Arrest and Detention

AuthorSasha Baglay/Martin Jones
The sovereign authority to arrest and detain migrants has t radition-
ally been a signif‌icant aspect of a nation-state’s power, allowing the
nation-state to ensure non-citizens’ compliance with immigr ation pro-
cedures and to contain those b elieved to represent a threat to the state
or the public. Unlike crimin al detention, immigration arrest and deten-
tion is targeted solely at non-citizens (foreign nationals or permanent
residents). It serves such purposes as the est ablishment of a person’s
identity, the protection of the Canadian public, and the ensur ing of a
person’s appearance for immigration proceeding s or removal. Although
off‌icially considered non-punitive, immigration detention can become
such, especially when used as a tool for deterring asylum seeker ar-
rivals. Austral ia offered one of the most notorious examples of such a
policy, but Canada has recently joined the rank s by introducing man-
datory detention of designated foreign nationals.
In Canada, three immigration detention regimes can b e distinguished:
1) detention under sections 55(1)–(3) of the Immigration and Refugee
Protection Act1 (on such grounds as danger to the public, f‌light risk,
and lack of identit y documents);
2) detention of designated foreign nat ionals;
3) detention under security cer tif‌icates.
1 SC 2001, c 27 [IRPA].
Arrest an d Detention 371
Each of these regimes w ill be discussed in turn.
Depending on the circumst ances, the IR PA provides for arrest with or
without a warrant.2 A wa rrant for arrest and detention of foreign na-
tionals and permanent residents may be issued if there are “reasonable
grounds to believe” that they are in admissible3 and are a danger to
the public or are a f‌light risk.4 Foreign nationals, other tha n protected
persons, may also b e arrested and detained w ithout a warrant if there
are “reasonable grounds to believe” that they are inadmissible and are
a danger to the public, or are a f‌light risk, or if their identity is in ques-
tion.5 Design ated foreign nationals who are sixteen or older are subject
to automatic and mandatory detention upon designation.6 Finally, a
non-citizen may be detai ned if a security certi f‌icate has been issued
against him and there a re “reasonable grounds to believe” that he is a
danger to national secur ity or to the safety of any person or is a f‌light
The standard “reasonable ground s to believe” means more than a
mere suspicion but less than the balance of probabilities.8 It requires
more than just a subjective belief of the decision ma ker; the existence
of “reasonable grounds” must be established objectively, that is, that
a reasonable person placed in sim ilar circumstances would have be-
lieved that reasonable grounds existed to make the arre st.9
2 Ibid, s 55.
3 According to the I RPA, ibid , ss 34–43, a person c an be inadmissible to C anada
on the grounds of se curity, human or internation al rights violations, c riminal-
ity, serious crim inality, organized cr iminality, health ground s, f‌inancial reas ons,
misrepre sentation, non-complia nce with the IR PA, or being a n inadmissible
family membe r.
4 Ibid, s 55(1).
5 Ibid, s 55(2).
6 Ibid, s 55(3.1).
7 Ibid, s 81.
8 Mugesera v Can ada (Minister of Citizenship and Immigration), [2005] 2 SCR 100
at paras 114–15; Chiau v Canada (Minister of Citize nship and Immigration), [1998]
2 FC 642 at para 27 (TD), aff’d [2000] FCJ No 2043 at para 60 (CA); Thanarat-
nam v Canada (Ministe r of Citizenship and Immigration), 2004 FC 349 at para 12;
Sivakumar v Canada (Ministe r of Employment and Immigration), [1994] 1 FC 433
(CA) (in the context of the UN Convention R elating to the Status of Refugees, 28
July 1951, 189 UNTS 150, art 1F exclusion from refugee prote ction).
9 Charkaoui (Re), [2004] FCJ No 2060 at para 103 (CA).
Arrest and detention may occur upon entr y as well as after admis-
sion to Canada. For example, a foreign national or a perm anent resident
may be detained on entr y if it is necessary to complete an immigration
examination or if there are “reasonable grounds to suspect” th at she is
inadmissible on grounds of security, violation of human or internation-
al rights, serious criminality, criminality, or organized criminality.10
Caselaw characterizes “reasonable ground s to suspect” as “a lesser but
included standard in the t hreshold of reasonable and probable grounds
to believe.”11 “Reasonable grounds to suspect” must be based on more
than a mere or subjective suspicion or a hunch. However, unlike rea-
sonable grounds to believe, they need not be supported by compelli ng
evidence; the evidence must be simply credible and objective.12
Although there is no legislatively prescribed limit on immigration
detention, the IR PA does provide for periodic review by t he Immigra-
tion Division of the Immigration and Refugee Board (IRB) or, in the
case of security certif‌icates, by the Federal Court. For detailed deten-
tion statistics, see Appendix D, Tables 4–8.
Some groups of persons are considered vul nerable and should not
be detained unless ab solutely necessary. These include unaccompanied
children, elderly persons, pregnant women, and persons with injuries
or disabilities.13 In such cases, alternatives to detention should always
be considered.14 In relat ion to minors (that is, persons under eighteen),
the IR PA expressly aff‌irms th at they should be detained only as a “meas -
ure of last resort, ta king into account the other applicable grounds and
criteria including t he best interests of the child.”15 The Immigration
and Refugee Protection Regulations, section 249, provide a list of spe-
cial considerations to be taken into account in relation to the detention
of minors. For example, the risk of being under the continued control
10 IR PA, above note 1, s 55(3).
11 R v Monney, [1999] 1 SCR 652 at para 49, cited in Dupre v Canada (Ministe r of
Public Safety and Eme rgency Preparedness), 2007 FC 1177 at para 27.
12 Sellathurai v Canada (Ministe r of Public Safety and Emergency Prepared ness), 2007
FC 208 at paras 70–71; see al so Canada (Minister of Citizenship and Immigration)
v XXXX, 2010 FC 112 at paras 15–16.
13 Immigrat ion, Refugees and Citizen ship Canada, “Procedure s for Vulnerable
Persons,” online: IRCC ww /resources/tools/ refugees/canada /
processing /minors.asp [IRCC, “Vulnerable Person s”]; Canada Border Ser vices
Agency, “Detentions,” online: CBSA
14 IRCC, “Vuln erable Persons,” above note 13.
15 IR PA, above note 1, s 60; Immigration and Refugee Protection Regulations,
SOR/20 02-227, s 249 [Regulatio ns].

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