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Narratives of Harm and the case for detention abolition

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Sharry Aiken discusses immigration detention as a case study to start a discussion about carceral abolitionism and citizenship studies.

Image courtesy of interviewee. January 9, 2024

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This video video is a detailed discussion by a researcher on Canadian immigration enforcement policies, particularly focusing on the implications of immigration detention. The researcher collaborates with Harini Sivalingam and explores two main threads: the impact of coercive enforcement measures on migrants and minority rights in contexts of citizenship disputes, specifically relating to the Tamil population from Sri Lanka during its civil war.

The researcher underlines that Canada has obligations under domestic and international human rights law, outlining how current practices harm migrants, particularly Tamil refugees who fled violence in Sri Lanka. Despite a high acceptance rate for Sri Lankan refugees in Canada, the government responded by criminalizing these arrivals, implementing mandatory detention policies for those arriving by boat. This video video led to reports of detained individuals experiencing conditions worse than those in their home country, raising ethical concerns about indefinite detention practices without a clear timeframe.

The researcher criticizes Canada’s lack of statutory limits on detention length, treating it as a severe human rights violation. Many detainees are not dangerous, and alternatives to detention, which could avoid such human rights abuses, exist. Additionally, once released, non-citizens still face coercive measures that infringe on their daily lives.

This video video culminates in a call for the abolition of immigration detention, arguing that it is a violation of liberty and proposing that the resources currently spent on detention could be better utilized for social welfare. The discussion aligns itself with broader abolitionist movements, highlighting the interconnectedness of immigration enforcement and systems of racial oppression, echoing the principles articulated by scholars like Ruth Wilson Gilmore.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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The backdrop is actually two different threads

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of my own research, and that of my co-author

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and colleague Harini Sivalingam, the first thread,

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concerns longstanding preoccupation

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with Canadian immigration enforcement policies

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of which immigration detention is one aspect.

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Um, I have long been engaged with research on the impacts

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of, coercive enforcement measures,

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and the extent to which those actually harm migrants

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and depart from Canada's human rights obligations,

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both domestically under our charter of rights

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and freedoms, as well as our obligations

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enshrined in international human rights law.

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So that's kind of one dimension.

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The other domain concerns a longstanding, engagement

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with the situation of minority rights in, societies

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where, there's,

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contests over citizenship and rights,

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and in particular, the circumstances in SSRI Lanka,

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which gave wi rise to widespread refugee exoduses,

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over some 30 year period

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during the longest standing civil war.

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Um, and the extent to which the rights of Tal citizens

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of SSRI Lanka were not ex not respected in SSRI Lanka

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and correspondingly not respected as refugees in Canada

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during a particular timeframe.

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So there's those two threads of my work

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that have come together in this particular article.

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I want to acknowledge that, the concepts

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of intersectionality, border elasticity,

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and the racial technology of borders all come from

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very pathbreaking work of other scholars.

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So I wanna begin with a concept of intersectionality,

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which was coined by American Legal Scholar,

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Kimberly Crenshaw, a number of, years ago now,

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to refer to the, the ways in which interlocking identities

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or categories of identity,

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actually work, in concert with the law

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to oppress and suppress the rights of individuals,

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work as a form of exclusion and oppression.

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So we're talking about, race, first

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and foremost, and Kimberly Crenshaw in that regard,

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is a critical race scholar.

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Um, but we're also looking at the categories of disability

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and gender,

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and sexual orientation, gender identity and expression.

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Um, all of those categories

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and how they, interact with the law

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and legal system in ways that,

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have very deleterious impacts on the individuals

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and communities affected.

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So that's one piece of it.

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I want to also acknowledge, Canadian geographer,

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Emily Gilbert's groundbreaking work on border elasticity.

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Gilbert, based at the University of Toronto,

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has done some very important work on tracking the extent

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to which borders both

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snap outward extraterritorial

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through immigration enforcement mechanisms offshore.

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So we're talking about interdiction, mechanisms in

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that regard, whether it's intercepting boats on the high

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seas, and, you know, which is a, a practice

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that we've seen all too frequently on the Mediterranean and,

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and certainly off, US coastal waters, historically,

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or whether we're talking about, interceptions of,

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of migrants who don't have proper documentation in airports,

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and the summary return

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or refu mall of people in particular, refugees back

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to their countries of, of origin.

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So those are the sort of extraterritorial,

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reaches of borders.

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But, but elasticity also works it in the sense

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of snapping back into the countries themselves

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through mechanisms like immigration detention, right?

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So the border actually follows the backs of migrants

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inside their countries of detention, sorry, countries

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of arrival, detaining them

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or subjecting them to coercive terms

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and conditions of release,

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and other forms of surveillance.

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So it's this idea

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that we have a physical border on the one hand,

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but we have as well a border

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that is highly elastic when it comes to non-citizens.

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I think it's important to situate, what happened,

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back in 2009.

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It was the final phase

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of a longstanding civil war in SSRI Lanka,

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and it produced a massive exodus both in the months,

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leading up to the brutal end of the war in May, 2009,

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as well as in its immediate aftermath in the following few

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years where repression of Tamils,

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continued to be widespread.

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So, just looking at the situation in May, 2009,

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there was a massacre in,

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the community of Malik Caval.

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Um, some 40 to 70,000 Tamal citizens

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of SSRI Lanka died.

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Um, and that those are conservative estimates

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provided by the international crisis group,

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and as well, just under 300,000 tamal citizens were,

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were effectively displaced

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and, corralled into army control detention camps

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for extended periods of time.

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Those who could get out and had the means to get out did so.

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And as I mentioned, there was this massive migration.

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And Canada in 2009

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and 2010 received two boatloads of

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tamal refugees who arrived off the west coast

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of British Columbia and immediately sought asylum.

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Um, now it's interesting to note that at the time

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of their arrival, the acceptance rate for Tamal

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refugees from SSRI Lanka was hovering around 84%,

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which tells you that when they actually had access

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to a hearing, the vast majority, not like a slight majority,

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but the vast majority of cases were being granted protection

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in recognition of the fact that at the time,

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TALs were not safe in SSRI Lanka,

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and certainly anyone who had any suspected association,

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no matter how tenuous with the Tamil Tigers,

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the militant group that had been waging this war against the

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state, anyone with suspected links, no matter how tenuous

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was targeted as a terrorist themselves, right,

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in SSRI Lanka.

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And, that's why the acceptance rate in

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Canada was so high.

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But at this very time, this very moment,

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the Canadian government did everything in its power

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to criminalize the arriving refugees.

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Indeed, they passed a new law, on the heels

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of their arrival, calling for the automatic detention

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of individuals who arrived as part of a group,

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as designated foreign nationals, mandatory detention,

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and a whole range of coercive, other policies.

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And if there was any doubt about who it was directed to,

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the government's press release at

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that time was translated into three languages, English

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and French, which are the country's official languages,

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but also in Tamal.

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So the Canada was sending a clear message to Tamil refugees,

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our doors are not open, despite

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the massive human rights violations that we're continuing

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to take place in SSRI Lanka.

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So the two boats arrived in Canada,

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the ocean lady followed a year later by the MV Sun Sea.

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All of the passengers on the, those boats were immediately

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and summarily detained.

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Um, many of them for lengthy periods of time.

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Many of them were subjected to coercive interrogation

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during their detention, sometimes for up

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to eight hours at a time repeatedly.

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Um, my co-researcher, Harini Ingham, actually interviewed,

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the migrants affected a, a fairly sizable sample

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of people who had been detained pursuant to these policies,

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as well as the lawyers

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and, the civil society organizations

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that intervened on their behalf

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and learned that for many of these refugees,

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their treatment in Canadian detention facilities

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was worse than how they were treated in Sri Lanka.

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And we're talking about people who, in many cases,

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survived torture in SSRI Lanka.

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The problem in Canada was people were locked

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up indefinitely.

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Canada's immigration detention law has no statutory limit on

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the length of detention, and that's a real problem

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because it's, it's civil detention, if you will.

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It's not criminal. It's supposed to be preventive.

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In the vast majority of cases, people are detained simply

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because there's a concern that they won't appear

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for a follow-up proceeding or examination.

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So unlikely to appear is the, the terminology applied,

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and yet they're locked up

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and they don't know how long they'll be there.

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And that in and of itself is a form of incredible torture.

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So, I mean, that among other things, are what the,

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migrants were counted to us.

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Well, lemme begin by the numbers,

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because the numbers are important.

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Keeping in mind that Canada's a small country, right?

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Overall, our population size is, is quite small relative

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to the geographical size of, of the territory.

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Um, and I'll tell you that over the last 10 years,

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the Canadian government has detained a high of, just

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around 9,000, non-citizens a year

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and a low of, somewhere around 1600.

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And that, by the way, was just one point

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during the pandemic,

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and at it specifically as a result

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of a policy in place at the time,

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to avoid detention wherever possible

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because of the concern of the spread

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of covid in congregate settings.

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So we only detained 1600 people in 20 20, 20 21 at

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the height of the pandemic.

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The numbers have crept back up over the last year.

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There's over 5,000 non-citizens who were detained.

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And while most of them are released within a relatively

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short period of time, two weeks

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or under, there's still several hundred

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that are in detention for more than 99 days.

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Okay? So effectively longer term detention,

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and that's a concern.

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Now, those numbers may seem small by comparison,

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for example, to the numbers detained in the United States

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are neighbor to the South.

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But keep in mind, the population sizes are

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very different, right?

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And the numbers of arrivals overall are very different.

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So I would argue that from the perspective of, of Canada,

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these numbers are very high indeed and very concerning.

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Um, in that group, over the last year,

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some 30 children were detained, right?

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Um, in direct, violation of all the international

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and domestic norms, which clearly, confirmed

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that children should not be subject to detention.

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So, you know, I wanna acknowledge that numbers

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of children in detention in Canada have steadily declined,

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but it's still a problem.

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And it's, it's really also important to look at

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the conditions of release.

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The Canadian government in common with many,

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migrant receiving states

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around the world have adopted an alternatives

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to detention framework.

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And that framework, is predicated on the notion

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that wherever possible detention is to be avoided.

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Sounds great. Um, as you can see,

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we're still detaining in significant numbers in Canada,

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but what's also important for people to understand is

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that once released migrants, non other,

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non-citizens continue to be subject to very coercive terms

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of release, often involving,

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the long arm of surveillance into everyday life in ways

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that are highly problematic.

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So in effect, on citizens,

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become tr trapped within digital cages, you know,

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they're not actually physically detained,

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but the experience of everyday life is severely interrupted.

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Um, when non-coercive, relatively,

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less intrusive measures could be used like,

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you know, monthly reporting.

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Uh, instead we see conditions that involve weekly reporting

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that, concerns sort of over policing

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and also the posting of inordinately expensive,

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bonds and guarantees that, even,

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when an individual status is, you know,

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resolved in the sense that at least they're not being re

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removed from Canada,

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the bonds people still don't get their money back,

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in terms of the, the money that has been posted.

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So that's just to give you a bit of a snapshot of, of

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what detention looks like in Canada.

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I, I would kind of underscore

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that the biggest problem in Canada in

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it is somewhat distinct, in comparison to,

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for example, the European Union.

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Um, there's no statutory limit on the length of detention.

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And while there may not be huge numbers

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of non-citizens in lengthy detention,

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there are documented cases where, you know,

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there is serious concern people are being locked up.

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Um, the justification for it is

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that this is detention ancillary to removal,

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and yet the individuals are not being removed

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3, 4, 5, 7 years later.

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The individuals are not being removed.

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And it's the same with the imposition of conditions,

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even when individuals, status has been resolved.

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To the extent that there's a decision not

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to remove somebody, even if they don't

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yet have permanent resonance, they're still subject

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to these coercive conditions.

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I think the ultimate goal is a recognition that detention,

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is one of the most severe forms

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of human rights violations imaginable.

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It is a deprivation of the fundamental right to liberty.

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And while there may be a small percentage of cases,

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where people are truly dangerous, within the,

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the common understanding of that word,

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the overwhelming majority of non-citizens

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who are detained in Canada are not dangerous,

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do not constitute a threat to public safety, a danger,

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to national security and should be released.

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It is unconscionable to sanction a system

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that deprives people of their liberty

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on some spurious concern that they won't show up

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for the next proceeding.

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Um, the government has means that it's disposal

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to ensure people report for removal when that time comes.

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So the case for abolition is predicated,

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essentially on a human rights claim in

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relation to liberty.

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Um, it's also, frankly, grounded in practical politics.

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I don't have the numbers immediately at my fingertips,

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but if we were to look at how much money Canada in concert

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with other migrant receiving, states

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spends on the immigration detention project,

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when they could be using that money

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for social welfare purposes,

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the average taxpayer would be shocked for the small number

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of people that actually,

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warrant more intrusive forms of surveillance.

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Surveillance. We would still be saving money

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by abolishing immigration detention

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as a recourse altogether.

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So that's the case in a nutshell.

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It joins common cause with a wider campaign,

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for abolition.

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Um, and in that regard,

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I would really cite the very important work

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of Ruth Wilson Gilmore, in the US who has

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demonstrated quite clearly in a whole body of work,

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the extent to which, the criminal justice system

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and the penal system

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and its connections to immigration detention are all part

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of a, a damaging racial technology,

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that we need to move beyond.

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It's the challenge for this century.

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Gilmore argues, and I certainly agree.

00:00 - The backdrop is actually two different threads of my own research, and that of my co-author and colleague Harini Sivalingam, the first thread, concerns longstanding preoccupation with Canadian immigration enforcement policies of which immigration detention is one aspect.

00:20 - I have long been engaged with research on the impacts of, coercive enforcement measures, and the extent to which those actually harm migrants and depart from Canada's human rights obligations, both domestically under our charter of rights and freedoms, as well as our obligations enshrined in international human rights law. So that's kind of one dimension. The other domain concerns a longstanding, engagement with the situation of minority rights in, societies

00:55 - where, there's, contests over citizenship and rights, and in particular, the circumstances in SSRI Lanka, which gave wi rise to widespread refugee exoduses, over some 30 year period during the longest standing civil war. and the extent to which the rights of Tal citizens of SSRI Lanka were not ex not respected in SSRI Lanka and correspondingly not respected as refugees in Canada during a particular timeframe.

01:26 - So there's those two threads of my work that have come together in this particular article. I want to acknowledge that, the concepts of intersectionality, border elasticity, and the racial technology of borders all come from very pathbreaking work of other scholars. So I wanna begin with a concept of intersectionality, which was coined by American Legal Scholar, Kimberly Crenshaw, a number of, years ago now, to refer to the, the ways in which interlocking identities

02:05 - or categories of identity, actually work, in concert with the law to oppress and suppress the rights of individuals, work as a form of exclusion and oppression. So we're talking about, race, first and foremost, and Kimberly Crenshaw in that regard, is a critical race scholar. but we're also looking at the categories of disability and gender, and sexual orientation, gender identity and expression.

02:39 - all of those categories and how they, interact with the law and legal system in ways that, have very deleterious impacts on the individuals and communities affected. So that's one piece of it. I want to also acknowledge, Canadian geographer, Emily Gilbert's groundbreaking work on border elasticity. Gilbert, based at the University of Toronto, has done some very important work on tracking the extent

03:09 - to which borders both snap outward extraterritorial through immigration enforcement mechanisms offshore. So we're talking about interdiction, mechanisms in that regard, whether it's intercepting boats on the high seas, and, you know, which is a, a practice that we've seen all too frequently on the Mediterranean and, and certainly off, US coastal waters, historically, or whether we're talking about, interceptions of, of migrants who don't have proper documentation in airports,

03:43 - and the summary return or refu mall of people in particular, refugees back to their countries of, of origin. So those are the sort of extraterritorial, reaches of borders. But, but elasticity also works it in the sense of snapping back into the countries themselves through mechanisms like immigration detention, right? So the border actually follows the backs of migrants inside their countries of detention, sorry, countries

04:10 - of arrival, detaining them or subjecting them to coercive terms and conditions of release, and other forms of surveillance. So it's this idea that we have a physical border on the one hand, but we have as well a border that is highly elastic when it comes to non-citizens. I think it's important to situate, what happened, back in 2009.

04:37 - It was the final phase of a longstanding civil war in SSRI Lanka, and it produced a massive exodus both in the months, leading up to the brutal end of the war in May, 2009, as well as in its immediate aftermath in the following few years where repression of Tamils, continued to be widespread. So, just looking at the situation in May, 2009, there was a massacre in, the community of Malik Caval.

05:08 - some 40 to 70,000 Tamal citizens of SSRI Lanka died. and that those are conservative estimates provided by the international crisis group, and as well, just under 300,000 tamal citizens were, were effectively displaced and, corralled into army control detention camps for extended periods of time. Those who could get out and had the means to get out did so. And as I mentioned, there was this massive migration.

05:39 - And Canada in 2009 and 2010 received two boatloads of tamal refugees who arrived off the west coast of British Columbia and immediately sought asylum. now it's interesting to note that at the time of their arrival, the acceptance rate for Tamal refugees from SSRI Lanka was hovering around 84%, which tells you that when they actually had access to a hearing, the vast majority, not like a slight majority, but the vast majority of cases were being granted protection

06:15 - in recognition of the fact that at the time, TALs were not safe in SSRI Lanka, and certainly anyone who had any suspected association, no matter how tenuous with the Tamil Tigers, the militant group that had been waging this war against the state, anyone with suspected links, no matter how tenuous was targeted as a terrorist themselves, right, in SSRI Lanka. And, that's why the acceptance rate in Canada was so high.

06:47 - But at this very time, this very moment, the Canadian government did everything in its power to criminalize the arriving refugees. Indeed, they passed a new law, on the heels of their arrival, calling for the automatic detention of individuals who arrived as part of a group, as designated foreign nationals, mandatory detention, and a whole range of coercive, other policies. And if there was any doubt about who it was directed to, the government's press release at

07:20 - that time was translated into three languages, English and French, which are the country's official languages, but also in Tamal. So the Canada was sending a clear message to Tamil refugees, our doors are not open, despite the massive human rights violations that we're continuing to take place in SSRI Lanka. So the two boats arrived in Canada, the ocean lady followed a year later by the MV Sun Sea. All of the passengers on the, those boats were immediately

07:50 - and summarily detained. many of them for lengthy periods of time. Many of them were subjected to coercive interrogation during their detention, sometimes for up to eight hours at a time repeatedly. my co-researcher, Harini Ingham, actually interviewed, the migrants affected a, a fairly sizable sample of people who had been detained pursuant to these policies, as well as the lawyers and, the civil society organizations

08:21 - that intervened on their behalf and learned that for many of these refugees, their treatment in Canadian detention facilities was worse than how they were treated in Sri Lanka. And we're talking about people who, in many cases, survived torture in SSRI Lanka. The problem in Canada was people were locked up indefinitely. Canada's immigration detention law has no statutory limit on the length of detention, and that's a real problem

08:49 - because it's, it's civil detention, if you will. It's not criminal. It's supposed to be preventive. In the vast majority of cases, people are detained simply because there's a concern that they won't appear for a follow-up proceeding or examination. So unlikely to appear is the, the terminology applied, and yet they're locked up and they don't know how long they'll be there. And that in and of itself is a form of incredible torture. So, I mean, that among other things, are what the,

09:23 - migrants were counted to us. Well, lemme begin by the numbers, because the numbers are important. Keeping in mind that Canada's a small country, right? Overall, our population size is, is quite small relative to the geographical size of, of the territory. and I'll tell you that over the last 10 years, the Canadian government has detained a high of, just around 9,000, non-citizens a year and a low of, somewhere around 1600.

09:54 - And that, by the way, was just one point during the pandemic, and at it specifically as a result of a policy in place at the time, to avoid detention wherever possible because of the concern of the spread of covid in congregate settings. So we only detained 1600 people in 20 20, 20 21 at the height of the pandemic. The numbers have crept back up over the last year.

10:20 - There's over 5,000 non-citizens who were detained. And while most of them are released within a relatively short period of time, two weeks or under, there's still several hundred that are in detention for more than 99 days. Okay? So effectively longer term detention, and that's a concern. Now, those numbers may seem small by comparison, for example, to the numbers detained in the United States are neighbor to the South.

10:49 - But keep in mind, the population sizes are very different, right? And the numbers of arrivals overall are very different. So I would argue that from the perspective of, of Canada, these numbers are very high indeed and very concerning. in that group, over the last year, some 30 children were detained, right? in direct, violation of all the international and domestic norms, which clearly, confirmed that children should not be subject to detention.

11:22 - So, you know, I wanna acknowledge that numbers of children in detention in Canada have steadily declined, but it's still a problem. And it's, it's really also important to look at the conditions of release. The Canadian government in common with many, migrant receiving states around the world have adopted an alternatives to detention framework. And that framework, is predicated on the notion

11:48 - that wherever possible detention is to be avoided. Sounds great. as you can see, we're still detaining in significant numbers in Canada, but what's also important for people to understand is that once released migrants, non other, non-citizens continue to be subject to very coercive terms of release, often involving, the long arm of surveillance into everyday life in ways that are highly problematic. So in effect, on citizens,

12:20 - become tr trapped within digital cages, you know, they're not actually physically detained, but the experience of everyday life is severely interrupted. when non-coercive, relatively, less intrusive measures could be used like, you know, monthly reporting. instead we see conditions that involve weekly reporting that, concerns sort of over policing and also the posting of inordinately expensive, bonds and guarantees that, even,

12:57 - when an individual status is, you know, resolved in the sense that at least they're not being re removed from Canada, the bonds people still don't get their money back, in terms of the, the money that has been posted. So that's just to give you a bit of a snapshot of, of what detention looks like in Canada. I, I would kind of underscore that the biggest problem in Canada in it is somewhat distinct, in comparison to,

13:25 - for example, the European Union. there's no statutory limit on the length of detention. And while there may not be huge numbers of non-citizens in lengthy detention, there are documented cases where, you know, there is serious concern people are being locked up. the justification for it is that this is detention ancillary to removal, and yet the individuals are not being removed 3, 4, 5, 7 years later.

13:55 - The individuals are not being removed. And it's the same with the imposition of conditions, even when individuals, status has been resolved. To the extent that there's a decision not to remove somebody, even if they don't yet have permanent resonance, they're still subject to these coercive conditions. I think the ultimate goal is a recognition that detention, is one of the most severe forms of human rights violations imaginable.

14:23 - It is a deprivation of the fundamental right to liberty. And while there may be a small percentage of cases, where people are truly dangerous, within the, the common understanding of that word, the overwhelming majority of non-citizens who are detained in Canada are not dangerous, do not constitute a threat to public safety, a danger, to national security and should be released. It is unconscionable to sanction a system that deprives people of their liberty

15:00 - on some spurious concern that they won't show up for the next proceeding. the government has means that it's disposal to ensure people report for removal when that time comes. So the case for abolition is predicated, essentially on a human rights claim in relation to liberty. it's also, frankly, grounded in practical politics. I don't have the numbers immediately at my fingertips, but if we were to look at how much money Canada in concert

15:32 - with other migrant receiving, states spends on the immigration detention project, when they could be using that money for social welfare purposes, the average taxpayer would be shocked for the small number of people that actually, warrant more intrusive forms of surveillance. Surveillance. We would still be saving money by abolishing immigration detention as a recourse altogether.

16:03 - So that's the case in a nutshell. It joins common cause with a wider campaign, for abolition. and in that regard, I would really cite the very important work of Ruth Wilson Gilmore, in the US who has demonstrated quite clearly in a whole body of work, the extent to which, the criminal justice system and the penal system and its connections to immigration detention are all part

16:33 - of a, a damaging racial technology, that we need to move beyond. It's the challenge for this century. Gilmore argues, and I certainly agree.

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