A look at Li v. Canada (Minister of Citizenship and Immigration)

A Federal Court judge recently seized the opportunity to definitively state that the rights of unborn children should be considered as part of a “Best Interests of the Child” analysis. However, while Justice Shore’s reasons appear to read that there is no doubt as to whether fulfilling Canada’s mandate as a signatory to the United Nations’ Convention on the Rights of the Child (“CRC”) includes considering the best interests of the unborn child, upon closer examination, international law is not as clear as Justice Shore seems to convey.

In Li v Canada (Public Safety and Emergency Preparedness), 2016 FC 451 (“Li”), Justice Shore followed his own reasoning from two prior Federal Court decisions in holding that the Immigration Appeal Division (“IAD”) had not sufficiently considered the best interests of the Applicant’s unborn child. In this case, the Applicant conceded that he is inadmissible to Canada based on a prior finding of misrepresentation. However, in his application for judicial review, the Applicant sought relief based on humanitarian and compassionate grounds, in particular arguments related to his remorse for previously marrying a Canadian citizen solely to gain permanent resident status; his establishment in Canada through his current bona fide marriage; and the best interests of his unborn child.

In reaching his decision to readmit the file to the IAD, Justice Shore held that the IAD had neither adequately applied the best interests of the child nor had it sufficiently balanced the humanitarian and compassionate factors at play. Justice Shore further highlighted the importance of the Supreme Court of Canada’s reasoning in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 (“Kanthasamy”), in which the Court reviewed how to analyze the best interests of the child in light of Canada’s role as a signatory to the CRC. In Kanthasamy, the Supreme Court stated that “decision-makers must do more than simply state that the interests of a child have been taken into account.” Instead, “these interests must be ‘well identified and defined’ and examined ‘with a great deal of attention’ in light of all the evidence.”

Drawing on the importance that Kanthasamy gives to Canada’s role as a signatory to the CRC, Justice Shore, as he had previously done in Kim v Canada (Minister of Citizenship and Immigration), 2010 FC 149, highlighted the ninth paragraph of the Preamble to the CRC, which states that:

Bearing in mind that, as indicted in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before and as well as after birth.’ (emphasis added)

This statement is key to any analysis of the rights of unborn children, because, although Article 1 of the CRC defines a “child” as “every human being below the age of eighteen years,” aside from the above line in the Preamble, the remainder of the CRC is silent on whether the document extends rights to unborn children.

That said, in reviewing how international law has extended rights (if any) to unborn children, it is interesting to note that the confidence in which Justice Shore refers to this law does not play out in relevant international commentary. In fact, there remains significant discussion about to what extent unborn children benefit from human rights and how these rights should be balanced against the rights of their mothers, particularly when the mother herself is also a child. In this context it is also interesting to note that, besides Kanthasamy, the other two decisions that Justice Shore quotes in Li are his own.

Consequently, while Justice Shore’s decisions mean that Canadian immigration law now recognizes the best interests of unborn children, it remains to be seen how appellate courts will apply such law, given the vagueness of the CRC on this topic, to similar fact situations.