The detention of migrants was not a highly publicized issue in Canada until the deaths in the Vancouver and Toronto immigration facilities in 2013 and 2016 brought to light the conditions of thousands of people currently being detained. Immigration detainees are often isolated from community supports, and are unable to access doctors and lawyers. The prolonged periods of detention exacerbate existing mental health issues such as Post-Traumatic Stress Disorder (PTSD), which impacts many migrants coming to Canada from war-torn countries. Advocates argue that Canada's immigration detention system contravenes multiple instruments of international law, and that more oversight is necessary to prevent further deaths in the future and to reform the system as a whole.

Definition of Immigration Detention

Immigration detention falls under the framework of administrative law — the person being detained has not committed a crime under Canada's Criminal Code, but is being detained for immigration reasons.

Immigration detention affects thousands of people every year. Between 2013 and 2014, Canadian Border Services Agency (CBSA) detained 10,088 migrants. Men are disproportionately more likely to be detained, making up approximately 76 per cent of the population.

Historically, exact figures of detained migrants and specific policy directions governing immigration detention are difficult to ascertain. However, immigration detention sparked debates in Canada in the summer of 2010, when hundreds of Sri Lankan Tamil asylum seekers arrived in British Columbia on board the ship MV Sun Sea. All 492 asylum seekers, including 63 women and 49 children, were detained, some for several months, others for years, costing the Canadian government millions of dollars. The Tamil refugees were also publically linked with terrorism threats and human smuggling, and were presented as not being “legitimate” refugees. However, many of the claimants have been found to be refugees through Canada's refugee determination system on the grounds that as passengers on the ships, they were at risk of human rights abuses by the Sri Lankan government. A large number of cases are still being processed in 2016.

Migrants are either detained in immigration holding centres or provincial correctional facilities, where they have to share facilities and space with convicted felons. Uniformed guards patrol facilities with centrally controlled doors, with razor wire outside and cameras on the inside of the building. The detainees’ personal effects, such as mobile phones, photos and other paraphernalia, are confiscated upon entry. Access to the Internet and incoming phone calls is curtailed. In provincial correctional facilities, detainees are required to wear orange jumpsuits like the convicts and they mingle with the rest of the prison population, even though they have not been charged or convicted of any crime.

While there are detention facilities in most major Canadian cities, nearly 60 per cent of all detention occurs in Ontario, with 53 per cent of detention occurring in the Greater Toronto Area. Racial and ethnic prejudices also disproportionately render certain groups more vulnerable to immigration detention, such as racialized men of African descent.

Immigration detention is also incredibly costly. For example, in 2011–12, CBSA spent some $50 million on immigration detention-related activities. It costs $259 per day per detainee in a provincial jail.

Legislative Framework

Sections 54 to 61 of the Immigration and Refugee Protection Act (IRPA) and sections 244 to 250 of the Immigration Refugee and Protection Regulations (IRPR) set out the legislative ground for immigration detention in Canada. The IRPR and the Immigration, Refugees and Citizenship Canada Policy Manual on Detention direct the administration of immigration detention by the CBSA. The IRPA sets out that CBSA can detain a person if they suspect that: the person poses a danger to the public; are unlikely to appear for an examination; cannot prove their identity; or are part of an irregular arrival, such as en masse on a boat.

Migrants can also be detained if there are reasonable grounds to suspect that the person has committed human rights abuses in their country of origin, or that they pose a security threat in Canada. While in some cases detention of migrants can seem justified, there are international frameworks that govern the administration of immigration detention and it is thought of as a policy of last resort. Given its discretionary nature, immigration detention has been widely criticized by human rights groups as ineffective and even in violation of international human rights. This includes the administration of immigration detention in Canada, in particular the lack of oversight of CBSA policies and the possibility of indefinite detention. Migrants can be detained when they first come to Canada at the port of entry (e.g., when they make a refugee claim at the airport), during the course of their proceedings in Canada, or they may be taken into detention if they are in Canada without status and are apprehended by a CBSA officer.

The IRPA also sets out mandatory reviews of the grounds for detention after 48 hours, then within the next seven days and then every subsequent period of 30 days. However, despite these safeguards, in 2014, at least 145 migrants had been detained for more than six months; and, as of 2015, 38 detainees had been held for between one and two years, 16 for anywhere between two and five years, and 4 have been detained for more than five years. These lengthy detention periods are the result of detainees being isolated from community supports and access to lawyers as they are unable to adequately prepare for their detention reviews.

While there has been discussion at the Supreme Court of Canada on the legal acceptability of Canada's immigration detention system as a whole, courts have generally been reluctant to intervene in the administrative arena of detention. As a system, immigration detention remains highly unregulated with wide discretionary powers given to CBSA which is responsible for its administration.

Issues with Immigration Detention

Due to the largely discretionary nature of immigration detention and the lack of oversight of CBSA detention mechanisms, serious issues have been raised by migrant rights groups, lawyers and refugee advocates about the treatment of migrants in detention.

Vulnerable People and Detention

Prolonged periods of detention inflict lifelong psychological, physical, emotional and social damage. Detention exacerbates mental health issues that many detainees already face, such as Post-Traumatic Stress Disorder (PTSD), anxiety and suicidal thoughts. There is no official screening procedure that prevents the detention of vulnerable people, such as young children, pregnant women or migrants with mental health issues. Families are often separated, including nursing mothers and their infants.

Also, if an immigration detainee shows certain behavioural problems, such as aggressiveness or symptoms of mental illness such as suicidal ideation, they are often transferred to provincial jails as “high-risk” detainees. This increases their isolation and inability to access supports from the community. It is extremely difficult to obtain psychiatric evaluations and access to medical doctors from the provincial jails, greatly exacerbating any pre-existing mental health conditions and giving rise to depression, suicidal thoughts and anxiety among the detainees.

Children in Immigration Detention

According to data obtained in March 2016 by the Canadian Council for Refugees, there are at least 82 children in immigration detention. Detention is extremely damaging to children. There is very limited access to outside enrichment activities, and educational supports are limited. Children who have been born while their mothers were in detention and who are Canadian citizens cannot technically be detained by CBSA, since immigration detention is for non-citizens only. Instead, they are interned as "guests" of their parents. For example, Alpha Anawa, born in 2013, has been detained alongside his mother, Glory Anawa, a refugee claimant from Cameroon who arrived in Canada three months pregnant. Even though he is a Canadian citizen by birth, Alpha has never been outside of the immigration holding centre.

Access to Justice Concerns

Access to affordable and quality legal counsel is one of the chief determining factors in successful detention bail hearings. Detainees face many difficulties when trying to gather evidence to present at their detention reviews. These difficulties arise because it is very difficult to communicate with counsel. There is only one-way telephone communication out from the immigration holding centres and prisons, access to the Internet is non-existent and the availability of interpreters is extremely limited. In addition, detainees in provincial jails are often geographically very far away from their lawyers. For example, the Central East Correctional Centre, in Lindsay, Ontario, known as the Lindsay Superjail, is approximately three hours away from Metro Toronto, making trips up to see their clients very difficult for counsel. As a result, immigration detainees are very isolated and many are routinely unrepresented at their detention hearings, resulting in prolonged and possibly indefinite detention periods.

Indefinite Detention

Canada is one of the few Western countries without a time limit on immigration detentions.

Due to the numerous access to justice issues faced by immigration detainees, some face the prospect of indefinite detention. The case of Michael Mvogo shows how difficult it is for migrants to get out of immigration detention. Until October 2015, Mvogo was detained for approximately eight years. He was arrested in 2005 for possession of a small amount of cocaine and was found to have been travelling on a fraudulent American passport. CBSA tried to link Mvogo to the US, Haiti, Guinea and, ultimately, Cameroon. However, Cameroon does not recognize Mvogo as a national and denied issuing him travel documents which would facilitate his deportation from Canada. As a result, CBSA deemed him "undeportable," but continued to keep him in detention.It remains unclear whether he has been deported from Canada.

In 2015, the Ontario Court of Appeal found in Chaudhary v Canada that immigration detainees can apply to the court for release out of detention based on the principle of habeas corpus, which protects the foundational right for people to seek review and relief from their incarcerations by the State. Michael Mvogo and Glory Anawa, the Cameroonian mother of detained toddler Alpha Anawa, were two of the four plaintiffs in this case. This decision signals that while there is a statutorily mandated system of detention reviews, these hearings are organized in such a way that makes it very difficult for immigration detainees to fully exercise their habeas corpus rights, e.g., by making access to counsel difficult.

Deaths in Canadian Immigration Detention

Perhaps the biggest problem with Canadian immigration detention is the fact that at least 15 detainees have died while in custody since 2000.The majority of these deaths are shrouded in secrecy and were not widely publicized, such as the 2010 death of Trinidad-born Kevon Phillip, who had lived in Canada for some 15 years and who was facing deportation, and who was beaten to death by fellow inmates in the Don provincial jail.

The 2013 death of Lucia Vega Jimenez in Vancouver, British Columbia, who killed herself awaiting deportation, highlighted the desperation of many detainees. CBSA did not announce her death until community groups brought it to the media and called for an independent investigation of detention conditions. Two men also died of apparent suicide while in detention in early 2016, a Chilean migrant and a Burundian refugee awaiting the determination of his refugee claim. In May 2016, another man died in CBSA custody in a provincial jail.

As a result of these deaths, the federal government announced in 2016 that it would review its immigration detention policies.

Is Canada's Immigration Detention in Breach of International Law?

Numerous doctors, lawyers and advocacy organizations have called on Canada to reform its immigration detention system, as it violates the human rights of some of the most vulnerable people in Canada. Groups such as Amnesty International highlighted the many issues in Canada's immigration detention system at the United Nations Human Rights Committee periodic country review in the summer of 2015, pointing out that it violates a number of international human rights treaties to which Canada is a state party, such as the International Covenant on Civil and Political Rights, the Convention on the Rights of Persons with Disabilities, the Convention on the Rights of the Child and norms of customary international law.

Alternatives to detaining migrants in holding centres and provincial jails include the usage of tracking bracelets, reporting conditions and community detention housing. International human rights law dictates that immigration detention is a measure of last resort that is non-punitive, non-arbitrary, conducted with regard to due process and must not sweep up asylum seekers or other vulnerable people.