Hidden Away: Policies and Politics of Immigration Detention in Canada

Guest post by Jeff Shantz, Department of Criminology, Kwantlen Polytechnic University, Canada. Jeff currently teaches community advocacy, human rights, elite deviance, contemporary sociological approaches, and critical theory. He’s the founder of the Critical Criminology Working Group and the founding editor of the journal Radical Criminology. Samples of his writing may be found at jeffshantz.ca. He’s on Twitter @critcrim.

Serious questions have been raised about immigration detention practices in Canada and the violations of human rights occurring within the system. Highly secretive, with little in the way of public accountability, the immigration detention system has recently been prised open a little with the release of a report by the advocacy group End Immigration Detention Network (EIDN). This post examines some of the serious problems associated with, and concerns raised over, detention practices in Canada in light of (and beyond) the EIDN report.

The Canadian state is one of a few liberal democracies in highly industrialized economies to use regular prisons to hold non-citizens in administrative detention despite recognized international human rights norms against the use of criminal facilities for functions related to immigration detention. As in the UK and Australia, there is no maximum period for which people can be detained. In 2011, a report prepared by University of Ottawa professor Delphine Nakache for the UN’s Refugee Agency criticized the Canadian state for its practices of holding immigration detainees in provincial jails in violation of international law.

Thousands of migrants each year find themselves locked up in Canadian cells simply because a federal official is anxious that they may not show up for a possible future hearing. These people aren’t held because they pose a threat to society. Nor are they confined because they are criminals, terrorists, or violent. Most are failed refugee claimants, people without documents, and those whose residence status in Canada has been revoked, a practice that the current Conservative government has made more common.

Immigration detention occurs in the context of an increased reliance on temporary immigration status for workers, parents, grandparents and spouses, as well as declining refugee acceptance. These trends are part of neoliberal policy shifts that pose what Aiyanas Ormond calls a “containment state” as more frequently migrants are faced with options of criminalization or exploitation (in low paid labour).

Statistics obtained from the Canada Border Services Agency (CBSA) in February 2014 by immigration lawyer Richard Kurland provide insights into the extent of immigration detention within jails in Canada. The CBSA numbers show that nationally 48% of detainees were held in a non-CBSA facility. In British Columbia, the proportion was 62% compared with 48% in Ontario and 19% in Quebec. In the Atlantic region and on the Prairies, all detainees are placed in jails because there are no CBSA detention facilities.

The Canadian government’s use of local prisons to detain migrants makes it difficult to access current information about detention practices and activities, raising urgent questions about the transparency and accountability. Matters are compounded by the lack of independent monitoring of detention practices and conditions and the absence of public reporting on detention conditions.

According to the EIDN report, almost 80,000 immigrants have been detained in Canada under the current federal government. More than one-third of those detained at any given time are held in one of 142 mainly maximum-security prisons across Canada. This sum includes at least 203 children who were jailed in 2013. That same year, as many as 10,000 migrants in Canada were detained in holding centers; more than 145 of them have been detained for a period greater than six months.

The research also discovered wide divergence across the country in the average numbers of days immigrants were incarcerated. In the five-year period from 2009 to 2013, detainees were held for an average of ten days in Pacific Canada and 12 days in Southern Ontario, but detention periods ballooned to an average of 32 days in the Prairies and 38 days in Northern Ontario.

There is much regional variation in release rates as well. Proportionally, a greater number are released in the Pacific region. In 2013, rates of release in Eastern (Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Nunavut, and Ottawa and Kingston, Ontario) and Western (British Columbia, Alberta, Saskatchewan, Manitoba, Northwest Territories, and Yukon) Canada were 24% and 27%, respectively, while the rate of release for Central Canada (Ontario excluding Ottawa and Kingston) was only 9%. The authors also found that the rate of release for every member in the Central Canada region was below the national average of 15%. Additionally, there is wide variance in release rates for individual decision makers, with release rates ranging from 5% to 38%. As examples, the report notes that adjudicator Valerie Currie ruled on 443 Detention Reviews but only released 21 migrants (5.0%) while Maria-Louise Cote ruled on 303 Detention Reviews but released 100 migrants (33%).

A previous report by the Global Detention Project had already identified regional disparities in the official justifications given for detention decisions. That report provided statistics indicating that detention for reasons of identity is vastly more prevalent in Quebec (38.6%) than in the Greater Toronto Area (GTA) (3.8%) in Ontario. At the same time, flight risk is cited more commonly as a reason in the GTA (94%) than in Quebec (55%). Even before the EIDN report of June 2014, the Canadian Council for Refugees had criticized these variations, suggesting that such discrepancies raise basic questions of fairness.

Researchers with EIDN requested all policy memoranda associated with a policy change but received no documents in response to their request. The the detention review process should be free from political interference. Yet the significant expansion of the detention estate over a relatively short period seems suspicious.

It is especially problematic to deny access to an appeal when first level decisions will be made by civil servants. While there are undoubtedly many good and impartial civil servants in Canada, they will not have the necessary institutional independence in order to render refugee protection decisions that may contradict the political interests or convictions of the government of the day...Having refugee decisions made by employees of the Public Service calls into question the impartiality of the reconstituted Refugee Protection Division and its separation from political considerations of the government in power.

The current asylum system in Canada has its legislative foundations in Bill C-11, the Balanced Refugee Reform Act, passed in June 2010 and in effect since June 2012 and Bill C-31, the Protecting Canada’s Immigration System Act of 2012 (see here). The Acts have been subject to significant criticism from a number of legal and advocacy groups including Amnesty International Canada, the Canadian Bar Association, the Canadian Council for Refugees, and the Refugee Lawyers Association. Notably, concern has been raised as to the limited appeals period of 15 days for claimants denied by the adjudicators, an impossibly short period of time for refugees.

Conclusion

The EIDN report comes at a time of increasing dante over detention practices within Canada. Social movement groups are actively trying to raise awareness about detention practices and to challenge government officials about migration polices more broadly (including around proposed citizenship changes and temporary foreign workers programs). Detainees, too, are taking dramatic actions, with support from broader coalitions.  On 2 June 2014, more than 100 immigrants in three maximum security prisons in Ontario launched a boycott of their detention reviews, claiming that the process is inherently biased, unfair, and unlikely to bring favorable results. Some detainees have started hunger strikes. Two detainees maintained their hunger strikes for 65 days. Such actions can be risky; immigration authorities have deported some of the key strike organizers. Although a few have been released, others have been moved into different prisons across Ontario. Hunger strikers in prisons have been locked up in segregation. In this context, the EIDN report is an important step towards greater public knowledge about Canada's hidden system of immigration detention.

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How to cite this blog post (Harvard style):

Shantz, J. (2014) Hidden Away: Policies and Politics of Immigration Detention in Canada. Available at: http://bordercriminologies.law.ox.ac.uk/hidden-away-canada (Accessed [date]).