Judgments

[1997] 2 F.C. 127

A-441-95

Mavis Baker (Appellant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Baker v. Canada (Minister of Citizenship and Immigration) (C.A.)

Court of Appeal, Strayer, Robertson and McDonald JJ.A. — Toronto, October 9; Ottawa, November 29, 1996.

Citizenship and Immigration — Exclusion and removal — Removal of visitors — Appellant having children born in Jamaica, Canada — Suffering from mental illness, ordered deported — Whether best interests of Canadian child primary consideration in assessing applicant under Immigration Act, s. 114(2) — Proceeding under s. 114(2) involving deportation of parent, not child — Convention on the Rights of the Child not part of domestic law of Canada — Not limiting discretionary authority granted by s. 114(2) — Doctrine of legitimate expectations not creating substantive rights, inapplicable.

International law — Convention on the Rights of the Child — Whether officer, Minister in exercising discretionary authority under Immigration Act, s. 114(2) must give priority to best interests of Canadian child where deportation order made against child’s parent — Case law on applicability of conventions, treaties — Convention herein not implemented by Canadian law — Not applicable as not part of law of Canada — Considering separation of powers, executive cannot alter Canadian law or infringe on provincial jurisdiction by making treaty — Though courts to interpret legislation to avoid Canada breaching international obligations, principle not applied to bring about unconstitutional results.

This was an appeal from a Trial Division decision dismissing an application for judicial review of a decison by an Immigration Officer refusing discretionary action under subsection 114(2) of the Immigration Act based on humanitarian and compassionate grounds. The appellant is a citizen of Jamaica who came to Canada in August 1981 as a visitor and has remained here ever since. She had four children while in Jamaica and four others were born after her arrival in Canada. After being treated for mental illness, she was ordered deported. Her application to set aside the deportation order on humanitarian and compassionate grounds was dismissed by an Immigration Officer, and that decision was under review before the Trial Division. The Motions Judge dismissed the application for judicial review, and at the same time certified a question concerning the Convention on the Rights of the Child. She found the terms of the Convention not to apply to the situation and in any event noted that the Convention was not part of the domestic law of Canada. In accordance with subsection 83(1) of the Immigration Act, the appeal from the Motions Judge was limited to the question certified: whether federal immigration authorities must treat the best interests of the Canadian child as a primary consideration in assessing an applicant under subsection 114(2) of the Act.

Held, the appeal should be dismissed; the question certified should be answered in the negative.

The constitutional issue as to the validity of subsection 83(1) was not properly before the Court on appeal because it had not been certified in accordance with that provision. There is no right of appeal in an immigration matter on any issue not the subject of a certified question. The essential issue was whether the Convention has created a requirement that an officer or the Minister in exercising the discretionary authority under subsection 114(2) of the Immigration Act must give 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 parent. What is implied, if not expressed, in the question is whether the best interests of the children must, as a matter of law, be given more weight than many other factors. “Primary consideration” must be taken as the equivalent of “more important factor” and not merely as a reference to the act of taking into account the interests of the children. The question relates to the substance of, not the procedure for, a decision as to whether humanitarian or compassionate grounds justify an exemption from deportation. Important principles have emerged from recent judgments of the Federal Court of Appeal. First, a child has no independent constitutional right to assert against the deportation of a parent and therefore has no right of representation at deportation hearings. Second, the decision as to whether children are to be separated from deported parents is a matter for the parents and those authorities dealing with child welfare to determine. And finally, what is involved in deportation is the right of the parent and not that of the child, there being no constitutional right for families to be united regardless of the circumstances.

There are two aspects to the issue raised by the certified question: does the Convention impose an obligation to give special weight to the best interests of children on officials directly, or does it do so indirectly by having created a legitimate expectation that such priority will be given? A treaty made by the executive branch of government does not have legal effect over rights and obligations within Canada unless implemented by statute. The Convention on the Rights of the Child has never been adopted by either federal or provincial legislation in Canada. The principle that courts should interpret legislation such as to avoid putting Canada in breach of its international obligations could not be extended to bring about unconstitutional results. The executive cannot grant powers or create rights or obligations within Canada where neither the traditional prerogative nor the common law nor Parliament nor provincial legislatures so provide. Therefore, on the basis of the separation of powers, the executive cannot by this indirect means alter a law of Parliament which has conferred a virtually unfettered discretion, and which leaves it to the Minister or his delegate to decide whether a person unlawfully in this country should be exempted from normal legal requirements on the basis of compassionate or humanitarian considerations. For these constitutional reasons, the provisions of the Convention cannot have the legal effect of limiting the discretionary authority granted by Act of Parliament. There are also administrative law reasons for not allowing the executive, through the executive act of treaty ratification, to effect a fettering of the discretion granted to the Minister by means of subsection 114(2) of the Immigration Act. The more fundamental problem with the appellant’s position is that the Convention norms invoked do not on their face apply to this situation. Article 3, paragraph 1 of the Convention requires that “In all actions concerning children … the best interests of the child shall be a primary consideration”. A proceeding having to do with a deportation of a parent is not an action concerning children any more than it is an action concerning the spouse or the parents or the siblings of the deportee. Only if the deportation of the child itself were in issue would the humanitarian review involve a decision “concerning” that child. The proceeding before the Immigration Officer was, at most, one “affecting” the appellant’s children as opposed to one “concerning” them. The Convention cannot be constitutionally given the effect of imposing, by means of action taken by the federal executive, an obligation on courts and tribunals not imposed by statute. The argument based on legitimate expectations was said to arise out of the commitment made by the federal executive, through ratification of the Convention, to conduct all public administration consistently with the requirements of the Convention. The doctrine of legitimate expectations, which creates no substantive rights, was not applicable. The Convention, 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 Act is to be exercised.

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], ss. 7, 15, 24(1).

Child Day Act, S.C. 1993, c. 18.

Convention on the Rights of the Child, signed by Canada May 28, 1990, [1992] Can. T.S. No. 3.

Federal Court Rules, C.R.C., c. 663, R. 474 (as am. by SOR/79-57, s. 14).

Immigration Act, R.S.C., 1985, c. I-2, ss. 83 (as am. by S.C. 1992, c. 49, s. 73), 114(2) (as am. idem, s. 102).

CASES JUDICIALLY CONSIDERED

APPLIED:

Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184; 184 N.R. 230 (F.C.A.); leave to appeal to S.C.C. refused, Langner v. Minister of Employment and Immigration, [1995] 3 S.C.R. vii; (1995), 30 C.R.R. (2d) 188; 193 N.R. 400; Alouache v. Canada (Minister of Citizenship and Immigration) (1996), 197 N.R. 305 (F.C.A.).

CONSIDERED:

Baker v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1152 (F.C.T.D.) (QL); Huynh v. Canada, [1995] 1 F.C. 633 (1994), 88 F.T.R. 60 (T.D.); Naredo and Arduengo v. Minister of Employment and Immigration (1995), 184 N.R. 352 (F.C.A.); leave to appeal to S.C.C. refused [1996] 1 S.C.R. viii; Tavita v Minister of Immigration, [1994] 2 NZLR 257 (C.A.); Minister for Immigration and Ethnic Affairs v Teoh (1995), 128 ALR 353 (H.C. Aust.).

REFERRED TO:

Huynh v. Canada, [1996] 2 F.C. 976 (1996), 134 D.L.R. (4th) 612; 36 C.R.R. (2d) 93; 197 N.R. 62 (C.A.); Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.); National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326 (P.C.); Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722 (1990), 9 Imm. L.R. (2d) 243; 34 F.T.R. 26 (T.D.); Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161.

AUTHORS CITED

Hogg, Peter. Constitutional Law of Canada, 3rd ed., Scarborough: Carswell, 1992.

Piotrowicz, Ryszard. “Unincorporated Treaties in Australian Law”, [1996] Public Law 190.

Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.

APPEAL from a Trial Division decision ((1995), 101 F.T.R. 110; 31 Imm. L.R. (2d) 150) dismissing an application for judicial review of a decision by an Immigration Officer refusing discretionary action under subsection 114(2) of the Immigration Act based on humanitarian and compassionate grounds. Appeal dismissed.

COUNSEL:

Roger Rowe for appellant.

Cheryl D. E. Mitchell and Kathryn A. Hucal for respondent.

SOLICITORS:

Roger Rowe, Toronto, for appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Strayer J.A.:

Introduction

This is an appeal from a decision of a Motions Judge of the Trial Division [(1995), 101 F.T.R. 110] dismissing an application for judicial review of a decision by an Immigration Officer of April 18, 1994 refusing discretionary action 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)] based on humanitarian and compassionate grounds. In accordance with subsection 83(1) [as am. idem, s. 73] of that Act, this appeal from the Motions Judge is limited to the question certified by her which is as follows [at page 118]:

Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?

In the context, this must be taken to refer to the best interests of a Canadian child whose parent is an applicant under subsection 114(2).

Facts

The appellant, a citizen of Jamaica, came to Canada as a visitor in August 1981. Although she has never been granted the status of a permanent resident she has remained here ever since. According to an affidavit filed by her in the Trial Division, she had four Jamaican children before leaving there and they continue to live in Jamaica. Since arriving in Canada she has had four more children who are Canadian citizens. She supported herself for some eleven years in Canada before being diagnosed as a paranoid schizophrenic. Thereafter she was on welfare and underwent treatment at a mental health centre in Toronto. On December 29, 1992, she was ordered deported. At the request of the appellant a humanitarian and compassionate grounds review of her deportation was conducted, and a negative decision was delivered by Immigration Officer Caden on April 18, 1994, the decision under review.

The Motions Judge reviewed the material put before Officer Caden. In that material was information concerning the children, including a letter from the Children’s Aid Society. The Motions Judge on the basis of the evidence concluded that the material put before Officer Caden emphasized the importance of the applicant’s children and that they “were a significant factor in the decision-making process”.[1] She assumed, as she was entitled to do, that Officer Caden had had regard to all of the material before him in reaching his negative conclusion. She disposed of arguments that on judicial review the Court could not assume good faith on the part of the Officer making the humanitarian and compassionate grounds decision, that there was bias, and that the Officer had decided the matter without regard to the evidence. Although the appellant sought to raise these same issues before this Court, we declined to hear her on the basis that they did not arise out of the certified question and therefore could not be entertained by this Court pursuant to subsection 83(1) of the Immigration Act.

Arguments which did give rise to the certified question and which were also advanced before us were based on articles 3 and 9 of the Convention on the Rights of the Child [[1992] Can. T.S. No. 3], ratified by Canada in 1991 and in force for Canada as of January 12, 1992. It was argued that these articles require that in a determination as to whether a parent’s deportation should be stayed for humanitarian reasons the best interests of his or her children should be “a primary consideration”. The Motions Judge found the terms of the Convention not to apply to the situation and in any event noted that the Convention was not part of the domestic law of Canada. Further it was argued that there was a legitimate expectation that in such circumstances the best interests of children would be a primary consideration. This appears to have been related to the Convention argument, the legitimate expectation being said to have arisen by the government ratifying the Convention on the Rights of the Child. The Motions Judge rejected the argument on similar grounds, namely that the Convention gave rise to no such expectation and could not be given such a legal effect in Canada without legislation.

It is these arguments which we entertained on appeal as the only matters properly raised by the certified question set out above.

The Constitutional Question

As noted above, the Motions Judge dismissed the application for judicial review on June 26, 1995 and at the same time certified the question concerning the Convention on the Rights of the Child. An appeal was duly launched and on June 28, 1996, one year later, the hearing date of October 9, 1996 was fixed for this appeal. On September 5, 1996, more than two months after the hearing date was fixed, counsel for the applicant made a new application to the Motions Judge asking for a reconsideration of her decision of June 26, 1995, for the purpose of having two new questions certified. These questions had to do with the Motions Judge’s conclusion that in the absence of evidence to the contrary she must assume that Officer Caden had acted in good faith and had made an independent decision based on the material which had been put before him. On September 9, 1996 [[1996] F.C.J. No. 1152 (T.D.) (QL)] the learned Motions Judge dismissed the application for reconsideration. She concluded that the premise of the proposed new questions for certification was based on a misconstruction of her reasons and therefore those questions did not properly arise out of her decision. Having taken this view of the matter she did not consider whether, procedurally, it would have been proper for her to certify new questions at that time.

Having failed to have new questions certified on a point of evidence, and thus being precluded from arguing that issue on the appeal, the appellant then filed on September 27, 1996 a notice of a constitutional question which was served on all attorneys general. This raised the question of whether section 83 of the Immigration Act, which requires certification of a question by a Trial Division judge in order for an appeal to be taken to the Court of Appeal, is unconstitutional as contrary to sections 7 and 15 and 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]]. It will be noted that this notice was filed some twelve days before the scheduled hearing of the appeal.

At the opening of his argument, counsel indicated to the Court that he did not wish to argue the constitutional issue as to the validity of subsection 83(1) because he recognized that this Court had as recently as April 15, 1996 dismissed similar arguments in Huynh v. Canada.[2] He merely wished to make the constitutional question part of the record, assuming the Court would dismiss such arguments, in case this matter should go to the Supreme Court of Canada. The Court indicated at the time that we would consider whether to refuse to entertain the constitutional issue or whether we would simply consider it part of the case before us for treatment consistent with existing jurisprudence.

On reflection I am of the view that this constitutional question should be rejected out of hand as not entertainable by the Court on appeal. Simply put, the question is not properly before us because it has not been certified in accordance with subsection 83(1) of the Immigration Act. Nor could it have been certified, as the appealability of her future decision could not have been a relevant issue before the Motions Judge. I note that this does not prevent the constitutionality of subsection 83(1) being raised in other proceedings, as was done for example in Huynh where two questions of law were stated for preliminary determination pursuant to Rule 474 [Federal Court Rules, C.R.C., c. 663 (as am. by SOR/79-57, s. 14)]. In that case an appeal from a decision of the Trial Division [[1995] 1 F.C. 633 that section 83 did not contravene the Charter was then brought before this Court. Alternatively, an action for a declaration might be commenced. But clearly, as the law stands, there is no right of appeal in an immigration matter on any issue not the subject of a certified question.

Even if this were not the case I would exercise the discretion of the Court against entertaining a new issue on appeal which had not been raised in the Court below. The very tardiness of this matter being raised—the result of a very belated application on September 5, 1996 for reconsideration of a June 26, 1995 decision—would cause me to exercise a discretion against allowing new grounds of appeal at this late date. This view would be further reinforced by the fact that the very issue has already been decided by this Court in Huynh and the Supreme Court of Canada has, since the hearing of the present appeal, refused leave to appeal in Huynh, with costs.[3]

The request to entertain a new ground of appeal by way of a constitutional question will therefore be dismissed as not being properly before this Court at this time.

Issue

Having regard to the language of the certified question, we must interpret the legitimate expectations argument as being dependent on the Convention on the Rights of the Child. Thus the essential issue is whether it can be said as a matter of law that the Convention 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 parent. Given the jurisprudence of this Court[4] the question must be interpreted, if it is to be replied to at all, as limited to matters that are determinative of the case. In the present case the Motions Judge found as a matter of fact that the situation of the children was a “significant factor in the decision-making process” by Officer Caden. It would not advance the appellant’s cause, therefore, for this Court to say that the welfare of the Canadian children of a deportee must be a factor, where raised by that deportee, in any determination as to the existence of adequate humanitarian grounds for exempting him or her from deportation. No one disputes that such is the case. What is implied, if not expressed, in the question is whether the best interests of the children must as a matter of law be given more weight than many other factors. If they must be “a primary consideration”, this implies that there may be other equally important considerations which along with the children’s interests have priority over lesser considerations. “Primary consideration” in this context must be taken as the equivalent of “more important factor” and not merely as a reference to the act of taking into account, as the learned Motions Judge found occurred here, the interests of the children. In other words the question relates to the substance of, not the procedure for, a decision as to whether humanitarian or compassionate grounds justify an exemption from deportation.

Jurisprudence of this Court

On the issues raised by the question which was certified, I agree fully with the conclusions of the learned Motions Judge which were squarely based on the jurisprudence of this Court. Were it not that this issue of the Convention on the Rights of the Child continues to be raised by counsel and, we were told, may be the subject of other appeals now pending, it would not seem necessary to elaborate on the conclusions already stated by the Court. Counsel has also made reference to some recent antipodean jurisprudence which, although in my view not determinative, was not cited to this Court prior to the decisions now to be discussed.

The leading case in the Federal Court of Appeal is Langner v. Canada (Minister of Employment and Immigration).[5] In that case a couple from Poland had entered Canada on visitor visas and stayed, having two children born in Canada. They sought, on humanitarian grounds, a waiver of the requirement that they leave Canada in order to apply for permanent residence. The parents and the children brought proceedings in the Trial Division for a determination that by virtue of sections 7 and 15 of the Charter the children had some right not to be separated from their parents or should have the right to sponsor their parents for admission for permanent residence. It was also argued that by virtue of articles 9 and 10 of the Convention on the Rights of the Child the parents should not be removed. On appeal, Décary J.A. held in oral reasons the following:

1. There was no Canadian government action involved in the disposition of the children. The decision whether they accompanied their parents or stayed behind in Canada would be a private decision of the parents and the Charter could not apply to such a decision.

2. There is no Charter right of the parents to remain in Canada or for their children to

… demand that the Canadian government not apply to their parents the penalties provided for violation of Canadian immigration laws.[6]

3. There is no section 7 right under the Charter for a child

… never to be separated from its parents: we need only consider imprisonment, extradition, and even divorce, for confirmation that the child’s right is to be where its best interests require it to be, and it is not necessarily in a child’s best interests to be in the company of its parents.[7]

4. While it appeared to the Court in that case that the parents would make the necessary decision in the best interests of the children it was noted that:

… if other members of the family were of the opinion that this decision was not made in the best interests of the children, the children’s right to remain in Canada could be the subject of a private proceeding, at the conclusion of which the Canadian courts would be required to rule as to whether the parents’ decision is contrary to the interests of the children.[8]

In other words it is for the parents or for provincial courts to determine what is in the best interests of the child, not immigration officers.

5. The Convention on the Rights of the Child had no application to the matter because it was not part of the law of Canada and in any event a reading of Articles 9 and 10 show that they were inapplicable to the facts there.

Leave was sought to appeal the Langner decision to the Supreme Court of Canada and that application was dismissed with costs on August 17, 1995 [[1995] 3 S.C.R. vii]. The Langner case was followed by this Court in Naredo and Arduengo v. Minister of Employment and Immigration.[9] In that case the issue was whether section 7 of the Charter created some right of parents of Canadian children to remain in Canada and it was held that it did not. Leave to appeal this decision was refused by the Supreme Court of Canada on January 11, 1996 [[1996] 1 S.C.R. viii]. In Alouache v. Canada (Minister of Citizenship and Immigration),[10] Langner was again followed to support the conclusion that a child has no independent constitutional right to assert against the deportation of a parent and therefore such children have no right of representation at deportation hearings.

While only Langner dealt specifically with the Convention on the Rights of the Child, there are principles running through these cases which are fundamental: that the decision as to whether children are to be separated from deported parents is a matter for the parents and those authorities dealing with child welfare to determine; and what is involved in deportation is the right of the parent and not that of the child, there being no constitutional right for families to be united no matter what the circumstance.

Applicability of the Convention on the Rights of the Child

As noted earlier the issue raised by the certified question is confined to whether this Convention has put an enforceable obligation on Canadian authorities to give special weight to the best interests of children when exercising a discretion under subsection 114(2) with respect to waiving the requirements of a deportation order. There are two aspects of this issue as argued: does the Convention impose this obligation on officials directly, or does it do so indirectly by having created a legitimate expectation that such priority will be given?

In considering these questions, it is necessary to keep in mind some basic constitutional and administrative law principles. It is clear that a treaty made by the executive branch of government does not have legal effect over rights and obligations within Canada unless implemented by statute.[11] This Convention has never been adopted by either federal or provincial legislation in Canada.[12] It is clear that legislation implementing a treaty should be interpreted by reference to the treaty even in the absence of real ambiguity in the legislation,[13] but it has in no way been demonstrated that the Immigration Act is legislation implementing the Convention on the Rights of the Child. While there is a general principle that courts should interpret all other legislation so as to avoid, if possible, interpretations which would put Canada in breach of its international obligations,[14] this general principle in my view cannot be applied to bring about unconstitutional results.

Parliament has conferred on the Governor in Council, by subsection 114(2) the power to authorize the Minister of Citizenship and Immigration to facilitate the admission of any person:

114. …

(2) … where the Minister is satisfied … that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

Thus Parliament, in the circumstances of this case, has left it to the Minister to decide whether he is “satisfied” that deportation should be waived because he thinks there are compassionate or humanitarian considerations. Those are the terms upon which the discretion has been granted by Parliament. There is no legislative attempt to define “humanitarian” or “compassionate” considerations, and no ordering of priority of such considerations.

It has long been recognized in Canada that the executive cannot grant powers or create rights or obligations within Canada where neither the traditional prerogative nor the common law nor Parliament nor provincial legislatures so provide. Therefore on the basis of the separation of powers the executive cannot by this indirect means alter a law of Parliament which has conferred a virtually unfettered discretion, and which leaves it to the Minister or his delegate to decide whether a person unlawfully in this country should be exempted from normal legal requirements on the basis of compassionate or humanitarian considerations. Nor can the executive by this indirect means require the courts of Canada to give an interpretation to laws which their text will not bear.

Furthermore, the executive branch of the Government of Canada cannot by such international arrangements alter rights and obligations within the jurisdiction of provincial legislatures.[15] Yet if the argument of the appellant is correct, provisions such as article 3 of the Convention, which on their face appear to bear much more directly on matters of property and civil rights than on matters within federal jurisdiction, would have the effect of obliging provincial executive governments and provincial courts to apply the norms established by the Convention even in the absence of legislation.

For these constitutional reasons I would not be prepared to give the provisions of the Convention the legal effect of limiting the discretionary authority granted by Act of Parliament.

There are no doubt also administrative law reasons for not allowing the executive, through the executive act of treaty ratification, to effect a fettering of the discretion granted to the Minister by means of subsection 114(2) of the Immigration Act. Indeed, complaints are frequently made to this Court against any such fettering by the executive of this discretion.[16] Were we to adopt the position that the executive, through ratification of this Convention, had required immigration officers to give a high priority to the best interests of children, what would be said of a refusal by an immigration officer to cancel the deportation of an abusive parent where he decided that that would be in the best interests of the deportee’s children, interests which must be given high priority? Or what would be said of a decision to allow a deportation on humanitarian and compassionate grounds because the deportee would be going back to the country where his or her children resided and it was demonstrated that his or her return to them would be in their best interests, a matter decreed by the Convention to be of a high order of priority?

While the foregoing analysis deals with the legal difficulties of applying Convention norms in the absence of valid domestic law adopting those norms, the more fundamental problem with the appellant’s position is that the Convention norms invoked simply do not on their face apply to this situation. I shall deal in turn with the provisions of the Convention on the Rights of the Child (the only international instrument referred to in the certified question) as relied on by the appellant.

While the appellant refers only to article 3, paragraph 1, the whole article should be read:

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Paragraph 1, which is the most germane, requires that “[i]n all actions concerning children … the best interests of the child shall be a primary consideration” [underlining added]. This is the core of the appellant’s argument that the certified question should be answered in the affirmative. I do not agree. In my view a proceeding having to do with a deportation of a parent is not an action concerning children any more than it is an action concerning the spouse or the parents or the siblings of the deportee. No doubt the decision will have an important impact on some or all of these people but it does not make the proceeding one “concerning” them. Only if the deportation of the child itself were in issue would the humanitarian review involve a decision “concerning” that child.

While multilateral international conventions often, lamentably, lack definition and clarity, a reading of the whole of article 3 gives a strong indication that the article is directed to measures for the care and protection of children and it is wholly consistent with that focus that the best interests of the child should be a primary consideration. On the other hand, to give the term “concerning children” the meaning advanced by the appellant would be to apply it equally to any proceeding where the fate of a parent is in issue, such as in sentencing for a serious crime, or extradition. I am unable to believe that the executive government by ratifying this Convention has imposed on Canadian courts, for example, the obligation to give a high priority to the best interests of the children of a convicted dangerous offender in determining what his or her sentence should be. No doubt the circumstances of a convicted person’s family should be a circumstance considered by the sentencing judge, just as the circumstances of the appellant’s family were taken into account by Immigration Officer Caden. But it would be surprising indeed if the Convention were intended to have the effect of obliging a sentencing judge to give primary consideration to the best interests of the convict’s children.

Some further insight can be gained into the meaning of the phrase “concerning children” in article 3, paragraph 1 when one compares it to the language of article 12, paragraph 2 of the same Convention. This latter paragraph will be quoted in full and discussed briefly below but it refers to the right of a child to be heard.

Article 12

…

2. … in any judicial administrative proceedings affecting the child …. [Underlining added.]

In my view the proceeding in question before Immigration Officer Caden was, at best, one “affecting” the appellant’s children as opposed to one “concerning” them. It is interesting that the Convention itself makes this distinction.

The appellant also relies on article 9, paragraph 1, but a full understanding of that article can only be gained by reading it in its entirety as follows:

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned. [Emphasis added.]

The appellant relies on paragraph 1 which states the general proposition that children should not be separated from their parents against their will. Again, reading the article as a whole, paragraphs 1, 2 and 3 apparently relate to matters such as marriage breakdown and child abuse within the family. If interpreted more broadly, it would raise the same difficulties in relation to, e.g. sentencing or extradition, that the broad interpretation asserted for article 3 would involve. Further it is apparent from paragraph 4 of article 9 that a special regime applies to separation resulting from state action such as imprisonment or deportation, and in such situations the state has a rather limited obligation of providing information as to the whereabouts of absent family members.

Finally the appellant invokes article 12, particularly paragraph 2. That article reads as follows:

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

I would just make two observations on paragraph 2. As far as I can tell, this matter was not raised before the Motions Judge nor is it raised in any way in the certified question. Further, having regard to my conclusions above I do not believe that the Convention can be constitutionally given the effect of imposing, by means of action taken by the federal executive, an obligation on courts and tribunals not imposed by statute. In this regard it is worthwhile noting that much of the obligation so imposed would fall on provincial authorities administering provincial family law and providing civil legal aid.

With respect to the argument based on legitimate expectations, this is said to arise out of the commitment made by the federal executive, through ratification of the Convention, to conduct all public administration consistently with the requirements of the Convention. Apart from the fact that I have concluded that the Convention does not on its face apply to the situation, such an application of the doctrine of legitimate expectations is not permissible. It is well established that the doctrine creates no substantive rights.[17] As indicated earlier, what the appellant is arguing for here is not just a procedural right to have the best interests of the children taken into account (which the Motions Judge found to have happened) but rather to have a particular result at the end of such consideration. That is, it is argued that the best interests of the children must be given a “primary consideration” or in other words a high order of priority in the weighing of various factors. This is a substantive, not a procedural, matter. I will therefore not go into the interesting question of whether the ratification of multilateral conventions can in any realistic sense be regarded as a meaningful representation to all Canadians that public affairs will thereafter be conducted in accordance with those conventions.

Lastly, I will deal with recent cases in New Zealand and Australia which were relied on by the appellant. Both involved the exercise of a discretion, based on alleged compassionate grounds, to permit a foreign parent of children born in those countries to remain there. In each case the Convention on the Rights of the Child was invoked by the parent to claim that adequate consideration had not been given to the “best interests” of the children as required by the Convention.

In Tavita v Minister of Immigration[18] the New Zealand Court of Appeal specifically refrained from making a final decision on that argument.[19] As in that case the birth of a New Zealand child and marriage to its mother had occurred after the refusal by the Minister to intervene on humanitarian grounds, it was agreed on all sides that he had had no occasion to take into account the interests of the child or the Convention. Before the Court was an appeal from a decision refusing judicial review of the Minister’s decision. The Court of Appeal merely adjourned the appeal in order to give the Minister an opportunity to reconsider the matter having regard to the situation of the child.

The more germane decision is that of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh.[20] In that case Teoh, a Malaysian citizen, entered Australia in 1988 and married in that year. He had three children of this marriage. He had applied in 1989 for permanent residence but before such could be granted he was convicted of several counts of importation and possession of heroin and was given a six-year sentence. Permanent residence was subsequently refused to him because of his lack of good character as indicated by his criminal record. He applied for a review of this decision by the Immigration Review Panel. It was common ground that a relevant consideration in that review would be whether there were “strong compassionate or humanitarian grounds” for the grant of permanent residence. The panel in its decision had before it evidence concerning Teoh’s family situation and it recognized in its decision that if Teoh were deported his family would be “facing a very bleak and difficult future.” However it gave more weight to the serious nature of Teoh’s crimes and found the compassionate reasons not to be sufficiently compelling.

The judicial review of this decision ultimately reached the High Court, where a majority agreed that the decision should be set aside. The views of the majority, consisting of four judges, are stated in three separate opinions. McHugh J. dissented. In the joint reasons of Mason C.J. and Deane J. it was recognized that the Convention on the Rights of the Child, although ratified by Australia, was not part of its domestic law. It was affirmed that where legislation is ambiguous and is susceptible of a construction consistent with Australia’s international obligations then it should be so construed but that this

… does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.[21]

This judgment, however, in reality gave indirect effect to article 3 of the Convention (the only one invoked by Teoh) on the basis that by ratifying the Convention the Government of Australia had created a legitimate expectation that it would act in accordance with the Convention. It flowed from that, according to the judgment, that while a decision maker was not thereby bound to make the best interests of the child a primary consideration it was bound to warn the parent that it intended not to do so in order to give him the opportunity to argue against such a course of action. Mason C.J. and Deane J. did confirm that this did not oblige the decision maker to launch its own inquiries as to the best interests of the children. Although they recognized that in this case the Immigration Review Panel had taken into account the interests of the family including the children, and had balanced those interests against the demonstratively bad character of the applicant, that was not sufficient to give “a primary consideration” to the best interests of the children as signalled by article 3 of the Convention. Therefore it was concluded the decision should be set aside. They also expressly concluded that such a decision was one “concerning children” within the meaning of that article.

Toohey J. essentially concurred in the reasoning of Mason C.J. and Deane J.

Gaudron J. said that he agreed with the judgment of Mason C.J. and Deane J. [at page 375] “as to the status of the Convention in Australian law”. It is not apparent which aspect of their judgment he was referring to or as to whether he endorsed the legitimate expectations route by which they had applied the Convention. He instead gave emphasis to the obligation of the state to protect its citizens, that is the children in question, and to act in their best interests. He concurred in the result of the majority.

McHugh J. in his dissenting judgment rejected that result. His most important conclusions for our purposes were that a legitimate expectation cannot give rise to a substantive right, and that the Convention gave rise to no legitimate expectations in these circumstances. The first conclusion was based on familiar principles. The second was based both on the constitutional structure of Australia (in this respect similar to that of Canada) and on the non-applicability of the specific language of article 3 of the Convention. With respect to the former point he found that if the executive ratification of an international convention were to give rise to a legitimate expectation that the Convention would be applied in Australia, the executive government through that ratification would have effectively amended Australian law. Not only would this thereafter govern all federal officials and tribunals, including those that are by law independent of the executive government; it would also alter the duties of state government officials.[22] With respect to the latter point, the meaning of the Convention, McHugh J. had the following to say:

Even if Art 3 is generally applicable to actions under the Migration Act, I do not think that Art 3 was intended to apply to an action that has consequences for a child but is not directed at the child. Article 3 will have enormous consequences for decision-making in this country if it applies to actions that are not directed at but merely have consequences for children. It seems unlikely, for example, that it was the intention of the article that a court must make the best interests of a child a primary consideration in sentencing a parent. And there are many other areas of administration where it could hardly have been intended that the best interests of the child were to be a primary consideration in actions that have consequences for a child. Must a public authority make the best interests of a child a primary consideration in determining whether to acquire compulsorily the property of a parent? Must the Commissioner of Taxation make the best interests of a child a primary consideration in exercising his powers under the Income Tax Assessment Act 1936 (Cth)? Questions of this sort make it likely that the provisions of Art 3 were intended to apply to “actions” that were directed at children and not those that merely have consequences for children.

In my opinion, therefore, Art 3 was not intended to apply to an application by an adult person for resident status. Here the action was directed at Mr Teoh. It was not directed at the children. I do not think that Art 3 required the minister’s delegate to make the best interests of the children a primary consideration in deciding Mr Teoh’s application any more than that article required the judge who sentenced him to make the best interests of the children a primary consideration in the sentencing process.[23]

It will be noted that I have reached similar conclusions above in the elaboration of the jurisprudence of this Court.

I therefore respectfully reject the reasoning of the majority in the Teoh case and, as did the Motions Judge, adopt the reasoning of McHugh J. The majority judgments in Teoh have been criticized by at least one author.[24] Furthermore, the finding by the Court that Australia’s ratification of the Convention amounted to a public undertaking by the government that the Convention would be applied in Australia, thus giving rise to legitimate expectations, was specifically repudiated by that government. On May 10, 1995 the Minister for Foreign Affairs and Trade and the Attorney General issued the following statement:

We state, on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision-makers. Any expectation that may arise does not provide a ground for review of a decision. This is so both for existing treaties and for future treaties that Australia may join.[25]

This statement recognized that such conventions could be taken into account by decision makers in exercising their discretion under legislation but insisted that treaties not made part of the law of Australia could not give rise to rights and obligations.

Conclusion

I therefore conclude 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. That is the Convention cannot prescribe, in a manner enforceable by the courts, the obligation to give the best interests of children, of an alien who is under order of deportation, superior weight to some other factors. Such a prescription would give rise to a substantive, not merely a procedural, right and cannot be the subject of legitimate expectations. Further, articles 3 and 9 of the Convention, which are the only ones properly under consideration on this appeal, do not by their terms purport to prescribe a priority for the best interests of the child in a proceeding under subsection 114(2) which involves the deportation of the parent and not of the child.

It bears repeating that this conclusion in no way denies the relevance of the interests of children of prospective deportees when the Minister or her delegate exercises the humanitarian and compassionate discretion, if the situation of the children is brought to their attention. But it is for the parents or others authorized by provincial law to determine, in the best interests of the child, whether that child should accompany a departing parent.

Disposition

The appeal should therefore be dismissed and the question as certified should be answered in the negative.

Robertson J.A.: I agree.

McDonald J.A.: I agree.

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