Although Canada has welcomed more than one million refugees since 1980, the challenging path to freedom in Canada continues to be difficult as some newcomers face time behind bars – despite being guilty of no crime at all.
Recently, the federal government quietly announced plans to jail high-risk refugees in federal prisons. In a line tucked away in a recent federal budget, the Canadian government revealed its intention to “introduce amendments to the Corrections and Conditional Release Act and Refugee Protection Act to enable the use of federal correctional facilities for the purpose of high-risk immigration detention.”
The federal government said its decision was in line with the Canada Border Services Agency’s (CBSA) detaining of refugee claimants who are considered a flight risk or who pose a danger to the public. That decision is widely considered to be a violation of Canadian Charter rights by refugee rights organizations and legal aid lawyers.
Newcomers in custody
According to the Immigration and Refugee Board of Canada, in 2023, the country received a record-high 140,000 refugee claims; high-risk refugees (according to a CBC report, there were almost 72,000 flight-risk migrants detained between 2012 and 2023) would normally be held in federal Immigration Holding Centres (IHCs) in Toronto, Laval or Surrey. Immigration Holding Centres are lower-security institutions providing exercise areas, schooling, visitation rooms, flexible living units and medical facilities and are separate from prisons. If IHCs were unavailable, refugees were sometimes held in provincial correctional institutions. Pushback from human rights groups like the World Refugee and Migration Council (WRMC), which joined with Amnesty International and Human Rights Watch led to provincial commitments to stop imprisoning detainees.
Subodh Bharati, a lawyer and review counsel for the Community and Legal Aid Support Programme [CLASP] at Osgoode Hall Law School, has challenged the federal government’s position on the unjust internment of refugees.
“In general – the decision to use federal penitentiaries doesn’t just affect refugees but applies to all foreign nationals in Canada,” Bharati said in an email interview. “Anyone who is not a citizen has the potential to be placed in prison. However, it is important to note that immigration detention has to be tied to an immigration purpose (namely removal). For this reason, refugee claimants are (of those affected) one of the least likely to be put in prison. Nevertheless, they can be if there are concerns regarding their identity or if they have been charged or convicted of a criminal offense.”
Canada has been widely criticized for its actions, in particular by the WRMC. In an article posted to the council’s website, WRMC chair Lloyd Axworthy and University of Ottawa president emeritus Allan Rock said the government’s decision to lock up refugees runs counter to Canada’s reputation as a haven for newcomers; it is “a violation of international human rights standards, and a betrayal of Canada’s proud reputation as a safe haven for migrants and refugees.”
What is a refugee?
So, what is a refugee? The UN Refugee Agency, citing the 1951 Refugee Convention, says a refugee is someone who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their] nationality and is unable or, owing to such fear, is unwilling to avail [themself] of the protection of that country.” By comparison, a migrant is someone who chooses to change their place of residence, often for work reasons, for anywhere from three to 12 months, sometimes more. An immigrant “chooses to settle permanently in another country [while] refugees are forced to flee,” according to the federal government. Refugees fall under the protection of the United Nations High Commission for Refugees (UNHCR) in cooperation with the international community.
Legal rights of refugees in Canada
And the legal rights of refugees in Canada? The Geneva Convention of 1949 states that, “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage [the wartime theft of goods from a place] is prohibited.” In Canada, refugees have the right to live within the country, move around free in it, and they have the same rights as others under the Canadian Charter of Rights and Freedoms.
According to Axworthy and Rock, since 2016, the CBSA has detained 45,000 people under Canadian immigration law and the “vast majority had posed no risk to ‘public safety’: over 90 per cent were incarcerated because the CBSA suspected they may not appear for an immigration proceeding, or because the CBSA was not satisfied with their identity documents. The CBSA opted to detain thousands of migrants, even though every year, the agency monitors thousands of people in the community, and it is rare that any of them abscond.”
The CBSA has used “high risk” as reason to detain individuals in prisons as opposed to the IHC [Immigration Holding Centres]. Bharati disputes the use of the term “high risk.” He noted that “the term ‘high risk’ is not defined in the IRPA [Immigration and Refugee Protection Act]. IRPA is also silent on the use of prisons. The CBSA also uses, in my opinion discriminatorily, high risk to define those with mental health concerns – allowing it to put vulnerable individuals in maximum security jails where they are receiving little to no treatment.”
Alternatives to detention
Added Bharati, “In my opinion, the only reasonable steps for the government are to expand the capacity of IHCs or use alternatives to detention such as electronic monitoring. Prisons need to be reserved for those in the criminal justice system. Immigration detention is not supposed to be punitive and thus the use of punitive jails for a non-punitive detention is a violation of [sections] 7, 9, 12 and 15 of the Charter of Rights and Freedoms.” Charter rights under sections 7, 9, 12 and 15 are: life, liberty and security; the right not to be arbitrarily detained or imprisoned; the right not to be subjected to any cruel and unusual treatment or punishment; and equality before and under law and equal protection and benefit of the law. These rights and freedoms are essential components of life in Canada.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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