Alternatives to detention
Across Canada, the coronavirus crisis has accelerated the adoption of vast surveillance technologies—from contact-tracing through phones, to apps built into automatic Apple and Google OS updates, from systems that allow citizens to report neighbours who violate COVID safety precautions to at-home surveillance of remote workers. But while these invasive surveillance technologies are only beginning to be normalized among the larger Canadian public, they have been more commonly deployed among our most vulnerable communities.
The use of surveillance technologies to track migrants’ movements came as a response to mounting opposition to long-term migrant detention. Despite legal efforts to challenge the legality of long-term detention, such as the 2018 case of Alvin Brown, Canada still does not have a maximum term on migrant detention. This allows the state to indefinitely hold migrants in prison while they await decisions or appeals on their status.
Pressures on successive Conservative and Liberal federal governments have resulted in the introduction of a controversial “alternatives to detention” pilot project by the Canada Border Services Agency (CBSA). In 2016, then Minister of Public Safety Ralph Goodale, announced a $138 million budget for the National Immigration Detention Framework. While most of the funding is allocated to construction of new, maximum-security migrant prisons in Laval and Surrey, $5 million of the budget is earmarked for surveillance.
The program includes biometric voiceprint technology for phone reporting and electronic monitoring (EM) equipment that uses GPS or radio frequency. It also includes “community case-management and supervision” partnerships between the CBSA and select NGOs like the Salvation Army, the John Howard Society (JHS), and the Toronto Bail Program.
Migrant surveillance is not only discussed by politicians and bureaucrats in the same breath as “offender rehabilitation,” but the program’s management embeds migrants more deeply into Canada’s carceral system. The electronic monitoring program is outsourced by the CBSA to Correctional Services Canada (CSC). According to a Memorandum of Understanding signed in 2018, the CSC provides the CBSA with EM equipment and monitoring services. CBSA spokesperson Louis-Carl Brissette Lesage confirmed that “all contractual arrangements related to the technology are managed by CSC.”
Brissette Lesage stated that the biometric voice application was developed by the CBSA using technology supplied by Connex, a Richmond Hill-based network communications provider. Brissette Lesage also confirmed that the CBSA is operating electronic monitoring equipment under a contract with JEMTEC Inc., a Vancouver-based firm that provides CSC with GPS, S.T.O.P. (Satellite Tracking of People) equipment, and radio frequency systems. Signed in 2018, this latest contract with JEMTEC is worth just under $2.3 million.
JEMTEC’s history of lobbying the Canadian government for electronic monitoring services illustrates how private interests helped shaped the CBSA’s “alternatives” to incarceration. JEMTEC’s lobbying of the government goes back two decades, as the company had already hired consultant lobbyist Graham Hardman of Hill and Knowlton Canada back in October 2000 in connection with government procurement of JEMTEC’s electronic monitoring technology.
When asked about what data CSC collects through the surveillance devices, CSC spokesperson Esther Mailhot referred to location data that is “stored internally on each agencies [sic] infrastructure.” She said that “EM movement data is stored on S.T.O.P. servers, however, none of this data is protected and personal.” S.T.O.P. is a private, Texas-based company that is owned by Securus Technologies—another Texas-based prison communications firm that has been criticized for offering services to police in the United States for tracking cellphones without court orders.
When asked about the CSC’s protocol for responding to alerts on people, Mailhot did not provide a detailed response, but stated that alerts are monitored through the CSC’s National Monitoring Centre. “They are assessed and the necessary response protocols are invoked depending on the specific alert.” But the CBSA has explained that if a GPS sends an alert, the CSC gets notified and makes contact, although the CSC would apparently notify the CBSA of “attempts to resolve” alerts.
If the pilot project is deemed successful, the CBSA aims to unroll the program nation-wide. But all of these methods raise questions about data collection in Canada, as well as moral issues of personal dignity, civil liberties and privacy rights; especially as COVID-19 has clearly escalated national rhetoric around surveillance technologies more broadly.
Already, with little public debate about the implications of using surveillance technologies to track migrants, Canada is seeing the wider adoption of migrant surveillance beyond the scope of the CBSA’s pilot project that has so far been mostly conducted in the Greater Toronto Area.
Following recent hunger strikes by detained migrants protesting the dismal conditions in migrant prisons, the CBSA has pushed for wider use of surveillance for released detainees. While there haven’t been many reported cases with the GPS overall, members of Solidarity Across Borders, a migrant justice collective based in Montréal, confirmed that Québec has seen an increase in the option of GPS ankle bracelets for detained migrants.
“While it can be better to be outside rather than inside a detention centre,” said Costanza Graziani of Solidarity Across Borders, “it is important to keep in mind that these ‘alternatives’ do remain a form of incarceration, as they keep limiting migrants’ mobility and their control over their own lives.”
“Tracking bracelets had not been pushed as a condition of release from immigration detention in this context before,” members of Solidarity Across Borders confirmed, regarding the adoption of GPS under COVID-19. They also noted an increase in the CBSA’s requests for parole-style oversight by the Québec branch of the John Howard Society as a condition of release.
The CBSA describes the Alternatives to Detention program as based on “risk assessment”—whether a migrant poses a “danger to the public,” might not appear for immigration proceedings, or their identity has not been sufficiently established. The surveillance programs are currently voluntary, based on the recommendation of a lawyer or case-worker. Asylum seekers on the surveillance programs usually have irregular status and may be unable to claim official refugee status, or are awaiting a hearing to grant their stay on humanitarian or compassionate grounds.
Mac Scott, an immigration consultant with legal firm Carranza LLP and migrant justice activist in Toronto, described his own experience advising on the migrant release program, despite opposing the use of surveillance methods. “I have, to be honest, argued to get clients out on it, just because it’s better than being in jail,” he described. “But I don’t like it. I think it’s intrusive.”
Scott noted that he has been able to refer clients, or detained migrants have themselves been able to call the Toronto Bail Program to request release. There are some benefits to the Toronto Bail Program, Scott explained, as it contributes to settlement including assistance with work permits and healthcare. The referral process, he also noted, “means they’re not completely beholden to the CBSA, though they have a somewhat cozy relationship with them.”
Scott also said that the programs similar to the Toronto Bail Program introduced across Canada would not be at arm’s length from the CBSA. “[The] only people who will go to those programs will be people that the CBSA decides they want to release,” Scott explained, “which means that there’s no ability for someone just to call them up and ask to be put on it.”
In their experience, Solidarity Across Borders members have found that legal proceedings don’t allow lawyers enough time to pursue other options or even properly inform their clients about their alternatives. “As soon as a bracelet means an easier argument for release, we can see it becoming then ‘the only option’,” Graziani explained, “while other options, which were always present, stop being considered.”
“It’s still de facto a jail”
While the CBSA’s Alternatives to Detention program supposedly gives migrants more freedom to move and be in their communities, it comes with its own ethical and legal challenges. GPS ankle bracelets, for example, create the illusion of providing freedom because a person is not technically incarcerated, but the effect is still that of an open-air prison.
Patti Tamara Lenard, a professor of Applied Ethics at the University of Ottawa, described the surveillance methods as coercive and as a “problematic deployment of force against people who have no way to combat that force.”
As Lenard observed, for people with precarious status, that state of vulnerability is created “not only because people don’t think that they’re members of our community, but also because their status is contingent on our willingness not to kick them out.”
Lenard explained how the perceived need for surveillance gives legitimacy to state fears that, while out of detention, people will abscond, or disappear, based on the CBSA’s “risk assessment”. As she noted, “the overwhelming evidence suggests that under conditions where they are adjudicated fairly and quickly, they do not abscond. […] So the choice to move to surveillance is a choice to acknowledge the legitimacy of the state’s worry.”
A report for the United Nations High Commissioner for Human Rights cites data showing that “asylum seekers who reach their ‘destination’ country are unlikely to abscond because they have a vested interest in remaining in the territory and in complying with the asylum procedure.” The report also states that “there is a real risk of certain alternatives, such as electronic tagging, being misapplied to asylum seekers who would not and should not otherwise be detained, thereby becoming an unnecessary restriction on their freedom of movement and other rights.”
Lenard also expressed concern with organizations other than CBSA collecting information about people’s immigration status. “I think it’s a bad idea,” she said. “Border control should only be done by CBSA.” As she explained, the involvement of a social service organization like the Salvation Army can make migrants “feel anxious about taking advantage of those services because of the ways in which they will come to the attention of authorities.”
“No other organizations should be implicated in the job of policing immigrants,” Lenard stressed.
The Community Case-Management and Supervision Program is billed by the CBSA as intended “for persons that remain compliant with the CBSA but who may lack a bondsperson, or who require social service support in addition to a bondsperson to mitigate risk upon release into the community.” But with little transparency from the CBSA, migrant justice activists have been uncertain about the scope of CBSA’s partnerships with the Salvation Army and the John Howard Society.
The collaboration with JHS—which involves parole-style oversight with its local affiliates like its Québec branch—already situates the treatment of migrants deeper within the context of “criminal rehabilitation” that JHS focuses on, and amounts to an escalation of community policing.
Sharmeen Khan, an activist involved with No-one is Illegal (NOII) Toronto for almost a decade, described the surveillance methods as a complicated choice. “We definitely take their lead on that,” she said of NOII’s support work with detained migrants. “We don’t try to pressure them with some political agenda, and we really try and talk through different options with them.”
But with or without proper information, migrants are at greater risk of accepting conditions that are invasive and may violate their rights. “I don’t think there’s a full understanding when folks accept,” said Khan, “of what that life looks like when you’re under that kind of GPS surveillance.”
Khan, who was involved with NOII’s Sanctuary City campaign, noted that the involvement of NGOs like the Salvation Army can pose problems for cities that have pledged to be Sanctuary Cities, like Toronto and Montréal. This pledge should mean that social services like food banks, shelter, healthcare and education are available to everyone, independently of their immigration status, and without fear of intervention by police or deportation by CBSA. Nonetheless, the UN Refugee Agency has commended the use of NGOs and shelters as alternatives to migrant incarceration.
Mac Scott, who had clients participate in the program, described the Salvation Army’s separate residence where released migrants would live. While the Salvation Army provides some support services and is more comfortable than being held in a migrant detention centre, Scott said, “it’s still de facto a jail.” Basic freedoms to be within a community, like going to a bar or an event at night, are disproportionately restricted. “If you have a partner,” he noted as an example, “you can see them, but only at certain times.”
Scott also mentioned additional threats to migrants when working with the Salvation Army, which is a privately-funded Christian organization. “You’re dealing with a certain amount of stigma if you’re queer,” he noted, “I don’t think they push it anymore, but I know clients of mine who have stayed in the Salvation Army shelters—they’ve had to go to services to keep them in the shelter.”
This collaboration with the CBSA creates an incentive for government-funded organizations to make decisions for the most precarious community members, all the while shifting a portion of CBSA’s accountability. According to the CBSA, the Community Case Management and Supervision partners work with their own sub-contractors like doctors, mental health counselors, and therapists, who can, in turn, collect their own information about migrants.
The CBSA’s surveillance methods are ultimately used on those who are most vulnerable: irregular migrants seeking to transition to regular status, who are in a legal limbo and are thus considered undocumented. While waiting for a decision on their status, many are forced into an underground economy, such as working low-paying, unprotected jobs in the service industry.
Khan pointed out that GPS tracking could identify places of employment and put undocumented workers at risk of being apprehended. “That creates a sense of marginalization, but it also has health implications,” she said. “Especially if people want to be making money to survive, but also for any form of supports that they need for health reasons, or for accessing family support.”
Khan described how migrants may easily become undocumented if they lose their working visas while employed in precarious industries. Temporary agricultural workers, for example, have to face notoriously exploitative working conditions on Canadian farms, where they can be unfairly dismissed, or may have to leave due to abuse, sexual harassment or injury.
Scott described his own experience with CBSA agents misleading migrants on their ability to work. “I’ve had clients who have been told that they shouldn’t work when they can,” he said.
The parole conditions that are enforced by the CBSA and CSC also strain families and relationships where loved ones may have to be accountable for surveillance. “It tears communities apart, it tears families apart,” said Scott. “People are released into the community with a bondsperson who often will be their partner, their lover, their family member. The bondsperson de facto becomes the jailer.”
“It creates all sorts of stress,” he said, “and I’ve seen it tear families and partnerships apart—because of the stress and because of the stress on the relationship.”
Lenard, who has conducted research into the way surveillance is used on Muslim communities in the United Kingdom, also noted that GPS ankle bracelets could actively discourage people with precarious status from going to community spaces, including places of worship, to avoid attracting unwanted attention to their communities. In Canada, CSIS and RCMP already target Muslim communities with surveillance, sending undercover officers into mosques and other places of worship.
“They might be worried about bringing attention to a particular religious community, a particular family, a particular cultural group,” Lenard explained, “so they might, even though they have the bracelet, stay away.” Surveillance of any type, as Lenard noted, raises concerns that it will “catch information about people who are not already on the radar.”
Migrant justice activists, including Mac Scott and members of Solidarity Across Borders, have expressed concerns with being on the surveillance radar themselves, particularly with the close integration of the Canadian immigration and criminal systems. Khan also confirmed these worries around the collection of location data which could identify activist spaces of organizing.
“I think the biggest annoyance, or fear, of the state has been the community support that folks with precarious status or without status have,” Khan explained. “We do have fears about if some of those folks seek us out, they might want to come to a meeting, start using their experience in terms of political organizing—which is their right, it’s their right of freedom of association—we are worried about what that kind of tracking will show.”
“We’ve had undercover police infiltrate our group before. We’ve had undercover police infiltrate our allied groups, like anti-mining groups. These are all groups that engage with, or want to build relationships with, very marginalized people—especially those with precarious status, because it impacts them.”
Choosing compassion over fear
One of the core issues underlying the use of surveillance as an alternative to migrant detention is that these restrictions by the CBSA and CSC is that migrants without status are treated as if they have committed a criminal offence, and integrated into the carceral system.
“Rather than working with people and achieving a road to status in some capacity,” said Khan, “they’re criminalizing them further and, I think, creating more dangerous circumstances for migrants that push them further underground.”
The CBSA has gone to great lengths to create an environment of intimidation and fear. Scott emphasized how institutionalized this is through the environment at Toronto’s reporting centre for released migrants, which is located over an hour away in Mississauga. CBSA officers wear bullet proof vests and carry guns, “They’re carrying a Glock on their hip,” he explained. “I’ve had clients who have done their phone reporting and something screwed up in the technology, and they got called in for an interview, and it’s very scary. Those interviews are very scary.”
Scott described how CBSA officers would bully his clients, including a man who was illiterate and spoke English as a second language. Without informing Scott or other council when the client was called in, Scott related, the CBSA officers “would just push him around, and basically try and bully him into agreeing to things that he really didn’t need to agree to.”
Describing other experiences, Scott brought up an example of racial profiling of a client by Toronto police, who alerted the CBSA that the man didn’t have status. The man was deported before a lawsuit could be launched. “It’s kind of a perfect crime,” said Scott, “your person’s gone before they can actually make an accusation.”
With wider availability of the CBSA’s surveillance program at the moment, establishing an appeals process and transparency mechanisms is crucial, as there is currently no civilian method to hold the CBSA accountable. There is only a Recourse Directorate that is internal to CBSA, for “compliments, comments and complaints,” despite recent reports on over 500 allegations against CBSA staff in two years—including sexual harassment and bribery. The integration of CBSA and CSC’s surveillance and data collection also requires the Canadian government to make a statement about data privacy and transparency for public accountability.
Migrant justice activists providing support during ongoing legal cases have also pointed to the need for an overhaul of an immigration review process that is inefficient, based on arbitrary criteria, and that ultimately creates the conditions that require either long-term detention or purported alternatives like surveillance technologies. The values on which the Canadian immigration system is based have created a dehumanizing process driven by excessive fears.
Alternatives to migrant detention don’t have to involve surveillance. Comprehensive regularization programs can offer a path to a more humane future by putting an end to the incarceration, surveillance and deportation of undocumented migrants solely for falling through the cracks of official status. By eliminating the stigma and criminalization of asylum seekers, and challenging unfounded state fears, our communities can better recognize the humanity of migrants and their complex situations, and welcome them openly as part of our communities—communities in which they already live and labour.
Lital Khaikin is an author and journalist based in Tiohtiá:ke (Montréal). She has published articles in Toward Freedom, Warscapes, Briarpatch, and the Media Co-op, and has appeared in literary publications like 3:AM Magazine, Berfrois, Tripwire, and Black Sun Lit’s “Vestiges” journal. She also runs The Green Violin, a slow-burning samizdat-style literary press for the free distribution of literary paraphernalia.