Torys Quarterly: The Cross-Border Update
Separating children from their families is immoral and inhumane.
It is shocking that anyone has to write that sentence. And shock only begins to describe reactions to the crisis in the U.S. For many Canadians, the recent turmoil around the Trump Administration's "zero tolerance policy" and the thousands of children that are still left separated from their parents after an executive order ended that policy has defied belief.
What has been ignored by the Trump Administration is the fact there are two equal wrongs defining this crisis: family separation and child detention.
Hearts all over Canada were broken by the unspeakable sights and sounds of babies and children being torn from their parents and kept in cages. #EndFamilySeparation became the banner cry on social media as many Canadians issued desperate pleas to our southern neighbours and allies. Federal court orders to reunite families and ban the long-term detention of children are steps in the right direction, but longer term solutions are required, especially given the U.S. government appears to have no concrete plan for family reunification.
What has often been ignored by the Trump Administration throughout the course of this crisis is the fact that there are two equal wrongs defining this crisis: family separation and child detention. It is simply not good enough to put an end to one. All child detention is known for its ability to traumatize and damage children at an alarming rate that worsens the longer the detention goes on.
As Canadians have watched this crisis play out over the last several months, the story of Canada's own very recent change in approach to holding children in immigration detention centres has come into the spotlight. At Torys, we have been fortunate enough to provide pro bono legal services, along with countless other lawyers, to advocate against Canada's past practice of detaining children in immigration detention centres.
Mohammed's Story
Consider the experience of Mohammed (not his real name). In 2016, Mohammed's family fled Syria for a neighbouring country, but once he turned 16 he could not stay there. Mohammed planned to take asylum in Canada, where he had family. According to the Safe Third Country Agreement, Mohammed should have been permitted to claim asylum upon arriving in Canada through the U.S. as an unaccompanied minor
Mohammed's parents accompanied him on a plane to the U.S. and were to return back to their home before Mohammed crossed the border into Canada. Mohammed made a claim for refugee protection on his arrival in Canada. But because his parents' flight was delayed, it meant that they were still on U.S. territory when Mohammed arrived at Canada's border. CBSA detained Mohammed on this technicality.
Like the U.S. rationale that separating children from jailed parents somehow protects the children, CBSA claimed solitary confinement was for Mohammed's protection.
Mohammed was held in solitary confinement for three weeks. He was stuck in a purgatory: "too old" to be held with younger children and their mothers and "too young" to be held with adult men. Like the U.S. rationale that separating children from jailed parents somehow protects the children, CBSA claimed that solitary confinement was for Mohammed's protection. Only after significant pressure did the government agree to his release.
Finding a New Way
At the time of Mohammed's detention, Canada was detaining an average of 48 Canadian children per year. Between 2011 and 2017, about 200 children were detained, according to the CBSA. Children were being held in centres in Toronto and Montréal set up like jails, surrounded by razor-wire fences and staffed by guards. The children were denied regular access to schooling, exercise, regular socialization, and a real childhood. Some of these children were Canadian citizens born here to detained immigrant parents.
For the most part, children were being held with their parents. However, in some cases, children were being held in solitary confinement and treated as if they had been found guilty of a serious criminal offence. Of course, many of the immigrants held in detention have never been convicted, let alone charged, with any crimes.
Canada should continue its attempts to be transparent about our own past and revised practices to work to convince our U.S. neighbours to follow our lead.
This policy of detaining children in immigration detention centres was finally addressed after dedicated advocacy from lawyers, medical professionals and human rights organizations, including the International Human Rights Program at the University of Toronto.
In November 2017, the Minister of Public Safety directed the best interests of the child be a primary consideration for CBSA decision-making. CBSA must "stop the detention or housing minors and family separation, except in extremely limited circumstances." It must "preserve the family unit." And it must ensure that any detention or separation of a minor from his parents be "for the shortest time possible." Finally, to guard against the horrific treatment suffered by Mohammed CBSA must "never place minors in segregation."
The Need for Change
While Canada's history has not been without its share of issues, these new policies show there are alternatives to separating families and detaining children. Change is possible. CBSA will apparently be announcing new alternatives to detention in the coming weeks. When it does, our government should continue to share Canada's story of the alternatives to detention that are used when children arrive at the Canadian border. We should continue its attempts to be transparent about our own past and revised practices, working to convince our U.S. neighbours to follow our lead.
#EndFamilySeparation cannot be the end of the story. We need to work together to #EndChildDetention.
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