U of T researchers and human rights groups raise concerns with UN on treatment of immigration detainees

Ahead of a review into Canada’s track record on human rights, the University of Toronto's international human rights program and several national advocacy groups have submitted concerns to the United Nations about the detention of immigrants and refugees in this country, particularly children and people with mental health conditions.

The international human rights program (IHRP), located at the Faculty of Law, has been researching the treatment of immigration detainees over the last three years.

The organization has published a series of studies looking at the Canada Border Services Agency’s detention of non-citizens with mental health issues, as well as the detention of hundreds of children, both Canadian and non-Canadian, since 2011.

Amnesty International, the Canadian Civil Liberties Association, and Justice for Children and Youth are also part of the joint submission. 

“Canada is really a global leader when it comes to refugee and immigration issues,” says Samer Muscati, director of the IHRP. “We’ve accepted thousands of Syrian refugees in the last couple of years. And the government prides itself on being a refugee- and immigration-friendly country. That’s why this is such a discrepancy, an anomaly we have on the back end – people who are subjected to such needless mistreatment through the immigration system.”  

IHRP says more than 800 children have spent time in Canadian immigration detention since 2013, and Canada’s treatment of those children violates the Convention on the Rights of the Child.

“However, even where there are no grounds for detention, children may be 'housed' in detention in order to avoid separating them from their detained parents,” the submission states. “This subset of de facto detainees are subject to the same detention conditions as those under formal detention orders, and may include Canadian children. Children who do not accompany their detained parents in detention are separated from their parents, and may be at risk of being transferred to government child protection services.”

Read IHRP's 2016 report on children in detention

Read IHRP's 2017 report on Canadian children in detention

In addition, IHRP says that while the majority of immigration detainees are held in Immigration Holding Centres, approximately a third of all detainees and the vast majority of long-term detainees are held in facilities intended for criminals. Immigration detainees with psychosocial disabilities or mental health conditions are routinely held in maximum-security provincial jails, often exacerbating their mental health conditions.

“Detention can be particularly damaging to vulnerable individuals, including asylum seekers and victims of torture,” the submission states.

Read IHRP's 2015 report on detainees with mental health concerns

The human rights group’s reports and the work of advocacy groups has led to some changes.

There has been a drop in the number of detentions from 8,739 in the 2012-2013 fiscal year to 6,251 in 2016-2017, and the number of children in detention has decreased from 232 in 2014-2015 to 162 in 2016-2017. Canada Border Services Agency has also improved transparency and looked at alternatives to detention, Muscati says.

The human rights groups hope that by raising some of the issues now – just before Canada goes before the Universal Periodic Review at the UN Human Rights Council in Geneva this spring – they can bring about further change.

“Even though there have been changes in terms of the actual number of detentions, we want to make sure this is entrenched into law,” Muscati says. “This shouldn’t be at the discretion of the Canada Border Services Agency or any government official. Unfortunately, the way immigration detention works in Canada is that it’s a punitive culture. The number of detentions shouldn’t increase or decrease based on which political party is in power – it should be based on the rule of law.”

The submission calls for several recommendations, which have been endorsed by Human Rights Watch:

• Canada should create a legislative presumption against detention beyond 90 days, which means that after three months, detainees should be released unless there’s clear and compelling evidence to hold them. Muscati cites an example of a detainee held for more than a decade.
• There should be an independent body to investigate the Canada Border Services Agency. Muscati says that even though there has been a series of deaths in immigration detention centres, there’s been no accountability. “CBSA has the powers of a police force, but it doesn’t have the same accountability that we see in other parts of the world, or even in Canada,” Muscati says.
• The best interest of the child should play a primary role, not just be taken into consideration.
• Canada should implement community-based alternatives to detention, like having detainees be released into the community with reporting obligations and guarantors.