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THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY, DEFENCE AND VETERANS AFFAIRS

EVIDENCE

OTTAWA, Monday, May 27, 2024

The Standing Senate Committee on National Security, Defence and Veterans Affairs met with videoconference this day at 4:01 p.m. [ET] to study the subject matter of those elements contained in Division 39 of

Part 4 of Bill C-69,

An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024.

Senator Tony Dean ( Chair ) in the chair.

[ English ]

The Chair: Honourable senators, before I begin, I would like to remind all senators and other in-person participants to consult the cards on your desks for guidelines to prevent audio feedback incidents. Please take note of the following preventative measures in place to protect the health and safety of all participants, including our interpreters. If possible, ensure that you’re seated in a manner that increases the distance between microphones. Only use a black approved earpiece. The former grey earpieces are no longer used.

Keep your earpieces away from all microphones at all times, and when you’re not using your earpiece, place it face down on the sticker placed on the table for this purpose.

I thank you all for your cooperation.

Colleagues, welcome to this meeting of the Standing Senate Committee on National Security, Defence and Veterans Affairs. I’m Tony Dean, senator from Ontario and chair of the committee.

Before I begin, colleagues, some of you may have heard, but I’d like to pass along the unfortunate news that our former colleague Senator Joe Day passed away this morning. Senator Day was a proud graduate of the Royal Military College of Canada. He always worked hard toward the betterment of the military and its members. He was a long-time member of this committee, deputy chair of the Subcommittee on Veterans Affairs, and he hosted Air Force Day on Parliament Hill every year.

No doubt he will be remembered for his long tenure as chair of the Senate Finance Committee, and it’s fitting that we have the budget before us here this evening for our consideration.

I’m sure you will join me in sending our heartfelt condolences to his wife, Georgie, his children and grandchildren at this very difficult time. We will have the opportunity to recognize Senator Day further in the days ahead.

Thank you, colleagues, for your attention.

I’m joined today by my fellow committee members whom I welcome to introduce themselves beginning on my right with our deputy chair, Senator Dagenais.

[ Translation ]

Senator Dagenais: I am Jean-Guy Dagenais from Quebec.

[ English ]

Senator White: Judy White, senator for Newfoundland and Labrador, replacing, for only today, Senator Anderson.

Senator Boehm: Peter Boehm, Ontario.

Senator M. Deacon: Welcome. Marty Deacon, Ontario.

Senator Cardozo: Andrew Cardozo from Ontario.

Senator McNair: John McNair, New Brunswick.

Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.

Senator Yussuff: Hassan Yussuff, Ontario.

Senator Kutcher: Stan Kutcher, Nova Scotia.

The Chair: Thank you, colleagues.

Today, we’re studying the subject matter of those elements contained in Division 39,

Part 4 of Bill C-69,

An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024. The division amends the Corrections and Conditional Release Act.

We have three panels of witnesses with us today, beginning with officials from Correctional Service Canada and the Canada Border Services Agency.

I’d like to welcome today from Correctional Service Canada, Luc Bisson, Acting Assistant Commissioner, Policy; Patrick Derby, Director, Strategic Policy and Cabinet Affairs; and from the Canada Border Services Agency, Carl Desmarais, Director General, Enforcement.

Thank you for joining us today. We will now invite you to provide some opening remarks. I understand that Luc Bisson will deliver the opening remarks for Correctional Service Canada.

Mr. Bisson, whenever you’re ready, please proceed.

Luc Bisson, Acting Assistant Commissioner, Policy, Correctional Service Canada: Thank you, Chair. I will defer to my colleague, Carl Desmarais, who will initiate opening remarks, and we’ll be happy to answer questions.

Carl Desmarais, Director General, Enforcement, Canada Border Services Agency: Mr. Chair and members of the committee, thank you for having me and officials from Correctional Service Canada here today.

The safety and security of Canadians and the well-being of detainees are top priorities for the CBSA. The CBSA uses immigration detention as a measure of last resort, only after all suitable alternatives to detention have been considered.

[ Translation ]

Immigration detention is governed by the Immigration and Refugee Protection Act. Detention decisions are reviewed by the Immigration and Refugee Board, a quasi-judicial independent tribunal with the authority to keep a person in detention or order that they be released.

[ English ]

As a result of successive program reforms over the last six years, the CBSA has reduced by half the use of detention and significantly increased the use of alternatives to detention. The Alternatives to Detention Program allows individuals to reside in the community, supported by family or supported by a service provider that specializes in community services. The individual subject to detention or alternatives to detention, over 98% are presently managed within their communities thanks to alternatives to detention.

While the CBSA continues to expand the use of alternatives to detention, there remains individuals who have engaged in serious criminal activities or who demonstrate behaviours that make them a risk to public safety. A decision that leads to the placement of an individual in a detention facility is based on assessment of risk to others and is made as a last resort.

[ Translation ]

The detention program is administered pursuant to fundamental procedural safeguards and the rights of detained individuals, as per the Canadian Charter of Rights and Freedoms. The Canada Border Services Agency, or CBSA, strives to discharge its detention responsibilities in accordance with the highest possible standards for physical and mental health, the general welfare of detainees, as well as the safety and security of Canadians and staff.

[ English ]

The CBSA has worked for many years with provincial partners to have individuals assessed as high risk held in provincial correctional facilities. However, as we know, the provinces are no longer willing to support immigration detention in their facilities.

Currently, nearly 80% of immigration detainees being held in provincial correctional facilities are inadmissible in Canada for criminality or serious criminality. To be clear, this includes inadmissibility for crimes that involve assault, sexual assault, murder or armed robbery. Moreover, 90% of the individuals currently held in provincial facilities are awaiting removal from Canada. These are individuals who have demonstrated violent, non-compliant and unpredictable behaviour that places them, other detainees, the guards and medical personnel at risk.

[ Translation ]

Since 2023, the CBSA has been taking steps to upgrade the infrastructure in its existing immigration holding centres, and is making operational and staffing changes to manage individuals classified as high risk to the public, other detainees and CBSA staff. Training and other tools are being used to ensure that staff are equipped to handle high-risk immigration detainees. The CBSA will increase the number of contracted trained guards in immigration holding centres to ensure the ongoing safety of detainees and staff. In the meantime, a solution is needed to safely house a small number of high-risk detainees currently being held in provincial correctional facilities.

[ English ]

The enactment of the proposed legislative amendments would give the CBSA access to purpose-built facilities to house high-risk detainees who have been historically managed in provincial correctional facilities. More specifically, the amendments would allow the CBSA to get temporary assistance from Correctional Service Canada, or CSC, by providing separately an independently managed space for CBSA to house a low number of high-risk immigration detainees. The agreement between the two organizations would, therefore, allow CBSA to use CSC infrastructure, seek limited administrative services from CSC if required and, in exceptional circumstances, seek the assistance of CSC personnel.

[ Translation ]

Any assistance agreement will ensure that the CBSA continues to run and staff its detention spaces, independently of Correctional Service Canada and separately from federal inmates.

[ English ]

To be clear, this is a measure of last resort during a period of transition while CBSA makes upgrades to their immigration holding centres.

In closing, I would like to reaffirm that the CBSA will continue to expand its use of alternatives to detention and use detention only as a measure of last resort. When detention is deemed necessary to manage risk and maintain public safety, the CBSA remains committed to ensuring all detainees are treated in a consistent, dignified and humane way in line with the Canadian Charter of Rights and Freedoms and our international obligations and commitments. Thank you for your attention, Mr. Chair.

[ Translation ]

We would be happy to answer any questions the committee members have.

[ English ]

The Chair: Thank you, Mr. Desmarais. Any supplementary comments from Mr. Darby or Mr. Bisson? Thank you. We’ll proceed to questions. Our guests are with us for an hour today, and as usual, in order to ensure each member is able to participate, we’ll limit the question and the answer to four minutes. Please keep the question short and identify the person you’re addressing the question to. We’ll start, as is the normal course, with our deputy chair, Senator Dagenais.

[ Translation ]

Senator Dagenais: My first question is for Mr. Desmarais. Would you say the policy of detaining immigrants in correctional facilities stems from the government’s underestimating immigration-related needs or a request you made after realizing the scope of the immigration situation?

Mr. Desmarais: Thank you for your question. The answer is multi-faceted.

It obviously goes without saying that the provinces’ decisions to terminate their agreements were rather sudden, within a one‑year period. That was unexpected, but the CBSA’s response was already under way. Upgrades at our holding centres are in progress, and we are considering staffing options at our holding centres.

We’ve also increased the number of contracted security staff on site. That’s a complementary measure, on top of the various operational changes already under way.

Senator Dagenais: My second question is for Mr. Bisson. I’d like to know how you went about assessing the capacity of Canadian correctional institutions to house this new population and keep it separate from incarcerated criminals.

We’re talking about the budget, but how much will it cost to do the improvements and hire extra staff, as planned, so you can get this up and running, and deliver what the CBSA and the government are expecting?

Luc Bisson, Acting Assistant Commissioner, Policy, Correctional Service Canada: Thank you for your question. Correctional Service Canada supports the CBSA, and we are in the midst of assessing the infrastructure needs identified by the agency. We are also in the midst of looking at the administrative and site management requirements.

When it comes to assessing the facility needs, we’re weighing the various options with the agency’s needs. As my colleague mentioned, we are talking about a very small number. We are looking for appropriate spaces to house immigrants detained under the Immigration and Refugee Protection Act.

They may be kept in spaces that are as separate as possible from our facilities and will be independently managed by the agency. That means correctional services personnel will not be needed, except for support staff, who will provide services such as building maintenance, food preparation and laundry. They are really administrative services to support the agency.

At no time, do we anticipate managing the immigration detainees in the detention centres. If the proposed legislative amendments are passed, these facilities will become CBSA facilities for the agency to manage immigration detainees.

Senator Dagenais: Do I have time for another question?

[ English ]

The Chair: [Technical difficulties]

Senator Boehm: Thank you to the witnesses for being here today. My question is for Mr. Desmarais. In terms of defining “high risk,” you mentioned in your remarks that we need to follow certain international obligations and instruments that we have signed on to as Canada. Have you looked at all at the experience of other countries that are immigration destinations, recognizing that there are so many people on the move? The U.S. might be a particular example. We work closely and you work closely with the U.S. in terms of these questions.

Australia is another — and indeed the European countries — where there has not been as much planned immigration, as, for example, we can undertake in Canada. This is fairly new territory in policy terms and certainly on the operational side. Are there any experiences internationally that you have looked at?

Mr. Desmarais: Mr. Chair, I’ll respond to the question. Benchmarking is an ongoing exercise that the agency does. We have, naturally, close familiarity with the Five Country Conference, so Australia, United Kingdom, the United States, as well as New Zealand.

There are a number of countries currently undergoing a similar transformation as we are, as in building alternatives to detention for the release of low-risk immigrants, but also there’s been an increased number of high-risk clients that are starting to emerge with the NER centres. Each country has their own particular dynamic. Some rely, perhaps, more on private sector industry providers,

whereas others have different models. Canada sits in between the different models that are available within whether it’s Australia or the United Kingdom. But in answer to your question, yes, we constantly benchmark. We have and we continue, as we’re evolving, essentially in a similar space as you noted in your question.

Senator Boehm: Presumably, we’re not looking at putting people on islands or sending them off to Rwanda. You cited those two countries. Are you saying that what we have is really a made-in-Canada solution, now that the provinces have said they don’t want to participate in this?

Mr. Desmarais: We certainly have best practices in the way we manage our immigration detention population. We do it in a compassionate and humane manner; reliance that we have, the statistics we mentioned, 98% of our clients are in alternatives to detention, I think is a demonstration of that fact. Those that do end up as a measure of last resort in detention have access to a suite of different services, medical from different availability of services within facilities, so I think we have a lot of different best practices that are out there.

Senator M. Deacon: Thank you to you and your team for being here this afternoon. My question is two parts; one is around minors, and the high-risk term that was used a bit earlier.

My first question, Mr. Desmarais, concerns protections for minors. Is it possible, within the confines of this legislation, that a minor could find themselves in one of these immigration stations?

Mr. Desmarais: The short answer to this would be no.

Senator M. Deacon: Thank you.

Mr. Desmarais: I was going to say the Minister of Public Safety and Emergency Preparedness back in 2017, Minister Goodale, issued a ministerial direction to the CBSA. This direction mentioned specifically that the agency ought to look — and it’s since been codified in regulations — that we have to look at the best interests of the children. In doing that assessment, it is fair to say that this particular environment would not be conducive to the best interests of the children.

Detained minors are typically housed in an immigration holding centre where we do have a family wing. It is a rare occurrence. I will mention that over the last fiscal year, for example, we have housed only 12 minors. That’s usually with an accompanying family member. We have detained only six. Usually, these tend to be unaccompanied minors, held for very short periods as we are making arrangements with child welfare agencies. So it becomes a measure of exceptional last resort.

Senator M. Deacon: Thank you for sharing that. I noticed in reading through the minister’s overview which was provided that if the CBSA is unable to establish an individual’s legitimate identity, then they classify them as high-risk. If that is the case, do you have any sense of how often this happens? Is it in every instance where identity cannot be proven? Is it extremely rare? Can you give us some sense of that?

Mr. Desmarais: I certainly can. At present, we have 181 detainees in our immigration holding centres and in the two remaining provinces with which we have agreements. When I look at the grounds for detention, or at least the client count, for identity reasons, we’re speaking of about 7%. I wouldn’t say that identity, on its face alone, is not an indicator of risk necessarily, but it is factoring into the decision of an officer to assess risk when you don’t really know exactly who you have in front of you.

Senator M. Deacon: Tell me a little bit more about that, the identity. What does it look like when an officer says they can’t make an identity here? What are the parameters that don’t allow that to happen?

Mr. Desmarais: You may have someone, for example, not necessarily on purpose, who shows up with no identification and with no ability to match the person to an existing record, for example. There may be indicators, in some cases, that lead our officers to determine that the risk may be more pronounced, for example, visual signs of potential affiliation to organized criminal groups, to name a few. Identity is not, in and of itself, a risk indicator. However, it may be a contributing factor to an officer’s assessment.

Senator M. Deacon: Thank you.

Senator Kutcher: My understanding is that these individuals have been previously housed at provincial correctional facilities. Would it have been the staff of those facilities who were responsible for their management in that facility?

Mr. Desmarais: Do you mean in provincial correctional facilities, sir?

Senator Kutcher: Yes. Or was it CBSA staff who were looking after them?

Mr. Desmarais: In those cases, it would be correctional officers who belong to provincial departments, correctional ministries.

Senator Kutcher: Right. Now you’re going to put people into a different facility. I understand that it’s the CBSA staff who would be looking after the people in that facility?

Mr. Desmarais: CBSA staff will be present on the site in order to have interactions and liaison with immigration detainees. Day-to-day guard services, as is currently the case, are provided by a private security contractor.

Senator Kutcher: That information wasn’t available in the notice that we saw. My question is, does the CBSA staff who are located in these facilities have the training and operational capacity to properly care for and manage the people they’re looking after?

Mr. Desmarais: We’re currently providing additional training to our officers in order to deal with the enhanced risk that the new population is presenting. Training is ongoing. New tools and equipment have also been supplied to our officers. That is an ongoing process right now.

Senator Kutcher: Could you tell us a little bit about this private contractor who is providing this information? What is their training? What is the contract about?

Mr. Desmarais: Yes. The current incumbent is GardaWorld. That company won a competitive process. GardaWorld is currently responsible for guard services and the three immigration holding centres to which we have access — one in Laval; one in GTA, in Toronto, close to the airport; as well as one in Surrey, British Columbia.

Senator Kutcher: This group will be providing those same services in these new facilities?

Mr. Desmarais: The guard services contract resources have also been provided with enhanced training in order to be able to deal with de-escalation techniques, as well as the ability to intervene in the context of an altercation and the potential introduction of contraband, for example. This is part of the new training that guard service contractors have also been provided. We’re augmenting both the capacity of the guard services provider but also on the CBSA staff complement.

Senator Kutcher: Would it be possible for you to provide us a brief overview of both those components? What is the actual training that is being provided to CBSA staff that they previously have not had in terms of the amount, volume, points and how do you measure their competencies? In particular, how do you measure the competencies, post-training? And can we have the same kind of information for the Garda contractor? What is being provided? How are you measuring the competencies, so you’re confident they’re actually able to do the job you’ve asked them to do?

Mr. Desmarais: Absolutely. We’d be happy to provide that.

Senator Kutcher: That would be great. Thank you.

Senator Cardozo: I have a ton of questions. I’ve got to say, this doesn’t give me a lot of comfort in terms of what we’re doing, but perhaps you may be able to assuage some of my discomfort. It’s not me alone; a lot of people are very concerned about this.

Let me put out a few questions. The kind of incarceration or control of these individuals that is going on under provincial jurisdiction, will that be similar when they move to the federal penitentiaries? Will the facilities be the same as what we’ve had for a number of years under provincial jurisdiction, when the province was taking care of these individuals?

That’s one. Number two, you mentioned this as a process of transition. To what are we transitioning to, and how long do you anticipate that will take?

Number three, in terms of Garda World, we currently have CBSA, which doesn’t have an oversight body. Bill C-20 will address that at some point. My concern about Garda World is it’s a contractor who will now be even further away. Will its services be subject to review and oversight in any way? Those are my questions.

Mr. Desmarais: I’ll give it my best.

In terms of facilities, the main distinction that is important to note is that CBSA would be fully responsible for occupying and managing the immigration station within the penitentiary. That is the biggest distinction. When I say “managing,” it means we’re applying detention standards, which are publicly published. We make them available. Those would be applicable to detention conditions within that immigrant station. That’s a fundamental difference.

In previous arrangements, those detention standards were enforced as best as possible within the constraints of the existing environment. We’ll have the ability within the Correctional Service Canada facility to administer the program fully in alignment with those standards. I would say that is probably the biggest distinction.

Senator Cardozo: In terms of high-risk claimants, who decides and at what point? Is it when they arrive at the airport or at the border?

Mr. Desmarais: I have to unpack that a little bit because the decision to essentially place an individual in detention is subsequent to the decision to detain in the first place.

The CBSA officers have the ability and the powers under the Immigration and Refugee Protection Act — and that doesn’t change — to invoke the necessity of potentially detaining for very specific grounds, which include unknown identity, a flight risk or posing a danger to society. Once that assessment is done, within the first 48 hours, that decision itself becomes reviewable by the Immigration and Refugee Board of Canada, which takes responsibility for those decisions from that point on. The CBSA is no longer the detaining authority. That becomes the responsibility of the Immigration and Refugee Board. CBSA has jurisdiction to determine placement.

That process is governed by internal guidance, administrative guidance. A CBSA officer makes that determination. A placement tool is being used and is reviewed by a supervisor. The intent remains to use, as it is in statutes, to effect release as much as possible, as is currently done, as you noticed with the statistics that I provided. Should that not be possible, the first place for detention would be an immigration holding centre. At present, 84% of all immigration detainees are currently being housed in an immigration holding centre.

As a measure of last resort should a detainee, for example, potentially pose a threat to other detainees or personnel on site, a decision may be made by a CBSA officer to place that individual into an immigrant station should the legislation be enacted. It would be a sequential process involving two decision-making authorities.

The Chair: This is a critical area and any of our colleagues can return to this as they wish. Senator Yussuff, you are next

Senator Yussuff: Thank you, witnesses, for being here. I have a lot of questions, like my colleagues. Let me start with, of course, for the longest period we haven’t known anything else. You have worked with provincial bodies in regard to housing people that you determine to be high risk. The province doesn’t want to continue with this arrangement. Could you tell us why that is the case?

Mr. Desmarais: I wouldn’t want to speak on behalf of provinces. A number of reasons have been voiced, ranging from human rights considerations to capacity issues.

Senator Yussuff: So we wake up in 2024 and the province decides that human rights are a concern and they no longer want to house the federal immigration detainees in their facility. Is that what I am to believe?

Mr. Desmarais: Again, I wouldn’t want to speculate on the motivations behind provincial withdrawals.

Senator Yussuff: You are asking us to consider changes to the Corrections and Conditional Release Act to house detainees, and in fairness to us as senators, we would like to know what is motivating this change in policy, given that the provinces have been the housing authority for the longest period that I can remember. We need to get a clear answer in regard to this impasse that we are at right now.

The second question I would have you maybe already answered, but how many detainees currently in provincial jurisdiction will be transferred to federal correctional facilities?

Mr. Desmarais: At present, we have 27 detainees who are being housed in provincial correctional facilities, 22 in Ontario and 5 in Quebec. That’s as of last Friday.

Senator Yussuff: I believe you already answered this, but I would like a bit more detail, please. Food service will be provided by the correctional facility they are in. Would these detainees have to trek across the facility to get to the cafeteria in the correctional facilities to get their meals? How would this arrangement take place?

Mr. Desmarais: That’s a good question. We should specify the food preparation would be arranged — all dependent and subject to negotiations with the Correctional Service Canada — and provided. The provision of the food itself and any interactions with immigration detainees would be either by a CBSA-contracted guard or by a CBSA officer.

Senator Yussuff: The point I am trying to get at, would these detainees have to be associated with other criminals in the correctional facility, given that that’s where the cafeteria might be located? Would they have to go there to physically eat their meals or would the meals be transferred to where they are being housed?

Mr. Desmarais: It is the latter. There are specific legislative safeguards within the bill itself to prevent the commingling of criminal inmates and immigration detainees, and those safeguards are guarded by one particular exception, which is under exigent circumstances, the institutional head — for example, if there is a force majeure — could determine there is a reason to intervene and perhaps have contacts between immigration detainees and correctional service staff.

Senator Yussuff: My final question, because of my timing here, GardaWorld would be contracted to provide, essentially, the majority of services required to guard, supervise and provide security for the detainees in the facility. Is GardaWorld obligated to follow the same standard as CBSA officers in the context of their responsibility?

Mr. Desmarais: That’s correct; they have to. They have to follow the immigration detention standards. Because they are under contract, they are also subject to various different vendor management clauses as well. It is important to keep that in mind.

The other key consideration is that we have an arrangement with the Canadian Red Cross that does detention monitoring within our existing facilities. That is a service that has been in place for a number of years and will continue as well moving forward, as well as NGO access that is currently being provided within our immigration holding centres that we would like, depending on the arrangement we have, to preserve moving forward as well.

Senator Pate: Thank you to all of our witnesses. As you are very aware, some of us visited the new Surrey centre as well as the Laval centre. I have previously been in the Toronto and all but one of the potential federal penitentiaries.

The Human Rights Committee is awaiting a response to concerns about human rights of prisoners currently not being observed. As well, when I was working with women prisoners over an eight-and-a-half-year period, while they were housed in prisons for men, there were significant issues around commingling, even though it was not supposed to be happening. There were also issues around youth in detention in the past.

My questions are specific to CBSA. Have you named the facilities? Have you identified which facilities people will be going to?

Secondly, it’s identified that $14.5 million will be needed annually to operate immigration stations within a facility or facilities, and this works out to approximately $31 million per prison, per year in each of the next five years. You have indicated that the number of persons would be a total of 27. I am curious, the Toronto Star reported last month that the approximate daily count was 47 people in immigration detention, in either the provincial jails or police holding cells. I am curious how the count has been reduced and why you are doing this instead of some of the more humane community options that could accommodate migrants.

Thirdly, you have also indicated that the retrofits within the new detention centres will allow for the eventual detainment of high-risk detainees. That is my understanding. If so, I am curious how long it will take to put those in place and what you see as the timeline for that? If you have a timeline for when you’ll be able to accommodate all detainees in the immigration detention centres including high risk, I would be interested in that.

Mr. Desmarais: So the first question has to do with if the facility is known. As it is provided in the draft bill, it is subject to negotiations between the deputy of the CBSA as well as the head of Correctional Service Canada, and it is subject to the minister’s approval. A facility has not been chosen yet.

The second point about the cost, I believe it is 14.5 million. It is important to understand that it is a fixed-cost operation. From the moment there is an opening of a facility, we need to ensure that there are appropriate medical services and appropriate guard services. We have CBSA officers who are also going to be present to manage it. A lot of the costs are going to be fixed and borne simply out of the opening of the facility itself.

In terms of whether the new arrangement will allow us to provide more humane services, I would say it will provide the CBSA with the ability to continue providing a balance between human rights, which we continuously do, but also really put, as I mentioned in my opening remarks, top of mind the security aspect. I’ll just remind the committee about some of the individuals. A number of them — for example, we have 34 right now in immigration holding centres or the provincial correctional facilities who are subject to danger to Canada. Those may be individuals who are part of organized criminal gangs and who may be subject to criminal convictions for assault or significant violent offences.

For the last question with respect to timelines, it is subject to a procurement process. We hope that we will be able to perform all the essential retrofits as quickly as possible. We hope to initiate the launch of the Laval immigration holding centre in the coming months, but it will take time. I know that in the provincial context, for example, a number of different transition to new builds are taking 7 to 10 years. I’m not suggesting it is the time it will take, but it takes time to put the right infrastructure in place in order to manage these clients in a safe and humane manner as much as possible.

Senator McNair: Thank you to the panellists for being here today. We appreciate your attendance.

My question is probably for Mr. Desmarais. In a 2021 report, Human Rights Watch and Amnesty International documented that racialized people — in particular, Black men — are confined in more restrictive conditions and for longer periods in Canada’s immigration detention than other detainees. It went on to talk about the fact that Canada is among only a few countries in the Global North with no legal limit on the duration of immigration detention, meaning people can be detained for months or years with no end in sight.

Could you comment on that? First of all, is it accurate? If it is accurate, are any amendments being considered to put limits or a process in place?

Mr. Desmarais: I can certainly comment. It is true that there is no legal limit or at least statutory limit, per se, for the end of immigration detention. I’ll probably start by saying that the matter has been looked at by the courts over the years. What I would start with is that the scheme itself has been deemed to be Charter-compliant by the Supreme Court of Canada.

That said, I think there are a series of safeguards that are available within the system, and I mentioned some of them. I mentioned how a decision is made by an officer, reviewed by a supervisor and eventually it becomes subject to review by an independent, quasi-judicial tribunal, which is the Immigration and Refugee Board of Canada.

There is a scheme that is already provided within regulations and statutes that codifies how that process is to be undertaken. Moreover, as is typically the case, a number of immigration decisions — such as immigration detention decisions — are also subject to review by the Federal Court and at least one case in the context of the Ontario Superior Court of Justice. They have also availed themselves of the possibility of taking jurisdiction and habeas corpus applications, which are also a possibility in some cases.

I would say the accumulation of all of these safeguards has made the system as it is Charter-compliant. I will not speculate on whether the government wants to introduce legislative amendments to speak directly about the need for a limit.

Senator McNair: Thank you.

[ Translation ]

Senator Dagenais: My question is for Mr. Desmarais.

Can you tell us why individuals who pose a risk to Canadians aren’t sent back to their countries straight away? For individuals designated as being a risk, do you have an idea as to how long, on average, they stay in the country before a final determination on their status is rendered?

Mr. Desmarais: I can try to answer that question.

I’ll start by saying that, for the last fiscal year, the average time spent in detention was 16.5 days. It’s important to note that nearly half of immigration detainees are released within the first 48 hours.

It’s not always possible to see to the immediate removal of individuals for a host of reasons. Usually, they involve administration, so factors hindering a person’s removal include ongoing legal proceedings, various risk assessments, a lack of cooperation on the part of individuals who don’t want to be sent back to their country of origin and difficulty obtaining travel documents to facilitate their potential return to their country. The agency faces a slew of challenges. Despite all those challenges, the agency always prioritizes cases involving high-risk criminals and deals with those cases first.

Senator Dagenais: Thank you.

[ English ]

Senator Cardozo: I have a couple of quick questions.

Mr. Bisson, I would like to hear from you, from CSC, to get your thoughts about whether you are ready for this influx of people and what you are doing to get ready for them. As part of that, who oversees the GardaWorld people?

Mr. Bisson: Thank you for the question. Essentially, Correctional Service Canada has been engaged with CBSA. In light of the amendments being proposed, we’re working hand in hand to determine CBSA’s needs in terms of the infrastructure that will be required and what kinds of supports CSC would have to provide. We are working diligently on that front. My apologies; I forgot the last part of your question.

Senator Cardozo: Who oversees GardaWorld?

Mr. Bisson: In terms of managing the infrastructure and managing the staff operating within the immigration station, those would be under the responsibility of CBSA. CSC does not play any role in the daily management of the immigration station.

I think the key part of these legislative measures is to give the authority to the Commissioner of the Correctional Service Canada to deem part of the institution as an immigration station that falls under the responsibility and management of CBSA.

Senator Cardozo: What kinds of changes would the infrastructure that you mentioned include?

Mr. Bisson: As I said, we are currently looking at what the requirements from CBSA are in terms of meeting spaces, cells, et cetera. Then we need to determine where the best place is to house that. From there, we’ll be able to determine what kind of modification will be required.

Senator Yussuff: Thank you. Again, I am following up on some of the questions of my colleague.

In the context of the facilities, right now it is one big facility, and part of the facility would be deemed to be under CBSA authority. Where would the firewall be? If it is a big facility, you would have to, essentially, build significant barriers to ensure that the flow from one to the other doesn’t actually occur. Is that envisioned to ensure that the primacy of the facility will be in the context of CBSA authority? But also, will the necessary steps be modified for the facility to ensure it complies what you are assuring us here today?

Mr. Bisson: Thank you for the question.

Essentially, we’re identifying a site that would allow us to clearly separate the two parts of the institution, or the facility itself, allowing movement of immigration detainees within the area without having to go through the rest of our correctional facility. We are looking at different options to ensure that can be maintained. That is our utmost priority.

As you know, managing a correctional facility is already quite complex. We also want to minimize risk. We are jointly dedicated to ensuring there is no commingling, and we’re looking at infrastructure that would allow that. That is our current priority.

Senator Yussuff: Provincial governments are ending their agreement with the federal government with regard to housing immigration detainees. How soon are you expecting the transfer to happen? In terms of the arrangement with the provinces, will they keep housing detainees until you are ready to take the necessary transfer?

Mr. Desmarais: Regardless of the notification for withdrawal, the CBSA, as well as the federal government, has maintained and continues to maintain an excellent relationship with all the provinces. The relationship will not end with the agreements ending, simply because we have ongoing dealings with, for example, the criminal justice system, as well as the interplay with the immigration detention system and the removal process. Those negotiations and arrangements will continue.

What is ceasing, obviously, is the provision of services on behalf of the CBSA. I would say that both the federal government and the provinces are committed to, as much as possible, an orderly transition. Regrettably, in some cases, requests for extensions have not necessarily been accepted. I think that the measures we have in place will seek to ensure an orderly transition where the federal government will take full responsibility.

Senator Yussuff: Thank you.

Senator Pate: First of all, in terms of these kinds of units — whether it is the security unit when it was set up for the security certificates or the protective units for witnesses who are police protected — those units are planned well in advance.

When we were at Laval, it was clear, because prisoners were providing some of the food preparation. It seemed like an obvious choice that you might be looking at collocation on the same prison property as this. It would be unlikely that there aren’t already negotiations going on. Given that this is in a budget bill, it puts us in a difficult spot to be able to discuss these options.

Is there any clarity that can be provided as to which prisons are being looked at, what the current infrastructure needs would be and how the transition process will take place? That’s for Correctional Service Canada.

For CBSA — for you, Mr. Desmarais — one of the challenges we face is that, as I mentioned earlier, Correctional Service Canada does not have a good reputation in terms of human rights protection — nor does GardaWorld, quite frankly, internationally.

What are the measures being put in place to ensure that human rights protections will be there and that they will be monitoring who will be doing that, how and how regularly? The types of units you are proposing will necessarily be isolated and isolating units, so there is immediately a concern about human rights violations.

Mr. Bisson: As you know, we have 43 institutions across the country and they differ in terms of infrastructure. Some are designated for women. We have minimum-, medium- and maximum-security institutions. We are currently assessing, with CBSA, the requirements in terms of the security infrastructure, ensuring that when we determine where it will be that it will meet their needs. This also enables us to separate the two institutions as easily as possible. That is our utmost priority.

As I mentioned earlier, and as you know, we manage already quite a complicated and risky environment and thus want to ensure that we are not adding additional risk and complexity. We’re focused on working with different partners, including yourself and the Human Rights Committee, to ensure that we continue improving human rights within federal correctional institutions.

Mr. Desmarais: Briefly, I wouldn’t want to prejudge the outcome of parliamentary deliberations. It is a complex matter that has been submitted to you for consideration. I do not want to prejudge the outcome of a deliberation that will involve two deputies, as well as a minister, in terms of the arrangement itself.

In terms of how CBSA will manage the relationship, as I mentioned, CBSA will take care of managing day-to-day interactions with detainees. Our existing immigration detention standards will continue to apply. The existing scheme, which provides for a regular cycle for a review of detention decisions, will continue to apply. Good, sound stewardship and contract management with our vendor will continue to apply as well in order to ensure that we have the best possible services.

To layer on top of that, as I mentioned, the arrangement we have with the Canadian Red Cross will continue to take effect, and I think monitoring will continue to take place. We hope to be able to facilitate access to that facility. It may be site-specific, but to non-governmental organizations as well, as we currently do, and also to members of Parliament, as well as justices, as it is currently covered.

Senator Boehm: Thank you. I’ll be very brief.

Mr. Desmarais, this one is for you, a follow-up to Senator Kutcher’s question about training.

Statistics Canada indicates that about 93.6% of all immigrants can speak and conduct a conversation in either official language. That leaves about 7% who can’t, and presumably this would be reflected among the detainee population.

Do you have any plans or protocols that you are looking at to ensure that those who are detained, especially if they are high risk to themselves or to others, would be able to converse with a trained official?

Mr. Desmarais: I can confirm that this is the current reality. CBSA has been dealing with multiple languages. It is part of our day-to-day life. For every intake that would be taken to an immigration holding centre, the client is provided orientation. That is available in 23 different languages, if I’m not mistaken. That is already there. Access to

interpretation services is also provided as a matter of course. If

interpretation service is not available, we typically use the list of registered interpreters, which is managed by the Immigration and Refugee Board of Canada, or IRB. That would be provided to those clients who are subject to the new measures, should they be enacted. That will be no different than what we currently provide in terms of services and access to those services.

Senator M. Deacon: Thank you. I am processing and thinking at the same time, which is dangerous.

I want to open this up to Correctional Service Canada and CBSA. Stepping back, it is no secret that many human rights groups and legal groups have expressed concern about what they deem to be a lack of oversight when it comes to the handling of immigrants in detention.

In talking to Canadians, is there anything in this legislation that you think can temper the concerns and bring down the temperature a bit in saying that, in the long haul, this is a good thing? Can you help us out with that? I’m opening it up across the table, if you don’t mind.

Mr. Desmarais: I’m not sure if we can temper concerns. Throughout this appearance, I have mentioned a number of different safeguards that will be in place in terms of how the scheme would operate and safeguards that would be in place, which already exist. That continues as well. I’ll invite this committee to think about the balancing of public safety considerations, which is at the forefront of this particular proposal, as well as all other considerations. It is important to weigh some of these considerations with one another to make the most deliberate decision moving forward.

That is probably what I would say, the balancing of public safety and human rights considerations, and we believe we’re striking the right balance with various safeguards that have been embedded within the draft legislation currently before you.

Mr. Bisson: The only thing I would add is the clear intent in the legislation being proposed in terms of limitations imposed regarding the roles of the two organizations. That’s clearly defined. Finally, there is what we call the “sunset clause,” which puts a time limit on these arrangements. Those are other criteria put in place to ensure that this is clearly outlined as a temporary, and immediate measure to address a clear immediate issue.

The Chair: Thank you very much. This brings us to the end of our first panel, and I’m going to start by thanking our guests, Mr. Desmarais, Mr. Bisson and Mr. Derby for joining us today and for adding some rich fabric to the briefing notes that we all read before we came in here.

This is a challenging area of public policy, to say the least. It’s a challenging area of public service delivery all in the context of balancing human rights and public safety, as you’ve pointed out. We thank you for the work that you do every day on our behalf and for looking to find that right balance. I close this panel by thanking my colleagues for your questions in bringing out the best of our witnesses today.

Senators, we will now move to our second panel. For those of you joining us live, we’re studying the subject matter of Division 39,

Part 4 of Bill C-69,

An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024. This division amends the Corrections and Conditional Release Act.

We now welcome Kate Webster, Vice-President, Canadian Association of Refugee Lawyers; Laura Best, Chair, Detention Working Group, Canadian Association of Refugee Lawyers; Gabriela Ramo, National Chair, Immigration Law Section, Canadian Bar Association; and Christine Beltempo, Member, Canadian Bar Association. And by videoconference, we welcome Efrat Arbel, Associate Professor, Peter A. Allard School of Law, University of British Columbia. Thank you all for being with us today. I invite you to provide your opening remarks to be followed by questions from our members.

Laura Best, Chair, Detention Working Group, Canadian Association of Refugee Lawyers: Good afternoon, on behalf of the Canadian Association of Refugee Lawyers, or CARL, we thank you for the opportunity to be here today to address this issue in committee. My name is Laura Best and I’m the chair of CARL’s working group on detention, and Kate Webster is CARL’s vice-president. I want to underscore that we’re also both full-time immigration refugee lawyers and regularly represent immigration detainees in their hearings.

As a preliminary matter, I want to underscore our concern with introducing such a dramatic change as part of the omnibus Budget Implementation Act, or BIA. We’re concerned that the process lacks transparency and prevents meaningful study and consultation on such a critical issue.

Public and political sentiment in Canada is universally opposed to using jails to hold immigration detainees. In the past ten years, all ten provinces, led by a variety of political parties, have decided to stop holding immigration detainees in provincial jails. Despite this consensus the government has now introduced in an omnibus bill a proposal to use federal penitentiaries instead.

I wanted to start my remarks with a bit of an overview about who are the immigration detainees who we regularly represent before outlining more specific concerns with the proposed legislation.

First, CARL members represent hundreds of immigration detainees a year, and there are certain profiles we commonly see in immigration detention. One is refugee claimants who arrive without identity documents; failed refugee claimants who may be subject to removal orders but are pursuing other avenues for immigration; international students who have been out of compliance with their studies, maybe for reasons of addiction, poverty, mental health or finances; and others facing removal where there’s a barrier to effecting actual removal, like a lack of a current travel document.

While it’s been suggested that immigration detention is necessary for high-risk individuals or dangerous foreign nationals, the numbers simply don’t bear out this argument.

Since 2016, over 90% of people in immigration detention were detained on grounds unrelated to public safety concerns, and that is also the majority of detainees who are in provincial jails at the moment and are being detained on grounds which are not public safety concerns. The most common concern is that they’re deemed to be a flight risk for their removal or another proceeding.

Those held in provincial jails, whom we often see, are those living with mental illness, poverty or addiction, and those who don’t have family or community to assist with the release plan. I really want to underscore that if an individual is on an immigration hold, they are by definition released from criminal hold. If they have a criminal record — which absolutely not all of them have — they have served their sentence and been released. If they’ve been charged with a criminal offence, they have been released by the criminal courts on bail. If they are on immigration hold, they are by definition done with the criminal justice system and have been released from that system.

Even when CBSA-contracted alternatives to detention exist, what we see is that they’re chronically under-resourced and have lengthy wait lists. What is common is that the immigration division orders an individual’s release to a specific alternative to detention, but because of lengthy wait lists, they’re held in provincial jail for weeks or even months until a spot opens up in that facility.

For example, in Toronto, the Salvation Army has dedicated addiction services programming, and we see individuals waiting for months in provincial jail until one of those very small numbers of spots opens up for them to be released into. It’s these same individuals that are most likely to be held in federal prisons. Minister Miller has openly stated that individuals with severe mental health problems would be among those incarcerated in federal prisons.

The other point we want to highlight is that immigration detention under CBSA happens in an environment where there’s a high amount of discretion and no independent oversight. We’ve heard a lot today about high-risk detainees. The decision of who is considered high risk is solely under the discretion of CBSA officers and supervisors. The Immigration and Refugee Board of Canada has no jurisdiction over placement or transfer decisions. The Immigration and Refugee Board is limited to decisions about release or continued detention.

It is CBSA alone — the only federal agency without independent civilian oversight — that makes decisions on placements or transfers between a holding centre and a provincial jail, and under this proposal, a federal penitentiary. We are very concerned that the proposed legislation does not enact any legislated procedural protections for immigration detainees and transfer or placement decisions.

Like other leading human rights organizations — Amnesty International and Human Rights Watch, among others — CARL absolutely opposes this proposal to incarcerate immigration detainees in federal penitentiaries. We recommend that all reference to immigration stations be deleted from the act.

As an alternative, we encourage this committee to recommend to the minister that Division 39 be removed from the BIA and be reintroduced as a separate piece of legislation so that it can be properly studied and debated.

Finally, CARL underscores the ongoing pressing need to pass Bill C-20 to ensure CBSA oversight, particularly in light of this legislation if it passes with the power to transfer individuals to federal penitentiaries. Those are my remarks.

The Chair: Thank you very much, Ms. Best. That’s a terrific start for us. Next we’ll hear from the Canadian Bar Association.

Gabriela Ramo, National Chair, Immigration Law Section, Canadian Bar Association: Members of the committee, my name is Gabriela Ramo, I’m chair of the Immigration Law

Section of the Canadian Bar Association, or CBA. I’m accompanied today by my colleague, Christine Beltempo, an immigration lawyer and member of the executive committee of the CBA’s immigration section, Quebec division, and also an immigration lawyer.

The CBA is a national association of 39,000 members, including lawyers, judges, notaries, academics and law students, with a 120-year-old mandate to seek improvements in the law and the administration of justice. Thank you for inviting us today to comment on the proposal to allow for the incarceration of immigrant detainees in federal penitentiaries. The observations we make today have been communicated to government authorities in written submissions and letters in the past, all of which are available on the CBA webpage.

The CBA opposes the plan to expand immigration detention into federal penitentiaries. The use of federal penitentiaries to hold immigration detainees, who are held exclusively under the Immigration and Refugee Protection Act and have not committed or been convicted of a crime, is punitive and inconsistent with international obligations in the treatment of immigrants.

The Canadian Bar Association is particularly concerned with the broad powers granted to the Canada Border Services Agency, or CBSA, to decide whom to arrest and detain, the grounds of detention and where immigration detainees are held, with little means to challenge these decisions. As Canada does not have legislative limits on the duration of immigration detention, immigration detainees can be held for years.

The issues are further compounded by the fact that CBSA remains the only major law enforcement agency in Canada without independent civilian oversight. Under the Immigration and Refugee Protection Act, or IRPA, migrants can be detained primarily for one of three reasons: they present a flight risk, their identification is not well established, or they pose a danger to the public. Research has shown that the vast majority of migrant detainees are held because they’re identified as a potential flight risk and not because they are dangerous.

In discussing the detention of my grants in federal penitentiaries, the Minister of Immigration acknowledged that these individuals are not criminals, but are rather high-risk detainees, often with severe mental health problems, who are facing deportation. Many immigration detainees — particularly those who are refugee claimants — have experienced trauma and persecution, leading to mental health issues. CBSA officials have further indicated that those deemed to be high risk and detained at federal penitentiaries will be males with behavioural issues.

We also know from past experience that immigration detainees with mental health issues are more likely to be detained in provincial jails where they did not fare well, experiencing further trauma, being placed in solitary confinement and occasionally resulting in death. As such, we are concerned that these individuals will experience the same issues when detained in federal penitentiaries while not receiving the required mental health support to ensure their safety and well-being.

In past submissions, the CBA has also urged the government to ensure that the best interests of children be a primary consideration when making decisions in relation to immigration detention. Allowing for immigration detention in federal penitentiaries increases the likelihood of children being impacted by the negative consequences of forced family separation. I will turn it over to my colleague to discuss our recommendations.

Christine Beltempo, Member, Canadian Bar Association: In light of the concerns outlined by my colleague, the CBA would like to make six concrete recommendations today.

First, cancel the plan to use federal penitentiaries for immigration detention altogether. The CBSA should seek alternative means to detention when addressing the potential flight risk posed by an individual. We suggest that they move toward rights-respecting alternatives to detention, such as implementing robust reporting requirements in collaboration with community organizations.

Second, invest in such outlined community-based organizations independent of the CBSA, so that they can provide the required support to address flight risks.

Third, implement time limits on immigration detention. Other jurisdictions have limited immigration detention to specific periods of time, such as six months, after which the individuals should be released. It must be remembered that detention in a federal penitentiary is reserved for those who have committed the worst of crimes. Incarceration is inherently punitive, and immigration detainees who have committed no crime, are subjected not only to loss of liberty, constant control and supervision, but also to dehumanizing practices, such as being handcuffed, isolated or confined.

Fourth, the government should immediately implement an independent complaints and monitoring mechanism for the CBSA. Given the extensive enforcement powers granted to the CBSA as well as the limited ability to challenge a CBSA determination, the potential for abuse is significant. As such, only an independent and effective oversight organization can respond to such risk.

Fifth, program instructions and specific training should be put into place so that mental health issues are never to be equated to behaviours that should be punished with detention in a federal penitentiary, where often mental health services are inadequate.

Sixth, the best interests of the child must always be a primary consideration in any decision on detention that can affect the child, including the decisions on detention of parents or legal guardians.

Thank you for your time.

The Chair: Thank you, Ms. Ramo and Ms. Beltempo. Finally, we’re going to hear from Dr. Efrat Arbel. Please go ahead whenever you’re ready.

Efrat Arbel, Associate Professor, Peter A. Allard School of Law, University of British Columbia, as an individual: Thank you, honourable senators, for this invitation. It’s an honour to appear before you today. For my remarks, I’ll speak briefly to my expertise as they relate to this issue and then outline my objection to the proposal under discussion.

I’m a law professor at the University of British Columbia. I’ve held this position for over a decade. My expertise is in refugee law and prison law with a focus on immigration detention. In addition to my research and teaching in this field, I’ve produced expert reports for judicial proceedings in relation to both prison law and the law of immigration detention. I’ve engaged in consultations with the CBSA, the U.S. Department of Homeland Security and various UN bodies on immigration detention.

In 2020, the CBSA commissioned me to produce an independent research report on immigration detention that is focused on gender-based violence. And since 2020 until earlier this year, I served on the Quality of Life Committee for CBSA’s Immigration holding centre in Surrey, B.C., which is a committee convened by the CBSA that meets regularly to discuss conditions of detention in British Columbia.

Throughout my work in this field, I have met with numerous individuals who have experienced immigration detention in this country, including as children. On the basis of this cumulative expertise, I can unequivocally say that the proposal to detain immigration detainees in federal prisons is — in a word — unconscionable. I’ll highlight three central reasons for my position.

First, from a legal standpoint, this proposal is unsound. There is no basis in law for Canada to incarcerate people in federal prisons without a charge, without a finding of guilt, having already completed criminal sentences and without any meaningful due process safeguards.

The proposal to revise not just immigration legislation but prison law legislation to authorize Canada to incarcerate legally innocent people in federal prisons for indefinite periods of time flies in the face of the basic tenets, not just of immigration law and the law of refugee protection but also central tenets in criminal law, prison law, human rights law and the constitutional commitments enshrined in the Charter of Rights and Freedoms.

Second, from a human standpoint, this proposal is cruel. Immigration detention is administrative in nature; it’s not intended to serve as punishment. Federal prisons are sites of punishment. They are difficult, dangerous and at times violent places. It is inevitable that people held in these facilities will experience their time in detention as punishment. Despite the so‑called safeguards to hold people in separate units, some measure of commingling is likely — if not inevitable — as well as other dehumanizing treatment, like shackling, segregation, restraints, strip-searching, lockdowns and other measures that are common in criminal settings.

I will emphasize that the definition of “high risk,” “danger” and “non-compliance” are discretionary. They lack definitional rigour, and unlike in criminal law, require no evidentiary foundation in order to be attached to an individual. The people who are labelled in this way are often labelled as such because of mental health conditions and mental health burdens that they live with, and some of these conditions are themselves caused by spending indeterminate amounts of time in immigration detention.

While detention of minors is not likely in federal penitentiaries, I will also underscore the fact that there’s a real possibility that children will be separated from their families, from their parents, who are then held in federal penitentiaries. I will also underscore the fact that if this proposal passes, the detainees who are more likely to be incarcerated in federal prisons are Black men and other racialized individuals, and this is recognized in the supporting documents to this budget. This proposal is not race-neutral. All of these factors combine to create real punitive and avoidable harm.

Third and finally, this proposal is not necessary from a practical standpoint. CBSA has at its disposal alternatives to detention across the country, including more than 1,100 organizations identified by Immigration, Refugees and Citizenship Canada that can provide support to newcomers. The budget also provides for a further investment of $325 million to CBSA’s immigration holding centres. With all of this at their disposal, it is unnecessary for CBSA to utilize prisons for detention.

In sum, the expansion of immigration detention to federal prisons is unnecessary and blatantly punitive.

Thank you for your time. I look forward to your questions.

The Chair: Thank you, Dr. Arbel.

Colleagues, we will now proceed to questions. As with our last panel, our guests with us for an hour. To ensure there is full participation, we’ll be limiting each question, including the answer, to four minutes. Please keep your questions succinct and identify the person to whom you are addressing the question.

The first question goes to our deputy chair.

[ Translation ]

Senator Dagenais: My first question is for Ms. Best. From the outset, I would say that the government has a duty to ensure the safety of Canadians. Since we’re here to ask questions about the budget, here’s the basis for my question: the legal workload and time frames involved in immigration cases that become more and more complex. Do you think the current processing times are due to a lack of necessary funding? Does the government’s problem basically amount to a policy problem, because of a short-sighted approach when it comes to the effects of immigration in Canada?

Kate Webster, Vice-President Canadian Association of Refugee Lawyers: Thank you for your question. I’m sorry, but I won’t be able to answer in French.

[ English ]

When we consider the government’s purported goal in detaining immigrants — in immigration holding centres, provincial jails or federal penitentiaries — under this new proposal, it is very important to remember that, yes, of course, there is an obligation to maintain public safety, but these few individuals — I believe the number was that only 27 people across the country right now are in provincial facilities — there is absolutely no public safety justification for such a fundamental departure from how we conceptualize immigration detention in this country.

Moving to the use of federal penitentiaries flies in the face of human rights and, as other panellists have ably explained, our history and legal tradition here in Canada.

Over 90% of the people in immigration detention have no ground of danger alleged against them. We’re looking at an enormous amount of resources. You asked about whether the delays in the processing of the system are related to the allocation of resources, and I would suggest that, instead of spending $14.5 million a year on retrofitting federal penitentiaries, which are necessarily punitive in nature, we could more reasonably use that money toward expanding alternatives to detention to a more humane approach to immigration, which would fulfill the government’s requirements.

We have plenty of places to hold this very small number of individuals identified as high risk. There are 406 places across the country in the immigration holding centres. There are fewer than 190 people in detention. Why are we revamping our entire approach to immigration detention for 27 people when we have more than 200 open places?

[ Translation ]

Senator Dagenais: The main issues related to immigration are the wait times and government decision-making. Through the bill, the government wants to put new measures in place for the temporary detention of immigrants and refugees. Will those measures improve things in relation to detention in provincial facilities, which you mentioned?

[ English ]

Ms. Webster: I want to ensure I understand the question. When we’re talking about delays in immigration processing and the backlog we see, both in the refugee determination system and in other applications that are processed by Immigration, Refugees and Citizenship Canada, those are quite distinct questions from immigration detention.

The question of resourcing the immigration system for efficient and accurate adjudication is critical as well, but I do not see the holding of a very small number of individuals in federal penitentiaries as remotely linked to the ability of this government to process applications for asylum, family sponsorships and other pending immigration applications. They are really two separate questions. To the extent that this measure is being justified by the need for greater efficiency in our immigration system, the two are factually unrelated.

Senator Cardozo: I have a few questions. Ms. Best, I’ll start with you.

I want to understand how we got here. I understand that CARL and other organizations have been saying to the provinces that they are doing a terrible job in holding these people and incarcerating them in provincial correctional facilities. “Stop doing that.” So they stopped doing that — it is hands off — and now the feds feel that somebody has to do it, so they are doing it instead. So instead of the provinces possibly abrogating people’s rights, the feds are saying they will do that. That is how I see it happening. Could you comment on that?

My second question is to Ms. Beltempo. You talked about flight risk and the role that community organizations could play in that. I wonder if you could explain that. If that is the biggest problem, then I wonder what other solutions we have to deal with flight risk.

Ms. Best: First, as to how we got here, over the last two years, I think we have seen a real groundswell in Canada from across the political spectrum. We have provincial governments that are Conservative, NDP, et cetera, and there was a general consensus that immigration detainees should not be held in carceral settings like a provincial jail; it was inappropriate for them to be placed in provincial facilities.

When we see the cancellation of the contracts — I also can’t speculate about what was behind the provinces — but we did see a real backlash in Canada against using jails or prisons for immigration detainees.

It is very concerning to us that, in light of that political opinion across the spectrum and public opinion, the federal government’s response is, as you said, that they will take over and place them in even more punitive settings. Federal institutions are for individuals who have been sentenced to two years or greater in their criminal sentences. They are more secure facilities, in many instances, than provincial jails.

So we are very concerned in light of what I would say was a political consensus that this is not —

Senator Cardozo: [Technical difficulties] do?

Ms. Best: The first response, which CBSA has also highlighted, is to invest in alternatives to detention. We are seeing people languish, including in provincial jails, who have release orders and can’t be released because there isn’t funding for more alternatives to detention and there hasn’t been an effort put in to create community partnerships and alternatives to detention in the community.

So if I had to spend the money, that’s where I would put it first.

Second, as my colleague has stated, there is plenty of room in the immigration holding centres at the moment. There are literally hundreds of spaces available in the holding centres.

Senator Cardozo: [Technical difficulties] what the feds are talking about are people who are particularly — I’m using loose language — of greater danger than the average person coming in?

Ms. Best: Yes. The statistic that I heard from CBSA today is that 80% of immigration detainees in provincial facilities are inadmissible on criminality or serious criminality. It is really important to break that down. First of all, 100% of people in immigration hold have finished their criminal sentence.

Senator Cardozo: In those countries?

Ms. Best: Or in Canada. They have finished their criminal sentence. They have been released from criminal hold, and they have been transferred to CBSA immigration hold.

Senator Cardozo: [Technical difficulties]

Ms. Best: Yes, because they might be under a removal order that hasn’t yet been effected, so they are transferred to CBSA hold. Even people with in-Canada criminality, if they are on immigration hold, it is because the criminal process has wrapped up.

Further, people who are inadmissible on criminality, which includes

summary convictions and hybrid offences — that could be a conviction for failure to appear. It could be drug possession. There is absolutely no equivalency between saying that a certain percentage are inadmissible and they are violent. That is not on equivalency in immigration or criminal law. I would highly dispute the suggestion that there is a certain high-risk population.

Also, because the determination of who is high risk is 100% discretionary by CBSA officers, there is no legislated definition of it. For example, they do have a scoring system. The people who score higher are supposed to be more likely to be placed in provincial facilities. The lowest score you can get is a minus 2, no risk factors and vulnerability. I have a client who was transferred to the Maplehurst Correctional Complex with a score of minus 2. The only way to challenge that is to bring a judicial review in federal court. There is no appeal. There is no oversight committee.

There is no independent complaints mechanism. A young individual, just turned 18, minus 2 on their own scoring metric, and he was sent to Maplehurst. Sorry. Far too long of an answer. I’m sorry to Ms. Beltempo.

Senator Kutcher: Thanks to all our witnesses. You can see we are struggling with how to address this complex issue within a budget bill.

My question will be narrowed down a bit on the population who have mental health care needs, so I’ll address that to the Canadian Bar Association representatives who raised this issue primarily. I’m not going to use the word “mental health issues” because I have no idea as a psychiatrist what that means, but I will actually focus on mental disorders of people who have mental health care needs.

My question is three parts. Number one: Do you have data on the diagnosis that these individuals have on their level of functioning, the challenges and the strengths that they have and also on their specific treatment needs? That will be interesting data to have.

Second, you probably heard previously that training was going to be provided to CBSA and GardaWorld. Do you think that the competencies that are needed to provide proper psychiatric diagnosis and treatment can be achieved with a training program such as we’re going to see?

Third, what do you think the outcomes would be for those individuals who have severe mental disorders if they are not receiving appropriate diagnosis and appropriate assessment in care? Would that actually be a discriminatory approach that the government would be taking for those individuals?

Ms. Ramo: Thank you for the question.

I don’t have specific data. I do suspect, however, that my colleague on the line, Dr. Arbel, probably has more in this area than I would in terms of data.

In terms of your second and third questions, and just to frame the discussion, the minister himself, when asked to define who these high-risk individuals were, defined them as individuals with mental health concerns.

In a recent conversation that I had with CBSA officials at a meeting in Ottawa, again, when asked whom these high-risk individuals were, the answer was individuals with behavioural problems as a result of mental health conditions. There is a lot of data and research that shows that actually being in this type of incarceration, particularly in terms of immigration detention, there are no set limits. It is not like you have gone to court, you have been charged, you were convicted and then given a two‑year sentence and you know that you are serving the sentence and on such-and-such a date, you will be released.

That is not true of immigration detainees. All they know is once a month they will have a review of their detention, which in many cases becomes perfunctory, and they have no end in sight. That in itself can cause mental health issues or exacerbate them.

There are a lot of indications and a lot of individuals who have suffered extreme mental health issues. There was an inquest into a case of a woman in immigration detention who committed suicide. There is certainly that type of evidence.

To your second question regarding training, the issue is about changing mindsets, frankly. A comment made by CBSA during a meeting was that individuals with behavioural issues and mental health issues would be told that if they couldn’t play by the rules in immigration detention, they could then be sent to a federal penitentiary. It is this idea of someone who isn’t behaving in a way that is expected because of their underlying mental health condition is then punished for it. It is just not something we should be punishing people for. It is that mindset.

Whether you can do that through training, I don’t know any other way that could change that mindset. The idea that these individuals should be held in an even more secure lockup because of their mental health conditions is something that needs to change.

Your third question is whether it is discriminatory. It is inappropriate to hold individuals who have not committed a crime, who are in immigration detention hold, in a facility that cannot provide for their health needs. I personally think that’s a form of discrimination. But I do think that we, as a country and a society, need to ensure that we are providing individuals who have health needs with those services to address those health needs, and that should just be a baseline requirement.

The Chair: I’m afraid we have to move on. But we might come back to this, I hope. Senator Oh, you are next.

Senator Oh: Thank you, witnesses, for joining us.

My question is how do you differentiate between economic refugees and genuine refugees? I heard a lot of mention about mental problems for refugees. How do refugees with a mental health issue come all the way to Canada? Is there a way that they can travel all the way here? And how can we stop refugees who come into Canada through the border into Quebec and destroying their document before they enter? Why do they destroy their document, their proof of identity?

Ms. Webster: Thank you for the question, senator. From the perspective of the Canadian Association of Refugee Lawyers, we would approach that question quite differently. There are a few different questions you asked.

To ask how an individual who may have a refugee claim based on their mental health status in persecution that they would likely suffer in their home country, it is difficult to provide a single answer, but there are certainly all sorts of ways that individuals arrive in Canada.

They are exceptionally vulnerable, and they have likely suffered extreme trauma not only in their home country, but along the journey. To suggest that an individual living with a mental illness would be unable to make that journey, unfortunately, is not supported by any of the facts. We see many individuals arriving on our shores who face many different vulnerabilities.

We have obligations under domestic and international law to reasonably assess all of those claims as they are presented to Canada. There are significant safeguards and there are individuals who are trained as members of the Immigration and Refugee Board of Canada to assess the merits of those claims and make determinations as to whether individuals who do arrive meet the definition of a refugee under the Refugee Convention, and if they do, they are granted status here in Canada.

Now, that process is distinct from what we’re talking about today in terms of immigration detention. Some of those individuals may find themselves in detention after a discretionary decision by CBSA, and that discretionary decision is subject to limited review by the immigration division in terms of whether continued detention is warranted, but not in terms of where that placement occurs.

I would also note that individuals, particularly those suffering from mental health concerns, may often experience significant decompensation of those concerns in detention. To the extent we’re looking at individuals who already experience significant vulnerabilities arrive in the country and then are detained despite them exercising their right under Canadian and international law to seek protection on our shores, they are detained, and the evidence is very clear it leads to significant decompensation in one’s mental health status.

Instead of receiving the protection that they deserve under international law, they are subject to further harm and trauma in facilities. This can be true in the immigration holding centre, but I can assure you that it would be infinitely more true in a federal penitentiary, which is designed exclusively as a punitive institution and is certainly not well equipped to address the needs of this vulnerable population.

Maybe as a last point on that, I would note that senators here are asking questions on so many different aspects of this legislation. We’re here in a pre-study of one of 39 divisions of the Budget Implementation Act, or BIA. It is clear that many of you have thought deeply about this issue and have questions that need answers. The fact that this fundamental departure from the way we conceptionalize immigration detention is stuck at the end of a budget bill is depriving you of the opportunity to engage in your role in the legislative process. We will not have the opportunity for proper consultation and study if this continues as part of the budget bill.

I am thrilled to see the engagement of the senators on this issue, and I would encourage you to recommend to the minister that this division of the Budget Implementation Act, if it is not deleted entirely, is introduced as a separate piece of legislation from the Budget Implementation Act such that we can have proper legislative consultation and know what we’re talking about before we pass this law.

Senator M. Deacon: On your last sentence, making it a separate bill — recognizing that that will take time to do right and to do well — does that mitigate the urgency that some feel to put this in a budget bill? Does that mitigate the other, the fact that this will take a year or two?

Ms. Webster: I would put to you that the urgency is false. We have over 200 free spaces in immigration holding centres already. Canada Border Services Agency contracts with the province; the provinces of Ontario and Quebec are ending June 15 and June 30 respectively.

The budget going through and the contract procurement process, we heard from representatives of the CBSA that federal penitentiaries simply won’t be ready to receive these supposed high-risk detainees on this point. There must be a transition plan already, and that one is one that we can rely on and then have a proper study before we do this.

Senator M. Deacon: Thank you very much.

My question is for Professor Arbel, and it concerns looking at how individuals have found themselves in detention centres in the past and who might now find themselves in one of these immigration stations under the proposed changes.

I realize that every case is different, and it would come with a particular set of circumstances, but I am actually trying to figure out if most of these high-risk offenders have been caught at the borders. Is that the greatest amount? Can you shed any insight with your research on this?

Ms. Arbel: Thank you for the question. I’ll start by saying these are not offenders, so the notion that they are high-risk offenders is incorrect.

As my colleague had noted, any individual who is on immigration hold has already served any criminal penalty or sentence that was imposed upon them. We are not dealing with offenders. We are dealing with individuals who are only subject to immigration detention because they lack citizenship. Any other Canadian who would have committed the same crime or been in similar circumstances would not be subject to immigration detention purely because of their citizenship status.

As to your question as to whom these individuals are, it really does vary. The vast majority of detainees that CBSA classifies as “high risk” are those who are registered as having a certain profile through internal CBSA policies. One was also noted by my colleague, Ms. Best, the National Risk Assessment for Dentention. This is a checklist of a number of criteria that the CBSA identifies as relevant, some including past convictions, none of which account for a fulsome understanding of the individual as they are. There is only one criterion that accounts for vulnerabilities.

The vulnerabilities are very few and far between, and one can only acquire one point for vulnerabilities or reduce one’s score by one point despite having multiple vulnerabilities.

As to the profile of who these individuals are, for the most part, these are individuals who are racialized, who are highly vulnerable, and who suffer from mental health conditions in part because of spending lengthy times in immigration detention.

Many will have come off of criminal hold. Others will have been identified at the border, but there is no set profile, and there is no way of really conclusively determining who does actually constitute some measure of risk or danger.

The previous senator had asked about psychiatric diagnoses. There is no need for CBSA to engage in these kinds of evaluations or to diagnose somebody either as having mental health concerns, some sort of psychiatric diagnosis or, again, demonstrating some sort of dangerous behaviour in order to be recognized or labelled as high risk.

Senator Pate: Dr. Arbel, you mentioned you are on the advisory body or an advisory body for CBSA. I would be curious as to whether there has been any consultation with you and others about the use of the current numbers. Much has been already discussed about there being more than 200 beds. Some of us have been in those detention centres and have seen the units that are set up that could be retrofitted. In fact, there are cells there that could be retrofitted and made more secure if that was the will. Have there been any recommendations to that effect?

Second, you just mentioned the mental health issues, and I would agree. One of the challenges has been that the very conditions of confinement to which people have been subjected, both in immigration detention and in provincial jails — I would challenge that, in fact, the security in many of the remand centres and provincial jails is as secure if not more isolating than some of the federal penitentiaries. Nevertheless, there is abundant evidence of the creation of psychiatric, neurological, psychological impacts and the fact they don’t get evaluated in that way.

That they get re-characterized as behaviour and personality disorders as opposed to psychiatric diagnoses is a real issue that pervades not just CBSA but also the federal penitentiary system.

Whether, in fact, there has been any look at using the optional protocol on the convention against torture as a means, it is one of the mechanisms that many of us — I think you included — have been part of advocating so that CBSA, correctional services in provincial and territorial jurisdictions, as well as psychiatric hospitals, come under that kind of scrutiny.

I am curious as to whether any of those discussions have been happening, when you have been making those recommendations, as I have no doubt you have been, what the responses have been, and if you could provide any further detail to this committee for that purpose.

Ms. Arbel: Thank you for the question. I served on the Quality of Life Committee until February of this year. I have stepped down from the committee as of that date. The members of the committee are obligated to adhere to strict confidentiality protocols, so I am unable to discuss what matters we discussed in that setting, apart from that they generally pertain to the conditions of detention in the British Columbia immigration holding centre.

I can speak to my opinion as a researcher in this field and in the roles that I have occupied in relation to immigration detention to say that any mechanism that introduces some measure of accountability and external accounting for who is and who is not “a risk” and that provides meaningful diagnoses but also treatment for mental health is absolutely imperative.

At the moment, we have CBSA having sole discretionary authority, not just as to whom to detain, where to detain them but also how to label them. Again, as my colleague Ms. Best noted in her comments, there are no mechanisms to challenge these assessments, these placements, these determinations, until long after they’ve been made and detention has already been initiated.

Certainly, I would welcome the use of the optional protocol. Certainly, I would welcome the use of independent ways to provide, again, not just assessments but also treatment, counselling and assistance to individuals who suffer from mental health conditions in detention.

I would agree with you that the detention facilities, as they exist, are certainly equipped to provide more “secure treatment” for certain individuals. The British Columbia immigration holding centre is equipped with “wet cells,” which are cells that have toilet and sink facilities inside of them. These are the equivalent of jail cells. It is again entirely unnecessary to undertake the proposal at issue here in order to secure these centres. I hope that answers the question.

Senator Pate: Thank you.

Senator Yussuff: My question will deal with the children. I am asking this of all of the witnesses who are testifying today. Is there any evidence where a child has been separated from their parents, where the parents have been held in a confined institution and the children are held someplace else? Has there been physical separation of a child from their parents? I am fully aware of our international obligation in regard to the children. More importantly, refugees come here with a variety of challenges and families.

My second question regards recognizing the challenge we’re dealing with in our country in assessing Canadians’ mental health, never mind that of refugees in our country. My colleague asked a question about CBSA and other officials who will be trained to assess those who will be held in federal institutions going forward. Do you have any confidence that this will be of value to the individuals who might need treatment and the people who are being trained to assess whether they need help, so we don’t further damage their health if they’re held in federal institutions?

Ms. Best: Maybe I’ll start with the training issue. My colleague can deal with the issue of separation of children.

As far as training goes, we see so far that CBSA and their contracted private security guards are currently running the holding centres. The CBSA officers are the ones with sole discretion to decide to place or to transfer to a provincial jail.

Disproportionately, we see that the individuals who are transferred to the more secure settings are people who are labelled high risk because of behavioural issues and because of mental health issues. To suggest that something may be different because they will be transferred to federal penitentiaries instead of provincial jails — I don’t see how those two go in lockstep. We see these current concerns in how they’re operating now. We’re deeply concerned that this proposal will actually entrench and make the situation worse, instead of better, particularly in hearing today the amount of reliance CBSA intends to have on privately contracted individuals.

Ms. Webster: Perhaps I can add this with regard to your first question on child separation. Absolutely, unequivocally, we see issues of child separation all the time. I can think of at least a dozen clients whom I’ve had in this calendar year alone who have been separated from their children as a result of being placed in immigration detention. I’m sure every individual who practises in this area would say at least the same. That issue extends across the country. The reality of child separation when an individual is detained is real.

Sometimes, those are Canadian citizens’ children; they are permanent residents’ children; they are foreign nationals’ children. Sometimes the children are as young as two or three, even infants. Sometimes it results in a child being taken into child protective services, even on a temporary basis. There are meaningful, serious, long-term consequences of that separation, and we see it each and every day.

The best interest of the child is a primary consideration in immigration law. It is not something we see anywhere in this legislation. We do not see it when we consider the use of federal penitentiaries, generally. We do not see it in transfer decisions made by CBSA. We do not see it.

I will leave you with one story. That’s simply that I have had clients who have had to say happy birthday or even say goodbye to their children from behind a glass wall. CBSA would not let them hug their children because they were in detention. That’s how secure the facility is. There’s not an opportunity to hug your baby before you’re deported.

Senator Boehm: Thank you for that last comment. It’s very sobering, of course.

I have two questions. Most of my questions have been asked by my colleagues. As you can see, we’re struggling with this concept of having something of this importance legislated in a budget implementation act, but that’s for us to debate further along.

I asked a question earlier to the government panel; it was answered in terms of benchmarking. I’ll ask the two immigration lawyers here in the room: Are you aware of any country in the world that’s a major receiving migratory country that incarcerates immigrants in federal penitentiaries?

Ms. Webster: I originally started my practice in the United States. There are occasions in the United States where immigrants are detained in federal facilities that are not exclusively immigration facilities. I would suggest to you that is not an example we want to follow. That practice has been universally decried by human rights organizations in the United States, in Canada, by UN organizations and by international human rights law generally.

Senator Boehm: Thank you. You both deal with communities and community organizations — Senator Cardozo touched on that in his question — and, of course, with newcomers. As I look around the table here and at our panellists online, some of us might be relative newcomers but not really that much. What is the feeling in terms of your client community? Are they aware of these proposals in the BIA? Would they have views? Diaspora communities run their community associations. But, over time, too, there’s been a phenomenon in Canada where the longer you stay, the less — shall we say — welcoming you might become toward newer groups, feeling that perhaps you handled your own immigration differently.

I’m not phrasing that very well, but do you have thoughts on that? What’s the community saying?

Ms. Best: I’m not sure I can speak with much authority to the migrant community, but I can say for our clients, particularly those who are transferred to provincial jails, they are absolutely shocked at the reception that they have had from Canada.

There’s an international perception that Canada is very welcoming to refugees, that we have a very high respect for human rights. There’s a massive disconnect between that and what people experience in immigration detention, particularly the lack of fairness around transfer or placement decisions or, as someone else mentioned, the very perfunctory nature of some of the immigration detention reviews.

There’s a very large disconnect, I would suggest, between the principles to which Canada does and should hold itself and then what actually happens on the ground. Certainly, there’s often a lot of shock and distress and anguish for our clients who are not expecting this treatment from Canada. That reverberates to their families and their community members who are often asked to step forward as bonds-persons or in a supervisory role if they are released. I think there’s a lot of misinformation on the part of communities sometimes about what is happening on the ground, given the rhetoric that Canada likes to ascribe to about its rights-protecting traditions.

Ms. Webster: Could I add about the position of community organizations? While I can’t comment as to whether they’re aware of this specific proposed change in the Budget Implementation Act, I can say that my experience has almost universally been that community, religious and cultural organizations and school groups are very willing to engage in community supports for individuals who are detained and are looking to be released from detention. In my practice, I have worked with individuals from a variety of organizations, backgrounds and positioning. I believe it was mentioned that 1,100 organizations are listed on IRCC’s website in terms of providing a host of settlement services.

These organizations are willing to step up. These organizations would be active, cooperating participants in developing more robust alternatives to detention, and that is the conversation we should be having. It’s not whether they are okay with our locking up individuals in federal jails; it’s how we can leverage this enormous groundswell of community support to help folks who are engaged in the immigration process.

You noted, senator, how sometimes communities that have been here longer are a little more hesitant, saying, “Listen, I followed the rules; I went my way,” but it’s exactly that sentiment we should leverage, because they’re going to say: “You have to follow the rules; you’re going to have release conditions; I’m going to make sure you report, and I’m going to make sure you submit your forms when you should; I’m going to make sure I connect you to the right information.”

There’s no reason to think these organizations can’t be excellent partners as we consider alternatives or humane, more rights-respecting options.

Senator Boehm: Thank you, that’s very helpful.

The Chair: Colleagues, this brings us to the end of another informative panel. I want to thank sincerely, on behalf of my colleagues, Ms. Best, Ms. Webster, Ms. Ramo and Dr. Arbel for answering so many inquiring questions. We appreciate your time in sharing your expertise and advice on what I’m going to call this gritty area of public policy and justice policy. I have no doubt your paths cross frequently with our colleague Senator Pate.

I’ll finish by saying thank you for the work that you do every day and often on weekends and evenings. This is important, crucial work, and you have our appreciation and respect, so thank you for joining us today.

We now move to our final panel of the meeting. For those joining across Canada, we’re studying the subject matter of Division 39,

Part 4 of Bill C-69, which amends the Corrections and Conditional Release Act.

For this next hour, it’s my privilege to welcome, from the World Refugee and Migration Council, the Honourable Allan Rock, P.C., Council Member and Canada’s former ambassador to the United Nations; from the Canadian Council for Refugees, Gauri Sreenivasan, Co-Executive Director Policy and Advocacy; and from Human Rights Watch, Hanna Gros, Researcher, Disability Rights Division.

Thank you all for being with us today. I invite you to provide your opening remarks, to be followed by questions from our members. We’ll start with Ambassador Rock, whenever you’re ready.

Hon. Allan Rock, P.C., Council Member and former Canadian Ambassador to the United Nations, World Refugee and Migration Council: Thank you. It is a privilege to be here before the committee. I’m grateful for the opportunity to appear on behalf of the World Refugee and Migration Council.

You’ve already heard a great deal from people both explaining the proposed legislation and detailing the reasons why they have grave reservations or they oppose the proposed legislation.

Much of what I put in my prepared statement has already been said, so let me just focus on two or three points in the few minutes I have as an opening statement to identify what I think are the most important considerations.

First, the idea of using jails or prisons, carceral facilities, is wrong in principle in the context of immigration. Immigration is, by its nature, an administrative process, and to introduce criminal elements to the administrative process is plain wrong. As Dr. Arbel said so eloquently, it violates fundamental principles of law, whether it’s criminal law, administrative law or human rights law. That mixture of the criminal with the administrative is ill-conceived and plain wrong.

Second, let me deal with the question of risk. I would imagine that those in a legislative position, such as members of this committee, would be concerned about risk to the public. The spectre has been left with you of murderers, rapists and high-risk individuals, a danger to the public and how we must be concerned that we protect the public — but it seems to me that paints the wrong picture of what we’re dealing with here.

If you want to know what the CBSA regards as risk, look at the profile of the people they’re detaining. You’ve heard it time and again today, that since 2016, of the 45,000 people who have been detained by the CBSA, over 90% were detained for reasons other than being a potential danger to the public. It was because they might not turn up at their hearing or because their paperwork was out of order. That’s the risk we’re talking about.

In the few cases where there is a genuine concern about danger to the public, we already have ways of dealing with that. We’ve heard about the holding centres, which are essentially medium-security facilities with 24/7 surveillance, guards, locked doors, limited access and segregation cells. This concept of risk — and by the way, risk is in the eye of the beholder when it comes to the CBSA, and high risk is also in the eye of the beholder. The conclusion that someone is high risk is not reviewable. You can’t ask somebody to take a second look at that. Once they say you’re a high risk, that’s the end of the matter.

To the extent to which the Immigration and Refugee Board of Canada exists in this whole picture, it has a minor role, which it performs in a perfunctory manner. You’ve heard from people who practise in the area of immigration and refugee law, and from their own experience, they’ll tell you that the IRB performs a perfunctory role and a very limited function. We can’t look to the tribunal for relief for an injustice perpetrated by the categorization of the CBSA as too high risk.

Speaking of the CBSA, here is a police-like operation with vast discretion on decisions that can have a huge impact on the lives of people, and there’s no oversight. This very committee, on two separate occasions in the past, has strongly recommended that oversight be put in place, and that has not yet happened.

Furthermore, when detention is ordered, there is no time limit. International human rights organizations have called time and again for Canada to join the rest of the developed world in imposing time limits on detention.

What are we left with? We’re left with a situation where, on the admission of the officials with the CBSA themselves, who were at this table less than two hours ago, fewer than 100 people right now are in provincial jails because they may have committed criminal offences. By the way, we weren’t told whether they were violent offences. As the representative of CARL said, it could have been a relatively minor offence — in any event, fewer than 100 people.

If that is what this comes down to, are we really going to turn it over to an agency that has such broad discretion, which can’t be reviewed, to order detention for indefinite periods, the right to put someone in a federal prison? It shocks the conscience. “Unconscionable” is the word that Dr. Arbel used, and I adopt that word myself.

This puts your committee and the Senate is a very difficult position. A division of a massive budget bill has been put before you. Obviously, people are raising questions of substance about it.

May I make a respectful suggestion? I know of no law or principle that prevents this committee — and, indeed, the Senate itself — from saying to the minister or ministers responsible: Sever this division. Get it out of the omnibus bill. If you choose to do so, bring it back separately so we can have an appropriate consideration of the merits and consequences of such a drastic act.

The stakes are too high for this to be pushed through as part of a massive budget bill. It needs and deserves the separate consideration of this committee and of the Senate, and that is what I respectfully suggest that you ought to do. Thank you, chair.

The Chair: Thank you, Ambassador Rock. Next we will hear from Gauri Sreenivasan. Please begin whenever you are ready.

Gauri Sreenivasan, Co-Executive Director, Policy and Advocacy, Canadian Council for Refugees: Thank you, senator. I join others in offering my thanks and appreciation for the opportunity to appear before you.

The Canadian Council for Refugees, or CCR, is Canada’s leading national umbrella, representing 200 front-line organizations across the country working with refugees and migrants. Our perspective is informed by our members, who provide daily accompaniment and support to those living the reality of the refugee claims process and immigration detention.

[ Translation ]

We are pleased to have the opportunity to share our views and recommendations with the committee on the budget implementation bill. Through the 2024 Budget, the government announced significant investments to support refugees and fairness. We welcomed many of those priorities.

[ English ]

However, the Budget Implementation Act is now suggesting — as you are hearing in stereo — in both Divisions 38 and 39, I might add, major new changes to refugee and immigration law that are extremely concerning and that could, in some cases, undermine the potential for the progress that the budget’s investments might allow. Many of the proposed changes have, in our view, been so hastily crafted as to lead to unintended negative consequences.

For Division 38, which I know is not your focus, most of the proposed changes to the claimant’s process are to make way for regulations that have not really even been drafted, let alone released, making informed public debate next to impossible. The Canadian Council for Refugees objects to the Budget Implementation Act being used in this undemocratic way to bring in potentially sweeping changes to our immigration and refugee system.

We have submitted a brief reviewing our concerns, jointly to both this committee and to the Senate Social Affairs Committee. Our overarching recommendation to you — joining many others before you this evening — is to either delete major sections of Bill C-69 or for you to insist on the immigration and refugee aspects being separated from the legislation to enable full hearings and debate. Quite simply, lives are at stake.

The CCR has four major concerns with the BIA. I will focus my remarks on the concerns in Division 39, given your study focus. However, I want to name three major concerns with Division 38 because there is a relationship between them that is important to understand.

In terms of Division 38, it is creating a worrisome new step in the refugee claim process before referral to the Immigration and Refugee Board of Canada, which will lead to long delays and create indefinite limbo for refugee claimants — threatening not only fundamental rights but, counterintuitively, undermining progress to date made by CBSA in streamlining the process.

Second, it introduces new measures to trigger early and automatic sending of a refugee claim to be declared abandoned, possibly jeopardizing the chance for marginalized claimants to seek protection in Canada and contributing, again, to a backlog at the IRB.

Thirdly, there are new means to designate a representative for minors — which, done properly, would be so important but, as formulated, could jeopardize justice and will put CBSA in a fundamental conflict of interest.

Division 39, before you, provides further and greater worry. Let me focus the remainder of my remarks here.

As you heard from previous witnesses, the amendments to enable the creation of immigrant stations at federal jails for the purposes of detention are a massive and deeply troubling misstep. It is a great concern that the government is proposing to expand prospects for immigration detention in federal jails precisely at the juncture where the public and all 10 provinces have clearly expressed a rejection of that practice.

As you have heard over and over again, immigration detention is an administrative measure, and those subject to it should not be treated as criminals, nor held in facilities designed for people convicted of a crime. Interestingly, UN standards and guidelines for detention — for example, refugee claimants — are crystal clear. Detention of asylum seekers is to be avoided. Although it is supposed to be a measure of last resort in Canada, there have been inadequate investment and attention in seeking community-based alternatives, and so immigration detention is chronically overused.

As you have heard, officials have wide discretion to detain people and most are detained on the subjective assessment of the person being at high risk for not appearing for a proceeding or for a lack of full identity documents. The majority of those so-called high-risk detainees, particularly those held for long periods, are Black or racialized individuals, revealing deep systemic racism.

Our current understanding is that there has yet to be a proper scan of what facilities could even meet the conditions of separation of detainees intended in the legislation. But if, as suggested by the government, federal jails will be used only a little bit, except for just a few people, there is then the risk that individuals will find themselves effectively in a kind of solitary confinement for long periods.

The bill commits to the notion of phasing out the use of federal prisons for detention in five, maybe ten years. This is not only a huge time span for rights violations; it is also, as we understand it, intended to buy time to mobilize resources to implement plans for creating other high-security detention centres to be administered by CBSA. It is simply a wrong-headed approach, given the capacity that we have seen today.

The relationship between the changes proposed across the divisions is important to think about. The Canadian Council for Refugees is concerned, for example, that the new abandonment rules for refugee claims and the mandatory conditions in Division 38 could lead to harsher enforcement measures with little regard for circumstances, thus driving more people to detention. Is this the Canada we want as we build these supercentres?

The point is, broadly speaking, that investments and priorities in the budget and the bill with respect to detention are focused at the wrong end of the issue. We should be focusing on avoiding detention in the first place; releasing individuals wherever possible including through alternatives to detention, and investment should be going toward supporting those with mental health and addiction issues while outside detention.

Our strong recommendation — and we join others in saying this — is to delete the provisions in sections 433 to 441 in the BIA in Division 39, enabling the use of federal jails for immigrant detainees, while working absolutely to strengthen and pass Bill C-20 to ensure civilian oversight of CBSA. Thank you very much.

The Chair: Thank you, Ms. Sreenivasan.

We now welcome our final witness of the day, Ms. Hanna Gros. Please proceed whenever you are ready.

Hanna Gros, Researcher, Disability Rights Division, Human Rights Watch: Chairman and members of the committee, it is an honour to appear before you. I am grateful for the opportunity to address this important issue.

I’m a researcher at Human Rights Watch, and I also previously worked as an immigration and refugee lawyer.

In 2021, I authored a joint report for Human Rights Watch and Amnesty International, which formed the basis for the #WelcomeToCanada campaign that was instrumental in ending the use of provincial jails for immigration detention across the county.

Over the past decade, I’ve had the privilege of interviewing, representing and working with dozens of people who experienced immigration detention first-hand. These are individuals whose voices are often lost in these discussions. Many are fleeing and healing from traumatic experiences, hoping to find safety and belonging in Canada. Many continue to be terrified of speaking out even after they secure legal status. I’m grateful for the opportunity to share some of their words with you today.

In 2020, I interviewed a person I’ll call “Usman,” who was incarcerated in an Ontario jail for three years while CBSA attempted to deport him. He fled a war-torn country in Africa as a child, and his country of origin did not recognize him as a citizen. As a result, he could not be deported. When I asked him what stayed with him from his time in detention, Usman recalled a visit to the hospital:

. . . I was handcuffe