Is our system failing LGBTQ migrants and refugees?

Advocates say that while Canada talks up its tolerance, it has put LGBTQ non-citizens at risk — but a recent Supreme Court case could help change that
By Miles Kenyon - Published on November 29, 2018
Avery Edison, a transgender woman from the U.K., was held for 20 hours at Milton’s Maplehurst Correctional Complex before being transferred to a women’s facility. (Toronto Star/CP)

The night she was detained at Toronto Pearson Airport in 2014, Avery Edison — a  resident of the United Kingdom with a Canadian girlfriend — was initially asked about a previous visa she had overstayed by eight months. Then the questions turned to her life and medical history. After hours of interrogation, the transgender woman was sent to a men’s prison and placed in solitary confinement to await adjudication of her case. After an online uproar, she was transferred to a women’s prison 20 hours later.

Edison admits that it was foolish for her to have thought that she could re-enter the country after having overstayed her last visa but says she thought the worst outcome would be having to return home. Instead, she told, authorities “made the most inhumane choice at every point.” In July 2014, she filed a human-rights complaint against the prison where she was held — it was settled in March 2015 (Avery’s lawyer told that he could not disclose the terms of the settlement).

In response to cases such as Edison’s, the province has changed a number of its policies relating to transgender individuals.

Although Edison describes her experience as a “Kafkaesque bureaucratic nightmare,” she recognizes that she was relatively lucky because she’s white, speaks English, and has a sizable Twitter following. According to those advocating for the rights of LGBTQ newcomers, most don’t have her resources.

“These folks have nothing,” says Helen Kennedy, executive director of Egale Canada Human Rights Trust — and immigration to Canada “is their one hope. And they end up in this immigration detention centre that may be just as violent and discriminatory as the regime that they left.”

Michael Battista, a Toronto-based immigration lawyer who specializes in LGBTQ claimants, notes that the detention system is especially dangerous for LGBTQ individuals, saying that “LGBTQ migrants in immigration detention face a risk of a wide variety of psychological and physical abuse.” Jared Will, also an immigration lawyer, says that he’s witnessed his clients “disintegrate under the indignity and fear of being detained.”

And hundreds, like Edison, end up in prison instead.

When someone is suspected of immigration violations, the Canadian Border Services Agency decides whether they should be detained and, if so, whether they should be kept at an immigration holding centre (IHC) or placed in a provincial prison. Of the 8,355 individuals detained by CBSA in 2017, 20 per cent were sent to prisons — almost half were released within 24 hours and roughly 4 per cent were kept for longer than 99 days. Under Canadian law, there’s no limit on how long they can be held.

A spokesperson for the CBSA wrote in an email that “the CBSA will detain individuals in IHCs where their risk can be appropriately managed, and relies on provincial correctional facilities for those individuals where their risk is too high to be appropriately managed within an IHC.”

The CBSA further said that its staff are trained on how to properly support LGBTQ communities but that efforts can be made to support individuals only if they self-identify. Battista sees this as part of the problem.

“You have somebody vulnerable on the basis of their identity and yet reluctant to assert their need for protection, because the context from which they come is completely different from what we have here in Canada,” Battista says. He suggests that if they were assured of confidentiality, more people might be willing to self-identify.

In a recent paper, Will and his co-authors argue that the practice of keeping migrants in criminal facilities runs counter to international human-rights standards — and that the absence of a detention limit for these individuals violates the UN’s International Covenant on Civil and Political Rights. The Supreme Court will hear arguments about the constitutionality of detention within the immigration system generally, but a hearing date has not been yet set.

The government has long argued that the Immigration and Refugee Protection Act is sufficient to ensure that the rights of immigrants and refugees are protected and that non-citizens therefore have no need to invoke Charter of Rights and Freedoms remedies such as habeas corpus, a court petition that asks a judge to rule on the legality of someone’s detention. But advocates argue that because the Charter uses the word “everyone,” habeas corpus should be extended to non-citizens. And they’ve taken the fight all the way to the Supreme Court, which recently heard the last rounds of testimony on the matter and is expected to deliver a ruling in the next six months.

“Everyone is supposed to have the right to habeas corpus, so it shouldn’t be a question of justifying why immigrants should have it, too,” says Will, one of the many interveners who appeared before the court.

Given that LGBTQ individuals are at risk of abuse — including violence and other forms of discrimination — in detention settings and prisons, advocates say that access to habeas corpus would allow them to challenge their detention when such conditions arise.

“Without recourse to habeas corpus, [LGBTQ immigrants] are at the mercy of detention authorities to remedy ... risks,” says Battista.

Canada has taken a hard stance on enforcing the human rights of LGBTQ individuals: for example, it co-chairs the Equal Right Coalition and has granted asylum to gay men from Chechnya. In June 2017, it added “gender identity and gender expression” to the list of prohibited grounds of discrimination in the Canadian Human Rights Act and the Criminal Code.

But Battista argues that even as the country tries to market Canada as a destination for LGBTQ individuals and encourages other countries to advance their human rights, its immigration system remains out of sync with its stated values. He and other advocates are hoping that the recent Supreme Court case could result in fairer and more humane treatment of LGBTQ migrants.

“It’s about accommodating the group that Canada is seeking to attract,” he says.

Miles Kenyon writes about human rights, free speech, LGBTQ issues, and animal protection.