Mastering Detention Review Hearings: Insights from the CBA National Immigration Conference
The Canadian Bar Association’s National Immigration Conference was held this year (June 6-7) in beautiful Victoria, British Columbia. The first such conference I attended was about 20 years ago, and like every year, the immigration bar comes out in force to gather, network, renew both professional and personal ties and discuss the many pressing issues in the field. As immigration lawyers, we should be used to both tumult and storm but the last year has still been an outlier.
I've presented on a number of occasions at past conferences, and this year I had the honor of presenting on detention review hearings alongside a remarkable panel: Ayesha Kumararatne and Prabhpreet Kaur Sangha -both immigration litigators; Alice Tang (Associate Deputy Chairperson of the Immigration Division, Western Region), and Mason Cooke (CBSA Hearings and Appeals). Our session, part of the conference’s popular “Hot Topics” series, offered practical strategies for navigating detention reviews, including a short, mock hearing that brought these tactics to life. In addition to the mock hearing (an examination of a bondsperson) we provided a number of resources; from the three lawyers was our take on Detention Hearing Strategies and Tips.
The goal of course was to provide attendees with appropriate tools and insight to assist them in advocating for their client's liberty.
The Session
Ayesha Kumararatne kicked off our session by summarizing the core principles from our resource. Detention reviews, governed by the Immigration and Refugee Protection Act (IRPA, sections 44-61) and its Regulations (IRPR, sections 244-248), start with a default position of release unless the Minister, through the Canada Border Services Agency (CBSA), justifies continued detention on grounds like flight risk, danger to the public, or unresolved identity (IRPR, sections 245-247). While time frames can be challenging and lawyers often or almost invariably do not have all the facts this only underscores the importance of preparation, understanding the legal framework, accessing the client in detention, and gathering critical evidence like immigration records, community letters, or medical assessments.
Alice Tang followed with a tip sheet from the Immigration Division’s perspective, highlighting best practices for counsel. As one example, Alice pointed to the IRB’s Chairperson Guideline 2 on detention as an important if not essential guide and resource for those seeking to navigate the world of detention review before the Division.
To illustrate these strategies, we conducted a mock detention review, with myself as counsel and Ayesha playing the bondsperson—a spouse advocating for her detained husband. The scenario involved a detainee held on flight risk grounds due to criminal charges (and a past conviction in Canada) and a missed immigration hearing, attributed to a recent address change. From our perspective we sought to show that the detainee’s strong ties to Canada—his role as a father to two Canadian-born children and the family’s efforts to regularize his status—mitigated any flight risk. Ayesha, playing the bondsperson, testified about her commitment to supervising her husband, ensuring compliance with conditions like regular CBSA reporting. She highlighted their family’s stability, a pending application for permanent residence, and the children’s reliance on their father, aligning with the “best interests of the child” principle (IRPR, s.248).
Due to time constraints, we kept the mock hearing short and sweet, focusing on examination of the bondsperson and to showcase the bondsperson’s role in a credible release plan. Our resource underscores that a strong bondsperson— a Canadian citizen or permanent resident ideally with financial stability, able to exercise influence over the detained person and no criminal record—can support release by demonstrating a credible plan and thereby the existence of alternative to detention. The bondsperson needs to understand the responsibilities and obligations that come with that role and counsel need to ensure that the best possible, credible bondsperson is presented and that this bondsperson is adequately prepared for both direct and potential cross examination. There should be as little surprises as possible.
Mason Cooke wrapped up our panel by sharing insights from the CBSA’s viewpoint.
Mason concurred with Ayesha earlier suggestion noted in her overview and in our resource, about the importance of reaching out and talking to Minister's counsel before the hearing. Things can be ironed out so to speak potentially shortening the detention review and obviating the need for evidence or testimony on particular areas/issues.
The session concluded with Q&A. For complex cases, we suggested considering habeas corpus applications if detention becomes indefinite or are otherwise "stuck".
Closing Thoughts
This year's National Immigration Conference was exceptionally well done; everyone I talked to was full of praise to the executive and CBA volunteers that put in a lot of time and effort to ensure that all attendees got the most out of the premier immigration law conference in Canada.
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