Legal Framework of Refugee Law in Canada

AuthorSasha Baglay/Martin Jones
This book largely treats ref ugee law as a discrete f‌ield of law. While, as
discussed i n Chapter 1, this is increasi ngly true on a day-to-day basis,
refugee law, like any legal f‌ield, is inf‌luenced by other branches of law.
Domestic constitutional and adm inistrative law, as well as international
law, play a signif‌icant part in directing the development of refugee law.
Constitutional law provides the framework in which institutional roles
are determined and decision ma king occurs. Although under the Con-
stitution Act, 1867,1 immigration is an area of shared federal–provincial
jurisdiction, for most of the twentieth centur y, it has been de facto
exercised by the federal government. Wh ile the past twenty years h ave
seen an increased role for provinces and territories in selection of eco-
nomic immig rants th rough provincial/territorial nominee programs,
refugee processing and decision ma king remain strongly federal. At a
deeper level, constitutional law provides various procedural and sub-
stantive protections to the subjects of refugee-related decisions. Of par-
ticular importance are the rights to life, liberty, security of person, and
equality, as asserted in t he Canadian Charter of Rights and Freedoms:2
these are engaged in many a spects of refugee law. Administrative law
1 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App 11, No 5.
2 Part 1 of the Constitution Act, 1982, being Sche dule B to the Canada Act 1982
(UK), 1982, c 11 [Charter].
provides additional guidance on the procedure to be followed by deci-
sion makers and allows affected ind ividuals a range of means to ch al-
lenge those decisions. Finally, Canadian refugee law is informed by
developments at the international level and in foreign juri sdictions.
Refugee law in Canada i s the product of the country’s international
commitments, notably under the Convention Relating to the Status of
Refuge es, the International Covenant on Civil and Political Rights, and the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment. Increasingly, Canadian decision makers are seek-
ing guidance from intern ational treaties and jur isprudence, guidelines
issued by internat ional bodies such as the UN High Commissioner for
Refugees (UNHCR), and comparative refugee determination practices
and decisions in other juri sdictions.
This chapter will rev iew the core constitutional, statutory, and other
sources that provide the fra mework for Canadian refugee law. It will
also provide an overview of the Refugee Conventi on as well as of two
major human rights treaties — the International Covenant on Civil and
Political Rights and the Convention Against Torture — that have prove d
to be of fundamental importance in the area of refugee protection.
The Canadian Constitution contains three t ypes of provisions of key
relevance to immigration and refugee law:
1) federal–provincial d ivision of powers with respect to immigration,
aliens, and naturalization;
2) federal and provincial powers to e stablish judicial bodies (some-
thing that ha s implications for the system of judicial review of im-
migration and refugee decisions); and
3) individual right s and freedoms guaranteed i n the Charter.
1) Federal–Provincial Division of Powers
a) Division of Powers over Immigration, Aliens, and Naturalization
The Constitution Act, 1867 does not speak specif‌ically of refugee issues,
but does address two related subject matters: “immigration” and “natur-
alization and alien s.” The latter falls within exclusive federal jur isdiction
under section 91(25), while the former falls under section 95 concurrent
federal/provinci al jurisdiction. In addition, regulation of issues such a s
employment standards, education, soci al assistance, pension and other
Legal Framework of Re fugee Law in Canada 43
benef‌its, and legal aid have important implications for immigrants and
refugee claimants. Therefore, the allocation of legislative powers be-
tween the two levels of government in relation to the se subject matters
also plays a role in shaping the overall reg ime of treatment of non-
citizens in Ca nada and will be discussed where relevant in subsequent
chapters (par ticularly, Chapter 3).
As for regulation of “immigr ation” proper, section 95 provides that
provincial legislatures may regulate “imm igration into the province,”
and the federal Parliament may en act legislation in relation to im migra-
tion into “all or any of the provinces.” Where a federal and a provincial
law conf‌lict, the former prevails — or in t he words of section 95, a prov-
incial law governing immigration into a province is valid only so “long
and as far as it is not repugnant to any Act of the Parliament of Canada.”
Although conf‌licts between imm igration-related federal and prov-
incial legislation are not common now,3 it is important to specif y the
threshold required to establish that a provincial statute is invalid. A
high standard would allow both laws to coexist if their provisions can
be applied w ithout conf‌l ict.4 This may be the case, for example, when
provincial legislat ion contains more stringent immigr ation require-
ments than federal legi slation. Since the enforcement of more stringent
3 However, this has not alw ays been in case. For example, i n the late nineteenth
to early twent ieth century, some provinces (par ticularly British Columbi a) en-
acted various (mai nly racially based) re strictions on non-citi zens. Notable cases
included provinc ial legislation barr ing the employment of Japanese c itizens in
government works, t he employment of Chinese laboure rs in mines, the employ-
ment of Japanese and C hinese labourers in t he timber industry, the employ ment
of white women and girl s by Chinese men, and the bar ring of Asian natu ralized
British subject s from voting. Some of these act s were challenged, albeit often
unsuccess fully, on jurisdictional grou nds (plaintiffs arg ued that the subject
matter of legisl ation fell outside powers allocate d to provinces by the Constit u-
tion). For example, in R v Quo ng-Wing (1914), 49 SCR 440 [Quong-Wing], the
applicant made suc h an argument with respe ct to a Saskatchewan statute t hat
prohibited Chine se men from employing white women and gi rls (this proh ibi-
tion was said to prote ct the morals of white women and girl s). The central ques-
tion for the court was w hether the statute dealt wit h the issue related to “alien s
and natura lization” (federal jurisdict ion) or constituted an issue of “propert y
and civil r ights” (provincial juri sdiction). The Supreme Court upheld the leg-
islation. See a lso Union Colliery Co of British Columbia v Bryde n, [1899] AC 580
(JC PC); Reference re: British Columbia Pro vincial Elections Act, 1897, [1903] AC
151 (JCPC); Reference re: Act to validate an d conf‌irm orders in council and provi-
sions relating to the emp loyment of persons on Crown propert y (British Columbia)
(1922), 63 SCR 293; and Brooks-Bidlake and Whittall v Br itish Columbia (Attorney
Gene ral), [1923] AC 450 (JCPC).
4 Quong-Wing, above note 3. See a lso Donald Galloway, Immigration Law (Toronto:
Irwin L aw, 1997) at 26.

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