The legal framework that regulates the Canadian return policy has been constructed during a political context marked by security and counterterrorism concerns following the terrorist attacks of 11 September 2001. The Immigration and Refugee Protection Act (IRPA) adopted in November 2001 has been used to facilitate the arrest, detention, and removal of inadmissible foreign nationals and ineligible refugee protection claimants, notably those who would pose a security risk. However, the IRPA must also be applied in a manner consistent with the Canadian Charter of Rights and Freedoms and the international human rights instruments to which Canada is a signatory. Therefore, the Canadian institutional framework of return assigns policy and operational responsibilities to the federal government and agencies that are monitored by administrative tribunals and federal and provincial superior courts.
This complex institutional framework creates operational gaps in terms of data sharing and case management that lead to inconsistencies in the enforcement of removal orders. Furthermore, gaps in the legal framework threaten the human rights of foreign nationals and refugee protection claimants. The latter have long been found inadmissible or ineligible on grounds of security, administratively detained for non-criminal purposes, and removed without rigorous procedural safeguards. Human rights organizations particularly criticize the administrative detention for non-criminal purposes. Since the IRPA does not set a maximum period of detention in contradiction to international human rights standards, the administrative detention of foreign nationals pending their deportation can become indefinite. The indefinite administrative detention of foreign nationals also results from the lack of cooperation of countries of origin that either refuse to issue travel documents for their citizens or take a significant amount of time to do so. To elicit the cooperation of these countries, the Canadian return policy favours capacity-building and technical assistance activities rather than the negotiation of bilateral return agreements.
