Questioning the Rules of Evidence

In Fall 2021, I co-convened an online workshop through York University called Fact-Finding in Immigration Detention Reviews: Evidence Law meets Administrative Law.

The workshop focused on bridging discussion of evidentiary standards across two fields of law in Canada: criminal law and administrative law (where immigration / asylum law is housed). The workshop conveners selected immigration detention reviews as the focal point for conversation.  The reviews are hearings at an administrative tribunal where decisionmakers decide whether to release or continue to detain immigrants who have been arrested by Canada border officials. Most detainees in Canada are held for flight risk or dangerousness grounds, pending arrangement of removals; they may be incarcerated in provincial prisons or facilities operated by the federal government.

The conveners and most participants at the workshop were legal scholars and practicing lawyers. The discussion paper for the workshop explains why evidentiary standards impact administrative and criminal law differently; it also lays out what scholars from these legal fields could learn from engaging with each other’s work.

I have expertise in immigration detention but no formal legal training. I brought a deep understanding of the lived experiences of the opaque laws, policies, and practices of detention. I have worked with a variety of stakeholders and even operated as a stakeholder myself, when I was engaged by the Canadian government in internal efforts to reform the detention system.

This blog post will focus on the substance of the workshop – how the legal system sifts ‘evidence’ from a broad base of information – as well as the workshop’s structure or form of interdisciplinary collaboration across fields of law and Canadian sociolegal studies.  I will also comment on my positionality as a ‘translator’ of law into social context, or the grounder of the balloon of legal theory into the firm earth of lived experiences of the carceral state.

Rules of evidence: mainly concerned with what to exclude

The legal conversation revolved around evidentiary standards and the rules of fact-finding. Arbitrators, judges, and other decision-makers engage in a fact-finding process to resolve an allegation. They call on and assess evidence to help resolve their doubts about accepting or rejecting a given allegation. The law institutes thresholds for decision-makers to meet when providing written decisions on what they see as the truth: standards familiar to non-lawyers  include burdens of proof, standards of proof, presumptions, ideas of reasonableness and error preference.

Thus, we can see why courts want ‘good’ information. Extensive legal rules of non-admissibility govern what the courts count as evidence or good information. Strict rules disallow evidence obtained through torture, for example. Torture compels people to provide a confession - any confession – to make the torture stop. Courts consider torture-provoked confessions to be unreliable and exclude these testimonies.

Evidence law thus primarily regulates what to disallow from inclusion in the record, and what cannot be said in court or otherwise taken as evidence, I.e. the rules of non-admissibility.

Evidence in detention hearings: A murky legal environment

Immigration detainees are not being held to serve criminal sentences or on suspicion of criminality. Immigration detention is nested into administrative law, and so the detention hearings or reviews are an entirely separate system of adjudication. As detention is an administrative procedure, border officers can detain non-citizens without a warrant. By law, detention is a last resort, and a decision taken after all other options have been considered and rejected.

Canadian legislation mandates that every detainee incarcerated for immigration-related reasons will receive a detention review at 48 hours, 7 days, and then every 30 days until release. This statutory system of mandatory hearings is unique in the world. In the geopolitical context of shrinking rights for detainees, the Canadian system of periodic hearings is remarkable. Indeed, the US Supreme Court of Canada struck down the case for mandatory bail review of detainees there.

The periodic detention hearings are presided over by an adjudicator of the Immigration Division of the Immigration and Refugee Board, the largest federal administrative tribunal in Canada. The hearings are formally adversarial, with the detainee arguing for release pitted against the Minister who argues to keep the person behind bars. The Minister must have a representative present for the hearing to proceed. Canada does not provide detainees with legal aid, and so they often appear at hearings without legal counsel. If the adjudicator decides in the detainee’s favour, then the immigrant is given a release plan to abide by or risk return to imprisonment. 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.’

Canada has no formal time limit on detention; provides no legal aid; and there is no oversight of the border agents who arrest immigrants. As such, the hearings are a stopgap against unlawful detention. In this context, the incredibly high stakes of each detention hearing include freedom from potentially indefinite detention.

Detention hearings are quasi-de-novo. The 2004 Thanabalasingham case established that at each review, the presiding decision-maker must come to ‘a fresh conclusion’ on whether the detained person should continue to be incarcerated.  Since it is only quasi de novo, a subsequent decision-maker must give ‘clear and compelling reasons’ for departing from previous decisions. Adjudicators may collectively refuse to release a detainee for months and years. The most prevalent grounds for arrest and continuing detention are dangerousness, and flight risk or absconding.

In considering the case of Mr. Tussif al Chhina, the Supreme Court of Canada decided to restore access for detainees to the fundamental right of habeas corpus as a legal remedy; but the Court nonetheless deemed the system to be constitutionally compliant. Canada removed Mr. Chhina two years before his case made it to the Court. By the time of his removal, Mr. Chhina had spent nearly two years on lockdown for 22.5 hours per day at a provincial prison. He received no financial compensation, apology, or visa to return to Canada.

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. In a close-knit culture of decision-makers and border agents, deference is informally given to border agents’ discretionary powers to arrest over and above that of the detainee’s right to liberty (as demonstrated in the Scotland case).

Discussion: Transforming Information into Evidence, and Translating Sociolegal Studies into Legal Language

The workshop – like much of the legal studies literature – felt like it at times lost sight of the incredibly high personal stakes of each detention hearing.  The perioding hearings thus becomes experienced as episodes of disempowerment and trauma for long-term detainees in Canada.

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 cause long-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.

First, I found little room to discuss the implications of research that border agent and adjudicators start from the position that detainees and asylum seekers are lying, covering up misbehaviours and being ‘mischievous’, not comporting to how refugees should act, or otherwise trying to ‘game’ the system. While the onus rests formally with the Minister to make the case for continued detention, detainees find it incredibly difficult to disprove someone else’s assumption that they will go underground and not turn up for a removal hearing, especially when making the case from a restrictive prison setting where they encounter snowballing practical obstacles to finding housing or work.

Canadian government lawyers and decision-makers were participants in the workshop. Everyone could have benefited from discussing cultural change and judicial practices, even if that would be uncomfortable.

Second, we did not discuss the COVID19 pandemic, and what world should be built in its wake. The pandemic led to a reduction in the detainee population. But the government enrolled many of the people released from detention directly into invasive Alternatives to Detention programs; 2020 also marked the highest number of deportations since 2015. How does the dependence on the carceral state impact what counts as credible information, or, indeed, the outcomes of these processes of belonging, membership, and community?

Third, detention is legally a last resort after all other options have been considered. Formal instructions tell Members to keep the onus on the government to prove why someone needs to be detained. Yet, research demonstrates that the onus de facto flips to the detainee to disprove the grounds of their arrest and imprisonment. How are detainees supposed to gather evidence that they won’t go underground from within a cage, especially as more time accumulates? This essential problem of how best to ensure the burden rests with the government did not come up.

Likewise, the international community applauds the statutory system of mandatory bail reviews. This makes sense in response to, say, the US Supreme Court case denying bail hearings to detainees. Yet, research shows that detainees experience bail hearings as emotionally exhausting, prejudiced against them, and derivative, particularly for people with mental health difficulties. They hate having to be handcuffed, brought to the tribunal, and returned to prison to be strip-searched and made to wait another month for the parade to begin again. The official Audit of long-term detention flagged a disturbing case of a catatonic detainee ‘appearing’ at 23 reviews over three years, each lasting less than 5 minutes. This finding would suggest lowering the bar of admissible information and insisting on cultural change at the hearings.

Fourth, a strict focus on evidentiary standards left little space for the elephant in the room: systemic racism. Systemic racism is hard to prove, and the law often doesn’t ‘see’ it. The law reflects, reinforces, and embeds racist practices in Canada, including discrimination in immigration and refugee proceedings. The study of ‘crimmigration’ explains how post-Cold War policies and laws from criminal justice penetrated into refugee and immigration law (which, again, is technically a separate branch of administrative law) (Dauvergne 2013: 77; Stumpf 2006). Detention blurs or confuses immigration and criminal justice. A misplaced perception that more immigration increases crime persists, despite research concluding that immigrants are significantly less likely to be involved in criminal behavior. This perception is highly racialized and gendered, with the negative inferences sweeping over Black and Brown male newcomers, their children, and people who ‘look like’ them.

Indeed, open a door to a Canadian detention centre and the majority of people incarcerated inside will conform to a recurrent profile of racialized, able-bodied, young men arrested and sent to prison as a potential danger. Detention release is about disproving the grounds of arrest; so, in the context of a sizable irregularly resident population, it is also about who gets targeted for arrest in the first place and who can prove ‘co-operation’ or better behaviour to gain release.

The Canadian prison-to-deportation pipeline works in two directions: first, there is mandatory detention after someone serves a criminal sentence of 6 months plus a day; and second, law inflicts deportation (and hence detention) as a collateral consequence of a criminal sentence for anyone who is less than a full Canadian citizen.  The connections amongst racial justice, prison justice, and immigration justice – let alone procedural justice – need to be woven explicitly into the conversation on evidentiary standards.

Lawyers don’t like to think of themselves as operating within – and supporting - a racist and unequal legal system. I sometimes find myself in a mediating position between activists, lawyers, government representatives, and people with lived experiences, trying to ‘translate’ why the habitus is racist even if the players do not personally subscribe to racist beliefs. We must work together to collapse the sides of the box of acceptable thinking and conversation in order to bring about positive changes to evidentiary standards and other facets of immigration law.