Prof. Audrey Macklin writes "Mentally ill migrants don’t belong in jail" in Toronto Star

The case of Abdurahman Hassan, the latest migrant to die while detained under the authority of the Canadian Border Services Agency (CBSA), is cause for serious concern.

According to this newspaper’s recent report, even his own family do not know how or why Abdurahman Hassan died, because CBSA will not say. But what we do know is that Hassan was convicted of assault in 2012, served a four-month sentence, at the end of which he was not released. Instead, he was left to languish in indeterminate “immigration custody” from then on. We also know that he suffered from diabetes and a bi-polar disorder.

Migrants in detention may be on their way into Canada as refugee claimants, or on their way out because they have been ordered to leave. A Canada Border Services Agency 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. Perhaps 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.

The number of non-citizens held in immigration detention in Canada has been steadily climbing in recent years. In 2013, over 7,300 non-citizens were held in detention in Canada for some period of time, and over 60 per cent of detentions occur in Ontario.

Almost a third of detained migrants are held in provincial jails, most often co-mingled with the general prison population. The majority are not detained on grounds that they pose any danger, but rather to ascertain identity, or because they allegedly pose a flight risk.

So the question then arises, where is the best place for a detained migrant with mental health issues:

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, entitled “We Have No Rights.” The report is the result of a 10-month investigation into the treatment of non-citizens subject to immigration detention.

It is widely known that prolonged detention is a cause of mental health deterioration and makes people with pre-existing mental health problems sicker. 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 affected by post-traumatic stress disorder. 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, operating in an organizational culture described by a former director as “paramilitaristic,” 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 University of Toronto report reveals that CBSA officers operate outside an adequate legal framework, without effective accountability or oversight. The report concludes that the system violates Canada’s international human rights obligations (and possibly the Charter of Rights). It also costs $50 million per year.

So what is the way forward?

The report makes several recommendations, including 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, such as bail, must be explored first, including and especially in the case of migrants with mental health issues.

Third, 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.

People with mental health problems and non-citizens are entitled to respect for their human dignity. The value of Canadian citizenship is enhanced when, acting in our name, our government treats the vulnerable and disenfranchised among us in accordance with the values of fairness, justice and decency.