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Contents

1 What this chapter is about.......................................................................................................................... 3

2 Program objectives .................................................................................................................................... 3

3 Legislative authorities ................................................................................................................................. 3

3.1 The Act and Regulations ..................................................................................................................... 3

3.2 The Corrections and Conditional Release Act (CCRA) ....................................................................... 5

3.3 Forms................................................................................................................................................... 7

4 Instruments and delegations ...................................................................................................................... 8

5 CBSA policy relating to persons serving a sentence ................................................................................. 9

6 Overview of correctional services ............................................................................................................ 10

6.1 Federal sentences ............................................................................................................................. 10

6.2 Provincial sentences .......................................................................................................................... 10

7 Definitions and specific terminology ......................................................................................................... 11

7.1 General .............................................................................................................................................. 11

7.2 Terminology related to federal offenders ........................................................................................... 13

8 Procedure: Identification of inadmissible inmates .................................................................................... 15

8.1 Policy on identification of inadmissible persons serving a sentence ................................................. 15

8.2 Information sharing ............................................................................................................................ 16

8.3 Identification through correctional services ....................................................................................... 16

8.4 Information sharing at the federal level ............................................................................................. 17

8.5 Information sharing at the provincial level ......................................................................................... 17

9 The Impact of A59 .................................................................................................................................... 18

10 Case management: Inadmissibility assessment and investigation ........................................................ 18

11 Management of risk and effective monitoring ........................................................................................ 19

11.1 Assessment of risk .......................................................................................................................... 19

11.2 Alternatives to detention .................................................................................................................. 21

11.3 Procedures where detention under the IRPA is determined to be necessary following completion

of the person’s custodial sentence .......................................................................................................... 22

11.4 Summary of steps to be completed where detention under the IRPA is determined to be

necessary following completion of the person’s custodial sentence ....................................................... 23

12 Impact of removal orders on Federal conditional releases under the CCRA ........................................ 24

13 Procedure: Removal of persons who are detained ................................................................................ 24

14 Cases where the person was sentenced prior to the enactment of the IRPA ....................................... 25

15 Case examples ...................................................................................................................................... 26

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Updates to chapter

Listing by date:

2020-03-16

Substantive and minor changes, as well as clarifications, have been provided throughout the

chapter.

New content has been added to provide more detailed guidance, reflect policy changes and

ensure consistent application of the IRPA.

Sections have been re-written for clarity and/or moved and re-organized for more logical flow of

information.

2005-12-06

Changes were made to chapter ENF 22 in order to reflect the Citizenship and Immigration

Canada (CIC) and the Canada Border Services Agency (CBSA) policy responsibility and service

delivery roles.

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1 What this chapter is about

This chapter explains an officer's responsibilities and authorities relative to permanent residents

and foreign nationals who are serving a sentence in a federal or provincial correctional

institution.

The chapter outlines the role of the Canada Border Services Agency (CBSA) as it relates to

processes governed by Correctional Services Canada (CSC) and provincial correctional

services, and the impact of decisions of the courts as well as federal and provincial parole

boards on the administration and enforcement of the Immigration and Refugee Protection Act

(IRPA). It also describes the transitional provisions regarding permanent residents and foreign

nationals who were sentenced before the IRPA came into force and who are serving sentences

in provincial and federal correctional institutions.

2 Program objectives

The objectives of the IRPA with respect to its enforcement and inadmissibility provisions are:

 to protect the health and safety of Canadians and to maintain the security of Canadian

society;

 to promote international justice and security by fostering respect for human rights and

denying access to Canadian territory to persons, including refugee claimants, who are

criminals or security risks.

In collaboration with its correctional partners, the CBSA will achieve government objectives by:

 supporting the IRPA examination, investigation, and removal processes through the

early identification of inadmissible permanent residents and foreign nationals who are

serving a sentence; and

 protecting Canadian society by detaining those who pose a danger to the public or

security risk and through effective management and monitoring of persons serving a

sentence who are the subject of IRPA enforcement action.

3 Legislative authorities

3.1 The Act and Regulations

The IRPA provides the authority for an officer to report, arrest, detain, and remove inadmissible

persons.

The following are some relevant legislative authorities to assist an officer in dealing with persons

serving a criminal sentence who are subject to IRPA enforcement :

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Table 1: Relevant sections of the IRPA

Description of IRPA provision

IRPA

Section

Arrest and detention with warrant

An officer may issue a warrant for the arrest and detention of a permanent

resident or a foreign national who the officer has reasonable grounds to believe

is inadmissible and is a danger to the public or is unlikely to appear for

examination, for an admissibility hearing, for removal from Canada or at a

proceeding that could lead to the making of a removal order by the Minister

under subsection 44(2).

A55(1)

Notice to the Immigration Division

If a permanent resident or a foreign national is taken into detention, an officer

shall without delay give notice to the Immigration Division.

A55(4)

Release: officer

An officer may order the release from detention of a permanent resident or a

foreign national before the first detention review by the Immigration Division if the

officer is of the opinion that the reasons for the detention no longer exist. The

officer may impose any conditions, including the payment of a deposit or the

posting of a guarantee for compliance with the conditions, that the officer

considers necessary.

A56(1)

Order to deliver inmate

If a warrant for arrest and detention under this Act is issued with respect to a

permanent resident or a foreign national who is detained under another Act of

Parliament in an institution, the person in charge of the institution shall deliver the

inmate to an officer at the end of the inmate’s period of detention in the

institution.

A59

Stay of removal until sentence completed

A stay of removal applies when a foreign national is sentenced to a term of

imprisonment in Canada. Officers must not enforce a removal order if the foreign

national is an inmate of a penitentiary, jail, reformatory or prison, or if they are

serving a conditional sentence order in the community.

The stay of removal is effective until the sentence being served is completed.

The sentence is completed when the foreign national is released from

imprisonment by reason of expiration of sentence, commencement of statutory

release or grant of parole.

A50(b)

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3.2 The Corrections and Conditional Release Act (CCRA)

The Corrections and Conditional Release Act (CCRA) is the law that governs the Correctional

Service of Canada (CSC). CSC is responsible for supervising offenders serving a sentence of

two years or more, and supervises offenders both in custody and in the community. The CCRA

also governs the Parole Board of Canada (PBC). The PBC has exclusive authority to grant,

deny or revoke the conditional release of an offender. The PBC also has the authority to impose

special conditions on offenders who are supervised in the community on statutory release or

long term supervision orders.

Note: Under paragraph 16(1)(b) of the CCRA, a federal institution may also house persons

serving a sentence of less than two years where there are service agreements in place.

Table 2: Relevant sections of the CCRA

Description of

Provision under the

CCRA

CCRA Text

Section

of the

CCRA

Correctional

Service of Canada

(CSC)

There shall continue to be a correctional service in and for

Canada, to be known as the Correctional Service of Canada,

which shall be responsible for

(a) the care and custody of inmates;

(b) the provision of programs that contribute to the

rehabilitation of offenders and to their successful reintegration

into the community;

(d) parole, statutory release supervision and long-term

supervision of offenders; and

(e) maintaining a program of public education about the

operations of the Service

Constitution and

Jurisdiction of

provincial Boards

Jurisdiction of boards

Subject to subsection (2), a provincial parole board for a

province shall exercise jurisdiction in accordance with this

Part in respect of the parole of offenders serving sentences in

provincial correctional facilities in that province, other than

(a) offenders sentenced to life imprisonment as a minimum

punishment;

(b) offenders whose sentence has been commuted to life

imprisonment; or

period.

Day parole jurisdiction

(2) A provincial parole board may, but is not required to,

exercise its jurisdiction under this section in relation to day

parole.

112(1)

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Incorporation of

CCRA by

reference by

province

Where a provincial parole board has been established for a

province, the lieutenant governor in council of the province

may, by order, declare that all or any of the provisions of this

Part that do not otherwise apply in respect of provincial parole

boards shall apply in respect of that provincial parole board

and offenders under its jurisdiction.

113(1)

Change of

province of

residence

Subject to any agreement entered into pursuant to this

section, an offender who is released on parole in one

province and moves to another province remains under the

jurisdiction of the board that granted the parole.

114 (1)

Statutory Release

Subject to any provision of this Act, an offender sentenced,

committed or transferred to penitentiary is entitled to be

released on the date determined in accordance with this

section and to remain at large until the expiration of the

sentence according to law.

127 (1)

Continuation of

sentence

An offender who is released on parole, statutory release or

unescorted temporary absence continues, while entitled to be

at large, to serve the sentence until its expiration according to

law.

128(1)

Freedom to be at

large

Except to the extent required by the conditions of any day

parole, an offender who is released on parole, statutory

release or unescorted temporary absence is entitled, subject

to this Part, to remain at large in accordance with the

conditions of the parole, statutory release or unescorted

temporary absence and is not liable to be returned to custody

by reason of the sentence unless the parole, statutory release

or unescorted temporary absence is suspended, cancelled,

terminated or revoked.

128(2)

Sentence deemed

to be completed

Despite subsection (1), for the purposes of paragraph 50(b)

of the Immigration and Refugee Protection Act and section

64 of the Extradition Act, the sentence of an offender who has

been released on parole, statutory release or an unescorted

temporary absence is deemed to be completed unless the

parole or statutory release has been suspended, terminated

or revoked, the unescorted temporary absence is suspended

or cancelled or the offender has returned to Canada before

the expiration of the sentence according to law.

128(3)

Removal order

Despite this Act, the Prisons and Reformatories Act and the

Criminal Code, an offender against whom a removal order

has been made under the Immigration and Refugee

Protection Act is not eligible for day parole or an unescorted

temporary absence until they are eligible for full parole.

128(4)

Parole inoperative

where parole

eligibility date in

future

If, before the full parole eligibility date, a removal order is

made under the Immigration and Refugee Protection Act

against an offender who has received day parole or an

unescorted temporary absence, on the day that the removal

order is made, the day parole or unescorted temporary

absence becomes inoperative and the offender shall be re-

incarcerated.

128(5)

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Exception

An offender referred to in subsection (4) is eligible for day

parole or an unescorted temporary absence if the removal

order is stayed under paragraph 50(a), 66(b) or 114(1)(b) of

the Immigration and Refugee Protection Act.

128(6)

Exception

Where the removal order of an offender referred to in

subsection (5) is stayed under paragraph 50(a), 66(b) or

114(1)(b) of the Immigration and Refugee Protection Act

on a day prior to the full parole eligibility of the offender, the

unescorted temporary absence or day parole of that offender

is resumed as of the day of the stay.

128(7)

Parole reviews

Day parole review

Subject to subsection 119(2), the Board shall, on application,

at the time prescribed by the regulations, review, for the

purpose of day parole, the case of every offender other than

an offender referred to in subsection (2).

122 (1)

Full parole review

The Board shall, within the period prescribed by the

regulations and for the purpose of deciding whether to grant

full parole, review the case of every offender who is serving a

sentence of two years or more and who is not within the

jurisdiction of a provincial parole board.

123 (1)

Further review —

Board does not

grant parole

If the Board decides not to grant parole following a review

under subsection (1) or section 122 or if a review is not made

by virtue of subsection (2), the Board shall conduct another

review within two years after the later of the day on which the

review took place or was scheduled to take place and

thereafter within two years after that day until

(a) the offender is released on full parole or on statutory

release;

(b) the offender’s sentence expires; or

offender’s statutory release date.

123(5)

3.3 Forms

The following table includes some common forms that may relate to permanent residents and

foreign nationals who are serving a sentence in a federal or provincial correctional institution.

This is a non-exhaustive list.

Table 3: Forms

Form Title

Form number

Warrant for Arrest

BSF499

Order of the Canada Border Services Agency to

Deliver Inmate (under section 59 of the IRPA)

BSF498

Notice of Arrest under Section 55 of the Immigration

and Refugee Protection Act

BSF561

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Notice of Rights Conferred by the Canadian Charter

of Rights and Freedoms and by the Vienna

Convention Following Section 55 Immigration and

Refugee Protection Act Arrest or Detention

BSF776

Order for Detention

BSF304

National Risk Assessment for Detention

BSF754

Detainee Medical Needs

BSF674

Acknowledgement of Conditions

BSF 821*

IMM1262**

Acknowledgement of Conditions for IRPA Section

34 Cases

BSF798

Request for Admissibility Hearing/Detention Review

Pursuant to the Immigration Division Rules

BSF524

Notes to File

BSF788

**currently available in GCMS

* currently available only in CBSA Atlas

4 Instruments and delegations

A4 sets out which Minister is responsible for the administration of the IRPA. The Minister of

Citizenship and Immigration [also known as Immigration, Refugees and Citizenship Canada

(IRCC)] and the Minister of Public Safety and Emergency Preparedness (PS) are jointly

responsible for the administration and enforcement of the IRPA, however there are some

differences. The IRCC Minister is responsible for the overall administration of the IRPA, unless

otherwise specified. The Minister of PS has the primary responsibility for the administration of

the IRPA as it relates to the following:

• port of entry examinations;

• policy lead relating to enforcement of the IRPA including arrest, detention and removal;

• establishment of policies respecting the enforcement of the IRPA and inadmissibility

under A34/A35/A37; and

• declarations referred to under A42.1 (Ministerial Relief provision)

Pursuant to A6(1), the responsible Minister has the authority to designate specific persons or

classes of persons to carry out any purpose of any provision of the IRPA with respect to their

individual mandates as described in A4, and to specify the powers and duties of the officers so

designated. In addition, A6(2) authorizes that anything that may be done by the Minister under

the Act and the Immigration and Refugee Protection Regulations (IRPR) may be done by a

person that the Minister authorizes in writing. This is referred to as delegation of authority.

A designated authority refers to the position that has been given the legal authority by the

Minister to carry out the delegated function.

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The Delegation of Authority and Designations of Officers (D & D) instruments stipulate who has

the authority to perform specific immigration-related functions. CBSA officials should always

consult the D & D instruments with respect to their authorities to take any enforcement

action under the IRPA, including the issuance of warrants and arrests under A55, writing

A44(1) reports, reviewing reports under A44(2) and release on conditions under A44(3).

For example, under the CBSA D & D instrument, the designated authority to issue warrants for

arrest under A55(1) for permanent residents is different from the authority for issuing warrants

for foreign nationals.

5 CBSA policy relating to persons serving a sentence

The CBSA is responsible for providing integrated border services that support national security

and public safety. As part of its legislative mandate, the CBSA uses offender information to

identify and investigate permanent residents and foreign nationals who are inadmissible to

Canada in order to enforce the objectives of the IRPA and ensure the safety of Canadians.

To achieve program objectives, the CBSA tracks criminally inadmissible inmates through the

following priorities:

 early identification of inmates who are permanent residents and foreign nationals who are

serving sentences in federal or provincial correctional institutions;

 communication with correctional partners to ensure that persons who are serving

sentences and subject to a removal order under the IRPA are not released in

contravention of the CCRA;

 cooperation and communication with partners to ensure that at full parole or statutory

release, inmates subject to an IRPA warrant (for examination, admissibility hearing,

removal or a proceeding that could lead to the making of a removal order by the Minister)

are delivered to the CBSA for their detention under IRPA where a decision is made that

IRPA detention is necessary;

 commitment to the maintenance of effective working arrangements with CSC and

provincial correctional services relating to permanent residents and foreign nationals who

are subject to IRPA enforcement action; and

 minimizing delays in administrative enforcement action taken under the IRPA while a

person is serving sentence.

In achieving departmental objectives pertaining to safety with respect to persons serving

criminal sentences, an enforcement officer will:

 develop and maintain good working relationships and sound networking systems with a

broad range of partners and key contacts;

 be proactive in obtaining and sharing information with CSC and provincial correctional

services pursuant to information sharing agreements and privacy legislation regarding

permanent residents and foreign nationals serving a sentence to ensure appropriate

enforcement action under the IRPA;

 conduct appropriate risk assessments for persons serving sentence who are subject to

IRPA enforcement action to determine, at the earliest opportunity and taking into

consideration alternatives to detention and the IRPA objectives regarding the safety and

security of Canadians, a strategy in regards to detention/release and appropriate

monitoring upon the person’s release from criminal detention;

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 where the continued detention of an individual serving a sentence is determined to be

necessary under the provisions of the IRPA, issue a warrant for arrest and A59 order to

the person in charge of the institution and notify the institution of their legal obligations

under A59 at the end of the inmate’s sentence;

 investigate leads from key partners and take appropriate action; and

 investigate permanent residents and foreign nationals serving a sentence who are

suspected to be inadmissible and, where appropriate, gather evidence, prepare reports

under A44(1) and ensure timely processing of cases within the immigration enforcement

continuum, in accordance with the provisions of the IRPA.

6 Overview of correctional services

Correctional services operate on both the provincial and federal level. A person serving a

custodial sentence of two years or more falls under federal jurisdiction; a person who receives a

custodial sentence of less than two years will serve their sentence in a provincial correctional

facility.

6.1 Federal sentences

CBSA policy with respect to the management of inadmissible permanent residents and foreign

nationals serving a federal sentence in Canada is achieved through the IRPA and the CCRA

and managed by the CBSA and CSC. While CBSA requires offender information from CSC,

pursuant to its mandate, CSC requires information regarding the immigration status of persons

subject to IRPA enforcement as they relate to federal offenders in order to enforce their

mandate under the CCRA.

Offenders serving a federal sentence are managed by CSC. As part of the information sharing

agreement with CSC, CBSA is informed of offenders admitted into a federal institution

(penitentiary) where there is reason to believe that the offender is not a Canadian citizen, so

that CBSA may determine their immigration status and if any immigration enforcement is

warranted. In turn, CBSA provides CSC with information it requires to conduct sentence

management in accordance with the provisions of the CCRA. A person subject to arrest and

detention under the IRPA who is serving a federal sentence will be transferred to either a

provincial correctional facility or an immigration holding centre (IHC) at the end of their

sentence, as persons on immigration hold are not ‘housed’ in federal facilities. Moreover, CBSA

is responsible for making the necessary transportation arrangements to transfer an inmate from

the Federal facility at the end of their sentence.

6.2 Provincial sentences

Provincial correctional services generally have jurisdiction over offenders 18 years of age and

over who are:

 sentenced to terms of imprisonment of less than two years

 terms of probation of up to three years

 conditional sentences of up to two years less a day

 offenders under parole supervision, as granted by a provincial parole board

 adults on remand, awaiting trial or sentencing

 offenders awaiting transfer to federal institutions to serve sentences of two years

or more.

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In such cases, provincial correctional services establish, maintain and operate adult correctional

institutions and probation and parole offices. Provincial correctional services also have

jurisdiction over adult offenders under parole supervision, as granted by a provincial parole

board (Quebec and Ontario).

In addition, adults held in immigration detention under the IRPA may be housed in a provincial

facility following an arrest/detention under A55, depending on the results of the National Risk

Assessment for Detention (NRAD). For further information, see ENF 20 Detention.

7 Definitions and specific terminology

7.1 General

The following general terms relate to the serving of criminal sentences in Canada. Some terms

may be more applicable within the context of sentences served under provincial jurisdiction;

others apply to sentences served under both federal and provincial jurisdiction.

Table 3: General terms pertaining to persons serving a sentence

Term

Description

Sentence

A sentence is a ruling handed down by a court in the criminal

justice system which determines an accused person's punishment

after the person is found guilty or pleads guilty at trial. The Court

can impose different types of sentences or combinations of

penalties.

Concurrent sentence

A concurrent sentence is merged and served simultaneously with

another sentence. It is also referred to as an ‘aggregate’ or

‘combined’ sentence. For example: a person who receives a

sentence of two concurrent terms of 6 months each would serve a

6-month sentence, not a sentence of 12 months.

Sentences are merged in order to calculate a person's parole

eligibility date, discharge possible date and warrant expiry date.

Consecutive sentence

718.3(4) CCC

Consecutive sentences are served separately, one after the other.

For example: a person who receives a sentence of two consecutive

terms of 6 months each would serve a 12-month sentence.

Under the Criminal Code of Canada (CCC), sentences are

concurrent unless otherwise specified by the court.

Intermittent sentence

An intermittent sentence may be imposed for a sentence of 90 days

or less and is served in blocks of time on specific days of the week

(e.g., on weekends).

An intermittent sentence must be accompanied by a probation order.

Sources referenced include: Department of Justice (https://www.justice.gc.ca); Correctional Service Canada

(https://www.csc-scc.gc.ca); Parole Board of Canada (https://www.canada.ca/en/parole-board.html); Ontario Ministry of the

Solicitor General (https://www.mcscs.jus.gov.on.ca/english/default.html). For further details, please refer to these

publications.

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Conditional sentence

742.1 CCC

A conditional sentence is served in the community under

supervision rather than in a correctional facility.

If the person does not meet the conditions imposed by the court,

they may be returned to court and ordered to serve some or all of

the remainder of the sentence in custody.

Note: In Tran v. The Minister of Public Safety and Emergency

Preparedness, (2017 SCC 50), the Supreme Court of Canada

ruled that conditional sentence does not constitute a “term of

imprisonment” for the purpose of determining inadmissibility for

serious criminality under A36(1)(a).

Parole

Parole is a form of release granted by the PBC or a provincial

parole board that allows persons serving sentences in provincial or

federal custody to serve the remainder of their sentence in the

community under the supervision of a probation/ parole officer.

Most provincial offenders are able to apply for parole. In Ontario

and Quebec, provincial parole boards are responsible for the

release of offenders from incarceration, outside the normal

expiration of sentence.

Probation

Probation is a court disposition that allows the person to be in the

community following the completion of their sentence subject to

conditions set out in a probation order. The person is supervised by

a probation officer.

Absolute or Conditional

discharge

A disposition where the court orders that accused be discharged of

an offence after a finding of guilt, and no conviction is registered.

The court may then grant an absolute discharge (no conditions) or

impose conditions for a specified period of time as set out in a

probation order and the accused will be discharged when the

conditions are met (conditional discharge). If an offender is

convicted of a subsequent offence during the term of probation, the

court may decide to revoke the probation order and impose any

sentence that could have been imposed at the time the order was

made.

Suspended Sentence

A conviction where the passing of sentence is suspended.

Like a conditional discharge, the order may be revoked if a

provision is in place for revoking the order.

Parole Board of

Canada (PBC)

An independent administrative tribunal which reports to Parliament

through the Minister of Public Safety. The PBC operates under the

authority of the CCRA and has exclusive authority to grant, deny,

and revoke parole for offenders serving sentences of two years or

more.

The PBC also makes parole decisions for offenders serving

sentences of less than two years in all provinces and territories

except Ontario and Quebec, which have their own parole boards.

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Day Parole

The authority granted to an inmate by the PBC or a provincial

parole board to be at large during that inmate's sentence in order to

prepare the inmate for full parole or statutory release. Eligibility for

day parole is six months into the sentence or six months before full

parole, whichever is later.

Day parole requires the inmate to return to a penitentiary, a

community-based residential facility or a provincial correctional

facility each night unless otherwise authorized in writing.

Correctional services

Both federal CSC and its provincial counterparts

7.2 Terminology related to federal offenders

The following table contains terms that pertain to persons serving a federal sentence and types

of federal releases under the CCRA for which persons serving a federal sentence may be

eligible during their incarceration:

Table 4: Terms pertaining to persons serving a federal sentence

Term

Description

Penitentiary

Section 2(1) of the CCRA describes a penitentiary as

(a) a facility of any description, including all lands connected therewith,

that is operated, permanently or temporarily, by the CCRA and

(b) any place declared to be a penitentiary pursuant to section 7 of the

CCRA

Conditional

release

The PBC has sole authority to grant both day parole and full parole to

Federal offenders under the CCRA, based on information and

assessments prepared by CSC prison and community staff. Before

granting conditional release, Parole Board members must be satisfied that

the offender will not pose undue risk to the community and will fulfill

specific conditions.

Full Parole

A form of conditional release by the PBC that allows an offender to serve

part of a prison sentence (normally 1/3) in the community under specific

conditions. The offender is placed under supervision and is required to

abide by conditions designed to reduce the risk of re-offending, and to

foster reintegration of the inmate into the community. Under full parole, the

person does not have to return nightly to an institution, but must report

regularly to a parole supervisor, and in certain cases, to the police. If the

offender is performing successfully in the community, full parole may

continue, under supervision, for the remainder of the sentence.

Offenders (except those serving life sentences for murder) are eligible to

apply for full parole after serving either 1/3 of their sentence, or seven

years, whichever is less.

Offenders serving life sentences for first-degree murder are eligible to

apply for full parole, after serving 25 years. Dates for offenders serving life

sentences for second-degree murder are set between 10 and 25 years

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Day Parole

See definition in section 7.1 above

Eligibility to apply for day parole for federal offenders:

 Offenders serving sentences of two years or more: 6 months before

full parole eligibility date (PED) or 6 months into the sentence,

whichever is greater

 Offenders serving life sentences: 3 years before PED

Temporary

Absences

The first type of release that an offender may receive. Under the CCRA,

there are three types of temporary absences from prison: escorted

temporary absences (ETA), unescorted temporary absences (UTA) and

work releases. Such releases may be authorized for various reasons,

including for work in community service projects, contact with family,

personal development, and medical reasons.

Escorted

Temporary

Absence (ETA)

CCRA s. 17

A release of temporary duration in which an offender, either alone or as a

member of a group, leaves the institution accompanied by one or several

escorting correctional officers. The duration of the ETA is limited. Medical

absences, however, may be unlimited. Offenders may apply for ETAs at

any time during their sentence. Most ETAs are at the discretion of the

CSC, however others (e.g. for some life sentences) must be approved by

the PBC.

Unescorted

Temporary

Absence (UTA)

CCRA s. 116

A release of temporary duration in which an offender leaves the institution

unaccompanied by CSC staff. Offenders must have served a portion of

their sentence before being eligible to apply for a UTA.

 For sentences of 3 years or more: offenders are eligible for UTAs after

serving 1/6 of their sentence

 For sentences of 2-3 years: offenders are eligible at 6 months into the

sentence

 Offenders serving life sentences are eligible for UTAs 3 years before

their full parole eligibility date

 Offenders classified as maximum security are not eligible for UTAs

Accelerated Day

Parole

A streamlined process of review (Accelerated Parole Review or APR) for

day parole for first-time offenders serving a sentence for a non-violent

offence. It is a conditional release granted by the PBC if the inmate meets

certain criteria. The eligibility date for accelerated day parole is at 1/6 of

sentence or six months into the sentence, whichever is later. APR is only

available to offenders who were sentenced prior to March 28, 2011; in

British Colombia, this eligibility is extended to offenders who committed an

offence before March 28, 2011, but who were sentenced on or after that

date.

Statutory Release

Date

CCRA s. 127

Statutory release is a mandatory release by law. It is not a form of parole

and is not a decision of the PBC; rather, it is an inmate's legal entitlement

to be released into the community at 2/3 of the sentence. Unlike parole,

statutory release is a right, not a privilege. Statutory Release requires

federally sentenced offenders to serve the final third of their sentence in

the community, under supervision and under conditions of release similar

to those imposed on offenders released on full parole. Offenders serving

life or indeterminate sentences are not eligible.

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Offenders on statutory release are offenders who either did not apply for

parole, or who were denied release on full parole. Although statutory

release is legislated (i.e. it is not 'conditional' and is not granted by the

PBC), the PBC can keep an offender in the institution after his/her

statutory release where there are reasonable grounds to believe that the

offender is likely to commit an offence causing serious harm or death, a

sexual offence involving a child or a serious drug offence.

Offenders on statutory release are required to follow standard conditions

including reporting to a parole officer. In some instances offenders on

statutory release are required to reside in a halfway house or community

correctional centre operated by CSC.

Warrant Expiry

Date

The final date in the inmate's current sentence.

Release on Expiry

of Sentence

Release on expiry of sentence is not a conditional release; it is the full

release required when the entire sentence has been served.

Work release

CCRA s. 18

A structured and supervised program of release, established for a

specified period of time, involving work or community service outside the

penitentiary. Offenders who are eligible for a UTA are also eligible to apply

for a work release.

CSC’s Offender

Management

System (OMS)

A CSC database containing sentence information on every offender under

federal jurisdiction. Access to CSC offenders' information is based on

governing legislation to ensure that partner organizations receive only the

information required to perform their duties, and to which they are legally

entitled. Based on a memorandum of understanding (MOU), CSC has

granted CBSA access to OMS whereby certain officers can consult

relevant offender information and also input data related to an offender's

immigration status.

8 Procedure: Identification of inadmissible inmates

8.1 Policy on identification of inadmissible persons serving a sentence

Identifying and monitoring inadmissible foreign nationals and permanent residents who are

serving a sentence in Canada is essential to CBSA’s ability to achieve its statutory objectives.

The identification of inadmissible foreign nationals and permanent residents serving sentences

is dependent on the interrelationship between CBSA and other government institutions,

including CSC, the provincial correctional facilities, the provincial courts and police agencies.

Maintaining effective liaison practices and processes ensures that foreign nationals and

permanent residents are identified early in their sentence, investigated and tracked to ensure

that appropriate enforcement action can be taken by CBSA. In this way, the development and

maintenance of working arrangements with key partners within the judicial system are crucial to

CBSA investigations.

As officers respond to information or leads regarding permanent residents and foreign nationals

serving a sentence, they should follow established investigative procedures. These include

citizenship determination, interviewing of individuals, fact-finding, recording of evidence,

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preparation of reports and execution of appropriate documents relevant to CBSA enforcement

measures.

For further guidance, officers should refer to ENF 7 Investigations and arrests, ENF 5 Writing

44(1) reports, and ENF 6 Reviewing reports under A44(2).

8.2 Information sharing

Identifying inadmissible foreign nationals and permanent residents who are serving sentences is

achieved through information sharing with correctional services, police services and the criminal

courts. Officers will access different sources of information in their efforts to identify incarcerated

permanent residents and foreign nationals serving sentences.

When obtaining and disclosing information obtained from a third party, CBSA officers must be

aware of their legal obligations under written collaborative arrangements and privacy legislation.

In all cases, officers are required to assess the accuracy and reliability of information received,

and properly characterize this information in any further dissemination.

Information sharing agreements make it possible to effectively manage information between

organizations in order to ensure effective monitoring through data exchange. Even where there

is no formal written agreement in place, the Privacy Act may authorize the disclosure of

information under a government institution’s control to another government body. For example,

under the Privacy Act, a government institution may disclose personal information to another

government institution for the purpose for which the information was obtained or compiled by

the institution or for a use consistent with that purpose [8(2)(a)].

CBSA employees are responsible for ensuring that personal information is only disclosed in

accordance with the Privacy Act and should be guided by the CBSA Policy on the Disclosure of

Personal Information: Section 8 of the Privacy Act.

CBSA officers should also consult the CBSA Information Sharing Toolkit, including the Written

Collaborative Arrangements Toolkit.

8.3 Identification through correctional services

Officers will liaise regularly with correctional institutions in accordance with regionally

established procedures and written collaborative agreements to ensure that permanent

residents and foreign nationals subject to enforcement action under the IRPA are managed

effectively through the Sentence Management offices of correctional services.

Generally, CBSA may require the following information from correctional facilities:

 offender details

 date of committal

 date and details of conviction(s)

 documentation to substantiate conviction (e.g.’ warrant of committal)

 statutory release date

 warrant expiry date

 parole eligibility date

 parole board decisions

 correctional service reports

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For further information on documentation that may be required to establish inadmissibility under

the IRPA, see ENF 2 Evaluating Inadmissibility.

Likewise, correctional services may request information from CBSA in order to achieve their

mandates, for example:

 confirmation of offender’s status/citizenship

 information pertaining to removal orders issued under the IRPA

 stage of an offender’s immigration proceedings under the IRPA.

8.4 Information sharing at the federal level

For federal offenders, information sharing is achieved primarily through extraction and inputting

of relevant information into CSC’s OMS in relation to the offenders status, and whether the

CBSA intends to arrest and detain the offender upon completion of their sentence. For CSC,

information from the CBSA is entered by a designated CBSA official into CSC’s OMS to

facilitate effective file management. OMS terminals are available at various CBSA offices.

Regional offices must ensure that the running of appropriate OMS reports and monitoring of

offender information through OMS and parole/probation contacts are utilized in accordance with

established practices and procedures.

In regards to CSC, there is a written collaborative arrangement between CBSA and CSC which

establishes the conditions and procedures for the exchange of information between CSC and

the CBSA and outlines mutual obligations and responsibilities with respect to management of

inmates who are subject to enforcement action under the IRPA through data exchange.

Under this agreement, CBSA shall provide to CSC, any information in its possession which is

relevant to the risk assessment of the offender, as soon as practicable, for consideration in the

CSC case management and release decision-making processes.

For example, CSC may require the assistance of local CBSA offices when the citizenship of an

inmate is in doubt. When such a request is made, the CBSA official must inform the CSC

institutional chief, Sentence Management, of the inmate’s citizenship status and indicate

whether the inmate is of interest to CBSA and whether enforcement action under the IRPA is

underway.

In addition, where a person is already under a removal order, CBSA also needs to ensure that

the appropriate CSC contacts have been given this information and any related documentation

they may require under the CCRA. For further information, refer to section 12 of this manual

chapter, ‘Impact of removal orders on Federal conditional releases under the CCRA’.

8.5 Information sharing at the provincial level

CBSA has specific MOUs with some provinces authorizing the detention of persons detained

under the IRPA in provincial correctional facilities (NB, BC, Ontario, Quebec, NS, Alberta).

These agreements also deal with the transfer of custody of a person detained under IRPA at a

provincial correctional institution.

CBSA also has information sharing agreements with some provinces which govern procedures

surrounding the exchange of information.

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9 The Impact of A59

A warrant for the arrest and detention of a foreign national or permanent resident is issued

pursuant to A55(1). Where an immigration warrant has been issued against a person who is

already detained under another Act of Parliament (e.g. incarcerated while serving a sentence in

a correctional facility), A59 provides legislative authority for the transfer of the inmate at the end

of the criminal sentence from correctional services custody into CBSA custody.

Section A59 does not legally authorize correctional institutions to continue detention of a person

once their sentence is completed and they are released from criminal detention. Rather, A59 of

the IRPA imposes an obligation on correctional institutions to notify CBSA that the person’s

criminal sentence/detention has ended and turn the person over to CBSA to execute an

immigration warrant for arrest and take the person into immigration custody. This means that a

person is not legally detained under the IRPA until the immigration warrant is executed. This is

why the section A59 Order (BSF498) must always be coupled with the A55(1) warrant for arrest.

For example, when a permanent resident or foreign national subject to IRPA enforcement action

is eligible for full parole or statutory release, the effect of the A59 order is that the institution

shall notify CBSA and release the person to the CBSA so that an immigration warrant can be

executed. It is at that point that certain legal processes under the IRPA would be triggered. For

example, once detained under the IRPA, the officer shall without delay give notice to the

Immigration Division (ID) [A55(4)] and the detained person must be brought before the ID within

48 hours of being taken into detention to review the reasons for detention.

Note: Persons who are detained in a provincial psychiatric hospital under the jurisdiction of a

provincial Review Board are not serving a sentence. Such persons have been found by a

court or a provincial Review Board to be either not criminally responsible (NCR) or unfit to

stand trial for criminal offences on account of a mental disorder.

Provincial Review Boards are independent tribunals established pursuant to the Criminal Code

of Canada, which stipulates that each province and territory must establish or designate a

Review Board to oversee these individuals.

Following a finding that an accused is NCR (not criminally responsible) or unfit to stand trial, a

court or a provincial Review Board may make an order directing that the accused be detained in

custody in a hospital, subject to such conditions as the court or Review Board considers

appropriate. Such persons are detained under the jurisdiction of the provincial Review Board

and are therefore not detained under an Act of Parliament. Therefore, in such cases, an A59

Order cannot be used to impose a legal obligation on the institution to notify CBSA in case there

is a warrant.

10 Case management: Inadmissibility assessment and investigation

Once a CBSA official identifies that a foreign national or permanent resident is serving a

custodial sentence, a case review will need to be conducted to determine whether enforcement

action is warranted and to initiate appropriate enforcement steps under the IRPA.

Once the initial investigation confirms that the person is a permanent resident or a foreign

national, a preliminary investigation into the status of the person’s admissibility or current

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immigration processes will need to be conducted. Where the facts indicate the presence of an

inadmissibility (or new/additional inadmissibility), an officer will need to review the file to

determine whether an A44(1) process should be initiated. If necessary, the file will be

transferred and assigned to the appropriate office or unit responsible for processing the A44

investigation.

Officers will need to consider the following:

 Is the person already the subject of a removal order?

 If so, would an additional A44(1) report and another removal order serve the objectives

of the IRPA?

Even where the person is already the subject of proceedings under the IRPA, including removal,

a CBSA officer will need to conduct a case review to determine whether a new A44(1) process

is warranted. Where it is determined that the person is already under a removal order and no

new A44(1) proceedings are warranted, the case will need to be assessed to determine next

steps in enforcing the removal order. This may require transferring the file to the appropriate

office or unit in the jurisdiction where the person is serving their custodial sentence. Where the

person is serving a federal sentence and is already under a removal order, CBSA will also need

to ensure that CSC has been notified of the removal order in accordance with section 12 of this

manual chapter, ‘Impact of removal orders on Federal conditional releases under the CCRA’.

In cases where enforcement action originates at the port of entry (e.g., warrant for arrest and

A59 Order are issued following a criminal arrest by another law enforcement agency), case

management and monitoring should be coordinated regionally with inland offices and next steps

will be determined by the circumstances of the case.

For further details on investigating inadmissibility, refer to ENF 7 Investigations and arrests and

ENF 2 Evaluating inadmissibility.

For further details on writing A44(1) reports, see ENF 5 Writing 44(1) reports.

For further information on Minister’s Delegate reviews under A44(2), see ENF 6 Reviewing

reports under A44(2).

11 Management of risk and effective monitoring

11.1 Assessment of risk

During the initial inadmissibility investigation, a concurrent assessment of the file should also be

conducted to consider whether CBSA should seek detention of the permanent resident or

foreign national upon completion of their sentence, having regard to all of the circumstances of

the case. This assessment will also entail considering whether risks can be offset by any

alternatives to detention, including the imposition of conditions under the IRPA.

Risk identification requires an evaluation of the information available at the time of the

assessment and includes any information or evidence available that may help predict future

behaviour.

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For persons serving a federal sentence, there will generally be an ongoing opportunity to

evaluate the need for immigration detention prior to the person completing their criminal

sentence. In general, this will include an initial file review prior to any immigration warrant being

issued, and an additional assessment of risk factors closer to the statutory release date, prior to

executing any warrant (if one was previously issued, along with the A59 order).

Note: There is no specific form to document this process, however Notes to File may be used.

For further clarity, this is separate from the requirement for a formal risk assessment following

the execution of the warrant through the process for completion of the BSF754 form—National

Risk Assessment for Detention (NRAD). Officers should consult ENF 20 Detention for further

details.

It is important for officers to keep in mind that, even if during an earlier review of the file it is

determined that the risk can be mitigated upon release from serving sentence, a warrant for

arrest and A59 Order can be issued at a later time where circumstances and facts warrant a

different assessment.

Conversely, there may be circumstances where an initial review of the case leads to a

determination that IRPA arrest and detention are necessary and therefore that a warrant for

arrest and A59 Order should be issued and filed with the correctional institution. Where

circumstances change prior to the completion of the sentence, officers may later determine that

detention under the IRPA is no longer necessary. In such circumstances, a delegated officer or

supervisor/manager may cancel the warrant where the initial reasons for the warrant no longer

exist and document the reasons in the Global Case Management System (GCMS) and the

National Case Management System (NCMS). See ENF 7 Investigations and arrests for further

information regarding warrant cancellation.

Note: A person serving a sentence may already be subject to conditions imposed under the

IRPA by either CBSA, IRCC or the Immigration and Refugee Board (IRB). In such cases, an

officer will need to assess whether the existing conditions are sufficient to offset risks upon

completion of the sentence, whether these conditions have been violated or whether a new

arrest and detention process under the IRPA is warranted.

Risks are related to the objectives of the IRPA and can generally be divided into:

 Risk to public safety, as related to A3(1)(h) and A3(2)(g). Public safety is the top priority for

the CBSA. When the associated risks to public safety are significant, these risks need to be

virtually eliminated before release.

 Risk to program integrity. This risk relates to a negative impact on achieving all other

objectives of the IRPA. The acceptable degree of risk depends on the specific

circumstances of the case.

For further details regarding the assessment of risk see ENF 34 Alternatives to detention.

For persons serving a sentence, a layered approach to the evaluation of risk is generally

recommended where circumstances permit:

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An initial file assessment should be conducted once it is determined that CBSA will pursue

enforcement action under the IRPA against the person serving a sentence. The officer will need

to consider information such as:

 Nature and extent of recent criminal activity

 Nature of the conviction and type of sentence imposed;

 Statutory release dates;

 Circumstances of the offence(s) for which the person was convicted;

 Presence of any other serious IRPA inadmissibility (e.g., security, organized crime)

irrelevant of the conviction(s) for which the person is currently serving sentence;

 Whether removal is imminent once the person finishes serving their sentence;

 Whether the person is already subject to IRPA conditions imposed by CBSA, IRCC

or the IRB

 Tools identified to manage or mitigate risk upon release from correctional services

custody, including those imposed by the criminal courts.

Where possible, there should be an ongoing evaluation of risk and a final review of the person’s

case conducted closer to the person’s statutory release date or anticipated conditional release

by correctional services. This will be particularly important in cases for persons serving a federal

sentence who are serving longer sentences and the circumstances pertaining to their level of

risk may change over time based on institutional behaviour, programs completed while serving

sentence, reports from CSC, and PBC decisions/assessments. Officers should liaise with CSC,

probation and parole officers, institutional reports and any other relevant documentation

pertaining to institutional programs completed (e.g., anger management) pertaining to the

person’s behaviour while serving sentence. Officers assessing risk for federal offenders should

also obtain decisions of the PBC to determine conditions of release, including residency in CSC

facilities (e.g., half-way houses). Once all available information has been gathered, officers

should analyze the information to identify risks, determine whether these risks can be offset,

and evaluate residual risk. This will require a case-by-case analysis of the information gathered.

Note: This process is not intended to replace the procedures set out in ENF 20 Detentions.

For further guidance regarding the assessment of alternatives to detention, officers should refer

to ENF 34, section 8, ‘Assessment of alternatives”.

11.2 Alternatives to detention

Officers handling cases for persons serving a sentence should always consider whether

continued detention upon completion of the sentence will be necessary under the IRPA and

whether a release plan incorporating alternatives to detention may be appropriate. Where a

person serving a sentence is also the subject of enforcement action under the IRPA, it remains

open to a delegated CBSA official at any stage to place the person on IRPA conditions following

an assessment of risk factors and all the circumstances of the case.

An alternative to detention (ATD) is any condition that may be imposed on an individual to offset

a risk they represent to the enforcement objectives and the mandate of the CBSA. ATDs include

general conditions, deposits, guarantees, in-person reporting, and, depending on the region,

may include other types of community based supervision tools and electronic supervision tools.

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As part of the arrest process, an officer must consider the factors outlined in R245–R248,

including alternatives to detention, to form a recommendation regarding detention and release.

Officers are required to document their assessment of alternatives to detention and the reasons

the decision to continue detention or release on the basis of alternatives to detention was made.

Officers should refer to ENF 7 Investigations and arrests, ENF 20 Detention and ENF34

Alternatives to Detention for further procedural guidance.

Following an arrest, if an officer determines that risk can be offset by alternatives to detention

upon completion of the person’s sentence, the person may be placed on conditions by a CBSA

official [see Acknowledgement of Conditions (BSF821/IMM1262) and Acknowledgement of

Conditions for IRPA Section 34 Cases (BSF798)] unless the person is already subject to

conditions imposed under the IRPA by the Immigration Division (ID) (for further information, see

ENF 8 Deposits and guarantees). Officers may also consult with their local Community Liaison

Officer (CLO) in accordance with ENF 34 Alternatives to detention.

The person may also be placed on conditions by a delegated CBSA official at any time during

their sentence prior to the issuance or execution of a warrant (i.e., arrest) unless the person is

already subject to conditions imposed by the ID. In such cases, the officer has no authority to

vary or supersede an order previously issued by the ID. The ID retains jurisdiction with respect

to the variation of previous terms and conditions imposed by the Board. In circumstances where

an officer believes that previously imposed conditions by the ID are no longer required or are

insufficient to ensure compliance, but may not necessarily require that the person be re-arrested

first, officers will refer the file to Hearings articulating the need to amend the existing conditions

and request that a Hearings Officer make a request to the ID to vary the order.

For further information and guidance on Alternatives to Detention (ATD) Program tools available

under the ATD Program and assessment of alternatives to detention, refer to ENF 34

Alternatives to detention.

11.3 Procedures where detention under the IRPA is determined to be necessary

following completion of the person’s custodial sentence

If it is determined that detention under the IRPA is warranted following the completion of the

person’s sentence, the CBSA officer will need to file an unexecuted warrant for arrest (BSF499)

and a Section A59 Order to Deliver Inmate (BSF498) with the institutional Chief of Sentence

Management. This ensures that the provincial correctional services or CSC are made aware

that an inmate serving sentence is subject to enforcement action under the IRPA, and that the

inmate is to be arrested by a designated official under the IRPA upon completion of their

sentence.

CBSA officers must then liaise with correctional services to monitor the offender’s detention

status to ensure that on the day that the inmate is eligible for release from criminal detention

(i.e., custodial sentence ends), an official designated under the IRPA meets the inmate in order

to execute the immigration warrant and effect the arrest under A55.

Note: Should the IRPA process change during the time of the sentence following the issuance

of a warrant, officers must cancel the original warrant and re-issue the warrant under the correct

IRPA process. For example, where the original warrant was issued for an admissibility hearing

but the hearing has taken place and a removal order has been issued, the original warrant shall

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be cancelled and a new warrant issued for removal. In this circumstance, a new A59 Order will

also need to be completed.

Following an arrest, the officer must also complete all required forms, including a Notice of

Arrest (BSF561), which outlines the circumstances of the arrest and factors that led to their

decision to recommend continued detention. In addition, an Order for Detention form (BSF304)

shall be completed and left with the authority (correctional services) responsible for housing the

person. Officers should refer to ENF 7 Investigations and arrests, ENF 20 Detention and ENF

34 Alternatives to detention for more detailed procedural guidance.

Where applicable, and depending on an officer’s assessment of detention placement, CBSA

may need to arrange for the transfer of the person to another detention facility (provincial

correctional facility or an immigration holding centre) upon completion of the person’s sentence,

in accordance with CBSA policy and regionally established procedures. It is to be noted that

federal correctional service facilities do not house individuals who are on immigration

hold only. Officers should refer to ENF 20 Detention for further procedural details.

CBSA will also need to send notice to the ID without delay so that a detention review is

scheduled (BSF524). If the person is not released within 48 hours of their arrest by a CBSA

officer, the person is required to have a detention review before the ID.

11.4 Summary of steps to be completed where detention under the IRPA is

determined to be necessary following completion of the person’s custodial

sentence

The following is a summary of required steps and forms to be completed where detention under

the IRPA is determined to be necessary following completion of the person’s custodial

sentence:

Prior to completion of the sentence:

 Unexecuted warrant for arrest (BSF499) and A59 Order to Deliver Inmate (BSF498)

issued and left with detaining authority (Sentence Management at correctional facility);

 Federal offenders subject to a removal order: ensure that CSC has been notified of an

existing removal order and copy of removal order is provided if necessary.

Once person has completed custodial sentence:

 Execute warrant on day sentence is completed (includes conditional releases);

 Arrest and detention forms completed as required (see ENF 7 Investigations and arrests

and ENF 20 Detention for further details).

 Arrange transfer to provincial facility or IHC as appropriate based on detention

placement assessment;

 Order for Detention form (BSF304) issued and left with institution; and

 Send notification and request for detention review to the ID.

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12 Impact of removal orders on Federal conditional releases under the

CCRA

Officers should be aware that under the provisions of the CCRA, the issuance of a removal

order against a non-citizen federal offender may impact their eligibility for certain types of

conditional releases.

Pursuant to subsection 128(4) of the CCRA, a permanent resident or foreign national is not

eligible for day parole or an unescorted temporary absence (UTA) before their full parole

eligibility date if they are subject to a removal order issued under the IRPA.

Under this provision, if a removal order is issued against the person serving a sentence after

day parole is granted, the day parole or UTA becomes inoperative and the offender shall be re-

incarcerated by CSC. It should be noted, however, that this does not apply once the full

eligibility date has passed.

Officers should recognize that delays in the timely execution of appropriate enforcement action

under A44 [including delays in referring a case to an MD for a review under A44(2) and/or the ID

for an admissibility hearing] could have an adverse impact on CBSA’s ability to effectively

manage and offset risks posed by permanent residents and foreign nationals serving a federal

sentence as the person could be granted conditional release by the PBC prior to the issuance of

a removal order.

In situations where a removal order is stayed under A50(a), A66(b), or A114(1)(b) of the IRPA,

the non-citizen becomes eligible for day parole or UTA under subsection 128(6) of the CCRA. In

such cases, it is the CBSA officer’s responsibility to advise CSC of the change by providing the

Chief of Sentence Management with a copy of the stay order. For further details regarding stays

of removal, see ENF 10 Removals.

Notification to CSC for federal offenders

To ensure that CSC has all relevant information they require to enforce their mandate under the

CCRA, CBSA officials must notify CSC when a removal order has been issued against the

person in accordance with established procedures. In most cases, this will be achieved through

communication by CBSA to Sentence Management of the correctional institution where the

person is incarcerated.

CBSA officials are also responsible for ensuring that documents required by CSC though the

information sharing agreement have been completed and provided to the appropriate CSC

officials in Sentence Management and that all relevant systems updates (e.g., OMS) have been

completed after a removal order has been issued to a federal offender.

13 Procedure: Removal of persons who are detained

It is important for officers to be aware that a person serving a sentence in Canada, including a

conditional sentence order being served in the community, is subject to a stay of removal under

A50(b) of the IRPA and cannot be removed until the sentence is complete.

Officers can remove detained persons from Canada who:

 are in CBSA custody after being arrested and detained under A55 for removal from

Canada upon completion of a custodial sentence at an institution under the authority

of A59 at the end of their custodial sentence; or

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 have been detained pursuant to A81 and ordered released under A82.4 for their

departure from Canada.

In addition, officers should ensure that regionally established procedures are followed when a

person under a removal order is serving a sentence in a correctional institution or other

detention facility.

For further information on removal of detained persons, see ENF 10 Removals.

14 Cases where the person was sentenced prior to the enactment of

the IRPA

The transitional provisions in the IRPA govern cases where the person was sentenced prior to

its enactment (June 28, 2002) when the former Immigration Act, 1976, was in force. For

individuals sentenced after the coming into force of the IRPA, the provisions of the CCRA will

apply, and the presence of a removal order will render the non-citizen ineligible for UTA or day

parole until the full parole eligibility date.

The transitional provisions create a parallel system for offenders who were sentenced prior to

the coming into force of the IRPA and the date of sentence will determine the legislative

provisions and procedures that apply to persons under IRPA enforcement action who are

serving a federal sentence.

For example, where a person was sentenced prior to June 28, 2002 (i.e., pre-IRPA), they are

eligible for conditional release whether or not they are subject to a removal order.

Conversely, where a person was sentenced on or after June 28, 2002, they are ineligible for

day parole conditional release until the date of full parole eligibility if they are subject to a

removal order. However the person is eligible for day parole conditional release if they are not

subject to a removal order before reaching their full parole eligibility date.

Under the Transitional provisions:

 An order issued by a Deputy Minister under subsection 105(1) of the former Act (the

1976 Immigration Act) continues to be in force and the review of reasons for continued

detention shall be made under the IRPA (R323);

 Inmates subject to subsection 105(1) orders under the former Immigration Act are eligible

for consideration of day parole, including accelerated day parole or a UTA. If conditional

release is granted by the PBC, the subsection 105(1) order and the Warrant of arrest

prevent the inmate from being released on day parole or UTA before a detention review

is conducted by the ID;

 A warrant for arrest and detention made under the former Act is a warrant for arrest and

detention made under the IRPA [R325(1)];

 If an inmate subject to an order under subsection 105(1) of the former Immigration Act is

ordered released by the ID, the subsection 105(1) order is lifted and is no longer valid. If

detention is maintained, the detention review will be conducted under the

provisions of the IRPA [R322(1)].

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15 Case examples

The following scenarios are some examples to illustrate case assessments and recommended

next steps for managing cases where the permanent resident or foreign national is serving a

sentence.

Scenario 1

Notification is received from CSC that a person serving sentence at a federal correctional facility

has been granted bail pending an appeal of their conviction and sentence by a provincial court

of appeal. The person is already the subject of a removal order issued based on the conviction

under appeal. A warrant for arrest under A55 and a section A59 Order to Deliver Inmate have

already been issued and filed with CSC Sentence Management by CBSA officials.

Next steps:

Prior to executing the warrant, assess risk to determine whether person should be arrested and

detained under the IRPA or placed on conditions, including the posting of deposits or

guarantees. Obtain bail conditions from courts or through CSC to review conditions. Where

continued detention is warranted under the IRPA, execute A55 warrant and complete required

arrest and detention steps, including arrangements for transfer to provincial facility or IHC and

send request for detention review to the ID. If determined that release on conditions under the

IRPA is warranted, ensure that any conditions imposed do not conflict with bail conditions

imposed by the court.

Scenario 2

A person is serving a three-year sentence at a federal correctional facility for aggravated

assault. An investigation confirms that the person is a permanent resident of Canada and that

enforcement action is warranted based on inadmissibility for serious criminality. A report under

A44(1) is issued and referred for admissibility hearing by the MD under A44(2).

Next steps:

Assess risk to determine whether person should be detained under IRPA or placed on

conditions following the completion of their custodial sentence. Where IRPA detention is

warranted and depending on the end of sentence expiry and anticipated schedule for

admissibility hearing, issue warrant for arrest (for admissibility hearing) and section A59 Order

to Deliver Inmate. If admissibility hearing concludes before end of sentence and a removal order

is made at an admissibility hearing, cancel the previous/unexecuted warrant for admissibility

hearing and issue a new warrant for arrest (for removal) and new section A59 Order to Deliver

Inmate and provide to CSC Sentence Management. Notify CSC of the removal order and

provide required documentation. Monitor risk and conduct a further risk assessment closer to

the person’s release from serving sentence.

Note: Where there are no time constraints and the admissibility hearing is anticipated to

conclude well before end of sentence, officers should defer issuance of warrant and A59, until

the admissibility hearing has concluded to avoid having to issue multiple warrants.

Scenario 3

A person is serving a two-year sentence at a federal correctional facility for fraud. The person is

issued a deportation order for serious criminality while serving sentence. Prior to the person’s

ENF 22 Persons serving a sentence

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statutory release date, CBSA is advised by CSC that the person has been granted conditional

release by the PBC.

An initial evaluation of the file leads an officer to determine that detention under IRPA will not be

necessary upon completion of the person’s sentence, taking into account that the fact that the

person will be subject to parole supervision until their warrant expiry date and that the prospect

of obtaining a travel document to effect removal is low. An officer determines that the permanent

resident does not pose a danger to the public and that flight risk concerns can be offset with

appropriate conditions. The person is not currently subject to any prior conditions of release

under the IRPA.

Next steps:

It is recommended that no immigration warrant be issued and that CBSA consider placement of

permanent resident on IRPA conditions (possibly including posting of bonds/guarantees) prior to

completion of the sentence and release from court hold. CBSA will monitor compliance with

conditions and continue appropriate enforcement action following the person’s release from

court hold.

Scenario 4:

A federal offender is serving a sentence for a second-degree murder conviction from 1978 (i.e.,

pre-IRPA). The person is the subject of a deportation order issued under the former Immigration

Act of 1976. CBSA is advised that the person has become eligible for conditional release under

the CCRA and has applied for release on an unescorted temporary absence (UTA).

Next steps:

This case falls under the transitional provisions. CBSA should conduct an assessment of the

risks before determining next steps. If it is determined that the person constitutes a high flight

risk or danger to the public under IRPA and that continued detention under the IRPA is

warranted, CBSA should follow the steps in section 11.3 of this manual chapter, ‘Procedures

where detention under the IRPA is determined to be necessary following completion of the

person’s custodial sentence’. This means that the issuance of a warrant for arrest (for removal)

and a section A59 Order to Deliver Inmate will need to be issued each time the person becomes

eligible for release on UTA. Each time the person is granted a UTA by the PBC, a CBSA officer

will need to execute the warrant and request a detention review from the ID each time a UTA is

granted.

Scenario 5

A foreign national who is under a removal order issued after June 28, 2002 is serving a federal

sentence. An A59 Order to Deliver Inmate and warrant for arrest have already been issued by

CBSA and provided to CSC Sentence Management. After serving 1/3 of their sentence, the

offender is transferred to a correctional facility outside the jurisdiction/province of the CBSA

office monitoring the file.

Next steps:

Notify the regional CBSA office handling cases from the destination jurisdiction/province of the

transfer. Ensure appropriate file transfer for continued monitoring by the new CBSA office.

Notify the parole officer (CSC) in the new jurisdiction of the immigration hold (i.e. warrant for

arrest and section A59 Order to Deliver Inmate) and provide the contact information for the

CBSA office now assigned to the file.