Summary

I remember a time when it felt like everything in life stopped. There was no living or moving forward. I don’t remember a lot of the feelings. I just remember looking at walls.

—Prosper Niyonzima, incarcerated in immigration detention in 2012-2016, November 2022

In 2013, Prosper Niyonzima stopped communicating. According to an external audit of Canada’s Immigration and Refugee Board, he experienced “a complete mental collapse after 16 months in [immigration] detention, when his [permanent resident] application was refused.” He remained unresponsive for the next three years in detention, and during this period, the auditor observed, “his mental health situation is increasingly cited in [detention review] decisions as demonstrating that he would be a flight risk and a danger to the public if released. … Decisions repeatedly find that because he is non-verbal and virtually immobile, he cannot be trusted to report to [the Canada Border Services Agency].” Prosper could not participate in his legal proceedings, but his monthly hearings went ahead because the tribunal appointed a “designated representative” for him—a person empowered to make decisions and speak on his behalf. The designated representative never communicated with Prosper, but continued to represent him over the course of two years at detention review hearings. The auditor noted:

The presence of the [designated representative] seemed to give the [tribunal] the assurance that all was in order but meanwhile the detained person had never spoken to the [designated representative] and was being held in a catatonic state, off his medication and without proper treatment. The one time he was brought into the video room for a hearing, he seemed unaware of his surroundings and just put his head down on the table.

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Every year, thousands of people are deprived of their liberty in Canada’s immigration detention system. Since 2016, of the 45,000 people placed in immigration detention, over 90 percent were held on grounds unrelated to public safety—most commonly because authorities believed they may not appear for an immigration proceeding. Many people experience severe consequences for their mental health, some with lasting effects that

haunt them years after they are released from detention. Persons with disabilities, including mental health conditions, experience discrimination throughout the detention process. As in Prosper’s case, in addition to being deprived of their liberty in detention and placed in solitary confinement, persons with disabilities can be stripped of their legal capacity rights.

Based on research conducted between March and June 2024, including interviews with eleven lawyers—three of whom also worked as designated representatives—and a leading disability rights expert, as well as three people who were previously detained and had designated representatives, Human Rights Watch documented violations of legal capacity rights that persons with disabilities face in immigration detention. In the years since the 2018 external audit, there have been no federal legislative or regulatory changes to increase legal protections for persons with disabilities under the designated representative regime in Canada’s immigration detention system. The guideline of the Immigration and Refugee Board, which determines whether an individual should remain in detention, continues to maintain the authority of designated representatives to make substitute decisions on behalf of those being detained, in violation of international human rights standards.

When they operate in supportive roles, designated representatives can be invaluable help in navigating tribunal hearings. However, rather than strictly providing support for individuals in making decisions, designated representatives are legally empowered to make decisions on their behalf. Every lawyer interviewed in the course of conducting research for this report indicated that the impact of a designated representative on their case depends entirely on the specific individual selected.

This is largely because the scope of legal authority and role of designated representatives under Canada’s immigration system is sweeping, unclear, and contested. The immigration detention system is set out in such a way that, in some cases, designated representatives make substitute decisions on behalf of people in detention to avoid further rights violations, such as prolonged detention or refoulement. In other words, the immigration detention system places people in circumstances where the only way they could be released from detention is by leaving Canada and potentially subjecting themselves to more severe risks in their country of nationality. 

Concerns around the designated representative program in immigration detention are longstanding. The 2018 external audit commissioned by the chair of the Immigration and Refugee Board (IRB) found inconsistencies in the roles assigned to designated representatives at detention review hearings. In 2024, despite revisions, the IRB’s designated representative guide still fails to address severe gaps that pave the way for serious human rights violations.

As this report highlights, the inconsistency in the roles and effectiveness of designated representatives, coupled with the lack of support and clear limitations on designated representatives’ authority, continues to exacerbate the plight of persons with mental health conditions in immigration detention across Canada. Systemic flaws within this system—including lack of proper assessment in appointing designated representatives; the sweeping, unclear, and contested scope of designated representatives’ role; incompetence and inadequate training; and designated representatives’ power to make substitute decisions—underscore the urgent need for comprehensive reform.

Meaningful accommodations for persons with disabilities in immigration detention require a prioritization of their agency, choice, and informed consent as the bedrock of the right to health and other human rights. A human rights-based approach centers on a holistic response to the person’s needs—one that addresses the combined impact of social, physical, emotional, and environmental factors, including discrimination against persons with disabilities, structural racism, and other forms of exclusion and repression.

To align with international human rights standards, Canada’s federal government should ensure the legal capacity of all people in immigration detention, especially those with disabilities, is recognized and respected. This entails moving away from substitute decision-making to a model that prioritizes support and accommodation—a model that empowers people in immigration detention to make informed decisions about their lives.

Legislative and policy changes are imperative to address the structural deficiencies within the immigration detention system. Establishing clear guidelines for the appointment and responsibilities of designated representatives, providing adequate training and resources, and ensuring regular oversight and accountability can mitigate the risks of abuse and neglect.

Ultimately, Canada should abolish immigration detention. In the meantime, Canada should shift its approach to one that prioritizes safeguarding the rights and dignity of people in immigration detention.

Methodology

This research builds on analysis and findings documented in the 2021 joint report by Human Rights Watch and Amnesty International, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health, as well as a 2022 joint private submission to the IRB by Human Rights Watch and the New Society Institute (formerly known as the Institute for Research and Development on Inclusion and Society in Canada or IRIS Institute), A Disability Rights Review of The “Designated Representative Guide”.

Human Rights Watch conducted research for this report between March and June 2024, interviewing 15 people. Researchers interviewed 11 lawyers from Montreal, Ottawa, Toronto, and Vancouver, with an average of 12 years of professional experience in this field (ranging from 4 to 22 years). Three of the lawyers interviewed have also worked as designated representatives. Researchers also interviewed Michael Bach, a leading disability rights expert on legal capacity, and three people who had designated representatives while in immigration detention, in addition to analyzing transcripts of sixteen detention review hearings pertaining to eight individuals who had designated representatives in immigration detention.

In June 2024, Human Rights Watch partnered with the New Society Institute to organize a roundtable on legal capacity in immigration detention, alongside advocates from the disability rights and migrant rights communities, which guided this report’s recommendations.

Access to individuals who had designated representatives while in immigration detention was a key challenge. Human Rights Watch relied on lawyers to identify people willing to be interviewed. However, many of these individuals were either deported, not in good enough health to speak with researchers or feared reprisal by the Canada Border Services Agency (CBSA), and some had passed away since their release from detention.

Researchers informed all interviewees of the purpose of the interview and the way in which the information would be used. No remuneration or incentives were promised or provided to interviewees. Interviews were conducted on a voluntary basis and lasted 60 to 90 minutes. All interviewees were asked to consent before the interview began and were told they could decline to answer questions and end the interview at any time. Interviews were conducted via video call, in English and with the help of interpreters, where necessary.

Human Rights Watch assigned pseudonyms and withheld the names of interviewees who had lived experience in immigration detention, with the exception of publicly reported cases. All pseudonyms appear in quotation marks on first reference. Identifying information and distinctive case details have also been withheld to respect confidentiality and protect from possible reprisals by CBSA or agents of persecution in individuals’ countries of origin. The names of lawyers and designated representatives interviewed for this research were also withheld to protect their clients from reprisals by CBSA. Pro bono lawyers and experts reviewed the report’s findings and recommendations.

Finally, researchers reviewed documents obtained through Access to Information Requests. Human Rights Watch shared the report’s findings with CBSA and the Immigration and Refugee Board in September 2024 and invited both government bodies to meet and respond to the findings.

“Detention Destroyed Everything” Click to expand Image “I remember a time when it felt like everything in life stopped. There was no living or moving forward. I don’t remember a lot of the feelings. I just remember looking at walls.”[1] Prosper Niyonzima spoke slowly, weighing each word while describing his nearly five years in immigration detention in the province of Ontario. Prosper spent two of those years in solitary confinement after a mental health crisis left him unable to communicate. Nevertheless, immigration authorities effectively carried on his detention review hearings without him, stripping him of his ability to effectively participate in the hearings, and thereby denying him his right to legal capacity. Meanwhile, he languished in a maximum-security jail without end in sight. “I never thought this would happen in Canada,” he said. According to Prosper, when he was a child, his parents and three siblings were killed in the 1994 Rwanda genocide. He said he witnessed brutal killings, and barely escaped after hiding in a forest overnight. Prosper was left in the care of his aunt and together they fled to Canada. As a young adult, after arriving in Canada, Prosper was implicated in criminal activity involving theft and drugs. He was later diagnosed with post-traumatic stress and schizophrenia. Prosper maintains that in 2010 he was wrongfully arrested for an alleged robbery and placed in pre-trial custody. Eventually, the government’s disclosure showed there was a lack of evidence against him. Prosper was subsequently advised by his then-lawyer that he could plead guilty to a lesser charge and be released the same day, or wait several months for a trial. Despite maintaining his innocence, after seven months in jail, Prosper was eager to be released so he could meet his newborn daughter. With his traumatic childhood weighing on him, he chose to plead guilty so he could see his daughter, who symbolized to him a new life and rejuvenated hope. As a result of his guilty plea, however, Canada revoked Prosper’s permanent residence. Nevertheless, he had legal avenues to remain in the country, which he was pursuing, and for the first time, Prosper began receiving treatment and mental health support. But in 2012, the Canada Border Services Agency (CBSA) detained Prosper, and placed him in a maximum-security provincial jail, pending his deportation. CBSA claimed he posed a danger to the public because of his criminal record. Prosper spent the next 58 months—nearly 5 years—in immigration detention. He spent every day not knowing when or whether he would be released, because in Canada there is no time limit to the duration of immigration detention. Within the first year of Prosper’s detention, the Federal Court blocked CBSA from deporting him three times, finding that he would suffer irreparable harm if deported. Still, CBSA continued to detain him. Eighteen months into his detention, Prosper learned he lost custody of his daughter and that she had been adopted. Authorities let him see his daughter one last time. A month later, Prosper experienced a mental health crisis; he became catatonic. A psychiatrist noted his health declined “in a precipitous and significant fashion” to the point where Prosper stopped communicating with anyone. Years later, Prosper summed it up: “Detention destroyed everything.” In response to his health crisis, jail authorities placed Prosper in solitary confinement, and he remained isolated for two years. CBSA policy states immigration detainees with mental health conditions may be detained in a provincial jail to “effectively manage them in light of their behavior” or to facilitate “access to specialized care.”[2] However, Prosper did not receive appropriate medical attention in jail, nor adequate clothing, hygiene, or food; in the course of a year, he said he got three showers. In 2015, the Federal Court intervened again and ordered a psychiatric assessment, which found the medical treatment Prosper received in jail may have exacerbated his mental health condition. As a result, authorities eventually transferred him to a mental health institution, where he was forced to undergo painful electroconvulsive therapy. He still did not speak. In the course of his detention, Prosper was not only deprived of his liberty, but also his legal capacity rights. People in Canadian immigration detention have the right to regularly scheduled detention review hearings before an administrative tribunal, the Immigration and Refugee Board (IRB), which determines whether detention is to continue. After Prosper’s mental health crisis, however, his hearings legally proceeded without him because the tribunal appointed a designated representative on his behalf. In cases where people in immigration detention have a mental health diagnosis, or are suspected of having a mental health condition, the tribunal may determine they are “unable to appreciate the nature of the proceedings.”[3] In such cases, the tribunal selects, appoints, and pays a designated representative, typically from a roster of contracted individuals, to “protect and advance the interests” of the person in detention.[4] Prosper’s detention review hearings proceeded despite the fact that, according to a 2018 external audit of the tribunal, his designated representative did not communicate with him “at any point.”[5] The auditor observed that each hearing was less than five minutes long.[6] She also noted the presence of the designated representative seemed to assure the tribunal that “all was in order,” although Prosper had “never spoken to the [designated representative]” and “was being held in a catatonic state, off his medication and without proper treatment.”[7] The auditor observed: “The one time he was brought into the video room for a hearing, he seemed unaware of his surroundings and just put his head down on the table.”[8] Instead of providing any accommodation, the tribunal repeatedly characterized Prosper’s behavior as “non-cooperative,” finding that he was “obstructing the removal process in a very extreme way.”[9] CBSA described Prosper’s conduct as “passive protest.”[10] Among Prosper’s worst memories is officers repeatedly telling him: “You’re never going to see your daughter again.” Prosper said he still has nightmares from his time in jail, which he described as an “unimaginable place to live.” He said: “Even if you’re a strong person, it will break you down. It’s terrifying. … It always comes back to haunt you.” Prosper did not speak for years. But once he was released from detention in 2016, he met a pastor: “He understood me. He came to see me and said, ‘Don’t worry, it will be okay.’ The pastor said, ‘your voice will be restored,’ and he prayed for me. That changed my life.” “Not long after that,” Prosper said, gesturing to his throat, “I started feeling a bit of strength in my voice, and I made a raspy sound.” Prosper called the pastor: “I spoke with him, and he was so happy. He gave me hope again.” In the years since his detention, Prosper continued to attend church and he studied theology. He has a new family and continues to live in Canada. “I feel like God restored my voice and my life for a reason,” he said. “When I was in detention, I didn’t know that change could come. But I can now say that the impossible is possible.”

Background

Immigration detention in Canada is an administrative form of detention under the Immigration and Refugee Protection Act (IRPA), administered by the Minister of Immigration, Refugees and Citizenship Canada, and enforced by the Minister of Public Safety.[11] Under the jurisdiction of the Minister of Public Safety, CBSA has sweeping police powers, including the powers of arrest (including without a warrant), detention, intelligence-gathering, and search and seizure.[12]

In the context of immigration detention, CBSA decides who is arrested and detained under IRPA, the grounds of detention, what evidence is brought against—and disclosed to—individuals in detention, and where people are detained. Broadly speaking, CBSA plays the roles of the police, prosecutor, jailer, and it also conducts surveillance in the community. Despite its sweeping powers and wide discretion over rights of frequently marginalized non-citizens in Canada, CBSA continues to be the only major law enforcement agency in Canada without independent civilian oversight.[13] This has contributed to serious and widespread human rights violations, including arbitrary deprivation of liberty, prolonged solitary confinement, discrimination on the basis of disability, child detention, and family separation, as well as disproportionately coercive measures against racialized individuals.[14]

Grounds of Detention

Since 2016, Canada placed approximately 45,000 people in immigration detention, including refugee claimants, children, persons with disabilities, pregnant persons, and permanent residents.[15] Since 2016, over 90 percent of people in detention were held on grounds unrelated to public safety: they were detained because authorities suspected they may not appear for an immigration or refugee status determination proceeding, because authorities were not satisfied with their identity documents, or for the purposes of an examination upon entering Canada.[16] For some people detained on public safety grounds, previous interactions with the criminal justice system may be the sole reason they are alleged to be a danger to the public.[17]

Detention Review Hearings

CBSA’s allegations against people in immigration detention are tested by an administrative tribunal—the Immigration Division of the IRB—that conducts regularly scheduled detention review hearings.[18] The tribunal is an independent quasi-judicial body, and it determines whether to order release or continue detention; it holds an initial hearing 48 hours following arrest, and if the person is not released the tribunal holds another hearing 7 days day later, and every 30 days thereafter, until the individual is released from detention or deported from the country.[19] Detention review hearings are adversarial proceedings involving two opposing parties: the person in detention, who may be—but is not required to be—represented by a lawyer, versus CBSA hearings officers—representing the minister of public safety.

Despite the regularly scheduled hearings, there is no legal limit on the duration of immigration detention.[20] Therefore, people are at risk of getting stuck in an indefinite cycle of detention review hearings, without end in sight. The longest instance of immigration detention in Canada lasted over 11 years, and it involved a man with an apparent mental health condition.[21] Since 2016, about 400 people have been placed in immigration detention for longer than a year.[22]

Site of Immigration Detention

The tribunal is limited in the scope of its review: it can order continued detention or release from detention.[23] The tribunal may consider—but not order changes to—the conditions and site of detention; CBSA has full authority to decide where to place immigration detainees.[24]

Although people in immigration detention are held on administrative grounds—that is, for non-criminal purposes—Canada subjects them to some of the most restrictive detention conditions in the country. People in immigration detention are regularly handcuffed and shackled during transport, and they are held with little to no contact with the outside world. The majority are held in one of three immigration holding centers, operated by CBSA with support from contracted guard services.[25] These facilities resemble and operate like medium security prisons, with significant restrictions on privacy and liberty, as well as constant surveillance, repeated searches, rigid rules and daily routines, and punitive measures.[26]

According to CBSA policy, people may also be incarcerated in a correctional facility “in regions where an [immigration holding center] does not exist,” or where CBSA “determines an individual cannot be effectively managed within an [immigration holding center].”[27] Furthermore, CBSA’s policy on “special considerations for vulnerable people” indicates that persons with mental health conditions may also be incarcerated in a correctional facility for access to “specialized care.”[28] A 2023 investigation found that an “alarming” number of immigration detainees in Ontario jails had pre-existing mental health conditions.[29] Previous research also found that racialized people, particularly Black people, appear to be incarcerated for longer periods in immigration detention and have often been detained in provincial jails, rather than immigration holding centers.[30]

Since 2000, at least 17 people died in immigration detention; most of them were incarcerated in a jail.[31] Evidence presented at the 2023 coroner’s inquest into the death of Abdurahman Hassan, a Black man with mental health conditions who was arbitrarily detained for three years while CBSA was unable to deport him to Somalia, revealed shocking details about ongoing conditions of incarceration in provincial jails, including prolonged use of solitary confinement.[32] The inquest jury’s first recommendation was to end the use of jails for immigration detention.[33]

CBSA has been relying on bilateral agreements and informal arrangements with provincial authorities to incarcerate people in provincial jails. However, between July 2022 and March 2024, all 10 of Canada’s provinces committed to severing these agreements and arrangements, and effectively end the use of provincial jails for immigration detention (as of the writing of this report, Quebec and Ontario have granted extensions to CBSA’s contracts).[34] In response, the federal government passed legislation under its 2024 Budget to expand immigration detention into federal prisons.[35]

Discrimination Against Persons with Disabilities

Immigration detention can have devastating effects on mental health. Many people in detention develop suicidal ideation as they lose hope, particularly those fleeing traumatic experiences and persecution in search of safety and protection in Canada. People in immigration detention can develop anxiety, depression, despair, psychological distress, psychosis, and catatonic withdrawal.

Individuals with disabilities, including intellectual and psychosocial disabilities, experience discrimination throughout the immigration detention process, in breach of international human rights law:

• People’s disabilities may play a role in authorities’ decision to detain them, as they are deemed ‘unreliable’ or ‘uncooperative’;

• People’s disabilities may lead to detention in correctional facilities to facilitate access to “specialized care,” as per CBSA policy;

• In some provincial jails, authorities have placed persons with mental health conditions or those who express suicidal ideation in solitary confinement; and

• Persons with disabilities also face significant barriers to release from immigration detention, including onerous release conditions in the community.[36]

As further detailed below, persons with disabilities in immigration detention may also be stripped of their legal capacity rights to make decisions about their legal matters, which may lead to continued deprivation of liberty, or even deportation.

Violations of Legal Capacity Rights

Persons with disabilities in immigration detention may face violations of their legal capacity rights—or the right to make one’s own decisions—and this has potentially life-altering, or even life-endangering, consequences.

Under the IRPA, in cases where a person in detention is “unable, in the opinion of the [tribunal], to appreciate the nature of the proceedings, the [tribunal] shall designate a person to represent the person.”[38] In practice, IRB adjudicators appoint “designated representatives” for people in detention who have a diagnosed or suspected mental health condition.[39] In such cases, the tribunal selects, appoints, and pays a designated representative, typically from a roster of contracted individuals, to “protect and advance the interests” of the person in detention.[40] Designated representatives must be at least 18 years old, they must “understand the nature of the proceedings,” and “be willing and able to act in the best interests” of the person in detention and not have a conflict of interests with them.[41]

Designated representatives can be invaluable support for the person detained. As one lawyer indicated, “anyone stuck in detention is limited in collecting evidence,” and designated representatives can act as “essentially an extension of the client on the outside who has more liberty to build a case for release.”[42] According to another lawyer, detention review hearings “can be so adversarial and traumatic for people in detention,” and designated representatives can act as a “buffer” to make the experience “less harsh.””[43]

However, rather than strictly providing support for individuals in making decisions, designated representatives are legally empowered to make decisions on their behalf. Every lawyer interviewed for this report said the impact of a designated representative on their cases depended entirely on the specific individual selected.[44] This is largely because the scope of legal authority and role of designated representatives is broad and inadequately defined.   

Lawyers interviewed for this report indicated that people in detention with a designated representative generally have a mental health condition and tend to be racialized,[45] detained for lengthy periods (of at least several months),[46] and incarcerated in provincial jails.[47]

The designated representative system attempts to solve a “genuine problem” pertaining to people in immigration detention with mental health conditions, as one lawyer noted:

It becomes difficult for the IRB to live up to its statutory mandate when someone is in the middle of a psychotic episode or experiencing extreme depression and is unable to participate in the hearing. The designated representative smooths over the problem. But the problem the IRB is solving is of its own making – that is, detaining people with mental health conditions in the first place.[48]

In May 2024, the federal government attempted to introduce legislative amendments to expand the scope of designated representatives beyond the realm of tribunal hearings, whereby CBSA would be able to appoint designated representatives in contexts where people may be isolated in immigration detention without access to legal advice, interpretation services, or other vital supports. This could have empowered designated representatives to waive people’s rights to make refugee claims or other legal applications preventing refoulement, with potentially life-endangering consequences. While this legislative amendment was subsequently withdrawn, the government has indicated its intention to re-introduce it in the future. 

Lack of Proper Assessment in Appointing Designated Representatives

The tribunal appoints designated representatives in the course of hearings following a determination that the individual in detention is ‘unable to appreciate the nature of the proceedings.’ The tribunal’s guideline on detention indicates that in determining whether a person fits this profile, adjudicators should consider:

• Whether the person can understand the reason for the hearing and can instruct counsel;

• The person’s statements and behavior at the hearing;

• Expert evidence on the person’s intellectual or physical faculties, age, or mental condition; and

• Whether the person previously had a designated representative.[49]

Lawyers described the tribunal’s assessment as “entirely informal and based on subjective views,”[50] “not at all standardized,”[51] “superficial and cursory,”[52] “extraordinarily variable,”[53] and completed in a matter of minutes.[54] One lawyer indicated that at the start of a hearing, the adjudicator “goes around the room and asks, ‘who thinks this person needs a designated representative?’” The same lawyer stated: “It makes me uncomfortable to participate in this system where I have to give an opinion on a client’s mental state and fitness to represent themselves, but I’m pushed to provide one in most cases out of a duty to their own legal interests.”[55]

Every lawyer and designated representative interviewed for this report confirmed that CBSA regularly makes recommendations and submissions to the tribunal regarding appointments of designated representatives. Human Rights Watch made an Access to Information and Privacy request to CBSA for “Records of the most recent policy manuals, guidelines, training materials used by the [CBSA] when assessing whether an individual in immigration detention needs a designated representative appointed because of mental health or capacity concerns.” In response, CBSA indicated that this record “does not exist.”[56]

It is unclear how the tribunal weighs the opinions of CBSA officers and lawyers, both of whom may have only had limited interactions with the person detained prior to the hearing.

In some cases, adjudicators examine the person detained by asking broad questions like, “Do you know where you are? Do you know why you are detained?”[57] One lawyer noted that, “These questions are not hard to answer, and sometimes people can respond but that doesn’t mean they don’t need support.”[58]

In other cases, there is “no official assessment,” and a decision is made based on medical information on file.[59] One lawyer indicated that sometimes “CBSA asks the tribunal to appoint a designated representative, and I don’t know what kind of communication they send to them because we are not looped in.”[60]

The tribunal generally appoints designated representatives from a regional roster, and individuals in detention do not have a choice as to who is appointed.[61] Once the tribunal appoints a designated representative, “it doesn’t matter whether a detainee is unhappy with them.”[62] The IRB guide does not set out a process for individuals in detention to fire or replace tribunal-appointed designated representatives.

Sweeping, Unclear and Contested Scope of Designated Representatives’ Role

According to the IRB’s guide, “the key role of the [designated representative] … is to protect and advance the interests of the subject of the proceedings they represent.”[63] The responsibilities set out in the guide include preparing the case with the person in detention, retaining and instructing counsel, making decisions or assisting the person in making decisions regarding IRB proceedings, and keeping them informed about their case.[64] Designated representatives are also required to assist in gathering evidence, potentially appear as a witness at hearings, and ensure the best possible case is presented.[65] They are required to attend all hearings, sign documents on behalf of the person in detention, and explain the outcomes and impacts of the hearings in consultation with counsel.[66]

The IRB’s guide notes that the role of the designated representative “may vary” depending on “the level of understanding” of the person in detention: individuals the tribunal deems ‘unable to appreciate the nature of the proceedings’ may have “some ability to participate in making decisions, depending on the type of decision that has to be made and the nature and severity of their impairment.”[67]

Lawyers indicated that designated representatives can be useful in several ways. One lawyer stated that designated representatives that “take the role seriously” tend to “visit the individual in detention multiple times between hearings, trying to ascertain what that individual wants to achieve.”[68] Designated representatives are also useful in providing guidance to deal with difficult situations, inquiring about and making applications for housing and community support programs in order to build an alternative to detention,

and assisting the person in detention to communicate their needs to the tribunal.[69] For example, one lawyer stated:

Some clients may express frustration and authorities may interpret this as “non-cooperative” or “hostile,” as opposed to getting to the substance – which is “I’m not doing well here.” The designated representative may explain why the person in detention is feeling restless. … The designated representative is useful in providing a shield and humanizing the person detained by providing context.[70]

Given the broad scope of their authority, designated representatives can also harm the rights of the person in detention, including by inserting themselves into discussions about legal applications, waiving rights to legal applications or withdrawing refugee claims, firing lawyers who make complaints about them, signing authorizations to obtain medical files or other records of the person in detention, and signing travel document applications.[71] One lawyer noted: “There are some designated representatives who actually stand in the way of lawyers doing their job.”[72]

In some cases, designated representatives may explicitly act against the will of the person in detention, in deference to CBSA. For example, several lawyers pointed to cases where designated representatives determined, in alignment with CBSA, that it is in the best interest of the person in detention to remain in detention.[73] The reasons cited ranged from cold winter conditions and lack of housing, to general safety in the community, and in some cases, designated representatives provided no reasoning, stating simply: “I’ve read the materials, and it’s clear that they are better off in detention.”[74] Where designated representatives are not in agreement with the individuals they represent in detention, “this is an impossible situation for counsel … An ethical quagmire.”[75]

One lawyer described cases prior to the IRB’s 2018 external audit, involving “truly atrocious examples of designated representatives collaborating with CBSA, or at least justifying CBSA’s inaction on files by assuring that everything was fine with the client.”[76] The same lawyer described the case of a man detained as a flight risk for five years in a provincial jail while his designated representative did not retain a lawyer, but signed off on documents allowing CBSA to publish the individual’s photos internationally to confirm his identity, and also tried to allow CBSA to take a DNA sample from the person against his will.[77] According to the same lawyer, prior to the 2018 external audit, the “abuse was extreme” but “nothing in the legislation has changed since then. … If this [abuse] could occur within the existing legislative parameters, there need to be more guardrails in law.”[78]

Given the adversarial nature of detention review hearings and CBSA’s enforcement mandate, several lawyers expressed significant concern about CBSA’s approach to designated representatives. As one lawyer told Human Rights Watch:

[CBSA] will use designated representatives to facilitate removal as soon as possible. … There is rush and zeal to remove people [from Canada], with no concern about the Charter [of Rights and Freedoms (Canada’s Constitution)]. The rush is at the expense of the person’s rights. It’s running over rights as quickly as possible, hoping no one will notice.[79]

One designated representative stated: “I’m supposed to assist clients in navigating procedures, but CBSA’s point of view is that I get in the way.”[80] Several lawyers indicated that CBSA has pressured designated representatives to waive detainees’ rights to legal applications designed to prevent nonrefoulement—assessing risks they may face upon removal from Canada.[81] In a 2022 case, CBSA contracted a designated representative to waive the right to such a legal application for a 22-year-old woman in detention who was diagnosed with depression and schizophrenia. According to the Federal Court:

Throughout her detention, Ms. Lee has been mute and her condition has worsened significantly. … Ms. Lee has not spoken for over three months … Yet, by contracting out a third-party to act on her behalf, [the government] stripped Ms. Lee of an opportunity to meaningfully participate in her proceedings. If anything, the requirements of procedural fairness are actually heightened in this case; to allow Ms. Lee to fully participate, her mental health conditions must be accommodated.[82]

As one lawyer noted: “Waiving rights to legal applications is beyond the broad authority granted to designated representatives, yet it happens nonetheless because of the IRB’s permissive guidelines and lack of legal clarity on the role.”[83]

The same lawyer described the challenges that arise in “grey areas,” where designated representatives give detention authorities “assurance that detainees’ rights are being protected without anyone being legally obliged to make a probing inquiry to ensure their rights are actually being protected.”[84] For example:

Where a client is truly not comprehending anything about proceedings – where a person is basically in a catatonic state, mute, and unable to communicate – in those cases, the designated representative gives instructions to counsel. This carries with it a host of potential abuses but can also assist counsel in advocating for release. If the designated representative previously ascertained the detainee’s goal, they could assist counsel with that goal even when the client can’t communicate. But if the designated representative doesn’t know the client’s wishes, and acts based on external stimuli, including CBSA pressure, that’s a problem.[85]

Aggravating the difficulties associated with the sweeping, unclear, and contested scope of designated representatives’ role is that their legal authority is not typically explained to immigration detainees. One lawyer observed that “usually [adjudicators] summarily explain the role of designated representatives, but they don’t explain their power – like waiving rights, withdrawing legal applications, or hiring and firing a lawyer.”[86] Another lawyer noted there is a risk that people in detention conflate designated representatives with lawyers: “In hearings, there are five voices on the phone, and it’s not clear who is who; depending on what the designated representative is telling [the person in detention], they might think this is legal advice from their lawyer.”[87]

Incompetence and Inadequate Training

The IRB’s designated representative “competency profile” sets out expected behaviors, personal qualities, and skills for designated representatives.[88] The core competencies include demonstrating integrity and respect, working effectively with clients, showing initiative, and “thinking things through: understanding a situation, issue, challenge.”[89]

However, lawyers interviewed for this report expressed significant concerns related to incompetence and inadequate training of designated representatives.

Several lawyers indicated that designated representatives who tend to play a passive role are unhelpful.[90] One lawyer indicated, “in the majority of cases, the IRB appoints the same designated representative, who is not very competent and mainly assists by being present during calls and interviews between the CBSA and a client, and by attempting to contact family members.”[91] Other lawyers noted, “there is no oversight or quality control,” and

“the biggest concern is where designated representatives don’t care, don’t take the role seriously, and don’t know the consequences of their decisions.”[92]

In some cases, designated representatives refuse to give instructions because they are “not trained or resourced to understand the people they are meant to represent.”[93] In particular, designated representatives do not receive training on working with people who have a mental health condition.[94] In some cases, designated representatives change in the course of a person’s detention, such that there is “no consistency, no opportunity to build trust with the detainee.”[95]

Most designated representatives also do not visit the people they represent in detention; instead, they are in contact over the phone or just review disclosure documents and “give lawyers their two cents before the hearing.”[96] One lawyer observed: “How can you instruct counsel and say you’re protecting [detainees’] best interests if you don’t even meet with them?”[97] 

While the IRB amended its guide to provide more details to designated representatives following the 2018 external audit, there remains “little direction as to designated representatives’ responsibility.”[98] Designated representatives are not provided training, funds, resources, or support to carry out their responsibilities.[99] As one lawyer observed: “All the things that the auditor raised [in 2018] continue to be present … That audit has been buried and there’s been backsliding.”[100]

Substitute Decision-Making

The most consequential power of designated representatives is their authority to make decisions on behalf of people in detention, in violation of their legal capacity rights. The IRB’s guide empowers designated representatives to “[s]peak for the [person in detention]” at hearings, and “make decisions on their behalf, as necessary.”[101] 

Although the IRB’s code of conduct requires designated representatives to “keep confidential all information gained in the course of providing services to the [person in detention],”[102] the tribunal may require designated representatives to share information at hearings regarding the detained person’s “behavior, medications, diagnosis, interactions,” as well as the designated representative’s impressions about the person’s “limitations, mental health and medical issues.”[103]

Lawyers confirmed that designated representatives routinely make substitute decisions on behalf of people in detention. One lawyer noted, “designated representatives are the voice of the [person in detention], replacing them.”[104] When a person in detention refuses to attend their hearing out of protest, the hearings proceed and “run roughshod over the [person in detention],” and the presence of the designated representatives “superficially makes things move forward.”[105]

In such cases, “the default, the expectation of the IRB is that the designated representative will ‘stand in’ for the detained person.”[106] According to one lawyer, in the course of a hearing, the IRB may (on its own initiative) also turn off the microphone of the person in detention if they speak out of turn, and “the Board is comfortable proceeding as per the designated representative’s suggestion, even as it pertains to decisions on behalf of the detained person.”[107]

Substitute decisions, particularly when made against the will of the person in detention, can also create barriers to legal representation. As one lawyer indicated:

There is no provision for counsel to overrule or challenge the direction of a designated representative where we have a reasonable belief that they are not acting in the client’s best interest, or is overruling client’s stated interest, in cases where the client may not understand technicalities but has expressed a clear interest. For example, where a client says they don’t want to be in detention, but the designated representative says they are safer in detention than in the community. The process is such that I can be dismissed as counsel if I argue for release. This is a statutory- or regulatory-appointee inserting themselves in the middle of a solicitor-client relationship and instructing counsel.[108]

Substitute Decision-Making Under International Law

Legal capacity is a fundamental human right enshrined in core United Nations human rights treaties.[109] Under the Convention on the Rights of People with Disabilities (CRPD), persons with disabilities have the right to recognition everywhere as persons before the law. The CRPD rejects the notion that persons with disabilities are unfit to exercise agency, and makes it clear that their will and preferences should always be respected.[110]

Importantly, mental capacity and legal capacity should not be conflated. Although a person’s mental capacity can vary depending on environmental or social factors, this does not, at any point, negate their legal capacity. The Committee on the Rights of Persons with Disabilities, an independent expert body created under the CRPD to oversee its implementation, has instead stressed the importance of ensuring that persons can exercise legal capacity by putting the right decision-making supports in place. [111] To this effect, Article 12(3) of the CRPD requires states party to “take appropriate measures” to provide persons with disabilities access to “support they may require in exercising their legal capacity,” including through “supported decision-making.”[112] Importantly, the CRPD Committee makes clear that “support in the exercise of legal capacity … should never amount to substitute decision-making.”[113]  

Canada ratified the CRPD but made a reservation and interpretative declaration to Article 12.[114] According to several legal scholars, given the CRPD’s mandate of “affirming maximum independence, equality, and participation of persons with disabilities in society,” Canada’s reservation on the legal capacity of persons with psychosocial disabilities “severely interferes with the Convention’s object and purpose.”[115]

The CRPD also obligates governments to take all appropriate steps to ensure reasonable and procedural accommodation is provided.[116] This includes situations in which persons with disabilities have been deprived of their liberty in a prison or other legally mandated detention facility.[117]

In order to protect the legal capacity rights of people in immigration detention, the role of designated representatives should be transformed to ensure it is a mechanism exclusively for supported decision-making.[118] Detention review hearings in which persons with disabilities cannot fully participate should not proceed by simply appointing a designated representative to ‘stand in’ for them and make substitute decisions on their behalf.[119] Such proceedings infringe on detainees’ rights to due process and legal capacity. Canada’s failure to provide procedural accommodations to immigration detainees with disabilities violates the CRPD.[120]

Immigration Detention Places Rights in Tension

In some circumstances, because of the framework of the immigration detention system, substitute decisions are necessary to safeguard other rights of detained persons, such as liberty rights or nonrefoulement.[121]

One lawyer described a 2021 case of a man with Syrian and Russian nationalities, who had a mental health condition.[122] He was detained as a flight risk and went on a hunger strike in protest of his detention conditions.[123] He was placed in solitary confinement, where he further deteriorated. According to his lawyer: “He was vomiting blood and was close to dying, so he was taken to the hospital, where he was forced to eat.” Ultimately, after eight months of detention, and with no prospect of CBSA consenting to his release, the designated representative overrode the man’s decision to remain in the country, and he was deported to Russia. “We took a decision against his will in order to save his life,” his lawyer said.

In some cases, the immigration detention system places people in circumstances where the only way they could be released from detention is by potentially subjecting themselves to more severe risks. One lawyer described a 2018 case where a man who was diagnosed with a mental health condition decided to return to Afghanistan because this was the only way for him to get out of detention.[124] Although he had an ongoing refugee claim, CBSA refused to consent to his release while the claim was processed. [125] According to the man’s lawyer, although it was in his best interest to remain in Canada, “he decided, ‘I’m tired of being in jail here, I just want to go back to Afghanistan.’”[126] The man’s designated representative insisted it was not in his best interests to return, but ultimately respected his decision to return to Afghanistan: “His clear, consistent intention over the course of weeks was to withdraw his application and return [to Afghanistan].”[127]

Substitute decision-making may prevent irreparable harm in these cases but violate other rights. As one lawyer observed:

We find it to be an almost impossible situation: recognizing the inherent right of everybody to make their own decisions, but also recognizing our ethical duty not to participate or allow CBSA to proceed with an action that we think is going to cause serious harm that the person [in detention] appears not to understand. And the designated representative is just not an adequate substitute. … The priority should be to release the person from the coercive context.[128]

Even where legal capacity rights are not at risk, under international human rights standards, immigration detention may only occur if it is reasonable, necessary, and proportionate to achieve a legitimate state interest, taking into account whether there are less restrictive means of achieving the same end.[129] As noted by the UN Working Group on Arbitrary Detention: “Immigration detention should gradually be abolished.”[130] 

Article 14(1) of the CRPD states that “the existence of a disability shall in no case justify a deprivation of liberty.”[131] The UN Human Rights Committee has also stated that decisions regarding the detention of migrants must take into account its effect on mental health and make available adequate community-based services for persons with psychosocial disabilities.[132] Immigration detention disproportionately impacts persons with disabilities, and has been found to exacerbate mental health conditions.[133] The UN Working Group on Arbitrary Detention has concluded that immigration detention of persons with disabilities “must not take place.”[134]

In accordance with this guidance, Canada should move away from immigration detention for persons with disabilities and eventually all people. Meanwhile, in cases where the lack of effective support for decision-making—and the likely exacerbation of mental health conditions due to detention itself—renders detainees with mental health conditions unable to exercise their legal capacity and access hearings with due process, Canada should release them from detention and provide them with the support they require outside of detention.

Recommendations

Overarching Recommendation to Canada’s Federal Government

• Gradually abolish immigration detention, starting with the immediate end to the use of correctional facilities for immigration detention.

Key Steps Toward Achieving the Overarching Recommendations

To Public Safety Canada, CBSA, IRB, and Immigration, Refugees and Citizenship Canada:

• Expand localized programs of community-based alternatives to detention that provide support rather than surveillance and are operated by local nonprofit organizations independently from CBSA. Support services should take a holistic view of a person’s requirements, including housing, healthcare, mental health services, education, employment, children’s needs, and legal representation.

• Maintain effective, supportive, voluntary, and culturally-appropriate mental health services in the community that are available and accessible to citizens and non-citizens alike. Consider reallocating funding from CBSA’s budget to support community-based health services and alternatives to detention.

• In line with the guidance of the UN Working Group on Arbitrary Detention, stop holding persons with physical or psychosocial disabilities in immigration detention. Persons’ disabilities should also be taken into account when determining the legality, necessity, and proportionality of any non-custodial immigration enforcement measure.

As long as Canada continues to engage in immigration detention of persons with disabilities:

• Ensure all designated representatives and detention authorities, including IRB personnel, CBSA officers, immigration holding center personnel, and provincial jail authorities, receive regular, effective, and ongoing training on how to support and interact with persons with disabilities, which should be developed in consultation with persons with disabilities.

• Detention authorities should contract disability support organizations to recruit and offer ongoing guidance to designated representatives, the IRB, and CBSA. Immigration authorities and designated representatives should be resourced to connect people in immigration detention, as well as people at risk of being detained, with rights-respecting community-based alternatives to detention.

• Ensure the right to legal capacity and due process of all persons with disabilities in immigration detention. Specifically:

• Clarify and limit the roles and responsibilities of designated representatives to facilitating supportive decision-making. Strictly prevent designated representatives from engaging in substitute decision-making that infringes on legal capacity;

• Ensure people in immigration detention can select, remove, and replace their designated representative;

• Order release from immigration detention and ensure effective support for decision-making outside of detention in cases where the support for decision-making in detention is not adequate to ensure persons with disabilities can access hearings with due process and exercise their legal capacity through the support of a designated representative (e.g., where the representative is not able to communicate with or understand the person’s will and preferences sufficiently to be guided by them); and

• Appoint an ombudsperson to provide oversight for designated representatives, and to ensure the will and preferences of people in immigration detention are respected in supported decision-making processes, and that their rights to health, due process, and legal capacity are protected.

To the Prime Minister and Canada’s Cabinet:

• Withdraw Canada’s declaration and reservation to Article 12 of the CRPD.

• Conduct a national independent review of the immigration detention system focusing on systemic racism and discrimination against persons with disabilities.

• Establish an independent body responsible for overseeing and investigating CBSA, with which immigration detainees can lodge complaints of abuse, neglect, or other human rights concerns, to hold the government accountable. This oversight body should have the authority to order meaningful remedies and penalties and initiate its own reviews and investigations, including unannounced inspections, and not be driven solely by complaints. The oversight body should also allow for third parties, such as nongovernmental organizations, to make complaints regarding matters relating to individual cases, as well as CBSA policies and practices.

• Refrain from expanding the designated representative regime beyond the scope of IRB proceedings, unless the above safeguards are instituted.

Acknowledgments

This report was researched and written by Hanna Gros, consultant in the Disability Rights Division of Human Rights Watch, with significant research and writing support from Samer Muscati, associate director in the Disability Rights Division of Human Rights Watch.

The report was edited at Human Rights Watch by Carlos Ríos Espinosa, associate director of the Disability Rights Division; Farida Deif, Canada director; Bill Frelick, director of the Refugee and Migrant Rights Division. Babatunde Olugboji, deputy program director of Human Rights Watch, provided programmatic review, and Maria McFarland Sánchez-Moreno, senior legal advisor at Human Rights Watch, provided legal review.

We are grateful to the expert reviewers who provided invaluable guidance and feedback. A special thank you to Michael Bach, Doris Rajan and others at the New Society Institute for their expertise and support, including organizing a roundtable on legal capacity in immigration detention, alongside advocates from the disability rights and migrant rights communities.

Alysha Orbach, US Program associate, and Joya Fadel, Children’s Rights senior associate, provided editing and production assistance. The report was prepared for publication by Travis Carr, publications officer; Fitzroy Hepkins, senior administrative manager; and Jose Martinez, administrative officer.

Estelle Bloom, lead consultant of Making It Clear, created the easy-to-read version of this report.

The report was translated from English to French by Zoé Deback. The French version of the report was edited for Human Rights Watch by Peter Huvos, web editor.

Human Rights Watch would also like to thank the lawyers and designated representatives who shared their insights and analyses with us or otherwise provided assistance.

A special thank you to the Samuel Family Foundation and Kathryn Cottingham for the financial support that made this research and report possible.

Most importantly, Human Rights Watch thanks the people with lived experience in immigration detention, who shared with us their insights, memories, and perspectives. We are grateful for your trust and courage.