Falling between the cracks of cornerstones

Abstract

Immigration detention on the grounds of identity is not novel in international law – many states reserve the right to detain foreign nationals where their identity is unknown. Canada’s Immigration and Refugee Protection Act (IRPA) permits Canada Border Services Agency (CBSA) to detain foreign nationals where the minister is not satisfied as to the person’s identity. Canadian jurisprudence has continually referred to identity as the “cornerstone” of the Canadian immigration system, providing justification for detention where identity cannot be established. While the incidence of immigration detention on identity grounds rarely raises eyebrows, the law and practice of the identity ground are cause for serious concern, particularly in light of dramatic regional disparities. This chapter reviews the legislative genesis of the identity ground in immigration detention in Canada, which was explicitly for the purpose of deterring and punishing undocumented arrivals and designed to remove the possibility of review in the wake of perceived security threats. Consequently, the identity ground has been treated fundamentally differently than the other grounds of detention. As a review of the subsequent jurisprudence and practice demonstrate, the focus on identity as the “cornerstone” of the Canadian immigration system has provided a false justification for refusing to extend meaningful review to detainees caught by these provisions. The current legislative regime grants incredible powers to the minister to detain persons for a multitude of improper purposes, but all justified by raising the ground of identity. While the IRPA provides a detention review mechanism, it is completely ineffective for those detained on identity grounds and removes the opportunity to meaningfully challenge detention. Despite these legislative defects, major changes to immigration detention are on the horizon with the Supreme Court’s decision in Chhina. This chapter also assesses present practice and policy of detention on identity grounds and determines its future in light of the availability of habeas corpus. Ultimately, individuals who are detained on the ground of identity are insufficiently protected by the detention review mechanism, but may also be out of reach of the “cornerstone of liberty” of habeas corpus. Without legislative reform or lawyers willing to aggressively test habeas corpus, persons detained for identity – and asylum seekers in particular – remain at risk of detention without adequate remedy.