[2000] 3 F.C. 18
A-38-00
Rhea Panchoo by her Litigation Guardian Yvette Panchoo (Appellant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Panchoo v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Robertson J.A.—Ottawa and Toronto (teleconference), January 21; Ottawa, January 31, 2000.
Citizenship and Immigration — Exclusion and removal — Validity of case law to effect no right of appeal from refusal to grant stay of deportation order pending determination of application for leave to commence judicial review questioned — Doubtful Immigration Act, ss. 82, 83 precluding appeal — Arguable stay application sought under Federal Court Act, not under Immigration Act — Minister’s insistence deportation be carried out forthwith short-circuiting leave application process, bewildering in view of humanitarian, compassionate circumstances.
Practice — Parties — Standing — S.C.C. decision in Baker v. Canada (MCI) not authority for proposition child has independent legal right to challenge deportation order issued against parent.
Constitutional law — Charter of rights — Enforcement — Child seeking to prevent father’s deportation — Only victim of Charter infringement can seek remedy under Charter, s. 24.
The infant appellant sought, by her litigation guardian, an interlocutory stay of her father’s deportation pending the disposition of an appeal from a Motions Judge’s dismissal of her application for a stay pending the disposition of the action claiming various forms of declaratory relief which she initiated after the father’s own unsuccessful application for a stay pending the disposition of the application for leave to commence judicial review of the refusal of his request to be processed for landing on humanitarian and compassionate grounds.
Held, the application should be dismissed.
The Minister’s insistence that the appellant’s father be deported prior to consideration of his application for leave to commence judicial review proceedings was bewildering. He was in possession of a valid work permit and held full-time employment. Subsequent to cancer surgery, the mother has experienced difficulties coping with the stress of life and in the result the appellant’s father has had to take on most of the responsibility for the appellant’s care. Without the father’s employment income, the family would have to resort to social assistance.
Case law supports the understanding that there is no right of appeal from a refusal by the Trial Division to grant a stay of a deportation order pending the disposition of an application for leave to commence judicial review proceedings, yet it is doubtful that sections 82 and 83 of the Immigration Act preclude any appeal from such a refusal. It is arguable that a stay is not a “matter arising” under the Immigration Act, the order being sought under the Federal Court Act. The Minister’s insistence that the deportation be carried out forthwith short-circuits the leave application process. This was not this Judge’s first expression of frustration at the Minister’s refusal to let people have their day in court.
Because section 82.2 of the Immigration Act has been interpreted as barring an appeal from the Motions Judge’s decision, counsel initiated proceedings in the name of the daughter seeking, inter alia, a declaration that the deportation of the father would not be in her best interests, in accordance with the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration). The Motions Judge declined jurisdiction to hear the accompanying motion for a stay as being an abuse of process, stating that declaratory and injunctive relief must be pursued by way of judicial review and that the plaintiff had no standing to challenge her father’s deportation order.
There was no serious issue here to the extent that the appellant had no standing to challenge the deportation order. Baker does not stand for the proposition that a child now has an independent legal right to launch an action to prevent her parent from being removed from Canada.
The appellant cannot have recourse to subsection 24(1) of the Charter to prevent the Minister from deporting her father until an assessment of her best interests is completed. Only the victim of a Charter infringement can seek a remedy thereunder.
Finally, requests for injunctive and declaratory relief can and should normally proceed by way of judicial review: Moktari v. Canada (Minister of Citizenship and Immigration). To initiate a parallel action was unnecessary and wasteful of the Court’s resources.
This was a case in which justice and the rule of law collided. While the substantive elements of the father’s claim were not before the Court, it was hard to understand why the father could not qualify for an exemption on humanitarian and compassionate grounds. The Minister was unable to give one good reason why the father should be deported prior to disposition of his leave application. The stay application had to be dismissed, but costs were awarded to the unsuccessful appellant.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 24(1).
Federal Court Act, R.S.C., 1985, c. F-7.
Immigration Act, R.S.C., 1985, c. I-2, ss. 82 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 33; S.C. 1997, c. 22, s. 9), 82.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73), 83 (as am. idem), 114(2) (as am. idem, s. 102).
CASES JUDICIALLY CONSIDERED
APPLIED:
Langner v. Minister of Employment and Immigration et al. (1994), 98 F.T.R. 188 (F.C.T.D.); affd (1995), 29 C.R.R. (2d) 184; 184 N.R. 230 (F.C.A.); leave to appeal to S.C.C. refused, [1995] 3 S.C.R. vii; Moktari v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341(C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592(C.A.).
DOUBTED:
Ramnarine v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 404 (C.A.) (QL).
REFERRED TO:
Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 (1999), 176 D.L.R. (4th) 296 (C.A.).
APPLICATION for a stay of deportation order pending the disposition of an appeal. Application dismissed.
APPEARANCES:
Osborne G. Barnwell for appellant.
Ann Margaret Oberst for respondent.
SOLICITORS OF RECORD:
Ferguson, Barnwell, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Robertson J.A.: The appellant’s father, Patrick Toussaint, was scheduled for deportation after his request to be processed for landing within Canada on humanitarian and compassionate grounds was denied. The Minister of Citizenship and Immigration sought to deport Mr. Toussaint prior to the Trial Division of this Court’s consideration of his application for leave to commence judicial review proceedings. An application by Mr. Toussaint to stay his deportation order was dismissed and, in response, Mr. Toussaint’s six-year-old daughter, Rhea Panchoo, through her litigation guardian, commenced an action seeking various forms of declaratory relief. She then sought a stay with respect to her father’s deportation order pending the disposition of the action. Her motion for a stay was dismissed by Madam Justice Tremblay-Lamer on January 20, 2000 and an appeal of that decision is pending before this Court. The appellant daughter is now seeking an interlocutory stay pending the disposition of that appeal.
[2] To begin, I must say that I am bewildered by the Minister’s insistence that the appellant’s father, Mr. Toussaint, be deported prior to perfection and consideration of his application for leave to commence judicial review proceedings. My bewilderment arises from the facts of this case. The appellant is the daughter of Yvette Panchoo (who is the appellant’s litigation guardian) and Mr. Toussaint. Ms. Panchoo and Mr. Toussaint met in 1983 and came to Canada from Grenada in 1989. Since then, they have lived together in a common law relationship. In August 1993, Rhea was born. Around this time, Mr. Toussaint obtained a full-time job which earns him roughly $660 a week. Since 1996, Mr. Toussaint has been in possession of valid work permits issued by the Department of Citizenship and Immigration. In 1997, Ms. Panchoo was diagnosed with breast cancer and underwent surgery to have her left breast removed. This illness has had a dramatic effect on Ms. Panchoo who has become fearful and less able to cope with daily events. As a result, Mr. Toussaint has shouldered most of the responsibility for Rhea’s care. The illness also put a strain on the couple’s relationship and at one point Ms. Panchoo left the family home for a period of several weeks but then returned. In August of 1999, Mr. Toussaint applied for landing from within Canada on humanitarian and compassionate grounds, given Ms. Panchoo’s illness and the family’s reliance on Mr. Toussaint’s weekly income. Without him, the family is destined to seek social assistance.
[3] On December 1, 1999, Mr. Toussaint was informed by letter that his request to be processed for landing from within Canada on humanitarian and compassionate grounds was denied. On December 15, 1999, Mr. Toussaint’s counsel filed an application for leave and for judicial review of the immigration officer’s decision to deny Mr. Toussaint the required exemption under subsection 114(2) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 102)]. However, before the leave application could be perfected, Mr. Toussaint was scheduled for deportation pursuant to a conditional departure order issued in October 1994. He was told to present himself at the Immigration Centre at Lester B. Pearson International Airport on January 21, 2000 in order to board a flight to Grenada that morning. On January 5, 2000, Mr. Toussaint’s counsel brought a motion for an order to stay the execution of the deportation order. The motion was argued before a motions judge in Toronto on January 10. The following day, the stay application was dismissed without reasons.
[4] I accept that the extant jurisprudence supports the understanding that there is no right of appeal from a refusal to grant a stay of a deportation order pending the disposition of an application for leave to commence judicial review proceedings: see Ramnarine v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 404 (C.A.) (QL). With great respect, however, I have serious doubts that sections 82 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 33; S.C. 1997, c. 22, s. 9] and 83 [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act operate to preclude any appeal of a Trial Division’s refusal to grant a stay pending perfection and consideration of a leave application to commence judicial review proceedings. If that were the case then even a party whose stay application, for example, had been heard by a “sleeping” judge would have no avenue through which to seek redress. Further, as a matter of statutory construction, it is arguable that an order to stay is not “a matter arising” under the Immigration Act. An application for such an order is sought pursuant to the Federal Court Act [R.S.C., 1985, c. F-7] and, therefore, falls outside the purposes underscoring sections 82 and 83.
[5] It is important to recognize that the Minister’s decision to effect deportation was taken even before the application for leave to commence judicial review had been perfected. The Minister knows full well that in proceeding in this manner the intended deportee is forced to seek a stay order in which it will be argued that there is a serious issue to be addressed in the judicial review proceedings. At the same time, that argument is, for all intents and purposes, the very one that will be addressed by a judge of the Trial Division when considering whether to grant the leave application. Consequently, the Minister’s insistence that deportation be carried out forthwith effectively short-circuits the leave application process. Elsewhere, I have stated my frustrations with respect to the Minister’s refusal to allow persons to have their day in court: see Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 (C.A.). One would have thought that the Minister would pursue deportation only in the clearest and most compelling of cases.
[6] Because section 82.2 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73] of the Immigration Act has been interpreted to the effect that there is no appeal from the Motions Judge’s decision, Mr. Toussaint’s counsel initiated an action in the name of the daughter seeking, inter alia, a declaration that the deportation of her father would not be in her best interests in accordance with the Supreme Court’s holding in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In effect, the infant plaintiff was asking for what the Motions Judge had already refused, a stay of execution of her father’s deportation order. Counsel then sought a stay of the deportation order pending the outcome of the action.
[7] On January 20, 2000, Madam Justice Tremblay-Lamer dismissed the motion for a stay of the deportation order with the following endorsement:
Considering that declaratory and injunctive relief must be pursued by way of judicial review and considering that the plaintiff has no standing to challenge the deportation order of her father, the Court declines jurisdiction to hear the motion for a stay as being an abuse of process.
[8] Respectfully, I do not think there is a serious issue here to the extent that the appellant has no standing to challenge the deportation order. As counsel for the Minister rightfully points out, Baker requires that the Minister (or her delegate), in considering whether to grant landing to a parent on humanitarian and compassionate grounds, give sufficient weight to the interests of any children who stand to be affected by that decision. It does not stand for the proposition that a child now has an independent legal right to launch an action to prevent her parent from being removed from Canada.
[9] Further, the appellant is seeking a remedy pursuant to subsection 24(1) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] in the form of a prohibition enjoining the Minister from deporting her father until an assessment of her best interests is completed. The case law is clear, however, that a person seeking a remedy under subsection 24(1) must personally have been a victim of an infringement of his or her Charter rights and such person may not base his or her application on an infringement of the rights of third parties. See: Langner v. Minister of Employment and Immigration et al. (1994), 98 F.T.R. 188 (F.C.T.D.); affirmed (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal to S.C.C. refused, [1995] 3 S.C.R. vii.
[10] I must also agree with counsel for the Minister that this Court in Moktari v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341 (C.A.) expressly directed that requests for injunctive and declaratory relief can and should normally proceed by way of judicial review. To initiate a parallel action is unnecessary and diminishes the capacity of this Court to dispense justice in an expedient and efficient manner. Counsel for Mr. Toussaint admits that he would not have initiated this action if his client had been granted a stay of deportation in his application before the Motions Judge. It is for these three reasons that I find there is no serious issue.
[11] It is sometimes observed that hard cases make bad law. But this is only so to the extent that a just result can be achieved only by ignoring accepted legal principles. That being said this is a case in which justice and the rule of law collide. Mr. Toussaint appears to be a man who has worked hard to establish himself in Canada and create a secure life for his wife and daughter. He has a steady job, is a skilled worker and is described by his employer as a dependable employee. He is legally authorized to work in Canada, permission that is given independent of his status in Canada. He pays his taxes, has never been on social assistance and does not have a criminal record. He is described by his church minister as an unselfish man who helps in the operation of a food bank and demonstrates the qualities of hard work. When one considers Mr. Toussaint’s personal qualities in concert with the emotional and financial dependence on him by his family, one is driven to ask: If Mr. Toussaint does not qualify for an exemption on humanitarian and compassionate grounds, who does? I also find it puzzling that the Minister appears to have ignored the fact that the removal of Mr. Toussaint will likely give his wife and child little option but to seek social assistance. Moreover, I note that the Minister was unable to offer one persuasive reason why Mr. Toussaint must be deported prior to his leave application being disposed of by the Trial Division of this Court. That being said, I am cognizant that the substantive elements of Mr. Toussaint’s claim are not before me. (As to the proper standard of review with respect to the Minister’s exercise of her discretionary power see Baker v. Canada (Minister of Citizenship and Immigration) supra; and Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (C.A.) commencing at paragraph 129.)
[12] It is with regret, but according to the law, that I dismiss the stay application but with costs to the appellant which I fix at $500.