More safeguards needed for detainees
Deprivation of liberty is one of the most invasive measures a government can take against an individual.
Yet Canada remains one of only a few liberal democracies in the world without a legislated limit on the length of time an immigration detainee can be held behind bars for purely non-criminal, administrative reasons. In one instance, an immigration detainee was held for more than 11 years. Children can also be detained.
This week, Canada responded to 275 recommendations from member states on the United Nations Human Rights Council to improve its human rights record. Canada was urged to stop detaining children and to enact a maximum length of time that anyone can spend in immigration detention.
Regrettably, Canada did not accept any of the recommendations on immigration detention and missed yet another opportunity to live up to its international human rights obligations on this issue.
Instead of agreeing to introduce essential legal safeguards, the federal government will continue to rely on non-legislative measures that can be easily undone, and which ultimately fail to guarantee meaningful protection against human rights abuses.
Over the past five years, Canada has detained more than 35,000 people. The number of detentions is increasing. Last year, Canada detained 8,355 people, the largest number since 2012-13.
It is crucial that robust legal safeguards be enacted to ensure that when deprivation of liberty happens, it is justifiable. Although such safeguards exist in our criminal justice system, they are woefully inadequate in the immigration detention system.
Today, non-citizens in Canada may be jailed without charge, without a countdown to a date of release, without access to basic mental health services and rehabilitation programs, and without adequate access to a meaningful judicial review.
Advocates have long called for reform in the immigration detention system, including in a joint submission to the UN’s Universal Periodic Review by the University of Toronto’s International Human Rights Program, Amnesty International and the Canadian Civil Liberties Association, among others.
A recent external audit commissioned by the government found a significant lack of procedural fairness in detention review hearings.
Adjudicators are misinterpreting or outright ignoring basic facts of the cases before them, compromising their independence by relying uncritically on allegations made against detainees, and discouraging or even disallowing detainees to present evidence and test evidence presented against them.
The Federal Court and Superior Courts across the country have also drawn attention to these problems. One judge went as far as referring to Canada’s immigration detention system as Kafkaesque.
Ottawa does deserve some credit. Over the past year, the government has issued policies, directives and guidelines with respect to immigration detention.
These are important stepping stones, but not the ultimate answer to meaningfully address the shortcomings. They amount to rules written in pencil that can be easily erased.
As part of its engagement with civil society across the country during the UN review process, the government compiled a document entitled “What We Heard.” The report acknowledges that “at every engagement Canada was urged to dramatically revise its immigration detention regime and better align it with Canada’s international human rights obligations.”
Regrettably, the government seems content to simply listen and do very little to meaningfully remedy and prevent human rights abuses in the immigration detention system.
Hanna Gros is an immigration and refugee lawyer and advocate for the International Human Rights Program at the University of Toronto’s Faculty of Law. Samer Muscati is director of IHRP.