Globe and Mail

Consider children before deporting mother, court says

Illegal immigrant, the parent of four offspring born in Canada, wins right to new hearing

BRIAN LAGHI
The Globe and Mail
Saturday, July 10, 1999

OTTAWA -- A Jamaican woman fighting deportation and potential separation from her children has been given another chance to stay in the country by the Supreme Court of Canada in a ruling that lawyers say could affect hundreds of other illegal immigrants with Canadian offspring.

The court ruled yesterday that the Immigration Department must give a new hearing to Mavis Baker, a 44-year-old mother of four Canadian-born children who arrived in Canada 18 years ago and wants to remain on humanitarian and compassionate grounds.

The court ruled that immigration officials who investigated her request did not give appropriate consideration to the effect Ms. Baker's deportation would have on her children, all of whom were born in Canada and are Canadian citizens.

"The officer was completely dismissive of the interests of Ms. Baker's children," said the 7-0 ruling written by Madam Justice Claire L'Heureux-Dubé.

The judges also found that the officer who investigated Ms. Baker's case indicated a potential for bias by suggesting that the woman would be a strain on Canada's social-welfare system because of mental illness and other factors.

Sharryn Aiken, a law professor and former president of the Canadian Council for Refugees, which intervened in the case, said the decision would help many others in similar situations.

"The implications are very clear," Ms. Aiken said. "Immigration decisions that affect children, the children's interests and their rights need to be given sensitive and very direct consideration."
She added that fears the decision would "open the floodgates" to individuals trying to remain in Canada by having so-called passport babies are unfounded. The court's decision simply gives Ms. Baker the right to another hearing, at which she can still be refused.

Ms. Baker's lawyer, Roger Rowe, agreed that the decision has wide implications, but he also expressed dissatisfaction that his client wasn't accorded immediate permanent-resident status.

"Ms. Baker would like to work and go to school here, but has been unable to because she has not received authorization from Canada Immigration," he said in a written statement. "Ms. Baker and her children hope that Canada Immigration will allow her to remain in Canada."

The case stems from Ms. Baker's arrival in 1981 and her subsequent decision to remain in the country after the expiry of her visa. She began working in Canada as a domestic, but was not ordered deported until 1992, after having had four children. She applied for landed-immigrant status based on humanitarian and compassionate grounds, but was refused.

The Supreme Court was asked to hear several different issues regarding the case.

First, Ms. Baker's lawyers argued that the immigration ruling violated the international convention on the child, to which Canada is a signatory.

They also argued that the officer who investigated her case did not consider the effect of her deportation on her children, and that he was biased when making his decision.

The court examined the notes of the investigating officer and ruled that there was a "reasonable apprehension of bias."

"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."

Moreover, the notes showed that the investigating officer may have drawn inappropriate conclusions about Ms. Baker that were not supported by evidence, the court said.

The notes stated that Ms. Baker had no income or assets and declared in capital letters that she had a total of eight children (four in Canada and four in Jamaica).

They said the case was an indictment of the Canadian system because it had taken so long to deport the woman. They also said she suffers from paranoid schizophrenia and is on welfare.

"She will, of course, be a tremendous strain on our social-welfare systems for (probably) the rest of her life," the notes said. ". . . I am of the opinion that Canada can no longer afford this kind of generosity."

The court said the notes "do not disclose the existence of an open mind . . ."

Huguette Shouldice, a spokeswoman for the Immigration Department, said yesterday that lawyers are examining the decision. However, she said the ruling reflects the government's new policy guidelines, which say immigration officers should consider family issues when making decisions on humanitarian and compassionate grounds.

Another legal expert added, however, that the court has gone further than that.

Barbara Jackman, a prominent Toronto immigration lawyer, said the government's guidelines are simply a policy that can be changed by new government administrations. The Supreme Court's decision forces children's issues to always be considered, she said.

WHAT WAS SAID

From the unanimous decision, written by Madam Justice Claire L'Heureux-Dubé:

Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. 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.

In my opinion, the well-informed member of the community would perceive bias when reading Officer Lorenz's comments. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Most unfortunate is the fact that they seem to make a link between Ms. Baker's mental illness, her training as a domestic worker, the fact that she has several children, and the conclusion that she would therefore be a strain on our social welfare system for the rest of her life. . . .

I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker'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, and must, therefore, be overturned.

In addition, the reasons for the decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children. . . .

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 [humanitarian and compassionate] 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.

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