Canada’s immigration authorities locked up nearly 1,500 nonviolent immigration detainees in maximum-security jails last year, the Star has found.
These detainees have been incarcerated in the most restrictive conditions possible alongside sentenced criminals and those awaiting trial on serious charges.
While they may have criminal records, the detainees were not considered dangerous by the Immigration and Refugee Board. Almost all were detained solely on the grounds that they were unlikely to appear for their immigration hearing.
A Star analysis of government statistics from April 1, 2017 to March 31, 2018, found that 80 per cent of immigration detainees held in provincial jails — rather than less restrictive immigration holding centres — were not detained on the grounds that they were dangers to the public. Data from the months since then shows the rate is unchanged. All provincial jails are maximum security.
“It’s abhorrent for the government to be placing people in maximum-security jails that it acknowledges are not a danger,” said Subodh Bharati, an immigration lawyer at the Community and Legal Aid Services Program at Osgoode Hall Law School. Bharati said that by the government’s own description, immigration detention is explicitly administrative and not punitive. “But incarceration in a maximum-security jail is punitive by its very nature.”
Public Safety Minister Ralph Goodale has for several years repeated his government’s commitment to “minimize the use of provincial jails” for immigration detainees as part of an overall plan to create a “better” and “fairer” system for immigration detention in Canada.
While the Liberals have reduced the use of jails — roughly one-third of all immigration detainees were sent to provincial jails under Stephen Harper’s Conservative government, compared to 20 per cent last year — the latest statistics show that more than three years after Goodale’s Liberals took power, Canada continues to routinely use them for nonviolent detainees.
“Among that population is people who have been trafficked and asylum seekers who may be recovering from trauma of one kind or another,” said Jared Will, an immigration lawyer who has long challenged Canada’s immigration detention system. “You’re putting them in a terrifying and sometimes objectively dangerous environment when there’s no justification for doing it whatsoever.”
Goodale declined to be interviewed for this story, but a spokesman provided a written response to the Star’s questions, saying the government has made a number of changes and continues to work to “dramatically reduce” the use of provincial jails for immigration detention.
Scott Bardsley cited the expansion of alternatives to detention, revamped risk assessments of detainees and the ongoing upgrades to immigration holding centres as among the government’s efforts. “We are implementing reforms in an effective and orderly way that maintains public safety.”
The use of jails and the “co-mingling” of immigration detainees with criminal detainees has been repeatedly cited by human rights groups, detainee advocates and the United Nations as a major problem with Canada’s immigration detention system.
“We would never take these sorts of measures against citizens,” said Hanna Gros, a lawyer at the University of Toronto’s International Human Rights Program. “But somehow it’s okay to take these measures against non-citizens, who are often not criminals and most certainly not serving time for any criminal behaviour.”
Ebrahim Toure, who had no history of violence and was not considered a danger to the public, spent the first four-and-a-half of his five-and-a-half years in immigration detention in a maximum-security jail. The Canada Border Services Agency said he was a “higher risk” detainee due to his “criminality” in the U.S., which consisted of a decade-old conviction for selling pirated CDs and DVDs, an offence for which he served no jail time.
A year before he was eventually released from detention, Superior Court Justice Alfred O’Marra ordered Toure’s immediate transfer to an immigration holding centre, saying that detaining him in such restrictive conditions was “grossly disproportionate” to the risk he posed and the reason he was being detained. O’Marra noted that Toure had spent more time in maximum-security jail “than someone convicted of a serious crime of violence.”
Immigration detention in Canada occurs in two types of facilities: federal immigration holding centres, of which there are three across the country, and provincial jails.
Immigration detainees are not criminally charged, but when they are sent to a provincial jail they are treated the same as any other prisoner. They wear orange jumpsuits, are regularly strip searched and are subject to frequent lockdowns — when they are confined to their cells without being able to shower, go outside or see visitors. Sometimes a lockdown lasts days or weeks.
Immigration holding centres are medium-security facilities exclusively for immigration detainees. Detainees are not locked in their rooms, are able to move much more freely within the facility and have easier access to phones and visitors. There is one in Toronto, one outside Montreal in Laval, Que., and a short-term holding centre at the Vancouver airport that will soon be replaced by a new facility in Surrey, B.C. None of the immigration holding centres are at or near capacity.
The Canada Border Services Agency has the power to indefinitely detain non-citizens on one, or a combination, of the following three grounds: They are a danger to the public; they are unlikely to appear for their deportation or other immigration matters (what officials call “flight risk”); or their identity is in doubt.
After a person is detained, they have a quasi-judicial hearing at the Immigration and Refugee Board, where the CBSA makes its arguments and a government-appointed adjudicator decides whether detention should continue. Some detainees have lawyers, but many represent themselves at the hearings, which occur after the first 48 hours, seven days and then every 30 days thereafter.
What is not discussed at the hearing is in what kind of facility the detainee will be held. That decision is made solely by the CBSA and is not subject to any external oversight. This aspect of the system was criticized by Justice O’Marra, who, when ordering Toure’s transfer to an immigration holding centre in 2017, said the current system “contains no mechanism to ensure proportionality between the flight risk which he has been found to be and the actual conditions of his detention.”
To determine where a detainee will be placed, a CBSA officer fills out a form known as a National Risk Assessment for Detention, which was revised last year. The Star revealed problems with the risk assessment forms in 2017, including officers leaving key areas blank and, in one instance, an officer admitting on the form that they had not been trained to fill it out. The new form has been in place since last February.
Detainees used to be classified as high, medium or low risk, but they are now graded on a point scale based on nine questions intended to assess their relative risk. A history of violent behaviour or associations with organized crime, for example, will lead to a higher risk score and a placement in a provincial jail. Detainees with no history or association with violence should score lower on the risk scale and be sent to an immigration holding centre.
The new form still allows considerable discretion. If a detainee scores between five and nine points, it’s up to the officer filling it out whether they are sent to a provincial jail or immigration holding centre. If an immigration detainee is apprehended outside of the greater Toronto, Montreal or Vancouver areas, they are often automatically sent to a provincial jail, regardless of the risk they pose.
The CBSA said it has “observed a significant reduction” in the use of jails since the revised NRAD form was implemented nearly a year ago. First-quarter statistics from the current fiscal year show the number of detainees sent to jails declined by two percentage points compared to the prior year’s rate.
The CBSA said they have been reviewing cases “on a regular basis to ensure that the placement of individuals is appropriate and in line with their determined level of risk.”
One of the most confusing explanations the government has given for why it has relied so heavily on provincial jails for immigration detention is that its own immigration holding centres were not equipped to handle the kinds of detainees its policies said they should. Detainees with nonviolent criminal records should be held in an immigration holding centre, not a provincial jail, according to CBSA’s detention guidelines. But Toronto’s Immigration Holding Centre needed to be renovated so they could accommodate such detainees. Renovations were originally scheduled to be completed last July, but now the agency says it will be spring before they are finished.
Meanwhile, new immigration holding centres in Surrey and Laval are expected to be complete by the end of this year and 2021, respectively. The new facilities, which will replace existing ones, will allow the CBSA to make them the “default detention location for most detainees,” Bardsley said. The government says provincial jails will still be used for the “highest risk” detainees and in parts of the country where there is no immigration holding centre.
The Central East Correctional Centre, a maximum-security provincial jail in Lindsay, Ont., is home to hundreds of immigration detainees each year, including many who have been detained for months or years. The so-called “superjail,” which can hold up to 1,184 prisoners, is notorious for its high number of lockdowns and incidents of violence. Last February, correctional officers at the jail walked off the job citing unsafe work conditions.
It’s where Toure, who was released in September on a number of conditions, spent the bulk of his half-decade in detention before his court-ordered transfer to the Immigration Holding Centre. He told the Star in a recent interview that he was randomly attacked by other inmates on two occasions during his time at Central East. In one instance, he said he was hospitalized after being sucker-punched. “When you’re in jail you never feel safe,” he said.
Toure said that while he was inside the Immigration Holding Centre, his quality of life was much better than it was at Central East. “When they put you in Lindsay, you’re a criminal,” he said. “Those guards don’t know who you are and they aren’t going to treat you any different.”
The harsh conditions of the jail included twice-a-week strip searches, when jail guards would order him to undress and then handcuff him before they searched his mouth and anus. Lockdowns were also frequent. Records entered as evidence in Toure’s court challenge showed that all of his lockdowns added up to nearly a year-and-a-half confined to a six-by-12-foot cell. Toure says he once endured a single lockdown of more than two weeks.
Immigration detainees in provincial jails are also subject to solitary confinement, sometimes for several months at a time. Forty-five immigration detainees in Ontario jails spent time in solitary confinement between April 1 and May 31 of last year, according to a snapshot of government statistics released in November as part of a legal settlement. One-third of those detainees spent more than 15 consecutive days in segregation, including four who had been segregated for more than 130 consecutive days. United Nations guidelines recommend a 15-day limit on solitary confinement. All four of the detainees who spent more than 130 days in solitary were segregated for “multiple reasons,” according to the data. All four also had a mental health “alert,” signalling possible issues with their mental health.
At Toure’s court challenge, a psychiatrist testified that Toure — who was never put in segregation — suffered from “major problems” with his mental health, including auditory and visual hallucinations. The psychiatrist could not say whether Toure’s mental health problems were caused by his indefinite incarceration in a maximum-security jail, but he said they were definitely exacerbated by it.
Toure says he only started hearing voices during his time in jail. He said he still has nightmares and often wakes up screaming.
Brendan Kennedy is a Toronto-based investigative reporter. Follow him on Twitter: @BKennedyStar