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

Regulations are current to 2019-06-20 and last amended on 2019-06-17. Previous Versions

PART 14Detention and Release (continued)

Marginal note:Flight risk

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

  • (a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;

  • (b) voluntary compliance with any previous departure order;

  • (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding;

  • (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal;

  • (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so;

  • (f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and

  • (g) the existence of strong ties to a community in Canada.

Marginal note:Danger to the public

 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).

  • SOR/2016-136, s. 13(F)
  • SOR/2018-170, s. 2

Marginal note:Identity not established

  •  (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.

  • SOR/2004-167, s. 65(E)
  • SOR/2016-136, s. 14(E)
  • SOR/2017-214, s. 6

Marginal note:Other factors

 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.

  • SOR/2017-214, s. 7
  • SOR/2019-213, s. 1

Marginal note:Best interests of the child

  •  (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.

  • SOR/2019-213, s. 2
 
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