Canadian Immigration Detention Policies and Practices

I have not undertaken any firsthand research on American immigration detention facilities. However, I oversaw a major comparative study of Canadian and Australian facilities. But any data from that study would be well out of date. Instead, for my analysis of Canadian immigration facilities and the policies and practices governing them, I have relied on a relatively recent report by students in the International Human Rights Program of Professor Audrey Macklin at the Faculty of Law in the University of Toronto. Audrey is Director of its Centre of Criminology and Sociological Studies and holds the Chair in Human Rights Law. Hanna Gros is the prime author of the 2017 study called: “Invisible Citizens: Canadian Children in Immigration Detention.” Though it focuses on the tiny group of children born in Canada who are detained in detention facilities, the report includes a great deal of the accumulated data on the detention of children and on immigration detention more broadly.

https://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-InvisibleCitizens.pdf

Dee also IHRP’s September 2016 earlier report, “No Life for a Child: A Roadmap to End Immigration Detention of Children and Family Separation.”

I am also very familiar with the Toronto Immigration Holding Centre at 385 Rexdale Blvd. which I referenced in my last blog. I was part of a consortium about a decade ago that put forth a proposal to construct a new and much more humane facility. The government instead chose to renew the existing contract.

Children are detained in Canadian facilities in Vancouver, Toronto and in Laval Quebec. Compare these three facilities with the 637 American ones in operation in 2015 (May 2016 TRAC Report); American facilities are generally much larger. Further, American law requires that 30,159 beds be available at any one time, a ratio of about 100 beds to 1 in Canada.

The Canadian facilities hold not only immigrant children, but children born in Canada as well. Alpha, the son of Glory Anawa, was held in captivity for almost three years before both were deported. Glory was pregnant when she was detained after arriving at Pearson Airport. Compared to the recent effort at deterrence in the U.S., detained migrant mothers were given a choice: keep your child with you in custody as a “guest” (not a detainee) or surrender the child to foster care. They are called “guests” because the governing federal policy states that no child “may be permitted to remain with their detained parents in a CBSA immigration holding centre if it is in the child’s best interest and appropriate facilities are available.” As “guests,” such children are not accorded detention review hearings. However, detention cannot be used for deterrent purposes.

In America, the elevation of deterrence to a high guiding principle did not start with Donald Trump. It was first elevated to a high status under Obama. However, in February 2015, the Federal Court for the District of Columbia issued an injunction to halt the detention of parents with children solely to deter other migrants. The Judge required that they be released until their asylum cases could be heard.

Two international principles govern child detention. First, children should not be detained. Second, children should not be separated from their parents. What logically follows is that detention should not be applied to parents with children. Is this realistic? In spite of those principles, to what extent are parents and children detained in Canadian facilities?

How many children are affected? According to data that could be obtained, slightly less than fifty Canadian-born children per year were in the Toronto facility. Unlike Alpha mentioned above, the children are usually held in detention for 2-3 days to allow for paperwork to be completed. The median is higher because of rare cases, such as that of Alpha, or because mothers are breastfeeding. No children are forcibly or deceptively (a common American practice) removed from their parents. The number of children held in detention has dropped significantly since the Liberals came to power, but not the number of family separations.

How many have of Canadian and non-Canadian children been held in detention? Over four years, from 2011 to 2015, the Toronto facility, Canada’s largest, held at least 227 Canadian children in detention, an average of 45-48 per year. The children were held for an average of anywhere from 24-36 days and median stay of 15-23 days. (The average is higher because of very long stayers such as Alpha.) 85% were younger than six.

Total    Cdn.   *Others Ave.    Days      Median

Age

National         121       15       106       3.5       15.2       2

Toronto            42      12          30       3.5        4.5        1

Vancouver       36        0          36

Laval               43        3          40       3.3        58          86

  • Others include both foreign nationals and permanent residents of Canada.

In the 2017-18 period coming to an end shortly, 155 were held in detention, an increase from the year before. Why? Yet why so very few when compared to American figures under Trump?

The answer is twofold. Canada does not hold children in detention to deter arrivals. The governing principle is the “best interests of the child,” ironically the same principle in law governing the American treatment of unaccompanied minors who are placed in the care of a very different department, the Office of Refugee Resettlement and placed in the least restrictive setting in their best interests; these “accompanied minors” are generally held in a network of state-licensed, government-funded private care providers that are meant to offer education, healthcare, and case management services.

If, in Canada, the principle of the best interests of the child is applied, why even the low numbers detained? Because it is not the only principle operating. Further, there is a gap between principle and practice. The eight applied principles are:

  • “Best interest of the child;
  • “Right to express views freely;
  • “Measure of last resort;
  • “Limitation of physical restraint and the use of force;
  • “Separation from parents and maintenance of relationship;
  • “Preventing crimes against children;
  • “Child development;
  • “Other relevant factors as determined by the facts of the specific case.”

None of these have anything to do with deterring illegal migration. In Canada, the Canadian Immigration and Refugee Protection Act states: “It is affirmed as a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child.”

It is a well-known fact – not a theory – documented by medical practitioners, psychologists, psychiatrists and sociologists, that children are traumatized in detention, even when detained for very short periods. I know how my youngest son’s totally unjust handcuffing, arrest and interrogation of only about four hours affected him. Children are psychologically negatively affected by detention in a way that persists long after their release.

Though children should never be held in detention, is this practical? What else can you do with parents who arrive with children in Canada illegally or give birth to a child when they themselves are illegal but their children are legally Canadian citizens? A mixture of the following:

  • accommodation in NGO-run non-custodial homes
  • regular reporting
  • the use of bonds put up by volunteers or relatives
  • guarantors
  • ankle bracelets (a controversial alternative)
  • treating the alleged illegals with respect
  • ensure they receive independent legal advice
  • provide case support

Unless these alternatives are applied, there is no possibility of reducing the figure to zero. There are detained breastfeeding mothers who do not have a friend or relative to take them in. Sometimes a child has health issues that require hosting the child in an institution. In most cases, parents do not want to be separated from the child and/or the child does not want to leave the parent and the family on its own has no alternative.

The physical facilities in Canadian detention centres are not great. However, much as I object to the Canadian facilities, the conditions are leagues ahead of some of the American ones that have been exposed on media.

In comparing numbers, values, and even practices, Canada is at the opposite end of the spectrum from what has been taking place in the United States even before Trump issued his zero-tolerance policy and effort to separate parents from their children to deter others from coming to America. The modern U.S. detention system really dates back less than 40 years to the Reagan era. Prior to that, INS only detained individuals deemed likely to abscond or if they were believed to pose a danger to property or persons.

Even more significantly, the two countries are traveling in opposite directions. As the report on Canadian detention states, “(T)he Canadian government has shown a strong commitment to addressing issues within the immigration detention regime. CBSA has committed to taking meaningful steps that aim to reduce child detention and family separation as much as humanly possible.”

As I wrote in an earlier blog, incarceration is expensive. By 2014, the annual cost of detention in the American immigration enforcement budget was roughly $2 billion, or approximately $5 million a day (or $159 per detainee/day). (Alternatives cost from $.70 to $17.) It is ironic that a political party ostensibly dedicated to shrinking the government spends so much on confinement, prisons and walls. Other methods than detaining parents with their children are both much more cost effective and certainly more humane. The Canadian government is currently investing $138 million to both improve conditions inside detention facilities and to look for alternative solutions to detaining any child.

Further, consider the long term. “Compromising children’s mental health through detention and family separation risks setting them up for potential pathologies and social dysfunction, which may have very long term affects. As it is, detained children are lethargic, lose their appetite and suffer from anxiety. The long-term prognosis of depression or PTSD is not just a possibility, but likely for many of them.

The Canadian Pediatric Society condemns Canadian current practice, which is relatively benign compared to the American situation, as “contravening its domestic and international legal obligations” since “children in immigration detention live like prisoners in punitive conditions in immigration holding centres and, in some cases, jails. They spend their days in secure facilities, exposed to guard pat-downs and barbed wire fences, with minimal access to outdoor areas, education and play. They lack healthy food and have sleep difficulties…Research conducted in Canadian immigration detention facilities shows that detained children suffer extreme distress, fear, and a deterioration of cognitive, physical and emotional functioning both during and long after detention, including anxiety, selective mutism, and post-traumatic stress symptoms.”

In visiting the Toronto Immigration Holding Centre on Rexdale Blvd., the contrast between it, as deplorable as I find it, and American facilities is enormous. Detainees have beds, semi-private cubicles, access to showers and an exercise yard and some meagre recreational facilities. The few children have a play area with toys but with barbed wire clearly in sight.

What would the pediatric association say about American facilities that Elizabeth Warren visited in McCallen Texas earlier this week which held immigrants who are cared for, not by Homeland Security, but, ironically, by Health and Human Services? And what about the even larger prison in Port Isabel that she visited afterwards that is advertised as a family reunification centre? The head of the facility told Elizabeth, several times, “that they had no space for children, no way to care for them, and no plans to bring any children to his locked-down complex.”

  1. In the enormous McCallen warehouse, detainees are kept in pods, i.e. cages.
  2. The stench – body odour and fear – hits the second the door is opened.
  3. The cages are too crowded for everyone to lie down at the same time.
  4. There is no shower or sink, only a toilet hidden behind a half wall.
  5. The cages with children who looked shell-shocked were bigger
  6. But they had far more people; girls have their own large cage.
  7. The children had nothing – no books, no toys, no games.
  8. The children did not know where they were or where their parents were.
  9. A few, but very few, had been in contact with their parents.
  10. Calls cost money; the only way to donate money for phone calls requires the donor to know an individual’s ID number for the person receiving the donation. In a classic Catch-22, for privacy reasons, the Department could not release those numbers.

Elizabeth made one very interesting finding. There were mothers breastfeeding babies but no men with children. Why? Lack of space. For the safety of the mother and children. Those were the reasons offered. Incomprehensible! The men were released to the care of a Catholic Agency that would take women and babies, but ICE would not release the latter. The only explanation I can think of is that the women were being held hostage to send a message back to deter new arrivals. Further, as Elizabeth wrote, “Parents are so desperate to be reunited with their children that they may be trading in their legal right to asylum.”

The fact is that Canada houses far fewer detainees, does not generally intentionally hold children in detention, but when it does, the government is at least shame faced and seems determined to end the practice. The conditions are poor but infinitely better than the American facilities.

I must say that I still cannot get over the fact that good people support, or at least apologize for Trump’s policies in this area. And I am thankful that even under the Conservative Harper regime, Canadian detention policies were far less costly, far more humane, were governed by proper principles and, though practice deviated from policy in some cases, by and large on any basis of comparison Canada emerged as a beacon of humanity and responsibility compared to the United States even under Obama. Trump has simply made the situation much, much worse.

With the help of Alex Zysman

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