Docket: IMM-5804-14
Citation:
2015 FC 1309
Ottawa, Ontario, November 25, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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CURTIS LEWIS
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] challenging a decision of an Inland Enforcement
Officer [the Officer] of the Canadian Border Services Agency [CBSA] refusing
the Applicant’s request for a deferral of removal.
[2]
For the reasons that follow, the application is dismissed.
II.
Background
[3]
The Applicant, Mr. Curtis Lewis, is a Guyanese
national who first came to Canada in 1966 and has lived in Canada as a
permanent resident for almost his entire life. He has never returned to Guyana and
all of his family resides in North America.
[4]
The Applicant does, however, have a criminal
record in Canada. He has four assault convictions from 1979, 1985, 1993 and 2003.
For the older convictions, the longest sentence he received was 14 days and for
the 2003 conviction he pled guilty and accepted a one year conditional
sentence, during which he was gainfully employed and completed community
service. The 2003 conviction resulted in an admissibility hearing before the
Immigration Division of the Immigration and Refugee Board [the IRB] in July
2004 and a subsequent appeal before the Immigration Appeal Division [the IAD]
in November 2005, wherein he was granted a one year stay subject to certain
terms and conditions.
[5]
He was not represented by counsel before either
the IRB or the IAD and it is his submission, in this application, that he did
not believe that he had any reporting conditions to CBSA and believed the stay
would be “over and done with” one year from the date of the hearing. The Applicant
did not have any charges or convictions after obtaining the IAD stay, but he
submits that his housing situation became unstable eight to ten months after obtaining
the stay and subsequently became homeless for some time. His evidence on this
application is that he did not believe that he could update his address with
the IAD to “homeless,” since his prior experience with CBSA was that they
required a new address to update his address.
[6]
The Applicant has a young daughter, herein
referred to as “C.D.” or “the child,” who was born in 2007 in Edmonton. Like
her mother, C.D. is a registered Inuvik Native Indian of the Gwich’in Tribal
Council. The Applicant and C.D.’s mother began a relationship in 2005, but
C.D.’s mother struggled with alcohol and drug addiction which took a toll on
their relationship and her ability to care for C.D. The family lived together
until C.D. was approximately three years old, at which point her mother’s
addictions resurfaced and it was no longer a safe or suitable environment for a
child. C.D. was placed in foster care for six months, with 3-4 visits per week
from the Applicant, until he was able to move out on his own and provide a home
for her. The Alberta Provincial Court granted the Applicant sole custody of
C.D. in October 2011 finding that this was in her best interest.
[7]
To this point, the Applicant contends that he was
unaware that there was any issue regarding his immigration status. However,
after giving a statement to police in October 2007, the police informed him
that there was an immigration warrant for his arrest. He was arrested and then
released on a bond. It is his evidence on this application that at this stage
he still did not understand the situation or the consequences of not reporting
his address change to the IAD.
[8]
The Applicant and C.D. have been living in
Toronto, but his evidence on this application is that he intended to move back
to Edmonton where he would have more employment opportunities and community
support and where there would be more opportunities for C.D. to see her mother
and learn about her Aboriginal heritage and culture. He requested to move back
to Edmonton in the summer of 2014, but this request was denied by the CBSA.
[9]
On July 11, 2014, a removal order was issued on
the Applicant and removal to Guyana was scheduled for August 1, 2014.
In mid-July 2014, the Applicant retained counsel and filed applications to
reopen his IAD appeal and for permanent residence on humanitarian and
compassionate grounds [H&C]. His H&C application cited his long-term
residency in Canada, his clean criminal record for over a decade, the
inadvertence that caused him to lose his status in Canada, and the best
interests and Charter rights of his Aboriginal daughter. Given his
impending removal date, the Applicant also sought a deferral of removal on July
24, 2014, citing his outstanding applications and the rights and interests of
C.D.
III.
Impugned Decision
[10]
On July 28, 2014, the Officer refused the Applicant’s
request for a deferral of removal. She found that the outstanding IAD and
H&C applications were not filed in a timely manner and that his removal
would not prevent these applications from being considered or prevent him from
re-entering Canada if successful, so they did not warrant a deferral of
removal.
[11]
The Officer then stated that, while it was
beyond her authority to perform an “adjunct H&C evaluation,” she had
reviewed the specific considerations raised within the H&C application. She
acknowledged that there would be a period of adjustment for the Applicant in
Guyana, but determined that familial separation is an inherent part of the
removals process and she was not satisfied that this separation would be more
than temporary in nature. She was also not satisfied that he would not be able
to rely on his Canadian work experience to find employment immediately upon
arrival in Guyana.
[12]
With respect to the best interests of the child,
the Officer again noted that she lacked the authority to consider C.D.’s long
term interests. She acknowledged that the removals process is difficult for
children, but found that C.D.’s best interests would be sufficiently attended
to by her father, whose “care and support will
attenuate any period of adjustment she may experience after she has departed
from Canada.” The Officer noted that counsel had submitted that C.D.
suffers from asthma and requires inhalers to manage her condition, but she
found that there was insufficient evidence to establish that C.D. “suffers from any medical condition which renders her unable
to travel by air” or that C.D. “will be unable
to receive treatment for this or any other medical condition she may have in
Guyana.”
[13]
Regarding C.D.’s Aboriginal and Charter rights
and interests, the Officer found:
I find it important to note, however, that
contrary to counsel’s assertions, [C.D.] is not under an enforceable removal
order from Canada. I note that as a member of one of Canada’s First Nations,
[C.D.] is entitled to enter into, remain in, and exit Canada as she and her
legal guardian(s) so choose.
[…]
I acknowledge that [C.D.’s] aboriginal
heritage is of critical importance to her and also to her Father. I am not
satisfied, however, that counsel’s submissions establish that Mr. Lewis’ removal
from Canada will prevent [C.D.] from maintaining a close connection with her
Aboriginal community, its culture and traditions. I note, for instance, that
[C.D.] may return to Canada at any time to participate in “dances, pow wows, speakers and special
events, as well as native Aboriginal centres and Native art shows,” referred to by her Father in his affidavit, and also note that she
may enter Canada whenever her legal guardian permits it to visit her mother,
her mother’s family and the Gwich’in band in Yellowknife.
[14]
The Officer then stated that the Applicant has a
history of non-compliance under the IRPA and recited the Applicant’s criminal
record and failures to report to the Bond Reporting Centre on various occasions
between December 2009 and June 2013.
[15]
After receiving the decision, the Applicant’s
counsel sought and received further details from the Officer regarding the
basis of her findings on the Applicant’s criminal record. The Applicant was
granted a judicial stay of removal by Justice McVeigh of this court on August 1, 2014.
IV.
Issues
[16]
The Applicant has raised the following issues:
1.
Whether the Officer’s decision contravened the Applicant’s
Aboriginal child to liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice, pursuant to Section 7 of the Canadian Charter of Rights and
Freedoms [the Charter]?
2.
Whether the Officer erred and/or rendered an
unreasonable decision in her assessment of the best interests of the child [BIOC]?
3.
Whether the Officer rendered an unreasonable
decision not based upon the issues and evidence before her?
V.
Standard of Review
[17]
The question of whether Section 7 of the Charter
is engaged and infringed in matters pertaining to a First Nations child may be a
question of law, in which case the standard of review is normally one of correctness
with some degree of deference to the Officer’s conclusions where there is some
exercise of discretion on its application (Dunsmuir v New Brunswick,
2008 SCC 9).
[18]
However, the Respondent argues that to determine
whether administrative decision-makers have exercised their statutory
discretion in accordance with Charter protections, the review should be
in accordance with an “administrative law approach.” This approach applies the
standard of review of reasonableness whereby the reviewing court pays deference
to the decision-maker and examines whether the discretion is exercised in light
of pertinent constitutional guarantees and the values they reflect.
[19]
I agree that the administrative law approach
should be applied in this matter. The manner of its application is described in
Doré v Barreau du Québec, 2012 SCC 12 at paragraphs 35, 36 and 44 [Doré]
as follows:
[35] The
alternative is for the Court to embrace a richer conception of administrative
law, under which discretion is exercised “in light of constitutional
guarantees and the values they reflect” (Multani, at para. 152, per
LeBel J.). Under this approach, it is unnecessary to retreat to a s. 1 Oakes
analysis in order to protect Charter values. Rather,
administrative decisions are always required to consider fundamental
values. The Charter simply acts as “a reminder that some values
are clearly fundamental and … cannot be violated lightly” (Cartier, at p.
86). The administrative law approach also recognizes the legitimacy that
this Court has given to administrative decision-making in cases such as Dunsmuir
and Conway. These cases emphasize that administrative
bodies are empowered, and indeed required, to consider Charter values
within their scope of expertise. Integrating Charter values
into the administrative approach, and recognizing the expertise of these
decision-makers, opens “an institutional dialogue about the appropriate use and
control of discretion, rather than the older command-and-control relationship”
(Liston, at p. 100).
[36] As explained by Chief Justice
McLachlin in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC
37, [2009] 2 S.C.R. 567, the approach used when reviewing the constitutionality
of a law should be distinguished from the approach used for reviewing an
administrative decision that is said to violate the rights of a particular
individual (see also Bernatchez). When Charter values are applied
to an individual administrative decision, they are being applied in relation to
a particular set of facts. Dunsmuir tells us this should
attract deference (para. 53; see also Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39).
When a particular “law” is being assessed for Charter compliance, on the
other hand, we are dealing with principles of general application.
[…]
[44] This
Court elaborated on the applicable standard of review to legal disciplinary
panels in the pre-Dunsmuir decision of Law Society of New Brunswick
v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247,
where Iacobucci J. adopted a reasonableness standard in reviewing a sanction
imposed for professional misconduct:
Although there is a statutory appeal
from decisions of the Discipline Committee, the expertise of the Committee, the
purpose of its enabling statute, and the nature of the question in dispute all
suggest a more deferential standard of review than correctness. These factors
suggest that the legislator intended that the Discipline Committee of the
self-regulating Law Society should be a specialized body with the primary
responsibility to promote the objectives of the Act by overseeing professional
discipline and, where necessary, selecting appropriate sanctions. In
looking at all the factors as discussed in the foregoing analysis, I conclude
that the appropriate standard is reasonableness simpliciter. Thus, on
the question of the appropriate sanction for professional misconduct, the Court
of Appeal should not substitute its own view of the “correct” answer but may
intervene only if the decision is shown to be unreasonable. [Court’s emphasis
added; para. 42.]
[Emphasis added]
[20]
I think it is questionable whether the Removals
Officer has the jurisdiction to consider risk assessments that may violate
Section 7 of the Charter, given the Officer’s limited task of
determining whether the circumstances complained of expose the Applicant to a “risk of death, extreme sanction or inhumane treatment”:
Canada (Minister of Public Safety and Emergency Preparedness) v Shpati,
2011 FCA 286 at paras 43-44 [Shpati].
[21]
I also note that the limitation on the scope of
the Removals Officer’s discretion similarly limits her expertise to integrate Charter
values into the administrative approach, inasmuch as the Supreme Court has
concluded that “recognizing the expertise of these
decision-makers, opens ‘an institutional dialogue about the appropriate use and
control of discretion, rather than the older command-and-control relationship’ ”
(Doré at para 35).
[22]
In Shpati at paragraphs 47-48, Justice
Evans addressed the reviewing judge’s comments on the problems caused by the
lack of expertise of the Removals Officer to consider legal issues and
therefore found that Parliament could not have “intended
that it was reasonably practicable for a removals officer, who was not trained
in these matters, to deprive an applicant of the very recourse Parliament had
given him,” which in Shpati related to questions of the decision’s
mootness.
[23]
Justice Evans concluded that the answer to any
limitation placed upon the exercise of the officer’s discretion regarding the
potential mootness of the matter was found in the legislative scheme for a
motion to stay a removal before the Federal Court, stating at paragraph 51 as
follows:
[51] The Federal Court can often
consider a request for a stay more comprehensively than an enforcement officer
can a deferral. This may result in a degree of bifurcation between the
Federal Court and enforcement officers. However, in my opinion, it is the
decision-making scheme that Parliament has enacted.
[Emphasis added]
[24]
In my view, once the stay is granted that
bifurcation of roles must continue for the purpose of the judicial review
application. The same principle would by analogy extend not only to considering
legal issues, such as mootness, but to other issues such as the application of Charter
values in assessing the reasonableness of an officer’s decision regarding risk: Peter v Canada
(Minister of Public Safety and Emergency Preparedness), 2014 FC 1073 at paras 271-3 [Peter].
[25]
Inasmuch as the stay of removal in this matter was
granted on the basis of the constitutionality issue raised by the Applicant, it
is for this Court to determine whether the Charter values were required
to be considered, and if so, whether they were properly integrated into the
Removal Officer’s exercise of discretion on a standard of reasonableness.
[26]
Finally, I conclude that the issue of a Removals
Officer’s determination that there was an insufficient factual basis to support
any arguments concerning the infringement of Section 7 is to be reviewed on the
reasonableness standard.
VI.
Analysis
[27]
I find that the principal reviewable issue in
this matter is whether the Applicant’s aboriginal child’s rights pursuant to Section
7 of the Charter were required to be but were not reasonably reflected
in the Officer’s decision. On this issue, I reject the Applicant’s arguments
and find that no Charter values apply in this matter of a decision which
was otherwise reasonable.
A.
The Underlying Factual Scenario is Hypothetical
[28]
The Applicant appears to be arguing the
alternative that either he and his daughter remain in Canada indefinitely, or
if he is removed she would be with him never to return to Canada and inevitably
lose all connection to her heritage and community. The Officer did not accept
these extremes as a finding of fact, which I find reasonable.
[29]
The Applicant may choose to take the child with
him (if no objection is taken by the mother – see below), or provide for
extended return visits with the “strong and positive
network of friends and community in Edmonton that [he] can rely on to assist with
[her] care.” The Applicant’s materials reference close family friends,
neighbours, the child’s extended family members, and other potential caregivers
some of whom “babysit and care for the child on a
regular basis.”
[30]
The Applicant has not addressed the issue of
whether there may be alternative caregivers, when from his own evidence it appears
that such persons exist. As mentioned, his materials repeatedly affirm that the
child has an extensive network of friends, relatives and caregivers in Canada,
in particular an aunt living in Yellowknife who cared for the Applicant’s
spouse when their mother was unable to provide for them. The Officer properly
noted that there was no legal requirement that C.D. leave Canada, and that she
can return at any time she wants to participate in “dances,
pow wows, speakers and special events, as well as native Aboriginal centers and
Native art shows, referred to by her Father and his affidavit.”
[31]
In addition, the Court could not help but notice
that there may be issues facing the Applicant should he attempt to remove the
child from Canada as of a right. The Order made by the Provincial Court of
Alberta under the Family Law Act of Alberta, names the mother as a
respondent. The mother did not appear although served personally and filed no response
to the claim. The powers ascribed to the Applicant include responsibilities,
decision-making and entitlements regarding the child. The Applicant’s rights
are not unlimited however, inasmuch as the mother is entitled to “share the right to receive any health, educational and other
information that may significantly affect the child.”
[32]
Obviously removing the child from Alberta to
Ontario, and thereafter the potential removal of the child to Guyana is
information that should be shared with the mother, as it would significantly
affect the child and the mother’s rights of access, which were not defined in
the parenting Order, presumably because the mother did not attend the hearing.
There was no indication on the record or at the hearing that the Applicant had
informed the mother, either of the child’s move to Ontario or her potential
removal from Canada.
[33]
Mobility rights where children are involved is a
highly contentious issue in family law. Given the need for authorities to
consider the protection of the cultural heritage of Aboriginal children, there
may be issues as to whether there are preferable alternatives to permit C.D. to
remain in Canada. As mentioned, there is also no evidence that the Applicant
has considered other guardianship alternatives if removed, particularly as in
respect to maintaining the child’s Aboriginal cultural heritage.
[34]
I conclude that there is sufficient evidence to
support the Officer’s finding that the Applicant’s removal will cause his
daughter to lose her connection with her culture and heritage is speculative. The
Charter submission is premature as alternative remedies were not exhausted.
[35]
I also note that an alternative remedy is
available to the Applicant regarding the child’s best interests which will be
considered in his H&C application by a specialized decision-maker. This
reinforces the Court’s conclusion that it is inappropriate and premature to seek
Charter relief. See Spooner v Canada (Minister of Citizenship and
Immigration), 2014 FC 870 at paragraph 30 citing Covarrubias v Canada (Minister
of Citizenship and Immigration), 2006 FCA 365 as follows:
[30] Further, I accept
the submissions of the Respondent that an alternate remedy is available to the
Applicant by way of an H & C application pursuant to subsection 25(1) of
the Act. This remedy was discussed by the Federal Court of Appeal […]:
…it is inappropriate for the
appellants to turn to the Court for relief under the Charter before
exhausting their other remedies.
B.
Section 7 is not engaged
[36]
The first stage of a Section 7 Charter
analysis is to determine whether the impugned law or state action has deprived
the child of her right to life, liberty, or security, such that this Charter
value should be reflected in the Officer’s decision. Not every adverse
impact on the protected interests will engage Section 7 – the law or state
action in question must have had a serious and profound impact on the claimant
and there must be “a sufficient causal connection
between the state-caused effect and the prejudice suffered by the claimant”: (Canada (Attorney General) v Bedford, 2013 SCC
72 at para 75 [Bedford] citing Blencoe v British Columbia (Human
Rights Commission), 2000 SCC 44 at para 60). This is a flexible standard
that allows the circumstances of each particular case to be taken into account
and it “does not require that the impugned government
action or law be the only or the dominant cause of the prejudice suffered by
the claimant, and is satisfied by a reasonable inference, drawn on a balance of
possibilities” (Bedford at paras 75-76).
[37]
The Applicant submits that Canada has certain
legal obligations arising from C.D.’s First Nation status and that by removing
her father, these obligations would be breached. The Applicant relies heavily
on the Ontario Court of Appeal decision United States of America v Leonard,
2012 ONCA 622 [Leonard] which involved two appeals brought by Aboriginal
accused persons who claimed that extradition without consideration of their
Aboriginal background and circumstances violated their rights under sections 6
and 7 of the Charter. The Court in Leonard acknowledged that the
extradition decision was political in nature and owed substantial deference, but
nevertheless overturned the Minister’s decision. The Court found that the
principles enunciated by the Supreme Court of Canada in R. v Gladue,
[1999] 1 S.C.R. 688 [Gladue] extend beyond the realm of criminal sentencing
and “should be considered by all ‘decision-makers who
have the power to influence the treatment of aboriginal offenders in the
justice system’… whenever an Aboriginal person’s liberty is at stake in
criminal and related proceedings” (Leonard at para 85, citing Gladue
at para 65; see also R. v Ipeelee, 2012 SCC 13 [Ipeelee]).
[38]
I do not find that there is anything in these
decisions suggesting that Section 7 interests in respect to First Nation
Canadians extend beyond the criminal law field. This is understandable as
Section 7 interests often have parallels to those in criminal law. The Charter
values discussed in these decisions relate to the historical overrepresentation
of aboriginal people in the criminal justice system, besides being supported by
the language of section 718.2 (e) of the Criminal Code: Gladue at
paras 61, 64 and 87.
[39]
It is common ground that Section 7 interests
relevant in immigration law where risks to life, liberty and cruel and inhumane
treatment arise such as are considered under sections 96 and 97 of the Act and
in relation to the removal of foreign nationals: Németh v Canada (Minister
of Justice), 2010 SCC 56; Suresh v Canada (Minister of Citizenship and
Immigration), 2002 SCC 1; Orelien v Canada (Minister of Employment and
Immigration), [1992] 1 FC 592; Nguyen v Canada (Minister of Employment
and Immigration), [1993] 1 FC 696; Farhadi v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 646 at para 3.
[40]
First Nation members however, are not normally
in refugee situations in Canada. Similarly, the child in this matter, if she
leaves with the Applicant, is not at risk of being exposed to a Section 7
protected interest. Her interests relate to the best interests of the child
that may be considered in an H&C application and not subject to review by
the Removals Officer.
[41]
It is the Applicant’s position that the finding
in Leonard that the Gladue factors are to be considered beyond
criminal law was affirmed by the Supreme Court in R v Anderson, 2014 SCC
41 at paragraphs 21-28 [Anderson]. I do not find this to be the case. In
Anderson, reference is made to the respondent’s argument at paragraph 17:
“all state actors (including Crown prosecutors) must
consider Aboriginal status where a decision affects the liberty interest of an
Aboriginal person. He maintains that this is a principle of fundamental
justice.” There is no indication that this submission was accepted,
particularly because the matter involved prosecutorial discretion in a criminal
law matter. But even if it were accepted, I do not find that the accompanying
Aboriginal child of a parent being removed is someone whose liberty interest is
being affected and thereby falling within the protected interests of Section 7.
[42]
The Applicant further submits that Canadian
courts have recognized that Gladue considerations apply to child welfare
decisions. He cited Children’s Aid Society of Brant v G. (C.), 2014 ONCJ
197. This was an oral decision wherein the Children's Aid Society of Brant was
seeking a Crown wardship order without access to the mother so that the child
could be adopted. No mention was made of Gladue or Charter rights
in the brief reasons. The only relevant passage appears to be as follows:
10 In Brantford we’ve started an
Aboriginal Persons’ Court for criminal offenders with First Nations
backgrounds. Our goal is to first find out as much as we can about the offender
and then fashion a sentence to address his or her criminogenic factors, while
at the same time holding them accountable for their behaviour.
11 The background of the Aboriginal
offender is so important. The effect of residential schools, poverty,
displacements, substance abuse, all impact on why that person is before the
court.
12 Surely a thorough canvassing of
those factors with the mother in this case would help us understand why she’s
in child protection court. Yet, with knowing virtually nothing about [the] mother’s
background, we’ve given her a grand total of 13 months to learn how to become a
mother.
[43]
The Court has also considered a somewhat similar
case that occurred in New Brunswick (Minister of Social Development) v A.
(M.), 2014 NBQB 130. In that matter, the Court concluded in a guardianship
application brought by the Minister that there was a requirement to consider
the child’s interests. The Court stated as follows in respect
of these issues at paragraphs 82-3:
82 Section
1 of the Family Services Act specifically requires a consideration of
religious and cultural issues, (emphasis mine), yet, there was no
attempt to address these, other than a statement from the lead social worker,
Tara Thibeault, that she grew up in an area of New Brunswick where an
aboriginal community was located.
83 The Supreme Court of Canada within
the sentencing context in criminal proceedings has instructed judges to
consider aboriginal community values. (See R. v. Gladue, 1999 CanLII 679
SCC). Similar considerations should apply in child protection hearings.
[Emphasis added]
[44]
No one refutes the requirement that courts
should consider the historical and cultural circumstances of Aboriginals in
matters where their interests are being negatively affected by Court procedures.
But these cases do not stand for the proposition argued that family law
interests constitute Section 7 interests. The special Aboriginal interests are
raised in the first instance by relevant legislation. In addition, it is clear
that consideration must be given to the historical and cultural background of
Aboriginal persons when raised by the parties. For example, in matters
concerning the best interests of Aboriginal children, in whatever form raised,
these are highly relevant extra-added factors that decision-makers must
consider. However, I do not find that these are Charter issues under
Section 7 as argued here.
[45]
In my view, the child’s Charter rights
are not engaged by her father being removed from Canada. As noted by the
Removals Officer, the child is a Canadian citizen and is entitled to leave and
re-enter Canada as she sees fit. While C.D. has a right to enter, remain in and
leave Canada freely (Charter, s 6(1) and IRPA, s 19) and a right to
life, liberty and security of the person (Charter, s 7), these rights are
not raised in matters involving the removal of a parent and do not extend to
mandating that a non-citizen remain in Canada.
[46]
I also conclude that there is no legal basis for
a submission that the child’s Section 7 rights would be engaged or breached by
the Applicant’s removal. The child lacks standing to raise a Section 7 interest
on behalf of the Applicant as she is not being extradited and is not being
removed from her heritage, except by the choice and actions of the Applicant.
[47]
These arguments are in addition to the
speculative and premature nature of the Applicant’s submissions.
C.
The consideration of an Aboriginal child’s rights
is not a principle of fundamental justice
[48]
In order to constitute a principle of
fundamental justice it must (1) be a legal principle, (2) enjoy consensus that
the rule or principle is fundamental to the way in which the legal system ought
to fairly operate, and (3) be identified with sufficient precision to yield a
manageable standard against which to measure deprivations of life, liberty or
security of the person: R. v B. (D.), 2008 SCC 25 at para 46; Canadian
Foundation for Children, Youth and the Law v Canada (Attorney General),
2004 SCC 4 at para 8.
[49]
The Removals Officer operates under the
direction of section 48(2) of the Act to enforce a removal order as soon as
possible. Where there is no serious issue that the child would be at risk of
serious harm in the country to which she is to be removed, the Officer’s jurisdiction
is limited to consideration of short-term issues, which would also apply in
respect of Section 7. With regard to the specific concern raised here, there could
be no loss of cultural heritage in the timeframe of consideration that falls
within the Officer’s jurisdiction. The longer term interests of the child, as
indicated, are determined in H&C proceedings where the best interests of
the child are a primary factor for consideration.
[50]
Along the same lines, I disagree with the
Applicant’s arguments that the rights protected by Section 7 include the right
of parents and children not to be separated by state action. Obviously this
occurs regularly when Aboriginal offenders are imprisoned, in effect
engendering the same separation of parent and child that would occur when the
Applicant is removed from the country and the child remains in Canada. Canadian
family and child protection legislation would ensure that appropriate
alternative arrangements would be made for the child’s protection and
guardianship if this were to occur, including imposing the requirement to
consider ways to maintain the child’s aboriginal identity. I may take judicial
notice as well, that child protection agencies always seek alternative
relatives or suitable persons with whom to place a child, with wardship being
an outcome of last resort.
[51]
I find that the principle contended for by the
Applicant therefore, does not meet the second requirement that it enjoys
consensus as a principle that is fundamental to the way in which the legal
system ought to fairly operate. The principle that would render the
consequences of an enforcement order on a child, not involving risk to the
child or the Applicant for that matter, subject to Charter considerations
would be contrary to the long-standing requirement to enforce removal orders
expeditiously to maintain the legitimacy and viability of our refugee and
immigration processes.
[52]
Indeed, it is not clear, except where the
removals process itself concerns situations of risk on removal of a foreign
national, such as was raised in Peter where the removals process itself
was challenged as unconstitutional for insufficiently screening for risk, that Charter
values play any role in the limited exercise of discretion under section 48
of the Act.
[53]
Finally, I also point out that the only reason
that this issue is being raised here is because the Applicant failed to raise
it in a timely H&C application. Because of this, as a last desperate move,
he raised it before the Removals Officer. This is no basis to attempt to graft
on an issue that relates to humanitarian and compassionate grounds in what is a
last-chance risk-screening procedure to ensure that the Applicant is not being
returned to a changed country situation where sections 96 and 97 protections
should be reconsidered to apply.
[54]
In conclusion, I find that the deportation of
parents of Canadian-born Aboriginal children does not violate the Section 7
rights of either the parents or their children. In this regard, I find the
following decision applicable, Idahosa v Canada (Minister of Public Safety
and Emergency Preparedness), 2008 FCA 418 at paragraphs 46-49 citing Langner
v Canada (Minister of Employment and Immigration), [1995] FCJ No 469 as
follows:
[48] Second,
counsel directed us to no case in which a court has held that section 7
invalidated the removal of a non-national who had not established that she
would be at risk of serious harm in the country to which she was to be removed.
The absence of case law to this effect is no doubt explained in part by section
6 of the Charter, which confers only on Canadian citizens a
constitutional right to enter and remain in Canada.
[49] Third, this Court in Langner
[…] held that the deportation of the parents of Canadian-born children violated
the section 7 rights of neither the parents nor their children. The Court
pointed out that the separation of parents from their children is the result of
the parents’ decision not to take their children with them when removed from
Canada. […]
D.
Whether the Officer erred and/or rendered an
unreasonable decision in her assessment of the BIOC?
[55]
The Removals Officer was alive, alert and
sensitive to the best interests of the child and reasonably engaged with and
considered the child’s short-term interests, particularly as the factual
underpinning was speculative and premature. I conclude that to the extent that
the Officer was entitled to exercise her discretion, the effect of her decision
was to appropriately recognize the speculative basis for any Charter-based
argument and to otherwise reject the Applicant’s Charter and other arguments
in accordance with the requirements of the reasonableness standard.
[56]
As noted above, the child lacks standing to
raise a Section 7 interest on behalf of the Applicant as she is not being
extradited and is not being removed from her heritage, except by the choice and
actions of the Applicant. I agree with the Respondent that to the limited
extent that any Section 7 interests apply, which I find not to be the case, they
are incorporated into the overall assessment of the fairness of the Removals
Officer’s decision, in accordance with the principles of fundamental justice.
Applicants are entitled to procedural fairness in submitting deferral requests
and having them considered. This is a sufficient mechanism to address the
Applicant’s concerns on fairness and the application of the Charter.
[57]
My only concern with the Officer’s decision was
her attempt to carry out a form of H&C analysis, which in ordinary
circumstances should not be undertaken. However, I recognize that in the
context of facing a novel Charter argument, her consideration of these
factors was not entirely inappropriate. In any event, I conclude that the
Officer was satisfied that the child’s needs, including the need to reconnect
with her cultural heritage, would be met in the short-term and that this was
sufficient to discharge her obligations under section 48 of the Act.
VII.
Certified Question and Conclusion
[58]
The Applicant proposes the following certified
questions with regard to this application:
1. Do the principals set out by the Supreme Court of Canada in R. v
Gladue, R. v Ipeele, and R. v Anderson apply, mutatis
mutandis, to removals under section 48 of the IRPA such that there must be
a full consideration of the impact on an Aboriginal child of the removal from
Canada of her non-citizen custodial parent prior to the execution of the
removal order?
2.
Does Section 7 of the Charter of
Rights and Freedoms mandate Gladue-like consideration of the impact
of the removal of an Aboriginal child’s custodial parent prior to the execution
of the removal order?
[59]
The Respondent submits that this application
should be disposed of on the basis of the reasonableness of the Officer’s decision,
rather than a Charter analysis based on a mere possibility. I tend to
agree with this submission, but I am concerned that there may be some
disagreement with the Court’s interpretation of the Officer’s reasons on this
point.
[60]
I am also of the view that the issues raised are
novel and significant in respect of the consideration of the Charter and
other interests of Aboriginal children, including their interplay in H&C
applications and removal procedures. I also believe that the Respondent may have
overstated the law in submitting that both proposed questions have already been
answered by the jurisprudence, and therefore neither constitutes a “question”
requiring an answer from the Court of Appeal.
[61]
Accordingly, I am prepared to certify the two
questions proposed by the Applicant.
[62]
The Application is dismissed and the questions proposed
by the Applicant are certified for appeal.
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