Canadian Refugee Policy

AuthorSasha Baglay/Martin Jones
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-
(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.
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.

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