This article has been roughly translated into English from its original version in French prepared for Blog Justice CFT, a French language blog run by the Legal Services of the Centre Francophone de Toronto, a community legal clinic serving francophones in the GTA where I am currently employed.
Canada detains migrants in circumstances that would be completely unacceptable to our criminal justice system. Detention is detention. Whether you are detained for reasons related to a potential removal from Canada or because you have committed or been accused of committing a crime, your loss of liberty is the same.
There is no lack of media coverage about the treatment of detainees, the promises to improve conditions within detention centres and the recent spate of deaths in immigration holding centres.
Rather than repeat what has already been discussed, I will focus on how the legal protections and rights afforded to people accused of crimes are absent from our immigration detention system despite the fact that both systems lead to the same result – detention.
Immigration detention 101
The criminal justice system incarcerates people regardless of status who are suspected or found to have committed crimes while the immigration detention system incarcerates non-citizens who may be facing removal from Canada for a variety of reasons. The people subject to immigration detention generally fall into two broad categories:
- foreign nationals who are, in one form or another, asking for Canada’s protection and fear returning to their home country
- Permanent residents and foreign nationals which the government wants to remove from Canada due to criminality
The Immigration and Refugee Protection Act (IRPA) lays out the grounds under which people can be subject to immigration detention. Permanent residents and foreign nationals can be detained under the IRPA for three main reasons:
- The individual is a danger to the public
- The individual’s identity has not been established
- The individual is a “flight risk” (which means the government thinks that the individual will not show up for proceedings or appointments that will lead to their removal)
After being detained, hearings called “detention reviews” are held to determine whether continued detention is justified within two days of being detained and then every 30 days. “Members” of the Immigration Division of the Immigration and Refugee Board determine whether to continue detention or release individuals with or without conditions at each of these hearings.
The stories and legal trajectories of individuals subject to immigration detention are often complicated, but it is important to note that many people being detained have not been accused of or found guilty of committing any crimes.
How our criminal justice system would see immigration detention
I am taking for granted that we all believe that people should be afforded similar rights and protections when facing incarceration whether they have committed crimes, been accused of committing crimes or are foreign nationals, citizens or permanent residents. With this in mind, I am now going to list aspects of our immigration detention system that would be completely unacceptable to any judge, justice of the peace or lawyer involved in the criminal justice system.
Concerns with the Immigration Detention System
- Absence of lawyers
Detention review hearings regularly proceed without a single lawyer present in the room. The representatives of the government seeking continued detention do not have to be lawyers. There is no requirement that detainees are represented by or seek legal advice from counsel before or during the hearings. Even the board members rendering decisions do not need to have had a legal education.
This is important because lawyers are regulated and have obligations of confidentiality, professionalism and honesty before the courts with serious consequences if these obligations are breached. When individuals representing either side in a detention review make errors and are not lawyers, the recourses available are not as straightforward.
In the criminal justice system, most individuals are represented by legal aid certificates, private lawyers or are assisted by duty counsel lawyers who staff every single courthouse of the province for many (but not all) important steps in the criminal process. The court also has the power to appoint lawyers and is reluctant to proceed without them.
- Reasons to detain are insufficient to justify incarceration
A few examples of reasons why someone can be detained:
- A foreign national that does not have identity documents, even if the individual is seeking asylum in Canada after escaping political violence or persecution
- A foreign national that states on one occasion that they will not return to their country of origin, even if they fear persecution
We usually associate incarceration with doing something that is against the law. Neither of these examples are illegal actions, yet either of them can lead to detention.
Without any evidence of wrongdoing, a criminal court would never detain someone.
- A presumption of guilt
When a member makes a decision that is different than members at previous detention reviews, he or she must justify this different decision. As time goes on, the justification required to get released after multiple decisions to continue detention resembles a presumption of guilt that becomes increasingly difficult to overcome.
- Detainees are not discouraged from speaking
In Immigration detention, members and government officers often seek testimony and input directly from detainees before and during the hearings. The statements of detainees can then be used to continue detention even if they were obtained without any role of legal counsel.
In the criminal justice system, an accused person has the right to and is encouraged to remain silent. In almost all procedural steps of the criminal process, lawyers are available to receive instructions and speak on behalf of their clients to the court.
- There is no limit to the length of detention
There is no limit to the length of detention. Even if the original reason for detention was minor, such as a failure to establish someone’s identity or a single declaration that someone will not return to their home country, if nothing about the situation changes, someone can be detained for years.
At a minimum, systems within the same country that detain people should seek to mirror each other in terms of rights and protections provided. One can even make the argument that a system that incarcerates people who have not done anything “illegal” should be more rigorous and reluctant to detain people than a system that incarcerates people who have done or been accused of doing something “illegal”.
While the proposed reforms to our immigration detention system are welcome, they focus almost exclusively on improving the conditions of people being detained rather than addressing the fact that people are being detained in circumstances that would be completely unacceptable within the criminal justice system. Rather than improving conditions and building new detention centres, the government should consider legal reforms that bring immigration detention in line with the legal standards of our criminal justice system.
For more information:
- We Have No Rights: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada
- Detention Review Process
- The Truth about Immigration Detention