Legal Framework of Refugee Law in Canada

• Author: Martin Jones - Sasha Baglay
• Profession: Centre for Refugee Studies, York University - Centre for Refugee Studies, York University. Faculty of Criminology, Justice and Policy Studies, University of Ontario Institute of Technology
• Pages: 30-69

CHAP TER 2

LEGAL FR AMEWORK

OF REFUGEE LAW

IN CANADA

A. INT RODUCTION

This book largely treats ref ugee law as a discrete f‌ield of law. While, as

discussed in the previous chapter, this is increasingly true on a day-

to-day basis, refugee law, like any legal f‌ield, is limited and inf‌luenced

by other branches of law. Domestic, constitutiona l, and administ rative

law, as well as internat ional law, play a signif‌ic ant part in directing the

development of refugee law.

Constitutional law prov ides the framework in which i nstitutional

roles are determined and decision making occurs. At its most ba sic

level, the Constitution provides for the largely federal nature of im-

migration, and consequently ref ugee, decision making. It also al lows

for the establishment of administrative tribunals, including the largest

administ rative tribunal in Canad a: the Immigration and Refugee Board

of Canada. At a deeper level, constitutional law provides va rious pro-

cedural and substantive protect ions to the subjects of refugee-related

decisions. Of particul ar importance is the constitutional touchstone of

a fundamental right to li fe, liberty, security of person, and the r ight to

equality which is engaged in m any aspects of ref ugee law.

Administ rative law, itself not discrete from const itutional law, pro-

vides additional guidance on the manner in which dec ision makers

may arrive at decisions and how they must express t hose decisions to

parties af fected by the decision. In fact, some authors have conceived of

30

Legal Framework of R efugee Law in Canada 31

immigration law a s “an area of special ization that falls within t he more

general compass of administrative law.”1 This conception is accurate

insofar as most refugee-related deci sions are decisions of administra-

tive tribuna ls or judges sitting in judici al review— both core aspects of

administ rative law. However, this concept is avoided in the present text

as it obscures the inter national and transnational asp ects of refugee

law that have seen it develop into a relatively autonomous legal f‌ield

over the last decade.

Finally, Canadian refugee law does not operate in a vacuum nor

do Canadian determin ations of the rights of individuals seeking our

protection exist independently of developments at the intern ational

level and in foreign jurisd ictions. Refugee law in Canada is explicitly

described as t he product of our international commitment s, notably

obligations under the Ref ugee Conve ntion . Increasingly, Canadian dec i-

sion makers are seeking g uidance from the intern ational treaties a nd

jurisprudence that form the fount of Canadian refugee law. Equally,

Canadian decision makers turn their attention to guidelines issued by

international bodie s such as the UNHCR, and benef‌it from examin-

ing comparative refugee determinat ion practices and decisions i n other

jurisdict ions.

This chapter will review the core constitutiona l, statutory, and ad-

ministrative sources that provide t he framework for Canadian ref ugee

law. It will also provide an overview of the Refugee Convention and t he

international refugee protection regime as well as of two major human

rights treaties, the International Covenant on Civil and Political Rights

and the Convention Against Torture, that have proved to be of funda-

mental importance in t he area of refugee protection.

B. CONSTITUTIONAL PROVISIONS

The British North America Act, 1867 (th e BNA)2 and the Constitution Act,

19823 (th e Constitution) provide the basis for the federal /provincial d iv-

1 Donald Gallowa y, Immigration Law (Toronto: Irwin La w, 1997) at 79.

2The

British North Amer ica Act, 1867, 30 & 31 Victoria, c. 3 [BNA] subsequently

entitled the Constitution Act,1867 by Item 1 of the Schedu le to the Constitution

Act, 1982, (U.K.) 1982, c. 11 (which itself was par t of Schedule B to the Canada

Act, 1982, (U.K.) 1982 c. 11).

3Constitution Act, 1982, (U.K.) 1982 c. 11 (which was part of Schedu le B to the

Canada Act, 1982 (U.K.) 1982 c. 11).

REFUGEE LAW32

is ion o f po wer s ove r ma ny m att ers of go ver nme nt ad mi nis tr atio n, i nclu d-

ing refugee decision making and the establishment of judicial bodies.

1) Federal/Provincial Division of Powers

The division of powers between federal and provincial levels of govern-

ment is frequently taken for granted in ref ugee matters. Generally, in

recent years, most legislative and judicial action has t aken place in the

federal sphere. However, this has not always been t he case (especially,

more generally with immigration). Nor should provincial statutes and

courts be ignored as a source of law a nd relief for individuals seeking

refugee protection.

a) Division of Legislative Powers

The BNA delineates the powers of the federal and prov incial legisla-

tures: section 91 outlines the powers of the federal government, while

section 92 sets out the scope of provincial jurisdict ion. With respect to

migration, the BNA distinguishes t wo subject matters: “immigration”

and “naturalization and aliens.” The latter (“naturalization and aliens”)

falls within the federal jur isdiction under section 91.4 In contrast, the

former (“immigration”) occupies a special place under the BNA and

falls in concur rent federal/provincial jurisdiction.5 Under section 95

of the BNA, provincial legislature s may regulate “imm igration into the

province,” and the federal Parliament may en act legislation in relation

to immigration into “all or any of the provinces.” Conf‌licts between

federal and provincial laws are resolved by recourse to the doctrine

of paramountcy, which prescribes the precedence of federal laws over

provincial laws — or in the words of section 95, a provincia l law gov-

erning immigration into a province is valid only so “long and as far as

it is not repugnant to any Act of the Parliament of Canad a.”

As Hogg notes, the doctrine of paramountcy applies when both fed-

eral and provincia l law are valid and inconsi stent. The validity of each

law and their mutual incompatibil ity are conditions precedent to the

operation of the doctrine of paramountcy.6 In short, where there is a

conf‌lict between valid prov incial and federal l aws, the federal law w ill

prevail and the provi ncial law wil l be inoperative to the extent th at it

conf‌licts with (is “repugnant” to) the federal law.

4BNA, above note 2, s. 91(25).

5Ibid., s. 95.

6 Peter W. Hogg, Constitutional Law of Canada (Scarborough: Cars well, 2005) at

423.