CBSA management response and action plan to the Canadian Red Cross 2020 to 2021 annual report
Introduction
The Canada Border Services Agency (CBSA) welcomes the Canadian Red Cross’ (CRC) 2020 to 2021 Annual Report, which outlines the CRC’s observations and recommendations as a result of findings from their Immigration Detention Monitoring Program (IDMP). The CBSA views the program as a crucial safeguard for detainees and as a means to continually improve immigration detainee treatment and well-being. Building on the continued efforts under the National Immigration Detention Framework (NIDF), which fully implemented in March 2021, the CBSA has succeeded in many areas in creating a better and fairer immigration detention system whereby persons are treated with compassion and dignity while upholding public safety.
This document presents the CBSA management response and action plan (MRAP) developed in response to the 2020 to 2021 Canadian Red Cross Society’s Immigration Detention Monitoring Program Annual Report.
Section 1: Covid-19 numbers and the four key areas of monitoring
Canadian Red Cross recommendations
Covid-19 numbers
1.1 Continue implementing measures that have reduced the number of people detained under the Immigration and Refugee Protection Act (IRPA). The CBSA should avoid placement of persons detained under IRPA in detention facilities under the management of other authorities (i.e., provincial, municipal, etc.) so that all people detained under IRPA benefit from the advantages of lower rates of occupancy.
Covid-19 and conditions of detention
1.2 Ensure that measures are in place to maintain acceptable detention conditions during preventative isolation, medical isolation in response to Covid-19 outbreaks, and other types of lockdowns.
1.3 Regular access to the following be maintained, even if they must be adjusted for public health reasons:
- common areas outside of the cell, including showers
- open air
- telephones or other means of communication to ensure continuing interaction with family, friends, legal counsel, and consular authorities, and
- space allowing for confidentiality of information shared with lawyers and during detention reviews
Management response
We work to ensure that we are exercising its responsibility for detentions to the highest possible standards with regard to the physical health, mental health and the overall well-being of detainees, as well as the safety and security of Canadians. To this end, the we continue to work closely with the Public Health Agency of Canada to prevent the spread of Covid-19 within CBSA facilities. In addition, provincial correctional facilities and other non-CBSA facilities also work closely with Public Health Agency of Canada in order to ensure high standards of safety and precaution for detainees, including CBSA detainees held in facilities under the management of other authorities.
We actively reviews its detention population in all facility types to ensure that detention numbers remain at a minimum in order to support lower rates of occupancy, and that all options for release are continually explored. Detention placement always defaults to an immigration holding centre, where one is available; however, in regions where there is no immigration holding centre, or where a detainee’s risk factors exceed those that can be appropriately managed within an holding centre environment, the CBSA relies on the use of provincial correctional facilities. The use of provincial correctional facilities for immigration detention allows both the province and the CBSA to manage the fair treatment of detainees while ensuring the safety of Canadians when risks cannot be mitigated through other means, such as alternatives to detention, or where behaviour cannot be managed at an immigration holding centre.
Action plan
In response to both recommendations under section 1, the CBSA will ensure detention standards are maintained in CBSA facilities along with additional pandemic measures as imposed by Public Health Agency of Canada/provincial health units, and continue to encourage and to support provincial facilities to do the same in non-CBSA facilities.
Anticipated completion: Ongoing as needed.
In response to both recommendations under section 1, the CBSA carefully reviews all cases in detention on a regular and routine basis for appropriate alternatives to detention and to determine if those held in a provincial correctional facilities can be transferred to an immigration holding centre.
Anticipated completion: Ongoing as needed.
Section 2: Detention in an immigration holding centre versus detention in a provincial correctional facility
Canadian Red Cross recommendations
Conditions of detention and treatment
2.1 Reduce reliance on provincial correctional facilities by:
- expanding the availability of specialized alternatives to detention which are equipped to respond to a larger variety of needs
- providing all three immigration holding centres with infrastructure, personnel, and procedures that permit holding people with complex profiles, while ensuring they are held according to national and international norms
- facilitating voluntary transfers of detained individuals from provincial correctional facilities to immigration holding centres, including across provinces or regions, and considering proximity to family (in cooperation with the other authorities involved)
- improving the detention placement assessment process that determines if a person with previous criminal convictions is eligible to be placed in an IHC rather than a PCF, taking into account all available factors that can lead to a more precise assessment of their current behaviour and level of risk
2.2 Should the CBSA continue placing individuals detained under the Immigration and Refugee Protection Act (IRPA) in provincial correctional facilities in order to reduce the negative impact to such placement, the CRC recommends that the CBSA ensures the individuals are held in specialized units where they are entirely separated from the remaining population held under the Criminal Code, while simultaneously avoiding situations of solitary confinement to achieve such separation. In addition, conditions in these units, as well as access to activities and services, must meet the minimum standards for people held under administrative detention.
2.3 It is recommended that, regardless of place of detention, the CBSA provide people detained under the Immigration and Refugee Protection Act (IRPA) with full and timely access to health services covered by the Interim Federal Health Program (IFHP) or equivalent coverage- including an examination by a qualified health care professional as soon as possible following admission.
2.4 The CRC recommends that the CBSA ensures detainees have access to leisure, cultural, and educational activities, regardless of place of detention, and provide reading material in languages understood by detainees.
Access to legal guarantees/Procedural safeguards and family contacts
2.5 Detainee Liaison Officers (DLO), or other officers with DLO functions, hold regular meetings throughout detention with all detainees, regardless of place of detention, and regardless of whether they had previous interaction with other CBSA officers.
2.6 The CRC recommends the use of professional interpretation services ,where applicable, for individuals in detention.
2.7 The CRC recommends offering video conferencing as soon as possible to all people held for immigration reasons, regardless of place of detention.
Management response
We agree with the recommendation to reduce the use of provincial correctional facilities for immigration to the extent possible, and continue to build solutions, acknowledging reductions in the use of provincial correctional facilities already achieved by the expansion of alternatives to detention in 2018. In regions with access to an immigration holding centre, every detention is considered for placement at the immigration holding centre; however, detention within provincial correctional facilities are utilized where the needs or behaviours of the detainee cannot adequately be managed within an immigration holding centre. We will continue to develop policy and program changes to ensure all immigration holding centres can accommodate detainees with a broader risk profile to promote greater national consistency and improved governance and oversight. For example, in March 2020, we finalized a policy to standardize the transfer of detainees to an immigration holding centre (either from a provincial facility or from another immigration holding centre). This policy has the objective of ensuring that all detainees have access to an immigration holding centre where appropriate, which will further reduce reliance on provincial correctional facilities. The willingness and opinion of the detainee for a transfer will be considered when making a decision to transfer. Lastly, CBSA Detainee Liaison Officers currently provide regular and consistent visits to immigration detainees in provincial correctional facilities on a monthly basis in order to provide guidance and support, beginning with a mandatory meeting between the Detainee Liaison Officer and the detainee within 72 hours of detention.
Further, in September 2021, we introduced a policy that requires all detentions in an immigration holding centre region to be triaged by an officer working at an immigration holding centre for placement. This policy, relevant to regions with an immigration holding centre (GTA, Pacific and Quebec regions), will ensure that all detainees are considered for placement within an immigration holding centre as the default and transferred to a provincial correctional facilities only where their risk is determined to not be manageable within an immigration holding centre.
In response to recommendation 2.2, while we continue to implement measures to reduce reliance on provincial correctional facilities as described above, it is important to recognize that in the interim we must continue to rely on provincial correctional facilities to hold immigration detainees of highest risk and in regions that do not have a CBSA immigration holding centre. In these instances, through ongoing discussions with provincial partners, we will continue to advocate for a reduction in co-mingling or the elimination of triple-bunking through the use of dedicated space within a provincial correctional facilities. We continue to negotiate agreements with provinces, which include provisions to minimize co-mingling and solitary confinement to the greatest extent possible. This is an ongoing and perpetual activity.
We are responsible for providing persons detained under IRPA with ordinary and reasonable care for the preservation of life and health. Access to the Interim Federal Health Program falls within the authority of Immigration, Refugee, and Citizenship Canada. In response to recommendation 2.3, we are working on a medical services framework to provide a higher level of coverage, regardless of their place of detention. To complement the efforts of the Immigration, Refugee, and Citizenship Canada, we have implemented contracts that expand access to health and mental health services with external service providers to provide access to on-site health services within the three immigration holding centres. Additionally, we are in the process of developing the Detainee Medical Services Program, a comprehensive medical services framework. The program will focus on providing necessary medical and mental health care to those subject to immigration detention in all detention locations.
In 2021, the we implemented enhanced National Detention Standards that guide the administration of CBSA immigration holding centres and, in conjunction with non-CBSA facility procedures, guides the treatment of immigration detainees in non- immigration holding centre facilities, which address statements made in recommendation 2.4, 2.6, and 2.7. These standards reflect the CBSA’s commitment to improving immigration detention by establishing expected practices and providing for national consistency in the administration of the detention program in both CBSA and non-CBSA facilities. The standards will be reviewed and revised on a regular basis to ensure they reflect any issues that arise from their application, and to ensure they continue to align with future policies and programming. In particular to this recommendation, the 2021 National Detention Standards as well as enhancements to CBSA immigration holding centres have ensured consistent access to religious, leisure, cultural and educational activities across Canada. In terms of access to religious activities, we are able to offer reasonable and equitable opportunities to practice religion of choice alone or with other detainees, and may allow detainees to possess personal items of religious significance necessary for that practice. For persons detained and held at a provincial correctional facilities, access to leisure, cultural, and educational activities is guided by the policies and rules of each facility. Through ongoing discussions with our provincial partners, we will continue to advocate access to educational, religious, leisure, and cultural activities.
In response to recommendation 2.5, in the event that a detainee is unable to comprehend either of Canada’s official languages, it is the policy of the CBSA that officers use an accredited interpreter. For interactions which are of a less personal or confidential matter, the CBSA is reviewing options regarding the use of online translators to facilitate the sharing of certain types of information.
Action plan
In response to 2.1- develop a risk assessment tool to better assist staff when making decisions related to detention placement (provincial correctional facilities versus immigration holding centre versus alternatives to detention).
Anticipated completion: Q4 2022 to 2023
Conduct a review of the Alternatives to Detention program in an effort to assess its efficacy in achieving objectives and to guide program development.
Anticipated completion: Q4 2021 to 2022
In addition to above details in response to recommendation 2.3, the CBSA will continue the development of the Detention Medical Services Program to address the medical and mental health needs of those in detention.
Anticipated completion: Q4 2022 to 2023
Determine the feasibility of the use of videoconferencing as a means to enable contact with family/friends as well as to allow immigration holding centre detainees internet access to Canadian and foreign government websites for the purposes of researching detainees’ immigration cases.
Anticipated completion: Q1 2022 to 2023
Section 3: Vulnerable people and people detained for longer periods
Canadian Red Cross recommendations
Vulnerable people/Long term detainees and conditions of detention
3.1 CRC continues to encourage the CBSA to further expand the availability of alternatives to detention in all regions to be able to offer them to a greater number of vulnerable people. In addition, it is recommended to offer alternatives to detention that are adapted to a greater diversity of people with specialized needs, such as those provided by organizations with expertise in trauma-informed medical and mental health care.
3.2 It is recommended that the CBSA develop alternatives to detention to permit family unity outside detention since, in a vast majority of cases, it is in the best interest of the child.
3.3 It is recommended to end the practice of placing vulnerable people in administrative detention, such as asylum seekers and people dealing with severe mental and/or physical health issues.
3.4 Ensure that all detainees, especially vulnerable people, have full and timely access to health services covered by the Interim Federal Health Program (IFHP) or equivalent coverage.
Management response
We strive to manage the health and psychological well-being of all detainees regardless of placement location.
We would like to take this opportunity to re-iterate that detention is considered a measure of last resort and the we continuously assess the appropriateness and availability of alternatives to detention for all persons, including vulnerable persons (including minors and/or those with specialized needs). Detention of a vulnerable person, however, is not precluded where the person poses a level of risk that can only be managed by detention.
The best interest of the child is always a primary consideration when a detention decision is made and the CBSA and its contracted service providers are committed to finding short-term alternatives in order for family units to not only feel supported but remain unified outside of detention. We continue to make every effort possible to reduce the number of minors in detention and does not separate minors from their family members (parents or legal guardians), unless it is in the best interest of the child. Where this is not possible, and accompanying family members are detained under the IRPA at an immigration holding centre, the (non-detained) minor may remain with their parents/guardian, at their request and with their consent, if this is determined to be in the child’s best interests.
As noted above, we are responsible for providing persons detained under IRPA with ordinary and reasonable care for the preservation of life and health. Access to the Interim Federal Health Program falls within the authority of IRCC, however the CBSA is developing the Detainee Medical Services Program. As stated, the program will focus on providing necessary medical and mental health care to those subject to immigration detention in all detention locations.
Action plan
Develop a risk assessment tool to better assist staff when making decisions relating to detention, placement on an alternative to detention, and consideration of release in response to recommendations 3.1 and 3.2.
Anticipated completion: Q4 2022 to 2023
Conduct a review of the alternatives to detention program in an effort to assess its efficacy in achieving CBSA objectives and to guide program development in response to recommendations 3.1 and 3.2.
Anticipated completion: Q4 2021 to 2022
Develop the Detention Medical Services Program to address the medical and mental health needs of those in detention in response to recommendations 3.3 and 3.4.
Anticipated completion: Q4 2022 to 2023
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