Regulation 248 — Factors — alternatives to detention
Text of provision
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
(d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned;
(e) the existence of alternatives to detention; and
(f) the best interests of a directly affected child who is under 18 years of age.
Plain English
Regulation 248 requires the Immigration Division to consider whether alternatives to detention (ATDs) are available and sufficient to address the grounds for detention before ordering continued detention. ATDs may include: regular reporting to CBSA, surrender of travel documents, residence at a specific address, cash bonds, bondspersons, voice reporting, or electronic monitoring.
Detention must be a measure of last resort — if an ATD adequately addresses the detention ground, the person must be released on those conditions.
Practical effect
The alternatives to detention assessment is mandatory at every detention review. The Immigration Division must specifically consider whether ATDs are available before ordering continued detention. Counsel should always propose specific ATDs that address the stated grounds — for example, if the ground is flight risk, a cash bond with a reliable bondsperson and daily reporting may be sufficient. The CBSA Community Case Management and Supervision (CCMS) program provides some ATD support for non-criminal detainees, but resources are limited. Electronic monitoring is increasingly used in Canada as an ATD following pilot programs.