Examining the ‘National Risk Assessment for Detention’ process: an intersectional analysis of detaining ‘dangerousness’ in Canada

ABSTRACT

Canada Border Services Agency (CBSA) officers use the National Risk Assessment for Detention (NRAD) process to evaluate the ‘riskiness’ of immigration detainees. The NRAD’s key tool is a 2-page document laying out ‘risk factors’ with corresponding points that add up to scores of ‘dangerousness’ allegedly posed by non-citizens. CBSA officers then recommend detention in either a provincial prison or a lower security ‘immigration holding centre’. In a national context of no legislated upper time limits on detention periods, and where telephonic and other access to incarceration sites is impeded, the NRAD form’s outcome portends serious, long-term consequences.

KEYWORDS:

• Immigration detention
• administrative decision-making
• Canada
• criminalisation
• racialisation
• risk assessment

Acknowledgements

We would like to thank the two anonymous reviewers for their comments. We also acknowledge the constructive feedback on earlier versions received at a May 2019 workshop with the Migration Research Collective, including Isabelle Cote, Jenny Francis, Jamie Liew, and Yolande Pottie-Sherman, and the 2019 Canadian Association for Refugee and Forced Migration Studies Annual Conference. Critical assistance with research on this understudied area of migration governance was generously provided by Brendan Kennedy at the Toronto Star; the attorneys Julie Lassonde, Clifford McCarten, and Jared Will; and Carl Desmarais and John Helsdon at the Canada Border Services Agency. Any errors remain our own.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 There are additional or parallel schemes of detention. The first is the security certificate proceedings, under IRPA Division 9. In this stream or track, the Ministers of Public Safety Canada and the IRCC issue a certificate against a non-citizen deemed inadmissible on the grounds of security, violation of human or international rights, serious criminality, or organized criminality. A Federal Court judge orders continuation of the detention if the release of the named person would be injurious to national security, endanger the safety of any person, or enhance the risk of flight. Detention reviews occur within the first 48 hours and at six-month intervals thereafter. The second additional scheme, also legislated but again rarely used, is the mandatory detention of ‘designated foreign nationals’ (DFNS) aged 16 or over. Under IRPA S. 20.1(1), the Minister of Public Safety can make this DFN designation for individuals who arrive with the help of a smuggler and, in a group of two or more. These detentions are reviewed after 14 days, followed by another review after 6 months and then every 6 months thereafter.

2 The relevant considerations are drawn from the IRPA, the Immigration and Refugee Protection Regulations, the Immigration Division Rules, Ministerial Instructions that pertain to immigration detention; Operational instructions and guidelines; the rights implications of the Canadian Charter of Rights and Freedoms (hereafter, the Charter) and established principles of international law; and detention-related cases at the Federal Court, the Federal Court of Appeal, the provincial Courts of Appeal and Superior Courts of Justice, and the Supreme Court of Canada (SCC).

3 As explained in the manual Alternatives to Detention, also referred by the chapter number ENF 34 (section 8.2.4), while the risk assessment under NRAD takes into consideration similar factors to the risk assessment for suitability for alternatives to detention, the processes are separate.

4 The sources of international law that are relevant to the Canadian case are noted by the Canadian Red Cross (2019, 7) as including Article 10 of the International Convention on Civil and Political Rights, to which Canada acceded on May 19, 1976, requires States to ensure that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. See also the Working Group on Arbitrary Detention, Report to the Thirteenth Session of the Human Rights Council, A/HRC/13/30, January 2010 UNHCR’s Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, 26 Feb. 1999 Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Inter-American Commission on Human Rights, Principle II.

5 Some of the men charged had in fact grown up in Canada, but had, like many other Caribbean immigrants, neglected to take out citizenship as they became eligible (Pratt and Valverde 2002, 145). The perpetrator, Victor Augustus Brown, was 25 years old at the time, and had emigrated to Canada in 1976, when he was 5 or 6 years old. Thus, as Ruddick (1996, 141) explains, the ‘assailant had lived in Canada nearly three times as long as in his home country, and had entered at just about the time he would begin in the Canadian school system’.