National Post

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Saturday, July 10, 1999

Children's fate key in deportation cases
Immigration officials found to be biased, 'dismissive' of minors' interests

Marina Jimenez
National Post

The Supreme Court of Canada has overturned the deportation order of a Jamaican woman, ruling that immigration officers failed to take into account the interests of her four Canadian-born children.

Lawyers say the landmark decision will have implications for dozens of other women in similar circumstances and will revolutionize the scope of immigration appeals and heighten the accountability of immigration officers.

The court found that immigration officials were biased against Mavis Baker, and "completely dismissive" of the interests of her four Canadian-born children when they turned down her application to stay on humanitarian grounds.

"Children's rights and attention to their interests are central humanitarian and compassionate values in Canadian society," wrote Justice Claire L'Heureux-Dube in the unanimous decision.

The judgment does not mean that Ms. Baker, who has been in Canada for 18 years, will automatically be allowed to stay, a ruling critics feared would give rise to passport-babies and would-be immigrants giving birth in Canada to influence the outcome of their immigration cases.

Instead, the court ruled that officials must reconsider Ms. Baker's case and take into account the hardship that her removal would cause on the lives of her children, who are all younger than 14.

"The court is saying you must follow the Immigration Act and take the interests of Canadian children into account," said Roger Rowe, Ms. Baker's lawyer. "The court hasn't taken away from Canada Immigration the authority to control Canada's borders."

The court ruled that an immigration officer was biased against Ms. Baker when he dismissed her application to remain in Canada on humanitarian grounds. Ms. Baker, a paranoid schizophrenic who is on welfare, has "no other qualifications other than as a domestic," the officer wrote. "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."

Judge L'Heureux-Dube said it appeared the officer's "own frustration with the 'system' interfered with his duty."

Ms. Baker arrived here in 1981 and overstayed her visitor's visa, working as a domestic in the Toronto area for 11 years. In 1992, she experienced post-partum psychosis, and had to go on welfare. In the same year she was ordered deported. By then she had had four children here.

Mr. Rowe said his client, who has custody of two of her children and shares custody of the other two with her ex-partner, is disappointed she must go through a second humanitarian application. "It's a partial victory," he said.

Ms. Baker's lawyers argued that Canada failed to comply with the United Nations Convention on the Rights of the Child, which states that children should not be separated from their parents unless it is in their best interests.

Judge L'Heureux-Dube ruled that although international treaties -- to which Canada is a signatory -- do not automatically become domestic law, they should be used as a philosophical guide.

"The court recognizes that non-citizens have human rights in Canada, with respect to children," said Barbara Jackman, who represented the Canadian Council for Churches, an intervenor in the case.

Lorne Waldman, an immigration lawyer, says the ruling will "revolutionize" immigration law, and give courts broader powers to monitor the decisions of immigration officials. "Hundreds of cases will be affected by this decision," he said.

The court ruled that immigration officials must issue written reasons when they turn down cases, which will facilitate appeals.

Huguette Shouldice, a spokesperson with Citizenship and Immigration, said the court supports the ministry's guidelines, although it found that they were not followed in this case. The department will review Ms. Baker's humanitarian application, and a decision is expected within a few months.

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