In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective. This episode can be found here:
A link to this episode’s synopsis can be found here.
The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.
Retrospective legislation is legislation that changes or reinterprets previous acts.
In Canada there is a presumption against retrospective legislation because of the recognized need for certainty as to the legality and consequences of past conduct. For example, if an individual commits a crime whose penalty has a maximum sentence of five years, and the law then changes to make the maximum penalty ten years, it would be undesirable to change the person’s sentences to reflect the new law.
In R. v. Dineley, the Supreme Court of Canada accordingly proclaimed that new legislation that affects substantive rights, as opposed to procedural ones, will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively.
In Gill v. Canada, the Federal Court had to determine whether the Immigration Appeal Division (the “IAD“) erred in applying the new disjunctive test for determining whether a marriage is bona fide as opposed to the conjunctive test. When Ms. Gill had applied to sponsor her spouse, the law stated that a marriage would count for immigration purposes if it was genuine or if its primary purpose was not immigration. Her application was refused, and she appealed. After she started the appeal process, the law changed so that a marriage had to both be real and not entered into primarily for the purpose of immigration. The IAD chose to apply the new test, even though when Ms. Gill started the appeal the test was different.
Chief Justice Crampton, while noting that the result was troubling, upheld the IAD’s decision. The reason for this was because he determined that that Ms. Gill had not accrued any rights at the time that she filed her appeal. The Chief Justice wrote (citations removed):
.. persons who make such applications have no accrued or accruing rights until all of the conditions precedent to the exercise of the right they hope to obtain under the application have been fulfilled. Until a final decision has been made on the application, the applicant simply has potential future rights that remain to be determined. Stated alternatively, the applicant has no more than a hope that the application will be successful. There are no rights that may be retroactively or retrospectively affected by a change in the test applicable to spousal sponsorship applications. To the extent that this Court’s decision in McDoom v. Canada (Minister of Manpower and Immigration), which dealt with a significantly different legislative regime, stands for the contrary position, I respectfully decline to follow that decision.
The Chief Justice went on to distinguish between someone who had done work and was entitled to receive payment vs. an individual who had applied to sponsor her spouse for immigration.
In Patel v. Canada, Justice Mosley reached an identical conclusion in a similar situation. There, the minimum necessary income requirement had increased between the time that an individual had applied to sponsor her husband and the time of the appeal hearing. The Court cited the Supreme Court of Canada in noting that (citations removed):
… there are numerous reasons for deciding that the ability to appeal as of right to this Court is only “acquired,” “accrued” or “accruing” when the court of appeal renders its judgment. The first is a common-sense understanding of what it means to “acquire” a right or have it “accrue” to you. A right can only be said to have been “acquired” when the right-holder can actually exercise it. The term “accrue” is simply a passive way of stating the same concept (a person “acquires” a right; a right “accrues” to a person). Similarly, something can only be said to be “accruing” if its eventual accrual is certain, and not conditional on future events. In other words, a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled.
He went on to find that “at best [the applicant] had a right of appeal which was to be determined on the basis of the law as it was when it was heard and her application was considered de novo.”
There is some uncertainty on the issue, however, and in Sran v. Canada (Citizenship and Immigration), 2017 FC 389 Justice Russell certified the following question:
Given that s 133(1)(j) and s 34 of the Immigration and Refugee Protection Regulations were amended and came into force on January 2, 2014, should the IAD have retroactively applied the amended version of these regulations given that the Applicant’s sponsorship application for permanent residence on behalf of her father and her brother was received on June 5, 2008?