Fact Sheet

March 2004

Arrests and detentions

Snapshot

As part of the enforcement of the Immigration and Refugee Protection Act, officers of the Canada Border Services Agency (CBSA) are authorized to arrest permanent residents and foreign nationals who have, or who may have, breached the Act. People can be detained if they pose a danger to the public, their identity is in question, or if there is reason to believe that they will not appear for immigration proceedings.

A person who is detained may be held in a correctional facility or an immigration detention centre. Detentions are reviewed by an officer or by a member of the Immigration Division who may release someone under certain conditions.

CBSA can also detain people against whom a security certificate has been issued. For more details, see the fact sheet Keeping Canada Safe.

Who is responsible

Officers at border crossings and airports, and in Canada, carry out most arrests and detentions. After 48 hours, a member of the Immigration Division reviews detention decisions. The Immigration Division is part of the Immigration and Refugee Board (IRB), which is independent of CBSA. Its members are trained in immigration law.

Arrests: How and why

Officers can arrest foreign nationals and permanent residents who are suspected of breaching the Immigration and Refugee Protection Act.

While arrests can be made with or without a warrant, officers must have a warrant to arrest a permanent resident or a protected person.

All immigration warrants are posted on the Canada-wide Canadian Police Information Centre. CBSA operates its own Immigration Warrant Response Centre seven days a week, 24 hours a day, to assist its law enforcement partners.

Detentions: How and why

Following a person's arrest, officers can detain that person if:

• they have reasonable grounds to believe that the person
• will not appear for immigration proceedings such as an examination or an admissibility hearing, or for removal from Canada; or
• poses a risk to the public because of past crimes, a history of physical violence, etc.; or
• they are not satisfied of the identity of a foreign national.

Detention at port of entry

Officers at a port of entry can detain someone for reasons other than those listed above. Officers can also detain a permanent resident or a foreign national at a port of entry if:

• it is necessary for the completion of an examination; and
• there are reasonable grounds to believe that the person is inadmissible for reasons of security or for violating human or international rights.

Children under the age of 18 are detained only as a last resort. The child's best interests are taken into account when considering whether to detain him or her.

Charter of rights

Whenever individuals are arrested or detained, the Canadian Charter of Rights and Freedoms requires that officers inform them of the reasons for their arrest or detention, their right to legal representation, and their right to notify a representative of their government that they have been arrested or detained.

Factors for detention

The Regulations set out some factors to be considered when determining if a person should be detained. Some of these are as follows:

• criminal convictions, particularly those involving sexual offences, violence, weapons or drug trafficking;
• previous compliance or non-compliance with any requirement under the Act or Regulations;
• ties to the community;
• willingness to cooperate with the Department to establish his or her identity;
• links to organized crime or organized human smuggling or trafficking; and
• the Minister's opinion that the person is a danger to the public or a danger to the security of Canada.

When deciding whether to continue detention, officers and members of the Immigration Division are not limited to these factors but always consider all the circumstances of the case.

Detentions: Where

Following an arrest, a person can be detained at a provincial correctional facility or at the minimum-security immigration detention centre in Montréal or Toronto. CBSA also has a facility in Vancouver for detentions of less than 72 hours.

Review of detentions

Within 48 hours of a person's detention, officers must review the reasons for the detention and have the authority to release the person with or without conditions. A person who has been detained for 48 hours must appear as soon as possible before a member of the Immigration Division of the IRB. Officers must present information to justify the continuation of detention. The member reviews the case and decides if the individual should remain in detention or be released with or without conditions. If the person is not released, a member of the Immigration Division must review the case again in seven days and then every 30 days.

Detention reviews before the Immigration Division are generally open to the public. However, they are held in camera if they concern refugee protection claimants or if the Division determines that there is:

• a danger to a person's life (for example, a person may be testifying in a case involving organized crime);
• a serious possibility that the fairness of the detention review would be jeopardized (for example, a woman may be reluctant to testify against her husband if the detention review is held in public); or
• a risk that information involving public security might be disclosed (for example, the detention review concerns a person who is inadmissible on security grounds).

Release from detention

People released from detention, either by an officer or a member of the Immigration Division, may have conditions imposed. They may also be required to deposit a sum of money (a deposit) or post a written agreement guaranteeing a specified amount of money (a guarantee for compliance).

A third person or a group of persons signs the deposits or guarantees. These people must be Canadian citizens or permanent residents who can ensure that the detainee obeys the conditions of release. If any conditions are broken, the money may not be returned. In the case of a guarantee, the signing person or persons may be required to pay the specified amount of money.

What changed with the introduction of the Immigration and Refugee Protection Act on June 28, 2002

Clearer grounds for detention While not limiting officers and members of the Immigration Division, the Regulations list specific factors that must be considered when detaining someone.

Requirement for warrants for arrest for permanent residents and protected persons This requirement recognizes the increased rights that accompany protected person status and permanent resident status.

Detention for identity The new Act permits the arrest of people in Canada who are uncooperative and fail to establish their identity, provided that they are not permanent residents or protected persons.

Streamlining detention reviews All detained individuals must appear before the Immigration Division within 48 hours of their arrest. Under the 1976 Act, those who were detained for reasons of questionable identity, or for suspicion of security threats or war crimes, appeared at a detention review seven days after their initial arrest.

Best interests of the child The new Act requires that children under 18 be detained only as a last resort. The best interests of the child must be taken into account when considering detention.

In-camera detention reviews involving refugee claimants Under the new Act, detention reviews for refugee protection claimants are held in-camera. This recognizes the need to protect the confidentiality of the claimant.

For media information