Sep 13, 2020

Hague Convention: latest ONSC case (what's interesting about it?)

Berendson v. Izquierdo, 2020 ONSC 4443 (CanLII)

Monica Izquierdo, a Peruvian mother brought her 7 year old Peruvian son to Canada on November 4 2019. She sought refugee status. The father had pre-existing Peru-court-ordered access rights.

Peru is a signatory to the Hague Convention on Civil Aspects of International Child Abduction Can T.S. 1983 No.35 (1)

Dad applies for interim access rights in Canada pending the determination of the proceedings.

So what’s important about this run-of-the-mill Hague return case?

Important point #1: the judge applies ‘best interests’ when apparently best interests are supposed to be avoided.

In determining a question of interim Ontario access for the Peruvian father, while the jurisdiction decision is being made, the court, applied the s.24 best interests test to the question of giving the father interim access. Tobin J. then stated:

[34] It is in the child’s best interests to re-establish and then maintain a positive relationship with the father. There is evidence that this was once the case. In-person access provides an opportunity for the father to demonstrate that he is a loving, caring and empathetic parent. (emphasis added)

The incoherence of Ontario judges applying a s.24 best interest analysis to the trivial ‘interim-access’ decision is to be contrasted with the fact that judges intentionally then avoid the same (required) best interests determination in the actual ‘return’ decision.

Important point #2: this is another case where the possibility exists that a federal refugee determination in favour of Canada will produce a contradiction with a provincial ‘return’ decision

Thus we have (again) the federal refugee regime in contest with the provincial ‘return’ regime. This should be no contest at all. A federal refugee finding should terminate a Hague proceeding. The arguments for federal paramountcy are overwhelming:

federal paramountcy #1

The very core of the federal refugee determination is that the individual cannot be ‘returned’ to their home country. That federal determination is final. In any normal legal discussion that federal determination would be final controlling and unassailable.

But of course the Frankenstein of Hague ‘return’ theory imposes itself into Canadian constitutional law, to reverse, as Lincoln said ‘all the laws but one. The Hague Convention, as inconsistent as it is with Canadian constitutional law, will, under the reconstruction effort of Cronk, MacFarland and Gillese, and later McLaughlin, situation itself above any constitutional questions.

Hague ‘return’ primacy has become, thanks to the Ontario Court of Appeal in AMRI v KER [2011] OJ NO. 2449, more important than any federal finding of refugee status. As a matter of constitutional orthodoxy a federal determination in a federal field is supposed to be paramount to any direct or indirect voiding by provincial legislation. AMRI holds the opposite.

What that means is that a federal court can determine that you are a refugee under the Immigration and Refugee Protection Act. But then a provincial judge, acting under provincial legislation, can in effect overrule the federal refugee determination and send the refugee back to the offending country.

The Hague Convention, whatever its supposed merits (and those are slim), has had the risible effect of the ONCA insisting that their provincial overruling of a federal refugee determination is not inconsistent with the fact that the federal court made precisely the opposite order.

In AMRI the federal court stated that the child is a refugee. The ONCA then stated that the child can still be returned pursuant to provincial legislation (Children’s Law Reform Act s.46). ‘Nothing inconsistent here’, says Cronk MacFarland and Gillese.

The ONCA in AMRI actually overturned the 1st instance judge who would have sent the refugee back to Mexico. Applause all around, until you realize that the ONCA overturned only upon procedural technicalities: (she didn’t get a fair hearing). But if she had gotten a fair provincial hearing the fact of federal refugee status would not have stopped the provincial return regime from sending her back. In other words the ONCA in AMRI is the author of the Hague paramountcy incoherence.

federal paramountcy #2

We all know that modern courts make every effort to downplay incompatibility between federal and provincial legislation. We know that courts find readings of provincial legislation which somehow save it from being struck down for inconsistency. (Re:Securities Act at 56) (see also: Lemieux). But a federal refugee finding allows for no provincial pretense that the person can still be expelled from Canada upon provincial grounds. No amount of constitutional prevarication can provincially expel a person back to the offending country while federally maintaining their 'refugee' protection.

We know that questions of expelling aliens from Canada is exclusively a matter of the prerogative:

  1. A.G.(Canada) v. Gilhula (Ontario) [1906] UKPC 55
  2. Canada v. Singh, [1914] B.C.J. No. 116
  3. Chan v. McFarlane, [1962] O.R. 247 (Canada, as a Sovereign power...)
  4. McKee v McKee [1950] SCR 700 p12/22 last paragraph (reversed on other grounds JCPC)
  5. Hogg, Peter, Constitutional Law of Canada (2d), Chapter 13, p.276;

We know that provincial jurisdiction (whatever the provincial language used to extend that jurisdiction) stops at the provincial boundary.

  1. Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572 para 21
  2. Nadeau Poultry Farm Ltd. v. New Brunswick Farm Products Commission, [2009] N.B.J. No. 277
  3. Prince Edward Island (Potato Marketing Board) v. H.B. Willis Inc., [1952] 2 S.C.R. 392
  4. Manitoba v. Interprovincial Co-Operatives Ltd., [1973] M.J. No. 11 para 332
  5. Moran v Pyle National (Canada) [1975] 1 SCR 393
  6. Coughlin v Ontario Highway Transport Board

We know that the mere signing of a treaty cannot expand provincial power into a federal field.

  • AG Canada v AG Ontario (Labour Conventions)[1937] AC 326

So how is it (assuming that the Izquierdo child becomes a refugee) that Hague forces this refugee out of Canada?