Monday, July 12, 1999
The Toronto Star
The law says any child born in Canada has an automatic right to claim Canadian citizenship. It also says Canada has the right to deport illegal immigrants.
Every year, immigration officers are faced with hundreds of cases in which the two laws conflict. Women who are in Canada illegally bear children. Does that give them the right to remain?
Children's advocates were hoping the Supreme Court would answer with an unequivocal yes, last week. Instead, it delivered a more measured response.
The case in question involved Mavis Baker, a Jamaican-born woman who came to Canada in 1981 as a visitor, got a job as a domestic and gave birth to four children without becoming a legal immigrant. In 1992, after her youngest child was born, she was diagnosed with paranoid schizophrenia and applied for welfare. This alerted the immigration department to the fact that she had overstayed her visitor's visa. She was ordered deported.
Baker applied for an exemption on humanitarian grounds, arguing that her children would suffer if she returned to Jamaica. She was turned down. Her lawyer appealed the decision.
The Supreme Court ruled that Baker deserved a new immigration hearing - not because the rights of children have clear primacy, but because her original hearing was so badly handled.
Notes taken by the officer in charge contain derogatory references to her mental state, the strain she would impose on the welfare system and the fact that she had left four children behind in Jamaica.
The court concluded that there was ``reasonable apprehension of bias'' and said Baker must be given another chance to seek permanent residency.
It did not say, however, that every illegal immigrant with Canadian-born children has an absolute right to remain here. It merely confirmed that the interests of children must be treated as an ``important factor'' in such cases.
The ruling strikes a fair balance between Ottawa's legitimate desire to enforce its immigration rules and Canada's international commitment to ensure that children are not separated from their parents.
A more definitive ruling might have satisfied purists. But the court wisely recognized that compassion can't be codified in unbreakable rules.
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