Image for In the Shadows of Citizenship

A report by the International Human Rights Program exposes Canada’s legal ‘black holes’ that keep stateless, mentally ill migrants and refugees behind bars—sometimes for years

By Karen Gross / Illustration by Jim Frazier

From the Spring/Summer 2015 issue of Nexus

When Uday* landed at Toronto Pearson International Airport in 2011, he'd been aware of his schizophrenia for more than 10 years. After a long flight, Uday was tired and hungry and long overdue for his dose of medication, which was in his suitcase. But when immigration officials took him to a holding room for questioning, Uday says they brushed off his repeated requests for his luggage. With no access to his medicine, he became agitated. And before even setting foot outside the airport, he was taken into custody. He was then hospitalized, and moved to detention. While authorities tried to confirm his identity and country of origin, Uday would ultimately spend three years in provincial jails. He was a prisoner, even though he had committed no crime and had no criminal record.

Uday's story is one of several featured in the eye-opening report We Have No Rights: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada, released June 18, 2015 by the Faculty of Law's International Human Rights Program (IRHP). Thousands of non-citizens are locked up in detention in Canada, many of them refugee claimants and asylum seekers who have come looking for a better life. Even more troubling, migrants with mental health issues are frequently transferred to jails specifically because of these issues. The government maintains these migrants can get better health care in jail, an argument that is refuted by lawyers, independent researchers and detainees who were interviewed for the IHRP report.

"It's nearly presumptive that if you have a mental health issue stereotypically associated with disruptive behavior, they'll transfer you to jail, ostensibly to obtain treatment," says Renu Mandhane, JD 2001, the report's editor and executive director of the IHRP. "In effect, what it means is a Canada Border Services Agency officer can say, 'Hey, you seem like you have some serious problems. I don't think we can deal with you here so we're going to transfer you to jail.'" The vast majority of detentions occur in Ontario, with more than half happening in the Greater Toronto Area (GTA).

In the course of their research, law students Paloma van Groll, JD 2015, and Hanna Gros, Class of 2016, along with Mandhane, uncovered some alarming legal black holes. There is nothing in the law, for example, that defines which detainees can or should be transferred to jail. And once they are in jail, it's not at all clear which authority retains responsibility over them—the Canada Border Services Agency (CBSA) or provincial correctional officials. Because Canada has no mandated legal limit on the length of time an immigration detainee can be held, some are left languishing behind bars for months and years with no clear end in sight. This situation leaves them with fewer rights than convicted criminals. It also puts Canada in a very special position, as one of the only standard-setting countries that does not impose either a legally mandated limit on migrant detention or a soft limit that's been determined by the courts.

"A criminal detainee knows they have a release date," Mandhane says. "At the end of their sentence, they get out. The anxiety of not knowing—I can't tell you how dehumanizing that is."

The upswing in migrant detention is something relatively new for Canada, whose reputation up until about a decade ago was one of welcome and compassion for refugee claimants and asylum seekers arriving at its borders. "Canada was seen as one of the better countries up until very recently," says Stephanie J. Silverman, PhD, a course coordinator at the U of T Centre for Ethics who has studied and written extensively about detention in the United Kingdom, United States and Canada. "Release was always preferable to detention. It really was kept as a last resort, which is how it must be if you're going to follow international law and human rights standards."

Things started to change, she says, with an increased emphasis on law and order. Canada adopted changes to its Immigration and Refugee Protection Act, accompanied by a new list of new regulations. Irregular arrivals from certain countries could be subject to mandatory detention, and authority over the CBSA had already been transferred from Citizenship and Immigration to Public Safety and Emergency Preparedness. Border agents became first and foremost officers of law enforcement tasked with keeping perceived danger out, rather than facilitating the entry of newcomers into Canada.

"There was no true forethought behind it," Silverman says. "It's sort of like an ad hoc bricolage of policies and practices and legislation that have come together, stripping the liberty of non-citizens." Adding to the confusion is what's known as "refugee roulette"—where you land can be even more important than where you came from or what your story is. Clear numbers are hard to come by, but it appears that proportionately, more people are detained, and tend to be detained for longer periods, in central Canada than on either coast. Migrants may be facing bigger hurdles in and around Toronto. "It seems that stuff that allows people to get out of detention in Montreal, for example, would not suffice in Toronto," Silverman says. "It's an arbitrary, regional variation."

According to Silverman's research, the CBSA claims it releases about three quarters of detainees after 48 hours and that 90-95 per cent of asylum applicants are released into the community. Nonetheless, according to the IHRP report, in 2013 the CBSA detained more than 7,300 migrants. Thirty per cent were held in jails, many mixed in among the criminal population. They wear prison-issued jumpsuits. They can be subject to lockdowns and periods of solitary confinement. Many don't speak English and have no easy access to interpreters or legal counsel. And some facilities, such as Ontario's Central East Correctional Centre, are hours away from the GTA, so visits from family and legal experts can be difficult.

"Why do they do it? Because they can," says Audrey Macklin, professor and Chair in Human Rights Law at the Faculty of Law. "The people who are affected are non-citizens. That means they don't vote. They tend to be vulnerable and powerless. But regardless of who you are, the law requires that if the state's going to throw you in detention, it has to justify it."

That's exactly what Macklin and other human rights experts say Canada is not doing. They argue the country is violating a raft of international agreements to which it is a signatory, in addition to its own Charter of Rights and Freedoms. With no external oversight, the CBSA appears to make random and arbitrary decisions that rarely get scrutinized. And monthly detention review hearings—mandated by law—are often conducted via video link, with the detainee appearing from jail while an Immigration Division adjudicator hears the case remotely. On paper, these hearings are supposed to ensure that detainees are held for solid legal reasons. But immigration and refugee advocates argue they're simply pro-forma exercises during which the adjudicator usually just rubber-stamps the previous month's decision.

"Unfortunately, the system is completely broken," says Renu Mandhane. "The reviewers are lay people, not legally trained lawyers or judges. They will only order release if there are 'clear and compelling reasons' to depart from the previous decision. It can be very difficult for detainees to meet this evidentiary burden."

François Crépeau, a professor of international law at McGill University who serves as the United Nations Special Rapporteur on the human rights of migrants, says Canada's mandated review system provides a safeguard against indefinite detention. But Crépeau says that in his experience "in certain cases the reviews can be somewhat pro-forma." And he adds, "Detention at random, if that is true, is very serious. Each and every detention should be specifically justified. There has to be evidence or at least shreds of evidence that either the person is dangerous or the person is a flight risk."

What counts for evidence can be questionable. Among the human stories the IHRP documents in its report is that of Anike,* who came from West Africa to study at a Canadian university in 2007. Anike was suffering from untreated mental health issues and was eventually forced to leave the university. With no student visa, she lived in and out of shelters until someone notified the CBSA. Anike wound up at the Vanier Centre for Women, a provincial jail. She's been diagnosed with schizophrenia but refuses to take medication. With the help of legal counsel she is applying for refugee status, but the Immigration Division says her fear of being deported to her home country makes her a flight risk. With no criminal background, Anike has been imprisoned for more than a year.

Paloma van Groll, who co-authored the IHRP report, says the interview with Anike hit her personally. "She was not that far from my age. She'd attended university around the same time as me and she'd been in jail for over a year on an immigration matter. It just seemed really unjust to me."

Extensive research has shown that even for those without pre-existing mental health issues, detention can lead to depression, anxiety, and suicidal ideation. For those who are already vulnerable, the consequences can be disastrous."The threshold when an otherwise healthy person starts to crumble in detention is believed to be about 30 days," says Silverman. "So as the number of days increases, the likelihood of causing lifelong damage to those detainees also increases."

And although the government claims that detainees with mental health issues have access to better medical care in jails, lawyers and human rights advocates say that's questionable in practice. People with serious illnesses such as schizophrenia will receive medication in jail. But there isn't much support for detainees who are more commonly anxious, depressed or despondent.

"I think access to effective programs and counseling is the number one hurdle that I see," says Prasanna Balasundaram, a staff lawyer and a student supervisor at the Faculty of Law's Downtown Legal Services. "Whether they're detained at a provincial jail or IHC (Immigration Holding Centre), there is a base level of healthcare. But there may be detainees with particular mental health needs, and in my experience, it's been very difficult arranging treatment for those individuals."

Among the difficulties lawyers face is simply arranging for a psychologist or psychiatrist to visit a jail and conduct an assessment. Cost is a big issue. If they can even access legal counsel, many detainees do so by using Legal Aid certificates, which cap disbursements for assessments. Covering the costs of such visits, when the detainee is a two hour drive from the city, becomes a huge challenge. "There are very few psychologists or psychiatrists who are willing to actually visit an immigration facility and do that assessment for the amount legal aid allows," Balasundaram says.

Past criminality is another barrier. Many detainees with mental health issues have some associated criminal history. Once they've served their time for a criminal conviction, migrants will sometimes automatically be moved to immigration detention on the grounds that they're a danger to the public. Migrant detainees don't get access to the same rehabilitative programs as criminal prisoners do. And they aren't included in educational programs such as language skills, college courses or technical training. So it becomes even harder to prove they can establish successfully in Canadian society. In order to win their release, lawyers are obligated to put together very detailed and complex plans, which often involve treatment centres and other community programs that can guarantee supervision.

Further frustrating the efforts of detainees and their lawyers to win release is the roadblock they encounter if they want to appeal a decision by the Immigration Division. Immigration cases are heard in Federal Court, which tends to move very slowly, and offers no right to habeas corpus, a court order that dates back to the Magna Carta. Under habeas, a detainee is brought before a judge who then decides if the detention is lawful. But habeas petitions are heard in provincial court. And right now, those courts do not hear immigration cases. This arrangement has been challenged by refugee lawyer Barbara Jackman, LLB 1976, who argues habeas corpus is a constitutional right, and must be available to everyone.

"The courts have said there is a complete comprehensive scheme in the Federal Court to review detention and therefore it's not necessary to give access to habeas corpus to someone who is on an immigration hold," Jackman says. "But if they're going to take away a constitutional right, that has to be justified in a free and democratic society."

So far, the Canadian government been forced to justify few of its actions with regard to migrants and their sometimes endless detentions. Partly that may be due to the fact that, proportionally, Canada detains far fewer people than some other countries. But Audrey Macklin believes there's another rationale at play. It's not one she supports, but she thinks it's what the CBSA has come to understand as its role. "If you switch the frame and what you see is border control, and what you say is here's somebody who should have been excluded at the border, then it's just another kind of border control," she says. "So why do we have to justify that? It's our right as a state to keep them out and detention is just another form of border control."

With no independent body overseeing its actions or decisions, immigration and refugee advocates claim the CBSA simply does whatever it wants. While some individual officers have been compassionate and understanding with his clients, lawyer Prasanna Balasundaram says the lack of accountability is a huge problem. "I think there needs to be more oversight in terms of the CBSA as an organization," he says. "They are a law enforcement organization. Just as the police and the military have oversight, so should they."

When Mexican migrant Lucia Vega Jimenez committed suicide at the Vancouver IHC in 2013, many Canadians hadn't even been aware that migrants were being detained in their country. More recently, a 39-year-old CBSA detainee died in hospital June 12, 2015 in Peterborough, Ontario, and information about the incident remains unclear. These cases and several other much publicized detention cases forced Canadians to take notice. A coroner's inquest for the Jimenez case produced a long list of recommendations. But from the perspective of immigration lawyers and advocates, systemically, nothing has significantly changed.

"It's not self evident for the majority of the population that these people have essentially the same fundamental human rights as you and I," says François Crépeau. "Only two rights are reserved for citizens: the right to vote and be elected, and the right to enter and stay in the country. All other fundamental rights are for everyone." But Crépeau adds there is no international mechanism that would obligate Canada to do anything differently no matter how many conventions the government may be violating. Complaints to the UN Human Rights Committee, the Committee Against Torture, the Committee on the Rights of the Child, the Human Rights Council, "none of these mechanisms are mandatory," he says. "It's all advisory. You make a report. You name and shame. And then the report is in the hands of the NGO community in Canada and they will pester the government. And that report will feed into the next report." But all those reports will build pressure, Crépeau says. And eventually, that pressure will force a change.

In Europe, many countries have already imposed strict time limits on detention, and after parliamentary hearings in the United Kingdom, a time limit will likely be imposed there as well. Even in the United States, which held some 440,000 people in detention at various times during 2013, there is growing pressure to find a better way. Among the many recommendations in the IHRP report is a comprehensive scheme of more humane, less costly and more effective alternatives. "We are strongly arguing that if you have any mental health issue, you should not be kept in a provincial correctional facility," says Paloma van Groll.

Stephanie Silverman and others are pushing for alternatives to detention programs and practices that would apply to all migrants, not just those with mental health issues. She likes the Community Assessment and Placement Model (CAPS) which presumes release first, and offers a specific set of guidelines that can be adapted to any country. CAPS focuses on community-based alternatives featuring high quality legal access and social services along with monitoring and enforcement. Silverman says these alternatives cost between $10-$30 per day, compared with $239 per day to hold an immigrant detainee in jail. Currently, the only official alternative to detention is the Toronto Bail Program, which pre-selects its candidates and serves a very small number of people.

Change is incremental, Silverman says, but she has reason to believe it may be inevitable. Recently, she attended a UNHCR global roundtable on alternatives to detention. There were more than 25 governmental asylum and immigration units in attendance, including a sizeable delegation from Canada. "The Canadian government sent many people," she says. "So it seems they're looking for answers as well. It doesn't seem as rigid as we think. It gave me hope."


*Names have been changed to protect the privacy of detainees