The authors’ research
The article “Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty” by Anstis, Blum, and Will. The authors are academicians who gave their reasoned opinion on the challenges facing immigrant detainees in Canada. The article brings out the challenges faced by immigration detainees in Canada by looking at the shortcomings of the law under which they are detained.[1] This research will review the article, discuss the failures and strengths of the legislation governing the immigrant detainees. Equally, this research will give a recommendation on the necessary changes to ensure that immigrant detainees are being treated fairly. To this end, this research will look at the place of habeas corpus in fighting for immigrants’ rights.
The authors’ research
The authors of the article are based on a legal framework of giving a legal solution to a legal problem; to this extent, the article dwells on why the idea of “separate but equal” is a very far fallacy from the truth. The article equally gives an insight into the different legal regimes applying to the immigrant detainees in Canada. In coming up with a solution to the shortcomings of the law, the article considers the importance of habeas corpus and how it may be a great tool to help safeguard the rights of the immigrant detainees.
In coming up with this article, the authors relied on different research methods. The research relied on legislation in Canada, previously decided cases on the matter relating to immigration, and secondary materials, including articles and opinions of other people. The article relies on desktop research in that most of the materials relied on already exist. There was no data collected from the affected migrants and to have their view on the matter. In making the article more informative, the authors covered the history of the legislation on immigration, using decided cases on immigration matters and equally comparing other jurisdictions’ position on such matters. On the same breadth, the article brought out the conflicting positions held by different courts on the issue. Most importantly, it is worth noting that the article advocates for the courts allowing immigrants detainees to use habeas corpus to approach the courts to fight for their rights. All the above information is geared towards proving that the separate but equal cannot be a true theory.
Summary and analysis of the article
The authors’ thesis revolves around the different legal structure that governs immigrant detainees from the others and how the notion has been that despite being governed by different legal regimes they had equal treatment to the rest of the citizens. The article seeks to debunk this myth by referring to other jurisdictions like the United States, who have concluded that the theory of separate and equal has never been true as there is always a disadvantaged individual in such set ups. In this case, this paper is geared towards proving that immigration detainees are not being treated “equal” by the legislation that is governing them as their rights granted by the Canadian Charter of Rights and Freedoms in sections 7, 9, and 10 have been infringed for a long time in the guise that they have other recourse in a different set of laws.[2] To clearly bring out this, the thesis relies on decided cases and gives a glimmer of hope on the new direction being taken by courts in the matter regarding allowing the use of habeas corpus to immigration detainees.
The article revolves around sociological theory as propounded by Roscoe Pound based on the need for a change of the law from time to time to deal with the current social changes that come up from time to time. This is clearly portrayed by the need to do away with the “Separate but equal” legislation that applies to immigration detainees; thus, there is a need to do away with the separate system of legislation and principles that negatively affect the immigrants. To this end, the article is short of calling for a change in legislation but has gone a long way to show the shortcomings of the legislative regime that applies to the immigrants and the need to have the courts to be receptive and allow the use of habeas corpus when necessary and when their rights guaranteed under the charter are infringed. Thus, in essence, the article calls for a change in legislation to help safeguard rights guaranteed under the charter.
Equally, the article highlights the deficiencies of the immigration regime in Canada. To begin with, it is essential to note that the immigration detention is governed under the Immigration and Refugee Protection Act[3] backed with the Immigration and Refugee Protection Regulations. The gaps that are witnessed in Canada’s immigration detention regime basically stems from the provisions of the law. According to the article, the three deficiencies in the detention regime include the fact that the regime allows for indefinite administrative detention. With regard to this, it is clear that the legal regime is silent on the length of detention of an immigrant detainee, thus giving room for long detentions without guarantee of being released. Equally, the detention system allows for immigrants’ arbitrary detention without connection to the underlying purpose of arrest. The officer is required to allege that the arrested person is a flight risk, among other reasons, and that will be enough to warrant detention. This makes it almost a guarantee that immigrants will be held in detention in case of arrest. Lastly, the immigration detention regime allows for preventive dentitions, which are sometimes under harsh conditions that are not commensurate with the purpose of arrest. To this end, it is clear that immigrants detainees are being held in prisons for criminals despite the fact that the immigrants are not criminals themselves.
The article discussed in detail the holding in Peiroo in which the appellant was fighting against the deportation order.[4] She approached the Ontario court of appeal through habeas corpus application. The court of appeal held that habeas corpus was not available to her, but instead, she could approach the court through alternative remedies, which included provisions of judicial review, which she could file in the Federal court and Appeal to the Federal Court of Appeal. According to the court, the remedies available to her were broader than the remedies she sought through habeas corpus. The position held by the court was applied as the blanket position by the courts. However, the courts were wrong in their application. They failed to appreciate that in Peiroo, the appellant was challenging deportation, which was very different in other challenging detention cases and had their rights enshrined in Sections 7, 9, and 10 of the charter.
In the case of Chaudhary v. Canada,[5] a 2015 case in the court of Appeal in Ontario, it opened the door for immigrants’ detainees to approach the court through habeas corpus. The court held that habeas corpus was available for immigrants in detention, and the same should not be confused with challenging deportation and such matters. Habeas corpus squarely dealt with the rights of everyone in detention in Canada. In the ultimate, the decision provides for immigrants detainees to approach court through habeas corpus. However, the same was not available to immigrants’ detainees until the court delivered Chaudhary‘s decision[6].
The article went on to give the advantages of immigrants detainees approaching court through habeas corpus. It is essential to note that in judicial review, the minister would refer to prior detention hearings. Equally, the onus was on the applicant to prove his case before the court why the review should be allowed. However, even where an applicant proved to the court through a judicial review that their detention was unreasonable, the court did not have jurisdiction to set them free but would refer the matter to another court to decide whether to issue the order of release or not. On the other hand, the use of habeas corpus allows the trial to begin afresh with evidentiary evidence being required for the court to decide. When the immigrant detainee applicant proves that they are deprived of their liberty and raise legitimate ground on liberty’s depravity, the onus shifts on the respondent to prove that the detainment is legal and within the law. It is equally essential to note that habeas corpus is not concerned with the immigration issues, but it is concerned with whether the rights enshrined in the Charter are being violated. To this extent, experts have noted that habeas corpus is the strongest tool that an immigrant detainee may use to prove that their detention is unlawful.
Authors of the article note that it is important to safeguard the positive gains realized in the Chaudhary case jealously in future habeas corpus immigration litigation. The article also notes that there is a need for ensuring that disclosure requirements remain essential in such proceedings. This is one of the key challenges that was realized in the judicial review process. Lastly, there is a need to expand the interpretation of the judgment from Chaudhary[7] to ensure that habeas corpus is availed to all immigration detainees as long as they are challenging the legality of their detention.
Locating Secondary sources
Efrat Arbel, “Immigration detention and the problem of time: lessons from solitary confinement” (2018) 4:4 International Journal of Migration and Border Studies.
This article is concerned with the Canadian government’s attempted reforms with regard to immigrants’ detention issues. It is clear from the article that the Canadian government intended to have reforms on the detentions, which negatively affected migrants in Canada. The end goal was to ensure that the government came up with a just and humane detention regime in Canada for the immigrants and other foreigners in Canada. As the main article in this paper, this article recommends that there is a need for addressing the shortcomings of law in this matter. The article suggests that the law in force is silent on several things, such as the detention of a detainee, thus leading room for longer detention periods on immigrants.[8] The article notes a need to change the law to define the time of confinement of immigrant detainees and that failure to that any reforms would be a window dressing and not solving the underlying problems. To this end, it is clear that the law in place is not sufficient to guarantee a just and humane detention system; as such, this article recommends for change in legislation as the most important way of dealing with issues facing the detention system.
The article contributes a lot to the subject of immigration and detention. It is in agreement with the article under review. The main article in review advocates for the availability of habeas corpus to the immigrant detainees in Canada, in the same breadth, the article on “Immigration detention and the problem of time” advocates for the change of law to provide for definite time with regards to immigrants detention. The article equally advocates for having a legal regime that covers all the loopholes that are not covered in the current legal regime. The article equally calls on the courts to give progressive judgments that have the immigrant detainees’ interests when they are called upon to give guidance.
Going through the article, it is clear that it is a very recent article published in the year 2018 after the ground breaking in the Chaudhary case. The article is equally consistent in that it clearly puts across the challenges facing the detention regime in Canada with regard to the immigrant detainees. To this end, the article goes ahead to give a recommendation to right the challenges facing the detention system. Thus, it is worthy to note that the article is very consistent as it goes into detail on the challenges facing the system and then gives pragmatic solutions to the challenges. However, like every article in the world, this article also has a weakness in that it does go into all the challenges that face the detention system. For example, it does not look at other legal challenges such as unfavorable detention conditions in the criminal prisons while their offenses are minor.
Locating this article took time; however, it was in the Westlaw Peer-Reviewed journals database. To get to the journal, the keywords used were “legal challenges facing the immigration detention regime in Canada.” The search brought very many different articles; however, the secondary article settled for this research clearly articulated the issues that were important and related to the main article being reviewed as it also sought to find legal solutions for the challenges facing immigration detention systems in Canada.[9] There was no need to refine the research words as the article was one of the many articles that appeared in the first search. It was clear that the article was from a peer-reviewed journal as the journal only publishes peer-reviewed articles, and it is also clear that the journal had been reviewed by different scholars who gave their opinion on the article on the website. It is also obvious that the article was peer-reviewed as the website from which the article was published only publishes peer-reviewed articles. Lastly, it is important to appreciate that the secondary article used in this research was authored by a scholar in such matters, thus an authority in the article’s matters.
Situating the Anstis, Blum, and Will Article in the Broader Literature
Going through the two articles, it is clear that Canada has weaknesses with the immigration detention system. The main reason one is that the use of habeas corpus has been denied to immigrants detainees. For starters, one realizes that immigrants in Canada are not treated the same as citizens of Canada. In a bid to have a different legal regime governing them, the Canadian government failed to protect all the people within its borders as it is enshrined in the Charter. The idea propagated by the government of having different legal regimes hoping that they will achieve the same goals of ensuring justice to both its citizens and Immigrant detainees is clearly a failed idea. The main reason is that the law fails to give a definite time for holding the immigrant detainees in detention. The immigrants’ detainees have ended up with the short end of the stick, ending up being detained for long periods in the detention centers without hopes of leaving the detention centers and prisons.[10] Equally, the right of approaching the court through habeas corpus has been denied to the immigrant detainees; thus, they end up being detained for longer periods as the method opened to the immigrant’s detainees to approach the court has always made it easy for the courts to continue the holding orders for long periods. Lastly, it is clear from the articles that the courts have also been complacent in taking a stand in the matter, thereby emboldening the enforcement officers to break the charter’s liberties guaranteed.[11] Based on the above highlights analysis, it is clear that this research finds glairing failures with the immigrant’s detainees, policies in Canada.
In conclusion, therefore and based on the highlights of the weaknesses of the legal regime on immigration detention such as the lack of a definite detention period, no access to courts through habeas corpus, allowing arbitrary detention without connection to the underlying purpose of arrest, also allowing for the detention of immigrants in criminal holding facilities for minor offenses related to immigration-related issues, going through a trial process which does not respect the normal procedures of trials, for example, officers do not rely on the strength of the documentary evidence to hand in their decision among others. Based on the above-mentioned reasons that have been discussed in detail throughout the paper. This paper concludes that there are glaring shortcomings in the immigration detention legislation; there is, therefore, a need to amend the legislation to protect the rights guaranteed under the charter. Equally, courts should be at the forefront in giving decisions that protect the immigrants’ detainees’ rights.
Bibliography
Efrat Arbel, “Immigration detention and the problem of time: lessons from solitary confinement” (2018) 4:4 International Journal of Migration and Border Studies.
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
Ontario held in Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 OR (3d) 401 [Chaudhary ONCA]
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, C 11 [Charter]
Peiroo v Canada (Minister of Employment and Immigration) (1989), 69 OR (2d) 253, 60 DLR (4th) 574 [Peiroo cited to OR]
Siena Anstis, Joshua Blum, Jared Will “Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty,” (2017) 63 McGill L.J. 1,
[1] Siena Anstis, Joshua Blum, Jared Will “Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty,” (2017) 63 McGill L.J. 1,
[2] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, C 11 [Charter]
[3] Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
[4] Peiroo v Canada (Minister of Employment and Immigration) (1989), 69 OR (2d) 253, 60 DLR (4th) 574 [Peiroo cited to OR]
[5] Ontario held in Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 OR (3d) 401 [Chaudhary ONCA]
[6] Ibid note n.5
[7] Ibid
[8] Efrat Arbel, “Immigration detention and the problem of time: lessons from solitary confinement” (2018) 4:4 International Journal of Migration and Border Studies.
[9] Ibid no. 8
[10] Siena Anstis, Joshua Blum, Jared Will “Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty,” (2017) 63 McGill L.J. 1,
[11] Ibid no. 10