Immigration detention (Canada)
Statutory definition
Section 55 of the Immigration and Refugee Protection Act, SC 2001, c 27, authorises an officer to detain a permanent resident or foreign national where the officer has reasonable grounds to believe the person is inadmissible and is a danger to the public; where the person is unlikely to appear for an examination, hearing, or removal; or where the officer is not satisfied as to the identity of the person. Section 57 requires mandatory detention reviews by the ID.
Explanation
Canadian immigration detention is subject to mandatory review by the Immigration Division: within 48 hours of detention, then at 7 days, and at 30-day intervals thereafter. At each review, the ID determines whether continued detention is justified.
Unlike Australia's mandatory detention regime, Canada's detention is discretionary at the point of arrest — officers must have specific grounds (flight risk, danger, identity). However, once detained, the person cannot simply be released without ID authorisation (unless CBSA releases them first).
The Supreme Court of Canada held in Canada (Minister of Citizenship and Immigration) v Thanabalasingham [2004] 3 SCR 607 that the ID should consider all circumstances afresh at each review rather than simply deferring to prior detention orders.
How this term is used
Persons detained under IRPA are held in immigration holding centres or provincial jails under immigration holds. Alternatives to detention (reporting conditions, electronic monitoring, cash bonds, co-signers) may be imposed instead of or in lieu of full detention. Legal representation at detention reviews is important — unrepresented detainees face difficulty challenging CBSA's evidence.