Vol. 145, No. 25 — December 7, 2011
Registration
SOR/2011-262 November 17, 2011
IMMIGRATION AND REFUGEE PROTECTION ACT
Regulations Amending the Immigration and Refugee Protection Regulations
P.C. 2011-1316 November 17, 2011
His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 14 of the Immigration and Refugee Protection Act (see footnote a), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
AMENDMENTS
1. (1) Paragraph 133(1)(e) of the Immigration and Refugee Protection Regulations (see footnote 1) is amended by striking out “or” at the end of subparagraph (i) and by adding the following after that subparagraph:
- (i.1) an indictable offence involving the use of violence and punishable by a maximum term of imprisonment of at least 10 years, or an attempt to commit such an offence, against any person, or
(2) Subparagraph 133(1)(e)(ii) of the Regulations is replaced by the following:
- (ii) an offence that results in bodily harm, as defined in section 2 of the Criminal Code, to any of the following persons or an attempt or a threat to commit such an offence against any of the following persons:
- (A) a current or former family member of the sponsor,
- (B) a relative of the sponsor, as well as a current or former family member of that relative,
- (C) a relative of the family member of the sponsor, or a current or former family member of that relative,
- (D) a current or former conjugal partner of the sponsor,
- (E) a current or former family member of a family member or conjugal partner of the sponsor,
- (F) a relative of the conjugal partner of the sponsor, or a current or former family member of that relative,
- (G) a child under the current or former care and control of the sponsor, their current or former family member or conjugal partner,
- (H) a child under the current or former care and control of a relative of the sponsor or a current or former family member of that relative, or
- (I) someone the sponsor is dating or has dated, whether or not they have lived together, or a family member of that person.
COMING INTO FORCE
2. These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT
ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue and objectives
Paragraph 133(1)(e) of the Immigration and Refugee Protection Regulations (the Regulations) prevents a person from sponsoring a member of the family class if they have been convicted under the Criminal Code of certain types of offences. According to the previous wording of the Regulations, a person was barred from sponsoring a member of the Family Class where the individual had been convicted of an offence of a sexual nature against any person or an offence that results in “bodily harm” against certain listed members of their family, as well as any attempt or threat to commit such offences. The objective of provision is to assist in the protection of foreign nationals from family violence.
The sponsorship bar remains in effect until the individual is either pardoned or acquitted, or where five years has elapsed since the completion of an imposed sentence.
For the purposes of an offence that results in bodily harm, the listed family relationships previously included
- a relative (related by blood or adoption) or family member (spouse, common-law partner, dependent child, dependent child of a dependent child) or conjugal partner of the sponsor; and
- a relative or family member of the sponsor’s spouse, common-law or conjugal partner.
A Federal Court decision (CIC v. Brar, 2008 FC 1285) highlighted a gap in this regulation. In this decision, a man convicted of killing his brother’s wife was allowed to sponsor his own wife, as it was determined that a sister-in-law, who is the wife of the sponsor’s brother, does not meet the definition of relative or family member in the Regulations. Paragraph 133(1)(e) of the Regulations has, therefore, been amended to expand the listed family relationships for the sponsorship bar to close gaps such as the one identified in the Brar case.
The Brar case also highlighted the fact that individuals who commit particularly violent offences against persons other than family members or relatives were not barred from sponsorship. Therefore, an amendment has been made to bar such persons from family class sponsorship regardless of who the offence was committed against.
The objectives of the amendments are to
- (a) strengthen the original intent of paragraph 133(1)(e) of the Regulations, namely, to assist in the protection of foreign nationals from family violence;
- (b) reinforce the integrity of the sponsorship program by barring sponsorship in cases where the sponsor is at risk of perpetuating abuse or has committed a serious criminal offence; and
- (c) further support the objectives of the Immigration and Refugee Protection Act (IRPA) to protect the health and safety of Canadians.
Description and rationale
For the purposes of determining sponsorship eligibility, CIC has amended the Regulations as follows:
- Provide that anyone convicted of an indictable offence involving the use of violence punishable by a maximum term of imprisonment of at least 10 years or an attempt to commit such an offence be barred from sponsorship. Exceptions under subsections 133(2) and 133(3) will still apply. Subsection 133(2) allows sponsorship to proceed when the conviction occurred in Canada and the individual has received a pardon, has been acquitted, or where five years have elapsed since the completion of the imposed sentence. Subsection 133(3) allows sponsorship to proceed when the conviction occurred outside Canada and the individual has been acquitted, or where five years have elapsed since the completion of the imposed sentence.
- Provide that anyone convicted of an offence that results in bodily harm, or an attempt or a threat to commit such an offence, against an expanded list of relatives is barred from sponsorship. This expanded list of relationships below has been added to subparagraph 133(1)(e)(ii) and covers
- former family members of the sponsor;
- former family members of a family member or conjugal partner of the sponsor;
- current and former family members of a relative of the sponsor or the sponsor’s family member;
- former conjugal partner of the sponsor, as well as current and former family members of the conjugal partner’s relatives;
- a child under the current or former care and control of the sponsor, their current or former family member, or conjugal partner;
- a child under the current or former care and control of a relative of the sponsor or a current or former family member of that relative; and
- someone with whom the sponsor dates or has dated, whether or not they live together, or a family member of that person.
The Brar decision highlighted a relationship that was not included for the purpose of the sponsorship bar found in the previous paragraph 133(1)(e) of the Regulations. In this decision, a man convicted of killing his brother’s wife was allowed to sponsor his own wife to Canada. It was determined that a sister-in-law who is the wife of a sponsor’s brother did not meet the definition of relative or family member in the Regulations. Further analysis of the Regulations revealed that in addition to this type of relationship, certain other relationships were not included for the purposes of this sponsorship bar. Given the importance of the stated objective of helping to protect sponsored persons from family violence, the addition of other relationships was made in order to ensure that there are no future cases of violence against a relative where the sponsorship bar cannot be imposed.
Moreover, there was a great deal of public outrage expressed following the Brar decision, and with it came the general sentiment that someone who has committed such a serious crime, regardless of who it was against, should not benefit from the privilege and responsibility of sponsor. Sponsorship is conditional. The amended Regulations expand the circumstances leading to a sponsorship bar under subparagraph 133(1)(e)(i) to include convictions for an indictable offence involving the use of violence and punishable by a maximum term of imprisonment of at least 10 years in order to include more situations found to be inconsistent with Canadian values.
The intent of the Regulations is to prevent individuals with a history of violence from sponsoring under the Family Class and instigating incidences of family violence. The amendments ensure that the original regulatory intent is given proper effect and maintain the message that Canada does not accept family violence.
Family class provisions under the immigration program, however, cannot be a cure for family violence. The amendments will operate as a preventative mechanism, send a message that family violence is not tolerated in Canada, and highlight the conditional nature of sponsorship. It is anticipated that the expansion of the list of relatives and family members and adding offences involving the use of violence punishable by a maximum term of imprisonment of at least 10 years will affect a relatively small number of individuals. From 2003 to 2009, approximately 70 people were barred from sponsorship under the previous provisions.
Consultation
Key stakeholders were given the opportunity to provide their feedback on the Regulations in November 2010. The following stakeholders were consulted: Canadian Association of Chiefs of Police, Canadian Association of Elizabeth Fry Societies, The John Howard Society of Canada, National Organization of Immigrant and Visible Minority Women of Canada, Metropolitan Action Committee on Violence Against Women and Children, Canadian Ethnocultural Council, Canadian Bar Association (CBA), and the Chambre des notaires du Québec. Provinces and territories were also consulted.
The CBA expressed their support for strengthening the Regulations, however, they are concerned that the proposed list of relatives is too broad. The purpose of the expanded list of family members attempts to prevent a situation similar to the Brar case where a relative not explicitly mentioned in the Regulations is victimized by the sponsor and the sponsorship bar cannot be imposed. The CBA is also concerned that dating relationships may be difficult to define. While the Department acknowledges this challenge research demonstrates that individuals in a dating relationship do suffer abuse. As such, the prevention of sponsorship in these cases is appropriate.
Finally, the CBA found the inclusion of a bar against anyone who commits an offence involving the use of violence and punishable by a maximum term of imprisonment of at least 10 years to be a punitive response rather than a protective measure against family violence. This change, however, reflects the conditional nature of sponsorship and someone who has committed such a serious crime, regardless of who it was against, should not benefit from the ability to sponsor.
The Chambre des notaires du Québec was supportive of the proposed Regulations. Responses received from provinces and territories were also supportive of the proposed Regulations.
The regulatory proposal was pre-published in the Canada Gazette, Part Ⅰ, on April 2, 2011, followed by a comment period of 30 days during which no comments were received.
Implementation, enforcement and service standards
Implementation requires updates to guidelines in policy manuals to inform immigration officers of the new Regulations. Guidelines will be developed to ensure the proper application of the amended Regulations. Officers will be guided on what offences would be captured under an offence involving the use of violence punishable by a maximum term of imprisonment of at least 10 years.
Contact
Justine Akman
Director
Social Immigration Policy and Programs
Immigration Branch
Department of Citizenship and Immigration
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Telephone: 613-941-9022
Fax: 613-941-9014
Email: justine.akman@cic.gc.ca
Footnote a
S.C. 2001, c. 27
Footnote 1
SOR/2002-227