Marginal note:Other factors

248 If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:

• (a) the reason for detention;

• (b) the length of time in detention;

• (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;

• (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and

• (e) the existence of alternatives to detention.

Marginal note:Special considerations for minor children

249 For the application of the principle affirmed in section 60 of the Act that a minor child shall be detained only as a measure of last resort, the special considerations that apply in relation to the detention of minor children who are less than 18 years of age are

• (a) the availability of alternative arrangements with local child-care agencies or child protection services for the care and protection of the minor children;

• (b) the anticipated length of detention;

• (c) the risk of continued control by the human smugglers or traffickers who brought the children to Canada;

• (d) the type of detention facility envisaged and the conditions of detention;

• (e) the availability of accommodation that allows for the segregation of the minor children from adult detainees who are not the parent of or the adult legally responsible for the detained minor children; and

• (f) the availability of services in the detention facility, including education, counselling and recreation.

Marginal note:Applications for travel documents

250 If a completed application for a passport or travel document must be provided as a condition of release from detention, any completed application provided by a foreign national who makes a claim for refugee protection shall not be divulged to government officials of their country of nationality or, if there is no country of nationality, their country of previous habitual residence, as long as the removal order to which the foreign national is subject is not enforceable.

PART 15The Immigration Appeal Division

Marginal note:Conditions

251 If the Immigration Appeal Division stays a removal order under paragraph 66(b) of the Act, that Division shall impose the following conditions on the person against whom the order was made:

• (a) to inform the Department and the Immigration Appeal Division in writing in advance of any change in the person’s address;

• (b) to provide a copy of their passport or travel document to the Department or, if they do not hold a passport or travel document, to complete an application for a passport or a travel document and to provide the application to the Department;

• (c) to apply for an extension of the validity period of any passport or travel document before it expires, and to provide a copy of the extended passport or document to the Department;

• (d) to not commit any criminal offences;

• (e) if they are charged with a criminal offence, to immediately report that fact in writing to the Department; and

• (f) if they are convicted of a criminal offence, to immediately report that fact in writing to the Department and the Division.

PART 16Seizure

Marginal note:Custody of seized thing

252 A thing seized under subsection 140(1) of the Act shall be placed without delay in the custody of the Department.

Marginal note:Notice of seizure

• 253 (1) An officer who seizes a thing under subsection 140(1) of the Act shall make reasonable efforts to

  • (a) identify the lawful owner; and

  • (b) give the lawful owner written notice of, and reasons for, the seizure.

• Marginal note:Disposition after seizure

  (2) Subject to subsection (3), a thing seized shall be disposed of as follows:

  • (a) if it was fraudulently or improperly obtained, by returning it to its lawful owner unless section 256 applies;

  • (b) if it was fraudulently or improperly used, by disposing of it under section 257 unless section 254, 255 or 256 applies;

  • (c) if the seizure was necessary to prevent its fraudulent or improper use

    • (i) by returning it to its lawful owner, if the seizure is no longer necessary for preventing its fraudulent or improper use, or

    • (ii) by disposing of it under section 257, if returning it to its lawful owner would result in its fraudulent or improper use; or

  • (d) if the seizure was necessary to carry out the purposes of the Act, by returning it to its lawful owner without delay if the seizure is no longer necessary to carry out the purposes of the Act.

• Marginal note:Additional factor

  (3) A thing seized shall only be returned if its return would not be contrary to the purposes of the Act. If its return would be contrary to the purposes of the Act, it shall be disposed of under section 257.

Marginal note:Application for return

• 254 (1) The lawful owner of a thing seized or the person from whom it was seized may apply for its return.

• Marginal note:Return

  (2) A thing seized, other than a document, shall be returned to the applicant if

  • (a) paragraph 253(2)(b) applies to the thing and the seizure is no longer necessary to prevent its fraudulent or improper use or to carry out the purposes of the Act; and

  • (b) the applicant provides cash security equal to the fair market value of the thing at the time of the seizure or, if there is no significant risk of being unable to recover the debt, a combination of cash and guarantee of performance.

• Marginal note:Disposition of security

  (3) Any cash deposit or guarantee of performance provided under paragraph 2(b) replaces the thing seized and, if section 257 applies, any cash deposit is forfeited to Her Majesty in right of Canada and any guarantee of performance becomes a debt due under section 145 of the Act.

Marginal note:Application by lawful owner

• 255 (1) For the purposes of paragraph 253(2)(b), a person who claims to be the lawful owner of a seized thing may apply in writing for its return within 60 days after the seizure.

• Marginal note:Return of thing

  (2) The thing seized shall be returned to an applicant if the applicant demonstrates that they

  • (a) were the lawful owner prior to its seizure and have remained a lawful owner;

  • (b) did not participate in the fraudulent or improper use of the thing; and

  • (c) exercised all reasonable care to satisfy themselves that the person permitted to obtain possession of the thing was not likely to fraudulently or improperly use it.

• Marginal note:Return of vehicle

  (3) A seized vehicle that is not returned under subsection (2) shall be returned on payment of a $5,000 fee if the applicant demonstrates that they

  • (a) were the lawful owner prior to its seizure and have remained a lawful owner;

  • (b) did not profit or intend to profit from the fraudulent or improper use of the vehicle; and

  • (c) are unlikely to contravene the Act in the future.

• Marginal note:Additional factor

  (4) A thing seized shall only be returned if its return would not be contrary to the purposes of the Act.

• Marginal note:Notice of decision

  (5) The applicant shall be notified in writing of the decision on the application and the reasons for it. If the applicant is notified by mail, notification is deemed to have been effected on the seventh day after the day on which the notification was mailed.

Marginal note:Application by person from whom thing was seized

• 256 (1) If a thing was seized on the ground that it was fraudulently or improperly obtained or used, a person from whom it was seized may apply in writing within 30 days after the seizure for its return.

• Marginal note:Return of thing

  (2) The thing seized shall be returned to an applicant if the applicant demonstrates that it was not fraudulently or improperly obtained or used.

• Marginal note:Notice of decision

  (3) An applicant shall be notified in writing of the decision on the application and the reasons for it. If the applicant is notified by mail, notification is deemed to have been effected on the seventh day after the day on which the notification was mailed.