A Letter from Ontario Lawyers and Legal Scholars to Hon Minister Naqvi on the Incarceration of Immigration Detainees

 

May 26, 2016

Hon. Yasir Naqvi
Minister of Community Safety and Correctional Services
18th Floor, George Drew Building
25 Grosvenor Street
Toronto, Ontario M7A 1Y6

Dear Minister,

Re: Request to cancel the federal-provincial agreement that permits the incarceration of immigration detainees in Ontario’s prisons

We are Ontario lawyers and legal scholars with expertise in refugee and immigration law. We are writing to add our voices to the demand for an end to the incarceration of immigration detainees, including those who are mentally ill, in Ontario’s jails.

Doctors and other healthcare providers across the province set out their concerns about this practice in their open letter to you of May 17, 2016. Their concerns about the negative health implications of incarcerating immigration detainees, including in particular those who are mentally ill, in provincial prisons are profound and urgent. But there are also very serious human rights and rule of law concerns at stake. While some of these concerns are appropriately addressed to the federal government – something which we will continue to do – we write now to underscore Ontario’s concurrent responsibility and liability for the incarceration of immigration detainees in this province and for the troubling conditions to which detainees are exposed in Ontario’s jails.

As you know, the Canada Border Services Agency (CBSA) detains thousands of non-citizens under the Immigration and Refugee Protection Act each year, for a variety of reasons. These individuals are not necessarily being held because they have broken any laws, let alone criminal laws. For example, people can be detained simply because immigration authorities are verifying their identity documents. Immigration authorities routinely detain families and children, refugees and refugee claimants, and permanent residents of Canada.

Despite the non-criminal and purportedly non-punitive nature of immigration detention, many immigration detainees are nonetheless being held in maximum security provincial jails, either upon arrest or following transfer from a dedicated low security immigration holding centre. As observed by the health care professionals in their letter to you, a significant proportion of these transfers to provincial jails are based on mental health concerns. And the majority of these transfers take place in Ontario.

We are gravely concerned that there are no public laws or regulations governing when and in what circumstances an immigration detainee can be transferred to, and incarcerated in, a provincial jail. Instead, at best, transfer decisions are subject only to CBSA’s own internal policies, which appear to us to be implemented in an ad hoc, inconsistent and sometimes discriminatory basis. Immigration detainees are rarely given any notice that they are going to be transferred to a jail; are provided with no disclosure of any evidence used to inform the transfer decision; and receive no written reasons for why the transfer occurred. On one day, a detainee who has no criminal history or charge may be with her family in a low security immigration holding centre, and the next she could be wearing a prison jumpsuit and be behind bars in a maximum security prison, based on the decision of a single officer whom she may have never met. In 2013, this process led to one-third of the 7300 immigration detainees held by CBSA being incarcerated in jails across Canada.

We are alarmed by what appear to be CBSA’s arbitrary detention practices and are committed to seeking substantial reform at the federal level. Nonetheless, as Ontario lawyers and legal scholars we are equally alarmed that Ontario would agree to confine anyone in a provincial prison who is not serving a criminal sentence or awaiting trial. Prisons are part of the criminal justice system. Their principal function is to hold those charged with or convicted of criminal wrongdoing. Individuals held for immigration purposes should not be transferred to, and detained in, these institutions. This is doubly so when the individuals are suffering a pre-existing mental illness or vulnerability.

The conditions faced by immigration detainees in many Ontario jails are profoundly disturbing. As documented by the University of Toronto’s Faculty of Law in their 2015 report on immigration detention, detainees with mental health illness are routinely subject to prolonged confinement in near or complete isolation. This often takes place in the solitary confinement unit of the jail. Even those who are not transferred for medical purposes are still subject to what the Superior Court has found to constitute “cruel and unusual treatment”. Describing conditions in the Maplehurst Correctional Complex in 2015, where immigration detainees spent more than half the year locked in their cells for 23 hours a day, Justice Gray stated: “The treatment of the applicants, in their totality, was so excessive as to outrage standards of decency; was disproportionate; and was degrading”: Ogiamien v. Ontario, 2016 ONSC 3080 at para. 268.

Detention under the Immigration and Refugee Protection Act is a strictly federal domain; there is no requirement for Ontario to be involved or to provide jail cells for immigration detainees. Nonetheless, Ontario continues to voluntarily incarcerate immigration detainees, most recently under an agreement between the federal and Ontario governments signed on October 1, 2014. This makes the incarceration of immigration detainees, and their treatment in Ontario’s jails, as much a provincial matter as it is a federal one. In fact, in the Ogiamien judgment mentioned above, the Superior Court found that the province was jointly and severally liable with the federal government for the treatment of immigration detainees in Ontario’s jails. Any suggestion that the incarceration of immigration detainees is solely an issue for the federal Minister of Public Safety is therefore incorrect.

We call on the Government of Ontario to bring an end to this harmful practice immediately. We urge you to cancel the federal-provincial agreement that permits the incarceration of immigration detainees in Ontario’s prisons, and in the interim, during the one-year cancellation notice period, to immediately stop accepting transfers of any immigration detainee with a documented and serious medical illness, including suicidal ideation or other mental health issues.

We would be very pleased to meet with you soon to discuss these concerns, and look forward to your prompt reply.

Yours sincerely,

Sharryn J. Aiken, Associate Professor, Faculty of Law, Queen’s University

Aviva Basman, Vice-President, Canadian Association of Refugee Lawyers, Manager / Lawyer, Refugee Law Office, Legal Aid Ontario

Raoul Boulakia, Law Society of Upper Canada Certified Specialist, Immigration and Refugee Protection Law  Signing on behalf of  Refugee Lawyers Association of Ontario

Andrew Brouwer, Law Society of Upper Canada Certified Specialist, Immigration and Refugee Protection Law, Senior Counsel – Refugee Law, Legal Aid Ontario

Catherine Bruce, Director, Refugee Law Office, Legal Aid Ontario

Barbara Jackman, LL.D., Doctor of Law (honoris causa) from the Law Society of Upper Canada, Doctor of Law (honoris causa) by the University of Windsor, Jackman, Nazami and Associates, Amicus curiae in Ogiamien v. Ontario, 2016 ONSC 3080

 Audrey Macklin, Professor & Chair in Human Rights Law, Faculty of Law, University of Toronto

 Noa Mendelsohn Aviv, Director, Equality Program, Canadian Civil Liberties Association

 Samer Muscati, Director, International Human Rights Program, Faculty of Law, University of Toronto

Anthony Navaneelan, Co-Chair of the Litigation Committee, Canadian Association of Refugee Lawyers, Staff Lawyer, Refugee Law Office, Legal Aid Ontario

 Sukanya Pillay, Executive Director and General Counsel, Canadian Civil Liberties Association

Sean Rehaag, Associate Professor, Osgoode Hall Law School, York University

Geraldine Sadoway, Senior Fellow, Massey College, Professor of International Human Rights Law, Osgoode Hall Law School and Queen’s University

Peter Showler, Former Chairperson, Immigration and Refugee Board of Canada

Maureen Silcoff, President, Jewish Refugee Action Network, Silcoff Shacter

Chantal Tie, Co-Chair of the Litigation Committee, Canadian Association of Refugee Lawyers

Lorne Waldman, Founder and Former President, Canadian Association of Refugee Lawyers, Waldman and Associates

 Please note that professional affiliations are included for identification purposes only

C.C.:   Hon. Ralph Goodale, PC, MP, Minister of Public Safety

Renu Mandhane, Chief Commissioner, Ontario Human Rights Commission

ENDORSEMENTS:

 Imtenan Abd-El-Razik, Refugee Lawyer , Steering Committee Member, Canadian Association of Muslim Women in Law (CAMWL)

 John Abrams, Criminal and Immigration Lawyer

Leslie M. Anderson, Staff Lawyer, The Centre for Spanish Speaking Peoples

Elsa Arismendi, Refugee & Immigration Services GTA, Legal Aid Ontario

 Prasanna Balasundaram, Staff Lawyer – Immigration and Refugee Law, Downtown Legal Services

Karin Baqi, Staff Lawyer, South Asian Legal Clinic of Ontario

Subodh S. Bharati, Barrister and Solicitor

Joshua Blum, Barrister and Solicitor

Michael Bossin, Barrister and Solicitor, Community Legal Services Ottawa Centre

 Aisling Bondy, Barrister and Solicitor, Bondy Immigration Law

  Jacqueline Bonisteel, Associate Lawyer, Corporate Immigration Law Firm

Sarah L. Boyd, Barrister and Solicitor, Jackman, Nazami & Associates

Larry Butkowsky, Barrister & Solicitor

Andrew Carvajal, Partner/Lawyer, Desloges Law Group Professional Corporation

Aurina Chatterjee, Barrister and Solicitor

Amedeo Clivio, Barrister and Solicitor, Clivio Law Professional Corporation

Edward C. Corrigan, Law Society of Upper Canada Certified Specialist, Immigration and Refugee Protection Law

Micheal Crane, Barrister and Solicitor

Aris Daghighian, Co-Chair of the Advocacy Committee, Canadian Association of Refugee Lawyers, Green & Spiegel LLP

Kristin Debs, Barrister and Solicitor

Laïla Demirdache, Barrister and Solicitor, Community Legal Services Ottawa Centre

Johanna Dennie, Staff Immigration and Refugee Lawyer, Legal Assistance of Windsor

Chantal Desloges, Law Society of Upper Canada Certified Specialist, Immigration and Refugee Protection Law, Senior Partner, Desloges Law Group Professional Corporation

Jacques Despatis, Barrister and Solicitor

Amy Dhillon, Barrister and Solicitor

Nadine Edirmanasinghe, Barrister and Solicitor, Edirmana Law, Former Legal Officer, UNHCR Canada

Howard P. Eisenberg, Law Society of Upper Canada Certified Specialist, Immigration and Refugee Protection Law, Eisenberg & Young LLP

Jonathan Fedder, Barrister & Solicitor

Arghavan Gerami, Managing Director, Gerami Law Professional Corporation

James Gildiner, Barrister and Solicitor, Gildiner Law

Angus Grant, Adjunct Professor of Law, Osgoode Hall Law School

Asiya Hirji, Barrister and Solicitor

Sofia Ijaz, Barrister and Solicitor

Pablo A. Irribarra, Barrister and Solicitor, Jordan Battista LLP

Peter Ivanyi, Barrister and Solicitor, Rochon Genova LLP

Meagan Johnston, Staff Lawyer, HIV & AIDS Legal Clinic Ontario

Joo Eun Kim, Staff Lawyer, Refugee Law Office, Legal Aid Ontario

Kelsey Lange, Barrister and Solicitor, Mamann, Sandaluk & Kingwell LLP

Jean Lash, Staff Lawyer, South Ottawa Community Legal Services

Timothy Leach, Barrister and Solicitor

Wennie Lee, Principal Lawyer, Lee & Company

Douglas Lehrer, Law Society of Upper Canada Certified Specialist, Immigration and Refugee Protection Law

Barbara Leiterman, Staff Lawyer, Scarborough Community Legal Services

Jamie Liew, Professor, Faculty of Law – Common Law Section, University of Ottawa, Immigration Lawyer

Benjamin Liston, Staff Lawyer, Refugee Law Office, Legal Aid Ontario

Samuel Loeb, Staff Lawyer, Refugee Law Office, Legal Aid Ontario

Elizabeth Long, Law Society of Upper Canada Certified Specialist, Immigration Law, Long Mangalji LLP

Clifford Luyt, Barrister and Solicitor, Sessional Instructor, Faculty of Law, University of Windsor

Keith MacMillan, Staff Lawyer, Refugee Law Office – Hamilton

Guidy Mamann, Law Society of Upper Canada Certified Specialist, Immigration and Refugee Protection Law, Mamann, Sandaluk and Kingwell LLP

Aadil Mangalji, Law Society of Upper Canada Certified Specialist, Immigration and Refugee Protection Law, Long Mangalji LLP

Alyssa Manning, Manager/ Lawyer, Refugee Law Office, Legal Aid Ontario

Kristin Marshall, Senior Refugee Law Trainer, Human Resources – Legal Aid Ontario

Alexandre Martel, Barrister and Solicitor

Jack C. Martin, Barrister and Solicitor

Caitlin Maxwell, Principal Lawyer, Equity Legal

Geraldine MacDonald, Barrister and Solicitor 

Clare McMullen-Crummey, Staff Lawyer, HIV & AIDS Legal Clinic of Ontario

Tara McElroy, Barrister & Solicitor, Waldman and Associates

Adolfo Morais, Associate Lawyer, WIS Workable Immigration Solutions

Leslie H. Morley, Barrister, Solicitor and Mediator

Hadayt Nazami, Barrister & Solicitor, Jackman, Nazami and Associates

Daljit Singh Nirman, Barrister and Solicitor, Nirman’s Law Professional Corporation

John Norquay, Staff Lawyer, Refugee and Immigration Services – GTA, Legal Aid Ontario

Oluwakemi Oduwole, Barrister & Solicitor

Chelsea Peterdy, Staff Lawyer, Refugee Law Office, Legal Aid Ontario

Samuel Plett, Associate Lawyer, Desloges Law Group Professional Corporation

Jennifer M. Pollock, Barrister and Solicitor, Pollock Immigration & Refugee Law Office

Debbie Rachlis, Barrister and Solicitor, Waldman and Associates

Aleksandr Radin, Barrister & Solicitor, Radin Law LLP

Daniel Radin, Barrister & Solicitor, Radin Law LLP

Katherine Ramsey, Staff Lawyer, Refugee Law Office, Legal Aid Ontario

Nicolas Ranger, Staff Lawyer, Integrated Legal Services Office, Legal Aid Ontario

Allison Rhodes, Staff Lawyer, Refugee Law Office, Legal Aid Ontario

Cheryl Robinson, Associate Lawyer, Desloges Law Group Professional Corporation

Lisa Rosenblatt, Barrister & Solicitor

Leigh Salsberg, Barrister and Solicitor

Swathi Sekhar, Barrister and Solicitor, Vecina & Sekhar Professional Corporation

Celeste Shankland, Barrister and Solicitor

Warda Shazadi Meighen, Barrister and Solicitor, Waldman & Associates

Adrienne Smith, Associate Lawyer, Jordan Battista LLP, Instructor, University of British Columbia Continuing Studies

Dushahi Sribavan, Barrister and Solicitor , Dushahi Sribavan Law Professional Corporation

Jennifer Stone, Staff Lawyer, Neighbourhood Legal Services

Evan D. J. Stringer, Barrister and Solicitor

Lily Tekle, Staff Lawyer, Refugee Law Office – Hamilton, Legal Aid Ontario

Karina Thompson, Barrister and Solicitor

 Rathika Vasavithasan, Staff Migration Lawyer, Barbra Schlifer Commemorative Clinic

Jean Marie Vecina, Barrister and Solicitor, Vecina & Sekhar Professional Corporation

Richard Wazana, Barrister and Solicitor, WazanaLaw

Patricia Wells, Barrister and Solicitor, Patricia Wells Immigration Lawyers

Jared Will, Barrister and Solicitor, Jared Will & Associates

Mieszko J. Wlodarczyk, Barrister and Solicitor

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s