By Mara Selanders

Multiculturalism is embedded in Canadian identity. It became law in 1982 as part of the Canadian Charter of Rights and Freedoms and, six years later, the Canadian Multiculturalism Act was adopted to further advance, protect, and foster cultural and racial diversity in Canada. The legal recognition of this ideal positioned Canada as a place where anyone’s rights would be protected.

Canada’s commitment to multiculturalism has always been brutally ironic, given that the country’s existence is owing to the genocide and continued denial of the rights of Indigenous people. The first immigration laws in the 19^th and 20^th centuries explicitly discriminated against people on the basis of class, disability, and race. And over the ensuing 40 years that multiculturalism has been legally protected in Canada, the irony of Canada’s ideological obsession has only grown harsher. Rather than imposing any government responsibility or translating into actual human rights protection, Canada’s adoption of multiculturalism has failed the very people it is so proud to recognize. Canada wants to be known as a nation that embraces different cultures but continues to act in ways that deny or stifle their existence.

Now, British Columbia has an opportunity to counter the hypocrisy. For the first time, the Minister of Public Safety and Solicitor General is reviewing its agreement with Canada Border Services Agency (CBSA) that allows immigrants and refugees to be detained in provincial jails. Ending the agreement would be a critical step towards reforming the racist, nationalist, and carceral foundations upon which Canada’s immigration regime is built.

In a historic move, Vancouver City Council will vote on June 7th whether to join the calls for justice from BC. This is a chance for Vancouver City Council to act on the spirit of its Access to City Services Without Fear policy and help create a Canada that lives up to its ideals.

Welcome to Canada?

Canada’s multicultural policy would have many believe that in terms of basic rights and freedoms, little separates a Canadian citizen from the hundreds of thousands of people who immigrate to or claim refugee protection in Canada each year. Canada is on track to have an immigrant population of 30% by 2036—wouldn’t it make sense that 30% of the population would enjoy the same protections afforded to everyone else? In reality, the Immigration and Refugee Protection Act creates a legal system for immigrants and refugees that threatens, rather than protects, their legal status in Canada. It is enforced by CBSA, and these laws effectively transform the CBSA into a police force rather than a government department—a police force that lacks even the minimal accountability mechanisms accompanying municipal police and the RCMP. While there is a UN protocol that would allow for independent monitoring of the CBSA, Canada has not ratified it.

The CBSA enjoys untrammeled powers of search and seizure, the ability to arrest and detain without a warrant, and the authority to remove or prevent people from entering Canada. These powers are triggered when an officer questions someone’s identity, decides to conduct an examination, or has reason to believe that someone is inadmissible. Inadmissibility is a legal concept that refers to the many reasons why a person may be removed from Canada, even after decades of living here.

The question of inadmissibility is administrative. Being inadmissible is not a crime in our Criminal Code. The CBSA may decide someone is inadmissible if they are convicted of a crime, but someone may also be found inadmissible because of their potential to cause “excessive demand” on Canadian health services, or for failing to disclose information they did not realize was important to CBSA, or for simply accompanying a family member who is deemed inadmissible. Just because someone is found inadmissible does not mean they are harmful or dangerous—it is simply a category, albeit a complex one, that refers to a diverse group of people and situations.

The decision to detain is discretionary. If a CBSA officer believes someone is inadmissible and either a danger to the public or a “flight risk”, they may detain them. If they believe someone is lying about their identity, they may detain them. If, at the border, a CBSA officer suspects someone is inadmissible, questions their identity, or wants to conduct a further examination of their immigration status, they may detain them. The vast majority of people—83%—are detained because a CBSA officer decided they were a flight risk. While the officer has to consider the person’s history of compliance with immigration or criminal processes in Canada, and the strength of their ties in Canada, this assessment disadvantages the many people who have no prior history with law enforcement and cannot demonstrate previous compliance.

Only a fraction of those detained are held for being a danger to the public (1%), and this number includes those who have already served a criminal sentence and have been deemed safe to return to their community.

Two Tiers, Double Punishment

Canadian immigration law creates a tiered system of double punishment and incarceration. Migrants face not only the threat of losing their status in Canada, but also the deprivation of liberty and inhumane treatment that defines our prison system.

Immigration detention mirrors criminal detention, while lacking even the minimal safeguards afforded to Canadian citizens accused of committing a crime. Immigration detainees are subject to handcuffs, shackles, and solitary confinement. They do not have access to legal aid, nor access to a judicial proceeding such as a bail hearing or trial. The lawfulness of their arrest, detention, search, and seizure, or whether they were given a right to counsel will never be challenged. Their liberty is left to the discretion of a CBSA officer and may be restricted indefinitely. In Canada, there is no legal limit on the length of time someone may be held in immigration detention.

Since 2016, more than 300 people have been held in immigration detention for over a year. The longest instance of immigration detention involved a Black man with an apparent mental health condition who was held in a maximum-security provincial jail for 11 years, as his identity could not be established. Much like our criminal justice system, race often dictates the decision to detain and for how long. In 2019, the majority of people held in immigration detention for longer than 90, 180, or 270 days were Black.

CBSA officers also discriminate against those with psychosocial disabilities, regularly characterizing their behaviour as evidence of their lack of cooperation and using it to justify continued and increasingly restrictive detention. Detainees with psychosocial disabilities are subjected to disproportionately coercive treatment, including being incarcerated in provincial jails and placed in solitary confinement.

Many people who are detained do not understand why. Why they are subject to strip-searches, solitary confinement, unsanitary living conditions, and why they are denied basic necessities such as healthcare, or even warm clothing. Why they have been separated from their families and subject to strict visitation and communication rules and are otherwise prevented from contacting their loved ones or legal counsel. With no explanation for their detention, no guarantee of release, and facing a complete loss of control in their lives, their sense of self unravels. Any promise Canada once held disappears.

Since 2000, at least 16 people have died while in immigration detention, some having taken their own lives. Most of these people were detained in provincial jails.

As long as immigration detention persists, the multicultural ideal to which Canada aspires remains dangerously misleading. It is a revolving door, not an open door—simply a veil for continued human rights abuses by the state. Canada has been called on time and again, including by the United Nations Human Rights Committee, to radically reform its immigration detention regime. As laid out in our submission from the BC Civil Liberties Association to the province’s review of its agreement with CBSA, the province would be complicit in a rights-infringing practice that prioritizes structural violence over safety should it continue its agreement with CBSA.

This complicity doesn’t end with the province. It’s time for Vancouver city council to send a clear message to the province of British Columbia to end its contract with CBSA allowing for the detention of migrants and refugees in provincial jails when this historic motion is heard.