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GUIDELINES
ISSUED BY THE
CHAIRPERSON
PURSUANT TO SECTION 65(4)
OF
THE IMMIGRATION ACT
Guidelines on
Detention
Immigration and Refugee
Board
Ottawa, Canada
Effective date: March 12,
1998
Table of Contents
A.
Long-Term Detention
B. The
Notion of "Danger to the Public"
C.
Alternatives to Detention
D.
Evidence and Procedure
GUIDELINE 4
Guidelines on Detention
Canadian law1 regards preventive detention as an exceptional
measure. This general principle emerges from statute and case law, and is
enshrined in the Canadian Charter of Rights and Freedoms2 (hereinafter referred to as the Charter).
International law, 3 as reflected in the International Covenant on
Civil and Political Rights and the Optional Protocol to the International
Covenant on Civil and Political Rights, respects the same principle.
In the immigration field, Parliament has established two main grounds that
justify detention: 4
1. The person is likely to pose a danger to the public.
2. The person is not likely to appear for an
examination, an inquiry or removal.
Adjudicators have the power to order the detention or continued detention of
a person. They may also order that a person be released from detention, subject
to such terms and conditions as they deem appropriate, including the payment of
a security deposit or the posting of a performance bond. 5
These Guidelines deal with the following topics which are intended to help
adjudicators achieve greater consistency in exercising their jurisdiction and,
thereby, ensure greater fairness:
(a) long-term detention;
(b) the notion of "danger to the public";
(c) alternatives to detention; and
(d) evidence and procedure.
A. LONG-TERM
DETENTION
In immigration matters, a person may be detained for an examination, an
inquiry or removal. 6 Consequently, custody is preventive rather than
punitive in nature. Furthermore, Parliament has required that the reasons for
detention be reviewed at regular intervals, although it has not limited the
total detention period. Adjudicators should, however, be guided by certain
general principles arising from the case law:
- Detention is an exceptional restraining measure in our society; 7
- Although the Immigration Act does not limit the total duration
of detention, there are implicit restrictions on the power of detention; 8
- Detention for a reasonable length of time, given all the circumstances
of the case, is the standard applicable to continued detention; 9 and
- The right guaranteed by section 7 of the Charter10 implies that continued detention must be in
accordance with the principles of fundamental justice. 11
Often a person whose detention is continued is under a removal order or a
conditional removal order. In such circumstances, continued detention is
justified only if the removal order can be executed within a reasonable
period of time.
The Department of Citizenship and Immigration is responsible for enforcing
removal orders as soon as is reasonably practicable. 12 Nonetheless, the enforcement of removal orders
can be delayed by reason of a legal impediment, 13 such as a stay of execution.
The existence of a legal impediment to the execution of a removal order does
not render removal invalid. 14 However, if a detention appears unduly lengthy,
the reasonableness of the delay should be considered, in order to ensure
that the detention is not in fact an "indefinite detention." 15 Such detentions constitute deprivations of
liberty that come into conflict with the principles of fundamental justice.
The fact remains however that in most cases of long-term detention,
enforcement of the removal order is delayed despite the absence of any legal
impediment. This can be attributed chiefly to the problems immigration
authorities encounter in ascertaining the identity of the person in custody and
in securing the cooperation of the country to which the person is to be
removed.
Where there is no legal impediment to the execution of the removal order, it
is all the more important to consider the reasonableness of the delay.
With this in mind, the adjudicator should ask the Minister’s representative to
explain why the removal has not been carried out, since the latter must
demonstrate diligent attempts to do so. 16 Depending on the nature of the impediments to
removal, it may be appropriate to ask the Minister’s representative to estimate
the time that will be required to resolve the problems. This will enable the
adjudicator to forecast more effectively the expected length of detention. 17
The following principles should guide adjudicators when reviewing reasons
for detention:
- Where a person is being detained pending removal, it is relevant to
consider whether the removal will be executed in the foreseeable future; 18
- Each review of the reasons for detention is a hearing de novo.
The Minister must, at every hearing, provide adequate reasons for the
continued detention. 19 However, it should be noted that it is
incumbent upon the person concerned to show why detention should not continue
(especially in the absence of any new facts); 20 and
- The decisions of adjudicators must be based on their own analysis and
assessment of the facts of the case, not solely on a previous decision of a
colleague (although this may be considered) 21 or the conclusion of another decision-making
body. 22
Consequently, when dealing with a continuing detention, adjudicators must
consider both grounds for detention as required by the Immigration Act.
However, their analysis must not end there. In every case where they are called
upon to review the reasons for detention, they must consider the reasons for the
continued failure to execute the removal, assess—based on the problems
identified—whether the person is likely to be removed within a reasonable period
of time, and determine—on a balance of probabilities—whether the duration of the
detention is reasonable having regard to the circumstances of the particular
case.
Adjudicators must also take into account the right to liberty guaranteed by
section 7 of the Charter. In Sahin,23 the Federal Court—Trial Division stated as
follows: ". . . it is obvious that section 7 Charter considerations are relevant
to the exercise of discretion by an adjudicator under section 103 of the
Immigration Act." In this case the Court put forth four factors to be
taken into account by adjudicators in determining whether continued detention is
in accordance with the principles of fundamental justice as required by section
7 of the Charter:
1. There is a stronger case for continuing a lengthy detention when an
individual is considered a danger to the public; 24
2. The length of time that a person has already spent in detention and
the length of time detention will likely continue, or the fact that the duration
of future detention time cannot be ascertained, are factors which should have a
bearing on release;
3. Unexplained delay and even unexplained lack of diligence should
count against the offending party; and
4. The availability, effectiveness and appropriateness of alternatives
to detention must be considered.
The foregoing list of considerations is not exhaustive. The considerations,
and the weight to be given to each of them, will depend on the facts of the
case. 25 A balance must be struck between the public
interest and the person’s right to liberty: "The principles of fundamental
justice are concerned not only with the interest of the person who claims his
liberty has been limited, but with the protection of society. Fundamental
justice requires that a fair balance be struck between these interests, both
substantively and procedurally." 26 Although detention of asylum-seekers and
children is rare, decisions in this regard should be made in a manner that is
consistent with not only the Charter but also the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status27 and the Convention on the Rights of the
Child.28
The public does, of course, have an interest in detaining individuals who are
not likely to appear at the immigration proceedings that they are required to
attend, but that interest undoubtedly weighs more heavily in favour of detention
where the individuals are likely to pose a danger to the public. It is the
latter ground that usually justifies long-term detention. Hence, the need to
examine the notion of danger to the public.
B. THE NOTION OF "DANGER TO THE
PUBLIC"
Neither the Immigration Act nor the case law clearly defines the
phrase "danger to the public." Evidently this expression relates to the
protection of the health, safety and good order of Canadian society. 29
In general, the detention of persons who are likely to pose a danger to the
public is a detention based on criminal grounds. It is possible for people to be
detained because they represent a threat to public order and health; however,
since such cases are relatively infrequent, these Guidelines deal solely with
detention on criminal grounds.
The following propositions may be made on the basis of existing case
law:
- The meaning to be ascribed to "danger to the public" is that there be a
present or future danger to the public; 30
- It is not unreasonable to draw inferences from a person’s criminal record
in determining whether that person is likely to be a danger to the public; 31
- Where a person has been convicted of an offence and has served the related
sentence, the conviction alone is not sufficient to support a finding that
that person is likely to be a danger to the public; 32 and
- The phrase "danger to the public" "must refer to the possibility that a
person who has committed a serious crime in the past may seriously be thought
to be a potential re-offender." 33
It follows from these propositions that a person’s criminal background is a
relevant factor that adjudicators should take into account. Nevertheless, since
they must assess the present and future danger posed by the person, it is
incumbent on them to assess the seriousness of the crimes and the likelihood of
recidivism. The criminal background is only one of several factors: an
adjudicator cannot conclude that a person is likely to be a danger to the public
based on this sole, generally insufficient, consideration. This is especially
true where the person has been convicted and has served the related sentence in
respect of those offences.
Based on the above statements, the following factors should be weighed
when considering whether a person is likely to be a danger to the
public:
1. The seriousness of the offences:
- their nature34 (offences against the person vs. offences
against property);
- the circumstances in which they were committed; and
- the number of offences, their frequency and the pattern of criminal
activity.
2. The likelihood of re-offending:
- the person’s criminal record;
- association with or membership in a criminal organization;
- willingness to be rehabilitated35 and possibility of rehabilitation; 36 and
- family and community support. 37
These factors are not exhaustive. Whether a person is a danger to the public
depends on a multiplicity of factors and on the weight given to them, depending
on the circumstances of the case.
C. ALTERNATIVES TO
DETENTION
Parliament has provided that adjudicators may order the release of a person
detained pursuant to the Immigration Act, subject to such terms
and conditions as they deem appropriate, including the payment of a security
deposit or the posting of a performance bond. Given these provisions, together
with the basic assumption that detention should be an exceptional measure in
Canadian society, adjudicators should, in all cases, consider whether it
would not be appropriate to impose certain conditions to reduce the risk of the
person concerned failing to appear for an examination, an inquiry or removal
from Canada, or to reduce the risk that such a person may pose to the
public.
It should be noted that while Parliament has conferred broad discretionary
powers upon adjudicators in this area, it has not given them a free hand; the
conditions imposed by adjudicators must be appropriate in the case before them,
depending on whether one or both of the grounds of detention exist. The
conditions must be designed to secure the presence of the individual at the
required proceedings, and/or to ensure the protection of society.
Consideration of this question requires, first, that the risk posed by the
person in relation to the above two grounds be assessed. Next, it must be
determined whether any conditions would reduce this risk. If, because of the
risk involved, a person would have to be subject to conditions that would be
very difficult to abide by, a detention order might be appropriate. If, on the
other hand, the level of risk is acceptable, or would become acceptable under
certain conditions that would make it possible to exercise real control over the
person following release, then a conditional release should be contemplated.
The conditions will, of course, vary depending on the grounds for the
detention and the circumstances of the case. However, the conditions of
release should be stated in clear and precise terms, leaving no room for
ambiguity in their interpretation. It is also important to ensure that the
conditions do not conflict with those imposed by another decision-making body.
38
The Immigration Act provides expressly for the payment of a security
deposit or the posting of a performance bond. This is a condition that precedes
release and is intended to guarantee that the other conditions imposed will be
complied with.
Generally, if an adjudicator contemplates a person’s release subject to the
payment of a security deposit or the posting of a performance bond, it is
because the adjudicator is of the opinion that the person could be released and
that such a security deposit would reduce the risk of that person’s failing to
attend the related examination, inquiry or removal proceedings. This does not
mean, however, that the release of a person who is likely to pose a danger to
the public cannot be contemplated. Where the public interest and the person’s
right to liberty are in the balance, it goes without saying that a detention,
even of short duration, is more easily justified if the person concerned is
likely to pose a danger to the public. 39 Nevertheless, if all the relevant factors are
considered and weighed, including those listed above under the heading "The
Notion of ‘Danger to the Public’ ", it should be possible to gauge the level of
risk and to determine whether the terms and conditions—namely, the payment of a
security deposit or the posting of a performance bond—would reduce the risk to a
level where release would be possible.
It is incumbent on adjudicators to determine whether it is appropriate to
impose conditions, including the payment of a security deposit or the posting of
a performance bond. If the latter conditions are imposed, adjudicators
should consider the amount of the security deposit and the form that it should
take. The amount should always be based on the risk posed by the person and the
constraint that the security deposit would achieve in the circumstances of each
particular case. If a security deposit is not available, all other
alternatives to detention should be contemplated. 40
At first glance, the payment of a security deposit might appear more
constraining, but a performance bond provided by a solvent individual may be
just as effective. The Immigration Act makes no distinction as to the
relative value of each. In fact, the relationship between the guarantor and the
detainee can sometimes impose a greater constraint on the latter. When examining
this question, therefore, adjudicators should consider the availability of a
cash security deposit and the suitability of the guarantor, including the
guarantor’s ability to pay.
On occasion, the parties will have come to an agreement on the conditions of
release before the hearing and will submit the agreement to the adjudicator. If
the parties’ proposal seems reasonable, the adjudicator should endorse it. If,
however, the proposed conditions are unusual or seem excessive, the adjudicator
should determine whether other conditions are more appropriate, having regard to
the nature and degree of risk posed by the person, and the constraining effect
such conditions would have on the conduct of the person concerned.
D. EVIDENCE AND
PROCEDURE
I. EVIDENCE
In the absence of statutory provisions concerning evidence, two general
principles apply when it comes to determining whether a person is to be detained
or released:
1. The balance of probabilities constitutes the applicable standard of
evidence. 41
2. Refusal to accept relevant and available
evidence when reviewing the reasons for detention constitutes a breach of the
principles of natural justice. 42
II PROCEDURE
As regards procedure, the Immigration Act merely states the principle
that the hearing to review the reasons for a person’s detention shall be
conducted in public, subject to any rules of the place where a person is
detained. 43
Despite the absence of statutory provisions creating a framework for a review
of the reasons for detention, the Adjudication Division has implemented a
procedure that conforms to the principles of natural justice. 44
The legal controversy over whether the principles of natural justice and
fairness oblige a quasi-judicial tribunal to give reasons for its decision has
not yet been settled. 45 Nevertheless, given the serious impact of the
Adjudication Division’s decisions on the rights of individuals, particularly in
the area of detention, detention review hearings must be recorded and the
reasons for decision must be given. 46
The reasons must be sufficient and adequate. They should allow the person
concerned to understand the grounds on which the adjudicator is ordering
detention or its continuation, to decide whether the available recourses against
the adjudicator’s decision should be exercised and, if applicable, to make the
most of the case. 47
Consequently, the reasons must show the following:
1. the nature of the hearing held; 48
2. the applicable criterion or criteria; 49
3. a summary of the facts; 50
4. an analysis and assessment of the facts; 51 and
5. the decision.
In order to respect the principles of natural justice and procedural
fairness, the reasons of the adjudicator ordering the detention should be
transcribed and distributed to the parties before the next hearing is held,
whether an initial or continued detention is involved.
ENDNOTES
- For examples, refer to ss. 503(1) and 515(10) of the
Criminal Code, R.S.C. 1985, c. C-46.
- Canadian Charter of Rights and Freedoms, Part I of
the Constitution Act, 1982, Schedule B of the Canada Act 1982,
1982, c. 11 (U.K.).
- International Covenant on Civil and Political Rights,
(1976) 999 UNTS 107, in force on March 23, 1976, ss. 9, 10 and 11, and the
Optional Protocol to the International Covenant on Civil and Political
Rights, (1976) 999 UNTS 216, in force on March 23, 1976. These two
instruments confer status in law on the civil and political rights set out in
the Universal Declaration of Human Rights, U.N. Doc. A/810, p. 71 (1948).
- The detention provided for in section 103.1 of the
Immigration Act is not dealt with in these Guidelines because these
specific provisions are infrequently applied.
- Sections 80.1 and 103 of the Immigration Act.
- Sections 103(3), 103(6) and 103(8) of the Immigration
Act.
- Salilar v. Canada (Minister of Citizenship and
Immigration), [1995] 3 F.C. 150 (T.D.); Sahin v.
Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214
(T.D.), appeal dismissed on the grounds that the certified question had become
hypothetical: Sahin, Bektas v. M.C.I. (F.C.A., no. A-575-94), Stone,
MacGuigan, Robertson, June 8, 1995.
- In Sahin (supra, note 7) Rothstein J. quoted, at p.
227, Woolf J. in R. v. Governor of Durham Prison, ex p. Singh, [1984] 1
All E.R. 983 (Q.B.) at p. 985: "Since 20 July 1983 the applicant has been
detained under the power contained in para. 2(3) of Sch. 3 to the
Immigration Act 1971. Although the power which is given to the
Secretary of State in para 2 to detain individuals is not subject to any
express limitation of time, I am quite satisfied that it is subject to
limitations. First of all, it can only authorize detention if the individual
is being detained in one case pending the making of a deportation order and,
in the other case, pending his removal. It cannot be used for any other
purpose. Second, as the power is given in order to enable the machinery of
deportation to be carried out, I regard the power of detention as being
impliedly limited to a period which is reasonably necessary for that purpose.
The period which is reasonable will depend on the circumstances of the
particular case. What is more, if there is a situation where it is apparent to
the Secretary of State that he is not going to be able to operate the
machinery provided in the Act for removing persons who are intended to be
deported within a reasonable period, it seems to me that it would be wrong for
the Secretary of State to seek to exercise his power of detention." In that
case, the person had been convicted of a criminal offence and was detained for
approximately five months following release on parole. See also, Lam v. Tai
A Chau Detention Centre (1996), 199 N.R. 30 (J.C.P.C.).
- Sahin, supra, note 7.
- Supra, note 2, section 7: "Everyone has the right to
life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice."
- Sahin, supra, note 7, at p. 230: ". . . an
adjudicator must have regard to whether continued detention accords with the
principles of fundamental justice under section 7 of the Charter. "
- Sections 48 to 53 of the Immigration Act.
- Sections 49, 50, 52(3), 53(1), 73(1)(c) and 74(2) of
the Immigration Act.
- Re Rojas and the Queen (1978), 20 O.R. (2d) 590
(Ont. C.A.). In dismissing a habeas corpus application, the Ontario
Court of Appeal held as follows: "It is obvious that the problem of finding a
country to which the appellant can be deported continues to occupy the bona
fide attention and efforts of the immigration authorities, and therefore his
detention cannot be characterized as having ceased to be lawful. "
In Sahin (supra, note 7), a person had been
detained for fourteen months on the ground that he was not likely to appear
for his removal, based on his own statements to the effect that he would not
report for removal if required to do so. The Minister applied for a judicial
review of a decision of the Convention Refugee Determination Division in which
it was held that the person was a Convention refugee. Thus, the person was
under a conditional removal order. Rothstein J. of the Federal Court (Trial
Division) held at pp. 223-224: "Until all appeals have been disposed of, a
person might still be found not to be a Convention refugee and it is that
eventuality that justifies the continuance of conditional removal orders
against such persons. As long as a conditional removal order may become an
effective removal order, section 103 recognizes that the Minister must be in a
position to enforce the order. It is consistent with that objective that
persons be detained when the Minister is of the opinion that they would not
appear for removal if a removal order is to be executed."
- An example of such a situation is where the Immigration
Appeal Division stays the execution of a removal order based on s. 74(2) of
the Immigration Act, which provides that the Division " . . . shall
review the case from time to time as it considers necessary or advisable."
Given that the time of the execution of the removal cannot be foreseen, the
detention should be considered "indefinite." In Sahin
(supra, note 7) the Court held as follows at p. 229: ". . .
when any number of possible steps may be taken by either side and the times to
take each step are unknown, I think it is fair to say that a lengthy
detention, at least for practical purposes, approaches what might be
reasonably termed ‘indefinite’." In Re Rojas and the Queen
(supra, note 14) Zuber J.A. made the following remarks: "The
Immigration Act, R.S.C. 1970, c. I-2, permits detention pending
deportation, but this Act does not thereby authorize permanent imprisonment.
In some cases it may be that the objective of deportation will become so
unlikely or illusory that detention premised on this occurrence cannot be
justified and will become unlawful."
- Cushnie v. M.E.I. (1988), 54 D.L.R. (4th) 420 (Que.
C.A.).
- Where the detention appears unduly lengthy, it may,
depending on the circumstances of the case, have become unjustified, and
therefore illegal, because removal has become illusory. (See the remarks of
Zuber J.A. in Re Rojas and the Queen, supra, note 14.)
- Re Rojas and the Queen, supra, note 14; Cushnie,
supra, note 16; Sahin, supra, note 7.
- Cushnie, supra, note 16; Sahin, supra, note
7; Salilar, supra, note 7.
- Canada (Minister of Citizenship and Immigration) v.
Salinas-Mendoza, [1995] 1 F.C. 251 (T.D.).
- McIntosh v. Canada (Minister of Citizenship and
Immigration) (1996), 30 Imm. L.R. (2d) 314 (F.C.T.D.); Arruda v. Canada
(Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 154
(F.C.T.D.).
- Lin v. Canada (Minister of Citizenship and
Immigration) (1996), 33 Imm. L.R. (2d) 8 (F.C.T.D.); Salilar,
supra, note 7; Salinas-Mendoza, supra, note 20; Lam v.
Canada (Minister of Employment and Immigration) (1995), 26 Imm. L.R. (2d)
207 (F.C.T.D.); Ejim, Chukwudi Prince Chidi v. M.C.I. (F.C.T.D., no.
IMM-4590-94), Rothstein, December 1, 1994. See also comments on
Williams, infra, note 31.
- Sahin, supra, note 7, at p. 228.
- Sahin, supra, note 7, at p. 231. See also
Kidane, Derar v. M.C.I. (F.C.T.D., no. IMM-2044-96), Jerome, July 11,
1997.
- Sahin, supra, note 7; Halm v. Canada (Minister of
Employment and Immigration), [1996] 1 F.C. 547 (T.D.).
- Cunningham v. Canada, [1993] 2 S.C.R. 143, at
pp. 151-52.
- Handbook on Procedures and Criteria for Determining
Refugee Status, Office of the United Nations High Commissioner for
Refugees, Geneva, January 1988.
- Convention on the Rights of the Child (CRC), which
was adopted by the United Nations General Assembly (Resolution no. 44/25) on
November 20, 1989, was signed by Canada on May 28, 1990, was ratified on
December 13, 1991 and came into force on January 12, 1992.
- Section 3(i) of the Immigration Act.
- Thompson v. Canada (Minister of Citizenship and
Immigration) (1996), 37 Imm. L.R. (2d) 9 (F.C.T.D.); Bahadori, Amir
Hussein v. M.C.I. (F.C.T.D., no. IMM-4931-94), Wetston, April 25,
1995.
- McIntosh, supra, note 21.
- Salilar, supra, note 7.
- Williams v. Canada (Minister of Citizenship and
Immigration), [1997] 2 F.C. 646 (C.A.) at p. 668. In this case, the Court
interpreted the phrase "danger to the public" contained in section 70(5) of
the Immigration Act. It should be noted that the Court was referring to
the commission of a crime. Thus, a person who is suspected of having committed
a serious offence could be considered to be a person likely to pose a danger
to the public. However, in the absence of a conviction, the adjudicator will
have to take into account the presumption of innocence guaranteed to the
person concerned by the common law and section 11(d) of the Charter. In this
case, the person’s criminal record is also of relevance and will have to be
taken into account by the adjudicator. It should be noted that the Minister’s
opinion to the effect that the person constitutes a danger to the public is
not binding on an adjudicator. The latter’s decision must be based on the
adjudicator’s own analysis and assessment of the facts of the case. Therefore,
it is possible that an adjudicator orders a person’s release from detention
although the Minister has issued a "danger to the public" opinion.
- Because of the changing nature of society’s values, it is
not always easy to assess the seriousness of offences, based on their nature.
For example, it is only in recent years that assaults against a spouse (which
constitute offences against the person) have been considered to be serious
offences. As far as offences against property are concerned, by way of a
guide, under the Corrections and Conditional Release Act, S.C. 1992, c.
20, an offender may be released after having served one-sixth of the related
sentence in respect of a first offence other than an offence against the
person (ss. 119.1 and 126.1, amended by the Act to Amend the Criminal Code
(offenders with a high risk of recidivism), the Corrections and
Conditional Release Act, the Criminal Records Act, the Prisons
and Reformatories Act and the Ministry of the Solicitor General Act,
ss. 21 and 25, which came into force by order on July 3, 1997, (1997) 131
Can. Gaz. II, 2286).
- In order to determine a person’s willingness to be
rehabilitated, credibility must be assessed. The person’s criminal record,
conduct following the commission of the offence, behaviour during
incarceration and involvement in therapy or rehabilitation programs are some
of the factors that may be taken into account.
- Depending on the type of problem involved (violence,
alcohol or drug abuse, and so on) certain rehabilitation programs may be
available. Naturally, despite the desire for rehabilitation shown by the
person, the status in Canada of the individual and the imminence of removal
may result in the person being unable to take advantage of such programs.
- The presence of family members in Canada, the relationship
of the person to those family members and ties with the community, as well as
the support available from these sources, are all factors that can decrease
the likelihood of re-offending.
- For example, conditions imposed by a Justice of the Peace,
a court of criminal jurisdiction or—in respect of a stay of execution of a
removal order—by the Immigration Appeal Division.
- Sahin, supra, note 7, at p. 232.
- Family members, the community and even NGOs may be able to
exert such influence on a person as to secure the person’s presence at the
required immigration proceedings.
- Salilar, supra, note 7, at pp. 157-58. See also
Smith v. Canada (Minister of Employment and Immigration), [1991] 3 F.C.
3 (T.D.). In this case, the Court decided on the reasonable nature of a
certificate issued in accordance with section 40.1(1) of the Immigration
Act and whose effect is to compel the adjudicator to issue a detention
order. At p. 29, Cullen J., referring to R. v. Secretary of State for the
Home Department, ex p. Khawaj, [1984] A.C. 74, stated as follows: "As a
liberty interest was at stake in the detention, the immigration officer had to
satisfy a civil standard of proof to a high degree of probability that the
detained person was an illegal immigrant."
- McIntosh, supra, note 21. See also Sahin, supra,
note 7, at p. 234: "It is the adjudicator himself or herself who must
determine whether he or she is satisfied that the applicant would not pose a
danger to the public. ... The issue is an open one on each detention review
and must be decided by the adjudicator each time. The applicant and the
respondent are free to bring forward whatever evidence or information is
relevant to assist the adjudicator in reviewing a detention."
- Section 103(9) of the Immigration Act.
- The review of the reasons for detention is undertaken at a
hearing, in the presence of the person concerned, who is entitled to the
services of an interpreter. The person is informed of the purpose and
consequences of the hearing, and of the right to be represented by a lawyer.
The person concerned can submit evidence and present arguments in favour of
release. See also rules 18, 28, 29 and 30 of the Adjudication Division
Rules.
- Where a statutory duty to give reasons exists, the courts
ensure that it is strictly enforced. See Northwestern Utilities Limited v.
The City of Edmonton, [1979] 1 S.C.R. 684 and S.E.P.Q.A. v. Canada
(Canadian Human Rights Commission), [1989] 2 S.C.R. 879. Where such a duty
does not exist, however, the case law diverges: see Proulx v. Public
Service Staff Relations Board et al., [1978] 2 F.C. 133 (C.A.);
Canadian Arsenals Limited v. C.L.R.B., [1979] 2 F.C. 393 (C.A.);
Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Taabea
v. Refugee Status Advisory Committee, [1980] 2 F.C. 316 (T.D.); Torres
v. Canada (Minister of Employment and Immigration), [1983] 2 F.C. 81
(C.A.).
- Mensinger v. Canada (Minister of Employment and
Immigration), [1987] 1 F.C. 59 (T.D.), at p. 72: "It is the facts, the
circumstances and the nature of the decision being made which will determine
whether a decision-maker is required to give reasons in order to comply with
the principles of fairness."; Cardinal v. Director of Kent Institution,
[1985] 2 S.C.R. 643, at p. 659: ". . . because of the serious effect of
the Director’s decision on the appellants, procedural fairness required that
he inform them of the reasons for his intended decision . . .".
- Mehterian, Pierre Antoine v. M.E.I. (F.C.A., no.
A-717-90), Hugessen, MacGuigan, Desjardins, June 17, 1992; Syed, Saqlain
Mohyuddin v. M.E.I. (F.C.T.D., no. IMM-2080-93), Jerome, September 13,
1994.
- Detention ordered by an adjudicator in accordance with ss.
103(3), 103(6), 103(8) or 103.1(5) of the Immigration Act. In the case
of a review of the decision for detention pursuant to s. 103(6) of the Act, it
is important to specify the period of time involved—48 hours, 7 days or 30
days.
- (1) The person is likely to pose a danger to the public.
(2) The person is not likely to appear for the examination, inquiry or
removal. In the case of detention pursuant to s. 103.1(2) or (3) of the
Immigration Act, the applicable criterion is that set out in s.
103.1(5), namely the question whether reasonable efforts are being made by the
Minister to investigate the matter.
- Unless an initial review of the reasons for detention is
involved, the summary of the facts can be very brief, but new facts must
necessarily be mentioned.
- Since each review of the reasons for detention is a de
novo hearing, the analysis and assessment of the facts must be those of
the adjudicator who held the hearing.
All information is copyright Immigration and Refugee
Board of Canada 1998.
Last updated 03/12/98