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

30 September & 1 October 2021 (by Zoom)

Register here

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 cohosted 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.



Workshop Asynchronous Content:

(1) Discussion paper (Simon Wallace, Sean Rehaag, and Benjamin Berger) 

This discussion paper aims to encourage a broader engagement between the fields of evidence law and administrative law, using evidence in the immigration detention review setting as a case study. For most, the field of evidence law is essentially concerned with the rules of non-admissibility. This narrow vision of evidence law partly explains why administrative decision-making and administrative law only sporadically reaches to evidence law’s lessons—and why administrative law settings feature only infrequently in evidence law doctrine. This disconnect is regrettable because contact between the fields could be mutually enriching: evidence law has a rich tradition of thinking about information and, today, administrative law is the primary site of contact between the individual and the state. This paper considers if and how the disconnect between administrative law and evidence law can be bridged.

(2)(a) A primer on the law of evidence and public decision-making (Benjamin Berger) – 10 minutes 

This video explains how traditional understandings of the law of evidence are (or should be) under stress and points to a way of conceiving of evidence law that opens up more robust avenues for conversation with administrative decision making.

(2)(b) A primer on the law immigration detention (Simon Wallace) – 16 minutes

This video aims to provide a basic primer on immigration detention to help ensure that everyone is familiar with the general context.

(2)(c) Crossing Jurisdictional Boundaries: Evidence in US Immigration Detention (Mary Holper) – 17 minutes 

This video aims to provide an introduction to how evidence in handled in US immigration detention proceedings as a point of comparison to Canadian practices. 

(2)(d) Crossing Jurisdictional Boundaries: Evidence in Immigration Detention in Spain (Ana Ballesteros Pena) – 12 minutes 

This video aims to provide an introduction to how evidence in handled in immigration detention proceedings in Spain as a point of comparison to Canadian practices.

(2)(e) Crossing Disciplinary Boundaries: An Experiment in Fact-Finding in the Migration Law Setting (Sean Rehaag) – 26 minutes

This video overviews a research experiment on fact-finding in refugee adjudication and considers implications for scholars, practitioners and decision-makers interested in the intersection between evidence law and administrative law (and specifically evidence law and migration law).

Pre-Workshop Panel

CRS Seminar: Immigration Detention Reviews: Lessons from Psychology and Psychiatry (Sept 21, 1:00pm-2:30pm)

This panel is not formally part of the workshop. However, workshop participants and attendees may be interested in this Centre for Refugee Studies Seminar exploring how legal and psychiatric approaches can frame understandings of evidence and its frailties in immigration detention hearings. Further details and registration for the seminar are available here.

Workshop Synchronous Content

(All times are Eastern Daylight Time)

Day 1: Thursday, September 30th 
1:00 – 1:15


Sean Rehaag, Welcome & Acknowledgement of Territory (5 minutes) 

Benjamin Berger, Introducing Workshop Themes (10 minutes)

Description: This session will welcome participants to the workshop and will set out some of the key themes that the workshop aims to explore.

1:15 – 2:05

Theorizing Fact-Finding: Public Decision-Making and the Law of Evidence

Chair: Lisa Dufraimont (5 minutes)

Emma Cunliffe, A view from Evidence Law (15 minutes)

Justice Sebastien Grammond, A view from Administrative Law (15 minutes)

Cheryl Robinson, A view from Immigration Law (15 minutes)

Description: In his critique of the dominance of the rule-based approach to theorizing the law of evidence, William Twining famously described rules of exclusion as like the Cheshire Cat. They appear unpredictably, partially, and sometimes not at all in the subject that should concern evidence scholars: principles for the management of information in the process of fact-finding.  Although Twining was speaking of the litigation process, this critique is amplified when we turn to the diverse administrative settings in which most public decision-making in fact takes place.  In those settings, by contrast, evidentiary issues are often simply folded into questions of procedural fairness.  Does this adequately capture our concerns about the management of evidence in those settings?  How should we think about principles of good fact-finding when we turn away from the criminal trial and towards administrative decision-makers?  Taking up the case of immigration detention reviews, this panel engages immigration, administrative, and evidence law scholars on these questions. 

2:05 – 2:20 Zoom breakout discussion
2:20 – 2:30 Zoom break
2:30 – 3:05

Principles for Assessing Sufficiency of Evidence in Immigration Detention Reviews

Chair: Jamie Liew (5 minutes) 

Hilary Evans Cameron: Fact-Finding in Immigration Detention (and the Wrong Mistake) (15 minutes) 

Judy Michaely, Burdens & Presumptions in Immigration Detention: Practical Realities and Protecting Public Interests (15 minutes)

Principles relating to the sufficiency of evidence – onus, standard, burdens of proof, and presumptions – are robustly developed in the law of evidence as it concerns litigation and, in particular, the adversarial criminal trial.  The burden of proof is, in fact, a touchstone in that setting, driving many of the other rules of procedure and admissibility governing good fact-finding.  What is far less clear is the role of sufficiency of evidence questions in non-court public decision-making, the province of administrative law.  This is in part owing to the powerful myth that formal rules of evidence do not apply in administrative settings; it is in part attributable to the very different forums in which administrative decisions are made (ministers, agencies, and tribunals, etc.).  The immigration detention review setting offers a rich example to examine the question of what role burdens of proof, standards of proof and presumptions should play in structuring the approach to the management of information in administrative decision-making.

3:05 – 3:15 Zoom breakout discussion
3:15 – 3:20 Wrap up of day 1 (Sean Rehaag)


Day 2: Friday, October 1st
1:00 – 1:05 Welcome (Sean Rehaag)
1:05 – 2:00

Crossing the Borders of Practices: Learning from Other Legal Contexts

This session examines several different contexts in Canadian law in which important interests are at stake in legal proceedings, but where evidentiary norms may be more relaxed than in criminal trial litigation. This will be followed by small break-out groups discussing what we can learn about evidence in the immigration detention context – and the connections between evidence law and administrative law more generally – from the treatment of evidence in these other areas.

Chair: Lisa Kerr (5 minutes)

Jillian Rogin, Bail (10 minutes)

Jamie Cameron, Ontario Review Board (10 minutes)

Lisa Kelly, Family Law (10 minutes)

Senwung Luk, Aboriginal Law (10 minutes)

Subodh Bharati, Habeas Corpus in Immigration Cases (10 minutes)

2:00 – 2:15 Zoom breakout session
2:15 – 2:25 Zoom break
2:25 – 2:40

Allez vous fair fourtre discussion

Julie Lassonde is a performance artist and a social justice lawyer. As part of her social justice work she served as a Designated Representative for a Francophone man who had been in immigration detention for more than 6 years, in a maximum-security institution, co-mingled with people serving criminal sentences, all because he was considered a flight risk. He refused to participate in detention reviews during most of that time. In this video work, which has been commissioned for this workshop, Julie explores her experience attempting to communicate with the person involved, her experience with the immigration detention review process, and her experience with a habeas corpus application that she brought with legal representation by Swathi Sekhar when multiple immigration detention reviews did not result in release.

We would like to acknowledge generous funding support from the Ontario Arts Council, an agency of the Government of Ontario, for this performance and installation.

Workshop registrants will receive a link to the video by email 48 hours before the workshop. Please watch the video in advance of this session. People interested only in the video who are not attending the broader workshop can find further details and register just for the video here.

Swathi Sekhar and Julie Lassonde

2:40 – 3:05

Beyond Tinkering at the Edges? Abolition or Reform of Immigration Detention 

Chair: Efrat Arbel (5 minutes) 

Stephanie Silverman, De-carcerating the Immigration Enforcement System (10 minutes) 

Aviva Basman, Improving Immigration Detention Decision-Making (10 minutes)

Discussion: This session will critically consider whether focusing attention on procedural questions, including evidence law, is where efforts should be placed – or whether more radical approaches should be considered.

3:05 – 3:20 Zoom breakout session
3:20 – 3:30 Wrap up of workshop (Benjamin Berger, Hilary Evans Cameron, Sean Rehaag, Stephanie J. Silverman & Simon Wallace)

Workshop Organizers: Benjamin Berger, Hilary Evans Cameron, Sean Rehaag, Stephanie J. Silverman & Simon Wallace

For further information please contact Simon Wallace (simonwallace@osgoode.yorku.ca).

This workshop is supported in part by funding from the Social Sciences and Humanities Research Council, York University’s Centre for Refugee Studies & Osgoode Hall Law School.