Imprisoning migrants for administrative reasons violates international law
Migrants are presently being held in provincial jails across Canada even though they are not accused of a crime.
Under agreements with the Canada Border Services Agency (CBSA), many provinces imprison migrants for administrative reasons (new window), a practice that violates international law.
Alex, a fictitious name CBC has given him for security reasons, says he underwent several strip searches during his detention in the provincial jail of Rivière-des-Prairies in Montreal.
They asked me to take off my clothes, bend over,
he said.
This foreign national, who was not charged with any crime, spent about six months behind bars last year.
His case is far from unique.
Some 2,000 of the approximately 8,000 migrants CBSA detained on average each year (new window) from 2015 to 2020 were sent to provincial jails across Canada.
These migrants, including asylum seekers, are detained under the Immigration and Refugee Protection Act.
Recently, British Columbia (new window) and Nova Scotia announced they were terminating their contracts with CBSA.
But Ontario, Quebec, New Brunswick, Alberta and Saskatchewan are maintaining their agreement for the time being.
A hole in the ground for a bathroom
Alex, a rejected asylum seeker, was sent back to his eastern European country last year, where CBC reached him. He said he suffered from serious mental health problems during his detention.
According to an Immigration and Refugee Board document, Alex was held in solitary confinement in a very, very small cell … there is not a toilet in the cell, there is a hole in the ground.
These are real human tragedies.
A quote from France-Isabelle Langlois, Amnesty International Canada
It kind of makes you feel helpless,
said Alex. It was a system like to break you.
In detention, he stopped eating for many weeks.
His lawyer Chantal Ianniciello said her client, initially physically strong, became skeletal and almost died.
Handcuffed and shackled
Specializing in immigration law, Ianniciello often represents migrants who are sent to jail, a practice she describes as terrible.
She said these migrants are treated like convicted criminals, which has been confirmed by the Canadian Red Cross, which regularly visits provincial jails to verify the conditions of detention of migrants.
When taken to appointments outside the jail, immigration detainees are handcuffed, shackled and subjected to strip searches, including rectal searches, Ianniciello said.
I have clients who call me crying and say ‘What am I doing here? Why am I with these people?
Provincial jails house criminals serving sentences of less than two years, as well as accused persons awaiting trial and convicted persons awaiting transfer.
CBSA can detain migrants if it believes:
- their identity has not been clearly established;
- they pose a danger to the public;
- or they are a flight risk.
Most immigration detainees do not pose a danger to the public, according to CBSA’s own data. Still, 85 per cent of detained migrants in 2019-2020 were held on the grounds of flight risk.
That was Alex’s case.
He was detained because of concerns he might not show up for appointments due to his mental health issues, according to immigration board documents.
The documents also note Alex fought with guards. But according to Ianniciello, mental health disorders and behavioural problems are often caused or aggravated by the detention itself.
Calls to end contracts
It’s extremely shocking, it’s even outrageous that we can treat human beings this way in a country like Canada,
said France-Isabelle Langlois, executive director of Amnesty International Canada’s francophone branch.
Amnesty International and Human Rights Watch are behind the #WelcometoCanada campaign calling on the provinces to end their contracts with CBSA, under which they agree to detain migrants in their jails.
The CBSA refuses to specify what type of arrangement is in place with the provinces that are not bound by a contract.
These are real human tragedies,
said Langlois. If we think that these people have feelings, reactions like us, we cannot act in this way
She points out international law prohibits the imprisonment of migrants for administrative reasons related to immigration.
Paid to imprison migrants
The federal government pays the provinces for the incarceration of migrants.
Ontario receives $356.69 per day to detain immigrants, according to a copy of the agreement obtained by Human Rights Watch.
Quebec receives $301.18 a day for women and $270.28 for men.
CBSA also has three of its own federal immigration holding centres in Toronto, Laval, Que., and Surrey, B.C.
The agency said it uses provincial correctional facilities as a last resort when migrants are detained in an area where there is no centre, or when a person exhibits behaviour that cannot be managed in a centre.
The agency also detains those who have serious mental health issues,
according to 2018 internal documents Radio-Canada obtained under the Access to Information Act.
During the pandemic and border closures, the number of detained migrants dropped to around 1,600, but 40 per cent of them were sent to provincial jails as CBSA emptied its own centres to avoid COVID-19 outbreaks.
Alternatives to jail
Ianniciello said she agrees with the #WelcometoCanada campaign because incarcerating immigrants makes them invisible.
As a society, we must help the most vulnerable people. But I think we are failing on that side,
she said.
In the short term, Ianniciello said the CBSA should use its three holding centres to detain the more severe cases, provided the agency surrounds itself with health professionals capable of treating them.
She said many people currently detained in federal centres could easily live in the community under certain conditions while their immigration file is being processed, as was done during the pandemic.
However, Ianniciello and human rights organizations point out the holding centres are also an issue because they operate like jails, except migrants are housed together and not with criminals.
Their ultimate objective is the abolition of all forms of immigration detention.
