Efrat Arbel

Questions of gender have strongly influenced the development of international refugee law over the last few decades. This volume assesses the progress towards appropriate recognition of gender-related persecution in refugee law. It documents the advances made following intense advocacy around the world in the 1990s, and evaluates the extent to which gender has been successfully integrated into refugee law. Evaluating the research and advocacy agendas for gender in refugee law ten years beyond the 2002 UNHCR Gender Guidelines, the book investigates the current status of gender in refugee law. It examines gender-related persecution claims of both women and men, including those based on sexual orientation and gender identity, and explores how the development of an anti-refugee agenda in many Western states exponentially increases vulnerability for refugees making gendered claims. The volume includes contributions from scholars and members of the advocacy community that allow the book to examine conceptual and doctrinal themes arising at the intersection of gender and refugee law, and specific case studies across major Western refugee-receiving nations.

In R v Gladue, the Supreme Court of Canada famously remarked that the incarceration of Indigenous people represents a "crisis." Since Gladue's release, the language of "crisis" has been used with frequency in Canadian legal discourse. In this article, I analyze how this language has shaped the broader legal understanding of Indigenous mass imprisonment. My focus is not on specific iterations or uses, but on the cumulative impact of the language of "crisis" over the last twenty years. I suggest that however well-meaning these representations may be, their cumulative impact is harmful. In the face of the relentless intensification of Indigenous mass imprisonment, the language of "crisis" has operated to subtly entrench the colonial structures it purports to disrupt. Urging a shift away from its use, I argue that the language of "crisis" is not only ill suited to address the problem, but is part of the problem.

The law and practice of solitary confinement continues to be a source of rights violations in Canadian prisons. The practice, formally known as administrative segregation, isolates prisoners for 23 hours a day in dehumanizing conditions of confinement. In this paper, I examine the extent to which the tort of false imprisonment can compensate prisoners for unlawful or excessive segregation placements. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by segregation none have examined the application of this tort. I argue that because of its focus on liberty, dignity, and personal autonomy, this tort is particularly well suited to address the harms of segregation. To date, however, the tort’s progressive potential has not been realized, for two main reasons. First, rather than maintain the rigorous standards required by the tort, the courts have shown significant deference to the discretionary authority or prison officials, even in cases where the courts accepted evidence that such authority was improperly exercised. In doing so, they have allowed prison authorities to circumvent liability for unwarranted segregation placements, thus effectively authorizing the very violations against which the tort is designed to protect. Second, even in successful cases, the courts have awarded only paltry general damage awards to prisoner plaintiffs, generally set at $10 for every unlawful day of segregation. Their stated rationale for doing so is that a prisoner’s retained liberty is simply not worth as much as the liberty of the free. This approach is problematic not only for its failure to appreciate the lived experience of segregation, but also for its unprincipled departure from the doctrine that governs the application of the tort. Developing these critiques by analyzing the prison cases against those involving the unincarcerated – in which violations of liberty are effectively compensated – I conclude by advocating for a judicial shift in the determination of false imprisonment cases involving segregation. Against the backdrop of the Supreme Court of British Columbia’s landmark decision in British Columbia Civil Liberties Assn. v. Canada (Attorney General), I argue that such a shift could bring a sea change in Canadian tort law, and advance the law’s promise to effectively protect dignity, autonomy, and liberty.

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie,however, is far from clear. In this article, I examine the Canadian border as a site at which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders
Strategy (MBS)a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulationI point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border in two fundamentally different ways. On one hand, it conceives of the border as a multiple, moving barrier that can be selectively positioned
outside Canada’s territorial boundaries to expand state power outward. On the other hand and at the same time, it conceives of the border as a singular and static barrier positioned at the edge of Canadian territory and asserts this as the “actual” border. By simultaneously conceiving of the border in these two conflicting waysand maintaining that Canada’s
extraterritorial borders are not its actual bordersthe MBS frustrates a basic principle of Canadian constitutional law. It not only deprives refugees of constitutional protection but also, more fundamentally, of legal and constitutional recognition. To illuminate the legal and conceptual violence of the MBS, I turn to the work of Hannah Arendt on the “right to have
rights.” By reference to Arendt’s work, I argue that the MBS not only re-charts Canada’s national boundary, it also alters the juridical relationships produced by that boundary and the rights and duties they prescribe. I conclude by advocating for better alignment between Canada’s constitutional commitments and its border laws and policies. I argue that to give meaning to the right to have rights within Canada’s constitutional framework and to ensure that those subject to the force of Canadian law may also benefit from its protection, Canada must ensure that wherever its legal borders go the constitution follows.

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada–US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional protection. In contrast, the Federal Court of Appeal decision conceives of the border as both static and shifting. In its treatment of the STCA, the Court conceives of the border as a moving barrier that shifts outside Canada’s formal territorial boundaries to extend state power outwards. Yet, in its constitutional analysis, the Court conceives of the border as a static barrier that remains fixed at the state’s geographic perimeter to limit access to refugee rights. By simultaneously conceiving of the border in these opposing ways, the Court of Appeal decision places refugee claimants in an impossible legal bind: it requires them to present at the (static) border to claim legal protection, but at the same time shifts the border in ways that preclude them from doing so. The decision thus suspends refugee claimants between two opposing directives, deprives them of otherwise actionable rights, and denies them recourse to meaningful legal action under Canadian law. The article argues that, in this key way, the Federal Court of Appeal decision does much more than clarify the executive discretion of the Governor-in-Council, as it purports. Rather, it redefines the Canadian refugee regime as fundamentally exclusionary towards STCA claimants, and calls into question the central principles by which this regime is distinguished and defined.

This article examines Canadian refugee law cases
involving domestic violence, analyzed through a
comparison with cases involving forced sterilization
and genital cutting. Surveying 645 reported decisions,
it suggests that Canadian adjudicators generally
adopted different methods of analysis in refugee cases
involving domestic violence, as compared with these
other claims. The article argues that Canadian adjudicators
rarely recognized domestic violence as a rights
violation in itself but, instead, demonstrated a general
predisposition toward finding domestic violence persecution
in cultural difference. That is, adjudicators
tended to recognize domestic violence claimants not as
victims of persecutory practices but rather as victims
of persecutory cultures. The article suggests that this
approach establishes incorrect criteria by which to
evaluate domestic violence claims, for two main reasons.
First, this approach does not accord due weight
to complex factors besides culture that make women
vulnerable to persecution in domestic settings. Second,
this approach erects legal and conceptual barriers for
women who cannot authentically narrate their experience
through the script of cultural vulnerability or who
cannot present as “victims of culture”. The article posits
that characterizing the violence suffered by refugee
women as a product of culture does more than erect
barriers for refugee claimants; it also operates as a
protective device that suppresses the commonality of
domestic violence across cultures and elides its domestic
prevalence. The article concludes by suggesting
that this approach replicates problematic assumptions
about gender violence and gender difference that make
it harder to address domestic violence both abroad and
at home.

Despite a pressing need for judicial guidance on the legalities of administrative segregation, Canadian courts have yet to outline clear, comprehensive principles by which to assess its deployment. While some courts have rebuked the Correctional Service of Canada for the improper use of administrative segregation in specific cases, the regulation of the practice more broadly has proven elusive. This article turns to the Supreme Court of Canada’s prisoner voting rights decision in Sauvé v Canada for guidance in this regard. Since its release in 2002, Sauvé has been applied largely in cases involving political rights, and rarely in cases involving conditions of confinement. The recent trial level decision in Bacon v Surrey Pretrial Services Centre, however, suggests that Sauvé’s significance extends beyond the voting rights context. Building on Bacon, this article posits that Sauvé outlines a “statement of constitutional and carceral theory” that can be cited to scrutinize the law and practice of administrative segregation. It illustrates this claim by analyzing the Management Protocol, a corrections protocol in effect between 2003-2011 that authorized prison wardens to subject maximum-security women to an extreme solitary confinement regime. The Protocol was designed and administered in highly objectionable ways, revealing a clear gap between the progressive ideals of prisoner rights protection as articulated in Sauvé, and the record of their enforcement in the daily administration of corrections. Applying Sauvé to the Management Protocol, this article highlights the decision’s potential to critique and contest the improper use of administrative segregation when it results in unmodulated rights deprivations.

Nine years after the implementation of the Canada-US Safe Third Country Agreement (STCA), this chapter examines the STCA while asking the question: what about gender? How have initial concerns about the STCA’s adverse gender impact mapped onto the current, much-altered landscape of Canadian refugee law? The chapter revisits findings made in Bordering on Failure, a recent report I co-authored about the STCA, in an effort to read gender into its absence.  I begin by charting an overview of the STCA’s operation and effect to provide context for discussion. I then revisit the central findings made in Bordering on Failure, paying attention to the question of gender. I argue that while the findings made in Bordering on Failure suggests the STCA may be impacting women in adverse ways, these effects are difficult to identify with any precision. I further argue that in is in this respect that the gendered impact of the STCA is most acutely felt: its gendered contours are increasingly disappearing from view.  The dearth of information about the STCA impact on women raises a serious possibility that the new fault lines of Canadian refugee law and policy will be charted in ways that are inattentive to the specific protection needs of women, leaving many gender issues unrecognized, and others out of sight.

This chapter questions the Canadian border’s reconstitution as a site of punishment for refugee claimants by examining the Designated Foreign National (DFN) regime, which permits the Canadian government to discipline foreign nationals for suspected violations of Canadian border laws by subjecting them to penalties that are formally classified as administrative, but amount to de facto punishment. These include mandatory arrest and detention, as well as compulsory reporting and ongoing document inspection. In this chapter, I examine the operation of the DFN regime in relation to other border measures, focusing specifically on the Canada-US Safe Third Country Agreement. I argue that the Agreement not only closes the Canadian border to refugees, it also reconstitutes those claimants through discourses of criminality and illegality, and thus plays a key role in producing the very ‘irregularity’ that the DFN regime is designed to punish. Proceeding from this claim, I argue that the DFN regime is premised on a legal and conceptual flaw: it presumes ‘irregularity’ to be an essential subject position that reflects a transgression of Canadian border laws when, in fact, it is a constitutive subject position produced by them. By punishing refugee claimants for this deemed irregularity, the DFN regime does more than enhance Canada’s ability to punish refugee claimants through arrest and detention. Instead, it introduces a far more extreme form of punishment into Canadian refugee law: it effectively empowers the government to punish refugee claimants for trying to avail themselves of the right to seek asylum in Canada.

In this chapter, we analyze Canada’s response to the outbreak of COVID-19 as it relates to immigration detention. We focus on decisions released by the Immigration Division (ID) of the Immigration and Refugee Board, the independent, quasi-judicial administrative tribunal tasked with detention-related decision-making in Canada. Writing in the four months after pandemic measures were first introduced in Canada, our analysis is by necessity provisional, and focuses on seventeen ID decisions released in the two month period between mid-March and mid-May 2020, at the height of the pandemic in Canada. Our analysis of this dataset reveals an identifiable shift in ID practice: prior to the outbreak of COVID-19, ID members generally refused to hear arguments related to conditions of detention, and rarely ordered release on that basis. With the onset of the pandemic, however, ID members have not only entertained arguments identifying COVID-19 as a condition of detention, but more significantly, have explicitly relied on this condition as a basis for release. We argue that this shift in ID practice is significant. Legally, it allows detainees to argue the conditions of their own confinement before the administrative body tasked with overseeing their detention. This renders those conditions actionable, and therefore legally meaningful. Materially, this shift empowers detainees, allowing them to more effectively advocate for their own release, while lessening the violence inherent to the detention review process. Conceptually, the decisions suggest a shift in the paradigm within which legal decisions governing detention are made. Before COVID-19, the release assessment was firmly entrenched in the familiar “us/them” paradigm that characterizes the disciplinarity of immigration detention. The post COVID-19 decisions suggest that this paradigm has shifted: the line distinguishing us from them has blurred in the shadow of a common threat, and the location of risk has shifted in relation to that line. The previous conception of the inherent riskiness of migrants has been displaced by the disruptive, risky, pandemic – a change that was surely buttressed by the closure of the Canadian border, in particular to asylum seekers. Reflecting on the broader implications of this shift in ID conduct, we suggest that the onset of COVID-19 has revealed the ways in which the containment and confinement of noncitizens can be reconfigured in Canadian law. Mindful of the potentially limited nature of this shift, we identify the progressive possibilities hidden in that reconfiguration, and urge for it to continue even as the pandemic abates.

The law and practice of solitary confinement continues to be a source of rights violations in Canadian prisons. The practice, formally known as administrative segregation, isolates prisoners for 23 hours a day in dehumanizing conditions of confinement. In this paper, I examine the extent to which the tort of false imprisonment can compensate prisoners for unlawful or excessive segregation placements. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by segregation none have examined the application of this tort. I argue that because of its focus on liberty, dignity, and personal autonomy, this tort is particularly well suited to address the harms of segregation. To date, however, the tort’s progressive potential has not been realized, for two main reasons. First, rather than maintain the rigorous standards required by the tort, the courts have shown significant deference to the discretionary authority or prison officials,...

In June 2012, the Canadian government ushered in sweeping reforms to Canada’s refugee system. These reforms brought debates about Canadian refugee protection to the forefront of legal and political discourse. In advancing these reforms, the Canadian government has asserted that Canada’s refugee system is among the most generous and compassionate in the world. Canada’s doors, the Canadian government has stated, remain open to legitimate refugees. This report evaluates these claims by examining the U.S.-Canada Safe Third Country Agreement and border measures implemented under the rubric of the Multiple Borders Strategy, and analyzing their effects on asylum seekers. A detailed examination of these measures is necessary to evaluate the generosity of Canada’s refugee system, and to accurately frame debates about Canadian refugee protection. This report concludes that through the Safe Third Country Agreement and the Multiple Borders Strategy, Canada is systematically closing its borders ...

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.