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In Canada, Immigration Detention and its Reviews are conducted under the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR). The review process is also in alignment with the Canadian Charter of Rights and Freedoms, which ensures respect for human dignity. Moreover, the Canada Border Services Agency (CBSA) and the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) are involved. Case law and precedents, including decisions from the Supreme Court and Federal Court, can also play a role.
There are several reasons why the CBSA may detain a foreign national or permanent resident. For instance, this could occur if there are reasonable grounds to believe that an individual might fail to appear for an immigration proceeding. In other cases, their identity might be unverifiable, or they pose a danger to public safety. Links to criminal activities, including human rights violations, threats to national security, or other serious crimes like gang violence, war crimes, and organized crime, also provide grounds for the arrest of an individual.
The Immigration Detention Review Process consists of several steps. Initially, a CBSA officer conducts a review within 48 hours to determine whether detention is necessary or if the individual can be released under certain conditions. If the person remains in custody, a member of the IRB’s Immigration Division (ID) will hold regular reviews, firstly within seven days and, if applicable, every 30 days until the individual can be released. Each time, the ID member assesses whether the detention remains justified. Explore the Certificate in IRB Fundamentals to gain deeper insight into the detention review process in Canada.
As outlined in the Canadian Charter of Rights and Freedoms, the Canadian government is committed to ensuring that detainees are treated with humanity, respect, and dignity while in custody and throughout the review process. Therefore, they are guaranteed basic necessities, including food, medical care, and safety. If these needs are not met or they face poor conditions or mistreatment; detainees can file a complaint with the Canadian Human Rights Commission or CBSA’s Recourse Directorate. In situations where detention becomes prolonged and appears indefinite, detainees can seek a judicial review from the Federal Court or file a habeas corpus application, arguing that the detention is unlawful.
A detainee’s right to legal representation by a lawyer or an authorized immigration consultant is also fundamental. A professional can assist affected individuals in understanding the reasons for their detention, proposing alternatives, and gathering and presenting evidence in support of the detainee. While self-representation is an option, hiring a professional is strongly recommended, as this can significantly enhance someone’s chances of effectively arguing their case.
Another way to ensure detainees can participate fairly in a hearing is by allowing them to request a free interpreter. They and their legal representatives must also have the opportunity to review any evidence the CBSA plans to use during the hearing, which may include records of prior immigration violations and criminal activity. This access enables the defendant to gather counterevidence and pinpoint errors or inconsistencies in the CBSA’s case. They also have the right to share their perspective, introduce evidence, call witnesses, and cross-examine CBSA representatives or witnesses. Every argument and piece of evidence must be considered before a decision is reached.
The IRB carefully considers many factors influencing the case to determine whether the detention of an individual is justified. In doing so, representatives aim to balance public safety with fairness. IRB members not only assess the reasons for detaining the individual but also assess reasonable alternatives, whether the individual has cooperated with immigration authorities, and whether the detention is prolonged or indefinite. Additionally, they must consider the individual’s potential removal from Canada, medical concerns, negative family impacts, and charter rights violations.
As mentioned, due to the harsh nature of immigration detention, the government views this measure as a last resort. Often, alternatives can be found that mitigate adverse impacts while holding the individual accountable. These alternatives may allow people to be with their families and focus on their health and well-being. Additionally, alternatives are more affordable, benefiting everyone involved. Below are some common examples:
The likelihood of an IRB member selecting an alternative method of supervision is influenced by several factors, including the detained individual’s history of compliance with regulations, safety risks, and other elements affecting their situation. These may include the impact of detention on their family and other compassionate considerations. For instance, vulnerable individuals, like those with serious health conditions that could deteriorate due to limited medical resources in custody, are rarely detained. This also applies to children, who may be housed with detained parents only in exceptional circumstances to avoid separation.
There are several challenges and criticisms regarding immigration detentions, making thorough and regular reviews even more essential. For instance, prolonged detentions can occur due to a person’s statelessness or diplomatic barriers. Some argue that indefinite detention constitutes a violation of human rights, especially when detainees are held in provincial maximum-security prisons instead of designated immigration detention facilities. While these may be extreme cases, any form of immigration detention can impose significant strain on individuals and may lead to anxiety about an uncertain future and feelings of isolation. These emotions may develop into more serious mental health issues over time, which can be significantly worsened by existing trauma that some detainees may have endured in their home countries, such as war, persecution, or violence. Moreover, critics often address the struggles a detainee’s family faces, especially when the individual is a parent or the primary source of income for the family.
Some reforms and policy changes have been implemented to tackle existing challenges. For instance, there is now a greater emphasis on alternatives to detention than ever before, a shift driven by advancements in technology, data collection, and tracking systems that facilitate this transition. However, when detention is unavoidable, enhanced transparency and oversight in the detention process, along with mandatory regular detention reviews, are crucial. The Canadian government has also collaborated with organizations such as the Canadian Red Cross to pinpoint areas for improvement, invest in better facilities, hold authorities accountable, and ensure enhanced living conditions, safety, and dignity. In some instances, these efforts include separating immigration detainees from those within the criminal justice system.
Immigration detention in Canada is a complex process aimed at balancing public safety, legal compliance, and individual rights. While detention is intended as a last resort, its challenges and impacts on detainees highlight the importance of fair, transparent, and timely reviews. Alternatives to detention offer more humane and cost-effective solutions, particularly for vulnerable individuals. Ongoing reforms, including increased oversight and improved detention conditions, demonstrate a commitment to upholding fundamental rights while maintaining the integrity of Canada’s immigration system. As policies evolve, it remains essential to ensure that detention practices align with principles of fairness, dignity, and justice.
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