MONTREAL―After arriving in Canada in 2007 and settling in Montreal, Uma, a Sri Lankan Tamil refugee, learned that some of his peers had been sent to jail. “We didn’t think we would be put in jail,” he told The Dominion. “We come because we don’t have freedom in our country; and then we don’t find freedom here.”

Three years later, when 492 Tamil refugees arrived in Vancouver aboard the MV Sun Sea in 2010, all the adults were placed in high-security provincial jails. Many of them had experienced severe trauma during the Sri Lanka Civil War and on board the Sun Sea.

It is often believed that only criminals go to jail. But most people are not aware that provincial jails also hold a very different segment of the population: newly arrived asylum claimants.

The Canadian Border Services Agency (CBSA) may detain asylum seekers upon their arrival for three reasons: if it believes they pose a danger to the public, if it believes that they will not appear at their immigration proceedings or if it hasn’t established their identity—often due to a lack of documentation.

Arriving in Canada with all the documents required to file a refugee claim is difficult for Sri Lankan Tamils, according to Uma. “Most people come illegally. They don’t have a visa or ID, but it’s hard to get it because the [Sri Lankan] government doesn’t like the Tamil. My friend is in Montreal now, but he was put in jail in Vancouver. He found it very hard to ask for help there.” He paused, adding with a chuckle, “But the government here is better than the government in Sri Lanka. They kill you there.”

Detained asylum seekers are sent to one of the two CBSA holding centres, in Laval and Toronto, or to the temporary detention centre in Vancouver. When these detention centres have attained maximum capacity, or when asylum seekers end up in a region other than Montreal, Vancouver or Toronto, they are placed in non-CBSA detention facilities—otherwise known as provincial prisons.

According to the 2010 CBSA Evaluation Report, one third of all prison detainees were asylum seekers that year.

“There are generally enough spaces in the CBSA Immigration Holding Centres for ‘lower-risk’ detainees [i.e. those lacking proper documents],” wrote CBSA representative Esme Bailey in an email to The Dominion. However, while those refugees considered “high risk” and deemed to present a danger to the public are especially prone to being placed in a prison, the CBSA report reveals that “32 per cent of the detainees considered ‘low risk’ were also held in non-CBSA detention facilities.”

“The CBSA takes very seriously its obligation to ensure the health and safety of the individuals in detention,” wrote Bailey. She noted the Canadian Red Cross monitors detention conditions in provincial detention facilities in “several provinces,” and that detention liaison officers visit provincial detention facilities in order to review the complaints of refugees “in some regions.”

However, the 2008 Auditor General's Report on the Detention and Removal of Individuals revealed that although the Canadian Red Cross has provided oral reports to CBSA officials on the conditions at its facilities, the Agency “has not monitored the extent to which the facilities meet its standards at a national level.”

In official detention centres the CBSA does apply international protocols, said Janet Cleveland, a psychologist and McGill researcher on refugee policy. “The international guidelines are minimum guidelines," she said.

Cleveland noted that asylum seekers detained in prison “do have access” to the services normally offered in detention centres, such as lawyers and medical services. However, the CBSA itself says respect for international guidelines is not systematic in provincial prisons. “There are a number of challenges related to the use of provincial correctional facilities, including the fact that the facilities can restrict advocacy groups' access to the facility to monitor the well-being of the detainees,” reads the 2010 report.

In an email to The Dominion, the CBSA representative clarified that “the CBSA works closely with its provincial correctional partners to ensure limited interaction, where possible, between immigration detainees and individuals detained for criminal reasons.” However, the 2008 Auditor General's report noted “detainees who are held in prisons are not always separated from other inmates, and must abide by the same rules and conditions, such as the wearing of a uniform.”

Cleveland asserted that the use of prisons is improper in the case of refugees, regardless of whether or not they are separated from other inmates. “The basic fact of detaining refugees in prisons is very questionable in itself, because inmates are detained for their crimes, anybody on the street will tell you that,” she said.

Holding undocumented asylum-seekers in prisons blurs the distinction between what’s illegal and what’s criminal, said Cleveland. “I guess it’s technically illegal to enter the country without papers, even though the [Geneva] Convention allows it. From there, it’s easy to say ‘illegal’ is like ‘criminal,’ and therefore these persons have done something that’s kind of criminal.” According to Cleveland, this kind of slippage is constantly used by Immigration Minister Jason Kenney in order to lure the public into a false equation.

This, in turn, appears to bolster support for harsh new legislation.

Bill C-31, Protecting Canada’s Immigration System Act, was implemented on December 15, 2012. Among other measures, it introduced a clause whereby the minister of public safety now has the power to designate groups of asylum seekers as “irregular arrivals.” The minister can apply this label to any group of two or more people who have obtained documents from smugglers. Groups may also be labelled as irregular if the minister feels that a regular procedure would be too time-consuming.

“Basically they’ve given themselves the power to designate foreign nationals, and therefore the power to detain people for six months at a time without review,” said Mitchell Goldberg, vice-president of the Canadian Association of Refugee Lawyers (CARL). “Mandatory detention is a serious human rights violation. Asylum seekers are sent to jail without even facing criminal charges.”

Because the law has not yet been used on a large scale, it is difficult to gauge whether the number of detainees sent to prison will significantly increase or not, according to Goldberg. However, he said that it is likely to increase in the case of “large-scale arrivals” (as occurred in 2010 with the arrival of the MV Sun Sea).

In attempting to speed up the processing of refugee claims, the new law has “greatly sacrificed fairness in the refugee determination process,” Goldberg told The Dominion. He noted that the percentage of asylum claimants in Canada has gone down 70 per cent since Bill C-31 was implemented last December.

“Even the government recognizes that placing people in holding centres and prisons is not cost-efficient,” said Cleveland. The cost of housing detainees in provincial jails ranges from $120 to $238 per person per day, according the Auditor General's report (on the other hand, the cost of detaining a refugee in a detention centre is $122 per day, according to a UN study). The report also noted that while the average time spent by detainees in CBSA detention centres was 80 days, the average time spent by those placed in prisons was 144 days.

“Under six per cent of asylum seekers are even suspected of criminality or dangerousness,” said Cleveland. “So the remaining 94 per cent are detained because the CBSA agent was not satisfied with their identity, or because they posed a flight risk.”

In Cleveland's opinion, asylum seekers should not be detained except in the rare cases when there are serious reasons to suspect dangerousness. As an immediate measure, the use of supervised residential facilities should be encouraged, especially for families with children, she adds. In European countries such as Belgium and Denmark, such facilities are operated by social workers or NGO workers who enforce curfews and have the obligation to report a missing person.

“This allows people to move ahead and do everything they need to do when they arrive, and yet be at the disposal of the state fairly easily,” said Cleveland. However, problems arise when community groups do not want to take on such obligations, she admitted.

Other alternatives are available, noted Cleveland, including releasing people with conditions. Conditions often include the use of bonds. But the CBSA report found that “the use of bonds as a condition of release has decreased over the past five fiscal years.”

According to refugee lawyer Goldberg, the current government’s attitude towards refugees is more predatory than protective. “I think this government has been doing a great deal to deter refugees from coming to Canada, and has gone to great lengths to be harsh towards vulnerable people.”

Karina Fortier is a recent graduate from McGill University in political science.