Sources of Immigration Law

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 32-74

32

CHAPTER 2

SOURCES OF

IMMIGRATION LAW

This chapter identif‌ies the legal sources that circumscribe the bound-

aries of authority of off‌icials within the immigration system, empow-

ering them to act in particular ways while constraining them from

stepping in other directions.

A. THE

CONSTITUTION ACT, 1867

1

1) Section 95: Concurrent Powers over Immigration

As noted in Chapter 1, section 95 of the Constitution Act,1867, gives

concurrent powers over immigration to the Parliament of Canada and

to the provincial legislatures. The section also provides that “any Law

of the Legislature of a Province relative to . . . Immigration shall have

effect in and for the Province as long and as far only as it is not repug-

nant to any Act of the Parliament of Canada.” The task of determining

whether there is repugnancy has proven to be diff‌icult, and at different

periods, the courts have adopted different approaches.

In an early case, Re Nakane,2 Irving J of fered this analysis: “It is not

possible that there can be two legislative bodies having equal jurisdic-

tion in this matter, and where the Dominion Parliament has entered

1 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix I I, No 5.

2 (1908), 13 BCR 370 (CA).

Sources of Imm igration Law33

the f‌ield of legislation, they occupy it to the exclusion of Provincial

legislation.”3 This approach, commonly called the “covering the f‌ield”

test of repugnancy, was also developed in another British Columbia

case of the same year, Re Narain Singh,4 in which an attempt by the

provincial legislature to impose a literacy test on immigrants was held

to be of no effect, since Parliament had passed “a complete code as to

what class or classes of immigrants shall be admitted or excluded.”5

There is widespread agreement among authorities that this test is

obsolete. In its most recent analysis, the Supreme Court of Canada has

analyzed the idea of repugnancy in terms of “operational conf‌lict” and

“frustration of purpose.” It has articulated the doctrine of federal para-

mountcy in the following terms:

Paramountcy is engaged where t here is a conf‌lict between valid prov-

incial and federa l law. In such cases, the feder al law prevails, and the

provincial law is rendered inoperative to the extent of the conf‌lict.

Conf‌lict can be e stablished by impossibility of dua l compliance or by

frustrat ion of a federal purpose: Can adian Western Bank, at para. 73.

. . .

Even where it is possible to simultaneously comply with both

federal and provincial laws, situations will arise where requiring

compliance with a provincial law will frustrate the purpose of a fed-

er al l aw.6

Thus, a provincial immigration law enacted under section 95 would

be repugnant to a federal statute only where it is impossible to comply

with both or where the aims of the latter are frustrated by it. Given the

lengthy list of objectives found in the Immigration and Refugee Protec-

tion Act (theIRPA), many of which pull in different directions, it is dif-

f‌icult to frame a conception of what could count as frustration in this

context.

2) Section 91(25): Naturalization and Aliens

The doctrine of paramountcy has also been discussed in relation to

section 91(25) of the Constitution Act which vests jurisdiction over

naturalization and aliens in the federal Parliament. The limits of this

head of power are somewhat unclear, and caselaw has not provided

3 Ibid at 375.

4 (1908), 13 BCR 477 (CA).

5 Ibid at 480.

6 Bank of Montreal v Marcotte, 2014 SCC 55 at paras 70–71.

IMMIGRATION LAW34

lucid direction. Without doubt, this is the source of Parliament’s

power to make laws that specify the processes by which non-citizens

may become citizens; however, it is much less clear whether Parlia-

ment’s authority over citizenship in general can be traced to this sec-

tion.7

The most important cases that have analyzed this section have

focused on the question whether provincial acts that place differen-

tial burdens on aliens are constitutional.8 When determining whether

legislation f‌its under a specif‌ic heading, such as “Naturalization and

Aliens,” courts f‌irst attempt to identify the pith and substance of the

legislation.9 Only the federal legislature has the authority to enact a

statute that has, as its pith and substance, a subject matter identif‌ied

in section 91.10 Moreover, a provincial act which, in pith and substance,

relates to a subject matter that the Constitution has assigned to the

provincial legislatures may be valid, even if, as an incidental effect, it

touches on a federal subject matter.11

The determination whether an act relates in pith and substance

to naturalization and aliens has proven diff‌icult. In Cunningham v

Homma,12 provincial legislation that prohibited Japanese residents of

British Columbia from voting in provincial elections was held to be

intra vires, on the ground that it related to race rather than alienage. In

7 In MorganvPrince Edward Island (AG), [1976] 2 SCR 349 at 355–56 [Morgan],

Laskin CJ s uggested that authority over c itizenship may have it s source in

s 91(25) or in the Peace, Order, and Good G overnment clause in the Pr eamble

to s 91.

8 See Unio n Colliery Co of British Columbia LtdvBryden, [1899] AC 580 (PC);

CunninghamvHomma, [1903] AC 151 (PC) [Homma]; DickensonvLaw Society

(Alberta)(1978), 10 AR 120 (SCTD) [Dickenson]; RedlinvUniversity of Albert a

(1980), 23 AR 31 (CA) [Redlin].

9 See Peter Hogg, Constit utional Law of Canada, 5th e d(Toronto: Carswell, 1997)

(loose-leaf upd ated July 2014) at 15-7.

10However, under the “double asp ect” doctrine, a province ma y enact a statute

that relate s to these matters if it als o relates to another subject matte r within

provincial j urisdiction. See ibid at 15-12.

11 See ibid at 15 -9. The matter is somewh at more complex than this state ment

suggests si nce, in some cases, the court s will apply the doctri ne of interjuris-

dictional im munity to create a realm of exc lusive federal jurisdict ion into which

provincial le gislation cannot encroach . According to this doctr ine, a valid

provincial l aw will be held to have a lim ited applicability — with t hose matters

that fall w ithin the area of federal ju risdiction lying b eyond the limits. Thus,

this is a doct rine about the applicability of a law rather th an a doctrine about

the validity of a law. It has not been applied in c ases dealing wit h alienage or

naturali zation. See Hogg, ibid a t 15-28 .

12Homma,above note 8.