Even where there are grounds to detain, this is the release valve, and it is often the whole argument at a detention review. Before deciding, the reason for detention, how long you have already been held, how much longer it is likely to last and whether anyone can say, any unexplained delay or lack of diligence by the government or by you, whether there is an alternative to detention, and the best interests of any directly affected child under 18 all have to be weighed.
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, the Canada Border Services Agency or the person concerned; (e)the existence of alternatives to detention; and (f)the best interests of a directly affected child who is under 18 years of age.
248.1 (1) For the purpose of paragraph 248(f) and for the application, in respect of children who are under 18 years of age, 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 following factors must be considered when determining the best interests of the child: (a)the child’s physical, emotional and psychological well-being; (b)the child’s healthcare and educational needs; (c)the importance of maintaining relationships and the stability of the family environment, and the possible effect on the child of disrupting those relationships or that stability; (d)the care, protection and safety needs of the child; and (e)the child’s views and preferences, provided the child is capable of forming their own views or expressing their preferences, taking into consideration the child’s age and maturity. (2) For the purpose of paragraph 248(f), the level of dependency of the child on the person for whom there are grounds to detain shall also be considered when determining the best interests of the child.