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A-688-75
Manon Denis, by her next friend, Melinette Borange, next-of-kin (Appellant)
v.
The Queen (Respondent)
Court of Appeal, Thurlow, Ryan and Le Dain JJ.—Ottawa, December 5, 1975.
Citizenship and immigration—Appellant child Canadian citizen whose mother was ordered deported—Trial Division refusing to grant interlocutory injunction—Appellant alleging deportation of mother contrary to Canadian Bill of Rights— Canadian Bill of Rights, S.C. 1960, c. 44, s. 2.
Appellant child, a Canadian citizen, contends that to deport her mother would violate the Canadian Bill of Rights, since it would oblige her mother to take her with her, thus exiling appellant contrary to section 2. Appellant also contends that, if taken with her mother, she would be deprived of her liberty, contrary to the Canadian Bill of Rights. And, finally, appellant claims that if she were left in Canada she would be deprived of security of the person, and subjected to cruel and unusual treatment, contrary to the Canadian Bill of Rights.
Held, dismissing the appeal, appellant has failed to make out a sufficient prima facie case that she would be likely to succeed in her contentions. Should the complaints materialize, the result will not be the direct and unavoidable result of the application of a law of Canada, but simply of the mother's decision either to take the appellant, or leave her. Even if the result is seen as inevitable, it is doubtful whether it could be said to result in arbitrary exile, or cruel and unusual treatment. Proper relief lies in the discretion of the Immigration Appeal Board to grant compassionate or humanitarian relief; this Court has no such jurisdiction.
APPEAL. COUNSEL:
H. Mantha for appellant.
L. S. Holland for respondent.
SOLICITORS:
Questin, Mantha, Ottawa, for appellant. Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered orally in English by
THURLOW J.: I agree with the reasons and conclusion reached by Mr. Justice Le Dain.
The plaintiff is an infant some 2 1 / 2 years of age. Her statement of claim raises a novel cause of action. Her chances of success, if any, are mini mal. Her chances for relief by way of injunction are, if possible, even more tenuous. In such cir cumstances even assuming that the balance of convenience favours holding matters in statu quo pending the trial of her action and that an inter locutory injunction would be an appropriate device to achieve that result I do not think it can be said that the learned Trial Judge applied any wrong principle or otherwise erred in refusing an injunc tion to restrain the Crown or its minister from carrying out a statutory duty.
* * *
The following are the reasons for judgment delivered orally in English by
RYAN J.: I agree that the appeal should be dismissed and I am in accord with the reasons for dismissal given by Mr. Justice Thurlow and Mr. Justice Le Dain.
: • *
The following are the reasons for judgment delivered orally in English by
LE DAIN J.: This is an appeal from an order of Cattanach J. of the Trial Division rendered yester day, the 4th day of December, dismissing an application for an interlocutory injunction against the Minister of Manpower and Immigration to restrain the execution of a deportation order pend ing trial of the appellant's action for a permanent injunction and damages. The action is directed against Her Majesty the Queen in right of Canada, and although the application for an inter locutory injunction is directed against the Minis ter, he is not a party to the proceedings. The Minister was represented, however, on the hearing of this appeal.
The appellant is a child who is a citizen of Canada and whose natural mother has been ordered to be deported pursuant to the provisions of the Immigration Act. We are informed by counsel for the Crown that the deportation has been arranged for tomorrow, Saturday, the 6th day of December, in the early morning, and that the Crown is not disposed to defer execution of the deportation order any longer. The appellant con tends that it would be contrary to the Canadian Bill of Rights to deport her mother, since it would oblige the mother to take her with her, and would thus have the effect of exiling appellant contrary to section 2 of the Canadian Bill of Rights which provides that no law of Canada shall be construed or applied so as to authorize or effect the arbitrary exile of any person. The appellant also contends that she would be deprived of liberty contrary to the Canadian Bill of Rights if she were taken to Haiti by her mother as a result of the deportation. In the event that she were left in Canada by her mother, the appellant contends that she would be deprived of security of the person and subjected to cruel and unusual treatment contrary to the Canadian Bill of Rights. The statement of claim concludes for a permanent injunction and alterna tively for damages.
Cattanach J. dismissed the application for an interlocutory injunction without giving reasons. On this appeal we can only be concerned with wheth er, in all the circumstances, the discretion of the learned Judge of the Trial Division was properly exercised.
Without considering it necessary to express an opinion as to whether in a proper case an injunc tion could be granted against the Minister of Manpower and Immigration, assuming the neces sary steps were taken to make him a party to the proceedings, I am of the view that the appellant has not made out a sufficient prima facie case that she would be likely to succeed in her contentions based on the Canadian Bill of Rights.
What the appellant complains of, should it occur and however regrettable it might be, will not be the direct and unavoidable result of the application of a law of Canada but rather the result of her mother's decision as to whether to take her with
her or to leave her in Canada. Even if the result, in either case, be regarded as virtually an inevitable one because of the difficulty of the decision for the mother, I strongly doubt that it could be said to result in arbitrary exile or cruel and unusual treat ment within the meaning of section 2 of the Canadian Bill of Rights. Parliament has provided for circumstances of this kind in the discretionary power which it has conferred on the Immigration Appeal Board to grant relief from a deportation order on compassionate or humanitarian grounds, and we were told by counsel that such relief was applied for and refused to the mother in this case. This Court does not have jurisdiction to grant such relief to the appellant or to her mother. Since in my opinion, the appellant would be most unlikely to succeed with her contentions based on the Canadian Bill of Rights I see no reason to inter fere with the exercise of discretion by Cattanach J., and I would dismiss the appeal.
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