Last Updated on December 5, 2017

By: Colin Singer – Published in Lawyers Daily December 5, 2018

December 5, 2017 – Canada’s treatment of immigration detainees is back in the spotlight after a 50-year old woman died recently while in an Ontario maximum-security detention facility by Canadian immigration officials.  She was the 10^th person to die in immigration detention since 2012 and the sixteenth since 2000.

This controversial practice is the subject of human rights activists who urged the UN to put pressure on the federal government.  A joint submission has been filed to the UN Human Rights Council in Geneva calling for it to urge Ottawa to set up an independent body to oversee the Canada Border Services Agency.

The council begins its review of Canada’s human rights record at the start of 2018, a study that is conducted once every four years.

Central to the issues raised in the submission is Canada’s indefinite detention of immigration detainees.

Quick Fact

In 2016-2017, a total of 162 minors were detained or housed with parents or guardians in an Immigration Holding Centre. This represents a 19.4% decrease over the previous year (2015-2016) and a 30.2% decrease since 2014-2015.

“In many cases, this treatment constitutes arbitrary detention, as well as cruel, inhuman, and degrading treatment,” the joint submission said.

“There is no legislatively prescribed limit to the length of detention, and as such, detainees have no way to ascertain how long they will spend in detention. A needlessly punitive culture persists within the immigration detention system, and it is enabled by a series of systemic issues that must be addressed through legislative, regulatory, and policy amendments.”

Canada’s detention of children and people with mental health issues is also controversial, while the use of provincial jails to house certain immigration detainees is another central problem.

The previous government frequently jailed more than 10,000 migrants per year, including hundreds of children as young as age 16, without charge.  In 2016, official numbers showed 6,251 people, including 162 children, were being held in detention, down from 8,739 and 232 children in 2012.

Only Developed Nation

Canada is one of the only developed nations in the world to detain immigrants indefinitely. The European Union places an 18-month limit for its members in special cases, with many of them setting their own lower limits. U.S. rules state that, after six months, if deportation is not ‘reasonably foreseeable’, the detainee should be released.

CBSA officials hold people if they are deemed dangerous, considered a flight risk, or their identity cannot be confirmed.

The average length of detention is three weeks, but a significant number of cases lead to months and years behind bars.

One common problem is an inability to prove citizenship, meaning the countries that detainees claim as home are unwilling to take them.

Overcrowding in immigration detention centres means many are held in high-security provincial jails, a practice that has drawn major criticism, especially in light of the recent death in Ontario.

Other key parts of the argument include that monthly detention reviews are unfair and do not protect rights, that the CBSA has too much unchecked power to decide who is held where, as well as the lack of a limit on detention.

CBSA Framework

The CBSA recently released a new framework aimed at overhauling the immigration detention system.

The ‘National Immigration Detention Framework’ looks at ways to end the controversial practice of putting immigration detainees in provincial jails. It also looks at ways to considerably drop the number of children held in immigration detention.

The document would represent a significant change in Canada’s immigration detention policies, although it is not a commitment by the CBSA. Instead, it is described as a statement of direction.

The document is the result of consultations conducted in 2016 with stakeholders.

“The CBSA is committed to informing and engaging Canadians on government programming and policy proposals,” the report reads.

“Input received through this important citizen engagement activity will help inform transformations of Canada’s immigration detention program.”

Why Are Immigrants Detained?

Immigrants are detained if:

1. They are deemed dangerous.
2. They are a flight risk.
3. They are unable to prove their identity.

The federal government is concerned that if it set a limit on immigration detention, detainees would simply not cooperate until that limit was reached.

The report reads: “Constructive input from stakeholders and Canadians on the new National Immigration Detention Framework is critical to establishing a detention program that reflects Canadian democratic values ― one that is better, fairer and provides humane and dignified treatment of individuals while upholding public safety.”

Support for ending the use of jails has gathered pace after three immigration detainee deaths in 2016 and 15 in total since 2000.

Open Letter

Human rights groups have also raised concerns over the detention of migrant children.

More than 100 senior Ontario lawyers in 2016 signed an open letter to Yasir Naqvi, Ontario Community Safety and Correctional Services Manager, expressing concerns that detainees are having their basic human rights violated.

The letter read: “We are gravely concerned that there are no public laws or regulations governing when and in what circumstances an immigration detainee can be transferred to, and incarcerated in, a provincial jail.” It added that third of the 7,300 immigrants in custody in 2014 were being housed in provincial jails.

Spending Plan

The federal government announced in August 2016 it would spend $138 million on improving Canada’s immigration detention system.

New, bigger holding centres in Laval and Vancouver will command most the spending, as the government looks to reduce the number of detainees housed in provincial jails.

Community monitoring programs are also set to be used more.

The report reads: “Expanding the availability and use of detention alternatives, working closely with trusted partners, improving immigration detention infrastructure and thoroughly reviewing detention policies and standards are critical to transforming Canada’s immigration detention program.”

Last week Ottawa issued a new directive aimed at keeping children out of immigration detention.

The National Directive for the Detention or Housing of Minors calls for the best interests of the child to be placed at the centre of immigration detention decisions made by the Canada Border Services Agency (CBSA).

It aims to keep children ‘out of immigration detention as much as humanly possible’, according to Public Safety Minister Ralph Goodale. Alternatives can include in-person reporting, cash or performance bonds, community supervision and voice reporting.

While this development is laudable, stakeholders need to place further pressure on our federal government to align its cruel, indefinite incarceration detention policies with other western nations. 

Colin R. Singer is immigration counsel for www.immigration.ca.  He can be reached via Twitter: @immigrationca.

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