Arrest and Detention

• Author: Martin Jones - Sasha Baglay
• Profession: Centre for Refugee Studies, York University - Centre for Refugee Studies, York University. Faculty of Criminology, Justice and Policy Studies, University of Ontario Institute of Technology
• Pages: 297-322

297

CHAP TER 11

ARREST AND

DETENTION

A. OVERVIEW

The sovereign authority to arrest and det ain immigrants has tradition-

ally been a signif‌ic ant aspect of a nation state’s power, allowing it to

ensure non-citizens’ compliance w ith immigration procedures and to

contain non-citizens believed to represent a threat to t he public. Im-

migration arrest and detention should be distinguished from arrest and

detention of immigrants under cri minal law. The former, like all immi-

gration legislat ion, is ta rgeted solely at non- citiz ens (foreign n ational s

or permanent residents). It is non-punitive and serves specif‌ic pur poses

such as the establishment of a person’s identity, the protection of the

Canadian public, and/or the ensuring of a person’s appearance for im-

migration proceedings or removal. The latter, crim inal detention, ap-

plies more universally and ha s less functional objectives, including the

expres sion of social approbat ion. In recent years, immigration dete ntion

elsewhere has also b ecome one of the tools for deterring asylum seekers.

Australia, which prov ides the most notorious example of such a policy,

seeks to discourage refugee ar rivals by applying mandatory detention to

all persons who entered the country without proper authorization.

The Immigration and Refugee Protection Act (IRPA) and its Regula-

tions allow for the detention of foreign nationals, including asylum

seekers, as a preventative measure under the following circum stances:

1) if a person is a f‌light risk;

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2) if a person is a danger to the public; and

3) if a person’s identity has not been established.

In addition, immigration legislation provides for a special procedure

of detention using “security certif‌icates” for persons considered to be

threats to the n ational security of Canada. Secur ity certif‌icates a re not

directly linked to the refugee determination proces s, but the current

application of security cert if‌icate detention to three Convention refu-

gees, and the use of simil ar procedures in other jurisdictions again st

Convention refugees and refugee claimants, makes the procedure rel-

evant to the discussion in this chapter. Although there is no legisla-

tively pres cribed limit on i mmigr ation detention, the legi slation does

provide for the periodic rev iew by the Immigration Division of the Im-

migration Review Boa rd (IRB) of decisions to detain.1

B. ARREST

Depending on the circumstances, the IR PA provides for arrest with or

without a warrant.2 Both foreign nat ionals and perma nent residents

may be arrested a nd detained on a warrant if there are “reasonable

grounds to believe” that t hey are inadmissible3 and that they constitute

either a danger to the public or a f‌light risk.4 Foreign nationals, other

than protected persons, m ay also be arrested and detained without a

warrant on the grounds of f‌light risk, danger to the public, or if the

person’s identity is in question.5

Arrest and detention may occur upon entr y as well as after admi s-

sion to Canada. A foreign national or a per manent resident may be de-

tained on entry if it i s necessary to complete an immigration exam ination

or if there are reasonable g rounds to believe that he is inadmissible on

grounds of security or v iolation of human or international right s.6 These

1 A different proce dure is followed in securit y certif‌icate case s. It will be dis-

cussed in S ection D(4) of t his chapter.

2Immigration and Ref ugee Protection Act, S.C. 2001, c. 27, s. 55 [IRPA].

3 According to ss. 3 4–43 of the IRPA, a person can be in admissible to Canad a on

the grounds of se curity, human or internat ional rights violation s, criminalit y,

serious criminality, organized criminality, health grounds, f‌inancial reasons,

misrepres entation, non-compliance wit h the IRPA, and being an inadmi ssible

family member.

4IRPA, above note 2, s. 55(1).

5Ibid., s. 55 (2).

6Ibid., s. 55(3).