Detention grounds and the review cycle
Overview
Under IRPA, a foreign national or permanent resident may be detained for immigration purposes on three grounds: (1) they are a danger to the public; (2) they are a flight risk (unlikely to appear for examination, hearing, removal, or other proceedings); or (3) their identity cannot be established. Detention is reviewed by the Immigration Division (ID) of the IRB: within 48 hours of arrest, then within 7 days, and thereafter at least every 30 days. Canada does not operate a mandatory detention system; detention is discretionary and individual circumstances are assessed.
Canadian immigration detention differs fundamentally from Australia's system. Canada does not impose mandatory detention on all unlawful non-citizens. Detention is an exceptional measure that requires justification on one of the three grounds, and is subject to mandatory independent review at prescribed intervals.
Legal basis
- IRPA s 55 — arrest and detention: an officer or peace officer may arrest and detain a foreign national where there are reasonable grounds to believe they are inadmissible and a danger to the public, or are a flight risk; identity detention is also authorised
- IRPA s 56 — the Minister may order release from detention
- IRPA s 57 — the mandatory review cycle: first review within 48 hours; second review within 7 days; subsequent reviews at intervals of no more than 30 days
- IRPA s 58 — the ID must release a detained person unless satisfied that one of the grounds for continued detention is established
- IRPR ss 244–250 — factors the ID considers in detention reviews (danger to public, danger of absconding, identity); alternatives to detention
- R v Antic [2017] 1 SCR 509 — Canadian Charter principles on pre-trial release, analogously applied in immigration detention review
How it works
Grounds for detention (s 55)
1. Danger to the public
A person may be detained if there are reasonable grounds to believe they are a danger to the public. Factors include: criminal history; the nature and recency of criminal conduct; evidence of violent or dangerous behaviour; the likelihood of reoffending.
2. Flight risk
A person may be detained if there are reasonable grounds to believe they will not appear for their immigration proceedings. Factors include: failure to appear for previous proceedings; failure to comply with previous orders; lack of ties to Canada; use of fraudulent documents; destruction of identity documents; involvement in people-smuggling networks.
3. Identity
A person may be detained if their identity cannot be established. This ground is commonly used for persons who arrive without valid travel documents or who claim false identities. Once identity is established, continued detention on this ground is no longer available.
The review cycle
- First review: within 48 hours of arrest (or as soon as practicable)
- Second review: within 7 days of the first review
- Subsequent reviews: at least every 30 days
The ID must hold a hearing at each review. The person may be represented by counsel. The burden is on the Minister (CBSA) to justify continued detention. At each review, the ID must release the person unless it is satisfied on the evidence that one of the detention grounds continues to apply and that no reasonable alternative to detention is available.
Alternatives to detention
The ID must consider alternatives to detention before ordering continued detention. Alternatives include:
- Immigration bond: a cash deposit or performance bond posted by the detainee or a bondsperson, which is forfeited if the detainee fails to appear
- Reporting conditions: regular reporting to CBSA
- Designated residence: requirement to reside at a specified address
- Electronic monitoring (ankle bracelet)
Constitutional constraints
The Canadian Charter of Rights and Freedoms applies to immigration detention. Section 7 (right to liberty) and s 9 (right not to be arbitrarily detained) apply to immigration detainees. Courts have held that prolonged immigration detention may become unconstitutional where there is no prospect of removal in the foreseeable future.