Hon. Yasir Naqvi
Ministry of Community Safety and Correctional Services
18th Floor, George Drew Building
25 Grosvenor Street
Toronto, Ontario M7A 1Y6
Dear Minister Naqvi:
I am writing today on behalf of the Ontario Human Rights Commission (OHRC), to express our concern about detention of non-citizens in Ontario jails under the federal Immigration and Refugee Protection Act (immigration detainees).
As you know, in my previous capacity as Executive Director of the International Human Rights Program at the University of Toronto Faculty of Law, I was the editor of a 2015 report on immigration detention (http://ihrp.law.utoronto.ca/We_Have_No_Rights).
According to that research, immigration detention is widespread, with thousands of non-citizens being detained in Ontario jails each year. While immigration detainees held in Ontario jails are entitled to protection under the Ontario Human Rights Code, we are concerned that the services provided to them are not consistent with the Ministry of Community Safety and Correctional Services’ (MCSCS) obligations under the Code.
Immigration detainees are a particularly vulnerable group that often identify on intersecting Code-protected grounds such as race, place of origin, colour, ethnic origin and citizenship. We also understand that the Canada Border Services Agency routinely transfers detainees who have mental health disabilities into provincial custody. This is despite research that shows that immigration detention is particularly damaging for vulnerable non-citizens (such as people with existing mental or physical disabilities, asylum-seekers and victims of torture), and that immigration detention often causes new mental health disabilities.
There is a fundamental, systemic problem with using provincial correctional facilities designed for persons detained under the Criminal Code, to detain immigrants who are neither criminally-charged nor serving a sentence. It would appear that provincial correctional facilities have neither the infrastructure nor the staff expertise to handle immigration detainees in a way that accommodates their unique needs.
For example, despite their vulnerable status and unique needs, we are concerned that immigration detainees have extremely limited access to language interpretation services or appropriate supportive programming. We are also concerned that immigration detainees do not have access to adequate or tailored mental health treatment or support.
This situation calls out for reform. In the interim, the University of Toronto report makes several recommendations that have been endorsed by myriad stakeholders including the Canadian Association of Refugee Lawyers, Canadian Civil Liberties Association, End Immigration Detention Network, Refugee Lawyers Association of Ontario, South Asian Legal Clinic of Ontario, and the Schizophrenia Society of Ontario.
These recommendations include steps that should be taken by the provincial government, many of which relate to our concerns that the Code-related needs of immigration detainees are not being met.
The OHRC recommends that MCSCS implement the University of Toronto recommendations that fall within its jurisdiction:
- Negotiate with the federal government to ensure that:a. Funding received to house immigration detainees is sufficient to ensure adequate in-person, health care (including mental health care), legal counsel, community supports, and spiritual and family supports for immigration detaineesb. CBSA staff is regularly present at all provincial facilities that house immigration detainees.
- Ensure immigration detainees are held in the least restrictive setting consistent with management of a non-criminal population and protection of the public, staff members, and other prisoners, including in residential-treatment facilities if needed.
- Ensure consistent and meaningful access to adequate in-person, health care (including mental health care), legal counsel, community supports, and spiritual and family supports.
- Allow for regular, independent monitoring by the Canadian Red Cross Society of provincial jails that house immigration detainees, and commit to implementation of any recommendations received.
- Provide training to correctional staff on immigration detention, human rights, and diversity.
- Ensure that provincial legal aid programs are fully accessible to immigration detainees at all stages of the process, regardless of the length of detention, and that funding is sufficient to pay for independent mental health assessments.
- Publicly disclose any agreements or contracts negotiated with the federal government in relation to detention of immigration detainees in provincial jails
As always, the OHRC is committed to working with you to address human rights-related issues that fall within your mandate.
Consistent with our mandate to report on the state of human rights in Ontario, we will be making this letter public.
Renu Mandhane, B.A., J.D., LL.M.
cc: Hon. Madeleine Meilleur, Attorney General of Ontario
Ralph Goodale, Minister of Public Safety
Marie Claude Landry, Chief Commissioner, Canadian Human Rights Commission
David Wanstall, International Committee of the Red Cross (Canada)
Rana Khan, UN High Commissioner for Refugees
Samer Muscati, Director, International Human Rights Program, University of Toronto Faculty of Law