Alexander et al. v. Canada (Solicitor General), (2005) 279 F.T.R. 45 (FC)

• Judge: Dawson, J.
• Court: Federal Court (Canada)
• Case Date: July 18, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 279 F.T.R. 45 (FC);2005 FC 1147

Alexander v. Can. (2005), 279 F.T.R. 45 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. SE.003

Lena Alexander, Crystal Roberts and Dameon Alexander by their litigation guardian Lena Alexander (applicants) v. Solicitor General of Canada (respondent)

(IMM-9107-04)

Lena Alexander (applicant) v. Solicitor General of Canada (respondent)

(IMM-500-05; 2005 FC 1147)

Indexed As: Alexander et al. v. Canada (Solicitor General)

Federal Court

Dawson, J.

August 23, 2005.

Summary:

Alexander, a citizen of Grenada, originally entered Canada as a visitor. She overstayed her visitor's visa and exhausted all efforts to be allowed to stay in Canada. She gave birth to two children during her stay, with whom the fathers had no involvement. She was scheduled for removal from Canada. In an effort to defer her removal she obtained an interim order from the Ontario Court of Justice granting her sole custody of the two children. The order also provided that the children not be removed from the Province of Ontario without further court order. Alexander claimed that the interim order created a statutory stay of her removal pursuant to s. 50(a) of the Immigration and Refugee Protection Act, but a removal officer rejected her claim (the first decision). Thereafter, the Ontario Court of Justice issued a final order and Alexander again requested a deferral of her removal pending a decision to be rendered on a second humanitarian and compassionate grounds application. This request was refused by a second removal officer (the second decision). She applied for judicial review of both the first and second decisions and her removal was stayed pending determination of the applications, which were consolidated for hearing. The most significant issues raised were whether the Ontario court's orders created a statutory stay under s. 50(a) and whether the removal of a custodial parent breached s. 7 of the Charter by violating the right of the parent's child to security of the person because the removal interfered with the child's right to family life.

The Federal Court dismissed Alexander's application, but certified questions for consideration by the Court of Appeal.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Aliens - Topic 1565 ].

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - [See first Aliens - Topic 1568 ].

Aliens - Topic 1565

Exclusion and expulsion - Power to detain and deport - Reasons for decisions - Alexander, a citizen of Grenada, overstayed her visitor's visa and exhausted all efforts to be allowed to stay in Canada - She gave birth to two children during her stay - In an effort to defer her scheduled removal from Canada she obtained an interim and final order from the Ontario Court of Justice granting her sole custody of the two children and prohibiting the children's removal from the province - Alexander claimed that the court orders created a statutory stay of her removal pursuant to s. 50(a) of the Immigration and Refugee Protection Act - In the case of each order a removal officer held that no stay arose - Alexander applied for judicial review, alleging a breach of the duty to give adequate reasons - The Federal Court examined the decisions, holding that there was no breach of the duty of fairness with respect to the first officer's failure to give reasons or with respect to the adequacy of the second officer's reasons - See paragraphs 56 to 70.

Aliens - Topic 1568

Exclusion and expulsion - Power to detain and deport - Removal officer - Alexander, a citizen of Grenada, claimed that interim and final Ontario court orders giving her custody of her two children and prohibiting their removal from Ontario created statutory stays of her removal from Canada pursuant to s. 50(a) of the Immigration and Refugee Protection Act - In the case of each order a removal officer held that no stay arose - Alexander applied for judicial review, arguing that the second removal officer fettered her discretion by ruling that she had no discretion to defer Alexander's removal because there was no moratorium on removals to Grenada and by only considering the issue of whether Alexander could have made alternative arrangements for her children's care if she was deported - The Federal Court rejected Alexander's argument - The removal officer did not take the absence of a moratorium as a decisive or binding factor in making her decision - Further, a removal officer was not required to conduct an assessment of the best interests of the children therefore the officer did not fetter her discretion by referring only to the fact that Alexander had ample time to make arrangements for her children - See paragraphs 71 to 75.

Aliens - Topic 1568

Exclusion and expulsion - Power to detain and deport - Removal officer - [See Aliens - Topic 1565 ].

Aliens - Topic 1798

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Execution precluded where another judicial order would be violated - Alexander, a citizen of Grenada, overstayed her visitor's visa and exhausted all efforts to be allowed to stay in Canada - She gave birth to two children during her stay, with whom the fathers had no involvement - She was scheduled for removal from Canada - In an effort to defer her removal she obtained an interim and final order from the Ontario Court of Justice granting her sole custody of the two children and prohibiting the children's removal from the province - Alexander claimed that the court orders created a statutory stay of her removal pursuant to s. 50(a) of the Immigration and Refugee Protection Act (IRPA) - Section 50(a) provided that a removal order was stayed if a decision that was made in a judicial proceeding at which the Minister was given the opportunity to make submissions (which he was in this case) would be directly contravened by the enforcement of the removal order - The Federal Court held that enforcement of the removal order against Alexander would not directly contravene either the interim or final order of the Ontario Court of Justice, therefore no statutory stay arose pursuant to s. 50(a) of the IRPA - See paragraphs 26 to 46.

Aliens - Topic 1800.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Parents of Canadian citizens - Alexander, a citizen of Grenada, overstayed her visitor's visa and exhausted all efforts to be allowed to stay in Canada - She gave birth to two children during her stay, with whom the fathers had no involvement - She was scheduled for removal from Canada - In an effort to defer her removal she obtained an interim and final order from the Ontario Court of Justice granting her sole custody of the two children and prohibiting the children's removal from the province - Alexander claimed that the removal of a custodial parent in these circumstances breached s. 7 of the Charter by violating the right of the parent's child to security of the person because the removal interfered with the child's right to family life - The Federal Court held that Alexander's claim failed because the Charter had no application in these circumstances (i.e., no state action was involved, even if the Charter applied no protected freedom had been violated, and a child had no constitutional right never to be separated from his or her parents) - See paragraphs 47 to 51.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - [See Aliens - Topic 1800.2 ].

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - Application - Nongovernmental or private interference - [See Aliens - Topic 1800.2 ].

Cases Noticed:

Adviento v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 295 (F.C.), refd to. [para. 24].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 28].

Wozniak v. Brunton, [2003] O.T.C. 386; 28 Imm. L.R.(3d) 1 (Sup. Ct., Fam. Ct.), refd to. [para. 29].

Mobtagha v. Minister of Employment and Immigration (1992), 53 F.T.R. 249 (T.D.), refd to. [para. 33].

Cuskic v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3; 261 N.R. 73 (F.C.A.), refd to. [para. 35].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 37].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 37].

Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; 288 N.R. 174 (F.C.A.), refd to. [para. 37].

Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; 297 N.R. 187 (F.C.A.), refd to. [para. 38].

Chou v. Chou et al., [2005] O.T.C. 256 (Sup. Ct., Fam. Ct.), refd to. [para. 40].

De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162; 257 F.T.R. 290 (F.C.), refd to. [para. 42].

Charkaoui, Re, [2005] 2 F.C.R. 299; 328 N.R. 201; 2004 FCA 421, refd to. [para. 42].

Langner v. Ministre de l'Emploi et de l'Immigration et al. (1995), 184 N.R. 230 (F.C.A.), folld. [para. 44].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 48].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 53].

Augustus v. Gosset, [1996] 3 S.C.R. 268; 202 N.R. 241, refd to. [para. 53].

Thomas v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 904; 2003 FC 1477, refd to. [para. 56].

Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 596 (T.D.), refd to. [para. 59].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184 (F.C.A.), refd to. [para. 62].

Simoes et al. v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 219 (T.D.), refd to. [para. 66].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 68].

Lukic v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 141 (T.D.), refd to. [para. 71].

John et al. v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 248 (T.D.), refd to. [para. 73].

Martinez v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 799 (F.C.), refd to. [para. 74].

Prasad v. Canada (Minister of Citizenship and Immigration) (2003), 234 F.T.R. 67; 28 Imm. L.R.(3d) 87 (T.D.), refd to. [para. 82].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 87].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 87].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 47].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 50(1) [para. 26].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 234 [para. 27].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Amina S. Sherazee and Carole Simone Dahan, for the applicants;

Greg George, for the respondent.

Solicitors of Record:

Downtown Legal Services, Toronto, Ontario, and Refugee Law Office, Toronto, Ontario, for the applicants;

John H. Sims, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on July 18, 2005, with written submissions on July 24 and August 6, 2005, before Dawson, J., of the Federal Court, who delivered the following decision in Ottawa, Ontario, on August 23, 2005.