Detention

Liberty is a fundamental right and can only be taken away in limited, legally prescribed circumstances. As affirmed in the UNHCR Detention Guidelines, detention of asylum-seekers should normally be avoided.

Detention under immigration legislation should therefore only be used as a last resort and after alternatives to detention have been explored.

The CCR believes that the right to liberty of non-citizens is routinely infringed in Canada as a result of the broad use of detention. There needs to be less detention and where people are detained, it needs to be for the shortest possible period of time, and in the most humane and least carceral conditions.

Immigration detention in Canada has a profound impact on people’s dignity and comes with enormous human costs. Many of those detained suffer acute distress, and may continue to be traumatized by the experience years later. People’s mental health deteriorates while in detention. The impacts of detention are particularly felt by children and by vulnerable persons, including those who have experienced detention in the context of persecution, and those with mental health issues. Detention affects not only the people detained, but also family members and others close to the person detained.

In violation of international law, Canada’s immigration legislation leads to arbitrary detention. In the case of detention on the basis of identity or suspicion of inadmissibility, the independent tribunal responsible for review is barred by the legislation from reviewing the legal validity of the decision to detain. The provisions for the mandatory detention of Designated Foreign Nationals are clearly in violation of the Canadian Charter of Rights and Freedoms.

Systemic racism means that racialized people, especially Black people, are more likely to be detained and, when released, to be subject to harsher conditions of release than others.

To protect the right to liberty and minimize the harms of detention, the CCR advocates for the following:

1. Amend the law to end arbitrary detention (unreviewable decisions to detain on identity or suspicion of inadmissibility, and provisions relating to “Designated Foreign Nationals”)
2. End the detention of children under immigration legislation and preserve children’s right to family unity by not detaining accompanying parents and guardians (legal or de facto).
3. Introduce an independent oversight mechanism for the CBSA to address the risk of abuse of power by the CBSA.
4. Ensure consistent decision-making on detention and conditions for release, taking into consideration particular vulnerabilities and the need for transparency.
5. Expand use of alternatives to detention (ATDs). ATDs must not lead to increased enforcement measures against people who otherwise wouldn’t be detained or extend enforcement measures against people who otherwise would be released. Alternatives should not be drawn from criminal models.
6. Rather than relying on detention and other control measures, seek to ensure compliance with immigration rules by providing comprehensive case support, including giving individuals good information and presenting them all the options.
7. Ensure access to good legal representation (for example through duty counsel).

For people who are detained, detention conditions need to be drastically improved:

8. Reduce to a minimum prison-like features
9. Avoid detention in provincial jails (where people are subjected to prison rules)
10. Strictly limit the use of restraints (handcuffs and shackles)
11. Improve access for people in detention to NGOs, services, visits, internet, telephone calls, etc.
12. Improve access for people in detention to mental and physical health care.

For more information: https://ccrweb.ca/en/detention

1. Liberty is a fundamental right. No one should be detained unless absolutely necessary. As affirmed in the UNHCR Detention Guidelines, detention of asylum-seekers should normally be avoided and be a measure of last resort.[1] Measures should be taken to avoid unnecessary detention, including by:

1. Promoting greater consistency in detention decisions, while avoiding arbitrary detention
2. Adopting a firm policy of not detaining children (while keeping families together)
3. Ensuring access to good legal representation (for example through duty counsel).
4. Ensuring access to NGOs.
5. Using individual case assessment strategies to minimize use of detention, taking into consideration particular vulnerabilities and the need for transparency.
6. Offering a wider range of reporting options.
7. Instituting a feedback system for inappropriate detentions.

2. Alternatives to detention must not lead to increased enforcement measures against people who otherwise wouldn’t be detained.
3. Alternatives to detention must not extend enforcement measures against people who otherwise would be released.
4. Alternatives should not be drawn from criminal models.
5. The most effective way to ensure compliance with immigration rules is to provide comprehensive case support, including giving individuals good information and presenting them all the options. Support should include good access to legal representation.

In any alternatives, there needs to be clear understanding of and respect for different actors’ roles. Enforcement is CBSA’s role. NGOs provide support and services. NGOs must not be expected to play an enforcement role.

Letter to Minister of Public Safety

30 January 2007

Hon. Stockwell Day
Minister of Public Safety
House of Commons
Ottawa, ON, K1A 0A6

Dear Minister,

            I am writing on behalf of the Canadian Council for Refugees to ask for your urgent attention to the conditions of detention experienced by the three individuals held on security certificates at the Kingston Immigration Holding Centre.

            Based on our mandate to promote the rights of refugees and immigrants to Canada, the Canadian Council for Refugees has longstanding concerns with the security certificate process which we believe to be fundamentally unfair, notably in its use of secret evidence.  The fact that the process involves potential deportation to a danger of torture heightens the concern over this flawed process.  Furthermore, the rules relating to the detention of those subject to a security certificate, including mandatory detention in the case of those who are not permanent residents, also lead to violations of basic rights.  It is a grave concern that Mohammad Mahjoub,
Mahmoud Jaballah, and Hassan Almrei have each been detained for more than five years, despite being charged with no crime.  We continue to urge your government to eliminate or at least reform the security certificate process in order to respect the principles of fundamental justice. 

            In the meantime, we ask that you without delay substantially improve the conditions of detention of the persons in the Kingston Immigration Holding Centre.  Nothing in the current law requires that immigration detainees be subjected to any particular detention regime: on the contrary, as people neither charged nor convicted of any crime, immigration detainees should not be subject to any constraints more than are necessary to maintain them in detention.  For persons detained for exceptionally long periods, as is the case with the security certificate detainees, the onus lies with the government to alleviate as far as possible the hardship of detention through improvements to the conditions of detention.

            In this context we are shocked at the reports of the conditions in which the detainees are held in the Kingston Immigration Holding Centre, most particularly with respect to the health and medical needs of the detainees, which have been gravely neglected.  We note that many of the demands of the detainees could be met without cost or inconvenience to the government (for example, ceasing head counts in an institution with only three detainees, allowing detainees to wear their own clothing, allowing detainees to make phone calls using cheap calling cards).  While these matters are trivial from the government’s point of view, they have a tremendous impact on the detainees, as is shown by the fact that they have undertaken a hunger strike to back their demands.  We also underline that we expect the Canadian government to respect freedom of speech and the role of media in a democratic society by allowing the detainees full and unfettered access to the media.

            We therefore join the detainees and numerous other organizations in asking you to respond immediately and positively to the demands of the detainees, including through the appointment of a neutral party to provide ongoing mediation between the detainees and those running the holding centre.

Yours sincerely,

Elizabeth McWeeny
President

cc.   Hon. Diane Finley, Minister of Citizenship and Immigration
Alain Jolicoeur, President, Canada Border Services Agency