The Evolution of Canadian Immigration Law

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

3

CHA PTER 1

THE E VOLUTION

OF CANADIAN

IM MIGR ATION L AW

A. INTRODUC TION

Canadian im migration law in the early t wenty-f‌irst century has been

subject to frequent and seemingly frenz ied revision and reformulation

by the government of the day as it attempts to identif y 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 witnes sed a series of substanti al changes

beginning in 2001 with the enactment of new legislation, the Im migra-

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

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

cantly from those of its predeces sors.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 51 at para 10 [Medo-

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

The objectives as ex pressed in the IR PA 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 . . . .

IMM IGRAT ION LAW4

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

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

the institutional framework established by the IRPA , facilitated the

removal of individuals deemed in admissible, and introduced severe

measures aimed at deterring individuals f rom seeking Canada’s protec-

tion. Numerous regulatory modif‌icat ions 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 im migrants 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 i n the

labour market; in seemingly endless tinkering with the rules governing

the entry of temporar y 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 b e sponsored as permanent residents and by

establishing more temporar y 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 t hat continue to inform and inf‌luence legisla-

tive and judicial decision mak ing. This chapter aims to place cur rent

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

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

resilient beliefs th at 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, c C-29.