Bonds of duty: Clarification needed to say who pays and when under IRPA

  • January 28, 2019

A promise might be a good enough security for the London Stock Exchange, whose motto is “my word is my bond,” but the Canada Border Services Agency requires a bit more from those who pay a deposit or post a guarantee to ensure compliance with conditions imposed on a person entering Canada under the Immigration and Refugee Protection Act.

The CBA’s Immigration Law Section recently responded to the CBSA’s consultation on proposed amendments to the Immigration and Refugee Protection Regulations clarifying the requirements of bondspersons.

The Section says it supports the initiative to ensure that there is a consistent and transparent baseline for applying the regulations, but makes recommendations for changes to ensure that detainees aren’t penalized for not having financial resources or a network of family and friends in the country.

For example, where the proposed regulations say that the potential bondsperson’s financial situation should be considered, the Section recommends not setting a maximum or minimum amount required to post a bond. Rather, it says, the bond required should be “significant” for the bondsperson, who should have the capacity to pay it.

“Release should not be reserved for the wealthy,” the submission says. “The Regulations and associated guidelines should not include a set formula for the quantum of bond proposed, so long as the amount is meaningful for the bondsperson. A formulaic approach unduly fetters discretion.”

The regulations should also allow detained people to post their own bond, something already fairly common in the criminal courts. Again, the sum should be meaningful for the detainee.

“Own bail can also be combined with a separate bondsperson, with the monetary bond posted by the detainee and the bondsperson identified for other purposes, such as living arrangements and ensuring compliance.”

The Section recommends that community groups and institutions be allowed to act as bondspersons, and suggests that while they may not be able to post a monetary bond they could serve as a reliable source of support – especially when the detainee has no ties to other individuals in Canada.

When assessing the suitability of a bondsperson, the regulatory requirement that their “criminal record and potential criminal associations” be examined is an overreach. The examination should include prior criminal convictions only, and “should not impugn a bondsperson based on association or charges that were later stayed, withdrawn or dismissed.”

Release of a detainee should be ordered at the earliest possible time, the Section says, and a non-exhaustive list of alternatives to detention should be included in the regulations. A formal process should be established to deal with any breach of release conditions, under which the Immigration Division of the Immigration and Refugee Board could decide how much of the bond is forfeited based on the magnitude of the breach.

[0] Comments

CBA members may sign in to comment.