Comments for Fact-Finding in Immigration Detention Reviews: Evidence Law meets Administrative Law’s panel on Tinkering at the Edges?
By Dr. Stephanie J. Sivlerman
Coming to you from Toronto, dish w one spoon territory, in the midst of at least three pandemics of COVID19, white supremacy, and the opioid crisis. Drawing on my own research and that of the wider migration studies literature, I’d like to bring the focus back to conditions of detention, release from detention, how detention devastates racialized communities, and future directions towards ending detention.
Incarcerating people for weeks, months and years because the State wants to send them away, is wholly abnormal. Detention separates parents from kids, and all sorts of people from their wider communities, so that the State can more expeditiously arrange their removals. Even short periods of detention leave lasting trauma for people. I have spoken to former detainees whose recollections of their one or two days of detention causes people to cry and break down years later. Importantly, there is no research literature to suggest that detention makes the community safer.
But, somehow, over the past fifty years, detention has standardized into routine law and policy in Canada alongside every other liberal State. The meteoric growth of detention is thus puzzling both for its stark rights infringements but also for how this meteor has flown brightly but unseen across the public outrage radar. How can the forfeiture of basic rights for thousands if not millions of people occur simply because they dared to cross a national border outside the normalized structure?
Even before COVID19 pandemic-related Quarantine orders closed its borders to everyone but Canadian citizens, Canada controlled newcomers through a difficult visa and “points” system of entry privileges. Canada draws on the moral authority of a self-identifying liberal, multicultural community to create, maintain, and enforce laws and policies that illegalize people’s migrations, mobilities, and bodies. While it professes a respect for human rights and core normative values like universal human rights and respect for equality, dignity, and liberty; Canada is also a settler -colonial State that relies on immigration to continue the colonization process begun with First Contact.
The migration studies literature discusses how Canada and other refugee-receiving states capitalize through perpetuating an image of a country under siege from a ‘refugee crisis’. Detention is then manufactured as a solution to this falsified problem.
There is great symbolic power in the state’s capacity to demonstrate demobilization, criminalization, and securitization of racialized non-citizens. This symbolic power can override or cancel out the gravity of the fact that detention rarely achieves its policy goals but exacts high financial, social, and other costs of detainees and their networks. As such, what some scholars call a ‘politically successful policy failure’ is positioned to play a pivotal role in a ‘spectacle’ of arrest, incarceration, and removal.
This workshop has focused on how the law requires detainees to both show and tell their stories in a way that is credible and believable. Yet, the literature on bail or parole in the immigration context indicates wild variability in release plans.
There is no guidance on how to craft the minimum or maximum standards for a release plan and so it becomes the responsibility of the Immigration Division Member.
Release conditions usually include, at a minimum, regular reporting with a CBSA officer as often as every week. Not only can the reporting requirement be costly financially and time-wise, but it “may create a barrier to gaining and maintaining employment, particularly where travel is required to fulfil the duty to report.”
Both healthcare and social support are under provincial jurisdiction, with the specifics of eligibility and coverage varying according to jurisdiction despite immigration powers being federal and allegedly equally divided amongst the territory.
Canada does not systematically screen potential detainees for mental, physical, or other health issues before or during detention. It does not offer psychological counselling services, let alone legal services. In fact, detainees exhibiting certain behavioural problems—such as aggressiveness—or severe mental health difficulties—such as suicidal tendencies—may be transferred to prisons where there is on-site medical staff “for their own good”.
Within Canadian territory, at ports of entry, and abroad, there is no effective and transparent monitoring of the Canadian detention system. There are no watchdogs for CBSA guards, immigration decision-makers, or other immigration officials. There is no official provision of child care for kids left behind, mental health supports, and medical care for being on the inside or the outside. There are no rehabilitative purposes to detention.
Independent monitors are often barred from detention centres, and their reports are not published publicly.
Media are often denied permission to enter detention sites.
People get “lost” in detention because there is no hotline to phone or automatic locating service to find a detainee, like in the must larger American detention system.
CBSA officers are known to “go rogue” in pursuit of detention or deportation, including using confidential informants despite evidence law regulations barring this practice.
Two more quick examples from research that are relevant to questions of evidence:
issue of who can serve as a surety or bonds person to gain release: no guidance!
What is an alternative? No definition
There is a recurring issue of who gets labelled dangerous in the NRAD process that lends an algorithmic veneer or lacquer to discretionary CBSA decisions to allocate arrested immigrants wither to IHCs or prisons. Our research shows how easy it is to level and affix this charge of dangerousness and how difficult it is to shake off this label
As a closing note, I’d like to direct attention to the 2018 R v Morris case, which provides insights on the normative foundations of sentencing principles and that may have ripple effects on immigration detention. Justice Shaun Nakatsuru’s 2018 decision at the Ontario Superior Court of Justice drew on pre-sentencing reports on anti-Black racism and the social history of the defendant. He accounted for systemic racism in the sentencing of Kevin Morris for his criminal offence.
The Black Legal Action Centre agrees with Justice Nakatsuru’s approach. The Centre argues that anti-Black racism by the police should be considered at sentencing hearings going forward. In so doing, we might see that the Black Legal Action Centre is advocating against an unfair evidentiary burden for Black offenders. In this way, the Centre is attempting to address an issue that already exists with the sentencing of Indigenous offenders under the Gladue Principles.
Bringing these insights into the immigration sphere, we would do well to pay closer attention to who the CBSA is targeting and arresting for immigration related infringements, where and under what conditions they are holding them, and for how long. The Morris case also carries potential implications for the Faster Removal of Foreign Criminals Act, which attaches removal as a collateral consequence for a criminal sentence of 6 months plus a day, the most draconian in the common law world. The Faster Removal of Foreign Criminals Act also leads to de facto mandatory detention post-sentencing, therefore returning us to the questions of release, evidence, and detention failing to achieve the policy aims for which Canada continues to justify it.