April 26, 2023
Detention Review at Immigration Division – Considerations
The Immigration and Refugee Protection Act (“IRPA”) provides ofﬁcers with the power to issue a warrant for the arrest and detention of a permanent resident or foreign national who the officer has reasonable grounds to believe is inadmissible, a danger to the public or is unlikely to appear for: examination, an inadmissibility hearing, removal from Canada or a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the IRPA.
Once detained, the person remains at the Immigration Detention Centre, and is legally entitled to legal counsel at their quasi-judicial detention review hearing, during which a Member of the Immigration Division (“ID”) of the Immigration and Refugee Board reviews the Minister’s application for detention and determines whether the person concerned should continue to be detained or can be released. Since detention engages s. 7 of the Canadian Charter of Rights and Freedoms, the procedure must be held in accordance with the principles of fundamental justice.
Further to the individual’s arrest, the initial detention review is to be held within 48 hours and if continued detention is ordered, then further reviews must occur at least once in the 7 days following the initial review, and at least once during each 30-day period thereafter.
Factors considered by the ID Members are enumerated in ss. 245-247 of the Immigration and Refugee Protection Regulations (“IRPR”) and include whether a foreign national is a ﬂight risk, a danger to the public, or whether the identity of the foreign national is in question.
The factors to be taken into consideration when assessing whether a person is a ﬂight risk include: whether the individual is a fugitive from justice in a foreign jurisdiction; whether they have voluntarily complied with a) any previous departure order, b) request to appear at an immigration or criminal proceeding, and c) any conditions imposed upon entry, release or a stay of removal orders; or whether there has been any involvement with a people smuggling or trafficking in persons operation. Further, Members of the ID may also take the following factors into consideration: objective assessment of their chances of gaining durable status in Canada; existence of strong ties to a community in Canada; access to a significant amount of wealth, which may provide an increased ability to abscond; use of false identity documents and aliases to evade detection from the authorities; attempts to hide their presence in Canada; lack of credibility, as demonstrated in dealings with immigration or police officials; and co-operation of the individual.
Danger to the Public
In assessing whether the person is a danger to the public, the ID must consider the following factors: whether the person is inadmissible to Canada for serious criminality; is or has been associated with a criminal organization; has engaged in people smuggling or trafficking in persons; has been convicted in Canada or charged or convicted outside Canada for a sexual offence or an offence involving violence or weapons; has been convicted in Canada under trafficking, importing/exporting and production provisions of the Controlled Drugs and Substances Act; and has been convicted in Canada under distribution, selling, importing/exporting or production provisions of the Cannabis Act, or charged or convicted for similar offences outside Canada. In addition, the ID may also take other factors into consideration.
Notably, a criminal record alone is not enough to classify the individual as “dangerous” such that they must be detained. Rather, by looking at the history of the person’s criminal record, the ID will have to weigh certain factors such as the: nature of the offences, the circumstances in which they were committed, the punishment imposed, the period of time elapsed since the offence, violent behaviour, the possibility of recidivism, and the possible consequences of releasing the person. For individuals with mental health issues, in assessing the risk, the ID also has to consider the available treatment options and the ability and willingness of the individual to participate, as well as the history of the individual’s compliance with previous mental health treatment which is a relevant factor in determining future compliance.
As such, an individualized assessment must be undertaken to determine the need for ongoing detention. The facts should be carefully considered and submitted to the ID to assess. Some factors may require additional arguments to demonstrate that one specific factor carries more weight, such as circumstances related to a criminal offence involving a minor and or a weapon.
It is rare for individuals to be released when identity cannot be established. Generally, the following factors are considered when assessing whether a foreign national should be detained because of identity issues: a) the foreign national’s cooperation in providing evidence of their identity, or assisting the CBSA in obtaining evidence of their identity; b) in the case of a refugee claimant, the possibility of obtaining identity documents or information without divulging personal information to government ofﬁcials of their country of nationality; c) the destruction of identity or travel documents, or the use of fraudulent documents in order to mislead the Department or CBSA, and the circumstances under which the foreign national acted; d) the provision of contradictory information to the Department or CBSA or existence of documents that contradict information provided by the foreign national with respect to their identity.
Importantly, when a Minister claims that identity has not been established, the Member must assess whether the Minister is also making efforts to establish identity in conjunction with the extent of the cooperation of the person concerned, as establishing the identity of an individual is fundamental to all immigration proceedings, including the assessment of any risk on release, admissibility to Canada, consideration of the need for protection, evaluation of potential threats to public safety, and the risks of a subject evading official examination.
In all, when determining whether the detention is justified in cases where the identity of a foreign national is not established, various factors must be weighed including the length of time in detention, predicted future length of detention, flight risk, and danger to the public amongst others.