Detention Review
Who can be detained and what are the grounds for detention?
The Canadian Border Services Agency (CBSA) may choose to detain a foreign national or permanent resident if there are reasonable grounds to believe that he or she:
- is inadmissible to Canada,
- is a danger to the public,
- is unlikely to appear for an examination, hearing or removal,
- has not established his/her identity.
A permanent resident or foreign national may also be detained when entering Canada if this is necessary to conduct examinations, or if there are reasonable grounds to suspect that he or she is inadmissible to Canada on grounds of security, violating human or international rights, or criminality.
If you are detained, the CBSA will notify the Immigration and Refugee Board (IRB) of your detention. While in detention, you may be held in a provincial correctional facility or in an immigration holding centre. The first step is to retain counsel to represent you. Within 48 hours of being detained, a member of the Immigration Division will review the reasons for your detention at a hearing called a detention review.
At the detention review, the Immigration Division (ID) will evaluate whether sufficient reasons remain for your detention and whether the situation which led to your detention still exists. The member from the ID will hear arguments from the Minister’s counsel about why you should remain detained. Your counsel will have the opportunity to respond and challenge any evidence contained in the allegations. There are a number of prescribed legal factors to consider. If the member from the ID finds that there are grounds for detention, then they must also consider: the length of time spent in detention, how long the detention is likely to continue, and alternatives to detention.
After this initial 48 hour review, there will be another detention review within 7 days. After this, the ID will review the grounds for detention at least every 30 days.
Based on the evidence provided at these detention reviews, the ID may order your release, with or without conditions, or maintain your detention.
Keep in mind that different rules of detention apply to a foreign national who has determined to be a “designated foreign national” due to their irregular arrival in Canada (as ordered by the Minister).
Important Immigration Court Decisions
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- Canada v. Chhina (2019 SCC 29)
- Key paragraphs: 63-68
- Brown v. Canada (2020 FCA 130)
- Key paragraphs: 90-96
- Canada v. Asante (2019 FC 905)
- Key paragraphs: 25-28, 37-39
- Canada v. Tjhang (2022 FC 1664)
- Key paragraphs: 17-19
- Canada v. Ali (2016 FC 661)
- Key paragraphs: 29, 40-43
- Canada v. Tolstov (2021 FC 647)
- Key paragraphs: 33
