The Immigration Detention Landscape in Canada: Problematizing the Use of Canadian Provincial Correctional Facilities

Guest post by Sam Ghebrai and Dale Ballucci.  Sam is a PhD candidate in Sociology, with a specialization in Transitional Justice and Post-conflict Reconstruction at the University of Western Ontario. His research focuses on legal and administrative decision-making in both immigration and criminal justice contexts. For his dissertation, Sam is exploring the extent to which gender identity and gender expression are protected in Canadian criminal court decisions, and more specifically how heteronormative logics pervade court proceedings. Dale is an assistant professor in the Department of Sociology at the University of Western Ontario. Her research interests broadly include the administration of the criminal justice system, criminology, policing, socio-legal studies, sociology of childhood, and theories of governance.  Her current projects investigate police responses to sex crimes, prolific offenders, intimate partner violence, and how the police respond to child and youth victim of sexual assault in Canada. This is the tenth post of Border Criminologies’ themed series on 'The Changing Landscapes of Immigration Detention' organised by Ana Ballesteros-Pena and Cristina Fernández-Bessa.

Global displacement and immigrant detention

By the end of 2020, there were 89.4 million people displaced globally, including refugees, asylum-seekers, and others fleeing from violence and conflict. Global displacement creates challenges for border control across the world. Despite Canada’s reputation for advanced immigration policies, the treatment of non-Canadian citizens at our borders clearly indicates the need for change.

In this post, in highlighting the limitations to current practices used to determine risk, and therefore regulation, we argue for greater consideration of the impacts of detention on immigrant well-being.  Moreover, recognition of the threat that criminalization and overregulation creates to Canada’s deployment of just legal practices is needed. 

In the 2021-2022 fiscal year, a total of 3056 immigrants and asylum seekers were detained by the Canadian Border Services Agency (CBSA). Under the pretext of national security or public protection, immigrant detention effectively criminalizes individuals who may not actually possess any criminal record. Compared to the determinate sentencing practices in the criminal justice realm, immigrant detainees are subject to detention for an indeterminate length—meaning that it’s possible for them to spend more time detained than an individual convicted of a crime.

The justifications for detention generally vary, but it is common for individuals who are refused permission to enter Canada, those awaiting deportation, individuals awaiting an admissibility hearing, or individuals who have violated the terms of their visas. Applying risk-based justifications, the use of detention is often considered as a last resort; yet, what counts as risky is up to the discretion of CBSA officers and immigration officials. Table 1 provides a breakdown of the number of people detained by the CBSA based on the reason for their detention.

Of the 3056 immigrant detainees in 2021-2022, only 11% of them were perceived as a danger to the public. The majority (82%) were detained because they were deemed unlikely to appear for a hearing or examination. Whereas discourses of public protection and national security could be used to justify the detention of those who pose a danger to the public or possess a criminal record, the detention of immigrants who are unlikely to appear is especially problematic given the detention landscape in Canada. 

Where are immigrant detainees placed?

The practice of immigrant detention is further complicated by the fact that there are only three immigration holding centres (IHC) across Canada: Laval, Quebec; Surrey, British Columbia; and Toronto, Ontario. They can hold 153, 70, and 183 detainees, respectively. These facilities detain families and individuals, but mimic traditional elements of detention through the use of surveillance, barbed-wire fences, and uniformed guards. An individual can be detained outside of these three metropolitan areas, if the IHCs reach maximum capacity, or if an immigrant is deemed “high risk”; in these cases, they can be placed in provincial correctional facilities or other facilities operated by law enforcement.

Prior to being placed in detention, CBSA officers are required to complete the National Risk Assessment for Detention (NRAD) for each immigrant detainee. The NRAD form determines a person’s general risk and vulnerability factors, which are then used in risk classification and placement decisions. The NRAD allocates various points for 8 risk factors and 1 vulnerability factor. According to the NRAD, if an immigrant detainee received 0-4 points, they are sent to an IHC. If they receive 5-9 points, they can be sent to either an IHC or a provincial correctional facility. Anyone with 10+ points will be sent directly to a provincial correctional facility. These risk scores, in theory, determine where an individual is placed; in practice, however, this is not always the case. For immigrant detainees outside of the three metropolitan areas, or in situations where the IHCs are at maximum capacity, they may be placed in provincial correctional facilities regardless of their risk status. Transfer requests can be made, but the discretion is ultimately up to the CBSA officer. Officers can reject transfer requests based on the expected length of detention and the complexity of the detainee’s case, among other factors. Consequently, the detention experiences of immigrant detainees wildly depend on the CBSA officer’s discretion where they are placed.

Detention in provincial correctional facilities

Of the 3056 individuals detained in 2021-2022, 35% of them (1232 people) were placed in non-IHC facilities. Compared to IHCs that only detain immigrants, detainees in correctional facilities are not always distinguished from the rest of the prison population. Although all forms of immigrant detention are problematic, the “co-mingling” of immigrant detainees with those who are charged with, or convicted of, crimes only amplifies the criminalization of immigrants. In some recorded instances, immigrant detainees share common areas, cells, or units with individuals who are awaiting criminal trials or those who have been sentenced. In one case, an immigrant detainee faced 74 days of lockdowns over the period of their 214-day detention. Of the 74 days, 68 were caused by staff shortages. The lockdowns prevented the detainee from being able to access common areas, exercise, take showers, or make phone calls. In another case, an immigrant detainee facing deportation was held in a provincial correctional facility for over 5 years, with over 56 detention reviews indicating that the detainee was too much of a flight risk to be placed in an IHC. This particular detainee had no criminal charges whatsoever, yet the sheer amount of time they were detained reflects that of someone who is convicted of crimes.

Concluding thoughts

Risk assessment is a prominent approach to administrative decision-making in Canada. Despite its entrenchment, the challenges and limitations of risk-based practices are well documented, particularly in the field of Criminology. Our research draws on the methods and insights from existing studies to develop and improve the risk assessment practices in immigration detention. The similarities between immigration detainees and those charged and/or convicted of crimes is particularly disturbing. The experiences of immigration detainees highlight the cruel and unusual punishment they face in Canada. A risk designation, along with the geographical location of a person’s landing, effectively create a hierarchy of detainees. For those who are deemed “dangerous” or “flight risks”, they are perceived and treated as equal to convicted offenders—and ultimately serve indeterminate sentences in the same facilities as convicted offenders, simply for being immigrants and asylum-seekers. We hope that by applying existing knowledge from risk designation practices that we can recommend improvements to limit the use of correctional facilities as detention spaces.

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