<\/p>\n
Immigration detention refers to the law, policy, and practice of incarcerating asylum seekers and other migrants to wait for a resolution in an irregularity of their immigration status. The medical literature is conclusive that even short periods of detention cause irreparable damage<\/a> to the health<\/a> of men<\/a>, women<\/a>, and children<\/a> in Canada<\/a> and abroad<\/a>. Sometimes referred to as administrative detention, between 8,000 \u2013 9,000 people<\/a> enter Canadian immigration detention every year. While the majority of detainees are released with 48 hours, a substantial minority are held for upwards of 40 days.<\/a> The \u201clow-risk\u201d detainees are incarcerated in dedicated facilities called immigration holding centres (IHCs), but 16 \u2013 20%, or the so-called \u201chigh risk\u201d population, are sent to provincial correctional centres where they live under the same restrictive regime as prisoners convicted of criminal offences, including wearing orange jumpsuits and becoming subject to regular strip searches. While the Immigration and Refugee Protection Act (IRPA) legalized detention, policy takes up and makes real the everyday rules and regulations of running the complex detention system: a complex web of internally-issued guidance, memos, regulations, and Ministerial Directives and Instructions whose development takes place mostly out of public sight. Immigration detention cost Canadian taxpayers about $171 million last fiscal year, and this does not include the costs of flying deportees to other countries.<\/p>\n These posts represent a collective effort to illuminate and analyze different aspects of this hybrid policy tool. The contributions point to new ways of understanding the place of detention in Canadian law, policy, and society. Springing from the De-Carceral Futures<\/a> workshop that took place last May at Queen\u2019s University, the contributions are \u2018knowledge translation\u2019 exchanges between a scholar and a student. In other words, the scholar invited the student to rewrite their research for a policy audience. The students attended a \u201cHow To\u201d workshop organized by Trinity College research librarian Courtney Lundrigan in September 2019. The rest of this introduction is devoted to sketching the broad strokes of immigration detention policy in Canada.<\/p>\n The IRPA provides the framework legislation that sets out the principles for when a migrant can be detained on administrative grounds in Canada. Similar to American, Australian, and British detention laws, the IRPA neglected to prescribe an upper time limit for individual periods of detention. The IRPA also provides for the arrest and mandatory detention of a person who is named in an immigration security certificate if there are reasonable grounds to believe that a non-citizen is a danger to national security, safety of any person, or is unlikely to appear at a proceeding for removal (See IRPA s.81<\/a>). These detentions are virtually immune to review by regular judges by virtue of being situated in administrative law. Instead, a member of the Immigration Division of the Immigration and Refugee Board will undertake a statutory review of the grounds of each detention after 48 hours\u2019 incarceration, then one week, and then every 30 days until the detainee is released or removed from Canada. Since detainees are not guaranteed access to counsel, and legal aid is uneven across the country, the system raises access to justice<\/a> concerns.<\/p>\n There are exceptions to the regular procedures, including detainees who lodge applications for a writ of habeas corpus<\/em> to have their cases heard in the provincial superior courts (see Mujtaba and Silverman) or the \u00ab\u00a0hard\u00a0\u00bb cases of un-removable detainees but to whom Canada will not grant residency status (see Khalid and Aiken). But, overall, the \u2018back-end\u2019 Canadian system is focussed on incarcerating people with removal orders who have exhausted their legal rights to remain.<\/p>\n In May 2019, the Supreme Court rendered a decision<\/a> on whether the IRPA-legislated scheme is as \u201ccomplete, comprehensive and expert\u201d and \u201cbroad and advantageous\u201d as the constitutional right to habeas corpus<\/em><\/a>. The 6 \u2013 1 majority found that detainees should be able to seek habeas corpus<\/em> as an alternative remedy, and thus restored pan-Canadian access to it.<\/p>\n Importantly for policy-makers, detention is incredibly costly, garners mixed results in achieving its stated goals, and yet is growing throughout the world. The Global Detention Project<\/a> has identified over 1200 official sites of detention. The Canadian government is building a new IHC in Surrey, BC, to complement the renovations on its Laval and Toronto centres. The Canadian Government is also committed to implementing the National Immigration Detention Framework<\/a>, a reform program intended to reduce detention but one that is also diffusing incarceration into the community through increasing reliance on coercive reporting conditions, electronic ankle shackles, and other techno-solutions (see Atar and Molnar). The policy shift on detention can be helpfully situated as one aspect of the penal expansion that is sweeping Canada (see Pich\u00e9, Benslimane, and Speight) and reaching into cities through un-monitored cooperation efforts between the Canada Border Services Agency (CBSA) and local police units (see Vargas Aguirre and Moffette). Overall, then, these posts signal the need to recalibrate domestic policies in a manner that eschews reliance on detention and imprisonment<\/a>.<\/p>\n <\/p>\n * The authors gratefully acknowledge the support of SSHRC, Queen\u2019s University (Faculty of Law, Cultural Studies Program & Department of Philosophy), as well the Walls to Bridges Collective, and the John W. Graham Library at Trinity College.<\/p>\n A Policy Options <\/em>podcast was recorded at our May 2019 workshop at Queen\u2019s University, for which we gratefully acknowledge the participation, cooperation, and leadership of the Institute for Research on Public Policy (IRPP): https:\/\/policyoptions.irpp.org\/magazines\/may-2019\/can-we-end-migrant-detention\/<\/a><\/p>\n <\/p>\n How to cite this blog post:<\/strong> Silverman, Stephanie J. and Sharry Aiken. 2020. \u00ab\u00a0Editors’ Introduction: Detention, Prison, and Knowledge Translation in Canada and Beyond\u00a0\u00bb. In Introducing De-Carceral Futures: Bridging Prison and Migrant Justice<\/em>. Edited by Sharry Aiken and Stephanie J. Silverman. Accessed online at http:\/\/carfms.org\/introducing-de-carceral-futures\/<\/a><\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n<\/blockquote>\n <\/p>\n <\/p>\n <\/strong> <\/strong><\/p>\n by Ozlem Atar and Petra Molnar<\/em><\/p>\n <\/p>\n Introduction<\/strong><\/p>\n Migration decision-making is a wide and discretionary field of law, policy, and governance. It is often opaque, with inadequate independent oversight. Unsurprisingly, enthusiasts of automated technologies are proferring services such as algorithmic decision-making and data collection as a partial solution to migration management issues, particularly immigration detention.<\/p>\n Yet, Artificial Intelligence (AI) hype will not resolve the many complexities in global migration, and may indeed exacerbate human rights infringements for an already vulnerable population. This is particularly true when vital decisions are made based on heavy reliance on biased algorithms and questionable data collection practices. Appropriate oversight<\/a> and governance mechanisms are needed to ensure that automated decision-making technologies do not turn asylum seekers, refugees, and immigration applicants into trackable and controllable communities.<\/p>\n <\/p>\n Are algorithms the new jailers?<\/strong><\/p>\n We are witnessing the worldwide roll-out of \u201ctechnosolutionism<\/a>\u201d as a meta-policy to address nuanced, individual migration cases. This type of experimentation is already occurring in contentious areas such as the incarceration of migrants. For example, in the U.S., the private data mining and analytics company, Palantir, is supplying the Immigration and Customs Enforcement agency with technology to facilitate the arrests and potential deportations<\/a> of undocumented migrants, leading to grave human rights abuses which have been widely criticized<\/a>.<\/p>\n Canada is not immune to experimenting with new technologies in migration. Petra Molnar and Lex Gill\u2019s co-authored 2018 report<\/a> \u201cBots at the Gate\u201d explores the human rights implications of Canada\u2019s introduction of automated decision-making and AI in its immigration system. The report demonstrates that biased machines can fail to capture the complex nature of immigration applications and refugee claims and that these technological issues may lead to irreparable harm.<\/p>\n A related concern is the lack of independent oversight to monitor these decision-making processes, investigate violations of human rights, and correct mistakes. Consider the case of the British government wrongfully deporting over 7000 foreign students<\/a> because a faulty algorithm decided they cheated on a language acquisition test. The government provided no means to appeal or return to the UK.<\/p>\n <\/p>\n Emerging Case Study: \u201cVoiceprinting\u201d in Immigration Detention<\/strong><\/p>\n One area where \u201ctechnosolutionism\u201d is layering ethical complications onto a contentious policy issue is in verifying the identity of a person talking on the phone and its use in carceral settings. This issue is important to these CARFMS posts because advocates of less detention support Canada\u2019s use of \u201cphone reporting\u201d<\/a> as an alternative to incarceration.<\/p>\n Yet, when is the line crossed from supporting an in-home phone call to verify respect for a curfew, to a coercive and non-consensual voiceprint collection practice? The Intercept reports<\/a> that, in the criminal justice context, the US has been contracting with the prison telecommunications firm, Securus Technologies, to extract \u201cvoiceprints\u201d from its prison population under coercion. Besides issues of consent in situations of unequal power hierarchies, how is this sensitive data safeguarded from hackers and other unauthorized parties?<\/p>\n The use of new technologies also raises issues of informed consent, particularly in the increasing reliance on biometric data. For example, in Jordan and Iraq, refugees now have their irises scanned in lieu of identification to receive their food rations. However, are they able to meaningfully opt out from having their data collected? Most refugees reported<\/a> being uncomfortable with this collection but felt that they could not refuse to get scanned if they wanted to eat that week. Consent is not free if it is given under coercion, even if the coercive circumstances masquerade as efficiency and better service delivery.<\/p>\n Data collection and retention practices also need to be scrutinized. If collected information is shared with repressive governments from whom refugees are fleeing, the ramifications can be life-threatening. Or, if automated decision-making systems designed to predict a person\u2019s sexual orientation are infiltrated by states targeting the LGBTQ community, discrimination and threats to life and liberty will likely occur. A facial recognition algorithm developed at Stanford University already tried to discern a person\u2019s sexual orientation from photos<\/a>. This use of technology has particular ramifications in the refugee and immigration context, where asylum applications based on sexual orientation grounds often rely on having to prove one\u2019s persecution based on outdated tropes around non-heteronormative behaviour. These types of technological assessments could also be easily implemented into voiceprint extraction technologies, resulting in grave discrimination and serious human rights abuses.<\/p>\n Given the far-reaching impacts of these technologies, states have an obligation to ensure transparency around the present and future uses of voiceprint extraction and other new carceral technologies used in immigration detention, including privacy issues connected to data retention and sharing.<\/p>\n <\/p>\n Recommendations<\/strong><\/p>\n Currently, there is no global legal or policy framework to regulate the development and deployment of new technologies in migration management. This area is quickly becoming an out-of-sight laboratory<\/a> for experimenting with the governance, transparency, and accountability of machines in society. This gap raises profound issues for the human rights of migrants.<\/p>\n As a much-needed next step, all stakeholders involved in migration management, including states, international organizations, private sector actors, civil society, and affected communities need to be involved in setting up governance mechanisms for the use of new technologies such as AI, automated decision-making, and biometric data collection. This should include the adoption of binding directives or laws that comply with internationally protected human rights obligations. In addition, private companies working in migration management must ensure that their technologies are rights-complying.<\/p>\n In particular, Canada can play a leading role in setting up international parameters for the use of migration management technologies that observes the rule of law, including free, prior, and informed consent, transparent data collection and retention procedures, and protecting fundamental human rights such as the right to privacy and freedom from discrimination.<\/p>\n <\/p>\n How to cite this blog post:<\/strong> Atar, \u00d6zlem and Petra Molnar. 2020. \u00ab\u00a0Algorithms of Immigration Detention: Implications for Human Rights\u00a0\u00bb. In Introducing De-Carceral Futures: Bridging Prison and Migrant Justice<\/em>. Edited by Sharry Aiken and Stephanie J. Silverman. Accessed online at http:\/\/carfms.org\/introducing-de-carceral-futures\/<\/a><\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n<\/blockquote>\n <\/p>\n by Sarah Speight, Souheil Benslimane and Justin Pich\u00e9<\/em><\/p>\n <\/p>\n Canada is building new facilities to incarcerate people. Policy-makers at the federal, provincial, and territorial levels should push back against this costly, ill-advised, trend. Instead, they should redirect funding to collaborative transformative justice practices that save taxpayers\u2019 money and strengthen local communities. Imprisonment is an expensive, inhumane, and ineffective approach<\/a> to preventing and responding to criminalized acts, yet several jurisdictions across are constructing new and bigger facilities for human caging. From Newfoundland to British Columbia, governments are scheduling a range of immigration holding centres, jail expansion projects, and brand-new prisons for priority construction. A common justification is the need to improve conditions of imprisonment and reduce crowding, alongside promises to provide more programming and care to people behind bars \u2018closer to home\u2019. Yet, the notorious Toronto South Detention Centre (TSDC)<\/a> and other recently-constructed jails indicate that a new building fails to prevent the same old problems of violence, preventable death, segregation, and crowding.<\/p>\n In Newfoundland and Labrador, the provincial government has budgeted $1 million to expand the Labrador Correctional Facility. The government wants to ensure that women, including Indigenous people, protesting the hydro-electric project at Muskrat Falls, can \u201cbe jailed in a location closer to their families and loved ones\u201d<\/a>. At the same time, a $200 million facility is in the works to replace the province\u2019s aging Her Majesty\u2019s Penitentiary for men. Meanwhile, on Prince Edward Island, a $13 million, 34-bed facility is slated to be built on the grounds of the Provincial Correctional Centre. The \u2018closer to home\u2019 rhetoric echoes in Nova Scotia where provincial plans to replace Cape Breton Correctional Facility were justified through the \u201cdesire to keep [incarcerated people] in close proximity to their own communities\u201d.<\/a> Closer to home, but still in a cage.<\/p>\n Central Canada is planning new and bigger provincial jails as well. In Quebec, prison officials are contemplating the construction of a new prison for women on the grounds of the de-commissioned Maison Tanguay detention centre. In Ontario, new jails will go up in Thunder Bay and Ottawa, while the soon-to-be decommissioned Roy McMurty Youth Detention Centre in Brampton will become a 192-bed detention centre for women.<\/p>\n Further west, Manitoba\u2019s incarcerators plan to replace the 61-bed Dauphin Correctional Centre with a 180-bed healing lodge, thereby tripling the capacity to cage people. Finally, to the north, Nunavut and the Northwest Territories also plan to build more cages. Nunavut\u2019s 58-bed Baffin Island Correctional Facility will be replaced with a 112-bed healing lodge<\/a> for $74 million, while the prison authorities in the Northwest Territories plan to build a $23.6 million dollar, multi-security level facility designed to cage women that includes a segregation unit. These facilities are meant to keep prisoners in custody within their home-territories<\/a>, rather than shipping them elsewhere to serve their sentences.<\/p>\n It has become clear that building detention centres, jails, and prisons to keep incarcerated people in cages \u2018close to home\u2019 interests policy-makers across the levels of government. But this approach is misguided. Living in a cage close to home<\/em> is far from being home. Instead of expanding human caging infrastructure, such a \u2018closer to home\u2019 goal can be easily, affordably, and safely accomplished by diverting and decarcerating people through community-based alternatives.<\/p>\n Divesting from prison building will free up billions of taxpayers\u2019 dollars. Such funds could build safer and inclusive communities through attrition \u2013 which is to say a gradual reduction \u2013 of human caging in Canada via a \u201cjust transition\u201d. Working class, racialized climate justice activists coined the term \u201cjust transition<\/a>\u201d to recognize that industries which are harmful to employees, the environment, and communities need to be transitioned out \u2013 providing new pathways for other employment, as well as dignified, productive, and sustainable alternatives to harmful industries.<\/p>\n In the case of criminalized acts, a just transition away from imprisonment would involve building capacity for transformative justice approaches. Hinging on the belief that no one is disposable, transformative justice involves both those who have caused harm and those who have experienced it in a collaborative approach to resolving conflict to meet the human needs arising from harm and to prevent future violence.<\/p>\n The policy issue of prison construction therefore touches on and impacts many aspects of everyday life and policymaking in Canada. The just transition for prisoners and detainees involves not only rejecting the party line that more and bigger prisons make Canada safer but accepting that collaborative transformative justice practices will save money and strengthen communities.<\/p>\n <\/p>\n How to cite this blog post:<\/strong> Speight, Sarah, Souheil Benslimane and Justin Pich\u00e9. 2020. \u00ab\u00a0A just transition: Moving away from prison construction in Canada\u00a0\u00bb. In Introducing De-Carceral Futures: Bridging Prison and Migrant Justice<\/em>. Edited by Sharry Aiken and Stephanie J. Silverman. Accessed online at http:\/\/carfms.org\/introducing-de-carceral-futures\/<\/a><\/p>\n <\/p>\n Sarah Speight<\/strong> is a doctoral candidate in the Department of Geography, Environment and Geomatics at the University of Ottawa. Her research Interests include prison writing, carceral expansion, and prison abolitionism.<\/p>\n <\/p>\n <\/p>\n <\/p>\n<\/blockquote>\n <\/p>\n <\/p>\n by Martha Vargas Aguirre et David Moffette<\/em><\/p>\n <\/p>\n On a toujours voulu nous emp\u00eacher<\/em><\/p>\n Chez les nantis de nous installer<\/em><\/p>\n Mais pour fuir la mis\u00e8re ou la guerre <\/em><\/p>\n Nous allons toujours vers les pays qui prosp\u00e8rent<\/em><\/p>\n Jean-Paul Inisan, Migration plan\u00e9taire<\/p>\n <\/p>\n Ce fragment de po\u00e8me de Jean-Paul Inisan<\/a> fait \u00e9cho aux voix de ceux et celles qui quittent leur famille, leur langue, leur vie enti\u00e8re \u00e0 la recherche de nouvelles opportunit\u00e9s, d\u2019une vie digne, ou simplement de la possibilit\u00e9 de vivre. Mais quelle est la r\u00e9alit\u00e9 de ces \u00ab \u00e9trangers \u00bb dans ces \u00ab pays qui prosp\u00e8rent \u00bb, quels sont les contr\u00f4les auxquels ils sont soumis une fois que leurs pieds foulent le territoire r\u00eav\u00e9 ? Portant leurs d\u00e9sirs et leurs peines comme des bagages, ils arrivent aux \u00ab pays qui prosp\u00e8rent \u00bb et sont confront\u00e9s \u00e0 des processus bureaucratiques lourds et \u00e0 des \u00e9valuations contraignantes, autant d\u2019\u00e9preuves qu\u2019ils doivent traverser dans l\u2019espoir d\u2019obtenir le feu vert pour y r\u00e9sider.<\/p>\n Ces pays, imagin\u00e9s comme des \u00ab terres promises \u00bb, sont souvent loin d\u2019\u00eatre les territoires accueillants dont r\u00eavent les gens. Dans le but d\u2019arr\u00eater les \u00ab vagues \u00bb d\u2019\u00e9trangers qui, en raison de leur statut ou de leur nationalit\u00e9, ne sont pas consid\u00e9r\u00e9s comme \u00ab d\u00e9sirables \u00bb, ces pays mettent en place des syst\u00e8mes de contr\u00f4le s\u00e9v\u00e8res et largement restrictifs pour certains types de migration. Dans ce contexte, l\u2019utilisation du droit p\u00e9nal comme outil suppl\u00e9mentaire de contr\u00f4le des non-citoyens s\u2019est av\u00e9r\u00e9e un outil \u00ab efficace \u00bb mais tr\u00e8s probl\u00e9matique. Ainsi, deux champs diff\u00e9rents du droit (le droit de l\u2019immigration et le droit p\u00e9nal) \u2013 qui ont des proc\u00e9dures et des garanties juridiques diff\u00e9rentes et qui sont th\u00e9oriquement ax\u00e9s sur la r\u00e9gulation de deux groupes de personnes distinctes \u2013 sont pourtant appliqu\u00e9s conjointement lors de la r\u00e9gulation de l\u2019entr\u00e9e, de la pr\u00e9sence, ou de l\u2019expulsion de non-citoyens.<\/p>\n Ce croisement ou intersection entre le droit de l\u2019immigration et le droit criminel a \u00e9t\u00e9 largement discut\u00e9 et critiqu\u00e9. Dans un article \u00e0 para\u00eetre cet automne dans la revue scientifique Criminologie<\/a>, David Moffette explique comment cette rencontre prend forme et comment des arr\u00eats r\u00e9cents de la Cour supr\u00eame du Canada ont permis certains progr\u00e8s, m\u00eame insuffisants, en faveur des droits de migrants criminalis\u00e9s ou d\u00e9tenus. Moffette explique qu\u2019au Canada, il existe quatre types de contextes dans lesquels le droit criminel et le droit de l\u2019immigration se rejoignent pour contr\u00f4ler les non-citoyens.<\/p>\n Les politiques migratoires doivent \u00eatres planifi\u00e9es et con\u00e7ues dans une vis\u00e9e de justice sociale et de mise en \u0153uvre effective des droits humains. Il s\u2019agit du seul moyen d\u2019\u00e9viter que les personnes d\u00e9plac\u00e9es ne soient \u00e0 nouveau victimes (d\u2019expulsion, de d\u00e9portation ou de la pr\u00e9carit\u00e9 de la vie dans la clandestinit\u00e9). La gestion de l\u2019immigration comme un probl\u00e8me de s\u00e9curit\u00e9 ou comme une question d\u2019utilit\u00e9 est \u00e0 l\u2019origine des r\u00e9gulations r\u00e9pressives. Si les politiques migratoires continuent \u00e0 \u00eatre con\u00e7ues comme des outils permettant de faire le tri des personnes en fonction des avantages qu\u2019elles apporteraient \u00e0 la soci\u00e9t\u00e9 d\u2019accueil, la justice sociale et les droits humains resteront toujours au second plan. Dans ce contexte, les avanc\u00e9es juridiques qui d\u00e9coulent des arr\u00eats r\u00e9cents de la Cour supr\u00eame sont insuffisantes et il nous faut promouvoir un changement de perspective complet si nous voulons que les droits humains des personnes migrantes soient une priorit\u00e9. <\/p>\n <\/p>\n How to cite this blog post:<\/strong> Vargas Aguirre, Martha and David Moffette. 2020. \u00ab\u00a0Criminalisation et Immigration : Une Relation Probl\u00e9matique\u00a0\u00bb. In Introducing De-Carceral Futures: Bridging Prison and Migrant Justice<\/em>. Edited by Sharry Aiken and Stephanie J. Silverman. Accessed online at http:\/\/carfms.org\/introducing-de-carceral-futures\/<\/a><\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n<\/blockquote>\n <\/p>\n <\/p>\n by Falak Mujtaba and Stephanie J. Silverman<\/em><\/p>\n <\/p>\n Introduction<\/strong><\/p>\n In 2017 the Ontario Superior Court decided in Scotland v Canada<\/em><\/a> to grant release to Mr. Ricardo Scotland from immigration detention. Mr. Scotland<\/a>, a 38-year-old refugee claimant from Barbados, spent 17 months in the maximum-security Niagara Detention Centre in Thorold, Ontario. Mr. Scotland did not have any criminal record and was never convicted of a crime. In 2013, Mr. Scotland had been criminally charged with possession of a firearm, narcotics, and stolen property. Although his criminal charges were dropped and he was released, the Immigration Division (ID) on four separate occasions claimed that he had breached his conditions. Mr. Scotland was thus arrested on the grounds of flight risk under the Immigration and Refugee Protection Act<\/a> (IRPA<\/em>).<\/p>\n Mr. Scotland did not secure release through the usual channel of a hearing<\/a> before an ID member; rather, he was freed on a writ of habeas corpus<\/em><\/a>\u2013 a legal declaration that found his continued administrative detention to be unlawful<\/a>. Canadian law codifies the writ of habeas corpus <\/em>in S.10 of the Charter of Rights and Freedoms<\/a> (the Charter<\/em>). It empowers any prisoner or detainee to request an assessment of the lawfulness of their detention at the provincial Superior Court. The cases usually turn on information and evidence about why <\/em>the liberty of the detainee is being restricted, along with the merits of the accusations against them. The so-called Peiroo<\/em><\/a> exception had previously prevented immigration detainees from accessing habeas corpus<\/em>; but, in 2015, the decision in Chaudhary<\/em><\/a> recognized the availability of habeas corpus <\/em>in detention-related matters across Ontario. Most recently, in Chhina<\/em><\/a>, the Supreme Court restored access<\/a> to the writ for all detainees across the country. This restoration is especially important in a federal system that does not observe upper time limits on immigration detention, meaning that the Federal Government is effectively empowered to indefinitely incarcerate non-citizens<\/a> if the legal grounds for arrest stand up to ongoing validation.<\/p>\n This post takes up research on<\/a> Mr. Scotland\u2019s case to reveal some of the built-in injustices in the Canadian immigration detention system. We argue here that the legal remedy of habeas corpus<\/em> is valuable but its efficacy is intrinsically limited by policy, its discretionary interpretation, and other constraints.<\/p>\n <\/p>\n The Penal-Like Detention System<\/strong><\/p>\n Criminal law is penetrating migration policy, but without the attendant protections and rights afforded to people in the criminal justice sphere. Although criminal imprisonment and detention are technically and legally distinct, the overlap<\/a> of administrative and criminal penalties links them. Increasing criminalization<\/a> renders migrants \u2013 and people who \u201clook like\u201d migrants<\/a> – vulnerable to becoming both victims and perpetrators of crimes and injustices. A key example is the range of \u2018offences\u2019 that only apply to non-citizens, such as over-staying a temporary residence visas and working without a permit. Canadian policy dictates that these banal infractions carry the serious consequences of potential arrest, detention, and removal. Canada draws on an arrangement with its provinces to incarcerate about a third of the detainee population in provincial jails<\/a>,<\/u> like what happened to Mr. Scotland. In these institutions, all <\/em>prisoners face lockdowns, segregation, and limited access to recreation and healthy food, whether on an immigration hold or otherwise.<\/p>\n <\/p>\n Implicit Biases in the Canadian Immigration Detention System<\/strong><\/p>\n Canada identifies as a multicultural and inclusive society; yet scholars<\/a> have<\/a> repeatedly<\/a> demonstrated the racial, gendered, classed, ableist, colonial, and other biases<\/a> in its historical and contemporary approach to crafting immigration policies, including detention<\/a>. Popular discursive and historical frames see migrants as dangerous, criminal, and overall risky to Canada. Such archetypes animated the discourse surrounding the 2009 boat arrival of the MV Sun Sea<\/em><\/a> from Thailand and the 2010 arrival of the MV Ocean Lady<\/em><\/a> from Sri Lanka to the coast of British Columbia. In both cases, the Conservative Governments of Stephen Harper (2006-2015) marked<\/a> these refugees as terrorists, smugglers, and security threats. These marks exacerbate anti-immigration sentiments in Canada, effectively transforming certain newcomers into legally detainable bodies.<\/p>\n <\/p>\n Moving Forward<\/strong><\/p>\n Ricardo Scotland\u2019s detention highlights why new thinking on the remedy of habeas corpus<\/em> is needed. Restoration of habeas corpus<\/em> does not and cannot address the larger discriminatory and punitive problems in Canadian detention policies and practices. Instead of overly valorizing the utility of habeas corpus<\/em>, concerned community members should push for new, robust, and rights-protecting policy that is ideally based in a vision of Canada without detention<\/a>,<\/u> not Canada with \u201cbetter\u201d detention.<\/p>\n <\/p>\n How to cite this blog post:<\/strong> Mujtaba, Falak and Stephanie J. Silverman. 2020. \u00ab\u00a0The Limits of Judicial Remedies to Policy Problems: Examining the Restoration of Habeas Corpus for Immigration Detainees in Canada\u00a0\u00bb. In Introducing De-Carceral Futures: Bridging Prison and Migrant Justice<\/em>. Edited by Sharry Aiken and Stephanie J. Silverman. Accessed online at http:\/\/carfms.org\/introducing-de-carceral-futures\/<\/a><\/p>\n <\/p>\n Falak Mujtaba <\/strong>is a PhD (c) at the University of Toronto. Her work focuses on the racialized and gendered nature of immigration detention and exclusionary citizenship practices in Canada.<\/p>\n <\/p>\n <\/p>\n <\/p>\n by Almeera Khalid and Sharry Aiken<\/em><\/p>\n <\/p>\n This post will explain the socio-legal rationale for \u2018preventive detention\u2019 that serves as an implicit justification for incarcerating migrants in Canada. Policy-makers should be troubled by the legislation that introduces a very low threshold of proof needed before the government can incarcerate someone for a legally limitless period of time. Four recent cases demonstrate the legal fault lines of this policy. This post will focus, therefore, on a core idea behind <\/em>detention in order to flesh out why policy-makers should devote more attention to immigration detention.<\/p>\n \u201cPreventive detention\u201d in law<\/strong><\/p>\n As mentioned in the Introduction to this post, the Immigration and Refugee Protection Act (IRPA) is Canada\u2019s immigration framework legislation. IRPA<\/a> stipulates the reasons that can justify so-called \u201cpreventive detention\u201d and delegates power and authority to CBSA officials to incarcerate non-citizens if they have \u201creasonable grounds to believe\u201d that they may qualify for one or more of the detention grounds. Yet, each ground is really a means to prevent something from happening: namely, some combination of absconding, identity fraud, and\/or future criminal or security infractions.<\/p>\n Put another way, the rationale behind preventive detention is threefold: first, that some people can be deemed to pose \u201crisks\u201d to safety or security that never abate; second, that this label should be applied to non-citizens as a precursor to removal from Canada; and, third, that the Canadian government has a responsibility to limit risky non-citizens\u2019 access to the community in order to prevent these potential harms from occurring.<\/p>\n While IRPA\u2019s provisions stipulate that the law must be applied in a manner which is consistent with the Charter<\/em> of Rights and Freedoms <\/em>and the international human rights instruments to which Canada is a signatory, these caveats have failed to prevent abuses. Revised Detention Guidelines<\/a> promulgated by the Immigration and Refugee Board (IRB) stipulate that immigration detention is as an \u201cexceptional measure\u201d and emphasize that detainees are entitled to a \u201crobust and meaningful review\u201d. Nevertheless, individuals detained on the basis of alleged criminality or security concerns have all too often found themselves caught up in an endless cycle of review with no prospect of actual release. As noted by an external audit<\/a> of the IRB\u2019s Immigration Division last year, \u201cnotable discrepancies\u201d between expectations articulated by the courts and actual practice persist.<\/p>\n It is likely that this policy issue is little-known because the detainees whom it most affects are often marginalized. Real-life case studies demonstrate the profound consequences of Canada\u2019s policy failures. Take, for instance, the case of Mr. Kashif Ali<\/a> in Ontario. Mr. Ali claimed refugee protection in Canada in 1986, but was declared \u2018inadmissible\u2019 in 1995 after a spate of criminal convictions for petty offences related to drugs. After serving his criminal sentence, Mr. Ali entered immigration detention although he was physically incarcerated in a provincial maximum-security correctional centre. He endured seven years of imprisonment until the Canadian government eventually deemed him \u201cstateless<\/a>\u201d and released him on conditions in 2017. His lawsuit for compensation<\/a> for unlawful detention alleges that he continues to suffer today from depression and anxiety stemming from his confinement and, specifically, the beatings from guards, near-daily lockdowns, and time in segregation.<\/p>\n Profiled in the \u201cCaged by Canada\u201d expos\u00e9 in the Toronto Star, Ebrahim Tour\u00e9<\/a> spent 5 \u00bd years behind bars because the Canadian Border Services Agency believed he would not show up for removal if it was ever arranged. Mr. Tour\u00e9 spent the first 4 \u00bd years in a maximum-security jail. After his transfer to the Toronto immigration holding centre, Mr. Tour\u00e9<\/a> was eventually released in September 2018. The UN Working Group on Arbitrary Detention was asked to consider Mr. Tour\u00e9\u2019s case. Its June 2019 conclusions<\/a> rebuked Canada for its continued failure to implement clear legislative standards limiting the maximum period for detention in the course of migration proceedings.<\/p>\n In 2016, the Inter-American Commission on Human Rights (IACHR) released its decision in the case of Mr. Manickavasagem Suresh. Mr. Suresh had been subject to an \u201cimmigration security certificate\u201d on the basis of an alleged association with the Tamil Tigers. Mr. Suresh sought to refute the allegations against him but languished in the Don Jail for almost two and a half years before he was released. The IACHR concluded<\/a> that Canada had violated an immigration detainee\u2019s right to a fair trial and protection from arbitrary arrest by denying Mr. Suresh access to a prompt and adequate means of challenging the legality of his detention. The IACHR ruled that the circumstances of Mr. Suresh\u2019s detention constituted a clear violation of his right to equality under the law and concluded that Canada should grant Mr. Suresh reparations, including compensation.<\/p>\n This past year, the Supreme Court of Canada considered the case of Mr. Tusif Ur Chhina\u2019s application for access to the legal remedy of habeas corpus<\/em>. Lawyers for Mr. Chhina were challenging the basis of his 13-month detention in an Alberta correctional centre following his time spent in criminal custody (see Mojtuba and Silverman, in this series, on habeas corpus<\/em>). The Court ruled<\/a> that while the IRPA protects against arbitrary detention, in application its scheme is not as broad and advantageous as habeas corpus<\/em>. The Court drew attention to the IRPA\u2019s statutory scheme providing inadequate procedural mechanisms to challenge the length, uncertain duration, and location of detention. It thus reinstated cross-Canada access to habeas corpus<\/em> for all detainees. As for Mr. Chhina, he was deported from Canada in 2017\u2014after nearly two years on lockdown for 22.5 hours per day at the Calgary Remand Centre and long before the injustices of his plight could be remedied.<\/p>\n This post has thus attempted to lay out the legal debate over the limits of \u201cpreventive detention\u201d. All of these cases illustrate the coercive power of the CBSA in indefinitely incarcerating people for past criminal activity (Mr. Ali, Mr. Tour\u00e9 and Mr. Chhina) and presumed security risk (Mr. Suresh). While recent initiatives to promote alternatives to detention<\/a> and reduce the overall numbers of non-citizens in detention may be a step in the right direction, these policies are no substitute for law reform that puts an end to indefinite immigration detention in Canada. Most importantly, policy-makers must not turn away from the \u201chard\u00a0\u00bb cases when thinking through the legal fault lines of current detention practices.<\/p>\n <\/p>\n How to cite this blog post:<\/strong> Khalid, Almeera and Sharry Aiken. 2020. \u00ab\u00a0Legal Fault Lines in the Hard Cases\u00a0\u00bb. In Introducing De-Carceral Futures: Bridging Prison and Migrant Justice<\/em>. Edited by Sharry Aiken and Stephanie J. Silverman. Accessed online at http:\/\/carfms.org\/introducing-de-carceral-futures\/<\/a><\/p>\n <\/p>\n\n
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<\/a>Stephanie J. Silverman<\/strong> is a detention researcher with a PhD from the University of Oxford. Her book, The Detention Estate<\/em>, will be published by McGill-Queens University Press in 2021. She is a founding partner at Thinking Forward, a human rights consultancy firm, and co-director of the De-Carceral Futures project. For three years, Dr. Silverman was the Bora Laskin National Fellow in Human Rights Research, and for six years she was on faculty at Trinity College, University of Toronto. This year she is a Research Associate at the Centre for Refugee Studies, York University, and on secondment at the Immigration and Refugee Board of Canada.<\/p>\n![\"\"](\"http:\/\/carfms.org\/wp-content\/uploads\/2020\/02\/Sharry-Aiken.jpg\")
<\/a>Sharry Aiken<\/strong> is an Associate Professor at Queen\u2019s University’s Faculty of Law. Sharry is a past president of the Canadian Council for Refugees, co-editor of the PKI Global Justice Journal, and former Editor-in-Chief of the journal Refuge<\/em>. She co-organized the \u201cDecarceral Futures\u201d workshop convened in May 2019 at Queen\u2019s University with Stephanie Silverman and Lisa Guenther.<\/p>\n
\nAlgorithms of Immigration Detention: Implications for Human Rights<\/strong><\/h2>\n
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<\/a>\u00d6zlem Atar<\/strong> is a PhD student in Queen\u2019s University’s Cultural Studies Graduate Program. Her research focuses on migration justice and family narratives on undocumented migration from Central America and Mexico. She served as the Graduate Research Fellow for the De-Carceral Futures Workshop convened on May 9 and 20, 2019 at Queen’s Law School. <\/p>\n![\"\"](\"http:\/\/carfms.org\/wp-content\/uploads\/2020\/02\/Petra-Molnar.jpg\")
<\/a>Petra Molnar<\/strong> is the acting director of the International Human Rights Program, University of Toronto Faculty of Law and a Mozilla Open Web Fellow working with European Digital Rights (EDRi) on the human rights impacts of migration control technologies.<\/p>\n
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A Just Transition: Moving Away from Prison Construction in Canada<\/strong><\/h2>\n
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![\"\"](\"http:\/\/carfms.org\/wp-content\/uploads\/2020\/02\/Souheil-Benslimane.jpg\")
<\/a>Souheil Benslimane<\/strong> is an illegalized and criminalized migrant who is currently awaiting imminent deportation to Morocco. Souheil became involved in abolitionist as well as prisoner and migrant justice organizing as a member of the Criminalization and Punishment Education Project (CPEP), a member of the Ottawa Sanctuary Network (OSN), and the Coordinator of the Jail Accountability and Information Line (JAIL). His first peer-reviewed article, co-authored with David Moffette, (Assistant Professor, Criminology, University of Ottawa), is entitled \u201cThe Double Punishment of Criminal Inadmissibility for Immigrants\u201d appeared in Volume 28 of the Journal of Prisoners on Prisons <\/em>in the summer of 2019.<\/p>\n![\"\"](\"http:\/\/carfms.org\/wp-content\/uploads\/2020\/02\/Justin-Piche.png\")
<\/a>Justin Pich\u00e9<\/strong> is an Associate Professor in the Department of Criminology and Director of the Carceral Studies Research Collective at the University of Ottawa. He is also Co-editor of the Journal of Prisoners on Prisons<\/em> and a founding member of the Criminalization and Punishment Education Project.<\/p>\n
\nCriminalisation et Immigration : Une Relation Probl\u00e9matique<\/strong><\/h2>\n
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<\/a>Martha Alexandra Vargas Aguirre<\/strong> is a PhD student in the Department of Criminology at the University of Ottawa. Her main research interests are south-south immigration, immigration regulation, racism, and criminal policy.<\/p>\n![\"\"](\"http:\/\/carfms.org\/wp-content\/uploads\/2020\/02\/David_Moffette_s.png\")
<\/a>David Moffette<\/strong> is an Assistant Professor in the Department of Criminology at the University of Ottawa. He studies questions related to the criminalization and securitization of immigration, borders, policing, and racism.<\/p>\n
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The Limits of Judicial Remedies to Policy Problems: Examining the Restoration of Habeas Corpus<\/em> for Immigration Detainees in Canada<\/strong><\/h2>\n
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<\/a>Stephanie J. Silverman<\/strong> is a detention researcher with a PhD from the University of Oxford. Her book, The Detention Estate<\/em>, will be published by McGill-Queens University Press in 2021. She is a founding partner at Thinking Forward, a human rights consultancy firm, and co-director of the De-Carceral Futures project. For three years, Dr. Silverman was the Bora Laskin National Fellow in Human Rights Research, and for six years she was on faculty at Trinity College, University of Toronto. This year she is a Research Associate at the Centre for Refugee Studies, York University, and on secondment at the Immigration and Refugee Board of Canada.<\/p>\n<\/blockquote>\n
\nLegal Fault Lines in the Hard Cases<\/strong><\/h2>\n
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![\"\"](\"http:\/\/carfms.org\/wp-content\/uploads\/2020\/02\/Almeera-Khalid_s.jpg\")
<\/a>Almeera Khalid<\/strong> is an undergraduate student at the University of Toronto. She is pursuing a double major in Ethics, Society, and Law along with Criminology and Socio-legal studies and a minor in Political Science. She is involved in student groups driving for change and volunteers with community organizations in her spare time. She is interested in how law and policy translate back into society and is passionate about immigration and foreign policy, human rights, and creating\/ sharing a space for people of colour to step up into leadership.<\/p>\n