Canada’s immigration detention system routinely discriminates against people with disabilities, including through widespread violations of their legal capacity rights that strip them of their ability to make crucial decisions about their own lives, Human Rights Watch said today in a report marking the International Day of Persons with Disabilities. The 40-page report, “‘It Felt Like Everything in Life Stopped’: Legal Capacity Rights Violations Against People with Disabilities in Canada’s Immigration Detention System,” documents how the country’s use of designated representatives undermines the rights of immigration detainees with disabilities to make their own decisions, often with life-altering or even life-endangering consequences. Designated representatives are appointed by the Immigration and Refugee Board when it deems that a detained person is “unable to appreciate the nature of the proceedings.”
“Canada’s immigration detention system not only strips people with disabilities of their freedom, but also of their right to make their own decisions,” said Samer Muscati, acting deputy disability rights director at Human Rights Watch. “This system perpetuates discrimination against people with disabilities, robs them of their autonomy, and can have devastating consequences on their lives.”
Each year, Canada detains thousands of people on immigration-related grounds, including people with disabilities who face discrimination throughout the process. Human Rights Watch interviewed lawyers, designated representatives, disability rights experts, and people formerly in immigration detention. The report found that the role of designated representatives – while invaluable when operating in a supportive function by helping detainees navigate tribunal hearings and legal processes – is deeply flawed in practice.
Human Rights Watch found that designated representatives are legally empowered to make decisions for detainees without proper communication, consent, or understanding of their unique accommodation requirements. This substitute decision-making practice undermines the rights and dignity of detainees with mental health conditions and other disabilities.
Prosper Niyonzima spent nearly five years in immigration detention, including two years in solitary confinement, after a mental health crisis left him unable to communicate. Despite his condition, his detention review hearings continued with a designated representative making decisions on his behalf. “Detention destroyed everything,” he said. “I never thought this would happen in Canada.” After languishing in jail for years, he was released from detention and was provided with access to meaningful support and care in the community, and he regained his ability to speak.
As noted by an independent auditor, the designated representative’s presence in Prosper’s case seemed to provide the tribunal with the assurance that due process was being followed, even though he was in a catatonic state, unable to participate or communicate. His case highlights the dangers of Canada’s current system, which often disempowers the very individuals it claims to support, leaving people stuck in detention for months or even years without meaningful representation or support.
Human Rights Watch found several key areas in which the designated representative system fails people in immigration detention with mental health conditions:
Substitute decision-making: Rather than being limited to providing decision-making support with proper accommodations, designated representatives are legally empowered to make decisions for immigration detainees, in violation of legal capacity rights.
Improper assessment: The process for appointing designated representatives is informal, often subjective, and is conducted without a proper assessment to determine what support or accommodation the person requires to exercise their legal capacity.
Unclear and contested roles: The responsibilities of designated representatives are broad, undefined, and inconsistently applied. Some representatives are deeply involved in cases, while others barely engage with the people they are tasked with supporting.
Lack of choice or oversight: People in immigration detention cannot choose their designated representatives, and there is little oversight or accountability to ensure that representatives act in line with the detainees’ will and preference. In some cases, designated representatives align themselves with detention authorities, further eroding trust in the system and creating conflicts of interests.
Inadequate training and resources: Designated representatives often lack the necessary training and resources to work effectively with people with mental health conditions or other disabilities, leading to inadequate representation and harmful decisions.
The Canadian government should work toward abolishing immigration detention, starting with the immediate end to the use of correctional facilities for immigration-related detention, Human Rights Watch said. Meanwhile, the authorities should also shift from substitute decision-making to a model of supported decision-making among designated representatives, which empowers people in immigration detention to make informed choices about their lives.
Source: HRW