Ms. Toussaint’s diabetes and hypertension led one of her doctors to declare in a 2010 affidavit that Ms. Toussaint would be at extremely high risk of suffering severe health consequences if she does not receive health care in a timely fashion. Despite the severity of her condition, Ms. Toussaint was found to be ineligible for the program because she was not a refugee or other protected person, victim of human trafficking or detained migrant.

A citizen of Grenada, Ms. Toussaint had initially been admitted to Canada with a temporary resident visa and had worked in Canada from 1999 to 2006 without status. She found herself unable to work due to her medical condition and pleaded with health care professionals for assistance. In September 2008, Ms. Toussaint applied for permanent residence on humanitarian and compassionate grounds. However, her application was not reviewed because she could not afford to pay the processing fee and was denied a fee waiver. She applied for IFHP coverage but her application was refused in July 2009.

In December 2013, Ms. Toussaint filed a petition with the UN Human Rights Committee. The Committee adopted the view on 24 July 2018 that Canada had violated her rights to life, to equality before the law and to equal protection of the law without discrimination, recognized in the International Covenant on Civil and Political Rights. Canada was obligated to provide Ms. Toussaint “with adequate compensation for the harm she suffered” from 2009 to 2013 and under an obligation to take steps to prevent similar violations in the future, including reviewing its national legislation to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life.

The road to some semblance of justice for Ms. Toussaint was certainly long. She had previously challenged the decision to deny her IFHP coverage in the Federal Court and Federal Court of Appeal without success. Additionally, the Supreme Court of Canada refused leave to appeal. In the domestic courts she argued that her rights under the Canadian Charter of Rights and Freedom to life, liberty and security of person and to non-discrimination had been violated. She alleged discrimination against her on the basis of disability and citizenship. Her application for judicial review was dismissed by the Federal Court, which interpreted Order-in-Council P.C. 157-11/848 – in force from 1957 to 2012 and the root of the IFHP eligibility criteria – in line with the Citizenship and Immigration Canada director’s decision to refuse her application. The Court found that the purpose of the IFHP is to provide temporary healthcare to legal migrants. Canada also provides IFHP coverage to some illegal migrants, such as victims of trafficking, who are often unwittingly illegal migrants. Canada feels responsible for such illegal migrants because of the fact that they have been exploited by unscrupulous human traffickers. Ms. Toussaint is neither a legal migrant nor is she unwittingly an illegal migrant. Although she entered this country legally, she chose to remain here illegally; there is nothing stopping her from returning to her country of origin. She has chosen her illegal status and, moreover, she has chosen to maintain it…

(Source)

The post UN Releases Decision on Access to Canada’s Interim Federal Health Plan for Undocumented Migrants first appeared on Bellissimo Law Group.

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 11^th 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.

(Sources)

The post Criticism Continues for Canada’s Immigration Detention System first appeared on Bellissimo Law Group.