Inside Canadian immigration detention review hearings: Reasonable Doubt

April 30, 2018
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From a Reasonable Doubt column in NOW: At any given moment, there are hundreds of foreign nationals and permanent residents being held in high-security Canadian jails without facing criminal charges. As I described in detail in a previous article, these detentions are authorized by the Immigration and Refugee Protection Act ("IRPA"). Foreign nationals and permanent residents can be put in jail if they are believed to be inadmissible to Canada and if they are found to be either a danger to the Canadian public or unlikely to appear for deportation or another immigration proceeding.

Immigration detainees do not always stay in custody all the way up to their pending immigration hearings or deportation. Instead, their detention is reviewed on a regular basis - once within 48 hours of arrest, a second time within a week of the first review and from then on, approximately every 30 days. At the end of these reviews, a member of the immigration division of the Immigration and Refugee Board ("Member") decides whether or not the detainee will be released.

While, at a casual glance, these reviews give detainees repeated and regular chances to plead for their freedom, the actual process of detention reviews makes them a frustrating and often fruitless experience. Even when represented by counsel, the odds are stacked against the detainee.

Detention reviews are set up as adversarial hearings, with the detainee (or their representative) arguing for release, and a Hearings Officer representing the Minister of Public Safety and Emergency Preparedness arguing for their detention. On some occasions, the Hearings Officer agrees that release is appropriate, but that is not the norm. The decision on whether or not to order release rests with the Member, who hears arguments from both sides.

A detention review hearing begins with submissions from the Hearings Officer. In these submissions, the Hearings Officer both provides an update on the state of the detainee's immigration proceedings and makes an argument for why the detainee should remain in custody.When giving the update, the Hearings Officer gives the Member and the detainee an idea of how much longer the detainee can expect to be in jail. For instance, the Hearings Officer may say when the detainee's admissibility hearing will be scheduled or when a plane ticket home will be purchased. From my experience, Hearings Officers regularly underestimate these time periods, and detainee are often kept in jail far longer than the estimated time. A shorter estimate from the Hearings Officer heightens the likelihood that the Member will order continued detention.

Read more: Inside Canadian immigration detention review hearings