Is CBSA above the Rule of Law? Silenced Voices: Canada’s mistreatment of immigration detainees

The recent recommendations of the B.C. coroner’s inquest into the suicide of a Mexican migrant in Vancouver and a new investigative series reported by Global News this past month have re-ignited the debate around CBSA’s questionable detention practices and the mistreatment of its detainees.

Under the authority of section 55(1) and (2) of the Immigration and Refugee Protection Act (IRPA), a CBSA officer may detain or arrest a person on entry into (and within Canada) if it has reasonable grounds to believe that the person is inadmissible and is either a danger to the public, is unlikely to appear for an examination, an admissibility hearing or a removal order (a flight risk) or lastly, because it is not satisfied of the identity of the foreign national.[1]

A 2012-2013 report by The Canadian Red Cross Society (CRCS) which monitors the treatment and conditions of persons detained in Canada under the Immigration and Refugee Protection Act (IRPA) identified eight areas in which significant protection gaps were present and made strong recommendations to improve those areas. These problem areas included[2]:

The Dangerous Impact of Co-mingling

A deep concern addressed in the report is the continued and disturbing practice of co-mingling immigration detainees with criminal offenders in provincial and federal detention facilities.

Co-mingling presents a greater degree of risk to immigration detainees who are co-mingled with a volatile corrections population, some serving, or awaiting trial (in the case of a remand or pre-trial facility) for violent or gang-affiliated crimes. The CRCS is concerned that immigration detainees could inadvertently experience physical, psychological or emotional harm due to exposure to violent or gang-affiliated criminals.[3] [Emphasis added]

Pam Shrialdini, the common-law partner of an Iranian man in detention in a maximum-security prison in Lindsay, Ontario tells a reporter:

“He has no criminal (background) and he’s in a maximum-security facility here in Lindsay. He’s locked down most of the time, so it’s a very stressful time for us, and also for him too. I’m concerned about his safety inside the jail.”[4]

Her partner, Masoud Hajivand, had been living in Canada for seven years before his arrest. His initial claim in 2007 was rejected by the Immigration and Refugee Board. He stated that he was fled Iran after a police crackdown on protestors. His younger brother was killed during one of the protests.[5] He was called for deportation in 2011 but failed to present himself. He admitted in an affidavit that his conduct was wrong and that at the time he was “in a complete panic” and “didn’t know what else to do”.[6] He was terrified to return to Iran and so he continued to live in Canada. He eventually fell in love with Shrialdini and converted to Christianity. He now fears for his life if he is sent back to his home country; Iranian law “allows for the application of capital punishment in cases of apostasy.”[7] He tried to kill himself when CBSA tried to deport him back to Iran for the second time this year. Despite a removal order being in place, he is still unsure of his fate.

Hajivand’s lawyer says the stalemate is whether CBSA can oblige Air Canada to pay for a charter flight for Hajivand, since his bitter resistance makes it impractical to put him on a commercial flight. He estimates the cost at about $300,000.

In the meantime, lawyers for the government say Hajivand’s fear of being deported to Iran make him enough of a flight risk to warrant his continued incarceration.[8]

Immigration detention in Canada can have significant negative repercussions on the emotional, physical and mental state of detainees as detention can be indefinite, having no maximum time limit.

Immigration lawyer, Guidy Mamann points out that detainees can end up in provincial jails or higher security prisons because of health issues since more lenient facilities may not provide adequate services. In addition, the co-mingling of criminal offenders and immigration detainees in these provincial jails can have detrimental effects on the health and well-being of these vulnerable individuals.

“We’ve heard credible complaints of multiple sexual abuse of people who have no criminal record, and who want to say nothing during or after these experiences. During, because no one’s going to care, and you’re in a vulnerable situation, and after, because ‘I just want to put it behind me, I don’t want to remember it, and I certainly don’t want my spouse to find out what happened.’”[9]

Canada is clearly failing to abide by the minimum international standards required by the International Covenant on Civil and Political Rights which Canada is a party to since 1976)) and the United National Standard Minimum Rules for the Treatment of Prisoners.

According to Guideline 8 of the revised version of the Detention Guidelines for Asylum seekers published by the UN in 2012:

Detention of asylum-seekers for immigration-related reasons should not be punitive in nature. The use of prisons, jails, and facilities designed or operated as prisons or jails, should be avoided. If asylum-seekers are held in such facilities, they should be separated from the general prison population. Criminal standards (such as wearing prisoner uniforms or shackling) are not appropriate.

 

CBSA also needs to ensure better access to mental health services for detainees especially those in provincial facilities where they are at a greater risk of developing mental health issues as a result of co-mingling with often dangerous and violent offenders.

A Deep Concern: Detention of Minors

The detention and treatment of minors continues to be an area of particular concern and requires improvement according to the 2012-2013 Red Cross report. Children remain one of the most vulnerable groups of persons. Through its investigation, the Red Cross found that “[s]ome of these impacts could significantly negatively affect the emotional, social and psychological well-being of a minor.”[10] According to Article 37 of the UN Convention on the Rights of the Child, children must only be detained “as a measure of last resort and for the shortest appropriate period of time”.

In 2012, an estimated 291 minors were detained in Canada under the IRPA. “Of those detained, 288 were held in federal facilities and three were held in provincial facilities (two in Ontario and one in British Columbia). These include unaccompanied and accompanied minors on a formal detention order.”[11] However, the actual numbers may be even higher. The Red Cross remains concerned that these statistics do not adequately reflect the number of minors detained across the country including accompanied minors who are Canadian citizens and are not part of a formal detention order. In addition, “[i]nspectors found the border agency had no facility that could appropriately accommodate a complete family unit of mother, father and children — or a father with child — without having to separate family members.”[12]

The CBSA needs to always ensure that the best interest of the child is a primary consideration when detaining a minor. In its recommendation, investigators from the Red Cross firmly stated that CBSA has “an obligation to consider alternatives to detention for all minors. Deprivation of a minor’s liberty must only be used as a measure of last resort and for the shortest period of time.”[13] It also recommended that a national minor policy and operating procedures be implemented by CBSA to govern both the conditions and treatment of minors in detention. Of course, any policy must also take into account any additional vulnerabilities of the minor, such as mental or health issues, minors that have been trafficked or requier special physical or mental support.

Many critics and advocates are troubled by the sweeping and unsupervised powers the CBSA currently holds in regards to immigration detention. These individuals are victims of a system they do not understand and for many their stories often go unheard because of their fear of being deported or detained indefinitely. A vast majority of detainees do not have related criminal offences but their treatment by immigration authorities paints a bleak picture.

Stuck in Limbo

Immigration detainees are often stuck in limbo. CBSA will not allow them to enter or stay in Canada but will often also not allow them to leave the country either. That was the case for Csaba Csizmar, a Hungarian citizen who was detained for six weeks at Rexdale immigration detention centre before being allowed to return home to Serbia. He was denied entry into Canada on Sept. 2 because an immigration officer was not satisfied that he would leave at the end of his authorized period of stay. He was coming to visit his friend, Zsuzsanna Losci with whom he had started a romantic relationship over the Internet two years ago. She was still finalizing her divorce and they wanted to meet in person to get to know each other better before taking their relationship further. She had also planned on visiting his family in Serbia. However, their plans were short lived as CBSA continued to detain Mr. Csizmar as they believed he was a flight risk (that he not show up for his removal).

At an admissibility hearing on September 26, it was determined that Mr. Csizmar would have to leave the country. Csaba did not argue this finding and was prepared to leave immediately. According to CBSA policy, removal orders should always be enforced as soon as possible.

Mr. Csizmar is not a criminal; he was simply coming to visit his friend in Canada. For a month and a half, he was deprived of his fundamental right to freedom because of an administrative oversight by CBSA. His total stay in detention cost taxpayers an estimated $11,044.[14]

Nagendra Selliah, a paralegal hired to represent Csaba at his first detention hearing called the situation “bizarre” in an interview with the Toronto Star back in October.

“This guy never claimed refugee status,” said Nagendra Selliah. “They could have turned him back at the airport and sent him home in two days … Now they’ve kept this man in detention for five weeks. He’s just sitting here, and the taxpayer is paying for it.[15]

Abuse of Power, Need for Oversight and Better Management

The death of Ms. Vega Jimenez, a 42 year-old Mexican woman last December was a prime example of CBSA’s reckless management and the urgent need for independent oversight of its activities. Jimenez was arrested on December 1, 2013 after Transit police identified her as being wanted by CBSA on immigration matters. Jimenez was first held at a women’s maximum security prison just outside of Vancouver. She was later transferred to a holding cell at the Vancouver airport where she attempted to kill herself after being held in custody for three weeks. She succumbed to her injuries and died eight days later in the hospital.[16]

A private security firms was contracted by the CBSA to guard the facility when Jimenez tried to commit suicide. There were supposed to have three guards checking on the detainees during the morning when Ms. Jimenez tried to commit suicide. There was only one male guard present. A coroner’s inquest revealed that the firm committed many errors while conducting its duties. More than 40 minutes had gone by, with no one checking on Jimenez despite the fact that security guards were supposed to be checking on immigration detainees every 30 minutes.[17] The jury made recommendations including:

… access to legal counsel, medical services, NGO’s, spiritual and family visits, along with monitored Internet access. Telephones should also be readily available and should include local calls and international calling cards. The jury would also like to see suicide prevention training be made mandatory for all CBSA and subcontracted security companies, along with mental health courses.[18]

According to Claudia Franco Hijuelos, Consul-general of Mexico in Vancouver, Jimenez “feared being deported due to a domestic situation at home.”[19]

CBSA has such broad powers of arrest, detention and deportation since its inception more than a decade ago, that some advocates and critics alike say that they are virtually “unstoppable” without independent oversight of the organization that boasts approximately 13,000 employees. In the face of such sweeping powers, many advocates argue that these individuals find themselves in very vulnerable situations, feeling helpless and afraid to speak out.

Refugees and detainees don’t report incidents of bullying, threats or abusive interrogations fearful of being deported or imprisoned, says Janet Dench, executive director of the Canadian Council for Refugees. There is a litany of abuses – both big and small – occurring across the country, she and others believe.[20]

A former CBSA senior officer, Reg Williams believes many of the agency’s deficiencies could be solved administratively “by tightening supervision and management”.[21]

The problem lies with management of the CBSA, says Williams, who took early retirement from his post as director of the Greater Toronto Enforcement Centre in 2012 when he was abruptly transferred to another job after the deportation of a detainee failed. “There is no management of officers,” he says. “There’s no management of cases … The philosophy is: “I’m in my office. I’m closing my doors. I’m not involved in the day-to-day operation.”

The CBSA is not above the rule of law. It has to respect the basic rights and dignity of all detainees held for immigration matters- no matter what their status is in Canada. CBSA has an obligation to ensure that their conditions of detention are always humane and dignified. It seems that a combination of poor management, a lack of independent oversight and a forgotten sense of its duty to respect the rights of all migrants are problems plaguing the organization. The unjust and arbitrary deprivation of any individual’s right to liberty is an issue of fundamental importance for all Canadians to be concerned about.

[1] CBSA officers also has authority under section 55(3) of the IRPA in order for the examination to be completed or if it has reasonable grounds to suspect that the individual in question is inadmissible for security reasons or for violation of human (or international) rights.

See CIC Enforcement Manual (20), available online at: http://www.cic.gc.ca/english/resources/manuals/enf/enf20-eng.pdfat p7.

[2] Canadian Red Cross Society 2012-2013 Annual Report on Detention Monitoring Activities in Canada, available online at : http://vipmedia.globalnews.ca/2014/11/red-cross-reports-on-canada-s-immigration-detention-system.pdf at p6. Hereinafter, [CRCS Report]

[3] CRCS report, Supra n. 2, p25.

[4] Patrick Cain, Global News ,‘I’m not a criminal’: Jailed with no charge, no sentence, no oversight’ (November 5, 2014), available online at: http://globalnews.ca/news/1618257/im-not-a-criminal-jailed-with-no-charge-no-sentence-no-oversight/ . Hereinafter, [Global Report].

[5] See Affidavit of Masoud Hajivand (October 3, 2014), see para. 6, available online at:http://www.scribd.com/doc/245643195/Affidavit-of-Masoud-Hajivand.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] CRCS Report, Supra n1, at 20.

[11] CRCS Report, Supra n1, at 21.

[12] Jim Bronskill, The Star, Red Cross uncovers problems facing canadian immigration detainees (Sept. 25, 2014), available online at: http://www.thestar.com/news/canada/2014/09/25/red_cross_uncovers_problems_facing_canadian_immigration_detainees.html.

[13] CRCS Report, Supra n1, p41.

[14] Marco Chown Oved, Star News, Hungarian visitor denied entry and detained six weeks finally allowed to go home (October 15, 2014), available online at:http://www.thestar.com/news/immigration/2014/10/15/hungarian_visitor_denied_entry_and_detained_six_weeks_finally_allowed_to_go_home.html

[15] Marco Chown Oved, Star News, Can’t get in, can’t leave — stuck in immigration limb (October 9, 2014), available online at:http://www.thestar.com/news/immigration/2014/10/09/cant_get_in_cant_leave_stuck_in_immigration_limbo.html.

[16] Andrea Woo, The Globe and Mail, Documents reveal CBSA expected scrutiny for contracting out security (Nov. 10, 2014), Available online at: http://www.theglobeandmail.com/news/british-columbia/documents-reveal-cbsa-expected-scrutiny-for-contracting-out-security/article21530607/. Hereinafter, [The Globe and Mail article]

[17] Amy Judd, Global News, Jury recommendations in case of Lucia Jimenez include self-harm proofing of bathrooms (Oct. 8, 2014), available online at:

Jury recommendations in case of Lucia Jimenez include self-harm proofing of bathrooms

[18] Ibid.

[19] The Globe and Mail article, Supra n14.

[20]Debra Black, The Star, Does Canada Border Services Agency need oversight? (Nov. 2, 2014), available online at: http://www.thestar.com/news/canada/2014/11/02/does_canada_border_services_agency_need_oversight.html.

[21] Ibid.