How do asylum seekers end up in provincial jails?

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Jordan Heath-Rawlings I’d like you to imagine yourself as an asylum seeker arriving in Canada. You have come from somewhere thousands of kilometers away. Let’s say you were fleeing political violence. You grabbed whatever ID you had and you left as fast as you could. You have made a long journey. Now, you’ve managed to cross the border, you arrive here and you make your claim. Now, at this point, there are a lot of things that might happen, but for some asylum seekers, this is when things take a very sharp turn. You see, if you don’t have the proper ID, or if the Canadian Border Services Agency deems you a flight risk, they can detain you. Now, some asylum seekers are detained in federal facilities designed and built for this very purpose. Others, though, are not. These others, and there are thousands of them, are sent straight to jail. No accusation of a crime, no charge, no nothing. But under an agreement with several provinces, the CBSA can put them in provincial jails, where they are housed with and treated exactly the same as convicted criminals and those awaiting trial on serious charges. The treatment that these migrants describe in these jails is horrifying. Human rights organizations say that it’s a violation of international law. Our governments disagree with that, but say mostly nothing. And it keeps happening. As I said, there are thousands of these people in jail. What has happened to this system that the end result is people who have not been accused of a crime ending up in a medium security prison. How should this work? Who has the authority to change it? And what happens next when this all comes to a head? I’m Jordan Heath-Rawlings. This is The Big Story. Brigitte Bureau is an award winning investigative reporter with CBC/Radio-Canada. She is based in Ottawa. Hello, Brigitte.

Brigitte Bureau Hi, Jordan.

Jordan Maybe can you start. Because I don’t think a lot of people even know this is happening. Maybe give us a sense of provincial jails like Riviera de Prairie. What are they like and who are they supposed to be for?

Brigitte Bureau Well, provincial jails in Canada house criminals serving sentences of less than two years. But they also house people who are accused of a host of different crimes. Other more severe crimes of waiting, trial. And you have some that are medium security facilities, other are maximum security jails. And yes, recently I have reported on immigration detainees in the Riviera Perry Jail in Montreal. But Jordan, migrants, foreign nationals, are being detained across the country in numerous provincial jails, including in Ontario, for instance, in the Toronto South Detention Center, the Lindsay Jail, the Maple Hearst Correctional Facility in Milton, and many others. And the immigration detainees I’ve interviewed, whether they were in Quebec, Ontario, or British Columbia, because we are preparing other stories on this subject. They all describe the climate of violence in these facilities, how scared. They felt for their safety, for their lives, even. Some have been beaten up. There was one immigrant I’ve spoken with that still to this day has trouble walking because of the severe beating he got by inmates while he was in prison in Ontario. And he said because he had refused to hand over his peanut butter, he said, I didn’t understand the ambience there. I didn’t understand how it worked. I should have just given my peanut butter. But the next day in the showers, they beat him up and he still has trouble walking. So for some of these migrants who had never been detained before, it is a horrible, horrible shock. And some never recover from the trauma, really.

Jordan And as you mentioned, you’ve spoken to a number of them, and I’ve read some of your stories. And I want to ask you, like, who are these folks? Who are people like Juan and Alex, who you spoke to, like, how do they end up in these jails? What are they accused of doing that puts them in there? Well, let’s start maybe with Juan, because he is actually being detained as we speak in the Riviera de Pre provincial jail in Montreal.

Brigitte Bureau So he’s a young man, a soft spoken 23 year old asylum seeker from Venezuela. As you know, that country is an unprecedented political and economic turmoil under the authoritarian regime of Maduro, and 94% of the population is living in poverty right now. So Juan arrived in Canada in last July through Roxham Road at the Canada-US border. He said he arrived there after walking for months across Central America, and he was detained. So he came here and he asked for US file him. He was detained under the Immigration Act. So this is not the penal code, it’s administrative law. He was detained under the Immigration and Protection Refugee Protection Act on arrival because he didn’t have all the proper documentation. So he was not able to establish his identity. But with the help of his lawyer, he did get some of the official documents required. But he is still in prison. And this has been going on since he was transferred from prison in mid September. But he was first detained in July, and he has since then obtained some of the official documentation required. But he’s still in prison, and his lawyer really doesn’t understand why. And it’s very concerning for his lawyer because Juan says he suffers from claustrophobia and detention has been extremely hard on him. Now, Jordan, we tried. Radio-Canada tried to meet in person with Juan in prison. We thought a face to face contact would make it so much easier. He doesn’t speak French or English. Just Spanish. We could have had an interpreter with us. He had agreed to put us on his visitors list so he could tell us his story, but the prison authorities refused. So journalists could not be visitors, only family and lawyers. But he has no family in Montreal, right? He’s a Spanish speaker from Venezuela. So we were still able to speak with him, thankfully, to his lawyers, with his lawyers help. But even that was difficult because remember, Juan, even though he’s not accused of any crime, he is subject to the same conditions as the prison population. So he can only make collect calls to landlines. Now, I don’t know if you know many people that have landlines these days, but anyway, he can only make collect call to landlines. So it’s very difficult for him to talk to his family in South America, for instance. But we finally did get to talk to him. He had called the lawyer’s office. Lawyer called me and said, oh, my God, I got him on the phone now. Do you want to be able to conference? I dropped everything, got on the phone with one, and he cried during the whole conversation. Crying, crying in Spanish, he told us. And let me pull up my notes here. I’ll quote him directly. He says, “I’m very scared. I can’t sleep, I can’t close even my eyes. I don’t understand why I’m here. I’m not a criminal.” And he’s right. He hasn’t been accused of a crime. He has not committed a crime. There’s nobody checked him out. There’s no Interpol, for instance, mandate for him for his arrest. He’s not a criminal. He’s not convicted of any crime. He says he praised God every night to get him out of there. All he wanted, he says, was a better life for himself and his family. Now he fears that the only way he will get out of prison if he’s dead. And all of a sudden, the call was abruptly interrupted. Lawyers said it happens often. They don’t know why, but all of a sudden they can’t talk to us anymore. Is it another inmate that took the phone? We don’t know. But just before he hung up, he did tell us, “Please don’t abandon me.”

Jordan Wow. I mean, this is the million dollar question, obviously, but how does that happen? You mentioned he hasn’t been accused of a crime. He hasn’t been charged with a crime. He came to Canada as an asylum seeker, and thousands of people do that. It’s just that he didn’t have the right documents. So we put him in prison.

Brigitte Bureau That’s right. CBSA. The Canada Border Services Agency can do that. They usually detain people for three reasons. They will detain under the Immigration and Protection Act. Again, not a criminal matter, an administrative law matter. They can hold them for three reasons if their identity has not been clearly established, even though they’re fingerprinted and so forth, but if their identity has not been clearly established, if they are considered to be a flight risk. So if CBSA believes that the person might not show up for an immigration procedure, such as a removal order, they can detain them. They can also detain them if they pose a risk to society. Now, according to CBSA’s own data over, the people being detained by CBSA do not pose a risk to Canadian, to the Canadian public or security. They are being held under flight risk. And the other 9%, I believe, is for identity. So it is a very small percentage of people that are being held may be under criminality or maybe because they’re checking out to see if they have a criminal record or might pose a risk to Canada. And I will tell you, Jordan, every immigration detainee I’ve spoken to, none of them say that there should not be any stress greeting. All of them understand that they should be screened, that their doses should be looked at very carefully, but they don’t understand the manner in which this is done. That’s what really gets them. They have left their country for a better place and they are treated this way. And that’s what they don’t understand.

Jordan I want to get at the word detained here because I do understand and much like these asylum seekers, there needs to be screening. We need to make sure that people coming in to Canada don’t pose a threat, that we know who they are, et cetera, et cetera. But like when I hear detained by CBSA, I imagine that we have facilities for these folks that are not provincial prisons where we put people who have been charged or convicted of crimes, like where should they go?

Brigitte Bureau No, but you’re absolutely right, Jordan. We do have three federal centers for immigration detention. CBSA has three of these holding centers that are just for migrants. So you have one in Toronto, one in La Vale, Quebec, one in Surrey, British Columbia. And even those, though I must say, are deemed controversial by many human rights defenders, immigration lawyers and so forth because they are run like medium security prisons. But the difference is that they are amongst migrants, find themselves amongst other migrants, not a criminal population, not a prison population. But CPSC can decide where they want to house these detainees, so they can decide to send them to leave them in their immigration holding center or to send them to provincial jails. Now, they say that they only use provincial jails as the last recourse. If, for instance, there’s no federal center in the region where the person was detained, or again, if the person is having behavior or aggressive manners that cannot be managed at the federal holding center, then they would be sent to the provincial jails. But we’ve also had access to information, documents that show that also other people that are being sent to the provincial jails are the ones that suffer from very serious mental health issues. And this was the case about Alex.

Jordan Yeah. Tell me about Alex.

Brigitte Bureau Yeah, this is a very heartbreaking story also, because Alex, by the way, is not his real name. We do have, of course, his real identity. Many of the documents from his official files, but for security reasons, we agreed to call him Alex. And he said he underwent several strip searches during his detention in the provincial jail of Riviera Perry in Montreal, even though he was not charged either with any crime. This man was a rejected asylum seeker, and he spent about six months behind bars before being sent back to his Eastern European country last year, where we reached him, and Alex said he did not understand what was happening to him in detention. He suffered from very serious mental health problems during his imprisonment. And according to an Immigration and Refugee Board document and listen to this, Jordan, Alex was held in solitary confinement. And I quote this document from the Immigration Board in a very, very small cell, there is not a toilet in the cell. There is a hole in the ground. And when we spoke to Alex, he said, you know, and he’s still not totally well. He says prison in general, it kind of makes you feel helpless. He said it was a system like to break you. He said that jail guards insisted on him getting on his knees to take off his handcuffs. In detention, he stopped eating for many weeks, and he says, I thought, if it’s going to be like that, I’d rather die. I won’t let anybody break me. Now, we know that he did have altercations with the guards. His temper did flare up. There were fights. But I was talking to his lawyer who said that this is often the case, it often happens that they are first detained. They don’t understand what’s happening. This man already suffered from serious mental health issues. He didn’t understand why he was being handcuffed, why he was undergoing all this stress. So they start acting up, and then they start acting up. Well, we send you to prison because you have behavior problems. But according to many lawyers we’ve spoken, it’s a cycle. They come in and they are so panicked that it’s often the detention itself that creates the conditions in which they are then moved to a prison.

Jordan Who controls these deals? These are obviously provincial prisons. Presumably, provincial governments have to give their permission for CBSA to send asylum seekers. There are all provinces signed on to these deals. What’s actually the paperwork process, I guess, that is behind this stuff?

Brigitte Bureau Yeah. So you do have agreements. So CPSA itself decides, do we want to keep this immigration detainee in our federal holding center or do we want to send them to a provincial jail? And they can do that under agreements they have signed with different provinces. Now, we know for a fact that British Columbia and Nova Scotia has said recently that they are pulling out of these deals. They don’t feel anymore that these deals, that the imprisonment of immigrants goes along their values, and they will no longer be doing this. Now, they had to give, I believe in they had to give a certain amount of time, a year notice. So this is still going to go on for quite a long time, but in the next year or so, it will stop in British Columbia and Nova Scotia. Now, other provinces are still doing it. Ontario, Quebec. New Brunswick. Saskatchewan. We know for sure with those four provinces that they are maintaining for now, their agreements with other provinces. We’ve been hearing that there might be movement, so we are checking this out. But there are also provinces which with the CBSA does not have a formal contract, but they do have arrangements, and they don’t want to let us know. We ask, what kind of arrangements do you have? How does this work? And they would not let us know. But we have seen some of the arrangements. And I can tell you, for instance, at Ontario, all the provinces that do this are paid by the federal government to imprison these migrants. So, for instance, and let me just find the number here, Ontario. Ontario receives $356 per day to detain immigrants, according to a copy of the agreement that was obtained by Human Rights Watch and that they shared with us. And of course, them being in those jails, and this is so important to know, Jordan, these people are treated exactly the same way as the criminals are. The people who have committed crimes, do they have to live with. So, for instance, when they are being transported to appointments outside the jail, say, to go see a doctor or immigration procedures, so forth, the immigration detainees are handcuffed. They are shackled. They are subjected to strip searches, including rectal searches, which we find incredibly like. When people tell me about this, they all have the same reaction. They become extremely shy. They start stuttering. They don’t know how they’re beating around the bush. They don’t know how to tell me that this is happening to them. Also, they do not have access to Internet or their phones, but they are required by CBSA, the Canadian Border Services Agency, to gather documents and proof of their situation. But they are ordered to do so without all the necessary tools to gather this information. And because of this, often when they are first detained, their family has no idea where they are. And it is extremely hard. I’ve been told by certain detainees, knowing that their families back home probably think that they didn’t make it to Canada and that they are probably dead. And by the way, all that I’m telling you hear about the fact that they are treated this way. It’s not just the immigration detainees or their lawyers that describe these dire conditions. The Canadian Red Cross, which regularly visits provincial jails to verify the conditions of detentions of migrants, confirms this in its reports year after year that they are being treated exactly the same way as a criminal population.

Jordan So this is going to sound like a dumb question, but how is this legal? These people haven’t committed a crime. They haven’t been accused of committing any crimes. Is this legal? Does it violate any international human rights? Like who’s standing up for due process here?

Brigitte Bureau Yeah. According to international law, the detention of migrants and this is not me saying this I’ve chatted with many lawyers, including a lawyer from the Canadian office of the United Nations High Commissioner for Refugees. So a person that knows a thing or two about this. So according to international law, the detention of migrants for administrative reasons can be done, but as a very last resort, and for the shortest period possible, as soon as you have established their identity, for instance, you’re supposed to let them go. But under international law, immigration detainees must not be imprisoned in the same facilities as criminals, as facilities used for criminal purposes. That does violate international law, according to all the experts I’ve spoken with anyway. And it also says that immigration detention must not be punitive. But here we are. Because they have not committed a crime, they are there under administrative reasons. It must not be punitive. Well, we are handcuffing them, we are shackling them. So this is seen as punitive, and it is not supposed to be. The lawyer from the United Nations High Commissioner to Refugees, was also telling me that, reminding me that, you know, asking for asylum, for instance, is not illegal. Even if you don’t come in at an official border crossing, people have the right to go to another country asking for help. We have international conventions that state that.

Jordan So what does the federal government have to say here? Obviously, it oversees the CBSA, as you just mentioned. It is paying the provinces to keep these asylum seekers in jail. This is ultimately laddering up to them. What does the government say? What does the minister say?

Brigitte Bureau Well, they say that they believe that they are following international standards. But really, Jordan, they seem to be one of the rare people to believe this. And they do have a huge role. They are responsible for the system. We spoke with the Minister responsible for CBSA, Marco Mendesino, just last week, Minister for Public Safety, and I’ll quote him here. He says there may be legitimate reasons to detain people who come to Canada, even in the case of some who are seeking asylum. And he says so that is why it’s important that we have CBSA who do inadmissibility screenings to make sure that first we protect the integrity of the immigration system, but that we also protect the Canadian public. We need a balance to be sure that when they are held in custody and I’m almost finished my quote here, that they are being held in a way that is consistent with international standards. But you have many different organizations that don’t believe that. They do believe that the imprisonment of migrants. What we are doing in Canada is a clear violation of international law. And that’s why we have a campaign right now. There’s Amnesty International and Human Rights Watch who have this campaign called welcome to Canada, where they are trying to convince provinces because they’ve tried with the federal government and they’re having a hard time. So now they’ve decided to go after the provinces to ask them to really put an end to their contracts with CBSA.

Jordan What other options are there? How could we do this differently? We’ve talked about the facilities that do exist. Are those facilities full? If they are, where else could we put these people? Or do these people need to be detained at all?

Brigitte Bureau That is such a good question. Jordan you know, in the short term, one of the immigration lawyers I spoke with, Chantal Ianniciello from Montreal, she said she believes that CBSA could use its three immigration holding centers to detain the more severe cases, provided, of course, that the agency surrounds itself with health professionals capable of treating them. Like, Alex that we talked about, was sent to provincial jail because he suffered from very serious mental issues, was having behavioral problems, while a case like that should be treated by the immigration holding center, she believes. And then she says that because she deals with people like this on a daily basis, she has many clients who are detained by CBSA, and she says that many people currently detained in the federal centers could easily live in the community under certain conditions while their immigration file is being processed. And the proof of this for many people is that’s exactly what CBSA did during the pandemic. At one point, because they were afraid of a covid outbreak in its facilities, they started letting these immigration detainees get out in the community.

Jordan And the world didn’t end.

Brigitte Bureau And the world didn’t end. No, it didn’t. And for instance, some of the conditions that were used was asking for them to report on a regular basis, either by phone or in person. They can get a bonus person, a guarantor, to say, okay, you know what? This is a friend of mine. I’ll take him in. I will make sure that he shows up to his appointments. I vouch for this person. In more severe cases, you can even have electronic bracelets following the person’s every move. So there are other options. But, you know, these lawyers I’ve spoken to, but also Human Rights Watch and Amnesty International do underline the fact, though, that the immigration holding centers are themselves controversial because they do operate like jails. But in the short term, they’re saying, let’s stop imprisoning in jails these migrants. Let’s use the holding centers. And then in the longer term, let’s try to find a way to really stop detaining these people altogether because they have done nothing wrong. The ones that might pose a risk, sure, but when they’re there for flight risk or identity documents, so forth, they don’t believe that they should be detained.

Jordan So, last question then what happens next? It kind of sounds, from what you’re describing with the campaign and with lobbying, that there is some momentum to end this practice. Are there any court challenges? Like, are we waiting for something to happen here?

Brigitte Bureau Actually, I think you’re right when you say that there is a certain momentum because after years of trying to put a stop to this, organizations, human rights organizations, have succeeded in convincing provinces to stop this. So this is going to force CBSA to find other ways. So if British Columbia, for instance, and Nova Scotia, who have already said, we no longer want to be part of this business of detaining in our jails, immigration detainees, this will force CBSA to go in a different route. So they do believe that the public pressure is helping here. There’s also calls for Mendocino, Minister Mendocino and the Trudeau government to put forward the bill. They have this bill for oversight of CBSA and it never goes anywhere. They keep putting it on the agenda and then it goes away. And now it’s back on the agenda. So many people are asking that CBSA has a certain independent oversight. It is the only major law enforcement agency that has no oversight, independent oversight like the RCMP has, like CSIS has. There’s nothing. So whenever there’s a migrant that has a problem, for instance, a detainee, but it can also be Canadian travelers or anybody else, there’s nowhere to turn to complain against the CBSA, because then it’s a CBSA that investigates itself. So it is high time, according to many experts, that this bill goes through and that CBSA has to explain its actions a little more because right now there’s a feeling that they can do about anything they want. They have incredible powers to detain people without a mandate, without warrants, and they feel that it’s about time that they have to account to somebody outside of CBSA.

Jordan I guess we’ll see what happens in the next few months or years, hopefully not years, but thank you so much for this, Brigitte.

Brigitte Bureau I appreciate, I appreciate you asking me to chat with you about this. Thank you Jordan.

Jordan Brigitte, Bureau of CBC/Radio-Canada. That was The Big Story. For more, you can head to the Bigstorypodcast CA. You can find us anytime, anywhere. You know by now on Twitter at thebigstory FPN, I’m often in the replies there and in the DM. So if you want to say something, say something. I’ll probably see it. You can also email us directly. Hello at thebigstorypodcast CA. Everyone on the team has access to that email and we read everyone and you can call us if you still use a phone. 416-935-5935. You can’t text us, though we won’t get the text. You’ve got to leave a voicemail. You can find the Big Story in every single podcast player and ask for it on every single smart speaker. I’m not sure if you can ask a smart speaker to review the podcast, but if you use a smart speaker to listen to it, you should go over to your podcast player and leave us a review. I’ll appreciate it. Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.