Stop transfer of immigration detainees with health problems to jails, lawyer urges CBSA

A refugee lawyer is accusing the Canada Border Services Agency of transferring sick and mentally ill immigration detainees to provincial jails for medical care and he is calling for the alleged practice to stop because he says prisons are not appropriate places for treatment.

"Prisons are meant for punishment," Anthony Navaneelan, staff lawyer at the Refugee Law Office at Legal Aid Ontario in Toronto, told CBC's Metro Morning this week. "That's what they are designed for. Immigration detainees who are sick should not be there."​

• Ralph Goodale 'concerned' about 2 immigration detainee deaths in Ontario

• Detainee who died in CBSA custody was an adult male, province says

• Death of person detained by Canada Border Services Agency prompts calls for oversight

CBC News has repeatedly reached out to the CBSA for its reaction, but so far the agency has not commented on or confirmed any of the allegations made by Navaneelan. It has said it transfers detainees to provincial jails when they are "higher risk," such as those with criminal backgrounds, and when they are "lower risk," but in areas not served by holding centres. 

It has also said: "The CBSA works closely with its provincial correctional partners to minimize interaction, to the fullest extent possible, between immigration and criminal detainees."

​Dr. Michaela Beder, a psychiatrist at St. Michael's Hospital in Toronto, also told Metro Morning that she thinks the alleged CBSA practice of placing detainees with health problems in jails is "absolutely horrifying." She said detainees need to be transferred to hospitals for proper medical care.

"For people who are severely ill, I would say they need to be in a hospital. I work with many people who have severe mental illness. When they become so unwell that they need support, we don't send them to jail, we send them to a hospital where they are able to receive the support that they need," she said.

"Anybody who is suicidal, anybody who is so severely ill, needs to be in hospital. Many people, though, can be treated in the community and receive the support that they need. Often what happens is that it's very difficult to make that bridge between immigration detention and the outside services that are available."

Navaneelan said the "medical purposes" that prompt the move occur when detainees are suffering from serious physical and mental health problems and the CBSA has decided the detainees need medical care that the immigration holding centres cannot provide. He said the medical care at the holding centres is limited.

He said nurses at the holding centres provide primary care but not seven days a week, 24 hours a day, while doctors visit less frequently than the nurses. He said if there is a medical emergency, staff at the holding centres will call 911.

The CBSA has not "put the money and resources into providing proper medical care at the immigration holding centres," he said. 

Navaneelan said prisons are not the best places for medical care. "The prison is treated as a hospital. That's supposed to be a place, according to the Canada Border Services Agency, where there's an appropriate level of treatment for your illness," he said.

"Medical care in provincial jails is not primarily about treating the person. It is about controlling their symptoms so they will be compliant in the institution.

"It's not about providing them with the environment and the counselling and the treatment that would actually provide for long-term recovery.  We know jails are damaging to people's mental health, especially people with pre-existing conditions."

Once the detainees are at provincial jails, Navaneelan said they end up being treated as criminals even though they have done nothing wrong.

"You put on the orange jumpsuit, you are strip searched, you are held in cells, you eat your meals in cells. It's everything that you picture and see on television," Navaneelan said.

As well, during the transfer itself, detainees fall into a legal black hole, he said. They are not given the same rights granted to criminal inmates: they get no notice, no written reasons, no disclosure of the facts involved in their cases, no right to call a lawyer, no cooling off period, and their lawyers are not informed of the transfer until they call the holding centres.

"These types of decisions are not prescribed by law at all. There is actually no black letter law anywhere that says where CBSA gets to hold immigration detainees, and more importantly, there is no law that says under what circumstances can they to transfer them to a jail," he said.

Navaneelan said transfers can happen suddenly to detainees.

"In some cases, a guard will come to your room and tell you that you are being transferred to a jail and you are put on a bus. You may be lucky to find out the reason why you are being transferred before you go. Sometimes, you only find, when you arrive, and you ask the jail people, 'Why am I here?' Your lawyer is almost never told whatsoever," he said.

"That's totally different than how we treat criminal inmates."

He said the Ontario government could cut off the supply of jail cells to the CBSA and refuse to accept the transfer of detainees with health problems to its jails. The issue, he said, involves the CBSA, the federal and provincial governments.

Navaneelan said one of his clients, a man in his 20s from Cameroon, was taken to an immigration holding centre and interviewed by a psychiatrist. Because the psychiatrist spoke only English and the man spoke only French, a security guard was asked to translate.

Based on the interview,  Navaneelan said, the psychiatrist concluded the man could be a suicide risk and he told management, which never met with him to allow the young man to explain his statements. A guard told him he was being transferred to a jail.

"That day, he's on a bus and he's in a prison for the first time in his life, wearing the orange jumpsuit, and he finds out he's there because it's supposedly where he will get treatment for his so-called suicide risk," he said.

Correctional staff can also place the detainees into what is called "psych hold," a practice similar to solitary confinement that Navaneelan says can aggravate mental illness.

Navaneelan said the case of Melkioro Gahungu, 64, the 13th detainee to die while under CBSA custody since 2000, is an example of what can happen when detainees are placed in jails.

Gahungu hanged himself in his cell at the Toronto East Detention Centre in March 2016 while awaiting deportation.

Fourteen people have died in immigration detention while in CBSA custody since 2000, according to the End Immigration Detention Network.

Part of why the practice of transfers is ongoing, Navanaleen said, is because Ontario has an agreement with the federal government to accept immigration detainees into its jails.

A 2015 investigation by the University of Toronto's faculty of law concluded Canada's detention of detainees with mental health issues in provincial jails constitutes arbitrary detention as well as cruel and inhuman treatment.

"The government claims that detainees can better access health care services in jail, even though all our research  indicates that mental health care in provincial jails is woefully inadequate and has been the subject of recent reports and human rights complaints," the report states.