de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 FCR 655, 2005 FCA 436 (CanLII)
http://canlii.ca/t/1m8q8
• This case is seminal on the binding nature of international law as well as the framework for assessing whether legislation violates international law
• When de Guzman applied for her permanent residence she said she was single and with no dependants other than one daughter. This was a lie; she had two other sons. Eight years later, after obtaining citizenship, de Guzman applied to bring her sons to Canada (16 and 17 years old) but was denied because they were not included in the family class under s. 117(9)(d) of the IRPA Regulations. Section 117(9)(d) states that dependants need to be examined for immigration purposes at the time of the permanent residence application.
• s. 3(1)(d) of the IRPA makes family reunification a stated goal and s. 3(3)(f) states that IRPA is to be applied in a way that complies with HR documents that Canada is signatory to; in this case the ICCPR’s provisions on family life as well as the Convention on the Rights of the Child are particularly relevant
• Important holdings on binding nature of international law:
o Under IRPA s. 3(3)(f), a legally binding international HR instrument to which Canada is signatory is determinative of how IRPA must be interpreted and applied, in the absence of a contrary legislative intention
o Non-binding instruments are persuasive and contextual (not determinative) in the interpretation and application of IRPA, and not all will be equally persuasive
o Not every provision of IRPA must comply with binding international instruments that Canada has signed; instead, the impugned provisions considered together with other provisions and the statute as a whole must comply with binding international instruments
o If IRPA is compliant with international instruments, there is no need for further inquiry
o If an IRPA regulation renders the Act non-compliant, one must determine whether the relevant enabling section of IRPA authorises Cabinet to enact a regulation rendering IRPA non-compliant with a binding international HR instrument (need a clear legislative intention to contravene the binding international instrument)
o In this case, an H&C application to overcome the children’s inability to become members of the family class is a safety valve protecting parents’ Charter rights and Canada’s international obligations
Key Citations
o [90] In my respectful opinion, the applications Judge erred when he said that international law has no role in this case because the meaning of paragraph 117(9)(d) is clear. When a statutory provision, including a regulation, is impugned as not complying with a binding international human rights instrument to which Canada is signatory, it must first be determined whether the provision renders the IRPA non compliant.
o [91] A reviewing court should consider an impugned provision in the context of the entire legislative scheme. Thus, determining the effect of paragraph 117(9)(d) on Canada’s international obligations requires the Court to consider whether other provisions in the IRPA mitigate its impact on a right guaranteed by an international human rights instrument to which Canada is signatory.
o [92] If the IRPA is found to be compliant, that ends the inquiry. But if the statutory provision in question is a regulation, and it is held to render the IRPA non compliant, there is a second step in the analysis. At this stage, the Court must determine whether, properly construed, the relevant enabling section of the IRPA authorizes the Governor in Council to enact a regulation which renders the IRPA non compliant with a binding international human rights instrument to which Canada is signatory. In view of paragraph 3(3)(f), only a clear legislative intention to the contrary will warrant a conclusion that the regulation making power could lawfully be exercised in this manner.
de Guzman cited by other case-law:
• Varga v. Canada (Minister of Citizenship and Immigration), [2007] 4 FCR 3, 2006 FCA 394 (CanLII), <http://canlii.ca/t/1q4j8>
o [13]Neither the Charter nor the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3] requires that the interests of affected children be considered under every provision of IRPA: de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (CanLII), [2006] 3 F.C.R. 655 (F.C.A.), at paragraph 105. If a statutory scheme provides an effective opportunity for considering the interests of any affected children, including those born Canada, such as is provided by subsection 25(1), they do not also have to be considered before the making of every decision which may adversely affect them. Hence, it was an error for the applications Judge to read into the statutory provisions defining the scope of the PRRA officer’s task a duty also to consider the interests of the adult respondents’ Canadian born children.