In Canada, a detention review refers to a process where an individual who has been detained under immigration law can have their detention reviewed by the Immigration and Refugee Board of Canada (IRB) or a detention review officer to determine whether they should continue to be detained or be released. This process is essential for ensuring that individuals are not detained unnecessarily and that their detention is lawful, reasonable, and justified.

When Can Detention Occur?

Immigration detention in Canada may happen in situations like:

1. Deportation or Removal: When an individual is being detained pending removal from Canada due to not having the proper immigration status.
2. Risk of Flight: When immigration authorities believe an individual might flee and avoid immigration proceedings, such as a hearing for refugee protection or removal.
3. Security Concerns: When there are concerns about an individual being a danger to the public, or if the individual poses a security risk.

How Does Detention Work?

When an individual is detained by the Canada Border Services Agency (CBSA) or other immigration authorities, they can be held in detention facilities or correctional institutions. However, detention cannot be indefinite. By law, individuals in immigration detention must have their case reviewed at regular intervals to ensure that detention is necessary and justified.

Detention Review Process

The detention review process allows individuals detained under the Immigration and Refugee Protection Act (IRPA) to challenge their detention. Here’s how it generally works:

1. First Detention Review:

• When a person is detained, the first detention review will take place within 48 hours of their detention.
• The detention review officer or Immigration and Refugee Board (IRB) will assess whether there are reasonable grounds for continued detention.
• The detainee or their lawyer can argue for their release, and the reviewing officer will consider factors such as the risk of flight, whether the detainee is a danger to the public, and any other relevant circumstances.

2. Subsequent Reviews:

• After the initial detention review, the detainee has the right to a review every 30 days if they are still detained.
• These reviews are held to assess whether continued detention is justified or if the person should be released, either with conditions or unconditionally.
• The IRB or detention officer will consider the same factors as in the first review: whether the person is a flight risk, a danger to the public, or if there have been changes in their situation that justify their release.

3. Detention Hearing at the Immigration and Refugee Board (IRB):

• If the detention review is conducted by the Immigration and Refugee Board, the hearing will involve a member of the Immigration Division who will listen to arguments from both the detainee or their legal counsel and the CBSA (Canada Border Services Agency).
• The IRB member will make a decision on whether the individual should be released from detention, continue to be detained, or if any conditions for release should be applied.

4. Conditions of Release:

• If the detainee is released, it might be under certain conditions, such as:
  • Reporting regularly to CBSA.
  • Having a guarantor (someone who agrees to ensure the person shows up for immigration hearings or appointments).
  • Providing a fixed address.
  • Posting a bond or other financial guarantees.
  • Living in a designated residence.

5. Appeal of Detention Decision:

• If the detention review decision is unfavorable (e.g., the person remains detained), the individual may appeal the decision.
• Appeals can be filed with the Federal Court of Canada if there are grounds to believe that the decision was unfair or not in line with the law.

Factors Considered in a Detention Review

During a detention review, the reviewing officer or IRB member will consider several factors to determine whether continued detention is justified. These include:

1. Risk of Flight: Is the individual likely to leave Canada and not comply with immigration orders (such as attending hearings or being deported)?
   • Considerations might include the person’s ties to Canada (family, community, employment), and their immigration history.
2. Danger to the Public: Does the person pose a risk to the safety or security of Canadians? This can include criminal activity or past history of threatening behavior.
3. Immigration Status: Whether the individual is a refugee claimant, permanent resident, or has another status in Canada can affect the decision to detain or release.
4. Efforts to Obtain Travel Documents: If the person is being detained for deportation, has the government made efforts to obtain travel documents or facilitate their removal from Canada? If there are delays in obtaining travel documents, the person might not need to be detained.
5. Personal Circumstances: The detainee’s personal situation can also be taken into account, such as whether they have dependent family members in Canada or whether detention would result in undue hardship.
6. Length of Detention: Detention should not be indefinite, and the length of time the person has been detained will be considered. If the detention has been prolonged without good reason, there is a stronger case for release.

Special Considerations

Certain individuals may be given special consideration during detention reviews:

• Children: Detention of children should be avoided wherever possible, and alternatives to detention should be considered, including release to family members.
• Medical or Psychological Conditions: Individuals with significant health or mental health issues may be considered for release, especially if continued detention could worsen their condition.
• Vulnerable Groups: Individuals who are vulnerable (e.g., women, LGBTQ+ individuals, or those with a history of trauma) may have special considerations during their detention review, and alternatives to detention could be explored.

Alternatives to Detention

If detention is deemed unnecessary, or if continued detention is deemed unjustified, alternatives to detention may be considered. These alternatives include:

1. Release on Conditions: The detainee may be released under conditions such as reporting regularly to the authorities or living in a designated location.
2. Supervised Release: Individuals may be released under the supervision of a guarantor, who agrees to ensure the detainee complies with any conditions set by immigration authorities.
3. Electronic Monitoring: In some cases, electronic monitoring (like wearing an ankle bracelet) may be used to ensure the individual complies with immigration orders.
4. Bond: In some cases, the detainee or a family member may pay a bond to ensure the person’s release.

Detention for Immigration Purposes vs Criminal Detention

It’s important to distinguish between immigration detention and criminal detention:

• Immigration detention is primarily for individuals who are being held while their immigration status is being determined (e.g., during deportation or refugee hearings).
• Criminal detention involves individuals who have been detained due to criminal charges.

Summary

A detention review is a process that allows individuals detained under Canadian immigration law to have their detention reassessed. Detention reviews ensure that immigration detention is lawful, reasonable, and necessary. The reviews take place within specific timeframes (typically within 48 hours, and every 30 days after that) and involve factors like the person’s risk of flight, potential danger to the public, and personal circumstances.

If you or someone you know is detained under immigration laws, it is important to understand this process and seek legal advice to ensure that your rights are upheld. If you have more specific questions about detention reviews or need assistance with a case, feel free to ask!