By Anne-Rachelle Boulanger
On 16 June 2023, two decisions were taken in Canada with important implications for immigration detention. First, the province of Ontario confirmed that it would no longer allow the federal government to detain migrants in its provincial prisons, in line with recent decisions in other provinces. But just a few hours after that decision was made public, the Supreme Court of Canada decided that the detention of asylum seekers in harsh conditions in the United States was not “fundamentally unfair,” thereby approving of Canada’s complicity in the detention of refugee claimants in the neighbouring country.
In what has become a recognisable Canadian pattern, while one governmental institution provided an important, human-rights-affirming limitation on immigration detention, another institution boldly legitimised abusive detention practices—albeit those of another country. (See: “In Canada, One Step Forward, Two Steps Back,” 4 April 2023.)
In Canada, there has long been an uncomfortable dissonance between its image of itself as a beacon of civil and political rights, and certain key policies and practices—in particular vis-à-vis its treatment of migrants and asylum seekers. For instance, when disaster strikes in another part of the world, the government makes bold public promises: with the Russian invasion of Ukraine, the government developed a programme to facilitate travel for Ukrainians to Canada; with the fall of Kabul, the government promised to resettle 40,000 Afghans; and with the outbreak of the Syrian civil war, the government promised to take in 40,000 Syrians. The government made progress towards each of these promises (with varying levels of success), resettling tens of thousands of people fleeing conflict.
At the same time, however, the government has continued to vigorously restrict access to the country, especially to those seeking asylum–including by continuing to detain those who manage to enter (on administrative grounds, not criminal grounds). Between 2015 and 2020, an average of 8,000 migrants were detained each year in Canada–with a quarter of those detained in provincial jails. The detention of people in provincial jails, on administrative grounds related to migration, has long been criticised for its punitive and harsh conditions.
Ontario and the Expanding Provincial Revolt
Nevertheless, the importance of Ontario’s decision to cease lending its provincial jails to the federal government for immigration detention cannot be understated. It will fundamentally alter the landscape of immigration detention in Canada. In becoming the eighth province to end its contract with the Canada Border Services Agency (CBSA), the federal agency responsible for immigration detention, Ontario joins a rapidly growing provincial revolt against this prison immigration policy. Previously, British Columbia, Alberta, Nova Scotia, Manitoba, Saskatchewan, Quebec, and New Brunswick all stopped allowing the use of provincial jails for immigration purposes.
Canada has just ten provinces, and Ontario has the largest number of people in immigration detention in its provincial jails in the country. The province was also the recent focus of a coroner’s inquest into the death of an immigration detainee, Abdurahman Hassan, who died while held in provincial jail. The results of the inquest revealed shocking conditions for immigration detainees in Ontario prisons, including the use of solitary confinement in response to mental health issues, detention alongside those detained on criminal grounds, and a lack of adequate health care.
Although the federal government has other facilities in which it can detain individuals on administrative grounds–including three federally operated immigration detention centres–the decision from Ontario may put more pressure on the government to pursue alternatives to detention because it limits the potential number of available beds. For the moment, the CBSA has transferred individuals from jails in provinces that have not renewed their contracts to provinces in which those contracts remain, or to immigration detention centres. However, this practice has received harsh criticism from advocates, as they force migrants further away from their families and communities. Moreover, the practice is unlikely to be sustainable. With detention contracts expiring (a year from the date each province gave notice) and the federal government subsequently losing a quarter of the space in which it formerly detained migrants, another plan will be required.
The Supreme Court’s Acquiescence
The significance of the Supreme Court’s decision should also not be understated. Strikingly, the Supreme Court acknowledged the harm to which migrants are exposed while detained on administrative grounds in the US–and yet it still opted to acquiesce to such harm.
The 16 June ruling upheld the Safe Third Country Agreement (STCA), finding that it did not breach s. 7 of the Canadian Charter of Rights and Freedoms, which protects the right to life, liberty, and security of the person. The STCA, an agreement between Canada and the US, requires individuals seeking asylum to claim protection in the first of the two countries in which they arrive. People travelling through the US to claim protection in Canada are turned back at the Canadian border, unless they meet a narrow set of exceptions, such as having an immediate family member in Canada. Other reasons for preferring Canada over the US–such as having a community in Canada and not in the US, fearing the political climate in the US, and lacking meaningful recourse to protection in the US–were not considered.
The Supreme Court recognised that, often, people who are turned away from the Canadian border are detained in the US. The Court also recognised that conditions in US detention centres are harsh. People are placed in solitary confinement; exposed to medical isolation (for instance, while waiting on the results of a tuberculosis test); placed in abnormally cold conditions (for instance, one individual described putting socks over her hands and arms, while curled up under a towel, to stay warm); and often fail to receive adequate medical care (racialised people, in particular, face barriers). The Court also did not contest that in US detention, people were unable to access their religious diets and were detained alongside criminally convicted populations.
Despite the recognition of the broad harms that have occurred and that will continue to occur, the Court upheld the STCA, with respect to s. 7, because the STCA apparently has sufficient “safeguards.” That is, the Supreme Court found that individuals seeking asylum in Canada have recourse to relief when they try to claim protection at the Canadian border before they are sent back to the US. The Court also found that there were sufficient safeguards in the US, such that individuals could access lawyers from detention in the country. In short, the Court found that the regime was not “fundamentally unfair.” The Court came to this conclusion despite the thousands of pages of evidence laying out the broad harms caused by the STCA, which have occurred while the “safeguards” have existed. It seems that, even though the “safeguards” leave asylum seekers vulnerable to detention, and appalling conditions of detention too, they are somehow sufficient.
Following the Supreme Court ruling, the Minister of Immigration, Refugee and Citizenship issued a statement, in which he reiterated Canada’s “[active engagement] on migration, asylum and refugee issues, at a time when global displacement is at record levels,” and claimed that, “we will continue to work with like-minded partners globally to promote safe and regular pathways, and to support other countries in establishing their domestic frameworks to offer protection to refugees and asylum claimants.” A few days later, on World Refugee Day, he issued another statement, saying: “Canada continues to be a leader on the world stage, with resettlement programs that save lives by offering safe haven in Canada.” He added, without a hint of irony: “Canada’s sense of responsibility is driven by its deep commitment to helping vulnerable populations fleeing war and persecution worldwide.”
In these statements, the Minister reveals Canada’s perplexing and counter-productive paradigm. He spoke to what Canada has done well, like resettling thousands of people fleeing conflict, and re-asserted Canada’s self-made image of being a country of “values” that is focused on helping the vulnerable and offering a safe haven. Yet he ignored, of course, the numerous harsh realities of the Canadian immigration system, so painfully illustrated by the Supreme Court’s STCA ruling.
In the following months and years, the country will have many more opportunities to break out of this paradigm, and to finally act in accordance with the welcoming image it seeks to uphold. The Supreme Court tasked the Federal Court with assessing the constitutionality of the STCA under s. 15 of the Charter, protecting the right to equality and freedom from discrimination. Moreover, the federal government is now tasked with developing a plan to address the loss of most of its provincial jails for immigration detention purposes. It is thus as critical as ever to maintain a focus on Canada, and to ensure that the country finally lives up to its promises, in making these decisions.