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Reforming Canada’s Immigration Detention Policy

Guest contribution by Vanessa C. Wachuku
18 July, 2016

The Public Safety and Emergency Preparedness Minister, Ralph Goodale recently announced that Canada will review its immigration policy on the detention of foreign nationals by the Canada Border Services Agency (CBSA) based on concerns regarding identity, flight risk or danger to the public. Foreign nationals are also detained if they are deemed inadmissible based on security reasons, criminality or violations of human and international rights[1]. If arrested under the Immigration and Refugee Protection Act (IRPA), the person is either held in one of three Immigration Holding Centers across Canada or in a provincial jail or correctional facility pending a review by the Immigration Refugee Board (IRB). While Canada has historically detained foreign nationals with human rights advocates calling for changes to the policy, the recent[2] deaths of three foreign national detainees within a two month span from March to May of 2016, appear to be the catalyst that has opened a policy window[3] for the Canadian government to review and propose changes to its immigration detention regime. These changes include the immigration detention of children[4], the use of provincial jails to detain foreign nationals and the indefinite detention of foreign nationals without charge[5]. If adopted, these changes which are discussed below, will significantly reform Canada’s immigration detention policy.

Considering that child and youth advocates have been calling for an end to the immigration detention of children, Minister Goodale’s announcement to review the policy is of significance in light of extensive literature on the negative impact of immigration detention on children. According to a Canadian study published in 2015 by Kronick, Rousseau and Cleveland on the experiences of asylum seeking children in detention[6], children not only experience physical and psychological trauma while in detention but also experience long term effects from immigration detention. According to the recently released 2015 immigration detention data by the Canadian Council for Refugees[7], 82 children, not inclusive of children accompanying a parent in an immigration holding center, were detained for a total of 1,922 days. While some children are removed from Canada, others are released into the community. In light that these children may have experienced significant trauma arising from detention, social programs are implemented to support these children. The current policy design is confusing as while Canada detains children which may create or exacerbate physical and psychological concerns, it attempts to resolve these concerns through delivery of social programs. A policy reform that ends the immigration detention of children may address this policy problem that intersects between immigration and social policies and aligns with the recently released report by the United Nations Secretary General calling for States to end the immigration detention of children and adoption of alternatives to detention[8].

Minister Goodale’s announcement to review the use of medium-maximum provincial jails in detaining people that are held under IRPA is timely in light of outcry and petitions by human rights, legal and health advocates to end this practice[9].  Detaining foreign nationals in provincial jails that are operationalized under the Criminal Code criminalizes them. They are treated in the same manner as people who are convicted of a crime. A recent ruling by the Ontario Superior Court awarded $60,000 to an immigration detainee, Jamil Ogiamien, who has been in detention since 2013 at Maplehurst correctional complex. Although the immigration detainee was not in the medium-maximum provincial jail because of a criminal conviction[10] as he was in detention while waiting for a decision by the immigration officials[11], he was subjected to mandatory lockdown for almost half of the three years. The Superior Justice Douglas Gray ruled the lockdown was in violation of the immigration detainee’s right to freedom from cruel and unusual punishment.

These recent announcements on potential changes to Canada’s immigration detention regime highlight that Canada has finally recognized the policy issue of immigration detention which has been labelled, most recently by Stephanie Silverman and Petra Molnar, as a “black box”[13].  The adoption of alternatives to reduce and potentially end the immigration detention of foreign nationals, in particular children, will be a policy reform that human rights, legal, health and child & youth advocates should closely monitor.

Vanessa C. Wachuku is a PhD student in the Policy Studies Program specializing in the Immigration, Settlement and Diaspora Policies stream at Ryerson University.

[1] Canada Border Services Agency. “Arrests, Detention and Removal”, 04 January 2016, online: http://www.cbsa-asfc.gc.ca/security-securite/arr-det-eng.html

[2] Muriel Draaisma, “Federal Government reviewing immigration detention process after strings of deaths”, CBC News 16 May 2016, online:  http://www.cbc.ca/news/canada/toronto/public-safety-immigration-detention-1.3584700

[3] John Kingdon and James Thurber, “Agendas, Alternatives and Public Policies”: Longman, 2011

[4] The Canadian Press, “Liberals want to end jailing of child migrants, public safety minister says”, CBC News 30 May 2016, online: http://www.cbc.ca/news/politics/child-migrants-jail-end-goodale-1.3607712

[5] Michelle Zilio, “Ottawa to change migrant detention policy to reduce the use of provincial jails”, The Globe and Mail 15 June 2016, online: http://www.theglobeandmail.com//news/politics/ottawa-to-change-migrant-detention-policy-to-reduce-use-of-provincial-jails/article30482750/?cmpid=rss1

[6]  Rachel Kronick, Cecile Rousseau, and Janet Cleveland, “Asylum-seeking children’s experiences of detention in Canada: A qualitative study.” American Journal of Orthopsychiatry, vol. 85, American Psychological Association, United States, 2015.

[7]Canadian Council for Refugees, ‘Immigration Detention Statistics 2015”, March 2016, online: http://ccrweb.ca/sites/ccrweb.ca/files/immigration-detention-statistics-2015.pdf.

[8] End Immigration Detention of Children. “End Immigration detention- United Nations Secretary General. 13 May 2016. online:  http://endchilddetention.org/end-child-detention-united-nations-secretary-general/

[9] Audrey Macklin, Raoul Boulakia and Barbara Jackman. “Media Release – Over 100 lawyers and legal scholars from across Ontario join call for Minister Naqvi to stop accepting immigration transfers to Ontario jails”. 26 May 2016. Online: https://stoptransferstojails.files.wordpress.com/2016/05/media-release-over-100-lawyers-and-legal-scholars-from-across-ontario-join-call-for-minister-naqvi-to-stop-accepting-immigration-transfers-to-ontario-jails.pdf

[10] Amy Dempsey, “Judge awards inmates $85,000 over lockdowns”. The Star 12 May 2016, online https://www.thestar.com/news/canada/2016/05/12/judge-awards-ontario-inmates-85000-over-lockdowns.html

[11] Damian Hornich and Kevin A. McGivney, “Prison Lockdowns and Charter Damages: Ogiamien v Ontario 2016 ONSC 3080 (CanLII.)  25 May 2016, online http://canliiconnects.org/en/summaries/42111

[12] Geoffrey York, “Freed from Canadian Detention, South African man in Limbo”. The Globe and Mail 14 June 2016, online: http://www.theglobeandmail.com/news/world/freed-from-canadian-detention-south-african-man-left-in-limbo/article30462108/

[13] Stephanie Silverman and Petra Molnar, “Everyday Injustices: Barriers to Access to Justice for Immigration Detainees in Canada,” Refugee Survey Quarterly 2016: 35 (1): 109-127, http://rsq.oxfordjournals.org/content/35/1/109.abstract

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