Arrests, detentions and removals
National Directive for the Detention or Housing of Minors

Table of contents

1. Introduction

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. When exercising their authority to arrest and detain, under IRPA and the Immigration and Refugee Protection Regulations (IRPR), CBSA officers are guided by jurisprudence as well as internal policies, directives and guidelines. Canada's immigration detention program is based on the principle that detention shall be used only as a last resort, in extremely limited circumstances and only after appropriate alternatives to detention are considered and determined to be unsuitable or unavailable.

This Directive is fully aligned with the Ministerial Direction issued by the Minister of Public Safety and Emergency Preparedness.

2. Preamble

Canada's international obligations and domestic legislative and policy frameworks are the broad underpinnings of this Directive. 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 best interests of the child (BIOC). A Federal Court decision in 2016Footnote1 ruled that the interests of a housed minor is a factor that can be taken into the decision to detain or maintain detention of a parent and are to be weighed along with other mandatory factors under R.248. The United Nations Convention on the Rights of the Child (CRC), to which Canada is a party, states that the BIOC shall be a primary consideration in all state actions concerning children. In recognizing the vulnerability of children and research on the detrimental effects of detention and family separation on children, the CBSA developed the National Directive for the Detention or Housing of Minors for operational use, which takes a balanced approach to achieve better and consistent outcomes for minors affected by Canada's national immigration detention system.

3. Definitions

Alternatives to Detention (ATDs)
A policy or practice that ensures people are not detained at an Immigration Holding Centre (IHC), provincial or any other facility 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.
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.
Community-based organizations (CBOs)
Non-profit groups that work at a local level to improve life for residents. The focus is to build equality across society in all streams - health care, environment, quality of education, access to technology, access to spaces and information for the disabled, to name but a few.
Detainee or Detained
An adult or minor subject to an Order for Detention under A55 of the IRPA.
Family
Consists of a parent(s) or legal guardian(s) ('p/lg' henceforth) and a dependent minor. This may also include family members as defined by IRPR and situations where siblings are traveling together without their p/lg.
Housed (Minor)
A foreign national, permanent resident or Canadian citizen who, after the completion of a BIOC, is kept with their detained p/lg 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 p/lg consent in accordance with the rules and procedures of that facility.
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 (see Annex B). However, this does not change the fact that they are considered to be a minor in the federal context (R249).
Non-Compliance
Failure or refusal to comply, as with a law, regulation, or term of a condition.
Segregation (Administrative)
The separation of persons to prevent association with others.
Unaccompanied Minor
He/she or siblings traveling together do not arrive in Canada as a member of a family or do not arrive in Canada to join such a person.

4. Objectives

  1. To stop detaining or housing minors and family separation, except in extremely limited circumstances.
  2. To actively and continuously seek ATDs when unconditional release is inappropriate for the purpose of the above.
  3. To preserve the family unit for overall well-being and continuity of care.
  4. To ensure that the detention or housing of a minor or the separation of a minor from his/her detained p/lg, where unavoidable, is for the shortest time possible.
  5. To never place minors in segregation (or segregate them) at an IHC, provincial or any other facility.

5. Legislative authorities

Section 55 of the IRPA is the arrest and detention provisions applicable to both for adults and minors:

A55 (1) and (2) - A designated officer may arrest and detain, with (1) or without (2) a warrant where:

A55 (3) - A designated CBSA officer may detain a person on entry into Canada (limited to Port of Entry (POE) cases only) where:

A55(3.1) provides for mandatory arrest and detention of a designated foreign national who is 16 years of age or older on the day of the arrival that is subject of the designation made by the Minister of Public Safety and Emergency Preparedness pursuant to subsection 20.1(1) of the IRPA.

Section A60 of the IRPA enshrines the principle that the detention of a minor is a measure of last resort while concurrently legislating the BIOC must always be considered:

For the purposes of this Division, it is affirmed as a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child.

In addition, Section 249 of IRPR outlines special considerations on the detention of minors:

Other factors are prescribed in section 248 of the IRPR for consideration before a decision is made on detention or release if it is determined that there are grounds for detention:

6. Fundamental considerations

  1. Detention of a minor is a measure of last resort (A60 above). Detention is to be avoided to the greatest extent possible and applied for the shortest period possible.
  2. ATDs must always be considered first for minors and their p/lg and be actively pursued until release.
  3. The unity of families is to be highly factored in all detention-related decisions.
  4. The BIOC are a primary consideration and may only be outweighed by other significant considerations such as public safety (i.e. R245 Flight Risk (a) (f) and R246 Danger to the Public), or national security.
  5. Detention may be considered when historic, consistent and willful breaches of IRPA or IRPR are demonstrated.
  6. The BIOC assessment is to be conducted prior to any decision to detain or house a minor or separate a minor from his/her detained p/lg; and should also be conducted on a continual basis (Section 8(2)).
  7.  Only in extremely limited circumstances may a minor be detained or housed if no suitable ATDs can be found:

    1. if it is in the BIOC to be housed with their p/lg;
    2. there are well-founded reasons to believe the minor is a danger to the public;
    3. when identity is a serious concern but only insofar as there are well-founded reasons to believe the minor or his or her p/lg may represent a risk to public safety and national security; and
    4. the family is scheduled or can be scheduled for removal within seven days and has demonstrated a consistent pattern of non-compliance and willful breaches of conditions or violations of the Act or Regulations elevating the risk of unlikely to appear for removal.
  8. Where detention is warranted:

    1. detention or housing must be for the shortest period of time;
    2. ATDs will be reviewed by a CBSA officer in consultation with the minor's p/lg, and counsel where applicable, on a weekly basis to prevent prolonged detention;
    3. an unaccompanied minor should never be housed for more than 48 hours at an IHC except where danger to the public considerations have been raised.
    4. there shall be no comingling of unaccompanied minors and other non-familial adult detainees.
    5. no minor (accompanied or unaccompanied) shall be placed in segregation or be segregated.
    6. families must not be separated within the detention facility where possible; and
    7. there shall be access to education, recreation, medical and counselling services, and proper nutrition in accordance with detention standards and international obligations.

7. The best interests of the child (BIOC)

Mental health evidence is clear that both detention and family separation have detrimental consequences for children's well-being. The BIOC are best achieved where children are united with their families in community-based, non-custodial settings where possible.

  1. On all detention decisions that affect minors, CBSA officers must consider the BIOC as a primary consideration and the BIOC assessment (to be developed) will be conducted within 24 hours of initial contact with the minor.
  2. To facilitate decision-making, the BIOC is to be determined separately and prior to the decision to detain the p/lg. It needs to be reviewed on an ongoing basis (includes observations and day to day interactions) based on the legal situation of the minor and their p/lg and their well-being.
  3. Officers shall use, but are not limited to, the list of factors to determine the BIOC:
    1. the child's physical, mental and emotional needs
    2. the child's educational needs
    3. the preservation of the family environment and maintaining relationships
    4. the care, protection and safety of the child
    5. the level of dependency between the child and the parent or guardian;
    6. the child's views, if they can be reasonably ascertained; and
    7. any other relevant factor.
  4. The BIOC is to be determined on a case-by-case basis taking all relevant information related to the minor's situation into account; the interests and rights of the p/lg are taken into consideration subsequent to the BIOC determination.
  5. CBSA officers must give minors capable of forming their own views the opportunity to express those views freely in all matters regarding their detention, housing or family separation. Their views should be given due weight in accordance to their age and level of maturity. Although the officer is not bound by their views, they must be considered and duly noted in the determination of what is in the BIOC.
  6. A copy of the initial and subsequent BIOC assessments shall be provided to the p/lg; and as appropriate, to the IRB Designated Representative, Child Advocate (or private counsel) and Child Protection Services.

8. Family unity

  1. Every effort must be made to preserve the family unit for overall well-being and continuity of care.
  2. Families must be released with or without conditions to the greatest extent possible. Where unconditional release is not possible, an ATD should be used.

    • When p/lg are detained, and public safety (i.e. R245 Flight Risk and R246 Danger to the Public) and/or national security are not an issue, officers must make every effort to find an appropriate ATD.
    • Where public safety (i.e. R245 Flight Risk and R246 Danger to the Public) and/or national security are raised, every effort shall be made to find an ATD that sufficiently mitigates the concerns.

    Below are possible scenarios that may be encountered by CBSA officers:

    Scenario 1 – Where removal is not or cannot be scheduled within seven days, detention must be avoided and the family must be released using an ATD to the greatest extent possible.

    Scenario 2 – May detain one parent and release the other with the minor. This may be considered when one p/lg is a danger to the public or a security concern whereby an ATD for both parents is not appropriate.

  3. Though it is crucial to maintain the family unit, there may be exceptional circumstances where it is not possible. Where an ATD is not appropriate for the family or either parent following a thorough review of community based options and release conditions, CBSA officers with the p/lg and relatives or CBO shall find a solution for the temporary care of the minor if this is in the BIOC. Contact information of the organization and/or person charged with temporary care of the minor must be indicated in the minor's file (or the p/lg file if the minor is a Canadian citizen). Subject to their level of comprehension, the minor should be given Legal Aid and Provincial Child Advocate contact information.

    Below are additional scenarios that may be encountered by CBSA officers:

    Scenario 1 – Where one p/lg is deemed appropriate for release, while the other is not, the minor will join the released p/lg if this is the BIOC.

    Scenario 2 – Where neither p/lg is deemed appropriate for release as there is not an ATD to sufficiently mitigate the risk they pose, the minor may be released upon the p/lg's written consent to a relative or trusted community member or accompany their detained p/lg at an IHC if this is in the BIOC.

    Scenario 3 – Where both p/lg are deemed inappropriate for release since there is not an ATD to sufficiently mitigate the risk they pose, and a relative or trusted community member is not available to support release, the officer shall contact a CBO for advice on the temporary care of the minor until one detained p/lg is released, or accompany their p/lg at an IHC if it is in the BIOC.

    Scenario 4 – May detain the family if removal is scheduled within seven days (travel documents are in order) and release is not a viable option e.g. , historic, consistent and willful breaches of conditions or violations of the Act or Regulations.

  4. If a minor is separated from their family, access to the p/lg must be facilitated and the CBSA officer must inform them of the steps being taken, unless the provision of the information is contrary to the BIOC and compromises the safety and well-being of the minor.

9. Child protection services (CPS)

  1. CPS are responsible for the safety, well-being and familial stability of children, which may involve investigations into abuse or neglect of children (Annex A). They can also connect families to community resources to address issues like mental health, settlement, temporary accommodations, and provide guidance / advice on the BIOC. Most CBOs are equipped to provide the aforementioned.
  2. CBSA officers shall consult the p/lg prior to contacting CPS unless the situation falls within the duty to report under child welfare legislation. Accordingly, CBSA officers must contact CPS if abuse, neglect or other serious concerns are suspected or identified in the BIOC assessment and any time thereafter. Additional reasons for CPS contact are as follows:
    1. A trauma experienced by a minor;
    2. Identified safety issues while in custody due to p/lg abuse and/or neglect; and
    3. Parents may be facing criminal charges and due to the nature of the charges, may be separated from their children (i.e. incarcerated in a separate institution).

10. Arrest and detention of a minor

  1. Upon the decision to arrest and detain a minor (accompanied or unaccompanied), the CBSA officer must advise his/her supervisor immediately. The officers must note all the ATDs on the Minister's Delegate form that they considered before concluding that detention is absolutely necessary and cannot be avoided.
  2. As per ENF 20, another officer must review the officer's initial detention decision. This officer is responsible for reviewing the case considering any new information and for authorizing release under A56, if justified. If, upon internal review, the detention decision is upheld, then the Immigration Division of the IRB will review the reasons for continuing with the detention within 48 hours following the start of the detention or as soon as possible thereafter. Of note, the CBSA will continue to conduct the BIOC assessments to inform the position taken at IRB reviews until release.
  3. Where possible, the initial decision-maker shall take the lead in the active case management of the minor's file throughout the immigration enforcement stream for the best case oversight.
  4. CBSA officers must ensure the security, safety, and protection of the minor under arrest/detention. In addition,
    1. Minors shall not be handcuffed except in extreme circumstances. Officers must assess the risk and act on reasonable grounds when deciding to handcuff a minor. Extreme circumstances are limited to danger to the public, threat posed to an officer(s), the public or self-harm;
    2. CBSA officers will not handcuff detained p/lg in front of their children other than under extreme circumstances (as above) or if he/she has a violent criminal past; and
    3. CBSA officers will not conduct personal searches or frisking of a detained p/lg in front of a minor other than under extreme circumstances (as above), or if he/she has a violent criminal past. Officers must make every effort to conduct searches outside the view of the minor, unless doing so would cause more distress to the child.
  5. Regardless of the age of the person arrested, a Notice of Arrest (report), Order for Detention (form) a National Risk Assessment for Detention and Detainee Medical forms must be completed for a detention made under A55 of the IRPA. Officers must clearly articulate reasons and grounds for arrest and detention when completing the documents, and be mindful of the utmost importance of taking fulsome and complete notes supporting their decisions and actions.
  6. If the detention involves an unaccompanied minor, the CBSA must notify the Canadian Red Cross Society (CRCS) immediately following the first 48hr detention review by the IRB; refer to section 15 (2) of this Directive.

11. Unaccompanied minors

  1. Unaccompanied minors shall never be detained or housed at an IHC unless it is for an operational reason (e.g. POE arrival at 03:00, outside of normal business hours) and an ATD cannot be found. In the event that an unaccompanied minor is held at an IHC for more than 24 hours, a CBSA officer must conduct a BIOC assessment that includes a thorough ATD review for the purpose of release. Unaccompanied minors shall also have heightened supervision (IHC staff), and access to guards, NGO staff and/or other supports as necessary.
  2. If the presence of smugglers or traffickers is a concern, the matter must be discussed with CPS to ensure that adequate protection is provided (refer to Annex A).
  3. In most cases, unaccompanied minors are to be released in the care of a CBO or CPS (e.g. local Children's Aid Society where a MOU is established) if they do not have a relative or trusted community link. While in their custody, the organization will make every effort to ensure that the minor meets CBSA's reporting requirements. Contact information of the organization, relative, trusted community member charged with temporary care of the minor or an IRB Designated Representative or lawyer must be indicated in the minor's file.

12. Housing - accompanied minors

  1. Accompanied minors shall be housed at an IHC (where available) only if it has been deemed to be in the BIOC. The CBSA officer must note the ATDs considered for both or one of the p/lg before concluding that housing was absolutely necessary for the minor and/or family unity.
  2. The CBSA officer must explain to the p/lg their option to accept or to refuse housing, and that their decision will not affect their immigration case; interpreter services must be offered to the p/lg to enable clarity and full comprehension of the discussion. A CBSA Supervisor or Superintendent and the minor's p/lg must provide their written consent prior to housing at an IHC (consult local IHC intake forms).
  3. Documentation

    Foreign National (FN) and Permanent Resident (PR) Minors: in the case of a FN or PR minor accompanying a detained p/lg, the following documentation must be completed:

    • Accompanying Minor and Medical/Healthcare Form (to be drafted)
    • Detainee Medical Form (BSF 674) - For detained p/lg only. The form must clearly indicate that the minor is accompanying their detained p/lg.

    Canadian Citizen Minor: IRPA provides no authority to arrest and detain Canadian citizens. The following must be completed:

    • Accompanying Minor and Medical/Healthcare Form(to be drafted)
    • Notes should be added to the detained p/lg NCMS and/or GCMS process note to indicate that a Canadian minor is accompanying their p/lg at an IHC.
  4. A p/lg may withdraw their consent at any time by informing the CBSA in writing. The CBSA may also withdraw their consent under extreme circumstances, such as:

    • Inability of the p/lg to care and ensure control of the minor resulting in harm to the minor and subject to duty of care referral under the child welfare legislation; or
    • An alternative to housing has become available for the accompanied the minor even after the 48-hour detention review.
  5. If a CBSA officer considers withdrawing consent, they must justify this in writing, discuss with the p/lg, and give them an opportunity to remedy the circumstances.
  6. CBSA officers shall conduct a weekly case review to reassess ATDs and the BIOC of accompanied minors.

13. Services in an IHC

In accordance with international standards, IHCs offer a secure and sanitary environment, proper nutrition, access to fresh air, access to the health care services (e.g. psychology and psychiatric supports) and recreation. Furthermore,

  1. Minors shall be housed with both p/lg. to the greatest extent possible in order to the preserve family unity.
  2. The IHC shall adhere to national Standard Operating Procedures for accompanied and unaccompanied minors, and the IHC Manager will be responsible for verifying that the national procedures are adhered to when a minor has been admitted for detention or housing.
  3. By provincial laws, minors must go to school starting at the age of five or six and until they are between 16 and 18, depending on the province or territory. Qualified teachers will provide in-class education for minors who are at an IHC after seven-days until they are released.

14. Transportation and travel

The CBSA Enforcement Manual's Part 6 Chapter 2 on the Vehicular Transport of Persons under Arrest or Detention is applicable to detained or housed minors. It guarantees the safety and security of individuals in CBSA custody and OB PRG-2015-34 Transportation of Non-Detained Persons in Agency Vehicles while Administering CBSA Program Legislation is also relevant. The p/lg is responsible for the care and control of their children, therefore, they must be kept with them at all times that include situations when the p/lg or minor must leave the IHC for various reasons: detention review, medical appointment, court proceeding, immigration examination, etc. NOTE: Section 10 applies to this section.

15. Reporting

  1. All situations involving the detention, housing or separation of the family unit must be reported immediately to the Border Operations Centre (BOC) as a significant event in the Incident Reporting Criteria (IRC) of "Child Welfare".
    1. The regional Single Reporting Tool (SRT) OB OPS-2017-03 to the BOC must contain the following information regarding the case:
      1. Tombstone data for the minor involved (UCI, age, gender, citizenship);
      2. UCI for accompanying parent or guardian (if minor is accompanied); and
      3. Synopsis of the case containing detailed information regarding the case including if the minor was accompanied or unaccompanied; detained (and grounds for detention), housed or separated from a detained p/lg; and detention facility where they are held.
    2. The SRT must contain the information that was considered during the decision-making process:
      • Information regarding how the BIOC was assessed and outcome of the assessment (this is relevant for all instances involving minors (whether minors are detained, housed or separated from their detained p/lg).
    3. The SRT must also contain the information considered regarding actions taken to mitigate detention of minors or their p/lg:
      • Information regarding how and which ATDs were considered in order to minimize the detention or housing of children, or the separation of children from their p/lg.
    4. Once the BIOC has been conducted and ATDs have been considered, and a minor is detained or housed in a detention facility, or separated from a detained p/lg, the CBSA Officer (decision-maker) must report the case to the BOC as soon as possible.
    5. Superintendents/managers shall ensure that a notification is sent to the BOC as outlined above.
  2. At first contact with an unaccompanied minor (under the age of 18), the CBSA officer will notify the CRCS in writing as soon as possible by sending an email message to: IDMP@REDCROSS.CA  On the Subject Line, indicate “Unaccompanied Minors” and the facility or location where the minor is being held.

    For general information, refer to their website: http://www.redcross.ca/how-we-help/migrant-and-refugee-services/promoting-the-rights-of-immigration-detainees

  3. Aggregate reporting on minors will be part of the detention program statistics on-line quarterly publication that will also include the separation of minors.

Annex A – Child protection services and family centres

Annex B – Provincial definitions of a minor

In Canada, the definition of a minor child varies according to province as indicated in the table below.

Province Definition of minor child Definition of minor for child protection purposes
British Columbia Person under 19 years Same
Alberta Person under 18 years Same
Saskatchewan Unmarried person under 16 years Same
Manitoba Person under 18 years Same
Ontario Person under 18 years "child" means a person under the age of 16
Quebec Person under 18 years Same
Nova Scotia Person under 19 years "child" means a person under the age of 16
New Brunswick Person under 19 years "child" means a person under the age of 16
Newfoundland and Labrador Person under 16 years (youth defined as a person who is 16 years or older, but under the age of 18) Same
Prince Edward Island Person under 18 years Same
Northwest Territories Person under 19 years "child" means a person under the age of 16
Yukon Person under 19 years "child" means a person under the age of 16
Nunavut Person under 19 years "child" means a person under the age of 16
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