Date : 19981209
Docket : IMM-6280-98
BETWEEN:
YANICHEVSKI, VICTOR MYRONOWICH, es qualite for his
daughter Lilia YANICHEVSKI, (D.O.B.: 05-09-97)
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[Delivered from the Bench in a teleconference
between Montreal and Ottawa on Wednesday, December 9, 1998]
[1] My reasons must be delivered in this matter on an urgent basis, as the deportation of Victor Yanichevski and his wife, the parents of the child plaintiff, is scheduled to occur later this afternoon.
[2] The parents of the child plaintiff arrived in Canada as refugee claimants in May and July 1997. Conditional removal orders were made against them on their arrival. The child plaintiff was born in Canada in September 1997.
[3] On May 14, 1998, the Immigration and Refugee Board rejected the parents' refugee claims. The parents did not bring an application for judicial review to challenge the decision of the Immigration and Refugee Board.
[4] In August 1998, the parents made an application, under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, for exemption from visa requirements on the basis of humanitarian and compassionate considerations. The application under subsection 114(2) of the Immigration Act was rejected on September 22, 1998, and the parents did not challenge that decision by way of an application for judicial review. The parents have also never instituted any proceedings to challenge the validity of the removal orders. The parents' deportation was scheduled to take place on October 19, 1998.
[5] On October 16, 1998, the child plaintiff's father instituted proceedings in the Quebec Superior Court seeking the issuance of an injunction to prevent the deportation. The defendant agreed to suspend the deportation to November 15, 1998, pending a decision from the Quebec Superior Court. On November 13, 1998, Barbeau, J.C.S. dismissed the motion for an injunction.
[6] On December 8, 1998, the child plaintiff's father filed a Statement of Claim in this Court seeking a declaration that "the child has the right to stay in Canada, and not be deprived of her parents until a final decision in the Francis and the Baker cases." He also filed a motion for a stay of the deportation order.
[7] Having considered all of the materials and the oral submissions of counsel for the child plaintiff, I have concluded that the motion for a stay must be dismissed on the basis that there is no serious issue to be tried.
[8] The case Baker v. Canada (Minister of Citizenship and Immigration) was argued before the Supreme Court of Canada on November 4, 1998. A review of the decision Baker v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 127 (F.C.A.) reveals that the issue considered by the Court of Appeal was as follows:
| "...whether it can be said as a matter of law that the [Convention on the Rights of the Child] has created a requirement that an officer or minister in exercising the discretionary authority under subsection 114(2) of the Immigration Act must render a decision which gives some unspecified priority to the best interests of a Canadian child in determining whether to waive compliance with a deportation order already made against that child's parents." |
[9] In determining that issue, Strayer J.A., writing for the Court, concluded, at page 151, that"...the Convention on the Rights of the Child, not having been adopted into Canadian law, cannot constitutionally give rise to rights and obligations as to how the discretion given by subsection 114(2) of the Immigration Act is to be exercised."
[10] Given the failure of the child plaintiff's parents to challenge by way of judicial review the decision rendered under subsection 114(2) of the Immigration Act, the outcome of the Baker v. Canada (Minister of Citizenship and Immigration) decision in the Supreme Court of Canada cannot assist the child plaintiff in the present case.
[11] In Langner v. Canada (Minister of Employment and Immigration) (1995) 184 N.R. 230 (F.C.A.), Décary J.A., writing for the Court, held that a child has no right under the Charter not to be separated from her parents, and that parents of a child born in Canada has no Charter right to remain in Canada. An application for leave to appeal that decision was refused by the Supreme Court of Canada on August 17, 1995, at [1995] 3 S.C.R. vii. I am bound by the decision in Langner v. Canada (Minister of Employment and Immigration). [See also Naredo and Arduengo v. Minister of Employment and Immigration (1995), 184 N.R. 352 (F.C.A.); Alouache v. Canada (Minister of Citizenship and Immigration) (1996), 197 N.R. 305 (F.C.A.)]. Furthermore, I have not been persuaded that the outcome of the Francis case, scheduled to be heard in the Ontario Court of Appeal in January 1999, has any direct bearing on the present case, particularly given the refusal of the Quebec Superior Court to grant injunctive relief to prevent the deportation of the child plaintiff's parents.
[12] For these reasons, I have concluded that there is no serious issue to be tried.
[13] IT IS ORDERED THAT the motion for a stay of the deportation order is dismissed.
| D. McGillis |
| Judge |
OTTAWA
December 9, 1998