This is an appeal of an Enforcement Officer’s decision to deport the Appellant, the father of an Aboriginal Canadian child. The Appellant argued that deporting him would violate his child’s rights under section 7 of the Charter and overlooked the Best Interests of his child. The child would accompany the father if he were to be deported.
JFCY’s intervention focused on the Best Interests of the Child principle as being central to the decision-making process; and argued that when the child has Aboriginal status, there must be due consideration to the government’s historical discrimination against Aboriginal people, the long-standing harm caused by the former residential school system, and the current government’s commitment to reconciliation.
The Court explained that under the existing case law, “enforcement officers may look at the short-term best interests of the children whose parent(s) are being removed from Canada, but cannot engage in a full-blown humanitarian & compassionate analysis of such children’s long-term best interests”(at para 24). The Court also disposed of the Charter argument, indicating that deporting the father posed no foreseeable risks to either his or his daughter’s rights to life, liberty and security.
The court concluded that the Enforcement Officer’s decision was ultimately unreasonable because the officer failed to consider the short-term impacts that the deportations would have on the child’s connection to her indigenous roots. In addition, the Enforcement Officer’s assumption that the child could return to Canada is completely based on pure speculation. The court allowed the appeal and set aside the decision of the Enforcement Officer until Mr. Lewis’ H&C application is complete.
Federal Court of Appeal decision, released on National Aboriginal Day, June 21, 2017.
