Regulation 246 — Factors — identity not established
Text of provision
For the purposes of paragraph 244(b), the factors are the following:
(a) the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;
(b) association with a criminal organization within the meaning of subsection 121(2) of the Act;
(c) engagement in people smuggling or trafficking in persons;
(d) conviction in Canada under an Act of Parliament for
(i) a sexual offence, or
(ii) an offence involving violence or weapons;
(e) conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely,
(i) section 5 (trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production);
(f) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for
(i) a sexual offence, or
(ii) an offence involving violence or weapons;
(g) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,
(i) section 5 (trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production);
(h) conviction for an offence in Canada under any of the following provisions of the Cannabis Act, namely,
(i) section 9 (distribution),
(ii) section 10 (selling),
(iii) section 11 (importing and exporting), and
(iv) section 12 (production); and
(i) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Cannabis Act, namely,
(i) section 9 (distribution),
(ii) section 10 (selling),
(iii) section 11 (importing and exporting), and
(iv) section 12 (production).
Plain English
Regulation 246 requires consideration of: the person's cooperation in establishing identity; whether the person has identity documents; the credibility of the claimed identity; information from the UNHCR or other agencies; whether the person has provided inconsistent information; and whether there are biometric or other identification measures available.
A person who refuses to cooperate in identifying themselves cannot use their own non-cooperation as the basis for continued detention — the officer must still consider whether alternatives to detention are available.
Practical effect
Identity-based detention is the most discretionary of the three grounds. Stateless persons or persons whose documents were destroyed pose genuine identity challenges. The Immigration Division must balance the government's legitimate interest in knowing who is in Canada against the individual's right to liberty. Extended identity detention for persons who genuinely cannot establish their identity (e.g., because they came from a country with poor record-keeping) has been challenged in the courts as disproportionate. Cooperation with identity-establishing measures — including accepting in-person interviews, consenting to consular visits, and providing additional information — is assessed at each review.