In the News June 28

Stop the Deportations! Status For All!

Canada’s Ongoing Violation of its Obligations Under UN Convention on Rights of the Child

The UN Convention on the Rights of the Child (CRC), to which Canada is a signatory, states at Article 3(1), “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

The Canadian Council for Refugees points out that Canada’s immigration law violates Canada’s obligations under the Convention. The Council’s Youth Network demands that Canada bring itself into compliance. This requires full consideration of the best interests of children affected in any immigration decision, including the decision to deport.

“Canada’s Immigration and Refugee Protection Act only requires consideration of children’s best interests in certain specific situations, in contrast to the Convention on the Rights of the Child which requires it ‘in all actions concerning children,’ the Canadian Council for Refugees notes. “Moreover, while the Convention says that children’s best interests must be a ‘primary consideration’, the Act only requires that they be ‘taken into account,'” the organization points out.[1]

People and families facing deportation can appeal to be granted permanent residence on Humanitarian and Compassionate grounds, on the basis that deportation would not be in the best interests of the child. However, applications can take months and even years to be reviewed, and deportation can take place before the appeal is heard. This is an egregious violation of international law, as the Canadian Border Services Agency (CBSA) can order deportation when there has been no consideration of the best interests of the child, let alone “primary consideration” as international law requires. Delays in processing of applications on Humanitarian and Compassionate grounds are leading to more and more people being deported from Canada before their application has been reviewed, the Council on Refugees states.

Six-year-old Canadian citizen McKenna Rose, and her mom Vangie (Evangeline) Cayanan have been ordered to leave Canada by July 11. Vangie, an active advocate for the rights of migrant workers, was told by the CBCA that while she was being deported, McKenna was not, and that she could “choose” to leave McKenna in Canada to be put into the foster care system. The CBSA speaks in the language of plantation slave-owners for whom tearing families apart was just a normal part of “doing business.”

The Department of Justice website contains a lead article by Jean-François Noël[2][3] which states,

“In principle, every State Party is responsible for acting on its international commitments, and may not rely on the provisions of its own domestic law to avoid the obligations it has assumed under the [UN Convention on the Rights of the Child (CRC)];[3] in practice, however, there are numerous obstacles to the application of the CRC.

“While the CRC has resulted in important legislative activities in over half of the States Parties since it came into force in September 1990, some States Parties are still lagging behind in their implementation of all or some parts of the CRC.”

Noël does not comment on whether Canada is one of the State Parties which are still “lagging behind.” However he proceeds to explain, “The CRC has not been explicitly incorporated into domestic law through a particular statute or statutes, and therefore cannot form the basis of a cause of action in Canadian courts. This is consistent with the usual Canadian approach to implementing international human rights treaties which it has ratified, which is to rely on a wide range of existing measures at the federal, provincial and territorial levels — including the Canadian Charter of Rights and Freedoms, legislation, policies and programs — to comply with its treaty obligations.”

Noël concludes that the UN Convention on the Rights of the Child can be cited “for interpretive purposes” in the Canadian Courts, but has no mandatory effect. In other words, the state can act with impunity in violating this and other international treaties it has signed.

The CBSA at this time has no oversight body. Public Safety Minister Marco Mendicino introduced legislation recently to give the RCMP watchdog authority to investigate public complaints about the CBSA. Similar bills have died on the order paper in the past. If passed, the new legislation would require both the RCMP and the CBSA to respond within six months, but it would not stop deportation before the response was provided.

None of this changes the fact that the CBSA can act with impunity in violating Canadian obligations concerning the rights of the child.

Notes

1. Canadian Council for Refugees.

2. See here.

3. Jean-François Noël is a member of the Barreau du Québec and the Director General of the International Bureau for Children’s Rights. He taught children’s law at the Law Faculty of the University of Montreal from 1999-2004. He has published many works and has presented on children and international law.

Workers’ Forum, posted June 28, 2022.