Toronto Star

Wednesday, July 7, 1999

Deportation must allow for children, lawyer says

Court to rule on immigration and rights of child

By Allan Thompson
Toronto Star Ottawa Bureau

OTTAWA - The Supreme Court of Canada will rule Friday on what to do when the rights of children clash with the immigration department's right to deport people from this country.

The judgment in the case of Mavis Baker - a single mother from Toronto who has been ordered deported to Jamaica even though she has four Canadian-born children - could affect many other cases winding their way through the courts.

And if the court rules in Baker's favour, it will mark the first time that it has come down on the side of the rights of children not to be separated from their parents, ahead of the prerogative of the government to control Canada's borders by deporting people.

``It is possible that the judgment will have far-reaching implications,'' Toronto immigration lawyer Sharryn Aiken said.

Aiken helped to represent a coalition of the Canadian Council for Refugees and children's rights groups when it intervened in the Baker case.

`We argued that you have to read through the charter an obligation to consider the impact on children of immigration decisions directly involving their parents.'
- Sharryn Aiken
Immigration lawyer

The coalition argued that Canada, as a signatory of the Convention on the Rights of the Child, is obliged to respect a provision that a child not be separated from its parents if it isn't in the child's best interest.

``We argued that you have to read through the charter an obligation to consider the impact on children of immigration decisions directly involving their parents,'' Aiken said.

Baker has been in Canada since 1981 and her legal case has dragged on for years while her Canadian-born children have become firmly established in Canada. Children born in Canada automatically have the right to Canadian citizenship and protection under the Charter of Rights, no matter what the status of their parents.

In its arguments, the immigration department maintained it was under no legal obligation to take the rights of Canadian-born children into consideration when deciding whether to deport parents.

The lawyer who made the government's case before the Supreme Court said that the immigration officer who dealt with Baker's case did not have a legal obligation to consider the Convention of the Rights of the Child or to give the best interests of the child prime consideration.

``Liberty cannot be defined so broadly as to completely ignore the very real right of Canada to control its borders and to choose who enters and who remains,'' Urszula Kaczmarczyk, the lawyer representing the immigration department, told the court at the hearing last November.

``The government interest is in maintaining the integrity of the Immigration Act (and) preventing future abuse of the Immigration Act,'' she said.

But Baker's supporters insist they're not saying everyone with Canadian-born children should get to stay in Canada. They're saying that before you can deport someone with Canadian-born children, the rights of the children should be taken into consideration.

Aiken maintains that the case goes beyond children's rights.

``We're arguing the rights of the children, because it's true they've been left out. But if you take one step back from it, it's a basic right of families to be together.

``It's bigger than just children's rights. What about Mavis Baker, doesn't she have a right as a mother to have access to her children?''

Aiken said while family law considered the rights of children and parents in detail when it came to deciding custody cases, immigration law was virtually silent on the matter.

Since the Baker case was argued in the Supreme Court last year, Citizenship and Immigration Minister Lucienne Robillard has revised the guidelines used for deciding when to allow someone to remain in Canada on humanitarian and compassionate grounds.

Immigration officers are now allowed to take the best interests of children into consideration, but are under no legal obligation to do so.

Last year, an Ontario court ruled that a Grenadian woman should not be deported because it violated the constitutional rights of her two Canadian-born children.

That was believed to be the first time a court recognized the rights of children independently of those of their parents in an immigration case. The federal government has appealed the decision.

With files from Canadian Press

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