Detaining the Uncooperative Migrant

A migrant held in a Canadian prison refuses to hand over a DNA sample to the Canadian Border Services Agency (CBSA). Another refuses to sign a statutory declaration of voluntary return to Somalia where his return is anything but voluntary. Others outright refuse at times to assist in any manner whatsoever with their own deportation. Canadian officials, judges, and adjudicators have treated all of these situations as instances of “non-cooperative” behaviour by an immigration detainee and, in turn, relied on such conduct to impose lengthy and indefinite periods of immigration detention. While the issue of an immigration detainee’s “non-cooperation” seems idiosyncratic and relatively unimportant in the larger scheme of immigration controls in Canada, we argue that this line of case law constitutes an example of the ambiguity surrounding the purpose of immigration detention itself and, when considered in light of writing by Michel Foucault and David Garland, reveals the State’s goal of individualizing, disciplining, and controlling non-citizens in order to achieve certain political aims in response to fears stoked by globalization. More specifically, we contend that where non-cooperation is cited by Canadian courts and tribunals as a justification for detaining a non-citizen, the supposedly nonpunitive nature of immigration detention is called into question. In this article, Foucault’s writing on the disciplinary society is used as a lens to demonstrate that, rather than immigration detention being used as a means to further the machinery of immigration control, it is instead being used as a means of disciplining non-citizens who have dared to “transgress” the Canadian border regime. David Garland’s writings on crime control also show that immigration detention serves an expressive function, allowing the Canadian government to denounce these perceived transgressions of sovereignty committed by undisciplinable migrants for political traction. At the same time, we seek to underline a fact that often goes unacknowledged in discussions around immigration detention: namely, that non-cooperation can constitute a form of resistance—an expression of agency and autonomy—on the part of migrants against the machinery of the state. Finally, we conclude by arguing that the justification of lengthy and indefinite periods of detention of non-citizens on the basis of non-cooperation is instrumentally incoherent (in that detention on the basis of non-cooperation does not seem to achieve the purpose of immigration control) and legally incoherent (in that the statutory basis for non-cooperation as justification for lengthy and indefinite detention is absent). We argue that the introduction of certain principles into the Canadian immigration detention regime could remedy this significant problem

The Adverse Human Rights Impacts of Canadian Technology Companies: Reforming Export Control with the Introduction of Mandatory Human Rights Due Diligence

Netsweeper, a Canadian company, has produced and sold Internet-filtering technology to authoritarian regimes abroad. According to public research from the Citizen Lab, this technology has been used to censor religious content in Bahrain, information on Rohingya refugees in Myanmar and India, political campaign content in United Arab Emirates, and information on HIV/AIDS in Kuwait. This article considers how Canadian export control law deals with technologies that negatively impact human rights abroad and identifies a gap in the existing export control scheme. We suggest this gap could be closed by adopting a proactive human rights due diligence requirement on companies seeking to export products under Canadian law. There is existing precedent in other jurisdictions for imposing a human rights due diligence requirement on companies more broadly as a matter of law. A legislative amendment to Canada’s export regime would move Canada towards meaningful compliance with the United Nations Guiding Principles, reflect a growing normative acceptance that companies have a duty to respect human rights under international law, and potentially open avenues for legal remedy

Measuring the Brussels Effect through Access Requests

The introduction of the GDPR reheated the ongoing debate about the extraterritorial effect of European data protection law. In this debate, Anu Bradford argued that European data protection law affects global markets through the so-called "Brussels Effect", according to which policies diffuse primarily through market mechanisms. Specifically, this phenomenon operates even when the laws of non-EU countries, which set the rules for companies operating in those markets, have not changed to adopt provisions which equal those of EU law. In this paper we investigate empirically whether the introduction of the GDPR has initiated a “Brussels Effect”, improving compliance with data protection law and exporting GDPR standards outside of Europe. By measuring compliance with the right of access for residents of the EU and Canada, we find that this is indeed the case. We suggest that the GDPR’s stronger enforcement provisions are the key driver of this effect, which allows the EU to de facto unilaterally affect companies' behavior globally

The Adverse Human Rights Impacts of Canadian Technology Companies: Reforming Export Control with the Introduction of Mandatory Human Rights Due Diligence

Netsweeper, a Canadian company, has produced and sold Internet-filtering technology to authoritarian regimes abroad. According to public research from the Citizen Lab, this technology has been used to censor religious content in Bahrain, information on Rohingya refugees in Myanmar and India, political campaign content in United Arab Emirates, and information on HIV/AIDS in Kuwait. This article considers how Canadian export control law deals with technologies that negatively impact human rights abroad and identifies a gap in the existing export control scheme. We suggest this gap could be closed by adopting a proactive human rights due diligence requirement on companies seeking to export products under Canadian law. There is existing precedent in other jurisdictions for imposing a human rights due diligence requirement on companies more broadly as a matter of law. A legislative amendment to Canada’s export regime would move Canada towards meaningful compliance with the United Nations Guiding Principles, reflect a growing normative acceptance that companies have a duty to respect human rights under international law, and potentially open avenues for legal remedy

Detaining the Uncooperative Migrant

A migrant held in a Canadian prison refuses to hand over a DNA sample to the Canadian Border Services Agency (CBSA). Another refuses to sign a statutory declaration of voluntary return to Somalia where his return is anything but voluntary. Others outright refuse at times to assist in any manner whatsoever with their own deportation. Canadian officials, judges, and adjudicators have treated all of these situations as instances of “non-cooperative” behaviour by an immigration detainee and, in turn, relied on such conduct to impose lengthy and indefinite periods of immigration detention. While the issue of an immigration detainee’s “non-cooperation” seems idiosyncratic and relatively unimportant in the larger scheme of immigration controls in Canada, we argue that this line of case law constitutes an example of the ambiguity surrounding the purpose of immigration detention itself and, when considered in light of writing by Michel Foucault and David Garland, reveals the State’s goal of individualizing, disciplining, and controlling non-citizens in order to achieve certain political aims in response to fears stoked by globalization. More specifically, we contend that where non-cooperation is cited by Canadian courts and tribunals as a justification for detaining a non-citizen, the supposedly nonpunitive nature of immigration detention is called into question. In this article, Foucault’s writing on the disciplinary society is used as a lens to demonstrate that, rather than immigration detention being used as a means to further the machinery of immigration control, it is instead being used as a means of disciplining non-citizens who have dared to “transgress” the Canadian border regime. David Garland’s writings on crime control also show that immigration detention serves an expressive function, allowing the Canadian government to denounce these perceived transgressions of sovereignty committed by undisciplinable migrants for political traction. At the same time, we seek to underline a fact that often goes unacknowledged in discussions around immigration detention: namely, that non-cooperation can constitute a form of resistance—an expression of agency and autonomy—on the part of migrants against the machinery of the state. Finally, we conclude by arguing that the justification of lengthy and indefinite periods of detention of non-citizens on the basis of non-cooperation is instrumentally incoherent (in that detention on the basis of non-cooperation does not seem to achieve the purpose of immigration control) and legally incoherent (in that the statutory basis for non-cooperation as justification for lengthy and indefinite detention is absent). We argue that the introduction of certain principles into the Canadian immigration detention regime could remedy this significant problem

Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty

Canada maintains a separate legal regime for immigration detainees who, until recently, were denied the right to seek release by way of habeas corpus. This denial of one of the most deeply entrenched rights at common law and under the Canadian Charter of Rights and Freedoms was justified by the proposition that the immigration detention scheme is “separate but equal”—that it provides an adequate remedy such that habeas corpus is not necessary. Perhaps unsurprisingly, this “separate but equal” regime has failed to provide basic procedural and substantive protections that are available in other Canadian legal regimes where liberty is at stake. However, in 2015, the Court of Appeal for Ontario reignited the availability of habeas corpus as a remedy to indefinite detention in the immigration context in Chaudhary v. Canada (Public Safety and Emergency Preparedness). By reversing a line of cases that had confined immigration detainees to review by an administrative tribunal and judicial review in the Federal Court, Chaudhary has opened the door to the superior courts for immigration detainees. This article provides a review of the immigration detention system in Canada, the applicable legislation, procedures, and case law, and canvasses the impact of Chaudhary on the rights of immigration detainees. It then considers the benefits of habeas corpus as a litigation strategy, the role it has played in debunking the “separate but equal” myth, and suggests other potential issues now ripe for further litigation.Le Canada opère un régime juridique distinct pour les détenus issus de l’immigration. Jusqu’à récemment, ceux-ci se voyaient refuser le droit de demander leur libération par voie d’habeas corpus. Cette négation de l’un des droits les plus profondément enracinés en common law et en vertu de la Charte canadienne des droits et libertés était justifiée par la proposition selon laquelle le régime de détention en matière d’immigration est « distinct, mais équivalent », de sorte que l’habeas corpus ne serait pas nécessaire. Sans surprise, ce régime « distinct, mais équivalent » a échoué à assurer des protections procédurales et substantives de base disponibles dans d’autres régimes juridiques canadiens où la liberté de la personne est en jeu. Cependant, en 2015, la Cour d’appel de l’Ontario a de nouveau rendu disponible le recours à l’habeas corpus comme moyen de remédier à la détention indéfinie dans le contexte de l’immigration dans l’affaire Chaudhary v. Canada (Public Safety and Emergency Preparedness). En renversant une série de décisions qui avaient confiné l’adjudication des détentions du domaine de l’immigration à un tribunal administratif et à un contrôle judiciaire devant la Cour fédérale, Chaudhary a ouvert la porte au recours devant les tribunaux supérieurs pour les détenus en matière d’immigration. Cet article présente un examen du système de détention en matière d’immigration au Canada, de la législation, des procédures et de la jurisprudence applicables, et analyse l’impact de Chaudhary sur les droits des détenus de l’immigration. Il considère ensuite les avantages de l’habeas corpus comme une stratégie de contentieux, le rôle qu’il a joué dans la démystification du mythe « séparé, mais équivalent » et suggère que d’autres poursuites potentielles sont maintenant disponibles pour de nouveaux litiges

Moving from Secrecy to Transparency in the Offensive Cyber Capabilities Sector: The Case of Dual-Use Technologies Exports

Transparency is central to the prevention of human rights abuses. Over the past few decades, a belief in transparency has permeated multiple industries, reflected in an explosion of legislation intended to further this principle. Yet, despite this emphatic recognition of the importance of transparency, the activities of government and private sector actors involved in the development, sale, and export of Offensive Cyber Capabilities (OCC) remain cloaked in secrecy regardless of the sector’s role in facilitating human rights abuses. In this article, we tackle this broader challenge of secrecy via a case study on the export of dual-use technologies. We theorize why secrecy has been so prevalent in the OCC sector. We consider the role of different forms of secrecy—such as commercial secrecy and opportunistic secrecy by governments—in facilitating this situation. We argue that injecting greater transparency into the OCC sector is critical to deterring human rights abuses through accountability and oversight, can help counter the proliferation of offensive cyber technology proliferation, and can ensure better overall governance in regimes governing the export of dual-use technologies. Mandating transparency by governments and exporting companies in the OCC sector can pave the way for policy changes to better regulate this industry and finds support in international human rights principles related to transparency. In closing, we examine how transparency might be incorporated into export frameworks addressing dual-use technologies

The Ethical and Legal Dilemmas of Digital Accountability Research and the Utility of International Norm-Setting

Nearly every aspect of our life is impacted by digital technologies manufactured and sold by companies. Legislative frameworks to limit the harms of such technologies have been slow to develop and remain entangled in controversy.1 The expanding role of digital technologies has been accompanied by a disturbing descent into authoritarianism in many countries that is also, in part, fueled by these very same tools.2 The decline of liberal democratic institutions is said to be linked to various properties of the digital ecosystem—from security flaws in popular applications used by states to engage in covert and remote surveillance3 to the development and exploitation of social media algorithms that push violent and divisive content.4 There is no doubt, then, that digital accountability research—which we define as evidence-based research seeking to track and expose risks to civil society in the digital ecosystem—is critical. This essay highlights the legal and ethical challenges faced in digital accountability research and concludes that a comprehensive and global ethical framework for such research is a critical step forward. As legal frameworks and norms continue to shift with respect to digital accountability research, such collaborative, international norm-setting would help ensure that digital accountability research continues