What Habeas Corpus Can (and Cannot) Do for Immigration Detainees: Scotland v Canada and the Injustices of Imprisoning Migrants

2019 ◽  
Vol 34 (01) ◽  
pp. 145-161 ◽  
Author(s):  
Stephanie J. Silverman
Keyword(s):  
Court Decision ◽  
Habeas Corpus ◽  
Decision Frames ◽  
Canadian Immigration ◽  
Indefinite Detention ◽  
Determination System ◽  
Substantive Justice

AbstractThis paper closely studies Scotland v Canada to reveal the normative and substantive justice challenges facing immigration detainees across Canada. The Scotland decision at the Ontario Superior Court certified a habeas corpus writ as an individual remedy to release Mr. Ricardo Scotland from a pointless, seventeen-month incarceration. The decision frames Mr. Scotland’s detention as anomalous or divergent from an otherwise-functioning system. Against this view, this paper argues that access to habeas corpus cannot remedy the detention system’s scale of injustices. The paper contextualizes Mr. Scotland’s incarceration and the Superior Court decision against two primary claims: first, that the Canadian immigration and refugee determination system is arbitrarily biased against certain minoritized individuals, therefore transforming some people into detainable bodies; and second, that the global criminalization of migration trend has nested an arc of penal practices into Canadian policymaking and law, and this arc has seemingly normalized indefinite detention for some migrants. The paper concludes that restoration of access to habeas corpus cannot be understood as a substantive remedy to address the miscarriages of justice in the Canadian detention system.

Plausible Legality

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
State Violence ◽  
Habeas Corpus ◽  
Global War On Terror ◽  
Political Actors ◽  
Legal Norms ◽  
Drone Strikes ◽  
Indefinite Detention ◽  
Global War ◽  
Enhanced Interrogation

After 9/11, American officials authorized numerous contentious counterterrorism practices including torture, extraordinary rendition, indefinite detention, trial by military commission, targeted killing, and mass surveillance. While these policies sparked global outrage, the Bush administration defended them as legally legitimate. Government lawyers produced memoranda deeming enhanced interrogation techniques, denial of habeas corpus, drone strikes, and warrantless wiretapping lawful. Although it rejected torture, the Obama administration made similar claims and declined to prosecute abuses. This book seeks to understand how and why Americans repeatedly legally justified seemingly illegal security policies and what this tells us about the capacity of law to constrain state violence. It argues that legal cultures shape how political actors interpret, enact, and evade legal norms. In the global war on terror, a culture of legal rationalization encouraged authorities to seek legal cover—to construct the plausible legality of human rights violations—in order to ensure impunity for wrongdoing. In this context, law served as a permissive constraint, enabling abuses while imposing some limits on what could be plausibly legalized. Cultures of legal rationalization stand in contrast with other cultures prevalent in American history, including cultures of exception, which rely on logics of necessity and racial exclusion, and cultures of secrecy, which employ plausible deniability. Looking forward, legal norms remain vulnerable to manipulation and evasion. Despite the efforts of human rights advocates to encourage deeper compliance, the normalization of post-9/11 policy has created space for the Trump administration to promote a renewed culture of exception and launch bolder attacks on the rule of law.

Gender, Internal Armed Conflict, and High Court Decision-Making in Transitioning Societies

2021 ◽  
Author(s):  
Lee Demetrius Walker ◽  
Melissa Martinez ◽  
Christopher Pace
Keyword(s):  
Decision Making ◽  
Court Decision ◽  
Internal Conflict ◽  
Political Rights ◽  
Habeas Corpus ◽  
High Court ◽  
Men 2 ◽  
Civil And Political Rights ◽  
And Gender ◽  
Conflict Intensity

Abstract Building on research that applies the policy deference model to high court decision-making during external war, we propose that conflict intensity, political government's preference on liberalization, and the gender of appellant impact the manner in which courts follow policy deference during internal war in transitioning countries. Contextually, we argue that shifts in women's roles and gender relations during internal conflict in transitioning societies condition the manner in which civilian courts make decisions on civil and political rights cases. During external war in advanced democracies, policy deference infers that courts will rule more conservatively on civil and political rights cases. Using habeas corpus cases as a representation of civil and political rights’ protection from El Salvador's civil war period (1980–1992) and two measures of conflict intensity, our findings indicate that the court's decision-making process deviates from conventional expectations derived from the policy deference model in three ways: (1) conflict intensity solely affects the court's decision-making on habeas corpus cases involving men; (2) the political government's choice for political liberalization affects the court's decision-making on both women and men cases; and (3) gender conditions the manner in which policy deference applies in a society that is experiencing societal change.

scholarly journals Proving it: experiences of sexual minorities in the Canadian refugee determination system

2021 ◽  
Author(s):  
Casey Anderson
Keyword(s):  
Sexual Orientation ◽  
Gender Identity ◽  
Sexual Minority ◽  
Sexual Minorities ◽  
Decision Makers ◽  
Gender Identities ◽  
Theoretical Concepts ◽  
Canadian Immigration ◽  
Determination System ◽  
And Gender

This paper explores refugee claimant’s experiences negotiating the Canadian Immigration and Refugee Board (IRB). Focusing on claims based on sexual orientation and gender identity, this paper investigates how claimants are made to ‘prove’ their sexual orientation and gender identity. The IRB and its decision makers require that claimants prove their identity as a refugee as well as a member of a sexual minority. Through an analysis of the existing literature and by integrating queer and feminist theoretical concepts on gender, sex, performativity and representation, it is apparent that the Canadian IRB functions as a heteronormative system in which the understanding of sexual orientation and gender identities are essentialized.

scholarly journals Proving it: experiences of sexual minorities in the Canadian refugee determination system

2021 ◽  
Author(s):  
Casey Anderson
Keyword(s):  
Sexual Orientation ◽  
Gender Identity ◽  
Sexual Minority ◽  
Sexual Minorities ◽  
Decision Makers ◽  
Gender Identities ◽  
Theoretical Concepts ◽  
Canadian Immigration ◽  
Determination System ◽  
And Gender

This paper explores refugee claimant’s experiences negotiating the Canadian Immigration and Refugee Board (IRB). Focusing on claims based on sexual orientation and gender identity, this paper investigates how claimants are made to ‘prove’ their sexual orientation and gender identity. The IRB and its decision makers require that claimants prove their identity as a refugee as well as a member of a sexual minority. Through an analysis of the existing literature and by integrating queer and feminist theoretical concepts on gender, sex, performativity and representation, it is apparent that the Canadian IRB functions as a heteronormative system in which the understanding of sexual orientation and gender identities are essentialized.

scholarly journals Canada's Refugee Status Determination System and the International Norm of Independence

Refuge ◽  
2008 ◽  
Vol 25 (2) ◽  
pp. 79-102
Author(s):  
Gerald P. Heckman
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
International Standards ◽  
Refugee Status ◽  
International Norm ◽  
Refugee Protection ◽  
Canadian Immigration ◽  
Determination System ◽  
The Right ◽  
Procedural Rights

Refugee protection decisions engage migrants’ fundamental life, liberty, and security of the person interests. As a result, refugee protection claimants enjoy institutional and procedural rights under conventional international law. These include the right to a fair adjudication of their protection claims by an independent tribunal. To be independent, a tribunal must meet the formal guarantees of security of tenure, financial security, and administrative independence and must actually be independent, in appearance and practice, from the executive and legislature, particularly in the appointments process. Refugee protection decisions must be made by first instance adjudicative bodies that either fully comply with the requirements of tribunal independence or whose decisions are subject to subsequent review by a tribunal that meets these requirements and has sufficient jurisdiction over the merits of the dispute. The Canadian refugee protection system fails, in certain respects, to meet international standards of independence. The Canadian Immigration and Refugee Board’s Refugee Protection Division enjoys statutory, objective badges of independence and appears to operate independently of the executive. However, the independence of Canadian officials engaged in eligibility determinations and in pre-removal risk assessments is very much in question because they have a closer relationship to executive law enforcement functions.

scholarly journals Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty

2018 ◽  
Vol 63 (1) ◽  
pp. 1-44
Author(s):  
Siena Anstis ◽  
Joshua Blum ◽  
Jared Will
Keyword(s):  
Emergency Preparedness ◽  
Case Law ◽  
Federal Court ◽  
Habeas Corpus ◽  
Legal Regime ◽  
Immigration Detention ◽  
Indefinite Detention ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

Canada maintains a separate legal regime for immigration detainees who, until recently, were denied the right to seek release by way of habeas corpus. This denial of one of the most deeply entrenched rights at common law and under the Canadian Charter of Rights and Freedoms was justified by the proposition that the immigration detention scheme is “separate but equal”—that it provides an adequate remedy such that habeas corpus is not necessary. Perhaps unsurprisingly, this “separate but equal” regime has failed to provide basic procedural and substantive protections that are available in other Canadian legal regimes where liberty is at stake. However, in 2015, the Court of Appeal for Ontario reignited the availability of habeas corpus as a remedy to indefinite detention in the immigration context in Chaudhary v. Canada (Public Safety and Emergency Preparedness). By reversing a line of cases that had confined immigration detainees to review by an administrative tribunal and judicial review in the Federal Court, Chaudhary has opened the door to the superior courts for immigration detainees. This article provides a review of the immigration detention system in Canada, the applicable legislation, procedures, and case law, and canvasses the impact of Chaudhary on the rights of immigration detainees. It then considers the benefits of habeas corpus as a litigation strategy, the role it has played in debunking the “separate but equal” myth, and suggests other potential issues now ripe for further litigation.

Trading Civil Liberties for National Security: Warnings from a World War II Internment Program

2005 ◽  
Vol 17 (3) ◽  
pp. 294-307 ◽  
Author(s):  
Max Paul Friedman
Keyword(s):  
World War Ii ◽  
National Security ◽  
Civil Liberties ◽  
Japanese Americans ◽  
Habeas Corpus ◽  
War On Terrorism ◽  
World War ◽  
Patriot Act ◽  
Guantanamo Bay ◽  
Indefinite Detention

A recurring theme in American political discourse is how to strike the appropriate balance between protecting the nation against threats to its security without eroding the liberty that is at the heart of its democratic character. Civil liberties versus national security is a choice apparently to be made in every crisis and every war, whether hot or cold. We can trace the debate from the Alien and Sedition Acts of 1798 through Abraham Lincoln's suspension of habeas corpus, to the Red Scares that followed both world wars. The classic case of going too far, and the most widely repudiated example, is the illegal mass internment of more than 110,000 Japanese Americans, most of them U.S. citizens, without charge, during World War II. Today, in what is commonly called the war on terrorism, hawks and doves take up their customary positions on opposing sides of the old argument as they debate the U.S.A Patriot Act, the imprisonment of foreigners at Camp Delta on Guantánamo Bay, and the indefinite detention of American citizens by presidential order.

Sign in / Sign up

Export Citation Format

Share Document