Canadian Refugee Policy

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

1

CHAPTER 1

CANADIAN

REFUGEE POLICY

A. INTRODUCTION

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 history

of its formal refugee determination system is rather young. Before the

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

crises and were often treated 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 party to the Convention Relating to the Status of Refugees

(Refugee Convention); 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 changes 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 the evolu-

tion of the Canadian refugee protection regime, the chapter situates

Canada’s policies in a larger context of international migration trends

and discourses on immigration and refugee law.

REFUGEE L AW2

B. HISTORICAL OVERVIEW

1) Pre-1969

a) Until 1945

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

various dissident and persecuted groups. Among the f‌irst political refu-

gees were British Loyalists who moved to Canada between 1775 and

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

lowed, forced migrants included Mennonites f‌leeing the Russif‌ication

of Ukraine and universal military conscription;2 Jews escaping the 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, these groups were, for the most part,

treated like other immigrants, often having to satisfy the same require-

ments and undergo the same procedures.

The pre-Confederation period was characterized by relatively un-

controlled immigration,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 and quarantine

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

rent federal–provincial jurisdiction over immigration. The Act thereby

preserved the power of the provinces to regulate immigration matters

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

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

latter created preconditions for a more centralized approach to immi-

gration regulation in Canada.

During the f‌irst decades after Confederation, immigration was

viewed as key to industrial growth and nation-building. 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, “Federal–Provincial Relations in Canadian Immigration” (1987)

30:2 Canadian Public Administration 299 at 300; Ninette Kelley & Michael Tre-

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

at 40–50; Warren E Kalbach, The Impact of Immigration on 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 ensuring the safety of passengers 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, merchants, and innkeepers.9 The few restrictions

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

agricultural development and the settlement of the Prairies. Viewed as

a means to land development, immigration was even included in the

same chapter of the Constitution Act as agriculture.10 Canada promoted

immigration of farmers and agricultural workers, artisans and trades-

men, simultaneously discouraging the immigration of administrative

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

incial authorities were engaged in immigrant recruitment: they adver-

tised immigration opportunities in the same newspapers, canvassed

the same groups of prospective immigrants, and employed overseas

immigration agents, which led to waste of resources and unnecessary

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 immigrant recruitment overseas.13

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

ber of immigrants with different cultures, traditions, and religions

began to raise concern s about demographic composition of the country

and stimulated introduction of restrictions aimed at preserving 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.

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

Law, 2015) at 13.

11Know les, above note 1 at 45.

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

13Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration

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