Baker v. Can. (M.C.I.), (1999) 243 N.R. 22 (SCC)

• Judge: L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Bastarache and Binnie, JJ.
• Court: Supreme Court of Canada
• Case Date: July 09, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 243 N.R. 22 (SCC);[1999] 2 SCR 817;[1999] CarswellNat 1124;1999 CanLII 699 (SCC);174 DLR (4th) 193;243 NR 22;14 Admin LR (3d) 173;AZ-99111041;EYB 1999-13279;JE 99-1412;[1999] FCJ No 39 (QL);[1999] SCJ No 39 (QL);[1999] ACS no 39;1 Imm LR (3d) 1;89 ACWS (3d) 777

Baker v. Can. (M.C.I.) (1999), 243 N.R. 22 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.R. TBEd. JL.003

Mavis Baker (appellant) v. Minister of Citizenship and Immigration (respondent) and the Canadian Council of Churches, the Canadian Foundation for Children, Youth and the Law, the Defence for Children International-Canada, the Canadian Council for Refugees, and the Charter Committee on Poverty Issues (interveners)

(25823)

Indexed As: Baker v. Canada (Minister of Citizenship and Immigration)

Supreme Court of Canada

L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Bastarache and Binnie, JJ.

July 9, 1999.

Summary:

Baker had four children. In 1981, she left the children in Jamaica and entered Canada as a visitor. She never left even though she never obtained permanent resident status. She had four more children who were Cana­dian citizens. Subsequently, she was diag­nosed as a paranoid schizophrenic. There­after, she underwent treatment and went on welfare. In 1992, she was ordered deported. Baker applied for an exemption from the requirement to apply for permanent resi­dence outside Canada, based on humanitar­ian and compassionate considerations, pur­suant to s. 114(2) of the Immigration Act. Included in the application was a letter from the Child­ren's Aid Society con­cerning the children. The exemption was denied. Baker applied for judicial review on the ground, inter alia, that the United Nations Conven­tion on the Rights of the Child dictated that her interests as well as the best interests of the children be a pri­mary con­sideration in the decision instead of being just one of many consider­ations.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 101 F.T.R. 110, dismissed the application. However, the court certified a question for appeal as to whether the best interests of the child were to be a primary consideration.

The Federal Court of Appeal, in a decision reported 207 N.R. 57, answered the question in the negative and dismissed the appeal. Baker appealed.

The Supreme Court of Canada allowed the appeal and returned the matter to the Minis­ter for redetermination by a different immi­gration officer.

Administrative Law - Topic 547

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When required - Baker, an illegal immi­grant, applied for an exemp­tion from the requirement to apply for permanent resi­dence outside Canada, based on humani­tar­ian and compassionate considerations, pursuant to s. 114(2) of the Immigration Act - Caden, a senior immigra­tion officer, denied the application without giving reasons - Baker applied for judicial review on the ground, inter alia, that Caden's failure to provide either reasons for his decision or a subsequent affidavit explain­ing them constituted a breach of the prin­ciples of fairness - The Supreme Court of Canada stated that "in cases such as this where the decision has important signifi­cance for the individual, when there is a statutory right of appeal, or in other cir­cumstances, some form of reasons should be required. ... It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached" - See paragraph 43.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Suffi­ciency of - Baker, an illegal immi­grant, applied for an exemp­tion from the require­ment to apply for permanent resi­dence outside Canada, based on humani­tar­ian and compassionate considerations, pursuant to s. 114(2) of the Immigration Act - She submitted a written applica­tion accom­panied by supporting documen­tation - Lorenz, a junior immigration officer, sum­marized the application and recom­mended that it be denied - The sum­mary, recom­mendation, and material was con­sidered by Caden, a senior officer, who denied the application without giving reasons - In applying for judicial review, Baker sub­mitted, inter alia, that Lorenz's notes should be considered the reasons for the decision - The Supreme Court of Canada held that Lorenz's notes satisfied the re­quirement for reasons under the duty of procedural fairness and would be taken to be the reasons for the decision - See para­graph 44.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Baker applied for an exemp­tion from the require­ment to apply for permanent resi­dence outside Canada, based on humanitar­ian and compassionate considerations, pursuant to s. 114(2) of the Immigration Act - Lorenz, a junior immi­gration officer, sum­marized her appli­cation and recommended that it be denied - The sum­mary, recom­mendation, and material was considered by Caden, a senior immi­gration officer, who denied the appli­cation without giving reasons - Baker applied for judicial review on the ground, inter alia, that Lorenz's notes gave rise to a reason­able apprehen­sion of bias - The Supreme Court of Canada stated that the duty to act fairly applied "to all immigra­tion officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordi­nate officer plays an important role in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner" - See paragraph 45.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Baker applied for an exemp­tion from the require­ment to apply for permanent resi­dence outside Canada, based on humanitar­ian and com­passionate considerations, pursuant to s. 114(2) of the Immigration Act - Lorenz, an immigration officer, summarized her appli­cation and recommended that it be denied - The sum­mary, recommendation, and material were considered by Caden, a senior officer, who denied the application without giving reasons - Baker applied for judicial review on the ground, inter alia, that Lorenz's notes gave rise to a reason­able apprehen­sion of bias - After holding that Lorenz's notes constituted reasons for the decision, the Supreme Court of Canada granted judi­cial review because of perceived bias in that the notes "seem to make a link be­tween Ms. Baker's mental illness, her training as a domestic worker, the fact that she has several children, and the conclu­sion that she would therefore be a strain on our social welfare system for the rest of her life" - See paragraph 48.

Administrative Law - Topic 2095

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Attitudinal bias - Baker, an illegal immi­grant from Jamaica, applied unsuccessfully for an exemp­tion from the require­ment to apply for permanent resi­dence outside Canada, based on humanitar­ian and com­passionate con­siderations, pursuant to s. 114(2) of the Immigration Act - Baker applied for judi­cial review on the ground, inter alia, of bias - In deter­mining the issue, the Supreme Court of Canada noted that these decisions have great importance to the individuals con­cerned and are often critical to the interests of Canada as a country - The court stated that such deci­sions "require special sensi­tivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the import­ance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from dif­ferent cultures, races, and conti­nents, imm­igration decisions demand sensi­tivity and under­standing by those making them. They require a recog­nition of diver­sity, an un­derstanding of others, and an openness to difference" - See paragraph 47.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The Supreme Court of Canada discussed the factors to be considered in determining whether there had been compliance with the duty of fairness in a particular situation - Factors to be considered included (1) the nature of the decision being made and the process followed in making it (i.e., the closer to judicial decision making, the more likely that procedural protections closer to the trial model will be required), (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates, (3) the importance of the decision to the individual affected, (4) the legitimate expectations of the person challenging the decision, and (5) the choice of procedure made by the agency itself and its institutional constraints - See paragraphs 21 to 27.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate ex­pectation - [See fourth Aliens - Topic 1206 ].

Aliens - Topic 3.2

Definitions and general principles - Legis­lation - Incorporation of international obligations - [See second Aliens - Topic 1206 ].

Aliens - Topic 1206

Admission - Immigrants - Upon compas­sionate or humanitarian grounds - Best interests of the children - Baker, an illegal immi­grant from Jamaica, applied unsuc­cessfully for an exemp­tion from the re­quire­ment to apply for permanent resi­dence outside Canada, based on humani­tar­ian and com­passionate (H & C) con­siderations, pursuant to s. 114(2) of the Immigration Act - Baker sought judicial review, assert­ing that the decision was unreasonable because the immigration officer failed to treat the best interests of Baker's four Canadian children as a pri­mary factor - In holding that the decision was unreasonable, the Supreme Court of Canada stated that "the decision-maker should consider child­ren's best interests as an important factor, give them substantial weight, and be alert, alive, and sensitive to them. That is not to say that children's best interests must always out­weigh other con­siderations, or that there will not be other reasons for denying an H & C claim even when child­ren's interests are given this consideration" - See para­graph 75.

Aliens - Topic 1206

Admission - Immigrants - Upon compas­sionate or humanitarian grounds - Best interests of the children - Baker, an illegal immi­grant from Jamaica, applied unsuc­cessfully for an exemp­tion from the re­quire­ment to apply for permanent resi­dence outside Canada, based on humani­tar­ian and com­passionate (H & C) con­siderations, pursuant to s. 114(2) of the Immigration Act - Baker sought judicial review, assert­ing that the decision was unreason­able because the immigration officer failed to treat the best interests of Baker's four Canadian children as a pri­mary factor pursuant to, inter alia, the United Nations Convention on the Rights of the Child (the Convention) - The Supreme Court of Canada held that the Convention was not part of Canadian law because it was not implemented by statute - "Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review" - See paragraphs 70 and 78 to 81.

Aliens - Topic 1206

Admission - Immigrants - Upon compas­sionate or humanitarian grounds - Baker had four children - In 1981, she left the children in Jamaica and entered Canada as a visitor - She had four more children while in Canada - Subsequently, she was diagnosed as a paranoid schizophrenic - Thereafter, she underwent treatment and went on welfare - In 1992, she was ordered deported - Baker applied unsuc­cessfully for an exemp­tion from the re­quire­ment to apply for perma­nent resi­dence outside Canada, based on humani­tar­ian and com­passionate con­siderations, pursuant to s. 114(2) of the Immigration Act - Baker applied for judicial review on the ground, inter alia, that the decision was unreason­able - In granting judicial review, the Supreme Court of Canada observed that "the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be sep­arated from at least some of her children" -See paragraph 73.

Aliens - Topic 1206

Admission - Immigrants - Upon compas­sionate or humanitarian grounds - Baker applied unsuc­cessfully for an exemp­tion from the re­quire­ment to apply for perma­nent resi­dence outside Canada, based on humanitar­ian and com­passionate con­sider­ations, pursuant to s. 114(2) of the Immi­gration Act - She sought judicial review, asserting a breach of the doctrine of legiti­mate expectations, in that the best interests of her Cana­dian children was not a pri­mary factor in the decision (as mandated by the United Nations Convention on the Rights of the Child) - In rejecting Baker's submission, the Supreme Court of Canada stated that "the doctrine of legitimate expectations cannot lead to sub­stantive rights outside the procedural domain. This doctrine, ..., is based on the principle that the 'circumstan­ces' affecting procedural fairness take into account the promises or regular practices of administra­tive deci­sion-makers, and that it will gen­erally be unfair for them to act in contra­vention of representations as to procedure, or to back­track on substantive promises without according significant procedural rights" - See para­graph 26.

Aliens - Topic 1206

Admission - Immigrants - Upon compas­sionate or humanitarian grounds - [See Administrative Law - Topic 2095 , Ad­ministrative Law - Topic 2266 , second Aliens - Topic 4081 and Aliens - Topic 4089 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review -Scope of - Baker applied unsuc­cessfully for an exemp­tion from the re­quire­ment to apply for perma­nent resi­dence outside Canada, based on humanitar­ian and com­passionate con­sider­ations, pursuant to s. 114(2) of the Immi­gration Act - She sought judicial review - An issue arose as to the appropri­ate standard of review: patent unreason­ableness, unreasonableness simpliciter, or correctness - In finding that the appropriate standard was reasonable­ness simpliciter, the Supreme Court of Canada considered four factors: (1) the presence or absence of a privative clause, and, in appropriate cases, the wording of that clause, (2) the expertise of the deci­sion maker, (3) the purpose of the provi­sion in particular, and of the Act as a whole, and (4) the nature of the problem in question, especially whether it related to determination of law or facts - See para­graphs 57 to 62.

Aliens - Topic 4069

Practice - Judicial review - Appeals - Certification of serious question of general importance by Trial Division - Section 83(1) of the Immigration Act limited judi­cial review appeals to questions certified by the trial court as being of general im­portance - The Minister submitted that an appeal was restricted to determination of the certified question - The Supreme Court of Canada stated that once a ques­tion had been certified, all aspects of the appeal could be considered - The court stated that the certification "allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here" - See para­graph 12.

Aliens - Topic 4081

Practice - Hearings - General - Fair hear­ing - What constitutes - Consider­ations - [See Administrative Law - Topic 2266 ].

Aliens - Topic 4081

Practice - Hearings - General - Fair hear­ing - What constitutes - Consider­ations - Duty of fairness - Baker, an illegal immi­grant from Jamaica, had three children while living in Canada - After she was ordered deported, she applied unsuc­cessful­ly for an exemp­tion from the re­quire­ment to apply for perma­nent resi­dence outside Canada, based on humani­tar­ian and com­passionate con­sider­ations, pursuant to s. 114(2) of the Immi­gration Act - She applied for judicial review on the ground, inter alia, that the lack of an oral hearing was a denial of the duty of fairness - The Minis­ter submitted that the duty of fairness owed in the circumstances was "minimal" -While holding that an oral hearing was not a general requirement, the Supreme Court of Canada stated that "the circumstances require a full and fair con­sideration of the issues, and the claim­ant and others whose important inter­ests are affected by the decision in a fun­damen­tal way must have a meaningful opportun­ity to present the various types of evidence relevant to their case and have it fully and fairly con­sidered" - See para­graph 32.

Aliens - Topic 4089

Practice - Hearings - Right to be present - Baker, an illegal immigrant, applied unsuc­cessful­ly for an exemp­tion from the re­quire­ment to apply for perma­nent resi­dence outside Canada, based on humani­tar­ian and com­passionate con­sider­ations, pursuant to s. 114(2) of the Immi­gration Act - She submitted a written application accom­panied by supporting documentation - Lorenz, a junior immigration officer, sum­marized the application and recom­mended that it be denied - The summary, recom­mendation, and material was con­sidered by Caden, a senior officer, who denied the application - Baker applied for judicial review on the ground, inter alia, that she was denied a fair hearing because neither she nor her children were granted an oral hearing - While granting judicial review on other grounds, the Supreme Court of Canada held that the lack of an oral hear­ing or notice of such a hearing did not constitute a violation of the re­quirements of pro­cedural fairness - See paragraphs 30 to 34.

Aliens - Topic 4090

Practice - Hearings - Restrictions on issues addressed - [See Aliens - Topic 4069 ].

International Law - Topic 5

General - Incorporation into domestic law -[See second Aliens - Topic 1206 ].

Treaties - Topic 1606

Operation and effect - Domestic or inter­nal consequences - [See second Aliens - Topic 1206 ].

Cases Noticed:

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), not apprvd. [para. 12].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, folld. [para. 12].

Ramoutar v. Minister of Employment and Immigration, [1993] 3 F.C. 370; 65 F.T.R. 32 (T.D.), apprvd. [para. 12].

Jiminez-Perez and Reid v. Minister of Employment and Immigration et al., [1984] 2 S.C.R. 565; 56 N.R. 215, refd to. [para. 15].

Cardinal and Oswald v. Kent Institution, Director of, [1985] 2 S.C.R. 643; 63 N.R. 353; 49 C.R.(3d) 35; [1986] 1 W.W.R. 577; 23 C.C.C.(3d) 118; 24 D.L.R.(4th) 44, refd to. [para. 20].

Sobrie v. Minister of Employment and Immigration (1987), 3 Imm. L.R.(2d) 81 (F.C.T.D.), refd to. [para. 20].

Said v. Minister of Employment and Immigration (1992), 55 F.T.R. 81; 6 Admin. L.R.(2d) 23 (T.D.), refd to. [para. 20].

Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), consd. [para. 20].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 69 D.L.R.(4th) 489; [1990] 3 W.W.R. 289, consd. [para. 21].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 21].

Russell v. Norfolk (Duke), [1949] 1 All E.R. 109 (C.A.), refd to. [para. 23].

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 23].

Kane v. Board of Governors of the Uni­ver­sity of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 25].

R. v. Higher Education Funding Council; Ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (D.C.), consd. [para. 25].

Reference Re Canada Assistance Plan - see Reference Re Constitutional Question Act (B.C.).

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 26].

Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm.L.R.(2d) 57 (F.C.T.D.), refd to. [para. 26].

Mercier-Néron v. Canada (Ministre de la Santé nationale et du Bien-être social) et al. (1995), 98 F.T.R. 36 (T.D.), refd to. [para. 26].

Bendahmane v. Minister of Employment and Immigration, [1989] 3 F.C. 16; 95 N.R. 385 (F.C.A.), refd to. [para. 26].

Canada (Attorney General) v. Human Rights Tribunal Panel (Can.) et al. (1994), 76 F.T.R. 1 (T.D.), refd to. [para. 26].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 27].

Tylo v. Minister of Employment and Immigration (1995), 90 F.T.R. 157 (T.D.), refd to. [para. 36].

Gheorlan v. Canada (Secretary of State) (1995), 26 Imm. L.R.(2d) 170 (F.C.T.D.), refd to. [para. 36].

Chan v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 62 (T.D.), refd to. [para. 36].

Marques v. Canada (Minister of Citizen­ship and Immigration) (No. 1) (1995), 116 F.T.R. 241 (T.D.), consd. [para. 36].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, consd. [para. 37].

Supermarchés Jean Labrecque Inc. v. Flamand - see Supermarchés Jean Labrecque Inc. v. Tri­bunal du travail.

Supermarchés Jean Labrecque Inc. v. Tri­bunal du travail, [1987] 2 S.C.R. 219; 78 N.R. 201; 9 Q.A.C. 161, refd to. [para. 37].

Public Service Board of New South Wales v. Osmond (1986), 159 C.L.R. 656 (H.C.A.), refd to. [para. 37].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 38].

Williams v. Canada (Minister of Citizen­ship and Immigration), [1997] 2 F.C. 646; 212 N.R. 63 (F.C.A.), refd to. [para. 39].

R. v. Civil Service Appeal Board; Ex parte Cunningham, [1991] 4 All E.R. 310 (C.A.), refd to. [para. 41].

R. v. Secretary of State for the Home Department; Ex parte Doody (S.), [1994] 1 A.C. 531; 243 N.R. 87 (H.L.), consd. [para. 41].

Norton Tool Co. v. Tewson, [1973] 1 W.L.R. 45 (N.I.R.C.), refd to. [para. 41].

Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R. 120 (N.I.R.C.), refd to. [para. 41].

Orlowski v. British Columbia (Attorney General) (1992), 16 B.C.A.C. 204; 28 W.A.C. 204; 94 D.L.R.(4th) 541 (C.A.), consd. [para. 42].

R.D.R. Construction Ltd. v. Rent Review Commission (N.S.) (1982), 55 N.S.R.(2d) 71; 114 A.P.R. 71 (C.A.), consd. [para. 42].

Taabea v. Canada (Refugee Status Advis­ory Com­mittee), [1980] 2 F.C. 316 (T.D.), consd. [para. 42].

Boyle v. Workplace Health, Safety and Compensation Commission (N.B.) (1996), 179 N.B.R.(2d) 43; 455 A.P.R. 43 (C.A.), consd. [para. 42].

Committee for Justice and Liberty Foun­da­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, consd. [para. 46].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 46].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 47].

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la com­mission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Syndicat national des employés de la Com­mission scolaire régionale de l'Out­aouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 52].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 52].

Pezim v. Superintendent of Brokers (B.C.) - see Pezim v. British Columbia Secur­ities Com­mission et al.

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 52].

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. 52].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 53].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 53].

Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223 (C.A.), refd to. [para. 53].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 53].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [paras. 53, 81].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 67].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 67].

Francis v. R., [1956] S.C.R. 618, refd to. [para. 69].

Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commis­sion et al., [1978] 2 S.C.R. 141; 18 N.R. 181, refd to. [paras. 69, 79].

Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (C.A.), refd to. [para. 70].

Vishaka v. Rajasthan, [1997] 3 L.R.C. 361 (S.C. India), refd to. [para. 70].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193; [1991] 2 W.W.R. 1; 61 C.C.C.(3d) 1; 3 C.R.R.(2d) 193, refd to. [para. 70].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 77].

Statutes Noticed:

Convention on the Rights of the Child - see United Nations Convention on the Rights of the Child.

Immigration Act, R.S.C. 1985, c. I-2, sect. 9(1) [para. 15]; sect. 82.1(1), sect. 83(1), sect. 114(2) [para. 7].

Immigration Act Regulations (Can.), Im­mi­gration Regulations, SOR/78-172 (as amended by SOR/93-44), sect. 2.1 [para. 7].

United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 3(1), art. 3(2), art. 9(1), art. 9(2), art. 9(3), art. 9(4), art. 12(1), art. 12(2) [para. 7].

United Nations Declaration of the Rights of the Child (1959), preamble [para. 71].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998 Looseleaf), pp. 7-66, 7-67 [para. 24]; 7-66 to 7-70 [para. 27]; 14-47 [para. 54].

Canada, Department of Employment and Immigration, Immigration Manual: Examination and Enforcement (1983) (1991 Looseleaf Update) (Release 2), ch. 9, Guidelines 9.05 [para. 16]; 9.07 [para. 17].

Davis, Kenneth Culp, Discretionary Justice (1969), p. 4 [para. 52].

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Counsel:

Roger Rowe and Rocco Galati, for the appellant;

Urszula Kaczmarczyk and Cheryl D. Mitchell, for the respondent;

Sheena Scott and Sharryn Aiken, for the interveners, the Canadian Foundation for Children, Youth and the Law, the Defence for Children International-Canada and the Canadian Council for Refugees;

John Terry and Craig Scott, for the intervener, the Charter Committee on Pov­erty Issues;

Barbara Jackman and Marie Chen, for the intervener, the Canadian Council of Churches.

Solicitors of Record:

Roger Rowe and Rocco Galati, North York, Ontario, for the appellant;

Deputy Attorney General of Canada, Toronto, Ontario, for the respondent;

Canadian Foundation for Children, Youth and the Law, Toronto, Ontario, for the interveners, the Canadian Foundation for Children, Youth and the Law, the Defence for Children Interna­tional-Canada and the Canadian Council for Refugees;

Tory, Tory, DesLauriers and Binnington, Toronto, Ontario, for the intervener, the Charter Com­mittee on Poverty Issues;

Jackman and Associates, Toronto, Ontario, for the intervener, the Canadian Council of Churches.

This appeal was heard on November 4, 1998, by L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

The decision of the Supreme Court of Canada was delivered in both official lan­guages on July 9, 1999, and the following opinions were filed:

L'Heureux-Dubé, J. (Gonthier, McLachlin, Bastarache and Binnie, JJ., concurring) - see paragraphs 1 to 77;

Iacobucci, J. (Cory, J., concurring) - see paragraphs 78 to 81.