THE FIRST ISSUE

Selected analysis of IRB & Federal Court jurisprudence, legislation and IRCC policy. Edited by Gordon Scott Campbell, Barrister, compleximmigration.ca. 

STAT & POLICY INTERP COLUMN

Although sound principles of statutory interpretation may be more about common sense than anything else, it took a prof at the University of Ottawa named Elmer Driedger to pin statutory interpretation concepts down in the English language Canadian common law world. The Supreme Court of Canada has since adopted his principles repeatedly, like in my case of R. v. Ulybel Enterprises Ltd, 2001 SCC 56: "today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." 

Though his seminal book under the assumed authorship of Professor Ruth Sullivan is now in its 6th edition having been renamed Sullivan on the Construction of Statutes(LexisNexis, 2014), really Driedger's 1983 2nd edition of Construction of Statutes is the classic because it’s so slender and to the point. It remains the one I always cite.

RETRO CASE CORNER

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 is the seminal case to cite whenever you're sure the government is not being fair, but you're unsure of which rules or principles to point to as supporting your fairness breach arguments. It codifies procedural fairness principles. It talks about the weight to place on policy rather than law. It’s cited as leading authority by all manner of non-immigration judicial review cases.

Key is: "underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker" (para. 22).

NEW & NOTABLE RUNWAY


Spousal Sponsorship Refusal - Was Marriage Entered Into Primarily for Purpose of Acquiring Status - IAD Applies Predominant Purpose Test in Allowing Appeal

“Although the relationship may have been initiated primarily for the purpose of Dien acquiring status in Canada; nevertheless, in the opinion of the tribunal, by the time of the marriage, acquiring status in Canada, was no longer the dominant driving force of the relationship.”

Tran v. Canada, 2017 CanLII 87447 (CA IRB)

Are Gladue Principles Applicable to Immigration Removals where Indigenous Child Involved - FCA Overturns FC in Allowing JR

Although decided back in 2017, this case is of sufficient importance to still highlight. The Federal Court of Appeal overturned the judgment of the Federal Court which had dismissed the application for judicial review to defer deportation of a Guyanese permanent resident pending a Humanitarian and Compassionate application determination, on the basis that he had sole custody of a 9 year old Indigenous child.

The FCA held: "enforcement officers may look at the short-term interests of the children whose parent(s) are being removed from Canada, but cannot engage in a full-blow H & C analysis of such children's long-term best interests ... aboriginal children are doubtless among the most vulnerable in Canada ...  this description [of the enforcement officer] belittles the profound nature of the degree of connection to culture, heritage and territory that is likely important and desirable for an indigenous person to maintain. Thus, the Enforcement Officer's treatment of these issues was insensitive, which Baker instructs is the antithesis of the requisite analysis of the best interests of the child" (at paras. 61, 86, 91).

Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130