Detention Review Legal Aid

When the Canadian Border Services Agency detains a person, a detention review is held to determine whether the detention should be continued under the Immigration and Refugee Protection Act. Detention Reviews are conducted by the Immigration Division (ID) of the Immigration and Refugee Board.

CBSA may detain 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

CBSA may also detain if it has reasonable grounds to suspect that the person:

• is inadmissible, i.e. not allowed to enter or remain in Canada, for security reasons or for violating human or international rights, serious criminality, criminality or organized criminality.

CBSA may also detain if the officer is not satisfied that the person:

• has established his/her identity. This only applies to foreign nationals.

The person may be held in a minimum security immigration holding centre or in a provincial correctional facility.

Within 48 hours of detention, or as soon as possible afterwards, the ID will review the reasons for the detention. An ID member will preside over the hearing. The process is adversarial, which means there are two opposing parties, i.e. the person who is detained and the Minister’s counsel for the CBSA.

The member will hear arguments from the Minister’s lawyer about why the detention of the person should continue. To support its claims, the Minister’s counsel may use examples of times when you did not show up to an appointment or to a removal, broke the law or were not reliable. He or she can also present examples of past violent behavior, criminal convictions, problems related to substance abuse.

CBSA can also provide information about steps they are taking to find out if you are inadmissible for reasons of violation of human or international rights, serious criminality, criminality or organized criminality. CBSA only has to prove that it has a reasonable suspicion and that they are investigating this.

Once the Minister’s counsel has made submissions, the person detained or his/her lawyer can then respond and provide evidence to refute CBSA’s claims.

If the member orders continued detention, the detainee will appear for another detention review within 7 days of the first hearing. The ID will then hold further hearings every 30 days for as along as the person is detained. The person may ask for an early review at any time, but must present new facts or evidence to justify this request.

If the member finds that there is no longer a reason to continue detention, the member may order the person to be released. The member may also order certain conditions such as posting a cash bond, reporting on a regular basis to an immigration office, obeying a curfew etc. These conditions for release continue to apply until you are removed from Canada or until they have been changed or cancelled.

Either the detainee or the Minister’s counsel may apply for permission to the Federal Court of Canada to judicially review the ID’s decision.