final exam penology

week 8-11

History of Colonialism

-The subordinate political and economic conditions of Aboriginal people in Canada is the consequence of their colonization by European settlers
-Colonial settler policies have exerted control over every aspect of Aboriginal life in Canada

Residential Schools

Aboriginal children were forcibly removed from their families, often for many years, this resulted
in widespread
1. Sexualvictimization
2. The fracturing for Aboriginal families
3. The systematic destruction of traditional cultures and values
4.Shredding the fundamental fabric many first nations were based upon

Contemporary Racism & Discrimination

-Modern governmental policies have intensified the marginality and vulnerability first nations people endure
-Poverty, access to health care, and inadequate housing are common elements of life across all first nations in Canada
-Aboriginal communities in Urban communities often face systematic barriers

Aboriginal Overrepresentation in the Criminal Justice System

Aboriginal individuals are overrepresented at all stages of the CJS, from arrest to incarceration
1. 20% of offenders incarcerated in Federal facilities are Aboriginal
2.27% of offenders incarcerated in provincial/territorial facilities are Aboriginal(mostly on remand)
3.The representation of Aboriginal women is even higher, reflecting approximately 41% of the Federal inmate population

In an attempt to reduce the overall representation of Aboriginal offenders in the CJS, multi-lateral governmental initiatives have resulted in

1. The creation of autonomous Aboriginal police forces
2. Aboriginal community- based corrections
3. Aboriginal institutional programs

Autonomous Aboriginal Police
First Nations Policing Policy

The purpose of this policy is to
(1) improve the administration of justice, and
(2) maintenance of social order
(3) public security, and
(4) personal safety

**The creation of the First Nations Policing Policy was initiated by

the Oka crisis

Saskatoon Freezing Deaths

-From the early 90s, into the 2000s, a series of suspicious deaths outside of Saskatoon came to the attention of police
-These were Indigenous individuals

Starlight Tours

-Daryl Night, an Indigenous individual who has survived being out in the
freezing cold, had reported to the Saskatoon police service that...
-He had reported that he was picked up by two white police officers for a minor altercation
-The two police officers drove him in a desolate part of Saskatoon, 5km outside the city
-The two officers yelled expletives and racial slurs, as they had left Night for dead ØNight survived, and the starlight tours had come to the public’s attention

R. v. Gladue

-This is a special provision in the Canadian Criminal Code, section 718.2 (e)
-This provision very specifically address the sentencing of Aboriginal offenders
-The purpose of the provision is an attempt to reduce the overrepresentation of Aboriginal offenders specifically within correctional institutions
In this SCC decision, the court held that
1. Where a term of incarceration would normally be imposed and considered,
2. Judges must consider the unique circumstances of Aboriginal people

Judges are specifically required to
1. Consider the unique circumstances and background factors that may have contributed to the criminal behavior of Aboriginal persons before the court, and
2. Consider the least restrictive alternative sentencing imposition to incarceration
3. This includes mandating participation in restorative justice programming or traditional healing practices
**These are sentencing impositions, not extra-judicial measures**

Gladue Courts

-Operating under the principles found in R. v. Gladue, these are regular courts, characterized by the regular formalities of justice in Canada, Gladue courts conduct bail hearings, trials, and sentencing impositions
-All personnel are specifically trained in Gladue principles and Aboriginal values
-Once an accused individual identifies as Indigenous, they are offered the option of proceeding through
Gladue courts (depending on regional availability)

Gladue Supervision

-Toronto based program designed to provide Aboriginal individuals caught up in the CJS, to obtain the financial resources and required supports needed to be granted bail
-Provide adequate housing
-Put up assets to facilitate bail if required
-Provide individuals with dependable sureties in helping facilitate the securing of bail

Community Council at Aboriginal Legal Services

A Toronto based, diversion service available for Aboriginal offender, this is a back-door diversionary program only made available to individuals who have already taken responsibility for their actions by pleading guilty

Gladue Reports

-Nearly identical to pre-sentencing reports found in traditional criminal courts, the purpose is to contextualize the offender’s crime and life to inform possible sentencing impositions
-The contextualization of the offender’s crime and socio-economic status situates these factors in the histories of race-relations in Canada
-Gladue reports include a comprehensive overview of the social and systemic factors specifically afflicting the offender, situated in the colonial-settler history of Canada
-Pre-sentence reports are more concerned with the (1) actual crime, and the (2) history of criminality an offender possess, and merely glance over the offenders socio- economic context, and possible experiences of oppression
-Gladue reports do a better at broadening the overview of the offender’s socio- economic history contextualized in Canada’s history of oppression
-Gladue reports integrate expert opinions and scholarly work

Issues with Gladue

The Gladue decision, and the use of Gladue courts, framed as a space of contextualized Aboriginal knowledge, has done little to actually stem the overrepresentation of Aboriginal individuals in the corrections system
1. The absence of viable community alternatives a Judge can sentence an Aboriginal offender to, over formal incarceration
2. Regional disparities in the availability of community alternatives
3. An increase in populist agendas resulting in the framing and re-framing of sentencing impositions from a position of risk
4. The Gladue decision, and gladue courts are still fundamentally premised upon the colonial European adversial model of justice
5. The Gladue model of justice is fundamentally premised on colonial settler processes of (1) defining crime, (2) ascribing criminality, and (3) punishing offenders

Sentencing circles

-are an alternative substitution tot traditional sentencing practices found in the penal phase of the judicial process
-Sentencing circles are principled upon a community model of justice
-Practices within sentencing circles vary based on the (1) community they are being
held in and (2) the nature of the offence an accused individual was convicted of
-Also referred to as peace making circles

Composition of Sentencing Circles

The normal state representatives of the state are present (i.e., judges, prosecutors and police), the victim and victims' family, members of the community, respected Indigenous elders and a space for members of the public to observe

Practices within Sentencing Circles

-Participants, including the offender, are encouraged to “speak from the heart” in a shared search for understanding the underlying issues surrounding the initial criminal event
Procedures
1.The offender must apply to participate post-conviction
2.The victim develops their healing circle, composed of people they want within it
3.The offender develops their healing circle, composed of people they want within it
4.A sentencing circle is formed, with an established set of rules, procedures, and a sense of possible sentencing outcomes, in conjunction with the agreement of all parties to participate
5.All parties discuss, then come to a sentencing agreement, which is then formally ratified by the state’s representatives (judge or adjudicator)
6. The offender’s progress is followed up on,with the knowledge of the participants

Objectives of Sentencing Circles

1. Promote healing for all parties involved in the criminal act
2. Provide an opportunity for the offender to make amends
3. Empower the victim and members of the community by giving them a voice and finding constructive resolutions
4. Address the underlying causes of criminal behavior
5. Buildasenseofcommunity
6. Empower communities to build the capacity to resolve issues and conflicts on their own
7. Create, promote, and develop a sense of cohesiveness with a series as hared values

Successful Implementation
Legal Recognition

-For there to be any measure of success between the results of the (1) sentencing circle, and the (2) practical application of sanctions, there must be mutual recognition, respect, and restraint between
1.The formal institutions of justice in Canada, and
2.The desires, needs, and objectives of Aboriginal communities, offenders, and participants within a sentencing circle
3.The capacity of the circle in succeeding to advance solutions depends up on the(1) degree of cooperation and (2) levels of recognition all parties possess in relation to the sentencing process
**Sentencing circles are generally not available for offenders facing a possible sentence of 2 years or more incarceration

Aboriginal Incarceration
Risk Categorization

-Aboriginal offenders sentenced to serve a term of incarceration are normally placed at a higher risk categorization when contrasted against their non- Aboriginal counterparts
-Those sentenced to a term of incarceration are normally sent to maximum security institutions, thereby limiting their ability to engage with restorative or rehabilitative justice supports
-Aboriginal offenders are also disproportionately represented in segregated populations
-The CSC have regional disparities in the (1) availability of programming, and the (2) availability of Aboriginal programming
-The CSC also struggle to retain Aboriginal staff and facilitators of programming, with a higher turnover rate for Aboriginal staff when compared against their non- Aboriginal counterparts

Aboriginal Healing Centres and Lodges
CCRA

Under section 81 of this act, the federal government has entered into bi-lateral agreements with Aboriginal communities to
1. Develop and operate healing lodges to offerr residential and non-residential services for those sentenced for their crimes (often carceral sentences)
2. Healing lodges operate under(1)legislative provisions, and the oversight of the(2) Canadian correctional services, yet
3. The activities within the healing lodge are governed by a council composed of respected elders and other First Nations representatives
4. Most healing lodges are minimum security, institutions and some others are medium security institutions

Staff Positions

The CSC offers jobs for Aboriginal offenders who want to become COs, or want to occupy other positions involving engagement and interaction with Aboriginal offenders

Parole Grant Rates

-Aboriginal inmates are less likely than others to succeed in their applications for conditional release
-Aboriginal offenders serve a higher proportion of their sentence before being released on parole
-The lower proportion of conditional release is in part attributable to a lack of community correctional
resources available to enable conditional release (refer to lecture on Incarceration & Parole)
-Many parole-eligible Aboriginal inmates do not apply for conditional release, for some of the following reasons
1. Feelings of alienation
2. Difficulty understanding parole process
3. Confidence in ability to fulfill conditions of release
4. Unable to complete release plan to satisfy PBC
**Aboriginal offenders are more likely to be released on statutory release, when compared against their non-aboriginal counterparts**

Reintegration

-Is a process, defined by all the activities, programming, and legislative mandates conducted to prepare an offender to return safely to the community as a “law -abiding citizen”
• The objective of reintegration policies and programs is to avoid recidivism in the short-term (prior to warrant expiry) and long-term (well beyond warrant expiry)

Throughcare

-Refers to the idea that there is continuity of attention and care following the release on offenders into the community
• The continuity of care following release from incarceration contributes to lowered incidents of recidivism
• The continuity of care is particularly important for offenders with specific needs

Recidivism

-Refers to a convicted individuals re-encounter with the criminal justice system, on the basis that they had engaged in further criminality following the imposition of a conviction
• Most former inmates who reoffend do so within the first 3 years post- release from a correctional institution

Recidivism Rates

-Are used as a measurement of the effectiveness of (1) sentencing outcomes and (2) institutional programming
• Individuals who build educational credentials within institutional settings are less likely to reoffend
• Better education results in better economic opportunities post- release
• Politized concept

defining recidivism

Definitions around recidivism vary depending on jurisdiction

Ontario Recidivism

-is measured anytime an offender re-encounters the CJS within 2 years following the end of their carceral or non-carceral sentence
• Those sentenced to a term of 90 days (incarcerated or not) are assessed by provincial officials for risk of recidivism

The risk-assessment of recidivism in Ontario evaluates these things

• Anti-social tendencies
• Deviant peer groups
• History of criminality and deviant behaviors
• Family cohesion
• Marital status
• Education levels
• Lack of pro-social leisure activities
• Substance abuse issues

Provincial & Territorial Inmates

Those released from provincial or territorial institutions are more likely to encounter the criminal justice system within 3 years following their release

reoffending reasons

• A lack of programming and services with these correctional settings
• A lack of throughcare services resulting from the limited resources offered by provincial/territorial correctional services
• A lack of specialized services for those with special needs
• The short-stay of provincial/territorial carceral stays, resulting in a lack of a release planning by the offender

Prison Sentence

-Is a process whereby individuals are extracted from society and forced to adjust to a closed, structured, and artificial environment
•Prisonization, is the process whereby inmates are integrated into a system of anti-social values
• Uponrelease, these same inmates are expected to resume(1)“law-abiding”lives,(2) possess pro-social values, and (3) exercise independent though, and (4) display life skills which helps them cope with the complexities of life
• The effect of this transition if exacerbated with(1)an increase in the term of incarceration, and for those from (2) marginalized communities and/or socially isolated individuals

Pains of Re-Entry

-Offenders in confinement experience the pains of imprisonment, whereas those released from confinement often experience the pains of reentry
• Persons entering custody undergo status degradation ceremonies, whereas those who are released back into the community do not experience status reintegration ceremonies
• Those released cold-turkey following the expiration of their warrant are continued subjects of risk-assessments and risk-management
• i.e., criminal records & history of incarceration

Homelessness

-Homelessness poses a severe challenge to newly released offenders
• Homelessness increases the likelihood of recidivism
• 40% of homeless individuals in Toronto entering an area jail during a one-year period were returnees
• 30% of offenders release from custody are homeless
• Offenders are either (1) homeless prior to incarceration, or become (2) homeless as a
result of their carceral stay

Homelessness
Human Rights Legislation

-Provincial laws allowing landlords, commercial or private, to deny accommodations to individuals with a criminal record
• Prospective tenants may be required to provide criminal records checks for rental applications
• Landlords are allowed to deny housing on the grounds that the prospective tenant possesses a criminal record
• This extends to public housing, and income geared housing too

Collateral Consequences of Confinement

These consist of a (1) loss of personal relationships and social-networks, (2) the acquisition of self-defeating habits, (3) loss of personal belongings
• In most cases, these problems already exist for most people prior to incarceration

Housing

Is an important predictor of recidivism, with inadequate housing being positively correlated with an increased risk of further contact with the criminal justice system
A study of inmates (N=363) in Toronto-area jails, provincial facilities, found that
1. 22% were homeless before and after their carceral stay
2. 32% anticipated that they would become homeless post-release
3. Nearly 90% identified deficiencies in (1) transportation, (2) housing, and (3) employment skills training

Post Incarceration Syndrome

-Similar to post-traumatic stress, this refers to the experience of detainees who experience trauma (1) prior to incarceration and (2) during confinement
-Even offenders with more conventional lifestyles prior to incarceration experience the pains of re-entry
• Most will finish their conditional release, without violating their conditions, but are likely to be caught reoffending within 3 years of warrant expiration

State Raised Offenders

-The pressures of re-entry increase with a prolonged period of incarceration
• State-raised offenders in particular have very little experience living on the outside community
• They have no stake in the community
• State-raised offenders have an identity, sense of power, and social skills all developed and expressed within institutional settings

Dual Function of Parole Officers

Similar to probation officers, those tasked with supervising the conditional release of previously incarcerated individuals have two, juxtaposed roles

two roles of parole officers

The First- Parole officers are a resource person, tasked with mitigating the pains of re- entry
• Help with job search
• Referring clients to counselling
• Advocating for their client to obtain (1) welfare and (2) housing resources

The Second- Involves monitoring their clients, ensuring adherence to conditions, and
suspending or revoking a parolee’s status

Each parole officer possess their own unique style of policing, thereby resulting in the differential exercise of discretionary powers
1. Parole officers with more authoritarian attitudes, are more likely to force parolees to strictly adhere to their conditions
2. Under populist regimes, the role of parole officers are more likely to become risk oriented
3. The administrative burdens many parole officers face results in less face-to-face time with clients, making the second function more likely

Re-Entry Courts

Belonging to the broader category of problem- solving courts, found across a number of American jurisdictions
1. Those subject to re-entry courts, are still subjects of their sentence
2. These courts review the progress of offenders' post-release
3. These courts conversely apply sanctions against individuals who do not comply with the conditions imposed on them
4. The unification of (1) coercion and (2) rehabilitative ideals are the fundamental underlying operating principle of these courts
5. Little research has been done on these courts

High-Risk Offenders

-The supervision of offenders who have received a high-risk designation are monitored both by their individual (1) parole officers, and in collaboration with (2) local police
• High-risk offenders, who are on conditional release, must adhere to stringent conditions, and experience more intense monitoring and supervision
• Local police, normally tasked with regular policing duties are charged with checking-up on those with high-risk status

Mentally Ill Offenders

-Are more likely to be socially isolated, more prone to substance abuse, and find it more difficult to obtain suitable employment or housing
• Federal conditional release programs are better suited to deal with offenders who possess significant mental health challenges
• Those placed on conditional-release in more rural parts of Canada are more likely to face greater challenges if afflicted with serious mental-health challenges

sex offenders

-No other group of offenders attracts more interest from the public, politicians, and correctional authorities
CSC’s High-Risk Offender Program
-More specifically geared towards sex offenders
• Required sex-offenders to report at least on a monthly basis, and adhere to therapeutic
standards, including the mandatory use of medication to reduce sex drive
• Recidivism is lower for sex offenders who are compelled to be supervised and attend treatment programs
• Provincial and territorial programs, geared towards sex-offenders, are ineffective because of the constraints in time an offender is compelled to attend and adhere to conditions

Sex Offender Registries

-The federal and several provincial governments maintain a sex-offender registry to track high-risk offenders
• Those convicted of sexual offences are compelled to register 15 days prior to release into the community, or upon conviction if the receive a non-custodial sentence
• Offenders remain on the registry indefinitely unless they are(1)acquitted upon appeal, or(2) receive a records suspension
• The sex offender registry is not public in Canada

Principle of Community Notification

When potential victims and the community at large are warned about an offender, these groups are better equipped to protect themselves

Community Notification

The use of community notification is sometimes used when high-risk individuals are released into the community
• The use of community notification conversely hardens attitudes towards certain categories of offenders, as reflected in punitive penology
• Discourse emerge, develop, and evolve into punitive policies when particular (1) offenders, (2) people groups, and (3) offence types are presented in community notifications
• Certain types of offences and offenders are viewed more harshly by the public when the state choses to invoke community notification when releasing certain individuals
• The decision to use community notification is made by a council composed of (1) local police presentative, (2) any private citizen from the community, (3) a medical/therapeutic specialist, and (4) provincial or federal correctional representative
• Community notification makes is less likely that an offender would be able to re-establish stable (1) residency and (2) relationships within a neighborhood, thereby increasing the risk of recidivism

Predictors of Success Post-Release
Factors Increasing Likelihood of Success

1. Supporting network of family and friends
2. Stable housing
3. Stable employment
4. Participation in treatment programs
5. Conscious decision to move out of criminal lifestyle
6. Those who have received (1) vocational training or (2) attained a level of education whilst under a sentence
7. Those who receive substance abuse treatment (1) incarcerated and follow-ups with a high degree of (2) throughcare

Predictors of Recidivism

history of criminality
• Number of prior arrests and contact with police
• Number of revocations whilst on parole
• Drug convictions and drug-related crimes(because of continued addiction issues)
•Those convicted of property offences are more likely to reoffend when contrasted against those who had been convicted of drug or violent offences
•The single biggest predictor in determining whether someone would end up incarcerated is if they had been incarcerated in the past

Gender
•Males are more likely to engage in a persistent pattern of deviant behaviors throughout the course of their lives

Age
•The older one gets, the less likely they are to reoffend or engage in criminality all together
•Younger offenders are conversely more likely to offend and/or reoffend
• This is particularly true for young male offenders
•People develop more stake in the community as they get older, thereby mitigating deviant propensities

Immigration

The act of moving from one state to another, to either (1) resettle permanently, or (2) temporarily

State

Another term for country, region, or jurisdiction, with a distinct set of (1) laws, (2) systems of governance, (3) political conventions, (4) systems of justice, & (5) overall identity

Immigration & Refugee Protection Act

The main piece of legislation governing the movement of foreign nationals (1) within & (2) outside of Canada’s borders
• Allows foreign nationals to work temporarily in Canada
• Allows foreign nationals to study temporarily in Canada
• Provides pathways for foreign nationals to become permanent residents in Canada
• Provides guidance for determining who fits the refugee
• Provides the immigration and refugee board of Canada (IRB) with the jurisdiction needed to hear and decide on cases pertaining the immigration and refugee matters

Immigration Objectives

The objectives of the IRPA, framed from either (1) economic migration, or (2) family migration
1. To permit Canada to pursue the maximum social, cultural and economic benefits of migration
2. Enrich and strengthen the social and cultural fabric of Canadian society
3. To see that families are reunited in Canada
ETC.,

Refugee Objectives

The objectives of the IRPA, framed to protect individuals who are categorized as refugees
1. To recognize that the refugee program is about saving lives
2. To fulfill Canada’s international legal requirements related to refugee protection
3. Grant fundamental expression of Canada’s humanitarian ideals
ETC.,

Citizenship

Referring to someone who has Canadian citizenship, either obtained through (1) birth on Canadian territory, (2)naturalization, or (3) limited familial lineage
• Citizens have full economic and civic rights
• Citizens can (1) vote, (2) run for office, and (3) hold high security clearance jobs
• Citizens have the right to (1) enter & (2) leave Canada at their leisure
• Citizens are immune from deportation and denaturalization (except in a few limited cases)
• Denaturalization- Refers to the process of losing one’s citizenships, in Canada, denaturalization occurs under a limited set of circumstances (i.e., fraud in naturalization process or limited national security grounds

Permanent Residency (PR)

Referring to some in Canada who has landed status, either obtained through (1) economic (2) familial, or (3) refugee migration
• Can do most things citizens can do, except for;
• They do not have political rights, they CANNOT (1) vote, (2) run for office, or (3) hold high
security clearance jobs
• They are VULNERABLE to (1) deportation on grounds of “serious criminality"

Temporary Resident Status

Refers to a non-immigrant class of foreign nationals whose time in Canada is limited to one of the following scenarios;
1. Work related, such as temporary foreign workers, or those on the NAFTA (TN Visa) class, for temporary professional work
2. Work permits are generally for temporary engagement in Canada’s labor market
3. Limited to study, for the extent of one’s program duration
4. Visiting class, i.e., foreign nationals who come to Canada as (1) tourists, or to (2) simply visit family

Visiting Class

Does not have the right to engage in Canada’s labor market • International students can work

Undocumented or Clandestine Status

Refers to individuals who are physically present within the territorial boundaries of any particular state, yet their presence is not recognized as being legitimate by state authorities

Economic Migration

Refers to the largest class of immigrants coming to Canada, mainly for those who wish to resettle permanently, either by way of;
1. Federal or Provincial skilled trade/work programs
2. Investment programs, i.e., business start-ups, investing in existing company, employing Canadians
3. Miscellaneous pilot programs, i.e., northern & rural resettlement

Family Migration

Refers to an individual who is either a (1) Canadian citizen, (2) Permanent resident, or someone who qualifies under the (3) Indian Act, to bring in a foreign national family member into Canada
• Individuals with dependents (i.e., spouse or child), can bring in their family members automatically for processing them for permanent residence
• Every other family member, such as parents or grandparents must be sponsored, by the individual residing in Canada

Sponsorship

A sponsor must prove they have sufficient funds to provide for ALL the expenses of the person they are sponsoring, including medical, housing, and meeting the basic needs of life
• Sponsors are legally bound to financially support their family members, including up to the sale of their home to continue providing for those being sponsored

Refugee Class

Refers to people who cannot return to their home country due to a well-founded fear of persecution, strictly based on the following grounds;
1. Race
2. Religion
3. Political Opinion
4. Nationality
5. Membership in a social group (i.e., gender or sexual orientation)

Asylum Seekers

Refers to people who have yet to meet the definition of or be recognized as refugees for any particular state
• People who are characteristically “on the move,” moving from region to region to seek safety • People who have not resettled in a safe place
• People who are seeking a safe state to resettle in

Convention Refugee

Individuals designated by the UNHCR as being people with a well-founded fear of persecution, therefore making them eligible for resettlement in Canada
• Convention refugees can also be sponsored for resettlement in Canada
• The (1) Canadian government, or a (2) private group of individuals can sponsor individuals for refugee protection in Canada if they meet the definition
-Those who meet the convention refugee threshold may also sponsor themselves if they can prove they have the funds to do so

Asylum Class

• Both convention and asylum class refugees must either be referred to be eligible to resettle, or...... • The IRB (Immigration & Refugee Board) ultimately decides who is in need of protection in Canada

Ineligibility

1. You can resettle in a safe third country
2. The reasons for fleeing are no longer present
3. You choose to return to the country you were fearing persecution

Third Safe Country Agreement

Foreign nations already present within Canada’s borders are allowed to apply for refugee status

Third Safe Country Agreement

A bi-lateral agreement between Canada and the United States, making it a requirement that refugee claimants make their claim in the first safe country they land in.........that being either Canada or the United States
• Asylum seekers, coming from the United States, to any of Canada’s official ports of entry, would be turned away, and prevented from entering Canada
• Those who clandestinely come to Canada, and avoid entering via an official port of entry, are not subject to the provisions of the third safe country agreement
• Many other countries have safe third county policies, such as European countries viewing Morocco as a safe third country for Syrian refugees......etc.,

Roxham Road

An unofficial port of entry used by asylum seekers, to circumvent the third safe country agreement, and seek asylum in Canada
• When Trump was elected, any feared losing their migrant status in the United States, they therefore sought to present their asylum claims in Canada
• The Canadian government used the Covid-19 pandemic as an excuse to close off this unofficial port of entry

Mobility Rights Canada

Section 6 of the Canadian Charter, gives every Canadian citizen the right to, (1) remain in, (2) enter, and (3) leave Canada
• Citizens also have the right to move within Canadian Territory, with the right to take up residence and engage with the economy
• Permanent residents generally have those same rights too
• International convention also holds that citizens should be free to (1) enter, (2) leave, and (3)
move about their countries

Mobility for Foreign Nationals

Generally speaking, foreigners do not have the same entitlements as citizens when it comes to mobility
• Foreigners can be turned away, deported, or restricted from engaging in another country's economy
• Foreigners generally don’t have the right to resettle in any country they desire........but if your rich, this process is easier

Visa Policies

Each country maintains their own visa regimes, defining the rules around admitting foreign nationals
• Visas for foreign nationals are normally (1) time limited and (2) limits the things people can do whilst in a foreign country

Visa Free Travel

Mostly applying to (1) tourists and other (2) non-immigrant travel purposes, countries generally have visa free travel policies for foreign nationals for citizens of countries mostly considered;
• Safe, as in citizens of those countries are less likely to engage in activities that threaten national security
Example: Canada had removed visa free travel for Saudi citizens (in 2002) because the Canadian government did not trust that the Saudi government’s process of issuing passports, mentioning that the passport issuance process in Saudi Arabia risked giving passports to terrorists or other dangerous individuals
• Nationals from certain countries are deemed to have a higher risk of overstaying their welcome
• Visa free travel generally does not apply for people who want to (1) work or (2) resettle
permanently, many countries have exceptions to this rule however......

Temporary Foreign Workers in Canada

A government program intended to help Canadian employers find employees from other countries in sectors were it is difficult or impossible to find qualified Canadian workers
• This is a non-immigrant class of visa, meaning most coming on TFW status must leave following their time-limited engagement in Canada’s labour market

Exploitation

Canadian employers, have been known to exploit those with temporary status in Canada, they believe that since foreign workers are less than citizens, they could (1) pay them less, (2) overwork them, (3) restrict their freedoms, (4) not provide them with the statutory basics of employment
1. If a temporary foreign workers loses their job, they lose their visa, and any authorization to leave in Canada, making it easier for employers to exploit foreign employees
2. Employers are prohibited by law to abuse foreign employees, yet the exploitation of foreign workers is pervasive
3. Agriculture workers for example, are compelled to work (1) long hours, with (2) low pay, and are housed in (3) in-humane and cramped housing conditions

Crimmigration

Refers to the merger of immigration-law and criminal law, where violations of immigration law are treated as though they are criminal, and criminal-like sanctions are applied against transgressions of immigration law
• Historically, incarceration was rarely used in immigration cases, but is now a more ubiquitous element of enforcing immigration laws
• People’s criminal histories are increasingly used to decided whether to (1) exclude, or (2) deport someone from any particular country
• Constitutional protections, normally found in criminal cases, do not apply in the same ways for individuals undergoing immigration proceedings, making them more vulnerable to abuses of state power

Singh v. Minister of Employment & Immigration

A 1985 Supreme Court Case, ruling that the same legal guarantees and protections found in the Canadian Charter apply to all persons physically present in Canada, including foreign nationals
• Refugee claimants have the right to a full oral hearing for their claims before either being (1) admitted to the country (at the border), or being (2) deported (within Canada)
• This case prompted the creation of the Immigration & Refugee Board (IRB), an administrative tribunal tasked with hearing immigration & refugee cases
• IRB decisions can go for judicial review; only about 4% of failed asylum applicants apply for judicial review, but about 50% of those who apply for judicial review have their initial decision overturned

Serious Criminality

A permanent resident or foreign national, is inadmissible to
Canada, or subject to deportation if convicted of “serious criminality”
• Any conviction pertaining to an indictable offence, whether committed (1) within Canada, or (2) outside of Canada, if the same actions would constitute a crime inside Canada
• A conviction based on a hybrid offence, even if the crown elected to pursue that offence summarily
• A conviction for driving under the influence would also be considered for serious criminality

Consequences for Non-Citizens

In addition to being subject to the normal processes and consequences of the CJS, foreign nationals are doubly punished when contrasted against their citizen counterparts
• Foreigners in Canada are less likely to be granted conditional release, as they are less resource equipped to provide the PBC with needed requirements for parole
• Foreign nationals are normally deported following the expiration of their warrant in Canada
• Does not apply to convictions under the youth criminal justice regime

Immigration Detention

Immigration detainees in Canada are mostly incarcerated for non-criminal violations of immigration policy
• Immigration detainees are often held in either (1) medium, or (2) maximum security settings
• Every year, the number of immigration detainees has been going up in Canada
• The CBSA, exercises full authority and discretion in deciding which individuals should be detained, and where they are detained

Provincial Jails

Immigration detainees are often placed in provincial jails and remand centres
• Migrant detainees who have no criminal history, and are not being accused of a crime, are housed alongside criminally accused individuals on remand, and criminally convicted individuals serving a sentence
(recall provincial remand facilities are maximum security institutions)
• Prior to covid, 20% of migrant detainees were held in provincial jails
• Following the onset of covid, 50% of migrant detainees are being held in provincial jails
• Being handcuffed, segregated, enduring rigid routines (i.e., 5:00am wakeup), and confined to a cell are ubiquitous experiences for migrant detainees
• Migrant detainees experience identical levels of violence and victimization in provincial jails

Immigration Detention Centres (IDC)

There are three designated immigration holding centres in Canada, they are located in (1) Toronto Ontario, (2) Laval Quebec, (3) Surrey British Columbia)
• If the CBSA decide to detain someone outside of these regions with IDCs, they are generally held in provincial detention facilities
• Furthermore, the CBSA may choose to detain an individual in a provincial facility if they determine the detainee’s behavior cannot be managed in an IDC
• The CBSA exercise sole discretion in categorizing migrant detainees “medium” or “high” risk
• These detention facilities only hold migrant detainees, and do not mix individuals who are
concurrently incarcerated for criminality

Race & Migrant Detention

Immigrant detainees from communities of colour, and Black detainees in particular are
1. Incarcerated for longer periods in immigrant detention
2. They are more likely to be held in provincial facilities, even when they are detained in a region with an IDC (recall discretion of CBSA)

Legal Limit

Canada is one of the few countries in the world with no upper limit on the amount of time an individual can spend on immigration detention
• Immigration detainees are in theory at risk of being detained indefinitely
• The longest period of immigration confinement in Canada was 11 years, because the Canadian
government struggled to establish and recognize the man’s identity
• The CBSA assert the detention is not meant to be coercive, but rather it is meant to facilitate deportation
• The primary objective of migration detention, is the protection of society, according to the CBSA

Reasons for Indefinite Detention

1. Inability to identify or properly recognize the detainee’s documents
2. Inability of the detainee’s home country to recognize detained individuals as being their
citizen, therefore not sending needed documents (i.e., passport) to facilitate deportation
3. The continuity of immigration proceedings through the IRB and judicial review process
4. Inability to deport migrant detainees because of geo-political conflicts

Deportation

The process of removing non-citizens deemed inadmissible from Canada • Once you are deported, you are permanently barred from re-entering Canada

Non-Refoulement

An essential principle in international law, effectively prohibiting states from deporting individuals to regions where there exists a substantial risk of persecution, torture, or other serious human rights violations
• Despite this principle, Canada has in recent history deported people to Afghanistan, Syria, Iraq, Haiti & Somalia
• Canada has deported people to countries with self-imposed moratoriums on deportation, consisting of many of the countries listed above

Double Punishment

The idea that non-citizens who commit crimes face the (1) regular processes of justice on one hand, and (2) lose their status in Canada and ultimately face deportation

Bill C-43

Passed in 2013, allowed for the deportation or exclusion of foreign nationals from Canada, if they were convicted of any crime abroad, or if they are simply suspected of engaging in any form of criminality abroad, even if that individual was never convicted
The right to appeal the deportation order was also taken away
• It removed the possibility of records suspensions for foreign nationals

Bill C-10

Allowed visa officers to deny a visa to any foreign national seeking a work permit, if the officer believes that the applicant is vulnerable to abuse or exploitation
• Policy disproportionately effected female visa applicants from non-visa free countries • A visa officer would discretionarily decide is an applicant is vulnerable to abuse
• The Canadian Council for Refugees states that;
“it is demeaning for women to have visa officers decide that they should be kept out of Canada for their own protection”

Nation-State

The nation-state is a territorially bound sovereign entity • A region ruled in the name of a community of citizens
• Members of the national group see themselves as belonging to the state

Sovereignty

In reference to the (1) supreme & (2) exclusive powers within the central decision-making processes of the state
• State, government & independence
• In international relations, sovereign nation-states possess full control over affairs
within state-territories government

Self-Determination

The idea that the members of a nation-state possess the sole-authority to govern within their territory anyway they please

Jurisdiction

Describes the legal limits and competence of the state and other regulatory authorities, to (1) make, (2) apply, and (3) enforce rules/laws

State-Hood

The following things are generally considered to form the foundation of states and statehood

Conditions of Statehood

1. A defined territory, drawn onto the geography of earth
2. Must possess a permanent population (non-transient)
3. A monopoly of legitimate powers covering the state’s territory
4. International recognition of legitimate existence by other states 5. The capacity of the state to enter international relations