In Mission Institution v Khela, the Supreme Court of Canada held that a detainee on an applicatio... more In Mission Institution v Khela, the Supreme Court of Canada held that a detainee on an application for habeas corpus may challenge a deprivation of liberty on grounds of substantive unreasonableness. According to some advocates and scholars, Khela completed an unwelcome fusion of habeas corpus and administrative law that threatens to weaken the strength of habeas corpus and, with it, prisoners' rights. The author argues, however, that the fusion of habeas corpus and administrative law has not been the setback that some have suggested. As the cases reviewed in this article show, correctional authorities routinely disregard prisoner representations in the process of making decisions that deprive prisoners of their liberty. Khela's virtue is that it incorporates into the law of habeas corpus a justificatory standard which condemns such disregard in a manner not previously known to the correctional law contex. In short, Khela requires the Correctional Service of Canada to do something seemingly contrary to its ethos: take prisoners' rights seriously. † J.D. (2017), University of British Columbia. I owe special thanks to Professors Efrat Arbel, Debra Parkes, and Michael Jackson, Q.C., for their inspiration and encouragement. I am also grateful to the editorial team at the Canadian Journal of Human Rights for their assistance and to two anonymous reviewers for their insightful feedback.
In 2016, the Canadian Government launched an initiative to reform immigration detention, with the... more In 2016, the Canadian Government launched an initiative to reform immigration detention, with the goal of creating a just and humane detention regime. In this paper, we argue that to achieve its stated goals, this initiative must address a core problem in the law of detention: the problem of time. This problem flows, in part, from there being no clear time limits on detention, and in part, from there being no clear standards for achieving release from detention. For insights into this problem, we turn to recent developments in the law of solitary confinement, which is similarly beset by the problem of time. Learning from solitary confinement, we argue that clear statutory time limits and meaningful independent oversight are necessary to ensure the just and humane regulation of detention. In their absence, the government's reforms may amount to window-dressing: detention will continue to be vulnerable to misapplication and misuse, and to destroy and dehumanise those in its care.
In Mission Institution v Khela, the Supreme Court of Canada held that a detainee on an applicatio... more In Mission Institution v Khela, the Supreme Court of Canada held that a detainee on an application for habeas corpus may challenge a deprivation of liberty on grounds of substantive unreasonableness. According to some advocates and scholars, Khela completed an unwelcome fusion of habeas corpus and administrative law that threatens to weaken the strength of habeas corpus and, with it, prisoners' rights. The author argues, however, that the fusion of habeas corpus and administrative law has not been the setback that some have suggested. As the cases reviewed in this article show, correctional authorities routinely disregard prisoner representations in the process of making decisions that deprive prisoners of their liberty. Khela's virtue is that it incorporates into the law of habeas corpus a justificatory standard which condemns such disregard in a manner not previously known to the correctional law contex. In short, Khela requires the Correctional Service of Canada to do something seemingly contrary to its ethos: take prisoners' rights seriously. † J.D. (2017), University of British Columbia. I owe special thanks to Professors Efrat Arbel, Debra Parkes, and Michael Jackson, Q.C., for their inspiration and encouragement. I am also grateful to the editorial team at the Canadian Journal of Human Rights for their assistance and to two anonymous reviewers for their insightful feedback.
In 2016, the Canadian Government launched an initiative to reform immigration detention, with the... more In 2016, the Canadian Government launched an initiative to reform immigration detention, with the goal of creating a just and humane detention regime. In this paper, we argue that to achieve its stated goals, this initiative must address a core problem in the law of detention: the problem of time. This problem flows, in part, from there being no clear time limits on detention, and in part, from there being no clear standards for achieving release from detention. For insights into this problem, we turn to recent developments in the law of solitary confinement, which is similarly beset by the problem of time. Learning from solitary confinement, we argue that clear statutory time limits and meaningful independent oversight are necessary to ensure the just and humane regulation of detention. In their absence, the government's reforms may amount to window-dressing: detention will continue to be vulnerable to misapplication and misuse, and to destroy and dehumanise those in its care.
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Journal Articles by Ian C Davis