Mr. Scotland

Four alleged “breaches” characterize Mr. Scotland’s seventeen-month incarceration in the Niagara Detention Centre run by the Ontario Ministry of Community Safety and Correctional Services. The Canada Border Services Agency (CBSA) presented these breaches to the Members of the Immigration Division (ID) of the Immigration and Refugee Board (IRB), the presiding and independent decision-makers on admissibility hearings and detention reviews. As will be shown, each of these alleged grounds was discredited. Importantly, there were only ever allegations against Mr. Scotland, never any convictions.

The account begins with Mr. Scotland filing a claim for refugee status in December 2010. As codified in Immigration and Refugee Protection Act (IRPA) Section 49(2), he was issued a conditional removal order after lodging his claim for asylum. In August 2013, Mr. Scotland’s home was raided, and he was arrested on charges of possession of narcotics, a firearm, and stolen property over $5,000. Notably, all charges were eventually either withdrawn or stayed. One obligation incurred by Mr. Scotland under the Section 49(2) order was to inform the CBSA when he changed his address. As such, the first “breach” was that Mr. Scotland did not inform the CBSA of his “change of address” upon arrest. However, it was later demonstrated that Mr. Scotland did in fact telephone the CBSA’s 1-888 number from jail, though it is unclear whether the phone call was answered and noted. Nonetheless, getting arrested should not be considered a change of address, yet this “breach” led to Mr. Scotland’s incarceration on immigration hold.

On July 4, 2013, Mr. Scotland’s friend Ms. Patricia Baker posted a $2,000 bond for his release. The CBSA’s recommended condition was that Mr. Scotland was to remain under house arrest at Ms. Baker’s residence. The second “breach” occurred when the police incorrectly accused Mr. Scotland of associating with a prohibited person and arrested him for breaching his criminal release conditions. Despite the fact that he was released from criminal detention and the police acknowledged that no criminal breach occurred, the ID and the CBSA placed Mr. Scotland in immigration detention and continued to maintain that Mr. Scotland breached his immigration release conditions by not complying with his criminal bail conditions. This resulted in more stringent release conditions. Ms. Baker and a new bondsperson were each required to post bonds in the amount of $2,500, and the ID added two more weekly immigration check-ins to the two criminal check-ins already stipulated in the terms of Mr. Scotland’s criminal bail release, leading to a total of four separate requirements to report each week (two to the police, two to the CBSA).

The third “breach” concerned an alleged “failure to report” on one day to both his criminal and immigration check-in after a year of reporting four times a week. After being arrested by the police, the Criminal court determined Mr. Scotland to be not guilty of a breach and ruled that he had simply become confused by the shortened week due to the August civic holiday. Irrespective of the criminal court’s determination, the CBSA maintained that Mr. Scotland had breached, and the ID simply accepted without question the CBSA’s position that his intention was irrelevant. His release was only secured through the imposition of a more stringent curfew. The fourth “breach” relates to confusion over the cancellation of Mr. Scotland’s curfew on the criminal side but not on the immigration side. The cumulative totality of his breaches caused the ID Member to reject Mr. Scotland’s proposed bondsperson, and he was imprisoned at the maximum-security provincial correctional centre in Thorold, Ontario. He remained in this prison until his habeas corpus writ was certified, and Mr. Scotland was set free without conditions.

A final noteworthy episode is the extraordinary nature of the ID’s May 2017 rejection of a joint submission filed by the CBSA and Mr. Bharati’s office in support of Mr. Scotland’s release. The ID Member apparently rejected the submission due to the burden of prior negative decisions. The Member made lengthy reference to incidents when Mr. Scotland supposedly visited a car dealership without his surety despite the fact that security video had clearly shown the surety to be present. Nevertheless, Morgan J writes that “the ID member appears to have used [the visit to the car dealership] against Mr. Scotland. In her stated reasons, she posed it as a ground for rejecting the joint proposal that was before her.”^{Footnote 4}

The Canadian Immigration Detention System: An Overview

Habeas corpus is understood as “an essential remedy in Canadian law.”^{Footnote 29} The Canadian Charter of Rights and Freedoms (the Charter) Section 10(c) guarantees the right to have the validity of a detention determined by way of habeas corpus through an application to Superior Court, and to be released if the detention is unlawful. Khela confirmed that jurisdiction to assess both the procedural fairness and the reasonableness of an individual detention decision lies with provincial superior courts, an implication taken up in Chaudhary that the same principle applies to immigration detention because the issue is the incarceration not the migration status. As the numbers of habeas corpus applications and those cases challenging the lawfulness of a detention multiply, and in the absence of legislative progress towards a time limit, serious questions are being asked about the promises and limitations of habeas corpus for Canadian detainees.^{Footnote 30}

From 2012 to 2017, the Canada Border Services Agency (CBSA) detained an average of 7,215 individuals for immigration-related reasons each year. In 2012, the CBSA carried out close to 19,000 deportations, more than doubling its deportation rate of 8,000 people from 2002, and denied entry to about 51,000 individuals.^{Footnote 31} In fiscal year 2016–2017, CBSA reports detaining 6,251 individuals for a total of 131,617 “detention days,” with an average of 19.5 days spent incarcerated.^{Footnote 32} There are no legislated upper time limits.^{Footnote 33} CBSA statistics reveal that 439 people were detained for over ninety days during the 2016–2017 fiscal year.

The IRPA^{Footnote 34} sets the grounds for detention in Canada exclusively as a danger to the public, as a flight risk,^{Footnote 35} in cases involving security, and in cases where identity has not been established.^{Footnote 36} Absent these factors, the official presumption is in favour of release. The CBSA is the migration enforcement arm of the Government of Canada, overseen by the Ministry of Public Safety and Emergency Preparedness. Section 55 of the IRPA vests CBSA officers with the power to arrest individuals. When the IRPA replaced the Immigration Act, which had been in place since 1976, it broadened CBSA immigration officers’ discretionary powers to detain. Unlike with Immigration Act rules, the IRPA transformed detention into an administrative procedure. As such, officers can detain non-citizens without a warrant. By law, detention is a last resort, and a decision to be made after all other options have been considered and rejected.

The CBSA operates three detention centres, called immigration holding centres (IHCs). The IHCs are located in Toronto (195 beds), Montreal (150 beds), and Vancouver (twenty-four beds, and for detentions of less than seventy-two hours). The holding centres are securitized sites, featuring barbed-wire fences, CCTV surveillance, and uniformed guards who survey and control detainees’ movements in the centres. The main site is the Toronto IHC, officially described as a “low risk detention facility.” Until recently,^{Footnote 37} the Toronto IHC refused to admit anyone with criminality regardless of the nature of the crimes committed, sometimes even when there are only allegations, like with Mr. Scotland’s case.

The system exhibits regional and gender disparities: the Central Region (Ontario minus Ottawa and Kingston) hosted over half of immigration detainees in Canada in fiscal year 2016–2017, and 76 per cent of the population are men.^{Footnote 38} The Audit found that Ontario hosted “the files with long-running and recurring deficiencies,” “the lowest rate of representation by counsel,” and “five individuals who were held for more than two years [of whom] only one was eventually deported.” The Canada Border Services Agency transfers or holds about one-third of detainees to provincial correctional centres, such as the Niagara Detention Centre, where Mr. Scotland was sent. Between 2010 and 2014, an average of over 242 children per year were detained in Canada. As a legal rule, children and youth (minors under eighteen years of age) should not be detained, and the issue of detaining children is highly controversial in Canada.^{Footnote 39}

Although it is within their remit, it is rare for CBSA Officers to release arrestees within forty-eight hours, before they hand over jurisdiction to the ID. The CBSA claims that 74 per cent of detainees are released within forty-eight hours and that 90 to 95 per cent of asylum applicants are released into the community.^{Footnote 40} Silverman and Molnar identify at least three intersecting issues that snowball to inhibit access to justice for detained migrants in Canada: namely, “(1) curtailed telephone access and the arbitrariness of decision-making; (2) the interactions of time, evidence, and prohibitive release conditions to diminish the efficacy of monthly reviews; and (3) the overlapping funding, geographical, informational, and other barriers to finding and retaining high-quality counsel.”^{Footnote 41}

All immigration detainees are issued conditional removal orders on the premise that the detention cell is a prison with three walls. However, actual removal from Canada is not always possible, since each removal is a two-way agreement between Canada and the receiving State. A top obstacle is access to travel documents for detainees who do not have authentic identification papers: since no one can cross a transnational border without official documents, Canada needs to wait until the receiving State agrees that the detainee is their national and then produces a passport or similar document to facilitate their travel. Some States refuse to issue travel documents to people with criminal convictions, with Jamaica recently topping this list.^{Footnote 42} Some detainees are de jure stateless like the Rohingya in Myanmar or, more commonly amongst the detained population, are de facto stateless like Palestinians. Other detainees are virtually unremovable, and they include people whose countries of citizenship or habitual residence are “failed States” or States where the principle of non-refoulement could be violated, such as Somalia;^{Footnote 43} who have pending “Humanitarian and Compassionate applications”;^{Footnote 44} who are unwell physically and not fit to fly; or who are otherwise not able to gain admission in to State in the short-term. As such, long-term detainees are virtually inevitable, although this population is “both more psychologically and physically damaged from their experiences in IHCs and provincial jails, and more likely to remain in Canada after release.”^{Footnote 45}

Since the CBSA is a federal body, it must pay the provincial correctional ministries to rent space in their correctional centres. The charges to CBSA range from $184 per day in Quebec to $448.69 for women in New Brunswick. Subcontracting space in Ontario costs the CBSA $258 per person per day. In May 2017, there were about 113 detainees in Ontario prisons, eighty-eight of whom were not seen as dangerous; for this non-dangerous population, the daily cost to the CBSA is approximately $22,188.^{Footnote 46} All of these costs are borne by Canadian taxpayers.

There is no effective and transparent monitoring of the detention system. There is no watchdog for CBSA officials or facilities, or for the conditions of confinement for detainees held in provincial jails. Independent monitors are often barred access to these facilities, and their reports are not published publicly. There are also reports of detainees being held in segregation units, for which there is no legal remedy or time limit. Detainees also speak about the pains of lockdowns endured by criminal justice prisoners in Ontario.^{Footnote 47} As regards vulnerable adults, CBSA does not systematically screen potential detainees nor does it offer counselling services; if anything, those already-detained people 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.^{Footnote 48}

Discussion: Scotland, Habeas Corpus, and the Inevitability of More Violations in the Canadian Immigration Detention System

We have arrived at a global epoch both of unseen levels of mass displacement and increasing numbers of newcomers being subject to forms of demobilization and incarceration. Many liberal States approach irregular migrants and other newcomers primarily as threats to national security and governance, and have adopted an expansive, penal approach to migration control. Immigration detention plays a strong and growing role in this process.^{Footnote 49} In the post/neo-colonial context, States have given themselves the freedom to draw less on what people have done in order to justify imprisonments and more on gendered, classed, and racialized representations of detainees as criminals, deviants, and otherwise “risky” people whose mobilities ought to be arrested.^{Footnote 50} As such, an association between criminality and racialized people bolsters support for the penal state’s expansion into administrative law.^{Footnote 51} In Canada, this arc of “immigrant penality”^{Footnote 52} accelerated—but did not originate—when the Conservative Governments of Stephen Harper (2006 – 2015) implemented discriminatory pieces of detention-related legislation, which, in turn, lent legitimacy to and drew from the aforementioned biases and contexts.

My central intention with this deep scraping of Scotland has been to demonstrate that re-centering the case makes Mr. Scotland’s detention in Canada seem unfortunately predictable, not anomalous as Morgan J describes in Scotland. The restoration of habeas corpus applications in Ontario does not and cannot rectify the procedural and fundamental injustices of the Canadian detention system. Having reviewed Mr. Scotland’s case as well as the Scotland decision, I will use the remainder of this paper to expand on my arguments that the Canadian immigration and refugee determination system transforms certain minoritized individuals into detainable bodies, and that the detention system should be understood as part of an arc of penal practices bolstering the global criminalization of migration. Taken together, and in the Canadian context of a neoliberal settler society grappling with Harper-era changes to immigration policymaking and law, indefinite detention is normalized for some people.

Looking across the fields of critical Canadian studies^{Footnote 53}, post/neo-colonial theory, and critical race theory, the literature reveals that ethnic, gender, class, and racial prejudices are built into Canadian immigration law and policy,^{Footnote 54} as they are in other national systems.^{Footnote 55} Discriminatory profiling is integral to the policing functions of immigration control.^{Footnote 56} Raced, classed, gendered, neoliberal, and post/neo-colonial institutional biases compound barriers to accessing and enjoying rights and protections.^{Footnote 57} As Hari et al. explain, Canada identifies as an “ethnoculturally diverse state with a large foreign-born population,” but its membership “is still tied to notions of nationhood, colonialism, neo-colonialism, ‘race,’ and gender. When Canada selects migrants and refugees on economic, family reunification, or humanitarian and compassionate grounds, the state conveys the values of the nation and expresses its absolute power over territory.”^{Footnote 58}

Post/neo-colonial scholars are explicit in linking Canada’s “settler society” status to nation-building projects to select certain immigrants for permanent residence and citizenship;^{Footnote 59} these laws and policies are interpreted as “‘new’ measures [that] are repackaged ‘old’ measures [to] facilitate racial forms of governance in settler colonialism.”^{Footnote 60}

Relatedly, the growing field of detention studies draws attention to how changes in legal and policy categories, media representations, and popular discourses transform people into “detainable migrants.”^{Footnote 61} As Martin and Mitchelson argue, “different groups of people come to be seen as migrants, immigrants, asylum-seekers, refugees, illegal aliens, or criminal aliens, with each term connoting raced, classed, and gendered bodies,” and, in turn, “the representational practices that depict different groups as unwanted, foreign, or dangerous inform legal and policy-making discourses, producing these groups as justifiably excludable and detainable.”^{Footnote 62} Razack likewise refers to this process when she comments on “how asylum seekers are transformed into human waste in a detention center, their status as disposable made concrete.”^{Footnote 63}

Legislators rely on purported migration-related crises “in order to legitimate grounds to implement what might otherwise be controversial security measures” such as detention.^{Footnote 64} This was seen when the MV Ocean Lady (seventy-six men) and the MV Sun Sea (492 men, women, and children) arrived to the shores of British Columbia from Thailand in October 2009 and August 2010, respectively. The Government fanned a “moral panic”^{Footnote 65} that these newcomers were not refugees from Sri Lanka as they claimed to be but terrorists, smugglers, and others posing threats to Canada. This panic tapped directly into a numerically unfounded fear^{Footnote 66} of migrants arriving by boat.^{Footnote 67} Indeed, a fear of racialized and unwelcome boat arrivals is deeply rooted in the Canadian nation-building project: it dates back to at least the infamous 1914 expulsion of 376 mostly Sikh and Muslim British subjects arriving on the Komagata Maru boat, and the subsequent spree of racist attacks by white individuals.^{Footnote 68} Canada Border Services Agency eventually detained the majority of the Sun Sea and Ocean Lady passengers upon arrival due to flight risk.^{Footnote 69}

These cases demonstrate that when asylum seekers are recast as smugglers, criminals, terrorists, and other threats, the State frees itself from abiding by the international humanitarian and human rights rules.^{Footnote 70} In this way, decisions on who gets targeted for arrest and sent to immigration detention in Canada should not be understood as neutral decision-making, and Mr. Scotland’s arrest, detention, and continued imprisonment should not be labelled as anomalous.

I also put forward a related claim that an arc of penal practices guides immigration and refugee adjudication in Canada. This arc is formative of a global trend towards criminalizing migrants and mobilities. Legislators are importing legal tools into the migration sphere without bringing along the accompanying protections from the criminal justice side. Beyond legal organizing principles, these tools are used to unduly and unfairly punish certain migrants and mobilities in a superficially race- and class-blind approach.^{Footnote 71} As Pickering and Ham argue, “Criminal justice systems and institutions are increasingly being involved in responding to irregular migration and pre-empting, constructing, and responding to the ‘legality’ of persons.”^{Footnote 72}

Legislators are continuously expanding the range of “offences” that transform a newcomer into a “foreign criminal” and that then feed into the justification for arrests and detentions.^{Footnote 73} As Chacón writes in the U.S. context, “conduct that gets a warning on college campuses can [now] get you arrested, convicted, and deported in heavily policed, low-income neighborhoods.”^{Footnote 74} The Canadian detention system exhibits signs of the tautology that “migrants might be criminals, necessitating detention; migrants must be criminals, because they are detained.”^{Footnote 75}

Mr. Scotland’s case demonstrates that the Canadian immigration detention system can be faulted for failing to provide access to safeguards to protect the basic human rights of its population. Likewise, Scotland highlights failures of the ID’s detention hearing system as being successful on paper but flawed in practice. The key problem is that, in a switch from the criminal justice context, the hearings are premised on the detainee presenting new evidence to secure his own release. Habeas corpus cannot remedy this problem.

The description of Mr. Scotland’s treatment as exceptional inscribes or makes knowable his detention in a way that leaves the overall system intact or otherwise-functioning. The Italian political theorist Giorgio Agamben argues that legal exceptions constitute the norm even as they suspend it. Detention is a “zone of indistinction between outside and inside, exception and rule, licit and illicit, in which the very concepts of subjective right and juridical protection no longer make any sense.”^{Footnote 76} Detainees experience violence without juridical form.^{Footnote 77} For Agamben, the key markers of contemporary socio-legal life are the state of exception and its attendant suspension of the rule of law to constitute the law. Following Agamben, Mr. Scotland’s unreasonable and indefinite incarceration could serve as the exception that is now corrected, and hence a tool of legal reference to normalize the discrimination of the overall system.

I therefore return to my argument that Ricardo Scotland’s unjust detention and treatment by the CBSA and ID be situated as part and parcel of a criminalizing, racialized, and gendered logic that was formalized by Harper government legislation and to which Canadian immigration decision-making is still beholden. A circular nature of racialized biases implicate Mr. Scotland’s unfair treatment, Harper-era legal and legislative changes, and the intertwining of the MV Sun Sea and MV Ocean Lady in the developing Canadian detention system. Detention reflects the institutional biases that contributed to normalizing the discriminatory “designated countries of origin” policy and the 2013 adoption of C-43, the Faster Removal of Foreign Criminals Act, into the IRPA.^{Footnote 78} It is questionable whether justice can be achieved for immigration detainees in Canada without radical overhaul, if not elimination, of the status quo.

Therefore, we must distinguish between the release of Mr. Scotland, and achieving justice for him, current detainees, and potential future detainees. The restoration of habeas corpus leaves in place an unfair, biased, and unequal system of incarceration to arrest and imprison other predominantly racialized, classed, and gendered non-citizens. Morgan J’s certification of Mr. Scotland’s writ does not reconcile the fact that CBSA and the ID did not give Mr. Scotland the benefit of the doubt that it was in his own interest to turn up to court for his refugee hearings.^{Footnote 79} It also does not remunerate him for unlawful imprisonment or support his still-pending claim for asylum in Canada. The arc of penalization is infused into the ID and CBSA, and it explains how Mr. Scotland was unfairly marked and targeted. Yet, this prejudice is not named in Morgan J’s decision. Therefore, until there is a serious, institutional reckoning with the larger injustices self-affirming the incarceration of migrants and asylum seekers as “detainable migrants,” it seems inevitable that more violations will occur in Canada, with or without access to habeas corpus.