Date: 19980703
Docket:
OTTAWA, Ontario, the 3rd day of July 1998
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN:
ABDUL AWAL
MHD MARUF BIN AWAL
MUMTAZ BEGUM
Applicants
And:
THE MINISTER
Respondent
O R D E R
ROULEAU J.
[1] The application for a stay of the removal order is dismissed.
P. ROULEAU
JUDGE
Certified true translation
Bernard Olivier
Date: 19980703
Docket:
BETWEEN:
ABDUL AWAL
MHD MARUF BIN AWAL
MUMTAZ BEGUM
Applicants
And:
THE MINISTER
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] The applicants appeared before the Court at Montréal on Monday, June 29, 1998, having filed an application to stay their deportation which was to be carried out on July 7, 1998.
[2] The applicants, Mr. Awal and his wife and their child, arrived in Canada on October 19, 1994, and immediately claimed refugee status. It should be noted that they had first taken refuge in the United States, for a period of something more than six months. On the same day as the entered the country, a conditional departure order was made against them. Seven days later, on October 26, 1994, Ms. Begum gave birth to a daughter.
[3] On January 5, 1996, the Refugee Division made a negative decision regarding the Awal family and on April 26, 1994, the application for leave and judicial review was dismissed.
[4] On January 28, 1997, a review officer decided that there was no risk to the applicants if they were to return to Bangladesh.
[5] On October 18, 1997, the applicants were granted a stay of removal because of Ms. Begum's advanced pregnancy. On January 15, 1998, she gave birth to a second child in Canada.
[6] On March 12, 1998, the first application for an exemption under section 114(2) of the Immigration Act was rejected.
[7] On May 21, 1998, the applicants submitted a second application for an exemption under section 114(2) and on June 5, 1998, that application was rejected.
[8] In response to that decision, the applicants made an application for leave and judicial review.
[9] Counsel for the applicants submits that removal from Canada would have disastrous and irreparable consequences for the family unit. He contends that the harm suffered by this family is very serious in comparison to the harm suffered by the respondent, and that the balance of convenience favours the applicants.
[10] Counsel for the applicants therefore submits that the Court should stay the deportation of the family, now scheduled for July 7, 1998, until a final decision is made on their application for leave and judicial review.
[11] It should be noted that the applicants are not challenging the validity of the removal order.
[12] There have been numerous decisions of this Court and the Federal Court of Appeal holding that even if removal would cause serious inconvenience and serious emotional and financial harm, this does not in itself constitute exceptional circumstances such as would warrant the intervention of the Court.
[13] At the hearing, counsel for the applicants raised a new argument. I therefore allowed the Minister to file brief submissions on that subject. The arguments made by counsel for the applicants are succinctly stated in the submissions of the Minister, and may be summarized as follows:
| [translation] 1. It was submitted that in assessing an application for an exemption under subsection 114(2) of the Act, federal officials must not infringe on Quebec's jurisdiction under the Canada-Quebec Agreement (Couture-Cullen Agreement), since an application under 114(2) involves the selection of immigrants. ... |
| 2. Moreover, it was submitted that sections 39 and 47 of the Quebec Charter of Human Rights and Freedoms (hereinafter "the Charter") provide that children have rights in relation to their parents and parents have obligations in relation to their children, that the effect of the decision made under subsection 114(2) of the Act would be that the parents would be prevented from properly fulfilling those obligations, and accordingly the federal administrative officials would have infringed Quebec's jurisdiction, and that there is allegedly therefore a serious question because: ... |
[14] Counsel for the applicants argued that under the Canada-Quebec immigration agreement, the officer who rejected the application under section 114(2) of the Act did not dispose of a legal question that arose, that is, the obligations imposed by the Quebec Charter, and more specifically by sections 39 and 47 thereof, which, it is argued, constitute a barrier to the execution of the removal order. Those sections read as follows:
| 39. Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are capable of providing. |
| 47. Husband and wife have, in the marriage, the same rights, obligations and responsibilities. |
| Together they provide the moral guidance and material support of the family and the education of their common off-spring. |
[15] Counsel for the respondent submits that the Canada-Quebec agreement gives the province powers in respect of the selection of immigrants, but that only the federal government has the power to dispose of a question involving an application for permanent residence.
[16] Counsel for the Minister contends that the Quebec Charter does not apply to the federal Crown. He referred me to McAllister v. The Queen, T-428-85, August 14, 1985, in which Dubé J. of this Court held that the Supreme Court of Canada had already examined the problem, in Her Majesty the Queen v. Marie-Blanche Breton, [1967] S.C.R. 503:
| [translation] Of course, it is admitted that the provisions of s. 417 cannot, proprio vigore, affect the Crown in right of Canada. In truth, the contrary argument would conflict with the recognized principles, such as the principle, which is based on the federal nature of our system of government, that the Crown in right of Canada cannot be bound by a law emanating from a provincial legislature, and the principle of interpretation which governs in any legislative jurisdiction, and which holds that the rights or prerogatives of the Crown cannot be affected by any law, whether it be the Crown in right of Canada or the Crown in right of a province, unless it contains an express provision to that effect, which is not the case for s. 417 of the Charter of the City of Québec. |
[17] Counsel for the defendant went on to quote an article by professors Brun and Tremblay (Brun, H. and G. Tremblay, Droit Constitutionnel, 3rd edition, 1997, Cowansville, Éditions Yvon Blais) which seems to suggest that sections 1 to 38 of the Quebec Charter are civil and political rights, and not socio-economic rights to which constitutional legal status cannot be ascribed. That article states:
| [translation] ... The reality of rights to health or education depends on political will and financial possibilities, not judicial interpretation. Socio-economic rights are not parameters of the law, like civil and political rights; rather, they are the substance, which is to be determined by the governments of the day, speaking through ordinary legislation. It is for that reason that most of the rights set out in sections 39 to 48 are said to exist "to the extent provided for by law". |
[18] Counsel for the respondent also points out that although it is suggested that the Minister's delegate should have addressed the legal question of the impact of sections 39 and 47 of the Quebec Charter before making his decision, this was not put to him at the time the application was made.
[19] Counsel for the applicants submits that the decision made by the Minister's delegate concerning the humanitarian grounds should not have been limited to the parents, and that he should rather have been concerned about the separate rights of the children who are Canadian citizens. He submits that he did not consider their legal rights to remain in Canada.
[20] Plainly, the parents have a choice: they can decide whether to leave the children in Canada or take them back to Bangladesh with them. In my opinion, the argument relating to sections 39 and 47 of the Quebec Charter cannot stand. No evidence was submitted to me to show that the parents will not fulfil their obligations and responsibilities and that removing them would prevent them from providing the moral guidance and material support of the family.
[21] In addition, there is nothing to prevent the applicants from pursuing their application for leave and judicial review after they return to their country of origin.
[22] The application to stay the removal order is dismissed.
[23] I realize that my reasons are not exhaustive in terms of the argument presented. This is entirely due to the lack of time. It may be that at another time a thorough examination of the innovative argument submitted by counsel for the applicants will be needed.
P. ROULEAU
JUDGE
OTTAWA, Ontario
July 3, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-3094-98
STYLE OF CAUSE: Abdul Awal et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 29, 1998
REASONS FOR ORDER OF ROULEAU J.
DATED: July 3, 1998
APPEARANCES:
Jérôme Choquette FOR THE APPLICANTS
Annie Van Der Meerschen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Choquette, Beaupré, Rhéaume FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada