Area of Law: Immigration Law
Answer # 666
Arrest and detentionRegion: Ontario Answer # 666
When can someone be arrested or detained?
Under the Canadian Immigration and Refugee Protection Act any person who is not a Canadian citizen can be detained while Canada Border Services Agency (CBSA) Officers or the Immigration and Refugee Board (IRB) decide if he or she can enter Canada.
There are basically three situations where an individual can be arrested and/or detained:
- When the individual is attempting to enter Canada,
- After the individual is in Canada, and
- While in Canada, during or after an immigration inquiry.
Arrests and detentions are carried out by CBSA Officers at border crossings, airports and inland locations. The issue of whether the person will continue to be detained is determined by the Immigration Division of the IRB at the detention review.
1. Arrest and detention upon entry
CBSA Officers have the right to question everyone who is attempting to enter at a Canadian border. You must answer the Officers’ questions truthfully if you want to enter Canada. Your answers may be written down, or entered into their computers. Any information you give can be used in subsequent immigration proceedings.
CBSA Officers may detain you if they believe that:
- you are not who you say you are,
- you are not coming to Canada for the reason you say you are,
- you were deported or excluded from Canada in the past, and you are attempting to re-enter without the proper written permission from Immigration, Refugees and Citizenship Canada (IRCC),
- you will not leave Canada as directed,
- you will be dangerous to others or to yourself, and
- you do not meet proper immigration requirements, such as sufficient funds to visit Canada.
2. Arrest and detention while in Canada
Even if you manage to pass through the Canadian border, once you are inside Canada, CBSA Officers or police officers can arrest you. They can arrest you if either the CBSA or IRCC have reasonable grounds to believe that you are a danger to others or to yourself, or for many different reasons, including the following:
- you are working in Canada without a valid work permit,
- you have stayed in Canada after your visitor’s visa status has expired,
- you entered Canada illegally,
- you entered Canada with a false passport,
- you were deported or excluded from Canada but came back without the written permission of IRCC,
- you did not notify IRCC of a change of address when you moved,
- you did not leave Canada by the date given in your departure notice,
- 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, and
- you did not show up for a hearing, interview, or your removal.
CBSA 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 and Refugee Protection 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 a CBSA 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 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.
3. Detention at an admissibility hearing
In rare cases, you could be arrested at an admissibility hearing. An admissibility hearing is not the same as a detention review although all hearings are followed by detention reviews if the person is arrested.
Admissibility hearings are held before a member of the Immigration Division of the IRB to decide whether you can enter or stay in Canada. Generally, people are given notice of the hearing and are expected to appear at the hearing on their own volition, without having to be arrested. At an admissibility hearing, you have the right to be represented by legal counsel.
Before you go to an admissibility hearing, it is a good idea to arrange for someone who can post a bond on your behalf in case 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, not on welfare, and at least 18 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 a hearing because IRCC determined you were 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 Centre. You may also be detained at a correctional facility as opposed to an Immigration Detention Centre, if there is no Detention Centre where you live, or 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 two ways that a person can be released from detention:
- After a review by a CBSA Officer, or
- By an IRB member at a detention review hearing or at an admissibility hearing.
Within 48 hours of a person’s detention, an Immigration Division member must review the reasons for the detention, and if the member believes that you are not a danger to others or to yourself, and that you will show up for interviews, hearings or removal, and/or that your identity is no longer at issue, they can order your release at any time before your first detention review hearing. 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 IRB member will review your case and the reasons for your detention. A Minister’s counsel 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 member that you should be released.
You will be released if the IRB member decides that:
- You are who you said you were when you arrived at the airport or border,
- There is no reason to believe you will not show up for hearings, interviews, or removal, and
- You are not a danger to others or to yourself.
Typical terms and conditions upon release
If a CBSA Officer or an IRB member decides to release you, you may have to agree to certain terms, such as:
- to report any change of address to IRCC 48 hours before moving,
- to co-operate in obtaining travel documents needed for your removal,
- to agree to report to an Immigration office regularly, or
- to agree to be supervised by a third party.
In most cases, you will be required to make a security deposit or have a performance bond signed on your behalf. A security deposit is money deposited to ensure that you will comply with the terms and conditions of your release. If you break any of the terms or conditions, IRCC will keep the money.
With a performance bond, money is not actually deposited. 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 seven 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 IRCC. In some cases, there may be legal grounds to challenge your detention in court.
For more information about immigration issues and arrest and detention, refer to Canada Border Services Agency.
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