In the Shadow of Benevolence

Law & Theory Sep 02, 2019

By Amelia Williams
Published 2019-04-06

In August 2010, a ship called the MV Sun Sea entered the waters of Canada, off the coast of British Columbia. On board were 492 Tamil migrants fleeing the continued instability and violence following the close of the ethnically-motivated Sri Lankan civil war. Despite the well-publicized violence and human rights violations from which they fled, the migrants were not received in the humanitarian spirit for which Canada is known. Instead, because they were able to gather the resources to make the journey to Canada, the asylum seekers were decried as abusers of Canadian generosity, who took advantage of flaws in the refugee system to the detriment of refugees stuck in resettlement camps overseas. Furthermore, unsubstantiated allegations that the passengers were terrorists and smugglers associated with the Liberation Tigers of Tamil Eelam (LTTE) gained traction, due to heightened concerns about international crime which shaped policies pertaining to refugee acceptance after 9/11. The debates surrounding the reception of the MV Sun Sea, characterized as they were by allegations of criminality and suspicion of the migrants, made no mention of Canada’s legal obligations, attained in international treaties such as the 1951 Convention Relating to the Status of Refugees, and reaffirmed in domestic legislation. The perception of refugee acceptance as a charitable act permitted only in the best interest of national security and sovereignty, rather than a legally defined obligation, created the conditions for the maltreatment of the asylum seekers aboard the Sun Sea. Criminalized in media coverage, these victims of a civil war spanning nearly three decades were further victimized by arbitrary and prolonged detention alongside convicted criminals in maximum security prisons, in violation of international law and human rights agreements.

The majority of literature directly related to the events surrounding the arrival of the Sun Sea comes in the form of UN reports, publications from non-governmental organizations such as the Canadian Council for Refugees (CCR), and government records. Among scholarly discussions focusing on Canadian immigration and refugee policy in general, however, there are a number of themes which relate to the implicit attitudes shaping public opinion and perception of asylum seekers. The sociologist Alan Simmons divides the history of Canadian immigration policy into periods dominated by either humanitarian or economic concerns. He argues that the only humanitarian period was from the close of the Second World War until the early 1990s, which was characterized by the acceptance of displaced peoples from Europe and the rise of private sponsorship to resettle victims of the Vietnam War. Significant in Simmons’ analysis is the dichotomy drawn between economic and humanitarian concerns, which permeates debate about immigration policy. The majority of scholars referenced in the following argument express criticism towards the Canadian government out of concern for the individual rights of migrants, and thus fall under Simmons’ “humanitarian” category. However, a number of scholars argue against an open immigration policy on economic grounds. For example, James Bissett describes financial cost as “the most insidious feature of Canada’s asylum system,” in an argument which is also marked by concerns for national security and sovereignty, and a view that the majority of refugee claims are illegitimate attempts to avoid the due process of regular immigration. Ultimately, these “value conflicts” have the potential to distract readers from the fact that Canadian refugee policy is largely defined by the 1951 Convention Relating to the Status of Refugees (Refugee Convention) of which Canada is a signatory. Thus, an underlying goal of this argument is to emphasize the fact that, although both economic and humanitarian concerns are important, the refugee question is definitively answered by Canada’s legal obligations.

The notion of legal obligation guides the methodology of this paper, which compares the mandates of international and domestic legislation to the treatment of the Sun Sea migrants by Canadian authorities. Of principal importance is the Refugee Convention, as well as the Convention Against Torture, ratified by Canada in 1985, the Canadian Charter of Rights and Freedoms, and Canada’s Immigration and Refugee Protection Act (IRPA). Additionally, the analyses of Victoria Esses, Carrie Dawson, and Audrey Macklin provide the analytical tools used to survey media coverage of the Sun Sea’s arrival. In her psychological experiments, Esses identifies three main perceptions of asylum-seekers; as security threats, carriers of disease, and queue-jumpers, or people attempting to circumvent normal immigration procedure. Dawson examines popular political rhetoric which describes Canada as a generous, hospitable nation, arguing that it contributes to the widespread belief that illegitimate refugees are preying on the nation’s benevolence. Finally, Macklin’s analysis of “the discursive disappearance” of legitimate refugees, characterized by the use of the blanket term “illegals,” which functions as a totalizing title rather than a descriptor, is useful here. All of these elements are abundant in media coverage of the Sun Sea.

Finally, a terminological clarification is necessary: the term “asylum seeker” is used throughout this essay to refer specifically to migrants who present themselves at a border and request protection, without pre-authorization from the country in which they seek haven. Although included in the umbrella term “refugees,” this group faces distinct challenges and more hostility than other refugees, who are generally selected from overseas camps, pre-authorized, and sponsored by private citizens, churches, non-government organizations, or the Canadian government.

Undeserving Refugees
In popular discourse, Canada’s international legal responsibilities to refugees are rarely mentioned, obscured by a language of benevolence that characterizes the admittance of refugees as a purely charitable act. Debate surrounding the acceptance of refugees is often divided between those who believe immigration should be restricted to protect economic interests, and those who believe humanitarian duties trump all others. Underlying these debates is the perception that refugee policy is motivated by altruism, rather than duty. While the fact that a significant portion of Canadians support the resettlement of migrants purely out of kindness may be interpreted as indicative of the positive character of Canada’s population, it has a number of negative implications. Rather than acknowledging the individual suffering and resilience of refugees, their stories are often appropriated in nation-building myths, as evidence of Canadian benevolence. For example, a Globe and Mail article about a female Sun Sea migrant reports that the woman is “far too grateful” for her settlement in Canada to resent the authorities’ mistreatment of the migrants upon their arrival. In a quote that would effectively serve as a marketing slogan for Canadian tourism, she says “the weather is cold, but the people are warm.” This narrative minimizes the mistreatment and suffering of those aboard the Sun Sea, tailoring a story of personal hardship to fit into familiar narratives about a friendly, liberating Canada.

Another significant consequence of the ignorance of legal obligations to refugees is a conception of resettlement as a privilege that may be revoked, which leads to the classification of asylum seekers as more or less deserving of Canadian aid. While the Refugee Convention defines a refugee as anybody who is unwilling or unable to remain in their country of origin due to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” the dichotomy of deserving and undeserving migrants that proliferates in media coverage is colloquial and undefined. Thus, it is subject to change in accordance with shifting cultural values and political attitudes.

Emerging from the implicit categorization of refugees as more or less deserving of help is the perception that asylum seekers who present themselves at the border, in contrast to refugees who are selected from resettlement camps, are illegitimate. The Canadian government argues that their selection of refugees from overseas camps is more egalitarian, as asylum seekers tend to be men, while women, children, and other less mobile people are left behind. However, this policy has been criticized as an effort to maintain “the Canadian government’s handpicked diaspora,” in which government officials can exercise discretion in using undisclosed criterion to select migrants they consider more desirable. This argument further contributes to the dichotomy between deserving and undeserving refugees, and what Audrey Macklin calls the “discursive disappearance” of asylum seekers as legitimate refugees. This is demonstrated in the media frenzy surrounding the arrival of the MV Sun Sea. The passengers are frequently referred to as “illegals,” and, as Minister of Public Safety Vic Toews argues, perpetrators of “unacceptable abuse of international law and Canadian generosity.” These characterizations persist despite the protection of “the right to seek asylum and enjoy in other countries asylum from persecution,” outlined in the Universal Declaration of Human Rights, and the recognition of the right to claim refugee protection within Canada in domestic immigration policy. Upon arrival in Canada, the Sun Sea migrants, who may have been familiar with international law and humanitarian principles regarding the rights of refugees, faced a backlash founded on implicit assumptions about the worth of asylum seekers, with no reference to the clearly defined obligations on which they relied for protection.

Allegations of Illegitimacy and Threat
Misinformation perpetuated by major media outlets served to underscore the perception of the Sun Sea passengers as undeserving of Canada’s aid. Many articles state that the Tamils can claim refugee status and resettle in neighbouring countries. This implies that the refugees turned down closer, easier alternatives and chose to spend money and time travelling to Canada, exacerbating the aforementioned fear that Canada is being taken advantage of for its generosity by cunning migrants who do not truly need help. However, as a statement issued by the Canadian Council for Refugees demonstrates, few countries surrounding Sri Lanka are signatories of the Refugee Convention, and therefore, unlike Canada, have no legal obligation to assist asylum seekers. In those countries, Tamil refugees would live illegally and without security, unprotected by the state. The media’s claims, which undermine the asylum seekers’ requests for protection, are unsubstantiated by the legal realities faced by the migrants.

Another piece of misinformation proliferated by media coverage of the MV Sun Sea was derived from a report from the United Nations High Commissioner for Refugees (UNHCR), titled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers in Sri Lanka,” released shortly before the Sun Sea’s arrival in British Columbia. Reporters often used as evidence of the illegitimacy of Sun Sea migrants’ claims to asylum the report’s statement that, because the Sri Lankan civil war had ended, there was “no longer a need for…a presumption of eligibility [of refugee status] for Sri Lankans of Tamil ethnicity.” Some media outlets acknowledged the second half of the UNHCR’s recommendation, that “all claims by asylum-seekers from Sri Lanka should be considered on their individual merits,” although many did not, creating the impression that the UNHCR’s own policies were unsupportive of Tamil claims to asylum. None of the articles surveyed for this research communicated the report’s emphasis on the continued instability in Sri Lanka. This includes accounts of prolonged detention with no charges laid, attacks on journalists and human rights activists, sexual violence against women, including at the hands of the military, trafficking of women and children, and the criminalization of homosexuality. The misrepresentation of this report casts suspicion on the validity of the Sun Sea migrants’ claims, and encourages the public to overlook the complex reality of postwar Sri Lanka to justify their exclusion.

Ignorance of the legal rights of refugees combined with the growing suspicion of the legitimacy of their claims was exacerbated by the atmosphere of paranoia about international crime and terrorism, which intensified after 2001. As a signatory of the Refugee Convention, Canada surrendered a degree of control over who enters the country, which began to be viewed as problematic in the context of heightened fears of foreign criminals. Furthermore, Canada’s humanitarian reputation, which often stood out in contrast to the United States’ less benevolent policies, contributed to the perception that Canada’s immigration system was particularly vulnerable to criminal infiltration. This was exacerbated by the accusations of American politicians and journalists, who, following the 9/11 terrorist attacks, argued that Canada’s “lax” refugee system allowed terrorists to easily enter North America. In this context, the arrival of almost five hundred uninvited migrants, crowded on a poorly equipped boat, acted as a tangible example of the limits of the government’s sovereignty. This international pressure necessitated a harsh response from Canadian politicians. Government officials needed to placate the anxieties of their population, while ensuring that internationally, they were not targeted by migrants looking for an open door to the West. In a statement, Toews emphasized the importance of ensuring that “Canada should not be viewed as an easy entry to North America and that we are very concerned about security issues,” and described the arrival of the Sun Sea as a reminder “that this country is not immune from the global activities of organized crime groups, or terrorist organizations.” In the context of the heightened security concerns of the twenty-first century, the government’s handling of the arrival of the Sun Sea became a political issue, and had the potential to make Canada look like a soft spot in the Western world.

Amid fears of terrorism, the word “illegal” was used consistently to characterize the Sun Sea passengers, functioning not as a description of the actual status of the migrants, but rather as a title encompassing a set of assumptions. The word is used loosely and without discipline, apparently applying to the act of migration itself, as in statements such as “nearly 500 illegal migrants intercepted off the BC coast,” but also in conjunction with specific allegations of terrorist affiliation and smuggling rings. The concept of illegality affiliated with the Sun Sea migrants dominated news coverage; the first reports released after the ship was boarded by Canadian officials contained no details about the individuals on board, only quotes from Toews, calling them “suspected human smugglers and terrorists.” Minimal effort was expended in explaining that the terrorist activities of the LTTE did not involve all Tamil people; nor were there any distinctions made between smugglers and those who were smuggled. The fact that these allegations were unsubstantiated apparently was of little concern. A poll taken shortly after the Sun Sea was intercepted indicates that three-quarters of the Canadians surveyed believed the ship should have been turned away, four-fifths of respondents thought the Tamils were attempting to circumvent the regular immigration system, while almost half believed they should be deported. In the shadow of Canadian hospitality exists a fierce hostility to those suspected of abusing it, one which is stoked by prejudiced, fictitious reporting.

IRPA: Canada’s Legal Response to the Refugee Question
In the interest of national security, the Canadian government introduced legislation in tension with international law. The Refugee Convention mandates that “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened...enter or are present in their territory without authorization.” In contrast, Canada’s Immigration and Refugee Protection Act (IRPA), introduced as a counter to terrorist threats in 2001, permits the arrest and detention of migrants without a warrant “if the officer has reasonable grounds” to believe the migrants are inadmissible, pose a danger to the public, or are unlikely to appear for examinations, proceedings, or removal orders. While this clause is not in direct violation of the Convention, which allows signatories to take “measures which it considers to be essential to the national security,” IRPA does not provide a clear definition of “reasonable grounds.” Thus, the legislation grants unchecked discretion to immigration officers, who, operating as agents of a legal system that lacks the protections of criminal law, such as the presumption of innocence, have complete freedom to arrest and detain people without warrants. The actions of officers are liable to be influenced by personal prejudice and bias, especially in high profile cases such as the arrival of the Sun Sea, in which unproven allegations of criminality and dishonesty characterized the migrants’ reception.

The clause in IRPA which states migrants may be detained “if the officer is not satisfied of the identity of the foreign national,” is more explicitly in violation of the Convention’s mandates. The aforementioned Article 31.1 prevents the imposition of penalties on migrants who are in the country illegally, without visas and identification, while another clause directs signatories to “give sympathetic consideration” to “refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.” These protections are issued in acknowledgement of the fact that asylum seekers face difficulty in obtaining identifying documents from the governments which are persecuting them. Under IRPA, the Immigration and Refugee Board (IRB), which approves or rejects claims of refugee status, does not have jurisdiction to evaluate identification documents produced by detainees. This leaves the acceptance of identity documents entirely to the discretion of individual officers, which undermines the Convention’s protection. Furthermore, there is evidence that, in the case of the Sun Sea migrants, the Minister of Public Safety and Canada Border Services Agency (CBSA) manipulated the loose wording of the act to keep the asylum seekers in detention. Because the act relies heavily on discretion, CBSA would detain migrants if they had no identifying documents, and if they did, officers would declare them fraudulent. This is despite the fact they had accepted the same types of documents from previous Sri Lankan migrants; as one member of the Immigration Division remarked: “the Minister [Vic Toews] has raised the bar on what will satisfy him with respect to the identity of persons on the MV Sun Sea… The method of arrival, that is by ship, seems to have struck a nerve and led to the Minister requiring or setting this higher standard.” This suggests that the loose wording of IRPA allowed officials to manipulate the system in accordance with their personal reaction to the Sun Sea’s arrival, as opposed to objective legal principles.

Furthermore, CBSA, unwilling to accept the Sun Sea migrants’ documents, proved insensitive to the dangers they faced in Sri Lanka. They corresponded with the Sri Lankan government to gain information about the migrants’ identities and, in doing so, revealed the migrants’ names to the very government from which they were fleeing. This had serious ramifications; for example, one passenger had given information to CBSA about the torture he had faced in Sri Lanka. He was told this would remain confidential, and would only be used as evidence in admissibility hearings for other passengers. However, when he returned to Sri Lanka, he was questioned by Sri Lankan authorities about the document, and is believed to have died in their custody. Thus, the structure of IRPA permits CBSA to exercise their power without sensitivity to the fragility of the security of asylum seekers.

Immigrant Detention
The detention of migrants for administrative purposes is allowed by IRPA, mainly to determine their identities and admissibility. In principle, this is quite different from the punitive use of detention in criminal law. However, throughout the twenty-first century, immigration and criminal law have increasingly overlapped. Juliet Stumpf titles this trend “crimmigration,” which is characterized by the criminalization of migrants and the incorporation of the most severe aspects of the criminal system into immigration procedures. Arguably the most striking example of this trend is the use of penitentiaries to house detained migrants. Although CBSA has facilities strictly for immigrant detention, they tend to be small, and are unable to provide extra resources for detainees struggling with mental and physical health issues. For example, in British Columbia, the CBSA detention centre is in the basement of the Vancouver airport, has a capacity of twenty-four, and holds people for a maximum of forty-eight hours. When these facilities reach capacity, migrants are transferred to maximum security prisons, where they tend to be detained longer than migrants who remain housed in CBSA detention. The federal government’s manual on the detention of migrants, intended to provide “guidance to Canada Border Service Agency officers...who are delegated to detain under the Immigration and Refugee Protection Act,” states “that persons are treated in a manner that is commensurate with the level of risk they pose to public safety.” It is unclear how this guideline could be upheld while using penitentiaries for immigrant detention, as less than five percent of detained asylum seekers are suspected criminals, and, in the prisons in British Columbia where the Sun Sea migrants were held, guards are not told which prisoners are migrants. Thus, although the detention of migrants occurs under civil law, detainees are treated and forced to act as if they are convicted criminals, rendering the difference between the two legal systems obsolete in all but title.

Of the 492 migrants who arrived in British Columbia on the MV Sun Sea, 443 were detained. Because of the low capacity of the Vancouver CBSA detention centre, the migrants were immediately sent to provincial prisons, except for unaccompanied children, who were placed in foster care. Children who travelled with their parents were sent to a youth detention centre with their mothers. Women without children were detained at Alouette Women’s Correctional Centre, while men and teenage boys were kept in Fraser Regional Correctional Centre, a maximum security prison. While in prison, detainees were identified by numbers, donned prison uniforms, shared communal underwear, were subject to the same limitations on their mobility as convicted prisoners, granted minimal phone usage, and denied internet. The restriction of communication devices arguably has a more punitive effect for refugees than it does for Canadian criminals, as refugees are separated from their homes and families, and face challenges from a legal system with which they are unfamiliar. Furthermore, because they were forced to wear prison uniforms, and were often shackled, the conditions in which the Sun Sea migrants lived reinforced their perceived illegality. Images of the Tamil asylum seekers shared by news outlets such as the Globe and Mail, depicting faceless refugees in jumpsuits, with shackled feet and hands, further reinforced the ominous and threatening title of “illegal” that shaped the public’s perception of and lack of support for their refugee claims. Furthermore, migrants held in these conditions have reported feelings of dehumanization. For example, one Somali man held by CBSA said “It is like I am not a human being. I am trying to tell the truth and [the immigration officers] treats you like you are lying [sic].” Thus, the criminalization of migrants in detention, and the failure to distinguish between criminal and civil detainees, fuels public misperceptions of asylum seekers, and causes frustration in migrants who are denounced and mistreated for acting within their rights.

CBSA Response
The UNHCR denounces Canada’s detention of migrants as “an exceptional measure in which individuals are deprived of their liberty without the stringent procedural and substantive safeguards of criminal process.” Evidence suggests that CBSA officials were aware of the legal limbo migrants found themselves in as a result of the criminalization of the immigration system, and were willing to take advantage of it to advance their agenda. A confidential CBSA memo obtained by the CCR under the Access to Information Act demonstrates the CBSA’s intentions to automatically detain and criminalize the Sun Sea migrants. Detention is described as “an effective tool against those who circumvent immigration process,” of which the CBSA will “take full advantage.” The use of the word “against” indicates an intention to use detention punitively, as is done in the criminal, but not civil, legal system. Furthermore, the author of the memo encourages cooperation with the RCMP to secure the detention of the Sun Sea migrants, and “ensure that a deterrent for future arrivals is created.” Again, the use of detention in this manner is not legislated under IRPA’s guidelines for administrative detention. The use of criminal punishment in matters of immigration law created a murkiness the CBSA was able to take advantage of, using the detention of the Sun Sea migrants as a punishment and deterrent, without obviously abusing their authority.

In addition to manipulating the use of detention to meet certain goals, the memo indicates that the CBSA intended to prevent the Sun Sea migrants from registering successful asylum claims. The author writes that refugee hearings “will be dealt with aggressively,” and describes the IRB’s high rate of refugee acceptance as a “challenge.” The author’s argument emphasizes the importance of detaining the Sun Sea passengers for as long as possible. To achieve this goal, the CBSA appealed court decisions. When the release of a Sun Sea migrant was ordered by the IRB, CBSA appealed the decision to federal court, a process that took months, during which the migrant remained in prison. Indicative of the distance between public perception of the government’s handling of the Sun Sea passengers and the reality of the situation are media reports which complained that the migrants would “be entitled to make asylum claims, and to appeal every government decision in a laborious, years-long process,” blaming the migrants for what the government was doing. Reports like these demonstrate a lack of empathy for migrants who face indefinite detention surrounded by criminals. Further, this situation demonstrates an alarming willingness on the part of government agents to overlook the principles of the justice system and exploit loopholes within the law for the benefit of their own agenda, and to the detriment of the Sun Sea migrants, who remained in prison.

The manipulation of the law to satisfy a political agenda undermines the validity of the detention of the Sun Sea migrants. The UNHCR states that, “in order to avoid arbitrariness, detention must, in addition to complying with international law, be reasonable, necessary, and proportionate in the circumstances in the individual case.” The detention was not in compliance with international law regarding the rights of children, the protection of refugees, and conditions of detention. Further, because CBSA decided it would detain the Sun Sea migrants automatically, detention was not used as part of an effort to meet administrative goals, as is permitted in IRPA. Additionally, the manipulation of the system by CBSA officials to prolong the confinement of the Sun Sea migrants and prevent the approval of their claims violates international and domestic standards of justice. Considering these violations, the detention of the Sun Sea migrants was arbitrary, in violation of Section 9 of the Charter as well as a number of international treaties, and thus unjust by legal standards.

Charter Implications
Besides contributing to the breakdown of boundaries between criminal and administrative detention, the use of penitentiaries for the detention of asylum seekers infringes on their rights. In the 1985 Supreme Court case Singh v. Minister of Employment and Immigration, in which a refugee claimant sued the government over the unfairness of the procedures then used to determine refugee claims, the court ruled that the word “everyone” used in the Charter applied to all persons physically present in Canada, including those who are waiting for a decision to be made in regards to their refugee status. This judgement sets an important precedent for consideration of the Sun Sea case, namely that the indeterminate status of the migrants, prolonged by the CBSA’s interference in the process of the IRB, did not leave them without constitutional protection.

Section 10 of the Charter states that:

Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Despite the guarantee of these rights, a UNHCR report indicates that some asylum seekers detained in Canada claim to be uninformed of the reasons for their detention. The same UNHCR report alleges that migrants detained in prisons, as opposed to CBSA facilities, have difficulty accessing lawyers. This is especially prevalent in British Columbia. The Fraser Regional Correctional Centre in which the Sun Sea migrants were held is quite far from the city of Vancouver, making it difficult for lawyers to meet with their clients aside from court appearances. Although these rights are explained in pamphlets distributed by the CBSA, titled “Information for People Detained Under the Immigration and Refugee Protection Act,” it is unclear how accessible these are in detention facilities, especially penitentiaries that are not intended for immigrant detention. The importance of communicating these rights to people charged with criminal offences indicates the same should be done for immigrants held in custody, especially considering the fact that, in penitentiaries, they are held in the same conditions as criminal convicts.

Vulnerable People
The detention of people deemed “vulnerable” is of concern in international and domestic approaches to immigrant detention. The UNHCR’s “Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,” published in 1999, insists that “active consideration of possible alternatives should precede any order to detain asylum-seekers falling within...vulnerable categories,” which include victims of torture or trauma. Furthermore, the guidelines state that “minors who are asylum-seekers should not be detained [emphasis in original].” Canadian materials also contain provisions against the detention of vulnerable people, such as the 2001 “Enforcement Manual for Detention,” which includes in this category pregnant women and individuals suffering from mental illness. The manual acknowledges that the detention of vulnerable people may be necessary at times for security reasons, but states that “it should be for the shortest period of time and should be focused on supporting imminent removal.” While these principles are charitable in their intentions, the structure of the detention system prevents them from being upheld. Specifically, in regards to the detention of children and detainees suffering from traumatic experiences, the concentration of discretion in the hands of the CBSA permits the continued detention of “vulnerable persons.”

Section 60 of IRPA and international documents such as the Convention of the Rights of the Child emphasize that the detention of children should only be used as a last resort, and for the shortest amount of time possible. However, in situations such as the arrival of the Sun Sea, in which asylum seekers are detained automatically and en masse, the rigidity of CBSA procedure prevents the provision of safe and healthy conditions for the children of detained migrants. In a 2012 study conducted by a group of psychologists on the impact of detention on asylum seekers’ mental health, which includes a survey of the Sun Sea migrants, Cleveland et al argue that placing the children of detained parents in foster care is harmful for the child, may trigger PTSD, and “should not be viewed as a viable alternative to detention.” Furthermore, the report includes a case study on an eleven-year-old girl who, over the course of only four weeks in detention, developed “profound refusal, weight loss, tearfulness, and sleep difficulties.” Although her symptoms improved after her release from detention, she continued to suffer from nightmares, in which she dreamt her parents were taken from her. In another case study, children who were detained for only five days continued to struggle with “anxiety, sleep problems and irritability, and met diagnostic criteria for PTSD,” a full year after their release. These findings, which demonstrate that neither foster care nor remaining in detention with a parent is in the best interest of children, are significant in consideration of the Sun Sea migrants, as mothers and children from that group were detained for up to seven months.

If the Canadian government is as committed to protecting children as its legislation implies, alternatives to detention, at least regarding mothers with children, must be considered. However, the government’s stated intention to avoid the detention of minors is undermined by a lack of transparency regarding statistics. Children born while their mothers are in detention are not included in CBSA records. Furthermore, many children are considered “guests,” and technically are not legally detained, and are also absent from statistics. Therefore, there is no certainty regarding the number of migrant children detained by the CBSA at any given time. These measures cloud the unsavoury realities of immigrant detention, and indicate an unwillingness to address these systemic flaws.

Included in the definition of vulnerable people are those suffering from mental illness. However, the Cleveland report indicates significantly high rates of trauma and mental illness among detained migrants. For example, the study surveyed two groups of asylum seekers, only one of which had been detained. Both groups were presented with different categories of traumatic events, such as the murder of a family member or friend, assault, forced separation, and threats or harassment by the government. In both the detained and non-detained groups, the average number of traumatic experiences was nine, which the study notes “is an exceptionally high level of trauma exposure.” The study found that asylum seekers who were detained for an average of only eighteen days were twice as likely to experience PTSD and had depression rates fifty percent higher than those who were not detained, as well as higher rates of clinical anxiety. Thus, despite the very similar levels of trauma, asylum seekers who were detained suffered far more than those who were not. The report describes this dynamic as “retraumatization” triggered by imprisonment, indicating that detention precipitates new symptoms of mental illness in asylum seekers. In light of these findings, CBSA must be understood to be either uncommitted to the protection of vulnerable people, or unaware of the health problems of detainees in their care.

Despite the media’s efforts to undermine the Sun Sea migrants’ claims to asylum by arguing that conditions in Sri Lanka no longer merited protection, a survey of the migrants included in the Cleveland report demonstrates the extent of their traumatic experience. Of the twenty-one Sun Sea asylum seekers who were interviewed, fifteen had been tortured. One man’s description of being tortured is included in the report, to demonstrate the severity of human rights violations in Sri Lanka. He describes “being hung upside down for hours, lowered into a water trough, beaten with plastic pipes filled with sand, and subjected to a mock execution.” All of the migrants surveyed described witnessing violence, death, and the destruction of their communities during the war, as well as post-war confinement in camps marked by inadequate infrastructure. In these camps, the migrants were at risk of arbitrary arrest by the ruling authorities. Furthermore, the months-long journey on the Sun Sea was marked by inadequate supplies of food and fresh water, cramped living conditions, and concluded with the separation of families and the placement of the migrants in detention. Unsurprisingly, considering the trauma experienced by these asylum seekers, detention proved especially harmful. About three-quarters of the Sun Sea migrants surveyed “reported major sleep problems, nightmares, and intrusive thoughts.” Significantly, the nightmares were not solely related to their experiences in Sri Lanka, but included “images of being re-arrested and questioned by Canadian authorities or being deported to Sri Lanka to face persecution.” The looming threat of force and deportation proved traumatic to the Sun Sea migrants, who had already spent the last two and a half decades living in a notoriously inhumane war zone. This significantly weakens the CBSA’s claims of concern for the protections afforded to vulnerable people, and suggests that detention was not only difficult for the migrants due to their past trauma, but actively created new traumatic experiences.

The actions of CBSA officers played a significant role in the suffering of Sun Sea migrants while in detention. Although the “Enforcement Manual on Detention” encourages officers to “show concern” for detainees exhibiting signs of distress, all of the Sun Sea migrants surveyed in the Cleveland report identified the aggressive, confrontational interrogations conducted by immigration officers as their worst experience in Canada. Immigration officers accused detainees of lying, questioning each respondent from three to twenty times, in interviews spanning from two to eight hours long. It was their demands that the migrants repeatedly recount painful experiences from wartime that troubled the migrants the most, driving one to contemplate suicide within the course of the interrogation. In an interview included in the Cleveland report, one woman who arrived on the Sun Sea explains:

The worst thing that happened to me here was that CBSA kept asking me questions about the incident that caused me so much pain...We were all in a bunker...A shell fell on us. My uncle died that day, and so did my grandparents who had brought me up...All those who were not completely inside the bunker were injured or killed. CBSA asked me again and again to repeat this story, again and again, although I was crying. It caused me so much stress and pain.

In the case of the Sun Sea migrants, the CBSA officers were not passive agents of a system that triggered retraumatization. They did not simply provide the conditions for suffering, they forced it, through maliciously harsh techniques employed with the aim of excluding a group of refugee claimants from the protections to which they were entitled.

Human Rights Violations
The detention of the Sun Sea passengers violates international law in its purpose, conditions, and motivations. While many of these transgressions, such as the manipulation of IRPA’s vague wording, or the intersection of criminal and administrative law, require a thorough legal analysis to be exposed, it is also apparent that officials contravened basic human rights codes and principles. For example, Article 5 of the Universal Declaration of Human Rights declares that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,” a clause which is reinforced domestically by Section 12 of the Charter. As this essay argues, the CBSA’s treatment of the Sun Sea migrants fostered feelings of dehumanization and deliberately, especially in the employment of aggressive interrogation techniques, caused significant mental anguish among the migrants. This treatment, which surely would not be tolerated if directed towards Canadian citizens, plainly qualifies as cruel, inhuman, and degrading.

The question of torture, included in Article 5 of the Universal Declaration of Human Rights, requires separate analysis. The Convention Against Torture defines torture as “any act by which severe pain or suffering, whether physical of mental, is intentionally inflicted on a or at the instigation of or with the consent or acquiescence of a public official.” This clause is related to the prohibition of cruel and inhuman treatment, as the same actions which qualified as cruel were responsible for the “severe pain” of the Sun Sea migrants, evidenced by the Cleveland Report’s findings on their deteriorating mental health. The conditions of torture are further satisfied by the fact that CBSA officers were acting in an official capacity, directed by the agenda of Minister Toews. The Convention Against Torture’s definition concludes with the statement that torture “does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions,” a condition which on first impression seems to eliminate the Sun Sea episode on account of the fact that the migrants were detained under a highly developed legal system. However, as this essay aims to establish, the conditions of the detention, namely that it was automatic, prolonged, and used punitively rather than administratively, effectively render the detention arbitrary. Thus, the suffering of the Sun Sea migrants was not “incidental to lawful sanctions,” and satisfies the Convention Against Torture’s definition. To accuse Canada of torture may seem overstated, due to its generally responsible justice system which is more faithful to the rule of law than a number of other countries, which offer drastically worse conditions of imprisonment and methodically employ torture techniques. However, in keeping with the methodology of this paper, a comparison of legal definitions of torture with the actual events in the Sun Sea case supports the conclusion that the government violated the Convention Against Torture, and thus the Universal Declaration of Human Rights, in its unlawful infliction of mental suffering on the Sun Sea migrants. These violations underscore the fact that these events are not only of concern to the exacting standards of legal scholars, but defy basic, internationally agreed-upon principles of human rights.

The Sun Sea migrants were released gradually over the months following their initial detention. The earliest migrant to be released, a young mother, was let out of detention in September 2010, a month after arriving; the rest of the female detainees were released by March 2011. The remaining men were released by May 2012, except for those awaiting criminal charges for human smuggling. 228 of the migrants were accepted as refugees, while the claims of 116 were rejected, and a further 20 were withdrawn. Although the incident has largely been resolved, the questions and anxieties raised by the Sun Sea’s arrival have continued to be used as fodder for political arguments. The public statements issued by Minister Toews, as well as his continued involvement in the determination process of the Sun Sea migrants’ claims, are a testament to the extent to which refugee acceptance was perceived as a political issue, as opposed to a legal one. Neither the media storm surrounding the ship’s arrival, nor the high cost of detaining the migrants, which exceeded 22 million Canadian dollars, acted as an impetus to strengthen the loose wording of IRPA to prevent future exploitation. Instead, in response to the Sun Sea situation, Toews introduced a draconian amendment to the act, called Preventing Human Smugglers from Abusing Canada’s Immigration System Act. If it had been passed, it would have introduced mandatory twelve-month detention for groups who had not been pre-authorized to enter Canada, as well as a five-year delay on permanent residency after claiming refugee status, in which time family reunification would be prevented. Although the amendment was rejected, the fact that the Sun Sea experience was used to argue for a need to make immigration laws stricter is indicative of the political climate at the time, marked by a frustrated impotence in the face of unwanted asylum seekers and an unwillingness to provide them with the protections they are guaranteed.

A 2002 Supreme Court of Canada case, Suresh v. Canada, overturned a deportation order for a Sri Lankan refugee suspected of LTTE involvement on the principle that it is unjust to deport somebody to a place they will face torture. In her judgement, Justice Beverley MacLachlin ruled that “it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to our values.” In this instance, Canada’s values were referenced in a decision to uphold the country’s legal responsibilities and act according to humanitarian principles. However, in the Sun Sea incident, Canada’s humanitarian history was consistently referred to as a weakness by politicians interested in restricting the refugee system, a tactic which was strengthened by the media’s portrayal of the migrants as criminal and illegitimate. These groups were successful in portraying Canada, an expansive, wealthy, industrialized country, as threatened by the arrival of a group of dehydrated, traumatized, and desperate men, women, and children, who had spent their entire life savings on a months-long journey on a rusty ship. Therefore, to some extent, the rights and dignity of the Sun Sea migrants were sacrificed to preserve Canada’s self-identity, raising the question of the value of this identity when it is accepted without scrutiny.

The complacency bred by the self-satisfied Canadian appreciation of its own kindness has allowed the human rights violations characterizing administrative detention to continue. For example, in 2015, a man named Abdurahman Ibrahim Hassan who came to Canada as a Somalian refugee in 1993, died in Ontario’s Central East Correctional Centre (CECC). His permanent residency had been denied after he was charged with a few petty crimes, and, awaiting deportation, CBSA organized his detention at CECC, a maximum security criminal penitentiary. At the time of his death, he had been detained there for over three years, with no charges laid. His family was not informed of the details of his death until the release of a graphic press release, about which they were not consulted. The press release describes an outburst from Hassan, who suffered from schizophrenia and bipolar disorder, to which armed police officers responded by sedating him and using a towel to hold down Hassan’s face until he died. This tragedy, which was by no means an isolated incident, underscores the inadequacy of mental health services in detention centres, and serves as a reminder of why “vulnerable people” should be recognized as susceptible to particular difficulties in detention. This incident was reported online by the End Immigration Detention Network, an organization committed to advocacy for detainees, the very existence of which speaks to the lack of concern for or representation of these people in popular discourse about immigration.

From 2000-2017, at least sixteen people have died as a result of detention conditions. Countless others have faced prolonged, arbitrary detention with no maximum limit, in conditions which trigger retraumatization and psychological scarring. This continues contemporaneously with the government making grand humanitarian gestures, such as the acceptance of large numbers of Syrian refugees. These inconsistencies speak to the prevalence of the dichotomy between deserving and undeserving refugees, which, guided by no obvious standards, deems some groups worthy of a hero’s welcome upon arrival in Canada, and others undeserving of basic dignity. To some extent, it seems counterintuitive to criticize Canada, a country with a humanitarian track record which outshines the majority of other developed nations on earth. However, a benevolent history does not excuse current injustices, nor does a politicized humanitarianism serve the needs of the people which it claims to protect.

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Government Sources:
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Canada. Immigration and Refugee Protection Act, 2001 S.C. 2001, c. 27.

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