Could Jasmine Mooney’s detention have happened in Canada?

Readers around the world were shocked at hearing about the detention of Jasmine Mooney.

Mooney, a Canadian citizen, was detained by US authorities upon applying for a work permit at the San Diego border.

She was charged with no crime, and was detained for two weeks in poor conditions with no explanation.

Mooney was only released after she was able to contact the media.

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Could a similar thing happen to a foreign national attempting to enter Canada under similar circumstances? For example, a US citizen with a similar situation to Mooney's applying for a work permit at a Canadian land border?

It’s unlikely, according to Canada’s Immigration and Refugee Protection Act.

Under Canadian law, The Canadian Border Services Agency (CBSA) may only detain foreign nationals under specific circumstances:

• The detention is necessary to complete an examination;
• There are reasons to believe that the person is a criminal or terrorist;
• The officer has reasonable grounds to believe that the person is a danger to the public, or is unlikely to appear for an immigration proceeding;
• The person is unable to satisfy the officer of their identity; or
• The person has been identified as part of an irregular crossing by the Minister of Public Safety.

CBSA officers are required to consider all reasonable alternatives before deciding to detain someone.

If we consider Mooney’s case—a person applying for a work permit, with no prior criminal record—there were no reasonable grounds to believe that Mooney was a criminal, terrorist, or threat to public safety. Mooney provided border officers with plenty of evidence to satisfy them of her identity.

Under Canadian law, a foreign national in a situation such as Mooney's could not have been detained.

Furthermore, Canadian law requires that if a foreign national is detained for 48 hours, the Immigration Division must review the reasons for the continued detention, and must review the reasons again within 7 days, and following that, every 30 days.

Canada’s Immigration Division generally conducts its reviews open to the public, ensuring that continued detentions face public scrutiny.

Upon each review, the Immigration Division must order that the individual be released unless the Division is satisfied that

• The foreign national is a danger to the public;
• The foreign national is unlikely to appear for an immigration hearing;
• The Minister is actively inquiring into a reasonable suspicion that the foreign national is a criminal or terrorist; or
• The identity of the foreign national has not been established.

Detainees in Canada also have several rights, including

• Being informed of the reason(s) for their detention;
• Having access to a CBSA officer;
• Being informed about their right to legal representation; and
• Being put in contact with a representative of their country’s embassy or consulate.

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