diff --git "a/data/processed/enf.json" "b/data/processed/enf.json" --- "a/data/processed/enf.json" +++ "b/data/processed/enf.json" @@ -2088,130 +2088,130 @@ "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf01-eng.pdf" }, { - "id": "enf-3-12-4-p1", + "id": "enf-3-13-1-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.4", - "marginal_note": "Conduct of the admissibility hearing or detention review following an application for non -", + "section": "ENF 3 s. 13.1", + "marginal_note": "Recourse in case of ‘favorable decision’ by the Member (finding the person not to be", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "12.4 Conduct of the admissibility hearing or detention review following an application for non -\ndisclosure ............................................................................................................................................. 33\n13 Detention reviews ............................................................................................................................... 33\n13.1 General ......................................................................................................................................... 33\n13.2 Authority to detain a person under IRPA ..................................................................................... 34\n13.3 Detention review – timeline for permanent residents and foreign nationals ................................ 34\n13.4 Detention review – timeline for designated foreign nationals (DFN) ............................................ 34\n13.5 Mechanism of detention reviews and grounds for continued detention ....................................... 35\n13.6 Factors to be considered when determining if detention should be continued (R248) ................ 38\n13.7 Making a recommendation on continued detention ..................................................................... 40\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 4\n13.8 Detention after an admissibility hearing has been concluded ...................................................... 41\n14 Applications related to admissibility hearings and to detention reviews ............................................. 41\n14.1 General guidelines ....................................................................................................................... 41", + "text": "13.1 Recourse in case of ‘favorable decision’ by the Member (finding the person not to be\ninadmissible) ................................ ................................ ................................ ........................ 51\n13.1.1 Minister’s appeal at the IAD ................................ ................................ ....................... 52\n13.1.2 Application for leave for judicial review ................................ ................................ ....... 52\n13.2 Prosecutions of serious violations of IRPA ................................ ................................ .......... 53\n14 Procedures - detention reviews ................................ ................................ .............................. 54\n14.1 General................................ ................................ ................................ ......................... 54\n2022-03-03 4\n14.1.1 Authority to detain a person under IRPA and release them prior to the first detention review\n................................ ................................ ................................ ................................ ....... 55\n14.1.2 Detention review – timeline for permanent residents and foreign nationals ..................... 55\n14.1.3 Mechanism of detention reviews and grounds for continued detention ........................... 55\n14.1.4 Factors to be considered when determining if detention should be continued (R248) ........ 59\n14.2 Preparing for a detention review: General guidelines................................ ........................... 62\n14.2.1 Disclosure of documents ................................ ................................ ........................... 62", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.4 (Conduct of the admissibility hearing or detention review following an application for non -) (part 1 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13.1 (Recourse in case of ‘favorable decision’ by the Member (finding the person not to be) (part 1 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-12-4-p2", + "id": "enf-3-13-1-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.4", - "marginal_note": "Conduct of the admissibility hearing or detention review following an application for non -", + "section": "ENF 3 s. 13.1", + "marginal_note": "Recourse in case of ‘favorable decision’ by the Member (finding the person not to be", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.2 Application for postponement ....................................................................................................... 41\n14.3 Request for adjournment .............................................................................................................. 41\n14.4 Change of venue .......................................................................................................................... 43\n14.5 Application for proceeding in-camera (in private) ........................................................................ 43\n14.6 Application for proceeding in public ............................................................................................. 44\n14.7 Applications applicable only to admissibility hearings.................................................................. 44\n14.8 Applications applicable only to detention reviews ........................................................................ 44\n15 A36(1)(a) – Paper-based admissibility hearings ................................................................................ 45\n15.1 Application pursuant to Rule 38 of ID Rules for paper-based hearings ....................................... 45\n16 Post-admissibility hearing procedures ................................................................................................ 45\n16.1 Carrying out a decision of the Immigration Division ..................................................................... 45\n16.2 Applications for judicial review ..................................................................................................... 46\n16.3 Prosecutions of serious violations of IRPA .................................................................................. 46", + "text": "14.2.2 Detention under A58(1)(c) ................................ ................................ ......................... 63\n14.2.3 Alternatives to detention (ATD) ................................ ................................ .................. 64\n14.2.4 Detention and vulnerable groups................................ ................................ ................ 67\n14.3 Making a recommendation on detention ................................ ................................ ........... 68\n14.3.1 Detention review for designated foreign nationals ................................ ........................ 69\n14.4 Outcomes of an admissibility hearing and effects on detention ................................ ............. 71\n14.4.1 Detained person found described at the hearing................................ ........................... 71\n14.4.2 Detained person not found described at the hearing. ................................ .................... 71\n14.5 Post-detention review procedures ................................ ................................ .................... 72\n14.5.1 Carrying out a decision of the Immigration Division ................................ ....................... 72\n14.5.2 Applications for stay of release and leave for judicial review................................ ........... 72\nAppendix A List of Cases / Rules of Evidence................................ ................................ ......... 74\nReferences................................ ................................ ................................ ........................ 74\nRules of evidence................................ ................................ ................................ ............... 75", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.4 (Conduct of the admissibility hearing or detention review following an application for non -) (part 2 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13.1 (Recourse in case of ‘favorable decision’ by the Member (finding the person not to be) (part 2 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-12-4-p3", + "id": "enf-3-13-1-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.4", - "marginal_note": "Conduct of the admissibility hearing or detention review following an application for non -", + "section": "ENF 3 s. 13.1", + "marginal_note": "Recourse in case of ‘favorable decision’ by the Member (finding the person not to be", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "17 Reporting ............................................................................................................................................ 46\n18 Feedback ............................................................................................................................................ 46\nAppendix A List of Cases / Rules of Evidence ........................................................................................ 48\nAppendix B Additional Guidance and Jurisprudence .............................................................................. 53\nAppendix C Manager’s approval to appear ............................................................................................. 56\nAppendix D Application Pursuant to Rule 38 .......................................................................................... 57\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 5\nUpdates to chapter\nListing by date:\n2015-04-29\nSubstantive revisions were made to improve the flow of the manual and to reflect current legislation and\nprocedures throughout this manual chapter, including the following:\n A new subsection 9.5 was added to clarify procedures related to persons concerned who are\nreferred by a Port of Entry for an admissibility hearing.\n Added the numbers of the listed forms and a column titled “Purpose” to clearly define the purpose\nfor each form. The same amendments (form titles and numbers) were applied throughout the\nmanual.\n Section 6 was amended to clarify background information on the nature of proceedings before the\nImmigration Division.\n Sections 8, 9, 10 and 11 were amended to streamline the language and to clarify procedures\nrelated to Admissibility Hearings.", + "text": "Types of evidence ................................ ................................ ................................ .............. 77\nDocumentary evidence and testimony ................................ ................................ .................. 78\nAppendix B Additional Guidance and Jurisprudence ................................ ............................. 80\n1 Adjournments to seek a temporary resident permit ................................ ............................. 80\n2 Adjournments for humanitarian considerations ................................ ................................ ...80\n3 Adjournments for additional evidence or arguments ................................ ............................ 81\n4 Adjournments for a change of venue................................ ................................ .................. 82\n5 Adjournments in an admissibility hearing pending a ministerial relief application ..................... 82\nAppendix C Manager’s approval to appear ................................ ................................ ........... 83\nAppendix D Template for an Application to Appear for an admissibility hearing in writing only\nPursuant to Rule 38 ................................ ................................ ................................ ............. 84\n2022-03-03 5\nUpdates to chapter\nListing by date:\n2022-03-03\nSubstantive revisions were made, taking into consideration recommendations of the 2017/2018\nExternal Audit of the Immigration and Refugee Board on detention reviews (where detention\nexceeded a minimum 100 days) and the institutional response by the CBSA. The structure of the\nmanual is now divided into three main components:\n sections 1-9 - information applicable to both admissibility hearings and detention\nreviews);", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.4 (Conduct of the admissibility hearing or detention review following an application for non -) (part 3 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13.1 (Recourse in case of ‘favorable decision’ by the Member (finding the person not to be) (part 3 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-12-4-p4", + "id": "enf-3-13-1-p4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.4", - "marginal_note": "Conduct of the admissibility hearing or detention review following an application for non -", + "section": "ENF 3 s. 13.1", + "marginal_note": "Recourse in case of ‘favorable decision’ by the Member (finding the person not to be", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": " Section 12 was updated to reflect 2008 changes to the Immigration and Refugee Protection Act\nregarding procedures related to applications for non-disclosure of information.\n Section 13 was updated to streamline and clarify procedures related to Detention Reviews.\n Updated section 14 to clarify instructions and procedures related to admissibility he arings and\ndetention reviews.\n Section 15 was added to include procedures for paper based hearings for section A36(1)( a).\n2006-02-16\nENF 3 – Section 13.3, an explanatory paragraph was added as well as a link to IP 10, section 9.\n2005-11-29\nENF 3 - Minor amendments were made to reflect the split between Citizenship and Immigration Canada\n(CIC) and the Canada Border Services Agency (CBSA). Clarification was provided as to whom the\nhearings officer represents at an admissibility hearing and/or detention review before the Immigration\nDivision of the Immigration and Refugee Board (IRB).\n2003-09-04\nMinor changes/clarifications were made to chapter ENF 3.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 6", + "text": " sections 10-13 - information specific to admissibility hearings and;\n section 14 - information specific to detention reviews.\nThe section pertaining to procedures applicable to detention reviews was also significantly\nexpanded and updated to include, amongst other things, additional alternatives to detention.\nAlso, as IRCC has transitioned most ENF manuals to a PDF format, broken web links were\nrepaired throughout the manual. A reference to the new ENF34 manual was added.\n2015-04-29\nSubstantive revisions were made to improve the flow of the manual and to reflect current\nlegislation and procedures throughout this manual chapter, including the following:\n A new subsection 9.5 was added to clarify procedures related to persons concerned who\nare referred by a Port of Entry for an admissibility hearing.\n Added the numbers of the listed forms and a column titled “Purpose” to clearly define the\npurpose for each form. The same amendments (form titles and numbers) were applied\nthroughout the manual.\n Section 6 was amended to clarify background information on the nature of proceedings\nbefore the Immigration Division.\n Sections 8, 9, 10 and 11 were amended to streamline the language and to clarify\nprocedures related to admissibility hearings.\n Section 12 was updated to reflect 2008 changes to the Immigration and Refugee\nProtection Act regarding procedures related to applications for non-disclosure of\ninformation.\n Section 13 was updated to streamline and clarify procedures related to Detention\nReviews.\n Updated section 14 to clarify instructions and procedures related to admissibility hearings\nand detention reviews.\n Section 15 was added to include procedures for paper based hearings for section\nA36(1)(a).\n2022-03-03 6\n2006-02-16", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.4 (Conduct of the admissibility hearing or detention review following an application for non -) (part 4 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13.1 (Recourse in case of ‘favorable decision’ by the Member (finding the person not to be) (part 4 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-1", + "id": "enf-3-13-1-p5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 1", - "marginal_note": "What this chapter is about", + "section": "ENF 3 s. 13.1", + "marginal_note": "Recourse in case of ‘favorable decision’ by the Member (finding the person not to be", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1 What this chapter is about\nThis chapter provides functional direction and guidance to hearings officers when acting as counsel for\nthe Minister of Public Safety and Emergency Preparedness (PSEP) at admissibility hearings and\ndetention reviews before the Immigration Division (ID) of the Immigration and Refugee Board (IRB).\nThis chapter highlights various provisions of the Immigration and Refugee Protection Act (IRPA) and\nRegulations that may apply, to hearings officer’s when preparing and presenting cases before the ID.\nIt also provides assistance to hearings officers by identifying procedural and evidentiary requirements.\nNote: References to IRPA appear in the text with an \"A\" prefix followed by the section number.\nReferences to the Immigration and Refugee Protection Regulations (IRPR) appear with a \"R\" prefix\nfollowed by the section number.", + "text": "ENF 3 – Section 13.3, an explanatory paragraph was added as well as a link to IP 10, section 9.\n2005-11-29\nENF 3 - Minor amendments were made to reflect the split between Citizenship and Immigration\nCanada (CIC) and the Canada Border Services Agency (CBSA). Clarification was provided as to\nwhom the hearings officer represents at an admissibility hearing and/or detention review before\nthe Immigration Division (ID) of the Immigration and Refugee Board (IRB).\n2003-09-04\nMinor changes/clarifications were made to chapter ENF 3.\n2022-03-03 7", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 1 (What this chapter is about)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13.1 (Recourse in case of ‘favorable decision’ by the Member (finding the person not to be) (part 5 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2", + "id": "enf-3-1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "Program objectives", + "section": "ENF 3 s. 1", + "marginal_note": "What this chapter is about", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2 Program objectives\nThe security of Canadian society and the protection of the health and safety of Canadians are two very\nimportant objectives of IRPA.\nHearings officers support the objectives of IRPA by\n promoting international justice and security by fostering respect for human rights and by denying\naccess to Canadian territory to persons who are criminals or security risks; and\n ensuring that decisions taken under the IRPA are consistent with the Canadian Charter of Rights\nand Freedoms (Charter).", + "text": "1 What this chapter is about\nThis chapter provides functional direction and guidance to hearings officers when acting as\nrepresentative for the Minister of Public Safety and Emergency Preparedness (MPSEP) or the\nMinister of Immigration Refugees and Citizenship at admissibility hearings and detention\nreviews before the Immigration Division (ID) of the Immigration and Refugee Board (IRB).\nThis chapter highlights various provisions of the Immigration and Refugee Protection\nAct (IRPA) and Immigration and Refugee Protection Regulatio ns (IRPR) that may apply, to\nhearings officers when preparing and presenting these types of cases before the ID.\nIt also provides assistance to hearings officers by identifying procedural and evidentiary\nrequirements.\nNote: References to IRPA appear in the text with an \"A\" prefix followed by the section number.\nReferences to the IRPR appear with a \"R\" prefix followed by the section number.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (Program objectives)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 1 (What this chapter is about)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-3", + "id": "enf-3-2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 3", - "marginal_note": "The Act and Regulations", + "section": "ENF 3 s. 2", + "marginal_note": "Program objectives", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3 The Act and Regulations\nThe following table outlines provisions which may be useful in making determinations.\nFor more information about Refer to Notes\nForeign national A2(1)\nCanadian citizen R2 Citizenship Act, section 3(1)\nPermanent resident A2(1)\nResidency obligation A28(1) and (2)\nTemporary resident A22(1) and (2),\nA29\nStatus document A31\nPermanent resident card R53 to R60\nRefugee protection A95\nSecurity grounds A34\nPublic health and safety A3(1)(h)\nHuman or international rights\nviolations\nA35\nSerious criminality A36(1)\nCriminality A36(2)\nOrganized criminality A37(1)\nHealth grounds A38(1)\nFinancial reasons A39\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 7\nMisrepresentation A40\nNon-compliance with Act A41\nFamily member R1(3)\nInadmissible family member A42\nExamination A18\nPermanent resident - Loss of status A46\nReasonable grounds See ENF 2, Evaluating inadmissibility, section\n3.1\nReasonable grounds to believe See ENF 2, Evaluating inadmissibility, section\n3.11\nDetention and release A54 - A60\nPlace of detention See ENF 20, Detention, section 11\nRight to appeal A63", + "text": "2 Program objectives\nWhile all the objectives of the IRPA are important to keep in mind, the key objectives that relate\ndirectly to admissibility hearings and detention reviews are:\n To protect public health and safety (the health and safety of Canadians) and to maintain\nthe security of Canadian society (A3(1)(h) & A3(2)(g));\n To promote international justice and security by fostering respect for human rights and\nby denying access to Canadian territory to persons who are criminals or security risks\n(A3(1)(i)); and\n To promote international justice and security by denying access to Canadian territory to\npersons, including refugee claimants, who are security risks or serious criminals\n(A3(2)(h)).\n To maintain, through the establishment of fair and efficient procedures, the integrity of\nthe Canadian immigration system; (A3(1)(f.1))\nWhile there are other application considerations set out in the IRPA, the key considerations that\nrelate directly to admissibility hearings and detention reviews are that the IRPA be construed and\napplied in a manner that:\n Furthers the domestic and international interests of Canada (A3(3)(a));\n Ensures that decisions taken under the IRPA are consistent with the Canadian Charter of\nRights and Freedoms(A3(3)(d)); and\n Complies with international human rights instruments to which Canada is signatory\n(A3(3)(f)).\n2022-03-03 8", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3 (The Act and Regulations)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (Program objectives)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3-1", @@ -2220,16 +2220,16 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 3.1", - "marginal_note": "Objectives and application", + "marginal_note": "IRPA objectives and application", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3.1 Objectives and application\nFor information about Refer to this section of the Act\nThe objectives with respect to immigration A3(1)\nThe objectives with respect to refugees A3(2)\nHow the Act is to be construed and applied A3(3)", + "text": "3.1 IRPA objectives and application\nFor information about\nRefer to this section of the Act\nThe objectives with respect to immigration A3(1)\nThe objectives with respect to refugees A3(2)\nHow the Act is to be construed and applied A3(3)", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3.1 (Objectives and application)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3.1 (IRPA objectives and application)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3-2", @@ -2242,12 +2242,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3.2 Inadmissibility\nPart I, Division 4 of IRPA contains the core provisions relating to inadmissibility and identifies the facts\nthat constitute inadmissibility under the Act, making distinctions based on categories of inadmissibility as\noutlined in the following table:\nCategories of inadmissibility\nFor information about Refer to this section of the Act\nSecurity grounds A34\nHuman or international rights violations A35\nSerious criminality A36\nOrganized criminality A37\nHealth grounds A38\nFinancial reasons A39\nMisrepresentation A40\nNon-compliance with Act A41\nInadmissible family member A42", + "text": "3.2 Inadmissibility\nPart I, Division 4 of IRPA contains the provisions that establish inadmissibility.\nCategories of inadmissibility\nFor information about Refer to this section of the Act\nSecurity grounds A34\nHuman or international rights violations A35\nSerious criminality A36(1) & 36(3)\nCriminality A36(2) & 36(3)\nOrganized criminality A37\nHealth grounds A38\nFinancial reasons A39\nMisrepresentation A40\nCessation of refugee protection A40.1\nNon-compliance with Act A41\nInadmissible family member A42\nThe following table outlines provisions which may be useful in making determinations.\nFor more information about Refer to\nForeign national A2(1)\nPermanent resident A2(1)\nExamination A18\n2022-03-03 9\nTemporary resident A22(1) & (2), A29\nStatus document A31\nRight to appeal A63 A64 &A65\nFamily member R1(3)\nCanadian citizen R2", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 3.2 (Inadmissibility)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3-3", @@ -2256,16 +2256,16 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 3.3", - "marginal_note": "Report of inadmissibility", + "marginal_note": "Report of inadmissibility and referral to the ID for an admissibility hearing", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3.3 Report of inadmissibility\nPart I, Division 5 of IRPA refers to the report of inadmissibility under section A44(1), the making of a\nremoval order by the Minister's delegate, or a referral to the ID for an admissibility hearing; the loss of\nstatus and the enforcement of removal orders.\nFor more information about Please refer to this chapter\nInadmissibility grounds ENF 1, Inadmissibility\nHow an officer decides if an applicant is inadmissible to\nCanada\nENF 2, Evaluating inadmissibility\nReports on inadmissibility ENF 5, Writing Section A44(1) Reports\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 8\nMinister's Delegate decisions and administrative removals ENF 6, Review of Reports under\nA44(1)", + "text": "3.3 Report of inadmissibility and referral to the ID for an admissibility hearing\nPart I, Division 5 of IRPA authorizes an officer to prepare an inadmissibility report [A44(1)] and,\nthe referral of such a report by the Minister's Delegate (MD) to the ID for an admissibility\nhearing [44(2)].\nFor more information about Please refer to chapter\nInadmissibility grounds ENF 1, Inadmissibility\nHow an officer decides if an applicant is inadmissible\nto Canada ENF 2, Evaluating inadmissibility\nReports on inadmissibility ENF 5, Writing Section A44(1) Reports\nMinister's Delegate decisions and administrative\nremovals\nENF 6, Review of Reports under\nA44(1)\nLoss of permanent resident status ENF23, Loss of permanent resident\nstatus\nA44(2) and R228 determine the cases in which, after a report under A44(1) has been written, the\nMinister’s delegate has jurisdiction to make a removal order, and in which cases the report may\nbe referred to the ID for an admissibility hearing.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3.3 (Report of inadmissibility)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3.3 (Report of inadmissibility and referral to the ID for an admissibility hearing)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3-4", @@ -2274,16 +2274,16 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 3.4", - "marginal_note": "Referral to the Immigration Division for an admissibility hearing", + "marginal_note": "Detention, alternatives to detention and release", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3.4 Referral to the Immigration Division for an admissibility hearing\nA44(2) and R228 determine the cases in which, after a report under A44(1) has been written, the\nMinister’s delegate has jurisdiction to make a removal order, and in which cases the report may be\nreferred to the ID for an admissibility hearing.", + "text": "3.4 Detention, alternatives to detention and release\nFor more information about Please see\nLegal grounds for arrest and detention of foreign\nnationals or permanent residents A55\n2022-03-03 10\nThe release by an officer or by the Immigration\nDivision A56 & A58\nThe review of detention, conditions of release and the\ndetention of a minor child A57-A60\nThe factors to be taken into consideration when\nassessing the detention or the release of a person who\nis a danger to the public, whose identity has not been\nestablished, or who is unlikely to appear for\nexamination, an admissibility hearing, removal from\nCanada, or at a proceeding that could lead to the\nmaking of a removal order\nR245-R248\nFor more information about Please refer to\nThe authority to arrest and detain a person, including\nthe various situations for detention and appropriate\nsections related to detention\nENF 20, Section 4.1\nRegulatory factors and conditions ENF 20, Section 4.2\nCBSA policy governing the treatment of persons\ndetained and grounds for detention ENF 20, Section 6\nDeposits and guarantees ENF8\nAlternatives to detention ENF34\nNote: For more information on arrests, see chapter ENF 7, Investigations and arrests.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3.4 (Referral to the Immigration Division for an admissibility hearing)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3.4 (Detention, alternatives to detention and release)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3-5", @@ -2292,16 +2292,16 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 3.5", - "marginal_note": "Decisions by the Immigration Division", + "marginal_note": "Decisions by the ID", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3.5 Decisions by the Immigration Division\nA45 identifies the various decisions that the ID may come to at the conclusion of an admissibility hearing.\nR229(1) identifies the applicable removal orders made by the ID for the purposes of paragraph A45( d).\nFurther information about detention and release is referenced in the following tables.", + "text": "3.5 Decisions by the ID\nA45 identifies the various decisions that the ID may come to at the conclusion of an admissibility\nhearing.\nR229(1) identifies the applicable removal orders made by the ID for the purposes of paragraph\nA45(d).\nA58 identifies the various decisions that the ID may come to at the conclusion of a detention\nreview.\nFor information about recourse available after the conclusion of an admissibility hearing or\ndetention review, please refer to the references in the following table.\nFor more information about Please refer to this chapter\n2022-03-03 11\nJudicial Review ENF9\nAppeals before the Immigration Appeal Division of\nthe IRB\nENF19", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3.5 (Decisions by the Immigration Division)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3.5 (Decisions by the ID)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3-6", @@ -2310,52 +2310,52 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 3.6", - "marginal_note": "Detention and release", + "marginal_note": "Removal, removal orders, stays and enforcement of removal orders", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3.6 Detention and release\nFor more information about Please see the\nAct\nLegal grounds for arrest and detention of foreign nationals or permanent residents A55\nThe release by an officer or by the Immigration Division A56\nThe review of detention and conditions of release and the detention as a last resort of\na minor child\nA57-A60\nFor more information about Please see chapter ENF\n20, Detention\nThe authority to arrest and detain a person, including the various situations\nfor detention and appropriate sections related to detention\nSection 3.1\nRegulatory factors and conditions Section 3.2\nCBSA policy governing the treatment of persons detained and grounds for\ndetention\nSection 5\nNote: For more information on arrests, see chapter ENF 7, Investigations and arrests.\nThe factors to be taken into consideration when assessing the detention or the release of a person who is\na danger to the public, whose identity has not been established, or is unlikely to appear for examination,\nan admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a\nremoval order, are set out in R245 to R248.", + "text": "3.6 Removal, removal orders, stays and enforcement of removal orders\nPart 1, Division 5 of IRPA refers to loss of loss of status of Citizens, permanent residents and\ntemporary residents. (A46 & A47), and removal (A48 – A52).\nPart 13 of the IRPR refers to refers to removals: enforcement of, stays, voiding, and return to\nCanada.” .\nIRPR Part 13 Division 1- The different types of removal orders (R223 - R227)\nFor more information about Please see Regulations\nDeparture order R224\nExclusion order R225\nDeportation order R226\nRemoval order effective against a family member R227(2)\nIRPR Part 13 Division 2 - Specified removal orders under specific circumstances (R228 -\nR229)\nFor more information about\nPlease see Regulations\nRemoval orders to be made by the Minister's delegate R228\nFor the purposes of Section A44(2) in respect of a\nforeign national R228(1)\nFor the purposes of Section A44(2) in respect of\npermanent residents R228(2)\nIf a claim for refugee protection is referred to the\nRefugee Protection Division R228(3)\n2022-03-03 12\nRemoval orders to be made by the ID for the purposes\nof paragraph A45(d) R229\nIRPR Part 13 Division 3: Stays of removal orders (R230 – 233)\nFor more information about\nPlease see Regulations\nConsiderations, cancellations and exceptions R230\nJudicial review R231\nPre-removal risk assessment R232\nHumanitarian and compassionate or public policy\nconsiderations R233\nIRPR Part 13 Division 4: Enforcement of removal orders (R235 – 243)\nFor more information about Please see Regulations\nRemoval order—not void R235\nProviding copies of the removal order to the person\nconcerned R236\nModality of enforcement R237\nVoluntary compliance R238\nRemoval by PSEP Minister R239\nWhen removal order is enforced in Canada or by an\nofficer outside of Canada R240\nCountry of removal R241\nMutual Legal Assistance in Criminal Matters Act R242\nPayment of removal costs R243", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3.6 (Detention and release)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3.6 (Removal, removal orders, stays and enforcement of removal orders)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-3-7", + "id": "enf-3-3-7-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 3.7", - "marginal_note": "Removal, removal orders, stays and enforcement of removal orders", + "marginal_note": "Forms", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3.7 Removal, removal orders, stays and enforcement of removal orders\nPart 1, Division 5 of IRPA refers to loss of status and removal.\nPart 13 of the Regulations refers to removals.\nDivision 1- The different types of removal orders (R223 - R227)\nFor more information about Please see Regulations\nDeparture order R224\nExclusion order R225\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 9\nDeportation order R226\nRemoval order effective against a family member R227(2)\nDivision 2 - The specified removal orders under specific circumstances (R228 - R229)\nFor more information about Please see\nRegulations\nRemoval orders to be made by the Minister's delegate R228\nFor the purposes of Section A44(2) in respect of a foreign national R228(1)\nFor the purposes of Section A44(2) in respect of permanent residents R228(2)\nIf a claim for refugee protection is referred to the Refugee Protection Division R228(3)\nRemoval orders to be made by the Immigration Division for the purposes of\nparagraph A45(d)\nR229\nDivision 3: Stays of removal orders (R230 – 233)\nFor more information about Please see Regulations\nConsiderations, cancellations and exceptions R230\nJudicial review R231\nPre-removal risk assessment R232\nHumanitarian and compassionate considerations R233\nDivision 4: Enforcement of removal orders (R235 – 243)\nFor more information about Please see Regulations\nRemoval order—not void R235\nProviding copies of the removal order to the person concerned R236\nModality of enforcement R237\nVoluntary compliance R238\nRemoval by PSEP Minister R239\nWhen removal order is enforced in Canada or by an officer outside of Canada R240\nCountry of removal R241\nMutual Legal Assistance in Criminal Matters Act R242\nPayment of removal costs R243", + "text": "3.7 Forms\nThe forms required are shown in the following table:\nForm title Form\nnumber Purpose\n2022-03-03 13\nNotice of Rights Conferred by the\nCanadian Charter of Rights and\nFreedoms and by the Vienna\nConvention Following Section 55 of\nthe Immigration and Refugee\nProtection Act Arrest or Detention\nBSF 776\nTo inform persons who have been\narrested/detained of their rights to counsel\nand the right to notify their government\nrepresentative.\nMinister’s Opinion Regarding the\nForeign National’s Identity BSF 510\nFor the Minister’s Delegate to advise the ID\nthat the identity of a detained foreign national\nhas not been, but may be established.\nNational Risk Assessment for\nDetention (NRAD) BSF 754\nTo provide a transparent and objective\nmethodology for the officer making the\ndetention decision; includes information\nidentifying the detainee's risk and\nvulnerability factors.\nDetainee Medical Needs BSF 674\nTo ensure the detainee medical needs are\nshared with detention facility staff. The form\nis not a medical assessment.\nReferral Under Subsection 44(2) of\nthe Immigration and Refugee\nProtection Act for an Admissibility\nHearing\nBSF 506\nFor the Minister’s Delegate to refer an\nA44(1) report to the ID for an admissibility\nhearing.\nRequest for Admissibility\nHearing/Detention Review Pursuant to\nthe Immigration Division Rules\nBSF 524\nTo request an admissibility hearing pursuant\nto A44(2), or following an arrest under A55,\nor to request a detention review to be held\nunder A57 or A57.1.\nNotice to Appear for a Proceeding\nUnder Subsection 44(2) BSF 504\nTo advise persons that a proceeding under\nA44(2) is to be held to determine if the\nperson shall be authorized to enter or remain\nin Canada, or if a removal order should be\nissued against them.\nNotice of Admissibility Hearing BSF 525", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3.7 (Removal, removal orders, stays and enforcement of removal orders)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3.7 (Forms) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-3-8", + "id": "enf-3-3-7-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 3.8", + "section": "ENF 3 s. 3.7", "marginal_note": "Forms", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3.8 Forms\nThe forms required are shown in the following table:\nForm title Form number Purpose\nNotice of Rights Conferred by the\nVienna Convention and to the\nRight to be Represented by\nCounsel at an Admissibility\nHearing\nIMM 0689B To inform persons who have been\narrested/detained or subject of an admissibility\nhearing of their rights to counsel and the right to\nnotify their government representative.\nRequest for Admissibility\nHearing/Detention Review\nPursuant to the Immigration\nDivision Rules\nBSF 524 To request an admissibility hearing pursuant to\nsubsection A44(2), or following an arrest under\nA55, or to request a detention review to be held\nunder A57 or A57.1.\nNotice of Admissibility Hearing BSF 525 To inform persons who are subject to an\nadmissibility hearing that a report prepared by an\nofficer was referred to the Immigration Division for\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 10\nan Admissibility Hearing under A44(2).\nNotice of Admissibility Hearing to\nFamily Members\nBSF 540 To inform family members of persons who are\nsubject to an admissibility hearing that the report is\nalso a report prepared against family members of\nthe foreign national and that the family members\nare themselves subject to an admissibility hearing.\nGeneric Document IMM 1442B\n(Warehouse\nitem)\nA generic form used for printing of all secure\ndocuments (e.g., work permit, study permit)\nNotice to Appear for a Proceeding\nUnder Subsection 44(2)\nBSF 504 To advise persons that a proceeding under A44(2)\nis to be held to determine if the person shall be\nauthorized to enter or remain in Canada, or if a\nremoval order should be issued against them.\nReferral Under Subsection 44(2)\nof the Immigration and Refugee\nProtection Act for an Admissibility\nHearing\nBSF 506 For the Minister’s Delegate to refer an A44(1)\nreport to the Immigration Division for an\nadmissibility hearing.\nMinister’s Opinion Regarding the\nForeign National’s Identity\nBSF 510 For the Minister’s Delegate to advise the\nImmigration Division that the identity of a detained\nforeign national has not been, but may be\nestablished.", + "text": "To inform persons who are subject to an\nadmissibility hearing that a report prepared\nby an officer was referred to the ID for an\nadmissibility hearing under A44(2).\nNotice of Admissibility Hearing to\nFamily Members BSF 540\nTo inform family members of persons who\nare subject to an admissibility hearing that\nthe report is also a report prepared against\nthem and that they are themselves subject to\nan admissibility hearing.\nInformation on financial information\nrelated to a deposits or guarantees\nassessed during the detention\nreview process\nBSF 211\nTo communicate to inland enforcement\nofficers potential solvability assessment or\nspecial circumstances addressed during a\ndetention review, where the Member ordered\nrelease upon posting of a bond.\n2022-03-03 14", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3.8 (Forms)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3.7 (Forms) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-4", @@ -2368,12 +2368,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "4 Instruments and delegations\nPlease refer to the Immigration Legislation Manual (IL 3) for specific delegations of authority. IL 3 refers to\nthe Designation of Officers and Delegation of Authority document, which sets out the class of per sons\ndesignated by the Minister to carry out any purposes of the Act and specifies the powers and duties of the\nofficers so designated.", + "text": "4 Instruments and delegations\nWhere the Minister is identified in the IRPA or IRPR as being responsible to carry out a\nparticular activity the Minister may delegate this authority to a certain class of persons.\nPlease refer to the Immigration Legislation Manual (IL 3 section 7.1) for specific delegations of\nauthority and designation of officers by the PSEP Minister and the IRCC Minister, respectively.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 4 (Instruments and delegations)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-6-1", @@ -2386,12 +2386,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "6.1 General\nThe ID conducts admissibility hearings for individuals believed to be inadmissible to Canada pursuant to\nsections 33-42 of IRPA. The ID also conducts detention reviews for most persons who are detained under\nIRPA.\nA member of the ID of the IRB presides over admissibility hearings and detent ion reviews. ID members\nare appointed under the Public Service Employment Act.\nMembers of the ID are impartial decision-makers who must consider the evidence presented at a hearing\nby the Minister’s counsel and by the person concerned before making a decision.", + "text": "6.1 General\nThe ID conducts admissibility hearings for individuals believed to be inadmissible to Canada\npursuant to sections 34-42 of IRPA.\nThe ID also conducts detention reviews for persons who are detained under IRPA.\nA member of the ID ( ID member) presides over admissibility hearings and detention reviews.\nMembers are public servants, appointed under the Public Service Employment Act.\nID members are impartial decision-makers. They must consider the evidence presented at a\nhearing by the hearings officer and by the person concerned or their counsel before making a\ndecision.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 6.1 (General)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-6-2", @@ -2404,12 +2404,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "6.2 Administrative tribunal\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 11\nThe ID is an administrative tribunal and hearings before the ID are quasi-judicial and adversarial. The\nprinciples of natural justice and procedural fairness apply to all proceedings before the ID.", + "text": "6.2 Administrative tribunal\nThe ID is an administrative tribunal and hearings before the ID are quasi-judicial and adversarial.\nThe principles of natural justice apply to all proceedings before the ID. For further information\non procedural considerations refer to Procedural fairness (ci.gc.ca)", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 6.2 (Administrative tribunal)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-6-3", @@ -2418,646 +2418,646 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 6.3", - "marginal_note": "Nature of the proceedings before the Immigration Division", + "marginal_note": "Nature of the proceedings before the ID", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "6.3 Nature of the proceedings before the Immigration Division\nThe courts have determined that immigration proceedings are civil, not criminal, in that the purpose of the\nadmissibility hearing is not to determine whether the person concerned is guilty or innocent, but rather to\ndetermine the person’s status in Canada.", + "text": "6.3 Nature of the proceedings before the ID\nThe courts have determined that immigration proceedings are civil, not criminal, in that the\npurpose of the admissibility hearing is not to determine whether the person concerned is guilty or\ninnocent, but rather to determine if the person is or remains admissible to Canada.\n2022-03-03 15", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 6.3 (Nature of the proceedings before the Immigration Division)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 6.3 (Nature of the proceedings before the ID)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-6-4", + "id": "enf-3-7-1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 6.4", - "marginal_note": "Compellability of person concerned", + "section": "ENF 3 s. 7.1", + "marginal_note": "General", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "6.4 Compellability of person concerned\nThe testimony of the person concerned is often the principal source of evidence available to the Minister\nof PSEP in admissibility hearings and detention reviews. The courts have held that persons concerned\nare compellable witnesses because they are protected against self-incrimination by the Canada Evidence\nAct [for example, Chana v. Canada (Minister of Manpower and Immigration) or, for an example of a\ndecision in the customs context, see Martineau v. Canada (Minister of National Revenue)]. This means\nthat testimony given by the person concerned at a proceeding before the ID cannot be used in criminal\nproceedings.\nParagraph 11(c) of the Charter stipulates that individuals who are accused of an offence cannot be forced\nto testify at their own trial. However, paragraph 11(c) of the Charter does not apply because the person\nconcerned is not a “person charged with an offence”. [Bowen v. Minister of Employment and Immigration;\nAlmrei (Re) (paragraphs 68 and 74)].\nA person at an admissibility hearing who refuses to take an oath, make a solemn declaration or\naffirmation, or answer a question, commits an offence and may be prosecuted under A127( c).", + "text": "7.1 General\nHearings officers represent the position of the Minister in admissibility hearings and detention\nreviews before an ID member. Depending on the alleged inadmissibility, the hearings officer will\nrepresent either the PSEP Minister or the IRCC Minister. At detention reviews, the hearings\nofficer always represents the PSEP Minister.\nRepresenting the PSEP Minister Representing the IRCC Minister\n Security (A34)\n Violation of human or international rights (A35)\n Organized crime (A37)\n All detention reviews (A57)\n Criminality (A36)\n Health reasons (A38)\n Financial reasons (A39 )\n Misrepresentation (A40)\n Cessation (A40.1)\n Non-compliance with the Act (A41)\n Inadmissible family member (A42)\nIn this capacity, hearings officers:\n are firm advocates of the Minister's position at the admissibility hearing and detention\nreviews;\n should always be aware that they are speaking and acting on behalf of the Minister, and\nthat the positions and actions taken should reflect CBSA/IRCC departmental policy;\n should always maintain a respectful and professional decorum in their telephone manner,\nwritten correspondence, conduct at hearings and all interactions with the public;\n should exhibit professionalism by adequately preparing for cases; and\n should treat all parties present at hearings with dignity and respect. This includes ID\nmembers, the persons concerned, counsel, witnesses, interpreters, and observers.\nNote: Hearings officers should communicate with all parties in plain language and refrain from\nusing internal jargon or acronyms (GCMS, PRRA, H&C).", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 6.4 (Compellability of person concerned)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.1 (General)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-6-5", + "id": "enf-3-7-2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 6.5", - "marginal_note": "Rules of evidence", + "section": "ENF 3 s. 7.2", + "marginal_note": "Role of the hearings advisor (HA)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "6.5 Rules of evidence\nThe rules governing the admissibility and presentation of evidence before the ID are less restrictive than\nin judicial proceedings. Unlike courts, tribunals are not bound by legal or technical rules of evidence\n[A173(c)], nor are they bound by the rule of best evidence. Members of the ID may, in particular, accept\nand consider hearsay evidence. [Canada (Minister of Employment and Immigration) v. Dan-Ash; Canada\n(Minister of Citizenship and Immigration) v. Nkunzimana; Bruzzese v. Canada (Minister of Public Safety\nand Emergency Preparedness), paragraph 50].\nID members may receive and base decisions on any evidence they consider credible or trustworthy\n[A173(d)].\nFor additional information on Rules of Evidence, refer to Appendix A, Section 2.", + "text": "7.2 Role of the hearings advisor (HA)\nHearings advisors provide support to the hearings officers. They research and interpret\nlegislation and jurisprudence on the grounds for the Minister’s participation and conduct critical\nanalysis of situational information and data to identify possible grounds for the Minister’s\nparticipation and make appropriate recommendations.\n2022-03-03 16\nThey prepare cases by investigating and gathering information, such as court information or\nverification of status, through external police agencies, foreign law enforcement agencies, and\nother stakeholders.\nPlease note that the exact duties of hearings advisors may vary by office, subject to operational\nneeds. For up-to-date information on delegated authority for hearings advisors by the PSEP\nMinister and/or the IRCC Minister, please refer to the Immigration Legislation Manual (IL 3).", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 6.5 (Rules of evidence)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.2 (Role of the hearings advisor (HA))", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-6-6", + "id": "enf-3-7-3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 6.6", - "marginal_note": "Disclosure of information", + "section": "ENF 3 s. 7.3", + "marginal_note": "Officer safety and security", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "6.6 Disclosure of information\nAt an admissibility hearing and/or a detention review hearings officers have an obligation to present all\nthe relevant evidence to the member of the ID, the person concerned or, if applicable, to the counsel of\nthe person concerned. Hearings officers should be particularly vigilant when disclosing evidence in cases\nwhere the person concerned is not represented by legal counsel.", + "text": "7.3 Officer safety and security\nIf an officer perceives a threat to their safety prior to a hearing, they should immediately inform\ntheir manager and complete the form IRB/CISR 3000 and submit the form to IRB security.\nManagers should contact the IRB and CBSA regional security to make arrangements for a risk\nassessment and the initiation of appropriate security measures.\nSituations may arise during a hearing in which an officer feels their personal safety or the\nsafety of others is being compromised. When an officer feels their safety has been threatened,\nsuch as in situations of intimidation by witnesses, the uttering of threats or other safety concerns,\nthey should immediately bring the matter to the attention of their manager.\nIRB procedures for safety and security should help prevent such situations and provide guidance\nfor managing them if they do arise.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 6.6 (Disclosure of information)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.3 (Officer safety and security)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-6-7-p1", + "id": "enf-3-7-4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 6.7", - "marginal_note": "Public versus private hearings", + "section": "ENF 3 s. 7.4", + "marginal_note": "Incident report writing", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "6.7 Public versus private hearings\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 12\nIn accordance with A166(a), hearings before the ID must be held in public.\nHowever, subject to A166(d) proceedings concerning refugee protection claimants must be held in\nprivate. This includes admissibility hearings, detention reviews, pre-hearing conferences and all other\napplications heard by the ID. The ID may make an exception to the rules. On request by a party to the\nproceeding or on its own initiative, the ID may,\n in the case of a person claiming refugee protection, order that a hearing be held in public;\n in other cases, order that a hearing be held in private or make any other order to ensure the\nconfidentiality of the proceedings (A166) as follows:\no When the member of the ID notes that there are observers present, the member\ndetermines if it is appropriate to allow these observers to remain or if they should be\nasked to leave.\no Pursuant to A166(e) representatives or agents of the United Nations High Commissioner\nfor Refugees (UNHCR) are entitled to observe proceedings concerning protected\npersons and persons who have made a claim for refugee protection.\no Pursuant to A166(f) representatives or agents of the UNHCR may not observe\nproceedings that deal with information or other evidence that is protected under A86 or\nfor which an application for non-disclosure has been made under A86 and the application\nwas not rejected.\n“Refugee protection claimant” means\n a refugee protection claimant whose eligibility has not yet been determined; or\n a refugee protection claimant whose claim has been determined to be eligible; or\n a refugee protection claimant whose claim has been decided by the Refugee Protection", + "text": "7.4 Incident report writing\nWhere an incident occurs before, or during, a hearing where an officer feels their safety has been\nthreatened, they should complete a Security Incident Report BSF152. Reporting procedures\nenable the CBSA to make important decisions regarding the safety and security of staff, ongoing\ntraining needs, and the recognition of exemplary performance in difficult situations.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 6.7 (Public versus private hearings) (part 1 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.4 (Incident report writing)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-6-7-p2", + "id": "enf-3-7-5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 6.7", - "marginal_note": "Public versus private hearings", + "section": "ENF 3 s. 7.5", + "marginal_note": "Attending a pre -hearing conference", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "Division (RPD), but who has not exhausted all appeals of the decision;\nbut does not mean\n a refugee protection claimant whose claim has been determined to be ineligible; or\n a refugee protection claimant whose claim has been rejected by the court of last resort.\nAccording to the interpretation of the Court in Gervasoni v. Canada (Minister of Citizenship and\nImmigration) (paragraph 13), the objectives of the Act pertaining to public hearings are met “if interested\nmembers of the public are not unreasonably restricted from attending the [hearing].”\nFor more information on applications to hold a proceeding in private, see section 14.5 below.\nHearings before the ID may be held in person or by means of a teleconferencing or a videoconferencing\ndevice [A164].", + "text": "7.5 Attending a pre -hearing conference\nThe ID may require the parties to participate in a pre-hearing conference to discuss issues,\nreview disclosure of information and the procedures to be followed in the case at hand.\n[Immigration Division Rules (ID Rules), Rule 20(1)]. The ID may require the parties to give any\ninformation or document at or before the conference [Immigration Division Rules , Rule 20(2)].\nRule 20(3) of the Immigration Division Rules provides that the ID must state orally at the hearing\nor make a written record of any decisions or agreements made at the conference. It is important\nthat all decisions or agreements made at the conference are clearly outlined in the hearings\nofficer’s notes, as the parties at the hearing will be bound by them.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 6.7 (Public versus private hearings) (part 2 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.5 (Attending a pre -hearing conference)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-6-8-p1", + "id": "enf-3-7-6", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 6.8", - "marginal_note": "Rights of the person concerned", + "section": "ENF 3 s. 7.6", + "marginal_note": "Use of a designated representative", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "6.8 Rights of the person concerned\nThe principle of natural justice and procedural fairness requires that the person concerned should fully\nunderstand the nature and purpose of the proceeding. Acting as a safeguard for individuals in their\ninteraction with the state, the principle of natural justice and procedural fairness stipulates that whenever\na person’s “rights, privileges, or interests” are at stake, there is a duty to act in a fair manner.\nID members must comply with the principle of natural justice and procedural fairness, which means that\npersons concerned have\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 13\n the right to adequate notice of a hearing;\n the right to disclosure (to know the case that has to be meet);\n the right to know the possible consequences of the hearing;\n the right to be heard (to make submissions); and\n the right to an impartial decision-maker.\nIRPA and its Regulations are also bound by the Charter and are required to respect the rights afforded\ntherein. These rights include, but are not limited to\n The right to life, liberty and security of person and the right not to be deprived thereof except in\naccordance with the principles of fundamental justice [section 7 of the Charter].\n The right on arrest or detention [section 10 of the Charter]:\no to be informed promptly of the reasons for the arrest or detention;\no to be informed without delay of the right to retain and instruct counsel; and\no to have the validity of a detention determined and to be released from detention if the\ndetention is not lawful.\n The right to the assistance of an interpreter: in all proceedings in which the person concerned is a\nparty or a witness before a court or tribunal, and does not understand or speak the langu age in", + "text": "7.6 Use of a designated representative\n2022-03-03 17\nRule 18 of the Immigration Division Rules stipulates that counsel for a party has a duty to notify\nthe ID if they believe that they should designate a representative for the person concerned. It is\nhowever the responsibility of the ID to ensure a designated representative is identified at the\nproceedings.\nHearings officers should ensure that the ID is notified in advance of the potential need for a\ndesignated representative by completing the appropriate section in the form BSF524 — Request\nfor Admissibility Hearing/Detention Review Pursuant to the Immigration Division Rules. A\nrepresentative must be 18 or older, understand the nature of the proceedings, be willing to act in\nthe best interests of the permanent resident or foreign national, and not have interests that\nconflict with those of the permanent resident or foreign national.\nThe ID is obligated to appoint a designated representative for any person who is the subject of an\nadmissibility hearing or a detention review if this person is under the age of 18 years (a \"minor\")\nor is unable to appreciate the nature of the proceedings IRPA, as directed in subsection 167(2)).\nThe IRB’s commentary to Rule 19 defines “the inability to appreciate the nature of the\nproceedings” as not being able to understand the reason for the hearing or why it is important or\ncannot give meaningful instructions to counsel about one’s case.\nThe same IRB commentary states that an opinion regarding competency may be based on the\nperson's own admission, the person's observable behavior at the proceeding, or on expert opinion\non the person's mental health or intellectual or physical faculties.\nLikewise, the commentary states that the authority to designate a representative or end a\ndesignation rests with the ID member presiding at the hearing. In the case of a minor, if the\nperson reaches 18 years of age while the proceedings are still ongoing, the designation ends\nautomatically, by operation of law.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 6.8 (Rights of the person concerned) (part 1 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.6 (Use of a designated representative)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-6-8-p2", + "id": "enf-3-7-7", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 6.8", - "marginal_note": "Rights of the person concerned", + "section": "ENF 3 s. 7.7", + "marginal_note": "Language of the proceedings", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "which such proceedings are being conducted or if the person concerned is deaf [section 14 of the\nCharter; ID Rules, Rule 17].\n The right to be represented: The person concerned has the right to obtain the services of, and to\nbe represented by legal or other counsel for all proceedings before the ID. Although IRPA does\nnot specifically provide for it, the right to be represented implies that the person concerned shall\nbe informed of this right and shall be given a reasonable opportunity to obtain couns el or the\nservices of a representative at their own expense, if so desired [A167].\n The person concerned does not have to be represented by counsel: The person may choose a\nfriend, or a representative of an organisation or association with an interest in th e welfare of the\nperson concerned, so long as no consideration is given for representing or advising the person\nconcerned.\nNote: Officers should refer to A91 for guidance on who may represent or provide advice for\nconsideration.\n The right to a hearing held in the official language of choice [Immigration Division Rules, Rules\n3(g), 8(d) and 16].", + "text": "7.7 Language of the proceedings\nThe Immigration Division Rules, Rules 3(g), 8(1)(d) and 16(1) clearly indicate that the language\nof the proceedings —English or French— must be chosen by the person subject to them.\nAt the request of the person concerned the IRB may make arrangements to provide interpretation\nfrom one official language to the other, taking into consideration third language\ninterpretation may also be required for the case. That being said, the responsibility for the\ntranslation of documentary evidence rests with the party disclosing the information. Information\nprovided by the Minister is governed under ID rule 3 for admissibility hearings and ID rule 8 for\ndetention reviews The Minister is generally expected to speak and disclose documents the\nofficial language of the hearing.\nIn the case of 48-hour detention reviews, official language fluency of counsel for the person may\nbe unknown at the time that the Request for admissibility hearing/detention review pursuant to\nthe Immigration Division Rules [BSF524] was submitted to the ID. Prior to the proceedings, the\nhearings officer should ensure that any official languages interpretation needs for counsel are\nflagged to the ID.\n2022-03-03 18", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 6.8 (Rights of the person concerned) (part 2 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.7 (Language of the proceedings)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-7", + "id": "enf-3-7-8", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 7", - "marginal_note": "Role of the Hearings Officer", + "section": "ENF 3 s. 7.8", + "marginal_note": "Interpretation", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "7 Role of the Hearings Officer\nHearings officers represent the position of the Minister of PSEP in admissibility hearings and detention\nreviews before a member of the ID. In this capacity, hearings officers\n are firm advocates of the Minister's position at the admissibility hearing;.\n should always be aware that they are speaking and acting on behalf of the Minister of PSEP, and\nthat the positions and actions taken should reflect CBSA departmental policy;\n should always be professional and respect decorum, as well as maintain professionalism in their\ntelephone manner, written correspondence, conduct at hearings and all interactions with the\npublic;\n should exhibit professionalism by adequately preparing for cases; and\n should treat all parties present at hearings with dignity and respect. This includes ID members,\npersons of concern, counsel, witnesses, interpreters, and observers.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 14\nClaimants are more likely to be cooperative if they are not frightened and confused. Refugee hearings are\nusually non-adversarial. When the Minister intervenes, it changes the dynamics and the hearing becomes\nadversarial.", + "text": "7.8 Interpretation\nThe presence of an interpreter in the hearing room may alter the way the hearings officer\npresents their submissions. At, or prior to, the ID member’s opening statement, it must be\nestablished if the person concerned wishes to have simultaneous interpretation, or if they prefer\nthe interpreter remain on standby and provide interpretation only at the person’s request. The\nperson’s choice will be noted on the record by the member. (see ID rule 17 for requesting an\ninterpreter).\nWhere simultaneous interpretation is conducted, the hearings officer must be mindful of their\npace, and speak in relatively short but complete sentences.\nThe interpretation of strings of numbers, in particular, can slow down the proceedings; h earings\nofficers may reconsider the relevance of quoting elements such as case numbers or phone\nnumbers, and determine whether or not it is necessary to cite them during their submissions.\nIf quoting extensive volumes of text, especially legal texts with precise terminology, the\ninterpreter should be provided a written copy to serve as a visual aid to the interpretation.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 7 (Role of the Hearings Officer)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.8 (Interpretation)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-1-p1", + "id": "enf-3-7-9-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.1", - "marginal_note": "General", + "section": "ENF 3 s. 7.9", + "marginal_note": "Rights of the person concerned", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.1 General\nAdmissibility proceedings are held pursuant to subsection A44(2) to determine the merits of allegations of\ninadmissibility under IRPA and to take applicable removal measures, if appropriate.\nPursuant to subsection A44(1), an officer who is of the opinion that a permanent resident or a foreign\nnational who is seeking entry to Canada, or who is in Canada, is inadmissible may prepare a report\nsetting out the relevant facts and transmit the report to a Minister’s Delegate (MD). Th e report is the legal\ndocument that gives the MD the authority to issue a removal order or to refer the matter for an\nadmissibility hearing, as prescribed by R228 and R229.\nAn MD who is of the opinion that the A44(1) report is well founded may refer the report to the ID for an\nadmissibility hearing in the following instances:\n in the case of a foreign national who may be inadmissible to Canada on one or more grounds for\nwhich the Minister has no jurisdiction to issue a removal order (refer to R229);\n in the case of a permanent resident, except for a report solely based on non-compliance of\npermanent resident obligations under A28.\nThe A44(1) report must be referred to the ID of the IRB for an admissibility hearing in the following\ninstances:\n in the case of a minor child who is not accompanied by a parent or adult legally responsible for\nthe child [R228(4)(a)]; and,\n in the case of a person who is unable to appreciate the nature of the proceedings and is not\naccompanied by a parent or adult legally responsible for the person [R228(4)(b)].\nThe MD must complete and send the following forms, along with the file and supporting documentary\nevidence, to the Hearings and Detention Unit of the Enforcement and Intelligence Division in the\nrespective Region:", + "text": "7.9 Rights of the person concerned\nThe principles of natural justice and procedural fairness require that the person concerned should\nfully understand the nature and purpose of the proceeding. Acting as a safeguard for individuals\nin their interaction with the state, the principles of natural justice and procedural fairness\nstipulate that whenever a person’s “rights, privileges, or interests” are at stake, there is a duty to\nact in a fair manner.\nID members must comply with the principle of natural justice and procedural fairness, which\nmeans the rights that persons concerned have include:\n the right to adequate notice of a hearing;\n the right to disclosure (to know the case that has to be met);\n the right to know the possible consequences of the hearing;\n the right to be heard (to make submissions, the right to present evidence, and cross-\nexamine witnesses.”); and\n the right to a fair and impartial decision-maker.\nIRPA and the IRPR are also bound by the Charter and are required to respect the rights afforded\ntherein. These rights include, but are not limited to\n The right to life, liberty and security of person and the right not to be deprived thereof\nexcept in accordance with the principles of fundamental justice [section 7 of the Charter].\n The right on arrest or detention [section 10 of the Charter]:\no to be informed promptly of the reasons for the arrest or detention;\no to be informed without delay of the right to retain and instruct counsel; and\n2022-03-03 19\no to have the validity of a detention determined and to be released from detention if\nthe detention is not lawful.\n The right to the assistance of an interpreter: in all proceedings in which the person\nconcerned is a party or a witness before a court or tribunal, and does not understand or", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.1 (General) (part 1 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.9 (Rights of the person concerned) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-1-p2", + "id": "enf-3-7-9-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.1", - "marginal_note": "General", + "section": "ENF 3 s. 7.9", + "marginal_note": "Rights of the person concerned", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": " Referal Under Subsection 44(2) of the Immigration and Refugee Protection Act for an\nAdmissibility Hearing (BSF 506);\n Request for Admissibility Hearing/Detention Review Pursuant to the Immigration Division Rules\n(BSF 524); and\nNote: The Regional Hearings and Detention Section forwards copies of both forms to the ID and retains\ncopies on file. For detention cases, the MD must send a copy of the 44(1) report, forms BSF506 and BSF\n524 directly to the Immigration Division and the Regional Hearings Office without delay. The documentary\nevidence should also be sent to the Regional Hearings Office as soon as possible\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 15\nFor more information on preparing and writing A44(1) reports, refer to ENF 5, Writing 44(1) Reports.\nFor more information on administrative removal orders refer to ENF 6, Administrative removal orders.\nFor more information on inadmissibility pursuant to A35 refer to ENF 18, War Crimes and Crimes Against\nHumanity.", + "text": "speak the language in which such proceedings are being conducted or if the person\nconcerned is deaf [section 14 of the Charter; Rule 17 of the ID Rules].\n The right to be represented: The person concerned has the right to obtain the services of,\nand to be represented by legal or other counsel for all proceedings before the ID.\nAlthough IRPA does not specifically provide for it, the right to be represented implies\nthat the person concerned shall be informed of this right and shall be given a reasonable\nopportunity to obtain and instruct counsel or the services of a representative at their own\nexpense, if so desired [A167].\nNote: Pursuant to A91 no person shall knowingly, directly or indirectly, represent or advise a\nperson for consideration – or offer to do so – in connection with a proceeding or application\nunder the IRPA. A person does not contravene subsection 91(1) where they are: lawyers in good\nstanding of a law society of a province or a notary who is a member in good standing of the\nChambre des notaires du Québec; any other member in good standing of a law society of a\nprovince or the Chambre des notaries du Québec, including a paralegal; or a member in good\nstanding of a body designated by the Minister (e.g., College of Immigration and Citizenship\nConsultants) – refer to the Regulations Designating a Body for the Purposes of Paragraph\n91(2)(c) of the IRPA SOR/2011-142 dated June 28, 2011 - https://laws-\nlois.justice.gc.ca/eng/regulations/SOR-2011-142/FullText.html. For further information on who\ncan represent or provide advice to a client refer to A91 of IRPA\nSection 91 does not apply where a person provides representation or advice without receiving\ncompensation, this may include a friend, or in some cases a representative of an organization or", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.1 (General) (part 2 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.9 (Rights of the person concerned) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-2", + "id": "enf-3-7-9-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.2", - "marginal_note": "Port of entry referral for an admissibility hearing", + "section": "ENF 3 s. 7.9", + "marginal_note": "Rights of the person concerned", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.2 Port of entry referral for an admissibility hearing\nThe Minister’s delegate, after reviewing a report pursuant to A44(1), may determine that the report is well\nfounded and refer it to the Immigration Division of the IRB for an admissibility hearing, which concludes\nthe examination pursuant to R37.\nHowever, if the person concerned was referred to an admissibility hearing and the referral is withdrawn,\nthe examination is not concluded and the case must be returned to the POE for determination.\nNote: Refer to ENF 4: Port of Entry Examination, section 5.6, for additional information on end of\nexamination.", + "text": "association, so long as no monetary or other enumeration is received to represent or advise the\nperson concerned.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.2 (Port of entry referral for an admissibility hearing)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.9 (Rights of the person concerned) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-3", + "id": "enf-3-7-10", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.3", - "marginal_note": "Burden of proof", + "section": "ENF 3 s. 7.10", + "marginal_note": "Compellability of person conc erned", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.3 Burden of proof\nThe burden of proof is the obligation to prove or disprove a fact. Pursuant to section A45( d) the burden of\nproof to establish admissibility depends on whether or not a person has lawful status in Can ada.\n9.3.1 Foreign nationals who have lawful status in Canada, including\npermanent residents\nFor cases involving persons who have lawful status in Canada, including permanent residents, the\nburden of proof rests with the Minister of PSEP to establish that the person is inadmissible.\nDuring an admissibility hearing, hearings officers must be prepared to offer evidence to support the\nallegation(s) of inadmissibility and rebut any statements that are made by the foreign national or the\npermanent resident.\n9.3.2 Foreign nationals who do not have lawful status in Canada\nFor foreign nationals who do not have lawful status in Canada, the burden of proof rests with the foreign\nnational to prove that they are not inadmissible to Canada. This applies to the following persons:\n persons seeking to enter Canada; and\n persons who are in Canada without legal authorization.", + "text": "7.10 Compellability of person conc erned\nThe testimony of the person concerned is often the principal source of evidence available to the\nMinister in admissibility hearings and detention reviews. The courts have held that persons\nconcerned are compellable witnesses because they are protected against self-incrimination by the\nCanada Evidence Act (for example, Suresh v Canada MPSEP 2017 FC 28 at paragraphs 70 -74)\nThis means that testimony given by the person concerned at a proceeding before the ID cannot\nbe used in criminal proceedings.\nIn the context of detention reviews, Brown v Canada 2020 FCA 130 at paragraph 122 , the\nCourt said that the detainee is not required to do anything, and not required to produce evidence\nin response. Compellability has not been definitively resolved for detention reviews.\nParagraph 11(c) of the Charter stipulates that individuals who are accused of an offence cannot\nbe forced to testify at their own trial. However, paragraph 11(c) of the Charter does not apply\n2022-03-03 20\nbecause the person concerned is not a “person charged with an offence” [Bowen v. Minister of\nEmployment and Immigration; Almrei (Re) (paras 68; and 74)].\nA person at an admissibility hearing who refuses to take an oath, make a solemn declaration or\naffirmation, or answer a question, commits an offence and may be prosecuted under A127(c).", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.3 (Burden of proof)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.10 (Compellability of person conc erned)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-4", + "id": "enf-3-7-11-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.4", - "marginal_note": "Standard of proof", + "section": "ENF 3 s. 7.11", + "marginal_note": "Disclosure of information", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.4 Standard of proof\nSince immigration proceedings are civil in nature, the general standard of proof is the one applicable to\ncivil matters: balance of probabilities. Consequently, the Minister of PSEP does not have to prove the\nexistence of facts beyond a reasonable doubt (criminal standard of proof), but rather has to demonstrate\nthat the Minister’s version of the facts is more probable than the version of the person concerned This\nmeans that the evidence presented must show that the facts as alleged are more probable than not.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 16\nSection 33 of IRPA provides that for allegations of inadmissibility listed under sections A34 to A37,\nevidence must be evaluated according to a lesser standard of proof, which is “reasonable grounds to\nbelieve” that the facts have occurred, are occurring or may occur. In Mugesera v. Canada (Minister of\nCitizenship and Immigration), the Supreme Court of Canada upheld the ruling of the Federal Court of\nAppeal that the “reasonable grounds to believe” standard requires something more than mere suspicion,\nbut less than the standard applicable in civil matters of proof on the “balance of probabilities” [ Sivakumar\nv. Canada (Minister of Employment and Immigration, p. 445) and Chiau v. Canada (Minister of Citizenship\nand Immigration) (paragraph 60)]. The reasonable grounds will exist where there is an objective basis for\nthe belief which is based on compelling and credible information [Sabour v. Canada (Minister of\nCitizenship and Immigration)].\nThe following table summarizes the standard of proof for sections A34 to A42:\nStandard of proof\nReasonable grounds to believe Balance of probabilities\n Security (A34)\n Violation of human or international\nrights (A35)\n Criminality (A36), except for\nA36(1)(c) for permanent residents\n Organized crime (A37)\n Act or omission committed outside Canada, for\npermanent residents [A36(1)(c)]\n Health reasons (A38)\n Financial reasons (A39 )\n Misrepresentation (A40)\n Non-compliance with the Act (A41)\n Inadmissible family member (A42)\nWhere the standard of proof applicable to a specific inadmissibility is reasonable grounds, the burden of\nproof may be established as follows:", + "text": "7.11 Disclosure of information\nAt an admissibility hearing and/or a detention review, hearings officers have an obligation to\npresent all the relevant and admissible evidence to the ID member, the person concerned or, if\napplicable, to the counsel for the person concerned. (ID rule 3) This is achieved through the\npreparation of a disclosure package, which will contain the documentary evidence that will be\nrelied on at the proceedings. Any tangible evidence including documents, photographs, audio\nrecordings, video recordings, diagrams, and any kind of object can form part of disclosure.\nThe FCA in Brown v. Canada ( Citizenship and Immigration), 2020 FCA 130 at para 142-143 &\n145 modified the Minister’s obligation to disclose all relevant information, even information that\nthe Minister does not rely upon, including information that can be to the sole benefit of the\nperson concerned.\nHearings officers must be mindful that their submissions must be based on evidence that was\ndisclosed or otherwise gathered from a witness during testimony at the hearing. Hearings\nofficers cannot testify (i.e. generate their own evidence, whether orally or in writing) during a\nhearing where they act as the Minister’s representative.\n7.11.1 Protecting information\nAs set out by Rule 3 of the Immigration Division Rules, for an admissibility hearing the Minister\nmust disclose any relevant information and document that the Minister may have in its\npossession to the ID and the permanent resident or foreign national.\nIn specific circumstances there may be times when hearings officers must ensure certain\ninformation remains protected from disclosure to the person concerned or to otherwise prevent\nthe information from becoming public. Although the Minister has an obligation to disclose all", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.4 (Standard of proof)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.11 (Disclosure of information) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-1", + "id": "enf-3-7-11-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 1", - "marginal_note": "Where the burden of proof rests with the Minister of PSEP", + "section": "ENF 3 s. 7.11", + "marginal_note": "Disclosure of information", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1. Where the burden of proof rests with the Minister of PSEP\nThe Minister of PSEP must prove that there are “reasonable grounds to believe” in the existence of facts\nthat constitute inadmissibility. If the Minister of PSEP is unable to meet this burden, t he ID member shall\ndetermine that the person concerned is not inadmissible, even if the person does not produce evidence to\nthe contrary.\nOn the other hand, if the Minister of PSEP meets the burden of proof, it is up to the person concerned to\nrefute the Minister’s evidence, in other words, to prove that these facts do not exist.\nThe member of the ID does not have to be satisfied that the Minister’s version is more probable than the\nversion of the person concerned, but simply that according to the evidence as a whole, there are\nreasonable grounds to believe in the existence of the facts that constitute the inadmissibility.", + "text": "relevant information, the hearings officer must balance this obligation with a duty to protect\ncertain information from disclosure. This includes disclosure that may damage a third party, an\nongoing investigation, or national security such as: private information of a third party,\ninformation that might reveal the identity of an informant, law enforcement investigation\ntechniques, and classified intelligence.\nHearings officers may invoke privilege over some of the information it possesses, pursuant to\ncertain provisions of the Canada Evidenc e Act. In national security cases especially, they may\n[also] need to file an application to the ID for non-disclosure pursuant to A86.\nThe Danger Assessments Section & National Security Cases unit at Headquarters oversees the\nmanagement of cases involving the use of classified information. If the hearings officer is\n2022-03-03 21\ncontemplating filing an application pursuant to A86, their manager should contact the NSCU\n(National_Security_Cases@cbsa-asfc.gc.ca ) at the earliest opportunity. Authorisation to proceed\nwith the application must be granted by the NSCU and NHQ Intelligence and Enforcement\nBranch- Hearings Unit (Hearings-Audiences-Programs@cbsa-asfc.gc.ca ).\nHearings officers and advisors seeking guidance on invoking privilege under the Canada\nEvidence Act to protect some information from disclosure may reach out to the Intelligence and\nEnforcement Branch- Hearings Unit at Headquarters if they require guidance or information of\nthe process (Hearings-Audiences-Programs@cbsa-asfc.gc.ca ).\nFor additional information about applications for non-disclosure, refer to ENF 31.\n7.11.2 Rules of evidence\nThe rules governing the admissibility and presentation of evidence before the ID are less", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 1 (Where the burden of proof rests with the Minister of PSEP)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.11 (Disclosure of information) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2", + "id": "enf-3-7-11-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "Where the burden of proof rests with the person concerned", + "section": "ENF 3 s. 7.11", + "marginal_note": "Disclosure of information", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2. Where the burden of proof rests with the person concerned\nWhen the burden of proof rests with the person concerned, the Minister of PSEP does not have to\nestablish that there are reasonable grounds to believe in the existence of facts that constitute\ninadmissibility. Rather, it is up to the person concerned to prove that the facts constituting inadmissibility\ndo not exist.\nSince the Minister of PSEP is the party who initiates the admissibility hearing process, the Minister must\nnonetheless present evidence first, producing the facts that constitute the basis for inadmissibility.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 17", + "text": "restrictive than in judicial proceedings. Unlike courts, the ID is not bound by any legal or\ntechnical rules of evidence [A173(c)] (e.g., the ID is not bound by the hearsay rule or the best\nevidence rule) [Refer to Canada (Minister of Employment and Immigration) v. Dan -Ash; Canada\n(Minister of Citizenship and Immigration) v. Nkunzimana ; 2005 FC 29 at para 13; Bruzzese v.\nCanada (Minister of Public Safety and Emergency Preparedness ), 2106 FC 1119 at para , 50].\nID members may receive and base decisions on any evidence adduced in the proceeding that\nthey consider credible or trustworthy [A173(d)].\nFor additional information on Rules of Evidence, refer to Appendix A, Section 2.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (Where the burden of proof rests with the person concerned)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.11 (Disclosure of information) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-5", + "id": "enf-3-7-12-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.5", - "marginal_note": "Rules of evidence", + "section": "ENF 3 s. 7.12", + "marginal_note": "Witnesses", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.5 Rules of evidence\nAlthough members of the ID are not bound by the strict rules of evidence that apply to judicial\nproceedings, hearings officers should be aware of the following:\n the admissibility of evidence;\n the relevance of evidence;\n the weight of evidence; and\n the different types of evidence, including documentary evidence and testimony (includes\ntestimony given by expert witnesses) [see R. v. Mohan and R. v. Sekhon (paragraphs 43 and 47).\nExpert witnesses can only give evidence with respect to the subject at issue].\nFor additional information about rules of evidence, refer to Appendix A.", + "text": "7.12 Witnesses\nIf the hearings officer decides to call witnesses (other than the person concerned) to testify on\nbehalf of the Minister, the hearings officer must inform the person concerned or the person’s\ncounsel, if applicable, and the ID in writing. Details on the contents of this notification as the\napplicable deadlines are set out in Rule 32 of the ID Rules.\nIn the case of expert testimony, a summary of the expert testimony must be included in the\nnotification. In this regard, the admission of expert evidence depends on the following criteria:\n(i) relevance (ii) necessity in assisting the trier of fact (iii) the absence of any exclusionary rule,\nand (iv) a properly qualified expert [R. v. Mohan , R. v. Sekhon, R. v. Mohan at para 17; and R. v.\nSekhon at para 43].\nIf there are reasons to doubt that a witness will appear as requested, and if time permits, the\nhearings officer may make an application in writing to the ID to request a summons\n[Immigration Division Rules, Rule 33].\nPersonal information concerning witnesses and their testimony may consist of information that\nrequires non-disclosure protection. In such cases, the hearings officer should make an application\n2022-03-03 22\nfor non-disclosure. For information on an application for non-disclosure, refer to section 7.11.1\nabove.\n7.12.1 Exclusion of witnesses\nDuring the hearing the member will ask counsel and the hearings officer if there are any potential\nwitnesses present in the room. If so, the member will ask the witnesses to leave the room, except\nfor the person concerned (natural justice and procedural fairness provides that the person\nconcerned has the right to hear the case against them and to attend the admissibility hearing that", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.5 (Rules of evidence)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.12 (Witnesses) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-6", + "id": "enf-3-7-12-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.6", - "marginal_note": "Inadmissibility", + "section": "ENF 3 s. 7.12", + "marginal_note": "Witnesses", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.6 Inadmissibility\nNotes:\n For guidance on obtaining evidence for all inadmissibility provisions refer to ENF 1 –\nInadmissibility.\n For essential case elements for all inadmissibility provisions, refer to ENF 2 – Evaluating\nInadmissibility.\n For essential case elements for inadmissibility under A35, refer to ENF 18 – War Crimes and\nCrimes Against Humanity.", + "text": "concerns them) and any expert witnesses (hearings officers may wish for expert witnesses to hear\nthe evidence presented orally at the hearing).\nThe member may also remind everyone that witnesses must refrain from discussing the contents\nof their testimony outside the hearing room [Immigration Division Rules, Rule 36].\n7.12.2 Examining and cross-examining witnesses\nIt is recommended that hearings officers prepare a strategy on questioning witnesses prior to the\nadmissibility hearing. The strategy should be based on the case at hand and on the facts hearings\nofficers want to prove in order to satisfy the elements of the allegation.\nConsidering and anticipating potential responses beforehand will help hearings officers to\nmaintain control of the examination and ensure that important facts are captured.\nThe following general guidelines may be useful in conducting a cross -examination:\n Prepare a list of general areas to cover rather than a list of questions to be followed\nrigidly. This will allow hearing officers to respond more effectively to witnesses’\ntestimonies and adapt their questions to witnesses’ answers.\n Questions should be geared towards satisfying the elements of the inadmissibility to\nprovide reasonable grounds or a balance of probabilities.\n The use of open-ended questions that do not make the direction of questioning obvious to\nthe witness is suggested in situations where hearings officers are looking to obtain as\nmuch information as possible.\n The use of leading questions – that is, questions which suggest an answer – is\nrecommended in circumstances where the facts are not in dispute or when a witness is\nproviding to be uncooperative.\n Hearings officers should avoid asking questions for which the answer is not known as", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.6 (Inadmissibility)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.12 (Witnesses) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-7-p1", + "id": "enf-3-7-12-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.7", - "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", + "section": "ENF 3 s. 7.12", + "marginal_note": "Witnesses", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.7 Criminal equivalency between foreign and Canadian jurisdictions\nThe following provisions of IRPA raise the issue of equivalency with respect to serious criminality and\ncriminality:\n36(1)(b) - Serious criminality\nForeign conviction for an offence that, if committed in Canada, would constitute an offence under an Act\nof Parliament punishable by a maximum term of imprisonment of at least 10 years.\n36(1)(c) – Serious criminality\nCommitted an act outside Canada that is an offence where it was committed and that, if committed in\nCanada, would constitute an offence under an Act of Parliament punishable by a maximum term of\nimprisonment of at least 10 years.[Edmond v. Canada (Minister of Citizenship and Immigration]\n36(2)(b) - Criminality\nForeign conviction for an offence that, if committed in Canada, would constitute an indictable offence\nunder an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in\nCanada, would constitute offences under an Act of Parliament.\n36(2)(c) – Criminality\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 18\nCommitted an act outside Canada that is an offence where it was committed and that, if committed in\nCanada, would constitute an indictable offence under an Act of Parliament.\nAs part of the inadmissibility determination, it is necessary to determine if a conviction or offence\ncommitted outside of Canada has an equivalent in Canadian law.\nThe Federal Court provides the following guidance for equivalencing “the fundamental test of\nequivalence is: would the acts committed abroad and punished there have been punishable\nhere?” [Li v. Canada (Minister of Citizenship and Immigration) (paragraph 13)].", + "text": "this may have unexpected or undesired results (fishing expeditions can have unexpected\nresults).\n Ensure that the order and type of questions are varied and well-adapted to the answer the\nwitness is providing. Depending on the answers of the witness it may be necessary for the\nhearings officer to modify their plan for questioning witnesses and for introducing\nevidence.\n2022-03-03 23\n Take notes of the key aspects of the testimony given by witnesses throughout the\nadmissibility hearing to more efficiently prepare and deliver submissions to the member\nof the ID.\n All parties to the proceedings may ask to see the notes that witnesses use to assist with\ntheir testimony, and may demand that these notes be introduced as an exhibit.\n If cross-examination conducted by counsel for the person concerned raises new\ninformation, it may be useful and/or necessary to ask a witness additional questions after\nthe cross-examination has been closed.\n Objections may be raised at any time during the admissibility hearing and hearings\nofficers may raise objections and respond to the objections raised by the other party.\nAll testimony is given under oath (by swearing on a holy book) or by affirmation (a solemn\npromise to tell the truth).\nProcedural aspects of cross-examinations:\nProcedural fairness is engaged during the cross-examination process, especially when it is the\nintention of the hearings officer to call into questions the credibility of a witness (Browne v.\nDunn 1893 6 R 67; R v. Lyttle 1 S.C.R. 193, 2004 SCC 5 ).", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 1 of 5)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 7.12 (Witnesses) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-7-p2", + "id": "enf-3-8-1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.7", - "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", + "section": "ENF 3 s. 8.1", + "marginal_note": "General", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "In Hill v. Canada (Minister of Employment and Immigration), the Court described the following three ways\nof establishing equivalency between a foreign and a domestic offence:\n compare the elements of the Canadian and foreign statutes to determine if both have the same\nessential elements to substantiate the respective offences (the elements generally include mental\nand physical components);\n examine the evidence adduced before the member, both oral and documentary, to ascertain\nwhether the evidence was sufficient to establish that the essential ingredients of the offence in\nCanada had been proven in the foreign proceedings; or\n by a combination of paragraphs 1 and 2.\nSee also Park v. Canada (Citizenship and Immigration) (paragraph 14) and Patel v. Canada (Citizenship\nand Immigration) (paragraph 4).\nWhen preparing a case that involves a conviction/offence in a foreign jurisdiction that may be equivalent\nto a criminal conviction/offence in Canada, hearings officers should follow these steps:\nStep 1 Identify the foreign conviction or act.\nStep 2 Evidence for a criminal equation must address the following three areas:\n the best proof of the conviction available;\n the wording of the foreign statute;\n the details of what was actually done.\nStep 3 Identify the potential Canadian equivalent.\nStep 4 Break down each offence (Canadian and foreign) into its basic elements.\nStep 5 Compare each foreign element to its Canadian equivalent and determine if it is equal, broader or\nnarrower.\nStep 6 For those foreign elements that are broader, examine the details of the offence to determine if\nthis aspect of the actual act committed satisfies the Canadian element.\nStep 7 Come to an overall conclusion as to whether the foreign offence is equivalent to the Canadian\noffence.", + "text": "8.1 General\nAt any time during an admissibility hearing or a detention review, the person concerned and/or\nthe hearings officer may present an application in accordance with the ID Rules (e.g., application\nto change the date or time of a hearing (Rule 43), application to change location of the hearing\n(Rule 42), application for the non-disclosure of information (Rule 41), application to join or\nseparate hearings (Rule 44), application to conduct the hearing in private (Rule 45), application\nto adjourn, etc.). While some of these applications are specifically provided for under the ID\nRules, where the ID Rules do not provide for a specific process, hearings officers may rely on\nthe general provisions for applications found at ID Rules 37-40.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 2 of 5)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.1 (General)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-7-p3", + "id": "enf-3-8-2-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.7", - "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", + "section": "ENF 3 s. 8.2", + "marginal_note": "Public versus private hearings", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "Step 8 If the two offences are equivalent, taking into account the penalty for the Canadian offence,\ndecide which allegation under A36 is appropriate.\nIf the officer who issued the A44(1) report has not already done so, hearings officers must quickly\ndetermine if the text of the foreign statute is available and make a request for translation. The foreign law\nmust be proven during the admissibility hearing by producing all the extracts relevant to the offence,\nwhich will be entered as an exhibit. The relevant extracts should, as a rule, include the sections that\ndefine the terms used in describing the offence.\nIn the examination of equivalence, a determination is made as to whether each of the essential elements\nof the foreign offence is present in the Canadian equivalent.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 19\n If each of the elements exists in both statutes (Canadian and foreign), the offences are\nequivalent. It is not necessary for the wording of the two laws to be identical. For example, the\nterm “knowingly” may be equivalent to “knowing”, and the term “whoever” may be equivalent to\n“any person”.\n If the foreign enactment is more restrictive than the Canadian enactment, both offences are\nequivalent, since the Canadian statute covers all the situations contemplated in the foreign\nstatute.\n If the foreign enactment is broader than the Canadian statute, or if the text includes situations that\ndo not lead to a criminal offence in Canada, there is no textual equivalence. It is then necessary\nto examine the circumstances of the offence to determine if there is an equivalence nonetheless.\nWhen this situation arises, evidence should be submitted regarding the facts that were proven in", + "text": "8.2 Public versus private hearings\nIn accordance with A166(a), hearings before the ID must be held in public.\nHowever, subject to A166(d), proceedings concerning persons who are refugee protection\nclaimants must be held in private. This includes admissibility hearings, detention reviews, pre-\nhearing conferences and all other applications heard by the ID.\nIf, during continued detention, the person initiates a refugee claim, the hearings officer should\nnotify the ID forthwith, as all subsequent hearings will be held in private.\n2022-03-03 24\nHowever, the ID member may, on request by a party to the proceeding or on the ID member’s\nown initiative, (IRPA 166(d)) ;\n in the case of a person claiming refugee protection, order that a hearing be held in public;\n in other cases, order that a hearing be held in private or make any other order to ensure\nthe confidentiality of the proceedings (A166) as follows:\no When the ID member notes that there are observers present, the ID member\ndetermines if it is appropriate to allow these observers to remain or if they should\nbe asked to leave.\no Pursuant to A166(e), representatives or agents of the United Nations High\nCommissioner for Refugees (UNHCR) are entitled to observe proceedings\nconcerning protected persons and persons who have made a claim for refugee\nprotection.\no Pursuant to A166(f), representatives or agents of the UNHCR may not observe\nproceedings that deal with information or other evidence that is protected under\nA86 or for which an application for non-disclosure has been made under A86 and\nthe application was not rejected.\n“Refugee protection claimant” means\n a person who has made a claim for refugee protection and whose eligibility has not yet\nbeen determined; or", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 3 of 5)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.2 (Public versus private hearings) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-7-p4", + "id": "enf-3-8-2-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.7", - "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", + "section": "ENF 3 s. 8.2", + "marginal_note": "Public versus private hearings", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "the criminal trial held outside Canada; or, in cases where there is no conviction, evidence may\nconsist of police reports to show that an offence was committed.If every essential element of the\nCanadian offence can be established, there is an equivalence.\nThe hearings officer should identify for the benefit of the ID which constituting element(s) of the Canadian\noffence is (are) not found in the text of the foreign offence. The hearings officer should then identify each\nelement of the evidence (whether these elements are exhibits or part of a testimony) entered into the\nrecord to establish that the Canadian constituting elements are facts that were established at the foreign\ntrial.\nExample: An equivalence between the foreign offence of possession of instruments used to commit a\ncriminal offence, and the Canadian offence of possession of break-in instruments [Canadian Criminal\nCode, Section 351(1)].\nThe Canadian offence is more restrictive since the instruments described under the Canadian offence\nhave to be suitable for committing breaking and entering, while the instruments described in the foreign\noffence can be suitable for the purpose of committing any offence (including but not limited to breaking\nand entering).\nIf the textual equivalence is not perfect it is necessary to introduce additional evidence showing that the\ninstruments found in possession of the person concerned when the offence was committed were, in fact,\ninstruments that can be used for breaking and entering, for example a hammer, counterfeit keys, etc.\nIn this case, the evidence that the offence is equivalent to a crime committed in Canada could consist of\nthe following:\n introduction of the relevant sections of the foreign statute; and", + "text": " a person who has made a claim for refugee protection and whose claim has been\ndetermined to be eligible; or\n a person who has made a claim for refugee protection and whose claim has been decided\nby the Refugee Protection Division (RPD), but who has not exhausted all appeals of the\ndecision before the Refugee Appeal Division (RAD);\nbut does not mean\n a person whose claim for refugee protection has been determined to be ineligible; or\n a person who has made a claim for refugee protection has been rejected by the court of\nlast resort.\nAccording to the interpretation of the Court in Gervasoni v. Canada (Minister of Citizenship and\nImmigration) at para 13, the objectives of the IRPA pertaining to public hearings are met “if\ninterested members of the public are not unreasonably restricted from attending the [hearing].”", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 4 of 5)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.2 (Public versus private hearings) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-7-p5", + "id": "enf-3-8-3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.7", - "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", + "section": "ENF 3 s. 8.3", + "marginal_note": "Application for proceeding in -camera (in private)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": " testimony of the person concerned describing the instruments found in their possession ; or\n extracts of the transcript of the foreign trial showing the nature of the instruments; or\n copy of the foreign indictment which contains a description of the instruments found; or\n documentary evidence providing a description of the instruments.\nIn most admissibility hearings dealing with equivalence, the hearings officer will generally have to produce\nthe following documents as exhibits, when available:\n evidence of the conviction, such as a certificate of conviction, a police report or a statutory\ndeclaration outlining a telephone conversation with a police officer, court reporter, court records\nclerk, or any document originating from the authorities of the country where the conviction was\nhanded down;\n the legal description of the foreign offence; that is, the text of the statutory provision under which\nthe person was convicted; and\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 20\n evidence (obtained from the charge or indictment or a similar document) of the particulars of the\noffence [Brannson v. Canada (Minister of Employment and Immigration) (para. 4)]. In some\ncases, the certificate of conviction may contain sufficient information for the certificate to be used\ninstead of the indictment.\nFor additional information on documentary evidence, refer to ENF 2 Evaluating inadmissibility.", + "text": "8.3 Application for proceeding in -camera (in private)\nIf the ID member is satisfied that:\n There is a serious possibility that the life, liberty or security of the person concerned will\nbe endangered if the proceeding is held in public;\n2022-03-03 25\n there is a real and substantial risk to the fairness of the proceeding such that the need to\nprevent disclosure outweighs the social interest that the proceeding be conducted in\npublic; or\n there is a real and substantial risk that matters involving public security will be disclosed,\nthe ID member may on application, or on the ID member’s own initiative, conduct a proceeding\nin-camera (in private) or take any other measure to ensure the confidentiality of the proceedings\n(A166(b)(I, ii, iii); ID Rules, Rule 45; Pacific Press Ltd v. Canada (Minister of Employment and\nImmigration).", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 5 of 5)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.3 (Application for proceeding in -camera (in private))", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-8", + "id": "enf-3-8-4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.8", - "marginal_note": "Criminal inadmissibility for an act or omission outside Canada that", + "section": "ENF 3 s. 8.4", + "marginal_note": "Application for non-disclosure o f information or other evidence", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.8 Criminal inadmissibility for an act or omission outside Canada that\nwould constitute a criminal offence in Canada [A36(1)(c)]\nIn the case of an act or omission, that would constitute a criminal offence in Can ada, it is sufficient to\nprove that the act or omission was committed outside Canada, and that the act or omission would\nconstitute an offence in Canada. It is not necessary to prove the following facts:\n that the person concerned was convicted of the offence outside Canada;\n that charges or an indictment were laid;\n that the wording of the foreign statute is equivalent to the wording of the Canadian legislation.\nThe IRPA does not prevent the same facts from being the subject of two different allegations in the same\nreport [A44(1)]. If this is the case, the member presiding the admissibility hearing is responsible for\ndetermining whether the facts constitute either of the inadmissibility grounds alleged in the report.\nWhen dealing with cases that involve equivalencing:\n the A44(1) report should refer to as many Canadian equivalents as is reasonably necessary;\n if officers have doubt as to the possible Canadian equivalent, the A44(1) report may include two\nallegations: one relating to an equivalence [A36(1)(b) or A36(2)(b)] and one relating to an act or\nomission [A36(1)(c) or A36(2)(c)].", + "text": "8.4 Application for non-disclosure o f information or other evidence\nRefer to section 7.11.1 above for more details on applications for non-disclosure pursuant to\nA86.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.8 (Criminal inadmissibility for an act or omission outside Canada that)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.4 (Application for non-disclosure o f information or other evidence)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-9", + "id": "enf-3-8-5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.9", - "marginal_note": "Foreign pardons", + "section": "ENF 3 s. 8.5", + "marginal_note": "Application for a change of venue", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.9 Foreign pardons\nPlease refer to ENF 14, Criminal Rehabilitation. The effect of a foreign pardon does not automatically\nrender the person admissible to Canada.\nThe following factors must be taken into account:\n If the country's legal system is based on similar foundations and values as Canada’s, the foreign\nlegislation must be examined to determine whether the effect of the pardon is to erase a\nconviction or merely recognize that rehabilitation has taken place.\n In the latter case, the applicant is inadmissible and an application for rehabilitation should\nproceed.", + "text": "8.5 Application for a change of venue\nRequests for a change of venue must be made to the ID [ID Rule 42].\nWhen deciding if the application for a change of venue should be allowed, the ID member must\nconsider any relevant factors, including:\n whether a change of location would allow the hearing to be full and proper;\n whether a change of location would likely delay or slow the hearing;\n how a change of location would affect the operation of the ID;\n how a change of location would affect the parties; and\n whether a change of location would endanger public safety.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.9 (Foreign pardons)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.5 (Application for a change of venue)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9-10", + "id": "enf-3-8-6-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9.10", - "marginal_note": "Family inadmissibility 42(1)", + "section": "ENF 3 s. 8.6", + "marginal_note": "Application for adjournment", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9.10 Family inadmissibility 42(1)\nAccording to Section A42(1), a foreign national is inadmissible on grounds of an inadmissible family\nmember in the following two instances:", + "text": "8.6 Application for adjournment\nA162(2) stipulates that the ID shall deal with all proceedings as informally and as quickly as the\ncircumstances permit. Notwithstanding this provision, adjournments may be necessary to ensure\nthat the principles of procedural fairness and natural justice are respected. Parties to the\nadmissibility hearing may make an application for adjournment as outlined in rule 43 of the ID\nRules.\n8.6.1 Mandatory adjournments\nThe ID member must grant a request for adjournment in the following circumstances:\nTo allow a minor child or a person who is unable to understand the nature of the proceedings to\nbe appointed a designated representative. If the ID member is of the opinion that the party is\nnot adequately represented, the member may designate a representative [A167(2); Immigration\nDivision Rules, Rules 18 and 19].\n2022-03-03 26\nWhere the services of an interpreter are required to permit the presence of an interpreter at the\nadmissibility hearing [Immigration Division Rules, Rule 17].\nWhen the person concerned claims Canadian citizenship, and had it not been for this claim a\nremoval order would have been issued; and\nWhen a hearings officer requests that a dependent family member be included in the removal\norder issued to the person concerned, and the ID member is not convinced that the family\nmember was notified accordingly, using the “Notice of Admissibility Hearing to Family\nMembers” form (BSF 540).\n8.6.2 Discretionary adjournments\nIn cases that do not involve one or more of the mandatory circumstances, ID members have\ndiscretion to grant adjournments in accordance with the principles of procedural fairness and\nnatural justice [Prassad v. Canada (Minister of Employment and Immigration) ], or under the", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9.10 (Family inadmissibility 42(1))", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.6 (Application for adjournment) (part 1 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-1-p1", + "id": "enf-3-8-6-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 1", - "marginal_note": "The principal applicant is inadmissible because of the inadmissibility of a family member", + "section": "ENF 3 s. 8.6", + "marginal_note": "Application for adjournment", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1. The principal applicant is inadmissible because of the inadmissibility of a family member\nA42(1)(a), namely\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 21\n a foreign national who is accompanied by a family member who is inadmissible;\nExample: A father who is accompanied by a dependent son who is inadmissible.\nor\n a foreign national whose non-accompanying family member is otherwise inadmissible when the\nconditions in R23 are met:\n1. a foreign national is a temporary resident or has made an application for temporary\nresident status, an application for a permanent resident visa or applied to remain in\nCanada as a temporary resident or permanent resident (for the concept of applying to\nremain in Canada as a permanent resident, see R66 and R68); and\n2. the non-accompanying family member is\n1. the spouse of the foreign national, except where the relationship between the\nspouse and foreign national has broken down in law or in fact;\n2. the common-law partner of the foreign national;\n3. a dependent child of the foreign national and either the foreign national or an\naccompanying family member of the foreign national has custody of that child or\nis empowered to act on behalf of that child by virtue of a court order or written\nagreement or by operation of law; or\n4. a dependent child of a dependent child of the foreign national and the foreign\nnational, a dependent child of the foreign national or any other accompanying\nfamily member of the foreign national has custody of that child or is empowered\nto act on behalf of that child by virtue of a court order or written agreement or by\noperation of law.\nExample: A father, who is in Canada, applies to remain in Canada as a permanent resident and", + "text": "general powers conferred on the member as a commissioner under Part I of the Inquiries Act.\nThe principles of natural justice and procedural fairness require that the ID member consider an\nadjournment request by hearing submissions from both parties and by balancing their interests.\nMembers must also take into consideration whether an adjournment will have a negative effect\non the efficiency and expediency of the process.\nHearings officers must adequately support the recommendations against or in favour of\nadjourning an admissibility hearing by submitting valid reasons and by making reference to the\nrelevant case law.\nBased on the SCC decision in Prassad v. Canada (Minister of Employment and Immigration) , ID\nmembers should consider the following factors when deciding whether an adjournment should be\ngranted (paras 35 and 36):\n the number of adjournments granted previously;\n the length of time for which an adjournment is requested;\n the timeliness of pursuing other remedies before asking for an adjournment; and\n in certain circumstances, sympathy for the concerned person’s circumstances.\nWhen applying for an adjournment, hearings officers should address all the applicable factors\n[Immigration Division Rules, Rule 43].\nAdjournments may also be granted at the discretion of the ID member or under the general\npowers conferred on the member as a commissioner under Part I of the Inquiries Act. Both\nparties may make arguments in favour of an adjournment. An ID member may grant an\nadjournment for the following reasons, among other grounds:\n to allow the person concerned to retain counsel (A167);\n for either party to obtain additional evidence or to summon witnesses;\n to allow relevant documents to be introduced (e.g. evidence of a conviction outside\nCanada);", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 1 (The principal applicant is inadmissible because of the inadmissibility of a family member) (part 1 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.6 (Application for adjournment) (part 2 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-1-p2", + "id": "enf-3-8-6-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 1", - "marginal_note": "The principal applicant is inadmissible because of the inadmissibility of a family member", + "section": "ENF 3 s. 8.6", + "marginal_note": "Application for adjournment", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "his dependent son, who is abroad, is inadmissible on any of the grounds described in A34 to A41.\nException: Section A42(2)(a) stipulates that a foreign national referred to in subsection (1) who\nis a temporary resident or who has made an application for temporary resident status or a n\napplication to remain in Canada as temporary resident, is only inadmissible on grounds of an\ninadmissible family member if their accompanying or non accompanying family member is\ninadmissible pursuant to A34, A35 and/or A37.\nExample: A father, who is in Canada, applies to remain in Canada as a temporary resident and\nhis dependent son, who is abroad, is inadmissible pursuant to A34, A35 and/or A37).\nThe Immigration Division (ID) cannot assume jurisdiction for an A44(1) report regarding a foreign\nnational if the only grounds for inadmissibility are those set out in Section A42 [R228(1)( d)]\nincluding A42(2)(a)[R228(1)(e)]. In fact, R228(1)(d) and R228(1)(e) provide that the Minister’s\ndelegate not refer the A44(1) report in cases of inadmissibility on the grounds of family\ninadmissibility under Section A42. Under R228(1)(d) the Minister Delegate makes the same type\nof order against the foreign national as was made against the inadmissible family member, except\nif the family member is inadmissible under A34, A35 and/or A37. According to R228(1)(e), the\nMinister’s Delegate issues a deportation order against the foreign national if the accompanying or\nnon accompanying family member is inadmissible pursuant to A34, A35 and/or A37. This means\nthat, even when the decision regarding the inadmissibility of a family member is within the\njurisdiction of the ID, the Minister’s delegate has the authority to make a removal order against", + "text": "2022-03-03 27\n to have the person concerned medically examined or to secure additional medical\nevidence;\n to replace an incompetent interpreter or counsel;\n to consult with the Registrar of Canadian Citizenship; and\n to allow an ID member to prepare the decision.\n8.6.3 Adjournments to obtain counsel\nOver the years it has often been argued before the courts that refusal to grant an adjournment for\nthe purpose of obtaining counsel of choice was tantamount to depriving a person of the right to\nretain and instruct counsel. To this end, the hearings officer can argue that the right to counsel\nsimply means that the person concerned must be given the opportunity to retain and instruct\ncounsel of choice amongst those who are ready and available to proceed on the date fixed by the\nmember of the ID. Pierre v Canada (Minister of Manpower & Immigration), [1978] 2 F.C. 849,\n[1978] 2 A.C.W.S. 285 (FCCA) (concurring opinion of Kelly, DJ)\nThe person concerned must be given sufficient time to secure counsel. However, hearings\nofficers should object to long adjournments when they are of the opinion that the subject of the\nadmissibility hearing has had reasonable opportunity to obtain counsel who is willing and able to\nhandle the case. In such cases, the hearings officer will argue that the person should take the\nnecessary action to find other counsel. If counsel is never available or does not appear when\nrequired, the hearings officer should request that a peremptory resumption date be set.\nThe hearings officer should argue that the Charter does not grant an unrestricted right to counsel\nof choice. Clients have the right to be represented, but by counsel who is reasonably available to\nappear before the tribunal. Counsel is also obliged by a code of ethics not to take on cases where", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 1 (The principal applicant is inadmissible because of the inadmissibility of a family member) (part 2 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.6 (Application for adjournment) (part 3 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-1-p3", + "id": "enf-3-8-6-p4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 1", - "marginal_note": "The principal applicant is inadmissible because of the inadmissibility of a family member", + "section": "ENF 3 s. 8.6", + "marginal_note": "Application for adjournment", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "the principal applicant referred to in Section A42(1)(a) or A42(2)(a). In this case however, the\nMinister’s delegate must wait until the ID has made a removal order against the family member\nbefore making one against the foreign national.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 22\nExample: A father and his son apply to be admitted as temporary residents. The son is inadmissible on\ngrounds of organized criminality and the officer prepares an A44(1) report based on an A37(1)( a)\nallegation. The officer prepares a separate A44(1) report regarding the father on grounds of family\ninadmissibility under A42(1)(a). The Minister’s delegate refers the son’s report for an admissibility hearing.\nAt the end of the hearing, the ID decides that the son is inadmissible on grounds of organized criminality\nand makes a deportation order under R229(1)(e). Once the removal order has been made against the\nson, the Minister’s delegate can issue the same type of deportation order against the father [R228(1)( e)]", + "text": "they are not reasonably available to appear on behalf of clients because of previous\ncommitments.\nIf counsel makes continuous requests for adjournment, hearings officers may oppose these\nrequests and provide reasons for why the request for adjournment is not justified.\nIn exceptional circumstances, the hearings officer may notify the office manager to consider\nwhether a formal complaint to the provincial bar association or law society may be warranted.\nNHQ Hearings Unit of the Intelligence and Enforcement Branch (Hearings-Audiences-\nPrograms@cbsa-asfc.gc.ca) should be informed of all such formal complaints.\nHearings officers should review the file to determine if the person concerned has in the past\nasked for an adjournment for similar reasons (e.g., to obtain counsel). Before arguing for or\nagainst a proposed adjournment, hearings officers should take into account the stage the\nadmissibility hearing has reached and the anticipated length of the adjournment requested.\nHearings officers should base their submissions on the factors that are applicable to the particular\ncase at hand.\n2022-03-03 28\n8.6.4 Application for postponement by the opposing party\nIf the hearings officer receives a request for postponement of an admissibility hearing from the\nperson concerned or from counsel, the hearings officer must advise the person concerned or\ncounsel that the request must be made to the ID [Rule 43(1)]. The Minister does not accept\napplications on behalf of the ID.\nA detention review will proceed as originally scheduled notwithstanding a postponement of an\nadmissibility hearing that was scheduled to be heard immediately before or after a detention\nreview.\nNote : Refer to Appendix B for additional information on adjournments and jurisprudence.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 1 (The principal applicant is inadmissible because of the inadmissibility of a family member) (part 3 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.6 (Application for adjournment) (part 4 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2-p1", + "id": "enf-3-8-7", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "Inadmissibility of a family member on grounds of inadmissibility of the principal applicant", + "section": "ENF 3 s. 8.7", + "marginal_note": "Post-hearing reporting and feedback", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2. Inadmissibility of a family member on grounds of inadmissibility of the principal applicant\n[A42(1)(b)], namely\na foreign national who is a member of an inadmissible person’s family and who is accompanying the\ninadmissible person to Canada.\nException: Section A42(2)(b) stipulates that a foreign national referred to in subsection (1) who is a\ntemporary resident or who has made an application for temporary resident status or an application to\nremain in Canada as temporary resident, is inadmissible only if they are an accompanying family member\nof a person who is inadmissible under section A34, A35, and/or A37.\nExample: A dependent son who is accompanying his inadmissible father who made an application for a\npermanent resident visa. The son is inadmissible on the ground of an inadmissible family member if his\nfather is inadmissible on any of the grounds enumerated at A34 to A41.\nExample: A dependent son who is accompanying his inadmissible father are seeking temporary resident\nstatus. The son is only inadmissible on the grounds of an inadmissible family member if his father is\ninadmissible pursuant to A34. A35 and/or A37.\nIf the inadmissibility of the principal applicant comes under the Minister’s jurisdiction, the officer must\nprepare two separate reports, one regarding the principal applicant’s inadmissibility and the other\nregarding the family member for family inadmissibility under A42(1)(b). If the Minister then decides to\nmake a removal order against the principal applicant and his son, the Minister must do so by maki ng two\nseparate removal orders.\nIf, on the other hand, the principal applicant’s inadmissibility comes under the jurisdiction of the ID, the\nA44(1) report regarding the foreign national is sufficient and a separate report does not have to be", + "text": "8.7 Post-hearing reporting and feedback\nHearings officers or delegated staff must enter all relevant information in the Global Case\nManagement System (GCMS) and the National Case Management System (NCMS) as soon as\npossible to keep the case information current.\nResults of admissibility hearings or detention review proceedings should be provided to the\nofficers who prepared and reviewed the original report, or who arrested and detained the\npermanent resident or the foreign national under the provisions of IRPA.\nHearings officers should provide feedback to those involved in specific cases for training\npurposes, and to advise officers of the effectiveness of their work.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (Inadmissibility of a family member on grounds of inadmissibility of the principal applicant) (part 1 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8.7 (Post-hearing reporting and feedback)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2-p2", + "id": "enf-3-10-1-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "Inadmissibility of a family member on grounds of inadmissibility of the principal applicant", + "section": "ENF 3 s. 10.1", + "marginal_note": "General", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "prepared for family members. R227(1) provides that the report prepared regarding the foreign national\nalso applies to accompanying family members.\nAccording to R227(2) the removal order made by the ID against the principal applicant also covers family\nmembers, if the conditions in R227(2)(a) and (b) are met, namely\n an officer informed the family member(s) subject to the A44(1) report that they are the subject of\nan admissibility hearing, and of their right to make submissions and the right to be represented\n(by counsel) at the admissibility hearing at their own expense; and\n the family members are subject to a decision of the ID that they are inadmissible under section 42\nof the Act on grounds of the inadmissibility of the foreign national.\nAt the admissibility hearing, the fact that the condition in R227(2)(a) was met will be proven by producing\nthe “Notice of Admissibility Hearing to Family Members” form (BSF 540).\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 23\nTo meet the condition in R227(2)(b), it is sufficient to show that the family member meets the definition of\n“family member” in R1(3). If these two conditions are met, family members will automatically be covered\nby the removal order made against the principal applicant.\nR1(3) provides that the foreign national’s “family members” are\n the spouse or common-law partner of the person;\n a dependent child of the person or of the person’s spouse or common -law partner; and\n a dependent child of a dependent child referred to in paragraph (b)\nThe terms “common-law partner” and “dependent child” are defined in R1(1) and R2 respectively.\nExample: A father and his dependent 18-year-old son apply for admission as permanent residents.", + "text": "10.1 General\nAdmissibility proceedings are held under the jurisdiction of the ID to determine the merits of\nallegations of inadmissibility under IRPA and to take applicable removal measures, if\nappropriate.\nPursuant to subsection A44(1), an officer who is of the opinion that a permanent resident or a\nforeign national who is in Canada, is inadmissible may prepare a report setting out the relevant\nfacts and transmit the report to a Minister’s Delegate (MD).\nAn MD who is of the opinion that the A44(1) report is well founded may refer the report to the\nID for an admissibility hearing in the following instances:\n In the case of a foreign national who may be inadmissible to Canada on one or more\ngrounds for which the MD has no jurisdiction to issue a removal order (refer to R229);\n in the case of a permanent resident, except for a report solely based on non-compliance\nof the permanent resident with the residency obligations under A28.\nIf the MD is of the opinion that the report is well founded, they must also refer the A44(1) report\nto the ID of the Immigration and Refugee Board (IRB) for an admissibility hearing in the\nfollowing situations as prescribed under r228:\n In the case of a minor child who is not accompanied by a parent or adult legally\nresponsible for the child [R228(4)(a)]; and,\n in the case of a person who is unable to appreciate the nature of the proceedings and is\nnot accompanied by a parent or adult legally responsible for the person [R228(4)(b)].\nThe MD must complete and send the following forms, along with the file and supporting\ndocumentary evidence, to the Hearings and Detention Unit of the Enforcement and Intelligence\nDivision in the respective Region:\nA44(1)\nThe officer prepares a\nreport alleging a\nperson is inadmissible\nA44(2)", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (Inadmissibility of a family member on grounds of inadmissibility of the principal applicant) (part 2 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.1 (General) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2-p3", + "id": "enf-3-10-1-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "Inadmissibility of a family member on grounds of inadmissibility of the principal applicant", + "section": "ENF 3 s. 10.1", + "marginal_note": "General", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "The father is inadmissible on grounds of serious criminality under A36(1)( b). The officer prepares a\nsingle A44(1) report regarding the father, which also serves as a report with respect to the son. The\nofficer issues a “Notice of Admissibility Hearing to Family Members” form ( BSF 540), to the son. The MD\nrefers the report for an admissibility hearing. At the end of the hearing, the ID decides that t he father is\ninadmissible under A36(1)(b) and makes a deportation order against the father. This deportation order will\nalso automatically include the son if\n he was issued a BSF 540 form; and\n the son is a family member within the meaning of the Regulations.", + "text": "The report is reviewed by\na Minister's Delegate\n(MD)\nIf the matter forms part of the\ncircumstances found in R228(1), R228(2\nand R228(3), the MD has jurisdiction to\nissue the removal order\nIn all other cases —R228(4) and R229—\nthe report is referred to the Immigration\nDivision for an admissibility hearing.\n2022-03-03 30\n Referral Under Subsection A44(2) of the Immigration and Refugee Protection Act for an\nAdmissibility Hearing (BSF 506);\n Request for Admissibility Hearing/Detention Review Pursuant to the Immigration\nDivision Rules (BSF 524)\nNote: The Regional Hearings and Detention Section forwards copies of both forms to the ID and\nretains copies on file. For detention cases, the MD must send a copy of the A44(1) report, forms\nBSF506 and BSF 524 directly to the ID and the Regional Hearings Office without delay. The\ndocumentary evidence should also be sent to the Regional Hearings Office as soon as possible.\nFor more information on preparing and writing A44(1) reports, refer to ENF 5, Writing 44(1)\nReports.\nFor more information on administrative removal orders refer to ENF 6, Administrative removal\norders.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (Inadmissibility of a family member on grounds of inadmissibility of the principal applicant) (part 3 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.1 (General) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-10-1", + "id": "enf-3-10-2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 10.1", - "marginal_note": "Minister’s obligation to disclose all documents and information (ID", + "section": "ENF 3 s. 10.2", + "marginal_note": "Port of entry (POE) referral for an admissibility hearing", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "10.1 Minister’s obligation to disclose all documents and information (ID\nRule 3)\nWhen requesting an admissibility hearing, hearings officers have an obligation to provide all relevant\nevidence that is in their possession to the ID and to the person concerned, or counsel if applicable (for a\nlist of documents refer to Immigration Division Rules, Rule 3).\nHearings officers must disclose to the person concerned or counsel if applicable and to the ID the\nfollowing documents at least five (5) days before the hearing:\n “Request for Admissibility Hearing” form (BSF 524);\n “Notice of Admissibility Hearing” form (BSF 525); and\n “Notice of Rights Conferred by the Vienna Convention and to the Right to be Represented by\nCounsel at an Admissibility Hearing” form (IMM 0689B), if applicable; and\n a “Referral under subsection A44(2) of the IRPA for an admissibility hearing” form (BSF 506); and\n a copy of the A44(1) report that sets out the allegations; and\n all other documentary evidence or information that will be used to support the Minister’s position.\nIn the case of a forty-eight hour or a seven-day detention review and an admissibility hearing that are held\nat the same time, all documents must be disclosed as soon as possible. In all other cases documents\nmust be disclosed within 5 days before the hearing. [Immigration Division Rules, Rule 26].\n Note: All documents must comply with the requirements set out in the Immigration Division Rules\n24 and 25 with respect to language and format.\n Note: If the person concerned has retained counsel, the hearings officer will ensure that copies of\nthe relevant notices and documents are sent to counsel [Rule 28(3)].\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 24\nThe hearings officer should also make sure that, in compliance with the requirements of R227, family\nmembers who are accompanying a foreign national, and who are the subject of a report pursuant to\nA44(1) have been duly informed of the hearing to be held concerning them by forwarding a completed\ncopy of the “Notice of Admissibility Hearing to Family Members” form (BSF 540) to all parties.\nThe hearings officer should confirm that all information intended for the ID was sent to the registry office.", + "text": "10.2 Port of entry (POE) referral for an admissibility hearing\nIf the MD, after reviewing a report made pursuant to A44(1), determines that the report is well-\nfounded, he or she may refer it to the ID of the IRB for an admissibility hearing. Where the\ndecision to refer to the ID is made under A44(2) and the person leaves the POE, the examination\nof the person has ended (R37(1)(d)).\nHowever, if the person concerned was referred to an admissibility hearing and the referral is\nwithdrawn, the examination is not concluded and the case must be returned to the POE for\ndetermination.\nNote: Refer to ENF 4: Port of Entry Examinations, section 5.6, for additional information on end\nof examination, and ENF 6: Review of reports under subsection 44(2) Section 12 Allowing\nwithdrawal of application to enter Canada/ Allowed to leave (Port of entry cases)", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 10.1 (Minister’s obligation to disclose all documents and information (ID)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.2 (Port of entry (POE) referral for an admissibility hearing)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-10-2", + "id": "enf-3-10-3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 10.2", - "marginal_note": "Additional allegations/amendments of the report", + "section": "ENF 3 s. 10.3", + "marginal_note": "Burden of proof", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "10.2 Additional allegations/amendments of the report\nWhen receiving a case file for preparation, the hearings officer’s first duty is to determine if the case\nmeets the technical, legal and factual requirements for presenting it to a member of the ID. Depending on\nthe type of case, the hearings officer should verify the A44(1) report for correct date, authorizations and\nsignatures, and ensure that the allegations are correctly stated.\nAny errors or omissions in the report should be corrected. If it is necessary to return the file to the\noriginating office for action, it may be necessary to make an application to the ID to request a\npostponement of the admissibility hearing [Immigration Division Rules, Rule 43]. This is necessary only if\nthe error or omission in the A44(1) report or evidence cannot be rectified prior to the hearing date and\nwould seriously impact the presentation of the case by the hearings officer.\nThe hearings officer must make sure that each of the essential components of the inadmissibility alleged\nin the report is supported by evidence, whether the evidence is documentary, or based on testimony of\nthe person concerned, or testimony from other witnesses.\nIf the evidence is insufficient, the hearings officer may\n complete the file by adding additional evidence, if available;\n return the report to the MD to change the allegations of the report;\n return the report to the MD for adding additional grounds of inadmissibility; or\n withdraw the application to hold the admissibility hearing.\nIf time permits, the hearings officer should make sure that the person concerned and the ID have been\nnotified of changes made to the A44(1) report prior to the hearing. If time does not permit giving advance\nnotice of the changes made to the A44(1) report, the hearings officer must make a preliminary statement\nat the hearing regarding the changes. If this is the case, the member of the ID may confirm that the\nperson concerned understands the nature of the changes. If necessary, the member may grant an\nadjournment, to give the person concerned time to prepare.", + "text": "10.3 Burden of proof\nThe burden of proof is the obligation to prove or disprove a disputed fact. In the immigration\ncontext, it refers to who is responsible for establishing admissibility. A45(d) governs which party\nholds the burden of proof depending on the specific circumstances of the case.\n10.3.1 Permanent residents and foreign nationals who have been authorized to enter\nCanada.\nOn a matter involving permanent residents or foreign nationals (who have been authorized to\nenter Canada), the burden of proof rests with the Minister to establish that the person is\ninadmissible.\n2022-03-03 31\nDuring an admissibility hearing, hearings officers must be prepared to offer evidence to support\nthe allegation(s) of inadmissibility and rebut any statements that are made by the foreign national\nor the permanent resident in order to meet the applicable standard of proof (refer to section 10.4)\nof the existence of facts that constitute inadmissibility. If the Minister is unable to meet this\nburden, the ID member shall determine that the person concerned is not inadmissible, even if the\nperson concerned does not produce evidence to the contrary. For a list of all the ID’s possible\ndecisions following an admissibility hearing refer to A45.\nOn the other hand, if the Minister meets the burden of proof, it is up to the person concerned to\nrefute the Minister’s evidence, in other words, to prove that these facts do not exist.\n10.3.2 Foreign nationals who have not been authorized to enter Canada\nFor foreign nationals who have not been authorized to enter Canada, the burden of proof rests\nwith the foreign national to prove that they are not inadmissible to Canada. This applies to the\nfollowing:\n persons seeking to enter Canada; and\n persons who are in Canada without legal authorization.\nIt is up to the person concerned to disprove the evidence presented by the Minister that constitute\ninadmissibility. Nonetheless, since the Minister is the party who initiates the admissibility\nhearing process, it is the Minister who presents evidence first, on the facts that constitute the\nbasis for inadmissibility.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 10.2 (Additional allegations/amendments of the report)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.3 (Burden of proof)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-10-3", + "id": "enf-3-10-4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 10.3", - "marginal_note": "Including foreign national’s family members", + "section": "ENF 3 s. 10.4", + "marginal_note": "Standard of proof", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "10.3 Including foreign national’s family members\nWhen preparing a case, the hearings officer may discover that family members, who did not enter\nCanada at the same time as the person concerned are present in Canada and may decide that these\nfamily members should be included in the removal order. If this is the case, the hearings officer should\nprepare and serve a “Notice of Admissibility Hearing to Family Members” form (BSF 540) to all family\nmembers.\nThe hearings officer should assemble the required information and evidence to be introduced at the\nhearing to demonstrate that family members fall under the definition of “family member” pursuant to\nR1(3). Hearings officers should be aware that only foreign nationals who fall within the definition of R1(3)\nmay be included in the removal order made against the principal applicant. This does not include family\nmembers who are Canadian citizens or permanent residents.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 25\nFor more information about family inadmissibility refer to section 9.10 above.", + "text": "10.4 Standard of proof\nSince immigration proceedings are civil in nature, the general standard of proof applicable to\ncivil matters (balance of probabilities) applies to most inadmissibilities. Consequently, the\nMinister does not have to prove the existence of facts beyond a reasonable doubt (criminal\nstandard of proof), but rather has to demonstrate that the Minister’s version of the facts is more\nprobable than the version of the person concerned. This means that the evidence presented must\nshow that the facts as alleged are more probable than not.\nHowever, A33 of IRPA provides that for allegations of inadmissibility listed under A34 to A37,\nevidence is to be evaluated according the standard of proof, of “reasonable grounds to believe”\nthat the facts have occurred, are occurring or may occur. In Mugesera v. Canada (Minister of\nCitizenship and Immigration), the Supreme Court of Canada upheld the ruling of the Federal\nCourt of Appeal that the “reasonable grounds to believe” standard requires something more than\nmere suspicion, but less than the standard applicable in civil matters of proof on the “balance of\nprobabilities” [Sivakumar v. Canada (Minister of Employment and Immigration, p. 445) and\nChiau v. Canada (Minister of Citizenship and Immigration) (paragraph 60)]. The reasonable\ngrounds will exist where there is an objective basis for the belief which is based on compelling\nand credible information [Sabour v. Canada (Minister of Citizenship and Immigration)].\n2022-03-03 32\nThe following table summarizes the standard of proof for sections A34 to A42:\nStandard of proof\nReasonable grounds to believe Balance of probabilities\n Committed/Committing an act outside\nCanada as described in 36(1)(c)— Note:\napplies only to foreign nationals]\n Security (A34)\n Violation of human or international rights\n(A35)\n Serious criminality and criminality (A36),\nNote: except for A36(1)(c) for permanent\nresidents\n Organized crime (A37)\n Committed/Committing an act outside\nCanada as described in 36(1)(c)— Note:\napplies only to permanent residents]\n Health reasons (A38)\n Financial reasons (A39 )\n Misrepresentation (A40)\n Cessation of refugee protection (A40.1)\n Non-compliance with the Act (A41)\n Inadmissible family member (A42)", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 10.3 (Including foreign national’s family members)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.4 (Standard of proof)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-10-4", + "id": "enf-3-10-5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 10.4", - "marginal_note": "Witnesses", + "section": "ENF 3 s. 10.5", + "marginal_note": "Rules of evidence", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "10.4 Witnesses\nIf the hearings officer decides to call witnesses (other than the person concerned) to testify on behalf of\nthe Minister of PSEP, the hearings officer must inform the person concerned or the person’s cou nsel, if\napplicable, and the ID in writing, as prescribed by Rule 32 of the Immigration Division Rules. In this\nregard, the admission of expert evidence depends on the following criteria: (i) relevance (ii) necessity in\nassisting the trier of fact (iii) the absence of any exclusionary rule, and (iv) a properly qualified expert [ R.\nv. Mohan, (paragraph 17) and R. v. Sekhon, (paragraph 43)].\nPersonal information concerning witnesses and their testimony may consist of information that requires\nnon-disclosure protection. In which case the hearings officer should make an application for non -\ndisclosure.\nFor information on application for non-disclosure, refer to section 11, below.\nIf there are reasons to doubt that a witness will appear as requested, and if time p ermits, the hearings\nofficer may make an application in writing to the ID to request a summons [ Immigration Division Rules,\nRule 33].\n10. 5 Questioning witnesses\nIt is recommended that hearings officers prepare a strategy on questioning witnesses prior to the\ninadmissibility hearing, based on the case at hand and on the facts hearings officers want to prove.\nHearings officers should consider a variety of potential questioning avenues. Considering and anticipating\npotential responses beforehand may help hearings officers to maintain control of the examination and\nensure that important facts are captured.\nA list of the general areas to cover may be useful and preferable to a list of questions to be followed\nrigidly. Hearings officers should be careful about asking questions for which the answer is not known;\nfishing expeditions can have unexpected results.", + "text": "10.5 Rules of evidence\nAlthough members of the ID are not bound by the strict rules of evidence that apply to judicial\nproceedings, hearings officers should be aware of the following:\n the admissibility of evidence;\n the relevance of evidence;\n the weight of evidence; and\n the different types of evidence, including documentary evidence and testimony (includes\ntestimony given by expert witnesses) Expert witnesses can only give evidence with respect to the\nsubject at issue.\nFor additional information about rules of evidence, refer to Appendix A.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 10.4 (Witnesses)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.5 (Rules of evidence)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-10-6", @@ -3066,1078 +3066,1438 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 10.6", - "marginal_note": "Attending a pre-hearing conference", + "marginal_note": "Inadmissibility", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "10.6 Attending a pre-hearing conference\nThe ID may require the parties to participate in a pre-hearing conference to discuss issues, review\ndisclosure of information and the procedures to be followed in the case at hand. [Immigration Division\nRules, Rule 20(1)].\nRule 20(3) of the Immigration Division Rules provides that the ID must state orally or make a written\nrecord of any decisions or agreements made at the conference. It is important that all decisions or\nagreements made at the conference are clearly outlined in the hearings officer’s notes, as the parties at\nthe hearing will be bound by them.", + "text": "10.6 Inadmissibility\nNotes:\n For guidance on obtaining evidence for all inadmissibility provisions refer to ENF 1 –\nInadmissibility.\n For essential case elements for all inadmissibility provisions, refer to ENF 2 – Evaluating\nInadmissibility.\n2022-03-03 33", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 10.6 (Attending a pre-hearing conference)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.6 (Inadmissibility)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-1", + "id": "enf-3-10-7-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.1", - "marginal_note": "Admissibility hearing opening format", + "section": "ENF 3 s. 10.7", + "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.1 Admissibility hearing opening format\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 26\nAlthough the precise structure of admissibility hearings may vary from one member of the ID to another,\nthe hearings officer can expect that the following will be the general format at the opening of the\nhearing:\n The member of the ID makes an opening statement, indicating the legal basis for the hearing, the\nplace of the hearing, the date of the hearing and the jurisdiction. The member will then ask the\nparties and their counsel to identify themselves. The member of the ID will also note the presence\nof any observers present. The member will exclude members of the public, if the admissibility\nhearing concerns a refugee protection claimant or if the hearing is determined to be held “in\ncamera.”\n Next, the member of the ID confirms that the person concerned understands and communicates\nin the official language in which the admissibility hearing is being held. If an interpreter is\nnecessary, the member ensures that there is effective communication between the interpreter\nand the person concerned.\n If the person concerned is not represented by counsel, the member of the ID will confirm that the\nperson concerned was made aware of his or her right to counsel.\n In the case of an admissibility hearing with respect to a foreign national, the member of the ID\nmay ask if family members will be affected by a removal order in accordance with R227(2). If\nfamily members are affected, the hearings officer should submit the “Notice of Admissibility\nHearing to Family Members” form (BSF 540) that was provided to the family members prior to the\nhearing.", + "text": "10.7 Criminal equivalency between foreign and Canadian jurisdictions\nAs part of the inadmissibility determination under A36, it is necessary to determine if an offence\ncommitted outside Canada has an equivalent offence in Canadian law. This process is referred to\nas equivalency.\nSerious criminality inadmissibility findings apply to either a permanent resident or a foreign\nnational under A36(1). Criminality inadmissibility findings apply to a foreign national under\nA36(2).\nThe following provisions of IRPA raise the issue of equivalency with respect to serious\ncriminality and criminality:36(1)(b)\nSerious criminality\nForeign conviction for an offence that, if committed in Canada, would constitute an offence\nunder an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.\n36(1)(c) – Serious criminalityCommitted an act outside Canada that is an offence in the place\nwhere it was committed and that, if committed in Canada, would constitute an offence under an\nAct of Parliament punishable by a maximum term of imprisonment of at least 10 years.\n36(2)(b) - Criminality\nForeign conviction for an offence that, if committed in Canada, would constitute an indictable\noffence under an Act of Parliament, or of two offences not arising out of a single occurrence that,\nif committed in Canada, would constitute offences under an Act of Parliament.\n36(2)(c) – Criminality\nCommitted an act outside Canada that is an offence in the place where it was committed and that,\nif committed in Canada, would constitute an indictable offence under an Act of Parliament.\nThe Federal Court provides the following guidance for equivalency\n“[…] the fundamental test of equivalence is: would the acts committed abroad and", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.1 (Admissibility hearing opening format)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 1 of 7)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-2", + "id": "enf-3-10-7-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.2", - "marginal_note": "Exclusion of witnesses", + "section": "ENF 3 s. 10.7", + "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.2 Exclusion of witnesses\nThe member asks counsel and the hearings officer if there are any witnesses who will testify at the\nhearing present in the room. If so, the member will ask the witnesses to leave the room. Such a re quest\napplies to all the witnesses present in the room, except for the person concerned and the expert\nwitnesses. The person concerned has the right to attend the admissibility hearing that concerns them.\nHearings officers may wish for expert witnesses to hear all evidence presented since their testimony must\nbe based on the evidence that has been presented during the hearing.\nThe member may also remind everyone that witnesses must refrain from discussing the contents of their\ntestimony outside the hearing room [Immigration Division Rules, Rule 36].", + "text": "punished there have been punishable here?” [ Li v. Canada (Minister of Citizenship and\nImmigration) (paragraph 13)].\nIn Hill v. Canada (Minister of Employment and Immigration), the Court described the following\nthree ways of establishing equivalency between a foreign and a domestic offence:\n compare the elements of the Canadian and foreign statutes to determine if both have the\nsame essential elements to substantiate the respective offences (the elements generally\ninclude mental and physical components);\n2022-03-03 34\n examine the evidence adduced before the ID member, both oral and documentary, to\nascertain whether the evidence was sufficient to establish that the essential ingredients of\nthe offence in Canada had been proven in the foreign proceedings; or\n by a combination of paragraphs 1 and 2.\nRefer also to Park v. Canada (Citizenship and Immigration) (paragraph 14) and Patel v. Canada\n(Citizenship and Immigration) (paragraph 4).\nOffences that are no longer offences in Canada will not render a foreign national inadmissible for\na crime under IRPA. IRCC’s policy position is to apply this decision to permanent residents and\nforeign nationals who are inadmissible on the ground of serious criminality for offences\ncommitted inside and outside of Canada under paragraphs A36(1)(a), (b) and (c). The policy\ndecision does not apply to subsection A36(2) criminality or to cases where the maximum\npunishment in Canada has become more lenient.\nWhen preparing a case that involves an offence in a foreign jurisdiction that may be equivalent to\nan offence in Canada, hearings officers should follow these steps:\nStep 1 Identify the foreign offence.\nStep 2\nObtain evidence on the foreign offence. You should address the following three areas:", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.2 (Exclusion of witnesses)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 2 of 7)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-3", + "id": "enf-3-10-7-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.3", - "marginal_note": "Evidence: Reading and filing the report, or notice", + "section": "ENF 3 s. 10.7", + "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.3 Evidence: Reading and filing the report, or notice\nThe member of the ID accepts documents provided by both parties and enters them as exhibits to the\nhearing.\nThe member may ask for the originals of the A44(1) report and the “Referral under subsection 44(2) of\nthe IRPA for an admissibility hearing” form (BSF 506).\nThe hearings officer must present documentary evidence and ask for it to be entered as an exhibit to\nsubstantiate the allegations contained in the A44(1) report. The hearings officer can examine or question\nthe person concerned and/or witnesses on this evidence.\nThe evidence may cover one or more allegations. After presenting the A44(1) report, the hearings officer\nasks that the report be filed as an exhibit. The member of the ID will then explain the following to the\nperson concerned:\n the reason for the admissibility hearing;\n the allegations;\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 27\n possible consequences; and\n procedures to be followed during the admissibility hearing.\nIf applicable, the hearings officer calls the person concerned as a witness and may call other witnesses\nas required to support the allegations outlined in the A44(1) report.\nThe person concerned (or counsel representing the person concerned) will be given the opportunity to\npresent evidence to refute the allegations contained in the A44(1) report and to cross -examine all\nwitnesses.\nThe hearings officer is given the opportunity to cross-examine on the evidence presented by the person\nconcerned (or by counsel representing the person concerned).\nIf evidence that has not been previously provided to all parties arises during cross -examination, the\nopposing party will be given an opportunity to examine this evidence and respond accordingly.", + "text": " the wording of the offence in the foreign statute;\n the best proof of a conviction (see ENF1 Section 7 for acceptable types of\nevidence);\n details of what was actually done (the act).\nStep 3 Identify possible Canadian equivalent offence(s)\nStep 4 Break down each offence (Canadian and foreign) into its basic elements (see ENF2\nSection 3.7 and ENF2 Appendix A)\nStep 5 Compare each foreign element to its Canadian equivalent and determine if the\nCanadian element is equal to, broader than or narrower than the foreign element.\nStep 6\nWhen the Canadian element is narrower than the foreign element, you will be required\nto examine the act (the details of the offence) to determine whether the act committed\nsatisfies the Canadian element.\nStep 7\nCome to an overall conclusion as to whether the foreign offence is equivalent to the\nCanadian offence by finding that the foreign elements are equal to or narrower that the\nCanadian element and where broader than the act in question meets the Canadian\nelement.\nStep 8 If you have equivalency, take into account the penalty for the Canadian offence at the\ntime the offence was committed to decide which allegation under A36 is appropriate.\nThe foreign law must be proven during the admissibility hearing by producing all the extracts\nrelevant to the offence, which will be entered as an exhibit. The relevant extracts should, as a\nrule, include the sections that define the terms used in describing the offence.\n2022-03-03 35\nAs seen above, in the examination of equivalency, a determination is made as to whether each of\nthe essential elements of the foreign offence is present in the Canadian equivalent. The following\nare helpful ways to remember when you have equivalency:", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.3 (Evidence: Reading and filing the report, or notice)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 3 of 7)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-4", + "id": "enf-3-10-7-p4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.4", - "marginal_note": "Evidence on the identity, citizenship and status of the person", + "section": "ENF 3 s. 10.7", + "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.4 Evidence on the identity, citizenship and status of the person\nconcerned\nAfter the person concerned has been sworn in, the person’s identity and citizenship must be clearly\nestablished. The hearings officer may develop the evidence by asking questions such as the following:\n What is your correct name in full?\n Have you ever used any other name?\n What is your date of birth?\n Where were you born?\n Of what country are you a citizen?\n Are you a Canadian citizen?\n Are you a permanent resident of Canada?\n Do you have a passport?\n Do you have other identity documents?\n What is your permanent address?\nQuestions should be aimed at determining whether the person concerned is\n an applicant for permanent residence with or without a valid visa;\n an individual seeking to come to Canada as a returning resident, with or without a permanent\nresident card or a facilitation visa;\n an applicant for a temporary resident permit (TRP) with or without a visa.", + "text": " If all of the elements exist in both statutes (Canadian and foreign), the offences are\nequivalent. It is not necessary for the wording of the two laws to be identical. For\nexample, the term “knowingly” may be equivalent to “knowing”, and the term “whoever”\nmay be equivalent to “any person”.\n If the foreign enactment is more restrictive than the Canadian enactment, both offences\nare equivalent, since the Canadian statute covers all the situations contemplated in the\nforeign statute.\n If the foreign enactment is broader than the Canadian statute, or if the text includes\nsituations that do not lead to a criminal offence in Canada, there is no textual\nequivalency. However the analysis does not end there. It is then necessary to examine the\ncircumstances of the offence to determine if there is equivalency nonetheless. When this\nsituation arises, evidence should be submitted regarding the facts that were proven in the\ncriminal trial held outside Canada or, in cases where there is no conviction, evidence such\nas police reports may be relied upon to show that an offence was committed. When every\nessential element of the Canadian offence can be established, there is equivalence.\n The hearings officer should identify for the benefit of the ID which constituting\nelement(s) of the Canadian offence is (are) not found in the text of the foreign offence.\nThe hearings officer should then identify the facts that establish each element in the\nCanadian offence by referring to exhibits or part of a testimony that prove these facts.\nExample of equivalency:\nGeneral Laws of Massachusetts, Pt IV, Title I, Ch. 266, sec. 49 — Burglarious\ninstruments; making; possession; use\nWhoever makes or mends, or begins to make or mend, or knowingly has in his", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.4 (Evidence on the identity, citizenship and status of the person)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 4 of 7)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-5", + "id": "enf-3-10-7-p5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.5", - "marginal_note": "Evidence for inclusion of family members", + "section": "ENF 3 s. 10.7", + "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.5 Evidence for inclusion of family members\nTo include a family member in the removal order issued against the person concerned, hearings officers\nmust first prove the identity, citizenship and status of the family member. A42 provides that only foreign\nnationals can be inadmissible on grounds of an inadmissible family member; therefore, the hearings\nofficer must clearly establish that the family member is a foreign national.\nThe hearings officer must also prove that the conditions set forth in R227(2)(a) and (b) are satisfied as\nfollows:\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 28\nR227(2)(a)\nHearings officers should provide proof that family members were informed that they are subject to an\nadmissibility hearing pursuant to R227(2)(a) via a copy of the “Notice of Admissibility Hearing to Family\nMembers” form (BSF 540) that was previously provided to family members.\nR227(2)(b)\nConditions set out in R227(2)(b) are satisfied if the evidence shows that\n individuals fall within the definition of “family member” pursuant to R1(3);\n the family member(s) is (are) accompanying the inadmissible foreign national.\nAfter the hearings officer has presented the evidence, affected family members are given an opportunity\nto establish the reasons for why they should not be included in the removal order of the person\nconcerned.\nFamily members can only avoid being included in the removal order of the person concerned if they have\nproof that refutes the evidence submitted by the hearings officer and demonstrate that they do not meet\nthe definition of “family member” pursuant to R1(3).\nIf the ID comes to the conclusion that the foreign national is inadmissible, and that the conditions set forth\nin R227(2)(a) and (b) were met, then a removal order made by the ID against the person concerned will\nautomatically be effective against family members.\nSee section 9.10 above, for information about family inadmissibility.\nSee ENF 2 for information on evidence regarding inadmissible family members.", + "text": "possession, an engine, machine, tool or implement adapted and designed for cutting\nthrough, forcing or breaking open a building, room, vault, safe or other depository, in\norder to steal therefrom money or other property, or to commit any other crime, knowing\nthe same to be adapted and designed for the purpose aforesaid, with intent to use or\nemploy or allow the same to be used or employed for such purpose, or whoever\nknowingly has in his possession a master key designed to fit more than one motor\nvehicle, with intent to use or employ the same to steal a motor vehicle or other property\ntherefrom […]\nCriminal Code of Canada, sec 351(1) — Possession of break-in instruments\n351 (1) Every person who, without lawful excuse, has in their possession any instrument\nsuitable for the purpose of breaking into any place, motor vehicle, vault or safe knowing\nthat the instrument has been used or is intended to be used for that purpose,\n2022-03-03 36\nComparing the text of these two provisions we see that there is no textual equivalency. The\nCanadian offence is more restrictive since the instruments described under the Canadian offence\ndo not address the act of making or mending the break-in instruments.\nTo equate with the Canadian criminal code definition of breaking in, it is necessary to introduce\nevidence showing that person was found in possession of the instrument that was in working\norder to commit the offence and was not arrested while in the process of making said break-in\ninstrument.\nIn this example, the evidence that the foreign offence is equivalent to an offence committed in\nCanada could consist of the following:\n introduction of the relevant sections of the foreign statute; and\n testimony of the person concerned describing the circumstances of their arrest and type of", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.5 (Evidence for inclusion of family members)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 5 of 7)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-6", + "id": "enf-3-10-7-p6", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.6", - "marginal_note": "Examining and cross-examining witnesses", + "section": "ENF 3 s. 10.7", + "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.6 Examining and cross-examining witnesses\nExamining and cross-examining witnesses can be difficult. The following general guidelines may be\nuseful:\n Depending on the case, questioning should be subtle rather than obvious, in order to obtain as\nmuch information as possible.\n The order and type of questions should be adapted, and varied depending on the answers that\nthe person concerned has given to preceding questions. Also, depending on the answers of the\nperson concerned, it may be necessary to modify the plan for questioning witnesses and for\nintroducing evidence.\n Leading questions are those which suggest an answer. They can be a useful method of cross-\nexamination, particularly where the facts are not in dispute or when a witness is proving to be\nuncooperative.\n When it is the intention of the hearings officer to call into question the credibility of a witness,\nprocedural fairness dictates that cross examination is required. (Browne v. Dunn; R. v. Lyttle).\n It is useful to take notes of the key aspects of the testimony given by witnesses throughout the\nadmissibility hearing in order to prepare and deliver submissions to the member of the ID.\n All parties to the proceedings may ask to see the notes that witnesses use to assist with their\ntestimony, and may demand that these notes be introduced as an exhibit.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 29\nIf a cross-examination raises new information, it may be useful and/or necessary to ask a witness\nadditional questions after the cross-examination has been closed. Throughout the admissibility hearing,\nthe parties may raise objections and respond to the objections raised by the other party.\nAll testimony is given under oath (by swearing on a holy book) or by affirmation (a solemn promise to tell\nthe truth).\nThe Federal Court of Canada in Ioanmidis v. Canada (Minister of Employment and Immigration) ruled that\nan adverse inference should not be drawn simply because a party/litigant does not testify, even if a\nreasonable explanation is not provided. However, where a witness at a hearing refuses to give evidence,\nthe member is entitled to draw a negative inference from that refusal.", + "text": "instrument; or\n extracts of the transcript of the foreign trial identifying the nature of the instruments; or\n copy of the foreign indictment which contains a description of the instruments found; or\n documentary evidence providing a description of the instruments.\nIn most admissibility hearings dealing with equivalency, the hearings officer will generally have\nto produce the following documents as exhibits, when available:\n evidence of the conviction, such as a certificate of conviction, a police report or a\nstatutory declaration outlining a telephone conversation with a police officer, court\nreporter, court records clerk, or any document originating from the authorities of the\ncountry where the conviction was handed down;\n the legal description of the foreign offence; that is, the text of the statutory provision\nunder which the person was convicted; and\n evidence (obtained from the charge or indictment or a similar document) of the\nparticulars of the offence [Brannson v. Canada (Minister of Employment and\nImmigration) (para. 4)]. In some cases, the certificate of conviction may contain\nsufficient information for the certificate to be used instead of the indictment.\nAfter further research and investigation, the hearings officer may find that the foreign conviction\nwould better equate to a Canadian offence other than the one initially identified by the Minister’s\ndelegate at the time of writing the report. The A44(1) report should refer to as many Canadian\nequivalents as is reasonably necessary. Refer to section 11.2 Additional allegations/amendments\nof the report for further guidance.\nFor additional information on documentary evidence, refer to ENF 2 Evaluating inadmissibility.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.6 (Examining and cross-examining witnesses)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 6 of 7)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-7", + "id": "enf-3-10-7-p7", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.7", - "marginal_note": "Submissions on the allegations", + "section": "ENF 3 s. 10.7", + "marginal_note": "Criminal equivalency between foreign and Canadian jurisdictions", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.7 Submissions on the allegations\nAfter the hearings officer and the person concerned have introduced all evidence, the member of the ID\ngives both parties an opportunity to make submissions on the allegations. The presentation of evidence\nshould be clear, concise and delivered in logical order. The submission stage is not the time to introduce\nnew facts. Hearings officers should also ensure that any statements and conclusions made in their\nsubmission are supported by evidence entered into the record.\nFor example, in the case of a person seeking admission to Canada, the hearings officer may indicate in\nhis or her submissions that the person concerned\n has no right to enter Canada since the person is neither a Canadian citizen nor a permanent\nresident of Canada; and\n has not discharged the burden of proof and has therefore failed to establish admissibility.\nIn the case of a foreign national who is in Canada, the hearings officer should point out that the person\nconcerned has no right to remain in Canada given that they are neither a Canadian citizen nor a\npermanent resident of Canada. The hearings officer may present a summary of the evidence that would\nlead a reasonable and cautious person to conclude that there is a factual basis to the allegation(s)\ncontained in the A44(1) report.", + "text": "Note: IRCC is the delegated department for policy oversight of A36. If required in some\ncomplex or atypical equivalency cases, hearings officers and their managers may contact the\nHearings Programs unit at NHQ (Hearings-Audiences-Programs@cbsa-asfc.gc.ca ) to seek\nguidance from IRCC).\n2022-03-03 37", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.7 (Submissions on the allegations)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.7 (Criminal equivalency between foreign and Canadian jurisdictions) (part 7 of 7)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-8", + "id": "enf-3-10-8-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.8", - "marginal_note": "The admissibility decision", + "section": "ENF 3 s. 10.8", + "marginal_note": "Serious criminal inadmissibility for committing and act outside Canada that would", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.8 The admissibility decision\nFollowing submissions, the member of the ID renders a decision as to whether or not the person\nconcerned is inadmissible to Canada. The decision determines if the allegations contained in the report\nare well founded and whether the evidence introduced into the record revealed additional grounds of\ninadmissibility. The member shall then render one of the decisions listed in A45 as follows:\n If the ID finds that the person concerned is in fact a Canadian citizen, a permanent resident, or a\nregistered Indian under the Indian Act, the ID will recognize the person’s right to enter Canada\n[A45(a)].\n If the ID finds that the person concerned is not inadmissible, and is satisfied that the person\nmeets the requirements of the Act, the ID will grant the person concerned temporary or\npermanent resident status [A45(b)], as the case may be.\n If the ID finds that the person concerned is not inadmissible, but that the evidence does not show\nthat the person concerned meets all of the requirements of the Act, then the ID shall authorize the\nperson concerned to enter Canada for further examination, with or without conditions [A45( c)].\n If the ID finds that the allegation is well founded, the ID shall make the applicable removal order,\nwhich may require additional evidence [A45(d)].\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 30\nThe ID must give the reasons for its decision orally or in writing. The ID will provide the written reasons\nupon request from one of the parties, which must be received by the Division within 10 days from the\nnotification of the decision [Immigration Division Rules, Rule 7(4)].", + "text": "10.8. Serious criminal inadmissibility for committing and act outside Canada that would\nconstitute an offence in the foreign jurisdiction as well as in Canada [A36(1)( c)]\nTo establish inadmissibility under A36(1)(c), it is sufficient to prove that an act was committed\noutside Canada, that is an offence the place where it occurred and that the act, if committed in\nCanada would have constituted, at the time of its commission, an offence in Canada that would\nbe punishable by a maximum term of imprisonment of at least 10 years. It is not necessary to\nprove the following facts:\n that the person concerned was convicted of the offence outside Canada;\n that charges or an indictment were laid;\n that the wording of the foreign statute is equivalent to the wording of the Canadian\nlegislation;\n that the person would receive a sentence of 10 years or more if sentenced in Canada.\nThe IRPA does not prevent the same facts from being the subject of two different allegations in\nthe same report [A44(1)]. If this is the case, the ID member presiding over the admissibility\nhearing is responsible for determining whether the facts constitute either of the inadmissibility\ngrounds alleged in the report.\nNote:A36(1)(b) and A36(1)(c) are generally mutually exclusive (officers should use one\nallegation or the other for the same act); nevertheless, in case where the proof of foreign\nconviction is unreliable or may be called in question the A44(1) report may include two\nallegations: one relating to an equivalence [A36(1)(b) or A36(2)(b)] and one relating to an act or\nomission [A36(1)(c) or A36(2)(c)].\n10.8.1 Committing an offence on entry to Canada [A36(2)(d)]\nFor the application of A36(2)(d), the hearings officer must ensure that the act committed was", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.8 (The admissibility decision)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.8 (Serious criminal inadmissibility for committing and act outside Canada that would) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-9", + "id": "enf-3-10-8-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.9", - "marginal_note": "Submissions on a removal order", + "section": "ENF 3 s. 10.8", + "marginal_note": "Serious criminal inadmissibility for committing and act outside Canada that would", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.9 Submissions on a removal order\nWhere, at the conclusion of an admissibility hearing, the member of the ID is of the opinion that the\nperson concerned is inadmissible on one or more grounds, the member shall make the applicable\nremoval order [A45(d)].\n Section R229(1) lists the type of removal order to be made by the ID according to applicable\ninadmissibility.\n R229(2) lists grounds of inadmissibility for which the ID must make a departure order when the\nperson concerned is a refugee protection claimant [R229(1)(f), (g), (j),(m) and (n)]. To ensure that\nthe correct removal order is issued, the hearings officer should state whether the eligibility of the\nclaim has been determined, and if the claim has been determined to be ineligible, produce copies\nof all relevant forms.\n When an application for refugee protection is presented before or during the admissibility h earing,\nthe hearings officer must proceed as if the eligibility determination has already been made.\n R229(3) lists circumstances in which the ID shall make a deportation order against a person\ninstead of the prescribed removal order pursuant to R229(1). The circumstances listed in R229(3)\nare the following:\n1. the person was previously subject to a removal order and the person is inadmissible on\nthe same grounds as in that order;\n2. the person has failed to comply with any condition or obligation imposed under th e Act or\nthe Immigration Act, R.S.C. 1985, c. I-2, unless the failure is the basis for the removal\norder; or\n3. the person has been convicted in Canada of an offence under an Act of Parliament\npunishable by way of indictment or of two offences under any Act of Parliament not\narising out of a single occurrence, unless the conviction or convictions are the grounds\nfor the removal order.\nHearings officers will be provided with the opportunity to make arguments on the application of 229(3)\nwhere applicable and adduce all relevant evidence to support the application of the provision. Where\nevidence supports the application, the hearings officer should recommend the issuance of a deportation\norder.\nNote: For more information on specified removal orders, see ENF 10, Removals.", + "text": "contrary to an Act of Parliament that is prescribed by the IRPR. R19 lists six prescribed Acts:\nthe Criminal Code, IRPA, Firearms Act, Customs Act, CDSA, and the Cannabis Act. Because an\nA36(2)(d) allegation can only be made in a ‘present tense’ scenario, all the evidence available to\nsupport it will originate from the port of entry. Hearings officers should rely on evidence such as\nstatutory declarations from officers, copies of officer’s notebook pages, reports, photos and or\nvideo surveillance footage.\nNote: Information collected in the course administering the Customs Act may be protected.\nOfficers should familiarize themselves with section 107 of the Customs Act, which sets out the\nmodalities and conditions for the authorized use of customs information in the enforcement of\nthe IRPA .\nFor additional information on the use of A36(2)(d), refer to ENF 2\n2022-03-03 38", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.9 (Submissions on a removal order)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.8 (Serious criminal inadmissibility for committing and act outside Canada that would) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-10", + "id": "enf-3-10-9", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.10", - "marginal_note": "Cases involving refugee protection claimant", + "section": "ENF 3 s. 10.9", + "marginal_note": "Foreign pardons", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.10 Cases involving refugee protection claimant\nIf the person concerned claims refugee protection during an admissibility hearing, the case must be\nreferred to a Minister's delegate for determination of eligibility.\nThe person concerned will be issued a Determination of Eligibility form (IMM 1442B), which will provide\nreasons, if the claim is ineligible.\nWhere an application for refugee protection is presented before or during the proceedings, the hearings\nofficer must proceed as if the person is eligible to make a claim for refugee protection. This means that\nthe admissibility hearing must be held in private from the moment the application for refugee protection is\npresented. If it is later determined that the claim for refugee protection was not eligible, the continuation of\nan adjourned admissibility hearing and subsequent hearings shall be held in public.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 31", + "text": "10.9 Foreign pardons\nPlease refer to IRCC’s Program Delivery Instructions (PDI) on Criminal Rehabilitation. The\neffect of a foreign pardon does not automatically render the person admissible to Canada.\nThe following must be taken into account:\n If the country's legal system is based on similar foundations and values as Canada’s, then\nthe foreign legislation must be examined to determine whether the effect of the pardon is\nto erase a conviction or merely recognize that rehabilitation has taken place. In the former\ncase, the person would not be inadmissible. In the latter case, the applicant is\ninadmissible and, subject to the prescribed period in R17, an application for rehabilitation\nmay be initiated by the person.\n In the vast majority of cases, the applicant should be able to produce a copy of the\npardon.\n Canadian courts are not bound by a foreign pardon in which there is an absence of\nevidence as to the motivating considerations that led to the grant of a pardon by another\nstate jurisdiction.\n Three elements must be established before a foreign discharge or pardon may be\nrecognized:\no 1) the foreign legal system as a whole must be similar to that of Canada;\no 2) the aim, content and effect of the specific foreign law must be similar to\nCanadian law; and\no 3) there must be no valid reason not to recognize the effect of the foreign law", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.10 (Cases involving refugee protection claimant)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.9 (Foreign pardons)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-11", + "id": "enf-3-10-10", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.11", - "marginal_note": "Claim to Canadian citizenship", + "section": "ENF 3 s. 10.10", + "marginal_note": "Permanent Resident inadmissibility under A36(1)(a)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.11 Claim to Canadian citizenship\nAn admissibility hearing is not adjourned simply because a person concerned claims to be a Canadian\ncitizen. To provide proof of Canadian citizenship, a genuine passport or a citizenship certificate is\nrequired. It is the responsibility of the member of the ID to determine if the evidence produced by the\nperson concerned is sufficient to support the claim that they are Canadian citizen.\nThe hearings officer may challenge the claim to citizenship during the hearing, if the hearings officer is in\npossession of evidence to support the challenge. The hearings officer may ask the member of the ID to\nrender a decision and continue the admissibility hearing according to established procedure. The\nhearings officer may request an adjournment in order to obtain the evidence required to refute the claim\nto Canadian citizenship, if the necessary evidence is not readily available.\nIf the admissibility hearing is adjourned, the person concerned must provide proof that he or she has\nmade an application for a citizenship certificate within the specified time frame. If an application for a\ncitizenship certificate has not been filed within the specified period, or if the hearings officer is informed by\nthe Registrar of Canadian Citizenship (RCC) that a citizenship certificate will not be issued, the hearings\nofficer will request the ID to resume the admissibility hearing.\nIf the RCC confirms that the person concerned is indeed a Canadian citizen or issues a certificate of\ncitizenship, the hearings officer will forward the documents to the ID and the admissibility hearing will be\nterminated immediately.", + "text": "10.10 Permanent Resident inadmissibility under A36(1)(a)\nCases of A44(1) reports alleging inadmissibility under A36(1)(a) for serious criminality in\nCanada, and referred to the ID, are usually very straightforward and therefore officers should aim\nto have them handled by way of written submissions instead of having the Minister’s\nrepresentative attend in-person. Hearings officers or hearings advisors must ensure that they are\nnot the authors of any evidence (such as statutory declarations) that is included in the disclosure.\nHearings officers must obtain the approval from the Member to participate in writing rather than\nby in-person attendance. This is done by submitting a written application pursuant to ID Rule 38,\nseeking a release from the obligation to appear at the hearing, which is set out in ID Rule 42(3)\nand 43(3). Where the Member denies the application, the hearings officer is obligated to attend\nin person.\nIn some cases, where the issue is not straightforward, the hearings officer may determine that\ntheir in-person pres ence at the hearing is required. Before attending the hearing, the hearings\nofficer must first obtain their manager’s written approval to appear in person for A36(1)(a) cases\nand place a signed copy their manager’s approval on file.\nFor the applicable templates, refer to Appendix C and D.\n2022-03-03 39", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.11 (Claim to Canadian citizenship)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.10 (Permanent Resident inadmissibility under A36(1)(a))", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-11-12", + "id": "enf-3-10-11-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 11.12", - "marginal_note": "Cases involving detainees", + "section": "ENF 3 s. 10.11", + "marginal_note": "Family inadmissibility A42(1)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "11.12 Cases involving detainees\nAdmissibility hearings concerning persons who are detained may coincide with the date scheduled for a\ndetention review. Although the admissibility hearing may be adjourned, the detention review must take\nplace within the time frames prescribed by section A57.\nIf the admissibility hearing takes place, the member of the ID will proceed first with the admissibility\nhearing. Since the admissibility hearing and the detention review are two separate proceedings, the\nmember may ask for separate disclosure of documents.\nFor more information, see section 13, Detention reviews.", + "text": "10.11 Family inadmissibility A42(1)\nAccording to A42(1), a foreign national, other than a protected person, is inadmissible on\ngrounds of an inadmissible family member in the following two instances:\n(a) their accompanying family member, or, in prescribed circumstances, non-\naccompanying family member is inadmissible; or\n(b) they are an accompanying family member of an inadmissible person\nFor the purpose of paragraph A42(1)(a), the prescribed circumstances are described in section\nR23. That section addresses situations where the foreign national is inadmissible on the ground\nof an inadmissible non-accompanying family member where the foreign national made an\napplication for temporary residence status, or a permanent resident visa, or an application to\nremain in Canada as a temporary resident or a permanent resident; and where the non-\naccompanying family member is:\n The spouse of the foreign national, except where the relationship between them has\nbroken down in law or in fact,\n The common-law partner of the foreign national,\n A dependent child of the foreign national and where either the foreign national or an\naccompanying family member of the foreign national has custody of that child or is\nempowered to act on behalf of that child by virtue of a court order or a written agreement\nor by operation of law, or\n The dependent child of the dependent child of the foreign national and where the foreign\nnational, or a dependent child of the foreign national, or any other accompanying family\nmember of the foreign national has custody of that child or is empowered to act on behalf\nof that child by virtue of a court order or a written agreement or by operation of law.\nSubsection A42(2) provides an exception to inadmissibility that would occur pursuant to", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 11.12 (Cases involving detainees)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.11 (Family inadmissibility A42(1)) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-12-1", + "id": "enf-3-10-11-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.1", - "marginal_note": "General", + "section": "ENF 3 s. 10.11", + "marginal_note": "Family inadmissibility A42(1)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "12.1 General\nSection A86 provides that the Minister (hearings officer as the Minister’s delegate) may, prior to or during\nan admissibility hearing, a detention review or an appeal before the Immigration Appeal Division (IAD),\nmake an application for non-disclosure of information or other evidence, if the hearings officer is of the\nopinion that this information falls within the following definition: “security or criminal intelligence\ninformation and information that is obtained in confidence from a source in Canada, the government of a\nforeign state, an international organization of states or an institution of such a government or international\norganization.” (A76)\nNote: For information on how to proceed with a non-disclosure application, hearings officers should refer\nto ENF 31: Applications for non-disclosure at IRB hearings.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 32", + "text": "subsection A42(1). This exception applies only in the temporary resident context. The exception\napplies where a foreign national is a temporary resident, or where a foreign national has made an\napplication for temporary resident status, or an application to remain in Canada as a temporary\nresident, and where:\n The matters referred to in paragraph A42(1)(a) constitute inadmissibility only if the\nfamily member is inadmissible under sections A34 (security concerns), A35 (human or\ninternational rights violations), or A37 (organized criminality).\n The matters referred to in paragraph A42(1)(b) constitute inadmissibility only if the\nforeign national is an accompanying family member of a person who is inadmissible\nunder sections A34 (security concerns), A35 (human or international rights violations), or\nA37 (organized criminality).\nFor reference, subsections A42(1) and (2) can be summarized in the following table:\n2022-03-03 40\nInadmissibility of the principal applicant (PA) on the ground of inadmissible family member\nother than a protected person\nInadmissibility\ngrounds of the\nsubject of an\nadmissibility\nhearing\nForeign national is an accompanying family\nmember (AFM) of a principal applicant who\nForeign national is a non-accompanying\nfamily member (NAFM) of a principal\napplicant who\nIs a temporary resident\n(TR) or who has made an\napplication for TR status\nor an application to\nremain in Canada as a TR\nApplies for a PR visa or to\nremain in Canada as\npermanent resident\nIs a temporary\nresident (TR) or who\nhas made an\napplication for TR\nstatus or an\napplication to\nremain in Canada as\na TR\nApplies for a PR visa or to\nremain in Canada as\npermanent resident\n34, 35, 37 The PA is inadmissible\nbecause the AFM is\ninadmissible\nThe PA is inadmissible\nbecause the AFM is\ninadmissible", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.1 (General)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.11 (Family inadmissibility A42(1)) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-12-2-p1", + "id": "enf-3-10-11-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.2", - "marginal_note": "Application for non-disclosure presented prior to an admissibility", + "section": "ENF 3 s. 10.11", + "marginal_note": "Family inadmissibility A42(1)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "12.2 Application for non-disclosure presented prior to an admissibility\nhearing or a detention review\nIf a decision is made to proceed with an application for non-disclosure of information, the hearings officer\nshould notify counsel of record, or in the absence of counsel, the person concern as prescribed by ID\nRules 38(5) .A copy of the application must also be provided to the ID, including proof that the person\nconcerned or their counsel was notified of the application.\nInformation provided in the application, if any, should be limited so as not to disclose information that\nshould be protected. A83 and A85.1 to A85.5 govern the procedures regarding application for non -\ndisclosure.\nThe ID registrar will schedule a date for an ex parte in camera hearing as expeditiously as possible. The\nmember of the ID will conduct a hearing in private (in camera) and in the absence of the person\nconcerned and the person’s counsel to hear the application for non-disclosure of information. Subsection\nA83(1)(b), requires that the ID appoint a special advocate upon request of the person concerned. The\nrole of the special advocate is to represent the interests of the person concerned at the hearing of the s.\n86 application for non-disclosure.\nNote: A list of special advocates is available on the Department of Justice website.\nNote: All individuals participating in the non-disclosure hearing must have the required security\nclearance.\nOnce the member of the ID completes examination of the information and other evidence, the member\nmust determine which elements of information or evidence may be considered in his or her decision as\noutlined in the following table.\nInformation or evidence that may be considered by the ID at a non-disclosure hearing\nTypes of\ninformation or\nevidence", + "text": "The PA is\ninadmissible\nbecause the\nNAFM is\ninadmissible\nThe PA is inadmissible\nbecause the NAFM is\ninadmissible\n36, 38, 39, 40,\n40.1, 41\nThe PA is not\ninadmissible because\nthe AFM is\ninadmissible\nThe PA is inadmissible if\nthe AFM is inadmissible\nThe PA is not\ninadmissible if the\nNAFM is\ninadmissible\nThe PA is inadmissible\nif the NAFM is\ninadmissible\nInadmissibility of the family member other than a protected person on the ground of\ninadmissible principal applicant (PA)\nInadmissibility\ngrounds of the\nsubject of an\nadmissibility\nhearing\nForeign national is an accompanying family\nmember (AFM) of a principal applicant who\nForeign national is a non-accompanying\nfamily member (NAFM) of a principal\napplicant who\nIs a temporary resident\n(TR) or who has made an\napplication for TR status\nor an application to\nremain in Canada as a TR\nApplies for a PR visa or to\nremain in Canada as\npermanent resident\nIs a temporary\nresident (TR) or who\nhas made an\napplication for TR\nstatus or an\napplication to\nremain in Canada as\na TR\nApplies for a PR visa or to\nremain in Canada as\npermanent resident\n34, 35, 37 The AFM is\ninadmissible because\nof the inadmissible PA\nThe AFM is inadmissible\nbecause of the\ninadmissible PA\nN/A 1 N/A 2\n36, 38, 39, 40,\n40.1, 41\nThe AFM is not\ninadmissible if the PA is\ninadmissible\nThe AFM is inadmissible\nbecause of the\ninadmissible PA\nN/A3 N/A 4\n1 In this scenario there is no need to examine the inadmissibility of the PA vis a vis the family members because in\nthis context the family member is non-accompanying, and is not coming to Canada.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.2 (Application for non-disclosure presented prior to an admissibility) (part 1 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10.11 (Family inadmissibility A42(1)) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-12-2-p2", + "id": "enf-3-4-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.2", - "marginal_note": "Application for non-disclosure presented prior to an admissibility", + "section": "ENF 3 s. 4", + "marginal_note": "Same explanation as in footnote 1.", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "Applicability to decision\nRelevant facts\nthat may not be\ndisclosed\nThe member takes these facts into account when making his or her decision (at the\nconclusion of the admissibility hearing or detention review), but does not include\nthem in the summary that is prepared for the person concerned.\nRelevant facts\nthat may be\ndisclosed\nThe member may take these facts into account when making a decision, and include\nthem in the summary, if the hearings officer agrees that the facts may be\ndisclosed. If the hearings officer does not agree with the contents of the summary,\nthe hearings officer can withdraw the information under dispute, or the application\naltogether, and a decision on the case will be rendered without the information under\ndispute.\nIrrelevant\nevidence\nSuch evidence is not considered in the decision.\nThe person concerned will be provided with a summary of information and other evidence that allows the\nperson to be reasonably informed of the case being made by the Minister. The summary does not include\ninformation that would be injurious to national security or endanger the safety of any person if disclosed\n[A83(1)(e)].\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 33", + "text": "4 Same explanation as in footnote 1.\n2022-03-03 41\nAn allegation of inadmissibility under section 42 of the Act cannot be made against permanent\nresidents or protected persons.\n10.11.1 Including family members at an admissibility hearing\nMost A42 inadmissibility cases are encountered overseas in the context of [temporary or\npermanent resident] visa applications and therefore never reach the ID. However, where the\nperson and their family members are in Canada, if a person is reported for inadmissibility under\nA34, A35 or A37, the matter will be subject to an admissibility hearing before the ID.\nAn A44(1) report regarding the foreign national or permanent resident in question is sufficient\nand a separate report is not required for family members who are foreign nationals. Note: In\ncases where a family member was not included in the BSF540, following the conclusion of the\nadmissibility hearing for the person alleged to be inadmissible under A34, A35 or A37, the\nfamily member can be the subject of their own A44(1) report alleging inadmissibility under\nA42(2), whereupon a Minister’s Delegate may issue them a deportation order pursuant to\nR228(1)(d). However, this process should only be undertaken if the officer was unable to notify\nthe family member, or was unaware of their presence at the time of completing the BSF540. For\nmore information on the review of A44(1) reports on family inadmissibility, refer to ENF 6.\n10.11.2 Evidence for inclusion of family members\nTo include a family member in the removal order issued against the person concerned, hearings\nofficers must first prove the identity, citizenship and status of the family member. A42 provides\nthat only foreign nationals can be inadmissible on grounds of an inadmissible family member.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.2 (Application for non-disclosure presented prior to an admissibility) (part 2 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 4 (Same explanation as in footnote 1.) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-12-3", + "id": "enf-3-4-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.3", - "marginal_note": "Application for non-disclosure presented during an admissibility", + "section": "ENF 3 s. 4", + "marginal_note": "Same explanation as in footnote 1.", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "12.3 Application for non-disclosure presented during an admissibility\nhearing or a detention review\nIf, during the course of an admissibility hearing or a detention review it becomes apparent that evidence\nor other information to be presented falls under the definition of A76, the hearings officer may make an\napplication for non-disclosure at that time. If necessary, the member of the ID may suspend the hearing to\nallow the hearings officer to prepare a written application.\nAt the time an application for non-disclosure is presented, the member of the ID must exclude the person\nconcerned and the person’s counsel from the hearing room. The ID member may adjourn the\nadmissibility hearing or detention review at the request of the hearings officer or on the member’s own\ninitiative and schedule a date for the hearing of the Minister’s application for non-disclosure.", + "text": "Therefore, the hearings officer must clearly establish that the family member is a foreign\nnational.\nThe hearings officer must also prove that the conditions set forth in R227(2)(a) and ( b) are\nsatisfied as follows:\nR227(2)( a)\nHearings officers should provide proof that family members were informed that they are the\nsubject of an admissibility hearing, have the right to make submissions as included in a copy of\nthe “Notice of Admissibility Hearing to Family Members” form (BSF 540) that was previously\nprovided to family members and have the right to be represented at their own expense at the\nadmissibility hearing.\nR227(2)( b)\nTo meet the condition in R227(2)(b), that the family members are subject to a decision of the\nImmigration Division that they are inadmissible under section 42 of the Act on grounds of the\ninadmissibility of the foreign national, it is sufficient to show that the family member meets the\n2022-03-03 42\ndefinition of “family member” in R1(3). If 227(2)(a) and (b) are met then family members will\nautomatically be covered by the removal order made against the principal applicant.\nR1(3) provides that a foreign national’s “family members” are:\n(a) the spouse or common-law partner of the person;\n(b)a dependent child of the person or of the person’s spouse or common-law partner; and\n(c)a dependent child of a dependent child referred to in paragraph (b)\nThe term “common-law partner” is defined in R1(1).\nAfter the hearings officer has presented the evidence, affected family members are given an\nopportunity to establish the reasons for why they should not be included in the removal order of\nthe person concerned.\nFamily members can only avoid being included in the removal order of the person concerned if", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.3 (Application for non-disclosure presented during an admissibility)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 4 (Same explanation as in footnote 1.) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-12-4", + "id": "enf-3-4-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 12.4", - "marginal_note": "Conduct of the admissibility hearing or detention review following", + "section": "ENF 3 s. 4", + "marginal_note": "Same explanation as in footnote 1.", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "12.4 Conduct of the admissibility hearing or detention review following\nan application for non-disclosure\nAfter a decision on the information in question is made, the ID will proceed with the admissibility hearing.\nNote: Detention reviews will proceed without the information under review or without the respo ndent, as\nthe case may be.\nAt the conclusion of the hearing into the application for disclosure of information, the member of the ID\nprepares a summary of the evidence including only information that, in the opinion of the member, if\ndisclosed, would not be injurious to the national security of Canada or to the safety of any person.\nThe summary of the disclosure proceedings is provided to the hearings officer and the person concerned\nor counsel, as the case may be.\nDuring the admissibility hearing, the hearings officers must not disclose information that is subject to the\nnon-disclosure order. However, hearings officers may disclose facts that are part of the summary that has\nbeen provided to the person concerned.", + "text": "they have proof that refutes the evidence submitted by the hearings officer and demonstrate that\nthey do not meet the definition of “family member” pursuant to R1(3).\nIf the ID comes to the conclusion that the foreign national is inadmissible, and that the conditions\nset forth in R227(2)(a) and (b) were met, then a removal order made by the ID against the person\nconcerned will automatically be effective against family members.\nSee ENF 2 for information on evidence regarding inadmissible family members.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 12.4 (Conduct of the admissibility hearing or detention review following)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 4 (Same explanation as in footnote 1.) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-1", + "id": "enf-3-11-1-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.1", - "marginal_note": "General", + "section": "ENF 3 s. 11.1", + "marginal_note": "Minister’s obligation to disclose any relevant information or document (ID Rule 3)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13.1 General\nA detention review is a proceeding that takes place before a member of the ID during which the\ncircumstances of detention are examined to determine\n whether the detention is lawful; and if it is\n whether detention be continued.\nAt these proceedings, the Minister of PSEP is represented by a hearings officer. A detention review\n is not as structured as an admissibility hearing;\n may be held on its own or in conjunction with an admissibility hearing;\n evidence may or may not be presented, usually only oral submissions are made;\n detained persons have the right to be represented by counsel.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 34\nGenerally, each party (the hearings officer and the person concerned) presents facts and arguments.\nParties are not required to prove the facts and arguments, unless information prov ided is challenged by\nthe other party. If the information is challenged, evidence to support the facts and arguments may be\nintroduced. Evidence may consist of documents or other material evidence, testimony of the person\nconcerned, or affidavits. Evidence presented at detention reviews is governed by the same evidentiary\nrules as are admissibility hearings.\nThe member of the ID should be aware of the alleged reasons for detention from the information\ncontained in the Request for Admissibility Hearing/Detention Review Pursuant to the Immigration Division\nRules form (BSF 524). The ID member may require that the hearings officer present the reasons for\ndetention and hearings officers should be prepared to do so.\nFollowing the hearings officer’s opening statement, the ID member provides an overview of the purpose\nof the detention review and the jurisdiction conferred upon the member by IRPA and its Regulations. The\nmember will ask the hearings officer to submit the facts, arguments, and a recommendation regard ing the\ncontinuation of the detention or the release of the person concerned, as the case may be.", + "text": "11.1 Minister’s obligation to disclose any relevant information or document (ID Rule 3)\nWhen requesting an admissibility hearing, hearings officers have an obligation to provide to the\nID and the person concerned any relevant information or document that is in the Minister’s\npossession, power or control. To comply with this disclosure obligation, the hearings officer is to\nseek out all relevant information in the immigration enforcement file. This includes making an\nenquiry into any files that may hold relevant information in systems to which the hearings officer\nhas access.\nIn addition to this general obligation, ID Rule 3 sets out a list of specific information that the\nBoard requires the Minister to provide.\n2022-03-03 43\nTo meet these obligations, hearings officers should disclose the following documents:\n “Request for Admissibility Hearing” form (BSF 524); and\n “Notice of Admissibility Hearing” form (BSF 525); and\n “Referral under subsection A44(2) of the IRPA for an admissibility hearing” form (BSF\n506);\n a copy of the A44(1) report that sets out the allegations;\n all documents and information the Minister intends to introduce as evidence at the\nhearing; and\n all other relevant document(s) or information whether or not it is being used to support\nthe Minister’s position.\nAll documents must comply with the requirements set out in the Immigration Division Rules 24\nand 25 with respect to language and format.\nRule 3 of the ID Rules specifies that the hearings officer should file all relevant evidence at the\ntime that the hearing is requested. However, if not all evidence was filed at the time the hearing\nwas requested, ID Rule 26 requires that all documents be provided to the person concerned and\nthe ID at least five business days before the hearing.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.1 (General)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 11.1 (Minister’s obligation to disclose any relevant information or document (ID Rule 3)) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-2", + "id": "enf-3-11-1-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.2", - "marginal_note": "Authority to detain a person under IRPA", + "section": "ENF 3 s. 11.1", + "marginal_note": "Minister’s obligation to disclose any relevant information or document (ID Rule 3)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13.2 Authority to detain a person under IRPA\nFor detailed information on the authority to detain a person under IRPA, refer to ENF 20 : Detention.", + "text": "Note: In the case of an admissibility hearing of a detained individual, the first time the person is\nbrought before the ID (for the 48-hour detention review) it is possible that the admissibility\nhearing will be postponed at the request of counsel. It is recommended that hearings officers\norganize the evidence into two separate disclosure packages (one for the detention review and\none for the admissibility hearing), as each proceeding will follow a different schedule and may\nnot require the same disclosure.\nNote: If the person concerned has retained counsel, the hearings officer will ensure that copies of\nthe relevant notices and documents are sent to counsel in accordance with Rule 28(3) of the ID\nRules.\nThe hearings officer should confirm that all information intended for the ID was sent to the\nregistry office, as indicated by a date stamp if delivered by hand. Should documents be sent by\nregular mail, they will be considered received seven days after the day it was mailed, refer to ID\nrules 27-31 for further information on how to provide a document. For the electronic\ntransmission of documents refer to your regional IRB registry office for information on how to\nsubmit documents electronically.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.2 (Authority to detain a person under IRPA)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 11.1 (Minister’s obligation to disclose any relevant information or document (ID Rule 3)) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-3", + "id": "enf-3-11-2-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.3", - "marginal_note": "Detention review – timeline for permanent residents and foreign", + "section": "ENF 3 s. 11.2", + "marginal_note": "Additional alleg ations/amendments of the report", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13.3 Detention review – timeline for permanent residents and foreign\nnationals\nThe frequency of detention reviews is prescribed in A57 as follows:\n A57(1) provides that the ID must review the reasons for continued detention within 48 hours\nafter the permanent resident or foreign national was detained.\n A57(2) provides that the ID must review the reasons for continued detention at least once during\nthe 7 days following the initial review;\n A57(2) also provides that the ID must review the reasons for continued detention at least once\nduring each 30-day period following each previous review.\nThe permanent resident or foreign national will be present at each detention review, either in person or by\nway of video or teleconference.", + "text": "11.2 Additional alleg ations/amendments of the report\nWhen receiving a case file for preparation, the hearings officer’s first duty is to determine if the\ncase meets the technical, legal and factual requirements for presenting it to a member of the ID.\nDepending on the type of case, the hearings officer should verify the A44(1) report for accuracy\n(correct date, authorizations and signatures) and ensure that the allegations of fact and law are\ncorrectly stated.\n2022-03-03 44\nAny errors or omissions in the report should be corrected. Minor errors or changes may be\naddressed by the hearings officer with a notification of an amendment, as long as appropriate\nprocedural fairness is extended to the person concerned. This may include the modification of\nthe remarks in the A44(1) report. In Uppal v. Canada , the Federal Court held that “an\namendment to the subsection 44(1) report, for the purpose of substituting a different Canadian\nequivalent offence, does not require that the report be returned to the Minister for a fresh\ndetermination”. In the case of substantive errors, the report should be returned to the MD who\nreviewed the report. If the original officer is no longer at the office where the decision was made\nor no longer performs the MD function, the request should be sent to a Manager for assignment\nand review. It may be necessary to make an application to the ID to request a postponement of\nthe admissibility hearing [ID Rules, Rule 43]. This is necessary only if the error or omission in\nthe A44(1) report or evidence cannot be rectified prior to the hearing date and would seriously\nimpact the presentation of the case by the hearings officer.\nThe hearings officer must make sure that each of the essential components of the inadmissibility", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.3 (Detention review – timeline for permanent residents and foreign)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 11.2 (Additional alleg ations/amendments of the report) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-4", + "id": "enf-3-11-2-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.4", - "marginal_note": "Detention review – timeline for designated foreign nationals (DFN)", + "section": "ENF 3 s. 11.2", + "marginal_note": "Additional alleg ations/amendments of the report", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13.4 Detention review – timeline for designated foreign nationals (DFN)\nPursuant to subsection A20.1(1), the Minister of PSEP has the authority to order the arrival in Canada of\na group of persons to be designated as an “irregular arrival”. A foreign national who is part of a group\nwhose arrival in Canada is designated by the Minister as an “irregular arrival” automatically becomes a\n“designated foreign national” (DFN) unless he or she holds the documents required for entry, and on\nexamination the officer is satisfied that the person is not inadmissible to Canada [A20.1(2)]. For additional\ninformation, hearings officers should refer to the Designated Irregular Arrivals Toolkit on Atlas.\nDFNs are subject to mandatory arrest and detention and a revised detention review timeline. Upon\ndesignation, the CBSA must arrest and detain all DFNs who were 16 years of age or older at the time of\nthe arrival, where the designated irregular arrival occurred on or after June 28, 2012.\nThe following modified detention timeline applies to all DFNs who are 16 years or older:\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 35\n A57.1(1) provides that the ID must review the reasons for continued detention within 14 days\nafter a DFN was detained.\nNote: Subsection A57.1(1) requires the ID to schedule the initial detention review within 14 days,\nmeaning the ID may schedule the detention review at anytime from the day the DFN was\ndetained to day 14 of detention.\n Pursuant to A57.1(2), subsequent detention reviews must take place after the expiry of 6\nmonths following the conclusion of the previous review.\nNote: This means that the ID may schedule the next detention review following the expiry of 6\nmonths after the previous review, but not prior to the expiry of 6 months.\nThe designated foreign national will be present at each detention review, either in person or by way of\nvideo - or teleconference.", + "text": "alleged in the report is supported by evidence, whether the evidence is documentary, or based on\ntestimony of the person concerned, or testimony from other witnesses.\nIf the evidence is insufficient, the hearings officer may\n complete the file by adding additional evidence, if available; or\n withdraw the application to hold the admissibility hearing.\n refer the file back to CBSA investigations (or POE depending on the origin of the file)\nwith a request to obtain additional evidence.\nIf time permits, the hearings officer should make sure that the person concerned and the ID have\nbeen notified of changes made to the A44(1) report prior to the hearing. If time does not permit\ngiving advance notice of the changes made to the A44(1) report, the hearings officer must make\na preliminary statement at the hearing regarding the changes. If this is the case, the member of\nthe ID may confirm that the person concerned understands the nature of the changes. If\nnecessary, the member may grant an adjournment, to give the person concerned time to prepare.\nNote: In cases of removal orders based on an equivalency between a foreign law and Canadian\nlaw, the A44(1) report should include separate allegations for each possible Canadian\nequivalency that applies.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.4 (Detention review – timeline for designated foreign nationals (DFN))", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 11.2 (Additional alleg ations/amendments of the report) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-5-p1", + "id": "enf-3-11-3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.5", - "marginal_note": "Mechanism of detention reviews and grounds for continued", + "section": "ENF 3 s. 11.3", + "marginal_note": "Including family members", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13.5 Mechanism of detention reviews and grounds for continued\ndetention\nDetention reviews are a two-step process:\n1. The member of the ID must release a person from detention, unless the member is satisfied that\none of the reasons described in A58 exists, taking into account the prescribed factors (R244 -247)\nas appropriate.\n2. If the member determines that one or more grounds for detention exists, the member considers\nthe factors in R248 to determine if detention should be continued.\nIn Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (paragraph 24), the Federal\nCourt of Appeal noted that detention reviews are not technically de novo hearings but that the ID must\ncome to a fresh conclusion whether detention should continue. The ID member must give clear and\ncompelling reasons to depart from prior decisions to detain.\nIt is the role of hearings officers to present evidence to support one or more of the reasons for detention.\nIn doing so, hearings officers should be guided by the factors set out in R245 to R247 depending on the\nreason for detention.\nFor additional information on reasons for detention, refer to ENF 20 Detention.\nNote: It is not required that continued detention be sought on the same ground(s) as the original reason\nfor arrest and detention. Hearings officers may argue for continued detention under section 58 on\ngrounds that may or may not have existed at the time of initial arrest and detention.\nIn Canada (Minister of Public Safety and Emergency Preparedness) v. Ismail, the FC assessed the\nrelationship between the grounds for arresting and detaining an individual under IRPA, and the grounds\nthat permit continued detention of that individual by the Immigration Division of the IRB.", + "text": "11.3 Including family members\nWhen preparing a case, the hearings officer may discover that family members, who are foreign\nnationals and not protected persons in Canada, did not enter Canada at the same time as the\nperson concerned but are nonetheless present in Canada. In such cases it may be decided that, in\naccordance with A42(1) and A42(2), these family members should be included in the removal\norder. If this is the case, an inland enforcement officer should prepare and serve a “Notice of\nAdmissibility Hearing to Family Members ” form (BSF 540) on the family members to which\nA42(1) and A42(2) apply.\n2022-03-03 45\nThis does not include family members who are permanent residents or protected persons.\nFor more information about family inadmissibility refer to section 10.11 above.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.5 (Mechanism of detention reviews and grounds for continued) (part 1 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 11.3 (Including family members)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-5-p2", + "id": "enf-3-11-4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.5", - "marginal_note": "Mechanism of detention reviews and grounds for continued", + "section": "ENF 3 s. 11.4", + "marginal_note": "Attending a pre -hearing conference", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "The court determined that “[T]o interpret paragraph 58(1)(c) of IRPA so as to permit the detention of an\nindividual in order to allow the Minister to take necessary steps to inquire into a reasonable suspicion that\nthe individual is inadmissible on grounds of security, when that suspicion only arises after the person has\nentered Canada, accords with the priority that the legislation ascribes to security.” The following question\nwas certified:\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 36\n“Is paragraph 58(1)(c) of the Immigration and Refugee Protection Act only available as a ground for\ncontinued detention, where it follows a detention under subsection 55(3) of the IRPA?” (paragraph 68)\nIt is the hearing officer’s role to make recommendations, in favour of or against continued detention to the\nmember of the ID keeping in mind that the member will verify, consider and weigh each of the factors se t\nout in the Regulations.\nIf, for example, the hearings officer seeks detention because the person concerned is alleged to be a\ndanger to the public, the hearings officer will have to provide evidence to demonstrate that the facts of the\ncase fall within the factors listed in R246.\nThe list of factors set out in each of R245, R246, and R247 is not exhaustive and other factors may be\nconsidered by the member of the ID when rendering a decision. Thus the credibility of the person\nconcerned and statements of the person concerned that they will or will not comply with the laws\ngoverning immigration and refugee protection or any directive issued by the CBSA may be considered in\nthe assessment of the grounds for detention.\nNote: In the case of DFNs who were 16 years or older on the day of their arrival that is subject of the", + "text": "11.4 Attending a pre -hearing conference\nThe ID may require the parties to participate in a pre-hearing conference to discuss issues,\nreview disclosure of information and the procedures to be followed in the case at hand. [ID\nRules, Rule 20(1)].\nRule 20(3) of the ID Rules provides that the ID must state orally at the hearing or make a written\nrecord of any decisions or agreements made at the conference. It is important that all decisions or\nagreements made at the conference are clearly outlined in the hearings officer’s notes, as the\nparties at the hearing will be bound by them.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.5 (Mechanism of detention reviews and grounds for continued) (part 2 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 11.4 (Attending a pre -hearing conference)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-5-p3", + "id": "enf-3-11-5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.5", - "marginal_note": "Mechanism of detention reviews and grounds for continued", + "section": "ENF 3 s. 11.5", + "marginal_note": "Withdrawal of a request for an admissibility hearing", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "designation in question, the member of the ID must consider only the prescribed factors related to the\nrelevant reason for detention and may not consider any other factors at the 14 day detention review\n[A58(1.1)].", + "text": "11.5 Withdrawal of a request for an admissibility hearing\nID Rules, Rule 5 sets out when the Minister may withdraw a request for admissibility hearing.\nThe timing of the withdrawal is important: if no substantive evidence has been accepted, the\nhearings officer need only notify the ID of the withdrawal. This can be done orally at a\nproceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of\nthe notice to the other party [Rule 5(2) of the Immigration Division Rules]. However, once\nevidence has been accepted, a written application must be made to the ID. The ID will not grant\nthe withdrawal if doing so would be an abuse of process. ID Rule 5(1) states that an abuse of\nprocess is where the withdrawal would likely have a negative effect on the integrity of the ID.\nPrior to initiating a withdrawal, the hearings officer should discuss the case with their manager.\nIf the case involves an alleged inadmissibility under A34, hearings officers should be mindful\nthat the withdrawal of the report will automatically terminate, by operation of law, the prescribed\nconditions of release imposed on the person concerned as per R250.1(a)-(k).", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.5 (Mechanism of detention reviews and grounds for continued) (part 3 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 11.5 (Withdrawal of a request for an admissibility hearing)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-1", + "id": "enf-3-12-1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 1", - "marginal_note": "Flight Risk (R245)", + "section": "ENF 3 s. 12.1", + "marginal_note": "Admissibility hearing opening format", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1. Flight Risk (R245)\nFor the purposes of paragraph 244(a), the factors to be considered in determining if a person is unlikely\nto appear for examination, an admissibility hearing, removal from Canada or at a proceeding that could\nlead to the making of a removal order by the Minister under subsection 44(2) of the Act are prescribed in\nsection R245.\nIn addition to the factors set out in R245, hearings officers may consider the following when preparing a\nsubmission to indicate that the person concerned is not likely to appear:\n use of pseudonym(s)/alias(es) to avoid detection or to evade compliance with IRPA and its\nRegulations;\n frequent changes of address in Canada;\n previously eluded examination or did not appear as requested;\n has not satisfied previous conditions attached or the conditions to a bond imposed by a criminal\ncourt, the CBSA or the IRB;\n attempted to escape or to hide; and\n a warrant was issued against the person concerned.\nIn cases where hearings officers perceive a risk that the person concerned will not appear unless\nconditions are imposed, hearings officers should consider a guarantee or a cash deposit with conditions\nof release [A44(3)].\nNote: In the case of DFNs who were 16 years or older on the day of their arrival that is subject of the\ndesignation in question, at the 14 day detention review the member of the ID must consider only the\nprescribed factors related to R245 for detention and may not consider any other factors.\nThe member of the ID will consider and weigh all available evidence when deciding if continued detention\nis warranted.", + "text": "12.1 Admissibility hearing opening format\nAlthough the precise structure of admissibility hearings may vary from one member of the ID to\nanother, the hearings officer can expect that the following will be the general format at the\nopening of the hearing:\n The member of the ID makes an opening statement, indicating the legal basis for the\nhearing, the place of the hearing, the date of the hearing and the jurisdiction. The member\nwill then ask the parties and their counsel to identify themselves. The member of the ID\nwill also note the presence of any observers present. The member will exclude members\nof the public, if the admissibility hearing concerns a refugee protection claimant or if the\nhearing is determined to be held “in camera.”\n2022-03-03 46\n Next, the member of the ID confirms that the person concerned understands and\ncommunicates in the official language in which the admissibility hearing is being held. If\nan interpreter is necessary, the member ensures that there is effective communication\nbetween the interpreter and the person concerned.\n If the person concerned is not represented by counsel, the member of the ID will confirm\nthat the person concerned was made aware of his or her right to counsel. If the PC does\nnot have counsel, the ID may decide to adjourn and set another date to allow the PC to\nobtain counsel, depending on the circumstances\n In the case of an admissibility hearing with respect to a foreign national, the member of\nthe ID may ask if family members will be affected by a removal order in accordance with\nR227(2). If family members are affected, the hearings officer should ensure that they\nwere named in the BSF524 and submit the “Notice of Admissibility Hearing to Family\nMembers” form (BSF 540) that was prepared by the IEO and provided to the family\nmembers prior to the hearing.\n The member of the ID will explain to the person concerned the reason for the hearing, the\nallegations, possible consequences and procedures that will be followed during the\nhearing.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 1 (Flight Risk (R245))", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.1 (Admissibility hearing opening format)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2-p1", + "id": "enf-3-12-2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "Danger to the public (R246)", + "section": "ENF 3 s. 12.2", + "marginal_note": "Exclusion of witnesses", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2. Danger to the public (R246)\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 37\nFor the purposes of paragraph 244(b), the factors to be considered in determining if a person is a danger\nto the public are prescribed in section R246.\nSome factors may require additional arguments to demonstrate that a specific fact disclosed before the ID\nshould be considered as a factor in favour of detention. For example, the details of a foreign conviction for\na sexual offence [R246(f)(i)] should be examined carefully to determine the equivalent in Canadian law.\nThe hearings officer should disclose all available details to satisfy the member of the ID that the offence is\ndescribed in R246(f)(i).\nThe circumstances surrounding the commission of an offence may assist the member of the ID in\ndetermining the weight of a factor compared to another. For instance, the fact that the victim of the\noffence is a minor child may be considered as more serious than if the victim is an older person. An\noffence committed with the use of a prohibited weapon may also be considered to have more weight than\nan offence committed with another weapon, depending on the specific circumstances of each case.\nNote: Each factor is in itself sufficient to find that a person is a danger to the public. [Bruzzese v Canada\n(Minister of Public Safety and Emergency Preparedness) (paragraphs 47 and 87)].\nHearings officers should submit the following documents, if applicable and available, to the ID to support\nan argument that an individual remains a danger to the public:\n the criminal record of the person concerned, and documents establishing a criminal conviction in\nor outside Canada;\n the indictment;\n evidence of the medical condition of the person concerned;", + "text": "12.2 Exclusion of witnesses\nThe member asks counsel and the hearings officer if there are any witnesses who will testify at\nthe hearing present in the room. If so, the member will ask the witnesses to leave the room. Such\na request applies to all the witnesses present in the room, except for the person concerned and the\nexpert witnesses. The person concerned has the right to attend the admissibility hearing that\nconcerns them. Hearings officers may wish for expert witnesses to hear all evidence presented\nsince their testimony must be based on the evidence that has been presented during the hearing.\nThe member may also remind everyone that witnesses must refrain from discussing the contents\nof their testimony outside the hearing room until all testimony is concluded. [Immigration\nDivision Rules, Rule 36].", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (Danger to the public (R246)) (part 1 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.2 (Exclusion of witnesses)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2-p2", + "id": "enf-3-12-3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "Danger to the public (R246)", + "section": "ENF 3 s. 12.3", + "marginal_note": "Evidence", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": " police reports documenting association of the person concerned with known criminals or a\ncriminal organization;\n classified reports relating to security or criminal activity of the person concerned, and a record of\nphysical violence, if applicable; and\n correctional services report on the person’s behaviour in detention.\nIn addition, hearings officers may consider the age of a conviction and the circumstance under which an\noffence was committed. The fact that the person concerned was convicted and has served the applicable\nsentence is not in itself an indication that the person concerned is a danger to the public. A strong\nindication that the person concerned is a danger to the public may consist of evidence that the offence\ninvolved violence or weapons and that the person concerned is likel y to re-offend.\nIn some instances danger to the public may dissipate because of the length of time a person has spent in\ndetention or because the evidence in support of a detention order is no longer valid. [Canada (Minister of\nCitizenship and Immigration) v. Sittampalam (paragraph 25)], Therefore, hearings officers must establish\nthat the danger is current.\nThe member of the ID will consider and weigh all available evidence when deciding if detention should be\ncontinued.\nNote: See ENF 28, Ministerial Opinions on Danger to the Public and to the Security of Canada, for\nadditional information on assessing danger to the public.\nNote: In the case of DFNs who were 16 years or older on the day of their arrival that is subject of the\ndesignation in question, at the 14 day detention review the member of the ID must consider only the\nprescribed factors related to R246 for detention and may not consider any other factors.", + "text": "12.3 Evidence\nBefore the hearing, the hearings officer should ensure that the Minister’s evidence found in the\nMinister’s disclosure, or otherwise expected to be provided by any witnesses, will substantiate\nthe allegations contained in the A44(1) report. The Minister must always include the A44(1)\nreport and A44(2) referral in the Minister’s disclosure. The hearings officer should bring the\noriginal of the A44(1) report and the A44(2) referral to the hearing as the member of the ID may\nask to see the originals.\nAt the hearing, the member of the ID accepts admissible documents provided by both parties and\nenters them as exhibits to the hearing. The hearings officer must ensure that all of the Minister’s\ndisclosure is entered as an exhibit(s), however, the ID has the jurisdiction to decide whether to\nenter the evidence as an exhibit.\n2022-03-03 47\nIf applicable, the hearings officer calls the person concerned as a witness and may call other\nwitnesses as required to support the allegations outlined in the A44(1) report. The hearings\nofficer can examine or question these witnesses on the allegation and on any of the evidence\nfound in the exhibits.\nThe person concerned (or counsel representing the person concerned) will be given the\nopportunity to present evidence to refute the allegations contained in the A44(1) report and to\ncross-examine all witnesses.\nThe hearings officer is given the opportunity to cross-examine on the evidence presented by the\nperson concerned (or by counsel representing the person concerned).\nIf evidence that has not been previously provided to all parties arises during cross-examination,\nthe opposing party will be given an opportunity to examine this evidence and respond\naccordingly which may include calling additional witnesses to refute this new evidence. It may\nbe appropriate to request an adjournment to review the evidence in order to provide a proper\nresponse.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (Danger to the public (R246)) (part 2 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.3 (Evidence)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-3", + "id": "enf-3-12-4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 3", - "marginal_note": "Identity (R247)", + "section": "ENF 3 s. 12.4", + "marginal_note": "Evidence on the identity, citizenship and status of the person concerned", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3. Identity (R247)\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 38\nFor the purposes of paragraph 244(c), the factors to be considered in determining whether a person is a\nforeign national whose identity has not been established are prescribed in section R247.\nIn cases where the identity of the person concerned has not been established, the hearings officer must\nshow that every effort to establish the identity of the person concerned was made.\nIf applicable, the hearings officer must demonstrate how the person concerned ha s not reasonably\ncooperated for the purpose of establishing his or her identity [A58(1)(d); ID Rules, Rule 247].\nNote: In Canada (Minister of Citizenship and Immigration) v. Bains (paragraph 4), the Federal Court\nclarified that it is not up to the member of the ID to determine what is acceptable as proof of identity, but\nmerely whether the Minister made reasonable efforts to identify the person concerned. [see also Canada\n(Citizenship and Immigration) v. B046]In the case of DFNs who were 16 years or older on the day of their\narrival that is subject of the designation in question, at the 14 day detention review the member of the ID\nmust consider only the prescribed factors related to R247 for detention and may not consider any other\nfactors.\n The factors set out in R245, R246 and R247 are not exhaustive. Additional factors may be\nconsidered by the member of the ID when assessing the evidence.\n In Bruzzese v. Canada (Minister of Public Safety and Emergency Preparedness), the FC\nconfirmed that additional factors may be considered with respect to factors set out in R245 and\nR246].\nThe member of the ID will consider and weigh all available evidence when deciding if detention should be\ncontinued (R248).\n Hearings officers should ensure that the case file contains a signed and dated “Minister’s Opinion\nRegarding the Foreign National’s Identity” (BSF 510) form.\nNote: In the case of DFNs who were 16 years or older on the day of their arrival that is subject of the\ndesignation in question, in reviewing detention on identity, the member of the ID must consider only if the\nMinister is of the opinion that the identity of the foreign national has not been established. The ID is not\npermitted to consider the foreign national’s level of cooperation or other prescribed factors [ A58(e)].", + "text": "12.4 Evidence on the identity, citizenship and status of the person concerned\nAfter the person concerned has been sworn in as a witness, the person’s identity, citizenship and\nstatus in Canada must be clearly established. The hearings officer may develop the evidence by\nasking questions such as:\n What is your correct name in full? (to establish identity)\n Have you ever used any other name? (to establish identity)\n What is your date of birth? (to establish identity)\n Where were you born? (to establish identity and possibly citizenship)\n Of what country are you a citizen? (to establish citizenship)\n Are you a Canadian citizen? (to clarify that this person is not a Canadian and therefore\nsubject to the IRPA inadmissibility provisions)\n Are you a person registered as an Indian under the Indian Act? (to clarify that the person\nis subject to the IRPA inadmissibility provisions)\n Are you a permanent resident of Canada? (to determine burden of proof and applicability\nof certain provisions)\n Do you have a passport?\n Do you have other identity documents?", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3 (Identity (R247))", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.4 (Evidence on the identity, citizenship and status of the person concerned)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-6-p1", + "id": "enf-3-12-5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.6", - "marginal_note": "Factors to be considered when determining if detention should be", + "section": "ENF 3 s. 12.5", + "marginal_note": "Submissions on the allegations", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13.6 Factors to be considered when determining if detention should be\ncontinued (R248)\nIn addition to the factors referred to above, members of the ID must take into consideration the factors set\nout in R248, also known as the ‘Sahin factors’ when determining if detention should be continued.\nIn Sahin v. Canada (Minister of Citizenship and Immigration), the Federal Court determined that in certain\ncases indefinite detention violates Section 7 of the Charter. Bektas Sahin, the person concerned had\nbeen detained for more than 14 months at the time the Federal Court rendered its decision. The Court\nprovided a list of considerations that should be taken into account by members of the ID when making\ndecisions on whether an individual should remain in detention. These considerations have been codified\nin R248.\nAlso refer to Charkaoui v. Canada (Citizenship and Immigration), which endorsed Sahin.\nIf the hearings officer recommends continued detention, the hearings officer should submit all available\nevidence to the ID in support of continued detention.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 39\nNote: With the exception of 14 day detention reviews for DFNs, members are not limited to the\nconsiderations set out in the IRPR when deciding if continued detention of the person concerned is\nwarranted.\nThe factors set out in R248 are as follows:\n Reasons for detention R248(a)\nFor example, there may be a stronger case for continued detention on the grounds that the\nperson concerned is a danger to the public, if the hearings officer has actual evidence that the\nperson concerned has committed an offence, rather than if the hearings officer presents solely\nhearsay evidence.", + "text": "12.5 Submissions on the allegations\nAfter the hearings officer and the person concerned have introduced all the evidence, the\nmember of the ID gives both parties an opportunity to make submissions on the allegations. The\npresentation of submissions on the evidence should be clear, concise and delivered in logical\norder. The submission stage is not the time to introduce new facts. Hearings officers should also\nensure that any statements and conclusions made in their submission are supported by evidence\n2022-03-03 48\nentered into the record. For example, in the case of a person seeking admission to Canada, the\nhearings officer may indicate in his/her submissions that the person concerned:\n has no right to enter Canada since the person is neither a Canadian citizen nor a\npermanent resident of Canada; and\n has not discharged the burden of proof and has therefore failed to establish admissibility.\nIn the case of a foreign national who is in Canada, the hearings officer should point out that the\nperson concerned has no right to remain in Canada given that they are neither a Canadian citizen\nnor a permanent resident of Canada. The hearings officer may present a summary of the evidence\nthat would lead a reasonable and cautious person to conclude that there is a factual basis to the\nallegation(s) contained in the A44(1) report.\nIt is not sufficient to merely include the evidence in the disclosure package. It the responsibility\nof the hearings to highlight the specific page and passage in which the evidence can be found. In\nPiber v. MCI 2001 FCT 769, the Federal Court has held that it is not incumbent on the Board to\ncomb through a party’s extensive disclosure package; the onus falls on the Minister to highlight\nthe relevant references to show how each of the elements of the allegation is proved by the\nevidence.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.6 (Factors to be considered when determining if detention should be) (part 1 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.5 (Submissions on the allegations)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-6-p2", + "id": "enf-3-12-6", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.6", - "marginal_note": "Factors to be considered when determining if detention should be", + "section": "ENF 3 s. 12.6", + "marginal_note": "The admissibility decision", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": " Length of time in detention R248(b) and length of time detention will likely continue\nR248(c)\nIn Sahin v. Canada (Minister of Citizenship and Immigration), the Federal Court determined that,\nin certain cases, indefinite detention violated Section 7 of the Charter.\nOne of the significant tests set out by the Federal Court related to the period of time that had\npassed before a decision was rendered as to whether the person in question was authorized to\nremain in Canada.\nIn Canada (Minister of Citizenship and Immigration) v. Li (para. 81),the FCA stated that “the basis\nof the estimation of anticipated future length of detention should be the pro ceedings as they exist\nat the time of each monthly review and not on an anticipation of available processes but not yet\nunderway.”\nThe risk a person poses to the public does not decrease or disappear with a prolonged stay in\ndetention. Hearings officers may present evidence to show that although the person concerned\nhas served a sentence for a violent crime they could still be considered a danger to the public.\n Any unexplained delays or unexplained lack of diligence by the person concerned or by\nthe CBSA R248(d)\nIf the person concerned or the Minister of PSEP has caused any unexplained delays or if either of\nthem has not been as diligent as is reasonably possible, it should weigh against the offending\nparty.\nFor example, in a subsequent court decision, Kidane v. Canada (Minister of Citizenship and\nImmigration) (paragraphs 8 and 9), the Federal Court upheld the member’s decision to detain the\nperson concerned, ruling that the member had adequately applied the four -part test set out in\nSahin, and that prolonged detention of the person concerned did not violate his rights as he was", + "text": "12.6 The admissibility decision\nFollowing submissions, the member of the ID renders a decision as to whether or not the person\nconcerned is inadmissible to Canada. The decision determines if the Minister has met the\nstandard of proof with the evidence introduced into the record, and whether the allegations\ncontained in the report are well founded. The member shall then render one of the decisions\nlisted in A45 as follows:\n If the ID finds that the person concerned is in fact a Canadian citizen, a permanent\nresident, or a registered Indian under the Indian Act, the ID will recognize the person’s\nright to enter Canada [A45(a)].\n If the ID finds that the person concerned is not inadmissible, and is satisfied that the\nperson meets the requirements of the Act, the ID will grant the person concerned\ntemporary or permanent resident status [A45(b)], as the case may be.\n If the ID finds that the person concerned is not inadmissible, but that the evidence does\nnot show that the person concerned meets all of the requirements of the Act, then the ID\nshall authorize the person concerned to enter Canada for further examination, with or\nwithout conditions [A45(c)].\n If the ID finds that the allegation is well founded, the ID shall make the applicable\nremoval order [A45(d)].\nThe ID must give the reasons for its decision orally or in writing. The ID will provide the written\nreasons upon request from one of the parties, which must be received by the Division within 10\ndays from the notification of the decision [ID Rules, Rule 7(4)].\n2022-03-03 49", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.6 (Factors to be considered when determining if detention should be) (part 2 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.6 (The admissibility decision)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-6-p3", + "id": "enf-3-12-7", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.6", - "marginal_note": "Factors to be considered when determining if detention should be", + "section": "ENF 3 s. 12.7", + "marginal_note": "Issuing the removal order", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "largely himself responsible for the procedural delays that caused the continuation of his detention.\nIn Canada (Minister of Citizenship and Immigration) v. Kamail (paragraphs 34 and 37), the\nFederal Court applied the four-part test set out in Sahin and concluded that the test “clearly\nfavours keeping the respondent in detention”. The member committed an error in law when he\ndecided the case in the respondent’s favour on the basis that detention was indefinite when he\nrecognized that the respondent’s lack of cooperation must count against the respondent and not\nthe Minister.\n The existence of alternatives to detention R248(e)\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 40\nWhen assessing continued detention of a person concerned, members of the ID consider the\navailability, effectiveness and appropriateness of alternatives to detention, including but not\nlimited to outright release, a bond or guarantee, periodic reporting, confinement to a particular\nlocation or geographic area, the requirement to report changes to contact information or a form of\ndetention that is less restrictive to the individual, etc.\nIn Sahin v. Canada (Minister of Citizenship and Immigration), the Federal Court noted that the\ntest that deserves significant weight is the length of time anticipated until a final decision, one way\nor the other, on whether the person concerned may remain in Canada, or must leave Canada, is\nrendered.\nNote: If the hearings officer recommends continued detention, the hearings officer shoul d submit\nall available evidence to the ID in support of continued detention. With the exception of 14 -day\ndetention reviews for DFNs, members are not limited to the considerations set out in the IRPR", + "text": "12.7 Issuing the removal order\nWhere, at the conclusion of an admissibility hearing, the member of the ID is of the opinion that\nthe person concerned is inadmissible on one or more grounds, the member shall make the\napplicable removal order [A45(d)].\nR229(1) lists the type of removal order to be made by the ID according to applicable\ninadmissibility.\nR229(2) lists grounds of inadmissibility for which the ID must make a departure order when the\nperson concerned is a claimant for refugee protection [R229(1)(f), (g), (j),(m) and (n)].\nTo ensure that the correct removal order is issued, the hearings officer should state whether the\neligibility of the refugee claim has been determined, and if the claim has been determined to be\nineligible, produce copies of all relevant forms.\nWhen an application for refugee protection is presented before or during the admissibility\nhearing, the hearings officer must proceed as if the eligibility determination has already been\nmade.\nR229(3) lists circumstances in which the ID shall make a deportation order against a person\ninstead of the prescribed removal order pursuant to R229(1). The circumstances listed in R229(3)\nare the following:\n1. the person was previously subject to a removal order and the person is\ninadmissible on the same grounds as in that order (R229(3)(a));\n2. the person has failed to comply with any condition or obligation imposed under\nthe Act or the Immigration Act, R.S.C. 1985, c. I-2, unless the failure is the basis\nfor the removal order (R229(3)(b)); or\n3. the person has been convicted in Canada of an offence under an Act of Parliament\npunishable by way of indictment or of two offences under any Act of Parliament\nnot arising out of a single occurrence, unless the conviction or convictions are the\ngrounds for the removal order (R229(3)(c)).\nHearings officers should have provided in the Minister’s disclosure all relevant evidence to\nsupport the application of R229(3).\nNote: For more information on specified removal orders, see ENF 10, Removals.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.6 (Factors to be considered when determining if detention should be) (part 3 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.7 (Issuing the removal order)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-6-p4", + "id": "enf-3-12-8", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.6", - "marginal_note": "Factors to be considered when determining if detention should be", + "section": "ENF 3 s. 12.8", + "marginal_note": "Cases involving refugee protection claimants", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "when deciding if continued detention of a person concerned is warranted.", + "text": "12.8 Cases involving refugee protection claimants\nIf the person concerned claims refugee protection during an admissibility hearing, the case must\nbe referred to a Minister's delegate for determination of eligibility.\nThe person concerned will be issued a Determination of Eligibility form (IMM 1442B), which\nwill provide reasons, if the claim is ineligible.\n2022-03-03 50\nWhere an application for refugee protection is presented before or during the proceedings, the\nhearings officer must proceed as if the person is eligible to make a claim for refugee protection.\nThis means that the admissibility hearing must be held in private from the moment the\napplication for refugee protection is made unless the ID decides the hold the hearing in public on\nan exceptional basis as per A166(d).,. If it is later determined that the claim for refugee\nprotection was not eligible, the continuation of an adjourned admissibility hearing and\nsubsequent hearings shall be held in public.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.6 (Factors to be considered when determining if detention should be) (part 4 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.8 (Cases involving refugee protection claimants)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-7-p1", + "id": "enf-3-12-9-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.7", - "marginal_note": "Making a recommendation on continued detention", + "section": "ENF 3 s. 12.9", + "marginal_note": "Claim to Canadian citizenship", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13.7 Making a recommendation on continued detention\nHearings officers make recommendations for continued detention based on the facts of each particular\ncase. If recommending to continue detention, hearings officers must be prepared to pr ovide evidence to\nsupport the argument that the person should remain in detention.\nScenarios\nSituation – taking into consideration the\nfactors set out in R248 (except for detention\nreviews involving DFNs):\nHearings officers should consider the following:\nThe hearings officer is of the opinion that\ndetention should continue.\nTo continue detention\nThe hearings officer comes to the conclusion\nthat the person concerned should be released\nwith a bond/guarantee and/or conditions as an\nalternative to detention\nThe hearings officer should consider if a deposit or\nguarantee or a combination would be appropriate in the\ncircumstance and make the recommendation\naccordingly.\nThe hearings officer should consider the financial\nsituation of the person concerned and/or prospective\nguarantor(s), when setting the amount for the bond.\nThe hearings officer may provide submissions on the\nnature and the size of the bond and/or conditions that\nshould be imposed.\nThe hearings officer concludes that there is no\nneed and/or justification to continue detention.\nThe hearings officer should indicate that the Minister\nhas no objection to the release of the person\nconcerned, or alternatively recommend release with a\ndeposit/guarantee and/or conditions.\nNote: If the hearings officer does not agree with the decision of the ID at a detention review, the hearings\nofficer may seek advice from the Regional Justice Liaison Officer (JLO). The JLO will in turn consult with\nthe Department of Justice and CBSA Litigation Management on whether to move forward with a stay of", + "text": "12.9 Claim to Canadian citizenship\nAn admissibility hearing is not generally adjourned simply because the person concerned claims\nto be a Canadian citizen. Since Canadian citizenship is purely a creation of federal statute (refer\nto section 3 of the Citizenship Act which exhaustively defines who is a Canadian citizen and who\ncan become one), it is the law which gives the person status and not a document. In general,\nthere are three basic pathways to citizenship: birth in Canada (unless born to a diplomat); birth\nabroad in the 1st generation to a Canadian parent (gestational or biological link or legal\nparentage); and by grant of citizenship. While most citizens do not carry a citizenship certificate\nto prove they are Canadian, they will have a Canadian passport or provincial or territorial birth\ncertificate as proof of Canadian citizenship. For other Canadians, a citizenship certificate issued\nby IRCC will constitute proof of status. It is the responsibility of the member of the ID to\ndetermine if the evidence produced by the person concerned is sufficient to support the claim\nthat they are Canadian citizen.\nThe hearings officer may challenge the claim to citizenship during the hearing, if the hearings\nofficer is in possession of evidence to support the challenge. The hearings officer may ask the\nmember of the ID to render a decision and continue the admissibility hearing according to\nestablished procedure. The hearings officer may request an adjournment in order to obtain the\nevidence required to refute the claim to Canadian citizenship, if the necessary evidence is not\nreadily available. In this respect, the hearings officer may wish to consult with the Registrar of\nCanadian Citizenship, or another citizenship official in IRCC to assist in this citizenship status", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.7 (Making a recommendation on continued detention) (part 1 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.9 (Claim to Canadian citizenship) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-7-p2", + "id": "enf-3-12-9-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.7", - "marginal_note": "Making a recommendation on continued detention", + "section": "ENF 3 s. 12.9", + "marginal_note": "Claim to Canadian citizenship", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "release and an application for leave to seek judicial review. Please refer to ENF 9 for further information\non judicial review.\nWhen recommending release with conditions, the hearings officer should be satisfied that the guarantor is\nin a position to exercise control over the movements of the person released, and that the person\nconcerned will report for immigration proceedings as required.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 41\nThe hearings officer should also assess the reliability of the guarantor. For example, a proposed\nguarantor who has defaulted on a previous bond and remains in default, is no longer eligible to be a\nguarantor.\nNote: For additional information on deposits and guarantees, please refer to ENF 8, Deposits and\nGuarantees.", + "text": "determination pursuant to the information sharing arrangement between IRCC-CBSA, since this\nmay help to refute the person’s claim, or alternatively, may result in finding support for it.\nIf the admissibility hearing is adjourned pending proof of an application for a Canadian\nCitizenship Certificate, the applicant should be given a reasonable amount of time, the person\nconcerned must provide proof that he or she has made an application for a citizenship certificate.\nIf an application for a citizenship certificate has not been filed within the specified period, or if\nthe hearings officer is informed by the Registrar of Canadian Citizenship (RCC) that a\ncitizenship certificate will not be issued, the hearings officer will request the ID to resume the\nadmissibility hearing.\nIf the RCC confirms that the person concerned is indeed a Canadian citizen or issues a certificate\nof citizenship, the hearings officer will forward the documents to the ID and the admissibility\nhearing will be concluded immediately.\n2022-03-03 51", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.7 (Making a recommendation on continued detention) (part 2 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.9 (Claim to Canadian citizenship) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13-8", + "id": "enf-3-12-10", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13.8", - "marginal_note": "Detention after an admissibility hearing has been concluded", + "section": "ENF 3 s. 12.10", + "marginal_note": "Cases involving detainees", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13.8 Detention after an admissibility hearing has been concluded\nIn cases where at an admissibility hearing the member of the ID makes a removal order against a person\nconcerned, the hearings officer should - when detention or continued detention is justified - ask the\nmember of the ID to order the detention of the person concerned [A58].", + "text": "12.10 Cases involving detainees\nAdmissibility hearings concerning persons who are detained may coincide with the date\nscheduled for a detention review. Although the admissibility hearing may be adjourned, the\ndetention review must take place within the time frames prescribed by section A57.\nIf the admissibility hearing takes place, the member of the ID may proceed first with the\nadmissibility hearing. Since the admissibility hearing and the detention review are two separate\nproceedings, the member may ask for separate disclosure packages for each proceeding.\nFor more information, see section 14, Detention reviews.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13.8 (Detention after an admissibility hearing has been concluded)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12.10 (Cases involving detainees)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14-1", + "id": "enf-3-13", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14.1", - "marginal_note": "General guidelines", + "section": "ENF 3 s. 13", + "marginal_note": "Carrying out a decision of the", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.1 General guidelines\nAt any time during an admissibility hearing or a detention review, the person concerned and/or the\nhearings officer may present any application (e.g., request to adjourn, application for p ostponement,\napplication to change venue) All applications must be made pursuant to the format prescribed by the ID\nRules, beginning with Rule 38.", + "text": "13. Carrying out a decision of the\nImmigration Division\nMost often, member of the ID will give their decision and reasons at the conclusion of the\nhearing. However, in more complex cases, for instance where a substantial volume of evidence\nhas been entered, the member may reserve their decision and provide their decision in writing. If\nthe hearings officer proceeded by way of written submissions, the member’s decision is usually\nmade in writing, although the member could call another hearing date to render a decision orally.\nIn all cases, the hearings officer or other staff in the hearings office must ensure that the\nMinister’s copy of the removal order is placed on file, that the case details are updated in NCMS\nand GCMS and that the case file is given to the appropriate unit for action (removals unit for\nremoval, for the storage room where the case is closed with no further enforcement actions\nrequired).\nWhere time permits, results of the admissibility hearing should be provided to the officers who\nprepared and reviewed the original report, or who arrested and detained the permanent resident\nor the foreign national under the provisions of IRPA. Also where time permits, for training\npurposes, hearings officers should provide feedback on the effectiveness of the work conducted\nby those involved in the specific case.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14.1 (General guidelines)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13 (Carrying out a decision of the)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14-2", + "id": "enf-3-13-1-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14.2", - "marginal_note": "Application for postponement", + "section": "ENF 3 s. 13.1", + "marginal_note": "Recourse in case of ‘favorable decision’ by the Member (finding the person not to", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.2 Application for postponement\nIf the hearings officer receives a request for postponement of an admissibi lity hearing from the person\nconcerned or from counsel, the hearings officer must advise the person concerned or counsel that the\nrequest must be made to the ID [Immigration Division Rules, Rule 43(1)]. The Minister of PSEP does not\naccept applications on behalf of the ID.", + "text": "13.1 Recourse in case of ‘favorable decision’ by the Member (finding the person not to\nbe inadmissible)\nPerson found ‘not described’ under section Delegated authority to file a Minister’s appeal at the IAD\nA34, A35, A37 CBSA Litigation management Unit\nA36, A38, A39, A40, A40.1, A41 and A42 IRCC Litigation management Division\n2022-03-03 52\n13.1.1 Minister’s appeal at the IAD\nWhere hearings officers are of the opinion that there are, or may be, grounds to appeal a decision\nby the member finding the person not described under A34, A35 or A37, they will consult with\ntheir manager, who will then contact the Litigation Management Unit (LMU) (litigation-\nmanagement@cbsa-asfc.gc.ca) for guidance. The decision to appeal an ID decision to the IAD\nis made by persons with delegated authority from the Minister.\nIn the case of hearings where the Member found the person not described under A36, A38, A39,\nA40, A40.1, A41 or A42, the delegated authority from the Minister of Citizenship and\nImmigration rests with IRCC’s Litigation Management Division (LMD). After concurrence from\ntheir manager, the Justice Liaison Officer (JLO) will reach out to LMD\n(IRCC.CMBLitigationMgmtRequest-DemandeGestLitigesDGRC.IRCC@cic.gc.ca) for\nguidance.\nSee ENF19, sec. 13, for more information on the procedure for Minister’s appeals\n13.1.2 Application for leave for judicial review\nWhere hearings officers are of the opinion that there are, or may be, grounds to seek judicial\nreview, hearings officers will consult with their manager. If the manager concurs, the hearings\nofficer will, within five business days, send a report which summarizes the case, details the error\nof fact, law or mixed law and fact and the rationale for seeking judicial review to the regional", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14.2 (Application for postponement)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13.1 (Recourse in case of ‘favorable decision’ by the Member (finding the person not to) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14-3", + "id": "enf-3-13-1-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14.3", - "marginal_note": "Request for adjournment", + "section": "ENF 3 s. 13.1", + "marginal_note": "Recourse in case of ‘favorable decision’ by the Member (finding the person not to", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.3 Request for adjournment\nParties to the admissibility hearing may make an application for adjournment as outlined in sections 38 to\n43 of the ID Rules.", + "text": "JLO. If the JLO is not available, the hearings officer may send the report directly to LMU at\nNHQ (litigation-management@cbsa-asfc.gc.ca ) or LMD (IRCC.CMBLitigationMgmtRequest-\nDemandeGestLitigesDGRC.IRCC@cic.gc.ca based on which Minister is responsible as laid out\nin sec 13.1.1 above.\nThe report is to be transmitted by email. It is imperative that a copy of the written reasons of the\ndecision in question, when received, is forwarded to LMU or LMD as expeditiously as possible.\nThis will allow sufficient time for review and the necessary consultations. This will also allow\nlitigation management (LMU or LMD) to give appropriate instructions to the Department of\nJustice (DOJ) and to give the DOJ time to prepare applications to seek leave for judicial review.\nSee ENF 9, Judicial Review, for more information.\nNote: Officers should keep in mind that PKI-encrypted emails should only be used to transmit\ninformation up to the ‘Protected B’ level. If the case contains information with a higher\nclassification level, refer to the CBSA Security volume for guidance on alternative secure\ncommunications systems and coordinate with LMU.\n2022-03-03 53", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14.3 (Request for adjournment)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13.1 (Recourse in case of ‘favorable decision’ by the Member (finding the person not to) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-1", + "id": "enf-3-13-2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 1", - "marginal_note": "Mandatory adjournments", + "section": "ENF 3 s. 13.2", + "marginal_note": "Prosecutions of serious violations of IRPA", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1. Mandatory adjournments\nThe member of the ID must grant a request for adjournment in the following circumstances:\n To allow a minor child or a person who is unabl to understand the nature of the proceedings to be\nrepresented by a parent or a guardian. If the member of the ID is of the opinion that the person is\nnot adequately represented, the member may designate a representative [A167(2); Immigration\nDivision Rules, rules 18 and 19].\n Where the services of an interpreter are required to permit the presence of an interpreter at the\nadmissibility hearing [Immigration Division Rules, rule 17].\n When the person concerned claims Canadian citizenship, and had it not been for this claim a\nremoval order would have been issued; and\n When a hearings officer requests that a dependent family member be included in the removal\norder issued to the person concerned, and the member of the ID is not convinced that the family\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 42\nmember was notified accordingly, using the “Notice of Admissibility Hearing to Family Members”\nform (BSF 540).", + "text": "13.2 Prosecutions of serious violations of IRPA\nIt is the CBSA’s policy to refer cases involving serious violations of IRPA to the Royal Canadian\nMounted Police (RCMP) or the Criminal Investigations Section of the CBSA, where appropriate,\nfor further investigation and prosecution. The hearings manager or chief, as the case may be,\ndecides if a case should be referred to the RCMP following a debrief from the officer on the\nreasons why this case should be brought to the attention of the RCMP in accordance with the\nguidelines set out in IRPA for the offences under A117-A119, A122, A124, A126 and A127.\n2022-03-03 54", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 1 (Mandatory adjournments)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13.2 (Prosecutions of serious violations of IRPA)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2", + "id": "enf-3-14-1-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "Discretionary adjournments", + "section": "ENF 3 s. 14.1", + "marginal_note": "General", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2. Discretionary adjournments\nIn cases that do not involve one or more of the mandatory circumstances, member s of the ID have\ndiscretion to grant adjournments in accordance with the principles of procedural fairness and natural\njustice [Prassad v. Canada (Minister of Employment and Immigration)], or under the general powers\nconferred on the member as a commissioner under Part I of the Inquiries Act.\nThe principles of natural justice and procedural fairness require that the member of the ID considers an\nadjournment request by hearing submissions from both parties and by balancing their interests. Members\nmust also take into consideration if an adjournment will have a negative effect on the efficiency and\nexpediency of the process.\nHearings officers must adequately support the recommendations against or in favour of adjourning an\nadmissibility hearing by submitting valid reasons and by making reference to the relevant case law.\nBased on the SCC decision in Prassad v. Canada (Minister of Employment and Immigration), members of\nthe ID should consider the following factors when deciding whether an adjournment should b e granted\n(paragraphs 35 and 36):\n The number of adjournments granted previously;\n The length of time for which an adjournment is requested; and\n The timeliness of pursuing other remedies before asking for an adjournment; and\n In certain circumstances, sympathy for the concerned person’s circumstances.\nWhen applying for an adjournment, hearings officers should address all the applicable factors\n[Immigration Division Rules, Rule 43].\nAdjournments may also be granted at the discretion of the member of the ID or under the general powers\nconferred on the member as a commissioner under Part I of the Inquiries Act. Both parties may make\narguments in favour of an adjournment. A member of the ID may grant an adjournment for the following\nreasons, among other grounds:\n to allow the person concerned to retain counsel (A167);\n for either party to obtain additional evidence or to summon witnesses;\n to allow relevant documents to be introduced (i.e. evidence of a conviction outside Canada);\n to have the person concerned medically examined or to secure additional medical evidence;\n to replace an incompetent interpreter or counsel;\n to consult with the Registrar of Canadian Citizenship; and\n to allow a member of the ID to prepare the decision.", + "text": "14.1 General\nA detention review is a proceeding that takes place before a member of the ID during which the\ncircumstances of detention are examined to determine:\n whether the detention is lawful; and if it is,\n whether detention should be continued.\nAt these proceedings, the Minister of Public Safety is represented by a hearings officer. A\ndetention review:\n is not as structured as an admissibility hearing;\n may be held on its own or in conjunction with an admissibility hearing (one after the\nother);\n evidence needs to be presented to support a position for continued detention;\n detained persons have the right to be represented by counsel.\nA58(1) sets out that “the Immigration Division shall order the release of a permanent resident or\na foreign national unless it is satisfied, taking into account prescribed factors, that [grounds for\ndetention are present].” This means that the burden of proof rests with the Minister to establish,\non a balance of probabilities that the person should remain in detention.\nGenerally, each party (the hearings officer and the person concerned) presents evidence and\nmakes arguments. Evidence may consist of witness testimony, documents or other objects.\nEvidence presented at detention reviews is governed by the same evidentiary rules as at\nadmissibility hearings.(see Appendix A) The member of the ID should be aware of the alleged\nreasons for detention from the information contained in the Request for Admissibility\nHearing/Detention Review Pursuant to the Immigration Division Rules form (BSF 524). The ID\nmember will require that the hearings officer present the reasons for initial detention.\nFollowing the hearings officer’s opening statement, the ID member provides an overview of the", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (Discretionary adjournments)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.1 (General) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-3-p1", + "id": "enf-3-14-1-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 3", - "marginal_note": "Adjournments to obtain counsel", + "section": "ENF 3 s. 14.1", + "marginal_note": "General", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3. Adjournments to obtain counsel\nOver the years it has often been argued before the courts that refusal to grant an adjournment for the\npurpose of obtaining counsel of choice was tantamount to depriving a person of the right to retain and\ninstruct counsel. To this end, the hearings officer can argue that the right to counsel simply means that\nthe person concerned must be given the opportunity to retain and instruct counsel of choice amongst\nthose who are ready and available to proceed on the date fixed by the member of the ID.\nThe person concerned must be given sufficient time to find counsel. However, hearings officers must\nobject to long adjournments when they are of the opinion that the subject of the admissibility hearing has\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 43\nhad reasonable opportunity to obtain counsel who is willing and able to handle the case. In such cases,\nthe hearings officer will argue that the person should take the necessary action to find other counsel. If\ncounsel is never available or does not appear when required, the hearings officer should request that a\nperemptory resumption date be set.\nThe hearings officer should argue that the Charter does not grant an unrestricted right to counsel of\nchoice. Clients have the right to be represented by counsel, but by counsel who is reasonably available to\nappear before the tribunal. Counsel is also obliged by a code of ethics not to take on cases where they\nare not reasonably available to appear on behalf of clients because of previous commitments.\nIf counsel makes continuous requests for adjournment, hearings officers may oppose these requests and\nprovide reasons for why the request for adjournment is not justified.", + "text": "purpose of the detention review and the jurisdiction conferred upon the member by IRPA and its\nRegulations. The member will ask the hearings officer to submit the facts as the Minister sees\nthem based on the evidence, any legal arguments, and a recommendation regarding the\ncontinuation of the detention as to whether detention should be continued, there are any viable\nalternatives to detention, or if the PC should be released. If the hearings officer recommends\nrelease, the hearings officer should specify the conditions of release that the Minister would like\nto have imposed. Before a hearings officer presents the position of the Minister, officers should\nkeep in mind that detention is a measure of last resort, and that the wording of A58(1) is that the\n‘The Immigration Division shall order the release…’, therefore release is the default position\nbefore considerations\n2022-03-03 55\n14.1.1 Authority to detain a person under IRPA and release them prior to the first\ndetention review\nFor detailed information on the authority to detain a person (A55), as well as the authority to\nrelease prior to the first detention review before the ID (A56), refer to ENF 20 : Detention.\n14.1.2 Detention review – timeline for permanent residents and foreign nationals\nThe frequency of detention reviews is prescribed in A57 as follows:\n A57(1) provides that the ID must review the reasons for continued detention within 48\nhours after the permanent resident or foreign national was detained;\n A57(2) provides that the ID must review the reasons for continued detention at least once\nduring the 7 days following the initial review;\n A57(2) also provides that the ID must review the reasons for continued detention at least\nonce during each 30-day period following each previous review.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3 (Adjournments to obtain counsel) (part 1 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.1 (General) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-3-p2", + "id": "enf-3-14-1-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 3", - "marginal_note": "Adjournments to obtain counsel", + "section": "ENF 3 s. 14.1", + "marginal_note": "General", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "In exceptional circumstances, the hearings officer may notify the office manager, to consider whether a\nformal complaint to the provincial bar association or law society may be warranted. The Traveller\nOperations Unit in the Border Operations Directorate, Operations Branch, CBSA - National Headquarters\nshould be informed via CBSA-ASFC_OPS_IEO-OEI of all such formal complaints.\nNote: Refer to Appendix B for additional information on adjournments and jurisprudence.\nHearings officers should base their submissions on the factors that are applicable to the particular case at\nhand.\nHearings officers should review the file to determine if the person concerned has in the past asked for an\nadjournment for similar reasons (e.g., to obtain counsel). Before arguing for or against a proposed\nadjournment, hearings officers should take into account the stage the admissibility hearing has reached\nand the anticipated length of the adjournment requested.", + "text": "Note: A57.1 stipulates a different frequency for detention reviews to those detainees who have\nbeen designated as “designated foreign nationals (DFN). Refer to section 14.3.1 for more\ninformation on cases involving designated foreign nationals.\nThe detained person will be present at each detention review, either in person or by way of video\nor teleconference, unless they choose not to participate (something that happens very rarely).\n14.1.3 Mechanism of detention reviews and grounds for continued detention\nDetention reviews are a two-step process:", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3 (Adjournments to obtain counsel) (part 2 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.1 (General) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14-4", + "id": "enf-3-1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14.4", - "marginal_note": "Change of venue", + "section": "ENF 3 s. 1", + "marginal_note": "Release: The member of the ID must release a person from detention, unless the member", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.4 Change of venue\nRequests for a change of venue must be made to the ID [Immigration Division Rules, Rule 42].\nWhen deciding if the application for a change of venue should be allowed, the member of the ID must\nconsider the following factors:\n whether a change of location would allow the hearing to be full and proper;\n whether a change of location would likely delay or slow the hearing;\n how a change of location would affect the operation of the ID;\n how a change of location would affect the parties; and\n whether a change of location would endanger public safety.", + "text": "1. Release: The member of the ID must release a person from detention, unless the member\nis satisfied that one of the reasons described in A58(1) exists, taking into account the\nprescribed factors (R244-R247) as appropriate.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14.4 (Change of venue)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 1 (Release: The member of the ID must release a person from detention, unless the member)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14-5", + "id": "enf-3-2-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14.5", - "marginal_note": "Application for proceeding in-camera (in private)", + "section": "ENF 3 s. 2", + "marginal_note": "Detention: If the member determines that one or more grounds for detention exists, the", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.5 Application for proceeding in-camera (in private)\nIf the member of the ID is satisfied that\n there is a serious possibility that the life, liberty or security of the person concerned will be\nendangered, if the proceeding is held in public;\n there is a real and substantial risk to the fairness of the proceeding such that the need to prevent\ndisclosure outweighs the social interest that the proceeding be conducted in publ ic; or\n matters involving public security will be disclosed;\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 44\nthe member may on application on the member’s own initiative, conduct a proceeding in -camera (in\nprivate) or take any other measure to ensure the confidentiality of the proceedings (A166( b)(I, ii, iii);\nImmigration Division Rules, Rule 45; Pacific Press Ltd. v. Canada (Minister of Employment and\nImmigration).", + "text": "2. Detention: If the member determines that one or more grounds for detention exists, the\nmember considers the factors in R248 to determine if detention should be continued.\nIn Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (paragraph 24), the\nFederal Court of Appeal noted that detention reviews are not technically de novo hearings but\nthat the ID must come to a fresh conclusion whether detention should continue. The ID member\nmust give clear and compelling reasons to depart from prior decisions to detain.\nIt is the hearing officer’s role to make recommendations, in favour of or against continued\ndetention. In doing so, hearings officers should be guided by the factors set out in R245 to R248\ndepending on the reason for detention. The member of the ID will verify, consider and weigh\neach of the factors set out in the Regulations.\n2022-03-03 56\nFor example, if the hearings officer seeks detention because the person concerned is alleged to be\na danger to the public, the hearings officer will have to provide evidence to demonstrate that the\nfacts of the case fall within the factors listed in R246.\nThe list of factors set out in each of R245, R246, and R247 is not exhaustive and other factors\nmay be considered by the member of the ID when rendering a decision. Thus the credibility of\nthe person concerned and statements of the person concerned that they will or will not comply\nwith the laws governing immigration and refugee protection or any directive issued by the CBSA\nmay be considered in the assessment of the grounds for detention.\nIt is however insufficient for the hearings officer to present evidence exclusively in support of\nthe grounds for detention. Hearings officers should clearly articulate which alternatives to", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14.5 (Application for proceeding in-camera (in private))", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (Detention: If the member determines that one or more grounds for detention exists, the) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14-6", + "id": "enf-3-2-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14.6", - "marginal_note": "Application for proceeding in public", + "section": "ENF 3 s. 2", + "marginal_note": "Detention: If the member determines that one or more grounds for detention exists, the", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.6 Application for proceeding in public\nOn application or on its own initiative, the ID may conduct a proceeding in public, or take any other\nmeasure that it considers necessary to ensure appropriate access to the proceeding if, after having\nconsidered all available alternate measures and the factors set out previously, the member of the ID is\nsatisfied that it is appropriate to do so [A166(c) and (d)]. If the member of the ID is of the view that there is\na serious possibility that the life, liberty or security of the person concerned would be endangered by\nconducting the hearing in public [Pacific Press Ltd. v. Canada (Minister of Employment and Immigration)],\nthe hearing should be held in private.", + "text": "detention (ATDs) were considered for the person, but rejected or deemed unsuitable for the case\nat hand. They should be prepared to answer questions by the member on why the ATDs do not\nsufficiently mitigate the risk. For further information on ATD’s refer to ENF34 Alternatives to\ndetention\nFor additional information on reasons for detention, refer to ENF 20 Detention.\nNote: It is not required that continued detention be sought on the same ground(s) as the original\nreason for arrest and detention. Hearings officers may argue for continued detention under A58\non grounds that may or may not have existed at the time of initial arrest and detention.\n1.Flight Risk (R245)\nFor the purposes of R244(a), the factors to be considered in determining if a person is unlikely to\nappear for examination, an admissibility hearing, removal from Canada or at a proceeding that\ncould lead to the making of a removal order by the Minister under A44(2) of the Act are\nprescribed in R245.\nIn addition to the factors set out in R245, hearings officers may consider the following when\npreparing a submission to indicate that the person concerned is not likely to appear:\n use of pseudonym(s)/alias(es) to avoid detection or to evade compliance with IRPA and\nits Regulations;\n frequent changes of address in Canada;\n previously eluded examination or did not appear as requested;\n has not complied with previous conditions attached or the conditions to a bond imposed\nby a criminal court, the CBSA or the IRB as well as the severity of the non-compliance;\n attempted to escape or to hide; and\n a warrant was issued against the person concerned.\nIn cases where hearings officers perceive a risk that the person concerned will not appear unless", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14.6 (Application for proceeding in public)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (Detention: If the member determines that one or more grounds for detention exists, the) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14-7", + "id": "enf-3-2-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14.7", - "marginal_note": "Applications applicable only to admissibility hearings", + "section": "ENF 3 s. 2", + "marginal_note": "Detention: If the member determines that one or more grounds for detention exists, the", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.7 Applications applicable only to admissibility hearings\nWithdrawing notices\nAfter reviewing the file, the hearings officer may come to the conclusion that the A44(1) report is\nunfounded, or that additional facts indicate that the person concerned is admissible or the report should\nbe otherwise withdrawn. In circumstances in which it is evident that an admissibility hearing is\nunwarranted, the hearings officer should discuss the matter with the Minister’s delegate who signed the\nreport. The hearings officer will make the final decision on whether or not to proceed with the admissibility\nhearing pursuant to Rule 5 of the Immigration Division Rules. The hearings officer should include a note\nin the file, listing the reasons that led to the final decision.\nThe following procedures should be followed when withdrawing a request for an admissibility hearing\n(Immigration Division Rules, Rule 5):\n where no substantive evidence has been accepted in the proceeding, the hearings officer must\nnotify the ID orally at a proceeding, or in writing. If notifying in writing, the hearings officer must\nprovide a copy of the notification to the person concerned or counsel if applicable;\n where evidence has been accepted in the proceedings, the hearings officer must make a written\napplication to the ID to withdraw the request for an admissibility hearing in accordance with Rule\n38 of the Immigration Division Rules.\nPursuant to Rule 5 of the Immigration Division Rules, the withdrawal of a request for an admissibility\nhearing may be considered an abuse of process, if it would likely have a negative effect on the integrity of\nthe ID. There is no abuse of process if no substantive evidence has been accepted in the proceeding s at\nthe time the request for withdrawal is made [Immigration Division Rules, Rule 5].", + "text": "conditions are imposed, hearings officers should consider a cash deposit and/or guarantee with\nconditions of release [A44(3)]. For additional information on deposits and guarantees, refer to\nENF 8\n2022-03-03 57\nThe member of the ID will consider and weigh all available evidence and ATDs when deciding\nif continued detention is warranted. It will also consider particular circumstances such has mental\nillness, addiction or other vulnerabilities, which may play a role in the non-compliance, and how\nthe person is addressing those issues, such as considering any re-habilitation plans or placement\nin recovery rehabilitation facilities as ATD", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14.7 (Applications applicable only to admissibility hearings)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (Detention: If the member determines that one or more grounds for detention exists, the) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14-8", + "id": "enf-3-2-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14.8", - "marginal_note": "Applications applicable only to detention reviews", + "section": "ENF 3 s. 2", + "marginal_note": "Danger to the public (R246)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14.8 Applications applicable only to detention reviews\nApplication for an early hearing\nRule 9 of the Immigration Division Rules provides that the person concerned and/or the Minister of PSEP\nmay make an application for an early detention review. This provision only applies to 7 -day or 30-day\ndetention reviews. The application for early review must be made in writing and the party initiating the\napplication must justify the request by presenting new facts relating to the reasons for detention.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 45\nWhen determining if the application of the person concerned should be contested or not, the hearings\nofficer should consider if the new facts alleged by the person concerned were av ailable at the time of the\nprevious detention review. If the information was available or could have been reasonably obtained at the\ntime of the previous detention review, the hearings officer has solid grounds to contest the application.\nIf the facts alleged are new and may influence the decision to release the person concerned, the\napplication may lead the ID to grant the application for early review, unless hearings officers have\nsufficient evidence that may convince the member of the ID that detention s hould be continued.\nConversely, there may be instances where hearings officers may apply for an early detention review to\nrecommend release; if for example, the identity of the individual has been established or the person\nconcerned received a positive PRRA decision.", + "text": "2. Danger to the public (R246)\nFor the purposes of R244(b), the factors to be considered in determining if a person is a danger\nto the public are prescribed in R246. the ID relies on the objectives of the Act, including\n3(2)(g)&(h) — “to protect public health and safety and maintain the security of Canadian\nsociety” and “to promote international justice and security by denying access to Canadian\nterritory to persons, including refugee claimants, who are security risks or serious criminals” —\nto interpret the grounds of ‘danger to the public.’\nAll the facts and circumstances specific to each cases are relevant to support a continued\ndetention or not. They should be considered carefully and submitted to the ID to appreciate the\nlevel of danger that the person concerned may pose.\nAs such, some factors may require additional arguments to demonstrate that a specific fact\ndisclosed before the ID should be considered as a factor in favour of continued detention. For\nexample, the details of a foreign conviction for a sexual offence [R246(f)(i)] should be examined\ncarefully to determine the equivalent in Canadian law. The hearings officer should disclose all\navailable details to satisfy the member of the ID that the offence is described in R246(f)(i).\nThe circumstances surrounding the commission of an offence may assist the member of the ID in\ndetermining the weight of a factor compared to another. For instance, the fact that the victim of\nthe offence is a minor child may be considered as more serious than if the victim is not a minor.\nAn offence committed with the use of a prohibited weapon may also be considered to have more\nweight than an offence committed with another weapon, depending on the specific circumstances\nof each case.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14.8 (Applications applicable only to detention reviews)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (Danger to the public (R246)) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-15", + "id": "enf-3-2-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 15", - "marginal_note": "A36(1)(a) – Paper-based admissibility hearings", + "section": "ENF 3 s. 2", + "marginal_note": "Danger to the public (R246)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "15 A36(1)(a) – Paper-based admissibility hearings\nUnless otherwise instructed by a manager, hearings officers will participate via paper-based submissions\nin admissibility hearings before the ID when the admissibility hearing involves A36(1)( a) inadmissibility of\nPermanent Residents.\nHearings officers will continue to appear in person in the following exceptional circumstances:\n Jurisdictional arguments;\n Constitutional challenges are being argued and the issue has not previously been addressed by\nthe higher court, which would enable the hearings officer to make written submissions; or\n The person concerned is detained in immigration hold and the ID is holding the admissibility\nhearing and the detention review on the same day.\nNote: For the above-noted exceptional cases, hearings officers will require approval from a CBSA\nhearings manager to appear in person at admissibility hearings.\nHearings managers will complete the template for approval (Appendix C of this manual) and justify the\nexceptional circumstances for each case involving A36(1)(a) allegations for which the hearings officer\nwishes to appear in person at the hearing.", + "text": "Note: In Bruzzese v Canada (Minister of Public Safety and Emergency Preparedness) 2014 FC\n230 (paragraphs 47 and 87) the Federal Court stated that each and every one of the factors listed\nin R246 is a sufficient ground to find that a person is a danger to the public and that these factors\nmay serve as a sufficient basis, in and of themselves, to find that a person is a danger to the\npublic. Each of these, the Court held, is an indicator that a person is, at least prima facie , a\ndanger to the public. Once the Minister has made out such a prima facie case, the burden shifts\non the person detained to lead evidence as to show that he or she is not a danger to the public .\nHearings officers should submit the following documents, if applicable and available, to the ID\nto support an argument that an individual is a danger to the public:\n the criminal record of the person concerned, and documents establishing a criminal\nconviction in or outside Canada;\n the indictment;\n2022-03-03 58\n evidence of the medical condition of the person concerned;\n police reports documenting association of the person concerned with known criminals or\na criminal organization, even if that person has no criminal convictions\n classified reports relating to security or criminal activity of the person concerned, and a\nrecord of physical violence, if applicable;\n Correctional Services report on the person’s behavior in detention; and\n report from the Parole Board of Canada, or from a provincial parole board.\nA Minister’s Opinion that the person constitutes a danger to the public under A115(2)(a) does\nnot in itself constitute a finding that the person is a danger to the public in the context of a\ndetention review before the ID.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 15 (A36(1)(a) – Paper-based admissibility hearings)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (Danger to the public (R246)) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-15-1", + "id": "enf-3-2-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 15.1", - "marginal_note": "Application pursuant to Rule 38 of ID Rules for paper-based", + "section": "ENF 3 s. 2", + "marginal_note": "Danger to the public (R246)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "15.1 Application pursuant to Rule 38 of ID Rules for paper-based\nhearings\nPursuant to ID Rule 38, hearings officers must make an application to the ID requesting to release the\nMinister of PSEP from any obligation to appear or present evidence in person.\nRefer to Appendix D of this manual for a copy of the application.", + "text": "In addition, hearings officers may consider the age of a conviction, the circumstance under which\nan offence was committed and any events which have transpired since. An assessment of danger\nto the public is forward-looking. Events of the past are, by necessity, all we have to make an\neducated guess on how an individual may behave in the future. The fact that a number of years\nhave passed or the fact that the person has served their sentence do not on their own indicate that\nthe person concerned is or is not a danger to the public. What is required is some evidence that\nthe person is rehabilitated. A strong indication that the person concerned is a danger to the public\nmay consist of evidence that the offence involved violence or weapons and that the person\nconcerned is likely to re-offend.\nThe member of the ID will consider and weigh all available evidence when deciding if detention\nshould be continued. They will also consider if the circumstances leading to a finding of danger\ninvolved a heightened level of vulnerability due to addiction or mental health issues and whether\nthose have been mitigated.\nNote: See ENF 28, Ministerial Opinions on Danger to the Public and to the Security of Canada,\nfor additional information on assessing danger to the public.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 15.1 (Application pursuant to Rule 38 of ID Rules for paper-based)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (Danger to the public (R246)) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-16-1", + "id": "enf-3-3-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 16.1", - "marginal_note": "Carrying out a decision of the Immigration Division", + "section": "ENF 3 s. 3", + "marginal_note": "Identity (R247)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "16.1 Carrying out a decision of the Immigration Division\nWhen the admissibility hearing is concluded, the hearings officer has three specific areas of responsibility\nto ensure that the member's decision is carried out:\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 46\n if the member of the ID issued a removal order against the person concerned, the hearings officer\nmust give the case file to the removal unit for action;\n if the member of the ID ordered the detention of the person concerned, the hearings officer must\ntake the appropriate action and annotate the file accordingly;\n if the member of the ID ordered the release of the person concerned on a performance bond, the\nhearings officer may have to assess the financial capacity of the person who assumes the\nresponsibility for the bond as well as the guarantor’s ability to comply.", + "text": "3. Identity (R247)\nFor the purposes of R244(c), the factors to be considered in determining whether a person is a\nforeign national whose identity has not been established are prescribed in section R247.\nIn cases where the identity of the person concerned has not been established, the hearings officer\nmust provide details of the efforts made to establish the identity of the person concerned. The\nofficer should be ready to provide concrete plans and time estimates for these efforts. .\nIf applicable, the hearings officer must demonstrate how the person concerned has not\nreasonably cooperated for the purpose of establishing his or her identity [A58(1)(d); ID Rules,\nRule 247].\nHearings officers should ensure that the case file contains a signed and dated “Minister’s\nOpinion Regarding the Foreign National’s Identity” (BSF 510) form.\n2022-03-03 59\nNote: In Canada (Minister of Citizenship and Immigration) v. Bains ( paragraph 4), the Federal\nCourt clarified that it is not up to the member of the ID to determine what is acceptable as proof\nof identity, but merely whether the Minister made reasonable efforts to identify the person\nconcerned. [see also Canada (Citizenship and Immigration) v. B046 ]\nThe factors set out in R245, R246 and R247 are not exhaustive. Additional factors may be\nconsidered by the member of the ID when assessing the evidence.\nThe member of the ID will consider and weigh all available evidence when deciding if detention\nshould be continued (R248).\n14.1.4 Factors to be considered when determining if detention should be continued\n(R248)\nIn addition to the factors referred to above, members of the ID must take into consideration the\nfactors set out in R248, also known as the ‘Sahin factors’ when determining if detention should", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 16.1 (Carrying out a decision of the Immigration Division)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3 (Identity (R247)) (part 1 of 6)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-16-2", + "id": "enf-3-3-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 16.2", - "marginal_note": "Applications for judicial review", + "section": "ENF 3 s. 3", + "marginal_note": "Identity (R247)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "16.2 Applications for judicial review\nWhere hearings officers are of the opinion that there are, or may be, grounds to seek judicial review,\nhearings officers will consult with their manager .If the manager concurs, the hearings officer will within\nfive business days of the decision, order, act or omission by the ID member, send a report to the Regional\nJustice Liaison Officer (JLO). If the JLO is not available, the hearings officer may send the report directly\nto CIC or CBSA litigation management at National Headquarters as follows:\nCIC - Litigation Management Unit (BCL) CBSA – Litigation Management Unit (LMU)\nA36 A34\nA35\nA37\nThe report is to be transmitted by facsimile or by electronic means. It is imperative that a copy of the\nwritten reasons, when received, is forwarded as expeditiously as possible. This will allow sufficient time\nfor review and the necessary consultations. This will also allow BCL or LMU to give appropriate\ninstructions to the Department of Justice (DOJ) and to give the DOJ time to prepare applications to seek\nleave for judicial review.\nSee ENF 9, Judicial Review, for more information.", + "text": "be continued. Even where the Minister established a prima facie basis for continued detention on\none of the A58(1) grounds and prescribed factors of A244-R247, the ID still must consider the\nfactors listed in R248 before deciding whether to order detention or release.\nIn Sahin v. Canada (Minister of Citizenship and Immigration) , the Federal Court determined that\nin certain cases indefinite detention violates Section 7 of the Charter. Bektas Sahin, the person\nconcerned had been detained for more than 14 months at the time the Federal Court rendered its\ndecision. The Court provided a list of considerations that should be taken into account by\nmembers of the ID when making decisions on whether an individual should remain in detention.\nThese considerations have been codified in R248.\nAlso refer to Charkaoui v. Canada (Citizenship and Immigration), which endorsed Sahin.\nIf the hearings officer recommends continued detention, the hearings officer should submit all\navailable evidence to the ID in support of continued detention.\nThe factors set out in R248 are as follows:\n Reasons for detention R248( a)\nFor example, there may be a stronger case for continued detention on the grounds that the\nperson concerned is a danger to the public.\nLength of time in detention R248( b) and length of time detention will likely continue\nR248(c)\nIn Sahin v. Canada (Minister of Citizenship and Immigration) , the Federal Court\ndetermined that, in certain cases, indefinite detention violated section 7 of the Charter.\n2022-03-03 60\nOne of the significant tests set out by the Federal Court related to the period of time that\nhad passed before a decision was rendered as to whether the person in question was\nauthorized to remain in Canada.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 16.2 (Applications for judicial review)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3 (Identity (R247)) (part 2 of 6)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-16-3", + "id": "enf-3-3-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 16.3", - "marginal_note": "Prosecutions of serious violations of IRPA", + "section": "ENF 3 s. 3", + "marginal_note": "Identity (R247)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "16.3 Prosecutions of serious violations of IRPA\nIt is the CBSA’s policy to refer cases involving serious violations of the Act to the Royal Canadian\nMounted Police (RCMP) or the Criminal Investigations Section of the CBSA, where appropriate, for\nfurther investigation and prosecution. The hearings manager or chief, as the case may be, decides if a\ncase should be referred to the RCMP following a debrief from the officer on the reasons why this case\nshould be brought to the attention of the RCMP in accordance with the guidelines s et out in IRPA (e.g.,\nan offence under A118).", + "text": "In Canada (Minister of Citizen ship and Immigration) v. Li (para. 81),the FCA stated that\n“the basis of the estimation of anticipated future length of detention should be the\nproceedings as they exist at the time of each monthly review and not on an anticipation of\navailable processes but not yet underway.” [underlining added]\nHearings officers should be aware that, as the detention progresses and surrounding\ncircumstances evolve, some processes such as a positive—Stage 1 application for\npermanent residence on humanitarian and compassionate grounds, or the implementation\nof a Temporary Stay of Removal (TSR) may significantly prolong the expected time of\ncontinued detention when dealing with someone who is being detained for removal. The\nofficer should reassess in light of the evolving situation, whether continued detention is\nappropriate; if so, the extent to which the evidence available on file can counterbalance\nthe Member’s weighing of R248(c), taking into account the expected duration of\ncontinued detention. In their submissions, hearings officers must establish that the person\nis not facing indefinite detention due to an unachievable immigration outcome with\nevidence.\nHowever, in exceptional cases immigration detention could still continue where there is\nno foreseeable possibility of removal (positive risks) where the person is a danger to the\npublic, in order to ensure a proper alternative to detention is secured, see Taino 2020 FC\n427.\nAs noted at para 86: the Member could and should have simply ruled on whether to\ncontinue the detention or to release on the basis of the toolkit provided to her by the\nstatute, namely section 248 of the Regulations , rather than predetermining it with a", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 16.3 (Prosecutions of serious violations of IRPA)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3 (Identity (R247)) (part 3 of 6)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-17", + "id": "enf-3-3-p4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 17", - "marginal_note": "Reporting", + "section": "ENF 3 s. 3", + "marginal_note": "Identity (R247)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "17 Reporting\nHearings officers must enter all relevant information into the Field Operations Support System (FOSS) or\nthe Global Case Management System (GCMS) and the National Case Management System (NCMS) to\nkeep the case information current.", + "text": "Charter analysis. Certainly, Charter considerations could have been used to consider\naspects such as the length of time in detention but, as Sahin and other cases have held\nsince, the section 248 factors comply with the demands of section 7.\nFor additional information on impediments to removal, please refer to ENF 10, sec. 11.\nIt is important to recognize that the risk a person poses as a flight risk or danger to the\npublic does not decrease or disappear just because the person undergoes a prolonged stay\nin detention. Hearings officers should be prepared to present evidence to show that\nalthough the person concerned has spent a lengthy period of time in detention, the risk\nthey pose remains unchanged.\nAny unexplained delays or unexplained lack of diligence by the person concerned or\nby the CBSA R248( d)\n2022-03-03 61\nIf the person concerned or the Minister has caused any unexplained delays or if either of\nthem has not been as diligent as is reasonably possible, it should weigh against the\noffending party.\nFor example, in a subsequent court decision, Kidane v. Canada (Minister of Citizenship\nand Immigration) (paragraphs 8 and 9), the Federal Court upheld the member’s decision\nto detain the person concerned, ruling that the member had adequately applied the four-\npart test set out in Sahin , and that prolonged detention of the person concerned did not\nviolate his rights as he was largely himself responsible for the procedural delays that\ncaused the continuation of his detention.\nIn Canada (Minister of Citizenship and Immigration) v. Kamail (paragraphs 34 and 37),\nthe Federal Court applied the four-part test set out in Sahin and concluded that the test\n“clearly favours keeping the respondent in detention”. The member committed an error in", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 17 (Reporting)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3 (Identity (R247)) (part 4 of 6)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-18-p1", + "id": "enf-3-3-p5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 18", - "marginal_note": "Feedback", + "section": "ENF 3 s. 3", + "marginal_note": "Identity (R247)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "18 Feedback\nResults of admissibility hearings or detention review proceedings should be provided to the officers who\nprepared and reviewed the original report, or who arrested and detained the permanent resident or the\nforeign national under the provisions of IRPA.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 47\nHearings officers should provide feedback to those involved in specific cases for training purposes, and to\nadvise officers of the effectiveness of their work.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 48\nAppendix A List of Cases / Rules of Evidence\nReferences\nCanadian courts\n Federal Court of Canada, Trial Division (FCTD)\n Federal Court of Canada, Appeal Division (Federal Court of Appeal) (FCA)\n Supreme Court of Canada (SCC)\nList of cases cited throughout this manual chapter\n Almrei (Re), 2009 FC 3.\n Bowen v. Canada (Minister of Employment and Immigration), [1984] 2 F.C. 507.\n Brannson v. Canada (Minister of Employment and Immigration), [1980] F.C.J. No. 247.\n Bruzzese v. Canada (Minister of Public Safety and Emergency Preparedness) , 2014 FC 230.\n Browne v. Dunn, (1893) 6 R. 67 (H.L.).\n Canada (Citizenship and Immigration) v. B046, 2011 FC 877\n Canada (Minister of Employment and Immigration) v. Dan-Ash, [1988] F.C.J. No. 571.\n Canada (Minister of Public Safety and Emergency Preparedness) v. Ismail, 2014 FC 390.\n Canada (Minister of Citizenship and Immigration) v. Bains, 1999 FCJ No. 11.\n Canada (Minister of Citizenship and Immigration) v. Fox, 2009 FC 987.\n Canada (Minister of Citizenship and Immigration) v. Kamail, 2002 FCT 381.\n Canada (Minister of Citizenship and Immigration) v. Li, 2009 FCA 85.\n Canada (Minister of Citizenship and Immigration) v. Nkunzimana, 2005 FC 29.", + "text": "law when he decided the case in the respondent’s favour on the basis that detention was\nindefinite when he recognized that the detained person’s lack of cooperation must count\nagainst that person and not the Minister.\n The existence of alternatives to detention R248( e)\nWhen assessing continued detention of a person concerned, members of the ID consider\nthe availability, effectiveness and appropriateness of ATDs, including but not limited to\noutright release, a bond or guarantee, periodic in-person reporting, voice reporting,\nelectronic monitoring, confinement to a particular location or geographic area, the\nrequirement to report changes to contact information or a form of detention that is less\nrestrictive to the individual, etc.\nEven if no ATDs are proposed by either the Minister, or counsel, it is important that the\nhearings officer anticipate the matter of ATDs and their suitability or unsuitability (if\napplicable), as they will be addressed by the member. For additional information on ATD\nassessment at detention reviews, please refer to ENF 34.\nNote: Members are not limited to the considerations in the factors above when deciding if\ncontinued detention of a person concerned is warranted.\nIn practice, these “other factors” mean that the Immigration Division may order release even if\nsatisfied that the Minister has established a prima facie basis for continued detention under\ns.58(1) or (2). For example, the Immigration Division may order release because detention has\ncontinued for an extremely long time with no realistic prospect of removal, or the Immigration\nDivision may order release because the Minister is unable to explain a lack of diligence in taking\nsteps to establish identity. Alternatively, the Immigration Division may order release because it", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 18 (Feedback) (part 1 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3 (Identity (R247)) (part 5 of 6)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-18-p2", + "id": "enf-3-3-p6", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 18", - "marginal_note": "Feedback", + "section": "ENF 3 s. 3", + "marginal_note": "Identity (R247)", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": " Canada (Minister of Citizenship and Immigration) v. Sittampalam, 2004 FC 1756.\n Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4.\n Chana v. Canada (Minister of Manpower and Immigration), [1977] 2 F.C. 496.\n Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9.\n Chiau v. Canada (Minister of Citizenship & Immigration), [2001] 2 F.C. 297.\n Chhokar v. Canada (Minister of Employment and Immigration), F.C.J. No. 173.\n Chung v. Canada (Citizenship and Immigration), 2014 FC 16.\n Edmond v. Canada (Minister of Citizenship and Immigration ), [2012] FC 674\n Gervasoni v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 189.\n Green v. Canada (Minister of Employment and Immigration), 1983 F.C.J. No. 142.\n Hill v. Canada (Minister of Employment and Immigration), [1987] F.C.J. No. 47.\n Ioannidis v. Canada (Minister of Employment and Immigration), [1983] 1 F. C. 369.\n Jiminez-Perez v. Canada (Minister of Employment and Immigration), 1983 1 F.C. 163.\n Kamail v. Canada (Minister of Citizenship and Immigration), 2002 FCT 381.\n Kidane v. Canada (Minister of Citizenship and Immigration), 1997 F.C.J. No. 990.\n Koutsouveli v. Canada (Minister of Employment and Immigration), 1988 F.C.J. No.133.\n Li. v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235.\n Louhisdon v. Canada (Employment and Immigration Canada), 1978 2 FC 589.\n Martineau v. Canada (Minister of National Revenue – M.N.R.), 2004 SCC 81.\n Canada (Minister of Employment and Immigration) v. Widmont, 1984 2 F.C. 274.\n Mugasera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40.\n Murray v. Canada (Minister of Employment and Immigration), 1979 1 F.C. 518.", + "text": "is satisfied that alternatives to detention – such as release on conditions – would adequately\naddress the concerns underlying the grounds for detention.\nWhile these “other factors” are enumerated in s.248 of the Regulations, the Supreme Court of\nCanada held that these same factors must be examined in all cases of prolonged or lengthy\n2022-03-03 62\nimmigration detention in order to ensure the detention reviews are meaningful and consistent\nwith Charter requirements5.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 18 (Feedback) (part 2 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3 (Identity (R247)) (part 6 of 6)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-18-p3", + "id": "enf-3-14-2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 18", - "marginal_note": "Feedback", + "section": "ENF 3 s. 14.2", + "marginal_note": "Preparing for a detention review : General guidelines", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": " Pacific Press Ltd. v. Canada (Minister of Employment and Immigration) , [1991] 2 F.C. 327.\n Park v. Canada (Citizenship and Immigration), 2010 FC 782.\n Patel v. Canada (Citizenship and Immigration), 2007 FC 470.\n Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 511.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 49\n Prassad v. Canada (Minister of Employment and Immigration), 1989 1 S.C.R. 560.\n R. v. Mohan, [1994] 2 S.C.R. 9.\n R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272.\n Sabour v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1615.\n Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214.\n Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433.\nRules of evidence\nAdministrative tribunals are not bound by the strict rules of evidence that are found in judicial proceedings\nA173(c). However, they must observe the principles of fundamental justice.", + "text": "14.2 Preparing for a detention review : General guidelines\n14.2.1 Disclosure of documents\nWhen preparing for their disclosure, hearings officers should be cognizant of their obligations to\nthe ID. Previously, the Minister was responsible for disclosing any information they intended to\nrely on during a detention review. On April 1, 2019 the ID updated it’s Chairperson’s guidelines\nfor detention which shifts the disclosure obligations to include all relevant information in\nCBSA’s possession. (Rule 7.3.4 - The Minister is expected to disclose all relevant evidence,\nwhether or not it is exculpatory or they intend to rely on it prior to the hearing.\nThe FCA in Brown v. Canada (Citizenship and Immigration) , 2020 FCA 130 at para 142-143 &\n145 re-affirms the Chairperson’s guidelines in that the Minister must disclose to the detainee all\ninformation relevant to their detention review that is not subject to a valid claim of privilege.\nThis includes information advantageous to the detainee, information regarding the grounds for\nthe detention, information pertaining to R248 factors, the existence of immigration nexus, and\nthe information that bears on whether continued detention is warranted and consistent with the\nCharter and administrative law principles. This disclosure requirement is not unlimited; it is\ntempered by the requirement that the information be relevant to the detention review of the\nparticular detainee. It is recommended that documents be ordered in a logical fashion, be it\nchronological or thematic. See ENF 31 for more details on disclosure obligations.\nThe ID Rules, Rule 24 requires that each document should be numbered consecutively and\nwhere more than one document is provided, a list of documents and their corresponding page\nnumbers is also required.\nHearings officers must disclose to the person concerned or counsel if applicable and to the ID the\nfollowing documents:\n “Request for Admissibility Hearing/Detention review” form (BSF 524);\n A copy of the 44(1) report, if applicable;\n a copy of the removal order, if applicable;\nall other documentary evidence or information that is relevant to the hearing. In the case of a 48-\nhour or a seven-day detention review, all documents must be disclosed as soon as possible. In all\nother cases documents must be disclosed at least five (5) business days before the hearing. [ID\nRules, Rule 26].", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 18 (Feedback) (part 3 of 3)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.2 (Preparing for a detention review : General guidelines)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-1", + "id": "enf-3-5-p1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 1", - "marginal_note": "The admissibility of evidence", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1. The admissibility of evidence\nIn judicial proceedings, strict rules govern the admissibility of evidence. The two basic rules are\n the best evidence rule, which requires that the evidence presented be the best evidence available\n(this means that secondary evidence should not be introduced unless primary evidence is\nunavailable);\n the rule against hearsay evidence. Hearsay evidence is testimony given by a witness, offered as\nproof of the truth of the matters contained in the testimony, which is not the personal knowledge\nof the witness but rather the mere repetition of what the witness heard others say. Such evidenc e\nis very weak, since the real author of the statement put in evidence is not available for cross -\nexamination and therefore the credibility of the statement and its author cannot be tested.\nAt an admissibility hearing, any evidence considered by the member of the Immigration Division (ID) to be\nrelevant, credible, and trustworthy in the circumstances of the case is admissible. In the examination of\nthe evidence presented, the member of the ID will determine its weight or value, taking into consideration\nall relevant information. Hearings officers are to follow the best evidence rule. Generally, members of the\nID will accept hearsay evidence, but they will attach very little significance to it if contradictory evidence is\noffered by the other party.", + "text": "5 Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.\n2022-03-03 63\nHearings officers should be particularly mindful of this deadline for disclosure in the case of\nlong-term detainees who are undergoing detention reviews on a 30-day cycle.\nNote: Rule 50 of the ID Rules, grants the member broad discretionary powers to change the\nrequirements of a rule and/or modify time limits. In the interests of conducting a fair and fulsome\nhearing, the member may choose to accept evidence provided after the deadlines, in the form of\nlate disclosure. However, hearings officers should only consider late disclosure to provide\nevidence on recent and pertinent developments about the case, which occurred before the\ndetention review but after the deadline for disclosure has passed or where the evidence was\notherwise unavailable before the deadline for disclosure had passed.\nCommunity Liaison Officers (CLOs) and Inland Enforcement Officers (IEOs) are responsible for\nupdating the file and providing the hearings officer with additional documentary evidence, as\nsoon as possible in advance of the deadline for disclosure.\nWhen interviews conducted by IEOs take place, they should be documented, preferably in a\nQ&A format, and should include all available information including impediments to removal,\nsteps to resolve impediments, all actions taken on the file, follow up with consulates/embassies,\ntravel document (TD) issuance timeframe, process for obtaining a TD. Although, the evidence\nwill most frequently take the form of written declarations, CLOs and IEOs may be summoned by\nthe member to provide witness testimony at a detention review, should questions on the case\nremain, even after the evidence was disclosed and submissions were made by the hearings\nofficer.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 1 (The admissibility of evidence)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 1 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-2", + "id": "enf-3-5-p2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 2", - "marginal_note": "The relevance of evidence", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2. The relevance of evidence\nThe member of the ID will normally consider relevant any evidence that reasonably tends to prove the\nfact in dispute, that is:\n evidence which places a fact in a context which tends to show its relevance;\n evidence relating to credibility; and\n evidence that proves a precondition for the presentation of a fact (e.g., evidence that a statement\nwas made freely and voluntarily).", + "text": "In the case of a detention on identity grounds, evidence disclosed should also include any\ndocuments (or copies of documents) that were found in possession of the person at the time of\narrest that may speak to their identity or purpose of their presence in Canada. There could be\nother reasons for which the documents may be used at a hearing.\n Note: All documents must comply with the requirements set out in the ID Rules 24 and 25\nwith respect to language and format.\n Note: If the person concerned has retained counsel, the hearings officer should ensure that\ncopies of the relevant notices and documents are sent to counsel [Rule 28(3)].\n14.2.2 Detention under A58(1)(c)\nA58(1)(c) sets out that the ID shall order the release of a foreign national or permanent resident\nunless it is satisfied that:\n(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they\nare inadmissible on grounds of security, violating human or international rights, serious\ncriminality, criminality or organized criminality;\nWhile hearings officers will most likely handle such cases when the person concerned was\ndetained under A55(3), this need not be the case. Persons may have been detained under the\n2022-03-03 64\nauthority of A55(1) or A55(2) and subsequent developments might lead to a change in grounds\nfor detention.\nThe FC assessed, in Canada (Minister of Public Safety and Emergency Preparedness) v. Ismail,\nthe relationship between the grounds for arresting and detaining an individual under IRPA, and\nthe grounds that permit continued detention of that individual by the ID.\nThe Federal Court at paragraph 65 in Ismail determined that “[T]o interpret paragraph 58(1)(c)\nof IRPA so as to permit the detention of an individual in order to allow the Minister to take", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 2 (The relevance of evidence)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 2 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-3", + "id": "enf-3-5-p3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 3", - "marginal_note": "The weight of evidence", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3. The weight of evidence\nThe weight of evidence is its probative value, or importance, and the extent to which it establishes a fact\nbefore the tribunal. The stronger the inference that can be derived from the evidence, the higher the\nprobative value. A number of pieces of evidence, each of low probative value, may be more significant\nwhen considered in the overall context of the admissibility hearing than a single piece of evidence that\nseemingly has very high probative value.\nAdmissibility of evidence and probative value are two different matters. A document of low probative\nvalue may still be admissible into evidence if it is relevant.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 50\nSecondary or hearsay evidence may not have the same weight when better evidence is available. For\nexample, if the hearings officer uses a statutory declaration made by an officer who is reasonably\navailable to testify, the hearings officer is depriving the other party of the opportunity to cross -examine\nand the hearings officer detracts from the quality of the evidence.\nAs a general rule, the hearings officer should attempt to secure the best evidence whenever possible.\nWhen this is not possible, would be prohibitively expensive or would cause major administrative\ndifficulties, the hearings officer may ask the member of the ID to accept secondary evidence.\nWhen making a decision to rely on primary or secondary evidence, the hearings officer should take into\naccount factors such as the importance of other aspects of the case, and the need to avoid lengthy\ndetention while waiting for stronger evidence. The hearings officer should also keep in mind that t he\nweaker the evidence in relation to evidence presented by the opposing party, the greater the possibility\nthat the member of the ID will admit the person concerned to Canada.\nThe main points to consider when assessing available evidence are as follows:\n Is this evidence relevant?\n What facts are established or can be deduced from this evidence?\n What is its weight?\nTypes of evidence", + "text": "necessary steps to inquire into a reasonable suspicion that the individual is inadmissible on\ngrounds of security, when that suspicion only arises after the person has entered Canada, accords\nwith the priority that the legislation ascribes to security.”\nIn all cases, if seeking continued detention under A58(1)(c), the hearings officer must satisfy the\nmember on whether the Minister is taking necessary steps to verify a reasonable suspicion of\ninadmissibility. The hearings officer:\n Must describe the basis for the reasonable suspicion of inadmissibility;\n Should describe the steps the Minister has taken so far;\n Should describe the future steps the Minister intends to take.\nThe member is limited to examining whether the proposed steps have the potential to uncover\nrelevant evidence bearing on the Minister’s suspicion. It is not up to the member to dictate steps\nto be taken in the investigation, or speculate on potential outcomes.\nIn Canada (Citizenship and Immigration) v. X, the Federal Court reaffirmed the limitations to the\nmember’s supervisory jurisdiction during a detention review for a person detained on those\ngrounds. “The government cannot use ss. 58(1)(c) as the basis for indefinitely detaining foreign\nnationals, but it is entitled to a reasonable time to complete its admissibility investigation.”\nIn essence, the jurisprudence limits the ability and obligation of the member to place weight on\nthe time spent in detention, which R248 normally requires them to do. This in turn weakens the\nsuitability of ATDs. Nevertheless, the hearings officer must continue to demonstrate that the\nMinister is conducting its ongoing investigation in good faith. If the investigation shows signs of", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 3 (The weight of evidence)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 3 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-5-p4", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "faltering, it may be necessary for the officer to argue for continued detention under different\ngrounds set out in A58(1)(a), A58(1)(b) or A58(1)(d), in which case the full range of factors\nR248 will need to be addressed, as they will be considered by the member.\nFor additional information on detention on entry of persons under A55(3)(b), refer to ENF 20\nDetention, Section 5.5 Suspected of security risk/human or international rights violations.\n14.2.3 Alternatives to detention (ATD)\nThe matter of ATDs must form part of the submissions by the Minister. ATDs are evidently not\nsuitable to all cases but, as set out in R248(e), the member is required to consider their\navailability, effectiveness and appropriateness in their decision.\n2022-03-03 65\nWhile there is no obligation on the Minister to find an ATD, there is an ongoing obligation to\nconsider ATD. There is a statutory duty to ensure that a person is not detained for immigration\npurposes unless certain criteria is met. The main principle of the IRPA detention scheme is that\ndetention is a last resort.\nReasonable efforts throughout the detention process should be made by the Minister to\nparticipate in keeping the person out of detention unless the reasons for detention dictate\notherwise (R244-247). Even if the person is a danger to the public or a flight risk, the ongoing\nobligation requires the Minister to consider if there would be any ATD that could mitigate that\nrisk.\nConsequently, and even if not applicable in a particular case, hearings officers should not limit\ntheir submissions on the matter to stating that there was “no suitable alternative”, but rather\nexplain why the potential alternatives are not appropriate, or are otherwise insufficient to manage", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 4 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-5-p5", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "the risk in the case at hand. However, this finding is not immutable, and ATDs will be actively\nre-assessed by the member at every subsequent detention review. The hearings officer should\nkeep in mind that change in a person’s circumstance may render a previously-rejected alte rnative\ninto a viable option, especially in the case of long-term detentions.\nThe CBSA’s expanded ATD Program was implemented on June 22, 2018 and is intended to\naugment the existing options that were available to the CBSA and the IRB to manage individuals\nsubject to immigration detention. The CBSA’s ATD Program provides officers with an expanded\nset of tools and programs that enable them to manage individuals released into the community\nmore effectively. This included the creation of Community Liaison Officers (CLOs) who assist\nin examining the existence and feasibility of alternative’s to detention.\nWhen release on conditions are deemed appropriate, the hearings officer must be ready to\narticulate in their submission the reasons for which those conditions should be imposed on the\nperson concerned.\nFor additional information on alternatives to detention, refer to ENF 34\nExamining bondspersons proposed at a detention review\nThe person detained or their counsel may propose a bondsperson to secure the release of a person\nin detention. When a potential bondsperson is proposed at the hearing, there may be insufficient\ntime to have their ability to pay a cash deposit or post a guarantee formally assessed. Interactions\nwith the bondsperson should be on the record; hearings officers should examine bondspersons on\nthe record, with the bondsperson providing testimony under oath.\nThe hearings officer should cross-examine the proposed bondsperson at the detention review to", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 5 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-5-p6", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "assess their suitability and gather evidence for their submissions which may be a submission that\nthe alternative to detention is inadequate to offset the risk. If the proposed bondsperson is not\navailable to testify either in person or by phone, the Member may ask that they be available at\nthe next detention review, or schedule an early detention review at which time the bondsperson\nmay testify. In Canada (Minister of Citizenship and Immigration) v. Ke, the Federal court\n2022-03-03 66\nestablished that a decision by the Member to release without giving the opportunity to the\nMinister to cross-examine the proposed bondsperson can be a breach of procedural fairness and\nnatural justice.\nThe line of questioning for a proposed bondsperson should examine that proposed bondsperson’s\nability to ensure the person concerned’s compliance with conditions of release, and not merely\nthe dollar amount of the bond or value of the guarantee proposed.\nProposed bondspersons should be asked about:\n their immigration status and ties to the community;\n their relationship with the person concerned;\n their knowledge of the person concerned’s immigration status and if applicable, criminal\nhistory;\n their own living situation;\n willingness to provide shelter to the person concerned;\n how they plan to exert influence on the person.\nIt is also relevant and appropriate to enquire about the potential bondsperson’s income, assets,\ntheir ability to pay a cash deposit or fulfill the obligation from the guarantee. R47(3) gives an\nofficer (as designated by the Minister of Public Safety) the authority to refuse the posting of a\ndeposit or guarantee if they believe that it was, or will not be legally obtained. Any concerns that", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 6 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-5-p7", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "the proposed bondsperson will be posting a deposit or guarantee via illegally-obtained funds\nshould be raised by the hearings officer at the detention review for the member to consider when\nassessing the suitability of the bondsperson.\nThe hearings officer should also present a position to the member on the reliability of the\nguarantor. For example, a proposed guarantor who has defaulted on a previous bond and remains\nin default, is no longer eligible to be a guarantor.\nA guarantor’s criminal record may reflect the importance they place on law and order and social\nnorms to respect compliance with laws and regulations. Similarly a guarantor’s potential\ncriminal associations, even in the absence of a criminal record, may speak to their character and\ntheir respect for the rule of law.\nIn cases of bondspersons proposed at the hearing, the officer should clearly indicate to the\nmember of the ID, the detained person, and their counsel (if applicable), that another officer will\nbe determining whether the bondsperson has the ability to pay the cash deposit and/or fulfil the\nguarantee before release (as ordered by the ID) can occur.\nNote: For additional information on deposits and guarantees, please refer to ENF 8, Deposits and\nGuarantees.\nElectronic monitoring (EM)\nEM is intended to be used in conjunction with community case management and supervision, a\ndeposit or guarantee, or both for individuals who present a high risk if released into the\n2022-03-03 67\ncommunity but whose predicted length of detention favours release. Individuals on EM usually\nhave restrictions on places and times that they can be in the community that eliminates or\nsufficiently reduces the risk that they pose to warrant release.", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 7 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-5-p8", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "EM has in the past been put forward by counsel or the person concerned as an alternative to\ndetention. However, due to the high initial and recurring costs, such proposals are rare and\nlimited to individuals with access to significant financial resources. Should such an alternative be\nproposed, hearings officers should highlight the difference between self-financed EM and the\nthose conducted by CBSA. Self-financed EM is not associated with community case\nmanagement and supervision, which the CBSA maintains is an essential component to mitigate\nrisk.\nFor additional information on alternatives to detention and EM, refer section 4.6 of ENF 34\n14.2.4 Detention and vulnerable groups\nIn preparing for the detention review, the hearings officer should review the Revised National\nRisk Assessment for Detention (NRAD) form on file to verify if the person has been identified as\nbelonging to a vulnerable group. There is a heightened need to consider ATDs when faced with\nvulnerable persons as their continued detention may cause a particular hardship.\nTherefore, alternatives to detention including less restrictive ATDs, should be duly considered\nand when hearings officers recommend continued detention for a vulnerable person, hearings\nofficers should explain to the Member why the ATD is not suitable.\nAt the hearing, the member may allow certain accommodations to ensure that such vulnerable\npersons are not disadvantaged in presenting their cases. The member may also schedule early\ndetention reviews to monitor the status of the vulnerable person to insist on a rapid progression\non the file.\nFor more information on vulnerable groups at the detention stage, refer to ENF20 Detention,\nsection 6.13 as well as Chairperson Guideline 8: ‘Procedures With Respect to Vulnerable Persons", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 8 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-5-p9", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "Appearing Before the IRB’\nMinors (under 18 years of age)\nA60 explicitly establishes the detention of a minor must be a measure of last resort, taking into\naccount other applicable grounds and criteria, including the best interests of the child (BIOC).\nMembers will place a high degree of importance on the BIOC when they adjudicate the detention\nreview.\nIn their submissions, depending on the evidence available to the hearings officer, the officer\nshould address the following as much as possible hearings officers should address:\no the child’s physical, emotional and psychological well-being;\n2022-03-03 68\no the child’s healthcare and educational needs;\no the importance of maintaining relationships and the stability of the family\nenvironment, and the possible effect on the child of disrupting those relationships\nor that stability;\no the care, protection and safety needs of the child; and\no the child’s views and preferences, provided the child is capable of forming their\nown views or expressing their preferences, taking into consideration the child’s\nage and maturity.\nThe National Directive for the Detention or Housing of Minors, sets out that:\nthe interests of a housed minor is a factor that can be taken into the decision to detain or\nmaintain detention of a parent and are to be weighed along with other mandatory factors\nunder R248\nAs well, the separation of the child from the parent can be a source of anxiety and may be a\nfactor weighing in favour of the release of the parent, in the interest of the child.\nIf a minor is detained, or housed with their detained parent, hearings officers should provide\ndetails to the member on the ATDs which were assessed by the Minister as not being suitable. In", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 9 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-5-p10", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 5", + "marginal_note": "Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "their submissions, officers should not limit themselves to stating that there was “no suitable\nalternative” and describe why the detention/housing was used “as a measure of last resort.”\n[A60].\nSee National Directive for the Detention or Housing of Minors, for more information.\nDetainees and mental health\nFor information regarding detainees and mental health issues refer to ENF 7 Ch 18.6", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Charkaoui v. Canada (MCI), [2007] 1 S.C.R. 350 at paras. 107-117.) (part 10 of 10)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-3-p1", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.3", + "marginal_note": "Making a recommendation on detention", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "14.3 Making a recommendation on detention\nScenarios\nSituation – taking into consideration the\nfactors set out in R248\nHearings officers should consider the\nfollowing:\nThe hearings officer defends the position that,\nwhile the grounds for detentions are still\npresent, the person concerned should be\nThe hearings officer should consider the\narresting officer’s notes in conjunction with the\nnotes and recommendation from the\nCommunity Liaison Officer (CLO) on whether\na deposit, guarantee and/or another alternative\nto detention would be appropriate in the\n2022-03-03 69\nreleased on conditions and/or an alternative to\ndetention (ATD) and/or a bond/guarantee\ncircumstances and make the recommendation\naccordingly. The hearings officer should\nconsider the financial situation of the person\nconcerned and/or prospective guarantor(s).\nThe hearings officer may provide submissions\non the nature and the size of the bond and/or\nconditions that should be imposed.\nThe hearings officer defends the position that\ndetention should continue.\nDisclose new evidence on developments of the\ncase at each detention review. The argument\nfor continued detention should be consistent\nwith the recommendations of the CLO and the\nDetainee Medical Needs form (if applicable).\nIn submissions, the hearings officer should\narticulate why or how alternatives to detention\nare not suitable in this particular case.\nThe hearings officer defends the position that\nthe standard of proof to support the grounds for\ndetention is no longer met, or that there is no\nneed and/or justification to continue detention.\nThe hearings officer should submit an\napplication for an early detention review and\nindicate that the Minister has no objection to\nthe release of the person concerned, thus\nrecommending release on an ATD and/or with", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.3 (Making a recommendation on detention) (part 1 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-3-p2", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.3", + "marginal_note": "Making a recommendation on detention", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "conditions.\nNote: this scenario is most frequently seen in\npersons detained on identity grounds whereby\nthe Minister becomes reasonably satisfied of\nthe person’s identity.\nWhenever possible, a recommendation by the Minister for release of the detained person should\nbe discussed with the detained person or counsel for the detained person, where represented,\nprior to the hearing so that agreement or potential disagreement on certain terms and conditions\nsought by the Minister is known ahead of time.\nWhen recommending release with conditions, the hearings officer should be satisfied that the\nguarantor, where one is being proposed, is in a position to exercise control over the movements\nof the person released, and that the person concerned will report for immigration proceedings as\nrequired.\n14.3.1 Detention review for designated foreign nationals\nPursuant to A20.1(1), the Minister of Public Safety has the authority to order the arrival in\nCanada of a group of persons to be designated as an “irregular arrival.” A foreign national who is\npart of a group whose arrival in Canada is designated by the Minister as an “irregular arrival”\nautomatically becomes a “designated foreign national” (DFN) unless he or she holds the\ndocuments required for entry, and on examination the officer is satisfied that the person is not\ninadmissible to Canada [A20.1(2)].\n2022-03-03 70\nDFNs are subject to mandatory arrest and detention and a revised detention review timeline.\nUpon designation, the CBSA must arrest and detain all DFNs who were 16 years of age or older\nat the time of the arrival, where the designated irregular arrival occurred on or after June 28\n2012.\nTimeline for scheduling of detention reviews\nThe following modified detention timeline applies to all DFNs who are 16 years or older:", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.3 (Making a recommendation on detention) (part 2 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-3-p3", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.3", + "marginal_note": "Making a recommendation on detention", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": " A57.1(1) provides that the ID must review the reasons for continued detention within 14\ndays after a DFN was detained.\nNote: This means the ID may schedule the detention review at any time from the day the\nDFN was detained to day 14 of detention.\n Pursuant to A57.1(2), subsequent detention reviews must take place after the expiry of 6\nmonths following the conclusion of the previous review.\nNote: This means that the ID must schedule the next detention review following the\nexpiry of 6 months after the previous review, and not prior to the expiry of those 6\nmonths.\nThe DFN will be present at each detention review, either in person or by w ay of video - or\nteleconference, unless they decide not to participate.\nGrounds for detention of a DFN\nIt should also be noted that new grounds for detention apply to DFNs under A58(1)(e) and\nA58(1.1). As per A58(1.1), the ID shall order the continued detention of a DFN if it is satisfied\nthat any of the grounds described in A58(1)(a), (b), (c), or (e) exist. At the initial 14 day review,\nthe ID may not consider any other factors, including the factors in R248.\nDesignation while under IRPA detention\nIf a DFN is under immigration detention at the time of a designation decision, and has had the\nreasons for detention reviewed by the IRB on at least one occasion (e.g., a 48-hour review), then\nthe individual's next review will be six months after the conclusion of the last IRB review. The\nprevious review(s) will have fulfilled the requirement for a review within 14 days of being taken\ninto detention.\nThe member of the ID may decide to restart the detention review timeline by granting the DFN a\n14-day review, even in cases where a 48-hour, seven-day, and 30-day review have already been", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.3 (Making a recommendation on detention) (part 3 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-3-p4", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.3", + "marginal_note": "Making a recommendation on detention", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "held. If the ID schedules a 14-day detention review in such a circumstance, hearings officers are\nadvised to argue that the ID does not have jurisdiction to hold a 14 -day review, while also stating\nthat they are prepared to proceed with the detention review if the ID does not agree. In such\ninstances, hearings officers should consult with NHQ for assistance.\n2022-03-03 71\nIf the ID releases a DFN from detention, depending on the case, it may be appropriate to seek\njudicial review and a stay of the release decision.\nSee the Designated Irregular Arrivals Toolkit in Atlas, for more information.", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.3 (Making a recommendation on detention) (part 4 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-4", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.4", + "marginal_note": "Outcomes of an admissibility hearing and effects on detention", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "14.4 Outcomes of an admissibility hearing and effects on detention\n14.4.1 Detained person found described at the hearing\nIf, at the conclusion of the admissibility hearing, the member of the ID finds the person described\nand issues a removal order, this will impact the case for the next detention review; the person\nwould now be detained for removal. However, the mere fact of having been found inadmissible\nby the ID does not, in isolation, strengthen the case for continued detention.\nAlthough removal is the last step in the immigration enforcement process there might be several\nimpediments to removal which would prolong detention. Hearings officers must be prepared to\nspeak to a timeline for the estimated time of continued detention, bearing in mind that any\n“estimation of anticipated future length of detention should be the proceedings as they exist at\nthe time of each monthly review and not on an anticipation of available processes, but not yet\nunderway” [Canada (Minister of Citizenship and Immigration) v. Li, 2009 FCA 85].\nSee ENF 10, Removals, for more information.\nNote: If the member of the ID releases from detention a permanent resident or foreign national\nwho is the subject of a report on inadmissibility on grounds of security (A34) which has been\nreferred to the ID, or is the subject of a removal order for inadmissibility on grounds of security\n(A34), the member of the ID is required to impose prescribed conditions on the person, set out in\nR250.1.\n14.4.2 Detained person not found described at the hearing.\nIf the member of the ID finds that the person is not inadmissible, this might negate the authority\nto detain under A55, unless the person has a pending refugee claim or is being detained on\nidentity grounds.\nIn the case of a foreign national detained on entry, A45(b) grants the Member the authority to\ngrant permanent or temporary resident status if they are satisfied that they meet the requirements\nof the IRPA. Should the Member avail themselves of that authority, this would conclude the\nexamination and terminate the authority to detain under A55(3).\n2022-03-03 72\nThe Minister can also seek recourse against a member’s decision by bringing the matter before\nthe IAD or the Federal Court. See section 13.1 for information on recourse against a positive\ndecision at an admissibility hearing.", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.4 (Outcomes of an admissibility hearing and effects on detention)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-5-p1", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.5", + "marginal_note": "Post-detention review procedures", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "14.5 Post-detention review procedures\n14.5.1 Carrying out a decision of the Immigration Division\nWhen the detention review is concluded, the hearings officer has two specific areas of\nresponsibility to ensure that the member's decision is carried out:\nReporting\n If the member of the ID ordered the continued detention of the person concerned, the\nhearings officer must take the appropriate action and annotate the file accordingly;\n If the member of the ID ordered the release of the person concerned, the hearings officer\nmust give the case file to the detentions unit for action;\n That being said, it may occur, in the course of the detention review, that statements or\ncommitments are being made by the bondsperson as the member of the ID was assessing\ntheir financial capacity and ability to comply. If the ability to pay and/or solvency is\nassessed during the detention review process, hearings officers will document the\noutcome of what was assessed and agreed to by all parties during the detention review\nusing form BSF211. The completed form will be made available to the officer processing\nthe bond, for their awareness on what transpired at the hearing. See ENF 8, Deposits and\nGuarantees, for more information.\nFeedback\nWhere time permits, the hearings office should provide the results of the detention review to the\nofficers who arrested and detained the permanent resident or the foreign national under the\nprovisions of the IRPA, as the case may be. The hearings officers should provide feedback to\nthose involved in specific cases for training purposes, and to advise IEOs and CLOs of the\neffectiveness of their work.\n14.5.2 Applications for stay of release and leave for judicial review", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.5 (Post-detention review procedures) (part 1 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-5-p2", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.5", + "marginal_note": "Post-detention review procedures", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "Where hearings officers are of the opinion that there are, or may be, grounds to seek judicial\nreview of the member’s decision, hearings officers should consult with their manager .If the\nmanager concurs, the hearings officer should immediately contact the Regional Justice Liaison\nOfficer (JLO) to seek an emergency stay of the ID’s release order, pending an application for\nleave for a judicial review of the decision. If the JLO is not available, the hearings officer may\nsend the report directly to CBSA litigation management unit (LMU) at National Headquarters :\n2022-03-03 73\nlitigation-management@cbsa-asfc.gc.ca. The hearings officer or the hearings advisor should\nalso request an urgent copy of the transcript of the detention review with the IRB registrar.\nThe report is to be transmitted by email to the LMU. It is imperative that a copy of the\ntranscript, when received, is forwarded as expeditiously as possible. This will allow sufficient\ntime for review and the necessary consultations. This will also allow the LMU to give\nappropriate instructions to the Department of Justice (DOJ) and to give the DOJ time to prepare\napplications to seek leave for judicial review.\nNote: Officers should keep in mind that whey they email information that is ‘Protected B’ they\nare only permitted to do so using PKI encryption. If the case contains information with a higher\nclassification level, refer to the CBSA Security volume for guidance on alternative secure\ncommunications systems and coordinate with LMU.\nSee ENF 9, Judicial Review, for more information.\n2022-03-03 74\nAppendix A List of Cases / Rules of Evidence\nReferences\nCanadian courts\n Federal Court of Canada, Trial Division (FCTD or FC)\n Federal Court of Canada, Appeal Division (Federal Court of Appeal) (FCA)", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.5 (Post-detention review procedures) (part 2 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-5-p3", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.5", + "marginal_note": "Post-detention review procedures", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": " Supreme Court of Canada (SCC)\nList of cases cited throughout this manual chapter\n Almrei (Re), 2009 FC 3.\n Bowen v. Canada (Minister of Employment and Immigration) , [1984] 2 F.C. 507.\n Brannson v. Canada (Minister of Employment and Immigration) , [1980] F.C.J. No. 247.\n Brown v. Canada (Citizenship and Immigration) 2020 FCA 130\n Bruzzese v. Canada (Minister of Public Safety and Emergency Preparedness) , 2014 FC\n230.\n Browne v. Dunn, (1893) 6 R. 67 (H.L.).\n Canada (Citizenship and Immigration) v . B046, 2011 FC 877\n Canada (Minister of Employment and Immigration) v. Dan-Ash, [1988] F.C.J. No. 571.\n Canada (Minister of Public Safety and Emergency Preparedness) v. Ismail, 2014 FC 390.\n Canada (Minister of Citizenship and Immigration) v. Bains , 1999 FCJ No. 11.\n Canada (Minister of Citizenship and Immigration) v. Fox , 2009 FC 987.\n Canada (Minister of Citizenship and Immigration) v. Kamail, 2002 FCT 381.\n Canada (Minister of Citizenship and Immigration) v. Ke\n Canada (Minister of Citizenship and Immigration) v. Li, 2009 FCA 85.\n Canada (Minister of Citizenship and Immigration) v. Nkunzimana, 2005 FC 29.\n Canada (Minister of Citizenship and Immigration) v. Sittampalam , 2004 FC 1756.\n Canada (Minister of Citizenship and Immigration) v. Thanabalasingham , 2004 FCA 4.\n Canada (Citizenship and Immigration) v. X, 2010 FC 112\n Chana v. Canada (Minister of Manpower and Immigration) , [1977] 2 F.C. 496.\n Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9.\n Chiau v. Canada (Minister of Citizenship & Immigration), [2001] 2 F.C. 297.\n Chhokar v. Canada (Minister of Employment and Immigration), F.C.J. No. 173.\n Chung v. Canada (Citizenship and Immigration) , 2014 FC 16.\n Edmond v. Canada (Minister of Citizenship and Immigration ), [2012] FC 674", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.5 (Post-detention review procedures) (part 3 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-5-p4", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.5", + "marginal_note": "Post-detention review procedures", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": " Gervasoni v. Canada (Minister of Citizenship and Immigration) , [1995] 3 F.C. 189.\n Green v. Canada (Minister of Employment and Immigration) , 1983 F.C.J. No. 142.\n Hill v. Canada (Minister of Employment and Immigration) , [1987] F.C.J. No. 47.\n Ioannidis v. Canada (Minister of Employment and Immigration) , [1983] 1 F. C. 369.\n Jiminez-Perez v. Canada (Minister of Employment and Immigration) , 1983 1 F.C. 163.\n Kamail v. Canada (Minister of Citizenship and Immigration) , 2002 FCT 381.\n Kidane v. Canada (Minister of Citizenship and Immigration) , 1997 F.C.J. No. 990.\n Koutsouveli v. Canada (Minister of Employment and Immigration), 1988 F.C.J. No.133.\n2022-03-03 75\n Li. v. Canada (Minister of Citizenship and Immigration) , [1997] 1 F.C. 235.\n Louhisdon v. Canada (Employment and Immigration Canada) , 1978 2 FC 589.\n Martineau v. Canada (Minister of National Reve nue – M.N.R.), 2004 SCC 81.\n Canada (Minister of Employment and Immigration) v. Widmont, 1984 2 F.C. 274.\n Mugasera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40.\n Murray v. Canada (Minister of Employment and Immigration) , 1979 1 F.C. 518.\n Pacific Press Ltd. v. Canada (Minister of Employment and Immigration) , [1991] 2 F.C.\n327.\n Park v. Canada (Citizenship and Immigration) , 2010 FC 782.\n Patel v. Canada (Citizenship and Immigration), 2007 FC 470.\n Piber v. Canada (Citizenship and Immigration) , 2001 FCT 769\n Poshteh v. Canada (Minister of Citizenship and Immigration) , [2005] 3 F.C.R. 511.\n Prassad v. Canada (Minister of Employment and Immigration), 1989 1 S.C.R. 560.\n R. v. Mohan, [1994] 2 S.C.R. 9.\n R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272.\n Sabour v. Canada (Minister of Citizenship and Immigration) , [2000] F.C.J. No. 1615.", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.5 (Post-detention review procedures) (part 4 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14-5-p5", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14.5", + "marginal_note": "Post-detention review procedures", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": " Sahin v. Canada (Minister of Citizenship and Immigration) , [1995] 1 F.C. 214.\n Sivakumar v. Canada (Minister of Employment and Immigration) , [1994] 1 F.C. 433.\n Suresh v Canada MPSEP 2017 FC 28\n Uppal v. Canada (Minister of Citizenship and Immigration ), 2006 FC 338\nRules of evidence\nA173(c) sets out that the Immigration Division is not bound by the strict rules of evidence that\nare found in judicial proceedings. However, it must observe the principles of procedural fairness.", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14.5 (Post-detention review procedures) (part 5 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-1", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 1", + "marginal_note": "The admissibility of evidence", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "1. The admissibility of evidence\nIn judicial proceedings, strict rules govern the admissibility of evidence. The two basic rules are\n the best evidence rule, which requires that the evidence presented be the best evidence\navailable (this means that secondary evidence should not be introduced unless primary\nevidence is unavailable); R v Wood, 2008 FCA 302\nthe rule against hearsay evidence. Hearsay evidence is testimony given by a witness, offered as\nproof of the truth of the matters contained in the testimony, which is not the personal knowledge\nof the witness but rather the mere repetition of what the witness heard others say. Such evidence\nis very weak, since the real author of the statement put in evidence is not available for cross-\nexamination and therefore the credibility of the statement and its author cannot be tested; R v\nO’Brien, [1978] 1 SCR 591, 76 DLR (3d) 513.I\n\nAt an admissibility hearing, any evidence considered by the member of the ID to be relevant,\ncredible, and trustworthy in the circumstances of the case is admissible. In the examination of the\nevidence presented, the member of the ID will determine its weight or value, taking into\n2022-03-03 76\nconsideration all relevant information. Hearings officers are to follow the best evidence rule\nwhen they are able to. However, there will be occasions when a statutory declaration or a note to\nfile from an officer will suffice as a reliable substitute for more direct evidence under the\ncircumstances. Generally, members of the ID will accept hearsay evidence, but they will attach\nvery little significance to it if contradictory evidence is offered by the other party.", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 1 (The admissibility of evidence)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-2", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 2", + "marginal_note": "The relevance of evidence", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "2. The relevance of evidence\nThe member of the ID will normally consider relevant any evidence that reasonably tends to\nprove the fact in dispute, that is:\n evidence which places a fact in a context which tends to show its relevance;\n evidence relating to credibility; and\n evidence that proves a precondition for the presentation of a fact (e.g., evidence that a\nstatement was made freely and voluntarily).", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (The relevance of evidence)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-3", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 3", + "marginal_note": "The weight of evidence", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "3. The weight of evidence\nThe weight of evidence is its probative value, or importance, and the extent to which it\nestablishes a fact before the tribunal. The stronger the inference that can be derived from the\nevidence, the higher the probative value. A number of pieces of evidence, each of low probative\nvalue, may be more significant when considered in the overall context of the admissibility\nhearing than a single piece of evidence that seemingly has very high probative value.\nAdmissibility of evidence and probative value are two different matters. A document of low\nprobative value may still be admissible into evidence if it is relevant.\nSecondary or hearsay evidence may not have the same weight when better evidence is available.\nFor example, if the hearings officer uses a statutory declaration made by an officer who is\nreasonably available to testify, the hearings officer is depriving the other party of the opportunity\nto cross-examine and the hearings officer detracts from the quality of the evidence.\nAs a general rule, the hearings officer should attempt to secure the best evidence whenever\npossible. When this is not possible, would be prohibitively expensive or would cause major\nadministrative difficulties, the hearings officer may ask the member of the ID to accept\nsecondary evidence.\nWhen making a decision to rely on primary or secondary evidence, the hearings officer should\ntake into account factors such as the importance of other aspects of the case, and the need to\navoid lengthy detention while waiting for stronger evidence. The hearings officer should also\nkeep in mind that the weaker the evidence in relation to evidence presented by the opposing\nparty, the greater the possibility that the member of the ID will admit the person concerned to\nCanada.\nThe main points to consider when assessing available evidence are as follows:\n2022-03-03 77\n Is this evidence relevant?\n What facts are established or can be deduced from this evidence?\n What is its weight?\nTypes of evidence", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3 (The weight of evidence)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-1", @@ -4150,12 +4510,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1. Direct evidence\nDirect evidence is a means of proof which tends to show the existence of a fact in question without the\nintervention of the proof of any other fact. This includes testimony by witnesses who saw the act being\ndone or heard the words spoken to prove a fact that is at issue.\nDirect evidence may also consist of documents or objects introduced through the oral t estimony of\nwitnesses.\nThe hearings officer should always introduce documents or objects into evidence by first establishing a\nlink between the document or the object and the witness, and second, by establishing the relevance of\nthe document or object to the fact the hearings officer wishes to prove.\nFor example, if the hearings officer wishes to introduce a passport or other documents claimed to belong\nto the subject of the admissibility hearing, the hearings officer should ask the witness to identify the\ndocument(s) for the member of the ID. If the witness is unable or refuses to identify the document, the\nhearings officer may need to call the officer who seized the document(s) as a witness to establish the link\nbetween the document(s) and the subject of the admissibility hearing.\nAfter establishing the link, the hearings officer may then ask questions to establish the relevance of the\ndocument in relation to the facts the hearings officer intends to prove.", + "text": "1. Direct evidence\nDirect evidence is a means of proof which tends to show the existence of a fact in question\nwithout the intervention of the proof of any other fact. This includes testimony by witnesses who\nsaw the act being done or heard the words spoken to prove a fact that is at issue.\nDirect evidence may also consist of documents or objects introduced through the oral testimony\nof witnesses.\nThe hearings officer should always introduce documents or objects into evidence by first\nestablishing a link between the document or the object and the witness, and second, by\nestablishing the relevance of the document or object to the fact the hearings officer wishes to\nprove.\nFor example, if the hearings officer wishes to introduce a passport or other documents claimed to\nbelong to the subject of the admissibility hearing, the hearings officer should ask the witness to\nidentify the document(s) for the member of the ID. If the witness is unable or refuses to identify\nthe document, the hearings officer may need to call the officer who seized the document(s) as a\nwitness to establish the link between the document(s) and the subject of the admissibility\nhearing.\nAfter establishing the link, the hearings officer may then ask questions to establish the relevance\nof the document in relation to the facts the hearings officer intends to prove.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 1 (Direct evidence)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-2", @@ -4168,12 +4528,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2. Circumstantial evidence\nCircumstantial evidence is evidence not based on actual personal, direct knowledge or observation of the\nfacts at issue. It is indirect evidence, the sum of which can lead a member of the ID to conclude that a fact\nwhich could not be established by direct evidence, has been established by inference.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 51\nFor example, circumstantial evidence may consist of evidence relating to motive, opportunity, intent,\ncharacter or previous activities. Such circumstances taken individually may not carry enough weight to\npersuade the member of the ID of an allegation; however, when argued in combination, they may be\nsufficient to tip the balance of probabilities.", + "text": "2. Circumstantial evidence\nCircumstantial evidence is evidence not based on actual personal, direct knowledge or\nobservation of the facts at issue. It is indirect evidence, the sum of which can lead a member of\nthe ID to conclude that a fact which could not be established by direct evidence, has been\nestablished by inference.\nFor example, circumstantial evidence may consist of evidence relating to motive, opportunity,\nintent, character or previous activities. Such circumstances taken individually may not carry\nenough weight to persuade the member of the ID of an allegation; however, when argued in\ncombination, they may be sufficient to tip the balance of probabilities.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 2 (Circumstantial evidence)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3", @@ -4186,12 +4546,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3. Presumption\nSince in many cases it is almost impossible to prove certain facts, the rules of evidence provide that\ncertain facts may be presumed to be true. Two types of presumption may apply:\n deductions of fact that are deductions or conclusions that can be drawn from the circumstantial\nevidence submitted; and\n presumptions under the Act.", + "text": "3. Presumption\nSince in many cases it is almost impossible to prove certain facts, the rules of evidence provide\nthat certain facts may be presumed to be true. Two types of presumption may apply:\n2022-03-03 78\n deductions of fact that are deductions or conclusions that can be drawn from the\ncircumstantial evidence submitted; and\n presumptions under IRPA.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 3 (Presumption)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-4", @@ -4204,12 +4564,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "4. Judicial notice\nJudicial notice is the recognition by a judicial tribunal that a fact is true, without its having to be proven, on\nthe basis that this fact is known to the tribunal.\nMembers of the ID may take judicial notice of facts generally known to everyone. For example, a member\nof the ID may take judicial notice of any fact relating to the member’s profession, such as the duties of a\nmember of the ID, the IRPA and its Regulations. Members of the ID may not take judicial notice of a fact\nknown as a result of purely personal knowledge.\nDocumentary evidence and testimony", + "text": "4. Judicial notice\nJudicial notice is the recognition by a judicial tribunal that a fact is true, without its having to be\nproven, on the basis that the fact is known to the tribunal because it is not the subject of dispute\namong reasonable people or because the fact can be demonstrated to be accurate through\nchecking readily accessible sources.\nMembers of the ID may take judicial notice of facts generally known to everyone. For example,\na member of the ID may take judicial notice of any fact relating to the member’s profession, such\nas the duties of a member of the ID, the IRPA and its Regulations. Members of the ID may not\ntake judicial notice of a fact known as a result of purely personal knowledge.\nDocumentary evidence and testimony", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 4 (Judicial notice)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-1", @@ -4222,12 +4582,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1. Documentary evidence\nHearings officers will often use documents to establish allegations. If used appropriately, presenting\ndocuments in evidence can speed up the process. Generally speaking, a member of the ID may accept\ndocumentary evidence if it is admissible (relevant, credible and trustworthy), subject to its probative value.\nOfficial documents (e.g., passports and certified court documents) generally have more weight than\nunofficial documents (e.g. letters and uncertified copies of documents).\nOriginal documents usually have more weight than copies, unless the copy is a duplicate copy (a signed\ncopy of the original) or a certified true copy produced or issued by a competent authority. The best\nevidence rule dictates that the hearings officer should submit the original of a document. If this is not\npossible, secondary evidence becomes the best evidence. Hearings officers should verify that the\ndocuments they wish to introduce at an admissibility hearing refer to the person con cerned.", + "text": "1. Documentary evidence\nHearings officers will often use documents to establish allegations. If used appropriately,\npresenting documents in evidence can speed up the process. Generally speaking, a member of the\nID may accept documentary evidence if it is admissible (relevant, credible or trustworthy),\nsubject to its probative value.\nOfficial documents (e.g., passports and certified court documents) generally have more weight\nthan unofficial documents (e.g. letters and uncertified copies of documents).\nOriginal documents usually have more weight than copies, unless the copy is a duplicate copy (a\nsigned copy of the original) or a certified true copy produced or issued by a competent authority.\nThe best evidence rule dictates that the hearings officer should submit the original of a\ndocument. If this is not possible, secondary evidence becomes the best evidence. Hearings\nofficers should verify that the documents they wish to introduce at an admissibility hearing refer\nto the person concerned.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 1 (Documentary evidence)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-2", @@ -4240,12 +4600,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2. Statutory declarations\nHearings officers may introduce statutory declarations into evidence. A member of the ID must accept\nstatutory declarations at an admissibility hearing because they are equivalent to testimony under oath\n[Canada Evidence Act, s. 14(2)]. However, a statutory declaration may be of less probative value than the\noral testimony of the author because the credibility of the author of the statutory declaration cannot be\ntested by cross-examination.\nHearings officers may use a statutory declaration when the declarant's testimony could not likely be\ntested on cross-examination (for example, the declaration of a person concerning a recorded fact such as\nthe date of admission to Canada).\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 52", + "text": "2. Statutory declarations\nHearings officers may introduce statutory declarations into evidence that are relevant to the\nproceedings. A member of the ID accepts statutory declarations at an admissibility hearing\nbecause they are equivalent to testimony under oath [Canada Evidence Act , s. 14(2)]. However, a\nstatutory declaration may be of less probative value than the oral testimony of the author when\nthe credibility of the author of the statutory declaration cannot be tested by cross-examination.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 2 (Statutory declarations)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3", @@ -4258,12 +4618,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3. Testimony\nThe best form of testimony is that given by a witness relating facts of which the witness has personal\nknowledge. Positive evidence (e.g., facts that the witness actually observed or knows) carries more\nweight than negative evidence (that which was not seen or is unknown). Direct evidence is preferable to\ncircumstantial evidence, and opinion evidence has value only if an expert gives it. Hearsay evidence,\nwhile admissible (if relevant), carries little or no weight.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 53\nAppendix B Additional Guidance and Jurisprudence", + "text": "3. Testimony\n2022-03-03 79\nThe best form of testimony is that given by a witness relating facts of which the witness has\npersonal knowledge. Positive evidence (e.g., facts that the witness actually observed or knows)\ncarries more weight than negative evidence (that which was not seen or is unknown). Direct\nevidence is preferable to circumstantial evidence, and opinion evidence has value only if an\nexpert gives it. Hearsay evidence, while admissible (if relevant), usually carries little or no\nweight when countered by direct evidence.\n2022-03-03 80\nAppendix B Additional Guidance and\nJurisprudence", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 3 (Testimony)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-1", @@ -4276,12 +4636,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "1 Adjournments to seek a temporary resident permit\nThe person concerned or that person's counsel may request an adjournment to seek a temporary\nresident permit (TRP). The hearings officer should oppose such adjournment requests unless satisfied\nthat the person concerned deserves such a permit, or the hearings officer has received notification that\nthe Minister of Public Safety and Emergency Preparedness wishes to review the case. Thus, in assessing\nwhether in the opinion of the hearings officer the person deserves a TRP, the case file should be\nreviewed carefully to see whether any previous reviews have been conducted.\nIn Prassad v. Canada (Minister of Employment and Immigration), the Supreme Court upheld the\nadjudicator’s (now member of the Immigration Division’s) refusal to adjourn because the person\nconcerned had from June 6, 1984 until November 21, 1984, the date when the hearing was scheduled to\nproceed, to make the application, but a letter was not sent to the Minister's office until November 16,\n1984. The judge notes in his reasons:\n\"The logic of the appellant's submission would thus require that the [member of the Immigration Division]\nadjourn the [admissibility hearing] whenever the result of that [hearing] has the potential to inhibit the\nsubject of that [hearing] from pursuing an alternative remedy. This would amount to reading into the\nlegislation an automatic stay. [I]t is untenable to hinder the [Immigration Division] process under the\nImmigration Act, 1976 by laying down such an inflexible rule for the conduct of an [a dmissibility hearing] \"\n(paragraph 24)\nSee also:\n Canada (Minister of Employment and Immigration) v. Widmont.\n Louhisdon v. Canada (Minister of Employment and Immigration).\n Murray v. Canada (Minister of Employment and Immigration).", + "text": "1 Adjournments to seek a temporary resident permit\nThe person concerned or that person's counsel may request an adjournment to seek a temporary\nresident permit (TRP). The hearings officer should oppose such adjournment requests unless\nsatisfied that the person concerned deserves such a permit, or the hearings officer has received\nnotification that the Minister of PSEP wishes to review the application for a TRP. Thus, in\nassessing whether in the opinion of the hearings officer the person deserves a TRP, the case file\nshould be reviewed carefully to see whether any previous reviews have been conducted.\nIn Prassad v. Canada (Minister of Employment and Immigration) , the Supreme Court upheld the\nadjudicator’s (now member of the Immigration Division’s) refusal to adjourn because the person\nconcerned had from the date of their removal (June 6, 1984) until the date when the hearing was\nscheduled to proceed (November 21, 1984) to make the application for a Minister’s permit\n(former version of a TRP), but a letter (the application) was not sent to the Minister's office until\nNovember 16, 1984. The judge notes in his reasons:\n\"The logic of the appellant's submission would thus require that the [member of the Immigration\nDivision] adjourn the [admissibility hearing] whenever the result of that [hearing] has the\npotential to inhibit the subject of that [hearing] from pursuing an alternative remedy. This would\namount to reading into the legislation an automatic stay. [I]t is untenable to hinder the\n[Immigration Division] process under the Immigration Act, 1976 by laying down such an\ninflexible rule for the conduct of an [admissibility hearing] \" (paragraph 24)\nSee also:\n Canada (Minister of Employment and Immigration) v. Widmont.\n Louhisdon v. Canada (Minister of Employment and Immigration).\n Murray v. Canada (Minister of Employment and Immigration).", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 1 (Adjournments to seek a temporary resident permit)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-2-p1", @@ -4294,12 +4654,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "2 Adjournments for humanitarian considerations\nThe person concerned or that person's counsel may request an adjournment to examine humanitarian\nconsiderations:\nJiminez-Perez v. Canada (Minister of Employment and Immigration); Green v. Canada (Minister of\nEmployment and Immigration); Koutsouveli v. Canada (Minister of Employment and Immigration);\nChhokar v. Canada (Minister of Employment and Immigration).\nIn Green v. Canada (Minister of Employment and Immigration), the Federal Court of Appeal noted that\nthe Jiminez-Perez case did not require that the adjudicator (now member of the Immigration Division) who\nreceives an application pursuant to Section A115(2) (now A25(1)) during an inquiry (now admissibility\nhearing) adjourn immediately until the Minister or his delegate renders a deci sion on the application. The\nmember of the Immigration Division is required to proceed with the hearing as expeditiously as is possible\nunder the circumstances of each individual case. Likewise the power of the member of the Immigration\nDivision to adjourn is restricted to adjournments \"for the purpose of ensuring a full and proper\nadmissibility hearing.\"\nSee also:\n Chhokar v. Canada (Minister of Employment and Immigration),\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 54\n In Koutsouveli v. Canada (Minister of Employment and Immigration) (paragraph 13), the Federal\nCourt, Trial Division, noted that an application for an exemption submitted under section A115(2)\n[now A25(1)] in no way permits the hearing under A27 (now A44) to be stayed.\nIn Canada (Minister of Citizenship and Immigration) v. Fox, the Federal Court noted that the Immigration\nDivision did not have any discretion to consider humanitarian and compassionate factors at the", + "text": "2 Adjournments for humanitarian considerations\nThe person concerned or that person's counsel may request an adjournment to examine\nhumanitarian considerations:\nJiminez-Perez v. Canada (Minister of Employment and Immigration) ; Green v. Canada (Minister\nof Employment and Immigration); Koutsouveli v. Canada (Minister of Employment and\nImmigration); Chhokar v. Canada (Minister of Employment and Immigration) .\nIn Green v. Canada (Minister of Employment and Immigration), , the Federal Court of Appeal\nnoted that the Jiminez-Perez case did not require that the adjudicator (now Member of the ID)\n2022-03-03 81\nwho receives an application pursuant to A115(2) (now A25(1)) during an inquiry (now\nadmissibility hearing) adjourn immediately until the Minister or his delegate renders a decision\non the application. The member of the ID is required to proceed with the hearing as\nexpeditiously as is possible under the circumstances of each individual case. Likewise the power\nof the member of the Immigration Division to adjourn is restricted to adjournments \"for the\npurpose of ensuring a full and proper admissibility hearing.\"\nSee also:\n Chhokar v. Canada (Minister of Employment and Immigration),\n In Koutsouveli v. Canada (Minister of Employment and Immigration) (paragraph 13), the\nFederal Court, Trial Division, noted that an application for an exemption submitted under\nsection A115(2) [now A25(1)] in no way permits the hearing under A27 (now A44) to be\nstayed.\nIn Canada (Minister of Citizenship and Immigration) v. Fox , the Federal Court noted that the\nImmigration Division did not have any discretion to consider humanitarian and compassionate\nfactors at the admissibility hearing (paragraph 42). The Immigration Division’s “decision to", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 2 (Adjournments for humanitarian considerations) (part 1 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-2-p2", @@ -4312,12 +4672,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "admissibility hearing (paragraph 42). The Immigration Division’s “decision to grant the adjournment was\ndriven by its desire to allow the respondent to remain with his family and to benefit from his day parole”\n(paragraph 41).\nIn this case, the member granted the respondent a 13-month adjournment of his admissibility hearing for\na section A36(1)(a) allegation of IRPA.\n [39] Once a section 44 Report is referred to the Immigration Division for an admissibility hearing,\npursuant to subsection 162(2) and paragraph 173(b) of the IRPA, the admissibility hearing must\nbe heard as quickly as the circumstances and the considerations of procedural fairness and\nnatural justice permit and without delay. The Tribunal’s function at the admissibility hearing is\nexclusively to find facts. If the member finds the person is a person described in paragraph\n36(1)(a) of the IRPA, then pursuant to paragraph 45(d) of the IRPA and paragraph 229(1)(c) of\nthe Immigration and Refugee Protection Regulations, SOR/2002-227, the Tribunal must issue a\ndeportation order against the person.", + "text": "grant the adjournment was driven by its desire to allow the respondent to remain with his family\nand to benefit from his day parole” (paragraph 41).\nIn Fox, the member of the ID granted the respondent a 13-month adjournment of his\nadmissibility hearing for an A36(1)(a) allegation of IRPA. The Federal Court overturned that\ndecision and said the following:\n [39] Once a section 44 Report is referred to the Immigration Division for an admissibility\nhearing, pursuant to subsection 162(2) and paragraph 173(b) of the IRPA, the\nadmissibility hearing must be heard as quickly as the circumstances and the\nconsiderations of procedural fairness and natural justice permit and without delay. The\nTribunal’s function at the admissibility hearing is exclusively to find facts. If the member\nfinds the person is a person described in paragraph 36(1)(a) of the IRPA, then pursuant to\nparagraph 45(d) of the IRPA and paragraph 229(1)(c) of the Immigration and Refugee\nProtection Regulations, the Tribunal must issue a deportation order against the person.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 2 (Adjournments for humanitarian considerations) (part 2 of 2)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-3", @@ -4330,12 +4690,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "3 Adjournments for additional evidence or arguments\nThe hearings officer, the person concerned, or counsel may request an adjournment to obtain additional\nevidence or to prepare a legal or constitutional argument or submission.\nUnder Section 57 of the Federal Court Act, clients or their counsel must give the Attorney General of\nCanada and each of the ten provinces ten days' notice of their intention to raise a constitutional question.", + "text": "3 Adjournments for additional evidence or arguments\nThe hearings officer, the person concerned, or counsel may request an adjournment to obtain\nadditional evidence or to prepare a legal or constitutional argument or submission.\nRule 47 of the ID rules sets out the modalities of bringing forward a constitutional question, and\nthe contents of said notice. Also, Rule 47(4) imposes that, at a minimum, a 10-day notice be\nprovided to all parties prior to a constitutional being made.\n2022-03-03 82", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 3 (Adjournments for additional evidence or arguments)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-4", @@ -4348,12 +4708,12 @@ "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "4 Adjournments for a change of venue\nThe member of the ID may grant an adjournment to allow for a change of venue, if the member decides\nthat such a change is necessary for holding a full and proper admissibility hearing. The member of the ID\nwill hear from both parties before making a decision. For further information see the Immigration Division\nRules, rule 42.", + "text": "4 Adjournments for a change of venue\nThe member of the ID may grant an adjournment to allow for a change of venue, if the member\ndecides that such a change is necessary for holding a full and proper admissibility hearing. The\nmember of the ID will hear from both parties before making a decision. For further information\nsee the Immigration Division Rules, Rule 42.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 4 (Adjournments for a change of venue)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-5-p1", @@ -4362,16 +4722,16 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 5", - "marginal_note": "Adjournments in an admissibility hearing pending a ministerial relief", + "marginal_note": "Adjournments in an admissibility hearing pending a ministerial relief application", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "5 Adjournments in an admissibility hearing pending a ministerial relief\napplication\nA person concerned who is inadmissible under A34(1) A35(1) and A37(1), except a person who has\ncommitted or was complicit in human rights violations as described in A35(1), can submit a requ est for\nrelief to the Minister. An applicant bears the onus of satisfying the Minister that his/her presence in\nCanada would not be contrary to the national interest [A42.1(1)].\nIn Poshteh v. Canada (Minister of Citizenship and Immigration) (paragraph 10), dated April 8, 2005, the\nFederal Court of Appeal ruled that there is no temporal aspect to A34(2), and by implication, to A35(2), to\nA37(2) [now A42.1(1)]. Thus, the person concerned can apply for ministerial relief, at any time, even after\na finding of inadmissibility.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 55\nFollowing the legislative change to consolidate ministerial relief into one section of IRPA, namely\nsubsection 42.1(1), Poshteh remains relevant.\nThe hearings officer should oppose applications for adjournment of an admissibility hearing b ased on a\npending ministerial relief application.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 56\nAppendix C Manager’s approval to appear\nFoss ID:\nID file number:\nMANAGER’S APPROVAL\nMANAGER’S APPROVAL for Hearings Officer to appear in person at A36(1)( a) admissibility hearing due\nto exceptional circumstances\nRequested by _________________________, Hearings Officer/Hearings Advisor.\nHearings Officer recommendation to Manager to appear in person in exceptional circumstances for\nA36(1)(a) admissibility hearing scheduled on __________________________ _ based on the following\nexception(s):\n ☐ Jurisdictional arguments", + "text": "5 Adjournments in an admissibility hearing pending a ministerial relief application\nA person concerned who is inadmissible under A34(1) A35(1) (b) and (c) or A37(1), except a\nperson who has committed or was complicit in human rights violations as described in A35(1),\ncan submit a request for relief to the Minister. An applicant bears the onus of satisfying the\nMinister that his/her presence in Canada would not be contrary to the national interest\n[A42.1(1)].\nR24.1 (1) sets out that a person cannot apply for ministerial relief until a removal order has been\nissued against them or they have been refused a permanent or temporary residence visa\napplication, on the basis of a determination of inadmissibility under section 34, paragraph\n35(1)(b) or (c) or subsection 37(1) of IRPA.\nConsequently, the hearings officer should oppose applications for adjournment of an\nadmissibility hearing based on an intention to file ministerial relief application, which cannot\noccur until the person is found described at the conclusion of said admissibility hearing.\n2022-03-03 83\nAppendix C Manager’s approval to appear\nUnique client identifier (UCI):\nImmigration Division file number:\nMANAGER’S APPROVAL\nMANAGER’S APPROVAL for a hearings officer to appear in person at A36(1)(a) admissibility\nhearing due to exceptional circumstances\nRequested by _________________________, hearings officer/hearings advisor.\nHearings officer recommendation to manager, to appear in person in exceptional circumstances\nfor A36(1)(a) admissibility hearing scheduled on ___________________________ based on the\nfollowing exception(s):\n ☐ Jurisdictional arguments\n ☐ Constitutional challenges are being argued and the issue has not previously been addressed by", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 5 (Adjournments in an admissibility hearing pending a ministerial relief) (part 1 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Adjournments in an admissibility hearing pending a ministerial relief application) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-5-p2", @@ -4380,16 +4740,16 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 5", - "marginal_note": "Adjournments in an admissibility hearing pending a ministerial relief", + "marginal_note": "Adjournments in an admissibility hearing pending a ministerial relief application", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": " ☐ Constitutional challenges are being argued and the issue has not previously been addressed\nby the higher court enabling the Minister to make written submissions.\n ☐ The PC is detained on immigration hold and the ID combines the admissibility hearing and the\ndetention review on the same day.\nJustification:\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n Manager approves ☐\n Manager does not approve ☐\nJustification:\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\nManager name ____________________________ Date _______________________________\nSignature________________________________\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 57\nAppendix D Application Pursuant to Rule 38\nFoss ID:\nID file number:\nIMMIGRATION AND REFUGEE BOARD\nIMMIGRATION DIVISION\nBETWEEN:\nThe Minister of Citizenship and Immigration\nApplicant\nand\nName of Person concerned\nRespondent\nAPPLICATION", + "text": "the higher court enabling the Minister to make written submissions.\n ☐ The PC is detained on immigration hold and the ID combines the admissibility hearing and the\ndetention review on the same day.\nJustification:\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________ ________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n Manager approves ☐\n Manager does not approve ☐\nJustification:\n______________________________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\n______________________ ________________________________________________________\n______________________________________________________________________________\n______________________________________________________________________________\nManager’s name _________________________ ___ Date _____________________________\nSignature________________________________\n2022-03-03 84\nAppendix D Template for an Application to\nAppear for an admissibility hearing in\nwriting only Pursuant to Rule 38\nUnique client identifier (UCI):\nImmigration Division file number:\nIMMIGRATION AND REFUGEE BOARD\nIMMIGRATION DIVISION\nBETWEEN:\nThe Minister of Citizenship and Immigration\nApplicant\nand\nName of Person concerned\nRespondent\nAPPLICATION\nPursuant to Rule 38 of IRPA Immigration Division Rules\nIn the matter of an Admissibility Hearing pursuant to subsection 44(2) of the Immigration", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 5 (Adjournments in an admissibility hearing pending a ministerial relief) (part 2 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Adjournments in an admissibility hearing pending a ministerial relief application) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-3-5-p3", @@ -4398,142 +4758,304 @@ "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", "section": "ENF 3 s. 5", - "marginal_note": "Adjournments in an admissibility hearing pending a ministerial relief", + "marginal_note": "Adjournments in an admissibility hearing pending a ministerial relief application", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "Pursuant to Rule 38 of IRPA Immigration Division Rules\nIn the matter of an Admissibility Hearing pursuant to s. 44(2) of the Immigration and Refugee\nProtection Act (“Act”) between Name of Person Concerned and the Minister of Citizenship and\nImmigration, the Minister brings an Application, pursuant to s. 38 of the Immigration Division\nRules, between the Minister (“Applicant”) and Name of Person Concerned (“Respondent”)\nTAKE NOTICE that the Applicant applies for an ORDER by the Division to release the App licant from any\nobligation to appear or present evidence in person including any obligation under rules 42(3), 43(3) and\n48 of the Immigration Division Rules. The Applicant wishes to participate in the hearing by the following\nwritten submissions only.\nFURTHER TAKE NOTICE that the grounds for this motion are as follows:\n1. It is the Applicant’s position that the required elements for serious criminality are as follows and\nthe inadmissibility allegation is established based solely on the evidence disclosed her ein.\no Is the person a Permanent Resident?\no Have they acquired Canadian Citizenship?\no Were they convicted of an offence in Canada under an Act of Parliament punishable by a\nmaximum term of imprisonment of at least 10 years or for which a term of imprisonment\nof more than six months has been imposed.\n2. It is the Applicant’s position that the physical presence of the Minister is not required since our\nwritten submissions below will be identical to those we would make orally at the admissibility\nhearing.\nOVERVIEW\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 58\n3. Pursuant to s. 44(2) of the Immigration and Refugee Protection Act (the \"Act\"), the Immigration", + "text": "and Refugee Protection Act (“Act”) between Name of Person Concerned and the Minister of\nImmigration, Refugees and Citizenship , the Minister brings an Application, pursuant to\nsection 38 of the Immigration Division Rules, between the Minister (“Applicant”) and\nName of Person Concerned (“Respondent”)\nTAKE NOTICE that the Applicant applies for an ORDER by the Division to release the\nApplicant from any obligation to appear or present evidence in person including any obligation\nunder Rules 42(3), 43(3) and 48 of the Immigration Division Rules. The Applicant wishes to\nparticipate in the hearing by the following written submissions only.\nFURTHER TAKE NOTICE that the grounds for this motion are as follows:", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 5 (Adjournments in an admissibility hearing pending a ministerial relief) (part 3 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (Adjournments in an admissibility hearing pending a ministerial relief application) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-5-p4", + "id": "enf-3-1", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 5", - "marginal_note": "Adjournments in an admissibility hearing pending a ministerial relief", + "section": "ENF 3 s. 1", + "marginal_note": "It is the Applicant’s position that the required elements for serious criminality are as", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "Division (ID) has jurisdiction to hear an admissibility hearing of a s.44 report referred to their\ndivision.\n4. The CBSA referred a section A44(2) report to the Immigration Division on ______________ (date\nof report) as it relates to the Respondent.\n5. It is the position of the Applicant that the Respondent is inadmissible to Canada pursuant to\nsection A36(1)(a) of the Act\n6. Pursuant to Rule 26 of the Immigration Division Rules, attached are the Applicant’s disclosure\ndocuments for the hearing, consisting of the following:\no [List evidence attached:]\no Page 1 Proof of identity\no Page 2 Proof person concerned is not a Canadian Citizen\no Page 3 Record of landing/confirmation of permanent residence\no Page # Certificate of conviction issued by the Provincial Court\n Page #. Copy of relevant section of the Criminal Code of Canada (including\ncover page of CCC and publication date)\nFACTS", + "text": "1. It is the Applicant’s position that the required elements for serious criminality are as\nfollows and the inadmissibility allegation is established based solely on the evidence\ndisclosed herein.\no Is the person a Permanent Resident?\n2022-03-03 85\no Have they acquired Canadian Citizenship?\no Are they a person registered as an Indian under the Indian Act?\no Were they convicted of an offence in Canada under an Act of Parliament\npunishable by a maximum term of imprisonment of at least 10 years or f or which\na term of imprisonment of more than six months has been imposed.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 5 (Adjournments in an admissibility hearing pending a ministerial relief) (part 4 of 4)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 1 (It is the Applicant’s position that the required elements for serious criminality are as)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-8", + "id": "enf-3-2", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 8", - "marginal_note": "On _________________ (date of landing), the Respondent became a permanent resident of", + "section": "ENF 3 s. 2", + "marginal_note": "It is the Applicant’s position that the physical presence of the Minister is not required", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "8. On _________________ (date of landing), the Respondent became a permanent resident of\nCanada. The Respondent is not a Canadian Citizen. (Refer to Applicant’s exhibit page)", + "text": "2. It is the Applicant’s position that the physical presence of the Minister is not required\nsince our written submissions below will be identical to those we would make orally at\nthe admissibility hearing.\nOVERVIEW", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 8 (On _________________ (date of landing), the Respondent became a permanent resident of)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 2 (It is the Applicant’s position that the physical presence of the Minister is not required)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-9", + "id": "enf-3-3", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 9", - "marginal_note": "The Respondent was found/pled guilty of ________________________ (name offence) and was", + "section": "ENF 3 s. 3", + "marginal_note": "Pursuant to subsection 44(2) of the Immigration and Refugee Protection Act (the \"Act\"),", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "9. The Respondent was found/pled guilty of ________________________ (name offence) and was\nconvicted on _______________________ (date of conviction). The Respondent received a\nsentence of ___________________________ (sentence received). (Refer to Applicant’s exhibit\npage)", + "text": "3. Pursuant to subsection 44(2) of the Immigration and Refugee Protection Act (the \"Act\"),\nthe Immigration Division (ID) has jurisdiction to hear an admissibility hearing in relation\nto a subsection 44 report that has been referred to the ID.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 9 (The Respondent was found/pled guilty of ________________________ (name offence) and was)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 3 (Pursuant to subsection 44(2) of the Immigration and Refugee Protection Act (the \"Act\"),)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-10", + "id": "enf-3-4", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 10", - "marginal_note": "The Criminal Code of Canada (CCC) is an Act of Parliament. An offence under section", + "section": "ENF 3 s. 4", + "marginal_note": "Pursuant to subsection 44(2) the CBSA referred a subsection A44(1) report dated", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "10. The Criminal Code of Canada (CCC) is an Act of Parliament. An offence under section\n_________________________ (name section) of the CCC is punishable by a maximum term of\nimprisonment of at least 10 years. (or ADD if receive a sentence of more than six months of an\noffence under an Act of Parliament for which a term of imprisonment of more than six months has\nbeen imposed) The Applicant submits the evidence shows that the Respondent received a\nconviction of more than six months, namely ___________________ (sentence received). (Refer\nto Applicant’s exhibit page)\n11. We submit that all elements of A36(1) have been met: the Respondent is not a Canadian Citizen\nbut is a Permanent Resident who has been convicted of an offence under an Act of Parliament,\nnamely the CCC, punishable by a maximum term of imprisonment of at least 10 years. ( OR ADD\nfor which a term of imprisonment of more than six months has been imposed).\nAPPROPRIATE STANDARD OF PROOF\n12. Pursuant to section A33 of the Act, the Applicant submits that the appr opriate standard of proof is\nreasonable grounds to believe.\nDECISION SOUGHT", + "text": "4. Pursuant to subsection 44(2) the CBSA referred a subsection A44(1) report dated\n_________ (date of report) to the Immigration Division on ______________ (date of\nreferral) as it relates to the Respondent.", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 10 (The Criminal Code of Canada (CCC) is an Act of Parliament. An offence under section)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 4 (Pursuant to subsection 44(2) the CBSA referred a subsection A44(1) report dated)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13", + "id": "enf-3-5", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13", - "marginal_note": "The Applicant requests that the Member find the Respondent described on grounds of serious", + "section": "ENF 3 s. 5", + "marginal_note": "It is the position of the Applicant that the Respondent is inadmissible to Canada pursuant", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13. The Applicant requests that the Member find the Respondent described on grounds of serious\ncriminality pursuant to section 36(1)(a) of the Act.", + "text": "5. It is the position of the Applicant that the Respondent is inadmissible to Canada pursuant\nto paragraph A36(1)(a) of the Act", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 13 (The Applicant requests that the Member find the Respondent described on grounds of serious)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 5 (It is the position of the Applicant that the Respondent is inadmissible to Canada pursuant)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-14", + "id": "enf-3-6", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 14", - "marginal_note": "Should the Board conclude that the Respondent is described, the Applicant requests that the", + "section": "ENF 3 s. 6", + "marginal_note": "Pursuant to Rule 26 of the Immigration Division Rules, attached are the Applicant’s", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "14. Should the Board conclude that the Respondent is described, the Applicant requests that the\nMember issue a deportation order pursuant to section 229(1)(c) of the Immigration and Refugee\nProtection Regulations and provide a copy of the order to the Minister by facsimile.\n15. However, if the Member determines that the report against the Respondent is not well founded,\nthe Minister respectfully requests the decision and reasons along with a CD of the proceedings\nbe sent to the Minister as soon as possible.\nENF 3 Admissibility, Hearings and Detention Review Proceedings\n2015-04-29 59\nEXCEPTIONAL CIRCUMSTANCES", + "text": "6. Pursuant to Rule 26 of the Immigration Division Rules, attached are the Applicant’s\ndisclosure documents for the hearing, consisting of the following:\no [List evidence attached:]\no Page 1 Proof of identity\no Page 2 Proof person concerned is not a Canadian Citizen\no Page 3 Record of landing/confirmation of permanent residence\no Page # Certificate of conviction issued by the Provincial Court\n Page #. Copy of relevant section of the Criminal Code of Canada\n(including cover page of CCC and publication date)\nFACTS", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", - "citation": "ENF 3, s. 14 (Should the Board conclude that the Respondent is described, the Applicant requests that the)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 6 (Pursuant to Rule 26 of the Immigration Division Rules, attached are the Applicant’s)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { - "id": "enf-3-13", + "id": "enf-3-8", "doc_type": "memorandum", "act_code": "ENF-3", "act_short": "ENF 3", "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", - "section": "ENF 3 s. 13", - "marginal_note": "The Applicant respectfully requests notification of any postponement requests regarding", + "section": "ENF 3 s. 8", + "marginal_note": "On _________________ (date of landing), the Respondent became a permanent resident", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "8. On _________________ (date of landing), the Respondent became a permanent resident\nof Canada. The Respondent is not a Canadian Citizen. (Refer to Applicant’s exhibit page)", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 8 (On _________________ (date of landing), the Respondent became a permanent resident)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-9", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 9", + "marginal_note": "The Respondent was found/pled guilty of ________________________ (name offence)", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "9. The Respondent was found/pled guilty of ________________________ (name offence)\nand was convicted on _______________________ (date of conviction). The Respondent\nreceived a sentence of ___________________________ (sentence received). (Refer to\nApplicant’s exhibit page)", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 9 (The Respondent was found/pled guilty of ________________________ (name offence))", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-10", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 10", + "marginal_note": "The ______________________ (e.g., Criminal Code of Canada (CCC)) is an Act of", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "10. The ______________________ (e.g., Criminal Code of Canada (CCC)) is an Act of\nParliament. An offence under section _________ ________________ (name section) of\nthe______ (e.g., CCC) is punishable by a maximum term of imprisonment of at least 10\nyears. (if you are not dealing with an offence punishable by a maximum term of\nimprisonment of at least 10 years but are dealing with an offence under an Act of\nParliament for which the offender received a sentence of a term of imprisonment of more\nthan six months replace the previous two sentences with the following sentence) ) The\n2022-03-03 86\nApplicant submits the evidence shows that the Respondent was sentenced to a term of\nimprisonment of more than six months, namely ___________________ (sentence\nreceived). (Refer to Applicant’s exhibit page)", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 10 (The ______________________ (e.g., Criminal Code of Canada (CCC)) is an Act of)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-11", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 11", + "marginal_note": "We submit that all elements of subsection 36(1)(a) have been met. The Respondent is not", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "11. We submit that all elements of subsection 36(1)(a) have been met. The Respondent is not\na Canadian Citizen but is a Permanent Resident. The Respondent has been convicted of\nan offence under an Act of Parliament, namely the ______ (e.g., CCC), punishable by a\nmaximum term of imprisonment of at least 10 years. (OR where applicable replace the\nlast sentence with the following sentence) The Respondent has been convicted of an\noffence under an Act of Parliament, namely the ____ (e.g., CCC) for which a term of\nimprisonment of more than six months has been imposed.\nAPPROPRIATE STANDARD OF PROOF", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 11 (We submit that all elements of subsection 36(1)(a) have been met. The Respondent is not)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-12", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 12", + "marginal_note": "Pursuant to section A33 of the Act, the Applicant submits that the appropriate standard of", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "12. Pursuant to section A33 of the Act, the Applicant submits that the appropriate standard of\nproof is reasonable grounds to believe.\nDECISION SOUGHT", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 12 (Pursuant to section A33 of the Act, the Applicant submits that the appropriate standard of)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-13", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 13", + "marginal_note": "The Applicant requests that the ember find the Respondent described on grounds of", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "13. The Applicant requests that the ember find the Respondent described on grounds of\nserious criminality pursuant to paragraph 36(1)(a) of the Act.", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 13 (The Applicant requests that the ember find the Respondent described on grounds of)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14", + "marginal_note": "Should the Board member conclude that the Respondent is described, the Applicant", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "14. Should the Board member conclude that the Respondent is described, the Applicant\nrequests that the member issue a deportation order pursuant to paragraph 229(1)(c) of the\nImmigration and Refugee Protection Regulations and provide a copy of the order to the\nMinister by facsimile.", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14 (Should the Board member conclude that the Respondent is described, the Applicant)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-15", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 15", + "marginal_note": "However, if the member determines that the report against the Respondent is not well", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "15. However, if the member determines that the report against the Respondent is not well\nfounded, the Minister respectfully requests the decision and reasons along with a CD of\nthe proceedings be sent to the Minister as soon as possible.\nEXCEPTIONAL CIRCUMSTANCES", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 15 (However, if the member determines that the report against the Respondent is not well)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-13", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 13", + "marginal_note": "The Applicant respectfully requests notification of any postponement requests regarding", "part": "Admissibility hearings and detention review proceedings", "division": "", "heading": "", - "text": "13. The Applicant respectfully requests notification of any postponement requests regarding\njurisdiction or constitutional challenges. The Applicant is cognizant that there may be applications\nby counsel or the person concerned for postponement relating to acquiring counsel or translators\netc.; the Minister would not oppose these types of postponements any longer than eight (8)\nweeks. The Applicant would however oppose any postponement requests outside the jurisdiction\nof the Immigration Division such as appeals to reduce criminal sentencing etc. [Fox v. Canada\n(Citizenship and Immigration) 2009 FCA 346]\n14. The Applicant further maintains the right to appear in person or respond in writing to issues that\nmay arise relating to the validity of the report.\nAll of which is respectfully submitted this ________ (day) day of________________ (month), _________\n(year).\nName of Hearings Officer’s address of regional office\nPhone: (area code) number\nFAX: (area code) number\nc.c.\nPerson Concerned\nCounsel of record if applicable", + "text": "13. The Applicant respectfully requests notification of any postponement requests regarding\njurisdiction or constitutional challenges. The Applicant is cognizant that there may be\napplications by counsel or the person concerned for postponement relating to acquiring\ncounsel or translators etc.; the Minister would not oppose these types of postponements\nany longer than eight (8) weeks. The Applicant would however oppose any postponement\nrequests outside the jurisdiction of the Immigration Division such as appeals to reduce\ncriminal sentencing etc. [Fox v. Canada (Citizenship and Immigration) 2009 FCA 346]", "history": "", - "last_amended": "2015-04-29", - "current_to": "2015-04-29", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", "citation": "ENF 3, s. 13 (The Applicant respectfully requests notification of any postponement requests regarding)", - "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf03-eng.pdf" + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" + }, + { + "id": "enf-3-14", + "doc_type": "memorandum", + "act_code": "ENF-3", + "act_short": "ENF 3", + "act_name": "ENF 3 — Admissibility hearings and detention review proceedings", + "section": "ENF 3 s. 14", + "marginal_note": "The Applicant further maintains the right to appear in person or respond in writing to", + "part": "Admissibility hearings and detention review proceedings", + "division": "", + "heading": "", + "text": "14. The Applicant further maintains the right to appear in person or respond in writing to\nissues that may arise relating to the validity of the 44(1) report or 44(2) referral.\nAll of which is respectfully submitted this ____ (day) day of___________ (month), _____ (year).\nName of Hearings Officer’s address of regional office\nPhone: (area code) number\nFAX: (area code) number\n2022-03-03 87\nc.c.\nPerson Concerned\nCounsel of record if applicable", + "history": "", + "last_amended": "2022-03-03", + "current_to": "2022-03-03", + "citation": "ENF 3, s. 14 (The Applicant further maintains the right to appear in person or respond in writing to)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf-3-admissibility-(en)-final.pdf" }, { "id": "enf-4-25-p1", @@ -27953,6 +28475,2256 @@ "citation": "ENF 19, s. 22 (August 2024)", "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf19-eng.pdf" }, + { + "id": "enf-20-10-1-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a short-term detention room or", + "part": "Detention", + "division": "", + "heading": "", + "text": "10.1. Procedure: Request for personal items or blankets while in a short-term detention room or\ncell.......................................................................................................................................... 42\n10.2. Procedure: suicidal and self-harmful detainee ......................................................................... 43\n10.3. In-custody death or life threatening condition ........................................................................... 44\n11. Transfer of detainees to an IHC .............................................................................................. 45\n11.1. When a detainee placement or transfer should be considered ................................................. 47\n11.2. Requirements ........................................................................................................................ 47\n11.3. Placement and transfer refusal ............................................................................................... 48\n11.4. Notification ............................................................................................................................. 49\n11.5. Transport ............................................................................................................................... 50\n12. Procedure: release by officer before the first detention review ................................................. 51\n12.1. Release: mandatory arrest and detention of a designated foreign national............................... 53\n12.2. Temporary releases ............................................................................................................... 53", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a short-term detention room or) (part 1 of 8)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-1-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a short-term detention room or", + "part": "Detention", + "division": "", + "heading": "", + "text": "Annex A – Detention Oversight Form ..................................................................................................... 54\nAnnex B – Child protection services and family centres .......................................................................... 56\nAnnex C – Provincial definitions of a minor ............................................................................................ 58\nAnnex D – Language Profile of Provincial Correctional Facilities ............................................................ 59\nAnnex E – Protocol Regarding the Death of an Individual Detained Pursuant to the Immigration and\nRefugee Protection Act ......................................................................................................... 65\n3\nUpdates to chapter - Listing by date\n2023-01-16\nSection 1: Amended Chapter description.\nSection 2: Updated definitions.\nSection 3: Added a third objective which supports CBSA’s responsibility for the enforcement of the IRPA.\nSection 4.1: Changed title to Authority to arrest and detain a person.\nSection 4.3: Removed the BSF508 detention notes form. Added form BSF920, Review of Detention.\nAdded the new form BSF921, Detention Oversight Form.\nSection 6: Removed reference to A34(2) which was repealed. Removed the following sections: Grounds\nfor Detention; Factors: danger to the public; Factors: unlikely to appear; Factors: identity not established;\nFactors: detention on entry to complete the examination; Factors: detention on entry for suspected\ninadmissibility on grounds of security, violating human or international rights, serious criminality,\ncriminality or organized criminality; Factors: mandatory arrest and detention of designated foreign", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a short-term detention room or) (part 2 of 8)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-1-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a short-term detention room or", + "part": "Detention", + "division": "", + "heading": "", + "text": "national; Other regulatory factors and best interest of the directly affected child. Added vulnerability factor\nto address GBV+ considerations\nSection 6.6: Include requirement for an assessment of the files of all vulnerable individuals to determine\nsuitability for CCMS referral, and for vulnerable individuals to have daily interaction with CBSA staff at\nIHCs if appropriate.\nSection 7: Detention facilities, has been updated following the opening of BC IHC and new location of the\nLaval IHC. An updated list of provincial agreements has been provided.\nSection 8.1: Updated to reflect changes in the updated agreement with the Canadian Red Cross.\nSection 9: Removed references to the Detention Notes form. Added the requirement to notify the duty\nmanager, Hearings, and Detentions (CLO/DLO) of any new detention. Removed section on the detention\nnotes form.\nSection 9.3: Include timelines for completed DMNs to be uploaded into GCMS.\nSection 9.4: Placement: NRAD has been revised. The review of the initial detention placement has been\nrevised for IHC regions (Québec, Greater Toronto Area and Pacific) and for non-IHC regions. Include\nrequirement for supervisor to review subsequent re-assessments. Form BSF754 has been updated.\nAdded definition of major breach. Added requirement to consider the detainee’s preferred language of\nservice. Include timelines for completed NRADs to be uploaded into GCMS. Include requirement for an\nassessment of the files of all vulnerable individuals to determine suitability for CCMS referral, and for\nvulnerable individuals to have daily interaction with CBSA staff at IHCs if appropriate.\nSection 9.5: Triage Policy added.\nSection 9.6: Management review of detention cases has been revised. Management review of the", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a short-term detention room or) (part 3 of 8)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-1-p4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a short-term detention room or", + "part": "Detention", + "division": "", + "heading": "", + "text": "detention to be recorded on the Detention Oversight Form. Instructions included for correcting errors on\ncompleted forms.\nSection 10: Update to care of detainees\nSection 10.1: Added procedure on the use of personal items or blankets for detained individuals in short\nterm care.\nSection 10.2: Updated language for improved clarity on monitoring of individuals on enhanced watch.\nInclude requirement for an assessment of the files of all vulnerable individuals to determine suitability for\nCCMS referral, and for vulnerable individuals to have daily interaction with CBSA staff at IHCs if\nappropriate.\nSection 10.3: Updated for clarity.\n4\nSection 11: Section updated to improve readability. IHCs and areas served now includes the BC IHC.\nUpdated note that contracted security guards cannot transport detainees by air.\nSection 12: Added the Review of Detention Form (BSF920).\nSection 12.2: Updated the Authority to Release from Detention form BSF566 to facilitate short temporary\nreleases.\nAnnex: Removed National Directive for the Detention or Housing of Minors. Text incorporated into\nSection 6.\nAnnex A: Changed to Detention Oversight Form\nAnnex D: Language Profile of Provincial Correctional Facilities\nAnnex E: Protocol Regarding the Death of an Individual Detained Pursuant to the Immigration and\nRefugee Protection Act\n2020-03-23\n6.7, Factors: detention on entry to complete the examination, clarifications have been added regarding\nurgent medical treatments.\nSection 6.10: Other regulatory factors and 6.11, Detention of minor children (under 18 years of age),\nhave been updated following the introduction of two IRPR amendments.\nSection 7: Detentions facilities has been updated.\nSection 9: Procedure: detention, the table has been updated.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a short-term detention room or) (part 4 of 8)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-1-p5", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a short-term detention room or", + "part": "Detention", + "division": "", + "heading": "", + "text": "Section 9.1: Multiple sections have been reorganized to ease the reading.\nSection 4.3: Forms and publications, Detention Cell Log and Instructions (BSF481) and Detention Cell\nLog (BSF481-1) have been merged. The BSF508, previously named Review of Detention by Officer, has\nbeen revised and renamed to Detention Notes.\nSection 6.6: Factors: identity not established, paragraphs on cooperation have been revised.\nSection Data entry has been updated.\nSection 9.3: Order for Detention has been created.\nSection 9.4: Detainee medical needs, subsequent assessment requirements and section 9.5,\nPlacement: National risk assessment for detention have been revised.\nSection 9.6: Management review of detention cases has been revised to streamline the reviewing\nprocess.\nSection 10.2: In-custody death or life threatening condition notification has been created.\nSection 11 to 11.6: created to clarify the placement and transfer of detainees from a non-IHC regions to\nan IHC.\nSection 12: Procedure: release by officer before the first detention review, the table has been updated.\nSection 13: Transitional measures, has been erased.\nAnnex A: Detentions check list has been created.\nAnnex B: National directive for the detention or housing of minors has been updated following the\nintroduction of two IRPR amendments.\n2018-11-20\nSection 3.1: Authority to detain a person, Section 3.2 Regulatory factors and conditions, Section 5.3\nGrounds for detention and section 5.8 have been updated with the coming into force of the Protecting\nCanada’s Immigration System Act.\nSection 3.3: Forms and publications, available gender identities has been clarified.\nSection 5.4 to 5.8: have been moved and updated with new detention factors.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a short-term detention room or) (part 5 of 8)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-1-p6", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a short-term detention room or", + "part": "Detention", + "division": "", + "heading": "", + "text": "Section 5.9, Factors: mandatory arrest and detention of designated foreign national has been created.\n5\nThe section on the Alternatives to Detention has been removed and transferred to the ENF 34.\nSection 5.12: housing of minor children (under 18 years of age), has been added.\nSection 5.13: vulnerable groups, the term “vulnerable groups”, has been renamed ‘’vulnerable persons’’.\nSection 5.13 and 5.14: redundant text have been moved and a new jurisprudence case has been added.\nSection 7, Detention: procedure, has been reshaped to facilitate its use by officers.\nSection 7.2: Officer’s detention notes, has been moved.\nSection 7.3: Management review of detention decision, has been updated.\nSection 8: Care of the detainee while awaiting transfer and Section 8.1 Procedure: suicidal and self-\nharmful detainee have been added.\nSection 9.1: National risk assessment for detention, clarifications have been added regarding offences\nwhere a detainee was found not guilty and common crime examples have been added.\nSection 9.3: Vehicular transport of detainees has been added.\nSection 10: Procedure: release by officer before the first detention review, has been modified and section\n10.1 has been added with information regarding release of designated foreign nationals.\nSection 12.1: Canadian Red Cross, has been updated to add information regarding the CBSA\nnotification requests.\nAnnex A: Detentions check list has been created\nAnnex C: Child protection services and family centres, was been updated with information for Atlantic\nand Prairies regions.\n2018-02-12\nENF 20 has been updated to reflect changes to the “National Risk Assessment” and “Detainee Medical\nNeeds” forms. Further, changes have been made to reflect the decision-making process regarding", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a short-term detention room or) (part 6 of 8)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-1-p7", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a short-term detention room or", + "part": "Detention", + "division": "", + "heading": "", + "text": "detention. These changes will ensure that officers have clear guidance regarding detention decisions and\nplacement of a detainee in a Canada Border Services Agency Immigration Holding Centre or provincial\ncorrectional facility.\nSection 1, “What this chapter is about”, has been updated to add contact information.\nSection 3.3, “Forms and publications”, has been amended, and the brochure titled “Information for People\nDetained Under the Immigration and Refugee Protection Act” has been added.\nSection 5.8, “Identity”, has been amended to remove information contained in other sections.\nSection 5.10, “Detention of minor children (under 18 years of age)”, has been amended, and a new\nreference to the “National Directive for the Detention or Housing of Minors” has been added in Annex A.\nSection 5.11, “Vulnerable groups”, has been moved and updated to include new vulnerable groups.\nSection 5.12, “Alternatives to detention”, and section 5.13, “Third party risk management programs”, have\nbeen removed as their content will be in ENF 34.\nMultiple sections have been updated to reflect the name change of Citizenship and Immigration\nCanada (CIC) to Immigration, Refugees and Citizenship Canada (IRCC) and of the Minister of Citizenship\nand Immigration to the Minister of Immigration, Refugees and Citizenship.\nSection 6, has been updated with new definitions for “alternatives to detention”, “best interests of the\nchild” and “unaccompanied minor”.\nSection 8.1, “Procedure: Review of Detention Decision”, has been created to clarify when the officer’s\ninitial detention decision must be reviewed by another officer.\nSection 8.2, “Informing the Immigration and Refugee Board of a Detention review”, has been created.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a short-term detention room or) (part 7 of 8)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-1-p8", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a short-term detention room or", + "part": "Detention", + "division": "", + "heading": "", + "text": "Sections 9, 9.1, 9.2 and 9.3, “Transfer of a detainee”, have been rewritten to include new directives\nregarding the national risk assessment for detention form, the detainee medical needs form and the\nvehicular transport of detainees.\n6\nSection 10, “Procedure: Release by officer”, has been updated to remove information contained in other\nsections.\nSections 11, 11.1, 11.2 and 11.3, “Place of detention”, have been moved and revised to include types of\ndetention facilities, levels of risk and new detention agreements with provincial governments.\nSection 12, “Detentions Program Monitoring”, has been added.\nSection 13, “Transitional measures”, has been moved.\n2015-12-22\nThe detention forms have been updated and converted to the CBSA numbering system (BSF304, 579,\n507 E, 508 E, 566, 524, 481, 481-1, 578, 754, 754-1, 674 and 735).\nSection 8, “Procedure: Detention”, has been updated to remove information contained in other chapters.\nSection 9, “Procedure: National risk assessment for detention”, and section 9.1, “National risk\nreassessment for detention”, have been created to include a new requirement to ensure the safety and\nwell-being of detainees.\nSection 12, “Place of detention”, has been amended to reflect the closure of the Kingston Immigration\nHolding Centre and the maximum length of detention at Vancouver – IHC has been reduced to 48 hours.\nMultiples sections have been updated following the Field Operations Support System (FOSS)\ndecommissioning.\n7", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a short-term detention room or) (part 8 of 8)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 1", + "marginal_note": "What this chapter is about", + "part": "Detention", + "division": "", + "heading": "", + "text": "1. What this chapter is about\nThis chapter offers guidance to Canada Border Services Agency (CBSA) officers on how to manage\nimmigration detention cases once a decision has been made by a designated official to arrest and detain\nunder IRPA. It also states the principles underlying CBSA’s detention policy and describes the\nadministrative and legal framework within which detention operates.\nReferences to IRPA appear in the text with an \"A\" prefix followed by the section number. References to\nthe Immigration and Refugee Protection Regulations (IRPR) appear with an \"R\" prefix followed by the\nsection number.\nRequests for clarification, questions and comments in relation to this manual should be addressed to the\nCBSA Detentions Unit Programs Branch’s generic mailbox at Detention-Programs@cbsa-asfc.gc.ca.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 1 (What this chapter is about)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "Definitions", + "part": "Detention", + "division": "", + "heading": "", + "text": "2. Definitions\nAlternative Arrangement for\nMinors (AAM)\nThe transfer of custody of an accompanied or unaccompanied non-\ndetained minor to a family member or a trusted friend/community member\n(who is not under CBSA custody), child protection services or a\ncommunity based organization. AAM is a process in the CBSA’s\nNational Case Management System (NCMS).\nAlternatives to\nDetention (ATDs)\nAn alternative to detention is any condition that may be imposed on an\nindividual to offset a risk they represent to the enforcement objectives\nand the mandate of the Canada Border Services Agency (CBSA). Refer\nto ENF 34, Alternatives to Detention\nBest Interests of the\nChild (BIOC)\nAn international principle to ensure children enjoy the full and effective\nbenefit of all their rights recognized in Canadian law and the Convention\non the Rights of the Child. It is also a rule of procedure that includes an\nassessment of the possible impact (positive or negative) of a decision\nregarding the child or children concerned.\nCriminal organization within\nthe meaning of A121.1(1)\nmeans a criminal organization as defined in subsection 467.1(1) of the\nCriminal Code.\nDetainee or Detained An adult or minor subject to an Order for Detention under A55 of the\nIRPA\nFamily Consists of a parent(s) or legal guardian(s) (p/lg) and a dependent minor.\nThis may also include family members as defined by IRPR and situations\nwhere siblings are traveling together without their p/lg.\nHoused Minor A foreign national, permanent resident or Canadian citizen who, after the\ncompletion of a BIOC interview, is kept with their detained p/lg at an IHC\nat the latter’s request. A housed minor is not subject to an Order for\nDetention and is free to remain and re-enter the IHC subject to the p/lg", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (Definitions) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "Definitions", + "part": "Detention", + "division": "", + "heading": "", + "text": "consent in accordance with the rules and procedures of that facility.\n8\nReasonable grounds to\nbelieve\nReasonable grounds are a set of facts and circumstances that would\nconvince a normally prudent and informed person. They are not mere\nsuspicions. The opinion must have an objective basis.\nReasonable grounds to\nsuspect\nReasonable grounds to suspect, a lower standard than to believe, is a set\nof facts or circumstances that would lead the ordinarily cautious and\nprudent person to have a hunch or suspicion.\nProtected person under\nA95(2)\nA protected person is a foreign national on whom refugee protection is\nconferred under A95(1), and whose claim or application has not\nsubsequently been deemed to be rejected under A108(3), A109(3) or\nA114(4).\nMinor (child) A minor is defined under the IRPA and the Convention on the Rights of\nthe Child as a person under the age of 18. In some provinces, a youth\naged 16 and 17 is not considered a minor (see Annex B). However, they\nare considered to be a minor in the federal context (R249).\nNon-Compliance Failure or refusal to comply, as with a law, regulation, or term of a\ncondition.\nIsolation (Administrative) The isolation of persons to prevent association with others.\nUnaccompanied minor A person under the age of 18 who is in Canada (at POE or Inland) and is\nnot accompanied by a parent or a legal guardian.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (Definitions) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 3", + "marginal_note": "Program objectives", + "part": "Detention", + "division": "", + "heading": "", + "text": "3. Program objectives\nA3(1) & (2) of IRPA which outlines the objectives of the Act lists three objectives that are directly linked to\nthe CBSA’s responsibility for the enforcement of IRPA regarding both immigration and refugee programs:\n to maintain, through the establishment of fair and efficient procedures, the integrity of the\nCanadian immigration system;\n to protect the health and safety of Canadians and to maintain the security of Canadian\nsociety; and\n to promote international justice and security by fostering respect for human rights and by\ndenying access to Canadian territory to persons who are criminals or security risks.\nThe detention of permanent residents and foreign nationals meets these objectives by:\n protecting Canadian society by detaining those who pose a danger to the public or security\nrisk\n supporting the removal of those who have been denied access to Canadian territory including\nthose who are criminals, security risks, or who are inadmissible for crimes against humanity;\nand\n supporting the examination and investigation processes which are key elements in ensuring\nthe enforcement of IRPA.\n9", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 3 (Program objectives)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-1-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.1", + "marginal_note": "Authority to arrest and detain a person", + "part": "Detention", + "division": "", + "heading": "", + "text": "4.1. Authority to arrest and detain a person\nThe following legislative sections identify the grounds on which an officer may arrest and/or detain a\npermanent resident or foreign national. For further information on how to exercise the authority to arrest\nand/or detain please see ENF 7 Immigration Investigations and IRPA s.55 Arrests/Detention.\nFor information about: Section of\nIRPA\nArrest and detention with warrant\nAn officer may issue a warrant for the arrest and detention of a permanent resident or a\nforeign national who the officer has reasonable grounds to believe is inadmissible and:\n is a danger to the public; or\n is unlikely to appear for examination, an admissibility hearing, for removal from\nCanada or at a proceeding that could lead to the making of a removal order by the\nMinister under subsection 44(2).\nA55(1)\nArrest and detention without warrant\nAn officer may, without a warrant, arrest and detain a foreign national, other than a\nprotected person,\n who the officer has reasonable grounds to believe is inadmissible; and\no is a danger to the public; or\no is unlikely to appear for examination, an admissibility hearing, removal\nfrom Canada, or at a proceeding that could lead to the making of a\nremoval order by the Minister under subsection A44(2); or\n if the officer is not satisfied as to the identity of the foreign national in the course of\nany procedure under this Act.\nA55(2)\nDetention on entry\nA permanent resident or a foreign national may, on entry into Canada, be detained if an\nofficer\n considers it necessary to do so in order for the examination to be completed; or\n has reasonable grounds to suspect that the permanent resident or foreign national\nis inadmissible on grounds of\nA55(3)\n10\no security,\no violating human or international rights,", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.1 (Authority to arrest and detain a person) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-1-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.1", + "marginal_note": "Authority to arrest and detain a person", + "part": "Detention", + "division": "", + "heading": "", + "text": "o serious criminality, criminality or\no organized criminality.\nMandatory arrest and detention — designated foreign national\nIf a designation is made under subsection 20.1(1), an officer must\n detain, on their entry into Canada, a foreign national who, as a result of the\ndesignation, is a designated foreign national and who is 16 years of age or older\non the day of the arrival that is the subject of the designation; or\n arrest and detain without a warrant — or issue a warrant for the arrest and\ndetention of — a foreign national who, after their entry into Canada, becomes a\ndesignated foreign national as a result of the designation and who was 16 years of\nage or older on the day of the arrival that is the subject of the designation.\nA55(3.1)\nNotice to the Immigration Division\nIf a permanent resident or a foreign national is taken into detention, an officer shall without\ndelay give notice to the Immigration Division.\nA55(4)\nRelease: officer\nAn officer may order the release from detention of a permanent resident or a foreign\nnational before the first detention review by the Immigration Division if the officer is of the\nopinion that the reasons for the detention no longer exist. The officer may impose any\nconditions, including the payment of a deposit or the posting of a guarantee for compliance\nwith the conditions, that the officer considers necessary.\nA56(1)\nMinor children\nIt is affirmed as a principle that a minor child shall be detained only as a measure of last\nresort, taking into account the other applicable grounds and criteria including the best\ninterests of the child.\nA60\nMinisters’ warrant\nThe Minister and the Minister of Citizenship and Immigration may issue a warrant for the", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.1 (Authority to arrest and detain a person) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-1-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.1", + "marginal_note": "Authority to arrest and detain a person", + "part": "Detention", + "division": "", + "heading": "", + "text": "arrest and detention of a person who is named in a certificate if they have reasonable\ngrounds to believe that the person is a danger to national security or to the safety of any\nperson or is unlikely to appear at a proceeding or for removal.\nA81\n11", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.1 (Authority to arrest and detain a person) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-2-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.2", + "marginal_note": "Regulatory factors and conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "4.2. Regulatory factors and conditions\nRegulations on detention and release have been developed under A61. Part 14 of the Immigration and\nRefugee Protection Regulations (the Regulations) is constructed as follows:\nFactors to be considered\n244 For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall\nbe taken into consideration when assessing whether a person\n (a) is unlikely to appear for examination, an admissibility hearing, removal from\nCanada, or at a proceeding that could lead to the making of a removal order by the\nMinister under subsection 44(2) of the Act;\n (b) is a danger to the public; or\n (c) is a foreign national whose identity has not been established.\nR244\nFactors: Flight risk\n245 For the purposes of paragraph 244(a), the factors are the following:\n (a) being a fugitive from justice in a foreign jurisdiction in relation to an offence\nthat, if committed in Canada, would constitute an offence under an Act of\nParliament;\n (b) voluntary compliance with any previous departure order;\n (c) voluntary compliance with any previously required appearance at an\nimmigration or criminal proceeding;\n (d) previous compliance with any conditions imposed in respect of entry, release or\na stay of removal;\n (e) any previous avoidance of examination or escape from custody, or any\nprevious attempt to do so;\n (f) involvement with a people smuggling or trafficking in persons operation that\nwould likely lead the person to not appear for a measure referred to in paragraph\n244(a) or to be vulnerable to being influenced or coerced by an organization\ninvolved in such an operation to not appear for such a measure; and\n (g) the existence of strong ties to a community in Canada.\nR245\nFactors: Danger to the public", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.2 (Regulatory factors and conditions) (part 1 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-2-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.2", + "marginal_note": "Regulatory factors and conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "246 For the purposes of paragraph 244(b), the factors are the following:\n (a) the fact that the person constitutes, in the opinion of the Minister, a danger to\nthe public in Canada or a danger to the security of Canada under paragraph\n101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;\nR246\n12\n (b) association with a criminal organization within the meaning of subsection\n121(2) of the Act;\n (c) engagement in people smuggling or trafficking in persons;\n (d) conviction in Canada under an Act of Parliament for\no (i) a sexual offence, or\no (ii) an offence involving violence or weapons;\n (e) conviction for an offence in Canada under any of the following provisions of\nthe Controlled Drugs and Substances Act, namely,\no (i) section 5 (trafficking),\no (ii) section 6 (importing and exporting), and\no (iii) section 7 (production);\n (f) conviction outside Canada, or the existence of pending charges outside\nCanada, for an offence that, if committed in Canada, would constitute an offence\nunder an Act of Parliament for\no (i) a sexual offence, or\no (ii) an offence involving violence or weapons;\n (g) conviction outside Canada, or the existence of pending charges outside\nCanada, for an offence that, if committed in Canada, would constitute an offence\nunder any of the following provisions of the Controlled Drugs and Substances Act,\nnamely,\no (i) section 5 (trafficking),\no (ii) section 6 (importing and exporting), and\no (iii) section 7 (production);\n (h) conviction for an offence in Canada under any of the following provisions of\nthe Cannabis Act, namely,\no (i) section 9 (distribution),\no (ii) section 10 (selling),\no (iii) section 11 (importing and exporting), and\no (iv) section 12 (production); and", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.2 (Regulatory factors and conditions) (part 2 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-2-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.2", + "marginal_note": "Regulatory factors and conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": " (i) conviction outside Canada, or the existence of pending charges outside\nCanada, for an offence that, if committed in Canada, would constitute an offence\nunder any of the following provisions of the Cannabis Act, namely,\no (i) section 9 (distribution),\no (ii) section 10 (selling),\no (iii) section 11 (importing and exporting), and\no (iv) section 12 (production).\nFactors: Identity not established\n247 (1) For the purposes of paragraph 244(c), the factors are the following:\no (a) the foreign national’s cooperation in providing evidence of their identity\nor assisting the Department or the Canada Border Services Agency in\nobtaining evidence of their identity, in providing the date and place of their\nbirth as well as the names of their mother and father, in providing detailed\ninformation on the itinerary they followed in travelling to Canada or in\ncompleting an application for a travel document;\nR247\n13\no (b) in the case of a foreign national who makes a claim for refugee\nprotection, the possibility of obtaining identity documents or information\nwithout divulging personal information to government officials of their\ncountry of nationality or, if there is no country of nationality, their country of\nformer habitual residence;\no (c) the foreign national’s destruction of their identity or travel documents,\nor the use of fraudulent documents by the foreign national in order to\nmislead the Department or the Canada Border Services Agency, and the\ncircumstances under which the foreign national acted;\no (d) the provision of contradictory information by the foreign national with\nrespect to their identity during the processing of an application by the\nDepartment or the Canada Border Services Agency; and\no (e) the existence of documents that contradict information provided by the", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.2 (Regulatory factors and conditions) (part 3 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-2-p4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.2", + "marginal_note": "Regulatory factors and conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "foreign national with respect to their identity.\n Marginal note: Non-application to minors\n(2) Consideration of the factors set out in paragraph (1)(a) shall not have an adverse\nimpact with respect to minor children referred to in section 249.\nOther factors\nIf it is determined that there are grounds for detention, the following factors shall be\nconsidered before a decision on detention or release:\n the reason for detention;\n the length of time in detention;\n whether there are any elements that can assist in determining the length of time\nthat detention is likely to continue and, if so, that length of time;\n any unexplained delays or unexplained lack of diligence caused by the Canada\nBorder Services Agency (CBSA) or the person concerned; and\n the existence of Alternatives to Detention (ATDs).\nR248\nBest interests of the child\nFor the purpose of paragraph 248(f) and for the application, in respect of children who are\nunder 18 years of age, of the principle affirmed in section 60 of the Act, that a minor child\nshall be detained only as a measure of last resort, the following factors must be considered\nwhen determining the best interests of the child:\no (a) the child’s physical, emotional and psychological well-being;\no (b) the child’s healthcare and educational needs;\no (c) the importance of maintaining relationships and the stability of the family\nenvironment, and the possible effect on the child of disrupting those relationships or\nthat stability;\nR248.1\n14\no (d) the care, protection and safety needs of the child; and\no (e) the child’s views and preferences, provided the child is capable of forming their own\nviews or expressing their preferences, taking into consideration the child’s age and\nmaturity.\nMarginal note: Degree of dependence", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.2 (Regulatory factors and conditions) (part 4 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-2-p5", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.2", + "marginal_note": "Regulatory factors and conditions", + "part": "Detention", + "division": "", + "heading": "", + "text": "For the purpose of paragraph 248(f), the level of dependency of the child on the person for\nwhom there are grounds to detain shall also be considered when determining the best\ninterests of the child.\nSpecial considerations for minor children\nFor the application of the principle affirmed in section 60 of the Act that a minor child shall\nbe detained only as a measure of last resort, the special considerations that apply in\nrelation to the detention of minor children who are less than 18 years of age are\n the availability of alternative arrangements with local child-care agencies or\nchild protection services for the care and protection of the minor children;\n the anticipated length of detention;\n the risk of continued control by the human smugglers or traffickers who\nbrought the children to Canada;\n the type of detention facility envisaged and the conditions of detention;\n the availability of accommodation that allows for the isolation of the minor\nchildren from adult detainees who are not the parent of or the adult legally\nresponsible for the detained minor children; and\n the availability of services in the detention facility, including education,\ncounselling and recreation.\nR249", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.2 (Regulatory factors and conditions) (part 5 of 5)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4-3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4.3", + "marginal_note": "Forms and publications", + "part": "Detention", + "division": "", + "heading": "", + "text": "4.3. Forms and publications\nSeveral forms require the gender identity of detainees to ensure their safety and well-being. Detention\nforms will progressively be updated to reflect all available gender identities as follows: male, female and\nnon binary (X) options. The X identifier is an option that may be chosen by individuals who do not identify\nexclusively as male or female, as well as two-spirit individuals.\nForm title Form number\nOrder for Detention BSF304\nDetention Cell Log BSF481\nReview of Detention BSF920\n15\nMinister’s Opinion Regarding the Foreign National’s Identity (under subsection\n58(1)(d) of the Immigration and Refugee Protection Act) BSF510\nRequest for Admissibility Hearing/Detention Review Pursuant to the Immigration\nDivision Rules BSF524\nNotice of Arrest and/or Detention BSF561\nAuthority to Release from Detention BSF566\nDetention (stickers) BSF578\nDetainee Medical Needs BSF674\nRequest for Release from Mandatory Detention – Exceptional Circumstances\n(pursuant to paragraph 58.1(1) of the Immigration and Refugee Protection Act) BSF735\nNational Risk Assessment for Detention BSF754\nNotice of Rights Conferred by the Canadian Charter of Rights and Freedoms and\nby the Vienna Convention Following Section 55 of the Immigration and Refugee\nProtection Act Arrest or Detention\nBSF776\nDetention Oversight Form BSF921\nInformation for people detained under the Immigration and Refugee Protection Act\n(brochure)\nBSF5012\n English\n French\n Arabic\n Chinese\nSimplified\n Chinese\nTraditional\n Hindi\n Japanese\n Korean\n Farsi\n Portuguese\n Punjabi\n Russian\n Spanish\n Tagalog\n Tamil\n Urdu\nAcknowledgement of Conditions - Immigration and Refugee Protection Act (IRPA) BSF821\nRequest to Transfer Detainee to an Immigration Holding Centre BSF915\n16", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4.3 (Forms and publications)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-5", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 5", + "marginal_note": "Instruments and delegations", + "part": "Detention", + "division": "", + "heading": "", + "text": "5. Instruments and delegations\nThe Minister of Immigration, Refugees and Citizenship is responsible for the administration of the Act with\nthe exception of the areas for which the Minister of Public Safety has assumed responsibility as described\nbelow A4(2).\n4(2) The Minister of Public Safety is responsible for the administration of the Act as it relates to the\nfollowing:\n examinations at ports of entry;\n the enforcement of the Act, including arrest, detention and removal;\n the establishment of policies respecting the enforcement of the Act and inadmissibility on grounds\nof security, organized criminality or violating human or international rights; or\n declarations under 42.1 regarding determinations under any of A34, A35(2) and A37(2).\nIRPA provides officers with the discretionary authority or power to arrest and detain under A55. A56\ndesignates to officers the authority, prior to the first detention review, to release a person from detention\nif, in their opinion, the reasons for detention no longer exist.\nIn order to confirm which CBSA officials have the authority to arrest and detain under IRPA, consult t he\nCBSA Designation of Officers and Delegation of Authority document found in IL 3.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 5 (Instruments and delegations)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.1", + "marginal_note": "Principles", + "part": "Detention", + "division": "", + "heading": "", + "text": "6.1. Principles\nThe CBSA is guided by the following principles governing the treatment of persons detained under the\nAct:\n immigration detention is an administrative detention and must not be punitive in nature;\n persons detained under IRPA are treated with dignity and respect at all times;\n persons are detained in an environment that is safe and secure;\n persons are treated in a manner that is commensurate with the level of risk they pose to public\nsafety or the integrity of the immigration program;\n persons are duly and appropriately considered for ATD throughout the detention continuum,\nwhich includes before every detention review.\n detention operations are conducted in a transparent manner, while respecting the privacy of the\ndetained persons;\n a minor child shall be detained only as a measure of last resort, taking into account the other\napplicable grounds and criteria including the best interests of the child;\n people who are detained are informed of their legal rights, are given an opportunity to exercise\ntheir rights and are informed of the status of their case;\n feedback is welcomed by the CBSA and all detainees have access to a feedback process;\n for Immigration Holding Centres (IHC), the CBSA maintains national detention standards that\nincorporate international standards;\n monitoring of the CBSA compliance with these standards will be conducted regularly by an\nexternal agency;\n in CBSA IHC’s, the CBSA makes reasonable efforts to meet the physical, emotional and spiritual\nneeds of detained persons in a way that is culturally appropriate.\n17", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.1 (Principles)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.2", + "marginal_note": "General", + "part": "Detention", + "division": "", + "heading": "", + "text": "6.2. General\nThe CBSA recognizes that to deny individuals their liberty is a decision that requires a sensitive and\nbalanced assessment of risk. In exercising their discretionary authority to detain, officers must consider\nATDs, individual assessment of the case and the impact of release. Additionally, it requires a risk\nmanagement approach that supports decision making within the context of the following priorities:\n Where safety or security concerns are identified (including criminality, terrorism or violent\nbehaviour);\n To support removal where removal is imminent and where a flight risk has been identified;\n Where there are significant concerns regarding a person’s identity including multiple identity\ndocuments, false documents, lack of travel documents or non-cooperation in assisting an officer\nto establish their identity.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.2 (General)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.3", + "marginal_note": "National immigration detention standards", + "part": "Detention", + "division": "", + "heading": "", + "text": "6.3. National immigration detention standards\nThe CBSA has developed enhanced National Immigration Detention Standards. These guidelines\ndescribe the treatment of detainees in immigration holding centers and non-CBSA detention facilities. The\nstandards reflect the CBSA’s ongoing commitment to improving immigration detention conditions. This\nmeans ensuring that all individuals are treated in a dignified and humane manner. The standards aim to\nensure national consistency in the administration of the detention program.\nThe CBSA prepared the standards under section 5(1)(a) of the Canada Border Services Act, which\nprovides support for the enforcement of border legislation, allowing the CBSA to manage the immigration\ndetention process. The CBSA will review and revise the standards as needed, to reflect any issues that\narise from their application and to ensure they continue to align with future policies and programming.\nThe national detention standards were developed to:\n Guide the administration of the detention program and the care of individuals detained under\nIRPA,\n Reflect the CBSA’s ongoing commitment to improving immigration detention conditions, ensuring\nthat all individuals are treated in a dignified and humane manner, commensurate with their level\nof risk, while ensuring a safe and secure environment for staff and detainees,\n Ensure national consistency in the delivery of the detention program across Immigration Holding\nCentres (IHCs) and non-CBSA detention facilities where possible,\n Enhance program transparency, by their publication on the CBSA website, and\n Mirror CBSA’s vision of immigration detention as it evolves.\nThe standards provide guidance under the following six themes: Safety, Security, Order, Care, Activities,\nAdministration and Management. Each region develops Post Orders and Standard Operating\nProcedures that align with the detention standards, and incorporates the different regional operational\nrealities.\nPlease see the National Immigration Detention Standards for additional guidance.\n18", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.3 (National immigration detention standards)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.4", + "marginal_note": "Alternatives to Detention", + "part": "Detention", + "division": "", + "heading": "", + "text": "6.4. Alternatives to Detention\nThe CBSA’s application of its detention authorities is risk-based and supports the selective use of\ndetention. Nevertheless, detention is a last resort and Alternatives to Detention (ATD) are always\nconsidered, with the CBSA relying on various alternatives to detaining individuals in an Immigration\nHolding Centre (IHC) or a provincial facility. Within the first 48 hours of detention the CBSA, and\nthereafter the Immigration and Refugee Board (IRB), can impose conditions on an individual and release\nthem from detention where any identified risk can be mitigated.\nVarious ATDs are available and officers must consider them prior to detention and while the individual\nremains in detention. Officers should consider the individual’s immigration history and potential risk\nagainst the maximum risk that can be mitigated through each ATD. Of note remains the fact that,\naccessibility to ATDs may differ between ports of entry and inland enforcement offices. The availability of\nATDs may be impacted by the time or day of the arrest as some of them require involvement from third\nparties (e.g. guarantor and service provider). For more information on the ATD Program, see ENF 34\nAlternatives to Detention.\nShould an ATD be considered appropriate but was not accessible/available at the time of the detention\n(i.e. a potential guarantor was identified but could not appear at the office), it should be included in the\nnotice of arrest because hearings officers may make an application for an early detention review if\ncontinued detention is no longer justified.\nFor more information on deposits and guarantees, see the ENF 8 Deposits and Guarantees.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.4 (Alternatives to Detention)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-5", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.5", + "marginal_note": "Detention of minor children (under 18 years of age)", + "part": "Detention", + "division": "", + "heading": "", + "text": "6.5. Detention of minor children (under 18 years of age)\nA minor child may be detained if grounds for detention exist under section A55. Section A60 affirms the\nprinciple that the detention of a minor must be a measure of last resort, taking into account other\napplicable grounds and criteria, including the best interests of the child (BIOC).\nThe United Nations Convention on the Rights of the Child (CRC), to which Canada is a party, states that\nthe BIOC shall be a primary consideration in all state actions concerning children. In recognizing the\nvulnerability of children and research on the detrimental effects of detention and family separation on\nchildren, the CBSA developed the National Directive for the Detention or Housing of Minors for\noperational use, to achieve better and consistent outcomes for minors affected by Canada’s immigration\ndetention system. Canada’s international obligations and domestic legislative and policy frameworks are\nthe broad underpinnings of this Directive.\nThe objectives of the National Directive or the Detention or Housing of Minors are:", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.5 (Detention of minor children (under 18 years of age))", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 3", + "marginal_note": "To preserve the family unit for overall well-being and continuity of care.", + "part": "Detention", + "division": "", + "heading": "", + "text": "3. To preserve the family unit for overall well-being and continuity of care.\n4. To ensure that the detention or housing of a minor or the separation of a minor from his/her\ndetained p/lg is for the shortest time possible.\n19\n5. To never place minors in isolation (or isolate them) at an IHC, provincial or any other facility.\nFundamental considerations\n1. Detention of a minor is a measure of last resort (A60 above). Detention is to be avoided to the\ngreatest extent possible and applied for the shortest period possible.\n2. ATDs must always be considered first for minors and their p/lg and be actively pursued until\nrelease.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 3 (To preserve the family unit for overall well-being and continuity of care.)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4", + "marginal_note": "The BIOC are a primary consideration and may only be outweighed by other significant", + "part": "Detention", + "division": "", + "heading": "", + "text": "4. The BIOC are a primary consideration and may only be outweighed by other significant\nconsiderations such as public safety (i.e. R245 Flight Risk (a) (f) and R246 Danger to the Public),\nor national security.\n5. Detention may be considered when historic, consistent and willful breaches of IRPA or IRPR are\ndemonstrated.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4 (The BIOC are a primary consideration and may only be outweighed by other significant)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6", + "marginal_note": "The BIOC assessment is to be conducted prior to any decision to detain or house a minor or", + "part": "Detention", + "division": "", + "heading": "", + "text": "6. The BIOC assessment is to be conducted prior to any decision to detain or house a minor or\nseparate a minor from his/her detained p/lg; and should also be conducted on a continual basis\n(Section 8(2)).\n7. Only in extremely limited circumstances may a minor be detained or housed if no suitable ATDs\ncan be found:\na) if it is in the BIOC to be housed with their p/lg;\nb) there are well-founded reasons to believe the minor is a danger to the public;\nc) when identity is a serious concern but only insofar as there are well-founded reasons to\nbelieve the minor or his or her p/lg may represent a risk to public safety and national\nsecurity; and\nd) the family is scheduled or can be scheduled for removal within seven days and has\ndemonstrated a consistent pattern of non-compliance and willful breaches of conditions\nor violations of the Act or Regulations elevating the risk of unlikely to appear for removal.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6 (The BIOC assessment is to be conducted prior to any decision to detain or house a minor or)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-8", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 8", + "marginal_note": "Where detention is warranted:", + "part": "Detention", + "division": "", + "heading": "", + "text": "8. Where detention is warranted:\na) detention or housing must be for the shortest period of time;\nb) ATDs will be reviewed by a CBSA officer in consultation with the minor's p/lg, and\ncounsel where applicable, on a weekly basis to prevent prolonged detention;\nc) an unaccompanied minor should never be housed for more than 48 hours at an IHC\nexcept where danger to the public considerations have been raised.\nd) there shall be no comingling of unaccompanied minors and other non-familial adult\ndetainees.\ne) no minor (accompanied or unaccompanied) shall be placed in isolation or be\nisolated\nf) families must not be separated within the detention facility where possible; and\ng) there shall be access to education, recreation, medical and counselling services, and\nproper nutrition in accordance with detention standards and international obligations.\n6.5.1. The best interests of the child (BIOC)\nR248(f) requires that the best interests of a directly affected child who is under 18 years of age shall be\nconsidered before a decision is made on detention or release. There is no limitation regarding the directly\naffected child location (i.e. in Canada or abroad) or whether the minor is detained, housed or is released.\nMental health evidence is clear that both detention and family separation have detrimental consequences\nfor children's well-being. The BIOC are best achieved where children are united with their families in\ncommunity-based, non-custodial settings where possible. To assess the best interests of a directly\naffected child or the BIOC when the child is detained, R248.1(1) provides a non-exhaustive list of factors\nthat officers and Immigration Division members must consider:\n20\n1. On all detention decisions that affect minors, CBSA officers must consider the BIOC as a primary\nconsideration.\n2. To facilitate decision-making, the BIOC is to be determined separately and prior to the decision to\ndetain the p/lg. It needs to be reviewed on an ongoing basis (includes observations and day to\nday interactions) based on the legal situation of the minor and their p/lg and their well-being.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 8 (Where detention is warranted:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 3", + "marginal_note": "Officers shall use, but are not limited to, the list of factors to determine the BIOC:", + "part": "Detention", + "division": "", + "heading": "", + "text": "3. Officers shall use, but are not limited to, the list of factors to determine the BIOC:\na. the child's physical, mental and emotional needs\nb. the child's educational needs\nc. the preservation of the family environment and maintaining relationships\nd. the care, protection and safety of the child\ne. the level of dependency between the child and the parent or guardian;\nf. the child's views, if they can be reasonably ascertained; and\ng. any other relevant factor.\n4. The BIOC is to be determined on a case-by-case basis taking all relevant information related to\nthe minor's situation into account; the interests and rights of the p/lg are taken into consideration\nsubsequent to the BIOC determination.\n5. CBSA officers must give minors capable of forming their own views the opportunity to express\nthose views freely in all matters regarding their detention, housing or family separation. Their\nviews should be given due weight in accordance to their age and level of maturity. Although t he\nofficer is not bound by their views, they must be considered and duly noted in the determination\nof what is in the BIOC.\n6.5.2. Family unity\n1. Every effort must be made to preserve the family unit for overall well-being and continuity of care.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 3 (Officers shall use, but are not limited to, the list of factors to determine the BIOC:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "Families must be released with or without conditions to the greatest extent possible. Where", + "part": "Detention", + "division": "", + "heading": "", + "text": "2. Families must be released with or without conditions to the greatest extent possible. Where\nunconditional release is not possible, an ATD should be used.\no When p/lg are detained, and public safety (i.e. R245 Flight Risk and R246 Danger to the\nPublic) and/or national security are not an issue, officers must make every effort to find\nan appropriate ATD.\no Where public safety (i.e. R245 Flight Risk and R246 Danger to the Public) and/or national\nsecurity are raised, every effort shall be made to find an ATD that sufficiently mitigates\nthe concerns.\n3. Though it is crucial to maintain the family unit, there may be exceptional circumstances where it is\nnot possible. Where an ATD is not appropriate for the family or either parent following a\nthorough review of community based options and release conditions, CBSA officers with the p/lg\nand relatives or CBO shall find a solution for the temporary care of the minor if this is in the BIOC.\nContact information of the organization and/or person charged with temporary care of the minor\nmust be indicated in the minor's file (or the p/lg file if the minor is a Canadian citizen). Subject to\ntheir level of comprehension, the minor should be given Legal Aid and Provincial Child Advocate\ncontact information.\n4. If a minor is separated from their family, access to the p/lg must be facilitated and the CBSA\nofficer must inform them of the steps being taken, unless the provision of the information is\ncontrary to the BIOC and compromises the safety and well-being of the minor.\n6.5.3. Child protection services (CPS)\n21\n1. CPS are responsible for the safety, well-being and familial stability of children, which may involve\ninvestigations into abuse or neglect of children. They can also connect families to community", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (Families must be released with or without conditions to the greatest extent possible. Where) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "Families must be released with or without conditions to the greatest extent possible. Where", + "part": "Detention", + "division": "", + "heading": "", + "text": "resources to address issues like mental health, settlement, temporary accommodations, and\nprovide guidance / advice on the BIOC. Most CBOs are equipped to provide the aforementioned.\n2. CBSA officers shall consult the p/lg prior to contacting CPS unless the situation falls within the\nduty to report under child welfare legislation. Accordingly, CBSA officers must contact CPS if\nabuse, neglect or other serious concerns are suspected or identified. Additional reasons for CPS\ncontact are as follows:\na. A trauma experienced by a minor;\nb. Identified safety issues while in custody due to p/lg abuse and/or neglect; and\nc. Parents may be facing criminal charges and due to the nature of the charges, may be\nseparated from their children (i.e. incarcerated in a separate institution).\nRefer to Annex B for a list of Child protection services.\n6.5.4. Arrest and detention of a minor", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (Families must be released with or without conditions to the greatest extent possible. Where) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 1", + "marginal_note": "Upon the decision to arrest and detain a minor (accompanied or unaccompanied), the CBSA", + "part": "Detention", + "division": "", + "heading": "", + "text": "1. Upon the decision to arrest and detain a minor (accompanied or unaccompanied), the CBSA\nofficer must advise his/her supervisor immediately. The officers must note all the ATDs that they\nconsidered before concluding that detention is absolutely necessary and cannot be avoided.\n2. Another officer must review the officer's initial detention decision. This officer is responsible for\nreviewing the case considering any new information and for authorizing release under A56 if\njustified. If, upon internal review, the detention decision is upheld, then the Immigration Division of\nthe IRB will review the reasons for continuing with the detention within 48 hours following the start\nof the detention or as soon as possible thereafter. Of note, the CBSA will continue to conduct the\nBIOC assessments to inform the position taken at IRB reviews until release.\n3. Where possible, the initial decision-maker shall take the lead in the active case management of\nthe minor's file throughout the immigration enforcement stream for the best case oversight.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 1 (Upon the decision to arrest and detain a minor (accompanied or unaccompanied), the CBSA)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4", + "marginal_note": "CBSA officers must ensure the security, safety, and protection of the minor under", + "part": "Detention", + "division": "", + "heading": "", + "text": "4. CBSA officers must ensure the security, safety, and protection of the minor under\narrest/detention. In addition,\na. Minors shall not be handcuffed except in extreme circumstances. Officers must assess\nthe risk and act on reasonable grounds when deciding to handcuff a minor. Extreme\ncircumstances are limited to danger to the public, threat posed to an officer(s), the public\nor self-harm;\nb. CBSA officers will not handcuff detained p/lg in front of their children other than under\nextreme circumstances (as above) or if the detained person has a violent criminal past;\nand\nc. CBSA officers will not conduct personal searches or frisking of a detained p/lg in front of\na minor other than under extreme circumstances (as above), or if the detained person\nhas a violent criminal past. Officers must make every effort to conduct searches outside\nthe view of the minor, unless doing so would cause more distress to the child.\n5. Regardless of the age of the person arrested, a Notice of Arrest and/or Detention, Order for\nDetention (form) a National Risk Assessment for Detention and Detainee Medical forms must be\ncompleted for a detention made under A55 of the IRPA. Officers must clearly articulate reasons\nand grounds for arrest and detention when completing the documents, and be mindful of the\nimportance of taking thorough and complete notes supporting their decisions and actions.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4 (CBSA officers must ensure the security, safety, and protection of the minor under)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6", + "marginal_note": "If the detention involves an unaccompanied minor, the CBSA must notify the Canadian Red", + "part": "Detention", + "division": "", + "heading": "", + "text": "6. If the detention involves an unaccompanied minor, the CBSA must notify the Canadian Red\nCross Society (CRCS) immediately following the first 48hr detention review by the IRB.\n22\n6.5.5. Unaccompanied minors\nFor appearances before the Immigration and Refugee Board (IRB) in situations where an unaccompanied\nminor is detained, A167(2) provides that a representative shall be designated for any person who is under\n18 years of age or who, in the opinion of the Division, is unable to understand the nature of the\nproceedings. For more information on detention review, see ENF 3, Admissibility Hearings and Detention\nReview Proceedings.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6 (If the detention involves an unaccompanied minor, the CBSA must notify the Canadian Red)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-1-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 1", + "marginal_note": "Unaccompanied minors shall never be detained or housed at an IHC unless it is for an", + "part": "Detention", + "division": "", + "heading": "", + "text": "1. Unaccompanied minors shall never be detained or housed at an IHC unless it is for an\noperational reason (e.g. POE arrival at 03:00, outside of normal business hours) and an ATD\ncannot be found. In the event that an unaccompanied minor is held at an IHC for more than\n24 hours, a CBSA officer must conduct an assessment of the BIOC that includes a thorough ATD\nreview for the purpose of release. Unaccompanied minors shall also have heightened supervision\n(IHC staff), and access to guards, NGO staff and/or other supports as necessary.\n2. If the presence of smugglers or traffickers is a concern, the matter must be discussed with CPS to\nensure that adequate protection is provided (refer to Annex B).\n3. In most cases, unaccompanied minors are to be released in the care of a CBO or CPS (e.g. local\nChildren's Aid Society where a MOU is established) if they do not have a relative or trusted\ncommunity link. While in their custody, the organization will make every effort to ensure that the\nminor meets CBSA's reporting requirements. Contact information of the organization, relative, or\ntrusted community member charged with the temporary care of the minor or an IRB Designated\nRepresentative or lawyer must be indicated in the minor's file.\n6.5.6. Housing - accompanied minors\nA housed minor is a foreign national, permanent resident or Canadian citizen who, after the completion of\na BIOC, is kept with their detained parent(s) or legal guardian(s) at an IHC at the latter’s request.\nA housed minor is not subject to an Order for Detention and is free to remain and re-enter the IHC subject\nto consent of the parent(s) or legal guardian(s) in accordance with the rules and procedures of that\nfacility. No detention related forms should be issued for a housed minor as they are not detained,", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 1 (Unaccompanied minors shall never be detained or housed at an IHC unless it is for an) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-1-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 1", + "marginal_note": "Unaccompanied minors shall never be detained or housed at an IHC unless it is for an", + "part": "Detention", + "division": "", + "heading": "", + "text": "including the Detainee Medical Needs, as these forms are only issued where the IRPA grounds for\ndetention of the minor are met. However, NCMS tracking of housed minor is required, see section 9.1,\ndata entry, for more details.\nThe National Directive for the Detention or Housing of Minors outline that:\n1. Accompanied minors shall be housed at an IHC (where available) only if it has been deemed to\nbe in the BIOC. The CBSA officer must note the ATDs considered for both or one of the p/lg\nbefore concluding that housing was absolutely necessary for the minor and/or family unity.\n2. The CBSA officer must explain to the p/lg their option to accept or to refuse housing, and that\ntheir decision will not affect their immigration case; interpreter services must be offered to the p/lg\nto enable clarity and full comprehension of the discussion. A CBSA Supervisor or Superintendent\nand the minor's p/lg must provide their written consent prior to housing at an IHC.\n3. A p/lg may withdraw their consent at any time by informing the CBSA in writing. The CBSA may\nalso withdraw their consent under extreme circumstances, such as:\no Inability of the p/lg to care and ensure control of the minor resulting in harm to the minor\nand subject to duty of care referral under the child welfare legislation; or\n23\no An alternative to housing has become available for the accompanying the minor even\nafter the 48-hour detention review.\n4. If a CBSA officer considers withdrawing consent, they must justify this in writing, discuss with the\np/lg, and give them an opportunity to remedy the circumstances.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 1 (Unaccompanied minors shall never be detained or housed at an IHC unless it is for an) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-5", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 5", + "marginal_note": "CBSA officers shall conduct a weekly case review to reassess ATDs and the BIOC of", + "part": "Detention", + "division": "", + "heading": "", + "text": "5. CBSA officers shall conduct a weekly case review to reassess ATDs and the BIOC of\naccompanied minors.\n6.5.7. Services in an IHC\nIn accordance with international standards, IHCs offer a secure and sanitary environment, proper\nnutrition, access to fresh air, access to the health care servic es (e.g. psychology and psychiatric supports)\nand recreation. Furthermore,\n1. Minors shall be housed with both p/lg. to the greatest extent possible in order to preserve the\nfamily unity.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 5 (CBSA officers shall conduct a weekly case review to reassess ATDs and the BIOC of)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "The IHC shall adhere to National Detention Standards for accompanied and unaccompanied", + "part": "Detention", + "division": "", + "heading": "", + "text": "2. The IHC shall adhere to National Detention Standards for accompanied and unaccompanied\nminors, and the IHC Manager will be responsible for verifying this.\n3. By provincial laws, minors must go to school starting at the age of five or six and until they are\nbetween 16 and 18, depending on the province or territory. Qualified teachers will provide in-class\neducation for minors who are at an IHC after seven-days until they are released.\n6.5.8. Transportation and travel\nThe CBSA Enforcement Manual's Part 6 Chapter 2 on the Vehicular Transport of Persons under Arrest or\nDetention is applicable to detained or housed minors. It guarantees the safety and security of individuals\nin CBSA custody and OB PRG-2015-34 Transportation of Non-Detained Persons in Agency Vehicles\nwhile Administering CBSA Program Legislation is also relevant. The p/lg is responsible for the care and\ncontrol of their children, therefore, they must be kept with them at all times that include situations when\nthe p/lg or minor must leave the IHC for various reasons: detention review, medical appointment, court\nproceeding, immigration examination, etc. NOTE: Section 10 applies to this section.\n6.5.9. Reporting\n1. All situations involving the detention, housing or separation of the family unit must be reported\nimmediately to the Border Operations Centre (BOC) as a significant event in the Incident\nReporting Criteria (IRC) of \"Child Welfare\".\na. The regional Single Reporting Tool (SRT) OB OPS-2017-03 to the BOC must contain the\nfollowing information regarding the case:\ni. Tombstone data for the minor involved (UCI, age, gender, citizenship);\nii. UCI for accompanying parent or guardian (if minor is accompanied); and\niii. Synopsis of the case containing detailed information regarding the case including", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (The IHC shall adhere to National Detention Standards for accompanied and unaccompanied) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "The IHC shall adhere to National Detention Standards for accompanied and unaccompanied", + "part": "Detention", + "division": "", + "heading": "", + "text": "if the minor was accompanied or unaccompanied; detained (and grounds for\ndetention), housed or separated from a detained p/lg; and detention facility where\nthey are held.\nb. The SRT must contain the information that was considered during the decision-making\nprocess:\n24\n Information regarding how the BIOC was assessed and outcome of the\nassessment (this is relevant for all instances involving minors (whether minors\nare detained, housed or separated from their detained p/lg).\nc. The SRT must also contain the information considered regarding actions taken to\nmitigate detention of minors or their p/lg:\n Information regarding how and which ATDs were considered in order to minimize\nthe detention or housing of children, or the separation of children from their p/lg.\nd. Once the BIOC has been conducted and ATDs have been considered, and a minor is\ndetained or housed in a detention facility, or separated from a detained p/lg, the CBSA\nOfficer (decision-maker) must report the case to the BOC as soon as possible.\ne. Superintendents/managers shall ensure that a notification is sent to the BOC as outlined\nabove.\n2. At first contact with an unaccompanied minor (under the age of 18), the CBSA officer will notify\nthe CRCS in writing as soon as possible by sending an email message\nto: IDMP@REDCROSS.CA On the Subject Line, indicate “Unaccompanied Minors” and the\nfacility or location where the minor is being held. For general information, refer to their\nwebsite: http://www.redcross.ca/how-we-help/migrant-and-refugee-services/promoting-the-rights-\nof-immigration-detainees\n3. Aggregate reporting on minors will be part of the detention program statistics on-line quarterly\npublication that will also include the separation of minors.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (The IHC shall adhere to National Detention Standards for accompanied and unaccompanied) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-6-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.6", + "marginal_note": "Vulnerable persons", + "part": "Detention", + "division": "", + "heading": "", + "text": "6.6. Vulnerable persons\nA vulnerable person in the detention context is defined as a person for whom detention may cause a\nparticular hardship and they must clearly be identified on the National Risk Assessment for Detention\n(NRAD) form (see section 9.5). For persons falling into one or more of these categories, officers should\napply the principle that where there is no danger to the public, detention is to be avoided, where possible.\nDetention of a vulnerable person is not precluded where the individual is considered a danger to the\npublic. However, it should be for the shortest period of time and should be focused on supporting\nimminent removal. Where a vulnerability has been identified on the NRAD, an assessment for referral to a\nCommunity Case Management and Supervision (CCMS) service provider must be completed within 72hrs\nof the vulnerability being noted. Unless advised otherwise by health professionals, IHC staff will engage\nwith vulnerable detainees daily and log these interactions in the Detention Activity Management System\n(DAMS).\nVulnerable persons may include but are not limited:\n pregnant women and nursing mothers;\n minors (under 18 years of age) (see section 6.5, “Detention of minor children”);\n persons suffering from a severe medical condition or disability (see note 1 below);\n persons suffering from restricted mobility (see note 1 below);\n persons with a suspected or known mental illness (includes suicidal and self-harmful persons);\n victims of human trafficking (see note 2 below);\n persons who may face hardship for sexual or gender based reasons or who may be victims or\nsurvivors of gender-based violence.\nNote 1: To assess if a person’s medical condition, disability or restricted mobility is severe enough to", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.6 (Vulnerable persons) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-6-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.6", + "marginal_note": "Vulnerable persons", + "part": "Detention", + "division": "", + "heading": "", + "text": "cause a particular hardship, the officer must take into account the detention facility and available services.\n25\nThe officer must believe that the person cannot be properly managed within the detention facility in\ncomparison with another detainee without the vulnerability (for instance, a person requires a walker but\nthe detention facility does not offer this kind of service). When in doubt that a person can be satisfactorily\nmanaged within a detention facility, officers should make a decision in consultation with an officer who\nworks at an IHC, a detention liaison officer (DLO) or a designated regional representative.\nNote 2: Victims or suspected victims of human trafficking should never be kept or be in contact with their\ntrafficker, if known.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.6 (Vulnerable persons) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-7-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.7", + "marginal_note": "Long-term detention and jurisprudence", + "part": "Detention", + "division": "", + "heading": "", + "text": "6.7. Long-term detention and jurisprudence\nThe CBSA considers all detentions which have lasted over 99 days to be long-term detentions. As it is\ndone for each detention, officers should actively determine if ATDs could be available or suitable to\nmitigate the risk. In cases of long-term detentions, officers should carefully document each effort or\nprogress that has been made to reach an immigration purpose (e.g. to establish the identity or to remove\nan individual). A detention must come to an end if it no longer serves an immigration purpose. Pursuant to\nA58(1)(d), the Minister’s representative is required to demonstrate the possibility of establishing the\nidentity of the person concerned within a reasonable period of time to justify continued detention on such\ngrounds. Officers responsible for the identity investigation must follow each of the cases closely and\ndocument any efforts made to establish the person’s identity. This will demonstrate that the CBSA is\nmaking progress and that the individual’s detention is not indefinite. Long-term detentions are more\njustifiable where one of the following situations occurs:\n the detained individual is a danger to the public;\n ATDs and conditions cannot sufficiently mitigate the danger to the public or the unlikeliness to\nappear; or\n Delays can be attributed primarily to the detainee, as a result of their refusal to cooperate with\nCBSA in achieving the applicable enforcement outcome.\nJurisprudence\nIn Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214, the Federal Court ruled\nthat persons cannot be held indefinitely under the provisions of the Immigration Act. There has to be an\nend to the process in view. This ruling has been quoted several times in several judgements, even if it", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.7 (Long-term detention and jurisprudence) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-7-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.7", + "marginal_note": "Long-term detention and jurisprudence", + "part": "Detention", + "division": "", + "heading": "", + "text": "refers to the former Immigration Act. In this case, the reason for detention was that, in the opinion of the\nadjudicator, the subject would not report for removal if required to do so. The Court’s decision in this case\nset out a four part test regarding detention. These four factors have been integrated into R248.\n The first is that there is a stronger case for justifying a longer detention for someone considered a\ndanger to the public.\n The second concerns the length of future detention: if it cannot be ascertained, the facts would\nfavour release.\n The third is a question of who is responsible for any delay: unexplained delay or even\nunexplained lack of diligence should count against the offending party.\n The fourth is the availability, effectiveness and appropriateness of ATDs such as outright release,\nbail bond, periodic reporting, etc.\n26\nIn Lunyamila v. Canada (Public Safety and Emergency Preparedness) 2016 FC 1199, the Federal Court\nruled that persons who are a danger to the public or a flight risk and who are not cooperating with the\nMinister’s efforts to remove them from Canada, must continue to be detained until such time as they\ncooperate with their removal, except in exceptional circumstances. However, release might be justified in\nan exceptional circumstance, such as where there have been unexplained and very substantial delays by\nthe Minister that are not attributable to the detained person’s lack of cooperation or to an unwillingness on\nthe part of the Minister to incur substantial costs that would be associated with pursuing non-speculative\npossibilities for removal. Where a person is a danger to the public, the greater the risk that the public\nwould be required to assume under a particular alternative to detention, the more this factor should weigh", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.7 (Long-term detention and jurisprudence) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-6-7-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 6.7", + "marginal_note": "Long-term detention and jurisprudence", + "part": "Detention", + "division": "", + "heading": "", + "text": "in favour of continued detention.\nIn Canada (Public Safety and Emergency Preparedness) v. Ismail, [2015] 3 FCR 53, 2014 FC 390, the\nFederal Court has determined that there is nothing in subsection A58(1) that ties the ability of the\nImmigration Division to continue to detain an individual under that provision to the original grounds of\ndetention under A55. It is thus apparent on the face of the legislation that an individual may originally be\ndetained by an officer for one reason, on the basis of one standard, but may later be denied release by\nthe Immigration Division on a different ground, and on the basis of a different standard.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 6.7 (Long-term detention and jurisprudence) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-7-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 7", + "marginal_note": "Detention facilities", + "part": "Detention", + "division": "", + "heading": "", + "text": "7. Detention facilities\nIn the administration of the immigration detentions program, the CBSA uses multiple detention facilities to\ndetain individuals under the IRPA. The placement and transfer of detainees in a detention facility, is\nguided by their NRAD score, factors of their case and location.\nA142 Every peace officer and every person in immediate charge or control of an immigrant station shall,\nwhen so directed by an officer, execute any warrant or written order issued under this Act for the arrest,\ndetention or removal from Canada of any permanent resident or foreign national.\nA143 A warrant issued or an order to detain made under this Act is, notwithstanding any other law,\nsufficient authority to the person to whom it is addressed or who may receive and execute it to arrest and\ndetain the person with respect to whom the warrant or order was issued or made.\nImmigration holding centres\nThe IHC should always be the default detention facility if risk can be mitigated, in regions where those\nfacilities are available. Individuals detained under the IRPA who have scored 0 to 4 points and 5 to 9\npoints (if risk can be mitigated in an IHC) on the NRAD form [BSF754] should be held in an IHC. The\nCBSA operates three regional IHCs:\n The Laval IHC has a maximum capacity of 152 detainees. It is located at 300 Montée Saint-\nFrançois, Laval, QC H7C 1S5, 450-661-2001, QUE_CPI_Agents_DL@cbsa-asfc.gc.ca. Laval\nIHC serves the following regions: Québec, Atlantic and Northern Ontario (Cornwall and Ottawa\nexclusively);\n The Toronto IHC has a maximum capacity of 195 detainees. It is located at 385 Rexdale Blvd,\nToronto, ON M9W 1R9, 416-401-8505, CBSA-ASFC_GTAR_EIOD-Dist_Holding_Centre@cbsa-\n27", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 7 (Detention facilities) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-7-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 7", + "marginal_note": "Detention facilities", + "part": "Detention", + "division": "", + "heading": "", + "text": "asfc.gc.ca . Near the Pearson International Airport. Toronto IHC serves the following regions:\nGreater Toronto Area, Southern Ontario and Northern Ontario (except Cornwall and Ottawa);\n The BC IHC has a maximum capacity of 73 detainees. It is located at 13130 76th Avenue,\nSurrey, BC V3W 2V6, 778-591-4223, PAC-Dist_CBSA_EID_Detention_Operations@cra-\narc.gc.ca . Surrey IHC serves the following regions: Pacific and Prairies\nProvincial correctional facilities\nProvincial correctional facilities are used in regions where placement in an IHC is not suitable or not\navailable. Individuals detained under IRPA who have a total score of 5 to 9 points (if risk cannot be\nmitigated in an IHC) and 10 points and more on the NRAD form [BSF754] should be held in a provincial\ncorrectional facility. Please see Annex E for a list of commonly used detention facilities and the official\nlanguage of service available.\nThe CBSA has several arrangements and bilateral agreements with provincial governments to allow the\nuse of provincial correctional facilities by CBSA detainees. Currently, the CBSA has bilateral agreements\nwith the following provinces for the purpose of immigration detention: Alberta (2006), Ontario (2015) with\namending agreement (2017) and second amending agreement (2020), Quebec (2017), British Columbia\n(2017), New Brunswick (2019), Nova Scotia (2018).\nPolice stations\nIn some regions, detainees are detained at police stations or local RCMP detachment for a few days or\nless until transferred to a provincial correctional facility or pending transfer to CBSA custody. This is more\ncommon in isolated communities where no IHC nor provincial correctional facility is in near proximit y.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 7 (Detention facilities) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-8", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 8", + "marginal_note": "Detentions program monitoring", + "part": "Detention", + "division": "", + "heading": "", + "text": "8. Detentions program monitoring\nThe CBSA conducts internal reviews of its detentions program. These reviews help ensure operational\nalignment with national and international detention standards, adherence to CBSA national detention\npolicies and directives, as well as consistency in officer-decision making, enabling effective management\nof the program and continual process improvement. In addition, the CBSA’s detentions program is\nmonitored by other organizations. The regular independent and unbiased monitoring reports have been\nkey in ensuring that reviews and recommendations are transparent, impartial and in the best interest of\nimmigration detainees.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 8 (Detentions program monitoring)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-8-1-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 8.1", + "marginal_note": "Canadian Red Cross", + "part": "Detention", + "division": "", + "heading": "", + "text": "8.1. Canadian Red Cross\nSince 1999, through arrangements with the federal government, the Canadian Red Cross (CRC) has\nbeen independently monitoring the CBSA’s immigration detention program to ensure that persons\ndetained pursuant to the IRPA are held and treated in accordance with applicable domestic standards\nand in compliance with international instruments to which Canada is signatory. During this time, the CRC\nhas conducted site visits to IHCs, provincial correctional facilities and other detention facilities across\n28\nCanada and has provided important feedback and expert advice on policies and programs to the CB SA\nthrough their annual reports, detainee visits, communication and regular meetings.\nIn 2021, the contract was renewed with the CRC for the continued monitoring services of Canada’s\nimmigration detention program to ensure that the CBSA’s immigration detention program meets both\nnational and international immigration detention standards. Under the contract, the CRC conducts\nongoing site visits throughout the year, report on its findings and provide recommendations to the CBSA\nto help improve the overall immigration environment for detainees. To this end, the CBSA collaborates\nwith the CRC and both parties have agreed to the following:\n The CBSA will provide the CRC unfettered access to all persons being held in detention facilities\nunder the control and management of the CBSA. As required, the CBSA will escort the CRC and its\nresources into IHC facilities and areas where they will meet with immigration detainees to conduct\ntheir confidential meetings.\n In cases where the CRC is denied access to non-CBSA facilities, the CBSA Region or Headquarters\nwill endeavour, to the fullest extent possible and subject to any lawful limitations, to facilitate access", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 8.1 (Canadian Red Cross) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-8-1-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 8.1", + "marginal_note": "Canadian Red Cross", + "part": "Detention", + "division": "", + "heading": "", + "text": "to immigration detainees being held in detention facilities under the control and management of other\nfederal, provincial, territorial or municipal authorities.\n Following the initial detention review by the IRB and after 48 hours, in accordance with the legislative\nand/or procedural protocols established by the CBSA, the CBSA will notify the CRC’s established\npoint(s) of contact of unaccompanied minors being detained under the age of 18, or of any other\nsignificant event.\n The CBSA will provide limited information regarding a detainee’s case history (e.g. country of\ncitizenship and/or country of origin, gender, and language spoken) that is required by the CRC to\neffectively conduct monitoring visits with detainees and which is relevant to assess detention\noperations. These data elements do not identify any individual(s) and are not considered personal\ninformation.\n The CBSA will notify the CRC when an emerging issue or incident occurs (e.g. hunger strike,\nallegation of abuse, death in custody) so that the CRC may conduct a monitoring visit to ensure the\nwell-being of other detainees as well as the detention environment.\nCBSA Notification Requests\n Unaccompanied Minors: At first contact with an unaccompanied minor, the CBSA regional\nmanagement will notify the CRC in writing as soon as possible by sending an email message to:\nIDMP@REDCROSS.CA. On the subject line, the CBSA regional management is to indicate: “CBSA\nNotification Request: Unaccompanied Minors” and the facility or location where the minor is being\nheld.\n Emerging Issues: Following the same communication protocol, the CBSA regional management will\nalso notify the CRC when an emerging issue or incident occurs such as a hunger strike, protest,\nallegations of abuse, or lockdown.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 8.1 (Canadian Red Cross) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-8-1-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 8.1", + "marginal_note": "Canadian Red Cross", + "part": "Detention", + "division": "", + "heading": "", + "text": " Death in Custody: Following a death in custody, the CRC is not expected to intervene while the\nprovincial or responsible local authority undergoes its investigation. However, the CBSA regional\nmanagement will notify the CRC of the death in custody in order for the CRC to conduct a monitoring\nvisit of immigration detainees held in the detention facility to ensure their continued well-being and a\nhealthy detention environment following the incident.\n29", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 8.1 (Canadian Red Cross) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-8-2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 8.2", + "marginal_note": "United Nations High Commissioner for Refugees (UNHCR)", + "part": "Detention", + "division": "", + "heading": "", + "text": "8.2. United Nations High Commissioner for Refugees (UNHCR)\nAll CBSA facilities are subject to independent monitoring of detention standards by the UNHCR. Canada\nis a signatory to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating\nto the Status of Refugees. Under article 35 of the Convention, Canada is required to co-operate with the\nUNHCR in the exercise of its functions and will, in particular, facilitate its duty of supervising the\napplication of the provisions of this Convention. In order to enable the UNHCR to finalize performance\nmanagement reports, Canada is required to provide the UNHCR thorough information and statistical data\nrequested concerning the following:\n the condition of refugees;\n progress in implementing this Convention; and\n laws, regulations and decrees that are, or may hereafter be, in force relating to refugees.\nRefugee claimants must be able to contact and be contacted by the local UNHCR office.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 8.2 (United Nations High Commissioner for Refugees (UNHCR))", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9", + "marginal_note": "Procedure: Detention", + "part": "Detention", + "division": "", + "heading": "", + "text": "9. Procedure: Detention\nArrest\nUnder sections A55(1), (2) and (3), an officer may arrest and detain a person. For complete information\non the procedures for arrest under the IRPA, see ENF 7, Immigration Investigations and IRPA s.55\nArrests/Detentions.\nDetention\nThe following table includes tasks that must be completed once a decision is made that the person’s\ndetention will be continued and they will be placed in a detention facility.\nTask Responsibility and\nReferences\nUploaded to GCMS\nPaper copies\nCase file\nDetainee or\ndesignated\nrepresentative\nDetention\nFacility\nIRB\nUse an accredited interpreter where a detainee does not understand one\nof the Canada’s official languages to ensure procedural fairness and fill out\nform: Interpreter Declaration [IMM1265B].\nOfficer\nSee Using the services of\nan accredited interpreter\nX\nPhotograph and fingerprint the detainee, if not already done during the\narrest process.\nOfficer\nSee ENF 12 Search,\nSeizure, Fingerprinting\nand Photographing\nX\nGive the detainee the brochure “Information for people detained under the\nImmigration and Refugee Protection Act” [BSF 5012] and any other\nregional detention facility information.\nOfficer X\n30\nSee section 4.3 to select\none of the 16 languages\navailable.\nConduct a visual check or video monitoring of detainees while in short-\nterm detention rooms or cells at least once every 15 minutes. Fill out\nDetention Cell Log form BSF481.\nIf a detainee is believed to be suicidal or self-harmful, constant visual or\nvideo monitoring is required.\nOfficer or contracted\nsecurity guards\nSee section 10, Care of\ndetainees while in short-\nterm detention rooms or\ncells.\nX X\nOnly for detentions where the identity of a foreign national has not been\nestablished, fill out form Minister’s Opinion Regarding the Foreign", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9 (Procedure: Detention) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9", + "marginal_note": "Procedure: Detention", + "part": "Detention", + "division": "", + "heading": "", + "text": "National’s Identity (under subsection 58(1)(d) of the Immigration and\nRefugee Protection Act) [BSF510].\nMinister’s delegate\n(Superintendent, Manager,\nhearings officer)\nX X X\nData entry in GCMS and NCMS or make arrangement with the nearest\ninland enforcement office for the earliest possible data entry to NCMS.\nOfficer\nSee section 9.1 Data entry\nFill out form Detainee Medical Needs [BSF674]. Officer\nSee section 9.4, Detainee\nmedical needs\nX X X X\nFill out form National Risk Assessment for Detention [BSF754]. Officer\nSee section 9.5\nPlacement: National risk\nassessment for detention\nX X X X\nFill out form Order for Detention form [BSF304]. Officer\nSee section 9.3 Order for\nDetention\nX X X\nIf the detainee will be transported by contracted security guards, notify the\ncontracted security guards of all transport request as soon as practicable\nto minimize any delay. Provide them with a copy of Forms BSF304,\nBSF674 and BSF754 so that they can provide them to the detention facility\nwhen transporting the inmate.\nOfficer\nSee section 11.6\nTransport\nProvide in writing to the detainee the name, address, telephone number of\nthe detention facility with any other regional detention facility information. If\nthe detainee will be detained in a provincial correctional facility, also give\nthe DLO’s or designed officer’s contact information.\nOfficer X\nFill out form Request for Admissibility Hearing/Detention Review Pursuant\nto the Immigration Division Rules [BSF524] and notify the IRB –\nImmigration Divisi on and save in GCMS evidence (e.g. copy of the\nfacsimile receipt) that the IRB - Immigration Division has been informed.\nOfficer X X X\nNotify the duty manager, Hearings, and Detentions (CLO/DLO) of new\ndetention by email.\nOfficer X", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9 (Procedure: Detention) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9", + "marginal_note": "Procedure: Detention", + "part": "Detention", + "division": "", + "heading": "", + "text": "The Detention Oversight Form [BSF921] must be completed and uploaded\ninto GCMS for each continued detention case.\nManagement\nSee section 9.6\nManagement review of\ndetention cases\nX\nNotify the Canadian Red Cross by sending an email to\nIDMP@REDCROSS.CA and keep the email for each case involving:\nunaccompanied minors, and emerging issues and death in custody.\nCBSA regional\nmanagement\nSee section 8.1 Canadian\nRed Cross\nX", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9 (Procedure: Detention) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-1-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.1", + "marginal_note": "Data entry", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.1. Data entry\nDetention tracking information is very time sensitive and must be entered into the Global Case\nManagement System (GCMS) and the National Case Management System (NCMS) databases as soon\nas possible. Both systems are being used to track detainee cases and to produce statistics for the\ndetentions program management and for public reporting.\n31\nGCMS\nMost detention forms, such as a detention order, are available in GCMS, which allows officers to fill them\nout electronically. To ensure consistency and the ability to track cases, all GCMS-generated detention\nforms must be saved in the associated activity (for example, examination, arrest).\nSome detention forms, such as the “National Risk Assessment for Detention” and “Detainee Medical\nNeeds” forms, are currently available only as a fillable PDF, which allows officers to fill them out\nelectronically. To ensure consistency and the ability to track cases, all filled-out detention forms that are\nnot available in GCMS must be saved in GCMS, under the detainee’s unique client identifier (UCI).\nMultiple forms may be simultaneously scanned and uploaded in the same attachment, as long that they\nare clearly identified:\n• Navigate to “Clients” > “Documents” > “ID Supporting Documents” sub tab.\n• Create a new record.\n• Select the following options:\n• Type: CDN Immigration Doc\n• Sub Type: Client Submission\n• Document #: Form(s) BSF#\n• Country of Issue: Canada\n• Document Name: Name(s) of the form(s)\n• Complete the “Issue Date”.\n• Add a new attachment in PDF format.\nNote: The ability to complete detention forms electronically does not mean that forms may be also be\nsigned electronically—staff must comply with current directives and policy concerning use of electronic\nsignatures.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.1 (Data entry) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-1-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.1", + "marginal_note": "Data entry", + "part": "Detention", + "division": "", + "heading": "", + "text": "See the Wiki GCMS reference materials, Arrest & Detain and Detained for Examination or MD Review, for\nmore details. It is essential that the request for detention review and the detention summary screens in\nGCMS be completed as soon as possible by either the officer or the minister’s delegate. If the detainee\ndetention facility or detention grounds change, it must be updated in GCMS.\nCompleted DMN and NRAD forms are to be uploaded into GCMS within 48 hours of an initial\nassessment, and within 7 days of a reassessment.\nNCMS\nThe NCMS must be used for tracking all detentions originating at ports of entry and inland offices.\nIf a detainee is being transferred to a detention facility, a National Risk Assessment for Detention event\nmust be completed under the ‘immigration hold’ tab in NCMS. Officers must create a new NRAD event,\nenter the total score in the disposition section and select a vulnerability category (if applicable). For\nprocedures on entering detention data into NCMS, please see the NCMS - User Guide.\nMost port of entry detention cases are forwarded to an inland enforcement office for ongoing case\nmanagement. The inland enforcement office will initiate the detention process in NCMS. However, if a\ndetention originates at a port of entry that does not have access to NCMS and the case does not need to\n32\nbe managed by an inland enforcement office (e.g. a person is detained and released at a port of entry\nbefore the first detention review), then an e-mail request to initiate the detention process must be sent to\nthe nearest inland enforcement office for the earliest possible data entry to NCMS.\nFor NCMS tracking of minors on Alternative Arrangement, Housing or Detention, please see the Standard\nOperating Procedures.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.1 (Data entry) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.2", + "marginal_note": "Order for Detention", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.2. Order for Detention\nThe form Order for Detention [BSF304] is used when an individual is detained under A55 and needs to be\nplaced or transferred to a detention facility (i.e. IHCs, provincial correctional facilities and police stations).\nOfficers must fill out the form and the receiving detention facility staff must be given a copy. At the time of\nthe transport, the detainee must receive in writing: the name, address and telephone number of the\ndetention facility. If the detainee is detained in a provincial correctional facility, the DLO’s or designated\nofficer’s contact information must also be given to the detainee. The form is not required if the detainee is\nreleased before any placement or transfer to a detention facility has occurred.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.2 (Order for Detention)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-3-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.3", + "marginal_note": "Detainee medical needs", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.3. Detainee medical needs\nThe intent of the “Detainee Medical Need” (DMN form) [BSF674] is to ensure national consistency in\ngathering and sharing information regarding detainee medical needs with detention staff. The officer\nmaking the detention decision must complete the DMN form to safeguard the safety and well-being of the\ndetainee. This form is not required if the detainee is released before any placement or transfer to a\ndetention facility has occurred. An information session on the Detainee Medical Needs form is available to\nofficers in the following training and learning section: http://atlas/pb-dgp/res/toolkit-outils/detention/forms-\nformulaires/index_eng.asp\nInformation contained in the health condition section is based on information stated by the detainee, and\nits accuracy cannot be validated before a consultation with a health care professional. The form is not a\nmedical diagnosis but a tool for detention staff to note any information pertaining to the detainee’s self-\nidentified needs, before the detainee has their initial consultation with a health care professional. The\nform contains information on the detainee’s health needs (such as mobility impairment) and life-\nthreatening health conditions (such as heart disease, diabetes or allergies). In addition, the DMN form\n[BSF674] contains emergency contact information. If the detainee provided contacts in this section, the\nCBSA will contact the individual listed in the event of a life threatening health condition or death of the\ndetainee in CBSA custody or control during the detention period. If required, the detainee’s personal\ninformation will be shared with the emergency contact. See section 10.3, In-custody death or serious\ninjury notification, for more details.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.3 (Detainee medical needs) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-3-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.3", + "marginal_note": "Detainee medical needs", + "part": "Detention", + "division": "", + "heading": "", + "text": "In addition, the DMN form [BSF674] contains specific questions to capture self-identified mental health\nconditions (such as depression or bipolar disorder) and indicators (such as a previous suicide attempt),\nwhich may indicate a predisposition to suicide and self-harm. Mental health questions are of a sensitive\nnature and should be asked in a non-judgemental way. Officers should use a friendly and accepting tone\nand allow the person time to speak. If a person being detained is believed to be suicidal or self-harmful,\nsee section 10.1, Procedure: Suicidal and self-harmful detainee.\n33\nThe DMN form [BSF 674] must be placed in the detainee’s case file, and a copy of the form must be\ngiven to the following:\n the detainee or designated representative (by hand, by mail or electronically);\n the detention facility personnel (to the health care professional).\nParagraph 8(2)(a) of the Privacy Act (consistent use) allows the disclosure of information where the\ndisclosure is made for the purpose for which the information has been obtained. The individuals are being\ndetained for IRPA purposes regardless if the detention facility is owned or not by the CBSA, and the\ndisclosure is to ensure detainee well-being and to assess health needs.\nSubsequent assessments\nUntil the person is released from detention, a subsequent assessment using the DMN form [BSF674]\nmust be completed:\n At least once every 60 days after every assessment if detainees are detained in a provincial\ncorrectional facility; or\n sooner if the detainee self-identifies a change in their medical condition or if a possible change in\ntheir medical condition is observed by any custodial staff regardless of the detention facility.\n*IHCs with contracted medical services on-site are exempt from completing subsequent DMN", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.3 (Detainee medical needs) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-3-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.3", + "marginal_note": "Detainee medical needs", + "part": "Detention", + "division": "", + "heading": "", + "text": "forms.\nThe re-assessment is crucial to ensure up to date information regarding the detainee’s medical needs is\navailable in the event a transfer to another detention facility or in a circumstance that would require the\nCBSA to notify the emergency contact(s). For detainees in a detention facility elsewhere (such as a\nprovincial correctional facility), the responsibility lies with a DLO or an officer designated to perform this\nfunction.\nFor detainees in an IHC, the responsibility lies with officers working at the IHC. They are expected to\ncontinue an active dialog with on-site medical services as well as the detainee to have a clear\nunderstanding of the detainee’s needs and to assist in the on-going placement and classification.\nUnder the guidelines outlined in section 9.1, completed DMN forms are to be uploaded into GCMS within\n48 hours of an initial assessment, and within 7 days of a reassessment.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.3 (Detainee medical needs) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.4. Procedure: National risk assessment for detention – initial and\nsubsequent assessments\nThe placement or transfer of a detainee to a detention facility cannot be used as a form of punishment.\nThe intent of the initial NRAD [BSF754] assessment is to ensure a national consistent approach to\ndetention placement through a transparent and objective risk assessment, based on historical and\navailable data. The officer making the detention decision must complete the NRAD form and identify the\ndetainee’s risk and vulnerability factors to safeguard the well-being of the individual, other detainees,\n34\ncontracted staff and CBSA employees. Accurate NRAD information is critical in every detention case\ndestined for a provincial correctional facility or IHC. Any transfer or placement to an IHC must be done in\nconsultation with IHC IEOs or IHC management. This includes transfers between non-IHC regions to an\nIHC.\n*The NRAD is not required if the detainee is released before any placement or transfer to a detention\nfacility has occurred.\nPlease refer to 9.5 Triage: IHC review of the initial NRAD – placement and classification for more\ninformation.\nPlease refer to 11. Transfer of detainees for non-IHC regions to an IHC for more information.\nInitial NRAD assessment by the arresting officer or officer assigned to the case\nOfficers must rely on facts and evidence for which there are reasonable grounds to believe or suspect,\ndepending on the IRPA allegation when assessing each risk and/ or vulnerability factor. The risk and\nvulnerability factors when completing the NRAD are as follows:\n Risk factors #1 and #2 allocate points if there are reasonable grounds to suspect a detainee is\ninadmissible due to security grounds or organized criminality.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 1 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": " Risk factor #3 allocates points based on the number of years that have passed since the last\nknown offence (this does not apply to in Canada criminality) or conviction, if any, which may\ncause inadmissibility for serious criminality or criminality. Offences where an individual was found\nnot guilty or where charges have been withdrawn must not be counted in the assessment.\n For the purpose of completing risk factors #4 and #5, an officer may consider the last\noutstanding charge if the person has been charged but the trial has not been concluded, or the\nconviction date set. These questions apply equally to persons who have committed violent acts\nassociated with inadmissibility pursuant to paragraph A35(1)(a). Offences where an individual\nwas found not guilty or where charges have been withdrawn must not be counted in the\nassessment. The following table offers a general overview of common non-violent crimes, violent\ncrimes and severely violent crimes:\nCrime types Common crime examples (with Criminal Code of Canada\nreferences)\nNon-violent crime  Possession of child pornography (section 163.1(4))\n Operation while impaired (section 320.14)\n Theft (section 322)\n Breaking and entering with intent, committing offence or\nbreaking out (section 348)\n Fraud (section 380)\n Possession of a controlled substance (section 4 of the\nControlled Drugs and Substances Act)\n Trafficking in substance (section 5 of the Controlled Drugs\nand Substances Act)\nThreats or violent crime  Uttering threats (section 264.1)\n35\n Assault (section 265)\n Sexual assault (section 271)\n Includes all severely violent crimes (see below)\nSeverely violent crime  Assault with a weapon or causing bodily harm (section\n267)\n Sexual assault with a weapon, threats to a third party or", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 2 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": "causing bodily harm (section 272)\n Aggravated sexual assault (section 273)\n Murder (section 229)\n Manslaughter (section 234)\n Robbery (section 343)\n Torture (section 269.1)\n Risk factor #6 allocates points if in the last two years, a detainee was involved in a serious incident\nduring the arrest or was involved in a disciplinary action as a result of a major breach of the detention\nfacility rules of an IHC, a provincial or a federal correctional facility or a port of entry or inland office\ncell. It includes disciplinary actions that have occurred in detention facilities outside Canada. The\nCBSA’s National Immigration Detention Standard on Prevention and Management of Breaches\ndefines a major breach as the following: An act whereby a person commits, attempts to commit,\nand/or incites behaviour or acts that are violent, harmful to others or cause an unsafe environment for\ndetainees and other persons. Disciplinary action: a response to detainee behavior associated with\na breach of the facility rules or Canadian law.\n Risk factor #7 allocates points if a detainee previously escaped or attempted escape from legal\ncustody (e.g. from a detention facility or from the custody of an officer).\n Risk factor #8 allocates points if a detainee remains the subject of an unexecuted criminal warrant\nfor arrest. When completing the NRAD, warrants issued under immigration or traffic laws or other\nsuch statutes are not considered as criminal warrants and would not be applicable for this risk factor.\n Vulnerability factor #1 reduces points if a detainee is a vulnerable person. Only one vulnerable\ncategory can be selected even if the detainee is part of more than one vulnerable category. Where a", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 3 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": "vulnerability has been identified on the NRAD, an assessment for referral to a Community Case\nManagement and Supervision (CCMS) service provider must be completed within 72hrs of the\nvulnerability being noted. Unless advised otherwise by health professionals, IHC staff will engage\nwith vulnerable detainees daily and log these interactions in DAMS.\nFor information on vulnerable persons, see section 6.6.\nAdditional Information\nDetails and any additional information supporting the officer’s recommendation (e.g. details of key risk\nfactors, the detainee’s behaviour, details given by the detainee, incidents and changes in the facility type\nfor detention). This includes the official language in which the detainee prefers to receive services.\nPreferred Official Language of services\nUnder Section 3(3)(d) of the IRPA, and Part IV of the Official Languages Act (OL) the CBSA must\nconsider official language preference when deciding where to place an immigration detainee. Neither the\nIRPA nor the OL require that the placement decision be based solely on official language preference, but\n36\nrather that preference be considered as one factor among others when determining in which facility to\nplace an immigration detainee. The proximity of a provincial detention facility offering services in the\npreferred official language will also be a factor in deciding where to place a detainee. To aid in these\nconsiderations, refer to the document Language Profile of Provincial Correctional Facilities in Annex E.\nOfficer Assessment\nBased on the total sum of points attributed to the risk and vulnerability factors, a detainee should be\ndetained in a detention facility according to the total score, as follows:\n 0 to 4 points = IHC (where available)", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 4 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p5", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": " 5 to 9 points = IHC or provincial correctional facility (default to IHC where risk can be mitigated)\n 10 points or more = provincial correctional facility\n*In IHC regions, consultation with IHC managers or an IHC IEO should occur prior to placement of a\ndetainee within an IHC or provincial correction facility. For more information on triage, see section\n9.5.1.\nPorts of entry and inland offices in close proximity to an IHC must triage detainees for classification and\nplacement in an IHC or in a provincial correctional facility. Although ports of entry and inland enforcement\noffices not located in close proximity to an IHC can solely refer detainees for placement in a provincial\ncorrectional facility, officers will consult with a Superintendent or higher regional authority for port of entry\ncases, or an Inland Supervisor or higher regional authority for inland cases prior to transporting the\ndetainee. Inland enforcement offices may later refer detainees for transfer to an IHC based on the\ndetainee’s NRAD total score (see section 11). IHC managers or IEOs are the ultimate decision makers to\ndetermine if a detainee’s risk factors and behaviour can be appropriately managed within the IHC.\nTo ensure procedural fairness of each assessment or subsequent assessment, the detainee must be\ninformed of the risk and vulnerability factors taken into consideration, and officers must ask if there is\nanything the detainee would like to add that may impact the officer’s recommendation before completing\nthe assessment. The officer is not bound by the information given by the detainee; however, the\ninformation must be taken into consideration in compliance with procedural fairness. If a detainee refuses", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 5 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p6", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": "to speak with the officer, the officer should rely on the other information sources to complete the\nassessment (e.g. a file review, security guards’ observations, incident reports and a designated\nrepresentative). If the detainee was not afforded an opportunity to provide additional information, the\nofficer must provide the rationale on the NRAD.\nDetails of the key risk factors, criminal convictions, the detainee’s behaviour, preferred language of\nservice, or any other information supporting the officer’s recommendation must be recorded in the\nAdditional Information section of the NRAD. This section must be completed in full, statements such as\n\"refer to file\" are not acceptable notes to support the recommendation.\nThe decision must be communicated to the detainee, the NRAD must be placed in the detainee’s case\nfile and a copy of the form must be given to the following:\n the detainee or designated representative (by hand, by mail or electronically); and\n the detention facility personnel.\n37\nParagraph 8(2)(a) of the Privacy Act (consistent use) allows the disclosure of information where the\ndisclosure is made for the purpose for which the information has been obtained. The individuals are being\ndetained for IRPA purposes regardless if the detention facility is owned or not by the CBSA, and the\ndisclosure is to ensure the safety of the detainee, other detainees and staff where the detainee is being\nheld.\nFor NRAD initial assessment, the detention placement recommendation shall be reviewed prior to the\nplacement of a detainee in a detention facility by the authorities outlined in section 9.6 (see section 9.6,\nmanagement review of detention decision, for more details).\nSubsequent assessments", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 6 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p7", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": "Until the person is released from detention, a subsequent assessment using the NRAD form [BSF754]\nmust be completed:\n At least once every 60 days after every assessment if detainees are detained in a provincial\ncorrectional facility; or\n Sooner if new information or a change in circumstances has a repercussion on the detainee’s\ntotal score or the detention placement regardless of the detention facility.\n For detainees held in an IHC, a NRAD reassessment should be completed if there is a change in\ncircumstances that could affect the NRAD score.\nSubsequent assessments must be supported by information to corroborate the status quo or the change\nin the facility type for detention. For detainees held in an IHC, the responsibility lies with officers working\nat the IHC. For detainees held in a detention facility elsewhere (such as a provincial correctional facility),\nthe responsibility lies with a DLO or an officer designated to perform this function and the assessment\nshall be reviewed by an Inland Supervisor or higher regional authority. Changes in the person’s risk and\nvulnerability factors, and the ability to mitigate that risk within an IHC should be considered at each\nassessment. Where a vulnerability has been identified on the NRAD, an assessment for referral to a\nCommunity Case Management and Supervision (CCMS) service provider must be completed within 72hrs\nof the vulnerability being noted. Unless advised otherwise by health professionals, IHC staff will engage\nwith vulnerable detainees daily and log these interactions in DAMS.\nRequests for an early subsequent assessment may be received from individuals (e.g. counsels and\ndetainees) from time to time. These requests must be responded to with notes to file and any new", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 7 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p8", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": "circumstance must be taken into consideration. When a request is made, if the officer responsible for\nfilling out the subsequent assessment is of the opinion that no circumstance has changed (i.e. no impact\non the NRAD total score of the detainee) then, no early subsequent assessment is needed. However, a\nformal response must be sent to the requestor, which will explain the NRAD subsequent assessment\nprocess and the decision.\nDetainees medically unfit for placement or transfer\nIf a health care professional does not recommend moving a detainee because of a medical condition, the\ninformation must be communicated to an IHC manager. In the case of disagreement, the IHC manager is\nthe ultimate decision maker to authorize, or deny a detainee’s placement or transfer.\n38\nThe decision to authorize or deny the placement or transfer should be made in consultation with IHC\nhealth care professionals and take into consideration the safety and well-being of the detainee, other\ndetainees and staff. Due to information privacy laws, health care professionals may not be authorized to\ndisclose details or personal information to CBSA staff. However, they can make recommendations on\nhow to facilitate a detainee’s placement or transfer or give advice regarding when a detainee should be fit\nfor transfer. If an IHC manager concurs that a detainee is not medically fit for transfer, it should be\ndocumented on the NRAD form [BSF754] in the additional information section. Regular follow ups should\nbe done with the health care professionals in case the detainee’s medical condition improves.\nIn accordance with the guidelines set out in section 9.1, completed NRAD forms must be uploaded to\nGCMS within 48 hours of the initial assessment and within 7 days of a subsequent assessment. In", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 8 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-4-p9", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.4", + "marginal_note": "Procedure: National risk assessment for detention – initial and", + "part": "Detention", + "division": "", + "heading": "", + "text": "addition, the final score obtained during the NRAD and the vulnerability factors must be registered in\nGCMS as soon as possible by the officer or by a manager in the inland office (if the GCMS is done by an\nOfficer at the POE).", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.4 (Procedure: National risk assessment for detention – initial and) (part 9 of 9)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-5-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.5", + "marginal_note": "Triage: IHC review of the initial NRAD – placement and", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.5. Triage: IHC review of the initial NRAD – placement and\nclassification\nIn IHC regions (Québec, Greater Toronto Area and Pacific) all continued detention cases must have the\ninitial detention placement decision reviewed by an inland enforcement officer working at the nearest IHC\n(Laval, Toronto, Surrey) The review of the initial detention placement is not required in non-IHC regions\n(Atlantic, Northern Ontario, Southern Ontario and Prairies).\nIn the event, based on operational requirements that the review of the initial detention placement is done\nremotely (e.g. by phone or email) it must be done prior to the placement of a detainee in a detention\nfacility. In the unlikely event that this cannot be done the rationale must be notated on the NRAD.\nEvery effort must be made to use the IHC as the default detention facility for placement where the level of\nrisk posed by the detainee may be mitigated. While the NRAD provides for an initial assessment of\nplacement, each case must be further evaluated to maximize use of the IHCs and minimize to the\ngreatest extent possible the use of provincial facilities for immigration detention.\nThe inland enforcement officer working within the IHC should consider the following when triaging -\nclassifying and placing the detainee within the appropriate detention facility: National Risk Assessment for\nDetention [BSF754];\n39\n1) Detainee Medical Needs Form [BSF674];\n2) Notes on file (e.g., criminal history, circumstances and nature of offences, past violence,\nassaults and escapes), administrative summaries, available reports (i.e., GMCS, NCMS,\nDAMS, law enforcement, and open source);\n3) The IHC IEO must consider the totality of the case including extenuating circumstances", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.5 (Triage: IHC review of the initial NRAD – placement and) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-5-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.5", + "marginal_note": "Triage: IHC review of the initial NRAD – placement and", + "part": "Detention", + "division": "", + "heading": "", + "text": "related to personal history/past behaviour, medical/ psychiatric history and information\ngathered during conversations with the detainee;\n4) IHC IEOs should also speak with medical services following their initial assessment and\nconsider their placement recommendations prior to finalizing the decision;\n5) The IHC IEO should, where possible, interview the detainee to gain a better\nunderstanding of the risk the person may pose and if the risk can be mitigated within the\nIHC;\n6) Only where risk cannot be mitigated (with a high degree of certainty) should a detainee\nbe placed in a provincial facility. Classification and placement within a provincial facility\nis in accordance with provincial procedures.\nIt is also advisable to speak with the arresting officer about the NRAD risk and vulnerability factors in\ncases where additional information may assist in detainee classification and placement decision. Once\nthe initial NRAD placement decision has been reviewed by the IHC IEO, the name of said IEO must be\nrecorded on NRAD form. In a situation where significant amendments are required to the initial NRAD\ntotal score or detention placement, the IHC IEO is responsible for filling out a new NRAD form (BSF754).\nAn IHC IEO placement and classification may be audited by an IHC manager. The IHC manager is the\nultimate decision makers to determine if a detainee’s risk factors and behaviour can be appropriately\nmanaged within the IHC.\nOngoing classification and placement of detainees within detention\nfacilities\nIn IHC regions, every effort must be made to leverage the IHC as the default placement location. In\naddition, the General Living Units should be utilized as the default living area unless there is the presence\nof risk factors that could not be mitigated.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.5 (Triage: IHC review of the initial NRAD – placement and) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-5-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.5", + "marginal_note": "Triage: IHC review of the initial NRAD – placement and", + "part": "Detention", + "division": "", + "heading": "", + "text": "The detainees must be afforded the opportunity to discuss their classification and placement at\nadmission, during orientation, or any time while under Immigration detention. Should a detainee wish to\nspeak with an officer either within an IHC or at a provincial detention facility the officer should make\nthemselves available as soon as practicable.\nThe classification and placement of an individual is not static. It is dynamic and can evolve over time\nbased on observations and the assessment of behaviours exhibited within the IHC or provincial\ncorrectional facility. IHC IEO must reassess classification and placement regularly, in conjunction with the\nDLO (provincial facilities), and when any changes in detainee behaviour are noted or new information is\nreceived regarding the risk the detainee poses to themselves and/or others. The review of detainee\nclassification and placement continues until release regardless of placement (IHC or provincial facility).\nClassification and placement decisions must be communicated to the detainee in a language or manner\nthe detainee can understand, this may include the use of an interpreter.\nAs a matter of principle and for safety and security reasons the following must be applied when placing or\nclassifying individuals:\n Men and women are to be separated;\n Unaccompanied minors are to be separated from adults;\n40\n Family unity: children will remain with a parent/legal guardian within the IHC, unless it is in the\nbest interests of the child.\nOther separation criteria may be justified to protect detainees in situations of particular vulnerability due\nto:\no Age;\no Health condition;\no Ethnicity;\no Sexual orientation or gender identity.\nFor information on vulnerable persons, see section 6.6.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.5 (Triage: IHC review of the initial NRAD – placement and) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-6-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.6", + "marginal_note": "Management review of detention cases for quality assurance", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.6. Management review of detention cases for quality assurance\nDespite not being a legislative requirement, the CBSA has established an administrative process to\nensure management visibility of all continued detention cases. This process will ensure that the term\n“continued detention” refers to the decision, following an arrest, to maintain detention and have the\nindividual placed in a detention facility. No management permission is needed for officers to initiate a\ndetention. In addition, no management review is needed if the arresting officer determines release is\nappropriate.\nAll continued detention cases shall be reviewed by one of the following members of management:\n a Superintendent (FB05) or higher regional authority for all Port of Entry cases; or,\n an Inland Supervisor or Manager (FB05/FB06) or higher regional authority for all Inland cases\nThe management personnel conducting the review of the detention must have experience in the\napplication of the IRPA and to be aware of detention and release procedures. In addition, they must have\naccess to GCMS.\nThe Management Review must be done in person prior to the IRB’s first detention review. Management\nreviewing the detention case must consider any new information and be able to answer this question:\n Does the legal authority exist in the IRPA for this detention?\nThe management review should focus on the legal authority of the detention and when clarification is\nnecessary, they should ask questions to better understand the relevant facts of the case. The following\npoints must be clarified: what is the detainee’s immigration status (permanent resident, protected person\nor foreign national)? Where the detention has occurred (in Canada or on entry into Canada)? What are", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.6 (Management review of detention cases for quality assurance) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-6-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.6", + "marginal_note": "Management review of detention cases for quality assurance", + "part": "Detention", + "division": "", + "heading": "", + "text": "the applicable detention grounds? If there is no justification for continued detention, the reviewing\nmanagement must take the necessary steps to ensure the immediate release of the detainee.\nReviewing management must complete the Detention Oversight Form to confirm that all detention forms\nare properly completed, placed in the person’s file, and, required forms are uploaded in GCMS. They\nmust ensure that detention factors are clearly stated in the notice of arrest and/or detention [BSF561],\naligned with the selected detention grounds and supported by relevant facts. They must ensure that the\nbest interest of the child and ATDs have been considered and if they would be deemed appropriate at a\nlater time. Finally, reviewing management must confirm that data entry in NCMS is done or arrangements\nwere made for their completion. The Detention Oversight Form is to be uploaded into GCMS following\n41\ncompletion by the manager or supervisor reviewing the file. See Annex A – Detention Oversight Form,\nfor more information.\nIf any error is noted on a form during the management review, the reviewing manager or supervisor\nshould undertake to provide immediate feedback to the officer, and take corrective measures as\nnecessary. If a minor error is noted after a form is completed and signed and prior to being uploaded into\nGCMS, the form should be returned to the original officer for correction. Minor errors include\ntypographical errors such as a spelling error in a name or incorrect date of birth. To correct the form, the\nofficer should draw a line through the incorrect entry, initial and date the entry, then document the correct\ninformation on the form. It isn’t necessary to complete a new form in order to correct a minor error. The", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.6 (Management review of detention cases for quality assurance) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-6-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.6", + "marginal_note": "Management review of detention cases for quality assurance", + "part": "Detention", + "division": "", + "heading": "", + "text": "corrected form should then be uploaded into GCMS as required.\nOnce the detention paper file is completed and has been reviewed by management, it may leave the\noriginating port of entry or inland enforcement office.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.6 (Management review of detention cases for quality assurance) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-7", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.7", + "marginal_note": "Review of Detention", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.7. Review of Detention\nAlthough there is no legislated requirement to review a detention decision prior to the 48-hour review by\nthe IRB, the Review of Detention form [BSF920] was created to capture an officer’s decision to exercise\ntheir authority under A56 and facilitate situations in which a review of the reasons for detention is deemed\nnecessary. The form allows a designated officer to capture the rationale for continued detention or the\nrationale for release and outline any suitable ATD. Only those officers who have completed the Minister’s\nDelegate Review course should be conducting reviews under A56(1). The review should only be done\nprior to the 48-hour review by the IRB.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.7 (Review of Detention)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-9-8", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 9.8", + "marginal_note": "Detention review after 48-hours and informing the IRB", + "part": "Detention", + "division": "", + "heading": "", + "text": "9.8. Detention review after 48-hours and informing the IRB\nIf the detention continues, the Immigration Division of the IRB will review the reasons for continued\ndetention within 48 hours following the start of the detention or as soon as possible thereafter. As\nrequired under A55(4), the officer shall without delay give notice to the Immigration Division by sending\nthe form “Request for admissibility hearing/detention review pursuant to the Immigration Division rules”\n[BSF524] to the registry by facsimile. The officer will retain in the file evidence that the Immigration\nDivision has been informed. A copy of the facsimile receipt is evidence that the transmission has been\ncompleted. For more information on detention review pursuant to A57, as well as the rules applicable to\nthe Immigration Division, see ENF 3, Admissibility, Hearings and Detention Review Proceedings. See\nsection 9.1, data entry, for more information.\nShould an individual be subject to a 48-hour detention review and detention be maintained by the IRB\nmember, the detainee must be brought before the Immigration Division at least once in the seven-day (7)\nperiod following the first review, then at least every thirty (30) days following the preceding review. When\nthe Immigration Division has jurisdiction, that is, after the first detention review is held, hearings officers\nmay make an application for an early detention review if continued detention is no longer justified.\n42\nThe process for a designated foreign national and an individual named in a security certificate are\ndifferent. For more information on detention review pursuant to the Immigration Division Rules, see\nENF 3, Admissibility, Hearings and Detention Review Proceedings.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 9.8 (Detention review after 48-hours and informing the IRB)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10", + "marginal_note": "Care of detainees", + "part": "Detention", + "division": "", + "heading": "", + "text": "10. Care of detainees\nCBSA is responsible for ensuring that individuals who are detained under IRPA are detained in an\nenvironment that is safe and secure and that all reasonable efforts are made to meet the physical,\nemotional and spiritual needs of the detained individual.\nShort-term detention rooms or cells\nA short-term detention room or cell is an area that the CBSA has designated as secure at a POE office or\nan Inland Enforcement office pending the detainee placement or transfer to another location. A short-term\ndetention room or cell is not considered as a detention facility because it was not designed for long\ndetentions and few services are available to detainees. Every reasonable effort should be made to ensure\nthat a detainee does not spend more than 24 consecutive hours in a short-term detention room or cell\nbefore their release or transfer to a more suitable detention facility.\nOfficers or contracted security guards must conduct a visual check or video monitoring of detainees while\nin short-term detention rooms or cells at least once every 15 minutes by using the Detention cell log\n[BSF481]. Officers should consult and follow the EN manual Part 6 – Chapter 2: Care and Control of\nPersons in Custody.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10 (Care of detainees)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.1", + "marginal_note": "Procedure: Request for personal items or blankets while in a", + "part": "Detention", + "division": "", + "heading": "", + "text": "10.1. Procedure: Request for personal items or blankets while in a\nshort-term detention room or cell\nIf a detained individual requests a personal item of clothing or blanket for warmth, officers should conduct\na risk assessment to determine the level of risk or harm if an item is provided to the individual.\nConsiderations:\n Risk of self-harm\n Mental health concerns\n Underlying medical conditions\n Risk to officers\n Criminal history\n Behaviour (e.g. threat cues)\n*Risk assessment factors to be considered by the officer are non-exhaustive and are dependent on the\nsituation and/or circumstances\nOnce the risk assessment is completed and the officer has not identified any apparent safety concerns,\nthe officer should consider providing the individual with their own clothing first. It is important that officers\nexamine the clothing prior to providing it to the detainee for contraband or weapons. However, in the\n43\nsituation where no additional clothing is available or suitable, the officer should then provide a disposable\nblanket.\nIn cases where the individual requests a personal item or blanket, officers should record the request and\naction(s) taken in their CBSA notebooks.\nOnly single use blankets are to be provided. Re-usable blankets provide additional risks related to the\ntransmittal of disease.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.1 (Procedure: Request for personal items or blankets while in a)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-2-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.2", + "marginal_note": "Procedure: suicidal and self-harmful detainee", + "part": "Detention", + "division": "", + "heading": "", + "text": "10.2. Procedure: suicidal and self-harmful detainee\nThe IRPA does not authorize the detention of an individual for their own safety or protection, except with\nspecial considerations for minor children. Persons who are believed to be suicidal or prone to self-harm\nare considered vulnerable persons, see sections 6.6. If an officer has reason to believe an individual is\nsuicidal or prone to self-harm, the first intervention is for the officer to show concern and speak with the\nindividual. For more information, officers should complete the online training course entitled “Prevention\nof Suicide and Self-Harm among Detainees” (H2047-P) available through the CAS portal.\nMental health questions are of a sensitive nature and should be asked in a non-judgemental way. Officers\nshould use a friendly and accepting tone and allow the person time to speak. Contrary to common belief,\nasking someone if they are having thoughts of suicide will not make them suicidal. If an officer is\nconcerned about a risk of suicide, the officer must ask questions to the detainee. The following examples\ncan be used to determine if the detainee has thoughts of suicide:\n The situation you describe sounds serious. I want to know if you have considered or are\nconsidering suicide?\n I can see you are feeling down or panicky. Sometimes when people feel like this, they have\nthoughts of killing themselves. Are you thinking of suicide?\nIf a detainee says that they are thinking about ending their life, the officer must acquire additional\ninformation from the detainee. The following examples can be used to investigate the detainee’s plan for\nsuicide:\n Do you have a plan for suicide?\n How do you plan to take your life?\n Where do you plan to do this?\n Do you have a means to do this?", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.2 (Procedure: suicidal and self-harmful detainee) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-2-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.2", + "marginal_note": "Procedure: suicidal and self-harmful detainee", + "part": "Detention", + "division": "", + "heading": "", + "text": "Those at the highest risk for suicide in the near future have a specific suicide plan, the means to carry out\nthe plan, a time set for doing it and an intention to do it. If a detainee has a plan and intends to end\nhis/her life soon, do not leave a suicidal person alone. Officers should call an IHC health care\nprofessional (if available) or Local Crisis Centres right away and put them in contact with the detainee.\n44\nAt a port of entry or an inland enforcement office, if a detainee is believed to be suicidal or self-harmful, a\nconstant visual check or video monitoring by an officer or a contracted security guard is required by using\nthe Detention cell log [BSF481]. The detainee is to be kept under continuous monitoring until:\n it is discontinued by the immediate superintendent/manager on duty;\n the detainee is released from custody; or\n the detainee is transferred to an IHC or a provincial correctional facility.\nOnce the detainee has been transferred to an IHC or a Provincial correctional facility, the health care\nprofessional will make an assessment to determine if the monitoring should continue or not. If transferred\nto an IHC, and it is determined that enhanced monitoring is required, the detainee shall be monitored in\naccordance with the post orders of the facility and monitoring will include visual and verbal engagement of\nthe detainee by CBSA personnel or contracted guard services when and where necessary.\nWhere a vulnerability has been identified on the NRAD, an assessment for referral to a Community Case\nManagement and Supervision (CCMS) service provider must be completed within 72hrs of the\nvulnerability being noted. Unless advised otherwise by health professionals, IHC staff will engage with\nvulnerable detainees daily and log these interactions in DAMS.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.2 (Procedure: suicidal and self-harmful detainee) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-3-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.3", + "marginal_note": "In-custody death or life threatening condition", + "part": "Detention", + "division": "", + "heading": "", + "text": "10.3. In-custody death or life threatening condition\nThe document, CBSA guidelines for responding to a serious incident and death in CBSA custody or\ncontrol, provides guidance to CBSA staff when there is a serious injury or death in CBSA custody or\ncontrol, ensuring consistency with the mandate of CBSA, and the objectives to demonstrate\nresponsibility, accountability, and transparency of CBSA’s activities.\nTimely and consistent responses to serious injury or death in CBSA custody or control are necessary to\nassure the public that the safety of the public, individuals within our care and custody, and staff is CBSA’s\ntop priority. This is done by:\n ensuring the appropriate law enforcement agency has been contacted where appropriate;\n initiating an internal administrative review when any serious injury or death occurs in CBSA\ncustody or control as soon as all immediate facility or safety issues have been addressed;\n drafting a thorough and complete report with clear recommendations and taking appropriate\naction following an incident;\n sharing any findings that could reduce the likelihood or impact of a similar incident occurring in\nthe future; and\n cooperating with the Police, Coroner or other investigative Agency in their investigation of the\nincident, while ensuring that issues of jurisdiction are properly considered.\nRefer to CBSA guidelines for responding to a serious incident and death in CBSA custody or control for\ndetailed information.\nAnnex E: Protocol Regarding the Death of an Individual Detained Pursuant to the I mmigration and\nRefugee Protection Act provides instruction and operational guidance for CBSA staff and third-\nparty service providers working within a CBSA IHC or providing transportation services. In addition, it\n45", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.3 (In-custody death or life threatening condition) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-3-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.3", + "marginal_note": "In-custody death or life threatening condition", + "part": "Detention", + "division": "", + "heading": "", + "text": "provides guidance on situations where death occurs at a hospital, in a hearing room or any pre-\nhearing holding area, or during transfer between any of these aforementioned locations where an\nindividual is under detention pursuant to the IRPA. The second part of the protocol provides instruction\nand operational guidance for CBSA staff in situations where a death occurs in a federal, provincial or\nmunicipal correctional facility where the deceased was detained pursuant to the IRPA.\nNote: This protocol does not apply in situations where death occurs at a Port-of-Entry, during an inland\ninvestigation or within the removals stream pursuant to IRPA.\nNotification for in-custody death or of a life threatening condition\nIn case of in-custody death, where there is an investigative body (e.g. local police or RCMP) involved, the\nnotification of emergency contact will be undertaken by them. In cases where an investigative body is not\nundertaking the notification, it will be done by the regional director general.\nIn the event of a life threatening health condition to the detainee in CBSA custody or control during the\ndetention period, if requested by the detainee on the DMN form [BSF674], the duty manager has the\nresponsibility to contact the emergency contact. Phone calls to emergency contact(s) are only required in\ninstances where we have reasons to believe the condition is life threatening or death is imminent.\nProtocol for public communication in the event of a death or serious injury\nThe CBSA has developed a protocol concerning communications procedures when dealing with the\ndeath or serious injury of a detainee while in CBSA custody. The objectives are:\n To adopt a clear, consistent and transparent approach within the CBSA for public", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.3 (In-custody death or life threatening condition) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-10-3-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 10.3", + "marginal_note": "In-custody death or life threatening condition", + "part": "Detention", + "division": "", + "heading": "", + "text": "communications related to deaths and serious injuries in CBSA custody, while respecting federal\npolicies and legislation such as the Privacy Act and to be in line with Public Safety\nportfolio partners.\n To provide a common platform to communicate such occurrences in a transparent and\nconsistent manner;\n To ensure that all CBSA communications align with the CBSA Communications Policy and the\nGovernment of Canada (GoC) Communications Policy; and comply with the Privacy Act, Official\nLanguages Act (OLA), CBSA policies, and other associated regulations.\nPlease refer to the Public Communications Protocol – In-custody Death or Serious Injury for more details.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 10.3 (In-custody death or life threatening condition) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11", + "marginal_note": "Transfer of detainees to an IHC", + "part": "Detention", + "division": "", + "heading": "", + "text": "11. Transfer of detainees to an IHC\nThis section is intended to clarify options regarding placement and transfer of detainees to an IHC (i.e.\nLaval, Québec, Toronto, Ontario, and Surrey, British Columbia). Based on the detainee’s NRAD score,\nports of entry and inland offices near an IHC may refer detainees for placement in an IHC, if transport can\nbe easily facilitated the same day, or in a provincial correctional facility. Ports of entry and inland\n46\nenforcement offices not located in close proximity to an IHC can solely refer detainees for placement in a\nprovincial correctional facility. However, inland enforcement offices may later refer detainees for transfer\nto an IHC based on the detainee’s total NRAD score. The guiding principles for achieving national\nconsistency in the placement and transfer of detainees from a non-IHC region to an IHC region are as\nfollows:\n IHCs play a key role in the effective management of the CBSA national detention program, and\nare available to all regions;\n Based on the NRAD assessment, IHCs must accommodate the maximum number of detainees\npossible, as to reduce reliance on provincial correctional facilities, regardless of where a\ndetention is originating from;\n Detainee placement and transfer requests from non-IHC regions must be accepted in the same\nway as if requests were originating from within the IHC region;\n Where detainee transfer to an IHC is requested, all efforts must be made to facilitate detainee\nplacement and transfer to an IHC, and in case of disagreement, the IHC manager is the ultimate\ndecision maker.\nIHCs and areas served\nPlacement in an IHC Transfer to an IHC\nThe following ports of entry and inland\noffices are near enough to an IHC to expect\na same day detainee transport:", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11 (Transfer of detainees to an IHC) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11", + "marginal_note": "Transfer of detainees to an IHC", + "part": "Detention", + "division": "", + "heading": "", + "text": "The following inland offices are further away\nfrom an IHC but may request a detainee\ntransfer to an IHC:\nLaval\nIHC\n Northern Ontario Region: Cornwall,\nPrescott, Lansdowne and Macdonald-\nCartier International Airport ports of\nentry.\n Northern Ontario Region: Cornwall,\nOttawa and Gatineau inland\nenforcement offices.\n Atlantic region: all inland enforcement\noffices.\nToronto\nIHC\n Southern Ontario Region: Fort Erie,\nNiagara Falls Rainbow Bridge,\nQueenston Lewiston Bridge and London\nInternational Airport ports of entry.\n Southern Ontario Region: London and\nNiagara Falls inland enforcement\noffices.\n Northern Ontario Region: Kingston and\nThunder Bay inland enforcement\noffices.\n Southern Ontario Region: Windsor and\nSarnia inland enforcement offices.\nBC IHC  Pacific Region: Vancouver and lower\nmainland International Airports port of\nentry.\n Pacific Region: Vancouver and lower\nmainland inland enforcement offices.\nPrairies Region: All inland enforcement\noffices.\nPacific Region: All inland enforcement\noffices.\nTransfers to an IHC other than the identified serving IHC, may be considered on a case by case basis,\nbut should not be common practice. The form, Request to Transfer Detainee [BSF915] to an Immigration\nHolding Centre can be used to request a transfer to an IHC.\n47", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11 (Transfer of detainees to an IHC) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.1", + "marginal_note": "When a detainee placement or transfer should be considered", + "part": "Detention", + "division": "", + "heading": "", + "text": "11.1. When a detainee placement or transfer should be considered\nDetainees with a NRAD total score of 0 to 4 and 5 to 9 points (if risk can be mitigated) may be placed in\nor transferred to an IHC. In non-IHC regions, prior to making the placement or requesting the transfer of a\ndetainee to an IHC, officers must take into consideration any relevant factors including the following:\n the expected length of detention;\n the imminence of a release on an alternative to detention;\n the case complexity;\n outstanding criminal court matters\n the detainee’s opinion;\n the detainee’s family location and relationships;\n the detainee’s legal or designated representative’s opinion;\n other personal ties to a specific region.\nWhile efforts should be made, non IHC-regions have flexibility in determining if and when a detainee\nshould be placed or transferred to an IHC-region. It is expected that some cases can be deemed not\nappropriate for placement or transfer to an IHC region for one or several factors listed above. These\nfactors and any additional information supporting an officer’s decision not to request a transfer to an IHC\nmust be recorded in the NRAD narrative section.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.1 (When a detainee placement or transfer should be considered)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-2-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.2", + "marginal_note": "Requirements", + "part": "Detention", + "division": "", + "heading": "", + "text": "11.2. Requirements\nIn order to achieve national consistency, IHCs will consider requests for transfers from both within and\noutside the region where an IHC currently operates. The office requesting a transfer to an IHC will\ncomplete the Request to Transfer Detainee to an Immigration Holding Centre form [BSF915] and will\nsubmit this form to the IHC. The IHC manager or an assigned officer will review the form and all relevant\ninformation, and decide if the detainee is appropriate for transfer to the IHC. This information will be\ncommunicated back to the requesting office as soon as the decision is made.\nRequirements for the transfer to an IHC\nWhen a detainee is held in a provincial correctional facility, consideration for transfer to an IHC should be\ngiven by the DLO or an officer designated to perform this function.\nInland enforcement offices not located in close proximity to an IHC may refer detainees for transfer to an\nIHC based on the detainee’s NRAD total score. Requests for transfer to an IHC should not be undertaken\nbefore a 48 hour detention review. If the detention is maintained, transfers may be requested after the 48\nhour detention review for detainees transported by land or, after the seven day detention review for\ndetainees transported by air. In order to ensure management oversight and visibility of all detention\ncases, all decisions to transfer a detainee to an IHC shall be reviewed prior to the transfer by an IHC\nmanager. Where detainee transfer to an IHC region is requested, all efforts must be made to facilitate\ndetainee transfer, and in cases of disagreement, the IHC manager is the ultimate decision maker. Here\nare examples where it would be appropriate to transfer a detainee to an IHC:", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.2 (Requirements) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-2-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.2", + "marginal_note": "Requirements", + "part": "Detention", + "division": "", + "heading": "", + "text": " In a non-IHC region, the detention of an inadmissible foreign national has been maintained\nfollowing the seven-day detention review because the detainee is unlikely to appear for removal.\nThe DLO does not expect an early detention review prior to the 30 day review. In consultation\n48\nwith the detainee, the DLO recommends a transfer to an IHC. The detainee’s NRAD total score is\n3 and, after review by an IHC manager or designate, the detainee will be transferred to the IHC\nonce the transfer arrangements have been confirmed.\n In a non-IHC region, an inadmissible permanent resident’s detention has been maintained\nfollowing the 30 day detention review on the grounds of danger to the public. The officer\ndesignated to fill out the NRAD subsequent assessment does not expect that the detainee will be\nreleased at the next detention review and they continue to await a danger opinion from IRCC.\nThe officer also noted that the detainee would like to be transferred to an IHC and has relatives in\nthe IHC region. The detainee’s NRAD total score is 9. After discussion and review by an IHC\nmanager or designate, it is determined that the detainee’s risk factors and behaviour can be\nappropriately managed within the IHC. The detainee will be transferred to an IHC once transfer\narrangements have been confirmed.\nIn preparation for the detainee’s transfer and to ensure the safety and well-being of the detainee, other\ndetainees and staff, the requesting DLO or the officer designated to perform this function has the\nresponsibility to obtain the following information from the detention facility where the detainee is currently\nbeing detained prior to the transfer:\n Information regarding the detainee’s behaviour, incidents involving the detainee and/or reported\nbreaches of security;", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.2 (Requirements) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-2-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.2", + "marginal_note": "Requirements", + "part": "Detention", + "division": "", + "heading": "", + "text": " Information regarding physical and mental health needs and current treatments;\n The contact information of the healthcare professional at the provincial correctional facility;\n Comments and recommendations from the healthcare professional to ensure the detainee is\nsuitable for transfer.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.2 (Requirements) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-3-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.3", + "marginal_note": "Placement and transfer refusal", + "part": "Detention", + "division": "", + "heading": "", + "text": "11.3. Placement and transfer refusal\nIn exceptional circumstances, an IHC manager or designate may request the detainee placement or\ntransfer be postponed due to circumstances outside their control such as: a shortage of available space\nin the requested IHC section (male, female, and family) because it has nearly reached maximum capacity\n(over 85% occupancy), or a significant event is in progress (e.g., major disturbances such as protests, )\nwhich has temporarily reduced the IHC’s capacity. In addition, an IHC manager or designate may refuse\na detainee placement or transfer if the perceived risk posed by the detainee cannot be mitigated in the\nIHC. Transfers to an alternate IHC may be considered on a case-by-case basis, but should not be\ncommon practice.\nShould an IHC manager or designate be unable or unwilling to accept a detainee from a non-IHC region,\nthe rational and/or potential future transfer dates must be communicated by the IHC to the requesting\nregion and to NHQ Detentions Unit, Detention-Programs@cbsa-asfc.gc.ca.\n49\nDetainee case management\nDetainee case management following placement in an IHC\nWhen possible, the detaining office should continue to manage the detainee’s case file (e.g. investigation,\ndetention reviews and removal), and leverage remote working tools as required (e.g. teleconference and\nvideoconference) even after the detainee has been placed in an IHC. The case management would\nremain the responsibility of the detaining office along with any required systems updates (e.g. GCMS,\nNCMS). Detainee management and any associated system update will be the responsibility of the IHC.\nThe IHC will manage detention responsibilities such as: detention placement, discipline, NRAD and", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.3 (Placement and transfer refusal) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-3-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.3", + "marginal_note": "Placement and transfer refusal", + "part": "Detention", + "division": "", + "heading": "", + "text": "Detainee Medical Needs subsequent assessments, communication and meetings with community liaison\nofficer, NGOs, legal representatives, and other interviews, as required. Where the IHC does not have\ninformation to respond to detainee’s requests they should liaise with the file holder to obtain the required\ninformation.\nIf the detaining office is unable to manage the detainee’s case file (e.g. the hearings officers in the region\nare not available) then the whole detainee file must follow the detainee and the IHC region must be\nnotified. The referring superintendent, inland supervisor or assistant director must notify the receiving IHC\nwith the following information: UCI, a case summary and the next detention review date. The notification\nmust be sent to the following emails:\n Laval IHC: QUE_CPI_Agents_DL@cbsa-asfc.gc.ca,\nQUE_Mtl_ASFC_Aud_Det_Immigration_Adjoints_DL@cbsa-asfc.gc.ca and ASFC.O.I-R.DA/I-\nR.AD.O.CBSA@cbsa-asfc.gc.ca\n Toronto IHC: CBSA-ASFC_GTAR_EIOD-Dist_Holding_Centre@cbsa-asfc.gc.ca\n BC IHC: PAC-Dist_CBSA_EID_Detention_Operations@cra-arc.gc.ca\nDetainee case management following transfer to an IHC\nIf the office where a detention originated is unable to continue to manage the detainee case file once it\nhas been transferred to an IHC, the whole detainee file must be transferred with the detainee and the IHC\nmust be notified. The superintendent, inland supervisor or assistant director must make a formal request\nto the IHC regarding the file transfer at least two working days before the physical transfer of the\ndetainee(see above for notification emails) to allow for sufficient time to respond and make arrangements.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.3 (Placement and transfer refusal) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.4", + "marginal_note": "Notification", + "part": "Detention", + "division": "", + "heading": "", + "text": "11.4. Notification\nLegal Counsel\nIn the event of a transfer to another region or facility, the detainee has the responsibility to inform legal\ncounsel and family members of the transfer and new location, if so desired. The CBSA must inform\ndetainees of their responsibilities and afford them the opportunity to contact their legal counsel prior to the\nanticipated transfer. If a detainee requires legal aid assistance, he/she should be referred to the provincial\nlegal aid services in the region where he/she is currently detained.\n50\nImmigration and Refugee Board of Canada\nDetainee placement and transfer to an identified serving IHC will not have significant repercussions on\nthe Immigration and Refugee Board (IRB) process because it aligns for the most part with the current IRB\nregional structure.\nA detainee transfer to an IHC outside the scope of the IRB regional office that originally heard the matter\nrequires a notification from the receiving region as soon as possible to the board for the scheduling of the\nsubsequent detention reviews, and any other upcoming IRB hearings (e.g. a detainee transferred from\nPrairie regions to the Toronto IHC). Any such request to the IRB must be processed in accordance with\nthese guidelines (see ENF 3 Admissibility, Hearings and Detention Review Proceedings for more details).", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.4 (Notification)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-5-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.5", + "marginal_note": "Transport", + "part": "Detention", + "division": "", + "heading": "", + "text": "11.5. Transport\nThe transport of a detainee for placement or transfer in an IHC shall be undertaken in line with National\nDetention Standards for transport and the Enforcement Manual, Part 6, Chapter 8, on the vehicular\ntransport of persons under arrest or detention.\nTransport by contracted security guards or CBSA officers\nTo the greatest extent possible, contracted security guards should be used for detainee transport to and\nfrom facility locations. Where contracted security guards are not in place (i.e. regions without contracts),\nrequests to use contracted security guards from another region may be supported with the advance\napproval of the IHC manager or detentions program manager (i.e. a detainee from Northern Ontario\nregion is being transported to the Toronto IHC, and contracted security guards from Greater Toronto Area\nregion are requested for the transport). Requests for transfer should be timely and all parties should be\ninformed as soon as practicable to enable efficient planning and logistics, as well as minimize the use of\novertime and extra duty pay.\nContracted security guard contracts are in place in the following regions: Greater Toronto Area region,\nQuébec region, Prairies region, and Pacific region. Where a transport is inter-provincial, the contracted\nsecurity contract must support the use of contracted security guards for transport between provinces.\nDiscussions with the IHC or detentions program manager responsible for the administration of the\ncontracted security guard contract, as well as the contracted security supervisor or operational manager\nmay be required, to ensure that licensing in each province is in place.\nTransport by land\nAll security guard statements of work contain a clause, which includes travel within Canada and their", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.5 (Transport) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-5-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.5", + "marginal_note": "Transport", + "part": "Detention", + "division": "", + "heading": "", + "text": "travel is not limited to one region. Security guards can be from the originating region, the receiving region\nor a combination of both as appropriate and approved by the IHC or detentions program manager of both\nregions.\nTransport by air\nCurrently the use of contracted security guards for transport of detainees by air is not available. Where a\ndetainee is arrested and detained and requires transfer to an admitting facility within the same region,\n51\ntransport by air may be a viable option. Where transport by airplane is needed, transport of detainees will\nbe done by CBSA officers.\nThe assignment of CBSA officers to transport detainees (e.g. by air or the security guards are unable to\nmitigate the risk posed by a detainee) must be authorized by a delegated manager.\nTransport upon release\nIt is against the CBSA policy to use a federal government vehicle to transport non-detained passengers\ndue to liability concerns. This applies to all provinces regardless if the province insures the vehicle. The\nenforcement manual, part 6, chapter 8, vehicular transport of persons under arrest or detention, says: \"It\nis the policy of the CBSA to transport persons under arrest or detention when required in support of the\nenforcement and/or administration of CBSA legislation.\" CBSA officers do not have the legislated\nauthority to transport a person where the proceeding is not related to CBSA business. CBSA officers\ncannot use powers under the IRPA and IRPR to achieve goals that are not in relation with the Act or\nRegulations.\nUpon release, the individual is free to remain in the IHC region or to return to his home community in a\nnon-IHC region as long it does not contravene an imposed condition. Although it is not required by", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.5 (Transport) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-11-5-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 11.5", + "marginal_note": "Transport", + "part": "Detention", + "division": "", + "heading": "", + "text": "legislation, the IHC region will pay the cost of the individual returning home in order to ensure the\nindividual safely reaches his/her destination. Nevertheless, the individual may refuse the CBSA\nassistance and travel by his/her own means. After approval by an IHC manager, the individual including\ntheir personal effects, will be provided prearranged transport to the degree possible (or money) and\nitinerary to return to the final destination of:\n Place of original detention;\n home community in Canada; or\n any other destination no further in distance than the place of original detention, if the individual\nchooses.\nThe most economical means (e.g. public transit, bus, train or plane) and arrangements should be made to\navoid the need for overnight accommodation. However, when the individual’s intention is to remain in the\nIHC region, there is no need to do so.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 11.5 (Transport) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-12-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 12", + "marginal_note": "Procedure: release by officer before the first detention", + "part": "Detention", + "division": "", + "heading": "", + "text": "12. Procedure: release by officer before the first detention\nreview\nIn the event that the grounds for detention cease to exist before the Immigration Division has conducted\nthe first detention review (48-hours review), an officer or manager may release the person being detained\nunder A56(1). Detention may no longer be justified because an ATD that sufficiently mitigates the risk\nposed has been identified. The following table contains the main tasks that must be completed to release\nan individual before the first detention review.\n52\nTask Responsibility and\nReferences\nUploaded to\nGCMS\nPaper copies\nCase file\nDetainee or\ndesignated\nrepresentative\nDetention\nFacility\nIRB\nComplete the Review of Detention form [BSF920] Officer or member of\nmanagement team\nX X\nIf the detainee has already been placed or transferred to\na detention facility, f ill out form Authority to Release from\nDetention [BSF566]\nOfficer or member of\nmanagement team\nX X X\nIf any conditions applies, fill out the form\nAcknow ledgement of Conditions the Immigration and\nRefugee Protection Act [BSF821]\nOfficer or member of\nmanagement team\nX X X\nSee prescribed\nconditions below .\nSee ENF 8 Deposits\nand Guarantees\nSee ENF 34\nAlternatives to\ndetention\nData entry in GCMS and NCMS or make arrangement\nw ith the nearest inland enforcement office for the earliest\npossible data entry to NCMS.\nOfficer or member of\nmanagement team\nSee section 9.1 Data\nentry\nUse the original form Request for Admissibility\nHearing/Detention Review Pursuant to the Immigration\nDivision Rules [BSF524], w rite on it : RELEASED and\nnotify the IRB – Immigration Division\nOfficer or member of\nmanagement team\nX X X\nA56 authorizes the officer to impose any conditions that the officer considers necessary. These conditions", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 12 (Procedure: release by officer before the first detention) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-12-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 12", + "marginal_note": "Procedure: release by officer before the first detention", + "part": "Detention", + "division": "", + "heading": "", + "text": "are imposed using the “Acknowledgement of Conditions – IRPA” form [BSF821]. Procedures for\nDeposits and Guarantees are found in ENF 8, Deposits and Guarantees and procedures for ATD are\nfound in ENF34, Alternative to detention.\nPrescribed conditions for A34 Inadmissibility\nA56(3) states that if an officer orders the release of a permanent resident or foreign national who is the\nsubject of either a report on inadmissibility on grounds of security that is referred to the Immigration\nDivision, or a removal order for inadmissibility on grounds of security, the officer must also impose the\nprescribed conditions on the person. The conditions that must be imposed on a foreign national or\npermanent resident are set out in (R250.1). The designated CBSA official should use the BSF798 to\nimpose prescribed conditions and can refer to ENF5 Writing 44(1) Reports for additional information.\n53", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 12 (Procedure: release by officer before the first detention) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-12-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 12.1", + "marginal_note": "Release: mandatory arrest and detention of a designated foreign", + "part": "Detention", + "division": "", + "heading": "", + "text": "12.1. Release: mandatory arrest and detention of a designated foreign\nnational\nUnder sub-section A56(2) of IRPA, officers cannot release a designated foreign national who is detained\nand who was 16 years of age or older on the day of the arrival that is the subject of the designation in\nquestion until:\n(a) a final determination is made to allow their claim for refugee protection or application for\nprotection;\n(b) they are released as a result of the Immigration Division ordering their release under section 58;\nor\n(c) they are released as a result of the Minister ordering their release under section 58.1.\nFor more information on detention review process, see ENF 3, Admissibility, Hearings and Detention\nReview Proceedings.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 12.1 (Release: mandatory arrest and detention of a designated foreign)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-12-2-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 12.2", + "marginal_note": "Temporary releases", + "part": "Detention", + "division": "", + "heading": "", + "text": "12.2. Temporary releases\nThe CBSA sometimes removes a detained individual from a detention facility on a temporary basis in\norder to facilitate a required procedure in the enforcement process. For example, a detainee could be\ntemporarily removed from a facility in order to attend an interview with the consular representative of their\ncountry of citizenship for the purpose of obtaining a travel document. In these cases, Officers may\ncomplete the Authority to Release from Detention form [BSF566] and check the option “Into the custody\nof the Canada Border Services Officer or security personnel presenting this authority if the person is to be\nreturned to the detention facility on the same day”. This will allow the detention facility to release the\nindividual without the requirement to undertake their full discharge procedure.\n54\nAnnex A - Detention Oversight Form\n55\n56\nAnnex B – Child protection services and family centres\n Atlantic\no Nova Scotia Child Welfare Services (17 district offices)\no New-Brunswick child protection 1-888-992-2873 or after hours emergency services 1-800-\n442-9799 (8 regional sub-district).\no Newfoundland and Labrador Child Protection Services (4 Regional Health Authority)\n Quebec\no Association des centres jeunesse du Québec (16 administratives regions)\no Centre jeunesse de Laval, 450-975-4000\no Centre jeunesse de Montréal, 514-896-3100\no Batshaw Youth and Family Centers (Montréal), 514-935-6196\no Centre jeunesse de l’Estrie, 819-566-4121\no Centre jeunesse de la Montérégie, 450 679-0140\no Programme régional d'accueil et d'intégration des demandeurs d'asile, (PRAIDA)\n(514) 731-8531\n Northern Ontario\no Ontario Association of Children’s Aid Societies (Ottawa, Cornwall, Lansdowne and\nPrescott)", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 12.2 (Temporary releases) (part 1 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-12-2-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 12.2", + "marginal_note": "Temporary releases", + "part": "Detention", + "division": "", + "heading": "", + "text": "o Ontario Association of Children’s Aid Societies (Thunder Bay, Sault Saint Marie and Fort\nFrancis)\n Greater Toronto Area\no Ontario Association of Children’s Aid Societies (47 provincial societies)\no Children's Aid Society of Toronto, 416-924-4640\no Catholic Children’s Aid Society of Toronto, 416-395-1500\no Jewish Family and Child (Toronto), 416-638-7800\no Peel Children’s Aid Society, 888-700-0996\n Southern Ontario\no Chatham-Kent Children's Services, 519-352-0440 (Chatham, Blenheim, Bothwell,\nChatham, Chatham-Kent, Dresdon, Erie Beach, Erieau, Highgate, Ridgetown,\nThamesville, Tilbury, Wallaceburg, Wheatley)\no Children's Aid Society of London and Middlesex, 888-661-6167 (London, Adelaide, Ailsa\nCraig, Caradoc, East Williams, Ekfrid, Glencoe, London, Lucan Biddulph, McGillivray,\nMetcalfe, Middlesex, Middlesex Centre ,Mosa, Newbury, North Dorchester, Parkhill,\nStrathroy, Wardsville, West Nissouri, West Williams)\no Children's Aid Society of Oxford County, 519-539-6176 (Woodstock, Blandford-\nBlenheim, East Zorra-Tavistock, Ingersoll, Norwich, Oxford, South-West Oxford,\nTillsonburg, Woodstock, Zorra)\no Family and Children's Services Niagara, 888-937-7731 (St. Catharines, Fort Erie,\nGrimsby, Lincoln, Niagara, Niagara Falls, Niagara-on-the-Lake, Pelham, Port Colborne,\nSt. Catharines, Thorold, Wainfleet, Welland, West Lincoln)\no Family and Children's Services of St. Thomas and Elgin County, 519-631-1492 (St.\nThomas, Aylmer, Bayham, Belmont, Central Elgin, Dutton-Dunwich, Elgin, Malahide,\nPort Stanley, Southwold, St. Thomas, Vienna, West Elgin, West Lorne)\n57\no Sarnia-Lambton Children's Aid Society, 519-336-0623 (Point Edward, Alvinston, Arkona,\nBosanquet, Brooke, Dawn-Euphemia, Enniskillen, Forest, Grand Bend, Lambton, Moore,", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 12.2 (Temporary releases) (part 2 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-12-2-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 12.2", + "marginal_note": "Temporary releases", + "part": "Detention", + "division": "", + "heading": "", + "text": "Oil Springs, Petrolia, Plympton, Point Edward, Sarnia, Sombra, Thedford, Warwick,\nWyoming)\no The Children's Aid Society of Haldimand and Norfolk, 519-587-5437 / 888-227-5437\n(Townsend, Delhi, Dunnville, Haldimand (town), Haldimand-Norfolk (regional\nmunicipality), Nanticoke, Norfolk, Simcoe (town))\no Windsor-Essex Children's Aid Society, 800-265-5609 (Windsor, Amherstburg, Essex,\nKingsville, Lakeshore, LaSalle, Leamington, Pelee Island, Tecumseh, Windsor)\n Prairies\no Alberta Child and Family Services, 1-800-387-5437, (several service delivery locations)\no Saskatchewan social services offices (several social services offices). After hours crisis\ncentre: Prince Albert - 306-764-1011, Saskatoon - 306-933-6200, Regina - 306-569-\n2724.\no Manitoba Child and Family Services Contacts, 1-866-345-9241 (several Designated\nIntake Agencies)\n Pacific\no Ministry of Children and Family Development (13 offices)\no Ministry of Children and Family Development, (Vancouver) 604 660-4927 or 310-1234\n58\nAnnex C – Provincial definitions of a minor\nIn Canada, the definition of a minor child varies by province as indicated in the table below.\nProvince Definition of minor child Definition of minor for child\nprotection purposes\nBritish Columbia Person under 19 years Same\nAlberta Person under 18 years Same\nSaskatchewan Unmarried person under 16\nyears\nSame\nManitoba Person under 18 years Same\nOntario Person under 18 years “child” means a person under the age\nof 16\nQuebec Person under 18 years Same\nNova Scotia Person under 19 years “child” means a person under the age\nof 16\nNew Brunswick Person under 19 years “child” means a person under the age\nof 16\nNewfoundland Person under 16 years (youth\ndefined as a person who is 16\nyears or older, but under the age\nof 18)\nSame", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 12.2 (Temporary releases) (part 3 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-12-2-p4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 12.2", + "marginal_note": "Temporary releases", + "part": "Detention", + "division": "", + "heading": "", + "text": "Prince Edward Island Person under 18 years Same\nNorthwest Territories Person under 19 years “child” means a person under the age\nof 16\nYukon Person under 19 years “child” means a person under the age\nof 16\nNunavut Person under 19 years “child” means a person under the age\nof 16\n59\nAnnex D – Language Profile of Provincial Correctional Facilities\nRegion Province Facility Contact Information Language\nAtlantic\nNew\nBrunswick\nDalhousie Regional\nCorrectional Centre\n265 Miller Blvd\nDalhousie, NB E8C 2A2\nPhone: (506) 684-7517\nFax: (506) 684-7519\nBilingual\nMadawaska Regional\nCorrectional Centre", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 12.2 (Temporary releases) (part 4 of 4)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-15", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 15", + "marginal_note": "Rue Fournier,", + "part": "Detention", + "division": "", + "heading": "", + "text": "15 Rue Fournier,\nSaint Hilaire, NB E3V 4W5\nPhone: (506) 737-4510\nFax : (506) 737-4520\nBilingual\nNew Brunswick Women’s\nCorrectional Centre", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 15 (Rue Fournier,)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4", + "marginal_note": "Airport Drive", + "part": "Detention", + "division": "", + "heading": "", + "text": "4 Airport Drive\nMiramichi, NB E1N 3W4\nPhone: (506) 624-2000\nBilingual\nSaint John Regional\nCorrectional Centre\n930 Old Black River Rd\nSaint John, NB E2J 4T3\nPhone: (506) 658-5400\nFax :(506) 658-6632\nBilingual\nSoutheast Regional\nCorrectional Facility\n435 Lino Rd.\nShediac, NB E4P 0H6\nPhone: (506) 532-7885\nFax: (506) 532-7832\nBilingual\nNewfoundland\nand Labrador\nHer Majesty’s\nPenitentiary\nP.O. Box 5459\nSt. John’s, NL A1C 5W4\nPhone: (709) 729-1200\nFax: (709) 729-0409\nEnglish\nNewfoundland and\nLabrador Correctional\nCentre for Women", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4 (Airport Drive)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 1", + "marginal_note": "Duffitt Place", + "part": "Detention", + "division": "", + "heading": "", + "text": "1 Duffitt Place\nClarenville, NL A5A 1E9\nPhone: (709) 466-3101\nFax: (709) 466-3664\nEnglish\nSt. John’s City lockup 309 Duckworth St\nSt. John's, NL A1C 1G9\nPhone: (709) 729-3873\nFax: (709) 729-0376\nEnglish\nNova Scotia\nCentral Nova Scotia\nCorrectional Facility", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 1 (Duffitt Place)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-90", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 90", + "marginal_note": "Gloria McCluskey Ave,", + "part": "Detention", + "division": "", + "heading": "", + "text": "90 Gloria McCluskey Ave,\nDartmouth, NS B3B 2B9\nPhone: (902) 460-5800\nFax: (902) 460-5815\nBilingual\nNortheast Nova Scotia\nCorrectional Facility\n10202 Sherbrooke Rd\nNew Glasgow, NS B2H 5C7\nPhone: (902) 755-8547\nBilingual\n60\nPrince Edward\nIsland\nPrince Correctional\nCenter\n108 Central Street\nSummerside, PE C1N 3L4\nPhone: (902) 888-8208\nFax: (902) 888-8464\nEnglish\nProvincial Correctional\nCentre\n508 Sleepy Hollow Rd,\nMilton Station, PE C1E 0Z3\nPhone: (902) 368-4590\nEnglish\nGreater Toronto Area\nOntario\nCentral East Correctional\nCentre\n541 Kawartha Lakes County Rd\n36, Lindsay, Ontario K9V 4S6\nPhone: (705) 328-6000\nFax: 705-328-6011\nEnglish\nCentral North\nCorrectional Centre\n1501 Fuller Ave,\nPenetanguishene, Ontario L9M\n2H4\nPhone: (705) 549-9470\nFax: 705-549-0634\nEnglish\nHamilton-Wentworth\nDetention Centre\n165 Barton St. E.\nHamilton, ON L8L 2W6\nTel: 905-523-8800\nFax: 905-529-0977\nBilingual\nMaplehurst Correctional\nComplex\n661 Martin St., Milton, Ontario\nL9T 2Y3\nPhone: (905) 878-8141\nFax: 905-878-5363\nEnglish\nToronto East Detention\nCentre", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 90 (Gloria McCluskey Ave,)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-55-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 55", + "marginal_note": "Civic Rd., Scarborough,", + "part": "Detention", + "division": "", + "heading": "", + "text": "55 Civic Rd., Scarborough,\nOntario M1L 2K9\nPhone: (416) 750-3513\nFax: 416-750-3345\nEnglish\nToronto South Detention\nCentre\n160 Horner Ave, Toronto,\nOntario M8Z 0C2\nPhone: (416) 354-4030\nFax: 416-212-6412\nEnglish\nVanier Centre for\nWomen\n655 Martin St., Milton, Ontario\nL9T 5E6\nPhone: (905) 876-8300\nFax: 905-876-7334\nBilingual\nNorthern Ontario\nOntario\nAlgoma Treatment and\nRemand Centre\n800 Great Northern Rd,\nSault Ste. Marie, ON P6B 0B5\nPhone: (705) 946-0995\nFax: 705-946-0314\nBilingual\nBrockville Jail 10 Wall Street\nBrockville, Ontario K6V 4R9\nContact: Wanda Clement\nPhone: (613) 354-9701 ext. 212\nFax : (613) 354-6128\nEnglish\nMonteith Correctional\nComplex\nJunction Hwys 11 & 577, Box 90\nMonteith, ON POK 1P0\nTel: 705-232-4092\nFax: 705-232-4530\nBilingual\nNorth Bay Jail 2550 Trout Lake Rd.\nNorth Bay, ON P1B 7S7\nTel: 705-472-8115\nFax: 705-472-3803\nBilingual\n61\nOttawa Carleton\nDetention Centre\n2244 Innes Rd.\nOttawa, Ontario K1B 4C4\nContact: Elsa Sante\nPhone: (613) 341-2870 ext. 1231\nEmail : elsa.sante@theroyal.ca\nFax : (613) 341-2881\nRecords : (613) 341-2870 ext.\n1100\nPLO: Tom Cooney\nEmail: tom.cooney@ontario.ca\nFax: (613) 824-2252\nRecords: (613) 824-6080\nFax: (613) 824-1297\nSecurity: Scott Munro Inland\nBoardroom –\n(613)990-8885 (for cases by\nphone)\nHearings Fax: ( 613) 949-8315\nBilingual\nQuinte Detention Centre 89 Richmond Blvd.\nNapanee, Ontario\nK7R 3S1\nContact: Connie Cardinal\nPhone: (613) 351-8116\nFax: (613) 351-8463\nEnglish\nSudbury Jail 181 Elm St.W.\nSudbury, ON P3C 1T8\nTel: 705-564-4150\nFax: 705-564-4157\nBilingual\nQuebec\nQuebec\nÉtablissement de\ndétention Rivière-de-\nPrairies\n11900, rue Armand-Chaput\nMontréal (Québec) H1C 1S7\nTél. : 514 494-3930\nTéléc. : 514 494-1423\nFrançais\nÉtablissement de\ndétention\nMontréal/Bordeaux\n800, boulevard Gouin Ouest\nMontréal (Québec) H3L 1K7", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 55 (Civic Rd., Scarborough,) (part 1 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-55-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 55", + "marginal_note": "Civic Rd., Scarborough,", + "part": "Detention", + "division": "", + "heading": "", + "text": "Tél. : 514 336-7700\nTéléc. : 514 873-4605\nFrançais\nÉtablissement de\ndétention Laval/Leclerc\n400, montée Saint-François\nLaval (Québec) H7C 1S7\nTél. : 450 664-1234\nTéléc. : 450 664-4779\nFrançais\nÉtablissement de\ndétention de Saint-\nJérôme\n2, boulevard de la Salette\nCase postale 513\nSaint-Jérôme (Québec) J7Y 5G5\nTél. : 450 436-8144\nTéléc. : 450 436-8444\nFrançais\n62\nSouthern Ontario\nOntario\nSouth West Detention\nCentre\n4819 8th Concession Road\nMaidstone, ON N0R 1K0\nPhone: (519) 967-3100\nFax: (519) 967-3154\nBilingual\nNiagara Detention\nCentre\n1355 Upper's Ln\nThorold, ON L2V 4A6\nPhone: (905) 227-6321\nFax: (905) 227-0032\nEnglish\nElgin Middlesex\nDetention Centre\n711 Exeter Rd\nLondon, ON N6E 1L3\nPhone: (519) 686-1922\nFax: (519) 686-0352\nBilingual\nSarnia Jail 700 Christina St N\nSarnia, ON N7V 3C2\nPhone: (519) 337-3261\nFax: (519) 336-6505\nEnglish\nPacific\nBritish\nColombia\n(most\ncommonly\nused)\nFraser Regional\nCorrectional Centre\nPO BOX 1500\nMaple Ridge, BC V4R 1C9\nPhone: (604) 462-9313\nFax: (604) 462-5186\nEnglish\nAlouette Correctional\nCentre for Women\n24800 Alouette Rd\nMaple Ridge, BC V2X 7G4\nPhone: (604) 476-2660\nFax: (604) 476-2981\nEnglish\nVancouver Island\nRegional Correctional\nCentre\n4216 Wilkinson Rd\nVictoria, BC V8Z 5B2\nPhone: (250) 953-4400\nEnglish\nOkanagan Correctional\nCentre\n200 Enterprise Way\nOliver, BC V0H 1T2\nPhone: (236) 216-2000\nEnglish\nKamloops Regional\nCorrectional Centre\n2250 Trans-Canada Hwy\nKamloops, BC V2E 2T1\nPhone: (250) 571-2200\nEnglish\nBritish\nColombia\nFord Mountain\nCorrectional Centre\n57657 Chilliwack Lake Rd\nChilliwack, BC V4Z 1A7\nPhone: (604) 824-5350\nEnglish\nNanaimo Correctional\nCentre\n3945 Biggs Rd\nNanaimo, BC V9R 5N3\n63\n(Infrequently\nUsed)\nPhone: (250) 756-3300\nPrince George Regional\nCorrectional Centre\n795 BC-16,\nPrince George, BC V2L 5P1", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 55 (Civic Rd., Scarborough,) (part 2 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-55-p3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 55", + "marginal_note": "Civic Rd., Scarborough,", + "part": "Detention", + "division": "", + "heading": "", + "text": "Phone: (250) 960-3001\nPrairie\nAlberta\nCalgary Remand Center 12200 85 St NW\nCalgary, AB T3R 1J3\nPhone: (403) 695-2100\nEnglish\nEdmonton Remand\nCenter\n18415 127 St NW\nEdmonton, AB T6V 1B1\nPhone: (780) 638-5100\nEnglish\nLethbridge Correctional\nCentre (aka: Lethbridge\nRemand)\n21123 AB-512\nLethbridge, AB T1J 3Z3\nPhone: (403) 388-3000\nFax: (403) 388-2966\nEnglish\nMedicine Hat Remand\nCenter\n874 2 St SE\nMedicine Hat, AB T1A 8H2\nPhone: (403) 529-2111\nFax: (403) 529-3132\nEnglish\nRed Deer Remand\nCenter\n4720 49 Street\nRed Deer, Alberta T4N 1T7\nPhone: (403) 340-3200\nFax: (403) 340-7170\nEnglish\nManitoba\nBrandon Correctional\nCentre\n375 Veteran's Way\nBrandon, MB R7C 0B1\nPhone: (204) 725-3532\nFax: (204) 727-3961\nEnglish\nHeadingley Correctional\nInstitution\n6030 Portage Ave\nHeadingley, MB R4H 1E8\nPhone: (204) 837-1351\nFax: (204) 889-3033\nEnglish\nMilner Ridge Correctional\nCentre\nPO Box 460\nCorrection Facility Rd\nBeausejour, MB R0E 0C0\nPhone: (204) 268-4011\nFax: (204) 268-4833\nEnglish\nThe Pas Correctional\nCentre\n300 3 St E\nThe Pas, MB R9A 1K7\nPhone: (204) 627-8450\nFax: (204) 623-7774\nEnglish\nWinnipeg Remand\nCentre\n141 Kennedy St\nWinnipeg, MB R3C 4N5\nPhone: (204) 945-3540\nFax: (204) 948-2217\nEnglish\n64\nWomen’s Correctional\nCentre", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 55 (Civic Rd., Scarborough,) (part 3 of 3)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-31-p1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 31", + "marginal_note": "Routledge Ave", + "part": "Detention", + "division": "", + "heading": "", + "text": "31 Routledge Ave\nHeadingley, MB R4H 0A9\nPhone: (204) 948-8806\nFax: (204) 948-8833\nEnglish\nSaskatchewan\nRegina Correctional\nCentre\n4040E 9th Ave N\nRegina, SK S4P 3A6\nPhone: (306) 924-9000\nEnglish\nPrince Albert Provincial\nCorrectional Centre\n3021 1st Avenue West\nPrince Albert, SK S6V 5A7\nPhone: (306) 953-3000\nFax: (306) 953-3030\nEnglish\nSaskatoon Provincial\nCorrectional Centre\n910 60 St E\nSaskatoon, SK S7K 2H6\nPhone: (306) 956-8800\nFax: (306) 931-0811\nEnglish\nWhite Birch Female\nRemand Unit\nBox 1452\nRegina, SK S4P 3C2\nPhone: (306) 787-1985\nFax: (306) 787-2118\nEnglish\nPine Grove Correctional\nCenter\n1700 7 Ave NE\nSpruce Home, SK S0J 2N0\nPhone: (306) 953-3100\nFax: (306) 953-3108\nEnglish\n65\nAnnex E – Protocol Regarding the Death of an Individual\nDetained Pursuant to the Immigration and Refugee Protection\nAct\nIntroduction\nThis protocol has two parts. The first part provides instruction and operational guidance for Canada\nBorder Services Agency (CBSA) staff and third-party service providers working within a CBSA\nImmigration Holding Centre (IHC) or providing transportation services. In addition, it provides guidance on\nsituations where death occurs at a hospital, in a hearing room or any pre-hearing holding area, or during\ntransfer between any of these aforementioned locations where an individual is under detention pursuant\nto the Immigration and Refugee Protection Act (IRPA). The second part of this protocol provides\ninstruction and operational guidance for CBSA staff in situations where a death occurs in a federal,\nprovincial or municipal correctional facility where the deceased was detained pursuant to the IRPA. In\naddition, protocols are provided should a death occur during a transfer between an IHC and a correctional\nfacility.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 31 (Routledge Ave) (part 1 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-31-p2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 31", + "marginal_note": "Routledge Ave", + "part": "Detention", + "division": "", + "heading": "", + "text": "Please be cognizant that this protocol does not apply in situations where death occurs at Port-of-Entry,\nduring an inland investigation or within the removals stream pursuant to IRPA.\nDefinitions\nImmigration detention\nis any detention pursuant to the Immigration and Refugee Protection Act (IRPA).\nImmigration Holding Centres\nare CBSA-managed detention facilities currently located in Laval, QC; Toronto, ON; and Richmond, BC.\nFederal, provincial or municipal correctional facilities\nare any government run correctional or detention facility where immigration detainees may be held.\nThird-Party Service Provider\nis a vendor that has been awarded a Government of Canada contract to provide the specific services of\nsecurity guards to assist CBSA in the daily management of the detention program.\nProtocol for Incidents at the IHC\nCanada Border Services Agency Responsibilities\nCBSA officers:", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 31 (Routledge Ave) (part 2 of 2)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 1", + "marginal_note": "CBSA officer who is first person on the scene:", + "part": "Detention", + "division": "", + "heading": "", + "text": "1. CBSA officer who is first person on the scene:\n Assume the responsibilities of the first person on the scene, as it relates to the application of first\naid.\n Contact emergency services (e.g. emergency medical technician [EMT], police, IHC medical sta f,\netc.)\n66\n Clear the area of other detainees and all non-essential personnel as soon as possible, while\nbeing mindful of the need to preserve evidence for any subsequent investigation. In some cases,\nthis may include controlling or segregating individuals depending on the nature of death.\n Take note of all persons present at the time of the incident.\n Report the incident immediately to the appropriate CBSA official (e.g. manager or supervisor).\n Complete a security incident report (BSF 152 (PDF, 634 KB) at the conclusion and provide a\ncopy to CBSA IHC manager or supervisor. Follow established procedures: Reporting of Security\nIncidents", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 1 (CBSA officer who is first person on the scene:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "In an assisting role:", + "part": "Detention", + "division": "", + "heading": "", + "text": "2. In an assisting role:\n Follow all instructions provided by the individual providing first aid and assist wherever possible.\n Assume scene management responsibilities from 3rd party service provider staff, if applicable.\n Assist in clearing the area of other detainees and all non-essential personnel as soon as possible,\nwhile being mindful of the need to preserve evidence for any subsequent investigation. In some\ncases, this may include controlling or segregating individuals depending on the nature of death.\n Take note of all persons present at the time of the incident.\n Provide any other required supporting role to the individual first on the scene.\n Complete a security incident report (BSF 152 (PDF, 634 KB) at the conclusion and provide a\ncopy to CBSA IHC manager or supervisor. Follow established procedures. Reporting of Security\nIncidents (PDF, 500 KB)", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (In an assisting role:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 3", + "marginal_note": "The CBSA manager or supervisor will:", + "part": "Detention", + "division": "", + "heading": "", + "text": "3. The CBSA manager or supervisor will:\n Ensure that the appropriate emergency services were contacted (e.g. EMT, police, IHC medical\nstaff, etc.) and if not, contact them immediately.\n Ensure that the scene is secure to preserve evidence (this can be delegated to another CBSA\nofficer in situations where the CBSA manager or supervisor at the IHC is unable to be physically\npresent in a timely manner following the incident).\n Brief regional senior management immediately following confirmation of death.\n Notify the Border Operations Centre (BOC) of a \"significant event\"– (613-960-6001)\no Follow established procedures: Reporting of Security Incidents (PDF, 500 KB)\n Identify next of kin and notify the Regional Director General (RDG). This should be done as soon\nas possible following the confirmation of death.\no In cases where there is an investigative body (e.g. local police or RCMP) involved. The\nnotification of next of kin will be undertaken by them. The CBSA manager or supervisor\nmust have confirmation from the investigative body that the notification of next of kin has\ntaken place.\n Notify the RDG once confirmation is received from the investigative body.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 3 (The CBSA manager or supervisor will:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-4", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 4", + "marginal_note": "The RDG will:", + "part": "Detention", + "division": "", + "heading": "", + "text": "4. The RDG will:\n In cases where an investigative body is not undertaking the notification of next of kin (e.g. death\nas a result of natural causes); notify next of kin, this should be done in person, whenever\npossible.\no For overseas notification the template notification to next of kin – overseas (appendix A)\nshould be used.\n In cases where next of kin notification was not possible. The RDG must ensure that the Embassy\nand / or Consulate of the deceased country of citizenship is notified.\no Always keep in mind the importance of not disclosing personal information beyond\ntombstone data or any particulars of the investigation or case to the authorities of the\ncountry of citizenship.\n67", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 4 (The RDG will:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-5", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 5", + "marginal_note": "The BOC will:", + "part": "Detention", + "division": "", + "heading": "", + "text": "5. The BOC will:\n Notify required NHQ senior management of the \"significant event\".\n Notify the Communications Directorate of the \"significant event\".\nThird-Party Service Provider Responsibilities", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 5 (The BOC will:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 1", + "marginal_note": "The third-party service provider staff, first on the scene, will be required to:", + "part": "Detention", + "division": "", + "heading": "", + "text": "1. The third-party service provider staff, first on the scene, will be required to:\n Assume the responsibilities of the first person on the scene, as it relates to the application of first\naid.\n Contact emergency services (e.g. EMT, police, IHC medical staff, etc.).\n Clear the area of other detainees and all non-essential personnel as soon as possible, while\nbeing mindful of the need to preserve evidence for any subsequent investigation. In some cases,\nthis may include controlling or segregating individuals depending on the nature of death.\n Take note of all persons present at the time of the incident.\n Report the incident immediately to the appropriate CBSA official (e.g. manager or supervisor).\n When CBSA officers arrive on scene, defer scene management responsibilities and assist as\nrequired. This does not include the application of first aid.\n Complete a security incident report (BSF 152 (PDF, 634 KB) at the conclusion and provide a\ncopy to CBSA IHC manager or supervisor. Follow established procedures: Reporting of Security\nIncidents (PDF, 500 KB)", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 1 (The third-party service provider staff, first on the scene, will be required to:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "In an assisting role:", + "part": "Detention", + "division": "", + "heading": "", + "text": "2. In an assisting role:\n Follow all instructions provided by the CBSA officer; or third-party service provider staff or\nsupervisor that is responsible for the scene.\n Assist in clearing the area of other detainees and all non-essential personnel as soon as possible,\nwhile being mindful of the need to preserve evidence for any subsequent investigation. In some\ncases, this may include controlling or segregating individuals depending on the nature of death.\n Take note of all persons present at the time of the incident.\n Provide any other required support to the individual first on the scene.\n Complete a security incident report (BSF 152 (PDF, 634 KB) at the conclusion and provide a\ncopy to CBSA IHC manager or supervisor. Follow established procedures: Reporting of Security\nIncidents (PDF, 500 KB)\nIn cases where death occurs in a hospital, the third-party service provider must report the incident\nimmediately to the appropriate CBSA officials and comply with all instructions provided by the hospital\nstaff on site.\nProtocol for Incidents at a Federal, Provincial or Municipal Correctional Facility\nCanada Border Services Agency Responsibilities\nUpon receiving notification of the death of a detainee from the correctional facility:", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (In an assisting role:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-1", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 1", + "marginal_note": "The CBSA manager or supervisor will:", + "part": "Detention", + "division": "", + "heading": "", + "text": "1. The CBSA manager or supervisor will:\n Brief regional senior management immediately following confirmation of death.\n Notify the BOC of a \"significant event\" – (613-960-6001)\no Follow establish procedures: Reporting of Security Incidents (PDF, 500 KB)\n68\n Identify next of kin and notify the Regional Director General (RDG). This should be done as soon\nas possible following the confirmation of death.\no In cases where there is an investigative body (e.g. local police or RCMP) involved. The\nnotification of next of kin will be undertaken by them. The CBSA manager or supervisor\nmust have confirmation from the investigative body that the notification of next of kin has\ntaken place.\n Notify the RDG once confirmation is received from the investigative body.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 1 (The CBSA manager or supervisor will:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-2", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 2", + "marginal_note": "The RDG will:", + "part": "Detention", + "division": "", + "heading": "", + "text": "2. The RDG will:\n In cases where an investigative body is not undertaking the notification of next of kin (e.g. death\nas a result of natural causes); notify next of kin, this should be done in person, whenever\npossible.\no For overseas notification the template notification to next of kin – overseas (appendix A)\nshould be used.\n In cases where next of kin notification was not possible. The RDG must ensure that the Embassy\nand / or Consulate of the deceased country of citizenship is notified.\no Always keep in mind the importance of not disclosing personal information beyond\ntombstone data or any particulars of the investigation or case to the authorities of the\ncountry of citizenship.", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 2 (The RDG will:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, + { + "id": "enf-20-3", + "doc_type": "memorandum", + "act_code": "ENF-20", + "act_short": "ENF 20", + "act_name": "ENF 20 — Detention", + "section": "ENF 20 s. 3", + "marginal_note": "The BOC will:", + "part": "Detention", + "division": "", + "heading": "", + "text": "3. The BOC will:\n Notify required NHQ senior management of the \"significant event\".\n Notify the Communications Directorate of the \"significant event\".\nAll CBSA employees and the third-party service provider staff are encouraged to cooperate with police,\nthe coroner's office, medical examiner or any other investigative body in relation to incidents involving the\ndeath of a detainee in CBSA custody.\nIn cases where wrongdoing is suspected by an employee or third-party service provider they should be\nafforded the right to instruct counsel and/or their union representative prior to providing any information.\nFor more information please consult Legal Assistance and Indemnification for CBSA Employees –\nGuidelines and Procedures", + "history": "", + "last_amended": "2023-01-16", + "current_to": "2023-01-16", + "citation": "ENF 20, s. 3 (The BOC will:)", + "source_url": "https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf20a-en.pdf" + }, { "id": "enf-21-1", "doc_type": "memorandum",