Fact-Finding in Immigration Detention Reviews: Evidence Law meets Administrative Law

September 30, 2021 – October 1, 2021 all-day

Draft Program

Debates over immigration detention have received increased scholarly attention in Canada in recent years. Some key points of contention include whether there should be any immigration detention at all, whether there should be an upper limit on the length of detention, whether children should ever be detained (and if not detained, then separated from detained parents), whether processes for reviewing ongoing detention are fair and appropriate, and what detention conditions are appropriate.

One aspect of immigration detention that has not received as much attention is the norms and processes according to which evidence is introduced and assessed in immigration detention reviews conducted by the Immigration and Refugee Board’s Immigration Division. At first glance this may not be entirely surprising. Section 173 of the Immigration and Refugee Protection Act notes that the Immigration Division is “not bound by any legal or technical rules of evidence.”

Meanwhile, Canadian evidence scholarship has been disproportionately concerned with rules of (non-) admissibility. This focus has persisted even though the principal way that information is examined in legal processes is not through decisions about admissibility but through decisions about assessments of credibility and how to interpret information. In part, the resultingly distorted picture of the field of evidence is a product of the overwhelming presence of those interested in criminal law (and, therefore, the image of the contested criminal trial) amongst those teaching and writing about evidence – though this focus on admissibility misrepresents some of the key questions regarding the use of information in adversarial criminal processes as well. 

In our view, there is much to be gained by considering what evidence law scholarship has to say about administrative law settings, and vice-versa, and we think that immigration detention is an especially promising context for bringing these two areas of law into further conversation.

Immigration detention raises liberty interests that are in some ways similar to the criminal law context studied by most evidence law scholars. For example, immigration detention reviews involve the government asserting that a person should be detained, the length of detention sometimes extends for many years, and detainees often find themselves co-mingled with general prison populations in provincial institutions. Accordingly, the existing insights of evidence scholarship, so coloured as they have been by the criminal adversarial trial setting, can illuminate issues in the management of information in the immigration detention setting. 

At the same time, we think that recent sociolegal scholarship in the immigration field also has interesting things to say to evidence law scholars and the study of evidence. Partly because of the scant attention paid to formal rules of evidence in the immigration setting, much immigration law research relating to fact-finding has adopted sociolegal approaches. This research has focused less on rules relating to the admissibility of evidence, and more on examining outcomes in credibility assessments and exploring how adjudicators justify their factual findings. In our view, this research can encourage evidence law scholars to examine similar types of questions about fact-finding in other types of legal processes – and can thus help push evidence law scholarship beyond questions regarding admissibility in criminal trials.

This workshop, which will be co-hosted by Osgoode Hall Law School and the Centre for Refugee Studies at York University, aims to help bring evidence law and administrative law into deeper conversation with one another by examining fact-finding in immigration detention reviews. It will be of interest to scholars of evidence law, administrative law, and immigration law – as well as to practitioners and decision-makers involved with immigration detention reviews in Canada.

Registration is free, the conference will be over Zoom

Register here