Immigration and Refugee Protection Regulations (SOR/2002-227)

Marginal note:Danger to the public

246 For the purposes of paragraph 244(b), the factors are the following:

• (a) the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;

• (b) association with a criminal organization within the meaning of subsection 121(2) of the Act;

• (c) engagement in people smuggling or trafficking in persons;

• (d) conviction in Canada under an Act of Parliament for

  • (i) a sexual offence, or

  • (ii) an offence involving violence or weapons;

• (e) conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely,

  • (i) section 5 (trafficking),

  • (ii) section 6 (importing and exporting), and

  • (iii) section 7 (production);

• (f) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for

  • (i) a sexual offence, or

  • (ii) an offence involving violence or weapons;

• (g) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,

  • (i) section 5 (trafficking),

  • (ii) section 6 (importing and exporting), and

  • (iii) section 7 (production);

• (h) conviction for an offence in Canada under any of the following provisions of the Cannabis Act, namely,

  • (i) section 9 (distribution),

  • (ii) section 10 (selling),

  • (iii) section 11 (importing and exporting), and

  • (iv) section 12 (production); and

• (i) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Cannabis Act, namely,

  • (i) section 9 (distribution),

  • (ii) section 10 (selling),

  • (iii) section 11 (importing and exporting), and

  • (iv) section 12 (production).

Marginal note:Identity not established

• 247 (1) For the purposes of paragraph 244(c), the factors are the following:

  • (a) the foreign national’s cooperation in providing evidence of their identity or assisting the Department or the Canada Border Services Agency in obtaining evidence of their identity, in providing the date and place of their birth as well as the names of their mother and father, in providing detailed information on the itinerary they followed in travelling to Canada or in completing an application for a travel document;

  • (b) in the case of a foreign national who makes a claim for refugee protection, the possibility of obtaining identity documents or information without divulging personal information to government officials of their country of nationality or, if there is no country of nationality, their country of former habitual residence;

  • (c) the foreign national’s destruction of their identity or travel documents, or the use of fraudulent documents by the foreign national in order to mislead the Department or the Canada Border Services Agency, and the circumstances under which the foreign national acted;

  • (d) the provision of contradictory information by the foreign national with respect to their identity during the processing of an application by the Department or the Canada Border Services Agency; and

  • (e) the existence of documents that contradict information provided by the foreign national with respect to their identity.

• Marginal note:Non-application to minors

  (2) Consideration of the factors set out in paragraph (1)(a) shall not have an adverse impact with respect to minor children referred to in section 249.

Marginal note:Other factors

248 If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:

• (a) the reason for detention;

• (b) the length of time in detention;

• (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;

• (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned;

• (e) the existence of alternatives to detention; and

• (f) the best interests of a directly affected child who is under 18 years of age.

Marginal note:Best interests of the child

• 248.1 (1) For the purpose of paragraph 248(f) and for the application, in respect of children who are under 18 years of age, of the principle affirmed in section 60 of the Act, that a minor child shall be detained only as a measure of last resort, the following factors must be considered when determining the best interests of the child:

  • (a) the child’s physical, emotional and psychological well-being;

  • (b) the child’s healthcare and educational needs;

  • (c) the importance of maintaining relationships and the stability of the family environment, and the possible effect on the child of disrupting those relationships or that stability;

  • (d) the care, protection and safety needs of the child; and

  • (e) the child’s views and preferences, provided the child is capable of forming their own views or expressing their preferences, taking into consideration the child’s age and maturity.

• Marginal note:Degree of dependence

  (2) For the purpose of paragraph 248(f), the level of dependency of the child on the person for whom there are grounds to detain shall also be considered when determining the best interests of the child.

Marginal note:Special considerations for minor children

249 For the application of the principle affirmed in section 60 of the Act that a minor child shall be detained only as a measure of last resort, the special considerations that apply in relation to the detention of minor children who are less than 18 years of age are

• (a) the availability of alternative arrangements with local child-care agencies or child protection services for the care and protection of the minor children;

• (b) the anticipated length of detention;

• (c) the risk of continued control by the human smugglers or traffickers who brought the children to Canada;

• (d) the type of detention facility envisaged and the conditions of detention;

• (e) the availability of accommodation that allows for the segregation of the minor children from adult detainees who are not the parent of or the adult legally responsible for the detained minor children; and

• (f) the availability of services in the detention facility, including education, counselling and recreation.

Marginal note:Applications for travel documents

250 If a completed application for a passport or travel document must be provided as a condition of release from detention, any completed application provided by a foreign national who makes a claim for refugee protection shall not be divulged to government officials of their country of nationality or, if there is no country of nationality, their country of previous habitual residence, as long as the removal order to which the foreign national is subject is not enforceable.

PART 15Prescribed Conditions

Marginal note:Inadmissibility on grounds of security — conditions

250.1 For the purposes of subsections 44(4), 56(3), 58(5), 58.1(4), 77.1(1) and 82(6) of the Act, the conditions that must be imposed on a foreign national or permanent resident are the following:

• (a) to inform the Canada Border Services Agency in writing of their address and, in advance, of any change in that address;

• (b) to inform the Canada Border Services Agency in writing of their employer’s name and the address of their place of employment and, in advance, of any change in that information;

• (c) unless they are otherwise required to report to the Canada Border Services Agency because of a condition imposed under subsection 44(3), 56(1), 58(3) or 58.1(3) or paragraph 82(5)(b) of the Act, to report once each month to the Agency;

• (d) to present themselves at the time and place that an officer, the Immigration Division, the Minister or the Federal Court requires them to appear to comply with any obligation imposed on them under the Act;

• (e) to produce to the Canada Border Services Agency without delay the original of any passport and travel and identity documents that they hold, or that they obtain, in order to permit the Agency to make copies of those documents;

• (f) if a removal order made against them comes into force, to surrender to the Canada Border Services Agency without delay any passport and travel document that they hold;

• (g) if a removal order made against them comes into force and they do not hold a document that is required to remove them from Canada, to take without delay any action that is necessary to ensure that the document is provided to the Canada Border Services Agency, such as by producing an application or producing evidence verifying their identity;

• (h) to not commit an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;

• (i) if they are charged with an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, to inform the Canada Border Services Agency of that charge in writing and without delay;

• (j) if they are convicted of an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, to inform the Canada Border Services Agency of that conviction in writing and without delay; and

• (k) if they intend to leave Canada, to inform the Canada Border Services Agency in writing of the date on which they intend to leave Canada.

Marginal note:Immigration Appeal Division — conditions

251 For the purposes of subsection 68(2) of the Act, the conditions that must be imposed on a foreign national or permanent resident by the Immigration Appeal Division are the following:

• (a) to inform the Canada Border Services Agency and the Immigration Appeal Division in writing, in advance, of any change in their address;

• (b) to provide to the Canada Border Services Agency a copy of any passport and travel document that they hold and, if they do not hold any such documents, to complete an application for a passport or travel document and provide that application to the Agency;

• (c) to apply for an extension of the validity period of any passport and travel document that they hold before it expires and to provide a copy of the extended document to the Canada Border Services Agency;

• (d) to not commit an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;

• (e) if they are charged with an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, to inform the Canada Border Services Agency of that charge in writing and without delay; and

• (f) if they are convicted of an offence under an Act of Parliament or an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, to inform the Canada Border Services Agency and the Immigration Appeal Division of that conviction in writing and without delay.

PART 16Seizure

Marginal note:Custody of seized thing

252 A thing seized under subsection 140(1) of the Act shall be placed without delay in the custody of the Department or the Canada Border Services Agency.

Marginal note:Notice of seizure — person from whom seized

• 253 (1) An officer who seizes a thing under subsection 140(1) of the Act shall provide written notice to the person from whom it was seized, including the grounds for the seizure.

• Marginal note:Notice of seizure — lawful owner

  (2) If the person from whom the thing was seized is not the lawful owner, the officer shall make reasonable efforts to identify the lawful owner and to give the lawful owner written notice of, and the grounds for, the seizure. If the notice is provided by mail, notification is deemed to have been provided on the seventh day after the day on which the notice was mailed.

Marginal note:Application for return — person from whom seized

• 254 (1) If a thing was seized on the ground that it was fraudulently or improperly obtained or used, or that the seizure was necessary to prevent its fraudulent or improper use, the person from whom it was seized may apply for its return in writing within 60 days after the day on which the notification referred to in subsection 253(1) was provided.

• Marginal note:Return — improperly or fraudulently obtained

  (2) If the application is in respect of a thing seized on the ground that it was fraudulently or improperly obtained, in order to have the thing returned, the applicant shall demonstrate that they were entitled to have that thing in their possession at the time of the seizure and that they are still entitled to it.

• Marginal note:Return — improperly or fraudulently used

  (3) If the application is in respect of a thing seized on the ground that it was fraudulently or improperly used, in order to have it returned, the applicant shall demonstrate that they did not participate in the fraudulent or improper use of the thing, that at the time of the seizure they were entitled to have that thing in their possession and that they are still entitled to it.

• Marginal note:Return — prevention of improper or fraudulent use

  (4) If the application is in respect of a thing seized on the ground that the seizure was necessary to prevent its fraudulent or improper use, in order to have it returned, the applicant shall demonstrate that the seizure is no longer necessary to prevent its fraudulent or improper use, that at the time of the seizure they were entitled to have that thing in their possession and that they are still entitled to it.

Marginal note:Application for return — lawful owner

• 255 (1) If a thing was seized on the ground that it was fraudulently or improperly obtained or used, or that the seizure was necessary to prevent its fraudulent or improper use, the lawful owner may apply for its return in writing within 60 days after the day on which the notification referred to in subsection 253(2) was provided.

• Marginal note:Return to lawful owner — improperly or fraudulently obtained

  (2) If the application is in respect of a thing seized on the ground that it was fraudulently or improperly obtained, in order to have the thing returned, the applicant shall demonstrate that at the time of the seizure they were the lawful owner and that they are still the lawful owner.

• Marginal note:Return to lawful owner — improperly or fraudulently used

  (3) If the application is in respect of a thing seized on the ground that it was fraudulently or improperly used, in order to have it returned, the applicant shall demonstrate that

  • (a) they did not participate in the fraudulent or improper use of the thing, that at the time of the seizure they were the lawful owner and that they are still the lawful owner.

  • (b) they exercised all reasonable care to satisfy themselves that the person to whom they gave possession of the thing was not likely to fraudulently or improperly use it.

• Marginal note:Return to lawful owner — prevention of improper or fraudulent use

  (4) If the application is in respect of a thing seized on the ground that the seizure was necessary to prevent its fraudulent or improper use, the thing shall be returned to the applicant if they demonstrate that the seizure is no longer necessary to prevent its fraudulent or improper use, that at the time of the seizure they were the lawful owner and that they are still the lawful owner.