Ministerial Direction to the Canada Border Services Agency: Minors in Canada’s Immigration Detention System
November 6, 2017
- The Canada Border Services Agency (CBSA) is responsible for the administration and enforcement of the Immigration and Refugee Protection Act (IRPA), including the arrest and detention of permanent residents or foreign nationals in Canada.
- Canada’s immigration detention program is based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention (ATDs) are considered and determined to be unsuitable or unavailable.
- When exercising their authority to arrest and detain, under the IRPA and the Immigration and Refugee Protection Regulations (IRPR), CBSA officers are guided by jurisprudence, internal policies, guidelines and the Charter of Rights and Freedom.
- Canada’s international obligations and domestic legislative and policy frameworks include:
- The United Nations Convention on the Rights of the Child (CRC), to which Canada is a party. It states that the Best Interests of the Child (BIOC) shall be a primary consideration in all state actions concerning children;
- Section 55 of the IRPA is the arrest and detention provisions for adults and minors;
- Section 60 of the IRPA affirms the principle that the detention of a minor must be a measure of last resort taking into account other applicable grounds and criteria, including the BIOC;
- Section 248 of the IRPR prescribes other factors for consideration before a decision is made on detention or release;
- Section 249 of IRPR outlines special considerations on the detention of minors;
- ENF 20 Detentions Manual, National Detention Standards and Operational Bulletin (OPS-2017-03 (Reporting of all Situations Involving the Detention or Housing of a Minor to the Border Operation Centre)); and
- The Canadian Charter of Rights and Freedoms (s. 7, 9, 10 and 15).
- The 2016 National Immigration Detention Framework launched the transformation agenda to create a better, fairer immigration detention system to improve infrastructure, provide better mental and medical health services at CBSA Immigration Holding Centres, expand partnerships and ATDs and reduce the number of minors in detention.
- This Ministerial Direction (MD) provides the President of the CBSA (pursuant to subsection 5(1) of the Department of Public Safety and Emergency Preparedness Act; and subsections 6(1) and 8(1) of the Canada Border Services Agency Act), the way forward in which the Agency is to treat minors in immigration detention.
- The MD shall be used in conjunction with the National Directive on the Detention or Housing of Minors (2017).
- The MD does not change existing legal authorities.
- The National Directive on the Detention or Housing of Minors adheres to the following principles (a-d) and objectives (e-i):
- The CBSA’s program legislation, the IRPA, IRPR, the Privacy Act, the Canadian Charter of Rights and Freedoms and Canada’s international obligations concerning rights of minors shall be respected;
- The well-being of children, family unity and the use of ATDs shall be core tenets underpinning policy direction, in accordance with the expectations and values of Canadians;
- The BIOC shall be a primary consideration to be assessed against other primary and mandatory factors in legislation;
- Public safety and national security shall not be compromised while meeting the policy objectives of the National Directive on the Detention or Housing of Minors;
- Stop the detention or housing minors and family separation, except in extremely limited circumstances;
- Actively and continuously seek ATDs when unconditional release is inappropriate for the purpose of the above;
- Preserve the family unit;
- Ensure that the detention or housing of a minor or the separation of a minor from his/her detained parent(s) or guardian(s) is for the shortest time possible; and
- Never place minors in segregation or segregate them.
- Minor: is defined under IRPA and the CRC as a person under the age of 18. In some provinces, a youth aged 16 and 17 is not considered a minor, however, this does not change the fact that they are considered to be a minor in the federal context (R249).
- Detainee or Detained: an adult or minor subject to an Order for Detention under A55 of the IRPA.
- Housed (Minor): a foreign national, permanent resident or Canadian citizen who, after the completion of a BIOC, is kept with their detained parent(s) or guardian(s) at an IHC at the latter’s request. A housed minor is not subject to an Order for Detention and is free to remain and re-enter the IHC subject to the parent(s) or guardian(s) consent and accordance with the rules and procedures of that facility.
- Best Interests of the Child (BIOC): an international principle to ensure children enjoy the full and effective benefit of all their rights recognized in Canadian law and the CRC. It is also a rule of procedure that includes an assessment of the possible impact (positive or negative) of a decision on the child or children concerned.
- Alternatives to Detention (ATDs): a policy or practice that ensures people are not detained for reasons relating to their immigration status. ATDs allows individuals to live in non-custodial, community-based settings while their immigration status is being resolved. ATDs includes Community Programming (in-person reporting, cash or performance bond and community case management and supervision) and Electronic Supervision tools, such as voice reporting.
Accountability and Transparency
- This MD serves to enhance Ministerial accountability of the CBSA in the administration and enforcement of its program legislation.
- In the course of implementing this MD, the CBSA shall immediately inform me when there is a potential that a CBSA activity may have a significant adverse impact, such as posing a risk to human life; any risk exposure to the CBSA, Public Safety Canada or the Government of Canada; and/or, negatively affecting bilateral relations with international or domestic organizations.
- I also expect to be informed of any operational matter if it raises an important question of public policy and/or contraventions set out in this MD. Further, the CBSA shall report back to me on the detention / housing of minors and continue to publish statistics for public consumption on a quarterly basis.
- Lastly, this Directive shall remain valid until such time as a significant change in Cabinet decision, legislative and/or policy orientation occurs that would undermine its applicability.
- Date modified: