Authored by Amit Vinayak, Barrister & Solicitor, Law Society of Ontario, Member of CILA
Canadian immigration law provides a framework for the detention of foreign nationals and permanent residents under specific circumstances, with the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) playing a central role in reviewing these detentions. The process is governed primarily by the Immigration and Refugee Protection Act (IRPA) and its associated regulations.
Grounds for Immigration Detention
- An individual may be detained by immigration authorities if there are reasonable grounds to believe they are inadmissible to Canada and pose a danger to the public, or are unlikely to appear for an examination, admissibility hearing, or removal from Canada (Immigration and Refugee Protection Act – Laws.justice.gc.ca, [55(1)], [55(2)(a)]).
- Detention can also occur if an officer is not satisfied of the individual’s identity (Immigration and Refugee Protection Act – Laws.justice.gc.ca, [55(2)(b)]).
- Upon entry into Canada, a person may be detained if an officer deems it necessary to complete an examination or has reasonable grounds to suspect inadmissibility on security or human rights grounds (Immigration and Refugee Protection Act – Laws.justice.gc.ca, [55(3)]).
- The ID itself may order detention if it is satisfied that a permanent resident or foreign national is subject to an examination, admissibility hearing, or removal order, and is a danger to the public or unlikely to appear (Immigration and Refugee Protection Act – Justice Laws Website, [58(2)]).
- For designated foreign nationals, the ID is mandated to order continued detention if specific grounds exist (Immigration and Refugee Protection Act – Justice Laws Website, [58(1.1)]).
The Detention Review Process
When an individual is taken into detention, an officer must promptly notify the Immigration Division (Immigration and Refugee Protection Act – Laws.justice.gc.ca, [55(4)]). The detention review process is designed to ensure regular oversight of immigration detention.
- The initial review must occur within 48 hours of detention, followed by another review within seven days, and then at least every 30 days thereafter.
- For designated foreign nationals aged 16 or older, the initial review is within 14 days, and subsequent reviews occur every six months.
At each review, the Minister bears the ongoing burden to justify the continued detention on a balance of probabilities. The ID must consider various factors, including the reason for detention, the length of time already spent in detention, the likelihood and potential duration of continued detention, any unexplained delays or lack of diligence, and the availability of alternatives to detention (Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29 (CanLII), [55]). The legal burden to justify detention never shifts to the detainee during these hearings (Hemond v. Canada (Citizenship and Immigration), 2024 FC 1980 (CanLII), [46]).
Rights of Detainees
Individuals in immigration detention have fundamental rights, including
- the right to counsel,
- the right to an interpreter, and
- the right to be present at their detention review hearings.
- Importantly, detainees are not compelled to testify at these hearings, and no adverse inference can be drawn from their silence.
The principle of non-compellability, as a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms, applies to immigration detainees at detention review hearings under section 57 of the IRPA. Decisions by an ID member to compel a detainee to testify have been found to be unreasonable as they unjustifiably limit these Charter rights (Hemond v. Canada (Citizenship and Immigration), [5], [82]).
Special Considerations for Minors
The best interests of the child (BIOC) are a primary consideration in all decisions involving minors. The detention of minors is considered a measure of last resort and should be for the shortest possible duration.
Alternatives to Detention (ATDs)
Detention is considered a measure of last resort in the Canadian immigration system ([PDF] ENF 34: Alternatives to Detention program – Canada.ca). At every detention review, the ID must consider alternatives to detention (ATDs). These alternatives are designed to mitigate identified risks while allowing individuals to remain in the community. Common ATDs include:
- Reporting Conditions: Requiring individuals to report regularly to immigration authorities.
- Financial Guarantees: A deposit of money to ensure compliance with release conditions ([PDF] ENF 34: Alternatives to Detention program – Canada.ca).
- Community Case Management and Supervision (CCMS): This program provides in-community support to manage and mitigate risk, particularly for individuals who lack a bondsperson or require additional support ([PDF] ENF 34: Alternatives to Detention program – Canada.ca).
- Electronic Monitoring (EM): Utilizing technology like GPS to monitor an individual’s whereabouts ([PDF] ENF 34: Alternatives to Detention program – Canada.ca).
ATD options can be combined to effectively offset various risks. Conditions of release must be tailored, proportionate, and minimally impair an individual’s liberty ([PDF] ENF 34: Alternatives to Detention program – Canada.ca).
Challenging Detention
While the ID has jurisdiction over the grounds for detention and release, it does not have authority over the location or conditions of detention. Lengthy or indeterminate immigration detention may be challenged through an application for habeas corpus if the IRPA’s review process is deemed inadequate.
The Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, held that the IRPA’s review procedure is not as broad and advantageous as habeas corpus when challenging the legality of detention based on its length and uncertain duration (Canada (Public Safety and Emergency Preparedness) v. Chhina, [59], [68]). This is because the onus in detention reviews is less advantageous to detainees, the scope of Federal Court review is narrower, and habeas corpus offers a more timely remedy (Canada (Public Safety and Emergency Preparedness) v. Chhina, [59]).
However, the Federal Court of Appeal in Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, affirmed that the immigration detention scheme, with its robust and timely review mechanisms, the Minister’s burden of proof, and judicial scrutiny, does not infringe sections 7, 9, or 12 of the Charter (Brown v. Canada (Citizenship and Immigration), 2020 FCA 130 (CanLII), [22], [37]).
Conclusion
Immigration detention in Canada is a significant legal measure, reserved for circumstances where there are serious concerns about public safety, flight risk, identity, or ongoing investigations into inadmissibility. The process is governed by clear statutory and regulatory frameworks designed to ensure that detention is not arbitrary and that individual rights are protected. Detention review hearings before the Immigration Division of the IRB provide detainees with regular, meaningful opportunities to challenge their continued detention and to propose alternatives that may allow for release under appropriate conditions.
Ultimately, the detention review process is a cornerstone of procedural fairness in Canadian immigration law, reinforcing the principle that deprivation of liberty must always be justified, proportionate, and subject to independent review.
About the Author:
Amit Vinayak
Barrister & Solicitor
Partner, MDVD Lawyers LLP
LSO # 82057U
Disclaimer:
The content provided in this article is intended for general informational purposes only and does not constitute legal advice. Readers should not act upon any information contained herein without first seeking appropriate legal or professional counsel based on their individual circumstances. The author and the publisher disclaim any liability in connection with the use of this information.
