CBSA Arresting People without a Warrant

On March 15, 2013, the Canada Border Services Agency (“CBSA“) conducted a raid on a construction site in Vancouver.  Much of the media attention has focused on the fact that a reality television crew apparently followed the CBSA officers onto the premise.  Many have also commented on how surprised they were that the CBSA apparently arrested many foreign nationals without warrants, and wondered whether this was legal. 

It is.

Section 55(2) of the Immigration and Refugee Protection Act (the “Act“) states that:

An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,

(a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or

(b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.

A foreign national in Canada may be inadmissible for numerous reasons, including if they have remained in Canada beyond the period authorized by their visa, or if they have worked without authorization.  If an officer has reason to believe that the foreign national has done something to make them inadmissible, and believes that they likely won’t appear for examination or removal when directed to do so, the officer may arrest and detain the individual.  That individual will then have the right to detention reviews at the Immigration and Refugee Board.

In addition to the CBSA, peace officers (the police) also have the authority to arrest and detain individuals without a warrant if they believe that s. 55(2)(a) of the Act applies.

Section 17 of the Citizenship and Immigration Canada Enforcement Manual (“ENF-7”) provides an overview of the procedures and constitutional protections that CBSA officers are expected to follow during an arrest.  ENF-7 is not publicly available, however, I have reproduced a copy of s. 17 of ENF-7 here.  Please note that this document was obtained through an Access to Information and Privacy Act request, and may not be current.

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