Can I sue for unlawful detention?
Jamaica to Canada
Dear Mr Brown:
I am a 29-year old Jamaican male. I travelled to Toronto on a visitor's visa and was stopped at the airport by immigration officers. I believe they were investigating for a drug case. I was released without being arrested. I want to know if I can sue for unlawful arrest.
I am not sure of the circumstances of your situation, the nature of the questions that were posed
to you, how you were treated or how long you were detained. However, I can provide general information regarding detention.
The stated objectives of Canadian Immigration Laws includes the protection of the health and safety of Canadians and to maintain the security of Canadian society. The law provides officers with the discretionary authority or power to arrest and detain persons and corresponding authority to release a person from detention if, in their opinion, the reasons for detention no longer exist.
Arrest and detention with a warrant
A warrant may be issued for the arrest and detention of a permanent resident or a foreign national for which there are reasonable grounds to believe that he or she is:
* Inadmissible, such as on security grounds or for violating human or international rights; and
* Is a danger to the public; or
* Is unlikely to appear for examination at an admissibility hearing or removal from Canada.
Arrest and detention without a warrant
An officer may, without a warrant, arrest and detain a foreign national on similar grounds. These include, among other things, if the officer is not satisfied as to the identity of the foreign national.
Detention without warrant on entry into Canada
As it relates to your scenario, you should note that a permanent resident or a foreign national may, on entry into Canada, be detained if an officer:
* Considers it necessary to do so in order for an examination to be completed; or
* Has reasonable grounds to suspect that the permanent resident or foreign national is inadmissible on grounds of security or for violating human or international rights.
The principles which guide detention include:
1. Detained persons should be treated with dignity and respect;
2. Detained persons should be detained in an environment that is safe and secure;
3. Detention should be conducted in a transparent manner, while respecting the privacy of the detained persons;
4. Detained persons should be informed of their legal rights, are given an opportunity to exercise their rights and are informed of the status of their case;
5. Detained persons should have access to providing feedback; and
6. There should be reasonable efforts to meet the physical, emotional and spiritual needs of detained persons in a way that is culturally appropriate.
The use of detention to complete an examination should never be used for administrative convenience. Officers should consider options, if detention is not warranted, such as: Imposed a requirement for a person to provide a deposit of a sum of money to guarantee compliance with any imposed condition. A foreign national may also be able to withdraw their application to enter Canada when they indicate to the officer that they wish to do so.
Right to a detention review
Persons cannot be held indefinitely under Canadian Immigration Law. Reviews a detention decision will be done. If, upon internal review, the initial detention decision is upheld, then the Immigration and Refugee Board will review the reasons for continuing with the detention within 48 hours following the start of the detention or as soon as possible thereafter.
If detention is maintained by the member, the detainee must be brought before the Immigration Division at least once in the seven-day period following the first review, then at least every 30 days following the preceding review.
For further information visit jamaica2canada.com.
Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel, education agent and managing director of JAMAICA2CANADA.COM -- a Canadian immigration & education firm in Kingston. Send questions/comments to email@example.com