Baker v. Canada (Minister of Citizenship and Immigration)

Baker v. Canada (Minister of Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
1999-07-09
Report
[1999] 2 SCR 817
Case number
25823
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Courts
Immigration
Notes
SCC Case Information: 25823
Decision Content
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
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
Indexed as: Baker v. Canada (Minister of Citizenship and Immigration)
File No.: 25823.
1998: November 4; 1999: July 9.
Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Bastarache and Binnie JJ.
on appeal from the federal court of appeal
Immigration -- Humanitarian and compassionate considerations -- Children’s interests -- Woman with Canadian-born dependent children ordered deported -- Written application made on humanitarian and compassionate grounds for exemption to requirement that application for immigration be made abroad -- Application denied without hearing or formal reasons -- Whether procedural fairness violated -- Immigration Act, R.S.C., 1985, c. I‑2, ss. 82.1(1), 114(2) – Immigration Regulations, 1978, SOR/93‑44, s. 2.1 -- Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Arts. 3, 9, 12.
Administrative law -- Procedural fairness -- Woman with Canadian-born dependent children ordered deported -- Written application made on humanitarian and compassionate grounds for exemption to requirement that application for immigration be made abroad -- Whether participatory rights accorded consistent with duty of procedural fairness -- Whether failure to provide reasons violated principles of procedural fairness -- Whether reasonable apprehension of bias.
Courts -- Appellate review -- Judge on judicial review certifying question for consideration of Court of Appeal -- Legal effect of certified question -- Immigration Act, R.S.C., 1985, c. I‑2, s. 83(1).
Immigration -- Humanitarian and compassionate considerations -- Standard of review of humanitarian and compassionate decision -- Best interests of claimant’s children -- Approach to be taken in reviewing humanitarian and compassionate decision where children affected.
Administrative law -- Review of discretion -- Approach to review of discretionary decision making.
The appellant, a woman with Canadian-born dependent children, was ordered deported. She then applied for an exemption, based on humanitarian and compassionate considerations under s. 114(2) of the Immigration Act, from the requirement that an application for permanent residence be made from outside Canada. This application was supported by letters indicating concern about the availability of medical treatment in her country of origin and the effect of her possible departure on her Canadian-born children. A senior immigration officer replied by letter stating that there were insufficient humanitarian and compassionate reasons to warrant processing the application in Canada. This letter contained no reasons for the decision. Counsel for the appellant, however, requested and was provided with the notes made by the investigating immigration officer and used by the senior officer in making his decision. The Federal Court -- Trial Division, dismissed an application for judicial review but certified the following question pursuant to s. 83(1) of the Act: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?” The Court of Appeal limited its consideration to the question and found that the best interests of the children did not need to be given primacy in assessing such an application. The order that the appellant be removed from Canada, which was made after the immigration officer’s decision, was stayed pending the result of this appeal.
Held: The appeal should be allowed.
Per L’Heureux‑Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ.: Section 83(1) of the Immigration Act does not require the Court of Appeal to address only the certified question. Once a question has been certified, the Court of Appeal may consider all aspects of the appeal lying within its jurisdiction.
The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (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 or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.
A duty of procedural fairness applies to humanitarian and compassionate decisions. In this case, there was no legitimate expectation affecting the content of the duty of procedural fairness. Taking into account the other factors, although some suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model. The duty of fairness owed in these circumstances is more than minimal, 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. Nevertheless, taking all the factors into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirement of procedural fairness. The opportunity to produce full and complete written documentation was sufficient.
It is now appropriate to recognize that, in certain circumstances, including when the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision. Reasons are required here given the profound importance of this decision to those affected. This requirement was fulfilled by the provision of the junior immigration officer’s notes, which are to be taken to be the reasons for decision. Accepting such documentation as sufficient reasons upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that, in the administrative context, this transparency may take place in various ways.
Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker. This duty applies to all immigration officers who play a role in the making of decisions. 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. Statements in the immigration officer’s notes gave the impression that he may have been drawing conclusions based not on the evidence before him, but on the fact that the appellant was a single mother with several children and had been diagnosed with a psychiatric illness. Here, a reasonable and well-informed member of the community would conclude that the reviewing officer had not approached this case with the impartiality appropriate to a decision made by an immigration officer. The notes therefore give rise to a reasonable apprehension of bias.
The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries. Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. Review of the substantive aspects of discretionary decisions is best approached within the pragmatic and functional framework defined by this Court’s decisions, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions. Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.
In applying the applicable factors to determining the standard of review, considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as “patent unreasonableness”. The appropriate standard of review is, therefore, reasonableness simpliciter.
The wording of the legislation shows Parliament’s intention that the decision be made in a humanitarian and compassionate manner. A reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children since children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of these values may be found in the purposes of the Act, in international instruments, and in the Minister’s guidelines for making humanitarian and compassionate decisions. Because the reasons for this decision did not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of the appellant’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation. In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to the appellant’s country of origin might cause her.
Per Cory and Iacobucci JJ.: The reasons and disposition of L’Heureux-Dubé J. were agreed with apart from the effect of international law on the exercise of ministerial discretion under s. 114(2) of the Immigration Act. The certified question must be answered in the negative. The principle that an international convention ratified by the executive is of no force or effect within the Canadian legal system until incorporated into domestic law does not survive intact the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation.
Cases Cited
By L’Heureux-Dubé J.
Applied: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; disapproved: Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4; Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238; not followed: Tylo v. Minister of Employment and Immigration (1995), 90 F.T.R. 157; Gheorlan v. Canada (Secretary of State) (1995), 26 Imm. L.R. (2d) 170; Chan v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 62; Marques v. Canada (Minister of Citizenship and Immigration) (No. 1) (1995), 116 F.T.R. 241; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219; Public Service Board of New South Wales v. Osmond (1986), 159 C.L.R. 656; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; referred to: Ramoutar v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370; Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Sobrie v. Canada (Minister of Employment and Immigration) (1987), 3 Imm. L.R. (2d) 81; Said v. Canada (Minister of Employment and Immigration) (1992), 6 Admin. L.R. (2d) 23; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Qi v. Canada (Minister of Citizenship & Immigration) (1995), 33 Imm. L.R. (2d) 57; Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16; Canada (Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 76 F.T.R. 1; IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; R. v. Civil Service Appeal Board, ex parte Cunningham, [1991] 4 All E.R. 310; R. v. Secretary of State for the Home Department, ex parte Doody, [1994] 1 A.C. 531; Norton Tool Co. v. Tewson, [1973] 1 W.L.R. 45; Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R. 120; Orlowski v. British Columbia (Attorney-General) (1992), 94 D.L.R. (4th) 541; R.D.R. Construction Ltd. v. Rent Review Commission (1982), 55 N.S.R. (2d) 71; Taabea v. Refugee Status Advisory Committee, [1980] 2 F.C. 316; Boyle v. Workplace Health, Safety and Compensation Commission (N.B.) (1996), 179 N.B.R. (2d) 43; R. v. S. (R.D.), [1997] 3 S.C.R. 484; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223; Roncarelli v. Duplessis, [1959] S.C.R. 121; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Gladue, [1999] 1 S.C.R. 688; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Francis v. The Queen, [1956] S.C.R. 618; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257; Vishaka v. Rajasthan, [1997] 3 L.R.C. 361; R. v. Keegstra, [1990] 3 S.C.R. 697; Young v. Young, [1993] 4 S.C.R. 3.
By Iacobucci J.
Applied: Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; referred to: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, preamble, Arts. 3(1), (2), 9, 12.
Declaration of the Rights of the Child (1959), preamble.
Immigration Act, R.S.C., 1985, c. I-2, ss. 3(c), 9(1), 82.1(1) [rep. & sub. 1992, c. 49, s. 73], 83(1) [idem], 114(2) [ibid., s. 102].
Immigration Regulations, 1978, SOR/78-172, s. 2.1 [ad. SOR/93-44, s. 2].
Authors Cited
Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose-leaf).
Canada. Employment and Immigration Canada. Immigration Manual: Examination and Enforcement. Ottawa: Employment and Immigration Canada, 1983 (loose-leaf updated 1991, release 2).
Davis, Kenneth Culp. Discretionary Justice: A Preliminary Inquiry. Baton Rouge: Louisiana State University Press, 1969.
de Smith, Stanley A. Judicial Review of Administrative Action, 5th ed. By Lord Woolf and Jeffrey Jowell. London: Sweet & Maxwell, 1995.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart Publishing, 1997, 279.
Macdonald, Roderick A., and David Lametti. “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123.
Morris, Michael H. “Administrative Decision-makers and the Duty to Give Reasons: An Emerging Debate” (1997), 11 C.J.A.L.P. 155.
Mullan, David J. Administrative Law, 3rd ed. Scarborough, Ont.: Carswell, 1996.
Shapiro, Debra. “Legitimate Expectation and its Application to Canadian Immigration Law” (1992), 8 J.L. & Social Pol’y 282.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPEAL from a judgment of the Federal Court of Appeal, [1997] 2 F.C. 127, 207 N.R. 57, 142 D.L.R. (4th) 554, [1996] F.C.J. No. 1726 (QL), dismissing an appeal from a judgment of Simpson J. (1995), 101 F.T.R. 110, 31 Imm. L.R. (2d) 150, [1995] F.C.J. No. 1441 (QL), dismissing an application for judicial review. Appeal allowed.
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.
The judgment of L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ. was delivered by
1 L’Heureux-Dubé J. -- 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 for the decision.
5 Upon request of the appellant’s counsel, she was provided with the notes made by Immigration Officer G. Lorenz, which were used by Officer Caden when making his decision. After a summary of the history of the case, Lorenz’s notes read as follows:
PC is unemployed - on Welfare. No income shown - no assets. Has four Cdn.-born children- four other children in Jamaica- HAS A TOTAL OF EIGHT CHILDREN
Says only two children are in her “direct custody”. (No info on who has ghe [sic] other two).
There is nothing for her in Jamaica - hasn’t been there in a long time - no longer close to her children there - no jobs there - she has no skills other than as a domestic - children would suffer - can’t take them with her and can’t leave them with anyone here. Says has suffered from a mental disorder since ’81 - is now an outpatient and is improving. If sent back will have a relapse.
Letter from Children’s Aid - they say PC has been diagnosed as a paranoid schizophrenic. - children would suffer if returned -
Letter of Aug. ’93 from psychiatrist from Ont. Govm’t.
Says PC had post-partum psychosis and had a brief episode of psychosis in Jam. when was 25 yrs. old. Is now an out-patient and is doing relatively well - deportation would be an extremely stressful experience.
Lawyer says PS [sic] is sole caregiver and single parent of two Cdn born children. Pc’s mental condition would suffer a setback if she is deported etc.
This case is a catastrophy [sic]. It is also an indictment of our “system” that the client came as a visitor in Aug. ’81, was not ordered deported until Dec. ’92 and in APRIL ’94 IS STILL HERE!
The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region.
There is also a potential for violence - see charge of “assault with a weapon” [Capitalization in original.]
6 Following the refusal of her application, Ms. Baker was served, on May 27, 1994, with a direction to report to Pearson Airport on June 17 for removal from Canada. Her deportation has been stayed pending the result of this appeal.
II. Relevant Statutory Provisions and Provisions of International Treaties
7 Immigration Act, R.S.C., 1985, c. I-2
82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court -- Trial Division.
83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court -- Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
114. . . .
(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
Immigration Regulations, 1978, SOR/78-172, as amended by SOR/93-44
2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
III. Judgments
A. Federal Court -- Trial Division (1995), 101 F.T.R. 110
8 Simpson J. delivered oral reasons dismissing the appellant’s judicial review application. She held that since there were no reasons given by Officer Caden for his decision, no affidavit was provided, and no reasons were required, she would assume, in the absence of evidence to the contrary, that he acted in good faith and made a decision based on correct principles. She rejected the appellant’s argument that the statement in Officer Lorenz’s notes that Ms. Baker would be a strain on the welfare system was not supported by the evidence, holding that it was reasonable to conclude from the reports provided that Ms. Baker would not be able to return to work. She held that the language of Officer Lorenz did not raise a reasonable apprehension of bias, and also found that the views expressed in his notes were unimportant, because they were not those of the decision-maker, Officer Caden. She rejected the appellant’s argument that the Convention on the Rights of the Child mandated that the appellant’s interests be given priority in s. 114(2) decisions, holding that the Convention did not apply to this situation, and was not part of domestic law. She also held that the evidence showed the children were a significant factor in the decision-making process. She rejected the appellant’s submission that the Convention gave rise to a legitimate expectation that the children’s interests would be a primary consideration in the decision.
9 Simpson J. certified the following as a “serious question of general importance” under s. 83(1) of the Immigration Act: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?”
B. Federal Court of Appeal, [1997] 2 F.C. 127
10 The reasons of the Court of Appeal were delivered by Strayer J.A. He held that pursuant to s. 83(1) of the Immigration Act, the appeal was limited to the question certified by Simpson J. He also rejected the appellant’s request to challenge the constitutional validity of s. 83(1). Strayer J.A. noted that a treaty cannot have legal effect in Canada unless implemented through domestic legislation, and that the Convention had not been adopted in either federal or provincial legislation. He held that although legislation should be interpreted, where possible, to avoid conflicts with Canada’s international obligations, interpreting s. 114(2) to require that the discretion it provides for must be exercised in accordance with the Convention would interfere with the separation of powers between the executive and legislature. He held that such a principle could also alter rights and obligations within the jurisdiction of provincial legislatures. Strayer J.A. also rejected the argument that any articles of the Convention could be interpreted to impose an obligation upon the government to give primacy to the interests of the children in a proceeding such as deportation. He held that the deportation of a parent was not a decision “concerning” children within the meaning of article 3. Finally, Strayer J.A. considered the appellant’s argument based on the doctrine of legitimate expectations. He noted that because the doctrine does not create substantive rights, and because a requirement that the best interests of the children be given primacy by a decision-maker under s. 114(2) would be to create a substantive right, the doctrine did not apply.
IV. Issues
11 Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position. The issues raised by this appeal are therefore as follows:
(1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review?
(2) Were the principles of procedural fairness violated in this case?
(i) Were the participatory rights accorded consistent with the duty of procedural fairness?
(ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?
(iii) Was there a reasonable apprehension of bias in the making of this decision?
(3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker’s children?
I note that it is the third issue that raises directly the issues contained in the certified question of general importance stated by Simpson J.
V. Analysis
A. Stated Questions Under Section 83(1) of the Immigration Act
12 The Court of Appeal held, in accordance with its decision in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, that the requirement, in s. 83(1), that a “serious question of general importance” be certified for an appeal to be permitted restricts an appeal court to addressing the issues raised by the certified question. However, in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 25, this Court held that s. 83(1) does not require that the Court of Appeal address only the stated question and issues related to it:
The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question.
Rothstein J. noted in Ramoutar v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370 (T.D.), that once a question has been certified, all aspects of the appeal may be considered by the Court of Appeal, within its jurisdiction. I agree. The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a “question of general importance” has been certified, this 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.
B. The Statutory Scheme and the Nature of the Decision
13 Before examining the various grounds for judicial review, it is appropriate to discuss briefly the nature of the decision made under s. 114(2) of the Immigration Act, the role of this decision in the statutory scheme, and the guidelines given by the Minister to immigration officers in relation to it.
14 Section 114(2) itself authorizes the Governor in Council to authorize the Minister to exempt a person from a regulation made under the Act, or to facilitate the admission to Canada of any person. The Minister’s power to grant an exemption based on humanitarian and compassionate (H & C) considerations arises from s. 2.1 of the Immigration Regulations, which I reproduce for convenience:
The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
For the purpose of clarity, I will refer throughout these reasons to decisions made pursuant to the combination of s. 114(2) of the Act and s. 2.1 of the Regulations as “H & C decisions”.
15 Applications for permanent residence must, as a general rule, be made from outside Canada, pursuant to s. 9(1) of the Act. One of the exceptions to this is when admission is facilitated owing to the existence of compassionate or humanitarian considerations. In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration officers: see, for example, Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565, at p. 569. In addition, while in law, the H & C decision is one that provides for an exemption from regulations or from the Act, in practice, it is one that, in cases like this one, determines whether a person who has been in Canada but does not have status can stay in the country or will be required to leave a place where he or she has become established. It is an important decision that affects in a fundamental manner the future of individuals’ lives. In addition, it may also have an important impact on the lives of any Canadian children of the person whose humanitarian and compassionate application is being considered, since they may be separated from one of their parents and/or uprooted from their country of citizenship, where they have settled and have connections.
16 Immigration officers who make H & C decisions are provided with a set of guidelines, contained in chapter 9 of the Immigration Manual: Examination and Enforcement. The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them. These guidelines are also available to the public. A number of statements in the guidelines are relevant to Ms. Baker’s application. Guideline 9.05 emphasizes that officers have a duty to decide which cases should be given a favourable recommendation, by carefully considering all aspects of the case, using their best judgment and asking themselves what a reasonable person would do in such a situation. It also states that although officers are not expected to “delve into areas which are not presented during examination or interviews, they should attempt to clarify possible humanitarian grounds and public policy considerations even if these are not well articulated”.
17 The guidelines also set out the bases upon which the discretion conferred by s. 114(2) and the Regulations should be exercised. Two different types of criteria that may lead to a positive s. 114(2) decision are outlined -- public policy considerations and humanitarian and compassionate grounds. Immigration officers are instructed, under guideline 9.07, to assure themselves, first, whether a public policy consideration is present, and if there is none, whether humanitarian and compassionate circumstances exist. Public policy reasons include marriage to a Canadian resi