The Government of Canada believes that it is important for Canadians to be informed and engaged on Canada's immigration detention system. As part of the Government's commitment to openness and transparency as well as to create a better, fairer immigration detention system for the humane and dignified treatment of individuals while upholding public safety, the Canada Border Services Agency (CBSA) consulted with Canadians between April 7, 2017 and May 22, 2017 on key elements of the National Immigration Detention Framework announced by the Minister of Public Safety in August 2016.
As part of the consultation, Canadians — including the public, non-governmental organizations (NGOs), academics, and government and CBSA employees — were invited to share their views via Consulting with Canadians, the single-window web access to government consultations. At the launch of the consultation, a ministerial news release was issued in addition to public outreach via social media (Twitter and Facebook).Two additional reminders were broadcast on social media at various intervals during the consultation period. In addition, CBSA stakeholders were informed of the consultation's launch and encouraged to help raise awareness by broadly sharing CBSA's social media posts. Media were also made aware and provided with links at every opportunity in response to numerous detention-related queries.
The consultation consisted of a summary report — providing background information on the CBSA, Canada's immigration detention program, the National Immigration Detention Framework (herein after referred to as the "Framework") and an overview of input received from key stakeholders during stakeholder consultations between August and December 2016 — and a questionnaire for respondents to complete. Written submissions were also welcomed.
The questionnaire focused on six key areas, consistent with elements of the Framework:
- The Detention Program and Direction of the Framework;
- The availability and use of alternatives to detention (ATDs);
- The availability of health and mental health support services;
- Detention policies and standards, specifically as they relate to minors and long-term detention; and,
- Government transparency.
Respondents were asked to identify a level of agreement or disagreement with a number of statements related to each area. Of the 20 statements:
- Three pertained to the Detention Program and the direction of the Framework;
- Nine pertained to ATDs (6 of more general nature and 3 on health and mental health);
- Eight pertained to policies and standards (4 related to minors and 4 to long-term detention).
Over the six-week consultation period, many responses to the questionnaire and written submissions were received:
- 288 responses to the questionnaire of which 134 provided additional comments;
- 10 written submissions.
Over the consultation period (April and May 2017), over 5,000 visits were recorded to the consultation splash page. More than 2,300 visits were made to the summary report and 1,546 visits to the questionnaire.
The majority (54.2%) of responses were identified as being from the public, followed by CBSA employees (27.1%), academics (6.6%), government employees (5.9%), other (4.8%) and NGOs (1.4%).
For the purposes of providing an overview and analysis of each response, "Strongly Agree" and "Agree" as well as "Disagree" and "Strongly Disagree" responses were paired to calculate a percentage of respondents that agree and disagree. "Neither agree nor disagree" responses remained separate.
Summary of Results by Key Area
- Vast majority (87.5%) agrees that immigration detention is necessary to ensure the integrity of Canada's immigration system, public safety and security.
- General agreement (51.4%) that the overall direction of the Framework is the right direction. There are some (12.1%) that neither agree, nor disagree.
- Very strong support (81.9%) for government openness and transparency on immigration detention program including publishing of statistics with very little disagreement (5.9%).
Alternatives to Detention (ATDs):
- Majority (62.9%) agrees that the range of ATDs should be expanded from what is currently available.
- Split on whether the Government is pursuing the right ATDs (community supervision, voice reporting, electronic monitoring). There is a slightly higher (48.2%) level of disagreement (level of agreement is 46.9%).
- Strong majority (75%) disagrees with releasing into society with conditions proportionate to their level of risk a person who has been convicted in the past of serious crime(s) (i.e., crimes involving violence, gangs, organized crime, etc.).
- Slight majority (54.8%) disagrees with releasing into society with conditions proportionate to their level of risk a person who has been convicted in the past of less serious crime(s) (i.e., theft under $5,000, illegal drug possession, etc.)
- Moderate support (56.9% strongly agree/agree) for the use of electronic monitoring (EM) bracelets for individuals who have committed multiple crimes and are non-cooperative (vs. 37.2% who disagree/strongly disagree).
- Slim majority of respondents (53.2%) agrees that individuals detained for immigration purposes should not be held in jails unless they represent a risk that cannot be alleviated otherwise.
Health/Mental Health/Addiction Counselling:
- Split in responses related to the provision of health, mental health and addiction counselling to individuals released into a community supervision program if it can accelerate that person’s release from detention and mitigate any risk they may pose. An average of 47.9% of respondents agree and 46.5% disagree with providing these services, with the highest level of agreement (53.8%) being for mental health services and the highest level of opposition (51%) for addiction counselling (49.7% disagree vs. 46.5% agree with provision of health services).
- Strong agreement (78.4%) on three of the four minor statements concerning minors.
- Minors may be held in detention in an immigration holding centre (IHC) or a youth facility in exceptional circumstances, i.e., security risk (74.3% agreement)
- Detention of a parent with accompanying minor children may be justified in cases where the parent may be a danger to the public (84.8% agreement);
- Minor children could be held in a detention facility with a parent/guardian that must remain in detention where no alternative child care arrangements are available (76% agreement).
- Majority (59%) disagrees that detention of a parent should be avoided when they have accompanying minor children (vs. 36.8% who agree).
- Majority (59.7%) disagrees with having a maximum period of time a person may remain in detention.
- Majority (66.3%) agrees there should be exceptions to releasing an individual in detention after a maximum set time if they refuse to cooperate or are considered a danger to the public.
Summary of Written Submissions and Comments:
The following provides a summary of most-cited comments received via the questionnaire and written submissions. Given the wide diversity in respondent groups, the summary highlights both diverging and converging views where they exist. The summary elements are not placed in any particular order. Some submissions incorporated recommendations previously made by stakeholders which were captured in the stakeholder consultations summary report, and therefore were not repeated in this summary.
What respondents said about the Detention Program and direction of the Framework:
- Strengthen the Framework by expediting immigration processes.
- Prioritize the safety and security of the Canadian public and maintenance of the integrity of Canada’s immigration system. While it is unfortunate to have to detain anyone, we must not shy away from doing so when necessary.
- Ensure that Canadian immigration law is followed by all those who wish to enter Canada. Individuals coming in through irregular means should be met with detention to discourage others from entering Canada illegally.
- Curb immigration detention through strategies to reduce irregular migrant arrivals: implement joint teams across borders; build relationships of trust with and engage other governments; and implement communication strategies including messaging on the risk of detention.
- Inability to establish identity, perceived lack of cooperation (subjective in nature) or unwillingness of the country of origin to receive them should not be a justification for detention in the absence of a demonstrated risk to public safety and security.
- Should not release persons who pose a risk to the public or whose identity cannot be obtained. Unknown identity is the highest risk since you do not know the person’s history and risk level.
- Those who refuse to cooperate or who committed crimes (inside or outside Canada) should not be released. Instead, they should be deported. Those who have no charges or criminal record should be monitored.
- CBSA officers should carefully consider all factors listed in immigration regulations when making detention decisions and include detailed written notes on decisions in the person’s paper and/or electronic file.
- Address gender identity and gender expression rights in the Framework.
- Consider reintroducing duty counsel for detention review hearings.
What respondents said about Alternatives to Detention (ATDs):
- Prioritize and make ATDs the default approach.
- Provide greater specificity in the ATD proposals including a concrete action plan (with pilot projects) and budget allocation.
- While ATDs are important to saving money, the risk of the person not appearing should be strongly considered.
- Expand community bail programs (with both enforcement and rehabilitative components) being careful to not employ a program designed for criminal justice.
- Ensure flexibility on enforcement of conditions of release, recognizing that they should be realistic to the unique needs of each person (i.e., those with mental health issues).
- Individuals who fail in any way to meet the requirements of release should immediately be placed back in detention.
- Community groups cannot be compelled to enforce or even inform on persons who might fail to abide by CBSA imposed conditions of release. Without the ability to enforce compliance there is a gaping hole in the strength of the ATD.
What respondents said about infrastructure:
- Model immigration holding centres (IHCs) after shelters not prisons.
- IHCs should be solely managed by the Government to ensure standards and rules comply with international commitments. Eliminate third party contracts.
- Ensure detention facility staff is ethnically/racially representative of its detainees to the greatest degree possible.
- Establish clear and binding rules to govern transfer of a detainee to a provincial correctional facility and implement a process for detainees to challenge decisions.
- Phase out the use of provincial facilities for immigration detention.
- Individuals who have committed minor infractions should not be held in high security jails.
- Immigration detainees should not be co-mingled with criminal detainees in provincial facilities, or handcuffed (not serving sentences).
- End solitary confinement of immigration detainees as it can have grave consequences (i.e., post-traumatic stress disorder, exacerbation of past trauma). Clarify grounds and time limits for confinement and confinement appeal and review procedures.
Videoconferencing facilities (for IRB detention reviews and other immigration enforcement proceedings)
- Use videoconferencing for refugee and detention hearings only with the consent of all parties.
- Allow all detainees the ability and IRB members the discretion to request an in-person detention review hearing.
What respondents said about minors and detention and other vulnerable groups:
- Consistent with Canada's international commitments, the CBSA should end the practice of immigration detention of children and incorporate this into legislation.
- The existence of children should not be the deciding factor when releasing/detaining the parents. The circumstances as a whole should be considered.
- Pregnant women and parents with minors should not be detained as the best interest of the child should always be the primary consideration.
- Canadian citizen minors should never be held in an immigration detention facility, regardless of the parents' circumstances.
- Separation of families cause significant distress and trauma for children and is often more detrimental than allowing children to remain in detention with their parents.
- If detention is necessary, house families in residences or apartments designated for these purposes and for not more than 15 days.
- Clearly outline processes related to minors in guidelines and identify what constitutes "exceptional circumstances" when it comes to detention of minors.
- Facilitate regular contact with parents and family members for children placed in alternate care arrangements.
- Consider providing legal representation in addition to assigning a designated representative for minors.
- Train designated representatives working with children on the immigration process, cultural sensitivity and child and youth mental health.
- Integrate children accompanying parents who are detained into regular school within 15 days. Seek support from community organizations to ensure integration. Inter-governmental agreements may be required to achieve this.
- Ensure adequate recreational activities are available to children, including options for off-site programming.
- Detention of victims of violence may result in extreme anxiety and post-traumatic stress disorder. Immigration detention is no place for highly traumatized populations.
- Victims of domestic violence may end up in immigration detention without their experience being properly taken into account and/or with it being omitted from their immigration application. Ensure officers are trained to screen for domestic violence and other (human smuggling, persecution and torture) vulnerabilities and implement guidelines directing officers to use ATDs in such cases.
- Apply gender-based analysis in reforming the immigration detention system.
What respondents said about medical, mental health and counselling support and services:
- Recognizing that individuals may, upon release, need health, mental health and addiction counselling services, it is difficult to accept that foreign nationals may bump Canadians or move to head of line and receive services for free.
- Increase mental health and health services for all people, immigrants and citizens.
- The Canadian government should look after its own people first before helping others.
- If immigration enforcement aims to deport people, the focus should not be on release, health care and addiction counselling. It should be on quickly removing people. If we give more of our resources and attention it will make them fight harder to stay.
- Providing addiction counselling is a rehabilitative measure which may be acceptable for people who will remain in Canada but for foreign nationals who might reasonably be expected to be removed to a country where ongoing support and care may not be available, there is no value (and an expense) in providing this service.
- Ensure timely health and mental health screening and assessment for every detained person (including minors) and at regular intervals throughout detention.
- Vulnerable individuals including persons with health, mental health issues should not be detained and legislation should reflect this.
- If immigration detention of people with mental health issues is necessary, impact of detention on this group should be mitigated by improvements to infrastructure and should be for the shortest time possible.
- Do not transfer people with identified mental health issues to provincial correctional facilities.
- Detainees whose mental health is deteriorating should be transferred to alternative facilities (i.e., forensic hospital, correctional treatment centre).
- Ensure dedicated practitioners/resources are available for people with mental illness.
- Ensure medical professionals have access to detainees held in provincial facilities for psychological assessments relevant to refugee hearings and release from detention.
- All employees (and future employees) in the immigration and enforcement continuum should receive in-depth and regular training to expand understanding of the needs of people with mental health issues (i.e., anti-stigma, de-escalation techniques, compassion/empathy communication skills, etc.).
What respondents said about long-term detention:
- Impose clear limits on the time that a detainee can spend in detention.
- Long-term detention should be rare and limited in legislation to 90 days: Re-examine and narrow the grounds used to justify it.
- If detainees cannot be charged with a crime or removed from Canada, there must be limits on the length of time that they can be detained.
- Address policy gap and direction on how to deal with cases where a person in detention is inadmissible but cannot be returned to their country of origin, mindful that the situation may persist for many years.
- People who have contravened our immigration laws should be detained for as long as it takes to remove them.
- People who pose a threat to Canada should be detained and deported immediately. If they are released there is always a risk they may commit a serious crime. Canada is allowing them to be detained too long before deporting them.
What respondents said about transparency:
- Establish an ombudsperson position to ensure transparency and oversight and to implement an independent and effective complaints and monitoring mechanism.
- Update statistics posted on the CBSA website quarterly including additional breakdowns (i.e., use of ATDs, more detailed information on minors in detention, age, gender, etc.).
- Consider including median length of detention in statistics rather than just average length.
- 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 is committed to informing and engaging Canadians on government programming and policy proposals. Input received through this consultation is appreciated and will help inform transformations of Canada's immigration detention program.
Input from Canadians and stakeholders on the new 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.
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