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Table of contents
- Part I – Background on Immigration Detention
- Part II – The New National Immigration Detention Framework
- Alternatives to Detention
- Review of National Detention Policies and Standards
- Annex A - List of Stakeholders who were engaged or provided input in writing
On August 15, 2016, the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, announced Canada's new National Immigration Detention Framework. As part of this announcement, the Minister outlined an investment of up to $138 million to transform the immigration detention system in Canada. The new National Immigration Detention Framework (herein after referred to as the "Framework") will enhance alternatives to detention (ATDs) and include key investments in federal immigration detention infrastructure to address failing and inadequate immigration holding centres (IHCs) in Laval, Quebec and Vancouver, British Columbia and Toronto, Ontario.
In order to ensure that detention is truly a last resort, the Government of Canada is expanding the availability of ATDs, including developing partnerships to deliver a community-based supervision program for released detainees. By implementing the Framework, the Canada Border Services Agency (CBSA) is taking concrete steps to exercise its responsibility for detentions to the highest possible standards, with mental health and well-being of detainees, as well as the safety and security of Canadians as the primary considerations. These key investments will significantly improve detention conditions in CBSA's IHCs, reduce the reliance on provincial facilities and better align with international and domestic standards for immigration detention.
Broad consultations are critical to the implementation of the Framework and to ensuring program transparency. Increasing public and stakeholder interest surrounding immigration detention led the CBSA to organize roundtables with key stakeholders from across Canada (see Annex A) between August and December 2016. Their feedback provided the CBSA with meaningful input and recommendations to refine program and facility design, and implement new national standards and policies. The salient points of those consultations and of what stakeholders had to say are captured in this document.
It is in the same spirit that we are now broadening engagement with Canadians to seek further views on ATDs, detention policies aimed at increasing medical and mental health services and support for individuals within the IHCs as well as reducing the number of minors in detention and long-term detention to the greatest extent possible, and infrastructure design. Furthermore, with transparency as a pillar of the Framework, we are committed to ensuring key stakeholders and Canadians have improved access to information on the progress of the Framework, including the publication of immigration detention statistics.
We look forward to building on the content of this Summary Report by receiving your input. We continue to welcome a dialogue with stakeholders and other partners on how to improve and minimize immigration detention while protecting the safety and security of Canadians.
Part I – Background on Immigration Detention
The CBSA ensures Canada's security and prosperity by facilitating and overseeing international travel and trade across Canada's border.
The CBSA supports national security and public safety priorities and secures the border by screening people and goods. More specifically, foreign nationals, permanent residents and refugee claimants are screened to prevent people from entering or staying in Canada illegally. In carrying out this mandate, officers may arrest, detain and remove foreign nationals or permanent residents who are not permitted in Canada. Removing individuals who do not have the right to enter or stay in Canada is essential to maintaining the integrity of Canada's immigration program and to ensuring fairness for those who come to this country lawfully.
More specifically, CBSA officers are authorized to detain a foreign national or permanent resident at a port of entry if:
- It is necessary to complete an examination; or
- There are reasons to believe that the person is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality.
CBSA officers can also detain a foreign national if:
- they have reasonable grounds to believe the person is
- unlikely to appear for an immigration proceeding (e.g., examination, hearing, removal);
- a danger to the public;
- unable to satisfy the officer of their identity.
- they are designated as part of an irregular arrival by the Minister of Public Safety.
Immigration detention is not punitive, but exercised under the law (Immigration and Refugee Protection Act or IRPA) under clear parameters to ensure the integrity of the immigration system and to ensure public safety. Detention is a last resort and ATDs must always be considered first.
Generally, immigration detention is avoided for children or other vulnerable groups such as pregnant women, elderly persons, persons who are ill or disabled or persons with behavioural or mental health issues. However, where safety or security is an issue, immigration detention is considered for the shortest time possible and primarily focused on supporting the removal of those individuals.
Please consult the CBSA website for more information about detentions including detention reviews, release from detention, key detention principles, facilities used for immigration detention and special considerations for vulnerable populations.
Immigration Detention in Numbers
On an average day as many as 450-500 individuals are in detention across Canada under IRPA. The average length of detention is 23 days. In 2015-2016, the CBSA detained a total of 6,596 individuals, approximately 0.02% of the near 32 million non-citizens who entered Canada. Canada's rate of immigration detention is significantly lower than comparable countries, such as Australia and the United Kingdom (over 30,000 persons detained every year) and the United States (over 440,000 persons every year). Year over year, the number of detentions in Canada has gone down despite the increase in number of non-citizens entering Canada. Over the last five years, the number of detentions in Canada has dropped by 27%. In 2015-2016, the overall average length of detention fell slightly (nearly 6%) over the previous year, when the average length of detention peaked (24.5 days).
|Fiscal Year||# of entries by foreign nationals to Canada||# of persons detained||Detainees as a % of entries by foreign nationals to Canada||Average length of detention (days)||Detained in a CBSA facility (IHC)||Regional Breakdown of Total Detentions*|
|Atlantic Provinces||Prairies Provinces||B.C. & Yukon||Quebec||Ontario|
In 2015-2016, 201 minors were detained or housed with parents or guardians in an IHC. Over the last two fiscal years (2014-2015 and 2015-2016), there has been a 14% decrease in the number of minors held in an IHC for immigration-related reasons. So far this fiscal year (2016-2017), 121 minors have been held in an IHC. If the current trend continues to fiscal year-end a further decrease in the number of minors held in an IHC is expected, with an estimated decrease of 22% over 2015-2016. The average length of time a minor spends in an IHC has also seen a decrease. Based on the numbers for the first nine months of this fiscal year, there should be a further decrease by fiscal year end.
|Fiscal Year||Minors accompanied by parent/guardian*||Unaccompanied minors||Average length of time in a facility (days)||Total # minors in a facility|
|Apr 1/2016 – Dec 31/2016||114||7||9.4||121|
Part II – The New National Immigration Detention Framework
Increasing public interest and stakeholder concerns over the past few years surrounding detention issues led to a program review in 2014-2015. Stakeholder concerns include the co-mingling of immigration detainees with criminals as a result of the over-reliance on provincial correctional facilities, the care and monitoring of individuals with mental health issues, the detention of children, the lack of nationally-available ATDs and the inadequate conditions at some IHCs.
The Framework's goal is to create a better and fairer immigration detention system whereby persons are treated with compassion and dignity while upholding public safety. By implementing the Framework, the CBSA is taking determined action to address long-standing challenges in immigration detention related to infrastructure, policy, operational procedures and detainee health and welfare. The CBSA commits to exercising its responsibility for detentions to the highest possible standards, with the physical and mental health and well-being of detainees as well as the safety and security of Canadians as primary considerations.
The New National Immigration Detention Framework was created recognizing the need to:
- Establish adequate, cost-effective and efficient IHCs for immigration detention along with better programming;
- Reduce reliance on provincial correctional facilities for immigration detention;
- Provide consistent detention standards and level of care across the country;
- Expand current ATDs to establish a comprehensive, nationally available ATD program;
- Increase medical and mental health care for individuals in CBSA IHCs;
- Reduce to the greatest extent possible the number of minors, vulnerable persons and long-term detainees in detention; and,
- Enhance program transparency and strengthen engagement with stakeholders and Canadians.
The New National Immigration Detention Framework initiatives include:
- Infrastructure replacement
- Building a new IHC in Laval, Quebec;
- Refitting an existing federal government building in Surrey, British Columbia to replace the IHC at the Vancouver International Airport;
- Through the management of a new service contract, upgrade the IHC in Toronto to align with the future IHCs in Laval and Surrey that will have the ability to hold higher risk detainees.
- Expanding the availability of ATDs nationally, including the ability to report by phone through voice recognition technology to minimize the need to report to the CBSA in person, maximize freedom of movement, facilitate compliance and optimize efficiencies.
- Developing partnerships for the delivery of the immigration detention program
- Arrangements with community-based organizations to deliver the expanded ATD program;
- Signing provincial agreements for the detention of the highest risk individuals to standardize and improve treatment of those detainees that will continue to be held in provincial facilities.
- Developing and implementing risk-based national policies and detention standards with an immediate focus on minors, long-term detention and mental health to improve detainee well-being.
- Expanding medical and mental health support in the IHCs.
- Ensuring greater openness, accountability and transparency in the delivery of the immigration detention program.
Alternatives to Detention
ATDs are a means by which detention can be avoided or release from detention can be allowed by using risk-appropriate tools that provide the individual with community support, while ensuring the CBSA has tools to monitor, locate and apprehend the individual if they fail to comply as directed.
Although CBSA's existing guidelines clearly indicate that detention is to be used as a last resort and officers must consider ATDs before ordering a person detained, there are currently significant gaps in the availability of ATDs across the country which results in a higher population being held in detention.
Currently, the only tools that are available nationally are the release of the individual to a bondsperson on a performance bond and/or a cash deposit, and the imposition of other conditions, such as regular reporting to the CBSA. The Greater Toronto Area (GTA) has a wider array of available ATDs: an effective community case management program via a contracted third party (Toronto Bail Program) facilitates the release of eligible detainees; and, a compliance management program whereby individuals can report weekly by calling the CBSA (voice reporting).
To build upon this foundation, the CBSA is working to implement a national ATD program to improve national consistency through the expansion of community programming and voice reporting.
Community programming could be considered for eligible foreign nationals or permanent residents who are adequately supported by family/kin to ensure in-person reporting and/or a cash and/or performance bond. Alternatively, the person could be entrusted to a third-party community case management partner that would act as a guardian and assist clients to ensure their compliance with any and all terms and conditions, and provide them with social support that will enable them to comply with immigration requirements.
In addition to community programming, the CBSA is working to implement a national voice reporting program to monitor, track, locate and apprehend if necessary individuals who are released within the community. Electronic supervision tools, such as voice reporting allows for voice registration and recognition and as required, based on level of risk, the ability to track the person's location should there be a failure to comply with reporting conditions or an attempt to abscond.
What stakeholders said about ATDs
- Alternatives to detention are welcomed, and, in accordance with the law, should be considered 100% of the time and consistently applied across the country, beginning at the port of entry and regularly throughout the period of detention if detention is necessary.
- Amend laws, and regulations to make clear that in all decisions related to the deprivation of liberty of migrants, the government must use the least restrictive measures consistent with management of a non-criminal population, and the protection of the public, staff members, and other detainees.
- Introduce regulations or policy guidelines detailing when and under what circumstances ATDs are to be used (by the CBSA and the Immigration and Refugee Board (IRB) and how they are to be implemented to ensure consistent use.
- Stricter conditions/alternatives should not be imposed on persons simply because new options for release exist. Requirements should be commensurate with the risk posed by individuals (e.g. reduced requirements if individual is cooperating and indicating agreement to be removed at the end of due process).
- Efforts should be made for an earlier release (i.e., systematically trying to find a guarantor among family members or the community). CBSA officers should be able to release detainees between the 48-hour and 7-day IRB detention review hearing.
- A community supervision and housing model has proven to be a very effective case management tool in other countries. People are more compliant with immigration proceedings if there is active case management (i.e., support/assistance, facilitation and reassurance from within the community from social workers, non-government organizations [NGOs], community groups).
- ATDs design should be reflective of the particular needs of the immigration detention population, recognizing its inherent vulnerability, including innovative programs for individuals with mental health issues.
- Partnerships should be forged and funding provided to NGOs to work with detainees transitioning into the community from detention. For example, an open custody concept whereby a person is free during the day and returns to a designated facility at night could be considered.
- Recognizing that there is an overall lack of immediate short-term housing in many large urban centres and the need to build in enough time to coordinate housing for released detainees, good communication will be critical between the CBSA, NGOs and client.
- Immigration circumstances are unique and therefore ATDs should not be modeled on criminal release programs.
- While CBSA strives to maintain national consistency, regional differences should also be taken into consideration in the ATD program design.
- Electronic monitoring is supported for high risk individuals where other tools may be inadequate and should not be self-funded.
- Asylum seekers should not systematically be detained when their identities cannot be ascertained. ATDs, particularly community supervision programs, should allow for maintaining an arm's length from CBSA to ensure the third party's ability to establish a relationship of trust with the client.
- CBSA officers should receive training on application of ATDs to ensure consistent use.
The most significant challenges facing the detention program and the common theme reflected in stakeholder criticism is the inadequacies of the existing infrastructure. The poor physical state and design and space limitations of the existing CBSA IHCs is the direct root cause of certain program deficiencies and, at the same time, inhibits the ability to build and deliver program improvements. Approximately two-thirds of the total number of days spent in immigration detention in Canada is in provincial jails, and one-third in IHCs due to the lack of adequate CBSA-operated detention capacity.
In Ontario, the current IHC in Toronto is operated by a private sector service-provider but is not designed or serviced to hold individuals who are considered to be a modestly higher risk (e.g.., those with a non-violent criminal history).
In Quebec, the facility in Laval was built in the mid-1950s and adapted for use as a CBSA IHC in 1996. Given its current state of disrepair and inadequate design, it does not comply with international norms for immigration detention. Due to limitations with space in provincial correctional facilities in Quebec, all detainees, except the highest public safety risk, are managed in the IHC. This site does not have on-site access to IRB hearings.
In British Columbia, the Vancouver IHC, a short-term facility, is located at the Vancouver International Airport. The facility was reconstructed and occupied by the CBSA in 1999. People are held at this IHC for a maximum of 48 hours. Given its current state and design, it does not comply with international norms for immigration detention. All detainees in the region, including low and medium-risk, held beyond 48 hours are detained in a provincial facility due to the IHCs severe limitations. In addition, because people are held for a maximum of 48 hours, there is no on-site access to IRB hearings and no access to educational programming, or health care providers on site.
Moving forward, the Government of Canada will significantly improve infrastructure: a new Crown-built IHC in Quebec (Greater Montréal Area), a refurbished Crown-owned IHC in British Columbia (Surrey) and an enhanced IHC in Toronto will see an important reduction in the use of provincial correctional facilities, improved national standards and improved detainee well-being. The facilities will be designed to include video conferencing facilities for IRB hearings and provide better programming and access to services.
Design has been undertaken to achieve the following outcomes, to the extent possible, in order to enhance detainee well-being within an IHC nationally:
- Efficient but effective minimization of guard presence
- Safe, secure, humane accommodations, with flexible living units that enable effective management of detainees (i.e.: those with special needs)
- Ready access to fresh air and outdoor space
- Welcoming access to family, NGOs and visitors with contact visit space for families and representatives
- Easily accessible by public transit
- Non-institutional in design
- Control and security elements that balance low visibility with high performance to the greatest extent possible
- Common, multi-purpose space with access to in-centre support services, including:
- Interpreter and legal support services
- Nursing and medical care as well as psychological and psychiatric counselling services
- Chaplaincy/spiritual support
- On-site immigrant support services such as counselling and immigrant services (dedicated space for NGO partners)
- A resource centre, educational and recreational spaces
- Dedicated, purpose-designed space to conduct on-site IRB hearings, including video-conference capacity to minimize detainee transport
Ultimately these key investments will significantly improve conditions at CBSA IHCs, to better align with national and international standards for immigration detention.
What stakeholders said about infrastructure
- Creating new IHCs or improving infrastructure should not result in increased use of immigration detention.
- IHCs should be located close to (or easily and efficiently accessible by public transit) where social services are available to facilitate access.
- Costs and impacts (i.e., travel time, reduced time to prepare cases) of IHC location on partners should be assessed including potential loss of time spent with detainee given travel requirements.
- Infrastructure improvements should be made with an eye to ensuring the IHC is not modeled after penal institutions (e.g. barbed wire on perimeter).
- IHCs should have space designated for vulnerable people and be separate from those with past history of criminality.
- The Minister of Public Safety and Emergency Preparedness should have the ultimate authority over the conditions of confinement for treatment, and health and safety of detainees, regardless of where they are detained.
- Separate low-risk and high-risk detainees.
- Ensure NGO representatives and designated representatives have access to a closed room to meet with detainees and to the inside (secure zone) of IHCs, rather than only designated visitor spaces.
- Visitor space should allow for contact visits.
- Use technology to allow the free flow of detainees through the facilities without the need for guards.
- Take privacy into consideration when designing the layout, especially the washrooms.
- Allow unrestricted access to outdoor recreational area.
Videoconferencing facilities (for IRB detention reviews and other immigration enforcement proceedings)
- All parties (IRB member, detainee and lawyer and CBSA hearings officer) should be at the same location, otherwise natural justice and procedural fairness may be at risk. Having IRB members and CBSA officers in different locations may present challenges in terms of adequately assessing the credibility of detainees and their witnesses and recognizing/considering mental health issues.
- Exchange of documents during a hearing will be complicated as will interpretation if interpreter is not in same location as detainee.
- Consider having IRB member go to the IHC or have offices there instead.
- Videoconferences may present confidentiality issues for closed hearings. Internet security may not be fully guaranteed.
- Holding hearings in IRB facilities better reflects the IRB's independence. The fact videoconferencing is already used in Ottawa, Prairies and, exceptionally, Montréal, does not make it a sound practice.
- Videoconferencing can present technical challenges and may lead to delays that impact legislated requirements, such as reviews within the first 48 hours.
- Co-mingling of criminal detainees with immigration detainees in correctional facilities should be avoided completely for reasons related to exposure (i.e., drugs, gangs), safety and mental health.
- Amend existing laws to specify the factors to be considered when deciding to transfer a detainee to a provincial jail, establish a clear policy and transparent processes for transfers in and out of IHCs and provincial facilities for any reason (i.e., uncooperative behaviour, mental health), and include opportunities for detainees to challenge decisions.
- A meeting room must be made available to NGOs and partners at provincial facilities.
- CBSA detention standards should be enforced at provincial facilities, such as ensuring immigration detainees have the same level of access to services, programs and information (i.e., medical and mental health care, interpreters, NGOs, designated representatives, family visits, etc.) in provincial facilities as those held in IHCs or in those very facilities.
- Ensure provincial facilities are informed and trained on the particularities of individuals detained for immigration purposes (administrative not criminal).
- Continue to explore other ways to reduce reliance on provincial facilities for immigration detention.
Review of National Detention Policies and Standards
The new National Immigration Detention Framework includes an ongoing review of detention policies and standards to ensure a better, fairer immigration detention system. Policies and standards that adhere to national and international obligations for the treatment of detained individuals and which can be evenly applied across the country are critical to ensuring the integrity of Canada's immigration detention practices.
The CBSA is currently conducting a broad review of detention policies and standards, focussing largely on four key areas: minors and detention and preservation of the family unit; mental health and medical health services within its IHCs; long-term detention; and national detention standards.
Minors and Detention
Canada only allows for the detention of minors (under 18 years) in exceptional circumstances, as a measure of last resort, for a legitimate purpose and for the shortest possible period (refer to Figure 2). Furthermore, the Government only does so after having considered the best interests of the child which include, among other factors: the availability of alternative arrangements with local child care agencies or child protection services; the anticipated length of detention; the type of detention facility envisaged and the conditions of detention; and the availability of services in the detention facility, including education, medical services, counselling and recreation.
Generally, unaccompanied minors are not detained, but released into the care of provincial child protection services. Detention of a minor, however, is not precluded where the minor is considered a security risk or a danger to the public (usually older minors) or for the shortest possible period of time to make alternative arrangements for care. Unaccompanied minors are not held with adults when detained. Currently, accompanied minors may be housed with their detained parent(s)/guardian in a CBSA IHC if appropriate facilities are available and it is determined to be in the child's best interest.
The CBSA is committed to reducing the housing and detention of minors and the separation of families to the greatest extent possible and is currently reviewing its policies and standards. Going forward, the availability of community-based ATDs is expected to drastically reduce the number of children in detention facilities and minimize separation from parents. In cases where ATDs are not suitable for parents, new detention facilities will allow for family unity and continued access to education, recreational opportunities, medical services and proper nutrition.
What stakeholders said about minors and detention
- Detention has a negative impact on minors and should be avoided. The detention of children for immigration purposes is never in their best interests. Children have the right to family unity according to the Convention on the Rights of the Child. Community-based alternatives should always be applied consistently across the country for minors and their parents/legal guardians and other immediate family members.
- Meaningful and lasting change will depend on the Immigration and Refugee Protection Act and Regulations providing strong protection of children's rights.
- The best interests of the child should be a primary consideration before any decision is made on detention when a child is affected by that decision, including decisions on detention of parents/legal guardians ― not after the parent or child is detained. Primary consideration should be reflected in the immigration law and regulations.
- Immigration law and regulations should also be amended to create a presumption in favour of release for children and families with children. If absolutely necessary, deprivation of a minor's liberty must only be used as a measure of last resort, for the shortest period of time and should not be isolated. In cases of flight risk or non-imminent removal, where unconditional release is inappropriate, alternatives to detention must be applied before resorting to detention or family separation.
- Law should include a statute of limitation on length of detention for minors where detention is necessary similar to what is captured in the law in the United Kingdom (maximum 7 days depending on the circumstances).
- Repeal the provisions in immigration legislation related to designated foreign nationals, including the provisions on mandatory detention for children over 16.
- Special considerations for minor children under immigration regulations should be expanded to include (but not be limited) such factors as:
- The child's physical, mental and emotional level of development, health, educational and other needs and the appropriate treatment or care to meet those needs;
- The impact on the child of the detention of an adult, taking into consideration the psychological and emotional consequences of detention for the adult;
- The importance of continuity in the child's care and the possible side effect on the child of disruption of that continuity;
- The child's views and wishes, if they can be reasonably ascertained;
- The risk that a child may suffer harm through being removed from or kept away from a parent or caregiver.
- Where there has been a determination by a child protection agency or qualified third party, the impact on the safety and well-being of the child if he or she is returned to or allowed to remain in the care of a parent or caregiver;
- Any civil or criminal proceedings relevant to the safety or well-being of the child.
- Amend legislation to provide for a designated representative to be assigned to a separated minor to represent them beginning with first contact with immigration authorities and throughout their immigration process, not only when they appear before the IRB. This leaves separated children without anyone to protect their interests during many critical parts of their immigration processing.
- Last resort should be defined as where the parents are held on the basis of danger to the public or where removal is to take place within 48 hours.
- Detention should never be used to protect minors (e. g., from risk of trafficking). Child-appropriate alternatives should be found, and, where necessary child protection agencies called upon.
- The CBSA should place a priority on developing a national policy for minors, complementary standard operating procedures and scenarios for various circumstances to ensure consistent treatment of minors.
- Unaccompanied minors should not be segregated (i.e., should be allowed to socialize with those in the family unit during the day).
- There needs to be a consistent national approach to address the assessment of schooling needs for children in detention. Children should be able to go to school and arrangements made to be transported there. Stimulating activities should also be made available.
- There should be separate mental health assessment tools for minors in detention.
- Child protection agencies should be consulted in all cases where parents are unable to care for or are absent. Gap in interest from child protection agencies for minors aged 16 and 17 years old needs to be addressed.
Medical and Mental Health Services
The CBSA policy stipulates that, where safety or security is not an issue, detention is to be avoided or considered only as a last resort for vulnerable individuals, including persons with mental health issues. However, if detention is necessary, it should be for the shortest time possible and primarily focused on supporting the removal of that individual. Upon arrest and detention, the CBSA officer must complete the medical form which allows detainees to self-identify any medical and/or mental health issues. All detainees admitted to the Toronto or Laval IHCs are assessed by a medical professional on staff. If mental health issues are identified, the medical staff will develop an appropriate treatment plan. In Vancouver, because the IHC does not have medical services given its short-term capacity (48 hours), if behavioural or mental health concerns are identified, the individual is referred to BC Corrections for a full assessment by a qualified medical professional.
The CBSA is committed to providing consistent and increased access to health services at its three IHCs in efforts to better address the physical and mental health needs of detainees. More support is required to provide essential access to on-site medical, nursing and psychological care in the IHCs on a 24/7 basis. Options are also being explored for the use of local mental health support services, and placement of individuals with significant mental health needs in appropriate provincial or other mental health care facilities including those released using the community programming component of ATDs.
The CBSA has already implemented suicide and self-harm prevention training for officers and IHC guards. In support of the CBSA's Strategy to Support Mental Health and the goals of prevention, intervention and support for employees and people in its care, mental health awareness online training is mandatory for all CBSA employees. Mental Health First Aid training is also mandatory for officers working in IHCs, inland enforcement and land border ports of entry. Further training (i.e., de-escalation techniques) is also being developed to help provide additional tools in crisis situations.
What stakeholders said about medical and mental health services
- Amend existing laws and regulations to create a presumption against more restrictive forms of detention for migrants, asylum-seekers, persons with mental or physical disabilities, and victims of torture. Placing migrants in a high-stress environment contributes to increased risk of mental health problems or exacerbation of existing ones.
- International best practices to address mental health needs in high-stress situations should be considered.
- Clarify that mental health and other vulnerabilities are factors that must be considered in favour of release in detention review hearings.
- People released from detention should have medical coverage between detention and regularization of status/removal from Canada.
- Better screening tools for CBSA officers are needed to identify mental health issues as early as possible in the processing of individuals in the immigration enforcement stream and should be adapted for adult and children/youth. Furthermore, a mental health assessment by a medical professional should be carried out as part of the standard intake procedure to identify needs related to medication, psychotherapy or referral for further assessment.
- Timely access to mental health assessments including psychiatric reports where necessary will be critical to facilitate release of individuals by the IRB.
- If detention is necessary, expediting release is the highest priority to prevent deterioration of mental health. Detention is experienced as a threat to personal safety, and detainees cannot recover from mental illness or trauma until they achieve an experience of security. In this vein, detention in provincial correctional facilities should be avoided.
- Reducing stressors in detention (by way of developing clear policy/procedures to limit the use of restraints, segregation, length of detention, sleep disruptions), and increasing the ability to act independently (i.e., more freedom of movement within the facility, flexible schedules, ability to prepare food/cook, contact with family/friends, activities) contribute greatly to preventing mental health problems. Appropriate treatment of mental health problems is equally important.
- Level of health and mental health services should be the same whether the person is held in a provincial facility or an IHC.
- The CBSA must ensure it has measures in place to ensure there is appropriate information sharing and continuity of care when a person is transferred to a provincial facility.
- Fund and engage partners to ensure adequate in-person health care (including mental health care), social and community care, spiritual and family support services at all places of detention.
- Physicians being hired to work at the IHCs should have specific core competencies to address/understand the population they are dealing with including those with acute mental health issues, as well as having capacity for culturally appropriate counselling.
- CBSA should ensure detainees have solid information on the immigration enforcement process in order to help reduce anxiety/stress and to support better compliance with the requirements of immigration legislation.
- Information obtained from health care providers should not be used for enforcement purposes.
- The federal government should sign agreements with provinces to secure psychiatric beds for individuals with severe/acute mental health issues who refuse care and need treatment and stabilization.
- Engagement, purpose and productivity are elements required to support positive mental wellness of detainees. Programs and resources would allow for constructive use of time and support mental health.
- Allow for contact visits between detainees and family/friends.
- A mental health care professional should be present when a detainee is given notice of deportation.
- CBSA officers and contracted security guards should receive training on identifying indicators of mental illness.
- CBSA officers should also receive training on:
- interacting with clients who are victims of torture or serious trauma;
- intervention, prevention and support for persons suffering with mental health issues; and
- detecting trauma, cultural and religious sensitivities, gender and gender identity dynamics, the particular vulnerabilities of certain migrants – especially women, youth, and lesbian, gay, bi-sexual, trans-sexual and queer (LGBTQ).
- NGOs should be considered to deliver specific training around cultural sensitivities.
- Training for IRB members tasked with guarding detainees in hearings rooms should be reviewed and improved and include:
- training on awareness of cultural differences;
- mental health problems; and
- detainee health.
Currently, the Immigration and Refugee Protection Act and Regulations do not identify time limits for detention. However, there are checks and balances that provide for regular reviews of each individual detention by the IRB, an independent administrative tribunal. Despite these provisions, some stakeholders have advocated for specific legislated detention time limits that would require the release of any individual detained beyond 90 days. Factors that contribute to the length of detention include:
- The individual is unwilling to cooperate with obtaining documents necessary to establish identity or necessary in order to be able to be removed from Canada;
- Difficulty in obtaining foreign governments' cooperation in issuing travel documents;
- The individual is a danger to the public (i.e., serious criminality); and
- ATDs are insufficient to counter the risk of release.
The CBSA is currently exploring potential policy changes together with the use of ATDs to reduce the length of detention for individuals that do not pose a danger to Canadian society and who collaborate with the government in completing their immigration processes, including up to removal from Canada as required.
What stakeholders said about long-term detention
- Amend existing laws, and regulations to create a rebuttable presumption in favour of release after a fixed number of days of detention to avoid indefinite detention, and require meaningful and regular oversight by an independent third-party and/or a court for any detention over that number. Suggestions include 90 days, six months (Europe) and 45 days (France).
- Detention is not an effective way to force cooperation; ATDs are a better option as they are also for flight risk – release with family or a guarantor can have a more positive influence.
- When a detainee is intentionally not complying to frustrate removal efforts (e.g., in obtaining/signing for travel documents), pursuit through the criminal process may be needed as opposed to the current practice of ongoing detention.
- Individuals detained as a result of an inability to prove their identity should not be detained long term.
- If a detention is continuous, the CBSA systems should capture length of detention as cumulative even when a transfer to another facility occurs (the clock should not start again once a detainee is transferred to another facility).
- Better communication is needed with detainees around the length and reasons for their initial and ongoing detention. Having a cap on detention gives more predictability.
National Detention Standards for IHCs
The National Detention Standards are the overarching guidelines for the operations of each IHC. The current standards have been in effect for more than 10 years, are outdated and have many gaps.
Inadequate infrastructure has prevented fully consistent application of the standards, leading to varying detention practices across the CBSA's three IHCs. The CBSA is developing new and expanded standards that will provide extensive direction, address identified gaps, improve national consistency and strengthen monitoring. The revised standards will be published on the CBSA website when completed.
Transparency is a pillar of the new National Immigration Detention Framework. In keeping with the Government of Canada's commitment to transparency and openness, the CBSA began publishing immigration detention statistics on its website on November 1, 2016 (refer also to Figure 1 and Figure 2). Statistics will be updated annually and the Agency is planning to publish more detailed statistics on a quarterly basis and program improvements on an ongoing basis. The Government will also continue to consult with stakeholders and provide updates on the progress of the Framework. New partnerships will be forged and existing relationships strengthened both at the national and regional levels with key partners and stakeholders, such as the Canadian Red Cross, the United Nations High Commissioner for Refugees, the Canadian Council for Refugees, mental health organizations, immigration representatives, the academic sector and provinces.
What stakeholders said about transparency
- Create an independent body/ombudsperson responsible for overseeing and investigating the CBSA, and to whom immigration detainees can file complaints and hold the government accountable (akin to the federal Office of the Correctional Investigator).
- Sign and ratify the Optional Protocol to the Convention against Torture (OPCAT) and other Cruel, Inhuman or Degrading Treatment or Punishment, which would allow for international inspection of all sites of detention.
- The CBSA's electronic systems should be improved to be able to capture data accurately, consistently and completely.
- Statistics on the detention population should be developed as soon as possible in order to support research and trend analysis and improve the CBSA's ability to demonstrate the degree to which the program and policy changes have been implemented and the impact of the changes on compliance rates and number and length of detentions.
- Statistics should be made available publicly on total number of individuals in detention, average length of detention, number of cases of long term detention, and statistics on minors in detention, specifically:
- The number of children housed in detention whether under detention order or accompanying their detained parents as 'guests'
- The reason for children's detention;
- The length of time children spend in detention;
- The ages of children who are housed in detention, whether under detention order or accompanying their detained parents as 'guests'
- The immigration status of children who are housed in detention, whether under detention order or accompanying their detained parents as 'guests'
- The number of parents who are detained without their children;
- The number of hours of schooling children receives in detention.
- CBSA detention statistics need to correlate better with IRB statistics.
- Recognizing the value of engaging and collaborating with academics CBSA should provide access to detention facilities for research and training purposes.
- Evaluations are required on overall trends in the mental and physical health of detainees.
- CBSA should be transparent with detainees and consistently ensure they are informed about what to expect while detained, i.e., the procedures to which they will be subject, the options available to them, as well as the length of time for which they will be detained.
- Information sharing between Agency and external partners/stakeholders needs to be robust as the need to communicate client risk levels is crucial.
- The CBSA should disclose in advance any evidence it intends to submit on behalf of the Minister at detention reviews.
- Lawyers should be given better accounts of their clients' statements to law enforcement officers.
- Interviews between detainees and CBSA officers should be recorded and available should there be any diverging opinions on the facts of the case. Alternatively, affidavits from and/or attendance by investigating officers at hearings would be an improvement over the current situation.
- Lawyers have no access to CBSA officer notes. A pilot project should be considered whereby information is shared electronically with the IRB and counsel.
- As suggested for minors, in all cases, once the Minister has identified a subject's designated representation needs, a designated representative should be present in all meetings/proceedings. Paragraphs 3(o) and 8(1)(m) of the Immigration Division Rules should be amended so the CBSA is legally required to have a designated representative present for all interviews and subsequent steps. By introducing such an obligation, the Minister would fill the legal void that currently exists from the time of arrest, interviews, and appearance before the IRB, which can take several days.
- Keeping the same designated representative for all procedures can help identify alternative solutions to detention. However, the person's need for a designated representative should also be reassessed during the process.
The CBSA is committed to informing and engaging Canadians on government programming and policy proposals. Input received through this important citizen engagement activity will help inform transformations of Canada's immigration detention program. Constructive input from stakeholders and Canadians on the new National Immigration Detention Framework is critical to establishing a detention program that reflects Canadian democratic values ― one that is better, fairer and provides humane and dignified treatment of individuals while upholding public safety. Expanding the availability and use of ATDs, working closely with trusted partners, improving immigration detention infrastructure and thoroughly reviewing detention policies and standards are critical to transforming Canada's immigration detention program.
The CBSA is also committed to providing opportunities for Canadians to contribute to the Framework and bring forward ideas that support a safer, more secure and humane detention program that is both sustainable and affordable and that meets Canada's national and international obligations and responsibilities.
Annex A - List of Stakeholders who were engaged or provided input in writing
- Action Réfugiés Montréal
- African-Canadian Legal Clinic
- Alberta Child and Family Services
- Alberta Corrections
- Association québécoise des avocats et avocates en droit de l'immigration
- B.C. Civil Liberties Association
- B.C. Corrections
- B.C. Ministry of Children and Family Development
- Canadian Association of Professional Immigration Consultants
- Canadian Association of Refugee Lawyers
- Canadian Bar Association
- Canadian Council for Refugees
- Canadian Immigration Lawyers Working Group
- Canadian Mental Health Association
- Canadian Red Cross Society
- CBSA - Immigration Lawyers Working Group
- Centre communautaire juridique de Montréal
- The Collaborating Centre for Prison Health and Education
- End Immigration Detention Network
- FCJ Refugee Centre
- Halifax Refugee Clinic
- Immigration and Refugee Board
- Inland Refugee Society
- Kinbrace Housing
- Manitoba Child and Family Services
- Manitoba Corrections
- Manitoba Interfaith Immigration Council
- No One is Illegal
- Ontario Bar Association
- Programme régional d'accueil et d'intégration des demandeurs d'asile (PRAIDA)
- Refugee Law Offices – Legal Aid Ontario
- Romero House
- Saskatchewan Child and Family Services
- Saskatchewan Corrections
- Saskatchewan Salvation Army
- Saskatoon Open Door Society
- Settlement Orientation Services
- Table de concertation des organismes au service des personnes réfugiées et immigrantes
- Toronto Refugee Affairs Council (TRAC)
- Université McGill, Centre d'expertise sur le bien-être et la santé des réfugiés et demandeurs d'asile
- Université McGill, Équipe de recherche et d'intervention transculturelles
- University of British Columbia Faculty of Law
- University of British Columbia Faculty of Medicine
- University of Toronto Faculty of Law
- United Nations High Commissioner for Refugees (UNHCR)
- Vancouver Airport Chaplaincy
- Vancouver Association for the Survivors of Torture
Note: Individual consultants and lawyers from across Canada were also consulted.
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