Immigration matters

Sukhram Ramkissoon

Detention and release under Canadian immigration law

In the many years that I have represented clients at immigration hearings, I have  found that people  who come to my office often do not have  basic information about  detention and  release under Canadian law. I would like, therefore, to discuss  this subject in this week’s column.

Immigrants and non-immigrants may be detained by Canada Border Services agents for violations under the Immigration and Refugee Protection Act.

Under immigration law, an officer may issue a warrant for the arrest and detention of a permanent resident or foreign national.  In this case, the officer would have reasonable grounds to believe this person is inadmissible to Canada, may be a danger to the public or he/she is unlikely to appear for examination, admissibility hearing or removal from Canada.  These are very broad powers granted to officers in the execution of their duties.

Likewise, the law also permits officers without a warrant, to arrest and detain a foreign national, other than a protected person, on similar grounds.

A permanent resident or foreign national may also be detained upon entry to Canada, if the officer considers it necessary to do so in order for the examination to be completed. If the officer also suspects that a permanent resident or foreign national is inadmissible on grounds of security or for violating human or international rights.

The law also requires that as soon as a permanent resident or foreign national is detained, the officer without delay, shall give notice to the Immigration Division.

Now let  us look at the question of release.

An officer may order release of a detained person before his/her first detention review.  The officer may also impose any conditions including the payment of a deposit/bond or posting of a guarantee for the compliance in the conditions of release.

Further, the law requires that within 48 hours of a person’s detention, the Immigration Division must review the reasons for continued detention.  Unfortunately, weekends are usually not considered as part of this time.  For example, if a person is detained on Friday, their first expected Detention Review would be Tuesday.

If the person is not released at his/her first review, the continued detention must be reviewed once during the seven days following the first review, and at least once during each 30 day period following each review. The Immigration Division must review the reasons for the continued detention and they have the power to either release the person or continue  his or her detention at the holding center.

So let us look at what takes place at these detention reviews. At the first or any subsequent review, the detainee (person who is detained) is entitled to legal counsel at his/her expense.

At the hearing, there are three parties:

(1) The Member of the Immigration Division who decides the fate of the detainee

(2) A Hearing Officer who represents the Minister of Public Safety and Emergency Preparedness

(3) The detainee with/without his/her representative.

In some instances, at the first 48 hour detention review, counsel for the detainee and the Hearing Officer can agree to the release of the detainee.  This is based on the circumstances of the case. A joint recommendation is made to the Member who usually agrees to the imposition of a cash bond or otherwise.  The detainee is then ordered release and strongly advised to strictly adhere to the conditions of his/her release. If not, that person can be retaken into custody.

A person may be  ordered for continued detention, based on the circumstances.   The hearing officer will present a narrative of the detainee’s past Canadian immigration history, providing information on how he or she entered Canada, the present status of the detainee, past applications and the reason for his/her detention.  In some cases, it may include the detainee’s past non-cooperation with CBSA, failure to report as required to an officer or failure to leave Canada as so ordered by CBSA.  The hearing officer may also submit that the detainee is a flight risk or danger to the public.  The officer may also oppose the detainee’s release by objecting to family members as suitable bondspersons if they have assisted him/her in eluding the CBSA.

The representative for the detainee, usually submits positive factors for release, such as close family members, spouse in Canada, children, pending application and a sizable bond.  Counsel may also suggest stringent terms and conditions to be placed on the detainee. But, the decision lies with the Member to order his/her release.

Based on public information, there are hundreds of persons currently detained in high security Canadian jails and immigration detention centers across Canada. A recent news story  highlighted the case of a person who spent seven years in maximum security because CBSA was not able to deport him back to his home country.  Another person spent 18 months “for no reason at all,” but was later released by an Ontario Superior Court Justice.

Detention is a very serious matter and permanent residents and foreign nationals are advised  to abide by the law to  avoid  this situation.

SUKHRAM   RAMKISSOON   is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.