Understanding Immigration Detention and its Review Process in Canada

The Canadian Border Services Agency (CBSA) may detain foreign nationals or permanent residents in serious situations as a last resort, such as when there is a concern for public safety or a flight risk. In these cases, regular detention reviews are conducted to assess whether an individual should remain in custody or be released under specific conditions. This process is vital to ensure fairness, timeliness, and the rights of the detained individual. The following blog post will explore the legal framework and process of detention reviews, reasons for immigration detention, and the rights of detainees. Additionally, we will discuss the factors that influence the decision on whether an individual should be released, alternative options, criticisms, and recent developments.

Legal Framework for Immigration Detention

In Canada, immigration detention and reviews follow the Immigration and Refugee Protection Act (IRPA) and its regulations (IRPR). The process also aligns with the Canadian Charter of Rights and Freedoms, which protects human dignity. The Canada Border Services Agency (CBSA) and the Immigration Division (ID) of the Immigration and Refugee Board (IRB) oversee the process. Court decisions, including those from the Supreme Court and Federal Court, may also influence outcomes.

Reasons for Immigration Detention

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.

Immigration Detention Review Process

The Immigration Detention Review Process includes several steps. A CBSA officer begins by reviewing the case within 48 hours to decide whether to maintain detention or release the individual under specific conditions. If the officer decides to keep the person in custody, a member of the IRB’s Immigration Division (ID) conducts a review within seven days and, if necessary, continues reviewing the case every 30 days. During each review, the ID member evaluates whether the detention still meets the required justification. To gain a deeper understanding of the detention review process in Canada, explore the Certificate in IRB Fundamentals.

Rights of Detainees

The Canadian Charter of Rights and Freedoms requires the government to treat detainees with humanity, respect, and dignity during custody and the review process. To meet these standards, the government must provide food, medical care, and safety. If authorities fail to do so or mistreat detainees, individuals can file a complaint with the Canadian Human Rights Commission or CBSA’s Recourse Directorate. When detention becomes prolonged or indefinite, detainees can request a judicial review from the Federal Court or file a habeas corpus application to challenge its lawfulness.

Detainees also have the right to legal representation by a lawyer or authorized immigration consultant. A professional can explain the reasons for detention, propose alternatives, and present evidence. While self-representation is possible, hiring a professional is strongly advised, as it can improve the chances of a successful outcome.

To ensure fairness, detainees may request a free interpreter. They and their representatives must be able to review any CBSA evidence before the hearing, including records of immigration violations or criminal activity. This access allows them to gather counterevidence and identify errors or inconsistencies. Detainees can present their side, introduce evidence, call witnesses, and cross-examine CBSA representatives or witnesses. Decision-makers must consider all arguments and evidence before reaching a conclusion.

Factors Considered in a Detention Review

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.

Alternatives to Detention (ATD)

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:

• Regular check-ins with authorities, such as meetings at a CBSA office and phone calls with officers.
• A close family member or friend may offer a financial guarantee, ensuring that the detained individual will attend a hearing or comply with specific conditions. If they fail to do so, the funds may be forfeited.
• Community supervision may be available through organizations collaborating with the government, such as providing resources like housing, counselling, or case management while ensuring that the individual complies with the IRB’s requirements.
• Electronic monitoring, such as wearing an ankle bracelet or using an app to check in with authorities.
• An IRB member’s decision to choose an alternative supervision method depends on factors like the detainee’s compliance history, safety risks, and personal circumstances, such as family impact or compassionate considerations. IRB members typically avoid detaining vulnerable individuals, particularly those with serious health conditions that could worsen in custody. They also rarely approve detaining children, allowing them to stay with detained parents only in exceptional cases to prevent separation.
  

Challenges and Criticism

Immigration detentions face several challenges and criticisms, emphasizing the need for regular, thorough reviews. Officials may prolong detention due to statelessness or diplomatic issues. Critics argue that indefinite detention violates human rights, especially when detainees are held in maximum-security prisons instead of proper immigration facilities. Even less extreme cases can cause serious strain, triggering anxiety and isolation. These feelings can worsen into mental health issues, especially for those already traumatized by war, persecution, or violence. Critics also highlight the impact on families, particularly when the detainee is a parent or the main income earner.

Recent Reforms and Policy Changes   

Recent reforms address key challenges in immigration detention. Authorities now place greater emphasis on alternatives to detention, supported by advances in technology, data collection, and tracking. When detention is necessary, regular reviews, transparency, and oversight remain essential. The Canadian government works with groups like the Canadian Red Cross to identify problems, improve facilities, ensure accountability, and promote safety, dignity, and better living conditions. In some cases, these efforts include separating immigration detainees from criminal inmates.

Conclusion

Canada’s immigration system uses detention to balance public safety, legal compliance, and individual rights, though authorities aim to use it only as a last resort. The challenges detainees face highlight the need for fair, transparent, and timely reviews. Advocates support more humane, cost-effective alternatives, especially for vulnerable individuals. Ongoing reforms focus on oversight and better conditions to protect rights while maintaining system integrity. As policies evolve, detention practices must reflect fairness, dignity, and justice.