National Post

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Thursday, July 08, 1999

Verdict on woman's deportation to Jamaica will influence many cases
Ruling to tackle the controversial question of children born in Canada

Marina Jimenez
National Post


Hans Deryk, National Post
Mavis Baker with sons Paul, left, and Desmond: "I have been here for 17 years and I have nothing to go back home to in Jamaica."

The Supreme Court of Canada's long-anticipated ruling tomorrow in the case of Mavis Baker will clarify the controversial issue of whether the rights of Canadian-born children should be considered when their parents are ordered deported.

The case is expected to influence the outcome of dozens of similar immigration cases and to address the extent to which Canada must comply with international human rights treaties that it has signed. It could have enormous implications for the applicability of international conventions on domestic law.

"Canada has ratified a number of human rights conventions but hasn't incorporated those issues into Canadian law," says Barbara Jackman, an immigration lawyer and law professor representing the Canadian Council for Churches, an intervenor in the case.

The case centres on the application of Ms. Baker, a 44-year-old Jamaican who arrived in Canada 18 years ago, to stay here on humanitarian grounds. Although she overstayed her visa and was considered illegal soon after she arrived, she was not ordered deported until 1992. By then, she had had four children. Her appeals to stay on humanitarian grounds were turned down.

Roger Rowe, Ms. Baker's lawyer, argued that Canada did not comply with the United Nations Convention on the Rights of the Child, which states children should not be separated from their parents unless it is in their best interest.

"Ms. Baker's case is a classic case for acceptance on humanitarian grounds. This does not mean that anyone who has children here automatically gets to stay," says Mr. Rowe. "What we are arguing is that there ought to be a fair procedure in place for assessing these situations. The rights of the state to protect its borders should be balanced against the best interests of the child."

Sharryn Aiken, a law professor at Osgoode Hall, said a ruling upholding the legal responsibility of Canada to comply with the UN convention, which it signed in 1992, would set a precedent for hundreds of other cases. "This could affect the way children are treated in the criminal justice system and in other areas," said Ms. Aiken, who is representing the Canadian Council for Refugees, an intervenor in the case.

The Supreme Court, however, may choose to remain silent on this larger question, and instead focus only on whether the immigration department applied its humanitarian guidelines properly in Ms. Baker's case. "The court was receptive to the arguments but that doesn't mean anything," said Ms. Aiken. "The court is pretty divided right now when it comes to human rights questions in the immigration context."

The Supreme Court has ruled that non-citizens can be extradited to countries where they may face the death penalty. But it has also broadened the definition of a refugee. During the Baker hearing last fall, Justice Claire L'Heureux Dube pointed out that immigration officers who turned down Ms. Baker's request to stay did not consider the interests of her children.

Mr. Rowe said that Ms. Baker is anxiously awaiting the outcome of her celebrated case, and continues to raise two of her four children, 14-year-old Paul and seven-year-old Desmond. She has the support of her church and her ex-partner, who has custody of her other two children. Son Paul is a good student and avid sportsman.

"I think the government's ruling is cruel," she said in an interview with the National Post last fall. "I have been here for 17 years and I have nothing to go back home to in Jamaica."

Ms. Baker worked at a variety of jobs during her first 11 years in Canada but experienced post-partum psychosis in 1992, was diagnosed with paranoid schizophrenia and had to go on welfare. She has no family or support system in Jamaica, a country with which her children have no connection.

Critics fear that a victory for Ms. Baker could encourage "passport babies" -- would-be immigrants who give birth in Canada in order to circumvent immigration laws. But Mr. Rowe says that has not been the case in New Zealand, the U.S., or Australia, which have jurisprudence stating that the interests of children must be considered in immigration cases.

"If you look at other jurisdictions, having a fair procedure and giving consideration to the best interests of children has not opened up a floodgate of abusive claims," said Mr. Rowe.

Huguette Shouldice, a spokeswoman for Citizenship and Immigration Canada, says that officials have no legal obligation to consider the rights of children in cases involving the deportation of their parents.

"But we do it anyway, because we know our international obligations," she said. "We just didn't think that Ms. Baker had a good enough case."

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