A CBSA officer may issue a warrant for the arrest and detention of a permanent resident or foreign national if the officer has reasonable grounds to believe the individual is inadmissible under the Immigration and Refugee Protection Act and
- Poses a danger to the public; or
- Is unlikely to appear for an examination, an admissibility hearing, a removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister’s Delegate; or
- Cannot prove their identity to the satisfaction of the officer; or
- Is part of an irregular arrival as designated by the Minister of Public Safety and Emergency Preparedness.
Immigration law allows for the arrest and detention of foreign nationals without a warrant.
In all cases, the Canadian Charter of Rights and Freedoms requires that the arresting officer inform the arrested individual of:
- The reasons for their arrest;
- Their right to legal representation; and
- Their right to notify a representative of their government that they have been arrested.
Detention Review Process
Foreign nationals or permanent residents who have been detained by the Canada Border Services Agency (CBSA) for immigration reasons appear before the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) for detention reviews. The CBSA may detain, or hold, a foreign national or permanent resident,
if it has reasonable grounds to believe that the person:
- Is unlikely to appear for an examination, hearing or removal
- Is a danger to the public or
If it has reasonable grounds to suspect that the person:
- Is inadmissible – that is, not allowed to enter or remain in Canada – for security reasons, or for violating human or international rights, serious criminality, criminality or organised criminality
The officer is not satisfied that the person:
- Has established his/her identity (this only applies to foreign nationals). The person may be held in a minimum-security immigration holding centre or in a provincial correctional facility.
When the CBSA detains a person, a detention review must be held to decide whether there is reason under the Immigration and Refugee Protection Act (IRPA) to continue detention. Within 48 hours of detention (or as soon as possible afterwards), the ID will review the reasons for detention. A member (decision-maker) will hear the review according to the IRB tribunal process. The process is adversarial. There are two opposing parties: the person who is detained and Minister’s counsel for the CBSA. The detention review process is also public, so media or members of the public may attend or report on the proceedings.
The member will hear arguments from Minister’s counsel about why the person should remain detained. The person, or his or her counsel, will respond. The member may then order that the person remain in detention.
If the member orders continued detention, the person will appear for another hearing before the ID within seven days of the first review. The ID holds further hearings at least once every 30 days for as long as the person is detained. The person may ask for an early review of detention at any time, but must present new facts to justify the request. Either the detained person or Minister’s counsel may ask the Federal Court of Canada for leave, or permission, for a judicial review of any IRB decision on detention.
If the member finds that there is no longer a reason under IRPA to continue detention, then the member may order the person released. The member may also order certain terms and conditions, such as posting a bond (a cash deposit) or guaranteeing to do something, such as reporting on a regular basis to an immigration office.
If police do not release the person who has been arrested, they must bring him before a justice for a bail hearing within 24 hours or as soon as possible. A bail hearing is a procedure where a judge or a justice of the peace determines whether a person charged with an offence should be released or held in custody pending trial.
If anyone arrested for a criminal offence, police can release you from the place where the arrest is made or from the police station. Or they may hold you for a bail hearing later that day or the next.
Release without a bail hearing
- Summons, promise to appear
Except for murder and a few other very serious offences, a person arrested without a warrant can be released by way of a summons, appearance notice or promise to appear. Police will do so unless one or more of the following circumstances apply:
- They need to establish your identity;
- They fear you will destroy evidence relating to their investigation;
- They fear you will continue or repeat the offence or commit other offences;
- They have reasonable grounds to believe you will not show up for court.
In addition to a summons or promise to appear, police may make a person’s release conditional on his or her entering into a recognizance without sureties in an amount up to $500 and without deposit of money. An out-of-province resident can be asked to enter a recognizance without sureties and deposit up to $500 cash.
- Undertaking with conditions
Following arrest, a person also may be released on entering an undertaking with one or more of the following terms:
- remain within a certain area (city, country or province);
- deposit the person’s passport;
- notify police of any change in address or employment;
- abstain from communicating with any person or from going to any place;
- abstain from possessing a firearm and surrender any firearm;
- report to police at specified times;
- abstain from consuming alcohol or other intoxicating substances;
- abstain from taking drugs except in accordance with a medical prescription;