Date: 19990614
Docket: IMM-2874-99
BETWEEN:
SONIA PATRICIA HOLDER
Sherecee Francis, Sherkira Holder Thompson and
Shermar Holder Nicholson by their litigation guardian
Sonia Patricia Holder
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J:
[1] The applicant seeks an order staying a deportation order scheduled to be executed on Saturday, June 12, 1999. After a telephone conference held on Thursday, June 10, I ordered that the application be denied on the ground that the applicant has not shown a serious issue with respect to her application for judicial review in this matter. I also informed the parties that written reasons for my order will follow. These are the reasons.
[2] Briefly, the applicant arrived in Canada in 1990 from Barbados and has since given birth to two children who are Canadian citizens. She entered Canada as a visitor and received an extension of visitor's status up to May 24, 1991. She has not made a claim to Convention refugee status. On July 9, 1996, she made her first application for humanitarian and compassionate consideration which was denied. On January 8, 1998, she made a second application for humanitarian and compassionate consideration which was also refused. She made a third humanitarian and compassionate application on May 14, 1999, which was rejected on June 3, 1999. A stay of deportation was granted by madame Justice Reed pending the judicial review of her application for judicial review of the second rejection. The judicial review application was dismissed by Mr. Justice Gibson.
[3] The applicant submits that the serious issue is based mostly on the appeal pending in the Supreme court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)1, a decision of the Federal Court of Appeal. 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. |
[4] The applicant submits that it is apparent from a reading of the material before the Court that the Immigration Officer has completely failed to take into account the impact of the removal of the adult applicant on her two Canadian children. Given that Baker is still pending before the Supreme Court of Canada, she claims it would be proper to grant a stay pending the decision of that Court.
[5] In Yanichevski v. Canada (Minister of Citizenship & Immigration)2, madame Justice McGillis of this Court dismissed on December 9, 1998, a motion for a stay of a deportation order on the ground that there was no serious issue to be tried. She referred to the Baker decision being before the Supreme Court of Canada and to the reasons of Strayer, J.A, writing for the Federal Court of Appeal, who said (at p. 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".
[6] Madame Justice McGillis also referred to a 1995 decision of Décary, J.A., in Langner v. Canada (Minister of Employment and Immigration)3, who held that a child has no right under the Charter not to be separated from his or her parents. She added that she was bound by that decision. The Langner decision dealt with claimants who had two children in Canada while their refugee claim was being decided. They were ordered deported to Poland after their refugee claims were rejected. The children were not included in the order since they were Canadian citizens. Paragraph 4 of Décary J.A.'s decision is directly on point:
| 4. Proceeding by way of an action for a declaratory judgment, the appellants are essentially asking this Court to do nothing less than to declare that the mere fact that these people, who otherwise have no right to remain in Canada, have had a child in Canada prevents the Canadian Government from executing a deportation order that has been validly made against them. In short, one would need only have a child on Canadian soil and argue that child's Canadian citizenship rights in order to avoid the effect of Canadian immigration laws and obtain indirectly what it was impossible to obtain directly by complying with those laws. |
[7] In the case at bar, the applicant has had two children in Canada and they are Canadian citizens. She is free to take her two children with her. The mere fact that they are Canadian citizens does not vest her with a right to remain in Canada long after her visitor's permit has expired. The decision of the Federal Court of Appeal in Langner is the law as it stands today.
[8] The application for stay is denied.
OTTAWA, ONTARIO
June 14, 1999
Judge
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