Arrest and Detention

• Author: Sasha Baglay/Martin Jones
• Pages: 370-407

370

CH AP TER 11

ARREST AND

DETENTION

A. INTRODUC TION

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.

B. A RREST A ND DETENTION: AN OVERVIEW

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

risk.7

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).

REFUGEE L AW372

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 w.cic.gc.ca/english /resources/tools/ refugees/canada /

processing /minors.asp [IRCC, “Vulnerable Person s”]; Canada Border Ser vices

Agency, “Detentions,” online: CBSA www.cbsa-asfc.gc.ca/security-securite/

detent-eng.html#s7.

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].