Okay.
However, most of the families that I have met in detention include young children between zero and five, even breast-feeding children, where it is not reasonable or even possible for the children to be separated from their parents. One of the key problems with accompanying children is that the IRB does not consider the best interests of these children when deciding whether to maintain detention for or release the parents.
I would like to share stories of some of the families we have met in detention.
One is about a woman refugee claimant from Ethiopia and her three children, ages four years, three years, and eight months. At her seven day review, her lawyer presented a known shelter for women and children refugees as an alternative to detention, arguing that considerations should be given to the presence of three young minors in detention. However, detention was maintained, and the family spent 29 days in detention, during which the children were ill and had to be taken several times to hospital.
A female refugee claimant from Somalia was held with her young son who was quite ill. After more than 40 days their detention was once again maintained, despite affidavits from family members in Canada as to their identity, despite the presence of an alternative, and despite arguments about the child's health.
Some parents share with us the difficulties their children face in detention, including fear, trouble eating or sleeping, or physical discomforts. Other parents indicate that while their children do not seem disturbed by being in the centre, their own stress and anxiety have negative effects on their children.
The next point I would like to address is that of the detention of vulnerable persons, including the elderly, those experiencing physical or mental illness, pregnant women, or unaccompanied minors.
One of the problems that arises with vulnerable persons who are detained for identity is that once the decision has been made to arrest and detain, vulnerability is no longer directly relevant to the decision to release or maintain detention. There is no clear direction for either CBSA or the IRB to consider release due to vulnerability or compelling circumstances.
In 2009, I met a 75-year-old woman from the Democratic Republic of Congo in the holding centre, a refugee claimant detained on identity. She had a significant language barrier and health problems. An alternative was offered from the day she was detained in the form of a community worker who spoke her language and was willing to provide shelter and support. This alternative was endorsed by her designated representative, a social worker. However, the woman spent 17 days in detention, which was very difficult for her since she was unwell and had trouble communicating even via an interpreter.
In our experience, many vulnerable people end up in detention, which creates an enormous strain not only on them, but on CBSA's resources, and yet often suitable alternatives exist. It would seem there is a lack of clarity as to how to address vulnerability.
In 2010, CBSA conducted its own internal review process called “CBSA Detentions and Removals Programs - Evaluation Study”. In the final report released in November 2010, CBSA identified areas for improvement in detention, including better training on mental illness, and the need for clearer guidelines as to how to address vulnerable persons, since the wording of enforcement manuals was found to be insufficient. This was seen to result in inconsistencies across Canada. For example, minors, persons with mental health issues or other special needs were extremely unlikely to be detained in the Atlantic and prairie regions, unlike other regions.
A special mention should be made of unaccompanied minors. Although there is greater clarity in the law and regulations as to detention being a last resort, we have seen numerous cases of unaccompanied minors spending nearly a month or longer in detention, despite alternatives existing. In one fairly dramatic case, the unaccompanied minor herself had a baby with her, was breast feeding, and had family members with whom she could stay in Canada.
My next point focuses on the inability for IRB members to adequately review detention on identity grounds. Unlike flight risk or danger to the public, immigration division members cannot overturn the initial decision to detain on identity made by a CBSA officer, no matter how much evidence the detainee has provided, or how fully they are collaborating, and certainly not based on any compelling circumstances.
Sometimes new evidence is provided at detention reviews that was not available to the arresting or investigating officer, including new documents or significant testimony. Board members' experience in handling detention cases allows them to develop a familiarity with the identity issues, but they do not have the power to satisfy themselves of the person's identity, no matter how much experience they have.
In one case, a Kurdish refugee claimant appeared for review after having spent 40 days in detention on identity grounds, in part due to doubts as to the authenticity of two UNHCR identity documents. At the review, a letter from the UNHCR was provided to the board member confirming the authenticity of the documents; however, the board member was unable to render a decision on identity and instead provided an additional 12 days of detention for CBSA to confirm the information.
In other cases, documents with security features have been found to be authentic and verifications completed, yet CBSA calls for detention to be maintained for other factors, such as waiting for a passport to arrive. In such cases, the board member is unable to overturn CBSA's opinion on identity even when multiple elements confirming identity are present.
All of these factors place a strain on CBSA resources when alternatives are often possible, but I would like to focus on the strain it places on detainees. During our weekly visits, we hear from refugee claimants about how hard they find detention.
One of the most common things we hear about is the shame they feel at wearing handcuffs. Handcuffs are a powerful symbol of punishment for most. We also hear about the shame of being under constant surveillance, the fear of deportation, and chronic physical discomfort such as constipation and fatigue.
We regularly meet detainees who speak no English or French.
The toll that detention takes on the mental health of refugee claimants has been documented in the research of Janet Cleveland from McGill University.
There is the added stress of having to prepare one's refugee claim while in detention, with no privacy and with obstacles to communicating with family or legal counsel. Detainees regularly express distress at having to prepare their personal information form within 28 days. This will be exacerbated with the shorter delays under Bill C-31.
In light of all these observations, I believe there is the potential for far more consideration of alternatives to detention by both CBSA and the IRB. This would reduce the human costs of detention and also the considerable financial costs.
I recently had the opportunity to participate in a binational round table meeting on alternatives to detention, which was organized by the UNHCR. Many examples of alternatives were provided. It was clear that alternatives can be effective and necessary, and that one key element is to develop tools for early screening of vulnerable persons.
The UNHCR has published new guidelines on detention that provide fresh direction to states as to when detention is reasonable, proportionate, and necessary, and when alternatives are appropriate. They call for an assessment of the overall reasonableness of detention, taking into consideration all factors, including special needs or considerations.
