Humber College

Bachelor of Paralegal Studies

Immigration and Refugee Law - PLBA - 3000 - OLB

Baker Case Summary

Arghawan Habibi N01397136

Professor Jennifer R. Ansell

Nov 10, 2023

 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817,
1999 CanLII 699 (SCC)

Malvis Baker (the appellant) V. Minister of Citizenship and Immigration (the respondent)

Facts:

Malvis Baker, the appellant, was a Jamaican woman who lived without any status in Canada for
eleven years. she was a single mother with several children and had been diagnosed with a
psychiatric illness. During this time, she gave birth to another four children. So, then a woman
with four Canadian-born dependent children, was ordered deported. She applied for an
exemption, based on humanitarian and compassionate considerations under s. 114(2) of the
Immigration Act, her application for permanent residence was supported by multiple letters
indicating concerns about the availability of medical treatment in her country of origin and the
impact of her departure on her family. Ms. Baker's submission clearly indicated that she was the
sole earner for her family here and back home. she would suffer emotional hardship if she were
separated from them. Unfortunately, the response to her request was contained in a letter signed
by Immigration officer M. Caden, on April 18, 1994.

The immigration officer rejected her application without providing convincing reasons. But upon
the request of the appellant’s counsel, she was provided with the notes made by Immigration
Officer G. Lorenz, who were used in making the decision. The written summary of her case that
“she is unemployed, with no assets, no qualification, surviving on welfare with a total number of
eight children, four here and four others are in Jamaica. She has been diagnosed as a Paranoid
Schizophrenic which is characterized by predominantly positive symptoms of schizophrenia,
including hallucinations. This debilitating system will blur the line between what is real and what
isn’t, which will have a severe impact on raising eight children”. and, based on this, Ms. Baker
applied for judicial review of the decision. Following the refusal of her application, Ms. Baker
was served, on May 27, 1994, with a direction to report to Pearson Airport for removal from
Canada. Her deportation has been stayed pending the result of this appeal.

Issues:
The issues raised can be resolved under the principles of administrative law and statutory
interpretation, I should mention that there are various charter issues and other rules raised by the
appellant.

1. What is the legal impact of a question raised under s. 83(1) of the immigration act on the
scope of appellate review?
2. Were the principles of procedural fairness violated in this case?
a. Were the participatory rights accorded consistent with the duty of procedural fairness?
b. Was there a reasonable apprehension of bias in the making of this decision?
c. Did the failure of immigration Officer Caden to provide his own reasons already violate
the principle of procedural fairness?
3. Was the discretion improperly exercised because of the approach taken to the interest of
Ms. Baker’s children?

Legal Reasonings:

1. Divisional Court:

The federal court trail division, Simpson J. delivered oral reasons dismissing the appellant’s
judicial review application. in the absence of evidence and affidavit from the appellant, held that
the immigration officer acted in good faith, and made a decision based on correct principles so it
is reasonable to conclude from the reports provided by the immigration officer that Ms. Baker
would not be able to return to work. the language of Officer Lorenz did not raise a reasonable
apprehension of bias. and the evaluation of the application didn’t need to be found in the best
interest of the child as per the Convention on the Rights of the Child mandated that the
appellant’s interests be given priority in s. 114(2) decisions, holding that the Convention did not
apply to this situation, and was not part of domestic law. Simpson J certified a question for
appeal regarding only the Convention.

2. Court of Appeal:

The reasons of the Court of Appeal were delivered by Strayer J.A. That the convention had not
been adopted in either federal or provincial legislation. But legislation should be interpreted to
avoid conflicts with Canada’s International obligations, interpreting s. 114(2) required that the
discretion it provides for must be exercised accordance with the convention would interfere with
the separation of powers between the executive and legislature. in addition, He refused to accept
the arguments that no article of the convention could impose an obligation upon the government
to give priority to the interests of the children in deportation process. Strayer J.A. considered the
appellant’s argument based on the doctrine of legitimate expectations. The doctrine of
Legitimate Expectations does not create substantive rights, and so it did not apply here. On
appeal, The Supreme Court of Canada reversed the decision based on immigration, separation
from parents, and best interest of the child. It also held that Procedural fairness required the
decision maker to consider the human rights of Baker’s children which are outlined in the
international convention on the rights of the child. The Supreme Court said that decision makers
must be reasonable and allowed Ms. Baker’s appeal because there was a violation of the
principles of procedural fairness owing to a reasonable apprehension of bias.

Important factors of the Case:

1. Ms. Baker wanted review of the administrative decision rejecting her application on
humanitarian and compassionate grounds. Ms. Baker owned a duty of fairness by the
decision maker (Mr. Lorenz) including a right to an oral hearing. (This was rejected
because the decision in writing was enough to meet the duty of fairness required)
2. Ms. Baker was entitled to be provided with reasons for any decision that was made
regarding her being deported. (Court believed it was unfair she didn't receive any written
reasons for refusing the application where the decision was so incredibly significant. She
had a right to review the decision)
3. Ms. Baker believed that the Decision maker should be free from “any reasonable
apprehension of bias”

The court agreed, found that the immigration officer who wrote the notes listed above was
biased, and they were used by the court to reach the decision it previously did.

Justice L’Heureux-Dube, for the majority, allowed the appeal. On the issue of determining the
content of the duty of fairness, she outlined several factors that should be taken into
consideration:

1. The nature of the decision being made, and process followed in making it:
2. The nature of the statutory scheme and the terms of the statute pursuant to which the
body operates;
 3. The importance of the decision to the individual or individual effected;
4. The legitimate expectations of the person challenging the decision;
5. The choice of procedure was made by the agency itself.

Besides this is a leading administrative law case in Canada. It provides guidance on procedural
fairness and gives us five factors that are relevant to determining the duty of fairness. Justice
L’Heureux-Dube further added about the duty of procedural fairness, which is flexible, variable
and depends on an appreciation of the context of the statute and the right effected. The purpose

of the participatory rights is to ensure that the administrative decisions are made using a fair and
open procedure, appropriate to the decision being made and its statutory, institutional and social
context, with an opportunity for those affected to put forward their views and evidence fully and
have them considered by the decision-maker. several factors are related to determining the
content of the duty of fairness, which is already included in above (five factors). The list of
factors provided above is not exhaustive. They will help courts determine whether procedures
were followed in regard to a duty of fairness. Other factors may be considered important. A duty
of procedural fairness applies to humanitarian and compassionate decisions. There was no
legitimate expectation affecting the content of the duty of procedural fairness. Nevertheless,
taking all the factors into account, the lack of an oral hearing or notice of such a hearing did not
constitute a violation of the requirement of procedural fairness. The procedure to produce a
complete written documentation was sufficient. Procedural fairness requires that decisions be
made free from a reasonable apprehension of bias, by an impartial decision maker. This applies
to all immigration officers who play a role in the making of decisions. Because they necessarily
relate to people of diverse backgrounds, from different cultures, races, and continents, and
immigration decision demand sensitivity and understanding from those making them. The
concept of discretion refers to decisions where the law doesn’t dictate a specific outcome, it must
be exercised in accordance with the boundaries imposed in the statute, the principle of the rule of
law, the principle of administrative law, the fundamental value of Canadian society, and the
principle of the charter. Ms. Baker also reinforced the need for written reasons in certain specific
administrative decisions as they could have important consequences for the party involved.