Concerns raised about immigration detention provisions in federal budget bill

The federal government’s budget implementation bill contains controversial provisions that would allow the Canada Border Services Agency (CBSA) to use federal penitentiaries to hold migrants in immigration detention.

The move comes after the provinces refused to renew agreements to house migrants in provincial facilities until the federal government can modify its existing holding facilities to house higher-risk migrants.

Civil society groups have opposed the plan, and several senators are trying to get the government to remove these provisions from the bill so that they can be dealt with separately.

“Immigration detention is a measure of last resort, reserved for people who pose a risk to the security of Canadians,” says Jean-Sébastien Comeau, spokesperson for Public Safety Minister Dominic LeBlanc.

“This includes individuals who have been charged with or convicted of serious crimes.”

He says alternatives to detention are in place and used by the CBSA in most cases. As of April 19, 2024, 42 people were being held in provincial correctional facilities.

Comeau adds that the provisions in the budget bill will ultimately allow the CBSA to handle more high-risk detainees in its facilities.

The World Refugee and Migration Council wants to see the plan scrapped. Former federal justice minister Allan Rock is among the Council members calling on the federal government to change course.

“This is a doubling down of a principle that is fundamentally wrong,” he says.

“The whole immigration system is an administrative process. It’s a question of determining the immigration status of a person, which is done by the examining the evidence, evaluating a claim for asylum or otherwise determining whatever issues are outstanding, ultimately resulting in a hearing before the [Immigration and Refugee Board].”

Rock says there is a fundamental principle that one ought not to mix the criminal justice system with those who are part of an administrative process.

Gabriela Ramo, the chair of the Canadian Bar Association’s (CBA) immigration section, says that the CBA’s concerns start with the idea of incarcerating individuals who have not committed a crime in most cases and detaining them in federal penitentiaries, which are typically reserved for the most serious of cases.

“When asked who these high-risk immigration detainees were, the minister’s answer was that these are not criminals, but individuals who have mental health concerns,” Ramo says.

“CBSA’s position seems to be that these are high-risk individuals who pose some danger to the safety of the public, but the reality is that they are equating them with someone who needs to be incarcerated in federal penitentiaries. Our concern is that these behavioural issues are grounded in mental health concerns, and indeterminate incarceration in federal penitentiaries will only exacerbate those concerns.”

LeBlanc’s office says that when detainees have identified mental health challenges, they are addressed upon arrival at a CBSA facility. From there, they are regularly monitored and have timely access to treatment and care.

Ramo notes that unlike prison sentences, which have an end date, immigration detention is indefinite, with a review every 30 days. There have also been instances of suicides in immigration detention. An inquest into the death of an immigration detainee recommended that these people should not be held in provincial jails, adding that it was not suggested to move them to federal penitentiaries.

Rock says that immigration detention facilities are already, in essence, medium-security jails.

“They have locks on the doors, they have guards, they have 24/7 surveillance, they have segregation cells, and you have to give up your cellphone,” Rock says.

All of which makes the plans in the budget bill unnecessary. What’s more, he says the immigration detention facilities have empty spots. CBSA and Corrections Canada testified before the Senate committee that that they expect to have fewer than 100 people in federal penitentiaries under the proposed regime.

“If they have 400 spots in the holding centres, in the rare cases where there is a threat to public safety, you have a facility run by the federal government which is readily available,” Rock says.

While there is a sunset clause in the government’s proposal, Ramo notes such clauses generally offer little protection as they are easily extended. The agreement between CBSA and the Correctional Service of Canada had not been finalized at the time of the committee study in the Senate. The federal government insists detainees housed in federal penitentiaries would not mingle with federal inmates. However, Ramo says that will require retrofitting existing penitentiaries. It could also see detainees wind up in what amounts to solitary confinement or in a small group, which could mean worse outcomes.

“They’re setting up this very draconian way of holding people,” she says.

There are three primary reasons for holding someone in immigration detention: being a flight risk, an inability to clearly ascertain their identity, and concerns about them being a threat. The position of groups like Human Rights Watch is that most people in immigration detention are because of being a flight risk. However, the CBSA told the Senate committee that most were because of serious criminality.

“Anecdotally, from what our members are seeing, people being detained because they are considered a flight risk,” Ramo says, adding it’s absurd to place someone in a federal penitentiary for that.

Retrofitting penitentiaries will cost millions of dollars. Yet, at the same time, existing programs where people can be released from immigration detention to work with local community organizations don’t have sufficient funding to cover all of the people they’re supposed to be helping. That’s leaving people who are supposed to be released languishing in detention.

“Why don’t we take those millions of dollars and instead of retrofitting federal penitentiaries, invest it in the local community organizations, so we can move the people out of immigration detention into the community where they’re supposed to be,” Ramo says.

Another major concern is that CBSA lacks independent oversight. The model proposed to create it in Bill C-20 has been criticized for being toothless.

“In the area of immigration detention, CBSA has inordinate power. They get to decide who is held in detention, for how long, for what reasons, with very little recourse,” Ramo says. “The fact that they have all of this power with no check and balance is hugely problematic.”

Rock echoes her concern given the agency’s “mile-wide discretion to put people in prison.”

“There are cases where they have manufactured evidence, where they harassed people who were detained, and there were no consequences for any of that,” he says.

The CBA has proposed putting time limits on immigration detention, which would bring Canada in line with most other European countries. Ramo says it’s important to remember that when an individual is held due to criminality, they’ve completed their sentences and are waiting to be deported.

“If these were Canadian sentences, we would no longer perceive them as criminals. We have already judged them and applied the correct sentence; they have served their time, and now we’re piling it on,” she says.

“When you do it in a federal penitentiary, it ups that even more.”

Ramo says that CBA table officers recently met with CBSA officials, who noted that these are individuals who can’t behave in immigration detention.

“The thing that struck me is they said, ‘We tell them that if you can’t follow these rules, there’s another place we can send you to.’ To me, that’s punitive,” she says. “You’re acting as judge, jury and executioner, and that’s not how our system is supposed to work.”

The CBA has also recommended that children never be separated from their parents, something the CBSA said it would consider. However, the agency’s lack of oversight is an obvious concern, particularly because while the decision to place someone in detention comes from the Immigration and Refugee Board, the decision about where to detain them rests with a CBSA officer.

LeBlanc’s office says that when parents are detained, CBSA works with them and child welfare authorities to make decisions in the child’s best interest. Children housed in immigration detention facilities are done so at the parent’s request, and only as a last resort. Within the CBSA facilities, there are separate family living and sleeping quarters, and they don’t co-mingle with other occupants.

Another concern is CBSA’s outsourcing of detainee surveillance to private companies. The agency will continue to outsource supervising of those in the federal penitentiaries to Garda World.

While the Canadian Red Cross has an agreement with the CBSA to monitor immigration detention facilities, the organization didn’t provide a clear answer when asked if that would extend to federal facilities should the legislation pass.

In the Senate, Sen. Pierre Dalphond, a former Quebec Court of Appeal judge, has moved a motion calling on the government to remove the section of the bill related to immigration detention before it reaches the Senate. He says the provisions deserve to be considered in a separate piece of legislation. As of press time, the motion had not yet passed, but Dalphond said that amendments proposed in the House of Commons, which would add more specificity to the provisions, might address some of his concerns.