‘Alarming’ number of jailed immigration detainees have mental health problems, Star analysis finds

An “alarming” number of immigration detainees recently locked up in maximum-security Ontario jails had pre-existing mental health problems, a Star analysis has found.

The jailing of these detainees in facilities where they’re subject to punishing conditions such as frequent lockdowns and solitary confinement, has human rights advocates renewing calls for Canada to stop using provincial jails for immigration detention.

The Star reviewed 60 cases of immigration detainees held in Ontario jails since last summer and found that more than half had reported mental health issues, ranging from drug addiction to schizophrenia.

These detainees are treated the same as inmates serving criminal sentences but they are not locked up because they have committed a crime. They are detained, on an indefinite basis, while the government tries to deport them.

The use of provincial jails for immigration detention by the Canada Border Services Agency is under increased scrutiny, with five provinces vowing to end the controversial practice in the last year. Ontario, which is home to the highest number of immigration detainees in the country, including half of all detainees held in jails, has said only that it is “reviewing” its agreement with the CBSA.

The Star’s findings are “alarming, but unsurprising,” said Hanna Gros, a researcher with Human Rights Watch and the author of a 2021 report that found immigration detainees with mental health conditions were more likely to be held in jails, rather than less-restrictive facilities.

“I think CBSA has demonstrated clearly through their practice and their policy that they’re incapable or unwilling to provide meaningful care for people in their custody who are experiencing deterioration of mental health.”

The CBSA does not collect health-related data from detainees so it could not say whether the Star’s analysis was reflective of the broader immigration-detention population.

The CBSA says it is “actively working” to minimize its use of jails, where more than 900 immigration detainees were held across the country last year.

“The health and safety of those in our care is of paramount importance to the CBSA,” the agency said. “We take this responsibility very seriously.”

Several immigration lawyers interviewed by the Star said the newspaper’s findings align with their experience.

“Most of my cases have addiction and mental health engaged,” said Jessica Chandrashekar, a lawyer who works exclusively on immigration detention cases. “If mental health is not an issue prior to someone being detained, the experience of detention itself has a very negative and profound impact on a detainee’s mental health … Jail compounds everything.”

The CBSA’s website suggests immigration detainees may be sent to jail because of their mental health issues. The agency’s website reads, “Individuals with mental health issues may be detained in a provincial detention facility that provides access to specialized care.”

Gros said this language is “clearly discriminatory,” adding that it is “absurd” for the CBSA to justify sending someone to a provincial jail so they could get mental health care. “Jail is obviously not where you go to get help with your mental health.”

The CBSA did not directly answer a question about whether mental illness might be a reason an immigration detainee is sent to jail.

Adjudicators at the Immigration and Refugee Board have raised concerns about the lack of treatment and harsh conditions in provincial jails for immigration detainees with mental health issues.

In one case last year, an adjudicator described the CBSA’s relationship with Ontario as a “tangled mess” and criticized the federal agency for not taking responsibility for a detainee’s treatment.

“I implore the CBSA to start moving away from its reliance on the province and to start developing its own systems and resources to deal with high-risk mental health cases,” the adjudicator wrote in August. “Migration and mental health problems are not going away.”

The decision whether to put a detainee in a provincial jail or the less-restrictive immigration holding centre is made by a single CBSA officer. The officer fills out a form that assigns detainees a “risk factor” score based on the answers to eight questions about their history.

The form also includes one vulnerability factor question, which lowers the risk score if the detainee is part of a vulnerable group, including if they have “suspected or known” mental illness.

If a detainee’s score is 10 or greater, they are sent to a provincial jail; if it’s less than five, they’re supposed to go to the immigration holding centre; and if it’s between five and nine, the officer filling out the form can decide.

But the CBSA doesn’t always follow its own rules. The Star reviewed two Federal Court cases in which detainees scored less than five on their forms and were still sent to Ontario jails last year.

The agency would not discuss any individual cases, but said the risk score isn’t the only factor in a detainee’s placement.

The risk-assessment forms have been criticized for giving too much discretion to the CBSA and for not affording detainees an opportunity to contest or appeal their score.

A spokesperson for the federal agency described the forms as a “standardized tool” that “allows the CBSA to determine if there could be risk to the detainee himself, other detainees, or staff at a detention facility.” They added that the CBSA is “constantly updating and refining” the process “to ensure appropriate outcomes” and “national consistency.”

Samer Muscati, associate director of Human Rights Watch, which is lobbying provinces to cancel their agreements with the CBSA, said the agency’s approach to risk assessments and its inclination toward more restrictive forms of detention is a reflection of its enforcement-at-all-costs perspective.

“When you’re a hammer, everything you see is a nail.”

The mental health of immigration detainees has been a long-standing concern of human rights activists, immigration lawyers and, occasionally, the courts.

In 2017, when an Ontario Superior Court judge ordered the release of Kashif Ali, who spent seven years in immigration detention and was once kept in solitary confinement for more than 100 straight days, the judge said the mental health problems Ali developed during his time at the Central East Correctional Centre “will not be properly addressed” as long as he remains in jail. It was one of the factors the judge relied upon to conclude Ali’s Charter rights were being violated.

In the dozens of hearings reviewed by the Star, immigration detainees in Ontario jails regularly raised the harshness of the conditions, particularly in light of their mental health.

In one example, an Ethiopian man with schizophrenia said he was locked in his cell for eight of the previous 11 days. Almost every detainee complains of near-constant lockdowns and limited time out of their cells.

Brendan Kennedy is a Toronto-based social justice reporter on the Star’s investigations team. Follow him on Twitter: @BKennedyStar