Judge slaps down immigration board’s claim that unborn children have no ‘best interests’
OTTAWA, April 28, 2016 (LifeSiteNews) — A Canadian federal judge has slapped down an immigration ruling claiming that under Canadian law, unborn children have no “best interests” to consider until they have undergone a live birth.
Rather, Federal Court Judge Michel Shore says an unborn child’s “best interests” must be considered equal to those of a child already born when assessing immigration claims.
In his ruling April 21, Shore quashed an Immigration Appeal Division’s decision that upheld the 2012 deportation order of a Chinese man whose Canadian wife was five months pregnant at the time of the IAD’s June 10, 2014 decision.
He ordered the IAD to revisit the matter according to the terms of his judgment.
Shore ruled that the IAD erred in concluding it had no “best interests” to consider for Fangyun Li’s unborn child “until there is a live birth” when it rejected his appeal to remain in Canada on humanitarian and compassionate grounds and in the “best interests” of his unborn child.
Rather, the “best interests of the child” test in immigration cases applies to unborn and born children without distinction, the judge found.
And while this decision is “for immigration purposes,” says Gwen Landolt, a former lawyer and vice president of REAL Women of Canada, “there’s no question that it’s going to be used in future to acknowledge the reality that the child is a child, whether born or unborn.”
Under current Canadian law, an unborn child is not legally recognized as a person until he or she emerges fully from his or her mother’s birth canal.
Shore’s ruling conforms to “the reality that the child before birth is, in fact, the child after birth,” Landolt told LifeSiteNews. “And that will be used, undoubtedly, to indicate that you can’t deal with the myth that there’s nobody there.”
Mississauga pro-life lawyer Geoff Cauchi says that any broader implications of Shore’s ruling are unclear at this point, and will require further analysis.
“I have little doubt that had the evidence been that Li’s wife was fully intending to abort their child, the IAD would have held, for different reasons, that there were no ‘best interests of the child’ to consider in ruling on Li’s application,” he told LifeSiteNews in an email.
And had that been the case, “the court, based on existing jurisprudence on the issue of abortion, would have likely upheld such a decision.”
At the same time, Cauchi lauded the ruling.
“Perhaps Justice Shore is a refreshing ‘throwback’ to a time when most of our judges had a Blackstonian outlook on the law — an understanding that all human law is subordinate to the natural law and the ‘way things actually are’.”
The story of Fangyun Li
Shore’s 20-page judgement relates that Li came to Canada in April of 2002, aged 18, on a valid student permit, and that some 19 months later, he “fraudulently” married a Canadian citizen to become a permanent resident.
Gaining that status on August 8, 2007, Li divorced his wife in 2008 after five years of marriage. In January 2012, he “entered into a genuine marriage” with his present wife, Ka Kei Tang, a Canadian citizen.
But his past caught up with him in June of the same year, when Canada’s Immigration Division ordered him deported because of his original misrepresentation.
Li did not contest the order, stated remorse for his actions, and appealed the deportation order. By time the IAD made its June 2014 decision, his wife was pregnant, and the baby due in October.
The IAD rejected Li’s appeal, ruling in part that as far as Li’s unborn child was concerned, “until there is a live birth there are per se no best interests to take into consideration” and “the fact of the pregnancy is just that and the panel cannot give it much weight.”
But Shore ruled that the IAD was wrong to conclude that “the best interests of the child analysis does not apply equally to an unborn child as it does to a born child.”
Shore cited his own 2006 Hamzai ruling, which found that “the clear and reasonable best interest of the child above apply equally to any unborn child,” and that “there are no distinguishing factors that would make the case of an unborn or newborn child any different.”
And to merely take note of the unborn child was “not sufficient” according to the Supreme Court’s December 2015 Kanthasamy decision, he wrote.
That decision expanded humanitarian and compassionate grounds to include detailed consideration of the “best interests” and rights of the child as articulated in the United Nations Convention on the Rights of the Child — rights that are “by extension those of an unborn child,” asserted Shore.
“Kanthasamy is a judicial time capsule decision, as it genuinely addresses all present and future decisions in respect of the best interests of a child,” the judge wrote.
So “the IAD had the obligation to identify, define and examine, ‘with a great deal of attention’, in light of the evidence, the unborn child’s interests,” he ruled.
Justice Shore’s language ‘refreshing’
It’s notable that Shore repeatedly used “unborn child” in his ruling, “instead of the ridiculous term ‘fetus’,” Cauchi told LifeSiteNews.
Pointing to the late Msgr. William B. Smith’s maxim that “All social engineering is preceded by verbal engineering,” Cauchi observed that “perhaps Justice Shore’s refreshing use of the term ‘unborn child’ can be seen as a hopeful sign of a counter-revolution in verbal engineering.”
Appointed to the Federal Court in 2003, the 68-year-old Paris-born Shore was one of six justices Conservative Prime Minister Stephen Harper shortlisted as possible Supreme Court appointees in May 2014 — a selection that led to a highly publicized dispute between Harper and Supreme Court Chief Justice Beverley McLachlin.
Shore had been in the limelight before: in the fall of 2009, he threw out a claim by Democracy Watch that Harper’s October 2008 election call was illegal under the fixed-elections law.
Shore’s federal court bio notes that at age 18, he was a summer student under Belgium’s Father Dominique Pire, who had received the 1958 Nobel Peace Prize for assisting post-Second World War refugees. Shore has also published poetry, short stories and essays.
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