Canada can jail asylum seekers indefinitely — but now there’s a movement to change that

British Columbia announced in July that it will no longer hold immigration detainees in provincial jails. Nova Scotia followed suit two months later, saying it also plans to end its contract with the Canada Border Services Agency next year.

Human rights advocates and immigration lawyers who represent people held in detention — mostly asylum seekers and failed refugees — heralded the announcements as major victories.

Now, they say, it’s time for other governments to do the same.

“There is now clear pressure to end this harmful practice across the country,” said Amnesty International Canada’s secretary general Ketty Nivyabandi in July. “We urge other provinces and the federal government to follow suit.”

Proponents of keeping immigration detainees in provincial jails argue it’s necessary because not every province has an immigration detention facility and because certain people could pose a risk to the public.

Those opposed to immigration detention, including in provincial jails, argue that the overwhelming majority of people detained have never been charged with or convicted of a crime and present no risk to the public.

Canada is also one of the last remaining liberal democracies without a legal limit to how long people can spend in immigration detention.

The UN Human Rights Commission has criticized Canada for its use of indefinite detention and called on the government to set a “reasonable time limit” for how long a person can be held.

View image in full screen

But for Sara Maria Gomez Lopez, a human rights activist who fled Mexico in 2012 after she and several colleagues were targeted because of their work, the debate about ending immigration detention in provincial jails is happening 10 years too late.

“I was sent to jail,” Lopez said during a recent interview from her home in Vancouver. “And nobody told me it was a real jail.”

Lopez is one of roughly 9,000 people held in immigration detention in Canada each year, according to government data. She was sent to a maximum-security facility in B.C. for three months in 2012.

Statistics published by the CBSA show that during the past decade, about 30 per cent of people detained on immigration-related matters were kept in provincial jails. The remainder were held in immigration holding facilities.

Researchers have found that immigration detention can lead to serious mental health issues for asylum seekers.

Global News is investigating the risks asylum seekers in Canada face of experiencing serious mental health issues, including minor and major depression, anxiety and suicidality.

This comes at a time when the number of people fleeing their homes due to conflict and political instability is at a record high. According to the most recent UN study, there were nearly 100 million forcibly displaced people at the end of 2021.

Immigration officials in Canada have also expressed concerns that the number of people seeking asylum in Canada could spike once COVID-19 restrictions are lifted and international travel returns to normal.

If they’re right, and the number of new claims suddenly increases, it would place stress on an already fragile system, extending wait times for processing and imperiling the mental and physical well-being of asylum seekers looking to Canada for protection.

A decade ago, Lopez arrived in Canada to make a refugee claim. According to a Federal Court decision in her case, she and several colleagues uncovered a plot to commit cyber attacks against U.S. energy infrastructure.

The court’s decision said the people who planned the attacks targeted Lopez and her colleagues with violence. One of Lopez’s colleagues was also infected with an unusual strain of hepatitis that may have been created in a lab, the court’s decision said, suggesting it was an attempt to kill them.

When the group reported these threats to the authorities in Mexico, no one in the government or the police offered to protect them.

That’s when Lopez fled — first to the U.S. and then to Canada.

Lopez said she and a colleague left the U.S. after they were discovered by the same people who threatened them in Mexico.

View image in full screen

Three days after she arrived in Canada, Lopez said immigration officials arrested her. To this day, she said, she has no idea why she was arrested.

She claims one of the CBSA officers who detained her said she should “prepare to be deported” because most Mexican asylum seekers are unsuccessful.

Lopez said she was handcuffed outside the shelter where she was staying and brought to a detention-review hearing at the Immigration Refugee Board (IRB) in downtown Vancouver.

An adjudicator in her case later determined she was a “flight risk” because she didn’t tell an immigration officer in the U.S. that she was abandoning her claim for protection there and moving to Canada.

Lopez said she was then transferred two hours away to Alouette Correctional Centre in Maple Ridge. It’s the province’s only maximum-security jail for women.

The shock of being sent to jail made her feel suicidal, she said. She had no family in Canada and she felt alone and desperate.

“For many days, my idea was to just end the suffering,” she said. “I thought, I’m not going to make it.”

When Lopez got to the jail in November 2012, she said she spoke very little English and that no one who worked there spoke Spanish.

She met an inmate working in the laundry who knew a little bit of Spanish, she said, who she could confide in. The woman told her people who try to harm themselves in jail end up in solitary confinement.

“She said if you’re going to (attempt suicide), make sure that it’s over. Because if not, you’re going to be sent to segregation and it’s going to be worse,” Lopez said.

View image in full screen

The IRB accepted Lopez’s claim for refugee protection and the Federal Court later confirmed it. She’s now a permanent resident of Canada and plans to apply for citizenship.

Ten years after she was freed from the B.C. jail, she says the memories of that experience still haunt her.

“I can’t wear green clothes,” she said. “Because this was the jail uniform colour.”

Lopez now works as an outreach and intake supervisor at a Vancouver centre for people who’ve experienced torture.

She said the agony of being sent to jail when she did nothing illegal was soul-crushing.

“It’s the worst thing that a human being can handle,” she said. “You’re not only losing your freedom, your physical freedom, you can even lose your mind.”

While it’s official CBSA policy that immigration detention should only be used as a last resort for people with mental health issues, in practice, many people who experience these issues end up being detained.

Research has shown that some immigration detainees also end up in provincial jails when the CBSA lacks the capacity to deal with their specialized needs.

Hanna Gros, a University of Toronto law graduate and researcher at Human Rights Watch, said her work has shown that people with mental health issues face discrimination throughout the detention process and are more likely to be placed in provincial jails.

“We spoke with CBSA representatives who essentially indicated that people with mental health conditions may be detained in more restrictive conditions where their ‘behavior’ could be better managed,” she said.

Gros spent two years researching and writing a report on Canada’s immigration detention system for Human Rights Watch and Amnesty International.

Her work, published in June 2021, cited a CBSA enforcement manual that says border officers should consider a person’s mental-health status when deciding whether they should be detained.

The manual, which is publicly available, says that “suspected or known untreated addictions or mental illness linked to a violent behaviour” are factors to consider when deciding to detain someone.

The manual also draws a link between people who experience mental illnesses and a “danger to the public.”

“There may be reasonable grounds for thinking that an individual suffering from an untreated mental illness is a danger to the public – for example, unstable violent behaviour toward an officer during interaction,” the manual says.

Gros said there’s also evidence that people with mental illnesses kept in provincial jails end up in solitary confinement more often than other prisoners.

Her report cited a 2020 independent review by former provincial court justice David Cole that found 46 per cent of people held in solitary confinement in Ontario jails had at least one mental health alert in their file.

The report looked at all inmates, not just immigration detainees, but Gros said there’s “no evidence” people held in provincial jails on immigration-related matters are treated any differently than the general jail population.

“People with mental health conditions who are in detention actually receive more coercive treatment because of their mental health conditions,” Gros said.

A number of similar independent reports and reviews completed over the past five years have found problems with Canada’s immigration detention system.

The federal government and CBSA have since committed to finding alternatives to detention for people held on immigration-related matters whenever possible.

Alternatives include allowing people to be put in the care of a family member or community group, using electronic monitoring, and establishing conditions people must meet, such as limiting where they can travel.

In response to questions from Global News about the use of immigration detention for people with mental health issues, the CBSA said its officers try to avoid detaining people whenever possible, adding that all border officers “receive training on recognizing, assisting and interacting with those experiencing mental health conditions, as well as mandatory training on the prevention of suicide and self-harm.”

“The CBSA’s enforcement manual does not categorically state that foreign nationals should be detained if an officer suspects that there is a mental illness,” said CBSA spokesperson Rebecca Purdy in a written statement. “It does address potential behavioral challenges observed by officers during the interaction that could result from untreated mental illness.”

View image in full screen

Purdy said an updated version of the enforcement manual, which will be released later this year, contains a checklist border officers must comply with before detaining a person with a mental health issue.

She said the updated manual also “specifically recommends the avoidance of detention where there are no danger to the public concerns.” This is not the case with the current manual.

“In exercising their authority to detain, officers must consider all alternatives to detention, individual assessment of the case and the impact of release,” Purdy said.

The CBSA also acknowledged that in certain circumstances it lacks the capacity to deal with people it detains who have mental health issues. In these cases, people are transferred to provincial jails based on the recommendations of medical professions.

“In regions with access to an immigration holding centre, every attempt is made to manage vulnerable persons with mental illness within the facility,” Purdy said. “However, detention within provincial facilities is utilized where the needs or behaviours of the detainee cannot adequately be managed within a (holding centre) or in regions where no (holding centre) exists.”

Purdy also said the CBSA “monitors the conditions of detention” at immigration holding centres and provincial jails to ensure they are “not akin to segregation.”

One of the biggest concerns advocates have with immigration detention in Canada is that there’s no limit to how long a person can be incarcerated.

Janet Cleveland, who specializes in the rights and health of asylum seekers at McGiil’s Sherpa University Institute, said the threat of indefinite detention looms large over people seeking protection in Canada.

She also said few people who come to Canada to make a refugee claim are aware they could be arrested and detained for doing so.

“People we interviewed, again and again, said ‘I’m not a criminal. I haven’t done anything wrong,’” she explained.

Cleveland said that once people are detained there’s also very little for them to do other than worry about their claim and whether they could be deported.

This exacerbates many of the stressors people may be feeling, including the fear and anxiety of having fled a country where they were being persecuted, she said.

“That’s the kind of situation where some people will go over the edge towards despair,” Cleveland said. “There may be certainly suicidal thoughts or even suicide attempts.”

Cleveland said there’s also a psychological effect on people held in jails who haven’t committed any crimes that’s caused when other prisoners and staff treat them like they’re criminals.

She recalled the case of an Iraqi democracy activist who was arrested and tortured in Iraq before fleeing to Canada.

She said the man, who was detained after he made an asylum claim in Canada, needed medical care for a back injury but refused to go to the hospital because it meant he would have to be handcuffed and accompanied by a guard.

Cleveland said this kind of situation contributes to poor mental and physical health outcomes for asylum seekers.

“What he told us was, “People are going to look at me and think I must be a murderer or a terrorist,’” she said. “Many people we interviewed said similar things.”

If you or someone you know is in crisis and needs help, resources are available. In case of an emergency, please call 911 for immediate help.

For a directory of support services in your area, visit the Canadian Association for Suicide Prevention.

Learn more about how to help someone in crisis on the government of Canada’s website.