THE ULTRAHAZARDOUS ACTIVITY OF EXCLUDING FAMILY MEMBERS IN CANADA’S IMMIGRATION SYSTEM

Abstract

Who is family? Some of us take for granted that we, as Canadians, can not only choose who our family is but whether we can live with them in Canada. One little-known regulation in our immigration system is wreaking havoc on our family reunification system. We are told that section 117(9)(d) of the Immigration and Refugee Protection Regulations aims to protect the integrity of our immigration system by preventing and deterring fraud in family reunification. Practically, the regulation applies to persons who, when applying to immigrate to Canada did not disclose and therefore have a family member examined by immigration officials. The regulation, when triggered, imposes a lifetime ban on the sponsor to sponsor the non-disclosed family member. The rule denies Canadian citizens and permanent residents from ever being with their family in Canada, even if they are genuine family members. This paper looks closely at this regulation and points out that the construction of the rule is one that is akin to an absolute liability regime, reserved for deterring and preventing ultrahazardous activity in criminal and tort law. When considered against evidence that indicates that the main reason why persons do not disclose their family has nothing to do with fraud, the paper argues that the regulatory regime is a prejudicial and sticky generalization that allows non-discretionary exclusion of persons from Canada. Further, while the government may feel that this regulation makes it easier to determine who is in the family class, it ignores tried and tested mechanisms already in existence to deal with fraud. Finally, the paper argues, the provision is not merely suboptimal, but inhumane and unconstitutional.