Summary
Over the past five years, Canada has detained tens of thousands of people on immigration-related grounds, including children and refugee claimants. Immigration detainees are held exclusively under immigration law – not on criminal charges or convictions – but many experience Canada’s most restrictive confinement conditions. Every year, hundreds of immigration detainees are incarcerated in provincial jails across the country, including maximum-security facilities. Immigration detainees can be held for months and even years without end in sight because Canada does not have a legislative limit on the duration of immigration detention.
Nearly two decades after its establishment, the Canada Border Services Agency (CBSA) remains the only major law enforcement agency in Canada without independent civilian oversight despite its sweeping police powers. CBSA’s unchecked exercise of its broad mandate and enforcement powers has repeatedly resulted in human rights violations in the context of immigration detention.
The CBSA has full discretion over where immigration detainees are held, with no legal standard guiding the Agency’s decision to hold a detainee in a provincial jail rather than an immigration holding center dedicated to immigration detainees. Immigration detainees have no means to challenge CBSA’s placement decisions at detention review hearings. CBSA relies on bilateral agreements and arrangements with provincial authorities to incarcerate immigration detainees in provincial jails. Canada’s practice of incarcerating immigration detainees in provincial jails is a violation of international human rights standards as incarceration in these facilities is inherently punitive in nature.
There is also evidence that provincial authorities are in potential breach of the human rights provisions included in their bilateral agreements with federal authorities. In particular, provincial authorities are in potential breach of their legal obligations under their respective agreements to provide just and humane treatment in provincial jails, as well as to avoid co-mingling immigration detainees with criminally accused and convicted individuals in those facilities.
I. Background
Overview of the immigration detention system in Canada
Canada has detained tens of thousands of people on immigration-related grounds over the past five years, including children, refugee claimants, migrants in search of employment and a better life, and people who have lived in Canada for decades as permanent residents.[1] Between April 2016 and March 2021, Canada incarcerated approximately 34,000 immigration detainees.[2] Immigration detainees are held exclusively under immigration law – not on criminal charges or convictions – but many experience Canada’s most restrictive confinement conditions, including maximum-security provincial jails and solitary confinement. Immigration detainees can be held for months and even years without end in sight because Canada does not have a legislative limit on the duration of immigration detention. Since 2013, Canada has held up to 1,590 immigration detainees for longer than a year.[3] While this number has decreased significantly in recent years, the Immigration and Refugee Protection Act continues to place detainees at risk of prolonged indefinite detention.
The Immigration and Refugee Protection Act, which governs immigration detention, provides that the Act is “to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory.”[4] However, Canadian law provides authorities immense discretion in the context of immigration detention. The Canada Border Services Agency (CBSA) is responsible for the enforcement of immigration detention in Canada, under the delegation and designation of the Minister of Public Safety.[5] CBSA has sweeping police powers, including the powers of arrest, detention, intelligence-gathering, and search and seizure.[6] In the context of immigration detention, CBSA also exercises jurisdiction over who is arrested and detained under the Immigration and Refugee Protection Act, the grounds of detention, and where immigration detainees are held.
Despite its sweeping police powers and nearly two decades after its establishment, CBSA remains the only major law enforcement agency in Canada without independent civilian oversight.[7] The Immigration and Refugee Protection Act and its regulations do not have any provisions for independent monitoring of detention facilities, and Canada has not ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which allows for independent monitoring by the United Nations. CBSA’s unchecked exercise of its broad mandate and enforcement powers has repeatedly resulted in human rights violations in the context of immigration detention.
In June 2021, Human Rights Watch and Amnesty International called on Canada to gradually abolish immigration detention.[8] Under no circumstances should a person for immigration-related reasons be treated in a punitive manner, including being subjected to solitary confinement or detained in prisons or jails.[9]
Sites of Immigration Detention
CBSA has the sole authority to decide where immigration detainees are held: federal immigration holding centers, provincial jails, or other facilities.[11]
Federal Immigration Holding Centers
Canada’s three immigration holding centers are in Quebec, Ontario, and British Columbia.[12] Immigration holding centers resemble and operate like medium security prisons, with significant restrictions on privacy and liberty, rigid rules and daily routines, and punitive measures in response to failures to follow rules and orders.[13] These facilities are operated by CBSA regional staff and are supported by contracted guard services.[14]
Detainees in immigration holding centers are repeatedly searched and they are under constant surveillance by uniformed guards and cameras.[15] Immigration holding centers have centrally-controlled locked doors and movement within different areas of the facilities is restricted, requiring a guard escort.[16] Some basic personal effects, like mobile phones and electronic devices, are banned.[17] Communication with loved ones, legal representatives, and community supports is restricted to phone calls using the immigration holding center phones or in-person visitation at designated times.[18] Detainees who fail to abide by the strict rules may be punished with isolation, including in conditions akin to solitary confinement, withdrawal of privileges such as visits, or even transfer to a provincial jail.[19]
Provincial jails
According to CBSA policy, in areas where no immigration holding center is in close proximity to the site of arrest, the agency automatically holds immigration detainees in provincial jails, including maximum-security facilities.[20] Even in regions where an immigration holding center is in close proximity, CBSA may also incarcerate immigration detainees in provincial jails if the agency determines that a detainee’s behavior “cannot be managed within an IHC [immigration holding center],” or at the request of the nearest immigration holding center if it has reached capacity of 85 percent or has other capacity problems.[21] Additionally, individuals with mental health conditions may also be detained in a provincial jail in order to “effectively manage them in light of their behavior,” or to facilitate “access to specialized care.”[22]
Provincial jails are designed to detain individuals awaiting criminal court proceedings or serving criminal sentences of up to two years.[23] Immigration detainees across the country are routinely held in the same wings and cells as detainees who are held on criminal charges or convictions.[24]
Between April 2017 and March 2020, approximately a fifth of all immigration detainees–about 5,400–were held in 78 provincial jails across Canada.[25] According to the most recently available statistics, following the onset of the Covid-19 pandemic, in fiscal year 2020-21, CBSA has relied more heavily on provincial jails, holding 40 percent of immigration detainees in those facilities–double the portion of detainees held in jails in previous years.[26] In fiscal year 2020-21, the average length of detention generally also more than doubled, as compared to the three previous years.[27]
Immigration detainees are held most commonly because authorities believe they may not appear for a proceeding or removal (this is referred to as “flight risk”): from April 2016 to March 2020, approximately 83 percent of immigration detainees were held on this ground.[28] Immigration detainees held on the ground of flight risk not only represent the majority of those detained generally but also the majority of those detained in provincial jails.[29] During this period, authorities also held approximately 10 percent of immigration detainees because they were unsatisfied with their identity documents, or for the purpose of completing an examination of their immigration status.[30] A small minority of detainees–approximately six percent from April 2016 to March 2020–were held at least in part because authorities claimed they posed a risk to the public, and one percent were held because authorities suspected they may be inadmissible to Canada.[31]
Immigration detainees who are incarcerated in provincial jails are not only confined in more restrictive settings than those held in immigration holding centers, but they are also more likely to be detained for longer periods of time. For example, in 2019, immigration detainees who were held for 90 days or longer were more likely to be held in provincial jails than immigration holding centers.[32] That year, 78 percent of immigration detainees held for 90 days or longer spent at least part of their detention in a provincial jail.[33] In the same year, 85 percent of detainees held for 180 days or longer were incarcerated in provincial jails, and all detainees who were held for 270 days or longer were detained in provincial jails.[34]
Lacking legal standards and opaque decision-making
Not only does CBSA have the sole authority to decide where immigration detainees are held, there is also no legal standard guiding CBSA’s decision to hold detainees in a provincial jail rather than an immigration holding center. Instead, this is an administrative decision made on the basis of an opaque risk assessment called the National Risk Assessment for Detention (NRAD).[35] The NRAD consists of a two-page form that lays out “risk and vulnerability factors,” with corresponding points to produce a score, which CBSA officers use to determine whether a detainee is to be held in a provincial jail or an immigration holding center.[36]
Immigration detainees have no means to challenge these risk assessments or the decisions regarding their placement at detention review hearings.[37] Lawyers across the country confirmed that NRADs are often not disclosed in detention review hearings and there is no opportunity to challenge these assessments before the tribunal.[38] Lawyers, advocates, and service providers across the country reported that CBSA’s risk analysis is not transparent and it is unclear why some detainees are placed in provincial jails and others in immigration holding centers.[39]
Immigration detention agreements and arrangements
CBSA incarcerates immigration detainees in provincial jails on the basis of bilateral agreements between the federal government and the provinces of British Columbia, New Brunswick, Nova Scotia, Quebec, Ontario, Alberta, and Saskatchewan.[40] In the remaining provinces, agency representatives said CBSA has arrangements to hold immigration detainees in provincial jails.[41]
Immigration detainees who are held in provincial jails remain within the legal jurisdiction of CBSA as the enforcement authority, but the agency relinquishes control over the conditions of detention to which immigration detainees are subjected.[42] In its 2020-21 Departmental Plan, CBSA indicated: “The Agency has limited control over detention conditions in non-CBSA facilities [provincial jails], which poses challenges in ensuring a common standard of care.”[43] CBSA acknowledged that “the Agency faces the potential for nationally inconsistent detention conditions due to its reliance on provincial correctional facilities.”[44] CBSA further indicated that it has no control over whether immigration detainees are held in maximum-security sections of provincial jails, or other lower security sections: “Provincial facilities conduct internal risk management and placement assessments, which may result in internal classification placement decisions within sections of the institutions below the maximum security level.”[45]
In Quebec, among the factors listed as requiring heightened security classification are being the subject of an immigration detention order or pending deportation.[46] In Ontario, “immigration status” is also among the factors considered in the classification process as well as the available programs.[47] Ontario’s Institutional Services Policy and Procedures Manual instructs provincial jail staff that, “All inmates on immigration holds should be considered security risks (e.g. flight risk or risk to reoffend).”[48] The Prince Edward Island Community and Correctional Services Policy and Procedures indicates that, "In dealing with a person detained under IRPA [an immigration detainee], Correctional staff must bear in mind that while no criminal charges may be involved, such a person must be considered a security risk."[49]
In addition to violating international human rights standards, holding immigration detainees in provincial jails is also costly. Data from the federal government indicates that the cost of CBSA’s detention programs increased to C$71.38 million in fiscal year 2019-20 from C$65.26 million in fiscal year 2018-19.[50] The federal government’s agreements with each province stipulate that the former will pay a per diem rate for each day an immigration detainee is held in a provincial jail.[51] The agreement with Ontario also stipulates an additional 20 percent of the per diem rate “to cover administrative and overhead amounts related to the accommodation of detainees,” which amounted to C$59.45 for the 2020-21 fiscal year.[52] According to data that researchers obtained through access to information requests, CBSA pays each province a different per diem rate to hold immigration detainees in provincial jails, ranging from $203.74 to $392.30.[53]
|
Scope of CBSA mandate & power
In addition to CBSA remaining the only major law enforcement agency in Canada without independent civilian oversight, the scope of its power is immense compared with other law enforcement agencies in Canada. CBSA is empowered to enter into arrangements with foreign states and international organizations, as well as agreements or arrangements with provincial governments, departments or agencies of the Canadian government, or “any person or organization.”[54] The arrangement or agreement must be for the purposes of carrying out CBSA’s mandate.[55] Under CBSA’s mandate, it is responsible for “providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under the program legislation,” including by “supporting the administration or enforcement […] of the program legislation.”[56]
CBSA's ability to enter into agreements and arrangements is extremely broad for a law enforcement agency, even when compared to the Canadian Security and Intelligence Service (CSIS), which collects and analyzes information related to threats like terrorism, the proliferation of weapons of mass destruction, espionage, foreign interference, and cyber-tampering affecting critical infrastructure.[57] Unlike CSIS, the CBSA is empowered to enter into arrangements or agreements with “any person or organization,” without a statutory requirement for Ministerial approval, and without a specific purposive limit other than “for the purposes of carrying out its mandate.”[58]
CBSA is also more broadly empowered than Canada’s national police service, the Royal Canadian Mounted Police (RCMP), which has no independent discretion to enter into arrangements and agreements.[59] The Royal Canadian Mounted Police Act provides that it is the Minister of Public Safety, with the approval of the Governor in Council, who has the discretion to enter into arrangements with provinces for the use of the RCMP.[60]
II. International human rights standards
Agreements and arrangements allowing federal immigration detainees to be incarcerated in provincial jails are inconsistent with international human rights standards as incarceration in these facilities is inherently punitive in nature and not suited nor permitted under international standards for use in immigration detention.
In December 2021, United Nations human rights experts urged that “people should not be treated as criminals merely for irregular crossing a State border or lacking proper documentation,” and that states should “ultimately put an end,” to the practice of immigration detention.[61] According to the UN Working Group on Arbitrary Detention, where immigration detention does take place, conditions of detention “must be humane, appropriate and respectful, noting the non-punitive character of the detention in the course of migration proceedings.”[62] The working group further noted:
The detention of asylum seekers or other irregular migrants must not take place in facilities such as police stations, remand institutions, prisons and other such facilities since these are designed for those within the realm of the criminal justice system.[63]
Canada is bound by the International Covenant on Civil and Political Rights (ICCPR), which obligates states to respect the rights to life, liberty, security of person, and humane treatment.[64] The United Nations Human Rights Committee is the independent expert body that interprets the ICCPR, and in its commentary on the right to liberty and security of person, stated that immigration detention “should not take place in prisons.”[65] These rights concern “freedom from confinement of the body,” as well as “freedom from injury to the body and the mind, or bodily and mental integrity.”[66] The committee has further provided that the right to life “concerns the entitlement of individuals to be free from acts and omissions that…may be expected to cause their unnatural or premature death,” and the ICCPR “guarantees this right for all human beings.”[67] The committee has also stated that states have:
A heightened duty of care to take any necessary measures to protect the lives of individuals deprived of their liberty by the State, since by arresting, detaining, imprisoning or otherwise depriving individuals of their liberty, States parties assume the responsibility to care for their lives and bodily integrity, and they may not rely on lack of financial resources or other logistical problems to reduce this responsibility.[68]
Canada is also bound by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which along with the United Nations Standard Minimum Rules for the Treatment of Prisoners (or “The Nelson Mandela Rules”), sets out international law standards with respect to solitary confinement in detention.[69] In particular, the Nelson Mandela Rules prohibit indefinite and prolonged solitary confinement (in excess of 15 consecutive days), which according to the UN special rapporteur on torture, may constitute “torture or cruel, inhuman, or degrading treatment or punishment.”[70]
Canada’s practice of co-mingling immigration detainees with criminally accused and convicted individuals is also inconsistent with international standards, including the The Nelson Mandela Rules, which provide that “different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of […] the legal reason for their detention.”[71] In particular, individuals detained for civil grounds “shall be kept separate from persons imprisoned by reason of a criminal offence.”[72]
According to UN Working Group on Arbitrary Detention, “[t]he mixing of migrants and other detainees who are held under the remit of the criminal justice system must not take place.”[73]
In 2016, the chief commissioner of the Ontario Human Rights Commission stated: “There is a fundamental, systemic problem with using provincial correctional facilities designed for persons detained under the Criminal Code, to detain immigrants who are neither criminally-charged nor serving a sentence.”[74] The 2017 Independent Review of the Ontario Corrections team noted:
The treatment of immigration detainees also raises concerns. In 2016/17, there were over 1,200 immigration admissions to Ontario's provincial correctional institutions. Despite not having been accused or convicted of any crime, immigration detainees face indefinite periods of detention in maximum security settings where they are regularly strip searched, confined to their cells, and can receive only limited personal visits. Maintaining contact with family members overseas can be difficult: long distance overseas calls are not generally permitted. At least one institution excludes immigration detainees facing deportation from participating in work programs and ministry policy significantly restricts immigration detainees' access to temporary absences. Only one institution has dedicated units for immigration holds; in all other institutions, contrary to international standards, immigration detainees are held on units with other inmate populations. [emphasis added][75]
Canada’s failure to abide by international human rights standards has had devastating consequences. Since 2000, at least 16 people have died in Canadian immigration detention, and most of them were held in provincial jails.[76] CBSA has a history of cloaking fatalities of immigration detainees in secrecy and refusing to release basic information about those who die in custody and the cause of death, often citing privacy concerns.[77]
III. Breach of Human Rights Provisions in Immigration Detention Agreements
Not only is Canada’s practice of incarcerating immigration detainees in provincial jails inconsistent with international human rights standards, but provinces may also be in breach of their legal obligations under their respective immigration detention agreements with the federal government. In particular, the provinces are in potential violation of the human rights provisions obligating provincial authorities to provide “just and humane treatment,” to immigration detainees and to avoid co-mingling them with criminally accused and convicted individuals.
“Just and humane” treatment
The agreements between the federal government and the provinces require the latter to provide just and humane treatment of detainees in provincial jails.[78] Specifically, CBSA’s agreements with Ontario and British Columbia state that provincial authorities are obliged to treat immigration detainees in “a responsible, just and humane manner that recognizes their inherent dignity as human beings.”[79] Where this provision is not specifically provided, this provision ought to be implied based on the presumed intention of the parties, as evidenced by CBSA’s agreements with Ontario and British Columbia, provincial policies in the context of correctional institutions, and CBSA’s own stated policy that “[a]ll individuals are detained according to international best practices as well as the Canadian Charter of Rights and Freedoms.”[80] Furthermore, according to CBSA, its National Immigration Detention Framework “supports the humane and dignified treatment of individuals” in its custody.[81] This provision is also implied because “just and humane” treatment that recognizes detainees’ “inherent dignity as human beings” is necessary to the effective functioning of the agreements and their objective to “lawfully detain persons for administrative purposes,” as provided in the preambles of the agreements.[82]
Although the majority of the agreements acknowledge that immigration detention is administrative in nature,[83] they also provide that the conditions of detention as well as the treatment and privileges of immigration detainees are as specified by the relevant Corrections Act, Regulations and associated policies and procedures.[84] The provinces of New Brunswick and Nova Scotia specifically provide that authorities will treat immigration detainees in the same manner they do all detainees in a correctional facility.[85] This confirms that although immigration detainees are held exclusively under immigration law, they are subjected to the same conditions and treatment as persons incarcerated under criminal law in provincial jails.
Violence and overcrowding
According to evidence that researchers collected from former immigration detainees, lawyers and other service providers, provincial authorities are in potential breach of their legal obligation under their respective agreements to provide just and humane treatment in provincial jails.[86]
Immigration detainees are routinely handcuffed, searched, and restricted to small spaces with rigid routines and under constant surveillance, with severely limited access to the outside world.[87] Many immigration detainees are confined in tense and dangerous environments where they may be subjected to violence, and they are also subjected to solitary confinement.[88]
Several former immigration detainees told researchers that they were either assaulted or were afraid of being violently targeted in jail.[89] A former immigration detainee described his experience in an Ontario provincial jail as follows: “There is a pecking order and fights every day, and you never know when it’s going to be your turn.… Jail is defined by the fear of not knowing what’s going to happen.”[90]
Immigration lawyers told researchers that violence is widespread in provincial jails.[91] Three lawyers reported that their clients have been assaulted, including one in the course of a so-called fight club where some detainees in the jail forced others to fight each other while guards stood by.[92] One former detainee stated: “[Surveillance] cameras cannot see showers. Showers are dangerous. People have weapons [made of] ceramic tiles.”[93] Another former immigration detainee reported that he was raped in an Ontario provincial jail:
Inmates use you as tools. They called me “fresh fish”: this means new inmate. Three inmates took me, two of them hold you down while the third rapes you. Guards allow inmates to abuse “fresh fish.” They just laugh about it. I needed to sharpen a pencil to use it as protection.[94]
Another former immigration detainee, who was incarcerated as a flight risk for over five years in two Ontario maximum-security provincial jails while the government attempted to deport him to Somalia, sued the government for C$55 million following his release from detention.[95] His lawsuit states that he was subjected to “humiliating and degrading experiences” in detention, including being strip-searched, assaulted, robbed, denied warm clothing and health care, and forced to endure freezing temperatures, unsanitary living conditions, and lengthy lockdowns.[96]
The conditions of confinement, restrictive rules and routines, and overcrowding in provincial jails also exacerbate tension and hostility among people incarcerated in jails, including immigration detainees. Two former detainees reported overcrowding in provincial jail cells, even during the Covid-19 pandemic.[97] For example, one former detainee said he was held with three others in a cell designed for two, with “people sleeping with their head against the toilet.”[98]
Solitary confinement and inhumane conditions
Provincial jail authorities in Canada frequently place people with mental health conditions or those who express suicidal thoughts in solitary confinement, some for prolonged periods of time. A 2020 independent review of the treatment of people with mental health conditions–including criminally charged or convicted detainees–in Ontario provincial jails found that “prolonged segregation (15 days or longer) remains a routine practice for individuals with mental health and/or suicide risk alerts on file.”[99] The report also found that solitary confinement practices “function in a discriminatory manner” against people with mental health conditions and that “specialized care” may amount to “segregation by another name.”[100]
According to provincial government data, in fiscal year 2019-20, among the 1066 immigration detainees held in Ontario provincial jails, 17 per cent (176 detainees) were placed in solitary confinement at least once.[101] That year, 46 percent of immigration detainee placements in solitary confinement involved persons with a mental health alert and/or a suicide alert, and 13 percent lasted for 15 or more days.[102] Nearly half (45 percent) of immigration detainees placed in solitary confinement for 15 days or fewer had a mental health and/or suicide alert in place.[103] A much higher percentage of those held for long periods of time had such alerts: 77 percent of those held in solitary confinement from 30 to 90 days had an alert, and all five immigration detainees held in solitary confinement for 90 days or more had a mental health or suicide alert.[104]
The Nelson Mandela Rules define solitary confinement as confinement “for 22 hours or more a day without meaningful human contact.”[105] The rules prohibit indefinite solitary confinement as well as prolonged solitary confinement (in excess of 15 consecutive days).[106] According to the UN special rapporteur on torture, “any imposition of solitary confinement beyond 15 days constitutes torture or cruel, inhuman, or degrading treatment or punishment depending on the circumstances.”[107] The special rapporteur also noted that detainees with mental health conditions “deteriorate dramatically in isolation” and solitary confinement “often results in severe exacerbation of a previously existing mental health condition.”[108] And the special rapporteur has emphasized that “solitary confinement of any duration must never be imposed on […] persons with mental or physical disabilities.”[109]
Media and others have exposed the inhumane conditions, including overcrowding and the use of prolonged solitary confinement, in provincial jails across Canada.[110] In June 2020, about 100 detainees went on a hunger strike at Central East Correctional Centre in Lindsay, Ontario–where immigration detainees are also held–because of “inhumane conditions,” reporting a lack of clean drinkable water, dirty clothing, poor food quality, lack of programming, lack of access to quality hygiene products, and bad air quality.[111] In January 2020, a Superior Court judge accused the Ontario government of “deliberate state misconduct” for failing to improve the “inhumane” conditions at the Toronto South Detention Centre (TSDC): “we have reached the point where the inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state misconduct.”[112]
Researchers spoke with three former immigration detainees who reported that they witnessed authorities using solitary confinement in response to detainees expressing suicidal thoughts.[113] One former immigration detainee described his mental health assessment by a CBSA officer upon arrest in Toronto, after which he was placed on suicide watch for 24 hours:
The thing I can’t forget is that [CBSA] officer asking me: “Are you feeling suicidal right at this moment?” He was laughing at me with two other officers. I just froze because I was taking everything in. I was sick, too.… I just kept thinking: “Is this really happening?” Then the officer got mad and said: “Okay, this guy is not talking, take him to the nurse.” They didn’t give a shit. I was in handcuffs… I couldn’t say: “No, please don’t take me to jail.” I was scared and didn’t know what was going on.…
I told the nurse I had been suicidal in the past but I got over it.… I didn’t want to lie to these people. Then I had to follow the officer. They stripped me and put me on suicide watch. I was cold on the steel bed. I asked for a blanket, and they [the guards] said: “No, you’re on suicide watch.” Whenever I made any slight movement–even if I just turned from one side to another–they would come and record it.… The first time I saw a psychiatrist, I was cleared off isolation. He said: “You have to watch the things you say.” … After I was on suicide watch, I didn’t want to tell anyone that I was struggling. I remember that steel bed–you put cadavers there, after you’re dead.”[114]
Co-mingling
Agreements between the federal government and several of the provinces also generally provide that the parties shall individually and jointly endeavor to ensure immigration detainees are not co-mingled with criminally accused and convicted individuals in provincial jails.[115] However, some of the agreements qualify this provision in several ways: the agreements for Nova Scotia and New Brunswick require the provinces to endeavor “to the extent possible and practical,” and the agreement for Ontario uses the language “maximum extent possible.”[116] British Columbia’s agreement only requires the province to avoid co-mingling “where possible,” but also specifically provides that the parties will follow the principles laid out in the United Nations Standard Minimum Rules for the Treatment of Prisoners,[117] which state that individuals detained on civil grounds “shall be kept separate from persons imprisoned by reason of a criminal offence.”[118]
According to evidence researchers collected from former immigration detainees, lawyers and other service providers, immigration detainees in provincial jails across the country are routinely held in the same wings and cells as detainees held on criminal charges or convictions.[119] Therefore, authorities are in potential breach of their obligations under their respective agreements to avoid co-mingling immigration detainees with other prisoners in provincial jails. To the extent that provincial authorities may attempt to limit co-mingling by placing immigration detainees in conditions akin to solitary confinement, authorities breach the provision for the “just and humane” treatment of immigration detainees in provincial jails.
[1] Canada Border Services Agency, “Annual detention, fiscal year 2020 to 2021,” December 9, 2021, https://www.cbsa-asfc.gc.ca/security-securite/detent/stat-2020-2021-eng.html (accessed January 27, 2022).
[2] Ibid.
[3] Immigration and Refugee Board of Canada, “Detention Reviews by Length of Detention,” November 11, 2021, https://irb-cisr.gc.ca/en/statistics/detentions-reviews/Pages/detenLen.aspx#inline_content (accessed February 15, 2022).
[4] Immigration and Refugee Protection Act, section 3(3)(f), https://laws-lois.justice.gc.ca/eng/acts/i-2.5/page-1.html#docCont (accessed February 16, 2022).
[5] Minister of Public Safety and Emergency Preparedness, “Delegation of Authority and Designations of Officers by the Minister of Public Safety and Emergency Preparedness under the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations,” November 28, 2017, https://www.cbsa-asfc.gc.ca/agency-agence/actreg-loireg/delegation/irpa-lipr-2016-07-eng.html (accessed May 15, 2021).
[6] British Columbia Civil Liberties Association, “Oversight at the Border: A Model for Independent Accountability at the Canada Border Services Agency,” June 2017, https://bccla.org/wp-content/uploads/2017/06/FINAL-for-web-BCCLA-CBSA-Oversight.pdf (accessed May 15, 2021), p.12.
[7] Dale Smith, “Oversight at the border,” The Canadian Bar Association, January 28, 2020, https://nationalmagazine.ca/en-ca/articles/law/hot-topics-in-law/2020/oversight-at-the-border (accessed May 16, 2021). See also Meghan Potkins, “Calls for more oversight of border agents following death at Calgary airport,” Calgary Herald, August 10, 2018, https://calgaryherald.com/news/local-cnews/calls-for-more-oversight-of-cbsa-following-death-at-calgary-airport (accessed May 16, 2021). Between 2014 and 2020, there have been several unsuccessful attempts–two bills in the House of Commons and two in the Senate–to introduce and pass legislation concerning CBSA oversight. See Parliament of Canada, “C-3: An Act to amend the Royal Canadian Mounted Police Act and the Canada Border Services Agency Act and to make consequential amendments to other Acts,” undated, www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=10613928 (accessed May 16, 2021); “C-98: An Act to amend the Royal Canadian Mounted Police Act and the Canada Border Services Agency Act and to make consequential amendments to other Acts,” undated, www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=10449322 (accessed May 16, 2021); “S-205: An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other Acts,” undated, www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=8063336 (accessed May 16, 2021); “S-222: An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other Acts,” undated, www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=6676887 (accessed May 16, 2021). See also Dale Smith, “Oversight at the border,” The Canadian Bar Association, https://nationalmagazine.ca/en-ca/articles/law/hot-topics-in-law/2020/oversight-at-the-border; Catharine Tunney, “CBSA won’t be getting independent oversight as Bill dies in the Senate,” CBC News, June 21, 2019, https://www.cbc.ca/news/politics/cbsa-bill-oversight-goodale-1.5185025 (accessed May 16, 2021); Catharine Tunney, “Budget includes watchdog agency for border officers,” CBC News, March 20, 2019, https://www.cbc.ca/news/politics/cbsa-independent-watchdog-1.5063543?fbclid=IwAR0Ml3rffV5UBL1Ii5XGoKcZVXCZkY8IUVFPcdTociVb7zISrPioBarbk78 (accessed May 16, 2021).
[8] Human Rights Watch, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health, June 2021, https://www.hrw.org/report/2021/06/17/i-didnt-feel-human-there/immigration-detention-canada-and-its-impact-mental.
[9] Ibid. UN Human Rights Committee, General Comment No. 35 – Article 9 (Liberty and security of person), CCPR/C/GC/35, December 16, 2014, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/244/51/PDF/G1424451.pdf, para. 18.
[10] Immigration detainees have access to regularly scheduled detention review hearings conducted by a tribunal: the Immigration Division of the Immigration and Refugee Board, an independent quasi-judicial body (Immigration and Refugee Protection Act, sections 56-57). The tribunal is limited in the scope of its review: it can only order continued detention or release from detention. The tribunal may consider conditions and site of detention within its decisions, but CBSA has full authority to decide where to hold immigration detainees. The tribunal has no jurisdiction to order changes to conditions of detention and no jurisdiction to review the appropriateness of the site of detention. See Brown v. Canada (Citizenship and Immigration), 2020 FCA 130; Ebrahim Toure v. Minister of Public Safety, 2017 ONSC 5878, paras. 71-72.
[11] In addition to immigration holding centers and provincial jails, CBSA also detains individuals at other facilities, such as local and provincial police cells, ports of entry, inland enforcement cells, and Royal Canadian Mounted Police detachments, usually for a few days or less until they are transferred to a provincial jail or immigration holding center. See Canada Border Services Agency, “ENF 20: Detention,” March 23, 2020, https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20-det-en.pdf (accessed May 15, 2021), section 7.
[12] Canada Border Services Agency, “ENF 20: Detention,” https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20-det-en.pdf, section 7; “Immigration holding centres,” March 11, 2020, https://www.cbsa-asfc.gc.ca/security-securite/ihc-csi-eng.html#_s1 (accessed February 15, 2022). The Laval, Quebec immigration holding center has a maximum capacity of 109 detainees and holds individuals apprehended in Quebec, the Atlantic region, and Northern Ontario (including Cornwall and Ottawa). The Toronto, Ontario immigration holding center has a maximum capacity of 183 detainees and holds individuals apprehended in the Greater Toronto Area, Southern Ontario, and Northern Ontario (except Cornwall and Ottawa). The Surrey, British Columbia immigration holding center has a maximum capacity of 70 detainees and holds individuals apprehended in the Pacific region and the Prairies. All three facilities have units for men, women, and families.
[13] Hanna Gros and Yolanda Song, “‘No Life for a Child’: A Roadmap to End Immigration Detention of Children and Family Separation,” International Human Rights Program, University of Toronto’s Faculty of Law, 2016, https://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-NoLifeForAChild.pdf (accessed February 15, 2022); Hanna Gros, “Invisible Citizens: Canadian Children in Immigration Detention,” International Human Rights Program, University of Toronto’s Faculty of Law, 2017, https://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-InvisibleCitizens.pdf (accessed February 15, 2022). See also Janet Cleveland, “Not so short and sweet: Immigration detention in Canada,” in Amy Nethery and Stephanie J. Silverman, eds., Immigration Detention: The Migration of a Policy and its Human Impact (New York: Routledge, 2015). In response to researchers’ inquiry regarding the rationale for strict routines that require attendance at mealtimes and obligate detainees to wake up and go to bed at specific times, CBSA representatives indicated, in part: “Establishing a routine is important to help them [immigration detainees] cope with change/uncertainty, and reduce stress levels. … In regard to wake up times and bed times, the same principle applies–research shows that maintaining a regular bed time and wake up time (routine) and getting sufficient sleep are important to keeping energy levels up during the day, improving mood and fighting off anxiety and depression” (Canada Border Services Agency, unpublished document on file with Human Rights Watch and Amnesty International, April 2021).
[14] Canada Border Services Agency, unpublished document on file with Human Rights Watch and Amnesty International, April 2021.
[15] Hanna Gros and Yolanda Song, “‘No Life for a Child’: A Roadmap to End Immigration Detention of Children and Family Separation,” International Human Rights Program, University of Toronto’s Faculty of Law, https://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-NoLifeForAChild.pdf; Hanna Gros, “Invisible Citizens: Canadian Children in Immigration Detention,” International Human Rights Program, University of Toronto’s Faculty of Law, https://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-InvisibleCitizens.pdf. See also Janet Cleveland, “Not so short and sweet: Immigration detention in Canada,” in Amy Nethery and Stephanie J. Silverman, eds., Immigration Detention: The Migration of a Policy and its Human Impact.
[16] Ibid.
[17] Ibid. According to CBSA, “Detainees may request temporary supervised access to their personal cell phones and other electronic devices to retrieve contact information. However, for reasons related to safety, security and privacy rights of other detainees, at this time, the CBSA does not permit the regular use of personal electronic devices. However, the CBSA is reviewing this policy and will examine options related to the use of electronic devices that will take safety, security or privacy rights into consideration” (Canada Border Services Agency, unpublished document on file with Human Rights Watch and Amnesty International, April 2021).
[18] Ibid.
[19] Ibid.; Human Rights Watch, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health, https://www.hrw.org/report/2021/06/17/i-didnt-feel-human-there/immigration-detention-canada-and-its-impact-mental, p. 13. Canada Border Services Agency describes isolation cells as “flexible living unit with rooms that may be used in circumstances where a detainee may require one-on-one observation, may request it, or where placement in other living units is not in their best interests or those of other detainees.” See Canada Border Services Agency, “Immigration holding centres,” https://www.cbsa-asfc.gc.ca/security-securite/ihc-csi-eng.html#_s1.
[20] Canada Border Services Agency, “ENF 20: Detention,” https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20-det-en.pdf, section 7.
[21] Canada Border Services Agency, “Detentions,” March 9, 2022, https://www.cbsa-asfc.gc.ca/security-securite/detent/menu-eng.html, (accessed May 15, 2021); “ENF 20: Detention,” https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20-det-en.pdf, section 11.3.
[22] Interview with Canada Border Services Agency representatives, Toronto, Vancouver, Ottawa, February 1, 2021. See also Canada Border Services Agency, “Detentions,” https://www.cbsa-asfc.gc.ca/security-securite/detent/menu-eng.html.
[23] Correctional and Conditional Release Act, SC 1992, c 20, https://laws-lois.justice.gc.ca/eng/acts/C-44.6/ (accessed May 15, 2021), section 16(1)(b).
[24] Human Rights Watch, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health, https://www.hrw.org/report/2021/06/17/i-didnt-feel-human-there/immigration-detention-canada-and-its-impact-mental, p. 11.
[25] Ibid.; Canada Border Services Agency, “Days Detained FY 2017-2018, 2018-2019 & 2019-2020 by Facility and Region,” unpublished document on file at Human Rights Watch and Amnesty International, undated (accessed under Access to Information Act).
[26] Canada Border Services Agency, “Quarterly detention statistics: Third quarter (Q3) fiscal year 2020 to 2021,” November 4, 2021, https://www.cbsa-asfc.gc.ca/security-securite/detent/qstat-2020-2021-eng.html (accessed November 10, 2021).
[27] Ibid.
[28] See Canada Border Services Agency, “Annual detention, fiscal year 2020 to 2021,” December 9, 2021, https://www.cbsa-asfc.gc.ca/security-securite/detent/stat-2020-2021-eng.html (accessed January 27, 2022).
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Canada Border Services Agency, untitled, document number 2019-21550, unpublished document on file at Human Rights Watch and Amnesty International, December 10, 2019 (accessed under Access to Information Act).
[33] Ibid.
[34] Ibid.
[35] Ebrahim Toure v. Minister of Public Safety, 2017 ONSC 5878, paras. 71-72. See also Stephanie J. Silverman and Esra Stephanie Kaytaz, “Examining the ‘National Risk Assessment for Detention’ process: an intersectional analysis of detaining ‘dangerousness’ in Canada,” Journal of Ethnic and Migration Studies, 48, 3 (2022), https://doi.org/10.1080/1369183X.2020.1841613.
[36] Canada Border Services Agency, “ENF 20: Detention,” https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20-det-en.pdf, section 9.5.
[37] Ebrahim Toure v. Minister of Public Safety, 2017 ONSC 5878, paras. 71-72.
[38] Interviews with immigration and refugee lawyer (name withheld), Montreal, December 2020, immigration and refugee lawyer (name withheld), Vancouver, November 2020, immigration and refugee lawyer (name withheld), Toronto, September 2020, immigration and refugee lawyer (name withheld), Toronto, August 2020, immigration and refugee lawyer (name withheld), Nova Scotia, December 2020, immigration and refugee lawyer (name withheld), Vancouver, November 2020, immigration and refugee lawyer (name withheld), Nova Scotia, January 2021, and three immigration and refugee lawyers (names withheld), Montreal, January 2021.
[39] Interviews with designated representative (name withheld), Toronto, November 2020, immigration and refugee lawyer (name withheld), Montreal, December 2020, service provider and advocate (name withheld), Toronto, November 2020, and immigration and refugee lawyer (name withheld), Vancouver, November 2020. There is also confusion as to who makes these decisions; while CBSA uses the NRAD to make a referral decision, operational guidance stipulates that “IHC managers are the ultimate decision makers” (see Canada Border Services Agency, “ENF 20: Detention,” https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20-det-en.pdf, section 9.5). This makes it impossible to ascertain clear reasoning behind placing immigration detainees in provincial jails rather than immigration holding centers.
[40] Unpublished documents on file with Human Rights Watch and Amnesty International (accessed under Freedom of Information and Protection of Privacy Act): “An Arrangement respecting the detention of persons detained under the Immigration and Refugee Protection Act (IRPA)” between Her Majesty The Queen in the Right of Canada (as represented by the Canada Border Services Agency) and Her Majesty The Queen in the Right of the Province of British Columbia (as represented by the Ministry of Public Safety and Solicitor General), 2017 [BC agreement]; “Agreement between Canada and Ontario respecting detention of persons detained under the Immigration and Refugee Protection Act (IRPA)” between Her Majesty The Queen in Right of Ontario (as represented by the Minister of Community Safety and Correctional Services) and Her Majesty The Queen in Right of Canada (as represented by both the Minister of Public Safety and Emergency Preparedness and the President of the Canada Border Services Agency), 2017 [Ontario agreement]; “An Arrangement respecting the detention of persons under the Immigration and Refugee Protection Act (IRPA)” between Her Majesty The Queen in Right of Canada (as represented by the Canada Border Services Agency) and Her Majesty The Queen in the Right of Province of New Brunswick (as represented by the Department of Public Safety), 2019 [New Brunswick agreement]; “An Arrangement respecting the detention of persons detained under the Immigration and Refugee Protection Act (IRPA)” between Her Majesty The Queen in Right of Canada (as represented by the Canada Border Services Agency) and Her Majesty The Queen in Right of the Province of Nova Scotia (as represented by the Nova Scotia Department of Justice), 2018 [Nova Scotia agreement]; “Entente Canada-Quebec pour la detention de personnes en vertu de la loi sur l’immigration et la protection des refugies” entre Sa Majeste la reine du chef Canada (representee par le president de l’Agence des services frontaliers du Canada) et le Gouvernement du Quebec (represente par le minister de la Securite publique et le minister responsible des Relations Canadienne et de la Francophonie Canadienne, eux-memes representes par la sous-ministre de la Securite publique et le secretaire general associe aux Affaires intergouvernementales canadiennes), (undated) [Quebec agreement]; “Memorandum of Understanding respecting the detention of persons ordered detained under the provisions of the Immigration Act by Citizenship and Immigration Canada officials and detained in Saskatchewan Justice, Provincial Corrections Facilities” between Saskatchewan Department of Justice and Citizenship and Immigration Canada, 1994 [Saskatchewan agreement].
[41] Interview with Canada Border Services Agency representatives, Toronto, Vancouver, Ottawa, February 1, 2021.
[42] For example, according to CBSA’s agreement with British Columbia provincial authorities, once an immigration detainee is transferred from CBSA to a British Columbia provincial jail, “responsibility for safe, secure custody is transferred to [BC Corrections]”; see BC agreement, section 2.4. Ontario’s agreement similarly states: “Transfer of custody of a person detained pursuant to this Agreement, from Canada to Ontario, will occur when that person has been delivered by Canada to, and received by Ontario, in a Correctional Institution”; see Ontario agreement, section 2.3. The New Brunswick and Nova Scotia agreements have nearly identical provisions. For example, see: New Brunswick agreement, section 2.6; and Nova Scotia agreement, section 2.6.
[43] Canada Border Services Agency, “2020-21 Departmental Plan,” 2020, https://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/rpp/2020-2021/report-rapport-eng.pdf.
[44] Canada Border Services Agency, “2020-21 Departmental Plan,” https://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/rpp/2020-2021/report-rapport-eng.pdf.
[45] Canada Border Services Agency, unpublished document on file with Human Rights Watch and Amnesty International, April 2021.
[46] Ministère de la Securité publique Québec, “Classement d’une personne incarcerée dans un établissement de detention,” October 19, 2016 (accessed under Freedom of Information and Protection of Privacy Act: N/Ref.: 123144).
[47] Ontario Ministry of the Solicitor General, “Inmate classification,” September 14, 2021, https://www.ontario.ca/page/inmate-classification (accessed February 16, 2022); Ontario Ministry of Community Safety and Correctional Services, “Inmate Information Guide for Adult Institutions,” September 2015, pp. 35-37 (accessed under Freedom of Information and Protection of Privacy Act, and on file with Human Rights Watch and Amnesty International).
[48] Ontario Ministry of Community Safety and Correctional Services, “Institutional Services Policy and Procedures Manual,” April 2017, section 6.1.5 (accessed under Freedom of Information and Protection of Privacy Act, and on file with Human Rights Watch and Amnesty International).
[49] Unpublished document on file with Human Rights Watch and Amnesty International, document number 2020-156/157 (accessed under Freedom of Information and Protection of Privacy Act).
[50] Government of Canada, “Infographic for Canada Border Services Agency,” undated, www.tbs-sct.gc.ca/ems-sgd/edb-bdd/index-eng.html#orgs/dept/26/infograph/financial (accessed May 16, 2021).
[51] Unpublished documents on file with Human Rights Watch and Amnesty International (accessed under Freedom of Information and Protection of Privacy Act).
[52] Unpublished documents on file with Human Rights Watch and Amnesty International (accessed under Freedom of Information and Protection of Privacy Act).
[53] Unpublished documents on file with Human Rights Watch and Amnesty International (accessed under Freedom of Information and Protection of Privacy Act).
[54] Canada Border Services Agency Act, SC 2005, c 38, https://laws-lois.justice.gc.ca/eng/acts/c-1.4/, section 13(2).
[55] Ibid.
[56] Ibid., section 5.
[57] Government of Canada, Canadian Security Intelligence Service: Mandate, January 25, 2021, https://www.canada.ca/en/security-intelligence-service/corporate/mandate.html (accessed December 5, 2021).
[58] Canadian Security Intelligence Service Act, RSC 1985, c C-23, https://laws-lois.justice.gc.ca/eng/acts/c-23/, section 13; Canada Border Services Agency Act, SC 2005, c 38, https://laws-lois.justice.gc.ca/eng/acts/c-1.4/, section 13(2).
[59] Royal Canadian Mounted Police, “About the RCMP,” November 22, 2021, https://www.rcmp-grc.gc.ca/en/about-rcmp (accessed December 5, 2021).
[60] Royal Canadian Mounted Police Act, RSC 1985, c R-10, https://laws-lois.justice.gc.ca/eng/acts/R-10/, section 20.
[61] UN Office of the High Commissioner for Human Rights, “UN human rights experts urge States to adopt alternative measures and put an end to detention of migrants,” December 17, 2021, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27990&LangID=E.
[62] UN Working Group on Arbitrary Detention, Revised Deliberation No. 5 on deprivation of liberty of migrants, February 7, 2018, https://www.ohchr.org/Documents/Issues/Detention/RevisedDeliberation_AdvanceEditedVersion.pdf, para. 38.
[63] Ibid., para. 44.
[64] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No.16) at 52, A/6316 (1966), entered into force on March 23, 1976, ratified by Canada on May 19, 1976, arts. 6, 9, and 10.
[65] UN Human Rights Committee, General Comment No. 35 – Article 9 (Liberty and security of person), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/244/51/PDF/G1424451.pdf, para. 18.
[66] Ibid., para. 3.
[67] UN Human Rights Committee, General Comment No. 36 – Article 6: right to life, CCPR/C/GC/36, September 3, 2019, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/261/15/PDF/G1926115.pdf, para. 3.
[68] Ibid., para. 25.
[69] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. Res. 39/46, annex, 39, U.N. GAOR Supp. (No. 51) at 197, A/39/51 (1984), entered into force on June 26, 1987, ratified by Canada on June 24, 1987.
[70] UN General Assembly, Resolution adopted by the General Assembly on 17 December 2015 (The Nelson Mandela Rules), A/RES/70/175, January 8, 2016, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/443/41/PDF/N1544341.pdf, rule 44; Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, A/66/268, August 5, 2011, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf, para. 76.
[71] The Nelson Mandela Rules, rule 11.
[72] Ibid., rule 11(c).
[73] UN Working Group on Arbitrary Detention, Revised Deliberation No. 5 on deprivation of liberty of migrants, https://www.ohchr.org/Documents/Issues/Detention/RevisedDeliberation_AdvanceEditedVersion.pdf, para. 44.
[74] Renu Mandhane, “OHRC calls for reforms to immigrant detention system,” April 11, 2016, http://www.ohrc.on.ca/en/news_centre/ohrc-calls-reforms-immigrant-detention-system.
[75] Independent Review of Ontario Corrections, “Corrections in Ontario: Directions for Reform,” September 2017, https://www.ontario.ca/page/corrections-ontario-directions-reform.
[76] “Death of Immigration Detainee an Urgent Wake-Up Call for Canada,” Human Rights Watch news release, February 4, 2022, https://www.hrw.org/news/2022/02/04/death-immigration-detainee-urgent-wake-call-canada.
[77] Leslie Young, “Deaths in detention: CBSA’s fatal failure to learn from its mistakes,” Global News, November 5, 2014, https://globalnews.ca/news/1649523/deaths-in-detention-cbsas-fatal-failure-to-learn-from-its-mistakes/; Debra Black, “Second immigration detainees dies in prison in less than a week,” Toronto Star, March 14, 2016, https://www.thestar.com/news/immigration/2016/03/14/second-immigration-detainee-dies-in-prison-in-less-than-a-week.html; “Vigil held for detainee who died after being held at Laval immigration detention centre,” CBC News, February 14, 2022, https://www.cbc.ca/news/canada/montreal/cbsa-detainee-death-laval-1.6350503.
[78] Ontario agreement at s.3.1; British Columbia agreement at s. 3.1.
[79] Ibid. The terms “just” and “humane” are not defined in the agreements. However, the term “just” has been judicially interpreted in Canada to mean: based on or according to what is morally right and fair (Mahavalirajan v. Tesoc Multicultural Settlement Services (2016), 2016 Carswell Ont. 18164, 2016 ONSC 6858 (Ont. S.C.J.), para. 44), or equitable and fair (R. v. Polischuk, [2003] B.C.J. No. 669, para. 3). Black’s Law Dictionary defines “just” as: “Conforming to or consonant with what is legal or lawful. Correct, true, due. Equitable. Reasonable. Right; in accordance with law and justice” (Alamin v. Sun Alliance Insurance Co. of Canada, [2002] O.F.S.C.I.D. No. 180).
[80] This is the case in the agreements of New Brunswick, Nova Scotia, Quebec, and Saskatchewan, as well as in informal arrangements between the federal government and the provinces of Manitoba, Newfoundland and Labrador, and Prince Edward Island. For example, the New Brunswick Department of Public Safety Correctional Services Offender Policy states that, “Correctional Services is committed to providing professional practices that respect human rights and ensure safety.” The Nova Scotia Correctional Services Policy & Procedures states that the mission of Correctional Services is, in part, to provide safe and secure custody and that a key principle in the operation and management of correctional facilities is respect for the rights and dignity of all those involved in the correctional process and recognition that the offender remains a member of society and forfeits limited rights. The Supreme Court of Canada has confirmed that where there is uncertainty in contractual interpretation, terms may be inferred based on the presumed intention of the parties and where necessary to give business efficacy to the contract (Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711 (S.C.C.); M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619 (S.C.C.)). A contractual term is implied as a matter of presumed intention of the parties where the parties know or would, if asked, unhesitatingly agree to be part of the bargain (Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711 (S.C.C.)). Canada Border Services Agency, “Detentions,” https://www.cbsa-asfc.gc.ca/security-securite/detent/menu-eng.html.
[81] Canada Border Services Agency, “National Immigration Detention Framework,” May 27, 2021, https://www.cbsa-asfc.gc.ca/security-securite/detent/nidf-cndi-eng.html (accessed March 9, 2022).
[82] See Ontario agreement, “Preamble”; British Columbia agreement, “Preamble”; Quebec agreement, “Preamble”; Saskatchewan agreement, “Preamble”; New Brunswick agreement, “Preamble”; Nova Scotia agreement, “Preamble”. The Supreme Court of Canada has confirmed that where there is uncertainty in contractual interpretation, terms may be inferred based on the presumed intention of the parties and where necessary to give business efficacy to the contract (Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711 (S.C.C.); M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619 (S.C.C.)).
[83] Ontario agreement at s.4.1.2; British Columbia agreement at s.4.1; New Brunswick agreement at s.4.1(b); Nova Scotia agreement at s.4.1.
[84] Ontario agreement at s.2.17; British Columbia agreement at s. 2.15; New Brunswick agreement at s. 2.15; Nova Scotia agreement at s. 2.14.
[85] New Brunswick agreement at s.31; Nova Scotia agreement at s.3.1.
[86] Human Rights Watch, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health, https://www.hrw.org/report/2021/06/17/i-didnt-feel-human-there/immigration-detention-canada-and-its-impact-mental.
[87] Ibid.
[88] Ibid.
[89] Ibid.
[90] Ibid.
[91] Ibid.
[92] Ibid.
[93] Ibid.
[94] Ibid.
[95] Abdirahmaan Warssama v. The Minister of Citizenship and Immigration, 2015 FC 1311; Nicholas Keung, “Asylum-seeker sues federal government over ‘humiliating’ 5-year imprisonment,” Toronto Star, October 1, 2017, https://www.thestar.com/news/immigration/2017/09/28/asylum-seeker-sues-federal-government-over-humiliating-5-year-imprisonment.html (accessed May 15, 2021).
[96] Ibid.
[97] Human Rights Watch, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health, https://www.hrw.org/report/2021/06/17/i-didnt-feel-human-there/immigration-detention-canada-and-its-impact-mental.
[98] Ibid.
[99] Ontario Ministry of Solicitor General, “Final Report of the Independent Reviewer on the Ontario Ministry of the Solicitor General’s Compliance with the 2013 ‘Jahn Settlement Agreement’ and the Terms of the Consent Order of January 16, 2018 Issued by the Human Rights Tribunal of Ontario,” February 25, 2020, https://www.ontario.ca/page/independent-reviewers-final-report-jahn-settlement-agreement. While the focus of this review was generally on conditions in Ontario provincial jails, there is no indication that immigration detainees are treated any differently than criminally charged or convicted detainees with respect to solitary confinement practices.
[100] Ibid.
[101] Ontario Ministry of the Solicitor General, “2020 Data release,” November 27, 2020, https://www.mcscs.jus.gov.on.ca/english/Corrections/JahnSettlement/DatainmatesOntario/2020DataRelease.html#, downloadable dataset.
[102] Human Rights Watch analysis of Ontario Ministry of the Solicitor General Data on Inmates in Ontario, Detailed Data Download, 2020. See also Ontario Ministry of the Solicitor General, “2020 Data release,”, https://www.mcscs.jus.gov.on.ca/english/Corrections/JahnSettlement/DatainmatesOntario/2020DataRelease.html#, downloadable dataset).
[103] Ibid. A similar percentage of the solitary confinement placements between 15 and 30 days had these alerts.
[104] Ibid. Two of these detainees were held in solitary confinement between 90 and 180 days and three were held for more than 180 days.
[105] The Nelson Mandela Rules, rule 44.
[106] Ibid. Solitary confinement is known by different terms, but these terms can involve different factors. See UN General Assembly, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf, para. 26.
[107] UN General Assembly, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf, para. 76.
[108] Ibid., para. 68.
[109] UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, January 5, 2016, A/HRC/31/57, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/000/97/PDF/G1600097.pdf, para. 22.
[110] Ainslie MacLellan, “Inmates, advocates denounce ‘inhuman’ 27/7 COVID-19 lockdowns at Quebec’s Leclerc jail,” CBC News, February 11, 2022, https://www.cbc.ca/news/canada/montreal/laval-leclerc-detention-centre-covid-conditions-1.6347221 (accessed February 16, 2022); Amira Elghawaby, “People are dying behind bars. Where’s the outcry?” Toronto Star, February 8, 2022, https://www.thestar.com/opinion/contributors/2022/02/08/people-are-dying-behind-bars-wheres-the-outcry.html (accessed February 16, 2022); Vera-Lynn Kubinec, “‘A dungeon inside a prison’: lawsuit seeks compensation for Manitoba inmates held in solitary confinement,” CBC News, June 1, 2021, https://www.cbc.ca/news/canada/manitoba/solitary-confinement-lawsuit-class-action-1.6047810 (accessed November 30, 2021); Joel Dryden, “Infected Calgary inmates say they have been crammed into disgusting, inhumane solitary confinement,” CBC News, October 26, 2020, https://www.cbc.ca/news/canada/calgary/calgary-correctional-centre-covid-19-tom-engel-outbreak-1.5776407 (accessed November 30, 2021); Shawn Jeffords, “Ontario ombudsman receives record number of complaints about provincial jails,” CBC News, June 30, 2020, https://www.cbc.ca/news/canada/toronto/ont-ombudsman-1.5633228 (accessed November 30, 2021); “Class action certified alleging harm from extended solitary confinement in N.L. jails,” CTV News, October 23, 2021, https://atlantic.ctvnews.ca/class-action-certified-alleging-harm-from-extended-solitary-confinement-in-n-l-jails-1.5635626 (accessed February 16, 2022); Jacques Gallant, “‘Inhumane’ conditions at Toronto South Detention Centre amount to ‘deliberate state misconduct,’ judge says,” The Toronto Star, January 13, 2020, https://www.thestar.com/news/gta/2020/01/13/inhumane-conditions-at-toronto-south-detention-centre-amount-to-deliberate-state-misconduct-judge-says.html (accessed November 30, 2021); Greg Davis, “100 inmates at Lindsey super jail staging hunger strike over water access, food quality,” Global News, June 16, 2020, www.globalnews.ca/news/7072802/lindsay-inmates-hungver-strike/ (accessed May 16, 2021); “About 100 inmates to stage hunger strike at Lindsey jail over inhumane conditions,” CBC News, June 15, 2020, www.cbc.ca/news/canada/toronto/hunger-strike-central-east-correctional-centre-lindsay-jail-inhumane-conditions-1.5611936 (accessed May 16, 2021).
[111] Greg Davis, “100 inmates at Lindsey super jail staging hunger strike over water access, food quality,” Global News, www.globalnews.ca/news/7072802/lindsay-inmates-hungver-strike/; “About 100 inmates to stage hunger strike at Lindsey jail over inhumane conditions,” CBC News, www.cbc.ca/news/canada/toronto/hunger-strike-central-east-correctional-centre-lindsay-jail-inhumane-conditions-1.5611936.
[112] Jacques Gallant, “‘Inhumane’ conditions at Toronto South Detention Centre amount to ‘deliberate state misconduct,’ judge says,” The Toronto Star, https://www.thestar.com/news/gta/2020/01/13/inhumane-conditions-at-toronto-south-detention-centre-amount-to-deliberate-state-misconduct-judge-says.html.
[113] Human Rights Watch, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health, https://www.hrw.org/report/2021/06/17/i-didnt-feel-human-there/immigration-detention-canada-and-its-impact-mental, p.46.
[114] Ibid.
[115] Ontario agreement at s.4.2; British Columbia agreement at s.4.2; New Brunswick agreement at s. 4.2; Nova Scotia agreement at s. 4.3. Where this provision is not specifically provided–as in the agreements of Quebec and Saskatchewan, as well as in informal arrangements between the federal government and the provinces of Manitoba, Newfoundland, and Prince Edward Island–this provision ought to be implied based on the presumed intention of the parties (as evidenced by the agreements of Ontario New Brunswick, Nova Scotia, and British Columbia). Furthermore, CBSA’s policy indicates that the agency “works closely with its provincial partners to minimize comingling of immigration detainees with those being held for criminal purposes.” See Canada Border Services Agency, “Detentions,” https://www.cbsa-asfc.gc.ca/security-securite/detent/menu-eng.html.
[116] Ontario agreement at s.4.2 (“maximum extent possible”); New Brunswick agreement at s. 4.2 (“to the extent possible and practical”); Nova Scotia agreement at s. 4.3 (“to the extent possible and practical”).
[117] British Columbia agreement at s.4.2.
[118] The Nelson Mandela Rules, rule 11(c).
[119] Human Rights Watch, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health, https://www.hrw.org/report/2021/06/17/i-didnt-feel-human-there/immigration-detention-canada-and-its-impact-mental, p. 11.
