Date: 20030410
Docket: IMM-1341-02
Neutral citation: 2003 FCT 420
Ottawa, Ontario, this 10th day of April, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
DENISE VERONICA JOHN, ET AL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Proceeding
[1] Ms. Denise Veronica John (the "Applicant") has applied for judicial review of the decision of expulsions officer M. Hamlyn (the "Officer"), communicated to her on March 21, 2002, wherein the Officer refused to defer the removal of the Applicant from Canada.
Background
[2] The Applicant, a citizen of St. Vincent and the Grenadines ("St. Vincent"), arrived in Canada on a visitor's visa in June 1992, which expired in December 1992, and has remained here illegally ever since.
[3] The Applicant's youngest daughter, Alana, was born in Toronto on February 1, 1996 and is a Canadian citizen. Alana was born with a rare birth defect that requires her to take medication and for which she has already undergone one operation and will require more surgery in the future.
[4] The Applicant made an unsuccessful application on humanitarian and compassionate ("H & C") grounds, denied on September 18, 2000, in part, because the Applicant had not provided sufficient evidence to establish that Alana would suffer hardship if compelled to return to St. Vincent with the Applicant.
[5] The Applicant then attended several removal interviews and was scheduled for removal on December 16, 2001.
[6] The Applicant provided two letters, dated February 26, 2001 and December 3, 2001, with identical wording, from professionals at the Toronto Sick Children's Hospital in support of her request to stay in Canada. In addition to identifying and describing Alana's condition, these letters made the following material points:
Alana is presently well controlled on hydrocortisone. She takes 7mg, three times daily.
It is important that Alana continue to receive her medical care here at HSC. It is also important that her mother as her sole care giver, be able to monitor her medication on a daily basis. In the past when other caregivers have been in charge of the medication, there have been serious repercussions for Alana and her growth.
[7] In response, it appears, to the December 3 letter, the Respondent deferred this removal in order to obtain and review updated information on Alana's medical condition. On January 10, 2002, in response to an inquiry by expulsion officer Yashmin Damji, Dr. Michel Lapointe, director of Citizenship and Immigration Canada's Overseas Health Operations, stated that he "was confirming the availablity of adequate medical care care for the child." Dr. Lapointe was, in turn relying on an e-mail from Dr. Ballantyne that stated that there was a consulting pediatrician at the Kingstown General Hospital and that he was "sure that she is competent enough to follow this case."
[8] On January 25, 2002, the Applicant's fiancé, Elvis Bristol, filed a sponsorship application on her behalf. The Applicant and her children live with Mr. Bristol.
[9] On February 5, 2002 and March 12, 2002, the Applicant attended two more interviews. Her removal was scheduled for March 25, 2002. On March 21, 2002, the Applicant requested a deferral of that removal. Among the matters raised in the request for deferral were the following:
· although the medication that Alana requires is available in St. Vincent, "it is unlikely that her mother will be able to afford to purchase them";
· Alana's father "does not provide support of any kind";
· "As Ms. John plays an active role in administering treatment and monitoring her daughter's health, it is essential that Alana remain with her mother.";
· should Alana move to St. Vincent "this could definitely pose a risk to Alana's health and quality of life."
[10] This request was denied by the Officer on the basis that she was not of the opinion that "a deferral of the execution of the removal order is appropriate in the circumstances of this case."
Issues
[11] The issues raised by this application can be stated as follows:
1. Based on the evidence before her, did the Officer properly exercise her discretion in refusing to defer removal?
2. Are the section 7 rights of the child Applicant engaged in this application, and, if so, did the Officer exercise her discretion in accordance with section 7 as required by the Canadian Charter of Rights and Freedoms (the Charter)?
Analysis
[12] For the reasons that follow, I am of the view that this application should not succeed.
Issue #1: Based on the evidence before her, did the Officer properly exercise her discretion in refusing to defer removal?
Applicant's Submissions
[13] The Applicant submits that the Officer failed to consider Alana's best interests in her decision to refuse to defer the removal order, as required by the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. While the Officer was not required to conduct a mini H & C review in the context of exercising her discretion, she was required to ensure that Alana would not be put at risk by removal. The Officer failed to consider the Applicant's inability to afford Alana's medication in St. Vincent, the fact that changes in medication would be detrimental to Alana and the fact that the Applicant had nowhere to live in St. Vincent and would be unable to care for Alana. Further, the Officer relied soley on the "cavalier" e-mail exchange of the medical advisors in concluding that she would have access to adequate medical care.
[14] The Applicant refers to the decision of Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 682 (T.D.), where Pelletier, J. stated, at paragraph 48 that"deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment." According to the Applicant, given the very serious nature of the medical condition of Alana, this was one of those exceptional cases and the Officer was under a duty to ensure that removal of the daughter would not put her at risk.
Scope of the Discretionary Powers of the Officer
[15] The starting point for this analysis must be to examine the nature of the discretion of the Officer to defer removal. It must be remembered that removal is usually the very last step in what can be a very lengthy process. Section 48 of the Immigration Act, R.S.C. 1985, c. I-2 states simply that a removal order "shall be executed as soon as reasonably practicable."
[16] Nadon J. elaborated on these limited powers of removals officers in Simoes v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 936 (T.D.) (QL) at paragraph 12:
In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is "reasonably practicable" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system.
[17] As referred to by both the Applicant and the Respondent, in Wang, supra at paragraph 48, Pelletier J. stated that "deferral should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment." Does this mean that, as soon as a risk is raised to a Canadian citizen child of the person to be removed, the removal officer is under a duty to ensure that removal would not put that child at risk? And, if so, what is the extent of that duty?
[18] The case of Baker, supra, was relied on by the Applicant. However, that decision was made in the context of an H & C application. More directly relevant are the comments of Nadon, J. in Simoes, supra at paragraph 11, where he addressed the applicability of the obligations set out in Baker, supra to decisions of removal officers:
In my opinion, Baker does not require a removal officer to undertake a substantive review of the children's best interests, including the fact that the children are Canadian. This is clearly within the mandate of an H & C officer. To "read in" such a mandate at the removals stage would, in effect, result in a "pre H & C" application, which in my opinion, is not what the law requires.
[19] The discretion of a removals officer was addressed by McKeown, J. in Benitez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1307, [2001] F.C.J. No. 1802 (QL), where he held that the powers of the officer are not analogous to those of an adjudicator. At paragraphs 18 and 19, McKeown J. explained the reasoning behind this conclusion as follows:
I do not agree with counsel for the applicant's submission that the discretion granted to a removals officer under the present Immigration Act is as broad as that which had once been granted to an immigration adjudicator by subsection 27(3) and related provisions of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended. As such, the decisions in Prassad [v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560] and Nesha [v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 42 (T.D.)] have little bearing upon the case before me.
In essence, the submissions of the applicant's counsel do not properly construe the system as set out in the present Immigration Act, i.e. the proper place for the full consideration of all of an applicant's H & C factors is before the H & C Officer, not the removals officer. In my view, the removals officer is entitled to rely on what the applicant's counsel determines to be the overriding factor warranting deferral. As such, counsel must be very selective about what he or she chooses to point out to a removals officer. I reiterate that the current Act does not give a removals officer the discretion to consider various H & C factors in determining whether or not to defer removal of the applicant from Canada.
[20] As a result, there is likely no requirement that the removals officer consider H & C factors, including the impact of the removal on the Canadian citizen child. Such a duty on the removals officer, where one already exists at the H & C application stage, would constitute unnecessary duplication.
[21] With respect to the case before me, I note that the Applicant had every opportunity to present her concerns for her daughter at the H & C application stage. Her H & C application was rejected and no application for judicial review of that decision was commenced. Alana's medical condition has not changed; no evidence was presented to the Officer that could not have been provided with the H & C application. The practical result of granting the Applicant's application in this case would be to place in the hands of the removals officer the obligation to revisit the H & C decision. Not only would this be unnecessary duplication, it would be asking the removals officer to act in the place of the H & C decision maker. Accordingly, I do not believe that there was any obligation on the Officer to consider Alana's interests in the circumstances of this case.
[22] Nevertheless, the Officer took the extraordinary and compassionate step of deferring the Applicant's removal to look into the availability of medical treatment for Alana in St. Vincent. If I assume that there was any obligation on the Officer, in my view, she satisfied any such duty.
[23] In general, a reasonable approach to this difficult issue of the consideration of the best interests of the child would be to consider the duty as a continuum. On one end of that continuum would be the thorough analysis required in the context of an H & C application, as described in Baker, supra. At the other end would be a less thorough, but nonetheless sensitive, direction of the decision-maker's mind to the children affected by the decision. In my view, the obligation, if any, of a removals officer to consider the interests of Canadian-born children would rest at the less thorough end of the spectrum. This would be consistent with the nature of section 48 of the Immigration Act. Only in exceptional circumstances should the removal be deferred to accommodate the children of a person who is subject to a removal order, and then only to the extent that the factors could not have been dealt with at the H & C application stage.
[24] Further, it appears to me that the burden rests squarely with the person seeking a deferral to present compelling evidence to support the deferral, including, if applicable, evidence related to the best interests of the child. Vague references to financial concerns or unsubstantiated submissions of the lack of alternative caregivers ought not to be sufficient and certainly, in my view, does not shift the burden to the officer to make inquiries and otherwise ferret out better information.
[25] In this case, the overriding factor warranting deferral was, in my view, the availability of medical treatment for Alana. The evidence is clear that the most serious risk to Alana would occur if she were unable to continue to take her medication. As stated by the letter from the Sick Children's Hospital, "Alana is presently well controlled on hydrocortisone... 7Mg, three times daily." The Officer confirmed that a pediatrician able to treat Alana and the exact medication referred to by the professionals from the Sick Children's Hospital are available in St. Vincent. Although there were other considerations raised by the Applicant in her March 21 request for deferral, the Applicant did not dispute that the medicine or care would be available to Alana in St. Vincent.
[26] I do not believe that the Officer, with her very limited role in the overall immigration process, was required to go any further. She satisfied herself that Alana would not necessarily be exposed to the risk of death, extreme sanction or inhumane treatment. Although it may be more difficult for the Applicant to obtain the necessary treatment for Alana and although the move of her daughter to St. Vincent may cause financial or other hardship, that cannot be considered equivalent to a "risk of death, extreme sanction or inhumane treatment." In any event, the Applicant has the choice to leave Alana in the care of friends or relatives in Canada to continue having her treated at the Sick Children's Hospital.
[27] In my view, the Officer acted reasonably by making the appropriate inquiries and scheduling removal only after she obtained confirmation that medical care was available to Alana in St. Vincent. If a duty exists on the Officer to consider Alana's interests, her decision accorded with the standard that I would expect for a removals officer acting within her limited mandate.
Issue #2: Are the section 7 rights of the child Applicant engaged in this application and, if so, did the Officer exercise her discretion in accordance with section 7 as required by the Charter?
Applicant's Submissions
[28] In the Applicant's submission, Alana's section 7 Charter rights to life, liberty and security of the person are engaged in these deportation proceedings. The Officer's decision to remove the Applicant without proper regard for the risk that it placed on the Applicant's child was not in accordance with the principles of fundamental justice (Romans v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 740 (T.D.) (QL); Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307).
[29] On the specific facts of this case, the Applicant argues that the actions of the Government - the removal of the mother - either deprive Alana of medical care or deprive her of the care of her mother. Thus, by forcibly removing the Applicant from Canada, the Officer is depriving the child Applicant of her fundamental rights to life, liberty and security of the person under section 7 of the Charter. In particular, the deportation order exposes Alana to a risk to her life, in that without medical treatment, her life is at risk because of her life-threatening illness. The evidence clearly establishes that Alana needs medical treatment in order to be ensured a proper emotional and physical development and that the absence of that treatment puts her life and health in serious jeopardy. By deporting the Applicant to St. Vincent, where the child will face a risk to her life given her medical condition and lack of access to proper treatment, Canada is directly responsible and is the necessary link in the chain of causation to that potential result, which is the violation of Alana's section 7 Charter rights.
[30] The Applicant also submits that the decision to remove the Applicant from Canada must be made in accordance with fundamental justice, which is informed not only by Canadian jurisprudence and experience, but also by international law (Baker, supra; Suresh v. 2002 SCC 1">Canada (Minister of Citizenship and Immigration),2002 SCC 1, [2002] S.C.J. No. 3 (QL)). Once the engagement of section 7 of the Charter was established, the Officer was obligated to exercise her discretion in accordance with the principles of fundamental justice and properly assess the new evidence regarding the lack of access to medical treatment. The Officer failed to do so, and her decision not to defer removal was made in breach of section 7 of the Charter and cannot stand.
Analysis
[31] It is well established that the Charter may be applied to decisions of tribunals in certain circumstances. Bastarache J., writing for the majority of the Supreme Court of Canada in Blencoe, supra at paragraph 35, stated that "[b]odies exercising statutory authority are bound by the Charter even though they may be independent of government." The Applicant would have this Court extend the application of the Charter to apply to a dependant of the person who is subject to the removal order, where that dependant is not subject to the removal order.
[32] In Langner v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 469 (C.A.) (QL), the Federal Court of Appeal held that there was no Canadian government action involved in the decision regarding whether Canadian-born children accompanied their parents who were deported to Poland or stayed behind in Canada. Rather, this was a private decision of the parents and the Charter could not apply. This Court has confirmed on a number of occasions that the fact of having Canadian children does not confer any Charter right on parents to remain in Canada and that these children have no Charter right to demand that the Canadian government not apply to their parents the penalties provided for violation of Canadian immigration law (Naredo v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 867 (C.A.) (QL); Alouache v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 562 (C.A.) (QL)).
[33] The Applicant attempts to distinguish her situation from the jurisprudence on the basis of Alana's medical condition. Essentially, the Applicant argues that she is Alana's sole caregiver and that Alana requires constant medical care and attention for her condition. The note from the Hospital for Sick Children indicates that in "the past, when other caregivers have been in charge of the medication, there have been serious repercussions for Alana and her growth." As a result, the Applicant submits that she is the only person available to take care of Alana and her deportation of the Applicant is effectively a deportation of Alana.
[34] In my view, this argument fails. On the facts of this case, it is not inevitable that Alana will go to St. Vincent or that, if she does, she will be unable to access adequate medical treatment. The Applicant does have a choice regarding her daughter: Alana could travel with her mother to St. Vincent and receive medical treatment there or she could be placed in the care of the Applicant's sister, her two older children or Mr. Bristol, her fiancé, and her condition could continue to be monitored by the Hospital for Sick Children in Toronto. "[S]erious repercussions for Alana and her growth" as experienced in the past do not, in my view, predetermine that she will incur problems in the future, particularly if those adults with an interest in her health take steps to ensure that the past is not repeated.
[35] In any event, the actions of the state do not deprive Alana of access to adequate treatment. The single direct reference to medical treatment in the letter from the Sick Children's Hospital is to one particular medication. That medication is available in St. Vincent. I do not accept the Applicant's submission that the evidence establishes that she will not be able to afford the high cost of treatment in St. Vincent. The only reference to lack of finances is a very general statement in the March 21 submission that it is " unlikely that her mother will be able to afford to purchase [the medications]." There is no support for this statement whatsoever. While the level of care from an institution such as Sick Children's Hospital is likely higher and more affordable, I cannot believe that Alana has a Charter right to be treated at that particular hospital.
[36] The decision to take Alana to St. Vincent or to leave her in Canada is a decision that will be made by the Applicant herself. As a result, this case is not distinguishable from Langner, supra and the subsequent jurisprudence of this Court and the section 7 Charter rights of Alana are not engaged on the facts of this case.
[37] Given my conclusion that Alana's section 7 Charter rights are not engaged on the facts of this case, it is not necessary to address the issue of whether the decision to remove the Applicant was done in accordance with fundamental justice.
Question for Certification
[38] The Applicant submits the following question for certification:
In light of the decision in Blencoe, supra, are a Canadian citizen child's rights under Section 7 of the Charter engaged by the deportation of that child's parent in circumstances where the child's well-being would be in jeopardy?
[39] I assume that the Applicant's reference to "well being would be in jeopardy" is to the situation where the child would be exposed to serious harm. On the facts of this case, I am not persuaded that Alana would be exposed to the level of jeopardy that would raise this question. Accordingly, I decline to certify this question, although I agree that, on different facts, it may be a question for further consideration.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1341-02
STYLE OF CAUSE: DENISE VERONICA JOHN AND ALANA
JOHN BY HER LITIGATION GUARDIAN
DENISE VERONIC JOHN.
And
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: MARCH 19, 2003
REASONS FOR[ORDER: THE HONOURABLE
MADAM JUSTICE SNIDER
DATED: APRIL 10, 2003
APPEARANCES:
MR.LORNE WALDMAN
FOR APPLICANT
MS.ANGELA MARINOS
FOR RESPONDENT
SOLICITORS OF RECORD:
LORNE WALDMAN
BARRISTER AND SOLICITOR
WALDMAN & ASSOCIATES
281 EGLINTON AVE., EAST
TORONTO, ONTARIO M4P 1L3
FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
DEPARTMENT OF JUSTICE
ONTARIO REGIONAL OFFICE
THE EXCHANGE TOWER
130 KING STREET WEST
SUITE 3400,BOX 36
TORONTO, ONTARIO M5X 1K6
FOR RESPONDENT
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