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(Toronto) – The International Human Rights Program’s latest report says that Canada Border Services Agency’s treatment of non-citizens with mental health issues is in breach of Canada’s international human rights obligations as it is discriminatory, constitutes indefinite and arbitrary detention, is cruel and inhuman, and violates the right to health.
“We have no rights”: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada finds that the CBSA routinely detains migrants with mental health issues in maximum-security jails—sometimes for years—despite their vulnerable and non-criminal status.
“Our report reveals shocking gaps in the rule of law,” says Renu Mandhane, IHRP executive director. “CBSA transfers migrants who are not serving a criminal sentence to provincial jails in the absence of adequate laws, regulations, or policies. Counsel are not given notice and detainees do not have an opportunity to challenge confinement in maximum security conditions despite the catastrophic impact imprisonment has on their mental health.”
"We have no rights", released in advance of World Refugee Day on June 20, profiles detainees who have been imprisoned between two months and eight years. IHRP researchers travelled to three Ontario jails to interview detainees and collect these “voices from the inside.” Overwhelmingly, the detainees communicated despair and anxiety over their immigration status, their seemingly indefinite detention, their lack of legal rights, their conditions of confinement, and the lack of adequate mental health treatment to allow them to get better.
Uday,* was one of them. He has schizophrenia and no criminal record, and was detained for nearly three years in two maximum security Ontario jails because CBSA was unable to confirm his identity or country of origin and believed he was a flight risk. Detention had a significant negative and long-term impact on his mental health. He has since been released and recognized as de facto stateless. In recounting his treatment in jail, Uday says, “we had no rights at all…they treat[ed] us like garbage.”
Last year, there were more than 7,000 migrants detained in Canada. "We have no rights” includes damning CBSA statistics that chart the rising cost of immigration detention over the past nine years (more than $50 million last year), and ever-increasing “detention days.” In an exclusive interview, Reg Williams, director of CBSA immigration enforcement in Toronto from 2004 until his retirement in 2012, provides important insights into CBSA’s institutional culture, stressing “the culture is heading in one direction only—towards a more para-militaristic organization where the emphasis is on power and force, and less on interaction, cooperation and engagement.”
In a foreword to the report, the world’s leading expert on international refugee law, Professor James Hathaway of the University of Michigan Law School, says “States too commonly assume…that migrant detention is somehow a national prerogative that can be automatically exercised, and without any real regard for the usual rules of fair play. This is emphatically not the case under international law, as this study so cogently affirms.”
“We have no rights” was researched and written by two law students enrolled in the IHRP’s award-winning legal clinic. “This project taught me invaluable lessons and solidified my commitment to engage in work that changes peoples’ lives,” says Hanna Gros, a second-year law student who is currently working for the UN Refugee Agency in South Africa as part of the IHRP summer fellowship program. “The chance to see what life was like in jail for the detainees changed my outlook on law and justice. Working on this project was the highlight of my time at the Faculty of Law,” says Paloma van Groll, now a law school graduate.
The report includes a list of targeted recommendations aimed at lawmakers, the Minister of Public Safety and Emergency Preparedness, Citizenship and Immigration Canada, and the provinces. As a first step, it calls on the government to create an independent body/ombudsperson responsible for overseeing and investigating CBSA and to whom immigration detainees can complain, to create and effectively employ alternatives to detention, and to create a presumption against detention beyond 90 days (consistent with practices in the EU and US). The IHRP met with staff from the Minister of Public Safety’s office, as well as the federal NDP and Liberal critics for public safety, MP Randall Garrison and MP Wayne Easter, respectively, in advance of the report’s release to discuss the recommendations.
Leading human rights groups and advocates for the rights of migrants have endorsed the recommendations found in the report. “Immigration detention in Canada is indefinite, arbitrary and cruel and it must end,” says Syed Hussan from the End Immigration Detention Network which has been advocating for immigration detainees since 2013 when 200 migrants went on hunger strike. “Separation from families, no comprehensive judicial review process and lack of adequate services in the prison means that detention causes severe stress, depression and degradation of health. For those suffering with prior histories of trauma, immigration detention can be deadly.”
IHRP executive director, Renu Mandhane, and summer fellow, Logan St. John-Smith, will be travelling to Geneva in July to present the report to the UN Human Rights Committee to assist in its review of Canada’s compliance with the International Covenant on Civil and Political Rights. The Committee considers states parties’ compliance with the treaty every five years.
“We have no rights” (PDF) is available for download.
* Name has been changed to protect the identity of the detainee.
“Migrants not criminals but jailed for yrs; oversight of CBSA needed, says new report @UTLaw #ihrpmigrantrights http://tinyurl.com/nwhd66t ”
“Jail horrible for migrant mental health; need presumption against detention over 90 d @UTLaw #ihrpmigrantrights http://tinyurl.com/nwhd66t”
“New report @UTLaw calls for end to indefinite detention of mentally-ill migrants #ihrpmigrantrights http://tinyurl.com/nwhd66t ”
British Columbia Civil Liberties Association (BCCLA)
Canadian Association of Refugee Lawyers (CARL)
Canadian Civil Liberties Association (CCLA)
Canadian HIV/AIDS Legal Network
David Asper Centre for Constitutional Rights, University of Toronto Faculty of Law
Detention and Asylum Research Cluster, Refugee Research Network, York University
End Immigration Detention Network
HIV-AIDS Legal Clinic of Ontario (HALCO)
Refugee Lawyers Association of Ontario
Schizophrenia Society of Ontario
South Asian Legal Clinic of Ontario (SALCO)
Women's Legal Education and Action Fund (LEAF)
Dr. Branka Agic, MD, PhD, Manager of Health Equity, Centre for Addiction and Mental Health (CAMH)
Dr. Lisa Andermann, Psychiatrist, Mount Sinai Hospital; Associate Professor, Equity, Gender and Populations Division, Department of Psychiatry, University of Toronto
Professor Reem Bhadi, Associate Dean, Windor Law
Marlys Edwardh, Sack Goldblatt Michell LLP
Barbara Jackman, Jackman Nazami & Associates, Barristers & Solicitors
Dr. James Orbinsky, Research Chair in Global Health, Dalla Lana School of Public Health, University of Toronto (past president of Médecins Sans Frontières / Doctors Without Borders)
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies (CAEFS) and Sallows Chair in Human Rights, College of Law, University of Saskatchewan
Dr. Stephanie J. Silverman, SSHRC Postdoctoral Research Fellow, Graduate School of Public and International Affairs, University of Ottawa
Read the IHRP's submissions to the UN Human Rights Committee to assist with its review of Canada's compliance with the International Covenant on Civil and Political Rights. The IHRP will travel to Geneva in July 2015 to present the report to the Committee.
Downlaod We Have No Rights - Easy to Read Format (PDF)
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International Human Rights Program
University of Toronto Faculty of law
(416)946-8730 / (416) 953-7842 (cell)
Director, External Relations
University of Toronto Faculty of Law
Renu Mandhane, Executive Director, IHRP
Professor Audrey Macklin, Chair in Human Rights, University of Toronto Faculty of Law
Raoul Boulakia, President, Refugee Lawyers Association of Ontario
Dr. Janet Cleveland, McGill Health Centre (expert on impact of detention on mental health)
Gloria Nafziger, Refugee Coordinator, Amnesty International Canada
Syed Hussan, End Immigration Detention Network
Pam Shiraldini, spouse of Masoud Hajivand (profiled in the report and currently detained at Central East Correctional Centre in Lindsay, Ontario)