by Michael Larsen Source: Prism Magazine URL: [link] Date: April 20, 2012
It seems that the decision to close the Kingston Immigration Holding Centre (KIHC) was made in December 2011, and the facility is no longer operational. Postmedia News broke the story this week. The KIHC, a unique prison expressly designed to detain persons held on ‘security certificates’ under the Immigration and Refugee Protection Act, opened in April 2006.
The official rationale for its closure almost six years later was “to allow the agency to better align its resources,” according to a Canada Border Services Agency (CBSA) spokesperson. It is unsurprising that the decision to close the facility was informed by financial considerations, as it was always an expensive prison-within-a-prison, and it had long been dormant.
Along with many human rights groups, social justice advocates, and supporters of the campaign to abolish security certificates, I have been calling for the closure of the KIHC for years, so this news is most welcome. My celebration of this announcement is qualified, though, for two reasons.
First, the minimal information that we have about the closure of KIHC leaves some important unanswered questions. Specifically, what are the current arrangements for the detention of persons subject to security certificates? There are still three men on conditional release facing security certificate proceedings – Mohamed Harkat, Mohamed Mahjoub, and Mahmoud Jaballah. Hypothetically, any of these men could be detained by the CBSA following an alleged breach of their release conditions.
In the case of a severe breach, a Federal Court judge could order one of them returned to long-term imprisonment. This is unlikely, but not impossible, especially given the CBSA’s history of unreasonable arrests and intrusive house raids in certificate cases. Where would a person be detained in such circumstances? For opponents of the ‘secret trial’ process, understanding these provisions offers important insights into the federal government’s vision for the future of the certificate regime.
The second reason for my ambivalence about the closure of the KIHC is the legacy that the institution leaves behind. I would feel more comfortable going forward if I knew that the facility was ordered closed because the arrangements governing its operation and the form of detention it made possible were deemed to be untenable – either in a court of law or in the court of public opinion. As it stands, the KIHC project is as a testament to the viability of a Canadian ‘special prison’ model that normalizes an exceptional form of detention.
To appreciate the legacy of the KIHC, it is worth reviewing its origins, purpose, and governing arrangements.
The Emergence of the KIHC
In at least one respect, prisons are like superheroes: you can learn a lot about their purpose, character, and abilities by figuring out their ‘origin stories.’ The KIHC, in keeping with its exceptional nature, has two such stories – one related to the particular problems faced by governments involved in security certificate detention in 2005, and another that can be traced back to conversations in the Canadian government in the months following the events of 11 September, 2001. The interweaving of these two stories gave rise to the KIHC. (1)
When the Canadian Government issued security certificates against the Secret Trial Five, they made use of a standing arrangement whereby ‘maximum security’ immigration detainees are held in provincial prisons. These facilities are not intended for long-term detention. As the years dragged on and the security certificate detainees vigorously contested their cases, the conditions of their detention became a subject of protest. A protracted series of hunger strikes generated public attention and political pressure.
Memoranda from this time period, obtained under Access to Information (ATI) law, discusses the pressure that the Government of Ontario was putting on the federal government to develop an alternative arrangement. From the provincial perspective, the cases – which are federal in jurisdiction – were generating negative publicity and raising questions about provincial detention facilities. By summer 2005, it was clear that the current situation was untenable, and the federal government began planning a federal “solution.”
After considering a range of options, it was decided that the best solution would be to create a special maximum-security prison within an already-existing maximum-security prison. Millhaven was selected as the location because it had an unused building on its grounds that could be retrofitted, and because it was roughly midway between Ottawa and Toronto, where the detainees were then being held. This origin story depicts the emergence of the KIHC as a response to political pressures, an effective hunger strike campaign, and legal challenges regarding existing conditions of detention.
(1) For a detailed account of the emergence of KIHC and its governing arrangements, see Larsen, M. & J. Piché. (2009). “Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre”, Canadian Journal of Law and Society 24(2): 203-229. Available online here.
The second account of the emergence of the KIHC has to do with the history of the question to which the KIHC came to be a solution: What sorts of arrangements should the Government of Canada make for the detention of ‘special prisoners’ in the context of the so-called ‘war on terror’? The paper trail that I have been able to piece together using ATI shows that an Interdepartmental Working Group on Detention Issues was quickly struck, and on November 28, 2001 the Correctional Service of Canada tabled a report entitled “Detention of Individuals Not Serving a Sentence Nor Awaiting Trial: Position of the Correctional Service of Canada.”
The events of September 11, 2001, as well as initiatives such as the Bills C-11 and C-36 have the potential for creating an increased need for detention in Canada—either emanating from illegal immigration or refugee claims, Prisoners of War requests or International Criminal Court results. In anticipation of ministerial direction on this issue, an analysis was undertaken to determine how the Correctional Service of Canada (CSC) should best assist Citizenship and Immigration Canada (CIC) and other Departments or Governments. The paper recommends that CSC’s position with respect to detention (i.e. persons detained for reasons other than serving a sentence or awaiting trial) be to share its correctional expertise, [REDACTED].
Among the issues outlined in the report is the difficulty associated with the participation of CSC in forms of detention that fall outside its legal mandate outlined in the Corrections and Conditional Release Act. CSC flagged this as a problem from the outset, although the report does describe a solution whereby the service would share “correctional expertise” up to and including staffing and secondments.
This discussion was anticipatory in nature. Only three of the Secret Trial Five had been arrested in November 2001, and the discussion was not focused on the problems of security certificate detention. Rather, it was assumed that the emergent ‘war on terror’ would give rise to the need for extraordinary detention arrangements, outside the realm of criminal justice. When the hunger strikes and legal challenges pressured the federal government to pursue alternative options for security certificate detention in 2005, officials were able to turn to a body of work that had begun years earlier. The eventual arrangements governing the KIHC were remarkably similar to the vision of collaborative detention outlined in the 2001 CSC report.
A Special Prison
The KIHC was a situated in a fenced-in compound within the broader Millhaven Institution. It had a start-up cost of $3.2 million and an operating cost of between $1.6 and $2.6 million annually. The KIHC had a capacity of six persons. Its operations were kept strictly separate from the general goings-on at Millhaven, although the personnel responsible for the day-to-day operation of the KIHC were CSC correctional officers with special training and a different set of rules and procedures. Management of the facility, on the other hand, fell to the CBSA. This made the KIHC a unique hybrid prison.
When I first learned about its opening in 2006 the first question that came to mind was “How has the CSC become involved in the detention of people who have not been sentenced to a term of imprisonment of two years or more as the result of a criminal court proceeding?”. As a rule, persons held in remand custody or sentenced to terms of imprisonment up to two years less a day fall under provincial jurisdiction, and sentences of two years or more fall under federal jurisdiction.
The mandate of the CSC, as set out in the Corrections and Conditional Release Act, emphasizes terms like “sentences imposed by the courts” and “offenders”, neither of which apply in security certificate cases. The Act does not establish the CSC as the go-to source for all forms of imprisonment, and it confers no authority to enforce the IRPA or other immigration law. How, then, could CSC get into the business of indefinite administrative detention related to security certificates?
The short answer is that the CBSA contracted the CSC to provide detention services that fall outside the scope of CSC’s legal authority and stated mission. A Memorandum of Understanding sets out the arrangement.
An excerpt reads:
5. The role of the CBSA is to provide oversight and monitoring of services provided by CSC under this MOU according to the IRPA and the CBSA policies and procedures;
6. The role of CSC is to provide the detention facility and services required by the CBSA in this MOU in the manner of a contract service provider for and on behalf of the CBSA;
When a CSC officer crossed the threshold of the KIHC, he or she lost the powers of a peace officer provided by the Corrections and Conditional Release Act and gained peace officer status under the IRPA. This allowed the officer to facilitate the detention of a person that he or she would otherwise have no authority to imprison.
It was surprising to learn that the CSC could become a ‘contract service provider,’ offering detention services to other government departments in possession of the authority to imprison people but lacking the capacity to do so. If the mandate of the CSC can be circumvented through the signing of an interdepartmental memorandum – as opposed to an act of Parliament, then what are the real legal limits on who can be detained by CSC? Could a similar MOU be signed to allow CSC to take part in the indefinite detention without trial of alleged subversives, or radicals? Such arrangements have been made in the past. Could the recent hardening of immigration policy and the introduction of bills to allow for extended detention of people seeking refugee status precipitate the creation of new ad hoc CSC-run maximum security detention facilities along the lines of the KIHC? Even if we determine these eventualities to be unlikely, the KIHC project shows us that they are not beyond the realm of possibility.
The KIHC Legacy
From the outset, I was concerned about the precedent KIHC set. It is an example of the way that appeals to the alleged exigencies of national security can be used to unmake and remake institutions. It is easier for governments to quietly implement specific collaborative security arrangements than it is to undertake comprehensive, democratic, and public law reform processes. The result is an (in)security field that is increasingly governed by MOUs and ad hoc arrangements, and these create serious accountability gaps.
In the KIHC case, the MOU that allowed CSC officers to operate the facility did not similarly extend the authority of the Office of the Correctional Investigator (OCI), leaving the detainees the only people under CSC control who could not avail themselves of the OCI’s complaints process. This was not an accident. One of the lessons of the KIHC ‘era’ is that the constantly-shifting institutions of the (in)security field have completely outmaneuvered the comparatively constrained mechanisms intended to hold them to account.
In closing, I think that advocates of human rights and social justice have cause to celebrate the closure of the KIHC. But we also need to remember that it did not come to close in a way that precludes the opening of similar facilities in the future. A voluntary closure is not the same as an act of abolition. Indeed, I’m sure that the KIHC project is regarded in many government circles as a costly but otherwise successful initiative that fulfilled its purpose, and I suspect that the KIHC ‘template’ for special prisons lives on, despite the closure of the facility.
Click on the photo of Mohamed to see all items related to him. DEC 9, 2010: A federal court judge today ruled to uphold the 2nd security certificate against Mohamed Harkat, finding it "reasonable." Justice Simon Noel found against Mr. Harkat and upheld the regime of secret hearings and judicially sanctioned rendition to torture.
This fight is not over. The Justice for Mohamed Harkat Committee will re-double its efforts to see that justice is done for Mohamed Harkat and that the odious security certificate system of injustice is abolished once and for all.
Here is the contact information for Sophie Harkat.