Canadian Refugee Policy

• Author: Sasha Baglay/Martin Jones
• Pages: 1-40

1

CHA PTER 1

CANADIAN

REFUGEE POLICY

A. INTRODUC TION

This chapter provides a concise account of the development of Canada’s

migration policies since Confederation. Although Canada gave refuge

to dissidents and the persecuted since its early settlement, the hi story

of its formal refugee determin ation system is rather young. Before the

1970s, refugees were admitted on an ad hoc basis in response to ref ugee

crises and were often t reated similarly to other migrants.

This chapter is divided into time periods def‌ined in relation to the

main mileposts of immigration and refugee regulation: 1969, when Can-

ada became a part y to the Convention Relating to the Status of Refugees

(Refugee Convent ion); 1978, when the Immigration Act came into force;

1985, the year of the seminal Singh v Canada (Minister of Employment and

Immigration) decision, which established the right of refugee claimants

to an oral hearing and consequently led to an overhaul of the refugee

determination system; 1992, when further ch anges to inland refugee de-

termination were made; 2002, when the new Immigration and Refugee

Protection Act came into force; and 2012, when a series of changes to the

refugee system were implemented. In addition to describing t he evolu-

tion of the Canadian ref ugee protection regime, the chapter situates

Canada’s policies in a larger context of intern ational migration trends

and discourses on im migration and refugee law.

REFUGEE L AW2

B. HISTORICAL OVERVIEW

1) P r e-1969

a) Until 1945

Since its early settlement, Canada has served as a place of refuge for

various dissident and per secuted groups. Among the f‌irst political refu-

gees were British Loyali sts who moved to Canada between 1775 and

1784 in response to the American Revolution.1 In the centuries th at fol-

lowed, forced migrants included Mennonites f‌leeing the Rus sif‌ication

of Ukraine and universal military conscr iption;2 Jews escaping t he po-

groms in Ukraine;3 Doukhobors persecuted in Russia;4 and Hutterites

driven from the United States by xenophobic sentiments. However, in

contrast to present-day refugees, the se groups were, for the most part,

treated like other imm igrants, often having to s atisfy the same require-

ments and undergo the same procedures.

The pre-Confederation period was character ized by relatively un-

controlled im migration,5 although Nova Scotia, New Brunswick, and

Lower Canada (now Quebec) exercised limited forms of immigration

control such as collection of a head tax and health a nd quarantine

screening.6 At Confederation, the Constitution Act, 1867 created concur-

rent federal–provincial jur isdiction over immigration. The Act thereby

preserved the power of the provinces to regulate immigrat ion matters

within their territories, while also g iving the federal government a new

power to regulate immigr ation “into all or any of the Provinces.”7 The

latter created preconditions for a more centralized approach to im mi-

gration regulation in Can ada.

During the f‌irst decades after Confederation, immigration was

viewed as key to industrial growth and nation-buildi ng. Therefore, it

1 Valerie Knowles, Strangers at O ur Gates: Canadian Immigration and Immigrat ion

Policy, 154 0–1997 (Toronto: Dundurn Press, 1997) at 20.

2 Ibid at 53.

3 Ibid at 55.

4 Ibid at 70.

5 Norman Macdonald , Canada: Immigration and Colonization, 1841–1903 (Toronto:

MacMilla n, 1966) at 90.

6 RA Vineberg, “Fede ral–Provi ncial Relation s in Canadia n Immigration” (1987)

30:2 Ca nadian Public Admini stration 299 at 300; Ninette Kelley & M ichael Tre-

bilcock, The Making of the Mosaic (Toronto: University of Toronto Press, 1998)

at 40–50; Warren E K albach, The Impact of Immigration o n Canada’s Population

(Ottawa: Dominion Bure au of Statistics, 1970) at 11.

7 Constitution Ac t, 1867 (UK), 30 & 31 Vict, c 3, s 95, reprinted in RSC 1985, App

II, No 5.

Canadia n Refugee Policy 3

was actively promoted, and there were relatively few restrictions on

admission.8 The f‌irst Canadian Immigration Act, passed in 1869, pri-

marily focused on en suring the safety of pas sengers en route to and

upon arrival in Ca nada by prescribing quarantine check s, limits on the

number of passengers allowed aboard, and protection from extortion

or fraud by captains, mercha nts, and innkeepers.9 The few restrictions

in place were dictated by t he economic priorities of the time, namely,

agricultural development and the settlement of the Prairies. Viewed as

a means to land development, immigr ation was even included in the

same chapter of the Constitu tion Act as agriculture.10 Canada promoted

immigration of far mers and agricultural workers, art isans and trade s-

men, simultaneously discouragi ng the immigration of admin istrative

occupations such as clerks and house ser vants.11 Both federal and prov-

incial authorities were engaged in im migrant recruitment: they adver-

tised immigration opportunities in the sa me newspapers, canvassed

the same groups of prospective immigrants, and employed overseas

immigration agents, which led to waste of re sources and unnecessar y

competition.12 As a result, the 1874 federal–provincial immigration

conference concluded that independent action by provinces was ineff‌i-

cient and decided to vest the federal minister of agriculture with the

sole responsibility for immig rant recruitment overseas.13

By the early twentieth centur y, the arrival of a relatively high num-

ber of immigrant s with different cultures, t raditions, and religions

began to raise concern s about demographic composition of the country

and stimulated introduction of restr ictions aimed at preserv ing Canada

8 The notable exception from t his trend constituted t he treatment of Japanese and

Chinese who fac ed numerous restrictions of t heir rights, including e mploy-

ment and franch ise. Many of these rest rictions were introduced by prov inces,

particul arly British Columbia. Thi s provincial legislat ion produced a string

of litigation wit h respect to constitution al division of powers over imm igra-

tion, natura lization, and aliens. S ee, for example, Union Colliery Co of Brit-

ish Columbia v Bryden, [1899] AC 580 (JCPC); Reference re: Brit ish Columbia

Provincial Election s Act, 1897, [1903] AC 151 (JCPC); Reference re: Act to valid ate

and conf‌irm orders in cou ncil and provisions relating to the emplo yment of persons

on Crown property (British Colum bia) (1922), 63 SCR 293; Brooks-Bidlake and

Whittall v British Columbi a (Attorney General), [1923] AC 450 (JCPC); and R v

Quong-Wing (1914), 49 SCR 440.

9 Kelley & Trebilcock, ab ove note 6 at 84.

10 Jam ie Chai Yun Liew & Donald Galloway, Immigration Law, 2e (Toronto: Irwin

Law, 2015) at 13.

11 Know les, above note 1 at 45.

12 Macdonal d, above note 5 at 90; Kelley & Trebilcock, above note 6 at 77.

13 Valerie K nowles, Strangers at Our Gates: Can adian Immigration and Immigratio n

Policy, 1540–1990 (Toronto: Dundurn Pre ss, 1992) at 49.