Canada is celebrated for welcoming newcomers and refugees, and for its commitments to building a multicultural, diverse and tolerant society. But if you scratch the surface, this is the hard truth: every year, Canada’s immigration and refugee asylum system detains thousands of people who are seeking protection or a better life in this country — and people with disabilities often fare the worst.
Immigration detainees are often held under highly restrictive conditions, including in provincial jails, with many in solitary confinement. They are routinely handcuffed and shackled, and can be forcibly separated from their children.
People with disabilities face unique forms of discrimination in immigration detention: a process that authorities describe as a “safeguard” may actually block people with disabilities from making independent decisions about legal matters. The Immigration and Refugee Board has unchecked discretionary power to label immigration detainees with intellectual, developmental, cognitive and psychosocial disabilities “incompetent,” and appoint a “designated representative” to make decisions on their behalf. This is done without their consent, based on the notion that they are incapable of making such decisions on their own.
Rather than providing the support and accommodations needed to make independent decisions, designated representatives can make consequential and even life-altering decisions, such as hiring and instructing the person’s legal counsel.
All this while immigration detainees with disabilities are held in facilities without the individualized supports and care they require. Immigration authorities confirmed to Human Rights Watch that people with mental health conditions may be held in provincial jails specifically because of their disabilities, in order to “effectively manage their behaviour” or to facilitate “access to specialized care.” But since when did provincial jails become the delivery system for disability-related support?
The designated representative system risks infringing on the rights to due process and legal capacity — or the right to make one’s own decisions. The UN Convention on the Rights of Persons with Disabilities recognizes the right to legal capacity and requires states parties to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”
The designated representative policy is illustrative of the systemic discrimination and social prejudice that we call “ableism” in the immigration and asylum system.
A recent report from Human Rights Watch and Amnesty International makes key recommendations to address the designated representative system, and the wider discrimination against people with disabilities in immigration detention.
Canada should stop holding people with disabilities in immigration detention.
It should withdraw the “interpretive declaration” it lodged with the United Nations when it ratified the international treaty in 2010. This declaration states that Canada reserves the right to continue using substitute decision-making, despite the treaty’s requirement to replace such approaches with systems of support for decision-making. The UN special rapporteur on the rights of persons with disabilities, along with others, has said that Canada should withdraw this declaration and “eliminate all forms of substitute decision-making.” It’s time to do so.
Canada should redesign the role of designated representatives by requiring them to provide support for decision-making. This could mean providing information in a simple and easily understandable way, in order to enable immigration detainees to follow the process and directly participate. Ensuring that detainees can select or approve their designated representative and appeal any appointments or decisions is essential.
Canada also needs an ombudsperson to provide independent oversight of designated representatives, and ensure that the will of detainees is respected and that their due process and human rights are protected.
Finally, in situations where authorities are unable to accommodate immigration detainees’ right to legal capacity and due process, urgently release them from detention to community-based support alternatives.
The Trudeau government should shine a cold, hard light on how structural ableism, compounded by legacies of colonialism and systemic racism, are at the root of the immigration and asylum system. Canadian society and government should scrutinize the very foundation of immigration detention, and why they tolerate detaining those seeking protection from persecution and a better life.
Michael Bach is managing director at the Institute for Research and Development on Inclusion and Society.
Carlos Ríos-Espinosa is a senior disability rights researcher and advocate at Human Rights Watch.