June 2, 2024 The Honourable Tony Dean Chair of the Committee Standing Senate Committee on National Security, Defence and Veterans Affairs Senate of Canada Ottawa, Ontario K1A 0A4 Dear Senator Dean: I am writing to provide additional information in response to a number of issues raised during the May 27, 2024, panel discussion on the subject matter raised in

part 4, division 39 of Bill C-69, and to address statements by some of the panel members that I do not believe to be supported by facts. Canadians expect the Government, all Parliamentarians and the Canada Border Services Agency (CBSA) to take the necessary and appropriate measures to protect their safety and security. That’s why immediate steps are being taken to safely and securely house high-risk immigration detainees after all ten provinces decided to end their agreements with the CBSA.

This includes making the necessary retrofits to the existing CBSA-managed Immigration Holding Centers (IHC), and allowing the CBSA to enter into a temporary agreement with the Correctional Service Canada (CSC) to use a

section of a penitentiary for the purpose of detaining a small number of high-risk individuals separately and independently from the federally-sentenced offenders. The proposal that was presented as part of the Budget Implementation Act 2024 aims to temporarily replace the long-standing use of provincial correctional facilities to house high-risk immigration detainees who have a documented history of violent or aggressive behaviour, and who pose a threat to public safety or to the occupants of IHCs, such as other detainees, staff and NGO representatives.

It is worth noting that the vast majority of immigration detainees currently being held in provincial correctional facilities while awaiting their removal from Canada have convictions for serious crimes, including sexual assault, murder, and armed robbery. I trust that Senators share my intent to ensure that Canadians are not faced with the unwarranted and undue risk to their safety that is posed by individuals who have been assessed as posing a threat by CBSA while in immigration detention.

I would like to thank you for inviting officials from the CBSA to participate in this discussion and for the Committee’s engagement and thoughtful questions. I trust that the Committee found useful the CBSA’s information on the federal immigration detention program and how it is carried out in accordance with fundamental procedural safeguards, as guaranteed by the Canadian Charter of Rights and Freedoms and in accordance with international standards.

I would like to remind you that immigration detention is governed by the Immigration and Refugee Protection Act (IRPA), and the decision to detain is reviewed by the Immigration and Refugee Board (IRB). It is the IRB, an independent, quasi-judicial tribunal, that has the authority to continue the

- 2 - detention or order the release of an individual. Canadians rightfully expect the CBSA to abide by its legal obligations and comply with IRB decisions, including any conditions of detention or release imposed. Detention is a necessary tool that underpins a well-managed migration system, a backstop to assist in the enforcement of IRPA, which is required to ensure the integrity of Canada’s immigration program as a whole in addition to supporting the Government’s public safety responsibilities. I would like to correct the following inaccurate assertions made during the Committee’s pre-study: 1.

Most immigration detainees in provincial facilities are not there for safety reasons. As of May 24, 2024, 27 of the 184 individuals in detention were being held in a provincial correctional facility. I would like to emphasize the fact that it is an individual’s conduct—and not the mere presence of a criminal record—that determines whether they can be safely managed within a CBSA-run immigration holding centre or need to be placed in a more secure facility, such as a provincial correctional centre.

Therefore, regardless of the grounds for detention—be it for identity, flight risk, or danger to the public—if an individual’s conduct in an immigration holding centre is creating a safety risk for other detainees or staff, they may need to be placed in a different facility better suited to mitigate the threats being presented.

The placement of an immigration detainee is made by a CBSA officer following a review of the individual’s file; consideration of previous interactions with law enforcement; direct interviewing of the individual; and, for detainees already in an immigration holding centre, direct observation of their conduct by staff within the facility. In making these decisions, officers need to consider the safety of other detainees whose well-being could be jeopardized by the presence of an individual who cannot be safely managed within an immigration holding centre as currently designed.

It is important to note that the IRB is required to consider conditions of detention in coming to a decision on an individual’s release or continued detention. An independent decision maker reviews the proportionality of the risk that the individual poses against the conditions of their release, among several other factors, thus providing a safeguard against arbitrary or subjective decisions by a CBSA officer.

The average daily number of detainees in provincial facilities dropped from 325 to 63 between the 2014–2015 and 2023–2024 fiscal years, which is an 80% decrease and reflects the Agency’s efforts to limit as much as possible the use of correctional settings under the National Immigration Detention Framework launched in 2016. Detention under IRPA is an enforcement tool used for the ultimate objective of removal from Canada of individuals with an enforceable removal order who have exhausted all options for remaining in Canada, and whom the CBSA has a statutory obligation to remove as soon as possible.

Parliament and the courts have recognized that the detention of individuals who pose a present risk to public safety, regardless of having served a criminal sentence, is a legitimate means to protect public safety. Individuals posing no safety risk, and who demonstrate an ability to comply with the necessary immigration enforcement processes, can be released on an alternative to detention pending their next process, such as an admissibility hearing or removal from Canada.

The CBSA’s commitment to releasing individuals on alternatives to detention is supported by the statistics that show that over 98% of individuals currently subject to immigration enforcement actions are on such an alternative, while only less than 1.5% are being detained in an immigration holding centre, with the remaining 0.5% engaging in conducts requiring them to be placed in a more secure provincial

- 3 - correctional facility. In short, the Agency is required to rely on detention for managing individuals who are unable or unwilling to voluntarily abide by the rule of law, or who pose a threat to public safety. 2. Detainees are often in immigration detention while awaiting a space in an alternative program. Detention is always a measure of last resort, and the statistics demonstrate that, as of May 24, 2024, 12,970 individuals (which represents 98.6% of all of those who are currently subject to immigration enforcement actions) are in an alternative program while only 184 (1.4%) are in some form of detention.

The Minister has a responsibility to ensure that the release on an alternative to detention be consistent with safeguarding public safety. The ability to release an individual on an alternative to detention is not only reliant on the availability of a suitable alternative that mitigates known risks, but also requires an expectation that the individual will comply with any imposed conditions of release. Where there are concerns that the individual poses a potential public safety threat, extra diligence is required to ensure that this threat can be effectively mitigated by any proposed conditions of release.

The non-compliance rate of higher-risk individuals released on stricter alternatives to detention is significantly higher than lower-risk individuals released on general reporting conditions. For example, in the last quarter of the 2023–2024 fiscal year, there was a 50% non-compliance rate of higher-risk individuals released on Community Case Management and Supervision programming with a mandatory residency condition. This demonstrates that there will always be individuals for whom release on an alternative to detention is not an option.

Furthermore, a CBSA officer’s decision to initiate detention in an Immigration Holding Centre is subject to an independent review by an IRB member. Detainees must appear before the Board within the first 48 hours of being detained, and again after seven days and every 30 days thereafter. The CBSA is legally obligated to enforce conditions imposed by the IRB regardless of an individual’s conduct, if so ordered by the IRB. 3. Immigration holding centres are suitable for all detainees.

The CBSA’s immigration holding centres were purposefully designed to offer free movement within the facility to optimize detainee well-being. It is not possible to safely manage a high-risk population in this type of open communal setting. The Agency is working to upgrade its facilities so that they are suitable for safely managing detainees of all risk levels.

Placing high-risk detainees in the immigration holding centres as they are currently configured would put the CBSA in a situation where it could be found to have breached its duty-of-care obligations to the occupants, including detainees, staff, visitors, and non-governmental organizations. The CBSA is taking steps to house in its own facilities higher-risk individuals who would have otherwise been placed in provincial correctional facilities. Major infrastructure upgrades are underway in immigration holding centres across the country, and specialized training and tools for staff are being deployed.

These infrastructure enhancements will take time; in the meantime, a temporary measure for accommodating the highest-risk population is necessary. The proposed legislative measures would only apply to the group who, for security reasons, cannot be safely accommodated in immigration holding centres as currently configured.

- 4 - 4. Detention is the CBSA's way of dealing with behavioural and mental health issues The CBSA has contracted medical staff to support the health of detainees. Where the needs of an individual exceed the capabilities of in-house contracted medical resources, the Agency has the ability to refer individuals to local hospitals. Officers take into consideration any potential vulnerabilities that an individual may have when making decisions regarding detention placement and/or potential release on a suitable alternative to detention.

To be clear, the CBSA does not automatically use a possible mental health condition as a justification for detention or equate such a condition as a potential danger to the public, nor does it detain individuals solely because they have or may have a mental illness.

In addition, officers and contracted guards receive training on identifying conduct that could indicate that an individual is suffering from a mental health crisis, and on how to interact with those individuals to mitigate the concerns and take steps to refer them to in- house medical specialists, including nurse practitioners, psychologists and psychiatrists. When an individual’s pattern of behaviour raises concerns about the safety of others, they are more likely to be determined to be high risk, resulting in them being placed in a more secure facility.

The CBSA is legally obligated to maintain the detention of individuals, regardless of their conduct or behaviour, or of any mental health challenges they may have, if so ordered by the IRB. In discharging its mandate in the most compassionate manner possible, the Agency continuously seeks to offer services that respond to detainees’ needs while in their care and custody. 5. “Immigrant stations” will be unable to provide adequate mental healthcare.

The CBSA works to ensure that it is exercising its responsibility for detention to the highest possible standards with regard to the physical and mental health and overall well-being of detainees. Immigration holding centres are staffed with contracted medical professionals, including nurses and physicians, who are available to monitor the health of detainees on a daily basis. The medical staff also includes a psychologist and a psychiatrist. The focus on medical services, in particular on mental health and addiction counselling, is a priority for the Agency.

This holds true regardless of whether an individual is held in an immigration holding centre or in the future CSC owned, CBSA operated facility. It is important to remember that these would be managed solely by the CBSA within a CSC facility. Should the proposed legislative amendments come into force, the processing of all new detainees would continue to take place at an immigration holding centre, a process that includes an intake assessment by medical staff.

Clients placed in the CSC-owned facility would continue to have ongoing regular contact with CBSA officers and benefit from the same medical services as those held in immigration holding centres. Budget 2024 includes new funds to secure the services of medical personnel assigned to these facilities to provide a level of medical care commensurate to that offered in existing immigration holding centres. 6. Immigration detention often results in family separation. As of May 24, 2024, there were no minors in any of CBSA’s immigration holding centres.

The CBSA does not separate minors from their family members (parents or legal guardians) unless it is in the best interest of the child, and following consultation with local child welfare agencies. When accompanying family members are detained under IRPA at an immigration holding centre, the housed minor may remain with their parents/legal guardians, at the parents’/legal guardians’ request and consent, if it is determined to be in the child’s best interest.

As the children themselves would not be detained under IRPA, they would be free to leave the immigration holding centre to be in the care of another family member.

- 5 - In November 2017, my predecessor issued a Ministerial Direction to the CBSA to, as much as humanely possible, keep children out of detention and keep families together. The Directive makes it clear that the best interests of the child must be given primary consideration. To further support the Direction, in June 2019, regulatory amendments were introduced in the Immigration and Refugee Protection Regulations, providing a mandatory set of considerations for officers who are faced with a detention decision where a minor child is involved, and which enshrine the principles of best interest of the child. 7.

Lack of oversight of immigration detention. The Government’s Bill C-20 would give the Public Complaints and Review Commission the authority to review any non-national-security activity by the CBSA, including detentions. It would also be empowered to receive and investigate complaints from individuals detained by, or on behalf of, the CBSA. The Commission would be authorized, under subsection 28(2) of the Bill, to conduct reviews of any non-national-security activity of the CBSA, including detentions.

The Bill would ensure that any individual detained under IRPA has a right to be informed, as soon as feasible, of their right to make a complaint and of how a complaint may be made.

The Public Complaints and Review Commission could receive and investigate complaints related to the conduct of any CBSA employee, including contracted service personnel, and to the level of service provided by the CBSA, from detainees held in CBSA immigration (currently located in Surrey, British Columbia; Toronto, Ontario, and Laval, Québec) and, by extension, detainees held in designated “immigrant stations” located on CSC grounds, as per Bill C-69.

In addition to the oversight that Bill C-20 would bring, the CBSA already has a partnership with the Canadian Red Cross, which is empowered to monitor the conditions of detention and the treatment of immigration detainees in CBSA immigration holding centres and other detention facilities through the Immigration Detention Monitoring Program. Through this program, the Red Cross prepares annual reports that the CBSA proactively and transparently publishes online.

Further, to ensure transparency to Canadians, a provision has been included in the legislation that would grant all Parliamentarians and judges of a Canadian court access to the

section of a penitentiary that will be used for immigration detention purposes. Finally, while Senators and stakeholders may have strong views about immigration detention, C-69 does not alter the provisions governing it, which have been upheld as constitutional by the courts. This Bill simply allows for the use of a new facility, namely a CBSA-operated

section of CSC institution instead of a provincial correctional institution run by provincial correctional staff. This would be done on a time-limited basis and for reasons of public safety.

- 6 - Please note that my office and the CBSA remain available to discuss these matters further at your convenience. Sincerely, Dominic LeBlanc, P.C., K.C., M.P. Minister of Public Safety, Democratic Institutions, and Intergovernmental Affairs c.c. The Hon. Jean-Guy Dagenais, Senator The Hon. Dawn Anderson, Senator The Hon. Peter M. Boehm, Senator The Hon. Andrew Cardozo, Senator The Hon. Claude Carignan, P.C., Senator The Hon. Donna Dasko, Senator The Hon. Marty Deacon, Senator The Hon. Stan Kutcher, Senator The Hon. Rebecca Patterson, Senator The Hon. David Adams Richards, Senator The Hon. Hassan Yussuff, Senator The Hon. Kim Pate, Senator