Canadian Red Cross: Immigration detention monitoring program annual report 2020 to 2021

2.1 Numbers

Several organizations with expertise in health and rights in detention have highlighted that reducing the number of people detained was one of the most important steps that could be taken to limit the spread of COVID-19 in detention^{Footnote 6}. This would generate benefits in public health as well as facilitate the respect of basic rights by limiting the number of people who can be potentially infected; facilitating physical distancing and general hygiene measures, such as cleaning; as well as facilitating the implementation of mitigation efforts for those who remain in detention.

The IDMP observed lower numbers of people detained for immigration reasons this reporting period compared to the previous one. At the Laval and Toronto IHCs, numbers of people observed during monitoring activities and statistics on days of detention – determined by numbers of people and length of detention – both indicated sharp decreases. The IDMP notes that lower numbers of newly arrived migrants, particularly at the Laval IHC, may be due to policies put in place outside of detention, and it does not comment on the legality and humanitarian impact of these policies since it is outside the IDMP’s mandate. The Surrey IHC, which became operational shortly before the pandemic, does not have a pre-pandemic baseline to permit the same comparison. However, it is operating well below capacity (at less than 25% of its capacity). Moreover, overall days of detention in the province have decreased compared to the previous monitoring period.

The days of detention of people held under IRPA at all the PCFs where monitoring activities took place this reporting period have been reduced – sometimes greatly reduced – when compared to the previous reporting period. However, IDMP calls attention to the fact that overall numbers in these facilities did not necessarily follow this trend. IDMP observed that decreases in occupancy early in the pandemic were generally more modest in PCFs than in IHCs. Moreover, at times during the period under review, the numbers of people detained at six (6) of the monitored PCFs had returned to near pre-pandemic levels^{Footnote 7}. Accordingly, most people detained under IRPA placed in detention facilities under the management of provincial authorities did not benefit from the advantages of major reductions in population. It can be noted that occupancy rates at the unit level are key and may differ from the general population rate. In some PCFs, unoccupied units were reopened to spread people out; however, the creation of medical isolation units (droplet precaution) and preventative isolation units in other facilities had a contrary effect, reducing the number of sectors in which an individual could be placed and raising occupancy rates in some units.

Recommendations

2.2 COVID-19 and conditions of detention

All the monitored facilities put in place an initial isolation period with the guidance of public health authorities, in response to the possibility of pre-symptomatic and asymptomatic transmission. Also, during COVID-19 outbreaks, facilities placed all the individuals on certain units on medical isolation status (droplet precaution). The impact these COVID-related isolation regimes had on conditions of detention, and the measures to mitigate them, varied over time as well as from one facility to another. At the Toronto IHC and the Surrey IHC, restrictions were minimal and basic conditions in preventative isolation were close to those in non-isolation units. At the Laval IHC, the conditions of isolation imposed some level of restriction on movement; however adequate measures were put in place to mitigate the negative impacts (facilitated by lower numbers at the centre), such as the possibility to leave the room several times per day, easy access to the telephone and to open air, and the possibility to talk to a mental health care service provider over the phone.

The situation in PCFs varied greatly from one institution to the next. While some were more successful in finding an adequate balance between public health and adequate conditions of detention, others had difficulty in consistently applying public health measures in a way that protected detained individuals’ basic rights and responded to their fundamental needs. It must be noted that facilities faced challenges such as fixed infrastructures^{Footnote 9}, facility staffing pressures due to COVID-19 and the obligation to comply with a series of new rules.

The circumstances explaining the difficulties detained people encountered in the monitored PCFs while under COVID-related isolation differed: in some cases, isolation regime mitigation measures were deficient at their inception and were eventually improved; in others, basic conditions deteriorated during COVID-19 outbreaks. The major problems observed were as follows:

• In five (5) monitored PCFs, during part or all of the reporting period, detained people in COVID-related isolation were not allowed out of their cells every day. Depending on the facility, detained people were allowed out between once every two days and once every two weeks to access common areas where basic services are offered, such as showers and telephones. When allowed out of cell, the time allotted tended to be very short, in some cases 20 minutes
• Five (5) PCFs did not offer daily access to open air for people under isolation; the possibility to access open air was either reduced or impossible, depending on staffing, the rules of the facilities, and their infrastructure
• In four (4) facilities, very few recreational activities were available to people in COVID-related isolation. Televisions, if present in units, were not always visible or audible depending on the location of the cell, and books were not always in a language read by the detained person and
• Triple bunking of people on COVID-related isolation was reported in three (3) monitored PCFs, for example during outbreaks in facilities with limited infrastructure, as facility staff were required to separate detained people according to COVID-19 status

Management at these facilities was sensitive to the difficulties caused by time spent in COVID-related isolation and they developed different strategies to mitigate these problems, which had varying levels of success. For example, in one facility, chaplains and specialized staff would reach out to detained people in preventative isolation to check on their wellbeing. In some instances, items such as books, radios, or fans in the summer, were handed out to isolated people.

2.3 COVID-19 and treatment

At eight (8) PCFs and two (2) IHCs, there was individual placement of detained people in a cell or room during the 14-day intake isolation. Although individual placement is advantageous in terms of public health, it can contribute to the creation of conditions of solitary confinement if proper mitigation is not in place. At the IHCs, the isolation regimes permitted detained people to leave their rooms several times per day and they could engage in regular meaningful contact with relatives through the telephones as well as with other detained people or facility staff such as mental health service providers, which helped mitigate the hardships of isolation. At five (5) of the monitored PCFs, detained people reported being allowed out of their cell less than two hours per day and meaningful contact not being regularly possible during COVID-related isolation, which risks creating conditions of solitary confinement. Of note, people with mental health conditions are particularly vulnerable to these types of conditions.

2.4 COVID-19 and access to legal and procedural safeguards

At the monitored IHCs and PCFs, contact with lawyers and participation in detention hearings remained possible during the 14-day intake isolation and medical isolation (droplet precaution) in response to COVID-19, mostly through telephone or video calls. However, lack of time out of cell at many PCFs during COVID-19 isolation greatly reduced access to telephones to call one’s lawyer. Also, while all facilities were able to facilitate detention hearings, delays due to pandemic-related issues were reported at two (2) of the monitored PCFs.

Detained individuals at four (4) PCFs reported a lack of confidentiality of information during contact with lawyers and detention hearings throughout the monitoring period – either in times of an outbreak or while finetuning the new intake isolation procedures. In these cases, the way the telephone hearings and the calls to lawyers were set up permitted correctional staff and/or other detained people to overhear the conversation or part of it. Also, at one (1) PCF, there were cases where detained people did not enjoy basic comfort to fully participate in detention hearings – having to listen and speak on a telephone through the door hatch – although the facility quickly remedied this after being made aware of the issue.

CBSA Detention Liaison Officer‘s (DLO’s) access to detained people in preventative isolation or COVID-19 isolation was not always possible. It must be noted that COVID-related isolation was the period where detained people were often most in need of assistance given the reduced time out of cell to access basic services.

2.5 COVID-19 and family contacts

During intake isolation and medical isolation in response to COVID-19, the possibility of contacting family varied from one facility to another and over time within facilities during the monitoring period. While daily calls during isolation were possible at eight (8) facilities – including the three (3) IHCs – at another five (5) facilities they were limited to the times where people were allowed out of cell, or when special calls were arranged^{Footnote 10}, usually ranging between once every two days and once every two weeks. At these facilities, given the time out of cell allotment was minimal, detained people sometimes had to choose between showering and calling a loved one. As mentioned above, limited possibility of meaningful contact was particularly detrimental in cases of individual cell placement in isolation.

Personal visits were suspended at most facilities at the beginning of the pandemic. IDMP understands the measure as a temporary restriction in response to a public health emergency. Depending on the circumstances in the surrounding community, in-person visits with precautions, such as the use of PPE, became possible at seven (7) facilities on exceptional basis or with an appointment and only for detained people not in isolation. When possible, in-person family visits were particularly important in cases of removal, where a parent was to be separated from a child who would stay in Canada.

The impact of the suspension or restriction of in-person visits must be weighed in light of efforts to mitigate its negative effects. Of note, all the monitored facilities put in place special measures to facilitate family contact, such as free calling cards provided regularly, waving fees on national calls, permitting free exceptional international calls, and putting in place a video calling system. Also, despite the suspension of personal visits, in at least five (5) facilities, it remained possible to leave items for a detained person who would receive them after a quarantine period.

Recommendations

3.1 Conditions of detention

The IHCs and the PCFs monitored offered very different conditions of detention. In IHCs, individuals are held in rooms, and can move freely to other parts of a secured section. Toilets are closed spaces outside the room. Most people detained in PCFs are housed in cells in general population units. In all but one of the monitored PCFs, detained people share their cells with people held under the Criminal Code. Toilets are located in the cells leaving very little privacy. While not under medical isolation or lockdown, time out of cell in general population units varies from one facility to the next and from one unit to the next, from as much as 11 hours to as little as one hour. In some of the monitored PCFs, people detained under IRPA can be placed in medium-security dorms, affording them greater freedom of movement. Lockdowns were reported in five (5) PCFs for reasons other than COVID-19, in these situations detained people cannot leave their cells for periods varying from a few hours to a few days. The reasons were most often linked to security or staffing issues. It is important to note that lockdowns have a much stronger impact on people held in higher security general population units than on those held in medium security dorms.

No systemic obstacles were reported in accessing healthcare in the IHCs. In PCFs, the situation varied. Although health care services were easily accessed in some facilities, detained people at three (3) PCFs mentioned long delays to see a doctor after having requested a consultation. These delays, which can be up to eight (8) weeks, discouraged some from requesting appointments. The CRCS notes that other people at two (2) of these three (3) facilities faced much shorter delays, and waiting time depended, in part, on diagnosed conditions. Also, as previously reported, the initial health screening at one (1) PCF is still carried out by a correctional officer which can create problems in terms of public health for the general population and of continuity of care for that individual.

People in IHCs reported having access to books, board games, and televisions where they could change channels. In PCFs, the situation varied. Books were available and certain units had televisions which only some could see and hear depending on the location of their cell. Many activities were suspended because of the pandemic, for example, educational programming and access to gyms located outside the units were suspended. Some facilities put in place innovative solutions, such as virtual education. In some PCFs, people detained under IRPA can voluntarily work as cleaners, which was appreciated by those participating in the activity.

Yards in IHCs were accessible daily. In PCFs, the situation varied, if it was possible to have regular yard time in some facilities; people held in five (5) PCFs not under isolation reported not having daily access to the yards, among other things, due to frequent lockdowns and infrastructural limits. Moreover, if not the case for all the monitored PCFs, it is questionable whether yards in certain correctional facilities actually constitute “open air.” While understanding that this type of infrastructure responds to security concerns related to criminal detention, the CRCS notes these spaces are inside the units and are surrounded by concrete floors and walls with part of the ceiling closed and the other part being mesh through which the sky is visible.

3.2 Treatment

CBSA personnel constant presence at the IHCs permits them to have closer contact with detained people held under IRPA. Also, all three facilities have a direct supervision model where guards are constantly present in the units. Beyond helping identify the needs of detained individuals, this also permits the detaining authority to proactively identify potential conflicts between detained people and take corrective actions, such as mediation or changes of units. The vast majority of people interviewed in the monitored IHCs reported feeling safe and physical altercations between detained people were not reported. Problems between detained people and guards were brought to the IDMP’s attention; however, facility management took appropriate measures to respond.

Given the number of detained people and dynamics linked to criminal detention, the situation was different at the monitored PCFs. Most units in the monitored PCFs are under indirect supervision, meaning the correctional officers are posted outside the units, which limits their interaction with detained people. As mentioned, in all but one PCF, people detained under IRPA are co-mingled at unit and even cell level with people held under the Criminal Code. Use of force by staff is more frequent in PCFs than in IHCs. Moreover, detained individuals interviewed in at least four (4) PCFs described seeing or being victims of violence at the hands of other detained people – in some of these facilities up to half of those interviewed. Some reported being victims of serious assaults, such as stabbings or beatings, and said they did not request medical care out of fear of reprisals. Of note, there were public reports of people held under the Criminal Code in two (2) of the monitored PCFs becoming victims of homicide during the period covered by the report and allegations of sexual assault by a correctional officer against women held under the Criminal Code at another facility, highlighting serious security issues faced in some of these facilities.

Finally, people detained under IRPA and placed in PCFs are subject to the same disciplinary regime and to the same security measures as those detained under the Criminal Code, including strip searches.

Recommendations regarding conditions of detention and treatment

3.3 Access to legal guarantees and procedural safeguards

Although procedures were in place at all the monitored facilities to provide information at intake, some of the detained people IDMP spoke with mentioned not clearly understanding certain basic administrative procedures such as how to access the phone and how to request a phone card or other basic items. Oftentimes, detained people rely on explanations given by other detained individuals.

Not speaking the same language as facility staff was mentioned as being an issue by detained people, on rare occasions at the IHCs and, more regularly at five (5) PCFs. Although individual staff members may speak the detained person’s language, their level of proficiency varied and staff members with the needed language skills were not always available at the time when it was needed. It was reported by detained people that IHC staff and DLOs regularly used interpretation services when needed during interactions.

For detained people not under COVID-19-related isolation, DLOs or other officers carrying out DLO functions mostly remained accessible at the monitored PCFs, either through telephone or in-person visits in non-contact visiting areas. IDMP acknowledges the DLOs’ contribution in responding to the needs of people detained under IRPA placed in PCFs when they were able to reach them. In particular, they support detained people with information, especially when there are language barriers, international telephone calls, and access to medical services. It is also important to note that early contact with DLOs facilitates continuity of care for detained people when medical needs are identified.

3.4 Ability to maintain contact with family and friends

Although, as mentioned in Section 2.5, CBSA and PCFs provided financial support for phone calls, the cost of calls was still reported as an obstacle in maintaining family contact in the three (3) IHCs and seven (7) PCFs, affecting those with lesser resources and/or who need to call countries where calls are more expensive. The fact that it was not mentioned in the other facilities may be because the detained persons present at the time of the monitoring activity did not have relatives abroad.

Telephones were easily accessible in the three (3) IHCs. However, access to them for people remained complicated in at least five (5) PCFs, because of limited time out of cell and/or intimidation by other detained people. Difficult access to telephones affects family contact, but also has an impact on one’s ability to contact Legal Aid organizations and lawyers. Not speaking an official language could also impact the capacity to make phone calls, as depending on the telephone system at the facility, instructions for automated services can be limited to English and/or French. Moreover, this may also be a challenge for the person receiving the call as they may have to follow instructions to accept the call.

Recommendations regarding procedural safeguards and family contacts

4.1 Vulnerable people and conditions of detention

The CRCS recognizes the major reduction in the presence of children detained or accompanying a detained parent^{Footnote 15} in some regions. The Laval IHC, where the most children were present in previous monitoring periods, only notified IDMP of the presence of one child during the period under review^{Footnote 16}. On the other hand, the number of children present in detention in the Pacific Region is comparable to those before the pandemic – three children were reported present in detention during quarters one and two, which is the same number reported in quarters one and two of 2019 – 2020. The presence of children in immigration detention remains concerning.

IDMP observed the presence of people with mental health issues – diagnosed or self-identified – in all three (3) IHCs and at least eight (8) of the monitored PCFs. Specialized mental health support was available at all three IHCs and in most of the monitored PCFs. However, in many cases, it focused on stabilization rather than treatment. Mental health practitioners, such as psychologists, were not present in all the monitored PCFs. Moreover, placement of vulnerable people, such as those with mental health conditions, in restrictive environments like the monitored PCFs creates a greater risk of harm, particularly during the pandemic. The CRCS observed placement of people with mental health conditions in segregation units in three (3) of the PCFs it monitors, which is of concern since these units tend to be even more restrictive. Also, the CRCS was notified that many detained individuals who were suicidal were placed on suicide watch units, which is a segregation regime where a person must wear a tear-proof garment and is under 24-hour surveillance.

4.2 People detained for long periods and conditions of detention

The CRCS remains preoccupied with the impacts of prolonged immigration detention, being aware that the harm caused by detention grows with time spent in detention. Also, the capacity to cope with the difficulties of detention varies from one person to another, with vulnerable people being at greater risk. The CRCS observed people detained for more than three (3) months in at least seven (7) of the monitored facilities – some for one to two years^{Footnote 17}. Some of the individuals detained for long periods of time were diagnosed or self-declared suffering from mental health illnesses which is of particular concern.

Recommendations