Court/Judicial body: Supreme Court of Canada
Date: 9 July 1999 CRC
Provisions: Article 3: Best Interests of the child Article 9: Separation from parents Article 12: The child’s opinion
Other international provisions: Declaration of the Rights of the Child (1959), preamble
Domestic provisions: 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] Canadian Charter of Rights and Freedoms
Background: Ms Baker, a Jamaican citizen who had been diagnosed with mental illness, was ordered to be deported from Canada after it was determined that she had worked illegally and overstayed her visa there. She had four Canadian citizen children – she was the sole caregiver for two of them, and the other two depended on her for emotional support and were in regular contact with her. She applied for an exemption from the requirement to apply for permanent residence outside Canada, based on humanitarian and compassionate considerations. An immigration officer refused her application, deciding that there were insufficient humanitarian and compassionate reasons to warrant processing her application in Canada, and ordered that she be deported despite having Canadian children.
Issue and resolution: Immigration; separation from parents; best interests of the child. The Supreme Court allowed Ms Baker’s appeal because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the immigration officer’s discretion was unreasonable.
Court reasoning: All immigration officers with decision-making power have a duty to exercise procedural fairness, which requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker. Statements in the immigration officer’s notes indicate that he had not approached this case with appropriate impartiality and instead may have drawn 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. The notes therefore give rise to a reasonable apprehension of bias. Emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the “humanitarian” and “compassionate” considerations that guide the exercise of the discretionary power under s.114(2) of the Immigration Act. 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 under the legislation.
Excerpt citing CRC and other relevant human rights 8. [L’HEUREUX-DUBÉ J.] Simpson J [who delivered oral reasons dismissing the appellant’s judicial review application] […] 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?” 10. […] 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. […] 29. […] I will first determine whether the duty of procedural fairness that would otherwise be applicable is affected, as the appellant argues, by the existence of a legitimate expectation based upon the text of the articles of the Convention and the fact that Canada has ratified it. In my view, however, the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H & C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied.
This Convention is not, in my view, the equivalent of a government representation about how H & C applications will be decided, nor does it suggest that any rights beyond the participatory rights discussed below will be accorded. Therefore, in this case there is no legitimate expectation affecting the content of the duty of fairness, and the fourth factor outlined above therefore does not affect the analysis. It is unnecessary to decide whether an international instrument ratified by Canada could, in other circumstances, give rise to a legitimate expectation. 69. Another indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of the Child, and the recognition of the importance of children’s rights and the best interests of children in other international instruments ratified by Canada. International treaties and conventions are not part of Canadian law unless they have been implemented by statute […]. I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law. 70. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. […] 71. The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognizes that “childhood is end to special care and assistance”. A similar emphasis on the importance of placing considerable value on the protection of children and their needs and interests is also contained in other international instruments. The United Nations Declaration of the Rights of the Child (1959), in its preamble, states that the child “needs special safeguards and care”. The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power. 72. Third, the guidelines issued by the Minister to immigration officers recognize and reflect the values and approach discussed above and articulated in the Convention. As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members […] They emphasize that the decision-maker […] should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. 74. […] attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner. While deference should be given to immigration officers on s. 114(2) judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values. […] 75.
The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, 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. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. 78. IACOBUCCI J. – I agree with L’Heureux-Dubé J.’s reasons and disposition of this appeal, except to the extent that my colleague addresses the effect of international law on the exercise of ministerial discretion pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2. The certified question at issue in this appeal concerns whether federal immigration authorities must treat the best interests of the child as a primary consideration in assessing an application for humanitarian and compassionate consideration under s. 114(2) of the Act, given that the legislation does not implement the provisions contained in the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, a multilateral convention to which Canada is party. In my opinion, the certified question should be answered in the negative. 79. It is a matter of well-settled law that an international convention ratified by the executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation: […]. I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law, because such an approach is not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system. 80. […] I do not share my colleague’s confidence that the Court’s precedent in Capital Cities, supra, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament. 81. The primacy accorded to the rights of children in the Convention, assuming for the sake of argument that the factual circumstances of this appeal are included within the scope of the relevant provisions, is irrelevant unless and until such provisions are the subject of legislation enacted by Parliament. […]
CRIN Comments: CRIN believes this decision is consistent with the CRC. Article 3 mandates that the best interests of children be a primary consideration in all proceedings that concern them, while Article 9 mandates that children must not be separated from their parents against their will except where necessary for the best interests of the child.
Citation:  2 SCR 817
Link to Full Judgment:http://www.canlii.org/en/ca/scc/doc/1999/1999canlii699/1999canlii699.html