Sick, traumatized, jailed indefinitely: Canada’s immigration detention violates rights, report says

Pam Shiraldini and Melika Mojarrab, 15, sit in front of the Lindsay jail after visting Masoud Hajivand, held in immigration detention there. LIAM MALONEY FOR GLOBAL NEWS

The Canadian government is violating the rights of sick, vulnerable individuals by putting people with severe mental illness in provincial jails, a new report claims.

The University of Toronto researchers also say having a mental health condition can hurt someone’s immigration case – leading would-be immigrants or refugees to be detained for longer and in higher-security facilities than they would be otherwise.

And even as provincial jails are overwhelmed by mental illness they can’t adequately treat, Canadian immigration officials send people with severe illness to those institutions on the basis they’ll get better care there.

READ MORE: Mental illness overwhelms prisons, police

Jailed detainees often fall victim to anxiety, depression and post-traumatic stress disorder, said Renu Mandhane, the report’s editor and executive director of the international human rights program at the University of Toronto.

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Unlike other countries, Canada does not set a limit on the amount of time someone can be detained for immigration reasons. That uncertainty takes a mental toll, Mandhane said.

“This idea that you don’t ever know if and when you’ll be released has a really significant impact on mental health.”

Canada Border Services Agency disorganization contributes to that uncertainty, the report says.

One woman was kept in the Vanier Institution for Women for two months longer than required thanks to a clerical error, according to the report. While in prison, she considered committing suicide. “My heart was squeezing so much, I was crying so much, but people told me ‘if you tell the guard you’re going to try and kill yourself they will put in the punishment room, it’s the coldest room, for 3-4 days,’ and I thought, ‘I don’t want to go there,’” she is quoted as saying in the report.

CBSA did not provide confirmation of the details of this particular case, but did send a more general statement about detention issues in an email.

Janet Cleveland, a psychologist and researcher at the CSSS de la Montagne in Montreal, compared the mental health of a group of asylum-seekers detained in a CBSA-run immigration holding centre to a group of people allowed to live in the community.

“After on average about a month of detention, the detained group had much, much higher levels of post-traumatic stress symptoms, depression symptoms and anxiety symptoms,” she said.

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The detainees’ sense of powerlessness makes those problems worse, she said – especially for asylum-seekers who’ve fled traumatic situations and have no criminal history.

“It’s a tremendous shock and a tremendous sense of humiliation and vulnerability, in addition to the fact they have just fled a country where they are persecuted and they thought that on arriving here, they would be safe.”

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READ MORE: Canada’s Unwanted – Non-citizens paid to leave, jailed without charge, die in secret

Pam Shiraldini knows what that’s like.

Her husband Masoud Hajivand has been in an Ontario jail for almost a year. He’s accused of no crime: He just wants to live and work in Canada, as he has for years. And as a Christian convert he’s terrified that he’ll be jailed or executed if sent back to Iran.

“He is very stressed out. He has lost memory, he cannot concentrate properly,” Shiraldini said.

“It’s a very hard situation. He’s not functioning properly inside. It really makes me worried.”

Other detainees at the Lindsay, Ont., jail are in similar states of mental distress, she said. They’re frequently under lockdown, unable to leave their cells.

“They’re not doing well. They’re talking to themselves.”

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Mental health and the detention process

According to the Immigration and Refugee Protection Act, CBSA can detain someone if they believe they’re unlikely to appear for immigration proceedings, they’re a danger to the public or if there is uncertainty about their identity.

People with mental illness could be misinterpreted as fitting into one of those categories, said Mandhane.

That makes it more likely they’ll be detained. And when sick people are detained, officials often send them to a jail on the grounds that health care is better there, she said.

“We also know that people at the holding centre who are disruptive or have behavioural issues related to an issue will be transferred to the jails,” Mandhane said.

“We find that people who have serious mental health issues are routinely and almost presumptively transferred to the jails because CBSA believes they will access treatment in the jails. …

“I don’t think anyone believes that these jails have adequate mental health treatment except CBSA.”

“The CBSA takes the issue of mental health seriously,” reads a statement from CBSA provided to Global News in response to questions. “The CBSA has contracted medical doctors and nurses for its immigration holding centres in Toronto and Laval, which includes access to mental health practitioners. Should indicators warrant, the detainee would be immediately transferred to a provincial jail with dedicated on-site medical and mental health support. In addition, detainees held within correctional facilities have access to that facility’s health care services, including mental health support.”

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However, detainees rarely access psychologists or medications in jail unless their condition is particularly disruptive, said Mandhane. As a result, depression, anxiety and PTSD symptoms go untreated.

Illness can also stack the deck against detainees seeking release, she said: The onus is on them to convince the Immigration and Refugee Board they can obtain treatment in the community.

(Ironically, this is made even more difficult by the federal government’s cut to health care programs for refugee applicants – cuts a court ruling called “cruel and unusual.”)

IRB spokesperson Anna Pape said the board has ways of accommodating vulnerable people, including those with mental health issues. She said evidence including a detainee’s mental health is assessed on a case-by-case basis.

And mental illness shouldn’t be a cause for somebody to be detained.

“People aren’t detained because they have mental health issues,” she said.

“That’s not part of the Immigration and Refugee Protection Act. That’s not a reason to detain somebody in itself.”

Detention is considered a last resort for people with behavioural and mental health problems, said CBSA in a statement. “However, if detention is required (for example, due to a flight risk), CBSA guidelines state that detention of vulnerable individuals should be for the shortest time possible and primarily focused on supporting the removal of that individual.”

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“The CBSA wants to make sure that it is exercising responsibility for detentions to the highest possible standards, with physical and mental health and well-being of detainees as the primary consideration‎.”

Mental health and human rights

The University of Toronto researchers plan to present their findings to the United Nations human rights committee in July.

“We’re going to argue that this regime and the treatment of these detainees is arbitrary detention and that it’s cruel and unusual treatment that violates the right to health,” Mandhane said.

“To me, these cases of long-term detention, they really illustrate that the system’s broken.”

There’s not enough oversight to prevent this from happening, she said, and inadequate mechanisms for detainees to seek redress. In a statement, CBSA said that independent oversight of detention decisions is provided by the IRB, which determines whether detention should continue.

Mandhane also argues that the likelihood of detainees with mental illness to be transferred to higher-security jails constitutes disability-based discrimination. Inadequate care constitutes a violation of their right to health, she said.

The report’s recommendations include independent oversight, a maximum detention period of 90 days after which the government would have to prove a detainee poses a danger to the public to continue detaining them, and wider use of alternatives to detention.

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Most of the sickest people the researchers interviewed – those who had schizophrenia, for example – are held because they’re considered “flight risks,” not because they pose a danger to the public. Flight risk concerns could be managed through regular reporting, community treatment facilities or even electronic monitoring, she said.

“The government’s already spending like $50 million on this every year to detain people. Presumably some of that money could be used to create these meaningful alternatives for some of these people who have mental health issues.”

In the 2013-2014 fiscal year alone, CBSA paid the Ontario government more than $21 million for jail space for detainees. On any given day in Canada, there are approximately 520-550 detainees in all facilities. The average length of detention in 2013-2014 was 20 days.

EDIT: Updated June 18, 2015 at 10:45 a.m. with statements from the CBSA. 

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