Regulation 245 — Factors — danger to the public
Text of provision
For the purposes of paragraph 244(a), the factors are the following:
(a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;
(b) voluntary compliance with any previous departure order;
(c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding;
(d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal;
(e) any previous avoidance of examination or escape from custody, or any previous attempt to do so;
(f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and
(g) the existence of strong ties to a community in Canada.
Plain English
Regulation 245 requires consideration of: the nature and severity of criminal convictions or findings; whether there is evidence of involvement in criminality without a conviction; the severity of potential consequences if the person re-offends; past conduct; association with criminal organisations; and any indications of likelihood of re-offending.
A danger to the public finding under this section is the detention ground most likely to result in prolonged detention, as it is difficult for the detained person to rebut where serious criminal history exists.
Practical effect
Danger to the public assessments require careful analysis of the nature and context of criminal history. A serious conviction for violence creates a strong presumption of danger; minor or dated convictions may not. The Immigration Division must assess the current (not historical) level of risk — a person who has completed a lengthy sentence and demonstrated rehabilitation may no longer be a current danger even if they were dangerous at the time of conviction. Mental health issues, addiction, and social support systems are all relevant factors in the danger assessment.