|
|
Legal Line® provides Free legal information to Canadians through its website, telephone and fax-on-demand systems.
1,000 topics are covered within 35 areas of law...
Search...
Ontario|Immigration LawGeneral Information 684 Arrest and Detention
- When can someone be arrested or detained?
Canadian immigration law provides that any person who is not a Canadian citizen can be detained while Immigration decides if he or she can enter Canada.
There are basically two situations where an individual can be instantly detained: First, when the individual is attempting to enter Canada, second after the individual is in Canada. The issue of continued detentions is determined at an immigration inquiry.
- Arrest upon entry
Immigration officers have the right to question everyone who is attempting to enter a Canadian border. You must answer the immigration officers questions if you want to enter. Your answers may be written down, or entered into their computers. Any information you give can be used in subsequent immigration proceedings.
Immigration officers may detain you if they believe that:
1. you are not who you say you are,
2. you are not coming to Canada for the reason you say you are,
3. you were deported or excluded from Canada in the past, and you are attempting to re-enter without the proper written permission from Immigration Canada,
4. you will not leave Canada as directed,
5. you will be dangerous to others or to yourself, and
6. you do not meet proper immigration requirements, such as sufficient funds to visit Canada.
- Arrest while in Canada
Even if you manage to pass through the Canadian border, once you are inside Canada, Immigration officers or police officers can arrest you. They can arrest you, if they have reasonable grounds to believe that you are a danger to others or to yourself, that you will not appear for an examination, inquiry or removal from Canada in addition to any of the following 9 reasons:
1. you are working in Canada without a valid work permit,
2. you have stayed in Canada after your visitor's visa status has expired,
3. you entered Canada illegally,
4. you entered Canada with a false passport,
5. you were deported or excluded from Canada but came back without the written permission of Canada's Minister of Immigration,
6. you did not notify Immigration of a change of address when you moved,
7. you did not leave Canada by the date given in your departure notice,
8. you did not show up for a hearing, interview, or your removal, or
9. for some other reason your case has come to the attention of an Immigration officer, such as if you are charged with committing a crime.
Immigration officers and the police do not need a warrant to arrest you if an order for your removal has been made or if they suspect that you have violated certain provisions of the Immigration Act, and you are not a permanent resident. If you are arrested, the arresting officer must tell you why. The arresting officer can search you.
If an Immigration or police officer asks you questions when you are not in an immigration inquiry, you do not have to answer them, although you should identify yourself.
If you are arrested while in Canada, you have the right to consult with a lawyer, and the Immigration officer who arrests you must inform you of this right. You do not need to answer questions until you have spoken with a lawyer. However, if you are being arrested because of a simple misunderstanding, it may be a good idea to explain the situation. For example, if you were arrested because you did not show up for an Immigration appointment, but you have a letter from a different Immigration officer where you have just reported.
- Detention at an immigration inquiry
In rare cases, you could be arrested at an Immigration inquiry. All Immigration inquiries are followed by detention reviews if needed. An inquiry is a hearing held before an Immigration adjudicator to decide whether you can enter or stay in Canada. You have the right to legal counsel at an inquiry. The adjudicator has the power to detain you during your inquiry, or when your inquiry ends.
Before you go to an inquiry, it is a good idea to arrange for someone who can post a bond on your behalf if you are detained. This person is known as a guarantor. A guarantor is a person who signs a performance bond or deposits money with Immigration on your behalf. To be accepted as a guarantor, the person must be a Canadian citizen or permanent resident of Canada, and at least 19 years old. The guarantor must be able to show that they can pay the money if you break the terms and conditions of the bond. For example, the guarantor could show that they own property, have savings, or have income from employment.
If you are detained at an inquiry because Immigration saw you as a danger to the public, having a guarantor will probably not be enough to get you released.
- Where are people held?
If you are detained by Immigration, you will be taken to an Immigration office or police station for questioning. Later you will be held at an Immigration detention center. If there is no immigration center where you live, you will be held in jail. You may also be detained in jail as opposed to an immigration detention center, if Immigration believes that you are a danger to others or to yourself. For example, you could be detained in a jail if you have criminal charges or convictions, or if you have threatened suicide.
- How can people get released
There are 2 ways that a person can be released from detention; first, after a review by a senior Immigration officer (SIO) or second, by an adjudicator at a detention review hearing or an inquiry.
Soon after you are arrested or detained, a senior Immigration officer will be notified. If this officer believes that you are not a danger to others or to yourself, and that you will show up for interviews, hearings or removal, they can order your release at any time before your first detention review hearing. However, this rarely happens.
If the senior immigration officer does not release you within 48 hours of the Immigration authorities becoming aware of your detention, you will get a detention review hearing before an adjudicator. This hearing is supposed to take place within 48 hours of your arrest. However, if you are arrested on a Thursday or Friday, your hearing might not take place until Monday, and often there are delays because of lack of resources.
The adjudicator will review your case and the reasons for your detention. A case presenting and review officer will make submissions on behalf of Immigration. You will also have the opportunity to present evidence and make submissions. It is up to you to convince the adjudicator that you should be released.
You will be released if the adjudicator decides that:
1. you are who you said you were when you arrived at the airport or border,
2. there is no reason to believe you will not show up for hearings, interviews, or removal, and
3. you are not a danger to others or to yourself.
In most cases you will need to post cash and a substantial bond and agree to certain conditions in order to be released.
- Typical terms and conditions upon release
If a senior officer or an adjudicator decides to release you, you may have to agree to certain terms, such as:
1. to report any change of address to Immigration 48 hours before moving,
2. to cooperate in obtaining travel documents needed for your removal
3. to agree to report to an Immigration office regularly, or
4. to agree to be supervised by a third party.
You may also be required to make a security deposit or have a performance bond signed on your behalf. A security deposit is money deposited with Canada Immigration to ensure that you will comply with the terms and conditions of your release. If you break any of the terms or conditions, Immigration will keep the money. With a performance bond, money is not actually deposited with Canada Immigration. Instead, your guarantor signs a bond on your behalf for a certain amount of money. If you break any of the terms or conditions without a good reason, your guarantor will be responsible to pay Immigration the amount set out in the bond.
- What if you are not released
If you are not released at this point, another detention review hearing must be held within 7 days. If you are not released then, your detention must be reviewed every 30 days after that, until you are either released or removed from Canada. There is no limit on how long you can be detained. However, you cannot be held indefinitely. Immigration should be taking steps with your file to have you removed to your country. If you have co-operated and there is no movement on their behalf, you should consult a lawyer.
You have the right to legal counsel at every detention review hearing, but legal aid certificates are not usually provided. You also have the right to a qualified interpreter who is provided by Immigration. In an exceptional case, there may be legal grounds to challenge your detention in court.
For more information about immigration issues, refer to other sections of Legal Line . For legal advice, you should consult a lawyer.
|