Coming Out to Canada: The Immigration of
Same-Sex Couples Under the
Immigration and Refugee Protection Act
Nicole LaViolette*
While Canadian immigration policy has long
favoured family reunification, until recently, Canadian
immigration laws allowed only married heterosexual
Canadians to sponsor their spouses as family class
immigrants. The recently enacted Immigration and
Refugee Protection Act, and
the accompanying
Immigration and Refugee Protection Regulations, have
expanded the family class to allow gay men and
lesbians to formally sponsor their partners. In this
article, the author argues that despite the important
progress made in recognizing gay and lesbian conjugal
relationships under the new legislation, the issue of
same-sex immigration remains problematic. The author
examines the legislative scheme to reveal that the new
family class categories still contain policy and drafting
weaknesses that could hinder same-sex immigration. In
addition, while the new legislation offers a better
regime than existed previously, gay men and lesbians
remain vulnerable to discriminatory applications of the
law if visa officers, members of the Immigration
Division, and Federal Court judges do not recognize
the political, social, and cultural specificity of gay and
lesbian couples who apply for permanent residency in
Canada.
la nouvelle
Alors que la politique canadienne sur limmigration
a longtemps favoris la runification familiale, jusqu
tout rcemment, le droit de limmigration permettait
exclusivement aux rpondants htrosexuels de parrainer
la demande dimmigration de leur conjoint en vertu de la
catgorie regroupement
familial. Nouvellement
dicte, la Loi sur limmigration et la protection des
rfugis et le Rglement sur limmigration et la
protection des rfugis a finalement largi la catgorie de
la famille pour y inclure les couples gais et lesbien, leur
permettant ainsi de parrainer officiellement leur conjoint.
Lauteure de cet article constate quen dpit du progrs
important quentrane
la
reconnaissance des relations conjugales homosexuelles,
la question de limmigration des couples de mme sexe
demeure problmatique. Dans son examen du nouveau
rgime lgislatif, lauteure dmontre que la catgorie
regroupement familial prserve certaines faiblesses tant
au niveau de la politique que de la rdaction, qui risquent
forcment dentraver limmigration des couples de mme
sexe. Entre autre, la vulnrabilit des gais et les
lesbiennes face lapplication discriminatoire de la loi
persistera si les agents de visa, commissaires de la
Section dimmigration et juges de la Cour fdrale ne
reconnaissent pas la particularit politique, sociale et
culturelle des couples homosexuels qui font demande
pour lobtention du statut de rsident permanent au
Canada.
loi vis–vis
* Associate Professor, Faculty of Law, University of Ottawa. The author wishes to thank Laima
Alberings for her editing assistance.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 969
Mode de rfrence : (2004) 49 R.D. McGill 969
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
970
Introduction
I. Gay and Lesbian ImmigrationPast and Present
A. Historical Perspectives
1. Prostitutes, Homosexuals, and Pimps: 1952-1977
2. (Heterosexual) Family Reunification: 1977-1991
3. The Charter to the Rescue: 1991-1994
4. A Kindler, Gentler (and Discretionary) Policy: 1991-2002
B. The 2002 IRPA and IRP Regulations
1. The Basic Framework: Bill C-11
2. A First Attempt: The 2001 Regulations
3. Back to the Drawing Board: The 2002 Regulations
4. The Final Version: The IRPA and the IRP Regulations
II. Problems and Challenges
A. Policy and Drafting Problems with the IRPA and the
IRP Regulations
1. Some Relationships Are More Equal Than Others
2. Give Us Your Truly Persecuted Few
3. Till Heterosexual Death Do Us Part
B. The Application of the IRPA and the IRP Regulations
1. Homophobia 101
2. Bona Fide Homosexualis
3. Persecution: Making the Case
4.
I Take Thee to Be My Civil Union Partner
Conclusion
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1001
1002
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N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
Introduction
Canadian immigration policy has long favoured family reunification. The most
recent legislation, the Immigration and Refugee Protection Act,1 provides that one of
the official objectives of the law is to see that families are reunited in Canada.2 This
goal has been a cornerstone of Canadian immigration policy, and successive laws
have allowed citizens and permanent residents to sponsor members of their family as
immigrants to Canada.3 Individuals sponsored under the family reunification
provisions of the immigration legislation are referred to as family class immigrants.
While family class immigrants have constituted an important part of the historical
and current immigration to Canada,4 until recently Canadian immigration laws
allowed only married, heterosexual Canadians to sponsor their spouses as family class
immigrants. Lesbians and gay men were able to sponsor parents, siblings, and most of
the other family members listed in the family class on equal footing with heterosexual
Canadians and permanent residents.5 The definitions related to conjugal relationships,
like spouse, fianc(e), or marriage, however, historically referred only to
opposite-sex couples.6 Thus, gay men and lesbians were prohibited from sponsoring
their partners as immigrants to Canada.
On 28 June 2002, the IRPA and the Immigration and Refugee Protection
Regulations7 came into effect. The new law and regulations have expanded the family
class to incorporate common law and conjugal partners, in addition to married
spouses. Included in these new provisions are gay and lesbian couples. Indeed, the
new legislative and regulatory scheme sets out the rules concerning the sponsorship of
same-sex partners. For the first time in Canadian immigration history, gay men and
lesbians will be able to formally sponsor their partners.8 In changing its immigration
policy to include same-sex couples, Canada joined several other countries in
extending immigration rights to prospective gay and lesbian immigrants.9
1 S.C. 2001, c. 27, entered into force on 28 June 2002 [IRPA].
2 Ibid., s. 3(1)(d).
3 See Freda Hawkins, Critical Years in Immigration: Canada and Australia Compared (Montreal
and Kingston: McGill-Queens University Press, 1989) at 85-88.
4 In fact, family class immigrants constitute the most significant part of immigration movements to
Canada since 1976: Hawkins, ibid. at 86.
5 See Donald G. Casswell, Lesbians, Gay Men, and Canadian Law (Toronto: Emond Montgomery,
1996) at 567.
6 Ibid. at 567.
7 S.O.R./2002-227 [IRP Regulations].
8 Prior to the coming into force of the IRPA, common-law partners of Canadian citizens or
permanent residents who wished to apply for permanent resident status to reunite with their partner
were considered on humanitarian and compassionate grounds under subsection 114(2) of the former
Immigration Act, R.S.C. 1985, c. I-2 [1985 Act].
9 In addition to Canada, many other countries recognize same-sex couples for immigration
purposes, including Australia, Belgium, Denmark, Finland, France, Iceland, the Netherlands, New
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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The principal categories of immigrants to Canada are independent immigrants,10
business immigrants,11 and family class immigrants. This article is concerned only
with the latter, namely immigrants who qualify for permanent residency as family
members. In addition, it is specifically the situation of gay and lesbian family
members that will be the focus of the analysis, though it is acknowledged that
common law, heterosexual couples were also included in recent changes to
immigration laws. This paper will argue that despite the important progress made in
recognizing gay and lesbian conjugal relationships under the IRPA and the IRP
Regulations, the issue of same-sex immigration remains problematic. This is so for
two reasons. First, the legislative scheme itself still contains policy and drafting
weaknesses that may hinder same-sex immigration. Second, even if the new
legislation offers a better regime than existed previously, gay men and lesbians remain
vulnerable to discriminatory applications of the law if visa officers and judges do not
recognize the political, social, and cultural specificity of gay and lesbian couples who
apply for permanent residency in Canada.
The article is divided into two main sections. Part I reviews historical
discrimination against gay men and lesbians in Canadas immigration laws. In
addition, the first section will describe the legislative developments that led to the
inclusion of same-sex family sponsorship in the IRPA and the IRP Regulations. The
analysis will highlight the federal governments motivations for changing the
permanent residency requirements to include same-sex partners, the interests that
were at stake at the time, and the entitlements or obligations flowing from the new
legislative scheme. Part II examines the ways in which same-sex family immigration
remains problematic under the IRPA and the IRP Regulations. The analysis will first
review the new immigration law and regulations to identify government policy and
drafting choices that disadvantage prospective gay and lesbian immigrants. Second,
the analysis will examine the application of the new law and regulations to same-sex
partners. Here, the focus will be on determining what issues are specific to same-sex
partner immigration, and how they could impact on an immigration officers
assessment of the merits of the application.
Zealand, Norway, South Africa, Sweden, and the United Kingdom. See Brian McGloin, Diverse
Families with Parallel Needs: A Proposal for Same-Sex Immigration Benefits (1999) 30 Cal. W. Intl
L.J. 159 at 172.
10 Independent immigrants are selected for admission in Canada on the basis of specific selection
standards that take into account certain factors including education, age, work experience,
occupational demand, and knowledge of English and French. The elements of the selection criteria
are assigned point values and an applicant must obtain a specific number of points to gain entry into
Canada.
11 Business immigrants are selected based on their ability to become economically established in
Canada. Business immigrants are expected to invest or start businesses in Canada and to support the
development of the Canadian economy.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
I. Gay and Lesbian ImmigrationPast and Present
The following discussion will provide a brief historical review of Canadas
discriminatory immigration policies, as well as examine the recent legislative changes
that purport to put gay men and lesbians on an equal footing with their heterosexual
counterparts.
973
A. Historical Perspectives
1. Prostitutes, Homosexuals, and Pimps: 1952-1977
Canadian immigration law has historically discriminated against gay men and
lesbians.12 Until 1977, homosexuals were listed in the categories of persons to be
excluded from Canada along with prostitutes, … pimps, or persons coming to Canada
for these or any other immoral purposes.13 In 1952, amendments to the Immigration
Act were adopted that, according to Philip Girard, constituted a Canadian response to
Cold War national security concerns.14 The 1952 law identified for the first time
homosexuality as a ground on which someone could be denied entry into Canada.
Gay men and lesbians could not enter Canada as visitors; they could not come to
Canada as immigrants seeking permanent residence; and gay men and lesbians who
managed to enter into Canada were subject to deportation if they were found to have
practice[d], assiste[d] in the practice of or share[d] in the avails of
…
homosexualism.15
2. (Heterosexual) Family Reunification: 1977-1991
The discriminatory provisions of the 1952 Immigration Act were repealed in 1977
and gay men and lesbians were no longer barred from entering the country.16
Canadian immigration law continued, however, to allow only heterosexual Canadians
to sponsor their spouses as family class immigrants.
The exclusion of gay men and lesbians from the family class of immigration laws
was brought to the attention of the Canadian public in a highly publicized case in
1992.17 Two gay menTodd Layland, an American, and Pierre Beaulne, his Canadian
12 See Philip Girard, From Subversion to Liberation: Homosexuals and the Immigration Act 1952-
1977 (1987) 2 C.J.L.S. 1. See also Richard Green, Give Me Your Tired, Your Poor, Your Huddled
Masses (of Heterosexuals): An Analysis of American and Canadian Immigration Policy (1987) 16
Anglo-Am. L. Rev. 139; Casswell, supra note 5 at 564-66.
13 Immigration Act, R.S.C. 1952, c. 325, s. 5(e) [1952 Act].
14 Girard, supra note 12 at 6-9.
15 Ibid. at 11, citing the 1952 Act, supra note 13, s. 19.
16 Immigration Act, 1976, S.C. 1977, c. 52, in force April 10, 1978 (SI/78-70).
17 Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658,
104 D.L.R. (4th) 214 (Div. Ct.).
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partnerwanted to stay together in Canada, but immigration law prohibited Beaulne
from sponsoring Layland as his spouse. In an attempt to meet the definition of
spouse for immigration purposes, they applied for a marriage licence at Ottawa City
Hall, but were denied. They decided to challenge the prohibition against same-sex
marriage before the Ontario courts. While their constitutional challenge on marriage
failed, and the couple decided not to pursue an appeal before the Ontario Court of
Appeal,18 their case brought to light not only the issue of same-sex marriage, but also
the restricted immigration choices facing binational gay and lesbian couples at that
time.19
Given the existing prohibitions, binational same-sex partners were left with few
options. As Donald Casswell points out, in order to stay with their Canadian partners,
lesbians and gay men were forced to spend years as reluctant students on student
visas, endure marriages of convenience in order to obtain permanent residence in
Canada, or even live underground … 20 For many, arranging a mutually beneficial
sham marriage was the only option if same-sex partners wanted to make a life
together in Canada.21 Men and women interviewed as recently as 1993 stated that,
although they were married to an opposite-sex spouse, they were in fact gay and
lesbian.22 They opted to enter into heterosexual marriages of convenience because,
under Canadian immigration regulations, spouse was restricted to partners of the
opposite-sex who were joined in marriage.
3. The Charter to the Rescue: 1991-1994
With the introduction of the Canadian Charter of Rights and Freedoms,23 gay
men and lesbians seriously considered constitutional challenges to the exclusion of
same-sex couples in Canadian immigration law. In December 1991, several
Canadians with foreign partners came together to form a national lobby group called
the Lesbian and Gay Immigration Task Force (LEGIT).24 Soon after, individual
Canadians filed claims before the courts. In January 1992, Canadian Christine
18 Leave to appeal was granted by the Ontario Court of Appeal (7 June 1993) but the appeal was
withdrawn in 1995: Kathleen A. Lahey, Are We Persons Yet?: Law and Sexuality in Canada
(Toronto: University of Toronto Press, 1999) at 399, n. 65.
19 Layland was not able to extend his work permit during the court case and was forced to return to
Seattle before the issue was resolved. Beaulne moved to Vancouver to be closer to his partner. See
Christopher Dueas, Coming to America: The Immigration Obstacle Facing Binational Same-Sex
Couples, Note (2000) 73 S. Cal. L. Rev. 811 at 830-31. Within a few years, the couple had separated
under the strain of living in separate countries.
20 Casswell, supra note 5 at 568.
21 See Colin Leslie, Unwelcome to Canada Xtra! (April 1993) 11 [Leslie, Unwelcome]. For a
discussion of sham marriages in the United States, see Dueas, supra note 19 at 826-27.
22 See Leslie, Unwelcome, ibid.
23 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
24 The group is dedicated to ending discrimination against same-sex partners in Canadian
immigration law. See online: LEGIT
975
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
Morrissey, a founder of LEGIT, commenced proceedings in the Federal Court,
arguing that Immigration Canadas refusal to process her application to sponsor her
Irish-American partner Bridget Coll constituted discrimination on the basis of sexual
orientation.25 In another case, Canadian Andrea Underwood sought to sponsor her
British partner Anna Carrott. When immigration officials refused to even consider
Underwoods application, she launched an action in Federal Court in 1992.
Underwood claimed that she was being discriminated against on the basis of sexual
orientation and family status, in violation of the Charter.26 Finally, in 1993, several
lesbian and gay Canadians asked the Canadian Human Rights Commission to
investigate their claims of discrimination after Canadian immigration officials refused
to recognize their conjugal relationships.27
Immigration
The Department of Employment and
(Department or
Immigration)28 settled the constitutional litigation by granting permanent resident
status to the partners of Canadians who had launched the constitutional appeals in
order to avoid court rulings that could rewrite the family reunification provisions.29
Thus Christine Morrisseys partner, Bridget Coll, was landed as an independent
applicant in October 1992.30 Anna Carrott was allowed to stay as a permanent resident
in 1994, three years after her partner, Andrea Underwood, initially applied and at a
time when the constitutional challenge was still to be heard.31 Underwoods lawyer,
Marcel LaFlamme, stated that immigration officials were afraid to lose … and this
25 See EGALE, Outlaws & Inlaws: Your Guide to LGBT Rights, Same-Sex Relationships and
Canadian Law (Ottawa: EGALE, 2003) at 108. See also Casswell, supra note 5 at 569.
26 Matthew Martin, Yukon Couples Wins Immigration Permit Angles (April 1992) 7.
27 See Outlaws & Inlaws, supra note 25 at 108. See also Cindy Filipenko, Immigration Permits
Denied to Gay and Lesbian Couples Xtra! West (December 1994); Casswell, supra note 5 at 570.
28 The department was called the Department of Employment and Immigration until 1994, when
it was changed to the Department of Citizenship and Immigration. This paper will use the name in
effect at the time of the events described.
29 See Lahey, supra note 18 at 142.
30 Soon after the lawsuit was filed, immigration officials asked Coll to fill out an application under
the independent class, ostensibly for the purposes of the lawsuit. That form was then quickly
processed, apparently by the Consul General in Seattle personally, to grant her residency status, not as
a sponsored family class member, but as an independent immigrant. See Outlaws & Inlaws, supra
note 25 at 108; Aaron A. Dhir, Same-Sex Family Class Immigration: Is the Definition of Spouse in
Canadas Immigration Regulations, 1978 Unconstitutional (2000) 49 U.N.B.L.J. 183 at 209. In fact,
Coll was not even asked to attend what is usually a required interview with an immigration officer:
see Casswell, supra note 5 at 569. Morrissey and Colls lawyer, Robert Hughes, stated that this was
the federal governments way of sidestepping the messy issue of gay and lesbian rights in the
immigration context: John A. Yogis, Randall R. Duplak & J. Royden Trainor, Sexual Orientation
and Canadian Law: An Assessment of the Law Affecting Lesbian and Gay Persons (Toronto: Emond
Montgomery, 1996) at 98.
31 In Carrotts case, the national headquarters of the Department of Citizenship and Immigration
directed local immigration officials to deal favorably with the sponsorship application. See Michael
Battista, Immigration Battle Is Won Xtra! (25 October 1994); Same-sex Couple Win Immigration
Fight The Citizen (3 September 1994).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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case is very strong.32 The federal government was thus able to avoid successive legal
challenges to the immigration law and regulations that excluded gay and lesbian
families.
[Vol. 49
4. A Kindler, Gentler (and Discretionary) Policy: 1991- 2002
In 1991, the Department of Employment and Immigration also began a
practice of granting same-sex partners entry into Canada under the discretion to take
compassionate and humanitarian considerations into account.33 These grounds
enable a waiver of the usual selection criteria in specific cases. The first application of
this approach came on 20 April 1991. Then Minister of Employment and
Immigration, Barbara McDougall, granted permanent residency on humanitarian and
compassionate grounds to a foreign national who was the same-sex partner of a
Canadian living in Alberta.34
In April 1993, the Minister of Employment and Immigration delegated the
authority to grant same-sex partner applications on the basis on humanitarian and
compassionate grounds to program officers in visa offices abroad.35 Then, in June
1994, the policy was further strengthened when the Department officially recognized
that the separation or continued separation of same-sex couples and heterosexual
common-law partners may cause undue hardship and therefore constituted grounds
for exercising the broad and discretionary humanitarian and compassionate
decision-making criterion under the Immigration Act. This new policy direction was
contained in a telex, titled Processing of Same Sex and Common Law Cases, which
was sent to program managers in Canadian embassies and consulates around the
world.36
Immigration officers were directed to assess whether the relationships were bona
fide, whether they met undefined requirements of duration and stability, and check
that they were not entered into primarily for the purposes of gaining admission into
Canada.37 The new policy also directed immigration officers to process all lesbian
and gay sponsorships as independent applications. If the same-sex partner did not
32 Battista, ibid.
33 1985 Act, supra note 8, s. 114(2).
34 The author was responsible for this file while working as a legislative assistant in the House of
Commons from 1987-1993. This 1991 case was never publicized but it constituted the first time that
the humanitarian and compassionate grounds were used to recognize the hardship caused to a
Canadian separated from his gay partner. It is interesting to note that Minister Barbara McDougall
approved this application as one of her final acts as Minister of Employment and Immigration; she
was shuffled to another ministerial position on 21 April 1990, one day after the approval was granted.
35 See Outlaws & Inlaws, supra note 25 at 108-109.
36 M. Davidson, Department of Citizenship and Immigration Canada, Processing of Same Sex and
Common Law Cases, REF ORD0150 (3 June 1994) (telex, on file with author) [Processing of
Same Sex Cases].
37 Outlaws & Inlaws, supra note 25 at 109. See also Processing of Same Sex Cases, ibid. at para. 5.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
meet the points requirement for landing as a member of the independent class,
officials were to then determine whether separation or continued separation of bona
fide same-sex couples created undue hardship and was grounds for exercising
humanitarian and compassionate discretion.38
977
Moreover, the 1994 telex provided that the same humanitarian and compassionate
considerations were to apply to the accompanying same-sex partner of a person
granted a visitor or immigrant visa to Canada. Missions were instructed to use the
humanitarian and compassionate grounds to facilitate the admission of an otherwise
unqualified applicant who is involved in a same-sex or common-law relationship with
an individual who, in their own right, qualifies for immigration under any category.39
This ensured that a person to whom a visitor or immigrant visa was issued would be
permitted to be accompanied by his or her same-sex partner.
While the implementation of the policy relied on the use of discretionary powers
granted to individual visa officers, it was nevertheless an effective practice if viewed
from the perspective of the binational couples who applied for compassionate and
humanitarian consideration. It was reported that, within a year of the adoption of the
policy, more than sixty couples had successfully used these grounds to obtain
residency for a gay or lesbian partner.40
This new immigration practice was, however, criticized by lesbian and gay rights
activists, immigration advocates, and lawyers for being too discretionary, arbitrary,
and lacking in transparency. The discretionary character with which the humanitarian
and compassionate policy was applied raised questions of potential discrepancies
among petition approvals.41 Donald Casswell pointed out that the homophobia of
particular visa officers may have unfairly affected their assessment of an application,
for instance, in their evaluation of the bona fides of a gay or lesbian relationship.42
Deborah McIntosh argued in support of that same point when she stated that [t]he
fact that a humanitarian and compassionate immigration official may well be neither
of those, or overly ethnocentric, means that there is little chance of success,
particularly for homosexuals … 43
Rob Hughes, an immigration and refugee lawyer in Vancouver, described the
policy as a discretionary remedy that can be taken away with a stroke of the pen.44
LEGIT further claimed:
38 Processing of Same Sex Cases, ibid.
39 Ibid. at para. 8.
40 See Battista, supra note 31.
41 McGloin, supra note 9 at 172.
42 Casswell, supra note 5 at 560.
43 Deborah McIntosh, Defining FamilyA Comment on the Family Reunification Provisions in
the Immigration Act (1988) 3 J.L. & Soc. Poly 104 at 110.
44 Filipenko, supra note 27.
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Canada now allows the immigration of same-sex partners, but under the worst
possible set of procedures. There are no rules. There are no appeals. There are
no rights. There is no assurance of consistency of decision making by the
program managers and visa officers in the various embassies and consulates.
There is no openness, no transparency, no publicity. If someone goes into an
embassy or consulate in Paris or Atlanta are they likely to get accurate
information about the possibilities of a Canadian sponsoring their lesbian or
gay partner? Or will they get a standard form document which indicates that
they do not qualify for family class sponsorship; a document which explains
nothing about what can occur on humanitarian grounds.45
Lawyer Mary Joseph cautioned that [W]e have won a battle, but not the war.46
Joseph, along with many other commentators, believed that the bigger battle
involved taking away the discretionary power given to immigration officers to make
family reunification for gay men and lesbians part of the law like it is for married
heterosexual couples.47
Similar concerns were raised by the Immigration Legislative Review Advisory
Group (Advisory Group) in its 1997 report titled Not Just Numbers: A Canadian
Framework for Immigration.48 The Advisory Group expressed concern that gay and
lesbian applicants are reliant upon the less than uniform application of unpublicized
administrative directives.49 In recommending that the definition of spouse be
amended to include same-sex couples, the Advisory Group stated that the goal of the
family reunification provisions should be transparency, fairness and equality of
treatment, and [that] these must be enshrined in law.50 This recommendation echoed
one made in 1994 by participants to a national consultation on the immigration of
family members who urged the government to grant gay men and lesbians
immigration sponsorship rights equal to those of heterosexual married couples.51 For
many immigration advocates, it was time to expand the definition of family to
reflect both the evolving concept of family in Canadian domestic law, and the
45 Dhir, supra note 30 at 211, citing LEGIT, Taking the Next Step: A Brief to the Honorouble
Sergio Marchi, Minister of Immigration (12 November 1993) [unpublished] [LEGIT Brief]. See also
Outlaws & Inlaws, supra note 25 at 109, quoting the LEGIT Brief.
46 Ailsa Craig, Relationship Sustained in Six-Month Spurts Xtra! (21 July 1995).
47 Ibid.
48 Immigration Legislative Review, Not Just Numbers: A Canadian Framework for Future
Immigration (Ottawa: Minister of Public Works and Government Services Canada, 1997) [Not Just
Numbers].
49 Ibid. at 43.
50 Ibid.
51 Participants also felt that family sponsorship rights should be granted to de facto opposite-sex
couples: Citizenship and Immigration Canada and Refugee Law Research Unit, Report of the
National Consultation on the Immigration of Family Members (Toronto: Centre for Refugee Studies,
York University, 1994) at 3.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
concept of extended family long recognized in other cultures and increasingly a part
of Canadian life.52
979
Finally, while legitimate gay and lesbian partners who applied abroad were
almost always successful in obtaining residency on humanitarian and compassionate
considerations, a problem soon arose with regard to the inland determination process
under which some gay men and lesbians applied to sponsor their partners. Under the
Immigration Act in effect at the time, a person seeking permanent resident status in
Canada was required to apply from outside Canada.53 This requirement could,
however, be waived on humanitarian or compassionate grounds.54 In 1994,
Immigration officials confirmed that inland determination had become an issue of
concern for the Departmentand not just for gay and lesbian couples. A decision was
made to move away from inland determination to eliminate backlogs and avoid an
influx of applications.55 Several lesbian and gay foreign nationals, already living in
Canada with their partners, were denied landed status and told to leave the country.56
They, in turn, considered filing legal challenges to the Immigration Act charging
discrimination in violation of the Charter.57
It appeared that the dual strategy of the government was failing. The adoption of a
discretionary mechanism to deal with gay and lesbian family sponsorship was viewed
as a half measure lacking in transparency, consistency, and fairness by gay, lesbian,
and immigration advocates. Furthermore, the policy of granting landing to individuals
launching Charter challenges provided the government with temporary relief only
from what seemed to be an inevitable constitutional lawsuit.
In response, then Immigration Minister Lucienne Robillard announced in January
1999 proposed changes to the immigration law and regulations to include lesbian and
gay partners in the family class provisions.58 Interestingly, her announcement came at
52 McIntosh, supra note 43 at 107 [footnotes omitted]. See also Not Just Numbers, supra note 48 at
42-43.
53 1985 Act, supra note 8, s. 9(1).
54 See Casswell, supra note 5 at 573.
55 See Filipenko, supra note 27. Padraic Brake, Marchi Buckles Under: No More Ministerial
Permits Issued, Lawyer Says Xtra! (9 December 1994) 13.
56 The immigration department refused Kristin Rupperts application for permanent resident status
and she was ordered out of the country despite her long-term relationship with a Canadian national,
E.B. Brownlie. See Colin Leslie, No Undue Hardship, Letter Says Xtra! (9 December 1994 ) 13
[Leslie, Undue Hardship]. In another case, Marco Tarelho, a Brazilian national, was also turned
down despite his five-year relationship with Blair Boyle, a Canadian man. But their lawyer was able
to overturn the refusal when she went above the case officers head (Craig, supra note 46).
57 Kristin Ruppert and her partner filed a claim in the Federal Court of Canada charging that the
Immigration Act was discriminatory. See Leslie, Undue Hardship, ibid.
58 In January 1999, the minister released a departmental white paper on the immigration and
refugee systems. The paper called for fair treatment of common-law and same-sex couples in the
immigration law and regulations: Refusing permanent residence does not simply deny a benefit to
the … same-sex partner, but may effectively deny Canadians the right to live with their life partners …
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
980
the same time as a court challenge was launched against the federal government
seeking changes to fifty-eight federal statutes, including the immigration law, that
discriminated against gay men and lesbians.59
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B. The 2002 IRPA and IRP Regulations
1. The Basic Framework: Bill C-11
The Minister of Citizenship and Immigration tabled Bill C-11, An Act respecting
immigration to Canada and the granting of refugee protection to persons who are
displaced, persecuted or in danger60 in the House of Commons on 21 February 2001.
As framework legislation, Bill C-11, which became the IRPA, set out the principles
and the components of the immigration system, while the procedures, exceptions, and
other administrative details were to be provided for in regulations.61 The proposed bill
maintained the immigration policy of family reunification. It provided that a
Canadian citizen or permanent resident may, subject to the regulations, sponsor a
foreign national who is a member of the family class.62 Family class is defined as
follows:
12. (1) A foreign national may be selected as a member of the family class
on the basis of their relationship as the spouse, common-law partner, child,
parent or other prescribed family member of a Canadian citizen or permanent
resident.63
While the minister made it clear when the new legislation was introduced that same-
sex couples were to be recognized as common-law partners under the new act, the
actual definition of common-law partner was set out in proposed regulations
presented on 15 December 2001.64
The recognition of common-law and same-sex relationships through regulatory changes would
eliminate the recourse to discretionary administrative guidelines: Citizenship and Immigration
Canada, Building on a Strong Foundation for the 21st Century: New Directions for Immigration and
Refugee Policy and Legislation (Ottawa: Minister of Public Works and Government Services Canada,
1998) at 25.
59 See Dhir, supra note 30 at 185. The lawsuit was filed by the Foundation for Equal Families, a
gay and lesbian rights group. The federal government was also forced to act after the Supreme Court
of Canada decided, in M. v. H., [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577 that the Charter mandated
governments to treat gay and lesbian couples on an equal footing with opposite-sex common-law
partners.
60 1st Sess., 37th Parl., 2001 (as passed by the House of Commons 13 June 2001) [Bill C-11]. The
Minister of Citizenship and Immigration at that time was the Hon. Elinor Caplan.
61 Immigration and Refugee Protection Regulations: Regulatory Impact Analysis Statement, C.
Gaz. 2001.I.4477 [2001 Impact Analysis].
62 Bill C-11, supra note 60, cl. 13(1).
63 IRPA, supra note 1.
64 Proposed Regulatory Text: Immigration and Refugee Protection Regulations, C. Gaz.
2001.I.4577 at 4588 (cl. 1(1)) [Proposed Regulations].
2004]
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
981
2. A First Attempt: The 2001 Regulations
The Regulatory Impact Analysis that accompanied the 2001 proposed regulations
identified three purposes for the new provisions on family reunification. The
regulations were to ensure that:
the process and criteria by which members of the family class are selected
are clear and transparentthis includes the requirements and obligations of
sponsors;
current social realities are taken into account in the defining of family class
membership; and
legislation is consistent with other legislation or principles to which Canada
is committed.65
In meeting these objectives, the regulations introduced provisions that allowed
common-law partners to be sponsored as members of the family class. The proposed
regulations defined common-law partner as an individual who is cohabiting with
the person in a conjugal relationship, having so cohabited for a period of at least one
year.66 The only exception to the cohabitation requirement was for couples unable to
cohabit due to persecution or any form of penal control.67 In addition, the
regulations created a new category of individuals, intended common law partners,
that was to include heterosexual and same-sex couples in bona fide relationships who
were unable to cohabit.68 The intended common-law partners, along with intended
fianc(e)s, were excluded from the family class, but they could be considered for
immigration on humanitarian and compassionate grounds.
The Minister of Immigration explained the inclusion of the cohabitation
requirement in the definition of a common-law partner as necessary to make the
regulations consistent with the terminology used in the Modernization of Benefits and
Obligations Act.69 As stated in the Regulatory Impact Analysis, the regulations were to
be consistent with other legislation.70 The Modernization Act extends rights and
obligations to gay and lesbian couples, as long as they have cohabited in a conjugal
relationship for one year.
It may also be that the Department of Citizenship and Immigration settled on the
cohabitation requirement because the definition of gay and lesbian partnerships was
65 2001 Impact Analysis, supra note 61 at 4536.
66 Proposed Regulations, supra note 64 at 4588 (cl. 1(1)).
67 Ibid. (cl. 1(2)).
68 Ibid. at 4636.
69 S.C. 2000, c. 12 [Modernization Act]. See Canada, House of Commons, Standing Committee on
Citizenship and Immigration, Committee Evidence, 37th Parl., Meeting No. 45 (5 February 2002), at
56, online: Parliament of Canada
70 2001 Impact Analysis, supra note 61 at 4536.
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
982
bedevilling federal immigration officials … 71 Indeed, in drafting the regulations,
officials struggled between finding a foolproof way for gay men and lesbians to prove
they were in a legitimate relationship and the reality that persecution in many
countries forces gays to live underground, making it impossible for them to collect
the documentation required to demonstrate a legitimate partnership.72 The definition
proposed in the 2001 regulations appeared to strike a balance between these two
opposing realities by setting a general rule requiring a one-year cohabitation, while at
the same time providing for exceptions in cases where cohabitation was not possible
due to persecution or any form of penal control.
The proposed definition of common-law partner immediately attracted
criticism. First, neither Bill C-11 nor the proposed regulations actually specified that
same-sex partners were included in the definition of common-law partners. In its
brief to the House of Commons Standing Committee on Citizenship and Immigration
(Standing Committee), EGALE, a national gay and lesbian rights advocacy group,
expressed concerns that the definition, as it then stood, was not accessible and
transparent.73 In many foreign jurisdictions, where individuals would be seeking
information about Canadas immigration laws, it would not be a natural assumption to
define a common-law partner as including gay men and lesbians.74
A second, and more important, concern focused on the cohabitation requirement.
It was seen as an unrealistic criterion in the immigration context, since couples of
different nationalities in a bona fide relationship often cannot cohabit for a wide
variety of reasons including not only persecution or penal control, but also for
cultural, social, financial, religious, and other factors.75 LEGIT and EGALE both
appeared before the Standing Committee to argue that the cohabitation requirement,
and the limited exceptions to it, were inappropriate in the immigration context.76
Christine Morrissey stated that the main obstacle to people reaching a cohabitation
requirement … is the immigration rules and regulations themselves.77 Interestingly,
under the previous humanitarian and compassionate policy, same-sex partners were
not subject to a mandatory cohabitation requirement. LEGIT estimated that seventy-
five per cent of the same-sex partners who obtained entry in Canada under
71 Brian Laghi, Ottawa Puzzles Over Gay Immigration The Globe and Mail (22 May 1999) A7.
72 Ibid.
73 EGALE Canada, EGALE Submissions to House of Commons Standing Committee on Citizenship
and Immigration: Re Immigration Regulations (February 2002) at 6 [EGALE Brief].
74 Ibid.
75 Ibid. at 7-10.
76 Committee Evidence, supra note 69 at 39.
77 Ibid.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
humanitarian and compassionate considerations did not meet
cohabitation requirement.78
983
the one-year
In addition, EGALE was of the view that the drafting of the definition was
vulnerable to constitutional challenges given that cohabitation was not a requirement
for married spouses. Christine Morrissey of LEGIT made the same point in her
testimony on behalf of LEGIT to the Standing Committee:
Theres one significant difference between the majority of heterosexual
common-law couples and all of same-sex couples, and that is that we do not
have the benefit of marriage at this time. For an opposite-sex heterosexual
couple, they can cut through all of this by marrying, for the majority. For us,
none of us can do that. So we have the compounding of the very strict
definition with very narrow exceptions, compounded by the fact that we have
no other option.79
Heterosexual couples could avoid the one-year cohabitation requirement by simply
getting married, but marriage was not yet an option for gay men and lesbians.80
The intended common-law category was not deemed a sufficient solution for
couples who could not meet the cohabitation requirement for reasons other than
persecution or penal control. Under the proposed regulations, immigration officials
could use the humanitarian and compassionate grounds to grant residency to gay and
lesbians couples who do not meet the criteria for other classes of applications.81 A
concern was raised, however, that humanitarian and compassionate grounds would
remain the norm for the processing of same-sex applications, as a large number of
partners are unable to meet the one-year cohabitation requirement. John Fisher, then
of EGALE, testified before the House of Commons Committee on Citizenship and
Immigration that [t]he humanitarian and compassionate process is discretionary and
arbitrary, there is no right of appeal from a refusal, and there is no exemption from the
excessive medical demands provision, as there is under the family class.82 Thus, the
proposed regulations continued the policy of subjecting the immigration of gay men
and lesbians to a discretionary exercise of authority, with all the same disadvantages it
had entailed when humanitarian and compassionate grounds previously governed
same-sex sponsorships.
78 Ibid. at 40. In fact, MP Steve Mahoney, a member of the committee, observed that most of the
MPs in this room would not qualify under the cohabitation ruleswhen you live in Ottawa eight
months of the year (ibid. at 54).
79 Committee Evidence, supra note 69 at 41.
80 See EGALE Brief, supra note 73 at 8-9.
81 Proposed Regulations, supra note 64 at 4636 (cl. 109).
82 EGALE Brief, supra note 73 at 2.
984
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[Vol. 49
3. Back to the Drawing Board: The 2002 Regulations
The
received
feedback
from public consultations and
specific
recommendations from the House of Commons Standing Committee on Citizenship
and Immigration83 led the minister to amend the regulations.84 The new regulations
were finalized and published in a special 14 June 2002 edition of the Canada
Gazette.85 The Regulatory Impact Analysis specifies explicitly that the proposed
regulations enable the sponsorship of a common-law partner or a conjugal partner,
which may include sponsorship of a partner of the same-sex as well as stating that
the Regulations are sensitive to the reality that in some countries same-sex couples
are not able to live together.86
the
To deal with the concerns raised about the mandatory cohabitation requirement
for common law spouses, a further categoryconjugal partnerwas added to the
regulations. A person in this new immigration class is defined, by section 2 of the IRP
Regulations, as: in relation to a sponsor, a foreign national residing outside of
Canada who is in a conjugal relationship with the sponsor and has been in that
relationship for a period of at least one year.87 Thus, the discretionary deemed
common-law partner category was withdrawn in favour of a new class of
immigrants. The one-year cohabitation requirement was maintained for common-law
partners, except in the case of persecution or penal control, as provided for in the
2001 proposed regulations, while the definition of a conjugal partner requires a
relationship of at least a one-year duration. Conjugal partners are not relegated to
discretionary humanitarian and compassionate grounds, but rather constitute a
separate class of sponsored immigrants.
4. The Final Version: The IRPA and the IRP Regulations
The IRPA and the amended regulations finally came into effect on 28 June 2002.
Taken together, the IRPA and the IRP Regulations have expanded the category of
83 Canada, House of Commons, Standing Committee on Citizenship and Immigration, Building a
Nation: The Regulations Under the Immigration and Refugee Protection Act (March 2002) [Building
a Nation]. For instance, in Recommendation 33, the Standing Committee believed the the allowable
reasons for excusing common-law partners from cohabiting should be expanded beyond persecution
and penal control (at 21). In Recommendation 34, the Standing Committee suggested that
cohabitation should only be one factor in determining the genuineness of a common-law relationship
and the definition of common-law partner … should be changed accordingly. In Recommendation
35, the Standing Committee was of the view that the definition of common-law partner … should
state that a partnership may be of the opposite-sex or of the same sex.
84 See Minister of Citizenship and Immigration, Government Response to the Report of the
Standing Committee on Citizenship and Immigration (June 2002), online: Citizenship and
Immigration Canada
85 IRP Regulations, supra note 7.
86 Regulatory Impact Analysis Statement, C. Gaz. 2002.II.177 at 258.
87 Supra note 7.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
individuals who can immigrate or be sponsored for permanent residency to Canada.
Whereas the previous legislation afforded the benefits of immigration to Canada only
to married heterosexual partners, except for the discretionary use of humanitarian and
compassionate considerations, the IRPA and the IRP Regulations have been expanded
to include many more intimate relationships. Thus, Canadian immigration laws now
recognize three kinds of conjugal relationships: spouses, common-law partners, and
conjugal partners.
985
The term spouse is not defined in either the act or the regulations; however, in
the context of immigration, it refers to persons who are married. The regulations
require that a foreign marriage be valid both under the laws of the jurisdictions
where it took place and under Canadian law.88
A common-law partner is defined in the regulations as an individual who is
cohabiting with the person in a conjugal relationship, having so cohabited for a period
of at least one year.89 The regulations also provide that the definition of a common-
law partner includes an individual who has been in a conjugal relationship with a
person for at least one year but who is unable to cohabit with the person, due to
persecution or any form of penal control.90
Both spouse and a common-law partner are included in the family member
class,91 which means that they may be considered as dependents of an individual
applying to immigrate to Canada. Spouses and common-law partners are thus eligible
for permanent residency by virtue of their relationship with the Canadian sponsor
(qualifying them as members of the family class) or by virtue of their relationship
with another person (qualifying them as a family member for the member of the
family class), which means that they may be included as dependents of an individual
applying to immigrate to Canada.
A conjugal partner will not be recognized in a relationship where there is no
Canadian partner. In this way, contrary to spouses or common-law partners, conjugal
partners are not members of any other class of persons who may become permanent
residents. Conjugal partners are only eligible for permanent residency by virtue of
their relationship with the sponsor (qualifying them for the member of the family
class) and not with any other person.92
The IRP Regulations exclude any bad faith relationshipsthat is, relationships
that are not genuine or [were] entered into primarily for the purpose of acquiring any
88 Ibid., s. 2.
89 Ibid., s. 1(1).
90 Ibid., s. 1(2).
91 Ibid., s. 1(3).
92 See Anna Colaianni, Members of the Family Class: Common-Law Partners and Conjugal
Partners Paper presented to the Citizenship and Immigration Law Conference, IRPA: Theory vs.
Practice, Canadian Bar Association (2-3 May 2003) at 13 [unpublished].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
986
status or privilege under the Act.93 All three categories of conjugal relationships are
subject to this restriction. Of concern are relationships where the evidence establishes
that the partners do not intend to continue their relationship once immigration status
has been obtained.94
[Vol. 49
The new immigration law and regulations represent a significant shift in Canadian
policies toward lesbian and gay family immigration. Gay men and lesbians are now
officially permitted by the family reunification provisions of the immigration law to
sponsor their partners. Indeed, all three categories of conjugal relationships listed in
the IRP Regulations potentially include same-sex partners. A more transparent and
equitable regime has been established to process the applications of women and men
wishing to be united in Canada with their same-sex partners.
Yet, as the next section will argue, there are many ways in which same-sex
partner immigration remains problematic. Certainly, applications from same-sex
couples will have to be determined according to the same legal test as heterosexual
cases. All levels involved in deciding on gay and lesbian immigration applications
namely, visa officers, the Immigration Appeals Division of the Immigration and
Refugee Board (IAD), and ultimately, the Federal Courtwill determine for the
purposes of the IRPA the bona fides of the relationship, the conjugal nature of the
relationship, and the duration of the relationship for all applicants. In many ways,
however, lesbian and gay sponsorship applications continue to present unique issues
and challenges.
II. Problems and Challenges
A. Policy and Drafting Problems with the IRPA and the IRP Regulations
In this section, the shortcomings of the IRPA and IRP Regulations will be
examined. While both the act and the regulations were subjected to significant public
and parliamentary scrutiny, the government did not respond to all these concerns
when it amended the IRP Regulations.
1. Some Relationships Are More Equal Than Others
While the minister redrafted the immigration regulations after receiving strong
criticisms of the 2001 proposals, it must be underlined that the final version of the
regulations did not address a fundamental critique. The regulations maintain
cohabitation as a mandatory requirement for common-law couples.
The insistence that common-law couples be required to cohabit remains a
problem for many reasons. First, it remains true that many binational couples will not
93 IRP Regulations, supra note 7, s. 4.
94 See Colaianni, supra note 92 at 19-21.
987
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
be able to meet this requirement, in large part because of immigration barriers. While
most heterosexual couples can opt to get married, and therefore get around the
cohabitation requirement, this option is not easily available to gay men and lesbians,
as will be discussed later in the article. Because of their inability to marry, they will
have to apply under the new category of conjugal partner. But unlike spouses and
common-law partners, conjugal partners can only immigrate if they are in a
relationship with a Canadian citizen or a permanent resident. A conjugal partner
cannot be included as a dependent of an individual applying to immigrate to Canada.
A disadvantage is thus created, and in effect, a hierarchy of personal relationships is
established in the regulations. Spouses do not need to live together for a year and they
are members of the family class; common-law partners must cohabit but they are also
members of the family class; finally, conjugal partners need not cohabit but they are
not members of the family class.
In addition
to being unnecessarily complicated and hierarchical,
this
categorization of personal relationships does not reflect the approach taken by the
courts when assessing the conjugality of a relationship. In M. v. H., the Supreme
Court identified the characteristics of a conjugal relationship.95 The Court did not
single out cohabitation as more determinative than other factors. Rather, it identified
shelter, sexual and personal behavior, services, social activities, economic support
and children, as well as the social perception of the couple as the full range of factors
to be examined when considering the conjugality of a personal relationship.96
Witnesses before the Standing Committee urged the government to maintain the
comprehensive approach adopted by visa officers working under the 1994
humanitarian and compassionate policy where cohabitation was not favoured as a
criterion over other evidence of conjugality. Michael Battista, lawyer for EGALE,
argued the following:
[T]he way the system works right now is very much consistent with the
Supreme Courts decision. What an immigration officer does is look at all the
evidence thats been submitted on the relationshiptestimonials from friends
and family, any evidence of cohabitation, any joint property assets. They look
at the total picture of what has been submitted to them and they base the
decision on that. And its been working well for many years.97
Battista went as far as to suggest that maintaining cohabitation as a mandatory
requirement made the regulations highly subject to legal challenge.98
LEGIT proposed that all conjugal relationships be assessed according to the same
criterion: that individuals be involved in a genuine conjugal relationship of at least
one-year duration. The Standing Committee agreed, recommending that the primary
95 Supra note 59.
96 Ibid. at paras. 59-60.
97 Committee Evidence, supra note 69 at 46.
98 Ibid. at 45.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
988
test for a common-law partnership would be whether or not the conjugal relationship
is bona fide and has continued for at least one year.99 Members of the committee
further suggested that cohabitation should be only one element among others that
serve to prove the genuineness of the relationship.100
[Vol. 49
The governments
insistence on retaining cohabitation as a mandatory
requirement is difficult to understand. Officials stated that it was considered essential
to maintain a definition of common-law that was consistent with all other federal
statutes.101 The Modernization Act defines common-law partners as living in a
conjugal relationship and having cohabited for at least one year. The federal
government has not shifted from its position, despite the repeated criticisms the
mandatory cohabitation criterion received from witnesses before the Standing
Committee on Citizenship and Immigration.
The position of the government is not, however, defensible. First, the proposed
definition of a common-law partner is already inconsistent with the Modernization
Act. It allows for exceptions to the cohabitation requirement in cases of persecution or
penal control, exceptions not found in other federal statutes. In fact, the inclusion,
from the very start, of exceptions to the cohabitation requirement appears to be an
admission by the government that the immigration context cannot be assimilated to
other domains of federal regulation. This, in fact, was the position put forth by several
witnesses who testified before the Standing Committee. Given this implicit admission,
it is hard to understand why federal officials did not take more seriously the calls for a
different definition of common-law partner for immigration purposes. While
immigration officials are of the view that the issue was resolved by the addition of
conjugal partners, this remains an inadequate response, as the new class of conjugal
partners was established as a more limited immigration class than spouses or
common-law partners.
Not enough time has elapsed since the IRPA and the IRP Regulations were
enacted to be able to assess their impact. It will, however, be important to monitor
developments in the next few years to see if, as the Standing Committee on
Citizenship and Immigration suggests, a mandatory cohabitation requirement is
bound to produce unfair results in some circumstances.102
2. Give Us Your Truly Persecuted Few
As mentioned above, the immigration regulations provide that if one partner is
unable to cohabit with the other due to persecution or any form of penal control, the
partner may be considered a common-law partner for the purposes of the visa
99 Building a Nation, supra note 83 at 21.
100 Ibid.
101 See Committee Evidence, supra note 69 at 56.
102 Building a Nation, supra note 83 at 21.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
application. Neither persecution nor penal control is defined in the IRPA nor the
IRP Regulations. But in the refugee context, persecution has been interpreted by the
courts to mean repeated or systemic infliction of serious harm or treatment which
compromises or denies basic human rights.103 Penal control may refer to
punishment usually state sanctioned or tolerated which constricts the liberty of the
person.104
989
Despite progress made in several countries, the human rights situation for sexual
minorities around the world continues to be bleak, and while some countries are safer
than others, there are no truly safe havens for gay men and lesbians.105 In many
countries, homosexuality is diagnosed as a mental disease by the medical profession,
penalized as a crime by the law, and condemned as a sin by religious institutions.
Some states continue to execute individuals because they are homosexuals. In other
countries, while executions are not the norm, criminalization of consensual same-sex
relations is still relatively common. Even when not criminalized, gay men and
lesbians are provided with little protection from harassment and persecution, or
homosexuality is treated as a disease. Most countries do not extend protection against
discrimination in the workforce to lesbians and gay men. Government restrictions
have also been placed on the freedom of expression of lesbians and gay men, and
community publications have regularly been shut down. Gay and lesbian groups have
also been consistently denied the right to freedom of assembly.
Moreover, gay men and lesbians often face persecution or penal sanctions as a
result of their conjugal relationships. In certain cultures, what constitutes unacceptable
transgressions of gender and social norms can be very broad, including the choice of
two men or two women to live together and the refusal to marry or have children. For
instance, several refugee claimants, including gay men, speak of the pressure to
marry, and in some cases, claimants were actually forced into arranged marriages.106
103 Colaianni, supra note 92 at 11-12.
104 Ibid. at 17.
105 For reports on human rights violations against sexual minorities, see Amnesty International,
Human Rights and Sexual Orientation and Gender Identity, AI Index: ACT 79/001/2004 (March
2004), online: Amnesty International,
Silence: Torture and Ill-Treatment Based on Sexual Identity (London: Amnesty International, 2001);
Amnesty International, Breaking the Silence: Human Rights Violations Based on Sexual Orientation
(London: Amnesty International, 1997); Rachel Rosenbloom, ed., Unspoken Rules: Sexual
Orientation and Womens Human Rights (London: Cassell, 1996).
106 See Re F.I.N., [1995] C.R.D.D. No. 151 (I.R.B.) (QL); Re L.U.M., [1996] C.R.D.D. No. 193
(I.R.B.) (QL); Re O.P.K., [1996] C.R.D.D. No. 88 (I.R.B.) (QL) [O.P.K.]; Re G.U.S., [1996] C.R.D.D.
No. 239 (I.R.B.) (QL); Re O.R.C., [1997] C.R.D.D. No. 66 (I.R.B.) (QL); Re E.N.U., [1997]
C.R.D.D. No. 67 (I.R.B.) (QL); Re U.V.G., [1997] C.R.D.D. No. 250 (I.R.B.) (QL); Re Q.N.W., [1998]
C.R.D.D. No. 38 (I.R.B.) (QL); Re U.O.D., [1999] C.R.D.D. No. 106 (I.R.B.) (QL); Re V.P.F., [1999]
C.R.D.D. No. 191 (I.R.B.) (QL). Ironically, in some cases, arranged marriages represent the only way
to escape persecution. See e.g. Re L.(M.D.), [1992] C.R.D.D. No. 328 (I.R.B.) (QL); Re P. (E.U.),
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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One gay claimant describes the horrific torture and subsequent pressure to marry
inflicted on him by his father and brothers upon their learning of his homosexuality.107
Many lesbians and gay men who are discovered in same-sex relationships are victims
of sexual assaults at the hands of their persecutors.108 In addition, deviations from
proper gender roles in appearance and dress from proper gender roles often make
sexual minorities easily identifiable to their persecutors. Refugee claimants have also
indicated that both socializing and living with a gay or a lesbian partner are factors
that brought them to the attention of agents of persecution.109
While the regulations appear to acknowledge that some lesbians and gay men live
in countries where they could be persecuted for cohabiting in a conjugal relationship
with someone of the same-sex, the provisions made for these exceptional
circumstances appear to set a higher standard than that required of refugee claimants.
Under Canadian refugee law, persons seeking asylum must demonstrate a well-
founded fear of persecution.110 Because an individual need only fear a future risk of
persecution,111 evidence of individualized past persecution is not necessary.112 In fact,
[1992] C.R.D.D. No. 397 (I.R.B.) (QL); Burgos-Rojas v. Canada (Minister of Citizenship and
Immigration) (1999), 162 F.T.R. 157 (F.C.T.D.); Re O.R.R., [2000] C.R.D.D. No. 122 (I.R.B.) (QL).
107 Re A.M.A , [2000] C.R.D.D. No. 103 (I.R.B.) (QL).
108 See Re N. (L.X.), [1992] C.R.D.D. No. 47 (I.R.B.) (QL); Re J. (F.H.), [1993] C.R.D.D. No. 98
(I.R.B.) (QL); Re H. (Y.N), [1994] C.R.D.D. No. 13 (I.R.B.) (QL); Re X.M.U., [1995] C.R.D.D. No.
146 (I.R.B.) (QL); S.Z.R., [1995] C.R.D.D. No. 150 (I.R.B.) (QL); Re B. (W.B.), [1995] C.R.D.D. No.
108 (I.R.B.) (QL); Re I. (X.W.), [1995] C.R.D.D. No. 100 (I.R.B.) (QL); Re D. (C.J.), [1995]
C.R.D.D. No. 86 (I.R.B.) (QL); Re J.J.Y., [1996] D.S.S.R. No. 50 (I.R.B.) (QL); Re C.D.T., [1996]
D.S.S.R. No. 90 (I.R.B.) (QL); Re V.Y.F., [1996] D.S.S.R. No. 91 (I.R.B.) (QL); Re G.E.K., [1996]
D.S.S.R. No. 264 (I.R.B.) (QL); Re O.R.C., [1997] C.R.D.D. No. 66 (I.R.B.) (QL); Re C.R.H., [1997]
C.R.D.D. No. 178 (I.R.B.) (QL); Re B.W.L., [1997] C.R.D.D. No. 316 (I.R.B.) (QL); Re S.E.X.,
[1997] C.R.D.D. No. 77 (I.R.B.) (QL); Re J.K.D., [1997] C.R.D.D. No. 307 (I.R.B.) (QL); Re T.B.E.,
[1997] C.R.D.D. No. 304 (I.R.B.) (QL); Re D.E.A., [1998] C.R.D.D. No. 2 (I.R.B.) (QL); Re J.M.E.,
[1998] C.R.D.D. No. 19 (I.R.B.) (QL); Re F.V.Y., [1998] C.R.D.D. No. 20 (I.R.B.) (QL); Re U.O.D.,
[1999] C.R.D.D. No. 106 (I.R.B.) (QL); Re Y.J.E., [1999] C.R.D.D. No. 288 (I.R.B.) (QL); Re N.P.Q.,
[1999] C.R.D.D. No. 249 (I.R.B.) (QL); Re P.J.X., [2000] C.R.D.D. No. 128 (I.R.B.) (QL).
109 See Re A. (E.C.), [1993] D.S.S.R. No. 238 (I.R.B.) (QL); Re X. (J.K.), [1992] C.R.D.D. No. 348
(I.R.B.) (QL). See also O.P.K., supra note 106 ( … I moved back with my family and X went back to
his family. We knew that we could not live together any more because of the pressure and the fear of
exposure.); Re R.M.W., [1998] C.R.D.D. No. 76 (I.R.B.) (QL); Re R.Z.L., [1997] C.R.D.D. No. 311
(I.R.B.) (QL).
110 IRPA, supra note 1, s. 96:
A Convention refugee is a person who, by reason of a well-founded fear of persecution
for reasons of race, religion, nationality, membership in a particular social group or
political opinion,
is outside each of their countries of nationality and is unable or, by reason of
(a)
that fear, unwilling to avail themself of the protection of each of those countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to return to
that country.
111 See James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) at 66.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
the IRPA has extended asylum protection not only to individuals who fear
persecution, but also to those who believe on substantial grounds that they might be
subject to torture, a risk to their life, or a risk of cruel and unusual treatment or
punishment.113
991
Under the rules governing applications for permanent residency, it is not clear
whether a same-sex partner is required to prove actual past persecution, or simply a
well-founded fear of persecution, in order to waive the cohabitation requirement. The
wording of the regulations suggests that a criterion other than the one used in refugee
law is meant to apply, since the legislator opted for different wording. If so, it is
possible that the immigration regulations create a more stringent criterion than the
one applied for people applying as refugees where theyre required to demonstrate
that they have a well-founded fear of persecution.114 If actual persecution is required,
and the persecution must be related to the gay or lesbian conjugal relationship,115 the
law is in effect telling potential immigrants that they must place themselves at risk,
and actually endure persecution or penal control, before they can apply to come to
Canada as common-law partners. Surely, the government did not intend this result,
but the unfortunate choice of wording leaves this interpretation open to visa officers,
IAD members, and the Federal Court.
112 Though past persecution can certainly be an important indicator of the treatment awaiting the
claimant should they return home (ibid. at 87).
113 IRPA, supra note 1, s. 97(1):
A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality, their country of
former habitual residence, would subject them personally
to a danger, believed on substantial grounds to exist, of torture within the
(a)
meaning of Article 1 of the Convention Against Torture; or
(b)
punishment if
to a risk to their life or to a risk of cruel and unusual treatment or
the risk would be faced by the person in every part of that country
the person is unable or, because of that risk, unwilling to avail
(i)
themself of the protection of that country,
(ii)
and is not faced generally by other individuals in or from that country,
(iii)
imposed in disregard of accepted international standards, and
(iv)
adequate health or medical care.
the risk is not inherent or incidental to lawful sanctions, unless
the risk is not caused by the inability of that country to provide
114 Committee Evidence, supra note 69 at 39.
115 The wording of subsection 1(2) of the IRPA Regulations (supra note 7) seems to suggest that the
persecution or penal control must be related to the inability to cohabit:
For the purposes of the Act and these Regulations, an individual who has been in a
conjugal relationship with a person for at least one year but is unable to cohabit with
the person, due to persecution or any form of penal control, shall be considered a
common-law partner of the person. [emphasis added]
992
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[Vol. 49
3. Till Heterosexual Death Do Us Part
While the issue of same-sex marriage is currently before the Supreme Court of
Canada in the form of a reference,116 gay men and lesbians can already get legally
married in Ontario,117 British-Columbia,118 and Quebec.119 In addition, same-sex
marriage is also available in the Netherlands,120 Belgium,121 and more recently,
Massachusetts.122 In light of these legal developments, and given the absence of a
specific definition of spouse in the IRPA and the IRP Regulations, it is necessary to
ask whether same-sex individuals may marry each other and therefore be considered
spouses for the purposes of immigration laws.
As mentioned previously, the meaning of spouse is related to the definition of
marriage. Section 2 of the IRP Regulations states that in respect of a marriage that
took place outside of Canada, means a marriage that is valid both under the laws of
the jurisdiction where it took place and under Canadian law.123 Hence, for gay men
and lesbians to be considered spouses for the purposes of immigration to Canada,
their marriage must be considered legal in the country where it took place and under
Canadian law.
At the time the act and the regulations were drafted and enacted, it was not
expected that marriage would so quickly open up to lesbians and gay men in Canada.
But it now appears to be the case that gay men and lesbians can meet the established
criteria. This could happen in two ways. First, if a same-sex couple marries in a
Canadian provincial or territorial jurisdiction that has recognized gay and lesbian
marriages, they would become spouses under the IRPA and the IRP Regulations.
116 See Department of Justice Canada, News Release, Minister of Justice Announces Reference to
the Supreme Court of Canada (17 July 2003), online: Department of Justice
117 Halpern v. Canada (A.G.) (2003), 65 O.R. (3d) 161, (2003) 225 D.L.R. (4th) 529 (C.A.).
118 EGALE Canada v. Canada (A.G.) (2003), 225 D.L.R. (4th) 472, [2003] 7 W.W.R. 22 (B.C.C.A.).
119 Ligue catholique pour les droits de l’homme c. Hendricks, [2004] J.Q. No. 2593, J.E. 2004-724
(C.A.).
120 The Netherlands was the first country to open up marriage to same-sex couples on 1 April 2001.
See Kees Waaldijk, Small Change: How the Road to Same-Sex Marriage Got Paved in the
Netherlands in Robert Wintemute & Mads Andens, eds., Legal Recognition of Same-Sex
Partnership: A Study of National, European and International Law (Oxford: Hart Publishing, 2001)
437 at 437.
121 Loi ouvrant le mariage des personnes de mme sexe et modifiant certaines dispositions du
Code civil (1), 13 February 2003, online: Service public federal justice
122 See Pam Belluck & Warren St. John, With Festive Mood, Gay Weddings Begin in
Massachusetts The New York Times (17 May 2004).
123 The validity of a marriage in the jurisdiction where it took place is established through conflicts
of law rules, specifically by demonstrating that the formal and essential requirements of marriage
have been respected. See J.-G. Castel & Janet Walker, Canadian Conflict of Laws, 5th ed. (Toronto:
Butterworths, 2002) at 16.1-16.14.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
Second, a same-sex couple can now contract a legally valid same-sex marriage in the
Netherlands, Belgium, and Massachusetts; this couple also would be in a position to
establish the validity of the marriage under both the foreign jurisdictions and
Canadian law as required by the IRP Regulations.
993
Nevertheless, it would appear that immigration officials have until very recently
opposed processing applications from lesbians and gay men who identify themselves
as spouses in their immigration applications. In a letter dated 27 April 2004, officials
from Citizenship and Immigration Canada informed a gay applicant that:
all sponsorships applications received for foreign nationals submitted on the
basis of a same-sex marriage to a Canadian Citizen or Permanent Resident are
to be held pending advice from the Department of Justice regarding the
implications for immigration and legislation required to change the definition
of marriage.124
Christine Morrissey of LEGIT confirms that federal immigration officials have told
legally wed same-sex couples that they can apply to immigrate to Canada, but that
their applications will be put on hold until guidelines are set125 and a new definition
of marriage is established by the federal government. Indeed, the Department of
Citizenship and Immigration Canadas public information for Canadian citizens who
wish to sponsor their partners provides that only a person of the opposite-sex who is
married to a citizen can be sponsored as a spouse.126
Such a policy cannot be legally justified. First, the gay and lesbian marriage
reference case will not be argued before the Supreme Court of Canada until the fall of
2004.127 A final decision will take at least several months. The federal government will
then have to draft, present, debate, and adopt legislation in both the House of
Commons and the Senate before it can become the law of the land. If immigration
officials insist on waiting for this process to end, anybody applying right now as
same-sex married couples will have their applications just sitting in a pile
somewhere, as Christine Morrissey points out.128
It appears that the Department of Citizenship and Immigration has recently
recognized the legal invalidity of its policy. On 18 May 2004, Department officials
announced that, as an interim policy, they would begin recognizing the marriages of
124 Letter from the Case Processing Centre, Mississauga, Citizenship and Immigration Canada, to
Michael James Blair (27 April 2004) on file with the author, cited with the permission of Michael
Blair [Letter to Blair].
125 Jennifer Pak, Same-Sex Marriage and Immigration Dont Go Hand in Hand Capital News
Online (26 September 2003), online: Capitalnewsonline
126 See Shawna Gnutel, Same-Sex Marriage Not Accepted Here: Federal Immigration Policy
Trumps Provincial Marriage Licence Capital Xtra! (6 May 2004) 16.
127 EGALE, News Release, Government Unnecessarily Delays Equality (28 January 2004),
online: EGALE
128 Pak, supra note 125.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
994
same-sex couples.129 However, the new policy remains arbitrary and discriminatory.
Indeed, it is to apply only to couples where one spouse is a Canadian citizen or
permanent resident, and only to marriages celebrated in Ontario, British Columbia,
and Quebec.130 It does not include married couples who wed in other jurisdictions that
allow for same-sex marriage like the Netherlands, Belgium, or Massachusetts, or to
couples consisting of two foreign nationals.
[Vol. 49
Under the law, same-sex partners cannot be arbitrarily excluded from the spousal
category of immigration. If a same-sex couple meets the established legal
requirement, which is to prove the validity of their marriage under Canadian law and
the foreign law where the marriage took place, they should be processed as spouses. It
is clear that some gay and lesbian couples can now meet the required legal test.
Immigration officials therefore have no legal justification to continue delaying the
proper application of the law to all legally married same-sex couples.
A spokesperson for Citizenship and Immigration Canada states that couples can
avoid the delay by applying as common-law or conjugal partners.131 But important
differences remain among the three categories, which explain why some legally
married same-sex couples favour applying as spouses. As John Hart points out, in the
context of family reunification, the institution of marriage is heaven sent as two
married individuals can generally be assumed to be a family unit.132 Marriage retains
another important legal advantage: unlike common-law partners, married couples do
not have to show that they have lived together continuously for one year. In addition,
contrary to conjugal partners, a spouse may be included as a dependent of an
individual applying to immigrate to Canada. Conjugal partners can only immigrate if
they are in a relationship with a Canadian citizen or a permanent resident in Canada.
B. The Application of the IRPA and the IRP Regulations
While this article has exposed several defects in the legislative regime governing
the immigration of same-sex partners, the IRPA and the IRP Regulations have
nevertheless established a more open and effective process by which gay men and
lesbians may immigrate to Canada based on their conjugal relationships. Keeping the
shortcomings of the IRPA and IRP Regulations in mind, the discussion will now turn to
the examination of how the new provisions will be applied to gay and lesbian applicants.
129 Canadians for Equal Marriage, News Release, Immigration Department to Recognize
Marriages of Same-Sex Couples (18 May 2004).
130 Ibid. See also Family Class Immigration, online: Citizenship and Immigration
131 Pak, supra note 125. A Canadian applicant was also advised that his application to sponsor his
foreign spouse could be quickly processed under the common law category, despite the fact that the
couple was legally wed in Ontario and applied as spouses: Letter to Blair, supra note 124.
132 John Hart, Stories of Gay and Lesbian Immigration: Together Forever? (New York: Harrington
Park Press, 2002) at 8.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
As the act and the regulations were enacted less than two years ago, it is not yet
possible to review the actual practice of visa officers, IAD members, and the Federal
Court. The discussion that follows will, however, highlight issues that may be of
concern when applying the new law and regulations to same-sex partners. It is argued
that visa officers and judges need to account for the specific conditions that surround
lesbian and gay immigration applications. If officials fail to recognize the particular
context in which same-sex partners present their visa requests, gay men and lesbians
will continue to be denied a fair, just, and equitable process.
995
1. Homophobia 101
Homosexuality remains a very controversial topic for most Canadians. While the
lives of Canadian lesbians and gay men have improved in the last twenty years, the
level of discrimination, homophobia, and violence remains very high. It is important
that visa officers and judges reflect on their own standpoints, biases, and
presumptions about homosexuality in order to fairly assess appeals from lesbian and
gay couples. It will be important to identify any prejudicial, stereotypical, or
discriminatory views or behaviours that may underlie particular decisions.
Immigration officials and judges should also keep in mind that it may be very
difficult for lesbians and gay men to speak about their sexual orientation and their
lives, particularly to state officials. Many may feel shame, embarrassment, and fear
about speaking of something that is so personal and private. For some applicants, in
order to qualify for a visa, they will be declaring their homosexuality for the first time,
and sometimes in countries where such behaviour is against the law. As one
Australian claimant stated, he had not been out as gay for very long so it was very
difficult to give such personal details to a government department.133
In many countries, government investigations of the personal and social lives of
gay men and lesbians is not the relatively benign process it may be in Canada.
Repression of lesbians and gay men is state sponsored or encouraged, so it is difficult
for many to imagine that state officials could possibly be anything less than hostile to
discussions of homosexuality. Some individuals believe that to speak frankly about
their intimate life and sexual orientation would only prejudice their cases.
Immigration officials should ensure that hearings provide a safe place for gay men
and lesbians to speak about their relationships. Applicants and appellants should not
be questioned regarding their actual sexual practices but rather on elements proving
the conjugality of their relationship with their partner.
2. Bona Fide Homosexualis
While sponsorship applications from same-sex couples may present unique issues
and challenges, the legal issues to be determined will be the same as with
133 Ibid. at 48.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
996
heterosexual cases. Whether gay men and lesbians apply as spouses, common-law
partners, or conjugal partners, they will have to prove that their relationships are bona
fide. In addition, they will be required to establish the conjugal nature and duration of
the relationship.
[Vol. 49
Experience shows that couples tend to demonstrate the bona fides of their
relationships in several ways. Prospective immigrants are interviewed by immigration
officers, who determine the credibility of the partners. In addition, couples submit
supporting documentation: phone bills, letters, plane tickets, boarding passes, visa
stamps, photos, and a history of the relationship. Now, it will also be possible for
some gay men and lesbians to add as proof of the genuineness of their relationship
marriage certificates, wedding photos, or proof of civil union or partnership
registration. If they have cohabited, they can also present rent receipts, joint leases,
joint bank accounts and credit card accounts. Finally, applications are often
accompanied by statutory declarations from individuals with personal knowledge that
the relationship is genuine and continuing.134
Certainly, more than any other area of government regulation, lesbian and gay
immigrants will have to prove that their relationships are genuine and successful
enough to meet government approval. Since the quality of relationships will be under
scrutiny, visa officers, and eventually IAD members and Federal Court judges, in
assessing the credibility of witnesses or in drawing legal conclusions from the facts,
will have to be careful to avoid assimilating same-sex relationships into those of their
heterosexual counterparts. As will be outlined below, many facets of the lives of gay
men and lesbians are substantially and significantly different from heterosexual
couples. While it is true that the objective behind Canadas family reunification policy
is to facilitate the migration of a particular type of family unit,135 the inclusion of gay
and lesbian families now requires decision-makers to expand their conception of what
constitutes the favoured family unit. In demanding proof of the bona fides of the
relationship, flexibility will be required to ensure that inappropriate, discriminatory, or
heterosexist values are not imposed on same-sex partners.
Couples experience and live their sexual orientation in many different ways,
depending on their country of origin, gender, culture, social class, education, religion,
family background, and socialization. There is no uniform way in which lesbians and
gay men recognize and act on their sexual orientation. Answers to questions about a
persons same-sex relationship may, therefore, vary widely from one couple to
another. Lesbians, gay men, and bisexual people in Canada conduct their personal
relationships in a wide variety of ways. While the experience of lesbians and gay men
in this country is diverse, it is nothing compared to the tremendously divergent and
different experiences of sexual minorities around the world. Moreover, individuals
134 See Outlaws & Inlaws, supra note 25 at 110-11.
135 For instance, Canadas family reunification provisions do not allow for the sponsorship of
polygamous or underage marriages.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
who have a different sexual orientation or gender identification from the majority are
invariably among the most marginalized and oppressed groups in any society.
997
Given the diversity of the global context, it is dangerous to make assumptions
about the relationships of members of sexual minorities. It is true, however, that one
aspect of the lives of lesbians and gay men that is universal is the pervasive societal
rejection of their sexual orientation and their relationships. There is no country where
a gay man or lesbian can grow up free of either discrimination, persecution, or
repression. While many same-sex couples will be able to adduce the necessary
evidence to demonstrate that they have been in a long-standing, bona fide conjugal
relationship, they may present very different profiles and evidence in relation to their
relationship than would a heterosexual couple.
As with other cases, couples may provide photographs, letters, testimonials,
phone bills, proof of visit, and other documentation. In fact, Canadian immigration
officials have confirmed that this approach worked well in practice when same-sex
couples were covered by the humanitarian and compassionate policy. It is, however,
important to bear in mind that discrimination and persecution often force gay men and
lesbians to live underground, making it more difficult for them to collect the
documentation required to demonstrate a legitimate partnership to officials. Some
people may not have disclosed their sexual orientation to their family and friends.
Such disclosures are often difficult and may lead to hostile and violent reactions by
family members. Immigration officials need to contextualize same-sex relationships in
order to properly determine the weight to place on the openness or secrecy of the
relationship.
To give another example of the need to take the larger social context into account,
consider the situation of gay men and lesbians who may have been married or
involved in heterosexual relationships. As mentioned above, gay and lesbian refugee
claimants have testified about the pressure to marry in their cultures. This pressure
often originates with private actors, particularly family members. Moreover, family
pressure and violence are not the only reasons gay men and lesbians have been
involved in heterosexual relationships: repression of their sexual orientation, genuine
attraction to a member of the opposite-sex, desire to socially conform, and need to
hide ones sexual orientation may all explain past heterosexual relationships. This
reality must be considered when same-sex couples are making proof of their
relationships.
It is interesting, at this point, to examine the experience in Australia where gay
men and lesbians have been able to sponsor their partners since 1985.136 In fact,
Australia was one of the first countries to amend its immigration policies to allow for
same-sex sponsorship. Yet, in developing its policy toward gay and lesbian partners,
the Australian government was nervous about the type of homosexual relationships it
136 See Hart, supra note 132 at 2.
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
998
would validate for immigration purposes. For instance, in 1988, the Australian
Immigration Minister defended the new policy on same-sex immigration by making it
clear that only monogamous gay and lesbian relationships met the required criteria
for immigration.137 Commentators agreed that both heterosexual and homosexual
relationships should be exclusive, in that they are, for prospective immigrant couples,
of a different quality than any other relationships they may have. The governments
policy was criticized for this focus on monogamy, or sexual exclusiveness, as a
specific requirement for gay men and lesbians.138
The Australian government was also nervous about significant age differences
between gay partners, especially when the non-Australian partner was substantially
younger.139 Gay and lesbian activists counselled prospective immigrants to address the
issue head-on in their applications. While they considered the policy discriminatory,
as heterosexuals with significant age differences did not face the same scrutiny,
activists suggested to gay men and lesbians that they submit psychiatric reports and
family and community declarations of support of their relationship.140 The Australian
governments nervousness about both sexual behaviour and age differences is
certainly a reflection of larger discriminatory and homophobic viewsviews that
Canadian officials must avoid in scrutinizing the quality of same-sex relationships.
In a study conducted of Australian binational couples many individuals expressed
concern about the models they felt they were forced into by the immigration policy.
Here are some of the comments made by gay men and lesbians who experienced the
Australian immigration process:
The models that we were forced into by the department caused a lot of stress.
Joint bank accounts, cohabitation, etc. There are other ways to have a
relationship! It feeds off and enforces dependency.141
I feel Ive been expected to be involved in a relationship likened to marriage
whereas Id like to break that mold for a better sort of relationship that has
room for growth and individuality.142
I feel that the expectations of the Department of Immigration are basing the
elements of a relationship on heterosexual standards and are trying to validate
and contain lesbian and gay relationships in the same pattern, e.g., living
together, lifelong commitment. Sharing bank accounts, loss of individuality.
Does it have to be like this to be genuine?143
137 Ibid. at 29.
138 Ibid.
139 Ibid. at 37.
140 Ibid. at 38. For instance, research exists that demonstrates the success of age-asymmetrical male
couples. See Hart, ibid., citing David P. McWhirter & Andrew M. Mattison, The Male Couple: How
Relationships Develop (Englewoods Cliffs, N.J.: Prentice-Hall, 1984).
141 Hart, ibid. at 84-85.
142 Ibid. at 86.
143 Ibid.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
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Others spoke of the equality that exists between gay and lesbian partners, because of
the absence of gender roles:
999
Lacking the difference in gender, there is equality between gay partners that is
expressed in attitudes toward each other and is exemplified in their
maintenance of financial separateness during the early years of the
relationship.144
Thus, there are important differences in how same-sex couples meet, socialize, and
present themselves to their families, communities, and the world. There may even be
individuals in same-sex partner applications who do not identify as gay or
lesbian.145
Research does support the claim of many gay men and lesbians that their
relationships can be substantively different from those of traditional heterosexual
couples.146 For prospective gay and lesbian immigrants, the dilemma confronting them
is how to form relationships that are personally satisfying while still conforming to
government requirements.147 For immigration officials and judges, the challenge is to
assess the genuineness of gay and lesbian couples without using markers that may
only apply in the context of heterosexual relationships. It will be important to consider
the particular social and political context surrounding a same-sex relationship before
concluding on the genuineness of the relationship.
3. Persecution: Making the Case
For gay men and lesbians claiming to be common-law partners who have not
been able to cohabit due to persecution or penal control, assessing the credibility of
their claims of persecution will require immigration officials to have some knowledge
and information about both the gay and lesbian communities in the country of origin
and the legal and social reality of sexual minorities. To the extent possible, visa
officers should encourage parties to provide documentation and expert testimony on
the situation of sexual minorities in the country of origin of the foreign national. At
the same time, it is important for individual visa officers, and in the context of a
sponsorship appeal, IAD members, to recognize that gay men and lesbians will
encounter some difficulties in providing objective evidence of persecution. In many
144 Ibid. at 78 [footnotes omitted].
145 Ibid. at 56.
146 See Lawrence A. Kurdek, Relationship Outcomes and Their Predictors: Longitudinal Evidence
from Heterosexual Married, Gay Cohabiting, and Lesbian Cohabiting Couples (1998) 60 J. of
Marriage and the Family 553; Richard A. Mackey, Matthew A. Diemer & Bernard A. OBrien,
Psychological Intimacy in the Lasting Relationships of Heterosexual and Same-Gender Couples
(2000) 43 Sex Roles 201; Christopher Carrington, No Place Like Home: Relationships and Family
Life Among Lesbians and Gay Men (Chicago: University of Chicago Press, 1999); Stephen M. Haas
& Laura Stafford, An Initial Examination of Maintenance Behaviors in Gay and Lesbian
Relationships (1998) 15 Journal of Social and Personal Relationships 846.
147 See Hart, supra note 131 at 35.
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
1000
countries, very little information is available on human rights violations against sexual
minorities. While an increasing number of international human rights groups are
beginning to document abuses against lesbians and gay men, they remain a
minority.148 Many non-governmental organizations maintain that the rights of
homosexuals are not human rights issues.149 The lack of documentation is often the
result of the underlying climate of homophobia,150 which permeates most countries.
One human rights activist in Ecuador notes that while human rights abuses are known
to occur, people are too frightened to come forward and denounce them.151 It may,
therefore, be difficult for foreign gay men or lesbians to provide anything more than
their own testimony about the persecution they may face living in a same-sex
relationship in their country.
It is also important to note that other factors may intersect with sexual orientation.
Gender is an important element to keep in mind; there is often a very important
difference between the kind of discrimination and persecution faced by lesbians as
compared to gay men.152 Moreover, sexual orientation may be only one aspect of the
persecution faced by transvestites, transsexuals, or people with HIV/AIDS.
Immigration officers need to assess the extent to which factors other than sexual
orientation contribute to the persecution faced by lesbian and gay couples.
Finally, personal interviews, and the handling of the file more generally, must be
done confidentially. The risks involved for gay men and lesbians in publicly declaring
their homosexuality can be very serious. In addition, a measure of confidentiality may
be required in relation to other family members: since, as mentioned previously, they
are often the agents of persecution.
Related to the issue of confidentiality is the use of interpreters in either the
interview process conducted by immigration officials or, in the case of sponsorship
appeals, in the IAD hearing room. In the refugee context, the use of interpreters has
occasionally proved to be problematic in sexual orientation claims.153 In some cases,
interpreters and claimants come from the same ethnic or cultural community and a
claimant may fear that speaking openly about his or her sexual orientation will result
in it being known in their local community. In other cases, the interpreters have
148 See Nicole LaViolette, Proving a Well-Founded Fear: The Evidentiary Burden in Refugee
Claims Based on Sexual Orientation in Sydney Levy, ed., Asylum Based on Sexual Orientation: A
Resource Guide (San Francisco: International Gay & Lesbian Human Rights Commission, 1996),
I.D/3 at 5-9.
149 Ibid. at 5, n. 22.
150 Ibid. at 6 [footnotes omitted].
151 Ibid.
152 See Nicole LaViolette, Les revendications du statut de rfugi fondes sur le sexe : constats et
orientations nouvelles (2001) 13 C.J.W.L. 285 at 305-10.
153 This concern has been raised by several members of the Convention Refugee Division of the
Immigration and Refugee Board during training professional development sessions conducted by the
author in 1995, 1999, and 2003.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
reacted negatively to issues of homosexuality presented by claimants. It is therefore
important to be aware that the use of interpreters may present particular challenges in
cases dealing with gay men and lesbians.
1001
4.
I Take Thee to Be My Civil Union Partner
Other jurisdictions have established official legally binding mechanisms for
solemnizing same-sex relationships.154 For example, gay couples can enter into civil
unions in Quebec155 and Vermont;156 lesbian couples can register their partnerships in
Denmark157 and Iceland.158
The most widespread mechanisms available to same-sex couples are some form
of registered partnership. While registered partnership schemes vary from one
jurisdiction to another, the existing models possess some common features. Their
purpose is usually to recognize, validate, and support committed, mutually supportive
personal relationships between unmarried individuals. Most registered partnership
policies define who may register, for instance, by setting cohabitation or age
requirements. Furthermore, an essential element of this new civil status is the fact that
individuals make an official record of their partnerships. This process allows
individuals to register with various levels of government or private employers by
completing a formal declaration or by obtaining an official licence. It is also true that
the majority of registered partnerships confer a number of entitlements and
obligations. In this fashion, registered partnerships regulate rights between partners,
entitlements and obligations involving third parties, and in some cases, parenting
rights. Finally, registered partnership programs define a process by which the partners
may dissolve the formal relationship.
In the case of civil unions or registered partnerships, same-sex couples have
publicly affirmed their relationship and commitment, voluntarily assume legal rights
and obligations, and have documentation to evidence the relationship. It is therefore
possible that gay and lesbian couples involved in an immigration sponsorship
application will submit proof of a legally binding relationship.
154 See Nicole LaViolette, Waiting in a New Line at City Hall: Registered Partnerships as an
Option for Relationship Recognition Reform in Canada (2002) Can. J. Fam. L. 115.
155 Civil Union, online: Justice Qubec
156 An Act Relating to Civil Unions, 1999 Vt. Acts & Resolves No. 91, H.847, online: State of
Vermont Legislature
157 The Danish Registered Partnership Act, D/339-H-ML, No. 373 (1 June 1989), online: Cybercity
Denmark
158 Iceland Registered partnership law, 1996 (1 July 1996), online: la France Gaie et Lesbienne
as confirmed cohabitation: Caroline Forder, European Models of Domestic Partnership Laws: The
Field of Choice (2000) 17 Can. J. Fam. L. 371 at 390.
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During the hearings of the Standing Committee on Citizenship and Immigration
on the IRP Regulations, gay and lesbian groups suggested that solemnization of a gay
or lesbian relationship in another jurisdiction should be sufficient to establish
conjugality.159 In those cases, they argued, the prohibition in section 4 of the IRP
Regulations on bad faith relationships is a sufficient safeguard, and no additional
evidentiary criteria should be met. Certainly, for individuals applying as common-law
partners or conjugal partners, proof of a legally binding relationship in another
jurisdiction may be sufficient to meet the conjugality criteria. This will depend on the
nature of the registered partnership or civil union. Immigration officials should
enquire into the nature of the obligations and entitlements that attach to a specific
registered partnership in order to determine if it meets the Supreme Courts definition
of conjugality as set out in M. v. H. Proof of the solemnization of the relationship in a
foreign jurisdiction may be sufficient to establish the cohabitation requirement if the
registered partnership also requires at least one year cohabitation.
Conclusion
This article has reviewed the recent developments in Canadian immigration law
as they pertain to same-sex couples. In canvassing the historical development of
immigration policies, the discussion has shown that Canada has moved from a total
ban on gay and lesbian immigration, to providing a discretionary remedy for same-sex
couples wishing to be reunited, and finally, to a formal inclusion of gay and lesbian
couples in the family sponsorship provisions of the 2002 IRPA and IRP Regulations.
The analysis has, however, revealed that previous discriminatory policies
continue to impact same-sex couples. The IRPA and IRP Regulations fail to remove
unnecessary distinctions between couples. Married spouses retain the easiest access to
permanent residency, while common-law partners are generally required to meet a
more stringent cohabitation requirement. To waive the cohabitation requirement,
common-law partners may have to prove persecution on a more stringent standard
than do refugees. Finally, while conjugal partners are spared the cohabitation
criterion, they can only apply if they are in a conjugal relationship with a Canadian
citizen or permanent resident. They cannot immigrate as dependents of foreign
nationals who have gained admission to Canada. This hierarchy of relationships is
unnecessary. All prospective couples should be required to demonstrate a conjugal
relationship of at least one-year duration. Cohabitation should be examined as one of
several factors demonstrating the genuineness and conjugal nature of the relationship.
In addition to highlighting the shortcomings of the actual legislation and laws,
this analysis has also tried to identify issues that may arise in the actual application of
the family reunification provisions of the immigration act and regulations. Several
issues make applications from same-sex partners unique and different from their
159 Committee Evidence, supra note 69 at 44-45.
N. LAVIOLETTE IMMIGRATION OF SAME-SEX COUPLES
2004]
heterosexual counterparts. For instance, universal discrimination, persecution, and
repression against sexual minorities impact significantly on how gay men and lesbians
conduct their relationships. The result is that lesbians and gay men who enter into
relationships often face unique struggles, and those struggles will often move them
away from, or place them in opposition to, their families, friends, communities, and
society in general. The ability to conform to traditional heterosexual models must
therefore not be a requirement when immigration officials assess the genuineness of a
same-sex relationship.
1003
Given that legislative changes are not soon expected to correct the problems
identified with the IRPA and IRP Regulations, it is even more important that the
family reunification provisions be applied in a way that ensures true equality for gay
and lesbian immigrants. If immigration officials ignore the larger context in which
lesbian and gay relationships are formed, the new law and regulations will not deliver
the open, transparent, and equitable process the government promised when it enacted
the IRPA and IRP Regulations.
