October 29, 2019
11 Takeaways from the ID’s Review of Detention
The Immigration and Refugee Board (IRB) has now released their final report following the audit of detention practices begun in the Fall of 2017.  For ease of review, we have summarized below the eleven recommendations that were ultimately provided to the Immigration Division (ID).
1. Re-alignment with Statutory Mandate
It was recommended that the ID fundamentally realign itself with its statutory mandate, which “requires a rigorous review every 30 days of whether or not a further 30 days can be justified”. The report states that Parliament’s intention is clear in this mandate; that decisions to deny the liberty of an individual are of critical importance and must be sufficiently justified. The report also reminded the ID of the requirements under s. 58(1) of the IRPA which states that release is required unless the ID is “satisfied that the statutory factors are present after taking into account the regulatory factors”. Release is the presumed decision here, not the exception.
2. Increased Oversight of Cases
The report recommends that the ID develop a protocol that can be used to identify cases requiring “ongoing oversight by management”. A list of factors that may trigger closer review of individuals cases is provided and includes:
- Detention has continued beyond a specified threshold
- The detained person is unrepresented
- There is evidence that the detained person has special vulnerabilities by virtue of physical or mental health, disability or age.
- The detained person is refusing to attend hearings
- The detained person attends hearings but is unable or unwilling to participate
- The detained person has put forward one or more release plans which have been rejected
- The major cause of continued detention is non-cooperation
- The detained person has young children.
- Other factors as may be identified through internal or external consultations.
3. Tools to Support Robust Reviews
The ID was recommended to implement a diverse number of mechanisms that would support robust reviews at detention hearings. The report lists a number of potential mechanisms, including: case triage, access to decisions and transcripts before the date of the hearing and completion of a Release Assessment Form following each decision not to release a detainee.
4. Immediate Review of Long-Term Detention Files
Unsurprisingly, it was recommended that the ID conduct an immediate review of all cases where detention had exceeded a certain threshold, beginning with individuals held longer than 365 days.
5. New Hearing Protocols to Support Accessible and Active Adjudication
A list of recommended protocols for hearing conduct was provided and focused in particular on: revision of the opening statement, the taking of evidence, provision of decisions after the hearing, active adjudication, and the promotion of compassionate adjudication.
6. New Expectations for Decision-Making
Flowing from the above protocols, it was recommended that ID members no longer be required to provide oral decisions at the end of a hearing. It was noted in the report that additional time will allow members to:
- Make nuanced findings of credibility as necessary.
- Critically and independently assess and weigh evidence
- Bring a fresh mind to the person’s history in light of the passing of time
- Actively apply the balance of probabilities test to the evidence, explaining if and how the flight risk or possible public danger is greater than 50%
- Address the statutory duty to release unless satisfied that one of the legislative factors directs otherwise.
- The ID may need to provide resources if there are Members who need more support to meet these expectations.
7. Access to Legal Aid Services
The report recommended that the ID initiate discussions with provincial governments in order to canvass for the possibility of increasing legal aid and related services for persons in detention.
8. Role of the Designated Representative
In order to clarify the role of designated representatives, the report recommended the development of a Practice Direction that will set out the duties and responsibilities of individuals in these roles. Monitoring of Designated Representatives was also recommended, in order to ensure that the quality of advocacy is maintained.
9. Review of Policies on Bonds and Terms of Release
While the report states that the audit was unable to examine jurisdictional issues related to ID and CBSA authority, it did recommend a re-evaluation of policies surrounding release on bond, with a specific focus on a number of potential issues, including:
- Is the ID and/or CBSA’s approach to bonds generally consistent with Federal Court jurisprudence, including the M.C.I. v. B188, wherein the Court upheld an ID decision to not impose a cash bond due to the detained person’s limited resources?
- Is the ID and/or CBSA’s approach to bonds consistent, or should it be consistent, with the direction of the Supreme Court of Canada in R. v. Antic, confirming the principle in criminal cases that release is to be ordered at the earliest opportunity and on the least onerous grounds?
- Why does the ID approach to cash and performance bonds vary in different parts of the country? Is this dictated by CBSA?
- Is the requirement that a performance bond be secured against real estate only a requirement in Eastern Region? Are performance bonds against income allowed in other regions?
- Given that the requirement to secure a performance bond against real estate creates a disproportionate disadvantage to indigent individuals, should this requirement be abandoned in appropriate cases?
- The Government announced in 2016 that it would invest $138 million to create alternatives to detention: have these funds been committed and will programs be developed to support release for indigent individuals without access to sureties?
- In light of recent initiatives in at least one province to make bail more accessible to indigent and vulnerable persons, are the requirements imposed in ID hearings too onerous for low-income individuals who are disproportionally identified with prohibited grounds of discrimination, including disability and race.
- Is CBSA moving forward with plans to offer GPS tracking as a less-costly and more humane alternative to detention?
- Could greater use be made of broader alternatives to detention, such as house arrest or curfews? Could halfway houses be accessed for placements, as suggested by the Ontario Superior Court in Toure v. Minister of Public Safety.
10. Professional Development and Recruitment of Members
While the report recognizes that additional training has been implemented in recent years, it recommended that training is still required on:
- Principles and practice of making credibility assessments and factual findings on a balance of probabilities basis;
- Mental health and addiction issues, and the impact on memory and testimony; and
- Collaborations through panel discussions with other Members, counsel and managers.
11. Persons with Mental Health Problems
Finally, and perhaps most importantly, it was recommended that the ID initiate immediate discussions with the CBSA on the impact of detention on individuals with mental illness. The report stated:
The fairness of the process for persons with mental illness, and the impact of detention without treatment, emerged as significant issues in our review. Most alarming was the case in which an individual was held in detention, at length, in a catatonic state, without treatment, unresponsive and barely mobile. It was more than two years before the person was transferred to a psychiatric hospital in the corrections system where he could receive treatment.
This report has already raised many questions about the ID’s responsibilities in this case. What were CBSA’s responsibilities? How can CBSA have left this person in this situation for two years while the ID continued to conduct 30-day reviews? And why did it take years for the Public Trustee to be appointed? What would have happened to him if the Federal Court had not been closely monitoring this case?
All of this points to the need for a new high-level protocol to be negotiated between CBSA and the IRB to ensure cases like this are flagged and, at minimum, that the person is provided with appropriate treatment in a timely way.
Of course, it remains to be seen whether the ID 1) seriously considers and implements the recommendations, and 2) whether any changes made have the desired impact on detention practices in Canada.