Is s.40(3) CLRA ultra vires the province? On the face of the section, the words direct that the court can order a party to return a child to such place as the court considers appropriate.
On the face of it, the court is ordering a party (namely a parent) to ‘return’ the child to a place. The words do not themselves say a place out of Canada but this is the admitted purpose of the section, the only reason the section has ever been used.
Is it not telling that the provincial drafters of this legislation omitted any explicit reference to the fact that the intent of the section was that the ‘return’ was to a ‘place’ out of Ontario? Does it not imply that the drafter knew perfectly well that this action was constitutionally suspect and so language of sufficient abstraction was chosen? Nothing particularly turns upon the fact that Ontario knew this to be constitutionally suspect at the beginning.
Is there anything to be said about the word ‘return’? The ironies in this provincial deportation story are endless. Is it serendipity that this was the word used in Canada’s first deportation statute? The word ‘return’ has been construed before, by the highest authority, and it is clearly not a province that has the power to do this.
In 1906 James Gilhula and Everett Cain came to Canada as aliens from Hong Kong to work. They were then confronted with the Dominion Alien Labour Act 1 Edw.Vii c.13 s.13 which read:
- (6.) The Attorney-General of Canada, in case he shall be satisfied that an immigrant has been allowed to land in Canada contrary to the prohibition of this Act, may cause such immigrant, within. the period of one year after landing or entry, to be taken into custody and returned to the country whence he came at the expense of the owner of the importing vessel of, if he entered from an adjoining country, at the expense of the person, partnership, company, or corporation violating Section l of this Act.
- (9.) This Act shall apply only to the importation or immigration such persons as reside in or are citizens of such foreign countries:; as have enacted and retained in force, or as have enacted and retained in force , or as enact and retain in force , laws or ordinances applying to Canada, of a character similar to this Act.
It was determined in Gilhula that the domestic act of coercing the individual to the Canadian border, for the purpose of depositing him out of Canada was described as follows:
- The enforcement of the provisions of this section no doubt would not involve extra-territorial constraint, but it would involve the exercise of sovereign powers closely allied to the power of expulsion and based on the same principles. The power of expulsion is in truth but the complement of the power of exclusion.
There are two things to be said here: (i) whether or not ordering ‘return’ is an assertion of ‘extraterritorial’ authority is not central to the ultra vires analysis. In other words, finding that this ‘return’ action is not an extraterritorial act is not conclusive of the constitutional question; (ii) rather conclusive is the fact that this ‘return’ action is an exclusively federal prerogative.
