Rethinking Baker: A Critical Race Feminist Theory of Disability
| Author | Alyssa Clutterbuck |
| Position | Is completing her B.C.L./LL.B. at McGill University |
| Pages | 51-70 |
APPEAL VOLUME 20
n
51
Winner of the 2015 McCarthy Tétrault Prize for
ExceptionalWriting
ARTICLE
RETHINKING BAKER: A CRITICAL RACE
FEMINIST THEORY OF DISABILITY
Alyssa Clutterbuck*
CITED: (2015) 20 Appeal 51
INTRODUCTION
One of the dangers of stand ing at the intersection […] is the likelihood of
being run over.1
— Ann duCille
Baker v Canada (Citizenship and Immigration) (“Baker”)2 is widely regarded as a leading
case in admi nistrative law establishing a new standa rd for the review of administrative
discretion and the duty of procedural fairness.3 However, many analyses of Baker erase
the multiple sources of vulnerability that Ms. Mavis B aker, the appellant, faced. Ms.
Baker was a Black woma n immigrant from Jamaica, l iving in poverty as a single mother,
and suering from a menta l illness. Even though her appea l was successf ul, her social
position was largely absent f rom the decision of the Supreme Court of Canada (“SCC”).
Understanding thi s case from a Critical R ace Feminist perspec tive demonstrates the
ways that even succe ssful litigation can fail to unpack how administrative system s are
violent towards people at the margi ns.
Ms. Baker’s case was a ch allenge to the ruli ng of an Immigration Ocer who denied
her Humanitaria n and Compassionate considerations (“H&C”) application. Ms. Baker
* Alyssa is completing her B.C .L./LL.B. at McG ill University. She completed her Mas ter’s degree
from Cornell Universit y prior to law school. Her essay was orig inally a term paper written unde r
the supervision of Prof essor Vrinda Narain.
Acknowledgments: Sp ecial thanks to Vrinda Narain for her sup port and encouragement. R oman
Ivanov, Darcel Bullen, and Ngozi Ok idegbe provided valuable fe edback on earlier drafts of th e
essay. Thanks also to Carole Boyce Davi es for her unwavering mentorship.
1 Ann duCille, “The Occult of True Black Womanhood: Criti cal Demeanor and Black Feminist
Studies” (1994) 19 Signs 591 at 593.
[Baker SCC cited to SCR].
3 See Roger Rowe, “Baker Revisited” (2007) 38 J of Black Stud 3; Davi d Dyzenhaus & Evan
Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada ” (2001) 51 UTLJ
193; Gerald P Heckman, “Unnished Bu siness: Baker and the Constitutionalit y of the Leave
and Certication Requirements Under the Immigration Act” (2001) 27 Queen’s LJ 683; David
Dyzenhaus, “Constitu ting the Rule of Law: Fundamental Values in Admin istrative Law” (2001)
27 Queen’s LJ 445; Gerald Heck man & Lorne Sossin, “How do Canadian Adm inistrative Law
Protections Measure Up to Inter national Human Rights Standards? The Case of I ndependence”
(2005) 50 McGill LJ 193 at 252.
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APPEAL VOLUME 20
left her four adult children i n her home country and entered Canada on a v isitor’s visa
in 1981. While livin g in Canada, she had four children. A fter the birth of her nal chi ld
in 1992, Ms. Baker began su ering from paranoid schi zophrenia as a result of post-
partum depression. She applied for welf are and underwent treatment as an in-patient at
the Queen Street Mental Hea lth Centre in Toronto for approximately one year.4
Ms. Baker was without legal status and subject to a n outstanding deportation order,
which was issued in 1982. She received anot her deportation order in December 1992
after it was determined that she had worked illega lly in Canada a nd overstayed her
visitor’s visa. In 1993, Ms. Baker applied for an exemption from the requirement to
apply for permanent residency from outside Canada, based upon H&C considerations,
pursuant to section 114(2) of what is now the Immigration and Refugee Protection Act.5
e application included a letter from the Chi ldren’s Aid Society, and a letter from her
mental health professiona l, Dr. Collins.6 e documentat ion provided that althoug h she
was still ex periencing psychiatric problems, she wa s making progress. It a lso stated that
her deportation might trig ger another bout of mental illness since treatment might not
be available in Jama ica.7
In 1994, Ms. Baker was denied perma nent residency on H&C grounds without
explanation in the notice sent to her. Only after persistent requests were the applicat ion
notes (taken by Ocer George Lorenz , and which formed the basis of Chief of Removal s
Ocer Caden’s decision) made available to Ms. Baker’s publicly funded c ounsel. Mr.
Lorenz’s notes, in part, stated th at Ms. Baker should be denied state protect ion from
deportation based on the follow ing:
is case is a c atastrophy [sic]. It is also an indictment of our ‘system’ that
the client came as a vi sitor in Aug. ’81, was not ordered deported until Dec.
’92 and in APRI L ’94 IS STILL HERE!
e PC is a paranoid schiz ophrenic and on welfare. She has no
qualications ot her than as a domestic. She ha s FOUR CHILDREN IN
JAMA ICA AND OT HER FOUR BORN HER E. She will, of course, be
a tremendous strain on our soci al welfare systems for (probably) the rest of
her life. ere are no H&C factors other th an her FOUR CANA DIAN
BORN CHILDR EN. Do we let her stay because of that? I a m of the
opinion that Canada c an no longer aord this type of generosit y. However,
because of the circu mstances involved, there is a potentia l for adverse
publicity. I recommend refusal but you may wish to cle ar this with
someone at Region.8
Ocer Lorenz’s notes, written in his capacity as an executive member of t he Canadian
government, are now renowned as a demonstrat ion of the improper use of discretion
and decision-making aut hority in administr ative law and immigrat ion law, with the
SCC’s decision cited as a leading authority. Mr. Lorenz relied on stereot ypes of Black
women as hypersexua l welfare queens, whose chi ldrearing is in pursuit of greater social
4 Baker SCC, supra note 2 at para 5; Sharr yn Aiken & Sheena Scott, “Ba ker v Canada (Minister of
Citizenship and Immigration)” (200 0) 15 J of Law and Social Policy 211. This case began as a
poverty law le taken on b y lawyer and community advocate Ro ger Rowe.
5 Immigration and Refugee Protection Act, SC 2001, c 27.
6 Baker SCC, supra note 2 at para 10.
7 Aiken & Scott, supra note 4.
8 Baker SCC, supra note 2 at para 5 [emph asis in original]. See Appendix A, b elow, for the entirety
of Ocer Lorenz’s notes, whic h were reproduced in the SCC ruling.
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