If You Are Detained

Why CBSA may detain you

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

Flight risk

CBSA may have concerns that you will not show up for your removal or an immigration proceeding, especially if you 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 your 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 think that you shouldn’t be allowed to stay in Canada for security reasons or because of criminal behaviour. 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.

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, detention happens at the start of the refugee claim process. You can also be detained when you are already in Canada or at an interview with immigration officials.

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)

You may be detained in a jail if there is no Immigration Holding Centre where you live, or if CBSA believes that you are a danger to others or to yourself.

Where you are detained depends on whether there is an Immigration Holding Centre in your region with available space, and the level of risk CBSA thinks you pose. A Detention Liaison Officer or an Inland Enforcement Officer can tell you who to contact if you are concerned about conditions.

Release with conditions

If you are detained, CBSA may release you if you agree to follow certain conditions. 

For example, if they think you are a flight risk, you can agree 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).

How long you can be detained

How long you are detained depends on why you are there. For example, the IRB-ID may release you if you follow certain conditions or if there are children under 18 involved.

If you are detained, you will have detention review hearings at set times to see if you can be released. The first detention review hearing is held after 48 hours. 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.

Sometimes you may need to give an Alternative to Detention (ATD) to be released. An example of an ATD might be to stay with a friend who can supervise you and help you follow your conditions of release.

There is currently no time limit on how long you can be detained in Canada.

How detention works

Detention review hearing

You will have regular detention review hearings during your time in detention. Your first detention review hearing with the IRB-ID will be held 48 hours after your arrest or as soon as possible.

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

To make this decision the Member 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. 

Alternatives to Detention

At a detention review hearing you or your legal representative can suggest an Alternative to Detention (ATD). An ATD is a release plan with conditions that you must follow. Some examples of ATDs include:

• providing CBSA with the address where you will be living
• 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 you don’t have anywhere to live outside of detention ask about temporary housing options that might be available to you. There is some temporary housing available for refugee claimants in Canada. You can get information about these shelters from your legal representative, from a settlement or community worker, or sometimes from the CBSA. 

If detention continues

If the IRB-ID Member decides to keep you in detention, you will have another detention review hearing within 7 days. After that, you will have detention review hearings every 30 days until you are released.

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 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. Depending on where you are in Canada:

• You may get 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 may choose to hire a private lawyer or immigration consultant.

If you don’t have legal representation you can choose to have an unpaid representative, such as a family member, or you can represent yourself.

Contacting people

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

In the Immigration 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.

Inside jails, you may have trouble using a phone depending on which one you are in.

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 and jails 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.
• Get an interpreter if you do not understand or speak English or French.
• Get medical attention. 
• Practice your religion.
• 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.

How to start your refugee claim

If you want to make a refugee claim while you are in detention let CBSA know as soon as possible.

If you make a claim while you are in detention, CBSA will tell you 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 while in detention, you will have to complete the form as soon as possible, while respecting any deadlines.

It is important to ask a 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 for you to do the BOC form while detained, explain this on the document. For example you could say:

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

Your refugee hearing

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.

When you are released, you must give your address to the IRB-RPD. This is important because you don’t want to miss important information about your claim or your hearing date, if you haven’t had it yet. 

Be aware, if you were detained for identity reasons, you may be asked about this during your refugee claim hearing. CBSA may come to your hearing to explain their concerns. Make sure to ask your legal representative what to do if this happens.