Watch Super Detention

[Heberto Calderon]

Thereis also evidence that provincial authorities are in potential breach of the human rights provisions included in their bilateral agreements with federal authorities. In particular, provincial authorities are in potential breach of their legal obligations under their respective agreements to provide just and humane treatment in provincial jails, as well as to avoid co-mingling immigration detainees with criminally accused and convicted individuals in those facilities.

In June 2021, Human Rights Watch and Amnesty International called on Canada to gradually abolish immigration detention.[8] Under no circumstances should a person for immigration-related reasons be treated in a punitive manner, including being subjected to solitary confinement or detained in prisons or jails.[9]

Detainees in immigration holding centers are repeatedly searched and they are under constant surveillance by uniformed guards and cameras.[15] Immigration holding centers have centrally-controlled locked doors and movement within different areas of the facilities is restricted, requiring a guard escort.[16] Some basic personal effects, like mobile phones and electronic devices, are banned.[17] Communication with loved ones, legal representatives, and community supports is restricted to phone calls using the immigration holding center phones or in-person visitation at designated times.[18] Detainees who fail to abide by the strict rules may be punished with isolation, including in conditions akin to solitary confinement, withdrawal of privileges such as visits, or even transfer to a provincial jail.[19]

Provincial jails are designed to detain individuals awaiting criminal court proceedings or serving criminal sentences of up to two years.[23] Immigration detainees across the country are routinely held in the same wings and cells as detainees who are held on criminal charges or convictions.[24]

Immigration detainees who are incarcerated in provincial jails are not only confined in more restrictive settings than those held in immigration holding centers, but they are also more likely to be detained for longer periods of time. For example, in 2019, immigration detainees who were held for 90 days or longer were more likely to be held in provincial jails than immigration holding centers.[32] That year, 78 percent of immigration detainees held for 90 days or longer spent at least part of their detention in a provincial jail.[33] In the same year, 85 percent of detainees held for 180 days or longer were incarcerated in provincial jails, and all detainees who were held for 270 days or longer were detained in provincial jails.[34]

CBSA incarcerates immigration detainees in provincial jails on the basis of bilateral agreements between the federal government and the provinces of British Columbia, New Brunswick, Nova Scotia, Quebec, Ontario, Alberta, and Saskatchewan.[40] In the remaining provinces, agency representatives said CBSA has arrangements to hold immigration detainees in provincial jails.[41]

Agreements and arrangements allowing federal immigration detainees to be incarcerated in provincial jails are inconsistent with international human rights standards as incarceration in these facilities is inherently punitive in nature and not suited nor permitted under international standards for use in immigration detention.

The detention of asylum seekers or other irregular migrants must not take place in facilities such as police stations, remand institutions, prisons and other such facilities since these are designed for those within the realm of the criminal justice system.[63]

A heightened duty of care to take any necessary measures to protect the lives of individuals deprived of their liberty by the State, since by arresting, detaining, imprisoning or otherwise depriving individuals of their liberty, States parties assume the responsibility to care for their lives and bodily integrity, and they may not rely on lack of financial resources or other logistical problems to reduce this responsibility.[68]

The treatment of immigration detainees also raises concerns. In 2016/17, there were over 1,200 immigration admissions to Ontario's provincial correctional institutions. Despite not having been accused or convicted of any crime, immigration detainees face indefinite periods of detention in maximum security settings where they are regularly strip searched, confined to their cells, and can receive only limited personal visits. Maintaining contact with family members overseas can be difficult: long distance overseas calls are not generally permitted. At least one institution excludes immigration detainees facing deportation from participating in work programs and ministry policy significantly restricts immigration detainees' access to temporary absences. Only one institution has dedicated units for immigration holds; in all other institutions, contrary to international standards, immigration detainees are held on units with other inmate populations. [emphasis added][75]

Although the majority of the agreements acknowledge that immigration detention is administrative in nature,[83] they also provide that the conditions of detention as well as the treatment and privileges of immigration detainees are as specified by the relevant Corrections Act, Regulations and associated policies and procedures.[84] The provinces of New Brunswick and Nova Scotia specifically provide that authorities will treat immigration detainees in the same manner they do all detainees in a correctional facility.[85] This confirms that although immigration detainees are held exclusively under immigration law, they are subjected to the same conditions and treatment as persons incarcerated under criminal law in provincial jails.

According to evidence that researchers collected from former immigration detainees, lawyers and other service providers, provincial authorities are in potential breach of their legal obligation under their respective agreements to provide just and humane treatment in provincial jails.[86]

Immigration detainees are routinely handcuffed, searched, and restricted to small spaces with rigid routines and under constant surveillance, with severely limited access to the outside world.[87] Many immigration detainees are confined in tense and dangerous environments where they may be subjected to violence, and they are also subjected to solitary confinement.[88]

According to provincial government data, in fiscal year 2019-20, among the 1066 immigration detainees held in Ontario provincial jails, 17 per cent (176 detainees) were placed in solitary confinement at least once.[101] That year, 46 percent of immigration detainee placements in solitary confinement involved persons with a mental health alert and/or a suicide alert, and 13 percent lasted for 15 or more days.[102] Nearly half (45 percent) of immigration detainees placed in solitary confinement for 15 days or fewer had a mental health and/or suicide alert in place.[103] A much higher percentage of those held for long periods of time had such alerts: 77 percent of those held in solitary confinement from 30 to 90 days had an alert, and all five immigration detainees held in solitary confinement for 90 days or more had a mental health or suicide alert.[104]

Researchers spoke with three former immigration detainees who reported that they witnessed authorities using solitary confinement in response to detainees expressing suicidal thoughts.[113] One former immigration detainee described his mental health assessment by a CBSA officer upon arrest in Toronto, after which he was placed on suicide watch for 24 hours:

[10] Immigration detainees have access to regularly scheduled detention review hearings conducted by a tribunal: the Immigration Division of the Immigration and Refugee Board, an independent quasi-judicial body (Immigration and Refugee Protection Act, sections 56-57). The tribunal is limited in the scope of its review: it can only order continued detention or release from detention. The tribunal may consider conditions and site of detention within its decisions, but CBSA has full authority to decide where to hold immigration detainees. The tribunal has no jurisdiction to order changes to conditions of detention and no jurisdiction to review the appropriateness of the site of detention. See Brown v. Canada (Citizenship and Immigration), 2020 FCA 130; Ebrahim Toure v. Minister of Public Safety, 2017 ONSC 5878, paras. 71-72.

[32] Canada Border Services Agency, untitled, document number 2019-21550, unpublished document on file at Human Rights Watch and Amnesty International, December 10, 2019 (accessed under Access to Information Act).

[106] Ibid. Solitary confinement is known by different terms, but these terms can involve different factors. See UN General Assembly, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, -dds-ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf, para. 26.

This report examines serious lapses in health care that have led to severe suffering and at times the preventable or premature death of individuals held in immigration detention facilities in the United States. The lapses occur in both publicly and privately run facilities, and have persisted despite some efforts at reform under the Obama administration, indicating that more decisive measures are urgently needed to improve conditions. At time of writing, it was unclear how the Trump administration would address the issue, but its pledge to sharply increase the number of immigrants subject to detention and reports it is also planning to roll back protections for immigrants in detention, raise serious concerns that the problems fueling the unnecessary suffering could grow even worse.

Medical care in the US immigration detention system, and the poor system of oversight that allows substandard care, has long been the target of criticism by investigative journalists and human rights advocates. This is the third report Human Rights Watch has released on medical care in immigration detention since 2007, and one among many reports by civil and human rights organizations on conditions in such facilities nationwide.

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