Ratified treaty but not yet incorporated into domestic legislation;¹ Instruments not subject to ratification;² Foreign case law³

Action to expel a mother of four children from the territory/ Action before the Supreme Court to have the expulsion order declared illegal/ Use of international law as a guide for interpreting domestic law/ Dissenting opinion

An expulsion order had been issued against a Jamaican citizen who was suffering from serious mental disorders and was the mother of four Canadian children. The mother brought an action to have the order overruled. Since the Immigration Code provided that in the event of expulsion procedures the administration must take account of humanitarian reasons, Ms Baker affirmed that if she was expelled this would cause irreversible harm both to her children and to her own mental condition.

In a dissenting opinion,⁴ Judge L’heureux-Dubé found that the UN Convention on the Rights of the Child should be taken into account in determining the humanitarian reasons applicable to the case, even though that Convention, which had been ratified by Canada, had not yet been incorporated into domestic legislation:

“Another indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of the Child, and the recognition of the importance of children’s rights and the best interests of children in other international instruments ratified by Canada. International treaties and conventions are not part of Canadian law unless they have been implemented by statute (…). Its provisions therefore have no direct application within Canadian law.⁵

“The values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. (…)

The legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. (…)

The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries: see, for example, Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (C.A.), at p. 266; Vishaka v. Rajasthan, [1997] 3 L.R.C. 361 (S.C. India), at p. 367. It is also a critical influence on the interpretation of the scope of the rights included in the Charter: Slaight Communications, supra; R. v. Keegstra, [1990] 3 S.C.R. 697.

"The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognizes that “childhood is entitled to special care and assistance”. A similar emphasis on the importance of placing considerable value on the protection of children and their needs and interests is also contained in other international instruments. The United Nations Declaration of the Rights of the Child (1959), in its preamble, states that the child “needs special safeguards and care”. The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power.”⁶

Judge L’heureux-Dubé thus held that, although the Convention on the Rights of the Child had not yet been incorporated into domestic law, the administration should nevertheless take it into consideration in expulsion measures.In this instance the Supreme Court of Canada overruled the expulsion order.