Globe and Mail

The Supreme Court's curious oversight

Jeffrey Simpson
Wednesday, August 11, 1999
The Globe and Mail

Ottawa -- Mavis Baker arrived in Canada in August, 1981, from Jamaica on a three-month visitor's visa.

Ms. Baker is still in Canada, despite having worked illegally and been ordered deported. Her case, which is to be heard yet again by immigration officers, illustrates both the frustrations of Canada's immigration policy and the role of the Supreme Court of Canada in those frustrations.

The court recently ruled that Ms. Baker merited another hearing on her appeal to remain in Canada on compassionate and humanitarian grounds.

The immigration officer who heard her first appeal did not give sufficient weight to the interests of the children Ms. Baker had had during her years of illegal residence in Canada, the court ruled. The judges also took exception to the officer's notes of his interview with her, including some of his comments: "she would be a tremendous strain on our social welfare system" and "I am of the opinion that Canada can no longer afford this kind of generosity." The officer noted that she had experienced bouts of schizophrenia and was on welfare.

The court made only passing reference, however, to Ms. Baker's flouting of Canada law, a rather curious oversight for the highest court in the land.

According to her immigration file, after she entered Canada on the three-month visa in 1981, she did not appear again before immigration authorities until November, 1986, by which time she had been illegally in Canada for five years. She then applied for permanent status on "compassionate" and "humanitarian" grounds, since by then she had borne one child in Canada.

Ms. Baker's appeal was rejected and she went underground. The Immigration Department reported her for overstaying her visa and working illegally. A warrant was issued in December, 1987.

She was not located until July, 1992, when police arrested her. By then, she had been illegally in Canada for more than a decade. She was ordered deported in December, 1992; the deportation was delayed owing to her medical condition. In September, 1993, she again applied for permanent residence on "compassionate" and "humanitarian" grounds. In April, 1994, that appeal was turned down. Ms. Baker then appealed that decision to the Federal Court of Canada.

The court's trial division stayed her deportation pending the Federal Court of Appeal's ruling on her appeal against the Immigration Department's rejection of her "compassionate" and "humanitarian" request to remain in Canada. (She had produced three more children from 1989 to 1992.)

The Federal Court of Appeal rejected her appeal, in particular her argument that the United Nations International Convention on the Rights of the Child formed part of Canadian law. The court noted that Parliament had never ratified the convention and that it therefore had not been incorporated into the Immigration Act.

Next, the Supreme Court heard the appeal from the ruling of the Federal Court of Appeal in November, 1998. Its decision last month sent the whole Baker file back for another immigration hearing. Ms. Baker can, of course, appeal a negative judgment and, while that appeal is pending, seek and receive another stay of deportation.

The court criticized the immigration officer for his comments on the Baker case, but it's hard not to have sympathy with him, given the details reported above.

Ms. Baker repeatedly broke Canadian law. The department was unable to find her for most of a decade and, when it did, it was prevented from deporting her by the many layers of appeals available to her.

The immigration officer wrote -- in comments the Supreme Court disliked -- "That the client came as a visitor in Aug. 1981, was not ordered deported until Dec. 1992, and in April 1994 IS STILL HERE!" He was expressing understandable frustration, not just with the particular case but with the "system."

That "system" is so full of appeals and is so time-consuming that the confidence of Canadians in it can be easily shattered. If Ms. Baker had been discovered earlier in her illegal stay and deported forthwith, she would not have had the four children that have formed the basis for her seven years of appeals through the legal system.

It's surprising, to say the least, that her illegal acts were not resolutely condemned by the Supreme Court. The integrity of the immigration system is the loser, and at the end of the day Ms. Baker and her four children may be the winners.

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