Fact Sheet

July 2009

Arrests and detentions

Snapshot

As part of their enforcement of the Immigration and Refugee Protection Act (IRPA), 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, if 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 a CBSA officer or by a member of the Immigration Division of the Immigration and Refugee Board of Canada (IRB) who may release the person outright or under certain conditions. The IRB is an independent tribunal and its members are trained in immigration law.

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

Who is responsible

CBSA officers at border crossings, airports and inland locations carry out arrests and detentions. After 48 hours, a member of the IRB's Immigration Division reviews the reasons for detention.

Arrests: How and why

CBSA officers can arrest foreign nationals and permanent residents who are suspected of breaching IRPA.

While arrests can be made with or without a warrant, CBSA officers must have a warrant to arrest a permanent resident or a person who is found to be in need of Canada's protection.

All immigration warrants are posted on the Canada-wide Canadian Police Information Centre Web site. The CBSA operates its own 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, CBSA officers can detain that person if they have reasonable grounds to believe that the person is inadmissible for any of the following reasons:

• The officer believes the person will not appear for immigration proceedings such as an examination or an admissibility hearing, or for removal from Canada;
• The officer believes the person poses a risk to the public because of past crimes, a history of physical violence, etc.; or
• The officer is not satisfied of the person's identity.

Detention at port of entry

CBSA 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 for the following reasons:

• It is necessary for the completion of an examination; or
• There are reasonable grounds to believe that the person is inadmissible for security reasons or because of human or international rights violations.

Minors

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

Canadian Charter of Rights and Freedoms

Whenever individuals are arrested or detained, the Canadian Charter of Rights and Freedoms requires that a CBSA officer 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 Immigration and Refugee Protection Regulations set out some factors to be considered when determining if a person should be detained. Some of the factors include the following:

• Does the person have criminal convictions, particularly those involving sexual offences, violence, weapons or drug trafficking?
• Has the person previously complied or not complied with any requirement under any act or regulations?
• Does the person have ties to the community?
• Is the peron willing to cooperate with the Government of Canada to establish his or her identity?
• Does the person have links to organized crime or organized human smuggling or trafficking?
• Is it the Minister of Public Safety's opinion that the person is a danger to the public or a danger to the security of Canada?

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. The 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, CBSA officers must review the reasons for the detention. These officers 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 IRB's Immigration Division. Officers must present information to justify the continuation of the detention. The Division 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, the Division member must review the case again in 7 days and then every 30 days after that.

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

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

Release from detention

People released from detention, either by a CBSA officer or by a member of the Immigration Division, may have conditions imposed on them. 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 can sign the deposit or guarantee. They 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.

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