CIMM Committee Report

RESPONSE OF THE GOVERNMENT OF CANADA TO THE TWELFTH REPORT OF THE HOUSE OF COMMONS STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

Detention centres and security certificates

Recommendation 1

That the Government of Canada comply with the Supreme Court of Canada ruling in Charkaoui v. Canada (Citizenship and Immigration), and amend the IRPA to provide for the appointment of a special advocate in proceedings in Federal Court to determine the reasonableness of a security certificate.

Recommendation 2

That the special advocate should be a lawyer with appropriate security clearance, who is appointed to represent the interests of the individual subject to the certificate and to test the confidential or secret evidence presented by the government.

Recommendation 3

That the special advocate process that is put into place should, subject to national security considerations and with minimal impairment to the rights of detainees, afford detainees an opportunity to meet the case against them by being informed of that case and being allowed to question or counter it.

In its February 23, 2007 decision, the Supreme Court ruled in Charkaoui that certain aspects of the security certificate process were unconstitutional. As the Committee notes, the security certificate process was also recently the subject of review by both the House Subcommittee and the Senate Special Committee reviewing the Anti-terrorism Act.

The Government accepts the Supreme Court’s decision. The Government is currently reviewing how best to respond to the decision and meet the principles established by the Supreme Court, with a view to tabling legislation before Parliament as soon as possible. The Government will be guided by the need to ensure procedural fairness and to safeguard rights and freedoms under the Charter of Rights and Freedoms, consistent with the decision from the Supreme Court. The Government will also take into account the Standing Committee’s recommendations, and those from the Parliamentary review of the Anti-terrorism Act.

Recommendation 4

That the government institute a policy stating that charges under the Criminal Code are the preferred method of dealing with permanent residents or foreign nationals who are suspected of participating in, contributing to or facilitating terrorist activities.

Immigration and criminal justice proceedings should not be seen as alternatives to one another. Each exists for a specific purpose and follows a procedure which has evolved over time as appropriate for that purpose. This includes the ways in which decisions are made to initiate proceedings, the executive and judicial processes that are followed, and the Charter rights and procedural safeguards which apply to ensure fairness and justice. Decisions about whether to prosecute criminally or seek removal from Canada should be made on a case-by-case basis. Thus, the preferred method for dealing with permanent residents or foreign nationals who are suspected of participating in, contributing to or facilitating terrorist activities should be an individual decision informed by an independent evaluation of the facts, circumstances and context.

The basis of proceedings under the IRPA is whether or not the subject is inadmissible to Canada and therefore subject to removal. The only basis on which criminal prosecutions are conducted is that, following investigation, a review of the evidence shows that there is a reasonable prospect that the accused will be convicted and that prosecution is in the public interest. The independence of prosecutorial decision-making is one of the strengths of our justice system and was underscored by the establishment of the Public Prosecution Service of Canada in the Federal Accountability Act.

The Government is committed to ensuring that human rights are properly protected and that the procedural elements of Canada’s criminal justice and immigration systems incorporate appropriate safeguards. Each system serves a distinct fundamental purpose, however, and the processes they apply to achieve their purposes are not the same. The applicable rights and safeguards also differ from one process to another. The Government believes that the two should not be confused or seen as interchangeable, and that it would not be appropriate to select one type of proceeding over the other in order to ensure that particular Charter provisions or other safeguards will or will not apply. Certain rights, such as the right to be presumed innocent or to trial by jury, for example, are appropriate only in criminal proceedings while others, such as fair hearing, have a more general application. Any question of which rights or safeguards should apply should be based on the nature of the proceedings at hand, and the Government believes that the nature of the proceedings must ultimately be governed by the facts and context in each case.

Detention under the IRPA is also imposed on a different basis than incarceration in Canada's correctional system. Criminal sentences of imprisonment are punishments which are determined based on facts established at the time of conviction, and sentencing principles which include proportionality between the length of imprisonment and the seriousness of the crime. Detention pending removal, on the other hand, is based on the periodic assessment of risk to public safety or national security. In its decision in Charkaoui, the Supreme Court recently re-affirmed this principle, holding that extended periods of detention do not infringe the Charter, provided that the process provides opportunities for regular review. Should a person who is the subject of a security certificate be convicted of a crime and incarcerated, the Government may still have to seek detention and removal upon release from prison.

Recommendation 5

That the government introduce legislation to amend IRPA to provide that permanent residents and foreign nationals shall not be removed to their countries of nationality or habitual residence if there are reasonable grounds to believe that they would be at risk of torture, experience risk to life, or face the risk of cruel and unusual treatment or punishment in these countries.

The Government is committed to protecting the safety and security of Canadian society and to ensuring that fundamental rights and freedoms under the Charter are protected.

Under our immigration law, those who have been found to be inadmissible to Canada may apply for an assessment to determine whether and to what degree they would be subject to a risk of torture or serious ill-treatment on return to their country of origin. In determining whether to remove an inadmissible individual from Canada, the decision making process rigorously assesses and balances the risk the person would face on return to their country of origin against the threat the person poses to Canadian society. The person concerned is able to present any information that he or she considers relevant.

Canada has not removed an individual when a Court or other Canadian decision maker has found there to be substantial grounds for believing that that individual would be in danger of being subjected to torture. However, the Supreme Court has ruled in its decision in the Suresh case in 2002 that removal in exceptional circumstances may not contravene the Charter, even if there are substantial grounds for believing that a risk of torture would result. What those circumstances might be has not been determined, although the Court noted that the balancing process should generally favour the individual’s right to be free from torture.

Recommendation 6

That the government introduce legislation to provide for a maximum length of detention for those whose security certificates have been upheld by the Federal Courts as reasonable, after which time they must either be charged and prosecuted under the Criminal Code or released from detention without conditions.

As discussed in the response to recommendation 4, detention and release on conditions set by the Court are not criminal punishments and are not fixed in scope or duration. If a judge is satisfied that a person is a danger to national security or to the safety of any person, that person may be detained. If appropriate, the judge may release the individual on conditions.

The Supreme Court upheld the constitutionality of extended detention provided there is a robust system of review by a judge with attention to the factors set out by the Court in its decision, which include the length of detention. The applicable Charter safeguards and requirements for robust and regular reviews of detention have now been clarified by the decision of the Supreme Court in Charkaoui, and these requirements will be met. The criteria set out by the Supreme Court will be applied to the facts and circumstances in each individual case.

Recommendation 7

That the government introduce legislation to allow for an appeal to the Federal Court of Appeal, and, with leave, to the Supreme Court of Canada, of a decision of the Federal Court on the reasonableness of the security certificate.

The Government will propose amendments to the security certificate process when Government addresses the decision of the Supreme Court by introducing legislation to amend the IRPA.

Recommendation 8

That the government ensure that police and intelligence services have appropriate resources to investigate allegations of criminal activities related to security, terrorism, espionage and organized crime and to pursue appropriate charges under the Criminal Code.

The Government agrees with the Committee, and remains unwavering in its determination to safeguard national security. This is demonstrated by the investments this Government has made in law enforcement, intelligence and correctional services.

In Budget 2007 the Government committed to spending $80 million over two years to help the Canadian Security Intelligence Service protect our national security and operate more effectively in the post 9-11 environment. The budget also committed $102 million over two years to the CSC to meet its key requirements, including infrastructure, offender programs and staff training. Budget 2006 saw a number of investments in priority areas, including $161 million for 1,000 more RCMP officers and federal prosecutors, $101 million to begin arming border officers and eliminating "work-alone" posts, and a further $303 million to implement a border strategy to promote the movement of low-risk trade and travelers within North America while protecting Canadians from security threats.

Recommendation 9

That the Government of Canada mandate the Office of the Correctional Investigator, which has jurisdiction over all federal inmates but not the detainees held at the Kingston Immigration Holding Centre, to assume jurisdiction over the KIHC, and investigate current and ongoing complaints of those detained at the KIHC.

The Government of Canada recognizes the importance of review mechanisms in helping to ensure individuals subjected to detention are treated in a fair and humane manner that respects the rule of law.

It is the primary function of the Correctional Investigator (CI) to investigate and bring resolution to individual offender complaints as well as to review and make recommendations on the CSC policies and procedures associated with the areas of individual complaints to ensure that systemic areas of concern are identified and appropriately addressed.

While CSC does deliver some services for the KIHC under a Memorandum of Understanding, the detention authority for this facility and the individuals detained there rests with the CBSA. The CI has a mandate to provide an oversight function in relation to CSC, not CBSA.

Avenues are in place to allow persons detained under the authority of the CBSA, including those at the KIHC, to seek resolution to any complaints about their conditions of detention. A formal grievance procedure has been established by CBSA, and individuals are able to seek redress through the Federal Court.

An additional level of outside oversight is in place at the KIHC through the Canadian Red Cross, which is involved in monitoring living conditions through an arrangement with CBSA, and with whom persons held at the KIHC may raise concerns.

The mandate and authorities for the Office of the CI are set out in Part III of the Corrections and Conditional Release Act (CCRA). The Government has no plans to pursue such legislative amendments to the CCRA at this time.

Recommendation 10

That the Canada Border Services Agency develop its own independent procedures and rules for detention, appropriate to immigration detention and differentiated from incarceration as the result of criminal conviction.

The CBSA has national detention standards for the operation of its immigration holding centres, which are in compliance with international standards and cover a number of areas, including the provisions of health care, food services, personal hygiene and access to counsel, telephone and written communication. Those detained by the CBSA, including those at the KIHC, are provided with detailed information on their rights and their detention conditions.

The KIHC’s policies and operating procedures conform with applicable international standards, the Charter and the CBSA’s national detention standards.

Recommendation 11

That the procedures and rules established by the Canada Border Services Agency recognize the need for a different culture for immigration detention facilities than exists at correctional institutions, and that staff receive training that clearly appreciates this difference, particularly for those staff who may come from a background in corrections.

Procedures and rules at the CBSA immigration holding centres are established to ensure the safety and security of those who are being detained, the public and employees. They allow the CBSA to meet international standards with respect to detention and the CBSA’s national detention standards.

Persons held under security certificates who pose a risk to national security are detained in the CBSA’s immigration holding centre in Kingston. The KIHC is not a correctional facility. The CBSA, as the detaining authority, has hired CSC to act as the service provider for the KIHC. The CBSA has a manager on site who works closely with the CSC to ensure the effective delivery of the CBSA’s detention program.

Service providers, including medical personnel, at all CBSA immigration holding centres, receive 2 weeks of training on immigration issues, the security certificate process, detention of refugee claimants, religious and cultural sensitivities, professional boundaries and the standard operating procedures for particular centres.

Recommendation 12

That procedures and training be in place to deal with issues of racial and religious profiling, or profiling based on other stereotypes.

The Government of Canada, including its law enforcement, security intelligence and border agencies, does not use or condone racial or religious profiling or any other profiling based on stereotypes.

The Canadian Charter of Rights and Freedoms, and the Canadian Human Rights Act expressly prohibit discrimination based on race, colour, religion, national or ethnic origin in all government activity, laws and the provision of services. Federal Government departments and agencies which have responsibility for Canada’s security are committed to ensuring the fair treatment of all persons.

As noted above in the response to recommendation 10, the CBSA has developed national detention standards for the operation of its immigration holding centres in conformity with international standards. These standards include the United Nations High Commission for Refugees’ Guidelines on Detention of Asylum Seekers, the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the United Nations Standard Minimum Rules for the Treatment of Prisoners.

These standards also contain a provision to ensure that security staff receives training on cultural awareness, harassment and relevant information on the IRPA.

Security service for the CBSA immigration detention centres is contracted to a service provider. Although the security guards are not CBSA employees, they are expected to follow national detention standards and the CBSA’s standard operating procedures for the facilities. To further ensure that those involved in providing security services for the CBSA’s detained persons do so in a respectful manner, arrangements have been made with the Canadian Red Cross, an independent organization, to monitor the detention conditions of those held under immigration legislation.

Recommendation 13

That solitary confinement is never appropriate for immigration detainees and other arrangements be made should there be only one person detained at KIHC.

The fact that one person would remain in detention at the KIHC does not constitute the accepted definition of solitary confinement as defined by international instruments. Whether there are one or six persons in detention at the KIHC, the entitlements for individuals are the same. They will continue to have telephone and video conferencing access, including one free hour of long distance per day, canteen privileges and generous visiting and recreation hours.

Moving an individual to another CBSA immigration holding centre would be inappropriate, because the centres do not meet the security requirements to detain such cases and there would be commingling of individuals subject to security certificates with individuals held for other reasons.

Recommendation 14

That the KIHC change its procedures to allow the families and friends of the detainees to purchase culturally appropriate canteen goods at competitive prices.

Since March 2007, the CBSA has made arrangements for the supply of canteen goods, which includes pre-cooked Halal meat products. There are no restrictions on which suppliers chosen. There is also no price mark-up on the items supplied and sold.

Recommendation 15

That providing security protocols are followed, the detainees be allowed easy and affordable access to a telephone, and that they be allowed to telephone their families in Canada or internationally for at least one hour per day. Given the financial hardship experienced by some of the families of the detainees, the KIHC should cover the costs of such calls, or family members should be allowed to provide phone cards to cover long-distance costs.

Access to the telephone and videoconferencing is also available without limit for calls to legal counsel. The CBSA provides up to one hour free long distance calls, per day, in Canada to family and friends. For reasons of security, all numbers called must be pre-approved by the CBSA.

On November 29, 2006, a memorandum was issued to the persons held in the KIHC, providing them with “third-party billing” to allow calls to friends and family in countries that do not accept collect telephone calls. Effective March 16, 2007, individuals can dial their own domestic long distance phone numbers from their living area, using a PIN number to call collect to telephone numbers on their approved calling list. There are no time restrictions for these calls as the CBSA does not pay for the direct dialed calls.

Recommendation 16

That the detainees be allowed to use the large, unused exercise yard adjacent to the facility.

The large exercise yard adjacent to the KIHC is not available to individuals held at the KIHC, as it is not part of the facility.

There is an exterior exercise yard for the exclusive use of the KIHC, which is separate from Millhaven’s outdoor exercise area. It is approximately 31 metres (100 feet) long by 15 metres (50 feet) wide.

Recommendation 17

That the detainees be provided with proper cooking facilities, and be allowed the option to prepare their own meals.

For health and safety reasons and because fire regulations do not allow cooking on the premises, the CBSA will not provide a stove for the use of persons held in the KIHC. This is consistent with the policies in the CBSA’s other immigration holding centres.

The KIHC facility has been designed and constructed for limited food preparation (re-heat) only. In the common room, the individuals have access to a refrigerator, microwave oven, toaster, coffee maker, and kettle. There is also a canteen available.

The CBSA provides food that meets United Nations standards by respecting various dietary needs. The KIHC Imam inspected the kitchen that provides the food for the KIHC and determined that food storage and preparation met Halal standards.

The KIHC has accommodated the individual religious and dietary needs. Accommodations were made during the observance of Ramadan, such as ensuring that necessary food items were provided to break the fast before sunrise and in the evening. During the evening meals, double portions of Halal foods were provided and at least one of the meals provided could be reheated.

Recommendation 18

That the KIHC build the necessary facilities to allow for conjugal visits.

Conjugal visits are not accommodated in the CBSA immigration holding centres, including the KIHC. Any activity such as conjugal visits, education and work program that contributes to reintegration into Canadian society is inconsistent with the CBSA objective of removal. In addition, there is no international obligation to provide conjugal visits.

Recommendation 19

That reasonable accommodation be made to allow detainees out of their cells to participate in bona fide religious observances, and that the families of detainees be allowed to join them for such observances.

Except for maintenance and meal delivery times, persons held at the KIHC are allowed to move freely in the facility.

Families are allowed to visit daily during the period from 12:30 to 4:00 pm. During this time, individuals may participate in religious observances with family members should they wish to do so.

Recommendation 20

That medical visits be limited to instances where the detainees request such visits, or in medical emergencies.

The CBSA is responsible for the health of all individuals in holding centres, including those at the KIHC, and ensures that they have healthy living conditions and quality health care, including mental health care if required.

The CBSA provides funding for a nurse to be on site to respond to the needs of the persons held at the KIHC on a full-time basis. Under certain conditions, such as during a hunger strike, the CBSA provides daily medical care and weekly psychiatric care to ensure that the health of the individual is not compromised.

Recommendation 21

That until such a time as a correctional investigator is appointed and can investigate alleged mistreatment by guards, the detainees be escorted, on request, by a supervisor when traveling within the KIHC facility.

The CBSA takes the safety and security of persons held in its immigration holding centres seriously. In all CBSA immigration holding centres, including the KIHC, allegations of mistreatment are investigated by local law enforcement agencies. Allegations of mistreatment at the KIHC were investigated by the Ontario Provincial Police and Penitentiary Joint Forces and determined to be unfounded.

As noted in the response to recommendation 9, the Correctional Investigator has no legal authority to investigate the CBSA’s immigration holding centres, including the KIHC.

Persons held at the KIHC are encouraged to resolve issues informally through discussion. If a person is not satisfied with the informal resolution, he or she may submit a formal written complaint to the KIHC management through the redress process. All complaints are taken seriously.

The redress process begins at the lowest level and escalates to increasingly higher management levels with the last being at the Assistant Deputy Minister level.

Recommendation 22

That the detainees be provided with, at a minimum, access to educational and recreational programming equivalent to that provided for inmates under CSC policies.

The CBSA does not provide adult education programs at any of its immigration holding centres, including the KIHC. The CBSA has provided the persons held at the KIHC with access to self-study audio, computer CDs and self-improvement books for both English and French as a second language.

The persons held at the KIHC have been advised that they may make a written request for any additional books, audio CDs or computer CDs. To date, no request has been received. They also have access to periodicals and magazines, which they can purchase at their own expense.

The individuals held may take advantage of the material provided or request to have learning materials mailed to the facility at their own expense. The CBSA manager reviews requests and may refer the person to Citizenship and Immigration to determine if a student authorization for the person is required.

Recommendation 23

That the KIHC eliminate the formal daily head count.

The CBSA is concerned about the health and safety of all persons held in its immigration holding centres, including the KIHC. Head counts are required to ensure that all persons held are present, safe and in good health. Head counts are conducted in all CBSA immigration holding centres. However, formal stand-up counts have been suspended at the KIHC at the present time. The suspension could be lifted at a future time should circumstances warrant it.

Recommendation 24

That reasonable accommodation be made to provide more privacy to detainees.

Persons held at the KIHC may have face-to-face visits with visitors; however, to ensure safety and security, a detention officer is present. The officer is stationed at a distance to allow for private interaction. A private room is available for individuals to meet with their lawyers. With respect to accommodation, every person has his/her own cell with curtains covering a window to the outside and the cell door windows.

Individuals are not under observation by the KIHC staff when they are in their sleeping quarters, however for health, safety and security reasons, the individuals are generally under direct observation of the KIHC staff in other areas of the facilities. Detention officers review the area regularly, which requires them to view into the sleeping quarters to ensure that the individual is present and well.

Recommendation 25

That the KIHC provide detainees with access to interpreters to help them navigate the formal grievance process.

Interpreters for legal and other proceedings, such as the formal three-step redress process, will be provided on request.

It is important for the CBSA that the individuals held are able to communicate with staff at all its immigration holding centres, including the KIHC. To date, there has been no indication that persons held at the KIHC are unable to understand or communicate with staff. As a result, no interpreter has been provided for routine communication.

[1]

Charkaoui v. Canada (Citizenship and Immigration) 2007 SCC 9, 23 February 2007, Docket Nos. 30762, 30929, 31178,
http://scc.lexum.umontreal.ca/en/2007/2007scc9/2007scc9.html (English), http://scc.lexum.umontreal.ca/fr/2007/2007csc9/2007csc9.html (French).