Date: 20081118
Docket: IMM-289-08
Citation: 2008 FC 1285
Ottawa, Ontario, November 18, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
THE MINISTER OF CITIZENSHP
AND IMMIGRATION
Applicant
and
BALJINDER
SINGH BRAR
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2002, c. 27 (the Act), by the Minister of
Citizenship and Immigration for judicial review of a decision of the
Immigration Appeal Division of the Immigration and Refugee Board (the Board),
dated January 7, 2008, in which the Board determined that the Respondent,
Baljinder Singh Brar, was eligible to sponsor his wife.
I. Issues
[2]
The
Applicant raises the following issues:
a. Did the Board
make serious errors in the interpretation of clause 133(1)(e)(ii)(A) of the
Regulations?
b. Did the Board
fail to consider the legislative intent behind clause 133(1)(e)(ii)(A) of the
Regulations, such that its interpretation was flawed?
[3]
The
application for judicial review shall be dismissed for the following reasons.
II. Factual
Background
[4]
On
April 21, 1997, the Respondent, who is a Canadian citizen, was convicted in India of culpable
homicide, not amounting to murder, under section 304 of the Indian Penal Code.
The victim of the crime was his sister-in-law (his brother’s wife), who died
from severe burns that resulted from the Respondent and his brother dousing her
with kerosene oil and setting her on fire.
[5]
The
Respondent was sentenced to life in prison but the sentence was appealed and
reduced to imprisonment for seven years. The Respondent was released from
prison on July 19, 2004.
[6]
After
being released from prison, the Respondent returned to Canada, where he
was residing, and filed a sponsorship application for his new wife. The
Respondent had married Karamjit Brar in India on March 14,
1997, prior to his conviction.
[7]
The
Respondent submitted an application for spousal sponsorship via the Family
Class category to the Canadian High Commission in New Delhi, India in December
2004.
[8]
A
visa officer rendered a negative decision and concluded the Respondent fell
within the scope of clause 133(1)(e)(ii)(A) of the Immigration and Refugee
Protection Regulations SOR/2002-227 (the Regulations) and therefore was
ineligible to act as a sponsor.
[9]
The
immigration officer found that the Respondent was convicted in India of an
offence that, if committed in Canada, would constitute an offence that results
in bodily harm, as defined in section 2 of the Criminal Code, R.S.,
1985, c. C-46. The application for permanent residence was refused for failure
to comply with paragraph 133(1)f) of the Regulations.
[10]
The
Respondent appealed his refusal to the Immigration Appeal Division of the
Immigration and Refugee Board.
III. Decision
Under Review
[11]
The
Board stated that at first glance, the Respondent ought to be the exact type of
person the Regulations meant to prevent from abusing or harming another family
member since the purpose of the Regulations is to protect immigrant and refugee
women from domestic violence. The Respondent is a sponsor with a specific
conviction involving violence against a woman in his family, namely his
sister-in-law.
[12]
However,
the wording of subparagraph 133(1)e)ii) of the Regulations denies the right of
sponsorship to Canadian citizens and permanent residents who have committed
offences involving bodily harm against only certain enumerated victims.
[13]
According
to the definition in section 2 of the Regulations, “relative” means a person
who is related to another person by blood or adoption. The Board accepted the
submission that the Respondent’s sister-in-law is not a blood relative. Furthermore,
the victim does not fit within the definition of “family member” as defined in
subsection 1(3) of the Regulations.
[14]
Section
133 of the Regulations restricts the victims of assaults causing bodily harm to
the sponsored spouse or common-law partner and family members of the sponsor’s
spouse or common-law partner. It does not include all family members on each
side of the family and is not worded so as to catch a sponsor who has committed
a crime causing bodily harm against a sister-in-law. Therefore, the Respondent’s
sister-in-law does not fit within the narrow definition of victims of offences
causing bodily harm in clause 133(1)(e)(ii)(A).
IV. Relevant
Legislation
[15]
The
applicable provision is clause 133(1)(e)(ii)(A) of the Regulations:
|
133. (1) A sponsorship
application shall only be approved by an officer if, on the day on which the
application was filed and from that day until the day a decision is made with
respect to the application, there is evidence that the sponsor
(e)
has not been convicted under the Criminal Code of
(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, namely,
(A)
a relative of the sponsor, including a dependent child or another family
member of the sponsor,
|
133. (1) L’agent n’accorde la
demande de parrainage que sur preuve que, de la date du dépôt de la demande
jusqu’à celle de la décision, le répondant, à la fois :
e)
n’a pas été déclaré coupable, sous le régime du Code criminel :
(ii)
d’une infraction entraînant des lésions corporelles, au sens de l’article 2
de cette loi, ou d’une tentative ou menace de commettre une telle infraction,
à l’égard de l’une ou l’autre des personnes suivantes :
(A)
un membre de sa parenté, notamment un enfant à sa charge ou un autre membre
de sa famille,
|
[16]
The
term “relative” is defined at section 2 of the Regulations:
|
2. “relative” means a person
who is related to another person by blood or adoption.
|
2. « membre de la parenté »
Personne unie à l’intéressé par les liens du sang ou de l’adoption.
|
[17]
The
term “family member” is defined at subsection 1(3) of the Regulations:
|
1. (3) For the purposes of the
Act, other than section 12 and paragraph 38(2)(d), and for the purposes of
these Regulations, other than sections 159.1 and 159.5, “family member” in
respect of a person means
(a)
the spouse or common-law partner of the person;
(b)
a dependent child of the person or of the person’s spouse or common-law
partner; and
(c)
a dependent child referred to in paragraph (b).
|
1. (3) Pour l’application de
la Loi — exception faite de l’article 12 et de l’alinéa 38(2)d) — et du
présent règlement — exception faite des articles 159.1 et 159.5 —, «membre de
la famille» , à l’égard d’une personne, s’entend de :
a)
son époux ou conjoint de fait;
b)
tout enfant qui est à sa charge ou à la charge de son époux ou conjoint de
fait;
c)
l’enfant à charge d’un enfant à charge visé à l’alinéa b).
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V. Analysis
A. Standard of Review
[18]
It
is the interpretation of clause 133(1)(e)(ii)(A) of the Regulations that is at
issue here. The parties suggest and the Court agrees that the standard of
review is correctness (Mohamed v. Canada (Minister of
Citizenship and Immigration), 2006 FC 696, 296 F.T.R. 73 at paragraph
34).
1.
Did the Board make serious errors in the interpretation of clause 133(1)(e)(ii)(A)
of the Regulations?
[19]
The
Applicant’s position is that the Board made serious errors in its
interpretation of the Regulations. The Applicant believes that the
legislation is designed to prevent someone exactly like the Respondent, someone
convicted of a violent domestic offence, from sponsoring a spouse.
[20]
The
Applicant submits that section 133 of the Regulations does not restrict the
victims of assaults causing bodily harm to the sponsored spouse or common-law
partner and family members of the sponsor’s spouse or common-law partner. The
class of victims necessarily involves a larger category of people and the Board’s
decision fails to recognize the full range of relationships contemplated by clause
133(1)(e)(ii)(A).
[21]
The
Board erred in finding that clause 133(1)(e)(ii)(A) sets out an exhaustive list
of potential victims, because it is actually set out as a non-exhaustive list
which begins with one overarching category entitled “relative” and continuing
with a non-exhaustive list of examples of the kinds of relationships included
in the term “relative”.
[22]
The
Applicant alleges that if clause 133(1)(e)(ii)(A) was intended to create
an exhaustive list of potential victims, it would not have utilized the word
“including”. Exhaustive definitions characteristically use the term “means”
prior to the class of things it wishes to restrict (R. v. Verma, 31 O.R.
(3d) 622, 112 C.C.C. (3d) 155 (Ont. C.A.); Yellow Cab Ltd. v. Alberta (Board
of Industrial Relations), [1980] 2 S.C.R. 761; R. v. Caines, 72
W.C.B. (2d) 747 (N.L. Prov. Ct.), [2007] N.J. No. 2 (QL)).
[23]
Clause
133(1)(e)(ii)(A) utilizes “including”, indicating that the section was not
intended to be restrictive as to the class of potential victims caught by the
category of “relative”. “Include” is understood to be an indication of a
non-exhaustive definition (Lavigne v. Canada (Office of the Commissioner of Official
Languages),
[2002] 2 S.C.R. 773 at paragraph 53; Canada (Information Commissioner) v. Canada
(Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66 at
paragraph 29; R. v. Mansour, [1979] 2 S.C.R. 916).
[24]
In
its analysis of the term “relative” in clause 133(1)(e)(ii)(A), the Board
relied wholly on the definition of the term found at section 2 of the Regulations.
The Applicant contends that basing the definition of relative entirely
on this one section was an error, as “relative” in section 2 is narrower than
“relative” in clause 133(1)(e)(ii)(A). “Relative” in section 2 is limited by
the term “mean” and is restricted to two classes of individuals, blood
relatives or relatives by adoption. “Relative” in clause 133(1)(e)(ii)(A) is
much broader, as it also necessarily includes “family members”, which
encompasses common-law partners and spouses, pursuant to subsection 1(3) of the
Regulations. These two additional categories of people are not caught by the
section 2 definition. As such, “relative” in clause 133(1)(e)(ii)(A) is
necessarily broader than “relative” in section 2.
[25]
The
Applicant therefore argues that the Board erred in failing to recognize
that clause 133(1)(e)(ii)(A) is not a list of three exhaustive categories of
persons. Rather, this section makes clear that a person who commits an offence
which harms a “relative”, such as a dependent child or another family member,
is prohibited from sponsoring someone to Canada.
[26]
According
to the Respondent, the term “relative” found in section 2 of the Regulations is
the appropriate and applicable definition of “relative” found in section 133 of
the Regulations. The Board member correctly concluded that the Respondent does
not come within the scope of clause 133(1)(e)(ii)(A) of the Regulations because
the definition found in section 2 of the Regulations is applicable to section
133 and because this definition does not include “sister-in-law”.
[27]
The
Respondent asserts that since the “sister-in-law” is not related by
blood to the Respondent and was not adopted by the Respondent, she is not a
“relative” of the sponsor. Also, section 2 of the Regulations defines
“relative” as “a person who is related to another person by blood or adoption”
and this definition only applies to sections 117, 133 and 139 of the
Regulations. Since the term “relative” is only referred to in three sections of
the Regulations, the Respondent urges that Parliament consider its definition
with respect to section 133.
[28]
Furthermore,
as the definition of “family member” under subsection 1(3) of the Regulations does
not encompass “sister-in-law”, it is submitted that the Respondent does not
fall within section 133 of the Regulations. As well, the Respondent notes that subsection
1(3) of the Regulations specifically state that the term “family member”
applies to all the Regulations with the exception of two specific sections:
159.1 and 159.9. Section 133 of the Regulations is not one of the exceptions
noted in the legislation and thus, the definition of “family member” is
applicable to the case at bar.
[29]
The
Respondent notes that the list set out in clause 133(1)(e)(ii)(A) of the Regulations
is exhaustive. Parliament chose not to leave the definitions open to interpretation
because it would have defined each term in that section if it had intended for
the definitions to be different than those provided elsewhere in the
Regulations.
[30]
The
definitions in sections 1 and 2 of the Regulations are also very specific whereas section
133 of the Regulations is general. The specific provisions set out in sections
1 and 2 of the Regulations are therefore applicable to section 133 of the
Regulations because it is a standard rule of interpretation that a specific
provision takes precedent over a general provision, provided the two sections
can be read together. The Respondent cites the decision of the Immigration and
Refugee Board’s Immigration Appeal Division in Peralta v. Canada (Minister of Citizenship and
Immigration), [2005]
I.A.D.D. No. 329 (QL) in mentioning the statutory interpretation principle of
the presumption of consistent expression.
[31]
According
to the Respondent, in light of the decision of the Immigration and
Refugee Board’s Immigration Appeal Division in Kular v. Canada (Minister of
Citizenship and Immigration), [2005] I.A.D.D. No. 745 (QL), where the Board
concluded that a sister-in-law was not a “relative” within the scope of section
2 of the Regulations, the Board in our case rendered a decision that is
internally consistent with other Board decisions.
[32]
The
Court is of the opinion that the Board committed no errors in interpreting clause
133(1)(e)(ii)(A) of the Regulations in the case at bar. Although the provision
employed in section 133 utilizes the term “including”, the provision must be
read in its entirety, in order to capture the essence of the section. A reading
of the provision requires defining the uses of the terms “relative” and “family
member”.
[33]
The
definitions of “relative” at section 2 and of “family member” at subsection
1(3) of the Regulations specifically exclude a “sister-in-law” because their
definitions are limited by the use of the term “means”. Although the use of the
word “including” in clause 133(1)(e)(ii)(A) could be understood as being
non-exhaustive, the definitions in the case at bar cannot be read more broadly
because of the explicit limitations of the words “relative” and “family
member”.
2.
Did the Board fail to consider the legislative intent behind subsection
133(1)(e)(ii)(A) of the Regulations, such that its interpretation was flawed?
[34]
According
to the Applicant, the Board failed to take into consideration the legislative
intent behind clause 133(1)(e)(ii)(A) of the Regulations.
[35]
The
Applicant analyzes the Regulatory Impact Assessment Statement (RIAS)
corresponding to the Regulations in order to determine their legislative intent.
While the RIAS has no force of law, it can be considered as a relevant
commentary (Sunshine Village Corp. v. Canada (Parks), 2003 FCT
546, [2003] 4 F.C. 459 at 475).
[36]
Based
on a review of the relevant RIAS, the Applicant submits that the legislative
intent is that the section is in place to prevent a person who has been convicted
of a criminal act which harms a member of his family from being a sponsor for a
wide array of relationships. The RIAS also states that clause 133(1)(e)(ii)(A)
prohibits people who have committed offences under the Criminal Code
that involve bodily harm against “relatives or family members” from sponsoring
anyone under the Family Class. Based on this analysis, a sister-in-law (the
wife of a brother) is a relationship contemplated by the legislator in drafting
clause 133(1)(e)(ii)(A) of the Regulations.
[37]
The
Applicant submits that the Board did not take into account the amendment of the
RIAS of 2004 to paragraph 133(1)(e):
|
Amendments
to paragraph 133(1)(e) have been made to better reflect the policy intent of
the sponsorship bar. Where a person has been convicted under the Criminal
Code of a sexual offence or an attempt or threat to commit such an offence,
whether the victim is a relative or not, or of an offence that results in
bodily harm or an attempt or threat to commit such an offence against a relative,
including a family member of the sponsor or relative of a family member, that
person is barred from sponsoring a member of the family class to Canada until
5 years have passed since the completion of their sentence or they have
received a pardon or rehabilitation.
|
Des
modifications ont été apportées à l'alinéa 133(1)e) pour mieux respecter
l'objectif poursuivi par l'interdiction de parrainage. Ne peut ainsi
parrainer un membre de sa famille, avant cinq ans après avoir fini de purger
sa peine ou après avoir été réadaptée, la personne déclarée coupable, en
vertu du Code criminel, d'une infraction d'ordre sexuel ou d'une tentative ou
menace de commettre une telle infraction — que la victime soit un membre de
sa famille ou non — ni la personne déclarée coupable d'une infraction
entraînant des lésions corporelles, ou d'une tentative ou menace de commettre
une telle infraction à l'égard d'un parent, y compris un membre de la famille
du répondant ou un parent d'un membre de la famille de celui-ci.
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[38]
The
Applicant also alleges that it would be incompatible that legislation which
aims to prevent persons who have committed family violence from sponsoring a
member of the family class would allow the Respondent, who was tried and
convicted for the killing of his sister-in-law, to sponsor his wife. The Board’s
interpretation of clause 133(1)(e)(ii)(A) of the Regulations is therefore internally
inconsistent and erroneously limits the scope of that section.
[39]
The
Respondent argues that the decision in Lavigne, above, should be
put in proper context because in that decision, the Supreme Court indicated
that the term “including” merely provides a non-exhaustive list of examples to
demonstrate the aforementioned wording. However, Lavigne can be
distinguished from the case at bar because the applicable definitions here clearly
state where they are to be applied. The scope of section 133 of the Regulations
was therefore limited by Parliament and by the law itself.
[40]
According
to the Respondent, the Board considered the intention of Parliament in
its analysis and did not err in its interpretation and application of clause
133(1)(e)(ii)(A) of the Regulations, as it clearly does not include
“sister-in-law”.
[41]
If
Parliament had intended for the definition of “family member” to include all
relationships linked to the concept of family, it would have explicitly done
so, especially since there are two exceptions in the context of the Regulations
to the application of the term “family member”.
[42]
The
Board may not have looked at the RIAS’s 2004 amendment but considered the
legislative intent of section 133 (Applicant's Record page 8, paragraphs 12 and
13 of the decision). It even considered that the Respondent at first sight, ought
to be barred to sponsor his wife by the Regulations at paragraph 14 of the
decision:
At first blush the sponsor in this appeal
ought to be the exact type of person the Regulations meant to prevent
from abusing or harming another family member. The appellant is a sponsor with
a specific conviction involving violence against a woman in his family, his
sister-in-law.
[emphasis in the original]
[43]
In
the end the Board concluded that the word "sister-in-law" did not fit
within the definition of "family member".
[44]
This
Court is of view that the Board did not err in its interpretation of clause
133(1)(e)(ii)(A) of the Regulations due to the limited applicability of the
definition of “family member”.
[45]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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