Sources of Immigration Law
| Author | Donald Galloway |
| Pages | 24-46 |
CHAPTER
2
IMMIGRATION
LAW
This chapter examines
the
sources
from
which decision makers
in the
immigration process gain their authority
to
act.
A. THE
CONSTITUTION
ACT,
18671
1)
Section
95:
Concurrent Powers over Immigration
As
mentioned
in
chapter
1,
section
95 of the
Constitution
Act,
1867,
gives concurrent
powers
over immigration
to the
Parliament
of
Can-
ada
and 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
repugnant
to any Act of the
Parliament
of
Canada."
The
task
of
determining whether there
is
"repugnancy"
has
proved
to be
dif-
ficult,
and,
at
different
periods,
the
courts have adopted
different
approaches.
In
Re
Nakane,2
Irving
J.
offered
this
analysis:
"It is not
possible
that
there
can be two
legislative bodies having equal jurisdiction
in
this
matter,
and
where
the
Dominion Parliament
has
entered
the
field
of
1
(U.K.),
30
&
31
Viet.,
c. 3.
2
(1908),
13B.C.R.
370
(C.A.).
SOURCES
OF
24
legislation, they occupy
it to the
exclusion
of
Provincial
legislation."3
This approach, commonly called
the
"covering
the
field"
test
of
repug-
nancy,
is
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."3
Peter Hogg
has
given
an
expansive analysis
of the
"covering
the
field"
test.
He
writes: "Under
this
test,
a
federal
law may be
interpreted
as
covering
the
field
and
pre-
cluding
any
provincial laws
in
that
field,
even
if
they
are not
contradic-
tory
of the
federal
law.
. . .
[T]he
question
is
whether
the
provincial
law
is in the
same
'field',
or is
upon
the
same subject,
as the
federal
law;
if
so, the
provincial
law is
deemed
to be
inconsistent."6
There
is
widespread agreement among authorities that this test
is
obsolete.7
Hogg asserts that
the
Canadian courts have rejected
a
"cover-
ing the
field"
test
of
repugnancy
and
states that
it has
been replaced
by
an
approach which requires "express contradiction"
before
the
provin-
cial
law
will
be
found
to be
repugnant.8
Similarly, Margaret Young
has
stated:
"It may be
predicted that
a
provincial
law
relating
to
immigration
that
is
otherwise constitutional (that
is,
that
did not
offend
the
Canadian
Charter
of
Rights
and
Freedoms}
would likely
be
found
'repugnant'
to the
federal
law
only
if it
were patently contradictory
to
it."9
Hogg
rightly notes that there
can
often
be
problems
in
determining
when there
is
express
or
patent contradiction.
He
provides
a
clear solution
to
the
problem:
"If two
rules would require inconsistent responses
by a
judge
to the
same
set of
facts,
then there
is an
impossibility
of
dual compliance
and
therefore
an
express
contradiction."10
While Hogg maintains that
the
current
test
of
repugnancy
is
that
of
express contradiction, there
are
some dicta
in the
Supreme Court
of
Canada decision
in
Bank
of
Montreal
v.
Hall11
which
suggest
that
another
test
is to be
employed,
a
test
that
would
have
the
effect
of
allocating more limited powers
to the
provincial legislatures.
3
Ibid,
at
375.
4
(1908),
13B.C.R477CC.A.).
5
Ibid,
at
480.
6 PW.
Hogg, Constitutional
Law
of
Canada,
vol.
1, 3d ed.
(Toronto: Carswell, 1992)
at
16-8.
7 See VM.
Lemieux, "Immigration:
A
Provincial Concern"
(1983)
13
Man.
LJ.
111.
8
Hogg, above note
6.
9
Library
of
Parliament, Immigration: Constitutional
Issues
(Background Paper)
by
M.
Young
(Ottawa: Supply
&
Services, 1992)
at 3.
10
Hogg, above note
6 at
16-5.
11
121.
Sources
of
Immigration
Law
25
To continue reading
Request your trial