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Ministerial Briefing Note for

Minister of Public Safety and Emergency Preparedness

Canadian Association of Refugee Lawyers, April 21, 2016

Contents Overview ......................................................................................................................................... 2

Children in Detention: Background ................................................................................................ 2

Background .............................................................................................................................. 2

Case Examples: ....................................................................................................................... 3

Recommendations: .................................................................................................................. 3

Detention of Mentally Ill ................................................................................................................ 4

Background: ............................................................................................................................ 4

Case Examples ......................................................................................................................... 5

Recommendations .................................................................................................................... 6

CBSA Oversight ............................................................................................................................. 6

Recommendations .................................................................................................................... 6

Ministerial Relief ............................................................................................................................ 7

Recommendations: .................................................................................................................. 8

Due Process in Removals................................................................................................................ 9

Recommendations: .................................................................................................................. 9

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Overview

The Canadian Association of Refugee Lawyers welcomes and applauds the new government’s commitment to a just, efficient and fair immigration and refugee policy. Unfortunately, a fundamental disconnect persists between these ideals and the pervasive enforcement culture of Canada Border Services Agency (CBSA). Enforcement of immigration law is a valid and central function of CBSA; however the criminalization and securitization of immigrants and refugees pervades many CBSA functions, often to the exclusion of other considerations. CARL is particularly concerned about the lack of CBSA oversight, notably in the context of detention and removals. The disconnect between the government’s words and CBSA’s actions is particular acute in respect of the detention of children and the mentally ill. CARL is also concerned about the increasingly narrow access to ministerial relief against inadmissibility, and the lack of due process in removals. We are happy to provide more detailed proposals on any of the points we have raised below. Children in Detention

Background

Immigration detention has significant impacts on children1: they are sometimes themselves detained, they are sometimes in detention with their parents, though as “guests” of the detention centre, and they are sometimes separated from detained parents. Children are traumatized by the prison-like environment at the IHC and the aggressive and disrespectful treatment of their parents by CBSA officers.

Regardless of whether they are detained in law, in fact, or separated from parents, detention has troubling traumatic impacts on children. However, CBSA (and the Immigration Division) take into account the best interests of the child only when the child him or herself is subject to a detention order. CBSA (and the Immigration Division) refuse to consider the best interests of children who are in detention centres with their parents, or who are separated from their parents (staying with family, friends or in the care of the Children’s Aid Society) when making detention decisions.

1 Kronick, Rousseau & Cleveland, “Asylum-Seeking Children’s Experience of Detention in Canada: A Qualitative

Study” (2015) 85:3 American Journal of Orthopsychiatry 287.

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CARL joins with other advocates2 in calling for CBSA to adopt the following twin principles: children should not be detained and children should not be separated from their parents. While there will always be exceptions and where the law may allow for the detention of children as a matter of last resort3, or the separation of children from their parents in certain circumstances4, these twin principles should infuse decision-making around immigration detention; departure from them should require justification. The Convention on the Rights of the Child requires States Parties to consider the best interests of the child as a primary consideration in all actions concerning children.5 Unfortunately, Canada currently falls far short of these important goals.

Case Examples

• BB, a 9-year old Canadian citizen, was in a detention centre with her mother for over 12 months. Her mother was detained on the ground that she was a flight risk. The situation could have continued indefinitely were it not for the Minister of IRC’s issuance of a Temporary Resident Permit. Minister’s Counsel consistently argued, and the Immigration Division consistently held, that BB’s best interests were irrelevant to the question of whether her mother should continue to be detained. The adjudicator refused to consider a mental health assessment of BB, or the fact that she had been out of school for a prolonged period. The issue of the Immigration Division’s jurisdiction is currently before the Federal Court.6

• Parents are threatened that their CAS will be called if they do not cooperate, and CBSA has called CAS to apprehend children when parents are detained.

• “Mohammed”, a 16 year old Syrian adolescent, was kept in segregation at the Immigration Holding Centre in Toronto during the three weeks of his detention. He was alone in his room for the vast majority of the day. He was given his meals in his room. He was let out for 30 minutes a day to play basketball alone in the snow.7

Recommendations

• CBSA cease detaining families / children / parents except when it is truly a matter of last resort (ie danger to the public, removal imminent – within a few days)

• CBSA officers undertake a best interests of the child assessment when any immigration-related detention will impact a child

2 IHRP briefs, Annex A 3 For example within 48 hours of removal 4 For example when a parent is detained on the basis of danger to the public

5 UN Convention on the Rights of the Child, Article 3: http://www.ohchr.org/en/professionalinterest/pages/crc.aspx 6 BB and Justice for Children and Youth v Canada (MCI), IMM-5754-15 7 http://www.theglobeandmail.com/opinion/an-inexcusable-travesty-canada-sent-a-syrian-minor-to-solitary-

confinement/article28781118/;

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• CBSA acknowledge that a child’s best interests is a relevant consideration at detention

reviews, regardless whether the child is subject to a detention order

• CBSA cease detaining adolescent children in segregation at the IHC

• CBSA treat all immigrants and refugees with respect, including when they are detained, and especially when there is a child present.

• CBSA make available statistics regarding all children in detention centres, including those who are “guests” of the facilities.

• CBSA provide an explanation for the security protocols currently in place at the IHCs, given the IHC is meant for administrative detention only.

Detention of Mentally Ill

Background

Studies show that detention has short and long term mental health impacts on detainees and exacerbates pre-existing symptoms and conditions. Refugees seeking protection in Canada have often experienced trauma and live with Post Traumatic Stress Disorder and/or depression. As in the general Canadian population, some immigrants and refugees live with major mental illnesses such as schizophrenia and bi-polar disorder or express suicidal ideation.

Unfortunately, and perversely, instead of interacting with a compassionate and respectful immigration enforcement system, mentally ill individuals are sometimes subject to harsher immigration detention conditions, including detention in segregation, and detention or transfer to provincial correctional facilities.

Suicide is the leading cause of un-natural death among federal inmates, accounting for about 20% of all deaths in custody in any given year.8 In March, a second immigration detainee died in prison in less than a week while in the care of Canada Border Services Agency (“CBSA”)– bringing the total number of deaths of immigrant detainees since 2000 to 14.9

Without appropriate policies and procedures, including a reduction in the use of administrative detention for persons living with mental illness, immigration detention will continue to have

8 Report by Office of the Correctional Investigator: A Three Year Review of Federal Inmate Suicides (2011 – 2014).

Available online at http://www.oci-bec.gc.ca/cnt/rpt/pdf/oth-aut/oth-aut20140910-eng.pdf,

9 http://www.thestar.com/news/immigration/2016/03/14/second-immigration-detainee-dies-in-prison-in-less-

than-a-week.html

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lasting and sometimes grave consequences. The harsh treatment of persons living with mental illnesses has no place in Canada’s legal system.10

Case Examples

• Kirishanthan Suntharalingam (“Kirish”), after having attempted suicide twice, and being certified to a mental health professional under the Mental Health Act, pled with health officials to be released so that he could meet his obligations to report to the CBSA. He went to report the same day as being released from the hospital. Upon reporting to the CBSA, his (unfilled) prescription was taken from him, his medical history was used against him for a finding of “flight risk” and he was detained, without access to his prescription, treatment plan or his medical team.

• KMC, suffering from major depression and suicidality, was detained at a provincial correctional facility, despite no criminal record. She had previously been under the care of a team of mental health professionals. Similar to “BB”, her mental health was considered an irrelevant factor during detention reviews, and the Immigration Division’s narrow interpretation of its jurisdiction is currently subject to challenge in the Federal Court.11

• A young adult refugee claimant was transferred from the IHC to a provincial prison one day after being detained. The transfer was on the basis of a recommendation from the English-speaking psychiatrist at the IHC who had interviewed the French-speaking detainee via translation provided by a private security guard working at the IHC. The psychiatrist believed the detainee had expressed suicidal ideation and wrote a short email to the IHC manager recommending immediate transfer to a prison. The manager ordered the transfer almost immediately without any review of the psychiatric assessment or the psychiatrist’s interview notes. The man was assessed not to be a suicide risk by the intake authorities at the provincial prison. Nonetheless, he was not immediately returned to the IHC. Instead, he was transferred back when his case was brought to the attention of legal aid counsel and they intervened to demand his return.

10 Treating immigrant detainees in this manner violates the Charter’s guarantee against “cruel and unusual” treatment and is also contrary to the goals and principles outlined in the 2006 United Nations Convention on the Rights of Persons with Disabilities in particular to, “ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability,” which would also extend to individuals within the care/ custody of correctional systems (a.4, s.1). Canada ratified this treaty in 2010.

11 KMC v Canada (MCI), IMM-456-16

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Recommendations

• Persons with mental illness, and particularly with major mental illnesses, should only be detained as a last resort, and only in an appropriate facility – not a correctional facility.

• CBSA develop, in consultation, a policy and review mechanism regarding detainee transfers between the IHC and the provincial correctional centres

• CBSA increase the use of alternatives to detention for persons with mental illness

• CBSA acknowledge the relevance of mental health in detention and review of detention

• CBSA develop guidelines regarding interaction with persons with mental illness, including screening for mental health symptoms, access to appropriate mental health treatment and consistent use of qualified interpreters.

CBSA Oversight

CBSA officers have extensive powers of detention, arrest, search and seizure. Yet they are not currently subject to any form of oversight or review and there is no independent body capable of receiving or investigating complaints of the conduct of CBSA officers. CBSA deals with many vulnerable people who may be making refugee claims in Canada, or whose status in Canada is otherwise uncertain. These people are often unaware of complaints processes or reluctant to file complaints because they are making a claim to the Canadian government. Other potential complainants have been deported. In addition, because many of the national security activities of CBSA take place in secret, an oversight process that is driven solely by complaints is inadequate.

CARL therefore believes that it is essential that an independent oversight and review body be created to allow for individuals and public organizations to make complaints about the conduct of CBSA officials.12 Deaths in detention and CBSA care, including Lucia Vega Jimenez in Vancouver, and two recent deaths in Toronto further highlight the need for appropriate oversight mechanisms.

Recommendations

While there are numerous potential models for CBSA independent oversight, review and complaints bodies, we believe that any such body or combination of bodies must:

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In light of the overlapping jurisdictions of CBSA with IRCC, CARL believes it would be useful to explore a combined IRCC / CBSA oversight mechanism

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• Be able to receive and deal with public complaints about CBSA conduct, including third-party complaints from individuals or organizations.

• Be able to initiate its own reviews and investigations about CBSA conduct even where there is no complaint.

• Include independent civilian investigation of serious incidents (harm, death) involving CBSA officers.

• Have sufficient legal power and make findings that have binding legal consequences.

We are aware that Senator Wilfred Moore has proposed in Bill S-205 amendments to the CBSA Act that will create an Inspector General of the CBSA. We believe that this Bill is a good start but note that we do have some concerns with it, namely that:

• The Bill does not allow for complaints from organizations or allow the Inspector General to initiate his own review of conduct;

• The Bill requires the Inspector General to consult before making reports public. While we accept that the Inspector General must protect confidential information, the final say on what should be made public must rest with the independent complaints body.

• The Bill should allow the Inspector General to convene a public hearing in cases where the public interest requires it.

Ministerial Relief

The Ministerial relief procedure was introduced into the Immigration and Refugee Protection Act to provide relief from the often harsh consequences of an inadmissibility finding. It is generally recognized that the current language of the inadmissibility provisions is broad and includes people who present no threat to Canada’s national security, and who have not committed any violent acts directly or through complicity. Even the late honorary Canadian Citizen and Nobel Laureate Nelson Mandela was inadmissible under these provisions.

The Federal Court has determined in many decisions that the national security provisions must be given a broad and generous interpretation. A person can currently be found to be inadmissible for membership in a terrorist group even if he or she joined the group after it ceased committing terrorist acts or left before any such acts were committed. A person can be found inadmissible

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even if his or her membership occurred years ago and even if the person never engaged personally in any illegal acts.

Moreover, a finding that a person is a member does not currently depend on whether or not the person actually joined the organization but rather on an assessment by an officer or tribunal of the person’s degree of involvement in the organization. A person can be found to be a member if the officer or tribunal determines that he or she was committed to the organizations objectives and contributed in some way to it.

The current Ministerial relief procedure has several defects, including:

• The process takes far too long. Some applications have been awaiting a decision for more than five years;

• The officials who prepare the ministerial briefs have systematically taken a very narrow view of “national interest”. They almost always recommend against the granting of relief even if persons have lived for many years in Canada without incident as law abiding citizens;

• The briefs routinely fail to adequately consider the impact of decisions on family members and emphasize past membership to the exclusion of all other considerations.

The failure of the ministerial relief procedure to provide an adequate remedy to hundreds of persons who have lived in Canada for many years has caused great hardship to many Canadians.

Recommendations

CARL recommends that Public Safety and Emergency Preparedness work together with Immigration, Refugees and Citizenship Canada to narrow the scope of currently overbroad inadmissibility provisions.

Given the broad scope of the inadmissibility provisions, and even if that scope is narrowed by the Minister of IRCC, CARL urges the Minister to review the Ministerial relief process to ensure that it provides the relief that it was intended to do against the sometimes overbroad reach of the inadmissibility provisions.

The former conservative government amended the legislation to limit considerations on ministerial relief applications to national security and public safety considerations. These changes should be repealed; the Minister should be able to consider a broad range of factors including for example the best interests of the child when rendering a decision.

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Due Process in Removals

When the IRPA was first enacted, the scheduling and execution of removals was seen as a largely administrative function. The primary role of CBSA was to obtain travel documents and to book transportation arrangements. Over the past nearly 15 years, however, statutory amendments to the IRPA have fundamentally changed the role of removals officers in the immigration system.

One important statutory change has been the imposition of the 12 and 36 month PRRA bars. These bars have meant that specially trained decision-makers in Immigration, Refugees and Citizenship Canada (“IRCC”) no longer have the ability to assess whether new evidence that has arisen since the refusal of an individual’s refugee claim now warrants her/him receiving Canada’s protection. Likewise, the imposition of the H&C bar has meant that IRCC often no longer has the ability to assess whether humanitarian factors warrant an unsuccessful refugee claimant being allowed to remain in Canada prior to her/his removal taking place. Instead, the only mechanism in which these critical questions can be raised and addressed is in a ‘request to defer removal’. Such a request must be made directly to CBSA. In this manner, many of the most important protection and humanitarian assessments which were previously made by IRCC have now been functionally transferred to CBSA.

CARL has serious concern with protection and humanitarian-related matters being decided by an agency whose statutory mandate is to ensure the execution of removal orders. The institutional and operational focus of CBSA on removing individuals from Canada may render its employees inappropriate to simultaneously decide who should be exempted from that process. This is why such decision-making about such questions has previously been reserved to IRCC.

Moreover, CBSA’s deferral process has not evolved to meet the exceptionally important issues now entrusted to it. The IRPA still contains no statutory guidance on when a deferral will be warranted. Moreover, deferral requests will only be considered by CBSA after a removal date has been scheduled. The often very short period between when a removal date is scheduled and when it is executed – sometime a matter of days – means individuals have little time to prepare proper deferral requests. And CBSA has even less time to render thoughtful decisions that reflect the important interests at stake. Moreover, CBSA officers who decide deferral requests receive considerably different training from IRCC Senior Immigration Officers who decide similar questions in PRRA and H&C applications.

Recommendations

• CBSA should develop, in consultation, a minimum written notice period of any scheduled removal date in order to permit them sufficient time to prepare and submit a deferral request. Individuals seeking an expedited removal should be able to waive this

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notice period as too should CBSA where exigent operational requirements justify doing so.

• CBSA should affirm that the primary responsibility for assessing protection-related matters rests with IRCC. CBSA should defer removal to permit an assessment of risk by IRCC where unassessed evidence is now disclosed that could lead to a positive application for protection.

• CBSA should confirm that damage to the long and short-term best interests of children affected by a removal should be a primary consideration in deciding whether to defer a removal.

BRIEFING PAPER

Children in Immigration Detention in Canada ISSUE

1. The detention of children, even for a short period of time, has the potential to cause lasting psychological damage. The separation of children from their detained parents also causes significant harm and mental distress. The routine detention of children by the Canada Border Services Agency (CBSA) violates international legal norms: (1) it is not a measure of last resort and is dramatically overused due to frequent failures to consider the best interests of the child and alternatives to detention; and (2) the poor conditions of detention that minors face across the country. Attention to the best interests of children creates an urgent need for viable alternatives to both the detention of minors and to the detention of parents who are the primary caregivers of their children.

BACKGROUND

2. Canada detains hundreds of minors every year. According to the CBSA, 280 non-citizen minors were detained in 2012-2013 and 194 in 2013-2014.1 However, in reality these figures are a significant underestimate because the CBSA does not include in its statistics children who live in detention in order to remain in their parent’s custody. This includes children who are Canadian citizens accompanying their non-citizen parents in detention.

3. Child detention practices vary between regions. In Ontario and Québec, children are housed in

CBSA-operated immigration holding centres (IHC), often for weeks, months, or even years.

4. The detrimental impact of immigration detention on children’s mental health is widely documented internationally. Detained children experience both acute trauma and lasting consequences. The only Canadian study to date focusing on children in immigration detention found that detained children and parents exhibited psychological problems and distress, even when held for relatively short periods of time.2 In some cases, emotional disturbance persisted long after release. Pervasive under-stimulation and constant surveillance were found to infuse a sense of deprivation and powerlessness into daily life. The main stressors identified were the conditions of detention, and family separation as a result of detention (children are only permitted to see their fathers, who are held in a separate wing, at designated times).

5. The most common alternative to detaining children with their parents is detaining only the parents. Research suggests that children who are separated from detained parents experience

1 Canada Border Services Agency, “Detentions at a Glance” (2013-2014). 2 Kronick, Rousseau & Cleveland, “Asylum-Seeking Children’s Experience of Detention in Canada: A Qualitative Study” (2015) 85:3 American Journal of Orthopsychiatry 287.

APPENDIX A

the separation as highly traumatizing, resulting in psychological deterioration.3 Similarly, parents separated from their children demonstrate heightened distress including suicidal ideation.4 Thus, the separation of families for the purposes of detention, rather than protecting children, causes further harm.

CURRENT STATUS

6. In 2015, the International Human Rights Program (IHRP) at the University of Toronto’s Faculty of Law published a report entitled, “We have no rights”: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada. As a follow up to the report, the IHRP is currently conducting research into the practice and policy of detaining children in IHCs.

7. The IHRP is gravely concerned that these detention practices violate both Canadian law and Canada’s international human rights legal obligations.

8. The UN Committee on the Rights of the Child has criticized Canada, most recently in 2012, for

its practices related to the detention of children, including the scale of detention and the repeated failure of immigration officials to consider the best interests of detained children.

KEY CONSIDERATIONS

9. Children should only be detained as a last resort. The best interests of the child, enshrined in article 3.1 of the Convention on the Rights of the Child (CRC), which Canada ratified in 1991, should be a primary consideration in all detention decisions that impact children directly, whether the child is detained with family or alone, and whether the child is legally subject to a detention order or is in detention as a “guest” of their detained parent.5 Since children in the latter category are not legally detained, their best interests are being explicitly excluded from consideration by adjudicators at their parents’ detention review hearings.6

10. However, children should not be separated from their parents in order to facilitate immigration

detention. Family separation is not a viable alternative to children accompanying their parents in detention because of the emotional trauma that such separation causes.

11. The detention conditions of migrant children in Canada may also violate international law. The

IHRP’s research at the Toronto IHC has found that children living there generally do not have access to adequate education, socialization, appropriate recreation facilities, or age-appropriate food. They live in an environment that is entirely unsuitable and ultimately harmful to children.

3 Ibid. See also Fazel, Reed, Panter-Brick, Stein, “Mental health of displaced and refugee children resettled in high-income

countries: risk and protective factors.” Lancet 2012; 379: 266-82. 4 Kronick, Rousseau & Cleveland. “They cut your wings over here . . . you can’t do nothing”: Voices of children and parents

held in immigration detention in Canada. In: Furman R, Epps D, Lamphear G, eds. Detaining the immigrant other: global and transnational issues: Oxford University Press; 2016: 195-207. 5 The UN Committee on the Rights of the Child has stated that “the detention of a child because of their or their parent’s

migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child”. See Committee on the Rights of the Child, Report of the 2012 Day of General Discussion: The Rights Of All Children In The Context Of International Migration (2012) at para 78, online: UN Office of the High Commissioner for Human Rights <http://www.ohchr.org/Documents/HRBodies/CRC/Discussions/2012/DGD2012ReportAndRecommendations.pdf>. 6 This refusal to consider the best interests of not-formally-detained children of detained parents is presently the subject of

litigation before the Federal Court in IMM-5754-15.

12. Of further grave concern is the isolation or solitary confinement of some male teenage minors from the rest of the detained population of minors and parents. The IHRP is aware of at least two cases in the past month, where 16-year-old boys were held in isolation at the Rexdale IHC, one for three weeks. The United Nations Special Rapporteur on Torture has stated that subjecting juveniles to solitary confinement for any length of time constitutes a violation of the Convention against Torture. Likewise, the United Nations Committee on the Rights of the Child has stated that solitary confinement should not be used for anyone under 18 for any period of time. This prohibition applies regardless of circumstance; there is no disciplinary or administrative objective that can justify placing a child in solitary confinement.

RECOMMENDATIONS

13. In order to reduce the scope of ad hoc decision-making and ensure that Canada’s immigration detention regime complies with domestic and international law, the IHRP recommends that the government urgently revise existing legislation and/or introduce new regulations to ensure that:

Families and children are not detained, except as a matter of last resort, either where parents are held on the basis of danger to the public or where removal is imminent (less than 48 hours). In every other case they should either be released outright or transferred to a community-based alternative to detention.

The best interest of the child is a primary consideration in all decisions to detain children or their parents.

Community-based alternatives7 to detention for families and children are made available in law and implemented in practice.8

Where children must be detained, they are detained for very brief periods and have access to age appropriate facilities, food and education.

No child is subjected to solitary confinement or isolation under any circumstances.

7 UN High Commissioner for Refugees, Beyond Detention 2014-2019: National Action Plan – Canada (October 2015), online:

UNHCR < http://www.unhcr.org/5631eb5c6.html>. 8 The UN Committee on the Rights of the Child has recommended that “states should adopt alternatives to detention that fulfil

the best interests of the child, along with their rights to liberty and family life through legislation, policy and practices that allow children to remain with family members and/or guardians…and be accommodated as a family in non-custodial, community-based contexts while their immigration status is being resolved”. See Committee on the Rights of the Child, Report of the 2012 Day of General Discussion: The Rights Of All Children In The Context Of International Migration (2012) at para 79, online: UN

Office of the High Commissioner for Human Rights <http://www.ohchr.org/Documents/HRBodies/CRC/Discussions/2012/DGD2012ReportAndRecommendations.pdf>.

BRIEFING PAPER

Immigration Detention and Mental Health

ISSUE

1. Migrants with mental health issues are routinely (even presumptively) held by the Canada Border Services Agency (CBSA) in provincial jails despite their vulnerable status. This practice is a violation of binding international human rights law and constitutes arbitrary detention; cruel, inhuman and degrading treatment; discrimination on the basis of disability; a violation of the right to health; and a violation of the right to an effective remedy.

BACKGROUND

2. Every year thousands of non-citizens (“migrants”) are detained in Canada; in 2013, for example, the CBSA detained over 7,300 migrants. Nearly one third of all detention occurred in facilities intended for a criminal population. While migrants detained in provincial jails are not currently serving a criminal sentence, they are effectively serving hard time.

3. Canada is one of the few western countries with no presumption in favour of release after a certain period of time in immigration detention. As a result, detention is sometimes prolonged, and can drag on for years (more than a decade in the worst known case).

4. While some migrants are detained due to past criminality, the primary reasons for their detention are because the CBSA deems them a flight risk, cannot confirm their identity or deems them a “danger to the public.” Those with a prior criminal record have served their time (often for relatively minor offences) and often have mental health issues that contributed to their criminalization in the first place.

5. Immigration detention is costly. In 2011-12, the last year for which there is publicly-available information, CBSA spent nearly $50-million on detention-related activities. In 2013, CBSA paid the provinces more than $26-million to detain migrants in provincial jails – over $20-million of that was paid to the province of Ontario. According to the CBSA, each detention in a provincial jail costs $259 a day.

CURRENT STATUS

6. In a 2015 report, the International Human Rights Program (IHRP) at the University of Toronto’s

Faculty of Law identified worrisome elements in Canada’s immigration detention regime. The IHRP welcomes the opportunity to work constructively with the new government to resolve these continuing concerns.

7. As a follow up project, the IHRP is currently conducting research into the practice and policy of holding children in immigration detention centres, both when unaccompanied and with their parents.

8. The IHRP is particularly concerned about the deaths of two detainees in early March, who were being held by the CBSA at the Toronto East Detention Centre and the Maplehurst Correctional Complex in Milton. At least 14 detainees have now died in custody since 2000. An independent and public investigation should be conducted into all deaths, including suicides, which occur in detention. Along with greater oversight of the immigration detention regime, this would ensure that detainees receive adequate care in the custody of the CBSA, even when they are physically being held in a provincial facility.

9. Certain provinces, including Ontario, are currently undergoing sweeping correctional reform initiatives to modernize correctional systems and to improve the treatment of people with mental health issues. Immigration detention reform at the federal level should be working in conjunction with provincial partners to ensure legislative and policy coherence.

KEY CONSIDERATIONS

10. There are shocking gaps in the rule of law related to immigration detention – for example, the criteria to transfer someone from an immigration holding centre (IHC) to a provincial jail is not prescribed by law, but is rather a decision made by CBSA without any oversight. Once in jail, it is unclear which agency or institution has ultimate responsibility for the health and safety of detainees. The Red Cross, which has an agreement with the federal government to monitor the conditions of immigration detention, is often barred from accessing provincial jails.

11. Immigration detention has a significant negative impact on mental health, even when detention

is for a short period or in a dedicated facility. It causes psychological illness, trauma, depression, anxiety, aggression, and other physical, emotional and psychological consequences.1

12. Migrants with serious mental health issues are routinely imprisoned in maximum-security

provincial jails as opposed to dedicated, medium-security IHC. Indeed, the CBSA states publicly that one of the factors it considers in deciding to transfer a detainee from an IHC to a provincial jail is the existence of a mental health issue.

KEY RECOMMENDATIONS

1. Creation of an independent body/ombudsperson responsible for overseeing and investigating the CBSA, and to whom immigration detainees can report grievances (akin to the federal Office of the Correctional Investigator).

2. Amendment of existing laws to create a presumption against restrictive forms of detention for all

migrants, especially vulnerable persons.

3. Creation of a rebuttable presumption in favour of release after 90 days of detention.

4. Meaningful exploration, assessment, and implementation of alternatives to detention that build on the positive best practices already in place in other jurisdictions, especially with respect to vulnerable migrants.

1 Cleveland, J. & Rousseau, C. 2013. Psychiatric symptoms associated with brief detention of adult asylum seekers in

Canada. Canadian journal of psychiatry, 58, 409-416.