When Ontario said ‘no.’ Inside the only known case where the province defied Ottawa’s request to house an immigration detainee in a max-security jail

Every 30 days, for nearly two years, Majok Thon Mawut was handcuffed and escorted from his cell to another part of the maximum-security jail, where he would learn whether his detention would continue for another month.

It had become a demoralizing routine. Every 30 days he went to a hearing and every 30 days he returned to his cell. As an immigration detainee, he had no idea when he would be released.

So it was a surprise when, at his September hearing, the official representing the Canadian government started his remarks by saying there had been a “significant development.”

Mawut was going to be transferred from the Ontario jail to the immigration holding centre, a less-restrictive facility specifically for immigration detainees.

For months his lawyer had argued for such a move, but the Canada Border Services Agency (CBSA) insisted it was impossible, saying Mawut — who had serious mental illness and an unspecified intellectual disability — was too high-risk for the lower-security facility because of his criminal history.

The CBSA had not had a change of heart. The official told the hearing the agency’s hand was “forced” by the Ontario government, which was “no longer willing” to hold Mawut for the feds.

It is believed to be the first time the province defied the CBSA by refusing to hold an immigration detainee in one of its jails.

Human rights groups have called on Ontario to join five other provinces that cancelled their agreements with the CBSA and ended the use of provincial jails for immigration detention, but the controversial practice continues to be routine here.

Last year, more than 450 immigration detainees were held in maximum-security Ontario jails, where they were treated the same as criminally convicted offenders. The province accounts for more than half of all detainees held in jails across the country.

Mawut’s case is exceptional, but it also highlights many of the issues raised by critics of Canada’s immigration detention system, from the lack of mental health treatment, to the CBSA’s unfettered discretion over the location of detention, to the federal agency’s lack of responsibility for the punishing conditions in provincial jails.

“If Mawut’s case has shown us anything,” one immigration tribunal adjudicator wrote in August, “it has been the limits in the relationship between the CBSA and the province.”

It also illustrates how using maximum-security jails for immigration detention is unnecessary, said Mawut’s lawyer, Subodh Bharati. “(Mawut’s) suffering was not required.”

It’s unclear whether Mawut’s case will lead to any broader changes between Ontario and the CBSA. A spokesperson for the province told the Star it was “reviewing” its agreement with the federal agency but provided no other details.

Ontario’s solicitor general, Michael Kerzner, declined to be interviewed, and neither Ontario nor the CBSA would answer any of the Star’s questions about Mawut’s case, citing privacy.

The CBSA official at Mawut’s hearing in September offered little explanation for Ontario’s decision, saying the “only rationale” he had received is that the province was spending “significant resources” to testify about the conditions of Mawut’s detention.

Mawut, who is in his mid-30s, came to Canada as a child from a refugee camp in Ethiopia, but the CBSA believes he is a citizen of South Sudan. He has a lengthy criminal record, including sexual assault and armed robbery. After completing a five-year prison sentence in 2020 he was stripped of his permanent residency and transferred to a maximum-security provincial jail in Lindsay, Ont., where he stayed while the CBSA unsuccessfully tried to deport him.

He was not serving a criminal sentence or facing any new charges for the nearly two years he was locked up in the Lindsay jail.

In a cruel twist, had Mawut in fact been jailed for a crime, he would have received better treatment for his “severe” mental illness stemming from childhood trauma and abuse.

As an immigration detainee, he was ineligible for mental health resources reserved for inmates serving criminal sentences, including access to a treatment facility within the correctional system. He was also ineligible for less-restrictive treatment options because he was in jail.

“Mr. Mawut is in the gaps between two systems,” an immigration tribunal adjudicator said at one of his monthly hearings.

Mawut never received a definitive psychiatric diagnosis, but he was prescribed antipsychotic drugs and exhibited self-destructive and erratic behaviour in jail, including repeatedly banging his head against his cell wall. He was placed on suicide watch several times.

At one point in his detention he spent 18 consecutive days in segregation, during which he was confined to his cell for more than 22 hours each day, according to court records. In 16 of those days he was not allowed out of his cell at all.

Ontario courts have ruled that solitary confinement for more than 15 days constitutes cruel and unusual treatment, a violation of the Charter of Rights and Freedoms.

As a result of Mawut’s prolonged stints in segregation, the lack of mental health treatment and the “exceptionally harsh” conditions in the jail overall, the Immigration and Refugee Board ruled in February 2022 that Mawut’s detention violated his Charter rights.

Since the CBSA — which has sole discretion over the location of detention — was unwilling to transfer him to a less-restrictive facility, the tribunal ordered Mawut’s release outright.

The CBSA appealed Mawut’s release to the Federal Court, which overturned the tribunal’s decision, saying it was unreasonable to release Mawut, despite the Charter breach, without imposing conditions to mitigate the public safety risk the tribunal itself found he posed.

Mawut spent another five months in jail, during which the tribunal repeatedly found that the Charter violations were ongoing and Mawut’s detention was “dehumanizing” and “degrading.”

“Canadian society demands better,” an adjudicator wrote in May. “[The CBSA] must find another means of detaining him.”

The CBSA was unmoved. Mawut remained in jail until September, when the agency announced that the province had forced its hand. They were given two weeks to do whatever they needed to the immigration holding centre to accommodate him.

Mawut, who declined to be interviewed for this story, said during that September hearing that he was “really excited” about the pending transfer. “I am in a happy mood.”

In a written decision following the hearing, the Immigration and Refugee Board adjudicator unloaded on the CBSA.

“Clearly Mr. Mawut’s movement and transfer to the (immigration holding centre) was available and has been possible all along,” said Daniel McKeown, chastising the federal agency for not doing it sooner.

“The CBSA chose the status quo over Mr. Mawut’s suffering, when it would have only taken two weeks to make the necessary changes … Mr. Mawut’s suffering is sufficiently serious that it was unconscionable for the CBSA to make this choice and it is unconscionable that the CBSA has now relied upon the Solicitor General as having forced its hand.”

Following his transfer to the immigration holding centre, Mawut’s mental health improved immediately.

Updates from CBSA officials note he was of “excellent behaviour,” “pleasant in all of his interactions” and that he had “fostered many positive relationships” with both staff and other detainees. He ate voraciously, kept his room “neat and tidy” and was generally described as a model detainee.

“Although not required he continues to make his bed daily,” a staff member noted.

Mawut also took advantage of the facility’s recreational programming and access to fresh air, participating in yoga classes and playing basketball and soccer.

“The client looks forward to yard time throughout the day,” reads another staff comment.

Two months after arriving at the immigration holding centre, Mawut was released to a community supervision program. He continues to report to the CBSA on a regular basis.

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