Trudeau government negotiating with provinces to keep migrants behind bars

Despite assurances by every Canadian province that they're ending their immigration detention agreements with the federal government, Ontario and Quebec now appear to be backtracking — at the federal government's request.

The Ontario government had stated that starting June 15, it would refuse to incarcerate migrants on behalf of the Canada Border Services Agency (CBSA) in its provincial jails.

However, Radio-Canada has learned that migrants detained for administrative reasons remain behind bars in that province, and could be for some time.

"Following a request by the Government of Canada, a 45-day extension to the immigration detainee agreement was granted," a spokesperson for Ontario's Ministry of the Solicitor General confirmed.

According to the spokesperson, that extension will expire on July 31, 2024, but CBSA has not confirmed a precise deadline and says discussions with Ontario and Quebec are ongoing.

Trudeau seeking extension from Legault, too

Quebec had also indicated it would no longer imprison people for immigration purposes starting June 30.

However this, too, seems to have changed after a recent meeting between Prime Minister Justin Trudeau and his Quebec counterpart François Legault.

Ottawa offered $750 million to help Quebec pay for services for asylum seekers, and the detention of migrants formed part of the talks.

"During their June 10 meeting, the Prime Minister and the Premier said they are ready to open the discussion on this subject," wrote Quebec's Conseil exécutif in response to Radio-Canada's inquiries.

"The two governments are currently in discussions," added the council, which reports directly to Quebec's premier.

Neither the federal nor the Quebec government is offering a precise timeline for a possible contract extension, but the federal government's funding proposal reads: "The Government of Canada has requested continued access to Quebec correctional facilities for an additional 18 months."

'The most vulnerable of the most vulnerable'

Immigration lawyer Pierre-Olivier Marcoux with Montreal's Legal Aid Clinic said he's very concerned about these new developments.

He described imprisoned migrants as "the most vulnerable of the most vulnerable," and said they will "suffer" even more if the use of jails is allowed to continue.

When CBSA detains people for immigration purposes, it can choose to either hold them in a provincial jail or in one of its immigration holding centres in Toronto, Laval, Que., and Surrey, B.C.

"Detention in a provincial facility, in provinces where this measure is still available, is limited to the most difficult cases, when there are serious concerns about danger to the public, or to other detainees, or to staff," CBSA wrote in an email to Radio-Canada.

According to Marcoux, many of these detainees are struggling with mental health issues and become agitated in detention.

He said one of his clients is currently being held at the Rivière-des-Prairies jail in Montreal because he's been deemed a flight risk, not because he's considered a danger to the public.

Under the Immigration and Refugee Protection Act, CBSA can detain foreign nationals and permanent residents for three main reasons: if their identity hasn't been well enough established, if they're deemed a danger to the public, or if they're considered a flight risk, meaning the border agency believes they won't appear for immigration processes including removal.

From April 1, 2023, to March 31, 2024, CBSA detained close to 5,000 migrants, 78 per cent of whom were deemed a flight risk. Of all immigrant detainees, 17 per cent were sent to a provincial jail.

Marcoux said the use of jails for immigration detainees is contrary to Canada's human rights obligations.

'In a cell without a working toilet'

The conditions facing migrants in detention have also been denounced by members of the Immigration and Refugee Board of Canada (IRB), the country's largest independent administrative tribunal.

Among other things, the IRB is responsible for reviewing the reasons given by CBSA to detain a person, but has no control over where their detention takes place.

In IRB hearing transcripts from 2022 and 2023, obtained by Radio-Canada, the subject of poor living conditions often arose in relation to Maplehurst Correctional Complex, a maximum security detention centre in Milton, Ont., where people are often incarcerated for immigration purposes.

Here are some examples of comments from IRB members concerning immigration detainees who were deemed a flight risk:

• "Somebody with mental health issues was in his cell … 23 and a half hours a day [for over two months] with very little human interaction. And when he had [interaction], he had to articulate how excited he was to see somebody who was just doing a check-in, because otherwise he had no one to talk to. That's very concerning, and I do want to make clear … that that is unacceptable."
• "Frankly, the conditions you have described are awful. Most concerning to me is that you have had one shower in more than a week that you have been in custody, and you are in a cell without a working toilet. These details are troubling." (The toilet was described as broken and flooded with used toilet paper from previous inmates, and the resulting smell as nauseating.)
• "Maplehurst is not suitable for someone with serious mental health concerns. The conditions have been described as inhumane ... due to the overcrowding, lack of resources, lack of counselling, and other rehabilitative programming….  It is totally inappropriate." (The IRB member also underlined how difficult it was to speak directly with the detainee, whose detention review hearing was cancelled several times due to staffing issues at Maplehurst. The member blamed CBSA for the delays because it chose to hold the man in "a facility that cannot accommodate a normal volume of hearings.")

CBSA said it's increasingly turning to its own facilities "to house higher-risk individuals."

The federal government has invested $325 million over five years to adapt its three immigration holding centres.

The government also intends to use its federal penitentiaries to detain migrants. The UN Working Group on Arbitrary Detention, which visited Canada in May, said it was "concerned" about this plan.

NGOs such as Human Rights Watch and Amnesty International are calling on the federal government to end all forms of detention of migrants for administrative reasons.