CAGED BY CANADA
While Canada is celebrated globally as a safe haven for refugees, hundreds of unwanted immigrants languish indefinitely in jails across the country
Ebrahim Toure wakes, as he does every morning, to the loud rattling of his cell’s heavy metal door, which opens automatically at 7 a.m. An overhead fluorescent light flickers on to illuminate his six-by-12-foot room, undecorated except for a message scrawled in pencil on one of the walls by a previous inmate: “Don’t give up,” it reads. “One day your time will come.”
Ordered out by the guards, Toure, a middle-aged black man with a buzz cut and goatee, wishes good morning to the inmates with whom he is familiar and avoids eye contact with the others. He waits in single file for his breakfast tray, eats quietly and tries not to think about how much longer he might be stuck in jail.
Toure, who is originally from West Africa, has not been charged or convicted of a crime, nor is he considered a danger to the public. But last month the 45-year-old marked his fourth year behind bars in a maximum-security jail because the government cannot deport him.
A failed refugee claimant, Toure is one of the hundreds of unwanted immigrants Canada has locked up indefinitely across the country, many in maximum-security jails rather than special immigration detention centres. He wears an orange jumpsuit, is regularly strip-searched and is subject to the same restrictive rules as prisoners convicted of criminal offences.
“I thought you had to do something to be in a prison,” Toure told the Star in an interview at Central East Correctional Centre in Lindsay, Ont. “I have no charge, no nothing. This shouldn’t happen.”
A Star investigation into immigration detention in Canada found a system that indefinitely warehouses non-citizens away from public scrutiny in conditions intended for a criminal population. The Canada Border Services Agency and the Immigration and Refugee Board, meanwhile, are routinely unable to solve long-term detentions, the Star found.
More than 100 of those currently detained for immigration purposes in Canada have spent at least three months behind bars and one-third of those have been detained for more than a year.
The system is also expensive, costing taxpayers more than $58 million a year, or roughly $250 per detainee, per day.
“Lots of people in Canada, if they knew the extent of what’s going on, they would be upset,” says Macdonald Scott, an immigration consultant who has represented Toure and dozens of other detainees.
Toure is not trying to stay in Canada. He says he was born in The Gambia and raised in Guinea, and he would happily return to either country, but neither will take him back because he lacks the paperwork to prove his citizenship.
Meanwhile, Canada’s border police believe he is unlikely to appear for his removal if either country ever changes its mind. So he waits in jail, indefinitely.
“I’m not a criminal, but I’ve been in jail four years,” Toure says. “That’s supposed to happen in other countries, not Canada.”
Responding to widespread criticism from humanitarian organizations, including the United Nations Human Rights Committee in 2015, the Liberal government announced last summer its intention to create a “better” and “fairer” immigration detention system. But while Justin Trudeau’s government has detained fewer people than the Conservatives did under Stephen Harper, there has been no meaningful change in policy that would end a system criticized as inhumane, arbitrary and a violation of international law.
Canada detained 6,596 people for immigration purposes in the 2015-16 fiscal year, including more than 201 children. Detainees are kept either in one of three medium-security detention centres or in maximum-security provincial jails.
Some of the detainees are former permanent residents who commit- ted crimes, served their sentences and now await deportation; others, like Toure, are failed refugee claimants or those who have otherwise been deemed inadmissible to Canada and whom the government considers a flight risk or a danger to the public.
By the government’s own description, immigration detention is not supposed to be punitive; it is meant strictly as a means of facilitating deportation. For some detainees, that’s the case. The average length of detention last year was 23 days. But for many individuals, like Toure, who lack the right documentation or whose home country won’t take them back, detention becomes unpredictable and tortuous. The United Nations has called on Canada to set a “reasonable time limit” on immigration detention, as other countries have. The European Union, for instance, has a limit of 18 months, while several countries will release detainees if they can’t be deported within 90 days. Canada has no maximum length of detention.
“Every day is the same thing,” Toure says. “I don’t know what kind of time I’m doing.”
The border services agency, which refused to make any representative available for an interview, told the Star in writing that Toure is not cooperating with his removal, blaming him for the extended length of his detention because for nearly three years he claimed he was from Guinea and now says he is from The Gambia.
But Toure says he has always believed he is a rightful citizen of both countries and initially said he was from Guinea because that’s where he has the strongest ties and because he thought it would be his quickest route out of detention. He gave up on Guinea when it became clear the country would not accept him. He says it’s unreasonable to think he would hold back any information that might help him get out of jail.
“He has given them all the information he has,” says Scott, his immigra- tion consultant. “He just doesn’t have a lot of information.”
Toure says he was born at home in The Gambia, his father’s home country. He has no birth certificate to prove it. His father died when he was young and he moved with his mother to neighbouring Guinea, where she was born. That’s where he says he lived most of his life, subsisting on a small-scale farm, growing corn, peanuts and cassava.
North America was a beacon. He wanted a better life for himself. But he was unable to get a travel visa to Canada or the U.S. So he paid a cousin, a French citizen, € 6,000 to use his passport to travel to the U.S. in 2002.
“I wanted to take a chance, make some money, get out of the life I had.”
Toure eventually settled in Atlanta, where he worked at a clothing store and was paid cash under the table.
Toure had three run-ins with police, all non-violent, over a short span of time while in Atlanta. He was arrested in 2004 for selling pirated CDs and DVDs, pleaded guilty and received two years probation. He says he was innocent of the charge but did not have a lawyer and pleaded guilty when the judge told him he would not go to jail.
In October of the same year he was charged with “reckless conduct” for leaving his friend’s children alone in a house when he was supposed to be babysitting. He was released on a $1,000 bond.
He also came to the police’s attention in 2005 when he was stopped at a Houston airport with nearly $50,000 in cash. Toure says he was paid $1,000 to transport the cash to Arizona by a man who bought cars in the U.S. and sold them in West Africa. “I didn’t have a job,” he says. “I needed to pay rent.” He co-operated with police and was not charged with any offence.
Those offences were 12 years ago, and none of them led to jail time.
After the cash incident he returned to Guinea when his uncle, whom he considered to be like a father, was murdered. Convinced it was a botched robbery by a local gang, Toure said he started asking questions. Warned to keep quiet, he started fearing for his life and in 2011 — once again with the help of his cousin’s passport — he hatched a plan to apply for refugee status in Canada.
“I thought Canada was the best place in the world. That’s why I chose to come here.”
The first part of Toure’s plan worked. Travelling on his cousin’s passport — with the name Omar Toure — he flew to Montreal from Guinea and was allowed in as a visitor.
He immediately moved to Toronto and applied for refugee status under his actual name, admitting to im- migration officials that he had fraudulently used his cousin’s passport. With his refugee application underway, Toure applied for and received a legitimate work permit in his own name and got a job collecting and sorting garbage for $11 an hour at Cascades Recovery, a private recycling company.
Toure’s refugee proceedings are private, but eventually his claim was denied and he exhausted all of his subsequent appeals, so the government ordered his deportation, telling him by mail to appear for a removal appointment.
Toure, who had attended all his previous immigration appointments, says he never received the letter. He missed the appointment and the border services agency issued a Canada-wide arrest warrant.
He was arrested Feb. 23, 2013, while waiting for a takeout pizza order, when a Toronto police officer, who saw him smoking on the sidewalk, randomly asked for his name and birth date.
That was his last free day.
Along with the indefinite nature of immigration detention, the use of criminal jails to house migrants has been a major target of criticism from humanitarian organizations.
Looking at one day in January as a snapshot, the Star found that more than two-thirds of immigration detainees, including almost all of the long-term detainees, were in maximum-security provincial jails. Canada’s three medium-security facilities dedicated to immigration detention — one each in Toronto, Montreal and Vancouver, which can hold 195, 109 and 24 people, respectively — were not full.
While immigration detainees are technically in federal custody, the federal government has a contract with the provinces to house what it calls “high-risk” detainees — typically those with criminal records — as well as any detainee apprehended outside of Toronto, Montreal or Vancouver.
This is something the government itself has suggested is problematic. Last August, while announcing a $138-million expansion of the detention centres in Vancouver and Montreal, Public Safety Minister Ralph Goodale said the investment would reduce the use of provincial jails for immigration detention. Yet, the use of jails has continued much the same.
There is no legislation governing whether an immigration detainee is placed in a maximum-security jail rather than an immigration detention centre, and there are no means by which a detainee can appeal where they have been placed. In most cases, any past criminal convictions will land an immigration detainee in maximum security. But physical and mental health concerns, including suicidal ideation, can also lead to a detainee’s transfer to a maximum-security facility, where, the government says, they will receive better treatment. Critics say moving such vulnerable detainees to a demonstrably more restrictive and violent environment will only exacerbate their health concerns.
Last May, a group of130 health-care providers wrote an open letter calling on Ontario to cancel its agreement with the federal government to house immigration detainees in provincial jails. “Simply put, prisons are not health-care facilities,” the letter reads. “Ontario should not be accepting transfers to its prisons of persons detained by CBSA who require medical or mental-health intervention. The practice is profoundly inhumane and inconsistent with the values of Ontarians.”
The Canada Border Services Agency says it has since “enhanced” access to medical services, including psychiatric counselling, at the Immigration Holding Centre in Toronto.
Toure would seem to be a good candidate for the less restrictive Immigration Holding Centre. He is detained only as a flight risk, not as a danger to the public; he has no criminal record in Canada and has never been charged anywhere with a serious crime.
Pressed on this issue by the Star, Canada’s border police referred to Toure’s non-violent legal issues in Atlanta 12 years ago, saying he is a “higher-risk” detainee because of “criminality” in the U.S.
At Central East, where Toure spends his days and nights, conditions for prisoners are notoriously bad. Last year the Lindsay “superjail” received more inmate complaints than any other in the province, ranging from lack of medical care to the number of lockdowns. In 2015, the last year for which data is available, the jail was in a full or partial lockdown on 264 occasions for staff shortages alone. During a lockdown, all inmates are confined to their cells, sometimes for multiple days. “Every other day there are lockdowns,” Toure says.
Central East is also home to more immigration detainees than any other facility in Canada. Immigration detainees currently have a dedicated wing, but they are occasionally mixed with the general population and even when they are not mixed they are treated the same as any other prisoner.
Groups of immigration detainees have taken to hunger strikes in re-
cent years to protest their conditions.
Incarcerating immigration detainees alongside and in the same conditions as convicted criminals has been sharply criticized by the Canadian Red Cross, which monitors detentions across the country and provides a confidential annual report to the CBSA.
The most recent report, obtained by the Star through an access to information request, repeats concerns that housing immigration detainees — especially those with no criminal record — in jails and “commingling” them with a criminal population contravenes international standards, increases the detainees’ exposure to violence and could trigger or exacerbate mental illnesses.
“Overall, detention in a correctional facility is not an appropriate facility to house immigration detainees and continues to present protection concerns to the Red Cross,” reads the report.
Toure says he has developed mental illness since being incarcerated. The guards have caught him talking to himself and he has contemplated suicide.
“My life has changed,” he says. “Sometimes I think about killing myself, hanging myself.”
He never had such thoughts prior to his detention. He said a doctor at the jail prescribed medication he now takes daily. “It makes my mind calm down.”
At least 15 people have died in immigration detention since 2000, including three confirmed suicides. But the cause of seven of the 15 deaths is not publicly known, because CBSA refuses to release the identity or cause of death of any immigration detainee who dies in custody. Prior to 2014, CBSA would not even say if a death occurred in immigration detention. The names of immigration detainees who die in custody are publicized only when advocates or family members disclose them to the media, or the death is investigated by a coroner.
The name of the deceased has not been disclosed in four of the 15 deaths, including the most recent one, which occurred last May when a 24-year-old man in immigration detention died at an Edmonton jail.
Every 30 days for the last four years, Toure has had the opportunity to appear via video for a hearing in which his detention is reviewed in a small boardroom in Etobicoke. The Immigration and Refugee Board, an administrative tribunal, reviews all immigration detentions after the first 48 hours, seven days and then every 30 days thereafter. A board member — who is a government bureaucrat, not a judge — presides over the hearing, which is also attended by a representative of the Public Safety Ministry who acts as a kind of prosecutor of the case.
At first Toure looked forward to the hearings, thinking they might lead to his release. But he soon found them to be little more than a façade.
“They have already made up their mind,” he says.
The Star spoke with15 immigration lawyers who have appeared at detention reviews, all of whom described the hearings as fundamentally unfair, particularly for long-term detentions.
Several lawyers independently used the word “Kafkaesque” to describe the detention reviews.
Detainees are often unrepresented, the government’s evidence is not tested as it would be in criminal court, and the longer someone is in detention the less likely it is that they will be released because board members say they must have “clear and compelling” reasons to depart from a previous member’s decision.
“Every decision to detain essentially becomes another lock on the detainee’s cell door,” says Jared Will, an immigration lawyer who is challenging the constitutionality of Canada’s immigration detention regime in Federal Court. “It becomes harder and harder to establish that you should be released the more decisions you get that say that you should be detained. That’s not what the law says, but that’s what happens in practice.”
Using statistics obtained under the Access to Information Act, Syed Hussan, an activist and researcher with migrant advocacy group No One Is Illegal, wrote a report in 2014 that found after six months in detention, the likelihood of release shrinks to about 1 per cent.
Lawyers interviewed by the Star also described a higher threshold for release than there would be in a criminal bail court.
Many lawyers have stopped attending detention reviews altogether, choosing instead to challenge the legality of a long-term detention in Ontario’s Superior Court by way of a habeas corpus application, which only became available to immigration detainees in 2015.
The Star attended several of Toure’s detention reviews, including his 49th in January. Appearing via video link from Lindsay, Toure was restless throughout the hearing, looking at turns both bored and annoyed.
Like many immigration detainees, he was representing himself and as the predictable outcome became increasingly clear, he grew agitated, interrupting the presiding board member, Maya Nathwani, as she tried to read her decision.
“I’ve been sitting here four years!” Toure screamed at the camera broadcasting his presence into the hearing room. Standing up from his chair and stepping toward the camera, Toure’s body filled the entire video screen as he shouted angrily, ignoring Nathwani’s requests for quiet.
Unable to convince Toure to calm down, Nathwani simply muted the video screen so she could finish reading her decision into the record.
“You are the author of your own detention,” she told Toure, who continued to rage onscreen, in silence.
His next hearing is March 23.