DETENTION REVIEWS IN CANADA
A HANDBOOK ON LAW, PROCEDURE AND PRACTICE OF DETENTION REVIEWS IN CANADA
Copyright © 2018 by Raj Napal
All the characters, names, places and incidents are the product of the author’s imagination. Any resemblance to actual events, locales, organizations, or persons living or dead is entirely coincidental and beyond the intent of either the author or the publisher.
THE INITIAL INTERVIEW
In most cases, a member of the public, perhaps, the father, mother, girlfriend, wife or friend of the detainee will contact you by phone. This will be your first opportunity to gather the essential information you will need to prepare the case. Below, I have set out an extract from one of my preliminary interviews, so you know the questions you should ask.
Here, the girlfriend of the detainee, Gill, called me in the morning of Tuesday, May 1, 2018 to find out what she can do to help her boyfriend, who is detained by the CBSA.
Gill: I got your number from someone. My boyfriend, Alfred, was arrested by these immigration cops, and he is in their holding centre. Can you help me?
Counsel: When was he arrested?
Gill: Yesterday morning.
Counsel: Do you know what he was arrested for?
Gill: He told me it was because he was speeding, but later he told me it was because he was illegal in Canada.
Counsel: What do you know about Alfred’s immigration history. When did he come to Canada? How did he become illegal here?
Gill: No, he came to work here from Jamaica. I thought he was okay to leave the farm where he was working in Hamilton as he told me he found a job at a farm in a neighbouring town near Orangeville when he came to live with me.
Counsel: So, he is illegal here?
Gill: I guess.
Counsel: Where is he being detained?
Gill: Rexdale Holding Centre. Can you get him out?
Counsel: Not right now. There will be a detention review hearing tomorrow morning when a member of the immigration division will decide whether to release him. You should contact the officer who is dealing with his case and tell the officer you’ll give a money guarantee and a cash deposit to make sure he appears for any immigration proceedings. If they continue to detain him, you can contact me, and we will prepare for the next detention review hearing 7 days after this first 48-hour review, which will take place tomorrow.
Gill: Right now, Tony and I are too upset to do anything for him.
Gill: However, I’m prepared to pay you some money to go to the detention review hearing tomorrow and get him out. But Tony and I do not want to get involved in that process.
Counsel: I am not prepared to do that as I won’t be prepared for that hearing and must see him at the holding centre to take instructions from him. I must also get key documents and prepare materials to submit to the immigration division. I cannot do that in the next 24 hours. Let’s see how the land lies after that first detention review hearing. If you want to call me after this hearing, we can discuss the matter further. Thanks.
From Appendix A, and section 57 of IRPA, it will be clear to you that after the detainee’s arrest by the CBSA, there is a strict timetable for reviews you must follow under IRPA. The first review is within 48 hours after arrest. The second review, if they still detain the person, takes place 7 days after the 48-hour review. If they still detain the person, the subsequent detention review will take place 30 days after the 7-day review. If still detained, further reviews take place every 30 days thereafter.
As we go through this handbook, you will find you must take detailed instructions from the detainee and must gather important documents for use at the detention review
hearing. it is impossible to do all this preparation work in less than 24 hours. It is possible that during this rushed preparation, you will miss important documents and make factual errors. This may compromise the detainee and lead to his continued detention. I will not expose the detainee to that kind of risk.
Once you present a plan that is rushed and not properly thought out due to the imminence of the 48-hour review hearing, the plan sticks after the member continues to detain your client. You created a situation where you now must devise further plans of release to persuade the member to release your client at a subsequent review. These plans may not be persuasive because of the rushed ill-considered first release plan. These detention reviews are tape recorded and they always prepare transcripts of the reviews. The case law says each review is a rehearing. The members must consider these previous reviews, and if they make a different decision, the member must explain the reason for their departure from a previous ruling. See Appendix A, paragraph 1.1.7 of the Chairperson’s Guidelines on Detention. (CGD) Members in subsequent reviews will look at the release plan in earlier reviews, which may block them from digesting the new release plan you prepared in the subsequent review. My motto is ‘better get it right the first-time round.’
Can you accept at face value everything Gill told you? Are there more facts you are not aware of concerning his status and immigration history? Perhaps, he is the subject of a removal order and a Canada wide arrest warrant. Did he arrive in Canada at a port of entry? Or did he cross into Canada illegally from the USA, having traveled to the USA from Jamaica?
The list of factual uncertainty is endless as you cannot rely on the accuracy of what Gill said. She may think she is telling you the truth, but she herself may not know the full facts about Alfred’s immigration history. The one certain thing I learned through my lengthy practice of immigration law are:
1. The detainee and their relatives are not sure of the facts and making up some facts, which they assume are correct but are not.
2. They are not aware of the full facts themselves.
3. Part of the facts are true, but the rest is inaccurate.
You deal with facts and must investigate the credibility of your client and/or his relatives or friends. In most cases, your detainee client will give evidence at the detention review hearing and Minister’s counsel and the member of the ID will ask the detainee searching questions. You want his evidence to be credible. How do you increase Alfred’s credibility?
You must be familiar with all the facts and allegations from the IRCC and the CBSA, well before the detention review hearing. It is that knowledge, which will enable you to extract the proper facts from your client. But how can you do this if when you appear at the first detention review, you learn the facts from Minister’s counsel for the first time? Everything now collapses as the facts from the client and his relatives or Gill is different to the facts in the IRCC and CBSA file that Minister’s counsel is reading.
After this interview with Gill, she calls you back after the 48-hour review telling you that Alfred is detained. She also says she could not help Alfred as she feared posting bond as it would affect her student loan. Gill tells you that her brother, Tony, who lives with her is confused about the process involved and does not want to have anything to do with it. She says Alfred relied on two guys he didn’t know to act as bondspersons. However, the member did not accept these bonds persons, and the member detained him after the 48-hour review. She informs you that the next review hearing will be on Wednesday, May 9, 2018.
After you explain the detention review process to her and the bonds persons that the immigration division will accept, she tells you she will do it, and she will persuade Tony to post bond. Now, you can start preparing for the upcoming detention review in seven days. In the next chapter, we will examine the core documents and enquiries you must make as part of your initial preparation for the upcoming detention review hearing.