Stop transfer of immigration detainees to provincial jails, lawyers tell minister

More than 100 lawyers, legal scholars and specialists are calling on the Ontario government to cancel an agreement that allows the Canada Border Services Agency (CBSA) to transfer immigration detainees to provincial jails, whom they say are exposed to "profoundly disturbing" conditions..

In an open letter to Yasir Naqvi, Ontario Community Safety and Correctional Services Minister, the legal professionals say they are "alarmed" by the practice. They say it raises "very serious" human rights and concerns about the rule of law.

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"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," the letter reads. "We call on the Government of Ontario to bring an end to this harmful practice immediately."

The letter follows a growing outcry over the transfer of detainees with physical and mental health problems to jails. Fifteen people have died in immigration detention while in CBSA custody since 2000. 

Detainees are transferred by the CBSA from immigration holding centres to provincial jails when they are considered high risk. That includes detainees who have criminal backgrounds, outstanding charges, a history of violence, are an escape risk, or pose a danger to themselves or others.

The agency can also transfer detainees with serious physical and mental health problems who cannot get adequate medical care at holding centres.

The letter urges the minister to cancel the federal-provincial agreement, signed in October 2014, that allows transfers to continue, and during the notice period of one year, to stop accepting the transfer of any detainees with physical and mental health problems. 

The letter says one third of the 7,300 immigration detainees held by the CBSA in 2013 were transferred to provincial jails in Canada. It say decisions to transfer detainees appear to be made on an ad hoc basis and detainees are denied basic legal rights given to criminal inmates.

"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," the letter reads.

"On one day, a detainee who has no criminal history or charge may be with her family in 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." 

It says detainees are exposed to conditions that may include solitary confinement and situations where the jails are locked down. 

"Prisons are part of the criminal justice system. Their principal function is to hold those charged with and convicted of criminal wrongdoing. Individuals held for immigration purposes should not be transferred to, and detained in, these institutions." 

The letter notes that the federal Immigration and Refugee Protection Act governs detention, but the federal-provincial agreement means incarceration of detainees has become a provincial matter.

Lawyers who signed the letter include Samer Muscati, director of the International Human Rights Program at the University of Toronto, Anthony Navaneelan, staff lawyer at the refugee law office of Legal Aid Ontario, Sukanya Pillay, executive director of the Canadian Civil Liberties Association, and Maureen Silcoff, president of the Jewish Refugee Action Network.

 Naqvi was not available for comment.