By Anne-Rachelle Boulanger
In a move that could augur fundamental changes in Canada’s immigration detention system, four provinces—British Columbia, Nova Scotia, Alberta, and Manitoba—have announced that they will end the Canada Border Services Agency’s (CBSA) use of their provincial jails for detaining migrants by June 2023. In doing so, these provinces may help roll back a controversial practice—the use of criminal prisons for immigration reasons—that has long plagued Canada, spurring accusations that it is complicit in cruel and inhumane treatment of migrants. Importantly, the policy shift may force CBSA to broaden its use of non-custodial measures in immigration enforcement practices, including “alternatives to detention” like reporting conditions, community case management programmes, bonds and curfews.
Despite the important precedent established by these four provinces, Canada’s detention regime will remain largely unaffected, for now. The federal government will continue to rely on its own immigration holding centres and other facilities throughout Canada to detain migrants – including in the provinces that are moving away from the use of their provincial jails. Other provinces—Ontario amongst them—will also continue to allow the use of their provincial prisons for immigration purposes. CBSA will thus be able to detain thousands of individuals – including children and individuals with disabilities and mental health conditions – in the country’s punitive immigration detention system each year.
The CBSA has broad discretion to decide whom to detain and in which facility. It can detain migrants in one of three federal immigration holding centres, or it can detain migrants in one of over 70 provincial jails. The CBSA is not required to justify its choice of facility. It also remains the only enforcement agency in Canada without independent civilian oversight. As a result, individuals are detained in some of the country’s more restrictive conditions, for months or years, in the absence of criminal convictions or even criminal charges, and with limited means to challenge their detention, or the conditions thereof.
Since 2000, at least 17 people have died in immigration detention. Almost all the deaths occurred in provincial jails. Advocates have worked to reveal the details of those deaths, which the CBSA has routinely attempted to obscure. In doing so, these advocates have revealed the particular cruelty in the government’s use of provincial jails to achieve immigration purposes.
A case in point is a January 2023 coroner’s inquest into the 2015 death of an immigration detainee. The detainee, Abdurahman Hassan, had fled Somalia with his family in 1992 and obtained protection in Canada. In 2012, he was detained by the CBSA on administrative grounds as it prepared Mr. Hassan’s deportation. At the time, Mr. Hassan suffered from schizophrenia, bipolar disorder, and PTSD. He was held at a maximum-security jail and spent months in solitary confinement. In 2015, Mr. Hassan suffered a seizure while in solitary confinement. He was brought to a hospital, where he was kept in restraints. During one episode, Mr. Hassan was held down by nurses and police officers, with a towel covering his mouth and nose, leading to his death.
The inquest revealed that Mr. Hassan’s death was a consequence of well-documented problems in the immigration detention system. The inquest revealed, for instance, that Mr. Hassan had no end in sight to his detention as CBSA struggled to find an airline to fly him to Somalia. The inquest also revealed that Mr. Hassan regularly found himself in conflict with other inmates, who were detained on criminal grounds. Mr. Hassan was placed in solitary confinement are a result mental health issues. Corrections staff were aware that Mr. Hassan did not have access to necessary treatment—the jail had only one psychiatrist available for 1,200 inmates for a total of 20 hours a week. Staff testified that they were concerned for Mr. Hassan’s health and wellbeing.
According to Human Rights Watch and Amnesty International, Canada’s immigration detention system is rife with discriminatory practices, with certain groups—especially Black men—routinely facing comparatively longer periods in confinement in more restrictive conditions. In 2019, most detainees held for 90 days or longer were from African or Caribbean countries. The longer they were detained, the more likely they were to be detained in provincial jails. The rights group have also reported that people with mental health conditions face disproportionately coercive treatment in detention: they are more likely to be detained in provincial jails and to be placed in solitary confinement.
In March 2023, the Global Detention Project (GDP) joined 39 other Canadian and international organisations in an open letter calling on the federal government to bring a conclusive end to the use of provincial jails to detain asylum seekers and other migrants. Although the CBSA will lose access to several provincial jails in June 2023, the conditions that led to Mr. Hassan’s death will endure. Other provinces, like Ontario and Quebec, have already confirmed that they will continue to incarcerate immigration detainees, in exchange for payments from the federal government. The federal government’s action is needed to end the placement of individuals, including those with mental health conditions and disabilities, in punitive environments.
The changes in the four provinces also come at a time of increased pressure on Canada as the numbers of arrivals to the country have increased considerably in recent years. In 2022, for instance, more than 39,000 asylum seekers entered Canada through unofficial points of entry, predominantly through Roxham Road. The number doubled that of 2017, when the high rates of migrants crossing into Canada made international headlines. Rather than embrace this moment to promote the rights of migrants, the federal government is surrendering to alarmist rhetoric.
On 24 March 2023, Canada and the US agreed to extend its controversial Safe Third Country Agreement (STCA). Since it came into force in 2004, the STCA has prevented all but a narrow group of people from claiming asylum at official points of entry between the US and Canada. The agreement is premised on supposed responsibility sharing between the two “safe countries,” which requires asylum seekers to apply for protection in the first country of arrival. Asylum seekers who try to enter Canada at an official point of entry, but who do not meet the exceptions, are turned back to the US. Under the agreement reached in March 2023, the bar on entering Canada to claim asylum from the US will also apply to unofficial points of entry, like Roxham Road.
For over a decade, advocates have called on the federal government to bring an end to the STCA. They have emphasised the grave human rights breaches resulting from the agreement. By sending asylum seekers back to the US—another country that makes broad use of prisons and jails for immigration purposes—Canada has exposed asylum seekers to indiscriminate detention in inhumane conditions and to deportation without an adequate (or any) adjudication of their refugee claim, in clear violation of Canada’s international human rights obligations. The STCA has twice been found unconstitutional by the Federal Court, in exposing asylum seekers to unjustifiable harms. Twice, the Federal Court of Appeal has overturned the decisions on technicalities. The Supreme Court of Canada is now considering the STCA, with a decision expected in the coming months.
The government’s brazen expansion of the STCA is a clear signal that Canada is not prepared to live up to its reputation as a nation that welcomes and protects migrants. The new deal is sure to lead to humanitarian calamities on the border. Even before this new deal, there were frequent reports of migrants freezing to death while trying to cross into Canada undetected. Asylum seekers will not stop trying to reach protection in Canada. Instead, they will resort to increasingly dangerous means. Those who do manage to enter Canada and claim protection will be faced with the prospect of indefinite detention in cruel and inhumane conditions.
In Canada, it often seems the case that progressive immigration reforms are undermined by regressive policy changes. One step forward, two steps back. While the recent successes in limiting the use of prisons for immigration reasons represent critical progress in ending some of Canada’s more harmful enforcement practices, the government’s decision to bolster the controversial “safe third country” agreement and its stubborn insistence on maintaining an expansive and discriminatory immigration detention system are setbacks that undermine Canada’s reputation as an exemplary humanitarian nation. As population pressures continue to grow, it is critically important for national and international civil society actors to remind Canada of its responsibility to treat all people on its territory with dignity and respect.
Anne-Rachelle Boulanger is a lawyer specialising in forced migration and international human rights based in Toronto, Canada, and a Research Fellow at the Global Detention Project.