Detention is an exceptional measure in Canadian immigration law. Section 58 of the Immigration and Refugee Protection Act (the “Act“) provides when someone can be detained. Section 58 states:
Release — Immigration Division
58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are 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);
(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or
(d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
At each detention review, the Immigration Division (the “Division“) must come to a fresh conclusion about whether an individual should be detained according to one of the above provisions, and, if the Division decides to release the person, whether conditions should be imposed. If the Division is going to depart from a previous decision, it must give “clear and compelling reasons” for doing so. However, the onus is always on the Minister to demonstrate on a balance of probabilities that there are reasons which warrant continued detention.
Danger to the Public
Neither the legislation nor the case law clearly defines what “danger to the public” is, although it is generally regarded as relating to protecting the health and safety of Canadians and to maintain the security of Canadian society.
Section 246 of the Immigration and Refugee Protection Regulations (the “Regulations“) provide that the following factors must be considered when determining if someone is a danger to the public:
246. For the purposes of paragraph 244(b), the factors are the following:
(a) the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act (Editor’s Note: These sections include human rights violations, subversion, espionage, etc.);
(b) association with a criminal organization within the meaning of subsection 121(2) of the Act;
(c) engagement in people smuggling or trafficking in persons;
(d) conviction in Canada under an Act of Parliament for
(i) a sexual offence, or
(ii) an offence involving violence or weapons;
(e) conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely,
(i) section 5 (trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production);
(f) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for
(i) a sexual offence, or
(ii) an offence involving violence or weapons; and
(g) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,
(i) section 5 (trafficking),
(ii) section 6 (importing and exporting), and
(iii) section 7 (production).
On October 29, 2010, the Immigration and Refugee Board released Guideline 2 on Detention. The Guidelines are to assist Division members (“Members“) in determining whether or not to hold an individual in detention.Guideline 2 provides the following jurisdictional principals for Division members to follow:
- Members must assess whether the person represents a “present or future danger to the public.” In calculating future danger, the probability of danger has to be determined from the circumstances of each case.
- It will often be necessary for members to draw inferences from a person’s criminal record in determining whether that person is likely to be a danger to the public.The more serious the criminal offences and the greater number of offences committed the more they weigh in favour of a finding of danger to the public.
- Members must consider “the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender.” It is acceptable to use past conduct as a reliable indicator of future conduct, although other factors cannot be ignored.
- Various factors should be weighed when considering whether a person is a danger to the public, such as the age of the convictions and the circumstances in which they were committed; the character of the person concerned (for example, drug or alcohol addiction or any other chronic condition), including the willingness to be rehabilitated and the possibility of rehabilitation; the person’s behaviour in society since the convictions and family and community support. Recent convictions involving violence or weapons will favour a finding of danger to the public. If a person has been convicted of an offence and has served the related sentence, the conviction alone is not sufficient to support a finding that that person is likely to be a danger to the public.However, a conviction in the past for an offence involving violence or weapons is a strong indicator that the person is a danger to the public. Members must assess the current circumstances and determine whether there is evidence that the person’s behaviour has changed.
- While members should not automatically conclude that a person is a danger because one of the factors listed in the IRPR exists, the existence of one of the listed factors must be considered. The weight to be given to each factor in a particular case is left to the discretion of the member depending on the individual circumstances.
- In order for a member to find that a person is a danger to the public there need not be evidence of a conviction outside Canada. A pending charge in a foreign jurisdiction for the specific types of offenses listed in the IRPR, involving for example, violence or weapons, is a factor that must be considered and weighed with all the relevant circumstances of the case.
- The prescribed factors in the IRPR are not exhaustive. The Immigration Division may determine that a person is a danger to the public even if none of the prescribed factors exist if there is evidence that the person represents a “present or future danger.” Members must consider evidence that the person has been involved in gang activity even if that person has no criminal convictions. Evidence of gang-related activity is a factor that weighs in favour of a finding of danger to the public.
- The Immigration Division is not bound to follow the determination of the National Parole Board as to whether the person is a danger to the public. The member must exercise independent discretion and cannot simply adopt the decision of the National Parole Board. A finding by the National Parole Board that a person with a violent past may be paroled with supervision does not mean that the person is not a danger to the public since all the circumstances in the case must be considered.
- Similarly, the Immigration Division is not bound to follow determinations made in a court of law with respect to the granting of bail and with respect to the imposing of a sentence. While such determinations may be considered at a detention review, members must come to their own conclusions, taking into account all the facts in the case and the immigration context.
- The Minister of Public Safety and Emergency Preparedness (the “Minister“)’s opinion that the person constitutes a danger to the public is a factor to take into account at a detention review but is not in itself sufficient for finding that the person is a danger to the public.
- In determining whether a person is a danger to the public, members must consider whether the person has or had an “association” with a criminal organization as opposed to “membership” in the organization.
- In some instances danger to the public may dissipate due to the length of time that a person has been in detention or because evidence supporting a detention order has turned stale.6 In such circumstances members must still consider whether there is ongoing danger to the public as a result of the commission of past criminal offences or prior assoiation with a criminal organization.
Section 245 of the Regulations provide the factors that must be considered when analyzing whether someone is a flight risk.
245. For the purposes of paragraph 244(a), the factors are the following:
(a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;
(b) voluntary compliance with any previous departure order;
(c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding;
(d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal;
(e) any previous avoidance of examination or escape from custody, or any previous attempt to do so;
(f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and
(g) the existence of strong ties to a community in Canada.[Emphasis Added]
In addition, the jurisprudence provides that the prescribed factors are not exhaustive. Other factors that have been considered include whether the individual has access to a significant amount of wealth, the previous use of false identity documents, prior use of aliases, lack of credibility, and prior attempts to hide their presence in Canada.
Minister Inquiring into Security or Violations of Human or International Rights
The test here is not whether the individual committed security or human rights violations, but whether there is evidence that supports the Minister’s suspicion of potential inadmissibility. It is for the Minister to decide what further steps are needed. The Member’s supervisory jurisdiction is limited to examining whether the proposed steps have the potential to uncover relevant evidence bearing on the Minister’s suspicion and to ensure that the Minister is conducting the investigation in good faith.
Identity of Foreign National Not Established
The Division may order the continued detention of a permanent resident or a foreign national if there is evidence that the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and the person has not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity, or the Minister is making reasonable efforts to establish their identity. Only a foreign national may be detained under this ground.
Section 247 of the Regulations provide the factors to be considered when analyzing whether an individual has reasonably cooperated with the Minister. It states:
Identity not established
247. (1) For the purposes of paragraph 244(c), the factors are the following:
(a) the foreign national’s cooperation in providing evidence of their identity, or assisting the Department in obtaining evidence of their identity, in providing the date and place of their birth as well as the names of their mother and father or providing detailed information on the itinerary they followed in travelling to Canada or in completing an application for a travel document;
(b) in the case of a foreign national who makes a claim for refugee protection, the possibility of obtaining identity documents or information without divulging personal information to government officials of their country of nationality or, if there is no country of nationality, their country of former habitual residence;
(c) the destruction of identity or travel documents, or the use of fraudulent documents in order to mislead the Department, and the circumstances under which the foreign national acted;
(d) the provision of contradictory information with respect to identity at the time of an application to the Department; and
(e) the existence of documents that contradict information provided by the foreign national with respect to their identity.
Members must exercise much caution when considering release of persons where there is evidence that the Minister is of the opinion that their identity has not been established. If a member is considering release in these circumstances, the imposition of appropriate terms and conditions of release should be instituted.
Length of Detention
Detention is not indefinite because it must be reviewed on a regular basis. If a member determines that there are grounds for detention, then the following factors must be considered before a decision is made to continue detention or order release as required by section 248 of the Immigration and Refugee Protection Regulations:
- the reason for detention;
- the length of time in detention;
- whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
- any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned;
- the existence of alternatives to detention.
When determining whether to order continued detention, even in cases where detention has been lengthy, members must consider all applicable factors and all the circumstances of the case, including the length of the person’s detention. That a person has already been detained for a long period is but one factor which is considered. It is not determinative.
All of the factors must be considered. It is simply not sufficient for the Immigration Division to state that because a detained individual is not cooperating that detention should be continued (Azadi v. Canada, 2013 FC 743)
Thus, if detention under IRPA has been lengthy and there are still certain steps that must be taken in the immigration context, if valid reasons still remain to order continued detention, such as danger to the public, an order for continued detention does not constitute indefinite detention.
A note on Minors
Minors are detained only as a measure of last resort. Members should consider a number of factors when determining whether to continue detention or release of a minor, including the best interests of the child.
Section 249 of the Regulations provides that a minor shall be detained only after the following has been considered:
Special considerations for minor children
249. For the application of the principle affirmed in section 60 of the Act that a minor child shall be detained only as a measure of last resort, the special considerations that apply in relation to the detention of minor children who are less than 18 years of age are
(a) the availability of alternative arrangements with local child-care agencies or child protection services for the care and protection of the minor children;
(b) the anticipated length of detention;
(c) the risk of continued control by the human smugglers or traffickers who brought the children to Canada;
(d) the type of detention facility envisaged and the conditions of detention;
(e) the availability of accommodation that allows for the segregation of the minor children from adult detainees who are not the parent of or the adult legally responsible for the detained minor children; and
(f) the availability of services in the detention facility, including education, counselling and recreation.
This post provides just a snippet of the vast amount of information contained in the Guidelines, and I strongly recommend interested readers to read the whole thing.