Canadian Refugee Procedure, RPD Rule 30 - Claimant or Protected Person in Custody

Rule 30 - Claimant or Protected Person in Custody

The text of the relevant rule reads:

Claimant or Protected Person in Custody

Custody
30 The Division may order a person who holds a claimant or protected person in custody to bring the claimant or protected person to a proceeding at a location specified by the Division.

A large majority of refugee claimants who are detained are detained on grounds of identity or being a flight risk

The CBSA detained an average of 7215 individuals per year in the period from 2012 to 2017, each of whom spent, on average, 19.5 days behind bars.[1] One study found that the vast majority (93 percent) of refugee claimants detained in 2015 were detained on grounds of identity or of their being flight risks, without allegations that they represented a danger to the public or a security risk.[2]

Access to Justice issues for persons in custody

UNHCR states that, practically, detention has been shown to cause psychological illness, trauma, depression, anxiety, aggression, and other physical, emotional and psychological consequences. Detention can exacerbate the suffering and trauma that asylum seekers may already have undergone prior to or during flight to seek protection. These consequences of detention can be even more severe for vulnerable asylum seekers such as children, pregnant women, the elderly, victims of torture or trauma and persons with physical and/or mental disabilities.[3]

There are particular access to justice issues for persons in custody: claimants in detention have consistently been identified as those who have had the greatest difficulty accessing legal counsel.[4] The UN Committee Against Torture, in its General Comment on non-refoulement, has listed this as one situation in which the burden of proof should reverse, and it should fall on the state to rebut the claimant's assertions where a detained persons faces difficulties in obtaining evidence to substantiate their claim:[5]

[W]hen the complainant is in a situation where he/she cannot elaborate on his/her case, for instance, when the complainant has demonstrated that he/she has no possibility of obtaining documentation relating to his/her allegation of torture or is deprived of his/her liberty, the burden of proof is reversed and it is up to the State party concerned to investigate the allegations and verify the information on which the communication is based.[6]

For more details on this, see Canadian Refugee Procedure/The Board's inquisitorial mandate#The Board must ensure that certain claimants are assisted to make their cases.

References

• ↑ Petra Molnar and Stephanie J. Silverman, Canada needs to get out of the immigration detention business, CBC News, July 5, 2018, <https://www.cbc.ca/news/opinion/immigration-detention-1.4733897> (Accessed April 5, 2021).
• ↑ Obiora Chinedu Okafor, Refugee Law After 9/11: Sanctuary and Security in Canada and the United States, UBC Press 2020, Law and Society Series, ISBN 9780774861465, page 74.
• ↑ UNHCR Canada, Submission on Bill C-31, Protecting Canada’s Immigration System Act, May 2012, <https://www.unhcr.ca/wp-content/uploads/2014/10/RPT-2012-05-08-billc31-submission-e.pdf>, at para. 12.
• ↑ BC Public Interest Advocacy Centre, Refugee Reform Paper, <https://bcpiac.com/wp-content/uploads/2015/09/LFBC-Refugee-Reform-Paper-Final-July-30-2015-2.pdf>, page 3.
• ↑ Çalı, B., Costello, C., & Cunningham, S., Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies, German Law Journal, 21(3) (2020), 355-384. doi:10.1017/glj.2020.28 (Accessed April 11, 2020), page 375.
• ↑ CAT, General Comment No. 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22, Paragraphs 15 and 16, U.N. Doc. CAT/C/GC/4 (Sep. 4, 2018), at para. 38.

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