The Evolution of Canadian Immigration Law

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 3-31

3

CHAPTER 1

THE EVOLUTION

OF CANADIAN

IMMIGRATION LAW

A. INTRODUCTION

Canadian immigration law in the early twenty-f‌irst century has been

subject to frequent and seemingly frenzied revision and reformulation

by the government of the day as it attempts to identify the country’s

social, economic, and demographic needs and to respond to perceived

threats to its sovereign control over Canada’s borders. In a period of

about f‌ifteen years, we have witnessed a series of substantial changes

beginning in 2001 with the enactment of new legislation, the Immigra-

tion and Refugee Protection Act (IRPA),1 a statute which, according to the

Supreme Court of Canada, reveals a set of priorities that differ signif‌i-

cantly from those of its predecessors.2 This statute has been modif‌ied

extensively by a series of three other Acts: the Balanced Refugee Reform

1 SC 2001, c 27 [IRPA].

2 In Medovarski v Canada (Ministe r of Citizenship and Immigration); Esteban v

Canada (Minister of Citizen ship and Immigration), 2005 SCC 51at para 10 [Medo-

varski], the Chief Justice ma de the following point:

The objectives as ex pressed in the IRPA ind icate an intent to prioritize s ecu-

rity. This objective is g iven effect by preventing the ent ry of applicants with

crimin al records, by removing applic ants with such records from C anada,

and by emphasi zing the obligation of perm anent residents to behave law-

fully while i n Canada. This marks a c hange from the focus in the prede ces-

sor statute, which emph asized the successf ul integration of applicant s more

than secu rity . . . .

IMMIGRATION LAW4

Act,3the Faster Removal of Foreign Criminals Act,4and the Protecting

Canada’s Immigration System Act.5These Acts have radically reshaped

the institutional framework established by the IRPA, facilitated the

removal of individuals deemed inadmissible, and introduced severe

measures aimed at deterring individuals from seeking Canada’s protec-

tion. Numerous regulatory modif‌ications have also been made, many

of them seeking to shore up the system from the threat of possible

fraud and abuse.

In addition, the Citizenship Act6 has been modif‌ied in ways that

have redef‌ined the statu s and the processes of acquiring citize nship. We

have also witnessed an increased devolution of power to the provinces

and territories, most of which have developed their own programs to

attract needed workers and business immigrants to meet local needs.

We have seen an intensif‌ication of minister ial micromanagement, mani-

fested in the issuance of specif‌ic instructions on how to f‌ill gaps in the

labour market; in seemingly endless tinkering with the rules governing

the entry of temporary foreign workers, who are being admitted in un-

precedented numbers; and in the redef‌inition of the opportunities for

families to live together by setti ng quotas on the number of parents and

grandparents who can be sponsored as permanent residents and by

establishing more temporary possibilities for family cohabitation.

Both the scale and pace of this recent feverish hyperactivity are

somewhat overwhelming and tend to suggest t hat we have experienced

a revolutionary transformation. Nevertheless, they should not blind us

to the fact that the general shape of the law and of the mechanisms

created to administer it have evolved gradually and incrementally over

many years. One can identify recurring patterns in the development of

immigration law traceable to the ebb and f‌low of conf‌licting political

values. A full appreciation of our current situation can be gained only

through an understanding of the history and development of the polit-

ical and legal traditions that continue to inform and inf‌luence legisla-

tive and judicial decision making. This chapter aims to place current

law in a historical context — to provide a general overview of the path

followed by the law and to identify some of the dominant factors and

resilient beliefs that have guided policy making as it has evolved.

3 SC 2010, c 8.

4 SC 2013, c 16.

5 SC 2012, c 17.

6 RSC 1985, cC-29.