Sunday, August 15, 2010

Leave! Migrant detention and deportation in Toronto


Leave! will be completed following the inquests of Kevon O'Brien-Phillip and Jan Szamko.


ELIZABETH SMITH

All it takes is for one person to disbelieve your story – your account of the events that drove you onto Canadian soil – and you could find yourself detained, deported or both.

That’s what happened to Elizabeth Smith, 27, a failed refugee claimant and mother to an eight-year-old Canadian citizen. The decision maker in her 2007 refugee case, a member of the Immigration and Refugee Board, did not believe Canada needed to protect her. If her claim of domestic violence was credible, her country, Grenada, was capable of protecting her from her abuser. Elizabeth, a pseudonym, was beside herself. She says thoughts of suicide crossed her mind but she decided against it, asking, "Why would I commit suicide and leave my son behind?"

Decisions made by IRB members can sometimes literally make the difference between life and death. Murder and suicide have followed at least two negative refugee decisions in recent years: Grise, a pregnant 24-year-old Mexican woman deported in December 2008, was murdered and Habtom Kibraeb, a 40-year-old Eritrean man facing deportation, committed suicide.

Without a Refugee Appeal Division to appeal a case on its merits – promised in the Immigration and Refugee Protection Act of November 1, 2001 but never implemented – Elizabeth immediately sought to have the Federal Court review her case. She was denied, paving the way for deportation. In a last-ditch effort to stay in Canada, Elizabeth applied for permanent residency on humanitarian and compassionate grounds (commonly known as H & C).

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Canada Border Services Agency officers have discretion to enforce and some delay deportation once an H&C application has been filed, but the officer in charge of Elizabeth's case did not. In the summer of 2007, she was given two weeks to leave Canada.

Elizabeth purchased a plane ticket for herself and her five-year-old son to return to St. George’s, capital of Grenada and then pulled her son out of his Toronto kindergarten (without a word to his friends’ parents).

She could not believe she was being sent back to the country that, she says, repeatedly failed to protect her from a physically abusive man.

Fleeing abuse

For years, Elizabeth was beaten by her son's father in St. George’s, her hometown. She travelled to Toronto in 2002 to give birth to her only child. Her sister, a Canadian citizen, lives in Toronto so she stayed with her. After her son was born, they returned to St. George’s, where the physical abuse continued.

Despite approximately “seven or eight” separate visits to the police – the only people she felt could protect her from the blows of a man 19 years her senior – nothing changed for years. Elizabeth says that each visit would end with an officer saying something to this effect: "men and women get in bad relationships, and they have fights, and the next day they get back together."

Violence against women is not a concern of Grenadian police officers judging not only from Elizabeth’s experience, but from a 2007 “response to information request”, a document prepared by the IRB’s own researchers. On 18 October 18, 2007 a researcher at the IRB spoke to Judy Williams, secretary general of the Grenada Community Development Agency (GRENCODA), a non-governmental group that encourages Grenadians to join in community based initiatives. According to the IRB’s researcher, Williams “noted that although there is legislation against domestic violence, the mind-set of law enforcement agencies is that domestic violence is a family affair and that they should not be involved.“ Williams, who has been with GRENCODA since 1985, also “indicated that If a woman goes to the police, the officers are likely to send her home.”

In 2004, Elizabeth could not take any more. “I just wanted to get away,” Elizabeth says. “I was scared for my life.” She says that she also did not want to raise her son to think that beating women is acceptable behaviour. Knowing the danger Elizabeth faced, her sister bought a plane ticket to Toronto for Elizabeth and her son, then two years old.

Elizabeth says she felt safe in Canada. During her short stay in Toronto, she applied for a work permit but was denied so she went back to school. Elizabeth never completed high school and leapt at the opportunity to enrol in a General Educational Development (GED) program. She hoped that with the equivalent of a high school diploma she could one day land what she calls a “good job”. But her deportation got in the way of completing the GED program and sitting for the tests.

Island life

Fortunately, in the three years that Elizabeth has been back she hasn’t bumped into her son’s father on the small Caribbean island, whose population is just over 100,000. She says she doesn’t know where he is. But there’s no guarantee that he won’t pay her a visit some day.

Elizabeth misses more than just the sense of protection she felt in Canada; she misses being able to take care of her son. At age four, he began suffering from asthma. In Canada, it was never a problem to buy inhalers or take him to the doctor. As a Canadian citizen, he is covered by Ontario health insurance.

Since returning to Grenada, Elizabeth has had to pay for her son’s medical care out of the little she earns as a babysitter and cleaner. Without free or affordable health insurance, there have been days when she has had to choose between buying medication and buying food for her son. Elizabeth says inhalers alone cost her 120 East Caribbean dollars (or 47 Canadian dollars on June 30, 2010) a month. Generally, things in Grenada are “way expensive”. But the high cost of living becomes even more of a challenge when you’re a single parent without a high school diploma trying to care for a son vulnerable to serious asthma attacks.

Her son has been hospitalized twice for his asthma in the last three years. On several other occasions he has been an out-patient, in the hospital briefly to use a ventilator. She says it’s a struggle to pay for it all.

Elizabeth is still waiting to find out if she can return to Canada. Legal aid workers have forwarded records of her son's hospital stays to immigration officials considering her humanitarian and compassionate grounds application. 
In 2008, 10,627 individuals were granted permanent residence in Canada based on humanitarian and compassionate or public policy grounds. Elizabeth is hopeful that she will be able to return to Canada with her son in the near future. "Sometimes when he say, 'Mummy when are we going back home?' I sit and cry to myself."

As of June 30, 2010, Elizabeth was still in Grenada, waiting for Citizenship and Immigration Canada to process her application.

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JAN SZAMKO

Had Jan Szamko been compliant and cooperative in his removal to the Czech Republic, he might still be alive. The reasons why he died in a cell at Toronto Metro West Detention Centre are still unknown. And a coroner’s inquest may be the only way to uncover the events that led to Jan’s untimely death on December 8, 2009.

What is known, however, are the reasons why he remained in detention on that particular Tuesday. Jan's seven day detention review began at 9 a.m., just hours before his death. It was held in the jail where he was detained, but Jan was not in attendance. The IRB member offered two (somewhat conflicting) explanations for his absence: "(Jan) has chosen not to participate"; and "he's covered himself with excrement, and staff would not be able to go in and move him without special protective clothing." In any case, Jan was not represented at his last chance at freedom. During the proceeding to determine whether Jan would be freed, the government lawyer said the 31-year-old non-citizen was “faking a variety of medical problems”. Peeing “all over his room, and himself” and laying “in his own feces”, in her view, was the non-Canadian citizen’s way of resisting removal. The IRB member concurred, ordering continued detention in the jail and stating her intentions to relay concerns about Jan’s mental capacity to the registrar.

Voicing concerns

A week earlier, at his first detention review, Jan had voiced concerns about access to interpreters, legal advice and medication in detention. At the time he was being held at the Immigration Holding Centre (also known as Heritage Inn). No mention was made of Jan’s concerns at the December 8 hearing held in absentia. Through an interpreter, Jan said he was unaware that he could be represented by counsel at the detention review hearing. He indicated that he had unknowingly waived the pre-removal risk assessment (PRRA) - his last chance of staying in Canada. “I didn’t know what I was signing for,” Jan told the IRB member, “They never told me what it is. They didn’t explain it to me.”

Jan also said that he needed his medication. “I take some pills but I didn’t get anything in my prison.” He continued, “They took me while I was asleep and they didn’t supply me my pills, and I also take some pills for my kidneys and those pills also I don’t have on me.” According to notes made by the IRB member, the pills were for his depression and kidneys.

The Roma story

Jan made a convention refugee claim after his flight touched down at Pearson airport on November 18, 2008. The IRB denied a request for Jan's personal information form (PIF) to ascertain the details of his claim. But, in all likelihood, Jan claimed persecution on the basis of his Roma ethnicity.

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The Roma, a transnational community of somewhere between seven and 12 million individuals, have long been socially excluded and neglected by European states. The result has been higher crime and unemployment rates and lower education levels for Roma compared to the non-Roma population. A survey conducted in 2008 by Eurobarometer, an EU survey agency, revealed that 24 per cent "of Europeans would feel uncomfortable having a Roma neighbour". However, anti-Roma sentiment is most deeply entrenched in central and eastern Europe. Jan was no stranger to the continued persecution endured by Roma. His brother-in-law Andrei Balog told the Toronto Star that an attack by neo-Nazis in his younger days had left Jan with a limp.

According to a May 2009 article by Amnesty International: "Violent attacks by far-right groups against the Romani community have intensified in some areas of the Czech Republic. An increasing number of marches and statements by some Czech far-right groups include incitement to discrimination, hostility or violence against the Romani community." Despite reports of firebombings and attacks against Czech Roma, by police officers on some occasions, the government of Canada has decided to limit the number of Roma refugee claimants by imposing visa restrictions in July 2009. Minister Jason Kenney imposed visa restrictions on citizens of Mexico and the Czech Republic "to protect the integrity of the asylum program", according to the 2009 annual report to the Parliament of Canada on immigration.

Some time after making his "port of entry" refugee claim, Jan was joined by his common-law wife Nadezda Peterova and young daughter Sabina. They too sought asylum.

Family first

Less than a year after submitting paperwork and before attending a single hearing, Jan withdrew his claim. There was no turning back: In Canada, a person can make only one refugee claim in their lifetime. He asked CBSA to remove him from Canada because, according to the government lawyer at his first detention review, "his mother was terminally ill and dying". A flight was arranged but Jan missed it (it's unclear whether he didn't appear at all or he appeared late) on September 29, 2009. His removal was rescheduled for October 2 but again he missed the flight. According to the government lawyer, on the day of Jan' s rescheduled flight, a friend of Jan called an immigration officer to say: "Mr. Szamko had been in the hospital. That he had wanted to leave because his mother was sick, but now his mother had died and he no longer wanted to go." Jan was mailed a notice asking him to come to the Greater Toronto Enforcement Centre on November 10. After, he failed to appear, an arrest warrant was issued on November 12. CBSA launched a proactive investigation – a search through credit reports and a police database for individuals who have overstayed their welcome – to arrest Jan. On November 28, Jan was arrested at his home and detained in the Immigration Holding Centre.

On December 1, 2009, he explained why he withdrew his claim and went to the Greater Toronto Enforcement Centre weeks later asking to be flown home: "... I panicked, when I realized that my mom is severely sick," he said to the IRB member. "I did not realize that there is a risk for me in the Czech Republic. That there is a danger in the Czech Republic." The member then asks Jan if he is still afraid to go back. He replies, "Yes."

Jan was the only member of his family in Canada to withdraw a claim in September 2009. After his death, his common-law wife and daughter withdrew their claims and returned to the Czech Republic with Jan's body. In 2009, 702 Czech refugee claims were withdrawn, according to the IRB. (Almost all claims from the Czech Republic are made by Roma.) Among Czechs "there's quite a large number of claims being withdrawn," says Paul St. Clair, executive director of the Roma Community Centre in Toronto which aims to assist newly arrived Roma as they settle in the Hamilton and Toronto areas. St. Clair tried to convince Peterova to stay in Canada and also keep the body in Canada but she refused.

Labelled a faker

The postmortem report indicates that Jan was taken to a hospital "approximately" three days before his death when he "developed chest pain that radiated to his left shoulder". He was diagnosed with "dyspepsia", a term which may describe heart burn and nausea, and released.

After his hospital visit he began to exhibit "'bizarre' behaviour, such as being actively oppositional, drawing on wall with feces, having reduced hygiene, falling to ground with apparent indifference to injury and being incommunicative."

He was scheduled to be deported on December 6, 2008 "but that removal was eventually cancelled by the chief of operations, as Mr. Szamko was uncooperative and faking a variety of medical problems".

The only example of non-compliance provided is that he urinated in his room at the Immigration Holding Centre. This seems to have been reason enough to move Jan from the Immigration Holding Centre to the Metro West jail.

Before being found "alone and unresponsive" with signs of recent injury to the head and neck torso and extremities on December 8, 2009, Jan was "assessed by a psychiatrist, diagnosed with Ganser Syndrome and was prescribed a medication." Neurologist Sigbert Ganser, after whom the syndrome was named in the 19th century, once said: "The most obvious sign which they present consists of their inability to answer correctly the simplest of questions which are asked of them, even though by many of their answers they indicate that they have grasped, in a large part, the sense of the question, and in their answers they betray at once a baffling ignorance and a surprising lack of knowledge which they most assuredly once possessed, or still possess."

He died in the jail, "despite resuscitative activities."

The CBSA and Citizenship and Immigration Canada, according to St. Clair, were "overly helpful" to Peterova as she rushed to return home. St. Clair says he tried to convince Peterova to stay in Canada, for the sake of the inevitable inquest. The body should have undergone an independent autopsy on Canadian soil, in his view. But Peterova refused. He says she is now eager to return to Canada with her daughter. The problem is she has used her one chance at asylum and, unless an exception is made, will not be able to return.

There will be a coroner's inquest into Jan's death because it took place in a detention centre. His official cause of death is listed as: "tense pericardial effusion (clinical tamponade) due to or as the consequence of fibrinous pericarditis." In layman's terms, Jan died of chronic heart disease.

DENIS B.

For six days the Canada Border Services Agency detained Denis B. at Heritage Inn. Three CBSA officers came for the 19-year-old at his apartment in uptown Toronto early on a Sunday morning – July 23, 2008 at 4:15 a.m. First they called his wife's cell phone from a private number. The phone rang without answer. Then, just as her phone settled, Denis’ phone shattered the silence. When the rings were joined by incessant barking from Teddy, the couple’s Yorkshire terrier, the officers must have known then that their “proactive investigation” – the CBSA term for hunting non-citizens who have overstayed their welcome – had led them to the right place.

Naked, Denis crawled out of bed and crept slowly to the door. He peered through the peephole. A woman and two big men dressed in jeans, sweaters and CBSA caps stood at the door. As they called his name and asked him to open the door, he knew his time in Toronto had come to an end. 

He wanted to get dressed before he was taken away. But he says the officers only gave him enough time to throw a pair of blue jeans over the underwear he’d hurriedly put on as they demanded he open the door. Four months after he was supposed to be deported, CBSA officers handcuffed, then marched the skinny, shirtless and shoeless Costa Rican with a faux-hawk hairstyle to an unmarked Dodge minivan. He knew where he was going. For the second time in his 19 years he was off to a migrant detention centre – Toronto Immigration Holding Centre, also known as Heritage Inn.

Overstaying his welcome 
Denis, who does not want his last name published to protect his family's privacy, was initially scheduled to be deported to Costa Rica in November 2007. But in what could perhaps be considered a parting gift of Canadian compassion, the CBSA officer handling his removal from Canada had agreed to delay deportation so that Denis could marry his bride, a Canadian citizen. The officer set the new date of his removal to Costa Rica for the day after Denis’ March wedding.

On deportation day, Denis says, “I had everything packed. I was ready to leave.” However, he chose to stay in Toronto, by his wife’s side, after she reminded him of his vow “to stay good or bad,” he says. In case he was unsure of what to do, she added, “This is a bad time.”

The newlyweds did not conceal their whereabouts or identity. Eventually, Denis says, CBSA would find him and he would explain that he stayed in Canada for love. He was convinced that deception would not help his case. They both continued to use their real names on their bills. They did not change their cell phone number, which clearly worked to CBSA’s advantage.  However, they had moved into the apartment building across the street from their old building. And Denis’ boss had suggested in April that he stop using his social security number at work. Denis took the hint.

From San José to Toronto and back

Denis' father, Mr. B., left Costa Rica in 1999, entering Canada as a visitor. He’s bilingual, unlike his wife who speaks very little English. After making his refugee claim at an immigration office in Toronto, he worked towards building a new life for his family with the money he earned as a construction worker.

In March 2000, six months after Mr. B.'s arrival in Toronto, Denis, his mother and his two brothers arrived in Toronto aboard a non-stop, five-hour Air Canada flight from San José, Costa Rica’s capital. When the plane touched down, Mrs. B., his mother, made a refugee claim. She included Denis, her 11-year-old as well as her 7- and 12-year-old sons as dependents in the claim. Denis says they sat in the immigration office at Pearson for several hours that day before being released.

Denis’ parents have never told him why the family came to Canada. And he’s never asked. “My parents usually, their problems, they keep it for themselves,” Denis says. “They don’t involve us the kids."

Before long, Denis and his brothers had settled into school and improving their English. While Mr. B. brought home a steady income, Mrs. B. was busy taking care of the boys and the three-bedroom apartment the family rented near Jane Street and Weston Road.

Things changed in 2003. Their refugee claims were rejected. Denis is not sure why they were unsuccessful. All five of them left for Costa Rica after being denied leave to appeal the IRB’s decision in Federal Court. Denis says his parents never applied for the pre-removal risk assessment because they weren’t aware of it. TV and newspaper ads persuaded Mr. and Mrs. B. to hire an immigration consultant, who they later discovered – thousands of dollars too late – knew very little about the refugee determination process and was not licensed. 

One year later, Denis’ dad would make a second-go round. In a long, arduous trip, Mr. B. walked illegally into the U.S. from Mexico, traversed the U.S. by car and then made a refugee claim at the U.S.-Canada border. Denis says it was “just luck” that got his father – a man who had been deported the year before and had already made a refugee claim – from the U.S. into Canada.

For some reason, Mr. B. was able to make a second refugee claim at the border. “It really depends on the officer,” Denis says, “Some of them have a really good heart.”

Back in Toronto, working in construction, Mr. B. arranged for his family’s return. There would be no risky, continental crossings travelling for his wife and sons, they would only be flying to Toronto. 

A brief detention 
Three months after Mr. B. re-entered Canada the rest of the family joined him. But this time, they would not get to exit through the sliding doors of the international arrivals area, walk down the ramp, and into the open arms of a loved one. Round two was “a little bit harder”, says Denis, “because we were already denied as refugees”.

As soon as we arrived at the airport there were three immigration officers waiting for us, Denis says. For about five to six hours the family sat in an immigration waiting room at the airport. Denis says CBSA detained them at Heritage Inn because deportees are not allowed to re-enter Canada without written permission from CBSA. Unlike other migrants being transported from the airport to Heritage Inn, Denis and his family were not handcuffed. (He attributes this to “luck”.) Throughout most of the day spent in detention at the holding centre, Mr. B. was in and out of the facility. He pleaded with officers several times to release his wife and kids. He also brought in a lawyer and some food for the family.

They were eventually released after a full day at the holding centre. Denis gives a lot of credit to the compassionate immigration officer assigned to their case, “he did everything he could” to get them out of the part immigration holding centre, part low-budget hotel. Since the mistake had been made of not applying for the PRRA in 2003, this time round, the family was determined to try their hand at the PRRA, which has a 2 to 3 per cent rate of success. They promptly submitted the PRAA and began a long period of waiting – three years in their case. While a PRRA is being processed, individuals cannot be deported; life goes on.

During that time, Mr. B.’s second refugee claim was denied and six months after his rejection, his PRAA determined it was safe for him to return to Costa Rica. He was told to leave but did not want to. Then one day, in 2005, he was arrested, detained and deported after Toronto Police found that his deportation order was outstanding during a routine traffic stop. Denis and his older brother were in the car with their father on the morning of his arrest. Mr. B. was returned to the U.S. because of the 2002 Safe Third Country Agreement, a partnership between the U.S. and Canada to return most refugee claimants to the first "safe" country they arrived in. He spent two months in a U.S. jail before finally being deported to Costa Rica.
    Transcript of "Denis recounts his father's arrest and deportationWith her husband now almost 4,000 kilometres away, Mrs. B. wanted to return to Costa Rica. And a month later she did taking along her youngest son, who was then 13. 
Denis and his elder brother, 17 and 18 at the time, respectively, chose to stay in Toronto. “We have a better future here so we decided to stay.” Denis adds that there were also compelling financial reasons for staying put: “My dad borrowed money to build our house In Costa Rica.” The two brothers decided to stay and pay the debt.The separation, Denis says, was and is still hard for the family. Growing up overnight was a challenge. He has not returned to high school since he dropped out in 2005 to work full-time in construction.

For three years, life went on like that with both brothers working to support themselves and pay off the loan.

In November 2008, Denis finally received the all-important letter from CBSA. He actually had to travel to the Greater Toronto Enforcement Centre in Mississauga to hear the outcome. Denis says that instead of mailing the letter, sent out much earlier in the fall, to the address on file, CBSA mailed it to an address the family had not used since 2002. Fortunately a friend of a friend lived at that address and informed Denis that there was a letter waiting for him and officers had come to the house (he doesn’t know if they were police or CBSA officers) in search of him.

“When I showed up at immigration they told me that I already was deported,” Denis says. The letters that he received months too late informed him that, after an unsuccessful PRRA, he was to be removed. Now there was a warrant out for his arrest.

UN working group concerned over detainee treatment  

Migrant detainees who speak neither English nor French do not enjoy the same benefits and privileges as those who do speak either language. For example, after his wife brought a suitcase with his clothing, Denis would go downstairs each day to the area where the suitcases are stored and take out some clothes. He isn’t sure why but the two Costa Rican detainees that he shared a room with were not allowed to go downstairs and get their clothing. Denis lent one of them his clothes.

During his six-day detention in 2008, Denis says he didn’t see a single Spanish translator at the centre. Spanish speakers would show up at the door to his room and ask for help. Denis essentially worked as a volunteer interpreter. Because no one in the centre was available to assist Spanish speakers with important documents or understand their requests. “If you don’t speak English then you’re screwed,” Denis says.

His struggles and those of his family to live in Canada have, surprisingly, not left him calling for sweeping changes to Canada’s immigration law. “It should be the way it is now,” he says. “Every country has their laws and you have to respect it.”

But there are many changes to be made, in his opinion. What’s “not right” is the level of care. “I think that what they have to change is the attention where they have them, where they have us,” Denis says, “Because they don’t pay attention to the things that you need.” Access to clothing, medication and interpreters must be improved, he says.

“I wasn’t treated bad,” Denis says, “because I didn’t let them treat me bad.” To get a toothbrush, your own clothes out of your suitcase or make a phone call, you had to complete a request form. The officers leave the forms, Denis says, to pile up throughout the day. “And then, at the end of the night, the sheets are gone and nobody got anything.”

But Denis says others were not aware of their rights and went without access to their clothing and medication. The officers ranged from “really nice” to “really cruel”. Denis says he heard some officers direct “racist” comments at detainees who did not speak English.

He was insulted by a guard: “I walk in and he started making fun of my haircut.” Denis was asked, “Where you going to have that when you go back home, after you get deported?” And that made me pissed, you know. I got mad and I told him, “Make fun of me when you can speak English properly.”

CBSA contracts a private firm, G4S PLC, to guard Heritage Inn. In 2000, when Wackenhut Corporation, an American firm, provided security guards to Celebrity Inn (Toronto's Immigration Holding Centre until 2004), guards did not receive training to deal with clients from around the world. Anna Pratt, associate professor of criminology at York University observed, “While guards are instructed to respect the principle of non-discrimination, in 2000 they were not receiving any form of cultural sensitivity training from CIC."

Some officers, Denis says, treated a non-English speaking detainee like “a dog” or “a criminal”. In the airport, on the way to security, he asked his two accompanying CBSA officers to remove his handcuffs, saying he was not a criminal. They removed them, according to Denis. The other two Costa Rican deportees refrained from saying anything.

“If you can’t talk to someone else and tell them what you need or whatever, then you’re not going to get it,” Denis says. “They’re not going to give it to you.”

Following a June 2005 visit to Canadian centres holding migrants, both immigrants and refugee claimants, the United Nations Working Group on Arbitrary Detention echoed concerns similar to those raised by Denis’ experience:
  • Lack of understanding - The group noted that “many of the immigration detainees do not really understand the legal process to which they are being subjected and why exactly they are being detained” because “the legal system and the culture underlying it are entirely unfamiliar.”
  • Limited access to interpretation - “while interpretation is provided at the detention review hearing, the detainees do not have access to an interpreter ahead of the hearing and are thus unable to adequately prepare themselves.” 
  • Fear that demands for better treatment will result in punitive action - The Group was “particularly concerned” by “credible allegations that immigration detainees have been transferred from immigration holding centres to provincial criminal facilities as a reprisal for conduct such as claiming better treatment or conditions of detention.”

Being as assertive as Denis might prolong detention or place a detainee in a precarious situation. For these reasons, the choice to be a silent and powerless detainee makes sense if it means the nightmare will be over sooner rather than later.

Life as a permanent resident  
Back in Costa Rica after his second deportation, Denis submitted the paperwork for permanent residence status, sponsored by his wife. They had initially hired the same immigration consultant used by the elder Mr. and Mrs. B to complete Denis’ residency application but, “he screwed us over because he didn’t know what he was doing at all.” Denis says, ”Things didn’t make sense whatsoever.” Even the dates were incorrect – the application completed by the consultant listed his wedding month as March and his wife’s as May. “It was really bad.
Denis was not confident that his application would be approved and he would soon return to Canada because he didn’t leave when he was told to and because the Immigration officer may not be convinced that he married his wife for love.

He spent 15 months in San José, waiting for a decision. He used his English and Spanish bilingualism as an over-the-phone computer technician and also to teach English.
He was granted permanent residency and told to pay approximately $2,150 to the Government of Canada to cover his removal flight and other deportation-related charges. On top of everything, Denis paid $490 for the visa.

On November 24, 2009, Denis flew to Toronto. According to Denis, one of the CBSA officers said to him: “You have history in this country. I’m surprised you’re even accepted.’” Aside from that, the trip was uneventful.

Denis and his wife separated in late 2009 and plan to divorce. He says the distance and personality differences changed their relationship. In February, Denis moved to Calgary, where his older brother lives with his wife. He returned to his “hometown” of Toronto in May and is currently working in the construction industry but plans to go back to school in the future, possibly for architecture.

KEVON O'BRIEN-PHILLIP

On the afternoon of January 2, 2010, Kevon O'Brien-Phillip was found unconscious and brutally beaten on a shower room floor in Toronto's Don jail. The 24-year-old became the second inmate in two months to be beaten to death at the downtown jail, and the city's first murder of the year.

The final four months of Kevon's life, from September to January, were spent in the overcrowded, understaffed jail, awaiting deportation to Trinidad. He was not facing any criminal charges at the time but because he had a criminal record, Canada Border Services Agency (CBSA) officials had left him to the care of Don's guards. He had emigrated to Toronto at age 10 as a permanent resident, sponsored by his mother, who passed away in 2008. According to David O'Brien, Kevon's stepfather, his stepson had no family in Trinidad. He would have been alone, completely without a support system if deported, he says.

Under IRPA, permanent residents may be deported if convicted of a crime punishable by 10 years or more, regardless of the actual sentence. Canada had several reasons to deport Kevon on the basis of serious criminality. He spent several months behind bars for aggravated assault in 2004, which carries a maximum penalty of 14 years, and for sexual interference in 2006, punishable by up to 10 years. From 2002 to 2007, Kevon was convicted of assault on a police officer, assault (on two occasions), and dangerous operation of a motor vehicle (on three occasions).

Months of waiting   
CBSA issued Kevon a deportation order on April 26, 2006 because of his aggravated assault conviction. For this 2004 crime Kevon had spent three and a half months in pre-trial custody, and was sentenced to two months in jail and two years of probation. While serving time at Central North Correctional Centre in Penetanguishene, Ontario in 2006 for another crime Kevon had been unable to find a lawyer to represent him in his fight to stay in Canada. However, as a permanent resident, he was entitled to an appeal before the Immigration Appeal Division. Kevon submitted a notice to appeal but the appeal was abandoned on March 31, 2008 after he failed to attend the hearing. In March 2008 Kevon was in jail again. A letter notifying him of the hearing had been sent to the address on file, the family home.

Ensuring Kevon had the kind of family support that was only available to him in Canada was not the government's concern. According to notes made by the Immigration and Refugee Board (IRB) member at a detention review hearing on October 15, 2009, Kevon was being detained, month after month, because he was considered a danger to the public and unlikely to appear for IRB proceedings. David O'Brien had offered to post a bond to have his stepson released from the jail. Kevon would stay with him and his stepbrother and stepsister. The government lawyer said: Kevon's stepfather was not a suitable alternative to detention because Kevon had committed crimes while living with his stepfather.

That same day the IRB member asked Kevon what was different now. Kevon replied that his mother had passed away in 2008, while he was awaiting trial at a local detention centre and he now had a daughter, who lived with her mother. "I now have a child," Kevon said, "I see life differently." Despite several other questions about how he had changed, and why he had failed to change in the past,  Kevon was not released from detention that day. His stepfather and aunt, waiting outside of the hearing the whole time, left without him.

At Kevon's detention review on November 19, 2009, the government lawyer said Kevon was ready to be deported. His flight just needed to be booked. Despite these notes, Kevon would remain at the Don for another six weeks. 

Reshaping laws  
On April 5, 1994, four Torontonians of Caribbean origin attempted to rob Just Desserts, a downtown cafe. Two of the black men were convicted in the fatal shooting of 23-year-old Georgina "Vivi" Leimonis, a white woman. Barbara Jackman says the murder had an unexpected effect on immigration: "I mean, bad as it was I don't think that it required that we change our law and take away humanitarian appeals to the Immigration Appeal Division."

The government's eagerness and recently new power to deport individuals linked to criminality - even in cases in which he or she has spent the majority of their life on Canadian soil - stems from the public's response to the 1994 murder. Ever since Bill C-44 passed in 1995 (the Just Desserts Bill), permanent residents have been deported for criminality with relative ease. The bill, said critics at the time of its passing, unfairly targets the black male - the stereotypical criminal and foreigner. Some charged that black men, already discriminated against in the criminal system, were more likely than white male immigrants to be detained and deported.

Anna Pratt, associate professor of criminology at York University, writes that the Just Desserts incident changed things, but so did the murder of "white police officer Todd Baylis, by black men of Caribbean origin." Pratt writes it too, "was crucial in shaping not only public opinion but even government policy."

More recently, the linking of terrorism and the power to deport has risen out of pressure from the U.S. after September 11, 2001. Over the course of his 13 years as a Torontonian, Kevon spent many days behind bars, mostly in pre-sentencing custody for assault, aggravated assault, sexual interference and dangerous operation of a motor vehicle. But this time round, he was not being held in anticipation of a criminal trial. Kevon was being made to leave Canada, as well as his daughter, stepfather, stepbrother and stepsister because of his criminal record.

Reasons not to mingle  
Jason Dos Santos, a criminal lawyer, represented Kevon in three separate cases in 2009. Kevon was acquitted of the third charge in November 2009. Dos Santos says all three cases involved "allegations of 'I saw a guy in a car, he looked like Kevon Phillip, I chased him, he got away, I’m sure it’s Kevon Phillip.' And then obviously not enough to get him convicted at trial."

Kevon was reportedly placed in segregation after jail guards discovered 100 grams of compacted marijuana in his rectum. Upon his release from segregation, Kevon was beaten to death by inmates. Dos Santos says he doubts Kevon was a drug dealer at the Don. Kevon "got pressured into" doing it. "From what I saw of Kevon, he was probably someone who was in over his head," Dos Santos says. His fellow inmates were probably "worried that he was going to rat someone out," he says. "The real kicker for me is the guy was acquitted of all fucking charges and he’s sitting there because the Canadian deportation system can’t figure a better place to put somebody who is not facing any criminal charges than the most overcrowded, dangerous jail  in probably the country. That’s what’s offensive about it," says Dos Santos. "It’s just it seems so callous, really. No one did anything because no one cared. They thought, ‘Oh, fuck him.’ You know, ‘He’s a criminal. Big deal. Let him deal with it’".

Others agree that immigration detainees should not be commingled with pretrial or convicted criminals. According to Amnesty International and a 2005 report by the UNHCR's Working Group on Arbitrary Detention, because detainees in remand centres are not provided with information on the process or access to legal aid, they are not able to challenge their deportation in the same way that detainees at the Canadian Immigration Holding Centre would be able to. Amnesty International's Gloria Nafziger says that one of the organization's primary concerns in regard to migrant detention is the commingling of criminals and immigration detainees because the migrants tend to be "treated as if they were part of the criminal population." Nafziger points out that migrants housed in a jail tend to have less access to immigration and refugee lawyers.

Kevon's stepfather says his lawyers have advised him not to talk to the media. He would only say that his son should not have been awaiting deportation in the Don, that he should have been held in "an immigration cell".
As of June 30, 2010, six men faced charges of second-degree murder in Kevon's death. 

THE ENFORCERS

Four black women, two white women and two black girls sit, stroll and talk on a payphone inside a room in a brick module at 385 Rexdale Boulevard. No one is watching the TV, suspended from the ceiling, but it’s on. The Outdoor Living Network’s images of Mother Nature contrast with a world of barred windows and 20 or more roaming guards in navy blue uniforms.

One of the black women is from the Caribbean island of St. Vincent. She sits on a couch between two others. Dressed in blue jeans and a T-shirt, she complains of stress. She says she does not know how long she’ll be in here and is worried the uncertainty is affecting her diabetes.

On this June afternoon she is one of 109 individuals confined to Canada’s largest centre for detained migrants. The detainees of Heritage Inn are far better off than the migrant detainees at any of the local jails. And hers is the only complaint Tina Karsakis hears during a 30-minute lap of the Immigration Holding Centre or Heritage Inn, as it’s unofficially called. Karsakis is chief of detention operations in the Toronto area. She has been for two years now, working out of an office in the holding centre that, until 2004, was Heritage Inn – an average low budget hotel not too far from Pearson International Airport, Canada's largest airport. As we walk through the various wings of Heritage Inn she points out the many changes she has made to improve life at the centre. More changes, she adds, are on the way. 

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A "fortunate" doubling in size  
Heritage Inn is a showcase for the government's heightened desire to remove unwanted migrants. It regularly exceeds its nominal capacity by as many as 40 “bodies” – the unfortunate term for detainees used by Reg Williams, director of the Greater Toronto Enforcement Centre (an office created in 1998 to enforce immigration in Toronto). By the end of 2011 the centre will double its capacity, from 120 to 240 detainees. The expansion signals an acceptance of the rising number of detentions and deportations in Canada. To stay here you must be “low to medium risk”: No criminal record and no risk to the health or welfare of other detainees. “High-risk” men are sent to the Metro West Detention Centre, which is less than ten minutes away. “High-risk” women are sent to Vanier Centre for Women in Milton, a correctional centre about half an hour from Heritage Inn.

Williams says the doubling in size is “unintended”, meaning increasing detention capacity was not the main goal of the expansion. He is a former senior immigration officer, who worked at Pearson airport for Citizenship and Immigration Canada. (Prior to the CBSA's creation in 2002, immigration enforcement fell under the domain of the CIC.) When pressed he says the extra rooms will come in handy on days when space is a challenge. Extra detainees are now given cots to sleep on, he says. “Two or three times” in the past, Williams says, the building has been so crammed that non-high risk individuals have been holed up in a local jail. “I’ve got to put them somewhere,” Williams says, “I can’t take them home.”  

Karsakis and Williams deny the doubling of capacity will accompany a ramp up in detentions. The extra bedrooms, Williams says, “just happened to be a fortunate effect” of the expansion. The main goal of the renovation is to add more common rooms and interview rooms and an indoor playground for young residents. Drivers, officers and detainees will also appreciate the expansion when it rains – they’ll be able to stay dry as they enter and leave the facility once a covered enclosure is added.

Questions of communication and care  
Jan Szamko found himself in Heritage Inn, struggling to communicate in English like so many other detainees. Like others, he found himself without medication upon arrival at the detention centre, detainees are searched and all belongings are taken by officers.

Karsakis won't discuss the details of Szamko's case but she says that each detainee is given a medical form to complete and a white folder containing information on legal assistance (through the Refugee Law Office and Legal Aid Ontario) and the availability of medical staff and Canada Border Services Agency (CBSA) officials. The kit also includes request forms for detainees to meet with: a CBSA official; a nurse or doctor; a representative of the Toronto Refugee Affairs Council (TRAC) for support; or a religious representative. The information package is available in 11 languages, the medical form in 24 languages. The medical form and information kit are available in Czech, Szamko's mother tongue.

Karsakis says that interpreters “are always available.” At any time, “If a detainee can’t communicate we get an interpreter.” She says interpreters are listed by country and made available to the manager on duty. The employees are also multilingual: Karsakis speaks fluent Greek; and she says there’s an employee who speaks Spanish.

The day after detainees arrive at the Inn, they meet with an immigration officer who ensures that “everything’s explained to them”, says Karsakis, and confirms that the detainee understands the kit and the process before them.

Detainees at local jails do not have the luxury of an immigration officer, information kit and medical form printed in two dozen languages. Szamko, transferred to Toronto Metro West Detention Centre for his "non-compliance", according to documents from the Immigration and Refugee Board, saw both the life of a jail detainee and that of a Heritage Inn detainee. Being detained is never desirable but being held in a jail is not an ideal environment for individuals with schizophrenia or depression, individuals who have been termed "non-compliant" when it comes to detention in Canada and abroad. Szamko took pills for depression, according to notes made by the decision maker at his first detention review.

Williams says that he doesn't know much about what goes on in the jails. “We don’t control the jails.” But he does say,“The standard of service is not as good in the jail.” The CBSA entrusts the correctional system with high-risk detainees and does not get involved in their detention experience. From 2004 to 2008, approximately 27 per cent of all migrant detainees in Canada were housed in jails, according to CBSA. Asked how detainees at the jail receive information about legal assistance or medical assistance, Williams says that the jail chaplain is able to provide information on finding counsel. There is a bin for detainees to place requests to see a CBSA officer as well as a CBSA hotline for detainees to get information on where they stand.

In the Toronto area, Karsakis decides which detainees are safe enough to stay in the IHC. The threshold for transfer is high, she says – "If we can care for them here we will.” She adds, "If you’re “mouthy” or a “pain in a butt we keep them" (at Heritage Inn). The individuals sent to a jail are "a danger to others or pose a health risk," says Karsakis.

Detention life   
Detainees wake up at 7:30 a.m. They don't need to make the bed because someone is paid to do it. Everything from cereal and milk to pancakes and home fries is served at breakfast. Like all meals served by the centre, says Karsakis, breakfast is “prepared fresh here daily”. Kosher, halal, low sodium, high cholesterol, allergies, all sorts of diets are accommodated, according to Karsakis. During the Muslim holy month of Ramadan, kitchen staff serve a meal before dawn ahead of the daylong fast. Throughout the day, detainees are free to walk throughout their wing and keep busy. There are a number of activities aimed at the young ones for good reason: Last year the CBSA hosted 193 Canadian and 265 non-Canadian citizens under the age of 18 at Heritage Inn. Karsakis says, none of the minors in the Inn are detained. Rather, all children are guests of their detained parents. For the most part, mothers "don't want to give up their kids." I ask about Children's Aid Society and alternatives to detention for children without family outside of the Inn. "We try not to get child services involved," she says.

The centre allows NGOs in to serve the detainees. Toronto Refugee Affairs Council (TRAC), FCJ Refugee Centre and the Refugee Law Office are regular visitors to the centre. Social workers come in as well as a volunteer from the Canadian Centre for Victims of Torture, who leads arts and crafts classes. School-aged children attend class three times a week for three hours a day in the multipurpose room on the second floor. Because the children are a microcosm of the world's school systems the teacher “assesses everybody and then determines” their school level, says Karsakis.

For those seeking medical care, a doctor is on-call at Heritage Inn around the clock. A nurse is available from 6 a.m. to 1 p.m. several days a week and, Karsakis says, there’s a clinic down the road if detainees require more substantial medical care.

If it's not dark outside and the weather is right – no heat wave or blizzard – the detainees get to go out to the fenced-in concrete yard for fresh air before lunch and again between dinner and nighttime snack. Children can enjoy the outdoor playground. In the early darkness of the winter months detainees stay indoors each evening.

Friends and family of detainees are welcome to come by and chat through the glass for up to two 30-minute visits a day. Visiting hours are between 9:30 a.m. and 11:15 a.m., 1:30 p.m. and 3:15 p.m., and 7 p.m. and 8:45 p.m. Visitors must show two pieces of government issued identification, keeping non-status visitors away from their detained friend or family member.

Three hearing rooms accommodate IRB’s detention reviews and other proceedings. They usually begin in the morning. Occasionally they run into the afternoon. There are also dedicated meeting rooms for detainees to talk with counsel or other professionals.

Each wing has a common room with a TV, washer and dryer, a phone to make free local calls and payphones for long distance calls. Each bedroom has a TV. The women’s rooms have two double beds. The men’s rooms, the same size as the women’s, each contain three beds. Beds are made by staff everyday and linens are also changed daily. They are told to, Karsakis says, “Do your own laundry.”

Lights go out at 10 p.m. and detainees are allowed to watch TV in their room until 11 p.m. or midnight.

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Private meets public   

The approximately 20 to 25 security guards roaming the halls of the inn at any given time are provided by G4S PLC. On its corporate site the company boasts that it is the “world’s leading international security solutions group”, with operations in 110 countries. An odd plea for government business reads: “In a world of diverse and growing security needs, let us help you to transform your security challenges into opportunities.” The private sector isn’t only involved with security at the Inn, the building belongs to Corbel Management and the food is prepared, the beds are made each morning and linens changed by them.

Leaving the centre  

When it comes time to be deported, everyone, except for pregnant women and women with children, is handcuffed. They are walked out of the IHC in handcuffs and remain handcuffed until they pass airport security, accompanied the entire time by two CBSA officers. However, says Karsakis, a sweater or another item of clothing is supposed to be placed over the handcuffs to “minimize the exposure”. Sometimes nothing is placed over the handcuffs.

Some detainees require three CBSA officers. Williams says that between 30 and 40 per cent of criminals are escorted on the flight. And what happens if an unescorted individual starts to act up? “We’re in big doo doo.” And, fortunately for Williams, in the 15 years that he has worked in this area, “Nothing has ever happened.”

It's interesting that the same individuals that are apparently too dangerous for the Canadian public or the detainees at Heritage Inn are safe enough to be left to themselves, unhandcuffed and unaccompanied on a flight ranging anywhere in length from three to over ten hours. Is the goal to get these men and women off Canadian soil and out of Canadian hands or to protect Canadians from the foreign criminal?

I ask Williams whether rowdy deportees are ever sedated, drugged to make the removal flight easier. “Absolutely not,” he says. He then takes this opportunity to dispel any other myths that I may have: “We don’t give them tranquilizers. We don’t beat them. We don’t knock them unconscious.”

On the prowl for potential deportees   

Proactive investigations by CBSA agents target high-risk individuals. The "Road Investigation Unit” of the CBSA goes after individuals with cases in which “all the appeals have been exhausted.” Williams says officers look through the phonebook, contact the Canadian Police Information Centre (a database used by law- enforcement agencies), and turn to credit rating agencies to trace an IRPA violator's whereabouts.

I ask him whether the investigators are busier since the imposition of Mexican visa restrictions, whether more people are sneaking in unannounced. And he says “maybe in a year or two.”

The streets of Toronto are fair game for the CBSA but cries from immigrant advocacy group No One Is Illegal and other local and national critics have kept the agency from removing students while they're in school. “Generally, we won’t go into a school,” says Williams. However, there are times when the CBSA may enter based on public safety, he says.

I ask him about reports that CBSA has raided Dufferin Mall (a recent raid occurred at the Toronto mall on May 7, according to No One Is Illegal Toronto), asking shoppers for their identification. Williams responds, “We wouldn’t do that. It’s not true.” So undocumented migrants need not worry the next time they’re in a mall? “There’s no way we would ever go out and look for people out of the blue.” Karsakis nods her head in agreement with what Williams has just said. As for entering shelters, Williams confirms an incident last February at Beatrice House in downtown Toronto. The CBSA entered the shelter for women and children to arrest a Ghanaian woman. However, the woman had moved. Williams says the CBSA has recently asked for a list of shelters that they should be careful when entering. “We’re reviewing that whole idea (of CBSA officers entering shelters).”

The forgotten detainees  

As convenient as it is to export criminals to faraway lands it seems irresponsible for even senior managers of the CBSA to be unaware of the treatment received by migrant detainees in jail. Kevon O'Brien-Phillip had difficulty finding a lawyer while serving time in Central North Correctional Centre in Penetanguishene, Ontario. In Toronto's Don Jail, as an individual only there for immigration purposes, he certainly did not receive humane treatment. Fellow inmates brutally beat O'Brien-Phillip to death last January.

Williams says that there have been four deaths in detention, to his knowledge. He remembers Szamko's name but not the names of the other deceased. O'Brien-Phillip, Michael Akhimien (another Christmas time death) in 1995 and "one in Peterborough", died. Like Karsakis, Williams will not comment on Szamko's case because there will be an inquest. Williams only says, “We don’t want anyone to die like that. It’s sad.”

No one watches over the inmates in the jails. But someone, or some independent body should. Oversight is needed for all non-citizens detained and deported in Canada. Detainees at Heritage Inn at least have someone they can confide in, regular contact with volunteers from a community of concerned immigration professionals. Those in the jails should just hope they get out soon.

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