Date: 20080502
Docket: IMM-4533-05
Citation: 2008
FC 572
Ottawa, Ontario,
May 2, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
KARLENE
THOMPSON BLAKE
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Ms.
Karlene Thompson-Blake (the “Applicant”) seeks judicial review of the decision
made by an Enforcement Officer (the “Officer”) on July 12, 2005. In that
decision, the Officer determined that an Order of the Ontario Court of Justice
issued on February 10, 2005 granting the Applicant sole custody of her children
and prohibiting their removal from Ontario, does not constitute a statutory
stay pursuant to subsection 50(a) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27, as amended, (the “Act”). The Applicant now seeks an
Order quashing the decision to remove her to Jamaica, a declaration that a
statutory stay arises by virtue of the Order of the Ontario Court of Justice
for the purposes of subsection 50(a) of the Act, and an Order prohibiting her
removal from Canada pending the determination of her application for landing in
Canada on the basis of humanitarian and compassionate grounds.
II. Facts
[2]
The
Applicant is a citizen of Jamaica. She first entered Canada in 1987 as a permanent
resident. She is the mother of two Canadian born children, a daughter, Krishana
Danielle Brown, born November 3, 1992 and Kemoi Blake, born September 7, 1996.
[3]
On April 27,
2000, a removal order was issued against the Applicant, following her
conviction of a number of criminal offences including credit card fraud and
importation of a narcotic.
[4]
The
Applicant sought to appeal the removal order to the Immigration Appeal Division
(the “IAD”) on the basis of humanitarian and compassionate grounds, pursuant to
the former Immigration Act, R.S.C. 1985, c. I-2 (the “former Act”). On
October 11, 2001, the IAD dismissed the appeal.
[5]
On April
17, 2003, the Applicant applied for a Pre-Removal Risk Assessment (“PRRA”)
pursuant to the Act. A negative decision was made on this application on June
4, 2003.
[6]
By letter
dated October 5, 2004, the Applicant was advised that her removal from Canada had been scheduled for
January 15, 2005. On January 11, 2005, the Applicant submitted an application
to remain in Canada on H&C grounds. On
January 19, 2005, she sent the Officer a copy of an ex parte interim
Order dated January 17, 2005 that had been issued by the Ontario Court of
Justice (the “Custody and Non-Removal Order”). The relevant part of that Order
reads as follows:
…
2. The Applicant mother and Moving Party,
Karlene Thompson-Blake, shall have sole custody of the children: Krishana
Danielle Brown, born November 3, 1992 and Kemoi Blake born on September 1996.
3. The children, Krishana Danielle Brown,
born November 3, 1992, and Kemoi Blake born September 7, 1996, shall not be
removed from the Province of Ontario by the Applicant mother or Respondents
or anyone acting on either party’s behalf without further order of this Court.
…
[7]
On February
10, 2005, Mr. Justice Scully of the Ontario Court of Justice issued a final
Order granting the Applicant sole custody of her children. He also ordered that
the children not be removed from the Province of Ontario. Although the Minister of Citizenship
and Immigration was named as a Respondent in that matter, he did not appear at
the hearing. The terms of the Order were as follows:
…
2. Karlene Thompson-Blake shall have final sole custody of Krishana Danielle
Brown born November 3, 1992 and Kenoi Blake born September 7, 1996.
14.(1)The above named children shall not
be removed from the Province of Ontario, pursuant to section 19, 21 and 28 of
the Children’s Law Reform Act.
(2) Order to be issued forthwith.
[8]
By letter
dated July 12, 2005, the Applicant was advised that her removal from Canada had been rescheduled for
August 19, 2005.
[9]
The
Applicant met with the Officer on July 12, 2005. She brought the Custody and
Non-Removal Order to the attention of the Officer and suggested that this Order
precluded execution of the Removal Order. The Officer disagreed, on the basis
that the Removal Order related only to the Applicant and did not concern the
children. The Officer’s Field Operating Support System (“FOSS”) notes, dated
July 12, 2005, provide as follows:
Interview conducted with above-mentioned
subject on this date. Notified of removal arrangements for 19 Aug 2005. Her
consultant was present also made aware of the situation. Subject was verbally
combative about the family court order that stated her children could not be
removed from the country. She was informed that the department is enforcing a
removal order directed to her and not her children. Her consultant asked what
would be done regarding her children. She was informed that the removal order pertained
to the subject only, that the department was in no way suggesting that the
children were being removed, but should she require assistance we may be able
to aid. …
[10]
The
Applicant subsequently moved for a stay of her removal and by Order dated August
8, 2005, a stay of removal was granted, pending disposition of this judicial
review application. On August 14, 2005, leave was granted to the Applicant to
bring this judicial review application.
[11]
The
Applicant subsequently filed a further application for leave and judicial
review in cause number IMM-4686-05, relative to the Officer’s decision not to
defer her removal. On December 21, 2005, that application for leave was
dismissed.
[12]
On August
23, 2006, Madam Justice Dawson issued Reasons for Order and Order in Alexander
v. Canada (Solicitor General), [2006] 2 F.C.R. 681. In that
decision, she held that the Ontario Court of Justice interim and final Orders
granting an applicant custody of children and prohibiting their removal from Ontario did not give rise to a
statutory stay of removal for the purposes of subsection 50(a) of the Act. She
certified the following question:
In the circumstances of this case, where:
1. A parent is a
foreign national who is subject to a valid removal order;
2. A family court
issues an order, granting custody to the parent of his or her Canadian born
child and prohibiting the removal of the child from the province; and
3. The Minister is
given the opportunity to make submissions before the family court before the
order is pronounced;
Would the family court order be directly
contravened, within the contemplation of subsection 50(a) of the Act, if the
parent, but not the child, is removed from Canada?
[13]
The within
matter was set for hearing on November 20, 2006. On that date, the hearing was
adjourned upon the consent of both parties, pending the disposition by the
Federal Court of Appeal in Alexander. On November 28, 2006, the Federal
Court of Appeal dismissed the Alexander appeal on the grounds of
mootness; see Alexander v. Canada (Solicitor General) (2006), 360 N.R. 167.
III. Submissions
A. The Applicant’s Submissions
[14]
The
Applicant challenges the Officer’s decision on the grounds that it contravenes
subsection 50(a) of the Act and the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act, 1982 (U.K.), 1982, c. 11 (the “Charter”) and further, that it is not
supported by sufficient reasons.
Standard of Review
[15]
The
Applicant argues that since this proceeding raises the issue of the
interpretation of subsection 50(a) of the Act, as well as the application of
the Charter, the applicable standard of review is that of correctness. In this
regard, she relies upon the decision in Pushpanathan v. Canada (Minister of Citizenship and
Immigration),
[1998] 1 S.C.R. 982.
Interpretation of Subsection 50(a) of the Act
[16]
The
Applicant argues that subsection 50(a) must be interpreted according to its
ordinary meaning. Its statutory language must be read in its entire context and
the grammatical and ordinary sense; see Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 21. She submits that the Custody and Non-Removal Order
will be breached for the purposes of subsection 50(a) upon a plain language
reading of that provision, if the Applicant is removed from Canada and her children are
subsequently taken from her physical care and custody.
[17]
Next, the
Applicant argues that subsection 50(a) must be interpreted in accordance with
the purpose and overall scheme of the Act. She argues that section 12 of the Interpretation
Act, R.S.C. 1985 c. I-21, as amended, requires that each federal enactment
“shall be given such fair, large and liberal construction and interpretation as
best ensures the attainment of its object”. She submits that statutory stays
pursuant to subsection 50(a) should be interpreted with due regard for the Act’s
“overall scheme” relying upon the decision in Cuskic v. Canada (Minister of Citizenship and
Immigration),
[2001] 2 F.C. 3 (C.A.) at para. 20.
[18]
Next, the
Applicant submits that the execution of the Officer’s decision would contravene
the Custody and Non-Removal Order for the purposes of section 50(a) of the Act.
In this regard, she relies on Cassells v. Canada (M.C.I.), 2001
FCT 263, where the Court found that a summons to appear before the family court
constituted a statutory stay pursuant to subsection 50(a). If such a summons
gives rise to a statutory stay, she submits that a court order “where the best
interests of the child have been thoroughly examined must also create a
statutory stay”.
[19]
The
Applicant refers to section 234 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 which list two circumstances where a decision
made in a judicial proceeding would not be contravened by the enforcement of a
removal order, that is the withdrawal of criminal charges or any summons or
subpoena if the person concerned were removed from Canada, upon an agreement
between the Department of Citizenship and Immigration and the federal or
provincial Attorney General, as the case may be.
[20]
The Applicant
refers to paragraph 3(1)(d) of the Act which provides that one of the statutory
objectives is the reunification of families in Canada. She also refers to paragraph 68 of the
decision in Baker v. Canada (Minister of Citizenship and
Immigration),
[1992] 2 S.C.R. 817 where the Supreme Court of Canada emphasized the importance
of the objective of family reunification, as set out in the Act.
[21]
The
Applicant argues that the Custody and Non-Removal Order must be interpreted with
regard to the general regime for family law in Ontario and in particular the Children’s
Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”).
[22]
Next, the
Applicant submits that custody constitutes physical care and control of
children. In this regard, she relies on the decision in Harsant v. Portnoi
(1990), 74 O.R. (2d) 33 (Ont. H.C.) at page 37.
[23]
The
Applicant disagrees with the conclusions of Madam Justice Dawson at paragraph
40 of Alexander where the Court concluded that the right to “control the
child’s place of residence” does not necessarily mean that the parent reside
with the child, even while exercising control of the child’s residence. The
Applicant argues that this reading of Chou v. Chou, [2005] O.T.C. 256,
[2005] O.J. No. 1374 is flawed.
Section 7 of the Charter
[24]
The
Applicant further argues that the Officer’s decision offends section 7 of the
Charter. She refers to paragraph 3(3)(d) of the Act which provides that the Act
is to be applied in a manner that ensures that decisions made under it are consistent
with the Charter. She submits that the Charter can assist with the
interpretation of the scope of legislation where there is ambiguity and that an
interpretation that is consistent with the Charter should be preferred over one
that is not; see Christian Horizons v. Ontario Human Rights Commission
(1993), 64 OAC 395 (Div. Ct.) at 397 and Canada (Commissioner of the Royal Canadian
Mounted Police)(Re),
[1993] 2 F.C. 351 (T.D.).
[25]
The
Applicant also cites New
Brunswick
(Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at para.
76, where Chief Justice Lamer recognized that separating a child from his or
her parent may seriously affect the child’s psychological integrity and
well-being.
[26]
The
Applicant argues that in interpreting section 7 of the Charter, it is necessary
to consider Canada’s international obligations and to the extent possible, to
presume that the Charter provides protection equivalent to that granted by
similar provisions in international documents ratified by Canada. In this
regard, she relies on the decisions in Re Public Service Employees Relations
Act, [1987] 1 S.C.R. 313 at 349; Slaight Communications Inc. v. Davidson,
[1989] 1 S.C.R. 1038; and United States v. Burns, [2001] 1 S.C.R. 283.
[27]
The
Applicant refers to paragraph 3(3)(f) of the Act which provides that the Act is
to be applied in a manner that complies with international human rights
instruments to which Canada is signatory. She submits that such instruments are
“determinative of the meaning of IRPA”, relying on the decision in De Guzman
v. Canada (Minister of Citizenship and
Immigration) (2004),
257 F.T.R. 290 (F.C.); aff’d (2005), 345 N.R. 73 (F.C.A.); leave to appeal to
S.C.C. refused [2006] S.C.C.A. No. 70 and Martinez v. Canada (Minister of Citizenship and
Immigration),
[2003] FC 1341.
[28]
The
Applicant submits that Canada ratified the United Nations Convention
on the Rights of the Child, [1992] Can. T.S. No. 3 (the “CRC”) and that the
CRC establishes a framework within which all legislative and administrative
decisions should be made.
[29]
The
Applicant also argues that Canada is signatory to additional
instruments that recognize the best interests of the child and the importance
of the parent child relationship, for example the Universal Declaration of
Human Rights, Article 12 and the International Covenant on Civil and
Political Rights, Articles 17 and 23.
[30]
Finally,
the Applicant cites a decision of the United Kingdom in which the Court found
that a parent of a child who was a United Kingdom citizen could invoke a right
of residence deriving from that child; see Man Lavette Chen and Kunqian
Catherine Zhu v. Secretary for the Home Department, case C-200/02, 18 May
2004.
[31]
The
Applicant argues that the violation of section 7 arising from the Officer’s
decision cannot be justified under section 1. She submits that section 7
violations can only be justified under section 1 in the most exceptional
circumstances, relying upon the decisions in Re Motor Vehicle Act,
[1985] 2 S.C.R. 486 at para. 83 and R. v. Ruzic, [2001] 1 S.C.R. 687 at
paras. 91-92.
Adequacy of the Officer’s
Reasons
[32]
Finally,
the Applicant submits that the Officer breached the obligations of procedural
fairness by failing to provide adequate reasons for the decision. In this
regard, she relies on the decisions in Baker and Diaz v. Canada
(Minister of Citizenship and Immigration) (1999), 173 F.T.R. 139, for the
propositions that procedural fairness requires that decisions with significant
consequences for an individual require the support of reasons.
B. The Respondent’s Submissions
Interpretation of Subsection
50(a) of the Act
[33]
The
Respondent argues that the Officer’s decision is consistent with the
grammatical and ordinary meaning of subsection 50(a) of the Act. In this
regard, he relies upon dictionary meanings of “direct”, “directly” and
“contravene”. The Respondent argues that, in light of the use of these words in
subsection 50(a), that the Custody and Non-Removal Order could only give rise
to a statutory stay if it would be “unambiguously violated by the Applicant’s
removal from Canada”. The Respondent then submits
that the custody element of the Order would not be violated by the Applicant’s
deportation because the Order does not alter the rights or obligations held by
the Applicant as a custodial parent prior to the issuance of the Order or, for
that matter, of the rights and obligations of any parent towards his or her
children.
[34]
The
Respondent further argues that the residency portion of the Custody and
Non-Removal Order would not be violated by the Applicant’s deportation because
the children are not being removed from Ontario.
[35]
The
Respondent states that the interpretation of the words “directly contravened”
by Madam Justice Dawson in Alexander is supported by jurisprudence under
the former Act and in that regard, refers to the decision in Mobtagha v.
Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 249
(F.C.T.D.). In that case, the Court determined that a custody order issued by
the Lieutenant-Governor of Quebec did not give rise to a statutory stay
pursuant to paragraph 50(1)(a) of the former Act because it was not “an order
made by any judicial body or officer in Canada” and nothing in the order
required the applicant to be in Canada or to appear before a tribunal at a particular
time or place.
[36]
The
Respondent further submits that the Officer’s decision is consistent with the
immigration scheme established by Parliament. He relies on the decision in Chiarelli
v. Canada (Minister of Employment and
Immigration),
[1992] 1 S.C.R. 711 at 733 where the Supreme Court clearly stated that
non-citizens do not have an unqualified right to enter or remain in Canada.
[37]
According
to the Respondent, the comprehensive statutory scheme of the Act allows for
immigration and provides protection where appropriate, but necessarily also
provides for the removal of foreign nationals, deferral of removal and for
statutory and judicial stays. He submits subsection 50(a) was not intended to
allow foreign nationals to purposely avoid other alleged obligations under the
Act and refers to the decision in Louis v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 1244 where the Court rejected the argument that
a statutory stay arose pursuant to paragraph 50(1)(a) of the former Act because
the applicant was required to attend a civil matter. In rejecting this
argument, the Court said paragraph 50(1)(a) of the former Act was not enacted
to allow persons to avoid other obligations under that legislation.
[38]
The
Respondent also argues that the best interests of the child do not
automatically entitle a foreign national to enter and remain in Canada. Although Canadian family
courts, including the family courts of Ontario, address the best interests of
the child in deciding custody and access matters, the best interests of the
child is but one factor to be considered pursuant to the statutory scheme
governing immigration; see Baker, Legault v. Canada (Minister of
Citizenship and Immigration), [2002] 4 F.C. 358, leave to appeal to the
S.C.C. refused, [2002] S.C.C.A. No. 220 and Hawthorne v. Canada (Minister of
Citizenship and Immigration), [2003] 2 F.C. 555 (Fed. C.A.).
[39]
The
Respondent submits that a finding that the Custody and Non-Removal Order gives
rise to a statutory stay pursuant to subsection 50(a) would lead to the “absurd
result” that a family with custody and residency orders would enjoy a relative
advantage over those without such orders. This
result would undermine the fairness,
integrity and confidence in Canada’s immigration system; see Selliah v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 261 at para. 22.
[40]
The
Respondent argues that the Federal Courts Act, R.S.C. 1985 c. F-7, as
amended, in subsection 18(3), section 18.1 and section 18.2 makes it clear that
this Court exercises exclusive jurisdiction to issue prerogative relief against
federal decision-makers and that such relief can only be obtained through an
application for judicial review. He submits that some recent Provincial Court decisions show that foreign
nationals “are increasingly attempting to use paragraph 50(a) of the Act and
provincial courts” to undermine the legislative framework established by
Parliament. In this regard, the Respondent refers to the decision in Varvara
v. Costantino, [2003] O.J. No. 5980 (C.J.).
[41]
Next, the
Respondent submits that the Officer’s decision is consistent with the
objectives and intentions of Parliament as set forth in subsection 25(1) of the
Act and section 233 of the Regulations. Subsection 25(1) provides that H&C
decisions are to be made taking into account the best interests of a child who
is directly affected. These best interests are to be a primary but not
determinative consideration; see Baker, Legault, and Hawthorne.
[42]
Section
233 of the Regulations provide for a statutory stay where an H&C
application is approved. The Respondent submits that from this, it can be
inferred that Parliament did not intend that an outstanding H&C application
would prevent the removal of a foreign national.
Section 7 of the Charter
[43]
The
Respondent submits that Madam
Justice Dawson
was correct in Alexander in finding that section 7 of
the Charter does not preclude the removal of foreign nationals who have
Canadian born children. It notes that Baker does not overrule Langner
v. Canada (Minister of Employment and
Immigration)
(1995), 29 C.R.R. (2d) 184, 184 N.R. 230 (F.C.A.) and Langner remains
good law. Further, the Respondent argues that Baker, Legault, Hawthorne
and other cases specifically contemplate the separation of a foreign national
from his or her Canadian born children but make no findings that such a
separation violates section 7 of the Charter.
[44]
Further,
the Respondent suggests that the Charter does not apply to court orders that
concern custody and access and relies in this regard on the decision in Young
v. Young, [1993] 4 S.C.R. 3.
He argues that the best interests of the child is not a principle of
fundamental justice; see Canadian Foundation for Children, Youth and the Law
v. Canada (Attorney General), [2004] 1 S.C.R. 76 at para.
10.
[45]
The Respondent
deals with the Applicant’s submissions upon the application of international
laws as a separate issue, rather than in connection with the interpretation of
the Charter. He submits that international law does not prevent sovereign
states from deporting foreign nationals where such deportation would result in
separation from their children. In the first instance, the Respondent notes
that the CRC has not been incorporated into domestic law and further, that in
both Langner and Baker, the Court rejected the suggestion that
the CRC precluded the separation of a parent and child in deportation
proceedings. Further, the Respondent submits that the best interests of the
child under the CRC is a primary but not the only relevant consideration and
may be subordinated to other considerations. In this regard, he relies upon the
decision in Canadian Foundation.
[46]
The
Respondent also submits that the foreign jurisprudence relied upon by the
Applicant has no persuasive value since the provisions interpreted in those
decisions do not correspond to any provision in the Charter; see Langner.
As well, the Respondent says that these authorities have no legal force in Canada.
[47]
Further,
the Respondent submits that the Act is not inconsistent with international law
because international law does not stop a sovereign state from deporting a
foreign national where deportation would lead to separation of parent and
child. Whether or not paragraph 3(3)f of the Act makes the CRC or other
international instruments to which Canada
is signatory determinative of the meaning of the Act, where there is no clearly
expressed intention to that effect, is irrelevant.
Adequacy of the Officer’s Reasons
[48]
Finally,
the Respondent argues that the Officer did not fail to give sufficient reasons.
He notes that a removal officer has limited discretion pursuant to section 48
of the Act to defer a removal order. In exercising that discretion, an officer
can consider circumstances directly affecting travel arrangements and other
compelling individual circumstances.
IV. Discussion and Disposition
[49]
This
application for judicial review raises two issues, as follows:
a.
What is
the applicable standard of review? And
b.
Did the
Officer commit a reviewable error in determining that the Custody and
Non-Removal Order did not constitute a statutory stay for purposes of
subsection 50(a) of the Act?
Standard of Review
[50]
The
principal issue here is the interpretation of subsection 50(a) of the Act which
provides as follows:
|
50. A removal order is stayed
(a) if a decision that was made in a
judicial proceeding — at which the Minister shall be given the opportunity to
make submissions — would be directly contravened by the enforcement of the
removal order;
|
50. Il y a sursis de la mesure de
renvoi dans les cas suivants :
a) une décision judiciaire a pour effet
direct d’en empêcher l’exécution, le ministre ayant toutefois le droit de
présenter ses observations à l’instance;
|
[51]
Since the
question of statutory interpretation is involved, the appropriate standard of
review is that of correctness. The present proceeding also raises an issue as
to the scope of section 7 of the Charter. That is also a question of law that
attracts the correctness standard of review. The decision in Pushpanathan
supports this view.
[52]
The
adequacy of reasons raises an issue of procedural fairness that is also
reviewable on a standard of correctness; see Fetherston v. Canada (Attorney
General) (2005), 332 N.R. 113 (C.A.).
This approach was taken by Justice Dawson in Alexander at paras. 23 and
24.
Review of the Officer’s
Decision
[53]
The
Applicant argues that the Officer erred in law by finding that the Order of the
Ontario Court of Justice awarding her sole custody of her two Canadian born
children and an Order that the children not be removed from the Province of
Ontario does not give rise to a statutory stay pursuant to subsection 50(a) of
the Act.
[54]
The first
matter to be addressed here is the legislative context which governs the
Applicant’s status. She is a permanent resident who is the subject of a removal
order made pursuant to the former Act. She is subject to the requirements of
immigration law. In that regard, I refer to the decision of the Supreme Court
of Canada in Chiarelli at 733-734, where Justice Sopinka said the
following:
Thus Parliament has the right to adopt an
immigration policy and to enact legislation prescribing [page734] the
conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration
Act. Section 5 of the Act provides that no person other than a citizen,
permanent resident, Convention refugee or Indian registered under the Indian
Act has a right to come to or remain in Canada.
…
[55]
The
interpretation of subsection 50(a) must be approached in the context of the
governing legislation. According to the decision of the Supreme Court of Canada in Prassad v. Canada (Minister of Employment and
Immigration),
[1989] 1 S.C.R. 560, the context is that of immigration law. In Prata v. Canada (Minister of Manpower and
Immigration),
[1976] 1 S.C.R. 376, the Supreme Court of Canada said that immigration is a
privilege, not a right.
[56]
In Rizzo
and Rizzo Shoes Ltd. (Re) at 41, the Supreme Court of Canada said that the
proper approach to statutory interpretation is a purposive one, that is, one
that goes beyond mere reliance on the words of the statute. The language of a
particular statutory provision must be read in context having regard to the
scheme of the legislation, its object and the intention of Parliament.
[57]
The scheme
of the Act is to regulate the entry of non-citizens into Canada. At the same time the Act
identifies, as one of its objectives, the reunification of families, that is in
paragraph 3(1)(d). The Act also refers to respect for international conventions
in paragraph 3(3)(f). However, the Courts have repeatedly ruled that the best
interests of the children are not paramount in the scheme of immigration law.
In this regard, I refer to the decisions Legault, Hawthorne and De
Guzman.
[58]
The Act
does not contemplate that the making of a custody order per se will give
rise to a statutory stay pursuant to subsection 50(a). The Custody and
Non-Removal Order in question was made pursuant to a provincial statute, that
is the CLRA of Ontario. The intent, purpose and scope of that legislation do
not trump the legislative scheme set out in the Act. Insofar as the Order in
question arises under a statutory scheme enacted by the Province of Ontario for the purposes and
objectives that are unrelated to the purposes of the Act, this Court is not
required to apply provincial law. In that regard, I refer to the decision in ITO
- International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1
S.C.R. 752 at 781-782 where Justice McIntyre discussed the application of
provincial law where “jurisdiction is otherwise founded on federal law.” The
interpretation and application of the Act, insofar as it regulates the entry
and exclusion of non-citizens, does not require the application of family law
principles arising from provincial legislation.
[59]
Section 50
is to be read in the overall context of the Act. That means reference must be
made to section 48 which requires that removal orders be executed “as soon as
practicable”. Subsection 48 provides as follows:
|
48. (1) A removal order is enforceable
if it has come into force and is not stayed.
Effect
(2) If a removal order is enforceable,
the foreign national against whom it was made must leave Canada immediately and it must be
enforced as soon as is reasonably practicable.
|
48. (1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
Conséquence
(2) L’étranger visé par la mesure de
renvoi exécutoire doit immédiatement quitter le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
[60]
In the
scheme of the Act, only Canadian citizens and permanent residents have an
unqualified right to remain in Canada. Permanent residents may be
removed, under certain circumstances. The Applicant, as a result of criminal
activities and convictions, became vulnerable to removal. Once the Removal
Order against her became effective, the Respondent was obliged to discharge his
statutory duty, pursuant to section 48 to effect that removal as soon as
practicable, unless that removal was stayed by an order of the Court or by
operation of law. This statutory obligation cannot be displaced by the making
of a custody order, pursuant to another statutory scheme.
[61]
The
Custody and Non-Removal Order made on February 16, 2005 by Mr. Justice Scully
pursuant to the CLRA is not an “order” that gives rise to a stay pursuant to
section 50 of the Act.
[62]
I turn now
to the Applicant’s submissions concerning the breach of her Charter rights to
fundamental justice and security of the person. The Applicant alleges that the
Officer’s refusal to recognize the Custody and Non-Removal Order as the basis
of a statutory stay pursuant to section 50 of the Act constitutes a breach of
section 7 of the Charter. This submission cannot succeed.
[63]
In Blencoe
v. British
Columbia
(Human Rights Commission),
[2000] 2 S.C.R. 307 at para. 47, the Supreme Court of Canada said that there is
no independent right to fundamental justice itself and there will be no
violation of section 7 if there is no deprivation of life, liberty or security
of the person.
[64]
The issue
of security of the person was considered by the Supreme Court of Canada in G.(J.)
at p. 147, the Court found that the constitutional guarantee of security of the
person does not protect against “ordinary stresses and anxieties that a person
of reasonable sensibility would suffer as a result of government action.” The
idea of “government action” is relevant for a section 7 inquiry. The anxiety
must be caused by some state action or interference.
[65]
In the
present case, the Applicant’s right to security of the person is not infringed
by the action of the government in seeking to remove her from Canada. The Custody and Non-Removal
Order relates to her children, who are Canadian citizens. The Order does not
affect the Applicant’s personal security and does not engage section 7 of the
Charter in relation to her.
[66]
Moreover,
in Alexander, Justice Dawson said, with reference to Chou, that
“custody allows the custodial parent to control the child’s place of residence
but does not necessarily require that the parent reside with the child”.
[67]
I agree
with the arguments presented by the Respondent that the best interests of a
child is not a principle of fundamental justice. This issue was discussed by
the Supreme Court of Canada in Canadian Foundation for Children.
[68]
Since I am
not persuaded that section 7 of the Charter applies to the Applicant’s
situation, it is not necessary to consider the arguments made respecting
section 7 of the Charter.
[69]
The only
issue remaining is the alleged breach of procedural fairness, arising from the
absence of reasons for the Officer’s decision.
[70]
I
agree with the arguments made by the Respondent that no breach of procedural
fairness occurred. Not every administrative decision requires the delivery of
reasons. I refer to the decision in Boniowski v. Canada (Minister of Citizenship and Immigration), 2004 FC 1161, 44 Imm. L.R. (3d) 31, where Justice Mosley said the following:
In my view, given the purpose of Section
48(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
("IRPA") in the statutory scheme, that is to allow for some limited
discretion in the timing of a person's removal from Canada, any reasons
requirement was fulfilled in the decision letter of September 12, 2003 where
the officer indicated that she had received and reviewed the applicants'
submissions, and her decision was not to defer removal. The nature of this
decision is one where an officer has a very limited discretion, and no actual,
formal decision is mandated in the legislation or regulations to defer removal.
Instead, the jurisprudence instructs that an officer must acknowledge that she
has some discretion to defer removal, if it would not be "reasonably
practicable" to enforce a removal order at a particular point in time. For
example, the existence of a pending H&C application that was filed in a
timely manner, medical factors and the arrangement of travel documents are some
of the factors that may be considered by the officer at this time. It would not
be reasonably practicable to remove someone who did not have a travel document
or who was seriously ill. However, I am not satisfied that a higher level of
formal, written reasons is required for this sort of administrative decision.
[71]
In the
result, this application for judicial review is dismissed. Counsel for the
Respondent submitted the following questions for certification, having reviewed
same with Counsel for the Applicant. Notwithstanding the decision of the
Federal Court of Appeal in Garcia v. Canada (Minister of Citizenship and Immigration),
[2008] 1 F.C.R. 322, I am satisfied that the proposed questions meet the test
for certification of a question, as discussed in Zazai v. Canada (Minister of Citizenship and
Immigration),
36 Imm. L.R. (3d) 167.
[72]
Accordingly,
the following questions will be certified:
1) In the circumstances of
this case where:
1.
A parent
is a foreign national who is subject to a valid removal order;
2.
A family
court issues an order, granting custody to the parent of his or her Canadian
born child and prohibiting the removal of the child from the province; and
3.
The
Minister is given the opportunity to make submissions before the family court
before the order is pronounced;
Would the family court order
be directly contravened, within the contemplation of subsection 50(a) of the
Act, if the parent, but not the child, is removed from Canada?
2) If it does not create a
statutory stay pursuant to s. 50(a) of IRPA, then does removal of the
mother/parent constitute a violation of section 7 of the Charter?
JUDGMENT
This application for judicial review is
dismissed. The following questions are certified:
1) In the circumstances of
this case where:
1.
A parent
is a foreign national who is subject to a valid removal order;
2.
A family
court issues an order, granting custody to the parent of his or her Canadian
born child and prohibiting the removal of the child from the province; and
3.
The
Minister is given the opportunity to make submissions before the family court
before the order is pronounced;
Would the family court order
be directly contravened, within the contemplation of subsection 50(a) of the
Act, if the parent, but not the child, is removed from Canada?
2) If it does not create a
statutory stay pursuant to s. 50(a) of IRPA, then does removal of the
mother/parent constitute a violation of section 7 of the Charter?
“E.
Heneghan”
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