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  • Bail as a consequence for non-compliance: Canada
  • Canada
  • Canada uses financial consequences, through a bail mechanism, as one tool in its system for managing irregular migrants and asylum seekers in the community. The decision to detain is automatically reviewed at regular detention review hearings. These hearings are undertaken by a member of the Immigration and Refugee Board within 48 hours of detention, then within another seven days and then every 30 days thereafter, as required. Detainees may also request a review hearing if they have new facts pertaining to the decision to detain. Eligible detainees may access free legal representation in the form of legal aid. At detention hearings, the burden of proof lies with the border services agency to demonstrate a continuing need for detention for a reason outlined in law. The detainee may also submit information to support their case for release. Bail is automatically considered as an option to enable release at these hearings.

    At these hearings, release may be ordered with or without conditions being imposed. A significant factor in favour of release is if the detainee’s application is supported by a “bondsperson”. A bondsperson agrees to pay a monetary bond which is paid up front, held in trust and then returned if the individual complies with the conditions of their release, which may include, inter alia, providing a nominated address, handover of travel documents, or reporting requirements. In some situations, the money does not need to be paid unless the person does not comply with the conditions of their release. A bondsperson is often someone who knows the detainee personally and is confident in their willingness to comply with authorities. Several non-government organisations in Canada offer to act as a bondsperson for detainees who do not have either the resources or family/community ties required to make bail.
  • Policy
  • Placement Options
  • Community with conditions
  • Asylum seekers
  • Undocumented or irregular migrants
  • All
  • Pre-removal risk assessment
  • Canada
  • Although not specifically designed to address the needs of children, asylum seekers whose cases have been rejected and who are expected to depart Canada can apply for protection under the Pre-Removal Risk Assessment process. This process takes into consideration a change in circumstances in asylum seekers’ countries of origin, new information demonstrating that asylum seekers will be at risk of persecution, torture or to cruel, inhuman or unusual treatment or punishment, or the possibility that asylum seekers’ lives may be otherwise endangered should they be compelled to leave Canada. The PRRA is not an appeal against earlier decisions and consideration is given only to new information or evidence. The PRRA decision is usually made on the papers. Only a very small percentage of applicants are granted the right to remain in Canada under the PRRA.
  • Law
  • Screening & Assessment
  • Protection needs
  • Migrants
  • All
  • Bail program in Canada
  • Canada
  • Toronto Bail Program - see Citizenship and Immigration Canada, Enforcement Manual 20 – Detention Section 5.12. Under contract with the Canadian Border Services Agency, the Toronto Bail Program (TBP), a non-profit entity, operates to support immigration detainees, including asylum-seekers and persons awaiting removal, to be released from detention via bail. The TBP acts as the “bondsperson” for those who have no family or other eligible guarantors to pay bond and in this way, removes the financial discrimination inherent in other bail systems. Under the TBP, no payment is made, rather asylum-seekers are released on the basis of the TBP’s guarantee. The TBP carries out interviews to assess suitability of candidates for their supervision. Asylum-seekers agree voluntarily to cooperate with TBP and all immigration procedures, including any reporting conditions set by the TBP. As per the contract signed between the asylum-seeker and the TBP, they agree to appear for all appointments, to notify the TBP of a change of address and to participate in meaningful activities while in Canada (e.g. education, vocational training, work). Reporting requirements generally reduce as trust is established between TBP and the asylum-seeker. Unannounced visits to the asylum-seeker’s residence may be organized by the TBP. Failure to comply with reporting obligations may result in the TPB informing the provincial authorities, in which case the person would be placed under a Canada-wide arrest warrant. TBP makes it explicit that failure to report may result in return to detention.
  • Practice
  • Placement Options
  • Community with conditions
  • Asylum seekers
  • All
  • Canada - Guidance for officers to ensure individual case factors considered when assessing flight risk
  • Canada
  • Citizenship and Immigration Canada, Enforcement Manual 20 – Detention Section 5.7 (p. 10-11): R245 outlines the factors to be taken into account when assessing flight risk. This non-exhaustive list includes: voluntary compliance with any previous departure order; voluntary compliance with any previously required appearance at an immigration or criminal proceeding; previous compliance with any conditions imposed in respect of entry, release or a stay of removal; any previous avoidance of examination or escape from custody, or any previous attempt to do so.
  • Policy
  • Screening & Assessment
  • Individual case factors
  • Migrants
  • All
  • Canada - Screening & assessment guidance for officers to ensure liberty, detention applied in first instance
  • Canada
  • ENF 20 - guidance to officers in exercising their powers of detention under IRPA. 5.2 states "In exercising their discretionary authority to detain, officers need to consider all reasonable alternatives before ordering the detention of an individual. This approach requires officers to exercise sound judgment in cases involving the arrest and detention of individuals, pursuant to IRPA. Sound judgment not only requires individual assessment of the case, but also an assessment of the impact of release on the safety of Canadian society. See also 5.5 (assessment of security risk/human rights violations), 5.6 (danger to the public), 5.7 (flight risk), 5. 8 (identity).
  • Policy
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Policy mandating the consideration of alternatives to detention in Canada
  • Canada
  • Citizenship and Immigration Canada, Enforcement Manual 20 (ENF 20)- Officers must be aware that alternatives to detention exist. As an alternative to detention, an officer may impose conditions, require a deposit of money or direct that a person participate in a third party risk management program ( para 5.11). Officers must also consider alternatives to detention and ensure detention is avoided or considered as a last resort for: the elderly, pregnant, sick, handicapped, mentally ill, and with behavioural problems, where safety or security is not an issue - (5.13). Also, in making a decision to detain or release, officers must consider the existence of alternatives to detention (see 5.9), detention is feasible where alternatives to detention are not avaialble to mitigate any risk to public safety or flight risk (5.9).
  • Policy
  • Liberty
  • Only permit detention when alternatives cannot be applied
  • Migrants
  • Women
  • Pregnant and nursing mothers
  • Survivor of torture or trauma
  • Pre-Removal processes for refused asylum seekers in Canada
  • Canada
  • Although not specifically designed to address the needs of children, asylum seekers whose cases have been rejected and who are expected to depart Canada can apply for protection under the Pre-Removal Risk Assessment process. This process takes into consideration a change in circumstances in asylum seekers’ countries of origin, new information demonstrating that asylum seekers will be at risk of persecution, torture or to cruel, inhuman or unusual treatment or punishment, or the possibility that asylum seekers’ lives may be otherwise endangered should they be compelled to leave Canada. The PRRA is not an appeal against earlier decisions and consideration is given only to new information or evidence. The PRRA decision is usually made on the papers. Only a very small percentage of applicants are granted the right to remain in Canada under the PRRA.
  • Practice
  • Case Management
  • Case resolution
  • Returnees / Deportees
  • All