The Best Interests of Children is an Important Factor in Discretionary Decision-making but it is Just One of the Factors: Baker V Canada (MCI), [1999] 2 SCR 817

by Legally Canadian

In this case the Supreme Court has looked at the role of the best interests of children in humanitarian and compassionate [H&C] decisions. The case is also helpful for its summary of factors that a court may consider when evaluating procedural fairness.


Marvis Baker is a Jamaican citizen, who entered Canada with a visitor’s visa in August of 1981.  She worked as a live-in caregiver for 11 years.  She had four children all of whom are Canadian citizens.  After the birth of her youngest child in 1992, she was diagnosed with paranoid schizophrenia.  Two of the children were taken by their father and two were taken to foster care and returned again to Ms. Baker when her condition improved.  Because she was due for removal, Ms. Baker applied for permanent residence on humanitarian and compassionate grounds under subsection 114(2) of the Immigration Act RSC 1985.

114 (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations

In her submissions, with help from expert witnesses, Ms. Baker indicated that she might become ill again if returned to Jamaica.  Her submissions also focused on the negative effects of the deportation on her children.  Her application was denied without reasons.  The letter rejecting her application was from Officer Caden, which was based on the notes by Officer Lorenz.   Officer Lorenz, drawing on her illness and the number of children, among other things, asserted that Ms. Baker would be a strain on the welfare system if she stays:

The PC is a paranoid schizophrenic and on welfare.  She has no qualifications other than as a domestic.  She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE.  She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life.  There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN.  Do we let her stay because of that?  I am of the opinion that Canada can no longer afford this type of generosity.

The Trial Court

The trial judge concluded that in the absence of the reasons for his decision, she would assume that Officer Caden acted in good faith.  To the argument that Officer Lorenz’s assertion that Baker would be a strain on the system is not supported by evidence, the trial judge said that the notes were reasonable, did not raise a reasonable apprehension of bias and Officer Lorenz’s views were unimportant anyway since they were not those of the decision maker.

The trial judge also rejected the argument that the Convention on the Rights of the Child [Convention] played a significant enough role in the domestic law to give rise to the doctrine of legitimate expectations.  The judge certified a question under subsection 83(1) of the Immigraiton Act questioning the role of international obligation in H&C considerations.  Subsection 83(1) read:

83. (1) A judgment of the Federal Court — Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.

Court of Appeal

The appellant challenged the constitutional validity of subsection 83(1).  The Court dismissed the challenge.   As to the Convention, the Court noted that international treaty cannot have a legal effect in Canada unless it is implemented in domestic law.   The argument was largely based on the separation of powers.  The Court also noted that deportation of a parent does not concern children.


The Court covered three issues: the legal effect of a certified question, procedural fairness and the review of the Minister’s discretion.  First the Court reiterated per Pushpanathanv Canada 198 CanLII 778 that appellate courts are not confined to exploring the issues surrounding a certified question.

Second, it addressed procedural fairness.  The appellant’s position was that as a parent of a Canadian child she has to be accorded an oral hearing, be provided with reasons and that Officer Lorenz’s notes gave rise to a reasonable apprehension of bias.  The Court noted that legitimate expectations may determine procedures in given circumstances.  The Convention was not found to have had the effect on the H&C statutes to trigger the legitimate expectations doctrine because the convention is not a government representation of how H&C applications are decided.

In order to determine the scope of procedural fairness the Court considered the following list of five factors:

  1. The nature of the decision being made and the process followed in making it: the closer the administrative process is to the judicial process, the closer the procedural protections should be to those of trial;
  2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates: greater procedural protection will be required when no appeal procedure is provided;
  3. The importance of the decision to the lives of those affected by it: the more important the decision, the more stringent is the procedural protection;
  4. The legitimate expectations;
  5. Expertise of the agency regarding the appropriate procedure should be given discretion.

The Court noted that since H&C process is different from a judicial process and it plays an exceptional role in the immigration scheme a more relaxed process is acceptable.  However, because the H&C decisions in certain circumstances as in the case at bar can have profound importance for those affected by them, reasons must be provided.  The Court found that in this case the notes of Officer Lorenz satisfy that requirement.

For the analysis of the reasonable apprehension of bias the Court cited the test from Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC):

What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?  Would he think it is more likely than not that [the decision-maker]…would not decide fairly?

The Court indicated that in the context of immigration, officers should be sensitive to diversity, have an understanding of others and openness to difference.  In the opinion of the Court, a well-informed member of the community would perceive bias in the notes of Officer Lorenz, especially the links made between the appellant’s mental illness, her training as a domestic worker, the fact that she has several children and that she would be a strain on the welfare system for the rest of her life.  In addition, the conclusions were not supported by the letter from the psychiatrist included in her H&C submissions, which stated that with treatment the appellant could remain well and return to being a productive member of society.  This finding was sufficient to dispose of the appeal.

Third, the Court addressed the exercise of the Minister’s discretion.  The appellant argued that the discretion should be exercised in accordance with the Convention and the best interests of a child should be the primary consideration.  The standard of review of the ministerial decision is a deferential reasonableness simpliciter.[1]  The Court then examined whether the Officers’ interpretation of the scope of the discretion was unreasonable.

The approach taken to the children’s interests was found to have been unreasonable in the notes of Officer Lorenz.  A reasonable exercise of the power conferred by H&C discretion requires close attention to the interests and needs of children.  Children’s rights and attention to their interests form a central part of humanitarian and compassionate values.

To make this conclusion the Court drew on several factors.  One is the objective 3(c) of the Immigration Act, which talked about family reunification:

(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad

Next, the Court drew on Canada’s ratification of the Convention on the Rights of the Child and the importance of the children’s rights in other international instruments ratified by Canada.  The values of international obligations inform the contextual approach to statutory interpretation and judicial review.  Finally, the Court referred to the guidelines issued by the Minister to officers.  According to these guidelines, the officers are expected to make decisions that reflect values of family unity and avoidance of hardship by sending people to places where they will have no family connections.  The Court noted that the guidelines are useful as an indicator of what constitutes a reasonable interpretation of the power conferred on the officers.

The Court concluded by saying that children’s best interests is an important factor for consideration in H&C decisions, but it does not to outweigh other considerations.  The matter was sent back for redetermination by a different officer.

Iacobucci J. – Concurring

The concurring judgement criticized the Majority for giving too much weight to the values of international law.  It was found to be inconsistent with the Court’s jurisprudence concerning the status of international law.   The primary concern was about the preservation of the division of powers, “lest [the courts] adversely affect the balance maintained by our Parliamentary tradition, or inadvertently grant the executive the power to bind citizens without the necessity of involving the legislative branch.”  The primacy accorded to the rights of children in the Convention is irrelevant unless it is adopted into the domestic law.

[1] Since the Supreme Court decision in Dunsmuir reasonableness simpliciter and the other reasonableness standard of patent unreasonableness have been converged into one standards of reasonableness.  More can be read on that in our entry on Dunsmuir.

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