Migrant Have The Right To Protest

1. You have temporary status or are not facing removal

This is you if:

• you have a valid work permit, study permit, visitor status or Temporary Resident Permit that has not expired;
• you applied to extend your work, study or visitor permit before it expired and have “maintained status” while waiting for a decision;
• you are a permanent resident; or
• you are a protected person because your refugee claim or PRRA was approved;
• your refugee claim is still being decided;
• your refugee claim was refused but you have a pending appeal at the Refugee Appeal Division;
• You submitted your first Pre-Removal Risk Assessment – PRRA. Note that a second PRRA does not automatically stop removal.

If this is you, you are not without status, and interactions with police and CBSA (Canada Border Services Agency) will likely not impact your status.

2. You may be without status and at risk of enforcement

This can include situations where:

• your permit/visa expired and you did not apply to extend it before it expired;
• you are within the 90-day restoration period — you may still be able to apply to extend your status, but your old status has already expired;
• your permit expired or was cancelled and you overstayed;
• your refugee claim was refused and you have no appeal or other protection stopping removal;
• you missed the deadline for an appeal that would have stopped removal;
• you were told to leave Canada and did not leave;
• you withdrew or abandoned your refugee claim;
• you have an enforceable removal order; or
• there is an immigration warrant for your arrest.

If you are without status, CBSA can arrest you in a public place with or without a warrant. Again you have a right to seek counsel in this situation.

Remember that some immigration applications do not automatically protect you from removal:

• an H&C application does not by itself give you temporary status or stop deportation;
• a Federal Court judicial review does no stop a deportation – it depends on your case; and
• being within the 90-day restoration period is not the same as still having your old status.

If any of these describe you, get legal advice about whether CBSA can currently remove you.

3. Already reporting to CBSA?

Reporting to CBSA means CBSA already knows about your case and you may have conditions to follow.

If you are following all your conditions, interactions with police and CBSA will likely not result in more immigration enforcement.

4. Not sure about your situation?

Find out before the protest.

Explain your situation to a lawyer, legal clinic, registered immigration consultant, or experienced community organizer who understands immigration enforcement and ask:

Do not volunteer your name, address, date of birth, ID or immigration information just because an officer asks.

First ask: “Am I free to go?”

If you are free to go, leave if you want.

If you are not free to go, stop answering questions. Say:

Do not rely on the police or CBSA to explain your rights to you. If you are in a situation where you are legally required to identify yourself, give only the minimum identifying information required. Do not volunteer ID documents or immigration information.

Never give false information or fake ID.

• Go with a friend or group. Stay together during the protest and leave together.
• If a migrant rights organization is organizing the protest, they may already have a plan for police and immigration enforcement. Ask what the plan is and who to go to if something happens.
• Decide beforehand what you will do if police approach and what you will do if CBSA approaches.
• Write a lawyer’s or legal representative’s number and a trusted person’s number on paper or on your arm in case your phone is taken.
• Make sure someone knows you are going.
• Back up important information before the protest. Use a passcode, not fingerprint or Face ID, on your phone. Do not carry unnecessary sensitive or private information on your phone or with you.
• Do not carry unnecessary personal information on you like your passport or health card.
• Bring medication and anything else you need.

At a protest, before police or CBSA approach you

Stay close to your group and pay attention to what’s going on around you and information from the organizers. If you feel unsafe and you do not have status, leave with your group while you are free to go.

Do not give police your name, address or ID just because they ask.

Start with:

If YES

You can leave.

You do not have to stay and answer questions simply because police approached you.

You do not have to give your name simply because they asked.

If NO

Stop answering questions.

Say:

Police should tell you why you are being detained or arrested. You do not need to start asking questions or having a conversation about it.

If police ask for your name or ID

Do not volunteer your name, ID documents or immigration information just because police ask.

There are some situations where you are legally required to provide identifying information to police, including if:

• you are under arrest;
• you are driving, including being on a bicycle, e-bike or scooter;
• police are giving you a ticket; or
• police are serving certain legal notices.

If you are required to identify yourself, give only the minimum identifying information required – name and date of birth. Do not volunteer your passport, immigration documents or information about your immigration status.

Never give a false name or false information and never use fake ID.

Being stopped or detained does not automatically mean you have to identify yourself.

Simply being at a protest is not the same as being arrested or ticketed.

Never give a false name, false address or fake ID.

If police keep asking questions

Say:

You do not have to explain why you do not want to answer. Police may keep asking questions. You can keep saying: “I want to remain silent.”

If you are not free to go, also say: “I want to speak to a lawyer.”

Do not assume that a friendly or casual conversation is “off the record.”

If police ask to search you

The police can legally search you if they have a valid search warrant, if you are under arrest or if you are being detained as part of a criminal investigation. Otherwise – in most cases, the police cannot legally search you unless you give them permission.

If you do not agree to being searched, say: “I do not consent to this search.”

Even if you believe the search is unlawful, do not physically resist. Continue to repeat out loud that you do not consent to this search. Remember what happened and get both immigration and criminal legal support afterward.

What can happen next in a police encounter?

Free to go: leave if you want. You do not have to keep answering questions. If something concerning happened, write it down as soon as you can: the time and place, officer names or badge numbers, witnesses, and what officers said or did. If you were injured, photograph your injuries and get medical care.

Given a ticket or legal notice: give only the minimum identifying information required. Do not answer unrelated questions or volunteer immigration information. Read what you are given and get legal advice and community support before your next court date.

If you are not free to go: stop answering questions. Say “I want to remain silent” and “I want to speak to a lawyer.” Police should tell you why you are being detained or arrested. You do not need to question them about it or explain yourself. Being detained does not automatically mean you have to identify yourself.

If police tell you that you are under arrest: do not physically resist. Give only the identifying information you are legally required to give. Then say:

Police may continue trying to talk to you. You do not have to answer their questions. Do not explain yourself or try to convince police that they are wrong.

What you say can be used against you. Police may search you and your belongings after arrest.

They may, but it does not happen automatically.

If police find an immigration warrant, they may detain you and contact CBSA.

If police suspect you are without status, they may try to detain you and turn you over to CBSA. Do not answer questions about your immigration status.

If CBSA does not come to the scene, you may be told to attend a CBSA appointment later, or police may leave and ask CBSA to visit the site or send you a letter.

Not everyone who is stopped, identified, arrested or charged by police is turned over to CBSA.

If police tell you CBSA wants you to attend an appointment, get legal advice before you go.

But at a protest or another public place inside Canada, you have the right to remain silent.

What CBSA can do depends on your immigration situation:

• Valid status: CBSA cannot arrest simply on suspicion.
• No status: CBSA can arrest you in a public place with or without a warrant.
• Immigration warrant: CBSA can arrest you. Police may also detain you and turn you over to CBSA. Permanent residents can only be arrested by CBSA with a warrant.

Whatever your immigration status, do not volunteer your identity or immigration information simply because CBSA asks.

Start with:

If yes: leave if you want. Do not answer questions or volunteer your identity.

If not: stop answering questions. Say:

If you are free to go

You can leave.

Do not stay to answer questions or give your identity simply because CBSA asked.

If CBSA keeps asking questions

Say: “I want to remain silent.”

Even if CBSA continues questioning you, you do not have to explain your silence or answer their questions.

If it is unclear whether you can leave, ask again: “Am I free to go?” or “Am I being detained?”

If CBSA asks for your name or ID

Do not volunteer your name, address, date of birth, ID or immigration information just because CBSA asks.

Say: “I want to remain silent.”

Do not rely on CBSA to tell you what information you legally have to provide.

Never give false information or false documents.

There is an important risk if you do not have status: CBSA may use failure to establish your identity as a reason for arrest.

But giving CBSA your identity may also allow officers to find your immigration file, find an immigration warrant, or determine that you are without status.

This does not mean you should volunteer your identity. It means you should know your immigration situation and have a plan before the protest.

If CBSA already knows who you are, you still do not have to answer further questions about your immigration status.

If CBSA has told you that you are not free to go, do not walk or run away. Do not physically resist an arrest.

If CBSA says there is a warrant

Ask: “Can I see the warrant?”

Check that it names you and that it is dated and signed.

Point out any errors. An error may not stop the arrest, but tell your lawyer because it may matter later.

• Get legal advice and community support BEFORE you go. There is a risk of arrest and detention at CBSA interviews.
• Do not rely on CBSA to give you accurate information or advice about your legal rights.
• You can ask for an interpreter or bring someone to interpret. CBSA may ask that person for identification.
• If there is a risk of arrest, you can attend with a possible bondsperson — someone 18 or older, a Canadian citizen or permanent resident living in Canada, who knows you well. This may reduce the risk of being kept in detention.The CBSA Officer can decide to release you at the CBSA Office
• Before signing a travel-document application or another form related to your deportation, ask to speak to your legal representative.
• Do not simply miss the appointment. Missing a CBSA appointment is a common reason for a warrant.

Do not physically resist.

Say:

You have the right to contact legal counsel before answering questions.

You have the right to silence. Be aware that CBSA has sometimes treated silence as “non-cooperation” during detention reviews and used it as an argument for continued detention. Get legal advice rather than deciding on your own to start answering questions.

If they search you, there are lawful reasons for a search, and searches are sometimes unlawful. However, in any case saying “I do not consent to this search” may assist you in the future if they search you or your belongings. Make sure to tell your lawyer about the search. In the unlikely event they try to “strip search” you (search you bodily, more than a pat down) make absolutely sure to tell your lawyer as this type of search is only lawful under very strict circumstances.

Get legal advice as soon as you can.

You have the right to protest.

If you have valid status, going to a peaceful protest will not, by itself, cost you your status.

If you do not have status, immigration enforcement is a risk you may already face in public life, including through ordinary encounters like a traffic stop. A protest is not the only place that risk exists.

Knowing your rights cannot guarantee they will always be respected.

Having a plan is very important:

• A way to contact an immigration lawyer (the organizers may have this already organized)
• Community Organizations and/or members (friends, family, faith based) will always help (they can feed your pets, pick up your children and help organize a plan for your release) is as important as having a lawyer
• Being prepared, and keeping notes on what happens is hugely useful where possible.

But fear does not have to make the decision for you. Be informed. Make a plan. Know your rights.