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Reforming Immigration Detention Now: Responding to the Canadian Border Services Agency (CBSA) Calls for Public Consultations, by Petra Molnar and Stephanie J. Silverman
August 22, 2017
The Canadian Border Services Agency (CBSA) is the immigration enforcement wing of the Government of Canada. As a result of ongoing efforts to reform Canadian immigration detention policies, in May 2017, CBSA released a call for public consultations. This call followed a series of stakeholder meetings in Ottawa, Montréal, Toronto, Regina, Edmonton, Winnipeg, and Vancouver, “[a]s part of the Government’s commitment to openness and transparency as well as to create a better, fairer immigration detention system for the humane and dignified treatment of individuals while upholding public safety.”
The consultations take place in a context of hot debate over the place and propriety of immigration detention in Canada. Numerous media outlets have reported on the harrowing experiences of long-term immigration detainees, and other groups are calling on the Government to stop detaining the particularly vulnerable, including children. Recently, there have been encouraging developments in Ontario regarding the availability of habeas corpus applications at provincial courts. Decisions such as Scotland v. Canada show the judiciary’s willingness to question the legality of a system that incarcerates thousands with very few safeguards, no automatic access to counsel, and no statutory time-limits.
As a team composed of a lawyer and an academic who have been working on issues concerning Canada’s immigration detention system since 2013, we felt it incumbent upon us to participate in the call for public consultation and submitted the following recommendations to CBSA.
To date, we have received no response from the agency. However, CARFMS invites us to share our Submissions here in order to publicize our concerns and recommendations more widely.
SUBMISSIONS ON CBSA’S NATIONAL IMMIGRATION DETENTION FRAMEWORK
May 22, 2017
Petra Molnar, MA JD and Stephanie J. Silverman, PhD
We call on the Government of Canada to commit to reforming its immigration detention system from the ground up or withdrawing it altogether. As the system currently stands, it is a disgrace to Canada and the Government could be accused of falling short of numerous international standards and laws.
In particularly, we call on the Government to 1) stop the detention of children and not separate families; 2) stop conflating criminal sanctions with immigration and beware of “crimmigration;” and 3) stop the solitary confinement of detainees.
We are a team composed of a lawyer and an academic, and we have both been working with migrants and asylum seekers for over a decade. We have been researching and writing about Canada’s immigration detention practices together since 2013, namely on the access to justice issues associated with detention as well as the ethics of detaining non-citizens. Professor Silverman has also edited the first scholarly book on the global spread of detention practices, and is an International Advisor at the International Detention Coalition. We have been published in a number of peer-reviewed publications, and have presented at national and international conferences and public fora. We are also both on the secretariat of the Canadian Association for the Study of Forced Migration (CARFMS).
Our ultimate call is to abolish the practice of immigration detention in Canada. However, we understand and acknowledge that systemic reforms take time and that policies must be carefully constructed in order not to exacerbate further the rights violations experienced by migrants. For example, if the end of child detention results in family separation and the children being placed in Crown wardship, this policy development is equally flawed from a rights-protecting perspective.
Notwithstanding the plausibility of effecting the end of detention, the Government must, in the meantime, implement a robust system of Alternatives to Detention, such as the Community Assessment and Placement (CAP) model. It must immediately increase oversight of CBSA detention practices, and implement an independent and effective complaints and monitoring mechanism.
We have also identified three key issue areas as outrageously harmful and unnecessary: the detention of children and not separating families; official thinking and practices that conflate and collapse immigration and criminal justice; and, finally, the solitary confinement of detainees. We detail these areas, and how to reform them, in the remainder of our submission.
1. STOP THE DETENTION OF CHILDREN AND DO NOT SEPARATE FAMILIES
As a matter of law, children and youth should not be held in immigration detention. Canada has ratified the United Nations Convention on the Rights of the Child, which insists that “the best interests of the child” always be a primary consideration and that detention must be a “last resort.” Canada’s own Immigration and Refugee Protection Act8 identifies the best interests of the child as a relevant consideration, and mandates that immigration detention of children should occur only as a last resort. However, immigration detention is never in a child’s best interest, and should never be considered an acceptable option.
Yet, there are documented cases of CBSA detaining children with their families. Pregnant women are also being detained and some have been forced to give birth while in immigration detention. A number of monitoring bodies have criticized Canada for detaining children, including the UN Human Rights Committee in 2015. Condemnation of the detention of children is universal, including explicit criticism from the UN Special Rapporteur on the Human Rights of Migrants, Francois Crepeau, and the Canadian Council for Refugees.
Canadian courts have also begun to take notice of this incredibly damaging practice. Recent decisions such BB and JFCY v. Minister of Citizenship and Immigration confirm that detrimental effects of detention on children are a relevant factor in detention reviews, including in cases where the child is being held as a “guest” of her parents, a legal loophole created to allow for incarcerating Canadian children in immigration detention facilities. BB confirms that, in line with international human-rights law, Canada must consider the best interests of the child when deciding whether to detain.
Therefore, the Government of Canada should immediately stop the practice of detaining children and pregnant women and refrain from separating children from their parents or primary caregivers.
2. STOP CONFLATING CRIMINAL SANCTIONS WITH IMMIGRATION
Immigration detention is a civil matter, governed by administrative law. However, in a troubling conflation of criminal and immigration law, administrative tribunals and agencies such as CBSA are vested with expanding discretionary powers without the concurrent rights protections granted to those suspected or convicted of criminal activity. Scholars have termed this phenomenon the criminalization of migration, or “crimmigration.”Crimmigration is insidious because it is simultaneously legal and physical, with deeply disturbing collateral damage and few modes of legal redress.
Because immigration law is a civil domain, we are particularly concerned about the importation of criminal sanctions without the concurrent rights protections afforded to criminal suspects and those convicted: in immigration detention, there are no readings of one’s rights, no automatic access to legal counsel or even a two-way telephone, and unclear information explaining how to apply for release.
We are also concerned about the indefinite nature of immigration detention. While sections 57(1) and 57(2) of the IRPA mandate that the grounds for immigration detention must be reviewed after 48 hours, then within the next 7 days, and thereafter every subsequent 30 days, detainees are often unrepresented at these hearings and are therefore not able to present new evidence which would be beneficial for their release. Canada, in contrast to other western nations, does not have an outward limit for immigration detention. As we have argued elsewhere, without a time limit to detention nor free, high-quality access to council, these review hearings become merely a check-box exercise, opening the window for migrants to languish in detention for months and years. Detainees identify the particular traumatic experience of open-ended detention as akin to mental torture.
Canadian courts have begun recognizing that there must be an expansion of rights protections in immigration detention. For example, Chaudhary v. Canada has affirmed that detainees’ constitutional rights under the Canadian Charter of Rights and Freedoms translate into a right to apply for direct habeas corpus relief at court, something previously denied to them. Such changes reposition immigration detention into a sphere where human rights can be asserted and exercised.
In order to protect the rights of immigration detainees and increase access to justice, the Government of Canada should 1) ensure that there are clear policies in place which allow detainees to consult and retain appropriate counsel; 2) impose clear outward limits on the time that a detainee can spend in detention; 3) ensure medical professionals have access to detainees held in provincial facilities and Immigration Holding Centres for psychological assessments relevant to refugee hearings and release from detention; and 4) consider reintroducing duty counsel for detention review hearings.
3. STOP THE SOLITARY CONFINEMENT OF IMMIGRATION DETAINEES
Canada must end solitary confinement of immigration detainees. Solitary confinement in the immigration detention context does not have clear definitions. There is very little publicly available guidance on when, how, and to what ends solitary confinement can be used. There is little oversight regarding the grounds for solitary confinement or time limits thereof. In addition, the appeal and review procedures available to detainees to challenge solitary confinement decisions are unclear.
A number of detainees have been in solitary confinement for prolonged periods. For example, the case of Kashif Ali highlights a system in which a detainee can be isolated for 103 consecutive days without review, access to counsel, or ongoing medical assessments. There are also documented cases of Syrian youth being placed in solitary confinement for up to two weeks, resulting in increased post-traumatic stress disorder (PTSD) symptoms and exacerbation of past trauma.
Solitary confinement traumatizes immigration detainees. Even the threat of returning to detention can be enough to trigger extreme anxiety and PTSD. This retraumatization also makes legal representation and assistance extremely difficult. Evidence gathering, advice sessions, refugee hearing preparations, and regularization of status become increasingly difficult when migrants are isolated. This harsh system of incarceration based not on crimes committed but on immigration infractions victimizes detainees, and solitary confinement is yet another step too far.
Immigration detention is simply no place for traumatized populations.
The immigration detention system falls short of Canada’s domestic and international obligations. Unfortunately, the failures of the current system disadvantage the most vulnerable and marginalized non-citizens more often and more extremely: women, children, racialized migrants, and newcomers with mental health issues.
Consultations with practitioners, scholars, and migrants themselves are paramount to determine the best course of action going forward. We suggest roundtables with experts. We are happy to present our research findings in-person, for example. We also suggest further conversations with the International Detention Coalition on implementing the CAP Model, in a stop-gap measure until total abolitionism can be achieved.
Ultimately, to live up to its reputation as a leader in human rights, Canada must do better and commit to reforming fundamentally its immigration detention system.
Petra Molnar and Stephanie J. Silverman
 As per Art. 37 of the United Nations Convention on the Rights of the Child (1577 UNTS 3, 20 Nov.1989 (entry into force: 2 Sep. 1990. Section 60 of Immigration and Refugee Protection Act (“IRPA”) affirms “as a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child. See also: International Detention Coalition (IDC). 2012. ”Captured Childhood: Introducing a New Model to Ensure the Rights and Liberty of Refugee, Asylum Seeker and Irregular Migrant Children Affected by Immigration Detention.” Online: http://www.refworld.org/docid/510a604c2.html
 Immigration and Refugee Protection Act, RSC 2001, c 27 http://laws.justice.gc.ca/eng/acts/i-2.5/fulltext.html
Amnesty International. 2014. “Canada Submission to the United Nations Human Rights Committee.” 112th Session of the Human Rights Committee, London. Online: https://www.amnesty.org/en/documents/amr20/1806/2015/en/
 United Nations High Commissioner for Refugees, Detention Guidelines, available at: http://www.unhcr.org/53aa929f6
 Francois Crepeau. 2016. “Any Detention of Migrant Children is a Violation of their Rights and Must End. Online: https://theconversation.com/any-detention-of-migrant-children-is-a-violation-of-their-rights-and-must-end-64985
 International Human Rights Program. 2016. “No Life for a Child”: A Roadmap to End Immigration Detention of Children and Family Separation,” available at http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-NoLifeForAChild.pdf
 See also Petra Molnar and Stephanie Silverman, “Cracks Where the Light Gets in: Recent Legal Breakthroughs in Canadian Immigration Detention.” Metropolitics, 7 December 2016.
 Silverman, S. J. and Nethery, A. 2015. “Understanding immigration detention and its
human impact”, in A. Nethery and S. J. Silverman (eds.), Immigration Detention: The Journey of a Policy and its Human Impact, London: Routledge, pp. 1–12.
 Stephanie J. Silverman and Petra Molnar. 2016. Everyday Injustices: Barriers to Access to Justice for Immigration Detainees in Canada. Refugee Survey Quarterly 35 (1): 109-127. See also, Stephanie Silverman and Petra Molnar. 2015. Unshackled discretion: Lacking access to justice in the Canadian immigration detention system. Refugee Research Network – Detention and Asylum Cluster, Available at: http://refugeeresearch.net/ms/detention/publications/original-works/ .
 Mary Bosworth. 2016. The Impact of Immigration Detention on Mental Health: A Literature Review. Centre for Criminology Reports. Oxford, University of Oxford: 37.
 Brendan Kennedy, “Caged by Canada: Part II.” Toronto Star, March 17, 2017, online: http://projects.thestar.com/caged-by-canada-immigration-detention/part-2/
 Carmen Cheung and Samer Muscati, “An inexcusable travesty: Canada sent a Syrian minor to solitary confinement,” The Globe and Mail, February 17, 2017, online: http://www.theglobeandmail.com/opinion/an-inexcusable-travesty-canada-sent-a-syrian-minor-to-solitary-confinement/article28781118/