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:
- Amend the law to end arbitrary detention (unreviewable decisions to detain on identity or suspicion of inadmissibility, and provisions relating to “Designated Foreign Nationals”)
- 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).
- Introduce an independent oversight mechanism for the CBSA to address the risk of abuse of power by the CBSA.
- Ensure consistent decision-making on detention and conditions for release, taking into consideration particular vulnerabilities and the need for transparency.
- 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.
- 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.
- Ensure access to good legal representation (for example through duty counsel).
For people who are detained, detention conditions need to be drastically improved:
- Reduce to a minimum prison-like features
- Avoid detention in provincial jails (where people are subjected to prison rules)
- Strictly limit the use of restraints (handcuffs and shackles)
- Improve access for people in detention to NGOs, services, visits, internet, telephone calls, etc.
- Improve access for people in detention to mental and physical health care.
For more information: https://ccrweb.ca/en/detention