The Immigration and Refugee Board of Canada (IRB) is pleased to inform you of the publication of a newly revised version of
Chairperson's Guideline 2: Detention.
In early 2020, as committed to when the revised Guideline was initially launched, the Immigration and Refugee Board of Canada (IRB) began consultations on the Guideline's implementation. This consultation sought feedback in order to assess whether the intended objectives of the Guideline were being achieved in practice, identify any unanticipated impacts on the conduct of detention reviews, and seek feedback regarding areas for improvement.
In this context, the
IRB undertook consultations with stakeholders, immigration portfolio organizations and Immigration Division (ID) Members, which garnered a great deal of comments and proved useful to our review.
Importantly, parallel to substantive internal and external consultations, the
IRB was guided in its revisions of Guideline 2 by the Federal Court of Appeal's (FCA) dicta in its decision last August in
Brown. In its decision in
Brown, the
FCA upheld the constitutionality of Canada's immigration detention review scheme as found in the Immigration and Refugee Protection Act (IRPA). It also set out the defining characteristics of a detention review conducted by the
ID to ensure compliance with the Canadian Charter of Rights and Freedoms (Charter).
As a result of the
FCA decision in
Brown and the feedback received through our consultations, the
IRB has revised the Guideline in the following ways:
- Clarify that there must be a nexus to an immigration purpose for detention to continue.
- Reinforce the Division's obligation to consider sections 7, 9 and 12 of the Charter in exercising its discretion concerning whether or not detention is warranted.
- Confirm that consideration of conditions of detention is an extension of the
ID's Charter jurisdiction.
- Reinforce that the Minister has the legal burden to establish that detention is lawfully justified and remains on the Minister throughout the detainee's period of detention.
- Reinforce that the Division must decide afresh whether continued detention is warranted at each detention review.
- Recognize that there is no obligation on the person concerned to lead fresh evidence between detention reviews for the
ID to reach a different result.
- Clarify that the Minister must disclose all relevant information in advance of the hearing and in a timely manner.
- Clarify that the potential for self-harm should not be a basis for a finding that the person concerned constitutes a danger to the public.
- Adjust the Guideline's section on minors to reflect the codification of best interest of the child considerations in the Immigration and Refugee Protection Regulations.
- Outline considerations to be taken into account when determining whether a person concerned is unable to appreciate the nature of the proceedings.
- Clarify that a detention review should generally be concluded on the same day that it begins.
The revision of Guideline 2 is part of our concerted efforts to ensure the quality of decision-making at the
IRB. The revised Guideline will be a helpful tool to Members of the
ID, providing up-to-date guidance to support them in carrying out detention reviews fairly and consistently.