Canadá

The Government of Canada has ratified four of the six Conventions and Protocols that assist in the protection of children in the context of migration. The consultation process regarding ratification of the Optional Protocol against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) has been underway for over two years.

Although section 60 of the Immigration and Refugee Protection Act (IRPA) provides that «a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria, including the best interests of the child,» there is no legislative prohibition against the detention of children in Canada. There is also no differentiation in law among infants, young children, and youth, with respect to immigration detention. Canada has fallen behind normative international standards, which specify that the detention of children is always a violation of their rights. Furthermore, while the Federal Court remains a bona fide option for recourse to immigration proceedings, Canadian case law in the immigration context has failed to reinforce the principle of the best interests of the child as the robust protection that international law defines it to be (see Baker v MCI, [1999] 2 SCR 817; Legault v MCI, [2011] 3 FC 277; MCI v Hawthorne, [2003] 2 FC 555; Owusu v MCI, [2004] 2 FC 635; Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61).

In light of recent policy developments and following public consultations, regulatory amendments are currently underway to ensure that the best interests of the child are accounted for in immigration detention decisions. These regulatory amendments are expected to proceed by early 2019.

The Ministerial Direction to the Canada Border Services Agency: Minors in Canada’s Immigration Detention System in conjunction with the CBSA’s National Directive for the Detention or Housing of Minors provide for a systematic operational approach to children in the context of immigration detention. Canada has also updated its Enforcement Manual on Detention (ENF 20) and introduced a new Enforcement Manual on Alternatives to Detention (ENF34). However, the safeguards introduced through these policies are yet to be reinforced by accompanying regulatory and legislative changes.

The Canadian government is commended for undertaking Best Interest of the Child (BIOC) Assessments in detention-related decisions that impact children, as per A60 of the Immigration and Refugee Protection Act and R249 of the Immigration and Refugee Protection Regulations. Acknowledging that children should never be detained, and that immigration detention is always a violation of children’s best interests under international law, CBSA is commended for conducting ongoing BIOC assessments in instances when a child is detained or housed, in conjunction with the parent and Child Services to find alternatives to detention as soon as possible. Furthermore, CBSA is acknowledged for creating space in detention facilities that allow for families to remain united and for children to access important services, in keeping with the best interests of the child.

Key areas for improvement under the National Directive for the Detention or Housing of Minors:

• The concept of the best interests of the child (BIOC) is set out in policy as “a primary consideration [that] may only be outweighed by other significant considerations, such as public safety (i.e. R245 Flight Risk (a) (f) and R246 Danger to the Public), or national security” (section 6). This is concerning as the UN Convention on the Rights of the Child and guidance documents from UNICEF & UNHCR on Best Interest Determinations are clear that security concerns cannot supersede the rights of the child. It is particularly alarming that flight risk is equated with public safety in this context.
• CBSA officers conduct BIOC assessments, including consideration of personal information, case synopsis, measures taken to mitigate detention and all alternatives to detention considered. While these are important procedures to ensure that the best interests of the child are respected, it remains unclear what training (if any) CBSA officers receive specifically with respect to the BIOC, and whether CBSA are optimally positioned to conduct these assessments.

The Canada Border Services Agency’s (CBSA) National Directive for the Detention or Housing of Minors outlines placement options outside of detention that are in line with normative standards. The fourth quarter of fiscal year 2017/2018 saw 12 children housed or detained – a significant drop from the previous quarter, where 38 children were housed or detained – and a positive reflection on the implementation of this recent policy. In July 2018, CBSA also released a policy that expands on existing alternatives to detention, with more details on specific placements and accommodations in the community designed to avoid and release individuals from detention.

The latest alternatives to detention policy provides for general conditions, issuance of a deposit or guarantee, in-person reporting, community case management and supervision, voice reporting, and a pilot project involving electronic monitoring. In light of the significant limitations on residual liberty involved in some of these programs, it is crucial that they are implemented as alternatives to detention, rather than alternatives to unconditional release from detention. Analysis would be further strengthened by publicly available statistics with respect to the use of alternatives to detention. For example, when bonds and guarantees are imposed, they tend to be exceedingly expensive, and in some cases even prohibitive.

Many of the programs that support rights – including access to housing, social assistance, education, healthcare, and employment – are under provincial jurisdiction. As such, significant variations exist across provinces. All children on Canadian soil, whether they are asylum seekers, refugees or migrants, should be able to have access to the same rights as Canadian citizen children. More needs to be undertaken in Canada to achieve this aim. In particular, there is currently no firewall legislation to ensure the police are not involved in migration control.

A recent external audit, commissioned by the Chair of the Immigration and Refugee Board, indicates that a significant and substantive reform of detention review system is necessary. The Immigration Division of the Immigration and Refugee Board, a quasi-judicial tribunal undertakes detention review hearings. Although these reviews are scheduled regularly, the process does not provide adequate legal safeguards against arbitrary detention. Tribunal adjudicators are not bound by legal or technical rules of evidence, and the burden of proof is set up so that immigration detainees are effectively required to prove that detention is no longer warranted. This is particularly difficult given that many immigration detainees do not have legal representation at their detention review hearings. The external audit found “notable discrepancies between the expectations articulated by the courts and the practices of the [Immigration Division].”

Judicial oversight for Immigration Division decisions regarding immigration detention is available in law. However, it is resource intensive and remains inaccessible to the majority of immigration detainees. Even where judicial reviews are successful, the case is generally only sent back to the systemically flawed Immigration Division.
Finally, the National Directive for the Detention or Housing of Minors provides internal reporting mechanisms that provide oversight for child detention. Furthermore, CBSA has partnered with the Canadian Red Cross Society to provide detention monitoring. However, the CBSA is the only police force in Canada that has no civilian oversight.

In fiscal year 2017-2018, a total of 151 children were in an immigration detention facility, including children who were foreign nationals, permanent residents and Canadian citizens. During this period, the average length of time that children were detained or housed in a detention facility was 15 days, and the median length was 5 days.

Unaccompanied minors spent an average of 3 days in a detention facility. While the vast majority of children were in Immigration Holding Centres, which are dedicated immigration detention facilities resembling medium-security jails, 6 children were housed in the Burnaby Youth Custody Services Centre with their detained parents. Since the launch of the National Directive for the Detention or Housing of Minors in November 2017, the number of children housed or detained has decreased by 68%: in the fourth quarter of 2017-2018, 12 children were housed or detained, compared to 38 in the previous quarter.

Despite the newly introduced policy that aims to reduce child detention, the Immigration and Refugee Protection Act (IRPA) still allows child detention to take place. Canada is to be commended for defining in policy the best interests of the child as “a primary consideration,” although it may be outweighed by “significant considerations” (such as flight risk) that are not supported by international law. Canada is also to be commended for including in policy a time limit for the detention of unaccompanied children, although children should not be detained at all.

Finally, Canada is also commended for partnering with community-based organizations and child protection services across Canada in order to place children in the community rather than in detention and avoid family separation, and for including civil society in policy consultation processes. The new policy allows community-based partners to provide case management and support.

The Government of Canada is to be commended for improving its commitment to transparency and accountability by improving its statistics reporting during 2017-2018. Although children should not be detained, in instances where a minor is housed or detained, the CBSA ensures that they remain united with their parents, and have access to programs and services within the facilities.