Baker v Canada,

• Judge: Iacobucci J.,L'Heureux-Dubé J.
• Court: Supreme Court (Canada)
• Docket Number: File No.: 25823.
• Date: 09 July 1999

Canada, Supreme Court

(L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Bastarache and Binnie, Judges)

Baker

and

Canada (Minister of Citizenship and Immigration)1

Relationship of international law and municipal law — Treaties — Effect of treaty on interpretation of statute — Administrative law — Effect of treaty on exercise of discretionary powers — Immigration — Deportation of parent with Canadian-born dependent children — Status of ratified but unincorporated treaties in Canadian law — Convention on the Rights of the Child — Effect on municipal law — Whether Convention created legitimate expectation that best interests of Canadian child a primary consideration — Object and purpose of international and domestic legislation safeguarding rights and interests of children — Whether immigration officers having to take best interests of Canadian children as a primary consideration — The law of Canada

Summary:2The facts:—The appellant was a citizen of Jamaica who had remained illegally in Canada after entering as a visitor in 1981. She had four Canadian-born children whom she had supported by working illegally as a domestic worker. In 1992, she was diagnosed with mental illness resulting in two of her children being placed in foster care with the other two placed with their natural father. She applied for welfare support but was ordered to be deported after it was discovered that she had overstayed her visitor's visa and worked illegally. The appellant applied for an exemption on humanitarian and compassionate grounds from the requirement that applications for permanent residence had to be made from outside Canada. Her submissions were supported by statements from her lawyer, doctor and social worker suggesting that, were she forced to return to Jamaica, her condition could worsen and she and her children would suffer emotional hardship.

The application was refused by letter from the immigration officer for insufficient humanitarian and compassion grounds but no reasons were supplied. Following a request from her lawyer, the appellant was provided with the notes of an investigating officer to which the immigration officer had referred when making the decision. The appellant applied for judicial review.

The Federal Court denied the application but certified a serious question of general importance on whether immigration authorities had to treat the best interests of the Canadian child as a primary consideration when assessing applications on humanitarian and compassionate grounds given that the Immigration Act did not implement the provisions of the Convention on the Rights of the Child.3 Limiting itself to the certified question, the Federal Court of Appeal decided the best interests of the child were not a primary consideration in such applications and that the deportation of a parent was not a decision ‘concerning’ children within the meaning of the Act. The appellant's assertion that the Convention gave rise to a legitimate expectation that the interests of the child would be a primary consideration was rejected. The appellant appealed to the Supreme Court.

Held:—The appeal was allowed.

(1) Section 83(1) of the Immigration Act allowed an appeal court to answer all the issues raised by the appeal. The Court was not restricted to the issues raised by the certified question (para. 12).

(2) The principles of procedural fairness had been violated.

(a) The duty of procedural fairness was flexible and variable and depended on an appreciation of the context and circumstances of a particular case. The values underlying procedural fairness included the principle that decisions affecting the rights, interests or privileges of individuals had to be made using a fair, impartial and open process appropriate to the relevant statutory, institutional and social framework (paras. 13–34).

(b) The notes of the investigating officer provided as the reasons for the decision gave rise to a reasonable apprehension of bias in breach of the duty of procedural fairness. The duty to act fairly and impartially applied to all immigration officers who played a significant role in decision-making, whether subordinate reviewers or final decision-makers (paras. 35–48).

(3) There was no evidence of a legitimate expectation affecting the content of the duty of fairness in s. 114(2) applications and it was unnecessary to decide whether an international instrument ratified by Canada, in other circumstances, gave rise to one. The articles of the Convention and their wording did not give rise to a legitimate expectation that specific procedural rights above what would normally be required under the duty of fairness would be accorded

to the apellant or that her application would result in a positive finding (para. 29).

(4) The failure to give serious weight and consideration to the interests of the children constituted an unreasonable exercise of the discretionary powers conferred upon the immigration officers. Children's rights and attention to their interests were central humanitarian and compassionate values in Canadian society. Although the Convention on the Rights of the Child had no direct application in Canadian law, recognition of the importance of children's rights was reflected in its ratification and that of other international instruments by Canada. Further, the objective of maintaining close family connections articulated by Section 3(c) of the Immigration Act could be interpreted to include consideration of the interests of children. For discretionary powers to be exercised reasonably, decision-makers were duty-bound to make the best interests of children one of their primary considerations (paras. 49–75).

Per Cory and Iacobucci JJ (disagreeing only on the effect of international law on the exercise of ministerial discretion): The certified question had to be answered in the negative. It was a matter of well-settled law that the provisions of ratified international instruments only had effect once incorporated into domestic law by implementing legislation. Reference to the underlying values of an unincorporated international treaty in a contextual approach to statutory interpretation was not in accordance with the Court's jurisprudence on the status of international law within the domestic legal system, and risked the separation of powers. Had the case been brought within the ambit of the Canadian Charter of Rights and Freedoms consideration of the exercise of administrative discretion in accordance with international human rights norms would have been permissible (paras. 78–81).

The text of the judgment of Cory and Iacobucci JJ, delivered by Iacobucci J commences at p. 626. The following is the text of the judgment of L'Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ, delivered by L'Heureux-DubéJ:

L'HEUREUX-DUBÉJ

1. Regulations made pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, empower the respondent Minister to facilitate the admission to Canada of a person where the Minister is satisfied, owing to humanitarian and compassionate considerations, that admission should be facilitated or an exemption from the regulations made under the Act should be granted. At the centre of this appeal is the approach to be taken by a court to judicial review of such decisions, both on procedural and substantive grounds. It also raises issues of reasonable apprehension of bias, the provision of written reasons as part of the duty of fairness, and the role of children's interests in reviewing decisions made pursuant to s. 114(2).

I. Factual Background

2. Mavis Baker is a citizen of Jamaica who entered Canada as a visitor in August of 1981 and has remained in Canada since then. She never received permanent resident status, but supported herself illegally as a live-in domestic worker for 11 years. She has had four children (who are all Canadian citizens) while living in Canada: Paul Brown, born in 1985, twins Patricia and Peter Robinson, born in 1989, and Desmond Robinson, born in 1992. After Desmond was born, Ms Baker suffered from post-partum psychosis and was diagnosed with paranoid schizophrenia. She applied for welfare at that time. When she was first diagnosed with mental illness, two of her children were placed in the care of their natural father, and the other two were placed in foster care. The two who were in foster care are now again under her care, since her condition has improved.

3. The appellant was ordered deported in December 1992, after it was determined that she had worked illegally in Canada and had overstayed her visitor's visa. In 1993, Ms Baker applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate considerations, pursuant to s. 114(2) of the Immigration Act. She had the assistance of counsel in filing this application, and included, among other documentation, submissions from her lawyer, a letter from her doctor, and a letter from a social worker with the Children's Aid Society. The documentation provided indicated that, although she was still experiencing psychiatric problems, she was making progress. It also stated that she might become ill again if she were forced to return to Jamaica, since treatment might not be available for her there. Ms Baker's submissions also clearly indicated that she was the sole caregiver for two of her Canadian-born children, and that the other two depended on her for emotional support and were in regular contact with her. The documentation suggested that she too would suffer emotional hardship if she were separated from them.

4. The response to this request was contained in a letter dated April 18, 1994 and signed by Immigration Officer M. Caden, stating that a decision had been made that there were insufficient humanitarian and compassionate grounds to warrant processing Ms Baker's application for permanent residence within Canada. This letter contained no reasons...