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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.