Canada routinely detains undocumented migrants, often in holding centres and sometimes in maximum security jails. This includes non-citizens who are extremely vulnerable: asylum-seekers, torture survivors, and those who have serious mental health issues.
The number of non-citizens held in immigration detention in Canada has been steadily climbing in recent years. In 2013, over 7300 non-citizens were held in detention in Canada for some period of time, and over 60% of detentions occur in Ontario. Almost a third of migrants are detained in provincial jails, most often co-mingled with the general prison population.
IWe are not speaking of non-citizens who have been charged with a crime, tried before a judge, convicted, and serving a criminal sentence. The migrants in detention may have been on their way into Canada as refugee claimants, or on their way out of Canada because they have been ordered to leave. A Canada Border Services Agency (CBSA) officer unilaterally decides whether to order detention, usually on grounds that the person needs to be held in custody to facilitate imminent deportation, and/or out of concern that the person might ‘go underground’. But deportation may turn out not to be imminent because the country of origin refuses to issue travel documents, or is so conflict-ridden that it is unsafe to send anyone there. The end result: detainees are sometimes jailed for months and years.
So the question then arises, where is the best place for a person with mental health issues who does not pose a danger to self or others, is not serving a criminal sentence, and could be detained indefinitely?
a) With friends or family in the community, with appropriate support from mental health professionals;
b) In a mental health facility;
c) In a maximum security jail?
According to CBSA, the enforcement arm of Canada’s immigration system, the correct answer is c).
This is one of the most disturbing findings contained in a new report by the University of Toronto’s International Human Rights Program (IHRP) entitled “We Have No Rights”. The report is the result of a ten month investigation into the treatment of non-citizens subject to immigration detention. A research team of law students, led by the IHRP executive director obtained information from CBSA through Access to Information requests, and interviewed detainees and former detainees, immigration lawyers, mental health experts, and the former Director of CBSA enforcement operations in Toronto. The IHRP officially releases its report today, June 18, in advance of World Refugee Day on June 20.
It is widely known that jail is a terrible place for people with pre-existing mental health issues, and, moreover, prolonged detention is a cause of mental health deterioration. Migrants, especially asylum seekers, are a particularly vulnerable population. They often struggle to cope in a foreign language and unfamiliar cultural context, and they may be traumatised by past persecution or the effects of their journey. Isolation from friends, family or community may only exacerbate their despair and sense of hopelessness, leading to depression, fear, anxiety, and suicidal ideation. Yet CBSA officers use mental heath issues, or associated behavioural problems, as a reason to transfer a person from an immigration holding centre to a maximum security jail. The findings of the IHRP report demonstrate that migrants with serious mental health issues are routinely (even presumptively) detained in maximum security jails. The IHRP report reveals that the immigration detention regime is especially cruel in its impact on those with mental health issues
The routine detention of migrants with mental health issues in maximum security jails is astounding given that, in the wake of the high profile death of Ashley Smith, Canadians are moving closer towards the view that people with complex mental health needs, even when detained under the criminal justice system, should not be subject to restrictive forms of confinement. It is also shocking in light of the recommendations made by the BC coroner in 2014 following an inquest into the suicide of Lucía Vega Jiménez while in CBSA custody.
So what is the way forward in terms of ending overly restrictive treatment of vulnerable migrants? The IHRP report makes several recommendations directed at the federal and provincial governments.
The major recommendations include the following: First, create an independent oversight body to which the CBSA is accountable, which should include an ombudsperson to whom complaints can be made. Second, treat the deprivation of physical liberty as a last resort rather than a first recourse. Less restrictive alternatives must be explored first, including and especially in the case of migrants with mental health issues. Thirdly, place the burden on CBSA to justify ongoing detention rather than on the migrant to justify release. Finally, and in keeping with international best practices, impose a presumptive limit of 90 days detention.
Does the fact that someone is not a Canadian citizen change the underlying rationale that people with complex health needs who are in conflict with the law should be treated as vulnerable persons requiring care rather than risks that need to be managed and mitigated? The human right to liberty is not forfeited because one is not a citizen. People with mental health problems are entitled to equal and non-discriminatory treatment by the state. These are not privileges or luxuries. They are the elements of a fair and just society that Canada can and ought to be.
