Developing a strategy to deal with CBSA interactions

Developing a strategy to deal with CBSA interactions

This section reproduces, borrows from and adds to the ILC Migrants Know Your Rights! document that provides detailed information to help strategize around CBSA interactions.

CBSA interactions may happen in different ways. CBSA may ask you to come in for a removal interview after an application is refused, or you come to the attention of CBSA in another way (e.g. through a traffic stop, or an employer reported you to CBSA). You may get a letter (“call-in notice”) that tells you the date and time of your appointment and asks you to bring all of your government issued documents (including work permit, study permit and drivers license), photographs and information about any immigration appeals or applications you have in process. The notice usually states that failure to attend the interview will result in a Canada-wide warrant being issued. Usually, a “Client Information Form” is enclosed that you are supposed to fill out and bring with you (this asks about your address, phone numbers, medical information, work and study information, etc. and is intended to track you in case you fail to show up for removal or an interview in the future). 

You can ask for an interpreter for this interview or can bring someone who can interpret for you (this can include family and friends but beware CBSA may ask for identification from everyone present at the appointment). The CBSA officer will ask questions about your immigration history and will determine whether you are “inadmissible” (see Appendix B – Inadmissibility Explained) and a report may be written up to issue a removal order. There is a risk of arrest and detention at CBSA interviews.

What is an immigration arrest warrant? 

An immigration arrest warrant gives CBSA the power to arrest people for immigration reasons only. CBSA does not need an immigration warrant to arrest people who do not have any immigration status in Canada. But a warrant could still be issued for non-status people. If a warrant is issued, it is Canada-wide, and the police will also see a copy of the immigration arrest warrant in the Canadian Police Information Centre (CPIC) system. Police officers may also arrest people for immigration reasons in some situations, or they may detain you and call CBSA (see information about CBSA and police powers below). 

When does an immigration arrest warrant get issued?

A warrant can be issued if CBSA has reasonable grounds to believe you are inadmissible (including that you do not have status in Canada) and are unlikely to appear for removal proceedings. CBSA can also issue warrants if they believe you are a danger to the public (usually due to a criminal record for serious offences involving “violence, weapons, drug trafficking, human smuggling and trafficking, sexual offences and economic crimes”). 

Missing an appointment with CBSA is a common reason for a warrant being issued. This can include missing regular reporting, a “call in notice” to receive a decision or come to an appointment, or a Direction to Report for removal (e.g. the actual date you have to go to the airport for your deportation). You may not know that you have missed an appointment (for example, if CBSA has sent the letter to an old address). If you think you have missed an appointment, get legal advice before contacting CBSA. If much time hasn’t passed, it may be possible to explain the circumstances and reschedule (e.g. you were in hospital and missed the date), but you should get legal advice before contacting CBSA. 

Many people do not know that there is a warrant for their arrest. A warrant cannot stop you from applying to regularize your status. But it is very important to get legal advice before submitting any application to Immigration to regularize your status because, if a warrant exists, your personal information will be communicated to CBSA.  

What powers can police, CBSA and security guards have in arrest and detention

The Immigration and Refugee Protection Act (IRPA) authorizes both Canada Border Services Agency (CBSA) officers and police officers as “peace officers” in relation to immigration arrest and detention, although they have different roles and powers.  Security guards are not peace officers and are not authorized to enforce immigration laws in Canada. This section provides some basic information about the roles and powers of CBSA officers, police officers and security guards in relation to immigration arrest and detention, but be aware that these agents do not always follow the rules and may lie to seek your compliance.

• CBSA Officers

CBSA officers are “peace officers” but only have authority to enforce immigration laws (not criminal laws). They are authorized to make arrests for violations of immigration law with or without a warrant in specified circumstances (please see the section on planning for CBSA interactions for further details about when a warrant is needed). CBSA officers must have reasonable grounds for believing that you are inadmissible and pose a danger to the public or are a “flight risk” (eg. won’t show up for appointments or removals) to issue an arrest warrant, or to arrest or detain you without a warrant for immigration violations. CBSA may also arrest non-status people without a warrant if they are not satisfied that you have satisfactorily established your identity during an immigration proceeding. But, CBSA also has broad powers to enforce immigration laws (so what is “reasonable” might be very broad), and they also have broad powers of search and seizure incident to arrest and detention. CBSA officers are required to inform you about the reasons for arrest and right to counsel upon detention.

• Police Officers

Police officers are authorized to enforce criminal laws as well as some immigration laws relating to immigration arrest and detention. In Ontario, there is the Ontario Provincial Police (OPP) and municipal police services (e.g. Toronto Police Services (TPS), Peel Regional Police, etc.). Police officers may wear a uniform, or they may wear plain clothes, but must identify themselves if trying to search, detain or arrest you using their police powers.

If there is an immigration warrant for your arrest, a police officer may be authorized to arrest you at the direction of a CBSA officer. In practice they will likely detain you and turn you over to CBSA to make the arrest. If the police stop you, and there is an immigration warrant, they may detain you even if no crime has been committed (e.g. the only violation is an immigration violation, although they need a valid reason to stop you in the first place). If there is no warrant for your arrest, but police suspect that you may be without status (due to racial profiling, having an expired permit, or working without authorization, or they have no record of you in their system), they may also try to detain you and turn you over to CBSA. Depending on the situation, if CBSA does not come to the scene, they may ask you to attend an appointment at their offices on a later date. Get legal advice before going to any CBSA appointment. 

• Security Guards

Security guards are not “peace officers” and are not authorized to enforce immigration laws. There is a separate law in Ontario called Private Security and Investigative Services Act that spells out the powers of security  guards, and it does not give them the power to arrest or detain people for immigration violations. You do not have to answer any questions or provide information about your immigration status to a security guard. But be aware that security guards may not always say that they are detaining you due to your status. They may say that they are detaining you on suspicion a crime has been committed on the property (such as theft or tresspass) and try to make you wait until the police arrive. Being without status in Canada is not a crime. A security guard (or any member of the public) cannot detain you or make an arrest because they suspect you don’t have immigration status in Canada. 

Security guards can be in plain clothes or wear uniforms. If they are wearing a uniform, it must show their full name and license number on the front, as well as the name or logo of their employer, and it must clearly state “security” or “security guard.” They must also present their license when requested by a member of the public (even if they are in plain clothes).  Even though there are rules around what can and cannot appear on security guard uniforms, they may sometimes look like police or CBSA officers. Security guards are also allowed to carry a baton, handcuffs and a firearm (but only if they have a separate valid firearm license). In Ontario, a peace officer – such as a police officer – may also act as a security guard (and they do not require a separate license). Even though each role has different legal authorizations and limits, people with power don’t always follow the rules and it is important to document everything and get legal advice if you think you have been illegally stopped, detained or arrested (including racial profiling). 

Important note: This guide was created by organizations in Ontario, but the unfair immigration rules discussed here affect people across Canada. If you live in a different province, we encourage you to connect with a migrant justice organization in your area. You can find some of them here: About Migrant Rights Network – Migrant Rights Network

Understanding where CBSA may apprehend you

• What happens if CBSA comes to my home?

This section reproduces and slightly modifies the ILC Migrants Know Your Rights! document, which remains an important source of information and tips to strategize around immigration arrest and detention. 

If a CBSA officer comes to your home:

• CBSA officers may be in plain clothes (e.g. not wearing a uniform)
• You have the right to remain silent (can choose to say nothing) or deny them consent to enter your home 
  • Officers may leave if they think no one is at home but be aware they may remain in the surroundings monitoring your home or waiting for you to leave your residence
• If you decide to speak to them, ask them who they are and what they want through the door. They may say that they have come to make an immigration arrest
  • Do not open the door because, if you open the door, they may force their way in
  • Ask through the door if they have a warrant, and to slip the warrant through the mailbox or under the door, or hold them up to a window for you to examine from inside your home
  • If there is no other option, open the door a little to take them and then close the door again (keep a chain lock on if you have it) 
• Look at the warrant(s): 
  • What type of warrant do they have?
    • Do they have an immigration arrest warrant (this will be signed by a Senior Immigration Officer)? The immigration warrant only allows CBSA to make an immigration arrest – it does not allow them to enter your home 
    • To enter your home to make an arrest, CBSA must have a judicial warrant signed by a judge (an immigration warrant signed by an immigration officer is not enough). This warrant is called a “special entry” warrant or “Feeney” warrant. 
  • Are there any errors on one or both warrants? For example: 
    • the warrant is not dated
    • the warrant is not signed
    • the person’s name is spelled incorrectly
    • the person’s date of birth is incorrect
    • the address on the warrant is incorrect 
  • Is the person named on the warrant in the house?

• If they do not have the special warrant allowing them to enter the house, or there’s a mistake on either of the warrants, you have the right to tell them they do not have the correct warrant to enter your home or that the information on one or both warrants is incorrect
• Then ask them to leave (without opening the door)
  • Be AWARE that CBSA has sometimes called the police to assist with gaining entry to a home saying there are emergency circumstances (warrantless entry) 
  • Even if they leave, CBSA may remain in the area, or wait for you to leave your residence
• If the officers have the TWO necessary warrants and ALL the information is correct, they may enter your home without your consent 
• If the person named on the warrant is present, they may choose to leave the house (in which case they will be arrested)
  • Given officers can arrest non-status people with or without a warrant (except protected persons), if they enter your home and the officer has reason to believe that others do not have status or may be inadmissible, there is a risk of arrest for the other household members as well
• Even if they have the necessary warrants, you may choose to wait until the officers force their way inside your home. 
  • It may take some time before the officers decide to force their way in which can provide you time to contact a lawyer and make any necessary arrangements. It can also provide time for other members of the household to make their own plan and arrangements (because, once the officers are in your house, they may arrest others who also don’t have valid immigration status).
  • If they eventually do arrest you in your house after forcing their way in, it is more likely that CBSA will detain you rather than release you after arrest. The officers could prepare a report that says that you didn’t cooperate at the time of arrest. CBSA may rely on this as evidence at a detention review hearing to say that you shouldn’t be released. 
• BE AWARE that physically preventing the officers from entering your home may lead to criminal charges (such as resisting or wilfully obstructing peace officer)
• If you decide to inspect the warrants (e.g. decide not to remain silent), you should be aware that anything you say may be noted by the arresting officer, and could be used against you in subsequent immigration proceedings (including detention review hearings and inadmissibility proceedings).

• What happens if CBSA comes to my shelter?

A shelter is not the same as a private home, and a lot depends on shelter staff and policies in place to deal with CBSA enforcement. Ideally shelters will respect residents’ privacy and not communicate personal information to CBSA. Service providers, including City-services like shelters are bound by privacy laws and should get your prior informed consent before sharing your personal information (they should explain any risks or legal obligations to you before you share your information). While having immigration status is not a requirement to access shelters in Ontario, they will ask about your immigration status in order to get the Basic Needs Allowance for shelter residents from Ontario Works. It is a good idea to ask staff at your shelter to find out how they deal with immigration and police officers. You can also have a friend who has immigration status ask for you or connect with a local community agency that might be able to approach the shelter on your behalf.

Sometimes a letter confirming residence from a shelter can be used to support an immigration application (such as a TRP or H&C). You do not need to disclose information you are not comfortable providing for them to put it in a letter – the shelter staff can write the letter based on what they already know about your situation (and do not need information about your immigration history). It is important they provide this letter directly to you or your legal representative (and not mail it to Immigration or CBSA). 

• What happens if CBSA stops me in a public place (street, shopping mall, park, etc.)? 

This section reproduces and adds to the ILC Migrants Know Your Rights! document. If you don’t have immigration status, an officer can arrest you with or without a warrant in a public place. Be aware that resisting arrest, walking or running away while being questioned, or providing false identification information or documents could make your immigration situation worse and could lead to criminal charges.

As outlined in the ILC KYR document, if an officer tries to arrest you WITH a warrant in a public place: 

• You have the right to ask to see the warrant
• Review the warrant and make sure that you’re the person named on it, and that it is dated and signed
• Tell the officer if there is a mistake on the warrant or any information is missing
• If the officer still arrests you, make sure that you tell your representative about the incorrect warrant as this may help with the arguments you make at a detention review 

If an officer tries to arrest you WITHOUT a warrant in a public place, they may be targeting you due to racial profiling or because the language you’re speaking is not English or French. They may begin by asking you questions about your identity and immigration status:

• You have a right to silence and do not have to answer any questions when stopped in a public place 
• You may choose to identify yourself with your name, address, and date of birth, because officers can say that you refused to answer questions about your identity, or you are not carrying any identity documents as a reason for arrest  
• The officer may ask questions to find out whether you’re here with valid immigration status or not. 
  • If you’ve already identified yourself to the officers, and they keep asking you questions, you do NOT need to answer them. You could ask the officers, “Am I being detained or am I free to go?”
  • If you answer their questions, and they determine based on your answers that you’re here without status, then they can arrest you without a warrant
• Keep asking if you are being detained or if you are free to go – they will either arrest you or they’ll let you go

• What happens if CBSA stops me while I am driving or riding a bike?

This section reproduces and adds to the ILC Migrants Know Your Rights! document. If you’re driving a car (or you’re on a bike) in Ontario you are legally required to pull over and show your identification to the officer (only show your driver’s license or other Ontario or Canadian issued ID). First ask the officer to identify themselves – CBSA officers may be in plain clothes and may not tell you why they are stopping you. The stop may be due to a warrant, or they may be racially profiling people in the area to figure out who may or may not have status. They may ask you questions about your immigration status. If you have provided your identification to the officer, you can choose to exercise your right to silence and decline to answer any further questions about your immigration status.  You can also choose to answer any further question they ask by saying “am I being detained, or am I free to go?” 

Traffic stops by police can also put you at risk of immigration arrest and detention, including where police are racially profiling neighbourhoods. For example, if the police pull you over and run a check on your driver’s license or name and date of birth, they will see outstanding immigration warrants. Police may detain you and call CBSA to execute the immigration warrant. Also, if they can’t find any record of you in their system, they may suspect you are here without status and turn you over to CBSA (you could be detained at that time, or CBSA may ask you to come in later for an interview at a CBSA office).

• What happens if CBSA stops me while I am a passenger in a car?  

As outlined in the ILC KYR, if you’re a passenger and not the driver, you have the same rights as if you’re stopped in a public place (see above). This means:  

• You have a right to silence and can choose not to answer any questions
• You do not have the same obligations as the driver to identify yourself (give ID documents, your name, address or place of birth)

• You may choose to identify yourself by giving your name, address and date of birth because “officers can arrest someone without immigration status if they don’t believe you have identified yourself correctly.”
• BE AWARE that identifying yourself could also lead to arrest if an immigration warrant for your arrest exists in their system
  • If the officer says they have a warrant for your arrest, you have the right to ask to see the warrant – ask them to hold it up to the window or roll down the window just enough to take the warrant
  • Review the warrant and make sure that you’re the person named on it, and that it is dated and signed
  • Tell the officer if there is a mistake on the warrant or any information is missing
  • Errors on the warrant may not stop the officer from arresting you. But it is still important to tell the CBSA officer and your legal representative about the incorrect warrant because it may impact the arguments you make at a detention review
• If you choose to identify yourself, do not provide false information or documents about your identity (provide a Canadian or Ontario ID if you have one, rather than identification from your home country) 
• If you have identified yourself and they keep asking you questions, you do not need to answer any further questions about your immigration status. Keep asking “am I being detained or am I free to go?” 

Even if they do not have the legal right, CBSA officers may act aggressively, and you are the only person who can decide what is safest for you at that time – even if you feel forced to comply, you can say that you do not consent. For example, CBSA may ask you to roll down your window or step out of the car to talk to you. You may choose to exit (which may result in you being arrested and detained), or decide to remain in the car and wait for CBSA to take next steps. Be aware that CBSA may say that by exercising your right to silence (refusing to identify yourself or answer questions) or refusing to roll down the window or step out of the car means you didn’t cooperate at the time of arrest. CBSA may rely on this as evidence at a detention review hearing to say that you shouldn’t be released. It would be important to document and tell your legal representative about the CBSA officer’s actions as it may impact the arguments you make at a detention review hearing.

Important note: This guide was created by organizations in Ontario, but the unfair immigration rules discussed here affect people across Canada. If you live in a different province, we encourage you to connect with a migrant justice organization in your area. You can find some of them here: About Migrant Rights Network – Migrant Rights Network

• What happens if CBSA stops me on public transit?

TTC Riders has produced a Transit Know Your Rights document that outlines your rights while riding public transit. As outlined by TTC Riders, staff paid by the city (fare inspectors – now called Provincial Offences Officers, special constables, security guards) should not ask about your immigration status and have no authority to enforce immigration laws, but they might still ask. You may be asked to provide identification, but do not have to provide your immigration status information to TTC staff. They may call CBSA or police (if they allege a crime has been committed). TTC Riders’ Know Your Transit Rights guide outlines the roles played by different transit staff, and how to handle searches and requests to provide identification. If CBSA is contacted, ask immediately to talk to immigration counsel (a licensed immigration lawyer or registered immigration consultant). 

Resource	Contact info
TTC Riders – Know Your Transit Rights	https://www.ttcriders.ca/rights
Refugee Law Office – Legal Aid Ontario	Toll-free: 1-800-668-8258  GTA or Collect: 416‑977‑8111 Address: 20 Dundas St W Suite 730, Toronto, ON (open 9am-5pm weekdays)

• What happens if CBSA comes to my children’s school? 

Non-status children under-18 years of age have the right to go to primary and secondary school in Ontario. Children should be able to attend school without fear of immigration enforcement, and schools should respect their student’s privacy rights and not communicate personal information to CBSA. If you are facing challenges registering your child in school, or your child’s school does not have a specific policy about CBSA enforcement and you do not feel safe approaching the school directly to ask about their policies, connecting with a community group who may be able to reach out on your behalf might be a good first step. 

Resource	Contact info
S4 Collective	s4collectiveTO@gmail.com
Childhood Arrivals Support and Advocacy Centre of Canada (CASA)	https://casacentre.ca/ 1240 Bay Street, Suite 600 Toronto, Ontario M5R 2A7 Email: info@casacentre.ca *Provides free, confidential legal services
Justice for Children and Youth (JFCY)	GTA: 416-920-1633 ON Toll Free: 1-866-999-JFCY (5329) Monday, Tuesday, Thursday and Friday,  9am-12pm and 1-5pm (lunch closure) *Provides legal services to children and young people across the province of Ontario, including young people with no or precarious immigration status
Workers’ Action Centre (WAC)	720 Spadina Avenue 2nd floor, Suite 223 Toronto, Ontario M5S 2T9 Tel: 416-531-0778
Migrant Workers Alliance for Change (MWAC)	Call our hotline on WhatsApp: 647-782-6633

 

Important note: There are organizations across Canada fighting for migrant justice and Status for All that may be able to support you with information relevant to where you live. You can find some of them here: About Migrant Rights Network – Migrant Rights Network

• What happens if CBSA comes to my workplace?

If you are experiencing abuse or are injured at work, there are laws that apply to anyone working in Ontario whether you’re working with a valid work permit, Social Insurance Number or not. See Appendix C to learn more about these rights. 

You may be at risk of immigration arrest if you’re working somewhere without a valid work permit, or if the place you’re working is not the same place named on your work permit. Whether CBSA officers enter your workplace (with or without your employer’s permission) or wait for you outside, they will be able to question you in the same way that they can in a public place. You would have the same rights as if being questioned in a public place but exercising your right to silence may still lead to arrest. 

If you have a trusted co-worker, you may wish to give them contact information for family members or a lawyer in case you’re arrested at work. Trusted co-workers who have status may also be able to help plan in the workplace about what to do if CBSA shows up looking for non-status workers. Under immigration law, employers could face fines or penalties for hiring people who are not authorized to work in Canada. An investigation into the employer might also put non-status workers at risk of deportation.  

In general, don’t rely on your recruiter or employer for legal advice. Aside from asking questions about your eligibility to work (e.g. do you have a work permit), your employer should not ask you questions about your immigration history, place of birth or reasons for coming to Canada. Employers also do not need to see copies of your immigration applications (these would have your Unique Client Identification (UCI) number on them or contain personal details that they do not need to know).

Important note: This guide was created by organizations in Ontario, but the unfair immigration rules discussed here affect people across Canada. If you live in a different province, we encourage you to connect with a migrant justice organization in your area. You can find some of them here: About Migrant Rights Network – Migrant Rights Network