Baker v Canada (Minister of Citizenship and Immigration)

Baker, a Jamaican woman who had overstayed her visa for 11 years and was the mother of Canadian-born children, applied for humanitarian and compassionate relief from removal. The SCC held the decision-maker owed procedural fairness, must consider the best interests of the children, and must give reasons.

Baker's H&C application was refused. Officer's notes contained disturbing language about her mental illness and number of children. She challenged the refusal on procedural-fairness grounds.

(1) Was Baker owed procedural fairness? (2) What does that fairness require? (3) Was bias established? (4) What weight should international treaties (CRC) play?

Decision quashed. Bias established on the notes. International human rights values inform statutory interpretation.

Procedural fairness varies according to context. Five non-exhaustive factors: (1) nature of the decision and process, (2) nature of the statutory scheme, (3) importance of the decision to those affected, (4) legitimate expectations, (5) choices of procedure made by the agency. The best interests of children must be considered in H&C decisions, informed by Canada's ratification of the Convention on the Rights of the Child.

L'Heureux-Dubé J held that procedural fairness sits on a spectrum. Reasons can be required where the decision has important consequences. Bias is assessed on the reasonable observer test. Although unimplemented treaties do not bind, they inform statutory interpretation as part of the legal context.

Foundational fairness case. Five Baker factors are still applied in every fairness analysis. The treatment of unimplemented treaties remains influential in administrative interpretation.

Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC).

L'Heureux-Dubé J, Gonthier J, McLachlin J, Iacobucci J, Bastarache J, Binnie J, Cory J