Chairperson Guideline 2 — Detention — provides interpretive guidance for Immigration Division (ID) members conducting detention reviews under IRPA ss 55–62. The Guideline is not binding law — it is guidance issued by the Chairperson of the IRB under the authority granted to the Chairperson to issue guidelines — but it carries significant weight and members are expected to follow it unless there is a principled reason not to do so.

The Guideline addresses how members should assess the grounds for detention, apply the factors set out in IRPA Regulation s 248, consider alternatives to detention, and give effect to the best interests of any child directly affected by a detention decision.

• IRPA s 159(1)(h) — authority of the Chairperson to issue guidelines to assist members in carrying out their duties
• IRPA ss 55–62 — grounds for detention, detention review timelines, grounds for release
• IRPA Regulation s 248 — additional factors for the ID to consider in detention decisions
• ID Rules (SOR/2002-229) — procedural rules for detention review hearings

Grounds for detention (IRPA s 55)

Guideline 2 provides guidance on interpreting each of the four grounds for detention:

• Flight risk — factors suggesting the person is unlikely to appear for proceedings. The Guideline identifies indicators: failure to comply with previous conditions, evasion of removal, providing false identity, and destruction of documents.
• Danger to the public — criminal history and evidence of ongoing dangerous conduct. The Guideline notes that the member must consider the nature and seriousness of past convictions, any pattern of conduct, and the likelihood of reoffending.
• Identity — where the person cannot or will not establish their identity to the officer's satisfaction. Guideline 2 discusses what constitutes adequate identity documentation and the role of cooperation with identity verification.
• Designated irregular arrival — persons arriving as part of a designated irregular arrival are subject to mandatory detention provisions.

Regulation s 248 factors

Regulation s 248 requires the member to consider several additional factors, including the length of detention, the reasons for any delay in removal, the availability of alternatives to detention, and the best interests of any child directly affected. Guideline 2 provides detailed guidance on each factor.

Alternatives to detention (ATD)

The Guideline emphasises that detention should be a measure of last resort — members should consider whether alternatives to detention are available and adequate. The Guideline discusses: conditions of release (reporting to CBSA, surrendering travel documents, providing a bondsperson, residing at a specific address) and electronic monitoring. A member who orders continued detention must consider and address whether ATD measures could adequately manage the risk that justified detention.

Best interests of the child

The Guideline requires members to give appropriate weight to the best interests of any child directly affected by the detention decision — whether the detained person themselves is a minor, or whether the detained adult is a parent of children in Canada. The Guideline notes that children's interests are a significant humanitarian consideration but are not automatically determinative.

Guideline 2 is publicly available on the IRB guidelines page. Members are expected to follow Guidelines unless they have a principled reason not to, and departures from a Guideline may be raised in judicial review proceedings. The Federal Court has held that the Chairperson's guidelines assist in achieving consistency and fairness in IRB decision-making.

CBSA counsel and claimants' counsel should be familiar with the Guideline when preparing for detention review hearings — arguments that engage the Guideline's framework (e.g., ATD availability, specific risk factors) are expected to be addressed in submissions.