Author: tatilabhavocats

Understanding Detention Review in Canada

29-2-24  Immigration

In Canada, individuals may be detained by the Canada Border Services Agency (CBSA) under
specific circumstances as outlined in the Immigration and Refugee Protection Act. Detention
may occur for various reasons, including but not limited to, incomplete examination, unclear
identity, inadmissibility concerns related to security, serious criminality, or potential danger to the
public. Detainees are usually held in provincial correctional facilities or minimum-security
immigration holding centers located in major cities such as Toronto, Montreal, and Vancouver.
Here’s a summary of the process:

Under section 57 (1) of the Immigration and Refugee Protection Act, individuals taken into
detention are entitled to have the Immigration Division of the Immigration and Refugee Board
review the reasons for their continued detention within 48 hours. This excludes weekends,
meaning detentions on Thursdays or Fridays lead to hearings the following Monday or Tuesday.

This initial review is crucial as it assesses the reasons for continued detention. Detainees have
the right to legal representation, which can be self-funded or provided through legal aid if
eligibility criteria are met. Furthermore, detainees can contact their embassy or opt for the
United Nations High Commissioner for Refugees in Canada to be informed of their detention.

The Detention Review Hearing Process

During the detention review hearing, an IRB member oversees the proceedings. The CBSA
representative presents evidence supporting the detention, while the detainee, through personal
testimony or counsel, can contest the reasons for detention and propose conditions for release.
Factors such as the risk to the public, flight risk, and identity verification are thoroughly
examined. The hearing offers a platform for both parties to present their cases, and the IRB
member makes a decision based on the evidence and arguments presented.

Detainee Rights

During the detention review process the detainee has certain rights which are guaranteed, theseinclude the following:

  • Representation by counsel at one’s own expense or through legal aid if eligible.
  • Information on available legal aid services.
  • Option to have a friend, organization, or association member represent them.
  • Notification of detention reasons.
  • Right to contact their embassy or country’s consulate.
  • Assistance from an interpreter if required due to language barriers.
  • Appointment of a designated representative for minors or those unable to comprehend
  • the proceedings.

Review Process:

Delving into the detention review process reveals the structured approach Canada takes when
dealing with these maters. This section outlines the procedural intricacies involved, from the
initial hearing setup to the crucial decision-making moments that determine an individual’s
detention status.

  • Introduction and Purpose: The Immigration and Refugee Board member leads thereview, aiming to ensure the detention’s fairness and legality. The member’s role iscrucial in introducing the hearing’s participants and outlining the review’s scope andintent​​.
  • Presentation of Reasons for Detention: The Canada Border Service Agency presents itsrationale, detailing why the individual’s detention is deemed necessary. This may includeconcerns related to identity, security, or risk to the public, and the detainee’s chance torespond is a critical part of this process​​.
  • Detainee’s Response: Individuals have the opportunity to counter the agency’s claims,presenting their story and any relevant information or evidence. This personal account,or one delivered by legal representation, is vital for a fair assessment​​.
  • Interactive Dialogue: The review is dynamic, with the possibility of questions from themember to the detainee. This interaction helps clarify the situation, ensuring the memberhas a comprehensive understanding before making a decision​​.
  • Conclusion and Decision Making: After considering all testimonies and evidence, the member concludes the review by deciding on continued detention or release. Thisdecision, often delivered at the hearing’s end, is based on a thorough evaluation of thepresented facts​​.

Factors Taken into Consideration

The following criteria are used during detention reviews to assess whether an individual should
remain in custody. This involves evaluating the risk they may pose to public safety, their
likelihood to comply with immigration procedures, and any legal issues that might influence their
detention status.

  • Public Safety: The assessment includes the individual’s potential danger to the public ornational security, such as associations with criminal organizations or involvement inserious crimes.
  • Flight Risk: Factors like past compliance with immigration laws, the likelihood ofappearing for future proceedings, and ties to the community in Canada are considered togauge the risk of the individual absconding.
  • Legal and Criminal History: The review takes into account past convictions, both withinand outside Canada, especially those related to violence, drug trafficking, and otherserious offenses.

Hearing Outcomes

The outcomes of a detention review can significantly impact an individual’s situation under
Canadian immigration law. These decisions, taken by the Immigration and Refugee Board
member, range from conditional release to continued custody, each with its own set of
stipulations and possibilities for further legal action.

  • Release with Conditions: Individuals may be granted freedom, subject to specific conditions aimed at ensuring compliance with future immigration procedures, such as mandatory periodic check-ins or the provision of a financial guarantee to the authorities.
  • Continued Detention: If the reviewing member deems continued detention necessary, based on factors like public safety or flight risk, the individual remains in custody. This decision is periodically reassessed in subsequent detention review hearings.
  • Judicial Review: Detainees have the recourse to appeal the detention decision by requesting a judicial review from the Federal Court of Canada, offering a higher level of scrutiny over the detention’s validity.

Alternatives to Detention and Hearing Outcomes

In the Canadian immigration context, alternatives to detention offer a humane approach for
individuals awaiting decisions. These alternatives encompass a variety of conditions such as
reporting to the CBSA, adhering to curfews, and living arrangements. Importantly, the
introduction of bonds—either as a deposit or a guarantee—provides a financial incentive for
compliance. The decision on the suitability of these alternatives is determined during hearings,
ensuring each case is assessed on its individual merits and circumstances.

Release Plans

An alternative to detention is a release plan, subject to specific conditions that the detainee
agrees to. The conditions of the plans can include:

  • Sharing residential address with the CBSA
  • Regular check-ins with the CBSA
  • Compliance with curfew rules
  • Residing with an identified individual
  • Refraining from alcohol and drug use
  • Adhering to any additional case-specific conditions
  • Continued Reviews and Legal Recourse

Posting Bond

Bonds serve as an effective detention alternative, allowing detainees to be released under
financial assurances that they’ll adhere to specified conditions.

  • Deposit Bond: Involves a cash amount paid upfront, refundable if the detainee complies with all conditions. Non-compliance leads to forfeiture of the deposit to the government.
  • Guarantee Bond: Requires a bondsperson to commit to paying a specified amount if thedetainee fails to meet conditions, with the bondsperson needing to demonstrate financialcapability and commitment to ensuring the detainee’s compliance.

After the Initial Detention Review Hearing

After the Immigration Division member hears from both the CBSA representative and the detainee (and their counsel), a decision on release or continued detention is made, typically announced at the hearing’s conclusion. If detention continues, subsequent reviews are scheduled—initially within 7 days, then every 30 days thereafter, allowing for new evidence or changes in the detainee’s situation to be presented. Released individuals must adhere to their release conditions until either removed from Canada or the conditions are modified or revoked.

At Hasa Attorneys, we understand the complexities and nuances of the detention review process. Our team is committed to offering comprehensive legal support, ensuring that our clients are well represented and informed throughout their detention review hearings. With our experience, we aim to maximize the chances of a favorable outcome, advocating for the rights and freedoms of our clients in the face of challenging immigration proceedings.

For those facing detention or involved in the detention review process, partnering with experienced legal counsel is paramount. Hasa Attorneys provides legal guidance and representation needed to navigate the intricacies of detention review, working tirelessly to secure the best possible results for our clients.

The detention review process is a critical component of Canada’s immigration system, designed to ensure fair treatment and due process for detained individuals. By understanding your rights, the hearing process, and the potential outcomes, you can better prepare for and navigate this challenging aspect of immigration law.

Remember, you do not have to face this alone; Hasa Attorneys is here to stand by your side,
offering the legal advice and support you need during this pivotal time.

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