Exceptional state, pragmatic bureaucracy, and indefinite detention: The case of the kingston immigration holding centre

Canadian Journal of Law and Society

Volumn 24, Issue 2, 2009, Pages 203-229

  Larsen, Mike ^a   Piche, Justin ^b  

^a YORK UNIVERSITY   (Canada)

^b CARLETON UNIVERSITY   (Canada)

Author keywords

Counter law; Immigration detention; Imprisonment (Canada); Security certificate; State of exception

Indexed keywords

EID: 74549161497     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S0829320100009911     Document Type: Article

References (135)

1. Arundhati Roy, "The Monster in the Mirror," The Guardian, December 13, 2008, http://www.guardian.co.uk/world/2008/dec/12/mumbai-arundhati- roy.
2. Standing Committee on Citizenship and Immigration, Report to the House of Commons Canada on Detention Centre and Security Certificates, 39th Pari., 1st Sess. (2007), 15.
3. Mike Larsen and Justin Piche, "Incarcerating the 'Inadmissible*: KIHC as an Exceptional Moment in Canadian Federal Imprisonment" (YCISS Working Paper Series 45, 2007), 14. Despite our emphasis on local complexity, one of us (Larsen) has repeatedly used this term during media interventions, simply because it has journalistic 'currency.'
4. Anna Pratt, Securing Borders: Detention and Deportation in Canada (Vancouver UBC Press, 2005).
5. Colleen Bell, "Subject to Exception: Security Certificates, National Security and Canada's Role in the 'War on Terror,' " Canadian Journal of Law and Society 21 (2006), 66;
6. Robert Diab, Guantdnamo North: Terrorism and the Administration of Justice in Canada (Halifax: Fernwood Publishing, 2008).
7. Sherene H. Razack, Casting Out: The Eviction of Muslims from Western Law and Politics (Toronto: University of Toronto Press, 2008).
8. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford, CA: Stanford University Press, 1998), 169.
9. The concept of the camp can be employed at different levels of abstraction. We use it here in its most localized sense, to refer to a space of confinement whose juridico-political character is defined by normalized exceptionality. At a macro level, Agamben suggests that the logic of the camp is the "nomos" of the modern and the "fundamental biopolitical paradigm of the West" (ibid., 181).
10. Didier Bigo, "Security and Immigration: Toward a Critique of the Governmentality of Unease," Alternatives 27 (2002), 63. Note that this field, though unified by a common meta-project (insecurity), is characterized by a heterogeneity of competing interests and forms of professional knowledge, authority, and expertise.
11. Razack, Casting Out, 11.
12. Richard V. Ericson, Crime in an Insecure World (Cambridge: Polity Press, 2007).
13. " Canada Border Services Agency (CBSA) and Correctional Service of Canada (CSC), Memorandum of Understanding between the Canada Border Services Agency and the Correctional Service of Canada respecting the Detention of Persons Detained Under the Immigration and Refugee Protection Act (signed in Ottawa, April 19, 2006) [CBSA-CSC Detention MOU]; obtained through ATI request no. A-2007-01287 to CBSA.
14. Razack, Casting Out, 31.
15. Roy, "The Monster in the Mirror."
16. Access to Information Act, R.S.C 1985, c. A-l.
17. Where these materials are cited in the article, we have provided the ATI reference numbers for the requests through which they were obtained. By citing these numbers in a request, other researchers should be able to obtain copies of the materials released to us.
18. Matt Yeager, "The Freedom of Information Act as a Methodological Tool: Suing the Government for Data," Canadian Journal of Criminology and Criminal Justice 48 (2006), 499.While acknowledging Yeager's important theorization of access-to-information challenges-"suing the government for data"-as a method of conflict criminology, we opted not to initiate formal complaints to the Information Commissioner when we felt that our efforts were being stonewalled or unreasonably delayed. In part, this was because of Yeager's own cautionary tales about the obstacles faced by researchers who undertake such proceedings. Primarily, though, we felt that an investigative strategy that used frequent requests from a variety of angles and with different formulations would yield better results than a smaller number of requests pursued through the formal complaints system.
19. Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA].
20. See Dennis O'Connor, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar: Report of the Events Relating to Maker Arar: Analysis and Recommendations (Ottawa: Minister of Public Works and Government Services, 2006);
21. Frank lacobucci, Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin: Final Report (Ottawa: Minister of Public Works and Government Services, 2008).
22. Bigo, "Security," 74.
23. Mike Larsen, "Governing Non-citizens as Security Threats: Canada's Security Certificate Regime," in Violent Interventions, ed. Mark Ayyash and Chris Hendershot (Toronto: York Centre for International and Security Studies, 2008), 21. This chapter contains an analysis of selected political statements about security certificates.
24. IRPA at s. 80.
25. Suresh v. Canada (Minister of Citizenship & Immigration) (2002), l.S.C.R. 3 [Suresh].
26. Charkaoui v. Canada (Citizenship & Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9 [Charkaoui #/].
27. An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S.C. 2008, c. 3 [C-3].
28. Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 [Charkaoui # 2].
29. Mike Larsen, "Security Certificates and Filtered Disclosure: Applying Charkaoui #2," The Court, 10 October 2008, http://www.thecourt.ca/ 2008/10/10/security-certificates-and-filtered-disclosure-applying-charkaoui-2/.
30. Diab, Guantdnamo North, 77.
31. See Pratt, Securing Borders; Diab, Guantdnamo North; and Razack, Casting Out.
32. Agamben, Homo Sacer.
33. Mark Salter, "The Border as State of Exception," in Exceptional Measures for Exceptional Times: The State of Security Post 9/11, ed. Colleen Bell and Tina Managhan (Toronto: York Centre for International and Security Studies, 2006), 9.
34. In addition to the aforementioned texts, see David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006);
35. Oren Gross and Fionnuala Ni Aolain, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006).
36. Mark Neocleous, Critique of Security (Montreal: McGill-Queen's University Press, 2008), 73.
37. Ibid., 71.
38. Lucia Zedner, "Pre-crime and Post-criminology?" Theoretical Criminology 11 (2007), 262.
39. Ericson, Crime in an Insecure World, 25-26.
40. Ibid..
41. Razack, Casting Out, 34.
42. CSIS, Summary of the Security Intelligence Report concerning Mohamed Harkat (prepared for the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration, 22 February 2008).
43. Prior to the creation of CBSA, the Enforcement Branch of Citizenship and Immigration Canada (CIC) was responsible for coordinating security-certificate detention.
44. Pratt, Securing Borders.
45. Mohamed Mahjoub was arrested on June 26, 2000;
46. Mahmoud Jaballah in August 2001;
47. Hassan Almrei on October 19, 2001;
48. Mohamed Harkat on December 10, 2002;
49. and Adil Charkaoui on May 21, 2003.
50. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85. The treaty entered into force on June 26, 1987;
51. Canada acceded to it on June 24, 1987.
52. CSC, "Organization" (CSC, 2007), http://www.csc-scc.gc.ca/text/ organi-eng.shrml.
53. It should be noted that the s. 16(1) of the Corrections and Conditional Release Act, 1992, c. 20, permits "The Minister ... with the approval of the Governor in Council, enter into an agreement with the government of a province for (a) the confinement in provincial correctional facilities or hospitals in that province of persons sentenced, committed or transferred to penitentiary; and (b) the confinement in penitentiary of persons sentenced or committed to imprisonment for less than two years for offences under any Act of Parliament or any regulations made thereunder." An example of this clause in action is the agreement between the government of Canada and the government of Newfoundland and Labrador, which "as a province without a federal penitentiary ... is in a unique position as it may elect to house federally sentenced inmates within a provincial facility." See Government of Newfoundland and Labrador, "Minister Meets with Federal Minister Regarding New Penitentiary" (news release, April 3, 2008), http://www.releases.gov. nl. ca/releases/2008/just/0403nl2.htm.
54. Aaron Doyle and Kevin Walby, "The Forgotten Worst Third of the System: The Neglect of Jails in Theorizing Punishment" (manuscript in preparation, June 2009).
55. Mike Larsen, Sophie Harkat, and Mohamed Harkat, "Justice in Tiers: Security Certificate Detention in Canada," Journal of Prisoners on Prisons 17, 2 (2008), 31.
56. A separate paper needs to be written to adequately explore the politics of the hunger strikes. For the purposes of this discussion, we note only that they were long, serious, and ultimately influential as catalysts for political action. Unfortunately, this action did not conform to the demands to "charge or release" the detainees.
57. Deputy Minister of Public Safety and Emergency Preparedness Canada (PSEPC), Memorandum for the Minister Federal Detention of Individuals Subject to Security Certificates (September 2005), 2 [PSEPC Federal Detention Memorandum]. Obtained through ATI request no. A-2007-01287 to CBSA.
58. Kent Roach, September 11: Consequences for Canada (Montreal: McGill-Queen's University Press, 2003).
59. Barry Buzan, Ole Waever, and Jaap de Wilde, Security: A New Framework for Analysis (Boulder, CO: Lynne Rienner, 1998).
60. CSC Strategic Planning Division-Policy, Planning and Co-ordination Sector, Detention of Individuals Not Serving a Sentence Nor Awaiting Trial: Position of the Correctional Service of Canada (Draft, November, 28, 2001) [CSC Position Paper]. Obtained through ATI request no. A-1336-2008-0023/ah to Public Safety Canada.
61. See note 39.
62. CSC Position Paper, 3.
63. See note 44.
64. As observed by Bigo, "Security."
65. Ss. 21(lXa) and (b) of the act, under the heading "Operations of Government: Advice, etc.," allows the agency in question to refuse to disclose records concerning advice or recommendations developed by or for a government institution, or records concerning accounts of deliberations in which members of the government participate.
66. CSC Position Paper, 10.
67. Deputy Minister of Public Safety and Emergency Preparedness Canada (PSEPC), Memorandum for the Minister: Detention of Individuals Subject to Security Certificates (September 26, 2005), 2, 6 [PSEPC Federal Detention Memorandum]. Obtained through ATI request no. PS-SP A-2008-0023 to Public Safety Canada.
68. PSEPC, Options for Detention of Persons Detained Pursuant to Section 77 of the IRPA- "Security Certificates" Using Government of Canada Controlled or Operated Facilities (undated, presumed late June 2005). Obtained through ATI request no. PS-SP A-2008-0023 to Public Safety Canada.
69. Ibid, I.
70. CBSA, Table of Contents for Qs&As for Standing Committee and Follow-Up Questions from the Media (October 25, 2006), Q22 [CBSA Qs&As]. Obtained through ATI request no. A-2007-01287 to CBSA.
71. PSEPC Federal Detention Memorandum, 1.
72. Deputy Minister of Public Safety and Emergency Preparedness Canada (PSEPC), Memorandum for the Minister: Detention of Individuals Subject to Security Certificates (October 7, 2005), 1. Obtained through ATI request no. PS-SP A-2008-0023 to Public Safety Canada.
73. CBSA, Options for Detention of Persons Detained Pursuant to Section of the IRPA- ("Security Certificates ") Using Government of Canada (Federal) Controlled or Operated Facilities (Draft, July 2005), 6. Obtained through ATI request no. PS-SP A-2008-0023 to Public Safety Canada. Note that the third point was eventually discarded.
74. CBSA Qs&As, Q23.
75. CBSA, Questions and Answers Index: Kingston Immigration Holding Centre (updated April 5, 2006), Q8. Obtained through ATI request no. A-2007-01287 to CBSA.
76. Ibid, (note that while 2006 documents set the projected annual operating cost at $1.6 million, more recent documents show it to be considerably higher).
77. CBSA, "National 2006: Kingston Immigration Holding Centre Opens" (News release, April 24, 2006), http://cbsa-asfc.gc.ca/media/ release-communique/2006/0424ottawa-eng.html.
78. Adil Charkaoui was released on strict bail conditions, still subject to a security certificate, on February 18, 2005.
79. Larsen et al., "Justice in Tiers," 39.
80. Mark Salter, "Canadian Post-9/11 Border Policy and Spillover Securitization: Smart, Safe, Sovereign?" in Critical Policy Studies: Contemporary Canadian Approaches, ed. Michael Orsini and Miriam Smith (Vancouver: UBC Press, 2007), 302.
81. For further details on the layout of the facility see Standing Committee on Citizenship and Immigration, Report, 17-18.
82. This contract is automatically renewed on April 1 of every year.
83. CBSA-CSC Detention MOU, 1.
84. Ibid. 2-3.
85. Ibid..
86. Ibid., 5.
87. Roger Cotterrell, The Sociology of Law: An Introduction (Oxford: Oxford University Press, 1992), 312.
88. CSC, "Corrections in Canada: An Interactive Timeline," (December 27, 2007), http://www.csc-scc.gc.ca/hist/index-eng.shrml. The most recent additions to this official account, which deal with the impact of September 11 and new security and risk-management practices, retain their emphasis on treatment within a criminal-justice framework. Indeed, CSC makes a point of advertising its expertise in exporting this framework through international collaborative arrangements (see CSC Core Value 4; CSC, "Organization").
89. CSC, "Organization."
90. CSC Position Paper.
91. CSC, "Organization."
92. Ibid..
93. Ibid..
94. Thomas Mathiesen, Prisons on Trial (London: Sage, 1990).
95. Pierre Bourdieu, In Other Words: Essays Towards a Reflexive Sociology, trans. Matthew Adamson (Stanford, CA: Stanford University Press, 1990).
96. Bigo, "Security," 75.
97. Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (New York: Anchor Books, 1961).
98. Documents related to detention-officer training were obtained through ATI request no. A-2008-00205 to CBSA. Many of these documents are untitled and undated.
99. CBSA, Kingston Immigration Holding Center Training and Development (attachment to an e-mail message sent November 16, 2007). Obtained through ATI request no. A-2008-00205 to CBSA.
100. CBSA, Hassan Almrei.doc (attachment to an e-mail message sent December 10, 2007). Obtained through ATI request no. A-2008-00205 to CBSA.
101. Larsen et al., "Justice in Tiers."
102. See Razack, Casting Out, 26.
103. See ibid.
104. CBSA Qs&As, Q59.
105. Standing Committee on Citizenship and Immigration, Report.
106. Ibid., 22.
107. Goffman, Asylums.
108. Standing Committee on Citizenship and Immigration, Report, 24.
109. CBSA, President's Directive PD 566-4: Detainee Counts (March 2006), 2. Obtained through ATI request no. A-2007-01287 to CBSA.
110. CBSA, Kingston Immigration Holding Centre: Individuals Subject to Security Certificate Handbook (October 2006). Obtained through ATI request no. A-2008-00205 to CBSA.
111. Michel Foucault, Surveiller et punir (Paris: Editions Gallimard, 1975).
112. Larsen and Piche, "Incarcerating the 'Inadmissible,' " 8.
113. Pratt, Securing Borders, 40. Pratt notes that Canadian immigration detention in general is characterized by penal regimes and carceral practices, an assemblage she refers to as "immigration penality." K1HC represents a particularly extreme example of this.
114. CBSA-CSC Detention MOU, 2, 3.
115. Copies of the KJHC President's Directives and Standing Orders, which span several hundred pages, were obtained through ATI request no. A-2007-01287 to CBSA.
116. Standing Committee on Citizenship and Immigration, Report, 20.
117. Zedner, "Pre-crime."
118. CCRA at s. 167(1).
119. Office of the Correctional Investigator, Annual Report of the Office of the Correctional Investigator 2005-2006 (June 30, 2006), http://www.oci-bec.gc. ca/rpt/annrpt/annrpt20052006-eng.aspx.
120. Larsen et al., "Justice in Tiers," 39.
121. CBSA-CSC Detention MOU, 8.
122. Larsen and Piche, "Incarcerating the inadmissible.' "
123. Peter Edwards, 'Terror Suspect Chooses Jail over Bail," Toronto Star, March 18, 2009, http://www.thestar.com/GTA/Crime/article/604322.
124. Robert B. Edgerton, Rules, Exceptions, and Social Order (Berkeley: University of California Press, 1985), quoted in Ericson, Crime in an Insecure World, 26.
125. The federal penitentiary system is under perpetual "transformation. " In response to the release of the report Correctional Service Canada (CSC) Review Panel-A Roadmap to Strengthening Public Safety on October 31, 2007, CSC quickly established a Transformation Office in January 2008 to oversee the implementation of recommendations outlined in the document. The authors of the document recommended, among other things, that statutory release, which allowed prisoners to enter the community after serving two-thirds of their sentences, be replaced by "earned parole," a scheme that would release prisoners before the end of their sentence only if they completed all their programming and secured employment outside prior to their release. The report also deemed CSC's physical infrastructure to be largely outmoded and recommended that the federal government consider building new regional multi-level "correctional" facilities to replace crumbling infrastructure, in order to facilitate the journey of prisoners toward "earned parole." See Rob Sampson, Serge Gascon, Ian . Glen, Chief Clarence Louie, and Sharon Rosenfeldt, Report of the Correctional Service of Canada Review Panel (Ottawa: Minister of Public Works and Government Services Canada, 2007).
126. Robert Gaucher, "Carceral Universals," Journal of Prisoners on Prisons 16, 2 (2007).
127. Larsen et al., "Justice in Tiers."
128. Ibid..
129. Colin Freeze, "Reluctant Judge Orders Terror Suspect Back to Prison," The Globe and Mail, March 18, 2009, http://www.theglobeandmail. com/servlet/story/LAC.20090319. SECURITY19//TPStory/National.
130. See David Rothman, Conscience and Convenience: The Asylum and Its Alternatives in Progressive America (New York: Aldine de Gruyter, 1980);
131. Pat Carlen, Women's Imprisonment: A Study in Social Control (London: Routledge, 1983);
132. Stanley Cohen, Visions of Social Control (Cambridge: Polity Press, 1985);
133. Mathiesen, Prisons on Trial.
134. Mike Larsen, quoted in Janice Tibbets, " 'Guantanamo North' Must Be Shut Down, Say Critics: Feds Look at Closing Centre with Its Last Detainee Leaving," Montreal Gazette, January 27, 2009, http://www.montreaIgazette. com/Guantanamo+North+must+shut+ down+critics/1222211/story.html.
135. Thomas Mathiesen, "The Abolitionist Stance," Journal of Prisoners on Prisons 17, 2 (2008).