Fact Sheet

October 2012

Overview of the CBSA's Immigration Detention Program

This fact sheet explains why and how the Canada Border Services Agency (CBSA) uses detention, the key principles that govern our practices and how we ensure the safety and well-being of those who are being detained for immigration purposes.

Protecting Canadians

To protect the safety, health and security of Canadians and the integrity of our border, Canada's immigration laws permit the CBSA to detain individuals.

When making detention decisions, CBSA officers are guided by Canada's immigration laws and regulations, as well as by the CBSA's guidelines for its detention program. Each decision is assessed on its own merits, and officers always consider the impact releasing someone into the community would have on the safety of Canadians. For example, in 2011-2012, the CBSA detained 9,929 individuals out of the 98.7 million people (including returning Canadians) processed by the CBSA. (To note, Statistics Canada reported that 25 million non-residents entered the country in 2011.)

Detention guidelines (PDF, 152 KB) require officers to consider all reasonable alternatives before detaining someone for immigration purposes. In fact, the CBSA relies upon a variety of alternative measures to detention when appropriate and where specified conditions are met, such as reporting requirements, deposits and guarantees.

Why detention is sometimes necessary

An individual is detained when a CBSA officer has reasonable grounds to believe that the person is inadmissible and could pose a danger to Canadians, is unlikely to appear for immigration proceedings, or his or her identity is in question. Detention is sometimes also used prior to removing someone from Canada because it is at this stage when the risk of someone going underground is highest. For more detailed information on the grounds for detention, please consult the Arrests and Detentions Fact Sheet.

It's important to note that there are a number of checks and balances regarding an officer's authority to detain someone under normal immigration rules. Within 48 hours, a second officer will always review the decision to detain and consider any new information. Should this officer determine that the grounds for detention no longer exist, he or she can authorize the person's release under certain conditions.

After the first 48 hours, it becomes the responsibility of the Immigration and Refugee Board (IRB), an independent, quasi-judicial tribunal, to determine whether detention is still warranted. IRB reviews are conducted 48 hours after a person is detained and subsequent reviews are carried out within the following seven days and every 30 days thereafter. For more information on detention reviews, visit the IRB Web site.

Key detention principles and the rights of detained individuals

In the execution of its mandate, the CBSA consistently strives to meet its domestic and international detention obligations and respect the Canadian Charter of Rights and Freedoms. Key principles involve ensuring the health, well-being and safety of all people held for immigration purposes. These individuals have several rights, including the right to:

• Be informed about the reason(s) for their detention;
• Be informed about the right to be represented by a lawyer;
• Be put in contact with a representative of their country's embassy or consulate;
• Be assisted by an interpreter if the individual does not understand or speak the language in which immigration proceedings are being conducted (English or French).

As well, individuals can speak to a CBSA officer about any aspect of their detention. The officer will look into any complaint as soon as possible. Individuals may also raise any concerns during their detention reviews before the IRB.

Services provided to individuals in detention

Every individual has access to medical services. For example, there are doctors and nurses on site and after-hours medical support is available at CBSA facilities. As well, social workers and representatives from NGOs regularly visit the CBSA's immigration holding centres.

Detained individuals can have visits from family members, friends and community groups, use the telephone and receive mail.

Special considerations for vulnerable people

Children

CBSA legislation and policy is clear when it comes to detaining children: they are detained only as a last resort and only after officers carefully consider what is in their best interest. CBSA officers will consider alternatives such as transferring the child to the care of provincial child protection services when there are no issues with the safety or security of the child. However, if a child is detained, it will be for the shortest time possible. For example, in 2011-2012, children were detained on average for 6.6 days and represented 3.1% of all CBSA detentions.

Some of the factors that officers consider when making a decision to hold a child in detention include the availability of alternative childcare arrangements; the anticipated length of detention; the risk of continued control by human smugglers or traffickers; the availability of separate living areas for children and their parents or guardians; and access to counselling, education and recreation services. CBSA immigration holding centres have separate living areas for families and, if they are held more than seven days, children will have access to a teacher.

Generally, unaccompanied children (children who are detained and have no parent or guardian to care for them) are released to a child protection agency or family members. Accompanied children may be permitted to remain with their detained parents in an immigration holding centre if a CBSA officer considers it to be in their best interest and appropriate facilities are available. While in detention, children have access to the outdoors, a play area, and schooling is provided. As well, during immigration proceedings before the IRB, a representative is assigned to represent the best interests of unaccompanied children and vulnerable people (see next section for more details).

Others

CBSA policy is also clear about the grounds for detaining other vulnerable individuals: where safety or security is not an issue, detention is to be avoided or considered only as a last resort for elderly persons; pregnant women; persons who are ill or disabled; and persons with behavioural or mental health problems.

However, if detention is required (for example, due to a flight risk), CBSA guidelines state that detention should be for the shortest time possible and primarily focused on supporting the removal of that individual.

The CBSA may transfer an individual with a mental illness to a provincial detention facility that offers dedicated access to mental health services, or consider alternative forms of detention.

Facilities used for immigration detention

People are detained in either a CBSA-run immigration holding centre (Laval, Quebec; Toronto, Ontario; a short-term facility in Vancouver, British Columbia) or a provincial correctional facility. Where individuals are held depends on which facilities are available and the degree of danger or risk these individuals pose to themselves or others. In 2011-2012, for example, 71% of people detained were held in a CBSA immigration holding centre.

The CBSA works closely with its provincial correctional partners to ensure limited interaction, where possible, between immigration detainees and individuals detained for criminal reasons. A CBSA officer is assigned to their case while they are in provincial or CBSA facilities.

Release from detention

People released from detention may be required to report to the CBSA on a regular basis and meet specific conditions, including:

• a deposit: money provided by a guarantor to make sure the individual respects the conditions of release. Generally, the money is returned to the guarantor within six to eight weeks after the conclusion of the immigration proceeding, provided conditions of release were met.
• a guarantee: the guarantor (a Canadian citizen or permanent resident) promises to pay a sum of money if the released individual does not respect the conditions of release.

Program integrity and independent monitoring

The CBSA maintains the highest standards for program integrity and oversight of its detention program. Its quality assurance program, as well as numerous internal and external audits and evaluations, ensures that the CBSA consistently strives to ensure that its national detention program conforms to domestic and international protocols.

The Canadian Red Cross, an independent and non-profit organization, monitors detention conditions in each CBSA facility, as well as in correctional facilities in several provinces, to ensure that national standards and international obligations are met.

At the same time, the CBSA regularly consults stakeholders and NGOs, such as the United Nations High Commission for Refugees in Canada, about detention issues and takes their recommendations into account as a means to continuously improve detention conditions.