Date: 20081223
Docket: A-567-07
Citation: 2008 FCA 418
CORAM: SEXTON
J.A.
EVANS
J.A.
RYER
J.A.
BETWEEN:
EGHOMWANRE JESSICA IDAHOSA
Appellant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
This is an
appeal by Eghomwanre Jessica Idahosa, a citizen of Nigeria, who entered Canada in 2001 and claimed Convention refugee
status. Her claim was denied and she was ordered deported. She made other
applications to remain in Canada, but these were also
unsuccessful. Although her removal was originally scheduled for June 30, 2006,
it has been deferred, or stayed by judicial order, several times, and Ms
Idahosa is still in Canada.
[2]
The
decision under review in these proceedings is a refusal by an enforcement
officer to defer Ms Idahosa’s removal to Nigeria scheduled for November 1, 2006. She challenged this refusal in
the Federal Court in an application for judicial review. She argued that
paragraph 50(a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA”) stayed the removal order because its execution would
directly contravene an order of the Ontario Court of Justice awarding her sole
custody of her Canadian-born children and prohibiting their removal from the province.
[3]
Justice
Hughes of the Federal Court denied Ms Idahosa’s application for judicial review
of the enforcement officer’s decision (2007 FC 1200) and certified under
paragraph 74(d) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA”) that the following “serious question of general
importance is involved”.
Does the
removal of a parent who has been granted custody of a Canadian born child by an
Order of a provincial court, which order also prohibits removal of the child
from the province, create a statutory stay pursuant to section 50(a) of
the Immigration and Refugee Protection Act?
Does the fact
that the Order can be varied and that the Minister had an opportunity to speak
to the Order make a difference?
[4]
In my
opinion, the certified question is too broad because it omits an important
aspect of this case, namely, the absence of any actual or potential dispute
over the custody of the children. The custody and non-removal order was sought
solely for the purpose of preventing the removal of Ms Idahosa by obtaining a
statutory stay under paragraph 50(a). The question is whether the
statutory stay applies to a custody order obtained in the circumstances of this
case. In my view, it does not.
B. LEGISLATION
[5]
The
provision of IRPA immediately relevant to the disposition of the appeal is 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;
[…]
|
C. FACTUAL BACKGROUND
[6]
Ms Idahosa’s claim
for refugee protection was denied by the Immigration and Refugee Protection
Division of the Immigration and Refugee Board in April 2004. Her application
for leave to apply for judicial review of that decision was dismissed by the
Federal Court in August 2004.
[7]
In November 2004, she
applied to the Minister of Citizenship and Immigration under IRPA, subsection
25(1) for permanent residence status on humanitarian and compassionate (“H
& C”) grounds. By this time, she had given birth in Canada to two children, a son born in 2002 and a daughter born in
2004, before her H & C was decided. Her H & C application was based in
part on their best interests. It was denied in May 2006.
[8]
Meanwhile, in March
2006, the best interests of the children were again considered, this time in the
context of a pre-removal risk assessment (“PRRA”). The officer concluded that
neither Ms Idahosa nor her children would be at risk in Nigeria, where viable internal flight alternatives were available
to her. In particular, the officer rejected the submission that Ms Idahosa’s
daughter would be at risk of female genital mutilation (“FGM”) in Nigeria,
noting that Ms Idahosa is an educated woman with a law degree, who would make
every effort to protect her daughter.
[9]
In August 2006, Ms
Idahosa asked an enforcement officer to defer her removal, pending the
determination of a second H & C application. Her request was refused
because she had not yet made an application, the best interests of her children
had already been considered in the first H & C application and in the PRRA,
and the evidence she was presenting in support of the deferral had been
submitted to the H & C and PRRA officers. Ms Idahosa subsequently made a
second H & C application on December 1, 2006, which, the Court has been
informed, is unlikely to be decided for at least another eight months, that is,
in mid-2009.
[10]
Just a week before her
removal scheduled for November 1, 2006, Ms Idahosa applied to the Ontario Court
of Justice for an order of temporary custody of her Canadian-born children and
a prohibition of their removal from Ontario without further order of the Court. The
children have been in Ms Idahosa’s sole care and control from birth. Their
fathers apparently are in Nigeria and seem to have had no involvement with
them. The Minister was given notice of the application and the Minister’s
representative made an appearance to say that the Minister had no objection to
such an order, provided that the Court did not deal with Ms Idahosa’s
immigration status.
[11]
The Judge heard the
matter on an urgent ex parte basis. In an order dated October 24, 2006,
the Judge granted temporary custody of the children to Ms Idahosa and
prohibited their removal from Ontario and stated that the Court was not
dealing with the issue of her immigration status.
[12]
Nonetheless, armed
with this custody order, Ms Idahosa asserted to an enforcement officer that
paragraph 50(a) stayed her removal, because it would directly contravene
the order. In a decision of October 25, 2006, the officer refused her request,
finding that her removal would not directly contravene the custody order because
it did not require her to reside with her children.
[13]
She applied to the
Federal Court for judicial review of the enforcement officer’s decision. Her
removal was stayed by an order of the Court, pending the determination by the
Federal Court of Appeal of a case raising the same point. In the event, this
Court dismissed the appeal for mootness: Alexander v. Canada (Solicitor General), 2005 FC 1147, 2006 FCA 386 (“Alexander”).
Ms Idahosa’s removal was then stayed again by a Judge of the Federal Court, pending
the disposition of her application for judicial review.
C. DECISION OF THE FEDERAL COURT
[14]
Justice Hughes held
that Ms Idahosa’s removal, without her children, would not directly contravene
the custody order granted by the Ontario Court because it did not require that
she remain physically with them. And, if she wished to take them to Nigeria with her, she could request a variation of the part of the order
requiring them to remain in the province. In so concluding, the Judge followed
the Federal Court’s decision in Alexander, which has been applied
consistently in that Court.
[15]
Justice Hughes also
rejected arguments that removal would violate the rights of Ms Idahosa and her
children under section 7 of the Canadian Charter of Rights and Freedoms,
and Canada’s international legal obligations under
the United Nations Convention on the Rights of the Child, the Universal
Declaration of Human Rights, and the International Covenant on Civil and
Political Rights.
D. ISSUES AND ANALYSIS
Issue 1: Does IRPA, paragraph 50(a)
stay the enforcement of Ms Idahosa’s removal order because of the custody order
issued by the provincial court?
(i)
standard of review
[16]
The only issue to be
decided in this appeal is the interpretation of IRPA, paragraph 50(a),
which is a question of law. Although paragraph 50(a) is contained in the
enforcement officer’s “home statute”, the mandate of enforcement officers is
limited to scheduling removals and making the necessary administrative
arrangements. Officers’ discretion to defer a removal is narrow: see, for
example, Simoes v. Canada (Minister of Immigration and Citizenship)
(2000), 187 F.T. R. 219; Wang v. Canada
(Minister of Citizenship and Immigration), [2001] 3 F.C. 295 (F.C.).
[17]
In view of
enforcement officers’ limited and subsidiary decision-making role in the
administration of IRPA, their expertise does not extend to determining whether
paragraph 50(a) applies to the judicial order in question here. Counsel
for Ms Idahosa rely on the Canadian Charter of Rights and Freedoms and
international law to support their interpretation of paragraph 50(a). This
is another indication that the legal questions in dispute in this case are
outside the officer’s field of expertise and, hence, no deference is due to her
interpretation of paragraph 50(a).
[18]
Finally, paragraph
50(a) limits the circumstances in which the enforcement of removal
orders issued under IRPA are stayed by court orders made under other legal
regimes. Compare Dunsmuir v. New
Brunswick, [2008] 1
S.C.R. 190, 2008 SCC 9, at para. 61 (“Dunsmuir”), where
correctness was said to be the standard of review applicable to a tribunal’s
interpretation of a provision in its enabling statute demarcating which of two
specialized tribunals should decide a matter.
[19]
These circumstances
are sufficient to rebut the presumption established in Dunsmuir at
para. 54 that administrative decision-makers’ interpretation of their
“home” legislation is normally reviewable on a standard of reasonableness.
Consequently, correctness is the applicable standard of review of the legal
issues in dispute in this case.
(ii)
appellant’s position
[20]
Ms Idahosa’s principal
argument is attractively simple. She says that the rights inherent in an award
of sole custody include the physical care and control of the child: Chou v.
Chou (2005), 253 D.L.R. (4th) 548 (Ont. S.C.J.) (“Chou”).
Accordingly, the order awarding sole custody to Ms Idahosa gives her the right
and responsibility to care for her children on a daily basis. Her removal would
preclude this if her children remain in Canada, and the non-removal provision in the
custody order prohibits her from taking them with her. Since the enforcement of
the removal order would thus directly contravene the custody order, paragraph
50(a) stays Ms Idahosa’s removal.
[21]
Alexander, she submits, was wrongly decided. The Applications
Judge in that case, Justice Dawson, erred when she concluded (at para. 41):
Thus, 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.
Justice
Dawson, counsel says, overlooked the fact that Chou provides (at para.
21) that custody includes, not only control of the child’s place of residence,
but also “the right to physical care and control”.
[22]
Counsel argues that
custody orders of the kind granted in the present case fill a “gap” in IRPA by
ensuring that a parent is not removed before her H & C application has been
determined and the best interests of any affected children have been duly
considered. As is evident from this case, and others, it can take several years
for an H & C application to be decided. Meanwhile, a custody order, in
effect, maintains the status quo pending the determination of an H &
C application, which is the proper forum for balancing the competing interests,
including the best interests of any affected children.
(iii)
Minister’s response
[23]
The main thrust of
the response made by counsel for the Minister is no less cogent. He says that
Ms Idahosa’s removal would not “directly contravene” the custody order because
it does not require that she keep the children in her care and control. If she
decides not to take the children with her, the separation will have resulted
from her decision as to what is best for them.
[24]
More broadly, he
argues, it would be inconsistent with the scheme of IRPA to accede to Ms
Idahosa’s argument, and bring within the scope of paragraph 50(a)
custody orders obtained, in the absence of a family law dispute, for the
purpose of staying the removal of a person who has been ordered deported. He
notes that the propriety of granting custody and non-removal orders in these
circumstances is controversial (see J.H. v. D.A. (2008), 290 D.L.R 732
(Ont. S.CJ.)) and is the subject of an appeal to be heard next month by the
Court of Appeal for Ontario.
[25]
Indeed, the custody
order granted in the present case seems itself to acknowledge that it does not
have the effect claimed by Ms Idahosa. In response to the concern expressed by
the Minister’s representative, the Judge endorsed on the motion the statement that
the Court “will not be dealing at all” with Ms Idahosa’s immigration status.
[26]
Counsel submits that IRPA
establishes a comprehensive scheme for its enforcement, including a provision,
subsection 48(2), that removal orders must be enforced as soon as is reasonably
practicable. In addition, section 25 confers a broad discretion on the Minister,
reviewable on an application for judicial review in the Federal Court, to
permit otherwise ineligible non-nationals to remain in Canada on humanitarian and compassionate grounds. The Federal
Court is the proper forum for determining whether the execution of a
deportation order should be stayed pending the determination of an H & C
application.
[27]
To interpret
paragraph 50(a) as applying to the custody order granted in this case,
he says, would have the undesirable effects of creating an alternative system
of decision-making in provincial courts when deportation orders affect
children, and of encouraging “forum shopping” for decisions that would defer
the enforcement of removal orders. It would enable a provincial court, which
neither has nor claims jurisdiction over deportation matters, to make an order
to prevent or delay a removal.
(iv)
interpretation of paragraph 50(a)
[28]
Despite its
notoriety, the courts’ current approach to the interpretation of legislation
bears repeating. It was most famously formulated in Rizzo & Rizzo Shoes
Ltd., [1998] 1 S.C.R. 27 at para. 21, by Justice Iacobucci who quoted as
follows from Elmer Driedger, Construction of Statutes, 2nd ed. (Markham,
Ontario: Butterworths, 1983):
… the words of an Act are to be read in
their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of
Parliament.
The
Supreme Court has further distilled matters by stating that courts should
interpret legislation by reference to its text, context and purpose: see, for
example, Medovarski v. Canada (Minister of Citizenship and
Immigration), [2005] 2
S.C.R. 539 at para. 8. With this guidance firmly in mind, I turn now to the
interpretation of paragraph 50(a).
(a) statutory text
[29]
The ordinary and grammatical
meaning of the words in paragraph 50(a), “a decision that was made in a
judicial proceeding”, indicates that it applies to the custody order made by
the Ontario Court of Justice in this case.
[30]
The removal of Ms
Idahosa may “directly contravene” the custody order if, properly construed, it
requires her to keep the children within her physical care and control, and
prohibits her from taking them out of the province. However, the provincial
court Judge’s statement that he was not dealing with Ms Idahosa’s immigration
status may put this in doubt. In any event, the basis on which I would dispose
of this appeal does not require me to decide if the removal of a parent without
her children would “directly contravene” the custody order, whether or not the
order specified that they were to remain in the physical care and control of
the parent subject to removal. However, if Ms Idahosa wishes to take her
children with her, she will presumably first need to ask the Ontario Court of
Justice to vary the non-removal order which she herself had requested in order
to delay her removal.
(b) statutory context
[31]
While a literal,
abstract reading of paragraph 50(a) would seem to support Ms Idahosa’s
position, a contextual interpretation of the words points the other way, for at
least four reasons.
[32]
First, it would seem
inconsistent with the duty imposed on the Minister by subsection 48(2) to
execute removal orders as soon as reasonably practicable to interpret paragraph
50(a) as providing that a removal is stayed by a judicial order issued
for the very purpose of preventing removal.
[33]
Second, IRPA creates
an elaborate administrative scheme in which the consequences of removal,
including its impact on children and the possible hardships or risks to which
they may be exposed, are balanced against the public interest in the removal of
non-nationals who are in Canada without status. In Ms Idahosa’s case, immigration
officials have already considered these factors twice since her refugee claim
was denied, in her first H & C application and in her pre-removal risk
assessment, where the risk of FGM was taken into account.
[34]
Third, it was open to
Ms Idahosa to make a motion in the Federal Court to stay the removal order
pending the determination of her second H & C application, the recourse
which she should have pursued, rather than a custody order in the Ontario Court
of Justice. The Federal Court would have decided whether a stay was appropriate,
pending the determination of the H & C application, on the basis of the normal
criteria for staying an order, namely, the presence of an arguable issue,
irreparable harm, and the balance of convenience.
[35]
Fourth, the custody
order granted in this case was final; it was not granted merely pending the
determination of Ms Idahosa’s H & C application. Counsel suggested that if
the H & C application were denied, the Minister could ask the Court to revoke
the custody order, so that Ms Idahosa could be removed, taking her children
with her if she thought that this would be best for them. But why should the
Minister be forced to go to court to make this request? And what guarantee is
there that the Ontario Court of Justice would grant a request by the Minister
to revoke the order, if it remained of the view that it was in the best
interests of Ms Idahosa’s children that their mother should continue to care
for them in Canada?
[36]
In order to avoid
conflicts of this kind, and in recognition of the comprehensive nature of the
administrative scheme created by IRPA, the expertise of the Federal Courts in
immigration law, and the exclusive supervisory jurisdiction conferred on them
by Parliament, superior courts of the provinces have generally chosen not to
involve themselves in immigration and refugee law, even when issues arise that
are within their jurisdiction: see, for example Reza v. Canada, [1994] 2
S.C.R. 394.
[37]
The endorsement on
the motion by the Judge in the present case to the effect that the custody
order did not deal with Ms Idahosa’s immigration status is true in a formal
way, because that court has no jurisdiction over the deportation of non-nationals.
However, if the custody order has the effect, via paragraph 50(a),
of staying Ms Idahosa’s removal, then, in a substantive sense, the Ontario
Court of Justice will have interfered with the administration of IRPA by
hindering the Minister in the discharge of the statutory duty to execute
removal orders promptly.
[38]
As counsel for the
Minister put it, if Ms Idahosa’s argument succeeded it would quickly lead to the
creation of a parallel system of immigration decision-making in the provincial
courts when children are affected by the execution of deportation orders.
[39]
Thus, it seems to me
plainly contrary to the scheme of IRPA to interpret paragraph 50(a) as
enabling non-nationals to defer their removal by obtaining a custody order from
a provincial court on the basis of the best interests of the children, when
there is no genuine dispute about custody. There is no “gap” in IRPA that
custody orders are needed to fill.
(c) statutory purposes
[40]
IRPA contains a long
list of its purposes, including the promotion of family reunification in Canada: paragraph 3(1)(d). Counsel for Ms Idahosa submits
that it would further this purpose to interpret paragraph 50(a) as
staying her removal because of the custody order, and thus keeping her family
intact.
[41]
However, IRPA has
other competing purposes, which include the prompt removal of non-nationals who
have been ordered deported: subsection 48(2). Further, taken as a whole, an
important purpose of IRPA, together with the Federal Courts Act, is to
create a comprehensive statutory scheme for the administration of complex
legislation and a single forum for judicial oversight of decision-making under
it.
[42]
On the other hand,
subsection 48(1) limits the Minister’s duty of prompt removal by recognizing
that the enforcement of removal orders may be stayed. Counsel for Ms Idahosa
submits that, in enacting paragraph 50(a), Parliament contemplated the
possibility of a conflict between the policy of prompt removal and court orders
which would be directly contravened by removal, and resolved it by giving
priority to those orders.
[43]
Generally speaking,
this is true. However, the question here is whether Parliament intended to give
priority to custody orders, no doubt granted in the best interests of the
children of a parent subject to removal, when obtained solely to defer the parent’s
removal, and not to deal with a family law dispute over custody: compare Alexander
v. Powell, [2005] O.J. 500 (Ont. C.J.) at para. 24. In the absence of a lis
with a subject-matter that is independent of the matters dealt with under IRPA,
the kind of conflict contemplated by paragraph 50(a) would seem not to
arise.
[44]
In my view, the
specific purposes of paragraph 50(a), and the more general purposes of
IRPA, on balance assist the Minister’s narrower interpretation of the scope of
the provision.
(d)
section 7 of the Charter
[45]
Ms Idahosa does not
challenge the constitutional validity of paragraph 50(a), but says that it
must be interpreted and applied in a manner consistent with the Charter, as
mandated by IRPA, paragraph 3(3)(d).
[46]
Counsel says that the
rights protected by section 7 include the right of parents and children not to
be separated by state action. To interpret paragraph 50(a) as imposing a
stay on the removal from Canada of a mother who has been awarded sole
custody of her Canadian-born children would be consistent with the section 7 rights
of mother and children. I do not agree.
[47]
First, section 7 protects
individuals from being deprived of the right to life, liberty, and security of
the person, except in accordance with the principles of fundamental justice. In
her memorandum of fact and law, counsel does not identify in what respects paragraph
50(a) is contrary to the principles of fundamental justice. In oral
argument, counsel suggested that removing Ms Idahosa before her second H &
C application was decided constituted a breach of the principles of fundamental
justice. I do not agree that Ms Idahosa’s removal in these circumstances would
be so arbitrary as to constitute a breach of the principles of fundamental
justice, especially since the best interests of her children have already been
considered in her first H & C application and PRRA, and she has a right to
request the Federal Court to stay her removal, a right which she is yet to
exercise.
[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
v. Canada (Minister of Citizenship and
Immigration) (1995), 184
N.R. 230, 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. In the present case, if Ms Idahosa
decides to take her children with her, she may ask the Ontario Court of Justice
to revoke the non-removal order which she herself requested. The Court will
then decide whether it is in the best interests of the children to be with
their mother or to remain in Canada.
[50]
To the extent that
paragraph 50(a) may be ambiguous, section 7 does not, in my view, lend
any significant support to Ms Idahosa’s interpretation of it.
(e)
international law
[51]
Counsel for Ms
Idahosa submits that IRPA, paragraph 3(3)(f) requires that IRPA must be
interpreted and applied consistently with international human rights
instruments to which Canada is signatory, and that only the plainest statutory language
will warrant an interpretation that would violate Canada’s international legal
obligations: see De Guzman v. Canada (Minister of Citizenship and
Immigration), [2006] 3 F.C.R.
655 (C.A.) at paras. 71-89.
[52]
Since paragraph 50(a)
contains no such language, counsel argues that it must be interpreted
consistently with international human rights instruments protecting, for
example, the best interests of children and the relationship of parent and
child. This means, she says, that paragraph 50(a) should be interpreted
as imposing a stay on the removal of Ms Idahosa in contravention of the custody
order. I do not agree.
[53]
First, none of the
international human rights instruments on which Ms Idahosa relies prohibits the
deportation of foreign nationals simply because removal would result in their
separation from their children.
[54]
Second, any
assessment of whether a statutory provision violates Canada’s international legal obligations must be made on the basis
of the statute as a whole. IRPA provides opportunities for the consideration of
the best interests of the children of those subject to deportation. The
interests of Ms Idahosa’s children have been considered by the officer who
determined her H & C application and in the PRRA. While great weight must
be given to the best interests of children in administrative decision-making,
they do not necessarily outweigh all other considerations: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817 at para. 75; Canadian Foundation for Children, Youth and the Law
v. Canada (Attorney General), [2004] 1 S.C.R. 268 at para. 10. The
denial of Ms Idahosa’s H & C application is not under review in this
appeal.
[55]
It is open to Ms
Idahosa to request the Federal Court to stay her removal, pending the
determination of her second H & C application. In my opinion, the
international instruments on which Ms Idahosa relies do not suggest that she
should also have the benefit of an automatic stay of her removal, pending the
determination of her second H & C, on the basis of a custody order obtained
for the purpose of frustrating her removal.
(f) conclusions
[56]
When the text of
paragraph 50(a) is considered in the context of the statutory scheme
created by IRPA, and in light of its purposes, I have concluded that Parliament
should not be taken to have intended that a removal is stayed by a judicial
order obtained from a provincial court for the purpose of preventing or
delaying the enforcement of the removal order.
[57]
In this case, there
was no underlying dispute over custody, and the best interests of the children
were considered by the provincial court in the context of their mother’s
imminent removal. IRPA provides ample opportunity for those interests to be
duly considered by immigration officials as an important, but not necessarily
decisive, factor in determining whether, in all the circumstances, it is
appropriate to enforce the removal order.
E. CONCLUSIONS
[58]
The certified
questions were:
a) Does the
removal of a parent who has been granted custody of a Canadian born child by an
Order of a provincial court, which order also prohibits removal of the child
from the province, create a statutory stay pursuant to section 50(a) of
the Immigration and Refugee Protection Act?
b) Does the
fact that the Order can be varied and that the Minister had an opportunity to
speak to the Order make a difference?
[59]
I would answer as
follows.
a) Paragraph
50(a) does not apply to a provincial court’s order awarding custody to a
parent
of Canadian-born children for the purpose of delaying or preventing the
enforcement
of a removal order against the parent, when there is no lis respecting
custody
that is unrelated to the removal.
b)
On the facts of this case, no.
[60]
For these reasons, I
would dismiss the appeal.
“John
M. Evans”
“I
agree
J.
Edgar Sexton J.A.”
“I
agree
C. Michael Ryer J.A.”
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