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Dr Jen Rinaldi
Ontario Tech University
Dr Shanti Fernando
Ontario Tech University

Following Giorgio Agamben, this paper will present Canada’s migrant detention regime as a zone of indistinction between the enactment and suspension of law. Legal scholars studying immigration and refugee law have found utility in Agamben’s analysis of the refugee camp as the biopolitical paradigm of the modern West, where a population is abandoned to a juridico-topographical state of exception. The way non-citizens are relegated to, and are meant to inhabit, the state of exception shapes the contours of sovereign national identity. Our intention is to show Agamben’s application to the Canadian context, where the de facto criminalization and indefinite detention of undesirable non-citizens makes possible the political rhetoric of Canadian hospitality. Detention as an administrative legal mechanism operates outside the procedural safeguards of Canadian constitutional law. We will trace jurisprudence from cases on migrant policing that have read down the principles of fundamental justice, to habeas corpus applications that have challenged Canada’s indefinite detention practices—some successfully, but with note-worthy limits that defer system-wide reform. Through this analysis, we will consider the ways in which the arms of Canadian government politically and legally resist bringing constitutional protections into conversation with the migrant detention regime. The net effect has been that detained migrants, particularly those held for indefinite lengths of time, constitute a suspended legal state that is foundational to national narrative-building.

Dr. Jen Rinaldi is an Assistant Professor in the Legal Studies Program at Ontario Tech University. Her research takes up how non-normative bodies are read, marked, and produced in and through socio-legal discourse. Her funded research projects engage with narrative and arts-based methodologies to deconstruct eating disorder recovery in relation to queer community, and to story traumatic histories of institutionalization. Her recent books include Institutional Violence & Disability: Punishing Conditions; and Bearing the Weight of the World: Exploring Maternal Embodiment.

Dr. Shanti Fernando is an Associate Professor in Political Science, Faculty of Social Science and Humanities, Ontario Tech University.

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