Detention review hearings

This page provides general information about detention reviews. It can help detained persons as well as family and friends understand the detention review process. We have also prepared a guide specifically for detained persons.

What you should know about detention review hearings

When people are detained by the Canada Border Services Agency (CBSA) for immigration reasons, they will have a detention review hearing before the Immigration Division of the Immigration and Refugee Board of Canada (IRB). The following information will help you understand the detention review process and what to expect.

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What happens after a person has been detained

  1. The CBSA tells the Immigration Division of the IRB when a person has been detained.
  2. A detained person has the right to a detention review hearing within 48 hours or as soon as possible afterward. The CBSA itself may release the person before this hearing takes place. If the CBSA does not release the person, the Immigration Division of the IRB will hold a detention review hearing.
  3. The Immigration Division sends the person a notice telling them when and where their detention review will be held.
  4. The detained person should also receive copies of any documents that the CBSA wants to use as evidence at the hearing.
  5. The hearing may take place by videoconference, on the telephone, or in person.
  6. The person presiding over the hearing is referred to as a member. The Immigration Division member decides whether the detained person will be released or stay in detention.

You should know: All IRB hearings are scheduled as virtual hearings. However, a detained person can also request an in-person hearing. If someone is representing the detained person, they should make the request in writing. If the detained person is not represented by counsel, they can make the request themselves—either in writing or orally at the hearing.

To learn more and find instructions for making requests, please consult the Immigration Division section in Request a virtual hearing at an IRB office or an in-person hearing.

The IRB's role in detention reviews

A member of the Immigration Division of the IRB will hear the case and decide whether the detained person will be released or stay in detention. The IRB is like a court, but less formal. It makes decisions that are legally binding.

You should know: The individual who decides whether a person is released or stays in detention is the Immigration Division member, also called the member.

The CBSA's role in detention reviews

A CBSA representative will take part in the detention review and explain why the person was detained. The CBSA representative will present evidence. The representative may argue that the person should remain in detention or may recommend the person's release.

You should know: The CBSA representative is also called the Minister's representative or Minister's counsel.

Representation at a detention review hearing

Although a detained person can represent themselves at their hearing, they can also choose to hire counsel. Counsel can be a lawyer or a registered immigration consultant. In Quebec, counsel can also be a notary. A detained person is responsible for paying their counsel.

A detained person who does not have enough money to pay for counsel may be able to get free legal help. Some provinces and territories offer free legal aid to people who are eligible. Some community or religious organizations that help immigrants and refugees may also be able to help. A detained person can ask an officer where they are being detained to help contact legal aid or other counsel. A detained person who decides to hire counsel or ask someone to help them should do so as soon as possible.

A friend or family member may also act as counsel if they are not receiving payment for their help.

Find a list of legal aid offices

Possible reasons for being detained

The CBSA representative can ask the Immigration Division member to keep a person detained if the CBSA believes:

The person is a danger to the public

To support its position, the CBSA may give examples of:

  • association with a criminal organization
  • criminal convictions or pending charges for sexual offences, certain drug-related offences, or offences involving violence or weapons
  • any behaviour, activities and events that support the claim that the person should be considered dangerous

Detainees can provide their own evidence and arguments to show the member why they are not a danger.

The person will probably not appear for an immigration hearing or for removal from Canada

To support its position, the CBSA may give examples of times when the person:

  • did not appear for immigration or court matters
  • did not follow conditions
  • entered a country illegally
  • escaped from custody

A detained person can provide their own evidence and arguments to show the member that they will appear when asked to do so.

The person's identity has not been established but can be

The detained person may have come to Canada without identity documents or with identity documents that might not be genuine. The CBSA may not be able to confirm the detained person's identity right away.

A person must help the CBSA establish their identity. They can do this by trying to get their identity documents and by giving information that will help the CBSA establish their identity.

The Immigration Division member will consider the CBSA's efforts, and the detained person's cooperation with the CBSA in proving their identity, before deciding to continue their detention or to order their release.

The person might be inadmissible to Canada for security reasons or because of a violation of human or international rights, serious criminality, criminality, or organized criminality

The CBSA will explain what steps they are taking to find out whether the person is inadmissible for one of these reasons. In this situation, the Immigration Division member can only consider whether the CBSA has a reasonable suspicion and is taking the necessary steps to investigate it.

Other factors that will be considered in a detention review

The member must consider the reasons a person is in detention, and also:

  • how long they have been in detention
  • how long detention might continue if they are not released
  • whether they or the CBSA have caused any unexplained delay
  • any alternative to detention that is available
  • the best interests of any directly affected child

Detainees may present evidence and arguments about any of these factors for the member to consider.

What happens at a detention review hearing

  1. The Immigration Division member is in charge of the hearing. The member will start by introducing everyone and explaining what is going to happen. If the detained person has requested an interpreter, the member will check that the detained person and the interpreter understand each other.
  2. The CBSA representative will explain the reasons for detention and present evidence and arguments that support their position. More than one reason for detention can be given.
  3. Detainees and their counsel will be given an opportunity to respond, present evidence and arguments, and ask questions.
  4. The CBSA representative may be allowed to respond to what a detained person and their counsel have said.
  5. If there are witnesses at the hearing, the CBSA representative, detained person or their counsel, and the member may ask them questions.
  6. After hearing from all the participants, the member will decide whether the detained person will be released or stay in detention.

There may be an alternative to detention

An alternative to detention is a release plan that may include conditions the detained person must obey. The detained person can suggest an alternative to detention. When preparing for their hearing, detained persons should think about reasonable alternatives to detention. Conditions could include:

  • providing the CBSA with their residential address
  • reporting regularly to the CBSA
  • obeying a curfew
  • living with a specific person
  • avoiding drinking alcohol or taking drugs
  • any other conditions that are needed in the case

The member will decide if conditions are necessary and what they should be.

The alternative to detention may also include a bond

There are 2 types of bonds:

  • Deposit (also called a cash bond): Money is deposited with the government before the detained person is released. If the detained person does not obey the conditions, the Government of Canada will keep the money and CBSA may arrest and detain the person again. If the detained person obeys the conditions, CBSA will eventually return the money to the bondsperson.
  • Guarantee (also called a performance bond): The bondsperson promises to pay an amount of money if the detained person does not obey release conditions. If the detained person does not obey the conditions, the Government of Canada will collect the money from the bondsperson and the CBSA may arrest and detain the person again. For a guarantee, the bondsperson must be a Canadian citizen or permanent resident of Canada and must show that they can afford to pay the bond and can ensure the detained person will obey the release conditions.

The person who provides the bond is known as a bondsperson. At the hearing, the CBSA representative and the member may ask the proposed bondsperson for information that will help the member decide if the bond is suitable. The bondsperson can provide this information before the hearing by completing a Bondsperson Information form.

You should know: A bondsperson can be a friend, family member, employer, community worker or even the detained person.

A detained person should consider potential bondspersons, how much money could be available for the bond, and any other information they can provide to help the member decide. Detainees should also make sure that the bondsperson is available during the hearing to answer questions from the CBSA representative and the member.

When the detained person will receive a decision

After hearing from the CBSA representative and the detained person and their counsel, the Immigration Division member will decide whether the person will be released or stay in detention. The member will usually give the decision and reasons for the decision at the end of the hearing. However, if the issues are very complicated, the member may need more time to review all the evidence and prepare their decision.

What happens if the member decides that the person must stay in detention

If the detained person is ordered to stay in detention, they will have another detention review within 7 days. At the 7-day review, if the Immigration Division member orders that the person must remain in detention again, there will be another review in 30 days, and every 30 days after that until the person is released or removed from Canada. At each detention review, the detained person can present new facts to support a request for release. If the detained person's situation changes between detention reviews, they may ask the Immigration Division for an early hearing.

What happens after a person is released

After release, if the detained person stays in Canada, they must obey the conditions of their release. These conditions continue to apply to the person until the person is removed from Canada or until the conditions have been changed or cancelled.

A person can ask the Immigration Division to change or cancel their conditions

If the detained person's situation changes after conditions are imposed, they can write a letter to the Immigration Division explaining why they think their conditions should be changed and send a copy of the letter to the CBSA. They can use the Application to vary conditions of release form to help write this letter.

Important: If the Minister has identified the detained person as a designated foreign national, most of the information presented here does not apply and it may be 14 days before the first detention review.

To learn more: This information is based on Canada's Immigration and Refugee Protection Act, Immigration and Refugee Protection Regulations, the Immigration Division Rules, and the IRB Chairperson's Guideline 2 (Detention). You may wish to consult these documents for more details.