Sophie Harkat, wife of Mohamed Harkat (who is currently being detained on a security certificate), reports that Mohamed (Moe) hates being in the new Kingston facility, and that he is concerned that the public will forget about him now that he is in the new institution. Sophie Harkat notes that it is possible to send letters of support to Mohamed at
MOHAMED HARKAT
Kingston Immigration Holding Centre
c/o CSC RHQ Ontario Region
440 King Street West
PO Box 1174
Kingston, ON
K7L 4Y8
The CBSA press release announcing the April 24 opening of the KIHC acknowledges that the facility is located on the premises of the Millhaven Penitentiary in Bath (near Kingston). The CBSA info sheets on security certificates are available here. CBSA notes that the four men currently being detained are “free to leave Canada any time they wish, and return to their country of origin or another country, provided that these countries are willing to accept them.” This is one of the responses the Canadian government has been citing to deflect criticism that it is holding the men indefinitely.
The location of the KIHC on the premises of a federal penitentiary is of some concern. One of the most significant effects of post-September 11 national security policy and legislation in Canada has been an ongoing process of ‘mandate creep,’ whereby the new imperatives of national security result in the expansion of existing organizational mandates or the blurring and crossing of mandates between organizations.
The KIHC appears to be an example of mandate creep / crossover in action. Millhaven is a maximum security prison, administrated by the Correctional Service of Canada. The Corrections and Conditional Release Act (1992) sets out the terms of reference and legal mandate for the Correctional Service of Canada. A few excerpts of note should demonstrate the problematic nature of the KIHC facility.
From the Corrections and Conditional Release Act (bolding is mine):
Purpose:
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
[…]
5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for
(a) the care and custody of inmates;
(b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community;
(c) the preparation of inmates for release;
(d) parole, statutory release supervision and long-term supervision of offenders; and
(e) maintaining a program of public education about the operations of the Service.
[…]
“inmate” means
(a) a person who is in a penitentiary pursuant to
(i) a sentence, committal or transfer to penitentiary, or
(ii) a condition imposed by the National Parole Board in connection with day parole or statutory release, or
(b) a person who, having been sentenced, committed or transferred to penitentiary,
(i) is temporarily outside penitentiary by reason of a temporary absence or work release authorized under this Act, or
(ii) is temporarily outside penitentiary for reasons other than a temporary absence, work release, parole or statutory release, but is under the direction or supervision of a staff member or of a person authorized by the Service;
“penitentiary” means
(a) a facility of any description, including all lands connected therewith, that is operated, permanently or temporarily, by the Service for the care and custody of inmates, and
(b) any place declared to be a penitentiary pursuant to section 7;
‘Offender’ is defined by the Canadian Criminal Code as “a person who has been determined by a court to be guilty of an offence, whether on acceptance of a plea of guilty or on a finding of guilt.”
From the Criminal Code of Canada:
743.1 (1) Except where otherwise provided, a person who is sentenced to imprisonment for
(a) life,
(b) a term of two years or more, or
(c) two or more terms of less than two years each that are to be served one after the other and that, in the aggregate, amount to two years or more,
shall be sentenced to imprisonment in a penitentiary.
[…]
Regarding Transfers:
(5) Where, at any time, a person who is imprisoned in a prison or place of confinement other than a penitentiary is subject to two or more terms of imprisonment, each of which is for less than two years, that are to be served one after the other, and the aggregate of the unexpired portions of those terms at that time amounts to two years or more, the person shall be transferred to a penitentiary to serve those terms, but if any one or more of such terms is set aside or reduced and the unexpired portions of the remaining term or terms on the day on which that person was transferred under this section amounted to less than two years, that person shall serve that term or terms in accordance with subsection (3).
So, putting it all together, this picture emerges:
Millhaven is a penitentiary operated by CSC, and it falls under the provisions of the Corrections and Conditional Release Act. CSC is mandated to operate the federal correctional system, specifically with carrying out the sentences imposed by courts of law and by rehabilitating offenders. CSC is responsible for the care and custody of inmates, and an ‘inmate’ is a person who is in a penitentiary pursuant to a sentence, committal, or transfer (meaning the transfer to a penitentiary of persons imprisoned elsewhere for terms that when combined equate to two or more years). ‘Offender’ refers to a person who has been determined by a court to be guilty of an offence. Inmates / offenders who are sentenced to terms amounting to two or more years are to serve their time in a federal penitentiary, with those serving up to two years less a day serving their time in a provincial facility. A penitentiary is a facility (and connected lands) that is operated by CSC for the care and custody of inmates.
All of which is to say that the legislation governing CSC and federal penitentiaries does not appear to cover persons such as Mohamed Harkat or the other security certificate detainees. They do not fit the legal definition of ‘inmates’ or ‘offenders,’ as they have not been tried or convicted of any crimes. They are not sentenced to any specific term of imprisonment, which means that they technically should not be held on penitentiary grounds, as penitentiaries are meant for persons who are sentenced to terms of two years or more. And finally, since a penitentiary is defined as a facility (and its grounds) operated by CSC for the care and custody of inmates – which security certificate detainees are not – it would seem that the location of the Kingston Immigration Holding Centre on the grounds of Millhaven penitentiary is contrary to CSC’s own operating rules and mandate.
We can assume that there is some sort of legal loophole that allows for this co-location, but the point is that it must be a loophole, as the straightforward guidelines of the Criminal Code and Corrections and Conditional Release Act seem to preclude it. Unless some piece of legislation allows for the operation of the KIHC on the physical grounds of Millhaven but not on its ‘legal grounds’ as set out by the Corrections and Conditional Release Act, this facility is apparently operating in violation of CSC policy. In the coming weeks, we will be looking into this in greater detail. For now, it is sufficient to conclude that, despite the minimal attention it has received in the Canadian media, the KIHC represents a significant departure from the normal business of CSC – even though it is administrated by CBSA. Critics have called it ‘Guantanamo North,’ and while the exact nature of the facility remains to be seen, it clearly shares some of the ‘legal black hole’ status associated with the Cuban institution.
- Mike
MOHAMED HARKAT
Kingston Immigration Holding Centre
c/o CSC RHQ Ontario Region
440 King Street West
PO Box 1174
Kingston, ON
K7L 4Y8
The CBSA press release announcing the April 24 opening of the KIHC acknowledges that the facility is located on the premises of the Millhaven Penitentiary in Bath (near Kingston). The CBSA info sheets on security certificates are available here. CBSA notes that the four men currently being detained are “free to leave Canada any time they wish, and return to their country of origin or another country, provided that these countries are willing to accept them.” This is one of the responses the Canadian government has been citing to deflect criticism that it is holding the men indefinitely.
The location of the KIHC on the premises of a federal penitentiary is of some concern. One of the most significant effects of post-September 11 national security policy and legislation in Canada has been an ongoing process of ‘mandate creep,’ whereby the new imperatives of national security result in the expansion of existing organizational mandates or the blurring and crossing of mandates between organizations.
The KIHC appears to be an example of mandate creep / crossover in action. Millhaven is a maximum security prison, administrated by the Correctional Service of Canada. The Corrections and Conditional Release Act (1992) sets out the terms of reference and legal mandate for the Correctional Service of Canada. A few excerpts of note should demonstrate the problematic nature of the KIHC facility.From the Corrections and Conditional Release Act (bolding is mine):
Purpose:
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
[…]
5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for
(a) the care and custody of inmates;
(b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community;
(c) the preparation of inmates for release;
(d) parole, statutory release supervision and long-term supervision of offenders; and
(e) maintaining a program of public education about the operations of the Service.
[…]
“inmate” means
(a) a person who is in a penitentiary pursuant to
(i) a sentence, committal or transfer to penitentiary, or
(ii) a condition imposed by the National Parole Board in connection with day parole or statutory release, or
(b) a person who, having been sentenced, committed or transferred to penitentiary,
(i) is temporarily outside penitentiary by reason of a temporary absence or work release authorized under this Act, or
(ii) is temporarily outside penitentiary for reasons other than a temporary absence, work release, parole or statutory release, but is under the direction or supervision of a staff member or of a person authorized by the Service;
“penitentiary” means
(a) a facility of any description, including all lands connected therewith, that is operated, permanently or temporarily, by the Service for the care and custody of inmates, and
(b) any place declared to be a penitentiary pursuant to section 7;
‘Offender’ is defined by the Canadian Criminal Code as “a person who has been determined by a court to be guilty of an offence, whether on acceptance of a plea of guilty or on a finding of guilt.”
From the Criminal Code of Canada:
743.1 (1) Except where otherwise provided, a person who is sentenced to imprisonment for
(a) life,
(b) a term of two years or more, or
(c) two or more terms of less than two years each that are to be served one after the other and that, in the aggregate, amount to two years or more,
shall be sentenced to imprisonment in a penitentiary.
[…]
Regarding Transfers:
(5) Where, at any time, a person who is imprisoned in a prison or place of confinement other than a penitentiary is subject to two or more terms of imprisonment, each of which is for less than two years, that are to be served one after the other, and the aggregate of the unexpired portions of those terms at that time amounts to two years or more, the person shall be transferred to a penitentiary to serve those terms, but if any one or more of such terms is set aside or reduced and the unexpired portions of the remaining term or terms on the day on which that person was transferred under this section amounted to less than two years, that person shall serve that term or terms in accordance with subsection (3).
So, putting it all together, this picture emerges:
Millhaven is a penitentiary operated by CSC, and it falls under the provisions of the Corrections and Conditional Release Act. CSC is mandated to operate the federal correctional system, specifically with carrying out the sentences imposed by courts of law and by rehabilitating offenders. CSC is responsible for the care and custody of inmates, and an ‘inmate’ is a person who is in a penitentiary pursuant to a sentence, committal, or transfer (meaning the transfer to a penitentiary of persons imprisoned elsewhere for terms that when combined equate to two or more years). ‘Offender’ refers to a person who has been determined by a court to be guilty of an offence. Inmates / offenders who are sentenced to terms amounting to two or more years are to serve their time in a federal penitentiary, with those serving up to two years less a day serving their time in a provincial facility. A penitentiary is a facility (and connected lands) that is operated by CSC for the care and custody of inmates.
All of which is to say that the legislation governing CSC and federal penitentiaries does not appear to cover persons such as Mohamed Harkat or the other security certificate detainees. They do not fit the legal definition of ‘inmates’ or ‘offenders,’ as they have not been tried or convicted of any crimes. They are not sentenced to any specific term of imprisonment, which means that they technically should not be held on penitentiary grounds, as penitentiaries are meant for persons who are sentenced to terms of two years or more. And finally, since a penitentiary is defined as a facility (and its grounds) operated by CSC for the care and custody of inmates – which security certificate detainees are not – it would seem that the location of the Kingston Immigration Holding Centre on the grounds of Millhaven penitentiary is contrary to CSC’s own operating rules and mandate.
We can assume that there is some sort of legal loophole that allows for this co-location, but the point is that it must be a loophole, as the straightforward guidelines of the Criminal Code and Corrections and Conditional Release Act seem to preclude it. Unless some piece of legislation allows for the operation of the KIHC on the physical grounds of Millhaven but not on its ‘legal grounds’ as set out by the Corrections and Conditional Release Act, this facility is apparently operating in violation of CSC policy. In the coming weeks, we will be looking into this in greater detail. For now, it is sufficient to conclude that, despite the minimal attention it has received in the Canadian media, the KIHC represents a significant departure from the normal business of CSC – even though it is administrated by CBSA. Critics have called it ‘Guantanamo North,’ and while the exact nature of the facility remains to be seen, it clearly shares some of the ‘legal black hole’ status associated with the Cuban institution.
- Mike
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