Have you Been Detained?
The Canada Border Services Agency (CBSA0 is charged with the task of managing, controlling, and securing Canadian borders. It is the responsibility of the CBSA to detain and/or remove any persons who are inadmissible to Canada. This includes all people who do not have the right to enter or remain in this country.
If a foreign national or permanent resident has been detained by the CBSA for immigration reasons, they will be called to appear before the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) for a legislative review of their detention.
The CBSA may detain, or hold a foreign national or permanent resident, if it has reasonable grounds to believe that the person:
is unlikely to appear for an examination, hearing or removal
is a danger to the public
is inadmissible – that is, not allowed to enter or remain in Canada – for security reasons, or for violating human or international rights, or has not established his or her identity to the CBSA’s satisfaction (this only applies to foreign nationals).
The detention of any individual is the ultimate restriction of civil liberty, and prima facia violates a person right to life, liberty and security of the person. However, enforcement is one aspect of our laws, and those laws provide very powerful mechanism to uphold the law, and to prosecute those who violate it.
If you are a permanent resident or a foreign national and you’ve been detained by the CBSA for immigration reasons, it is imperative that you take all appropriate steps to safeguard your legal rights. The first step is to retain counsel to represent you at an independent hearing to review the reasons for your detention. Once you are detained, the CBSA must notify the IRB of your detention. A member of the Immigration Division (ID) of the IRB will act as the decision-maker, and will hold a hearing in accordance with the law which requires the same to take place within two days (or as soon as possible afterwards).
After the hearing before the IRB, the member will examine the evidence and the submissions of counsel in order to decide whether you should be released or if you will be remanded to remain in detention. The IRB is an independent administrative tribunal that makes legally binding decisions just like a court of law. The IRB also decides other immigration and refugee matters.
A member of the ID will hear the Review according to the IRB tribunal process. The process is adversarial. There are two opposing parties; You have the right to counsel, and if retained, they will act as your representative. They will be opposed by the Minister’s counsel, a hearings officer with the CBSA who will likely be taking the position that continued detention is necessary according to the IRPA.
In some instances, your counsel can work with the Hearings Officer to assess a set of circumstances and determine if conditions can be agreed to that if you agree to abide by the same, the Hearings Officer may consent to your release from Detention.
While in detention, you may be held in a provincial correctional facility used as a jail or holding centre. If you are detained in Toronto, Montreal or Vancouver, you may be held in a minimum-security immigration holding centre. The CBSA decides where you will be held.
In some limited cases, your detention review will happen at the facility where you are being held, or you may be connected to the IRB member by teleconference or videoconference. In other cases, CBSA officers may take you to a hearing facility at an IRB office for your detention review.
Detention reviews are usually open to the public. Media or other observers may attend or have access to information about your case. Most often, the detention review may be held in private if, for example, you are also a refugee claimant, or if a public hearing would threaten your safety.
The IRB member is in charge of the detention review. The member will start by introducing everyone and explaining what is about to happen to make sure you understand. If you have an interpreter, the member will check that you understand each other.
Minister’s counsel will explain why the CBSA believes you should be detained.
Your counsel will have the opportunity to respond, examining you and any witnesses, making legal submissions and challenging any evidence contained in the allegations.
The member may ask you questions throughout the hearing.
If there are witnesses to present information, Minister’s counsel and your counsel or the member may ask them questions.
After hearing from both sides, the member will decide whether you will be released or remain in detention. The member will usually state his or her decision and the reasons for this decision at the end of the hearing. The member may also set a date for another hearing to give you the decision and the reasons.
If the ID member orders continued detention, you will be required to appear for another hearing before the ID within seven days of the first review. The ID holds further hearings at least once every 30 days for as long as the person is detained. If necessary, we may ask for an early review of detention at any time, but we must present new facts to justify the request. Either party may ask the Federal Court of Canada for leave, or permission, for a judicial review of any IRB decision on detention.
If the member finds that there are no longer valid reasons under IRPA to continue detention, then the member may order your release. The member may also order certain terms and conditions, such as posting a bond (a cash deposit) or guaranteeing to do something, such as reporting on a regular basis to an immigration office.
In some cases, if the CBSA has reason to believe that you should not enter or remain in Canada – that is, you are inadmissible to Canada – a member of the ID will also consider this question at a separate Immigration Admissibility Hearing. This hearing may be held on the same day as your detention review (often right before), or it may be scheduled for another time. You will be told the date of your admissibility hearing ahead of time.
As your counsel, we first work to ascertain the legal and factual grounds that may give rise to detention and/or removal proceedings. We request from the CBSA full disclosure in all matters we are engaged. If you detained, or if you are subject to a removal proceeding, please contact us for a comprehensive review of your legal rights.