Date: 20091211
Docket: IMM-6220-09
Citation: 2009 FC 1271
Toronto, Ontario, December 11, 2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
QUDIR
ADOLPH
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
sad and disturbing case involving a minor child who remains alone in Canada after having been sent to
Toronto by his mother and aunt on a one way ticket from St. Lucia, purportedly to offer him an
opportunity for a better life in Canada.
To compound this unacceptable situation, two government agencies are working at
cross-purposes from each other in this case, each claiming to be taking into
account the true best interests of the child.
[2]
The
background is as follows. The Applicant was born on March 8, 1993 in St. Lucia. On August 19, 2007, at the
age of 14, his mother and aunt placed him on a plane to Canada for the purpose
of having him illegally immigrate to Canada
and make a better life for himself here. The Applicant thus joined his older
brother Tarrick who was himself just a young adult living without status in Canada. A few months later, on March
21, 2008, the police intervened and discovered that the Applicant and his brother
were living in Canada without status. The brother
was incarcerated by immigration authorities and eventually removed to St. Lucia.
[3]
In light
of his young age, the Applicant was not incarcerated but rather placed in the
temporary care and custody of the Children’s Aid Society of Toronto.
[4]
The
various interview notes from the Children’s Aid Society of Toronto are
revealing as to what has occurred: “Worker contacted the boy’s mother, Magnetta
Marcellin, in St.
Lucia. Ms.
Marcellin advised that she has spoken to Gilbert [one of the Applicant’s
brother] and she is aware of what has happened to Tarrick and Qudir in Toronto. It is Ms. Marcellin’s wish
for Qudir to remain in Canada as there is no good education
or work opportunity in St. Lucia, reason for sending the boys to Canada. Ms. Marcellin hopes that
either Tarrick, Gilbert, or Gilbert’s wife would be able to look after Qudir”
(page 18 of Motion record). “Tarrick’s biological father lives in the United States and sends money to Tarrick
from time to time. The boy’s maternal aunt, who resides in England, has been
sending money from time to time to help the boys out […] Qudir stated the
reason why he and Tarrick came to Canada was for a better live (sic). There are
no jobs in St.
Lucia. His
mother and relatives paid for his plane ticket to Canada. He was not expecting to return to St. Lucia […] Qudir stated that he and
Tarrick maintains (sic) contact with their mother by phone. They call her every
Sunday. However, Qudir indicated that he does not have his mother’s phone
number.” (page 22 of Motion record). ‘Tarrick stated he and Qudir are very
close. He wants to help relieve his mother of some financial difficulty by
taking care of Qudir. His aunt helped paid (sic) for Qudir’s ticket to Toronto. What Tarrick has been
earning is not enough to sustain his and his younger brother’s livelihood and
so his father and their aunt send them money from time to time to help out”
(page 23 of Motion record).
[5]
The
Applicant’s mother and his four siblings are living in St. Lucia. Though his immediate family is for the
most part living in St. Lucia, and though the record shows that the Applicant
has regular telephone contacts with his family in St. Lucia and has received in
the past financial help from his extended family, the Children’s Aid Society of
Toronto has apparently decided that the best interests of the Applicant lies
elsewhere than with his biological family. Consequently, the Society “has
attempted to persuade the immigration authorities to allow him to remain in the
country while the Society pursues alternative plans of care in order to
determine whether Crown wardship should be pursued” (affidavit of Jordana
Hochman, paragraph 15).
[6]
With this
purpose in mind, the Children’s Aid Society of Toronto has taken what appears
to be an adversarial approach to the Canadian immigration authorities. A first
request was made to the Respondent by the Children’s Aid Society of Toronto on
December 15, 2008 seeking to pre-empt a “potential removal” of the Applicant
and requesting a “temporary resident permit” for him (Motion record at p. 64
and ff). The record before me shows no formal answer to this request by the
Respondent.
[7]
Consequently,
on March 9, 2009 the Society then submitted for the Applicant a pre-removal
risk assessment request based entirely on the argument that the Applicant would
be at risk for his personal security in St. Lucia since he could be targeted to join youth
gangs should he return there. On October 22, 2009 the officer concerned issued
a negative pre-removal risk assessment decision. The Children’s Aid Society of
Toronto did not seek judicial review of this decision for the Applicant.
[8]
In light
of the negative pre-removal risk assessment, on November 18, 2009, the
Applicant was directed to report for removal to St. Lucia on December 12, 2009. On November 20,
2009, the Children’s Aid Society of Toronto then submitted a request for
deferral of this removal on behalf of the Applicant. The basis for this request
was that the Children’s Aid Society of Toronto knew what was best for the
Applicant, and its views on this matter should prevail:
“You will see from the attached letter of
Jordana Hochman of the Toronto Children’s Aid Society (CAS) that the CAS has
decided that it is in Qudir’s best interest that he be made a Crown ward and
that the CAS intends to pursue Crown wardship for him at the next available
opportunity on January 29, 2010. The CAS states that it is his best interest
that he remain in Canada while Crown wardship is
pursued and while the CAS takes necessary steps to obtain immigration status
for him.” (Counsel submissions dated November 20, 2009, Motion record p. 61).
[9]
The
Applicant was subsequently interviewed by the enforcement officer in the
presence of a representative of the Children’s Aid Society of Toronto. By a
decision dated December 1, 2009 but communicated only on December 4, 2009, the
enforcement officer refused to grant the deferral. The decision was made on the
basis that the potential Crown wardship proceedings were not in themselves sufficient
to impede removal. The decision also states that there was insufficient information
to demonstrate that the Applicant’s family in St. Lucia would not take care of him upon his
removal.
[10]
The
Children’s Aid Society of Toronto acting for the Applicant subsequently
initiated before this Court on December 7, 2009 an Application for leave and
for judicial review of this decision, and a motion to stay the removal pursuant
to section 18.2 of the Federal Courts Act.
[11]
This
motion is governed by the tripartite test articulated by the Supreme Court of
Canada in R.J.R. MacDonald Inc. v. Canada (Attorney General),
(1994) 1 S.C.R. 311 and applied to stays of removal by the Federal Court of
Appeal in Toth v. Canada (Minister of Employment and Immigration)
(1988), 86 N.R. 302. In light of the fact the underlying application concerns a
decision of an enforcement officer refusing to defer a removal, the recent
decision of the Federal Court of Appeal in Baron v. Canada (Minister of Public Safety
and Emergency Preparedness),
2009 FCA 81 must also be taken into account.
[12]
The
Children’s Aid Society of Toronto acting for the Applicant raises two issues
which are closely related. First the Applicant argues that the enforcement
officer ignored compelling factors demonstrating that the best interests of the
Applicant were such that his removal should have been deferred. Second, the
officer failed to take into account Canada’s
obligations under the Convention on the Rights of the Child to provide
protection and assistance to the Applicant and act in his best interests.
[13]
To this
the Respondent answers that the Applicant would not in any event obtain immigration
status even if he eventually did become a ward of the Crown, and consequently
deferral of removal on the basis of a possible court proceeding for such
purpose is not appropriate. The officer’s decision in this regard was thus
reasonable. Second, the best interests of the Applicant call for his
reunification with his family, and since there is no evidence that the
Applicant would be neglected if returned to St. Lucia, or that his mother is unfit, the
officer’s conclusion on this matter is also reasonable. The Respondent adds
that there is potentially more harm that could result from continuing to
separate the Applicant from his family in St. Lucia.
[14]
From a
larger perspective, the Respondent argues that contrary to the allegations of
the Children’s Aid Society of Toronto, the best interests of the Applicant do not
include an entitlement to remain in Canada
to obtain a better life than he would otherwise have in St. Lucia. There is no authority for
such a proposition. The Respondent also adds that non-citizen parents from
foreign countries should not be encouraged to send and abandon their children
in Canada in the hopes of better opportunities
for them.
[15]
Counsel
for both parties confirm that no case law dealing with an issue such as this
one exists.
[16]
The
arguments made for the Applicant ultimately raise the interpretation and
application of the Convention on the Rights of the Child in
circumstances where a child without immigration status is abandoned, and how
the Convention is to be taken into account for immigration purposes in
such circumstances pursuant to paragraph 3(3)(f) of the Immigration and
Refugee Protection Act which reads as follows:
|
(3) This Act is to be construed and applied in a manner that
[…]
(f) complies with international human rights instruments to which
Canada is signatory.
|
(3) L’interprétation et la mise en oeuvre de la présente
loi doivent avoir pour effet :
[…]
f) de se conformer aux instruments internationaux portant
sur les droits de l’homme dont le Canada est signataire.
|
[17]
The arguments raised also
require deciding who should determine the best interests of an abandoned child
in such circumstances, the Children’s Aid Society or the immigration
authorities?
[18]
I am of
the view that these are serious issues which meet the high threshold set out in
the Baron decision.
[19]
On
irreparable harm, I am mindful that the Applicant’s family is living in St. Lucia. In my view, all concerned parties
should be striving to ensure by all reasonably available means the return of
the Applicant in a safe environment in St. Lucia, if at all possible. The Children’s Aid
Society of Toronto is making a selective reading of the Convention on the
Rights of the Child by finding that the best interests of the Applicant
only rest in Canada. The Convention’s
underlying fundamental principles call for family reunification, the avoidance
of illicit trans-border movements of children, and respect for the values of
developing countries which, as signatories themselves to the Convention,
are as interested of caring for the children who are their nationals than the
Children’s Aid Society may be. I note in particular the following provisions of
the Convention:
Article 8 (1) State Parties undertake to respect the
right of the child to preserve his or her identity, including nationality,
name and family relations as recognized by law without unlawful interference.
Article 11 (1) State Parties shall take
measures to combat the illicit transfer and non-return of children abroad.
Articles 20 (1) and (3) A child temporarily or
permanently deprived of his or her family environment, or whose own best
interests cannot be allowed to remain in that environment, shall be entitled to
special protection and assistance provided by the State […] Such care could
include, inter alia, foster placement, kafalah of Islamic law, adoption or if
necessary placement in suitable institutions for the care of children. When
considering solutions, due regard shall be paid to the desirability of
continuity in a child’s upbringing and to the child’s ethnic, religious,
cultural and linguistic background.
Article 21 (b) State Parties that recognize
and-or permit the system of adoption shall ensure that the best interests of
the child shall be the paramount consideration and they shall:
(b) Recognize that inter-country adoption
may be considered as an alternative means of child’s care, if the child
cannot be placed in a foster or an adoptive family or cannot in any suitable
manner be cared for in the child’s country of origin;
[Emphasis added]
[20]
In this
case, the social services agencies of St. Lucia have not been contacted in
order to secure an on-site report on the Applicant’s family situation and on
potential alternative placement solutions in St. Lucia should the return to the family not be
deemed feasible. It is essentially for this reason that I deem that the
Applicant may be facing irreparable harm.
[21]
Indeed,
on the one hand the Children’s Aid Society of Toronto has deemed the family in St. Lucia unfit or incapable of caring
for the Applicant based on relatively short telephone communications and
without any on-site assessment or the assistance of local St. Lucia social services. On the other
hand the enforcement officer, based on the record before him, found that there
was no evidence of the family being unfit or incapable of taking care of the
Applicant upon his return.
[22]
Though I
recognize that I must review the decision of the enforcement officer with deference,
it must also be recognized that the review of situations involving a child who
may have been abandoned is beyond the field of expertise of a removal officer
whose jurisdiction is quite limited. I also recognize that the Children’s Aid
Society of Toronto is ill-suited to assess the family situation in St. Lucia
and alternative placement opportunities there, and that its current assessment
of the situation may be flawed. In such circumstances, in light of the fact
that a minor child is involved, I prefer to act cautiously. Consequently, at
this stage of the proceedings, and with the information before me now, I find
that the Applicant has made, at this time, a case for irreparable harm for the
purposes of this Motion.
[23]
The Court
encourages the Respondent and the Children’s Aid Society of Toronto to work
collaboratively in the upcoming weeks leading to the decision on the leave
application in order to contact local authorities in St. Lucia to properly
ascertain the family situation and, if need be, alternative placement options
in St. Lucia.
[24]
On the
balance of convenience, I strongly support the Respondent’s contention that
citizens from foreign countries should not be encouraged to send and abandon
their children in Canada. In this case I encourage the
Respondent to review its procedures to ascertain how this child was able to
travel to Canada by air, presumably unaccompanied, and then succeed in entering
Canada. Clearly measures need to be
taken to avoid similar situations in the future. There is no question of
encouraging in any fashion or manner whatsoever the act of sending and
abandoning foreign children in Canada.
[25]
In this
case, though I recognize that the Respondent must carry out a removal order as
soon as reasonably practicable pursuant to subsection 48(2) of the Immigration
and Refugee Protection Act, the particular circumstances of this case
require that I find that the balance of convenience lies at this time with the
Applicant.
ORDER
THIS COURT ORDERS that the motion for a stay of removal is granted
and removal of the Applicant is stayed pending disposition of leave in the
underlying application for judicial review and, if
leave is granted, until disposition of the application for judicial review.
“Robert Mainville”
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