Reflections on Canada’s Detention Overhaul

Post by Efrat Arbel, Assistant Professor at the University of British Columbia Peter A. Allard School of Law. Dr. Arbel researches and publishes in Canadian constitutional law, refugee law, and prison law.  Her current research examines how rights are determined and defined along the Canada-US border, and explores the connections between Canada’s bordering practices and its immigration detention regime. Combining her academic work with legal practice, she is also engaged in advocacy and litigation involving refugee and prisoner rights. Follow her on twitter @earbel. This is the fifth instalment of Border Criminologies’ themed series on 'Immigration Detention in an Era of Mass Mobility' organised by Mary Bosworth.

Canada’s immigration detention regime is currently undergoing a $138 million overhaul to improve detention conditions for migrants and refugees.  This initiative was announced in August 2016, after several high-profile deaths in detention and numerous calls for reform. As critics have long argued, Canada’s detention regime suffers from deep and systemic problems, including a lack of oversight, no upper time limits, inadequate facilities, and widespread detention of children and the mentally ill. The overhaul efforts promise to address some of these problems - for example, through the development of new facilities, alternatives to detention programs, and better mental health support. The overhaul efforts’ broader goal, as Minister Ralph Goodale explained, is to ensure both “justice and compassion” by creating  “safer more secure and humane detention conditions”. More specifically, the overhaul efforts aim to make detention a “last resort” by expanding alternative programs and deploying community support.  The overhaul efforts also strive to improve conditions at detention centers, reduce reliance on jails for detainees, improve access to legal and spiritual advisers, provide better mental health and medical services, and strengthen partnerships with oversight groups like the Red Cross and the United Nations.

The government’s new strategy is both laudable and well meaning. Already, the Canada Border Services Agency (CBSA) has increased mental health training of staff at all detention centers, and enhanced access to medical services for detainees held in Toronto.  No less significantly, the CBSA has engaged in meaningful consultations with experts, stakeholders, and now the public at large to address some of the detention regime’s most egregious problems and effect change. I had the privilege of engaging with this consultation process as an invited participant, and was impressed by the good faith efforts of those involved.  I welcome the government’s efforts, and remain optimistic about the overhaul process as a whole.

Nonetheless, I worry. I worry that despite these good faith efforts, the overhaul process will be limited in its ability to effect meaningful change. This is because a fundamental disconnect exists between the government’s stated goals of creating a safer, more secure, and more humane detention regime and the legislative framework that governs the use of detention under Canadian law. The current legislative regime does not impose a strict time limit on detention orders. That is, while it mandates that detention be reviewed periodically, it does not require that it be subject to an upper limit. This means that migrants and refugees can be detained indefinitely, and also for indeterminate amounts of time. 

Readers of this blog will be familiar with some of the criticisms waged against the indeterminacy of detention. Mary Bosworth has written extensively about how uncertainty and unpredictability shape the lived experience of detention, and has analyzed the ways in which this experience is marked by anxiety and fear. Sarah Turnbull, writing about how detainees pass time in detention, has explored the experiences of waiting and uncertainty as defining of the experience of detention.

On the whole, critics and scholars agree that the indeterminacy of detention is fundamentally damaging, and can be psychologically crippling. The research is clear: the inability to know what is coming – to plan for a future, to know when detention will come to an end – can unravel us as human beings. 

Without a commitment to rewrite the law and impose clear time limits on detention, the Canadian government’s efforts to build a detention regime that is just and humane are likely to entrench the very problems they intend to address.  Even if the overhaul efforts bring better facilities, better access to medical care and mental health support, and better access to counsel (changes that are urgently needed and will profoundly improve detention conditions), absent clear legislative reform, they will fail in their goal of creating a fair detention regime. Without clear time limits, detention will always have the potential to dehumanize those who are subject to it.

My current research explores these ideas by reference to the law and practice of solitary confinement in Canada. Like detention, solitary confinement is also not subject to an upper statutory time limit, and is imposed indeterminately. Like with detention, the indeterminacy of solitary confinement has been shown to be mentally damaging and psychologically crippling. My work seeks to learn from the lessons of prison law to avoid the mistakes made there. My hope is that this research might aid the CBSA in developing a new framework that does not end up destroying and dehumanizing those in its care.

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How to cite this blog post (Harvard style)

Arbel, E. (2017) Reflections on Canada’s Detention Overhaul. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/05/mysterious (Accessed [date])