Immigration Detention in Canada

Definition of Immigration Detention

Immigration detention falls under the framework of administrative law. The person being detained has not committed a crime under Canada's Criminal Code but is being detained for immigration reasons.

Immigration detention affects thousands of people every year. Between 2012 and 2023, the Canadian Border Services Agency (CBSA) detained on average 6,544 people every year. Men are disproportionately more likely to be detained, making up approximately 76 per cent of the population in 2013 and 2014.

Historically, exact figures of detained migrants and specific policy directions governing immigration detention are difficult to ascertain. However, in 2010, immigration detention sparked debates in Canada when hundreds of Sri Lankan Tamil asylum seekers arrived in British Columbia on board the ship MV Sun Sea. All 492 asylum seekers, including 63 women and 49 children, were detained, some for several months, others for years, costing the Canadian government millions of dollars. The Tamil refugees were also publicly linked with terrorism threats and human smuggling. They were presented as not being “legitimate” refugees. However, many of the claimants have been found to be refugees through Canada's refugee determination system. As passengers on the ships, they were at risk of human rights abuses by the Sri Lankan government.

Migrants are detained in immigration holding centres (IHC) located in Toronto, Laval and Surrey. Uniformed guards patrol facilities with centrally controlled doors, with razor wire outside and cameras on the inside of the building. The detainees’ personal effects, such as mobile phones and other paraphernalia, are confiscated upon entry. Access to the Internet and incoming phone calls are curtailed. Immigration detainees are subject to poor living conditions, overcrowding, medical neglect and abuse by staff.

Alternatively to IHCs, Canada has, in the recent past, used prisons for migrant detention. This is notably the case in provinces without IHCs. As of March 2024, provinces have agreed to stop this practice. However, in April 2024, the federal government announced that it was, instead, considering using federal prisons to supplement IHCs. Detained immigrants have not been accused of a crime. In provincial jails, immigration detainees were co-housed with the regular inmate population and treated similarly. They were handcuffed, shackled, searched, required to wear orange jumpsuits and restricted to small spaces with rigid routines. They may also have been subjected to solitary confinement.

While there are jails in most major Canadian cities, nearly 60 per cent of all immigration detention occurs in Ontario, with 53 per cent of detention occurring in the Greater Toronto Area. Racial and ethnic prejudices also disproportionately render certain groups more vulnerable to immigration detention, such as racialized men of African descent. (See also Systemic Racism.)

Immigration detention is also incredibly costly. In 2019–20, CBSA spent some $71.38 million on immigration detention-related activities.

Legislative Framework

Sections 54 to 61 of the Immigration and Refugee Protection Act (IRPA) and sections 244 to 250 of the Immigration and Refugee Protection Regulations (IRPR) set out the legislative ground for immigration detention in Canada. The IRPR and the Immigration, Refugees and Citizenship Canada Policy Manual on Detention direct the administration of immigration detention by the CBSA. The IRPA sets out that CBSA can detain a person if they suspect that: the person poses a danger to the public; is unlikely to appear for an examination; cannot prove their identity; or is part of an irregular arrival.

Migrants can also be detained if there are reasonable grounds to suspect that the person has committed human rights abuses in their country of origin, or that they pose a security threat in Canada. While in some cases detention of migrants can seem justified, there are international frameworks that govern the administration of immigration detention and it is thought of as a policy of last resort. Given its discretionary and opaque nature, immigration detention has been widely criticized by human rights groups as ineffective and even in violation of international human rights. This includes the administration of immigration detention in Canada, in particular the lack of oversight of CBSA policies and the possibility of indefinite detention. Migrants can be detained when they first come to Canada at the port of entry (e.g., when they make a refugee claim at the airport), during the course of their proceedings in Canada, or they may be taken into detention if they are in Canada without status and are apprehended by a CBSA officer.

A detained person is entitled to a review hearing within 48 hours of their detention. Despite this, lengthy detention periods can still happen. Often, detainees being isolated from community supports and access to lawyers makes them unable to adequately prepare for their detention reviews. Detainees have to demonstrate that they can be released.

As a system, immigration detention remains highly unregulated with wide discretionary powers given to CBSA which is responsible for its administration.

Issues with Immigration Detention

Due to the largely discretionary nature of immigration detention and the lack of oversight of CBSA detention mechanisms, serious issues have been raised by migrant rights groups, lawyers and refugee advocates about the treatment of migrants in detention.

Racialized and Vulnerable People in Detention

Prolonged periods of detention inflict lifelong psychological, physical, emotional and social damage. Detention exacerbates mental health issues that many detainees already face, such as PTSD, anxiety and suicidal thoughts. There is no official screening procedure that prevents the detention of vulnerable people, such as young children, pregnant women or migrants with mental health issues. Families are often reported to have been separated, including nursing mothers and their infants.

Also, if an immigration detainee showed certain behavioural problems, such as aggressiveness or symptoms of mental illness like suicidal ideation, they were often transferred to provincial jails as “high-risk” detainees. This increased their isolation and inability to access support from the community. While detained in prisons, it was extremely difficult to obtain psychiatric evaluations and access to medical doctors. As a result, this greatly exacerbated any pre-existing mental health conditions and could give rise to depression, suicidal thoughts and anxiety among the detainees.

In 2021, a report published by Human Rights Watch and Amnesty International found that racialized immigrants in Canada face racial discrimination and unique challenges while incarcerated. The detention of racialized immigrant detainees ― particularly Black men ― is more likely to occur in maximum-security facilities, for longer periods and in solitary confinement. As a result of detainment, some can suffer from serious psychological consequences. Detained women face unique challenges. Pregnant women are detained, and some have been forced to give birth while in immigration detention. Immigration detention holding centers lack gender-responsive facilities and are rarely equipped to provide for even the basic health needs of women. Detained women can also face gender-based violence.

Children in Immigration Detention

By law, children are only detained as a last resort. However, according to data from 2015 obtained by the Canadian Council for Refugees, there were at least 82 children in immigration detention. Detention is extremely damaging to children. There is very limited access to outside enrichment activities, and educational supports are limited. Some also run the risk of being separated from their family. Children who have been born while their mothers were in detention and who are Canadian citizens cannot technically be detained by CBSA, since immigration detention is for non-citizens only. Instead, they are interned as "guests" of their parents. For example, Alpha Anawa, born in 2013, has been detained alongside his mother, Glory Anawa, a refugee claimant from Cameroon who arrived in Canada three months pregnant. Even though he is a Canadian citizen by birth, Alpha remained in the immigration holding centre. In 2015, he and his mother were deported.

Access to Justice Concerns

Access to affordable and quality legal counsel is one of the chief determining factors in successful detention bail hearings. Detainees face many difficulties when trying to gather evidence to present at their detention reviews. These difficulties arise because it is very difficult to communicate with counsel. There is only one-way telephone communication out from the immigration holding centres and prisons, access to the Internet is non-existent and the availability of interpreters is extremely limited. In addition, detainees in provincial jails are often geographically very far away from their lawyers. For example, the Central East Correctional Centre is in Lindsay, ON making lawyers’ trips up from Toronto to see their clients. As a result, immigration detainees are very isolated and many are routinely unrepresented at their detention hearings, resulting in prolonged and possibly indefinite detention periods.

Indefinite Detention

Canada is one of the few Western countries without a time limit on immigration detentions. Due to the numerous access to justice issues faced by immigration detainees, some face the prospect of indefinite detention.

The case of Michael Mvogo shows how difficult it is for migrants to get out of immigration detention. He was convicted in 2006 for possession of a small amount of cocaine and was found to have been travelling on a fraudulent American passport. CBSA tried to link Mvogo to the US, Haiti, Guinea and, ultimately, Cameroon. However, Cameroon does not recognize Mvogo as a national and denied issuing him travel documents which would facilitate his deportation from Canada. He remained in detention, including in solitary confinement, for almost a decade. Eventually, CBSA investigated and found Mvogo’s birth certificate in Cameron. He was finally deported in 2015.

In 2015, the Court of Appeal for Ontario found in Chaudhary v Canada that immigration detainees can apply to the court for release from detention based on the principle of habeas corpus. Habeus corpus protects the foundational right for people to seek review and relief from their incarcerations by the State. Michael Mvogo and Glory Anawa, the Cameroonian mother of detained toddler Alpha Anawa, were two of the four plaintiffs in this case. This decision signals that there is a statutorily mandated system of detention reviews. However, these hearings are organized in such a way that makes it very difficult for immigration detainees to fully exercise their habeas corpus rights, e.g., by making access to counsel difficult.

Deaths in Canadian Immigration Detention

Between 2000 and 2022, at least 16 detainees have died while in custody. The majority of these deaths are shrouded in secrecy and were not widely publicized, such as the 2010 death of Trinidad-born Kevon Phillip, who had lived in Canada for some 15 years and who was facing deportation, and who was beaten to death by fellow inmates in the Don provincial jail.

The 2013 death of Lucía Vega Jiménez in Vancouver, British Columbia, who killed herself while awaiting deportation, highlighted the desperation of many detainees. CBSA did not announce her death until community groups brought it to the media and called for an independent investigation of detention conditions. Two men also died of apparent suicide while in detention in early 2016: a Chilean migrant and a Burundian asylum seeker who was awaiting deportation. In May 2016, another man died in CBSA custody in a provincial jail.

As a result of these deaths, the federal government announced in 2016 that it would review its immigration detention policies.

Resistance in Detention

Immigration detainees have challenged practices of immigration detention. Hunger strikes have been used to protest detention conditions and demand better treatment, contest practices of indefinite detention and demand release during the COVID-19 Pandemic.

Alternatives to Immigration Detention

In 2017, CBSA developed and implemented a reform plan called the National Immigration Detention Framework (NIDF). The NIDF was intended to create a better detention system. The government pledged $138 million to improve the detention system, mostly by expanding and renovating IHCs and implementing non-custodial Alternatives to Detention (ATD) programs. ATD programs range from posting a bond (cash deposit) to tracking and monitoring technology to regular reporting to CBSA. The various forms of tracking technology include biometric voiceprint technology for phone reporting and electronic monitoring equipment that uses GPS or radio frequency. These measures also involve community-based programs and supervision that CBSA operates in partnership with NGOs such as the Salvation Army, the John Howard Society, and the Toronto Bail Program (TBP).

ATDs can be used when an individual has been detained and then released into the community. They can also be used in cases where individuals were not detained in an IHC or provincial jail. These measures have been criticized as being punitive measures that extend into the community. ATD can create a revolving door for immigration detainees to be arrested and detained repeatedly.

Is Canada's Immigration Detention in Breach of International Law?

Numerous doctors, lawyers and advocacy organizations have called on Canada to reform its immigration detention system, as it violates the human rights of some of the most vulnerable people in Canada. Groups such as Amnesty International highlighted the many issues in Canada's immigration detention system at the United Nations Human Rights Council Universal Periodic Review Working Group in 2015. They pointed out that it violates a number of international human rights treaties to which Canada is a state party, such as the International Covenant on Civil and Political Rights, the Convention on the Rights of Persons with Disabilities, the Convention on the Rights of the Child and norms of customary international law.

International human rights law dictates that immigration detention is a measure of last resort that is non-punitive, non-arbitrary, conducted with regard to due process and must not sweep up asylum seekers or other vulnerable people.