If You Are Detained

Why CBSA may seek to detain you

It is important to know the reasons why you could be detained. These reasons include:

Flight risk

CBSA may have concerns whether you will show up for your removal or an immigration proceeding. For example, you may have a history of not following immigration laws (in Canada or another country).

Identity

CBSA may have questions about who you say you are. This can happen if you do not have documents to prove your identity. It can also happen if CBSA believes you have false documents or does not believe the information you provided about yourself or how you traveled to Canada. 

CBSA will ask you for evidence to prove your identity. Sometimes they look at social media, visa applications, or information from other countries.

Danger to the public

CBSA may believe you are dangerous to people in Canada.

Security

CBSA may have criminal or security concerns, and they can detain you while they try to get more information. If they find evidence supporting their concerns, they may ask the IRB-ID to decide if you are allowed to be in Canada.

Get released with conditions

For any of the situations above, CBSA may release you if you promise to follow certain conditions.

For example, if they think you are a flight risk, you can promise to:

• report to CBSA regularly,
• live at a certain place, or 
• get a cash deposit or guarantee from another person (such as a family member).

When you can be detained

You can be detained at a legal border crossing, at an unofficial border crossing, at an airport, a seaport, or within Canada.

In most cases, this happens at the start of the refugee claim process. You can also be detained when you are already in Canada or during or after an interview with immigration officials, while you are in Canada.

Where you can be held

If a CBSA officer arrests you, you may be held in a CBSA Immigration Holding Centre. These are located in:

• Toronto, Ontario
• Laval, Quebec (close to Montreal)
• Surrey, British Columbia (close to Vancouver)

Where you are detained depends on whether there is an Immigration Holding Centre in your region, available space in it, and the level of risk they think you pose. The conditions of these locations vary. It may be possible to ask CBSA to change your location. A Detention Liaison Officer or an Inland Enforcement Officer can tell you who to contact if you are concerned about conditions.

You may be detained at a provincial or territorial jail as opposed to an Immigration Holding Centre, if there is no Holding Centre where you live, or if CBSA believes that you are a danger to others or to yourself. 

How long you can be detained

If you are detained, CBSA may release you within 48 hours if they believe there is no reason to continue holding you or if there is an Alternative to Detention (ATD) available. If you are still detained after 48 hours, you will have a detention review hearing. If you are not released, you will have another hearing within 7 days. If you continue to be detained, you will have hearings at least every 30 days from then on.

How detention works

Detention review hearing

You will have your first detention review hearing with the IRB-ID within 48 hours after your arrest or as soon as possible. 

At the hearing, a CBSA representative explains why you are being detained, presents evidence and may argue that you should remain in detention or recommend your release. A Member of the IRB-ID looks at the reasons you were detained and decides if you should remain in detention, or be released with or without conditions. 

Even if CBSA establishes that there are grounds for your continued detention, the Member also considers:

• Reasons for detention
• Length of detention
• Delays or problems that CBSA or you caused
• Possible alternatives to detention
• The best interests of any children under 18 who are involved
• Conditions of detention

In addition to a CBSA representative and a Member of the IRB-ID, other people may attend your hearing, including:

• You and any family members, if they are also detained
• An interpreter, if you need one
• Your legal representative, if you have one
• Witnesses or observers at your hearing, if allowed

Most IRB hearings are virtual. However, a request can be made to have your hearing in-person. 

The detention review hearing is in English or French. The IRB-ID will give you an interpreter if you need one. If you do not speak English or French and need an interpreter in your own language, tell CBSA this when you are arrested.

The people at a detention review hearing are:

• The Member of the IRB-ID who makes the decision
• A CBSA representative (called Minister’s Counsel)
• You and any family members, if they are also detained
• An interpreter, if you need one
• Your legal representative, if you have one
• Witnesses or observers at your hearing, if allowed

Alternatives to Detention

You or your legal representative can suggest an Alternative to Detention (ATD). An ATD is a release plan with conditions that you may follow. Some reasonable ATD’s can include:

• providing CBSA with your residential address
• reporting regularly to CBSA
• following a curfew
• living with a specific person
• avoiding drinking alcohol or taking drugs

The Member will decide if conditions are necessary and what the conditions will be. 

If detention continues

If the IRB-ID Member decides you must continue to be detained, you will have another hearing within seven days. If you are ordered detained at this second hearing, you will have hearings at least every 30 days from then on.

If you remain detained after your refugee claim has been filed, the IRB-RPD will process your claim more quickly. They will schedule a hearing in a shorter amount of time than usual. If you have your hearing while detained, and you do not have a legal representative, it is important to ask an NGO for help.

If you are released

If the IRB-ID Member orders your release, you will be told if there are any conditions to follow. It is very important to understand the conditions. You must follow these conditions until CBSA says you do not have to, or until the IRB-ID or CBSA agree to change them. 

Get legal representation

If you are detained, ask to speak to a legal representative. How easily you can get one depends on where you are in Canada. In some areas:

• You may receive free legal representation from duty counsel (a lawyer or a paralegal) at your hearings.
• You may get a legal representative through a provincial legal aid program if you qualify.
• You can hire a private lawyer or immigration consultant. 
• You can also choose to have an unpaid representative such as a family member.
• You can represent yourself.

If you have a legal representative for your detention review hearings, the same person might not also represent you for your refugee claim.

Contacting people

It can be difficult to talk to people who are outside the Immigration Holding Centre where you are detained.

In the Holding Centres, you cannot use the internet or your own cell phone unless CBSA gives you permission. You can make free calls within Canada. You may need a prepaid international calling card to call another country.

Get information

You can ask to speak to a CBSA officer for more information about the steps ahead. Your legal representative can also give you important information. 

There are Non-Governmental Organizations (NGO) who support detained people. They may be able to visit you and give you information about your situation. Ask a CBSA officer or your legal representative if you can speak to an NGO.

Visitors

You may be able to have visits from friends, family members, or others. Visiting hours and conditions will vary.

Security measures

The Holding Centres are staffed by security guards who enforce the rules and watch over you.

Being detained can be a very difficult experience. It will seem like a prison and you will not have basic freedoms. Handcuffs, shackles, and other restraints may be used when you are outside the facility (for example, for outside medical appointments).

Children

If you are in Canada with your children, they may be held in a centre with you. If you are separated from your children or other family members, tell your legal representative and get help from an NGO.

Make a complaint

If you have a complaint about your treatment, you can complain to CBSA. Any discussions you have may come up again at your hearings. It is important to get legal advice or get information from an NGO.

Your rights

While you are detained, you have the right to:

• Be told why you are detained.
• Have access to a CBSA officer.
• Hire a legal representative to act for you.
• Get legal aid if you qualify. You will be told about the legal aid services available to you. You may also get a friend or a member of an organization to represent you without a fee.
• Contact your country’s embassy or consulate. If you are making a refugee claim, you should not do this without first getting legal advice. You can ask that the United Nations High Commissioner for Refugees (UNHCR) in Canada be contacted.
• Contact NGOs who may support you.
• Get an interpreter if you do not understand or speak English or French.
• Get medical attention. 
• Practice your religion.

How to start your refugee claim

It is very important that you let CBSA know that you want to make a refugee claim at the first possible opportunity. If CBSA decides you are inadmissible to Canada (for example, for overstaying your visa) they may issue an order requiring you to leave Canada (a “removal” order). Once CBSA issues a removal order against you, you may become ineligible to make a claim.

If you make a claim while in detention CBSA will direct you on how to complete the process. 

Timelines and your BOC Form

You must still meet any deadlines for the refugee claim process. This includes the BOC Form. If you get a BOC Form at your eligibility interview while in detention, you will have to complete the form as soon as possible, as directed by CBSA.

It is important to ask your legal representative if they can help you with your BOC Form. If you do not have a legal representative, ask CBSA to send your form to the IRB-RPD.  

If it was hard to do the BOC form while detained, explain this on the document. For example:

• You did not have a legal representative
• There was no way to get a translator or interpreter
• Any other problems you had because you were detained

You, or your legal representative if you have one, can ask for more time to do your BOC form.

If you send in the BOC form after the deadline, the IRB will hold a special hearing to decide if they will accept it. They may say you have abandoned your claim. CBSA must take you to this hearing if you are detained.