The Evolution of Canadian Immigration Law

• Author: Donald Galloway
• Pages: 3-23

CHAPTER

1

IMMIGRATION

LAW

Canadian immigration

law in the

late twentieth century

has

been sub-

ject

to

constant

and

seemingly unsystematic revision

and

reformula-

tion

by the

governments

of the day as

they attempt

to

identify

the

country's social, economic,

and

demographic needs

or to

respond

to

ad

hoc

public demands. Nevertheless,

the

general shape

of the law and

of

the

mechanisms created

to

administer

it

have evolved gradually

and

incrementally

over

a

span

of

many years.

A

full

appreciation

of our

current

situation

can be

gained only through

an

understanding

of the

history

and

development

of the

political

and

legal traditions that con-

tinue

to

inform

and

influence legislative decision making.

This

chapter

aims

to

place current

law in a

historical context

— to

provide

a

gen-

eral overview

of the

path followed

by the law and to

identify

the

dom-

inant

factors

and the

resilient

beliefs

that have guided policy making

in the

past.

A.

ORIGINS

The

origins

of

Canadian immigration

law can be

traced

to

England

in

the

thirteenth

century.

The

Magna

Carta

of

1215

includes

clauses

that

regulate

the

comings

and

goings

of

both aliens

and the

king's subjects.

For

example, Article

41 of

that

document states: "All

merchants

shall

have

safe

conduct

to go and

come

out of and

into England,

and to

stay

in

and

travel through England

by

land

and

water

for

purposes

of

buying

THE

EVOLUTION

OF

CANADIAN

3

and

selling,

free

of

illegal

tolls,

in

accordance

with

ancient

and

just

customs, except,

in

time

of

war, such merchants

as are of a

country

at

war

with

Us."1

Writing

in the

eighteenth century,

Sir

William Blackstone noted

the

anomalous nature

of

this

clause,

which

aims

at

protecting

the

interests

of

foreigners.

He

remarks

in his

Commentaries

on the

Laws

of

England

that

"it is

somewhat extraordinary that

it

[Article

41]

should

have found

a

place

in

magna carta,

a

mere

interior

treaty between

the

king

and his

natural-born

subjects."2

Blackstone goes

on to

resolve

the

anomaly

by

suggesting that

the

clause

should

not be

understood

as an

altruistic

attempt

to

enhance

the

business

interests

of

aliens,

but

should

be

regarded,

instead,

as an

early indicator

of a

developing

and

self-interested

English preoccupation with domestic commercial growth

and

eco-

nomic

wealth.3

By

granting rights

of

entry

to

foreign merchants,

the

monarch would thereby promote

the

wealth

of the

nation.

The

per-

ceived

linkage between

unhindered

cross-border movement

and

domestic economic prosperity

has

been

a

constant aspect

of

immigra-

tion regulation which

has

continued through

the

centuries

to

this

day.

One can

find

evidence

of

this continuity

in

section

3(h)

of the

current

Canadian Immigration

Act,"'

which explicitly identifies economic devel-

opment

as a

central determinant

of

current immigration policy. Provi-

sions

facilitating

the

entry

of

business

persons

in the

North

American

Free

Trade

Agreement

(NAFTA)

provide another obvious example

of an

attempt

to

achieve

the

same goal.

Blackstone's

interpretation

of the

underlying rationale

of

Article

41 of

the

Magna

Carta

is

corroborated

by the

fact

that,

in

subsequent years,

English

law

began

to

develop

a

precise

set of

criteria

of

nationality

in

order

to

distinguish

English subjects

from

aliens.

At the

same time,

it

began

to

define

restrictively

the

rights

of the

latter. Those

who

were

not

English sub-

jects would

not

enjoy

the

same entitlements

and

privileges, such

as the

right

to own

property

or the

right

to

bring

an

action

in the

courts.5

The

fact

that numerous significant restrictions were imposed

on

aliens

from

a

very early time

has

sparked

a

recent debate about

the

existence

of a

1 See

A.E.D.

Howard,

Magna

Carta:

Text

and

Commentary

(Charlotteville:

University

Press

of

Virginia,

1964)

at 44.

2

Sir W.

Blackstone,

Commentaries

on the

Laws

of

England,

vol.

1,

17th

ed.

(London:

Thomas

Tegg,

1830)

at

260.

3

Ibid,

at

261.

4

R.S.C.

1985,

c. 1-2

[IA].

5 See Sir E

Pollock

& EW.

Maitland,

The

History

of

English

Law,

vol.

1,

2d ed.

(Cambridge:

Cambridge University Press, 1968)

at

458-67.

IMMIGRATION

LAW

4