August 17, 2015

Criticism Continues for Canada’s Immigration Detention System

Posted by Legal Team - Bellissimo Law Group PC

Canada’s immigration detention system has been the focus of much scrutiny in recent months. On July 23rd, the United Nations Human Rights Committee released a report raising a number of concerns with the Canadian system, including lengthy periods of detention and inadequate treatment for detainees suffering from mental health conditions. This report, which reviewed Canada’s compliance with the International Covenant on Civil and Political Rights, offered the following recommendation with respect to immigration detention:

The State party should refrain from detaining irregular migrants for an indefinite period of time and should ensure that detention is used as a measure of last resort, that a reasonable time limit for detention is set.

This strong statement is not surprising, given that immigration detention in Canada has no prescribed limit, unlike other Western countries which have established a presumption against detention in excess of 90 days (and judicial oversight should longer periods of detention be ordered).

In sharp contrast, recent research has highlighted cases of immigration detainees in Canada being held for seven or eight years, unable to be removed to their countries of origin often because their identities cannot be positively confirmed. While most detainees are legally entitled have their continued detention reviewed every 30 days, in reality, release rates are at only 15 per cent nationally, and 9 per cent in Ontario. This does not even address the cases of Designated Foreign Nationals (deemed as “irregular arrivals” under subsection 20.1 of the Immigration and Refugee Protection Act), who face mandatory detention and the review of their continued detention only every 6 months.

The UN Human Rights Committee’s report was released following extensive research conducted in the Canadian context. A study released by the University of Toronto law school’s International Human Rights Program (IHRP) found that Canada breaches international human rights obligations on a routine basis by detaining non-Citizens with mental health conditions in maximum-security prisons for extensive periods of time. The IHPR’s study, entitled, “‘We Have No Rights’: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada,” was presented to the UN in July.

IHPR executive director, Renu Mandhane, said that their research revealed “shocking gaps in the rule of law,” especially given that there are no legal criteria governing how or when a detainee is to be transferred from an immigration holding centre to a provincial jail. One third of immigration detainees in Ontario were found to be held in provincial prisons intended for criminal populations. The IHRP study found:

Once a detainee finds him or herself in provincial jail, they fall into a legal black hole where neither CBSA nor the provincial jail has clear authority over their conditions of confinement. This is especially problematic since in Ontario at least, there is no regular, independent monitoring of provincial jails.

The IHRP study also includes an interview with Reg Williams, the director of Canadian Border Services Agency’s (CBSA) immigration enforcement in Toronto from 2004 to 2012. Mr. Williams explained a concerning trend, stating that “the culture [of the CBSA] is heading in one direction only—towards a more para-militaristic organization where the emphasis is on power and force, and less on interaction, cooperation and engagement.”

This intense focus on immigration detention follows the June 11th death of Abdurahman Ibrahim Hassan, a Somali foreign national who suffered from mental illness. Mr. Hassan died in a Peterborough hospital after three years in immigration detention. As recently as last week, protesters were demanding an inquest into the circumstances surrounding Mr. Hassan’s death.

There is no doubt that the immigration detention regime in Canada demands increased scrutiny and review, not only due to alarming human rights implications, but also considering the ever-expanding costs associated with increased detention. On the whole, the UN’s recommendations are a stark reminder of the work that needs to be done if Canada is to reassert itself as a world leader in the promotion and protection of human rights.