Purpose
The following procedures are intended to facilitate the timely disclosure of all relevant documents by the Minister of Public Safety (Minister) at a detention review by the Immigration Division (ID), for the benefit of the detainee (person concerned) to whom the information relates.
Providing disclosure to counsel in advance of the proceedings ensures a procedurally fair opportunity for review and promotes efficiency by mitigating the need for adjournments or postponements.
Where the person concerned has not informed the Minister that they have other counsel, disclosure shall be made to legal aid duty counsel.
Background
The ID has a duty to conduct detention reviews under the Immigration and Refugee Protection Act within statutory timeframes and in a procedurally fair manner.
Rule 26 of the Immigration Division Rules (ID Rules) provides that if a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division.
The Federal Court of Appeal held in BrownFootnote 1 that a detainee is entitled to timely disclosure of all relevant documents. As a result, Section 7.3.2 of Chairperson Guideline 2: Detentionprovides that the Minister must disclose all information and documents relevant to the particular circumstances of the detainee, whether or not the Minister intends to rely on it. The disclosure obligation includes information that is only to the advantage of the detainee.
Minister's disclosure to Legal Aid duty counsel
If the person concerned has not informed the Minister that they have other counsel with respect to a 48-hour review, the Minister shall provide disclosure to duty counsel from a provincial legal aid agency in jurisdictions where such representation is available for otherwise unrepresented detainees.Footnote 2 The relevant provincial legal aid agency will be determined based on the province in which the detainee is physically located at the time when the Minister provides the disclosure to the ID. The Minister shall continue to provide disclosure for subsequent reviews to the same legal aid agency.
Counsel of record
The ID deems the aforementioned legal aid duty counsel as counsel of record under ID Rule 13 (becoming counsel of record) for otherwise unrepresented detainees in 48-hour detention reviews. Once designated, the legal aid agency will remain counsel of record for subsequent detention reviews unless the representation is terminated or withdrawn.
This change to ID Rule 13 applies for the purpose of Rule 8 (information provided by the Minister), Rule 26 (disclosure of documents by a party), and Rule 28(3) (providing documents to a permanent resident or foreign national).
Disclosure by electronic means
The provincial legal aid agency is responsible for providing to the ID a single designated electronic address to be used for receipt of the disclosure from the Canada Border Services Agency (CBSA) on behalf of the Minister.
The Minister will use the designated electronic address to provide the disclosure to the provincial legal aid agency.
For information that cannot be sent electronically and where duty counsel has been deemed to be counsel, the Minister will provide disclosure in accordance with Rule 29 of the ID Rules.
Timeliness
As required by ID Rule 26, disclosure must be provided as soon as possible before the detention review to maximize efficiency for all parties. Accordingly, disclosure should be provided to counsel or duty counsel at the same time as it is provided to the ID.
Confidentiality and authority to disclose information to legal aid
In accordance with their professional obligations, the provincial legal aid agency is responsible for maintaining the confidentiality of the disclosure provided and for ensuring the documentation is used solely for the purpose of providing representation to the benefit of an otherwise unrepresented detainee by duty counsel.
Ministerial disclosure to legal aid for the purpose of timely representation by duty counsel is a “consistent use” authorised under paragraph 8(2)(a) of the Privacy Act.
Authority
Paragraph 159(1)(g) of the IRPA provides that the Chairperson takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay. The Chairperson has delegated this authority to Deputy Chairpersons.
ID Rule 49 provides that, in the absence of a provision in the Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter. ID Rule 50(b) provides that the Division may change a requirement of a rule.
Effective date
This practice notice comes into effect on the date that it is signed.
Signed on June 30, 2025
Greg Kipling
Deputy Chairperson, Immigration Division
References
Immigration and Refugee Protection Act (S.C. 2001, c. 27). Division 6 of Part 1, Detention and Release, ss. 54 to 61.
Immigration and Refugee Protection Regulations (SOR/2002-227). Part 14, Detention and Release, ss. 244 to 250.
Immigration Division Rules (SOR/2002-229). Rule 8 requires the provision of prescribed information by the Minister in advance of a detention review. Rule 26 requires the disclosure of all documents prior to a proceeding. Rule 28 requires the information and documents be provided to counsel for the person concerned. Rule 29(e) provides that a document can be provided by electronic mail (email) if the Division allows.
Chairperson Guideline 2: Detention (amended April 29, 2021). Section 7.3 Disclosure and evidence.