Best Interests of the Child can Be Considered in Detention Reviews

22nd Sep 2016 Comments Off on Best Interests of the Child can Be Considered in Detention Reviews

The Canadian Council for Refugees (the “CCR“) has just distributed the following two PDFs to its followers.  In brief, the Federal Court has issued an order saying that the best
interests of non-detained children can be considered in detention reviews (e.g. of a parent who is accompanied in detention by a child who is in detention, but not legally detained).

 

As copied from the CCR e-mail, the Order confirms that:

  1. the factors to be considered by the Immigration Division when deciding whether to detain or release are not limited to those enumerated under R. 248 of the Regulations;
  2. the Immigration Division has the jurisdiction to consider the interests of a child who is a Canadian at an immigration holding centre (i.e. residing there with her detained parent) even if that child is not under a detention order herself and therefore not directly subject to the Immigration Division’s jurisdiction; and
  3. the interests of a child may be taken into account (but are not a primary consideration) when determining whether a person is a flight risk.

Also, according to the CCR, Canada Border Services Agency Hearings Officers have been instructed to bring this Order to the attention of Immigration Division members.  The following instructions have also been provided to officers.

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Can the Federal Court Order Continued Detention

18th Jul 2016 Comments Off on Can the Federal Court Order Continued Detention

The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Lunyamila has certified the following question of general importance:

Does the Federal Court have jurisdiction to usurp the jurisdiction of the Immigration Division of the Immigration and Refugee Board of Canada to order the release of the detainee pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27, by ordering that the detainee shall remain in detention until further Court order?

The timeline giving rise to the question was as follows:

5 January 2016
Mr. Lunyamila is ordered released from detention. The very same day the Minister applied for leave and judicial review under docket number IMM-63-16 and obtained an interim stay from Madam Justice Simpson.

8 January 2016
Mr. Justice Shore extended the interim stay to 19 January as a transcript of the hearing was not yet available.

20 January 2016
Mr. Justice Shore granted an interlocutory stay. While he noted that there would be another 30-day review upcoming and that the case might possibly be heard on an expedited basis he stayed the release “until the application for leave and judicial review is determined on the merits.”

2 February 2016
Mr. Lunyamila was again ordered released by the IRB. The Minister again was able to file an application for leave and judicial review that day under IMM-502-16 and obtain an interim stay of release from Mr. Justice Mosley, in effect until 16 February.

16 February 2016
Mr. Justice Simon Noël set a timetable with respect to both the January and February decisions, leading to the applications for leave to be heard on 3 March 2016, and if granted, immediately followed by a hearing on judicial review. His order in both docket numbers provides, “the interim stay of the release is extended until a final determination…”

1 March 2016
Mr.  » Read more about: Can the Federal Court Order Continued Detention  »

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Immigration Detainees Granted Access to Habeas Corpus

21st Oct 2015 Comments Off on Immigration Detainees Granted Access to Habeas Corpus

On October 20, 2015, the Court of Appeal for Ontario (the “ONCA”) released its decision in Chaudhary v. Canada (Public Safety and Emergency Preparedness) (“Chaudhary”).  The ONCA has ruled that the immigration detention review system provided for in the Immigration and Refugee Protection Act (“IRPA”) does not provide an effective forum for detainees to challenge their continued detention. Effective immediately, detainees will be able to apply to the Ontario Superior Court of Justice for habeas corpus to challenge their continued detentions.

Habeas Corpus

Habeas Corpus, latin for “you shall have the body,” is a recourse in law whereby a detained individual can apply to a court for a determination on whether their detention or imprisonment is unlawful.  If the court rules that the detaining entity is acting beyond its authority, then it must release the detainee.   Habeas Corpus is commonly regarded as a cornerstone of liberty.  It is enshrined by s. 10(c) of the Canadian Charter of Rights and freedoms, which provides that “everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Under what is known as the “Peiroo exception,” the Supreme Court of Canada in May v. Ferndale Institution stated that in immigration matters habeas corpus is precluded where federal legislation provides a complete, comprehensive and expert statutory scheme which contains a review process that is at least as broad as and no less advantageous than habeas corpus.

The ONCA in Chaudhary determined that the immigration detention review system provided for in the IRPA does not meet these requirements.

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The Cost of Detaining “Illegal Immigrants”

10th Apr 2013 Comments Off on The Cost of Detaining “Illegal Immigrants”

When the Canada Border Services Agency began dramatically increasing enforcement operations, many wondered where the Department was going to detain individuals. The provinces, especially Ontario, has indicated for many years that they do not want to be in the “detention business.”  The internal document below shows that at one point the Department went so far as to approach the Department of National Defence to host some immigration detainees, particularly in the case of mass arrivals and security certificate cases.  Ultimately, as the document below also indicates, the Department of National Defence was not interested.

Neither the provinces nor DND appear to be interested in using their facilities to detain “illegal immigrants.”  Given this, I am always surprised when a few CBSA officers (certainly not all, or even most) decide to detain people as a matter of course, only to have them be released only a few days later by the Immigration Division.

Please note that the document below was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available.  The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

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Overview of Detention

1st Nov 2010 Comments Off on Overview of Detention

On October 29, 2010, the Immigration and Refugee Board released Guideline 2 on Detention. The Guidelines are to assist Immigration Division members in determining whether or not to hold an individual in detention.

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