Sponsorship Bar for Violent Crime
Summary
Amendments to paragraph 133(1)(e) of the Immigration and Refugee Protection Regulations (the Regulations) came into force on November 18, 2011. This regulation prevents a person from sponsoring a member of the family class if they have been convicted of certain offences.
The objectives of these 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 for perpetuating abuse or has committed a serious criminal offence; and
c.further support the objectives of the Immigration and Refugee Protection Act to protect the health and safety of Canadians.
Background
This regulation is intended to prevent family violence from occurring against sponsored persons. 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, did not meet the definition of relative or family member in the Regulations. An amendment to the regulation has been made in order 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 members of their family are not currently barred from sponsorship. As such, the regulation has been amended to prevent these individuals from sponsoring a member of the family class.
Amended Provisions
For the purposes of determining sponsorship eligibility, Citizenship and Immigration Canada (CIC) has amended paragraph 133(1)(e) of the Regulations in order to:
•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.
•Provide that anyone convicted of 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 be barred from sponsorship: 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.
The bar for those convicted of an offence of a sexual nature and the 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, and the sponsor has demonstrated that they are rehabilitated.
Instructions
CIC and Canada Border Services Agency (CBSA) officers must commence applying the new provision on the day in which it entered into force. Therefore, effective November 18, 2011, CIC and CBSA officers must apply the new provision to all new applications, all applications in process for which a final decision has not yet been rendered and all new and pending appeals before the Immigration Appeal Division.
The following table gives examples of the relationships covered by the amended bar which would prevent potential sponsors who have been convicted of an offence causing bodily harm from sponsoring.
Amended Provision
Examples of Relationships
a. current or former family member of the sponsor;
•the spouse or common-law partner of the sponsor and their children
•the ex-spouse or common-law partner of the sponsor and their children
•the children of the sponsor
b. a relative of the sponsor, as well as a current or former family member of that relative;
•the parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor
•the spouse or common-law partner and children of the parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor
•the ex-spouse or ex-common-law partner (and their children) of the parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor
c. a relative of the family member of the sponsor, or a current or former family member of that relative;
•the parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor’s spouse/common-law partner or children
•the spouse or common-law partner and children of the parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor’s spouse/common-law partner or children
•the ex-spouse or ex-common-law partner (and their children) of the parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor’s spouse/common-law partner or children
d. a current or former conjugal partner of the sponsor;
•the conjugal partner of the sponsor
•the ex-conjugal partner of the sponsor
e. a current or former family member of a family member or conjugal partner of the sponsor;
•the spouse or common-law partner or children of the sponsor’s child
•the ex-spouse or common-law partner and children of the sponsor’s spouse, partner or child
f. a relative of a conjugal partner of the sponsor, or a current or former family member of that relative;
•the parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor’s conjugal partner
•the spouse/common-law partner (and their children)of the, parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor’s conjugal partner
•the ex-spouse/common-law partner (and their children) of the parent/grandparent, child/grandchild, sibling, niece/nephew, aunt/uncle, cousin of the sponsor’s conjugal partner
g. a child under the current or former care and control of the sponsor, their current or former family member or conjugal partner;
•a foster child who is or was cared for by the sponsor, their spouse/partner, ex-spouse/partner or children
h. a child under the current or former care and control of a relative of the sponsor or a current or former family member or conjugal partner of that relative; or
•a foster child who is or was cared for by the parent/grandparent, child/grandchild, sibling, aunt/uncle or cousin of the sponsor a foster child who is or was cared for by the spouse/partner or ex-spouse/partner (and their children) of the parent/grandparent, child/grandchild, sibling, aunt/uncle or cousin of the sponsor
i. someone the sponsor is dating or has dated, whether or not they have lived together, or a family member of that person.
•current or ex-boyfriend/girlfriend, their spouse or common-law partner and their dependent children
Note: “partner” includes common-law and conjugal partners
Amendments
Section 133 of the Regulations now reads as follows:
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
Paragraph 133(1)(e) of the Regulations is amended by striking out “or” at the end of subparagraph (i) and by adding the following after that subparagraph:
(e) has not been convicted under the Criminal Code of
(i) an offence of a sexual nature, or an attempt or a threat to commit such an offence, against any person,
(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
(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 other family member of the sponsor,
B.a relative of the sponsor's spouse or of the sponsor's common-law partner, including a dependent child or other family member of the sponsor's spouse or of the sponsor's common-law partner, or
C.the conjugal partner of the sponsor or a relative of that conjugal partner, including a dependent child or other family member of that conjugal partner;
(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.(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.
List of Offences
Below is a non-exhaustive list of Criminal Code offences that carry a maximum sentence of 10 years and would be captured by this bar if they involved violence:
Section
Criminal Code Offence
76 - Hijacking
81- Using explosives
85 - Use of a firearm or imitation during commission of offence
220 - Criminal negligence causing death
229 - Murder
230 - Murder in commission of offences
236 - Manslaughter
238 - Killing unborn child in act of birth
239 - Attempt to commit murder
240 - Accessory after fact to murder
241 - Counselling or Aiding Suicide
244 - Discharging firearm with intent
244.1 - Causing bodily harm with intent - air gun or pistol
244.2 - Discharging firearm - recklessness
245 - Administering noxious thing – bodily harm
246 - Overcoming resistance to commission of offence
247 - Sets trap - causes death
249 - Dangerous operation of a vessel/vehicle/ aircraft causing death
249.1 - Flight causing bodily harm or death
268 - Aggravated assault
269.1 - Torture
270.02 - Aggravated assault peace officer
279.01 - Trafficking in persons
279.011 - Trafficking in persons under the age of 18 years
279.1 - Hostage taking
287 - Procuring miscarriage
343 - Robbery
434 - Arson
Further information
The following Operational Manuals will be updated:
•IP 2 – Processing Applications to Sponsor Members of the Family Class
•IP 8 – Spouse and Common-law partner in Canada Class
•OP 2 – Processing Members of the Family Class
