Francis v. Minister of Citizenship and Immigration

Francis v. Minister of Citizenship and Immigration Collection Decisions of the Court of Appeal Date 1999-10-19 Docket numbers C29900 Judges Krever, Horace; Doherty, David H.; Rosenberg, Marc Subject Civil Decision Content DATE: 19991019 DOCKET: C29900 COURT OF APPEAL FOR ONTARIO KREVER, DOHERTY and ROSENBERG JJ.A. BETWEEN: ) ) CLEAVON FRANCIS, ) Kevin Lunney and DANIELLA FRANCIS and ) Toby Hoffmann SHANICE FRANCIS ) for the appellant, Minister of through their Litigation Guardian ) Citizenship and Immigration MACDONALD SCOTT ) ) Constance Nakatsu ) for the appellant, Francis Applicants/ ) Respondents ) Jeffrey Wilson ) for the respondents - and - ) ) Yola A. Grant THE MINISTER OF CITIZENSHIP AND ) for the interveners, IMMIGRATION and ) African Canadian Legal MARIA JOYCE FRANCIS ) Clinic et al. ) Respondents/ ) Martha MacKinnon and Appellants ) Sheena Scott ) for the interveners, ) Canadian Foundation for ) Children et al. ) ) ) ) Heard: January 26, 27 and ) October 4, 1999 On appeal from the judgment of Mr. Justice McNeely dated May 6, 1998; (1998), 40 O.R. (3d) 74. DOHERTY J.A.: I [1] Maria Francis (Ms. Francis) has been in Canada illegally for 11 years. Her oldest son, Cleavon, has been in Canada illegally for about 9 years. Her two other children, Daniella and Shanice were born in Canada. [2] Ms. Francis was born in Grenada. She came to Canada from Venezuela as a visitor in 1988. Her son arrived about two years later. Ms. Francis initially tried to secure permanent residence in Canada by way of a refugee claim, but eventually abandoned that claim. In January 1994, a deportation order was made against her. She applied for an exemption under s. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (“the Act”). That section permits the Minister of Citizenship and Immigration (the “Minister”) to exempt any person from any regulation where the Minister is satisfied that the person should be exempted owing to the existence of “compassionate or humanitarian consideration.” That application was ultimately rejected. By November 1997, Ms. Francis had exhausted her remedies under the Immigration Act and she and Cleavon were subject to deportation orders. [3] The children, through their litigation guardian, then commenced an application in the Ontario Court (General Division) seeking declaratory and injunctive relief against the Minister. The children argued that the deportation of their mother would interfere with their constitutional right to remain in Canada and their constitutional rights to remain as part of a family unit. The children purported to invoke the parens patriae jurisdiction of the Ontario Court (General Division). The deportation orders were stayed pending the hearing of the application. [4] McNeely J. granted the application. He quashed the deportation order against Ms. Francis and directed that no further order should be made, except after proceedings of which the Canadian-born children had notice and in which their best interests were considered. He also enjoined the Minister from deporting Cleavon for a period of thirty days following the determination of the mother’s claim. Finally, he declared that it was in the best interests of the two Canadian-born children that they remain in Canada with their mother. [5] The Minister appealed. II [6] On the argument of the appeal in January 1999, there was considerable debate as to whether the interests of the Canadian children could be properly addressed in an application brought under s. 114(2) of the Act. It was argued by the respondents that to the extent that those interests could not be effectively addressed, there was a gap in the process which justified the exercise of the Ontario Court (General Division) parens patriae jurisdiction. [7] The court was told that the question of the extent to which children’s interests should be addressed in an application brought under s. 114(2) of the Act was under reserve by the Supreme Court of Canada in Baker v. Canada (The Minister of Citizenship and Immigration). The court decided to reserve judgment pending the decision in Baker. That decision was released in July 1999. Baker clarifies the procedures to be followed on a s. 114(2) application and the relevance of the interests of the children affected by a deportation order to the exercise of the discretion created by s. 114(2). [8] Following the release of Baker, the court had hoped that counsel could come to some agreement whereby Ms. Francis and her son could renew their s. 114(2) application and have it reconsidered in accordance with the principles set down in Baker. Unfortunately, counsel could not agree. Counsel for the Minister takes the position that the appeal should be decided and has advised the court that if the appeal is allowed and the order of McNeely J. set aside, that the authorities will take steps to remove Ms. Francis and Cleavon from the country. [9] Counsel for the Minister submitted that McNeely J. erred in failing to stay the application brought by the children. He acknowledged that McNeely J. had jurisdiction to consider the application, but contended that as it raised issues which were essentially immigration matters, McNeely J. should have declined to exercise that jurisdiction. Counsel for the Minister characterizes the application before McNeely as an attempt to re- litigate immigration issues which were or could have been raised in the course of the proceedings which eventually led to the deportation orders against Ms. Francis and Cleavon. Counsel points to the terms of McNeely J.’s order as the clearest indication that the proceedings involved immigration matters. He relies on Reza v. Canada, [1994] 2 S.C.R. 394, and Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (C.A.), to support his submission that McNeely J. should have stayed the proceedings. [10] The children and Ms. Francis, who is a respondent on the application, do not take issue with the general proposition that immigration matters should be dealt with under that Act. They submit, however, that this application involved a determination of the rights of Canadian-born children and not immigration matters. They contend that McNeely J. properly invoked the court’s parens patriae jurisdiction and addressed the merits of the application. [11] Similar applications, brought by children of a parent under a deportation order, have been made in at least two other cases. In John (Litigation Guardian of) v. Canada (The Minister of Citizenship and Immigration) (1998), 46 Imm. L.R. (2d) 112 (Ont. Ct. (Gen. Div.)), Dambrot J. accepted the argument made by the Minister in this case and stayed the application.1 In Pirakalathan Ratnavel v. Canada (The Minister of Citizenship and Immigration), March 12, 1999, Toronto, 99 CV-163413 (Ont. Ct. (Gen. Div.)), Sachs J. declined to enter a stay and issued injunctive relief pending proceedings in the Federal Court. [12] In my view, the lis of the application before McNeely J. is properly characterized as an immigration matter. In essence, the application was an attack on the deportation orders on the basis that they interfered with the children’s constitutional rights and had been made without according procedural fairness to the children. This court has expressed the view that, generally, immigration matters are best dealt with under the comprehensive scheme established under that Act. Judicial review of decisions made under the Act are left to the Federal Court. That is not to say that the provincial superior court should always yield to the jurisdiction of the Federal Court. There will be situations in which the Federal Court is not an effective or appropriate forum in which to seek the relief claimed. In those rare cases, the superior court can properly exercise its jurisdiction. [13] McNeely J.’s refusal to stay the children’s application may have been justified on the basis that, as the law stood at the time of the application, it was unclear whether the interests of the children could be addressed when a parent brought an application under s.114(2) of the Act. If those interests could not be assessed adequately, arguably the Federal Court was not an appropriate forum in which to seek judicial review of a decision on the basis that the decision did not properly consider the interests of the children. Given the uncertainty in the law, it is arguable that McNeely J. was entitled to proceed to consider the application on the merits. [14] The decision in Baker v. Canada (The Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.) has eliminated that uncertainty. Ms. Baker brought an application under s. 114(2) based in part on the negative impact her deportation would have on her Canadian-born children. The Minister refused relief under s. 114(2) and judicial review was refused in the Federal Court. [15] It was accepted by all parties in Baker that the Minister owed a duty of procedural fairness to applicants seeking relief under s. 114(2) of the Act. In determining the scope of that duty, L’Heureux-Dubé J., for the majority, said, at p. 215: … the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. [16] In concluding that the duty of fairness had been met in the case, L’Heureux-Dubé J. also stated, at p. 216: … The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case. [17] These passages make it clear that those potentially affected by the exercise of the discretion under s. 114(2), including children, must have an opportunity to have their position put before the official considering the application. In most cases involving young children, I would think that this would be done through the parent. [18] L’Heureux-Dubé J. next considered whether the officers involved in the s. 114(2) inquiry demonstrated a reasonable apprehension of bias. She found that one of the officers had demonstrated bias and she would have quashed the decision on that basis alone. She went on, however, to determine whether, apart from the bias issue, the exercise of the discretion under s. 114(2) was unreasonable in all of the circumstances. In doing so, she focused on the relevance of the interests of the children to the exercise of the discretion granted in s. 114(2). She wrote at p. 230: … In my opinion, a reasonable exercise of the power conferred by the section [114(2)] requires close attention to the interests and needs of children. Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children’s interests has important considerations governing the manner in which H & C powers [humanitarian and compassionate] should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself. [19] In describing how those rights should be addressed, L’Heureux-Dubé J. opined at p. 233: … The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [20] Applying that principle to the facts before her, L’Heureux- Dubé J. concluded, at p.229, that the immigration official had been “completely dismissive” of the interests of the children and had failed to give “serious weight” to those interests. She held that the exercise of the discretion under s. 114(2) was unreasonable, should be set aside, and the matter should be remitted to the Minister for re-determination by a different immigration officer. [21] After Baker, it is clear that the interests of the children must be considered where a parent makes an application under s. 114(2) of the Act. Those interests will be an important consideration in determining whether the discretion granted under that provision should be exercised in favour of the parent. Furthermore, the procedural duty of fairness recognized in Baker contemplates that the parent seeking relief under s. 114(2) and sometimes others will have a fair chance to place material relevant to the children’s interests before the official considering the s.114(2) application. [22] Following the process and using the approach outlined in Baker, the interests of the children can be properly considered where a parent brings an application under s.114(2) of the Act. Those interests can and must be addressed by those exercising the discretion granted under s. 114(2). That discretion is subject to judicial review in the Federal Court. There is, therefore, no need to resort to the parens patriae jurisdiction of the provincial Superior Court. With the benefit of the analysis provided by Baker, it is evident that McNeely J. should have stayed the children’s application in accordance with the principles recognized in Reza v. Canada, supra, and Peiroo v. Canada (Minister of Employment and Immigration), supra. [23] I would, therefore, allow the appeal and set aside the order of McNeely J. and direct that the application brought on behalf of the children be stayed. III [24] Subsequent to the release of Baker, the court wrote to counsel for the Minister (with copies to all other parties) inquiring as to whether Ms. Francis or Cleavon could bring a further application under s. 114(2) of the Act while still in Canada. The court was concerned that Ms. Francis and Cleavon may not have received the full protection of the law as set out in Baker. Counsel for the Minister responded: The department will consider an application pursuant to s. 114(2) from Ms. Francis and or her son, Cleavon upon submission of an application and the cost-recovery fee of $500. The application will be considered in a manner consistent with the Baker decision. [25] As the Minister acknowledges that Ms. Francis and Cleavon can bring a new s.114(2) application, I see no reason why, in the particular circumstances of this case, they should be required to leave the country before making that application. I think part of the order of this court should be stayed to allow Ms. Francis and Cleavon to remain in the country while they pursue a new s. 114(2) application. [26] Paragraphs 1 and 2 of the order of McNeely J. quashed the deportation orders and enjoined the Minister from making further orders. Those parts of the order effectively prevent the deportation of Ms. Francis or Cleavon. Paragraph 3 of his order makes a declaration as to the best interests of the children. I see no basis upon which McNeely J. should have made any declaration as to the best interests of the children. That part of his order should be set aside immediately. I would, however, stay the order of this court setting aside paragraphs 1 and 2 of McNeely J.’s order. This would allow Ms. Francis and Cleavon to bring a further s. 114(2) application while still in Canada. [27] If Ms. Francis and Cleavon intend to bring a new s. 114(2) application, they must do so expeditiously. I would think that those seeking to make the case for allowing Ms. Francis and Cleavon to remain in Canada with the rest of their family can assemble the necessary material with dispatch and place it before the appropriate authority. The authorities are well aware of the particulars of this case and, I assume, can decide the matter without delay once the relevant information has been placed before them. [28] I would allow the appeal and set aside the entirety of the order of McNeely J. and make an order staying the children’s application brought in the Ontario Court (General Division). In so far as the order of this court would set aside paragraphs 1 and 2 of the order of McNeely J., I would stay the order of this court for a period of 120 days from the release of these reasons to allow Ms. Francis and Cleavon to remain in Canada while bringing a further s. 114(2) application. Any party to this appeal may bring an application to abridge or extend the stay if the circumstances so warrant. [29] I would make no order as to costs. Released: October 19, 1999 “Doherty J.A.” “I agree H. Krever J.A.” “I agree M. Rosenberg J.A.” _______________________________ 1 An appeal from the order of Dambrot J. to this court has been adjourned pending the results of this appeal.