Dear Participants in the March 20 Workshop on Fact Finding in Immigration Detention Reviews,

After reviewing recently issue guidelines from Health Canada and in light of the rapidly changing situation with Covid-19, we have regrettably decided to postpone the workshop. While the risks remain low, we have made this decision out of an abundance of caution and because we want everyone to be able to participate in the conversation.

We are very sorry for the inconvenience and regret that we will not be seeing you next week.

We continue to be eager to have a conversation on these topics, and we will be in touch about a revised date when things calm down and there is more certainty.  We very much hope that you will join us for that conversation.

We will be processing reimbursement for any registration fees that you have paid.

Once again, our apologies.

Sean Rehaag, Benjamin Berger, Stephanie Silverman & Hilary Evans Cameron

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

20 March 2020, (9:00am-5:45pm)
Toronto Reference Library – Beeton Hall
789 Yonge Street, Toronto, Ontario

Immigration detention has provoked heated debate in Canada. Points of contention include whether there should be any immigration detention at all, whether there should be a limit on the length of detention, whether children should be detained, and what conditions of detention should be like.

Thus far, the norms and processes according to which evidence is introduced and assessed in immigration detention reviews conducted by the Immigration and Refugee Board (IRB) have not received as much attention. At first glance this may not be entirely surprising. The Immigration and Refugee Protection Act notes that the IRB is “not bound by any legal or technical rules of evidence.” Meanwhile, Canadian evidence law scholarship has been concerned mostly with rules of (non-) admissibility. This focus persists even though the principal way information is examined in legal processes is not through decisions about admissibility but through decisions about assessments of credibility and how to interpret and weigh 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.

There is much to be gained by considering what evidence law scholarship has to say about administrative law settings, and vice-versa, and the immigration detention context is an especially promising place to bring these two areas of law into further conversation.

Immigration detention raises liberty interests similar to those in the criminal law context studied by most evidence law scholars. 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. 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 – and hopefully improve decision-making in this area.

Recent social-legal 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. 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.

To explore these questions, Sean Rehaag, Benjamin Berger, Hilary Evans Cameron and Stephanie Silverman are organizing a workshop, cohosted by Osgoode Hall Law School and the Centre for Refugee Studies at York University. The workshop will bring evidence law and administrative law into a deeper conversation with one another by examining fact-finding in immigration detention reviews. It will be of interest to evidence law, administrative law, and immigration law scholars – as well as practitioners, decision-makers, and policy-makers involved with immigration detention reviews in Canada. Following the workshop, a special issue of the Journal of Law and Social Policy will publish papers on the intersections explored at the workshop.

Download the Program (Word)