Detention in Canada

Detention in Canada

By Stephanie J. Silverman
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All detention practices are specified in their individual country contexts although rarely defined as such. In the United Kingdom, for example, detention is seen as the “most usually appropriate” immigration enforcement mechanism

  • to effect removal;
  • initially to establish a person’s identity or basis of claim; or
  • where there is reason to believe that the person will fail to comply with any conditions
  • attached to the grant of temporary admission or release.”

To be a lawful practice in that country, detention “must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy.”7 Likewise, in Australia, the regular detention policy is not defined as such but is understood in terms of its aims. The primary aim of the policy is to ensure the successful administration of new arrivals (“people who arrive without lawful authority do not enter the Australian community until their identity and status have been properly assessed and they have been granted a visa”) and removal (“people who do not have authority to be in Australia are available for removal from Australia”) of “unlawful” non-citizens who do not have a valid residence permit or visa.8

In lieu of offering a formal definition of detention for Canadian practices, the Canadian Border Services Agency (CBSA) explains why and where people may be detained. In its Fact Sheet on Arrests and Detentions, we learn that

As part of their enforcement of the Immigration and Refugee Protection Act (IRPA), officers of the Canada Border Services Agency (CBSA) are authorized to arrest permanent residents and foreign nationals who have, or who may have, breached the Act. People can be detained if they pose a danger to the public, if their identity is in question or if there is reason to believe that they will not appear for immigration proceedings.

A person who is detained may be held in a correctional facility or an immigration detention centre. Detentions are reviewed by a CBSA officer or by a member of the Immigration Division of the Immigration and Refugee Board of Canada (IRB) who may release the person outright or under certain conditions. The IRB is an independent tribunal and its members are trained in immigration law.

The CBSA can also detain people against whom a security certificate has been issued.9

This definition is useful for understanding the reasons provided by Government to the people who become subject to detention in Canada. It is also helpful as a rudimentary introduction to the step-by-step processes involved in detention’s enactment. However, it misses the breadth and scope of detention.

The legislative grounds for detention in Canada can be found in sections 54 to 61 of the Immigration and Refugee Protection Act (IRPA), and in sections 244 to 250 of the Immigration Refugee and Protection Regulations (IRPR). The Immigration Refugee and Protection Regulations as well as the Citizenship and Immigration Canada Policy Manual on Detention provide directions on how detention is to be enacted. A member of the Immigration Division (ID) of the Immigration and Refugee Board (IRB) reviews detention after 48 hours, then within the next 7 days, and then every subsequent period of 30 days. Currently, only a small proportion of refugee claimants are detained on arrival. Like the US and Australia, Canada has no official maximum time limits on how long a non-citizen can be detained for immigration-related reasons. People who are released from detention may be subject to “any conditions” that the ID “considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.”10

While the IRB oversees detention reviews, the Canadian Border Services Agency (CBSA) is the detaining authority that is responsible for ports of entry and enforcing IRPA. In other words, the Canadian government has vested the CBSA with sovereign authority to exercise control or administer immigration, including discretionary powers of detention. So-called low-risk detainees are held in immigration holding centres (IHCs) and high-risk detainees – people with criminal backgrounds, potential for flight risk, and/or mental health of behavioural problems – are held in the non-CBSA operated provincial correctional or remand facilities. There are three IHCs in Canada: Toronto IHC with a capacity of 125 beds; Laval (Quebec) IHC with a capacity of 150 beds; and BC IHC at the Vancouver International Airport with a capacity of 24 beds (although this third facility only detains people for up to 72 hours). Private security companies provide the guards that staff the IHCs.

As a rule, children and youth (minors under 18 years of age) should not be held in detention; if they are detained, it should be retained exclusively as a measure of last resort. Section 60 of IRPA explains that “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.”11 In those exceptional cases where they are detained, international law requires governments to hold children in facilities and conditions appropriate to their age.12 Nonetheless, children are detained even when they are not security risks or dangers to the public; in 2008, 77 children on average were detained each month with the monthly average dropping to 31 in the first 6 months of 2009.13 Further, since some children may be detained as “guests” or “accompanying their detained parent” and they are not included in the official statistical record, the true number of detained children is higher.

The Canadian detention system is also financially costly. In FY 2008-09, detention and removal programs cost approximately $92 million of which detention costs amounted to $45.7 million, or an average of $3,185 per detained case.14 In FY 2006-07, CBSA payments for provincial facilities amounted to $20,188,444. In FY 2008-09, the range for non-CBSA provincial facilities was $120 to $207 per person per day.15

There are two key Supreme Court of Canada cases that deal with detention. In Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, it was determined that Canadian Charter of Rights and Freedoms rights guarantee non-citizens most of the same rights as citizens, and governmental officers’ discretionary powers must be consistent with the Canadian Charter of Rights and Freedoms. In Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, the Supreme Court considered the case of Adil Charkaoui, a Moroccan-born permanent resident who was named in a security certificate jointly issued on 9 May 2003 by the Minister of Citizenship and Immigration and the Solicitor General. A security certificate signed by the Minister of Citizenship and Immigration and the Solicitor General was issued for his arrest on 16 May and executed on 21 May. The certificate described Charkaoui as inadmissible on security grounds on the basis that there were reasonable grounds to believe he was a member of a terrorist organization and that he has engaged or will engage in terrorist activities.16 He was detained for twenty-one months until his conditional release was ordered in February 2005. The Charkaoui case revolved around the constitutionality of security certificate proceedings, the disclosure of evidence, and allowable forms of conditional release.17

Changes to the Canadian Detention System

The history of asylum seekers using boats to reach Canada’s shores is long. In 1914, the government turned away more than 300 Indian nationals on board the Komagata Maru; when the ship eventually arrived back in Calcutta, 20 people were killed in a riot and others were detained and tortured.18 In late May 1939, over 900 Jewish refugees were sent back to Europe after their ship, the Hamburg-America ocean liner St. Louis, was refused landing in Cuba, the US, and, eventually, Canada. Many of the refugees were arrested upon landing and 254 were later killed in the Nazi concentration camps.19 In the twentieth century, eight boats have arrived collectively ferrying about 1500 people: in 1986, 152 Tamils landed off the east coast of Newfoundland; in 1987, 174 Sikhs landed in Nova Scotia, prompting an emergency summer recall of Parliament; 4 boats of just under 600 Chinese migrants came to British Columbia’s coast in 1999; and the 2 most recent cases – MV Ocean Lady and MV Sun Sea – that brought 575 Tamils in B.C. in October 2009 and August 2010, respectively. As Alex Neve and Tiisetso Russell point out, these numbers are relatively miniscule in the history of new refugee arrivals to Canada:

So there we have it: eight boats, carrying approximately 1500 people over a span of twenty-five years. … Taking a ballpark estimate of 25,000 refugee arrivals per year in Canada over those twenty-five years, the 1500 who have arrived on these eight ships reflect just over 1/5 of 1%, .2% of the total. It is as many as would otherwise arrive over the course of just three weeks in any one of those twenty-five years.20

Partially in response to the recent landings of the MV Ocean Lady and MV Sun Sea, and partially for other reasons to be discussed in the “Gaps in the Literature” section below, the Canadian Government has implemented a discretionary policy of mandatory detention. This reform was included under C-31, the Protecting Canada’s Immigration System Act (as an amendment to, and new provision for, IRPA). The Act was passed in June and received Royal Assent for implementation in December 2012.

How does this new policy work? The Minister of Public Safety can designate two or more people as a group of “irregular arrivals” on the basis that they cannot be examined in a timely manner or on suspicions of “smuggling”. They can then be subject to mandatory detention for one year. Such groups are given a two-week review of refugee admissibility. If the “Designated Foreign Nationals” (DFN) classification goes through, the group is liable for a one-year period of mandatory, unreviewable detention for all persons aged 16 or older.21 Even if the Immigration and Refugee Board (IRB) finds that they are persons in need of protection, there is a bar on DFNs applying for permanent residence for five years.22 DFNs face the following consequences as a result of their designation during this five-year period: prohibition from family reunification; requirements to report regularly to immigration authorities for questioning and to produce unspecified documents on demand; and a ban from travelling outside Canada for any reason.

As of June 2013, the Minister of Public Safety has used the DFN designation once, on 4 December 2012, for five groups of claimants from Romania numbering about 30 people in total.23 They are alleged to have typically spent a few days in Mexico24 before crossing the U.S. border without documents and then driving north into Quebec. The Government alleged at the time that all were “smuggled” through the US-Canada border between Derby Line, Vermont, and Stanstead, Quebec. The Minister of Citizenship, Immigration and Multiculturalism, Jason Kenney, characterized the arrestees as “[people] from Europe that go to Mexico, that go through the U.S. to come to Canada and then go to Toronto where many of them got involved in criminal activity”.25

Former Citizenship and Immigration Canada Minister Kenney justifies the mandatory detention provisions as a means to deter people from taking dangerous sea journeys to Canada:

Every year, thousands of people die in smuggling operations around the world. We need to send a message to the potential customers of smuggling syndicates: ‘Don’t pay a smuggler to come to Canada — you’re putting your life in jeopardy. Try to come a different way, a legal way.’26

Minister Kenney held the view that any non-citizen “can leave detention any time they want — they just have to leave Canada.”27 These justifications are questionable because there is (i) little evidence that detention deters people from irregularly or migrating;28 and (ii) if the group of irregular arrivals includes someone who is stateless or in any other way undocumented or undeportable, then he or she faces virtually insurmountable difficulties in leaving Canada.

Hints at who will become DFNs can be found in the Designated Countries of Origin (DCO) policy, one of the reforms tabled in C-31 alongside the mandatory detention provision. A DCO is a country declared as “safe” because it is assumed to provide adequate protection to its citizens and therefore not likely to produce refugees. The Minister of Citizenship, Immigration and Multiculturalism designates countries as DCOs on the basis of quantitative factors (a rejection rate of at least 75%, (including withdrawn and abandoned), or a withdrawn and abandoned rate of at least 60%), or on the basis of the Minister’s opinion that the country has the hallmarks of a refugee-protecting country, including an independent judiciary, democratic rights, etc.29 The original December 2012 list of 25 DCOs has since been expanded to 37.30

Hearings on refugee claims of DCO nationals are expected to be held within 30 – 45 days after referral of the claim to the IRB as opposed to the 60-day timeframe for other refugee claimants. Unlike regularly streamed claimants, failed DCO claimants will neither have access to the Refugee Appeal Division nor be permitted to apply for a work permit upon arrival in Canada.31

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7 UK Border Agency, T. (2009, 26 January). “Detention and Removals – Chapters 46 – 60.” Enforcement Instructions and Guidance. Retrieved August, 2013, from http://www.ind.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/chapter55.pdf?view=Binary: Chapter 55.
8 Australian Government – Department of Immigration and Citizenship (2013). “Background to Immigration Detention – About Immigration Detention.” Managing Australia’s Borders. Retrieved 09 August, 2013, from http://www.immi.gov.au/managing-australias-borders/detention/about/background.htm
9 Canada Border Services Agency (2009, July). “Arrests and detentions.” CBSA Fact Sheets. Retrieved 3 August, 2010, from http://cbsa-asfc.gc.ca/media/facts-faits/007-eng.html.
10 Section 58 (3), Immigration and Refugee Protection Act 2002.
11 Canadian Council for Refugees (2009, November). “Detention and Best Interests of the Child.” Retrieved 10 June, 2013, from http://ccrweb.ca/documents/detentionchildren.pdf: 2.
12 Nakache, D. (2012). The Human and Financial Cost of Detention of Asylum-Seekers in Canada. Geneva, The United Nations High Commissioner for Refugees: 104; The Office of the Auditor General of Canada: 24.
13 Canadian Council for Refugees (2009, November). “Detention and Best Interests of the Child.” Retrieved 10 June, 2013, from http://ccrweb.ca/documents/detentionchildren.pdf: 8, 7.
14 Nakache, D. (2012). The Human and Financial Cost of Detention of Asylum-Seekers in Canada. Geneva, The United Nations High Commissioner for Refugees: 38.
15 Nakache, D. (2012). The Human and Financial Cost of Detention of Asylum-Seekers in Canada. Geneva, The United Nations High Commissioner for Refugees: 39, 38.
16 Marianne Davies (2006). “Unequal Protection under the Law: Re Charkaoui and the Security Certification Process under the Immigration and Refugee Protection Act.” Saskatchewan Law Review 69 (02): 375 – 399: 376.
17 Graham Hudson (2010). “The Administration of Justice? Certificate Proceddings, Charkaoui II, and the Value of Disclosure.” Alberta Law Review 48(01): 1 – 20: 5 – 6. See, also, Thwaites, R. (2009). “Discriminating Against Non-Citizens Under the Charter: Charkaoui and Section 15.” Queens Law Journal 34: 669 – 718.
18 Tourism Culture and Heritage Nova Scotia (2009, 05 November). “Maritime Museum Exhibit on Tragic Voyage of MS St. Louis.” News Releases. Retrieved 10 July, 2013, from http://novascotia.ca/news/release/?id=20091105005.
19 While the Canadian government issued an informal apology in 2008 for what happened with the Komagata Maru passengers, it has yet to issue an official apology for rejecting the SS St. Louis although a memorial for the Jewish refugees was unveiled on January 20, 2011 in Halifax at Pier 21 (Leddy, M. J. (2011, 28 September). “Years from now, Canadians will apologize.” Embassy Magazine. Retrieved 28 September, 2011, from http://www.embassymag.ca/page/view/leddy-09-28-2011)
20 Alex Neve and Tiisetso Russell (2011). “Hysteria and Discrimination: Canada’s Harsh Response to Refugees and Migrants Who Arrive by Sea.” University of New Brunswick Law Journal 62(01): 37 – 46: 40.
21 The government has a discretionary power to decide whether to detain children under 16 or to forcibly separate them from accompanying parents for one year
22 Canadian Council for Refugees (2013, 21 February). “Overview of C-31 refugee determination process.” Retrieved 05 July, 2013, from http://ccrweb.ca/en/refugee-reform.
23 Canadian Council for Refugees (2013, 21 February). “Overview of C-31 refugee determination process.” Retrieved 05 July, 2013, from http://ccrweb.ca/en/refugee-reform.
24 Since Romanians do not need visas to enter Mexico, it is a route into Canada or the U.S. where pre-entry visas are required. US immigration officials “have documented a spike in the number of Romanians crossing the Mexico-U.S. border illegally [and] have said most are Roma.” (Wilson Ring and Rob Gillies (2013, 05 December). “Canada targets Romanians smuggling Gypsies.” Associated Press. Retrieved 10 July, 2013, from http://news.yahoo.com/canada-targets-romanians-smuggling-gypsies-013031013.html.)
25 Wilson Ring and Rob Gillies (2013, 05 December). “Canada targets Romanians smuggling Gypsies.” Associated Press. Retrieved 10 July, 2013, from http://news.yahoo.com/canada-targets-romanians-smuggling-gypsies-013031013.html.
26 Ball, D. P. (2012, 27 June). “Immigration Minister Jason Kenney besieged by critics during BC visit.” The Tyee. Retrieved 6 August, 2012, from http://thetyee.ca/Blogs/TheHook/Federal-Politics/2012/06/27/jason-kenney-critics-visit/.
27 Ball, D. P. (2012, 27 June). “Immigration Minister Jason Kenney besieged by critics during BC visit.” The Tyee. Retrieved 6 August, 2012, from http://thetyee.ca/Blogs/TheHook/Federal-Politics/2012/06/27/jason-kenney-critics-visit/.
28 Edwards, A. (2011, April). “Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants.” PPLA/2011/01.Rev.1. Retrieved 10 July, 2011, from http://www.unhcr.org/refworld/docid/4dc935fd2.html: iii.
29 Canadian Council for Refugees (2013, 21 February). “Overview of C-31 refugee determination process.” Retrieved 05 July, 2013, from http://ccrweb.ca/en/refugee-reform.
30 Arbel, E., J. Beaudoin, and S.J. Silverman (2012, 21 December). “Why Canada’s “safe” country scheme offers no refuge for Roma refugees.” The Huffington Post Canada. Retrieved 30 December, 2012, from http://www.huffingtonpost.ca/stephanie-j-silverman/roma-refugees-canada-immigration_b_2346160.html; Citizenship and Immigration Canada (2013, 30 May). “Designated countries of origin.” Government of Canada publications. Retrieved 10 June, 2013, from http://www.cic.gc.ca/english/refugees/reform-safe.asp.
31 Citizenship and Immigration Canada (2013, 30 May). “Designated countries of origin.” Government of Canada publications. Retrieved 10 June, 2013, from http://www.cic.gc.ca/english/refugees/reform-safe.asp.