the painting of a more complete, critical, and complex portrait of Canada’s immigration detention policies from a European perspective. The article also highlights how the focus of both European and Canadian courts on the conditions of detention may overshadow any debates on the legitimacy of immigration detention itself.