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Introduction[1]

In the last decade, different forms of regulation arose in response to the 9/11 Attacks, especially regarding security, characterizing what former U.S. vice-president Cheney called in a speech just after the attacks, “the new normalcy”.[2] These measures have most directly affected foreign nationals who were already facing the exclusionary effects of the securitization of borders in developed countries during the 1990s (Bigo, 1998; Calavita, 2003, Simon, 1998; Wacquant, 1999). While migrants were already among the most vulnerable (Calavita, 1998; Simon, 1998; Pratt, 2005), these new policies led to an important degradation of their limited rights in the United States, and more broadly in the West. This was also true in Canada,[3] even though the Immigration and Refugee Protection Act (IRPA; 2001, c.27), the main piece of legislation regulating migration in Canada, was already before the Senate before 9/11 and received royal assent without amendment two months later. In fact, the new normalcy discourses have had a greater impact on subsequent immigration policies and related regulations and practices, especially those regarding the enforcement of the IRPA and the policing of immigration.[4]

In an attempt to describe the nature and effects of newly adopted pieces of regulation and practices, social and legal scholars almost unanimously suggested that immigration control had become a matter of crimmigration, a fusion of immigration and criminal law (e.g. Miller, 2005; Stumpf, 2006; Aas, 2011) or, more commonly, that what was happening corresponded to a criminalization of immigration (e.g. Sayad, 1998; Palidda, 1999; Wacquant, 1999; Mathieu, 2001, 2006; Miller, 2003, 2005; Bosworth, 2008; Bosworth & Guild, 2008; Di Giorgi, 2010; Zedner, 2010; Bosworth & Kaufman, 2011). These concepts oversimplify the regulation of immigration conflicts, relabeling them as “crimes”, and hide the most disturbing aspects of immigration control. In fact, immigration control is primarily, if not exclusively, based on administrative law, and most of the concerns raised by legal scholars with respect to the lack of legal safeguards provided in the immigration justice system are related to the fact that immigrants are not “criminalized”, but dealt with through administrative law regimes. The main problem of the so-called criminalization of immigration is that immigrants are being detained, deported and kept under surveillance without having access to the package of rights generally associated with the criminal process.[5] In that sense, it is more accurate to suggest that: “immigration law has borrowed the enforcement components of criminal justice without the corresponding adjudication components”, as Stephen Legomsky put it (2007, p.473).

Legomsky’s concept of an asymmetric incorporation of criminal justice norms (2007) is particularly interesting. It clearly emphasizes the selectiveness with which immigration law has retained certain punitive aspects of the criminal justice system without incorporating the corresponding legal and procedural safeguards. But it can also be misleading. Indeed, the notion of incorporation presupposes that punitiveness is located solely in the criminal justice system and that it radiates to other normative systems.[6] This “contamination argument” is historically questionable. The use of administrative law as a non-criminal and quasi-legal punitive form of social control is not new,[7] although it surely became more explicit post-9/11 with the increasing use of military law and immigration law during the war on terror. Therefore, both criminalization and asymmetric incorporation are somewhat problematic concepts. In this paper, I will take Legomsky’s approach a step further, challenging both fronts of the criminalization consensus. In particular, I argue that immigration control is not about crime, but rather about the process of administrative translation of conflicts (mise en forme administrative des conflits); and that immigration punishment is not about penalties (poena / peines), but about police measures.

In my view, immigration control in Canada can be fairly described as a continuous state of exception within the Rule of Law, a sort of legal grey hole (Dyzenhaus, 2006; Vermeule, 2009) where the constraints on ministerial action are so weak that they allow the government to do more or less whatever it wants and often with a tribunal’s stamp of approval. More specifically, I focus on the judicial component of immigration control,[8] presenting how events are translated into penal facts at the Immigration and Refugee Board (IRB), and how this type of punishment differs from mainstream (criminal-based) forms of punishment.

These observations are based on documentary analysis of the different statutes, regulations and guidelines governing the IRB, as well as its decisions and mainly my impressions of its practices (Bourdieu, 1990) and legal sensibilities (Geertz, 1986) that are based on two years of ethnographic fieldwork conducted in the eastern region of the IRB (Montréal and Ottawa). The IRB, Canada’s largest independent administrative tribunal,[9] is a specialized federal tribunal that operates throughout the country and is responsible for the judicial administration of conflicts and disputes regarding immigration, and decisions for refugee protection claims made in Canada. The tribunal is organized in four divisions: Refugee Protection Division (RPD), Refugee Appeal Division (RAD),[10] Immigration Division (ID) and Immigration Appeal Division (IAD), with their own members, guidelines, procedures and practices. I decided to exclude the refugee cases and sponsorship appeals from this analysis due to argumentative reasons and to space limitations; consequently, my portrayal of the IRB is based mainly on practices and decisions that are directly related to punishment.

My argument will be organized in two main sections: In Part I, Beyond Criminalization, I will examine the administrative style of penal translation (Acosta, 1986) at play at the IRB, focusing on rules of evidence, procedural aspects and key symbolic issues of the ID and IAD. In Beyond Penalties (II), I will present some forms of punishment in immigration law that look similar to criminal forms of punishment (detention, removals and surveillance), but will emphasize they are essentially preventive and that most of the time they are not following the same sentencing principles. These sections illustrate two main aphorisms: 1) immigrants are far from being criminalized; and 2) immigrants are most of the time not subjected to penalties, but to police measures. I conclude by arguing that immigration control raises a number of theoretical and methodological challenges for criminology, suggesting that these forms of penalization should be thought of on their own terms. In that sense, I follow Valverde who directs us to analyze legal effects by asking: ‘what a certain limited set of legal knowledges and legal practices do, and how they work, rather than what they are (2003, 11; Bourdieu, 1990; Valverde, 2009). In this case, irrespective of the interests guiding legislative action and practices, their real effects are that non-criminalization, or even decriminalization, may be more punitive than traditional criminalization.

Beyond criminalization: on the administrative translation at the IRB

One of the first lessons students learn in Immigration and Refugee Law classes is that any possibility of adjudication is better than having to deal only with immigration bureaucracy. As mentioned above (Steyn, 2004), a substantial part of immigration control and penalization is simply policing. The Canada Border and Service Agency (CBSA) police immigration, but they have a broader mandate than traditional public police institutions. In addition to a policing role, CBSA officers also act as public prosecutors at the tribunal (IRB) and as judges, because they also have jurisdiction over non-permanent residents, not needing an IRB decision to deal with them. In other words, illegal immigrants and temporary residents can be arrested, detained and/or deported directly by CBSA at their own discretion – without making crime (Ericson, 1981; Acosta, 1987) or accessing any kind of tribunal. Moreover, exceptional procedures such as security certificates, that may detain and remove foreigners, are completely outside of the scope of the IRB. Therefore, in the following paragraphs, I will focus on a more limited facet of immigration control: what kind of justice system manages migrants with stable status in Canada? I will briefly portray how the Immigration and Immigration Appeal Divisions deal with permanent residents when they breach the IRPA and/or its regulations. This will help to clarify how events are, judicially, penally translated (Acosta, 1987) in the immigration system and how this process differs from criminalization.

The Immigration Division (ID) conducts two kinds of hearings: (in)admissibility hearings and detention reviews. The first one is held to decide if a foreign national or permanent resident is inadmissible or removable from Canada. The second hearing is a review of the grounds for detention, deciding if the foreigner should remain in detention or not (and if released, under which conditions). Both hearings are adversarial, allowing cross-examination and other legal procedures associated with due process. However, the low standards of proof and credibility issues significantly affect the balance between the parties, undermining the fairness of the procedures. The key issue in this division is the use of the strict liability standard to assess the immigrant’s responsibility for the violation of immigration rules. The Minister is credible by definition and the defendant’s intent is not relevant. This symbolically structures the division in such a way that, in practice, there is nothing to be disputed. As an illustration of this, at the beginning of my fieldwork different actors strongly discouraged me from conducting any observation at the ID, arguing that it would be a “waste of time”. Appellants’ counsels told me that “there is not a lot to do there [at the ID] because you have already lost” and the Minister’s counsels said that “it is really fast [compared to appeals] (…) ID members do not have a lot of jurisdiction [power to influence]”. Not surprisingly, as I will detail later, the outcomes of the ID are highly exclusionary in terms of remaining in detention and removal orders.

The Immigration Appeal Division (IAD) follows the same procedural system and rules of evidence but, in this division, the adversarial system surprisingly works (at least as it is supposed to work in a normative system with low standards of proof). What makes a difference is that the IAD can take humanitarian and compassionate grounds (H&C) into consideration.[11] This completely changes the conflict resolution dynamics because H&C opens some room for disputes. Thus, even if the liability standard is technically still the same, the appellant’s intentions are a central aspect when assessing H&C. When there are H&C, there are disputes on how the appellant has been dealing with the breach(s) of the IRPA (and/or Criminal Code), if the conditions imposed by any constituted authority are being complied with, and other circumstances of the case (e.g. best interests of a child).

The IAD deals with different kinds of conflicts including hearing appeals from rejected sponsorship applications, failures to comply with the residency obligation and ID admissibility hearings decisions (removal order appeals and Minister’s appeals, which are rare as they lose on average only 3% of the cases[12]). Overall, appealing a decision made by the immigration bureaucracy (sponsorships and residency obligations) can be easier for the migrants because IAD members may find that a visa officer or the CBSA made an error of law and/or of fact or that they did not observe a principle of natural law (IRPA, s. 67.1(a) and (b)). However, appealing an ID admissibility decision based on ss. 67.1(a) and/or (b) is very rare because law and facts are almost indisputable at the ID. Finally, the only viable option for persons appealing removal orders is under H&C (IRPA, s. 67.1(c)) because in such cases there is something to be disputed. These dynamics were recurrent during my fieldwork. In the few cases I observed where the appellant believed that the ID made an error, he or she usually dropped ss. 67.1(a) and/or (b) during the pre-hearing conference and continued the appeal only on the basis of H&C. Interestingly, when looking at both divisions more broadly, we realize that it is the exception (H&C) that re-establishes the main characteristic of legal institutions (“settle disputes”: Bohannan, 1965) and provides the main effective arguments to avoid or reduce punitiveness.

Rules of evidence are at the core of any normative system. They constitute its epistemological basis: a set of procedures, techniques and practices orienting how knowledge is or should be built. Generally, these rules are structured through three major questions or principles. First, what is admissible as data? Second, who has the duty to prove a disputed assertion, or who has the burden of proof? And third, what is the level of verification required to validate a given position and/or a piece of information, or what is the standard of proof? The arrangement of these epistemological questions, added to the liability criteria and the procedural system in place, will more or less determine a tribunal’s ontology. If one adds jurisprudence and practices, this constitutes the tribunal’s worldview (weltanschauung), how its actors interpret, define and represent social reality.

According to the IRPA, the Immigration and Refugee Board (IRB) “is not bound by any legal or technical rules of evidence” and “may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances”[13]. In other words, the IRB may receive practically anything. Concerning the second principle, the formal rule is that the burden of proof lies on the claimant, whether he or she is claiming a refugee status (the ‘refugee’), a removal order (the Ministry), a sponsorship appeal (a citizen who is sponsoring), etc. This is especially true at the ID, but at the IAD the burden of proof may shift from one party to the other due to H&C and the practical dynamics of the disputes. For instance, sometimes the Minister’s counsel is clearly not comfortable when the appellant counsel is flagrantly weak or not well prepared for the appeal, and he or she will produce evidence for the appellant as well. On some occasions, the Minister’s counsel approached me during pauses and/or lunchtime saying: “I feel bad when [the appellant’s] counsel is not doing his job” or “Did you see? I had to produce evidence for him. I am not here to do his job, but it is not fair when a counsel sits there and does nothing”. Moreover, as a cross-examination technique and dispute strategy, the appellant counsels anticipated the Minister’s counsel by questioning their own clients. This allowed them to adduce evidence that would in any case be brought forward by the Minister’s counsel, but in a manner that is favourable for their clients (e.g., by emphasizing their knowledge and remorse about their past wrongdoing, letting them contextualize the original conflict, how they are rehabilitated and their plans to avoid this kind of behaviour in the future). Consequently, it does not really matter a priori who has the burden of proof; the important issue is how this burden will be managed in the proceedings.

Finally, regarding the third principle, the IRB works with the civil standard of proof and not the criminal one (“beyond any reasonable doubt”, which requires more certitude). The general standard of proof for all divisions is the “balance of probabilities” (more likely than not), but the standard can vary according to the legal issue before the board. Sometimes, the IRPA specifies what the applicable standard of proof is, but jurisprudence and practices also play a major role. For example, lower standards of proof such as “serious possibility” or “reasonable grounds to believe” are used by the tribunal: the first can be applied to the danger of torture (s.97(1)(a)) at the RPD; and the second, an even lower standard, is usually applied in cases of organized criminality (s.37(1)(a)) at the IAD. This criterion of “reasonable grounds to believe” is problematic, being just above that of “mere suspicion”. This is interesting (and tragic) because the lowest possible criterion is applied specifically to criminal law-like offences, which would require much higher standards if they were pursued in the criminal justice system. This leads to paradoxical situations where the Crown cannot substantiate a criminal accusation due to lack of evidence, but charges laid by the police are enough to satisfy administrative standards for the purposes of detaining foreigners, prosecuting them through the IRB and eventually removing them from Canada.

A good example is the definition of gang member used at the Board. To consider someone to be a gang member in the immigration justice system, there is no need to have a criminal decision establishing membership. You just need to satisfy the criteria elaborated by Criminal Intelligence Service Canada and that are “used by every police force throughout Canada” (Jean-Yves Brutus v. CIC, 2002; file no. 0018-A2-01385):

“1) Information from a reliable source (that is, inside gang member or rival gang member, community resource, school authority, member of the business community, citizen); 2) A police surveillance report confirming that the person associates with known gang members; 3) An admission from the person; 4) The person’s direct or indirect involvement in a gang crime; 5) Judicial findings that confirm the person’s membership in a gang; 6) The person displays gang identification marks, has performed initiation rituals, or possesses gang paraphernalia and symbols (tattoos, weapons, clothing).”

Jean-Yves Brutus v. CIC, 2002

Basically, a little more than “mere suspicion” of involvement with gangs may be enough to arrest, detain and/or deport a foreigner. This reasoning is not restricted to the IRB, but was confirmed by higher courts as legally valid, for instance in the case of the judicial reviews in Thanaratnam v. Canada (2004) F.C. and (2005) F.C.A.

Mr. Thanaratnam was arrested and charged several times, but none of the charges resulted in trial. His application for judicial review was first allowed, sending him back to the IRB for a hearing de novo because “the Board's conclusion that Mr. Thanaratnam was a member of a gang was not supported by the evidence”. However, the federal government appealed the decision and won at the Federal Court of Appeal a year later, restoring the initial decision of the IRB. The Court’s reasoning is both instructive and clear as to what criteria is to be used by the Board:

“The Court's function is to decide not whether, on the evidence before the Board, there were ‘reasonable grounds to believe’, but only whether it was obviously irrational for the Board to conclude that there were. In the absence of an allegation that the Board erred in law, or that its procedure was unfair, it was difficult to establish that the Board's conclusion that ‘reasonable grounds to believe’ existed was patently unreasonable. A conclusion is not patently unreasonable merely because inferences different from the Board's could reasonably be drawn from the evidence. While no single piece of evidence was determinative in this case, the overall evidence was sufficient to ensure that the Board's decision could not be characterized as patently unreasonable.” [14] (Emphasis mine)

The presumption of innocence is not the relevant principle here. This is not a situation in which the maxim in dubio pro reo (in doubt, on behalf of the accused) applies, but rather one where that of in dubio pro rex (in doubt, on behalf of the king) applies. Administrative punishment is grounded on this inversion of principles and on the lack of legal safeguards. This process of punitive decriminalization (Velloso, 2006) / undercriminalisation (Ashworth & Zedner, 2010) has been a frequently used alternative path to punishing immigrants while avoiding criminal trials since at least the nineteenth century (Walters, 2002).

The notion of legal holes (Steyn, 2004, Dyzenhaus, 2006; Vermeule, 2009) is very useful to think about this process and to take Legomsky’s arguments a step further. The concept of legal holes was originally developed in the context of military law by Lord Steyn, using Guantánamo Bay as an example, and later nuanced as black and grey holes and extended more broadly to administrative law by Dyzenhaus and Vermeule. Vermeule summarizes Dyzenhaus’ (2006) definitions as follows:

“Legal black holes arise when statutes or legal rules ‘either explicitly exempt [] the executive from the requirements of the rule of law or explicitly exclude [] judicial review of executive action’. Grey holes, which are ‘disguised black holes’, arise when ‘there are some legal constraints on executive action – it is not a lawless void – but the constraints are so insubstantial that they pretty well permit government to do as it pleases’. Grey holes thus present ‘the façade or form of the rule of law rather than any substantive protections’.”

Vermeule, 2009, p.1096

Framing immigration control and the IRB as a legal grey hole seems to be even more nuanced than the idea of asymmetric incorporation. It is a justice system specialized in immigration that is based on administrative law principles and does not necessarily incorporate criminal justice enforcement or theories. Not only does the immigration model reject criminal adjudication, but also, it does not consider more fundamental legal guarantees. The degradation of rights continues, making the IRB far too deferential to the executive. Judicial review technically exists, but most applications will end at the “leave” stage. When cases are actually heard, Federal Courts barely set limits to executive action, which can be partially explained by the limited purview of judicial review itself. Moreover, there is no need to invoke the Schmittian idea of exception (Schmitt, 1985) and, therefore, temporarily suspend rights and civil liberties to regulate immigration because, by definition, foreigners do not enjoy the same rights and civil liberties that are available to ordinary citizens. That is what it is ultimately about: ordinary laws, regulations, policies and practices.

In the following section, I discuss the kinds of punishment that may be inflicted on foreign nationals, showing how immigrants who go through such a system are almost always punished in some way.

Beyond penalties: Notes on the administrative way of punishing immigration conflicts

There are instruments in the immigration justice system that can be associated with the notions of punishment or exclusive forms of social control. However, they are not exactly equivalent to the criminal notion of punishment (peine), or even to administrative sanctions (e.g.: fines). Yet, before going further on the punitive outcomes of the IRB, I will briefly contextualize punishment from an immigration law perspective. In administrative law, there are two conceptions of legal intervention with a punitive dimension: administrative sanctions and police measures. The main distinction is that administrative sanctions are considered repressive, and police measures, preventive. Administrative sanctions are similar to penalties (peine) in that both are framed as an a posteriori response to a given event (repressive). However, the legal guarantees are weaker in the case of administrative sanctions: no mens rea is required, strict liability is often sufficient and lower standards of proof are applied.

The punitive instruments used in immigration law in Canada are not administrative sanctions, but policing measures (mesures de police). They are not an a posteriori response to an alleged offence, but an aprioristic one aiming to maintain public order.[15] The legal reasoning is not to sentence a wrongdoer, but to take the necessary measures to guarantee peace and public order. For instance, the logic behind refusing entry or removing someone from Canada is not necessarily to inflict a punitive response, but to prevent the immigrant from endangering an ordered Canadian society or potentially offending in the future (IRPA, ss.34 to 42). The security and health grounds of inadmissibility are quite explicit in this sense:

“34. (1) A permanent resident or a foreign national is inadmissible on security grounds for: (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might en-danger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).”; and: “38. (1) A foreign national is inadmissible on health grounds if their health condition: (a) is likely to be a danger to public health; (b) is likely to be a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health or social services.” (emphasis mine).

It is no coincidence that one of the major immigration detention centers in Canada, located in Laval (QC) is called Centre de prévention de l’immigration (Immigration Prevention Center). In fact, this makes sense in an administrative law perspective and is coherent with what was presented in the previous section. As Walters argues, we are after all dealing with pre-liberal “forms of rule” and “deportation [wa]s anticipated by the local police of the poor in sixteenth and seventeenth century Europe” (2002: 281), when criminal and administrative law were still blurred in municipal and royal law. “Although the twentieth century will witness the juridification of deportation within national and international law,” he adds, “in its inception, it is an administrative not a juridical measure” (281). This represents a second counterpoint to Legomsky’s argument, similarly to the legal holes concept: pre-liberal (barely limited) police power and police measures are administratively based. As a result, the punitive use of administrative law is not necessarily the consequence of a spreading out or a “widening of the carceral archipelago”, as it is sometimes suggested (i.e., Cohen, 1985; Feeley & Simon, 1992). In fact, if any “contamination argument” can be made, it is the other way around, with administrative law strategies increasingly influencing the criminal justice system (e.g., zoning restrictions, preventive detention, preventive orders, security perimeters). As we will see below, the use of police measures in immigration control is exclusionary and may be imposed concurrently with other forms of punishment from different normative systems.

Detention

Foreign nationals are not incarcerated in immigration detention centres (or prevention centres) as part of a sentence. They are not serving time or accessing carceral programs. Instead, they are just there waiting for their release or for any other police measure to be executed (e.g., conditional release or removal), which rarely takes more than two months.[16] As discussed in the previous section, the Immigration Division reviews the grounds for detention applying lower standards of proof and stricter liability criteria. The exclusionary results of detention reviews are quite impressive, as those who get in, do not get out unpunished. The most recent statistics (from 2011-2012) show that out of almost 18.000 finalized detention reviews,[17] 81% remained in detention (the peak post-IRPA), 12% were released on terms and conditions, 1% had their conditions changed and only 6% were released without conditions (IRB, 2012). These numbers were similar in 2010-2011 (IRB, 2011: 17-19), but the ID was slightly more exclusionary in the previous years: 4% were released without conditions in 2009-2010, 6% in 2008-2009, 5% in 2007-2008, 4% in 2005-2007, and only 3% in 2004-2005 (IRB, 2008; 2010). Here again, these immigration terms and conditions are not necessarily the same as those imposed by a criminal court or by the parole board. I will come back to this issue later in this section.

Removals

The Immigration Division also conducts (in)admissibility hearings to determine whether a foreigner should remain in Canada or not. As the population and the key issues of the division are more or less the same, the results are also not that different. In 2011-2012, 71% of approximately 2900 admissibility hearings “resulted in a removal order being issued” (inadmissible); “4% resulted in permission to enter or to remain in Canada; “7% were subject to the withdrawal of the inadmissibility allegation by the CBSA at the hearing”; and “16% were closed after the person failed to appear” (IRB, 2012). These numbers remained fairly stable since the IRPA came into force.

Three factors should be taken into account to understand better how these statistics translate into removals. First, the lower number of hearings in comparison to detention reviews can be explained by the fact that there is usually more than one detention review per person (Nakache, 2011) and that CBSA may directly issue removal orders if the person is not a permanent resident (temporary residents, visitors and illegals) or for “less complicated breaches” (CBSA, 2004), such as falsified passport or misrepresentation. Second, when someone fails to appear, a removal order is issued: therefore, we should add that 16% to the removal numbers. Third, CBSA withdrawals do not necessarily mean permission to enter or to remain in Canada; sometimes it means a voluntary departure. As a result, the removal outcome of “more complicated breaches” is not 71%, but something between 87% and 96%. In some cases, removal orders can be appealed (at the Immigration Appeal Division) or judicially reviewed by the Federal Court. Once appealed, the removal order will not be executed until a decision is made, but it does not mean that the foreign national is “free” as detention and/or surveillance measures may apply.

Surveillance (Terms and conditions, and Stays)

I use the category surveillance in this paper to refer to the forms of free-floating control (Deleuze, 1990: 240) imposed by the IRB as possible outcomes of detention reviews and removal order appeals. I prefer using “surveillance” to “probation” because the conditions imposed are not exactly equivalent to probation and they are not necessarily associated to the purposes and principles of sentencing. Moreover, immigration conditions are operationally distinct from those eventually imposed by criminal courts and/or parole boards. Apart from CBSA bureaucratic mechanisms (border control, customs, etc.), there are two main forms of surveillance that may be imposed by the IRB: 1) terms and conditions associated with release from detention; and 2) stay orders that are the temporary suspension of removal orders under strict conditions.

In both cases, terms and conditions are imposed on a foreign national, but the conditions imposed upon release from detention are fairly light when compared to those of the stay orders. In the first case, there are measures to make sure that the person will appear in court and will keep “clean” or “out of trouble” (that he or she will report to CBSA, keep the peace etc.). Stay order conditions can be very harsh as they are usually framed as an alternative to deportation. Almost everything is possible, including “counselling with priests”, “learning to read”, other unconventional measures and welfare sanctions (e.g., making reasonable efforts to seek and maintain full time employment) (Garland, 1981, 1985). Such conditions can be problematic when reviewing their cases, especially when there is a failure to comply because the foreigner will end up in detention or facing deportation.

In fact, this is not surprising as IRB members are free to decide whatever they want as long as it is not “obviously irrational” or “patently unreasonable” (Thanaratnam v. Canada, 2005). In the case of stay orders conditions, it can be even “worse” as there is no control from any higher instance court[18] and no apparently “landing zone”[19] for stay orders. Basically, there are no sentencing principles such as uniformity, proportionality, predictability and equality; it is a matter of discretion. It does not matter what the original offence was, even if symbolically this is taken into consideration. Everyone who appears there is facing the same fate (banishment). The bottom line is to dismiss the appeal and execute the removal order, or to allow the appeal, which is quite rare prior to a stay order.

If the IAD member decides to stay the removal order, as a practical rule, she or he can choose the length of the stay between one to five years, generally taking into consideration what was submitted by the parties in terms of time and conditions. Observation shows that these negotiations play a larger role than the criteria established on the IRB Removal Order Appeals Guidelines (2002a and 2009b: Chapters 9-10). Further, the member may simply “copy and paste” the terms and conditions that are generally imposed (regardless of the offence originally committed or of the offender’s background) or choose specific ones that are more suitable to the circumstances of the case (e.g., prohibiting someone with gambling problems from attending a casino or other related institution). As a result, someone who was imprisoned for one year might have a stay of two years, whereas another person who committed the same crime and served the same penalty in the criminal justice system could end up with a five-year stay. The legal realist maxim of “what really matters is what the judge had for breakfast” may be very true at the IRB.

The following case is a good example of how theses dynamics are totally disconnected from the original crime and sentence. In this case, the appellant counsel (AC) proposed a five-year stay to the Minister’s counsel (MC) to settle joint submissions as follows:

AC – Stay?

MC – How long? [MC was agreeing and was open to negotiations]

AC – Five years.

MC – Five years? [MC was very surprised; AC asked the maximum]

AC – Well, the youngest kid will be 18 [years old] by the end…

Since the key issue on appeal is humanitarian and compassionate grounds, in this case, the best interests of the children was the main aspect to be taken in consideration. His youngest child was almost 14 at the time and would be 18 by the end of the stay. It was the age of his child that determined the length of the stay (surveillance) and not the offence itself or the offender’s individual characteristics, as usually occurs in criminal sentencing and parole. Surprisingly, this appellant ended up with a five-year stay with 16 conditions that were added to his probation conditions. They were supplementary and concurrent for at least one year (double surveillance by corrections and CBSA) and then he became subject to immigration control only. The total time of punishment was also extended, jumping from five years (combined criminal sentences) to around nine years (not considering the exponential effect of concurrent punishment).

Moreover, by the end of that long punitive period, there is no guarantee that the appeal will be allowed. The member may decide to dismiss the appeal (and the removal order will be executed) or even to extend the stay order, either changing or maintaining the previous conditions. Also, there are some situations in which a removal order is issued and the appeal is not granted, but the person is not deportable (e.g., risk of torture, stateless person, etc.). The result is a sort of limbo with indefinite carceral conditions. The reasoning is simple: if removal is not imposed, another type of policing measure such as detention or surveillance will be substituted. This is exactly what happens in most security certificate cases: foreigners under a security certificate are considered inadmissible, but if they resist deportation, they are kept on detention or under strict surveillance conditions indefinitely or until they become deportable. Unfortunately, however, these indefinite carceral conditions are not restricted to these exceptional cases.

Beyond criminocentric dogmatism: Challenges to Criminology

To conclude, I would like to make some remarks on the case of the brothers Freddy and Danny Villanueva, a tragic story widely reported throughout the Québécois media. In the evening of August 9 2008, two police officers showed up in the parking lot of the Henri-Bourassa arena (Montreal-Nord), where they questioned a group of youth who were playing dice. Thereafter, there was an altercation between the police and the youth, and one officer fired four times, killing young Freddy Villanueva and injuring two other young people. The coroner’s report has yet to be released and no charges have been laid so far. However, my interest here is on his brother Danny and the intersections between crime and migration. Danny has a past criminal record and, at the time of the events, was under bail conditions and a probation order to keep the peace following a criminal conviction in 2006 and charges for two distinct events that had occurred in June 2008 (robbery, using an imitation firearm, breach of probation, and shoplifting, breaches of ordinance and of an undertaking made a week earlier).[20] He was playing dice on that fateful date and as such, he would likely have received a ticket for a minor municipal offense (participating in gambling),[21] breaching his previous ordinance, probation order and undertaking again. It is not clear when he started dealing with the immigration system, but in April 2010, the ID issued a removal order against him and later in 2011 his appeal at the IAD was dismissed and the Federal Court refused to hear his request for judicial review. Danny Villanueva was once criminalized, but in 2008 he was immersed in a myriad of normative systems, most of them administratively based (pre-trial ordinances (bail), probation, regulatory offences and immigration).

The concept of criminalization is not adequate to explain the penalization of migrants, and also cases such as Danny Villanueva’s. Criminocentric approaches do not fully account for the nuances and the complexity of the punitive social reactions, both in terms of policing and judicialization, that we are facing more and more in the twenty-first century. Decriminalizing criminology is not a new or a radical proposal, but almost the natural development of the social reaction paradigm. Clifford Shearing (1989) and others have already suggested this regarding policing studies more than twenty years ago. We can reasonably argue that policing has changed a lot since then and today they are not even reduced to State institutions or to the idea of reaction (e.g., prevention, risk management, etc.). However, justice studies in criminology remain fairly criminocentric, even when approaching topics that barely touch upon criminal justice or that are not administrated by it (immigration, elite deviance, homelessness, etc.).

Building a society in which human diversity is “not subjected to the power of criminalize” (Taylor et al., 1974, p.282) misses the point of resistance to punitiveness and/or setting limits to State punitive intervention. The criminology of the future will not be criminocentric and, it will most likely review its own biased past. As Taylor, Walter and Young predicted: “this ‘new’ criminology will in fact be old criminology, in that it will face the same problems that were faced by classical social theorists.” (1974, p.278). Framing social reaction as it is, beyond crimes and penalties, raises various methodological and theoretical challenges to a discipline that has the study of crime in its own name.[22] In that sense, the dialogue with other domains of social, socio-legal and legal scholarships that also collaborate in thinking about the penal field is more than welcome. This new wave of justice studies in criminology must venture out in the non-criminal world, even if to do so, criminologists have to partially abandon their traditional objects of study and approaches. Otherwise, our fate will be a certain obscurantism that will disconnect critical thinking from the increasingly recurrent forms of social reaction and their exclusionary effects.