Detention of Asylum-seekers

Seeking asylum is a right, not a crime. But an increasing number of people, having been forced to flee their homes to escape persecution, are being placed behind bars on arrival in Canada. They are held in conditions of imprisonment that are fundamentally inhuman and degrading. Asylum-seekers in the Canada are liable to be stripped, shackled and sometimes verbally or physically abused. Many are confined in high-security jails and unlike Canadian citizens charged with the offences, are often excluded from bail and have no idea when they will be released. For example, approximately one quarter of the prison population at the Metro Toronto West Detention Centre, a maximum-security prison, are immigrants and refugees placed under a “deportation hold”, held without a criminal charge. Refugees and immigrants are being arbitrarily detained in violation of the Canadian Charter of Rights of Freedoms section 7; “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” On December 18, 1995, Nigerian Mike Akhinen died from medical neglect at Celebrity Inn, an Immigration Holding Centre outside of Toronto. His death highlights the situation of many refugees held in detention centres across Canada.

We advocate and fight for an end to all processes of immigration detention in Canada. Canada is a state party to the United Nations Convention Relating to the Status of Refugees and its Protocol, as well as to the International Covenant on Civil and Political Rights and its First Optional Protocol. The Canadian Immigration and Refugee Protection Act itself, in s. 3(3)(f), requires that the law be “construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.”

• Detention Statistics

In 2001, 44,452 asylum seekers applied for asylum in Canada. In the first quarter of 2002, 6,784 applications were filed. Statistics from Citizenship and Immigration Canada (CIC) indicate that at any given time there is an average of 455 detainees across Canada under the Immigration Act, however since the turnover rate of detention is so high, this estimate does not provide the full picture. Around 10,000 asylum seekers have, at some point in the process, been detained by Canadian immigration for a time period range from 48 hours to over 18 months.

• Grounds for Detention in the Immigration and Refugee Protection Act

The new Immigration and Refuge Protection Act (June 2002) codifies factors to be considered in decision-making. Members of the Immigration and Refugee Board (IRB) Immigration Division, who are responsible for reviewing decisions on detention, continue to have wide discretion on issues of detention because decisions are made on a case-by-case basis. The new legislation broadens the circumstances upon which detention can occur, and the announced benefits of the new regime are to “provide enhanced protection of Canadian society,” with no mention of the protection of rights of refugee claimants.

As stated in IRPA § 55(2), the three main grounds for detention are flight risk, danger to the public or if the officer is unsatisfied as to the identity of the claimant. In the past, persons could only be detained on the basis of identity at the port of entry. Now, persons can be detained at any point in the claim process for identity reasons. This includes those who present themselves to make an inland claim.

The expansion of detention on the basis of identity is of particular concern because those seeking asylum are often forced to leave their countries without proper identification because it is their very identity which puts them at risk. In addition, there has already been an increase in the use of detention for identification grounds.  Under § 55(3) a claimant may be detained upon entry into Canada where the officer “considers it necessary… in order for the examination to be completed”, creating a situation in which detention occurs only for reasons of administrative efficiency, and is therefore an arbitrary deprivation of liberty.

The ground of being considered a “flight risk” is also inherently problematic. When asylum seekers are rejected and express any opinion that they should not have been rejected due to danger they face in their home country, they are almost certainly detained by Canadian immigration officials. This creates a catch-22 for asylum seekers who are essentially coerced into signing documents “consenting” to leaving Canada in order to avoid detention.

• Time limit on detention

There are no formal limits to detention periods, although the IRB guidelines state that decisions to detain and extensions to detention periods must be “reasonable in accordance with principles of fundamental justice.”13 In Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214, the Federal Court, which has jurisdiction over immigration issues, upheld the principle that indefinite detention for a lengthy period of time can constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice. This is upheld in The Minister of Citizenship and Immigration (Applicant) vs. Cheong Sing Lai and Ming Na Tsang (Respondents), [2001] 3 F.C. 326.

• Access to legal aid for detainees

There is no right to free legal representation for detained asylum seekers under Canadian law. Each asylum seeker is apprised of the right to legal counsel and afforded an opportunity to obtain legal counsel. However, access to legal aid is limited, and the provision of free legal services is uneven since legal aid is administered provincially not federally.

• Minors in detention

There are approximately 20 minors detained in Canada at any given time.

• Project Threadbare

In August 2003, the RCMP arrested 21 students and refugee claimants born in Pakistan, following an investigation called “Project Thread”. Officers with the Public Security and Anti-Terrorism unit (PSAT) claimed a pattern of behaviour of a larger “group” led authorities to be, resulting in the arrests. The Immigration and Refugee Protection Act (IRPA) which became effective in November 2002, grants the federal government powers to detain without charges any landed immigrant or foreign national who is considered to be a threat to national security. Many of the individuals arrested reportedly had valid student visas or were awaiting a refugee hearing. The RCMP later noted that there was no evidence to suggest that there is a terrorist threat related to the investigation. However, this has not addressed the fear in communities that felt most vulnerable in the resulting publicity, and among community organizations that serve refugees and immigrants. The arrests under “Project Thread” and resulting media coverage caused grave concern among South Asian, Muslim and Arab communities, and organizations that provide assistance to these communities. The arrests heightened the sense of vulnerability to discrimination experienced by the communities.

• Safe Third Country Agreement and Smart Border Declaration

On December 29, 2004, Canada’s Safe Third Country Agreement took effect. This radical change to

Canadian refugee policy will prevent asylum seekers from making claims in Canada if they arrive by land via the United States. The net effect of the policy will be to prevent at least 1/3 of all refugee claims from even being heard. Refugee rights’ advocates have denounced the new shift as a “none is too many” policy against refugees. Hundreds of asylum seekers gathered at border entry points, such as Fort Erie, to attempt to beat the deadline and were detained.

Security Certificates

The government of Canada is currently holding 4 Arab men in prison without charge based on secret evidence under Security Certificates. A fifth man, Adil Charkoui, was released on bail in Feb 17 2005 after a judge determined that any alleged imminent threat he posed to Canada had been neutralized due to his 21 month long detention (mostly in solitary). Together the men constitute the “secret trial five”. These men are Mohammed Mahjoub (country of origin Egypt, detained since June 2000); Mahmoud Jaballah (country of origin Egypt, detained since August 2001); Mohamed Harakat (country of origin Algeria, detained since December 2002); Hasan Almrei (country of origin Syria, detained since October 2001), and Adil Charkoui (country of origin Morocco).

Under the new Immigration and Refugee Protection Act, there is mandatory detention under § 82(2), which states that “[a] foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.” § 77(1) provides that the Minister of Immigration and the Solicitor General of Canada “sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.” The decision that leads to inadmissibility is taken by the executive and not by a judge. A Federal Court Trial judge only has the power to decide if the certificate is reasonable, and based on this decision either upholds or quashes the certificate. The decision of the designated judge has far-reaching implications for a permanent resident like the appellant, who will be deported from the territory, this decision being final and without appeal.

Amnesty International has written, “the security certificate process may very well result in arbitrary detention and thus violate the fundamental right to liberty.” The detainees are not informed of the precise allegations against them. They see only a summary of the evidence and evidence maybe presented in court in the absence of the detainee or their lawyer. The detainee is not afforded a right to examine any of the witnesses. Thus there is no means for the appellant to test the validity and credibility of this information and thus it is difficult if not impossible for him to refute it. The detainees may be detained indefinitely without any charges laid against them. The UN Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, adopted by the UN General Assembly in 1988 establish that anyone who is detained shall be given an “effective opportunity” to be heard by a judicial or other authority, has the right to defend him or herself, and shall received “prompt and full communication” of any order of detention “together with the reasons therefore.” The Basic Principles on the Role of Lawyers, adopted in 1990, underscore that lawyers must be given access to “appropriate information, files and documents” so that they can provide their clients with “effective legal assistance.”

The security certificate process undoubtedly violates principles of due process and justice and the fundamental principle of innocent until proven guilty. The standard of evidence adopted by Parliament to justify the issuance of a security certificate is too minimal, since it is enough to have reasonable grounds to believe that the acts have occurred, are occurring or may occur when this standard should have been more stringent and require that the acts be proved according to the standard of the balance of probabilities. The Security Certificate process contravenes the right to a fair trial before an independent and impartial tribunal, when, for example, the designated Federal Court judge must determine the “reasonableness” of the security certificate issued by the ministers and not the merits of the case. Under paragraph 78(j), the designated judge may admit, and base his decision on, any evidence that he considers useful, even if it is inadmissible at trial.

The use of security certificates violates the prohibition against indefinite detention. It violates internationally recognized procedural guarantees such as the International Convention Against Torture, to which Canada is a signatory, and Articles 9 and 14 of the International Covenant on Civil and Political Rights. Furthermore, it violates the absolute obligation not to send people to country where he or she faces torture. The United Nations Committee against Torture, in 2000, informed Canada that it is a violation of the UN Convention against Torture to deport an individual to face a substantial risk of torture, including when there are security concerns. The Canadian government has already recognized themselves that at least three of the men will face significant risk of torture if deported.

The security certificate process, in existence since 1993, has also served as a template for Canada’s widely criticized post 9/11 anti-terrorism legislation. Although the UK House of Lords struck down their counterpart anti-terrorism laws in December 2004 concluding that indefinite detention of non-citizens terrorist suspects was a discriminatory means, Canada’s security certificate process and Anti-terrorism legislation have survived Court challenges.

Accordingly, we demand that the Security Certificate process be abolished.

For those currently imprisoned under security certificates, we demand:

– That they be released immediately; or, if any case against them actually exists, that they be allowed to defend themselves in open, fair and independent trials with full disclosure of the case against them.
– That they not be deported.