Law and Government Division
Revised October 1992
SCOPE OF CANADA'S CURRENT
A. The Administrative
B. The Legal Framework
1. The Constitution
2. The Immigration Act
3. The Regulations
The Immigration Manuals
JURISDICTION OVER IMMIGRATION: THE STATUS QUO
B. Advantages of the Status Quo
C. Disadvantages of the Status Quo
of Exclusive Federal Jurisdiction
of Exclusive Federal Jurisdiction
EXCLUSIVE PROVINCIAL JURISDICTION
of Exclusive Provincial Jurisdiction
Disadvantages of Exclusive Provincial Jurisdiction
of Constitutional Asymmetry
of Constitutional Asymmetry
ASYMMETRY WITH PROVINCIAL PARAMOUNTCY
of Asymmetry/Provincial Paramountcy
Disadvantages of Asymmetry/Provincial Paramountcy
purpose of this paper is to set out and analyze the various constitutional
options that are possible in the field of immigration. For each constitutional
configuration, benefits and drawbacks will be suggested that may make
it possible to draw conclusions about the suitability of the options.
The existence of administrative arrangements that may modify rigidities
under the various legislative options will also be noted. First, however,
the scope of Canada's current immigration program will be described in
order to make clear what is comprised under immigration jurisdiction.
SCOPE OF CANADA'S CURRENT IMMIGRATION PROGRAM
A. The Administrative
scope of the activities carried out as part of Canada's immigration program
is extremely wide. A network of Canada Immigration Centres exists in every
province in Canada, and there are over 60 full-service immigration facilities
in posts abroad. In addition, the Immigration and Refugee Board of Canada
(IRB), the largest administrative tribunal in the country, adjudicates
claims to refugee status and hears appeals relating to immigration matters.
the two departments and the IRB are the most visible, other federal departments
and agencies are involved as well. Canada Customs provides the primary
inspection on behalf of Immigration Canada for all people wishing to enter
the country. Health and Welfare Canada has certain domestic responsibilities
relating to the health of refugee claimants and others, and supervises
the system of medical checks that is mandatory for all immigrants to Canada
and for certain visitors. The Canadian Security and Intelligence Service
is responsible for security clearances of prospective immigrants. The
RCMP investigates possible violations of the immigration laws. The immigration
program also affects the court system. The Federal Court of Canada has
jurisdiction over most immigration matters, a very litigious field.
his Report for the fiscal year ended 31 March 1990, the Auditor General
devoted four chapters to virtually all aspects of the immigration program.
After outlining the scope of the program, he concluded that the information
provided to Parliament (and hence the public) was "incomplete and
fragmented." He noted that, collectively, the Estimates of the various
departments and agencies involved in the delivery of the immigration program
did not begin to disclose its full costs because the services provided
by Customs and the RCMP were not identified separately, and costs incurred
by External Affairs (at that time responsible for overseas posts) were
only partially disclosed. Nor were the various components cross-referenced
to each other in the Estimates.
Auditor General's conclusion that it is very difficult to obtain a complete
picture of Canada's immigration program should be borne in mind throughout
this paper. "Immigration" consists of more than brief questions
asked at the border of people desiring to enter the country. Of course,
the scope and complexity of Canada's current program is made necessary
in part by an active policy of reasonably high immigration; if that policy
were to change as a result of a decision by Canada, or by an individual
province, should it assume jurisdiction, the administrative structures
would no doubt change somewhat as well.
B. The Legal Framework
1. The Constitution
is one of the few areas of explicitly concurrent jurisdiction (along with
agriculture and old age pensions) in the Constitution Act, 1867.
Section 95 states that provincial legislatures may make laws in relation
to immigration into the province, and that the Parliament of Canada may
make laws in relation to immigration into all or any of the provinces
"and 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."
a provincial law was repugnant to a federal law would ultimately be up
to a court to decide, but the current judicial trend in cases where legislative
competencies overlap is to permit wide latitude to each jurisdiction.
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.
is the only province with current immigration legislation and with a provincial
immigration department. The scope of its statute will be described below.
most important federal legislation governing immigration is the Immigration
Act (R.S. 1985, c. I-2), which came into effect in 1978 and was amended
significantly in 1988, primarily with respect to refugee determination
matters.(1) Its current length - 122
pages - illustrates the complexity of modern immigration regulation.(2)
The following topics, all covered by the Act (in addition to many others),
illustrate its scope:
goals of the immigration program;
establishment of the general classes of immigrants;
governing the admission of immigrants and visitors;
and detention provisions;
criteria and procedures;
of the Immigration and Refugee Board of Canada;
for determining refugee status;
procedures for security risks;
procedures for sponsors and certain people ordered deported or refused
to the Federal Court of Canada;
regarding transportation companies bringing people to Canada, including
seizure of vehicles under certain circumstances; and
powers and other administrative procedures.
3. The Regulations
Immigration Act authorizes regulations to be made by the Governor
in Council. The main regulations made pursuant to section 114 of the Act
deal, among other matters, with the following:
points system for independent immigrants;
priority in which immigrants should be processed;
in the family class;
and employment authorizations;
and conditions regarding entry to Canada;
regarding the holding of inquiries and hearings; and
obligations of transportation companies.
regulations govern the system of cost recovery (whereby charges for specified
immigration processes are imposed) and the establishment of categories
of people who are worthy of admission on special humanitarian grounds
4. The Immigration
and Immigration Canada maintains a comprehensive set of immigration manuals
to guide domestic and overseas processing and enforcement. These are updated
regularly and serve to interpret the Act and Regulations, provide procedural
rules, and establish forms. Three of the four manuals are available to
Immigration Act also refers to the provinces in a number of respects;
these will be outlined below in the next section of the paper.
JURISDICTION OVER IMMIGRATION:
THE STATUS QUO
noted above, constitutionally, the provincial legislatures and Parliament
have concurrent jurisdiction over immigration, with Parliament being paramount
in case of conflict. In 1968, Quebec passed a statute, now known as An
Act respecting the Ministère des Communautés culturelles et de l'Immigration,
which established a ministry, set out the duties of the Minister in relation
to immigrants and visitors, established certain procedures for entry into
Quebec, and permitted the government to make regulations on a number of
matters, including selection criteria. Several provisions of the law stress
the goals of integration of immigrants into the francophone majority culture
and their acquisition of the French language.
Immigration Act refers to the provinces in several respects. Section
3 states that one of the objectives of Canadian immigration policy shall
be "to encourage and facilitate the adaptation of persons who have
been granted admission as permanent residents to Canadian society by promoting
cooperation between the Government of Canada and other levels of government
... with respect thereto."
7 grants the provinces a voice in setting levels of immigration each year:
Minister, after consultation with the provinces concerning regional
demographic needs and labour market considerations ... shall lay
before Parliament ... a report ...
108 also requires consultation on the adaptation of immigrants and the
patterns of settlement, and permits agreements with the provinces on policies
and Agreements with Provinces
(1) The Minister shall consult with the provinces respecting the
measures to be undertaken to facilitate the adaptation of permanent
residents to Canadian society and the pattern of immigrant settlement
in Canada in relation to regional demographic requirements.
The Minister, with the approval of the Governor in Council, may
enter into an agreement with any province or group of provinces
for the purpose of facilitating the formulation, coordination
and implementation of immigration policies and programs.
the present time, all provinces except British Columbia, Manitoba and
Ontario have immigration agreements with Canada. By far the most extensive
of the agreements is the Canada-Quebec Accord, under which, among other
things, Quebec selects independent immigrants pursuant to its own points
system (subject to the federal statutory criteria relating to medical,
criminal and security requirements). Quebec also selects refugees destined
to the province. Although members of the family class are not "selected"
in the same sense as independent and refugee applicants, Quebec nevertheless
plays a role in interviewing applicants abroad and providing counselling.
Quebec also sets the financial criteria that sponsors in Canada must meet.
order to fulfil its objectives relating to the selection of immigrants,
Quebec has established offices in nine countries.(3)
In three cases, the offices are located in the Canadian embassy; in the
other six, the offices are in separate buildings.
Canada-Quebec Accord came into force on 1 April 1991, replacing the former
Cullen-Couture Agreement. Much of the thrust of Cullen-Couture was maintained,
but, in addition, integration services were completely taken over by Quebec,
and a transfer of federal money was made to the province for this purpose.
B. Advantages of the
National View of Immigration -
The current arrangements, whereby the federal government is primarily
responsible for immigration to Canada, reflect an important fact: people
by and large immigrate to a country, not a province. Thus, it follows
that it should be the federal government that presents the face of Canada
to prospective immigrants and sets selection standards that apply to most
of the country.
fact that immigrants come to Canada, rather than to a specific province,
is, however, more than a mere statement of the intentions of most immigrants.
It reflects the legal status and rights of the immigrants once they arrive.
This is so by virtue of numerous statutes, including the Citizenship
Act and the Immigration Act, which do not allow any requirement
to be placed on the residence of an immigrant,(4)
and, most importantly, is reflected in the Canadian Charter of Rights
and Freedoms. Section 6(2) of the Charter states that every citizen
of Canada and every person who has the status of a permanent resident
of Canada has the right to move to and take up residence in any province.(5)
the Federal Government has the Resources
- From the preceding section of this paper describing the scope of Canada's
current immigration program, it is clear that only the federal government
has the resources to maintain such a system. The federal government has
the infrastructure in place to process immigrant and visitor applications
in over 60 posts abroad. Computer systems are in the process of being
installed in a number of those posts, and an extensive computer network
in Canada links immigration offices and border points across the country.
These systems are very costly, and need to be linked nationwide to be
it may be that the federal government is best placed to carry on the wide
consultations with every region of the country and many interest groups
that precede the setting of immigration levels and other aspects of immigration
- The present system offers enormous flexibility to both levels of government.
At the one end of the spectrum, Quebec, the province that has wished to
take a very active role in immigration, has been able to do so to the
extent of selecting a large number of immigrants directly and maintaining
an immigration presence abroad. At the other extreme, Ontario, the province
of destination of approximately 50% of all immigrants to Canada, has not
(to date at least) even felt the need of an immigration agreement with
the federal government. Ontario has no separate immigration criteria and
does not participate in immigrant selection abroad. The same is true of
the other provinces, even those with immigration agreements, with the
exception of Quebec.
present system offers scope for such activities if the thinking of the
provinces were to change. Ontario, British Columbia and Alberta might
ultimately wish to move in the direction of Quebec, and the present constitutional
configuration would permit that. On the other hand, the smaller provinces,
for which an immigration presence abroad would probably be impossible,
are under no pressure to establish one; yet these provinces still participate
in the benefits of immigration by receiving the immigrants who choose
to reside in them.
Benefits - Quebec benefits in
two major ways from the present arrangements. As noted, the province has
been able to establish its own points system for independent immigrants.
Thus, it is able to emphasize certain selection factors that are not as
important in the federal scheme or that do not form part of it. Knowledge
of the French language, employment prospects of a spouse, the existence
of friends or relatives who reside in Quebec and the presence of young
children in a family are all examples of such factors. Quebec also chooses
refugees and sets its own financial criteria for sponsors.
controlling a number of selection factors, Quebec benefits from Canada's
extensive infrastructure, both internationally and domestically. At home,
investigation and enforcement activities, including examinations at ports
of entry, are carried out by federal employees. Abroad, Canadian posts
cooperate with Quebec regarding immigrants destined to that province.
Files are forwarded to the Quebec offices from Canadian posts where the
applications may have originated. Each jurisdiction screens on the other's
behalf, and prospective immigrants are referred between offices. Medical
screening is performed under federal supervision, as are criminal and
security checks. If Quebec, or any other individual province, had to handle
all aspects of immigration on its own, the financial implications would
clearly be enormous.
of the Status Quo
Cumbersome - There is no doubt
that the existing arrangements for sharing immigration jurisdiction can
be cumbersome and can lead to delays. For example, a sponsor in Quebec
must deal with two authorities rather than just one, as would be the case
in the rest of Canada. Abroad, delays can occur at posts where no Quebec
officer is stationed permanently while files travel between posts. Sometimes
candidates for interviews must await the arrival of a Quebec officer on
a periodic trip to the region. Alternatively, candidates might have to
travel long distances to meet an officer. The involvement of two jurisdictions
can lead to overlap and duplication, particularly when, for example in
the case of the family class, both jurisdictions wish to interview the
Control - There is no doubt that
joint jurisdiction leads to some loss of federal control over the program
as a whole. For example, in January 1991 the federal government announced
that no new applications for independent immigrants would be accepted
because the 1991 quota could be filled by processing existing applications.
The mechanism for achieving this position was the points system. Quebec,
however, has its own points system for independents, so the federal government's
action could not affect immigrants processed by that province. At the
present time the degree of loss of federal control may be acceptable,
but that could change in the future (see below).
Control - From the point of view
of a province, the existing system might be, or become, constraining because
it is not subject to provincial control. For example, membership in the
family class is established federally, as are the criteria that govern
the admission of entrepreneurs and investors. A province that wished to
expand family immigration by broadening the qualifying relationships would
thus not have the tools to do so. Similarly, a province can take measures
now to attract economic immigrants to the province, but the ultimate criteria
and admission decisions remain federal. Finally, in general, immigration
levels are set by the federal government. Although consultation with the
provinces takes place, a province could find itself out of step with the
of Flexibility - One of the reasons
why the present system works reasonably well is that, to date, only Quebec
has fully utilized the flexibility it offers. Thus the main reason for
the success of the system could, ultimately, lead to significant problems,
depending on the actions of the other provinces. In large part, Canada
currently has two immigration systems - that governing immigration to
Quebec, and that governing immigration to the rest of Canada. What would
happen if British Columbia, Alberta and Ontario all wished to develop
their own points systems and establish processing offices abroad? The
resulting "checkerboard" of rules and administration might well
make national policies relating to immigration and control of immigration
levels impossible. Further, in view of the Charter mobility rights, the
actions of one province could have unforeseen effects on another, as immigrants
admitted under one system moved to a province whose different rules might
have excluded them in the first place.
EXCLUSIVE FEDERAL JURISDICTION
order to achieve exclusive jurisdiction for the federal government in
the area of immigration, section 95 of the Constitution Act, 1867
would have to be amended. Amendment of the Immigration Act, however,
would not appear to be necessary, since its provisions refer only to consultation
with the provinces. Immigration agreements such as those that exist at
present between Canada and the provinces other than Quebec and that provide
for consultation and joint committees and so on would continue to be possible.
It would not appear possible, however, for a province to pass legislation
and regulations, establish a points system and regulate other aspects
of immigration in the same way as Quebec has done. Presumably, provinces
that wished to encourage immigration could establish foreign offices and
advertise for that purpose; they might even take applications for forwarding
to Canadian officials for processing.
of Exclusive Federal Jurisdiction
Reflection of Reality - Exclusive
federal jurisdiction over immigration, if combined with provincial consultation
regarding policies and levels,(6) would
mirror the reality as it exists in Canada today, whereby the federal government
makes and administers all laws relating to immigration for nine of the
ten provinces. It would also reflect the fact that people immigrate primarily
to a country, rather than a province, and would be consonant with the
mobility rights guaranteed to permanent residents by the Charter.
of National Standards - Exclusive
federal jurisdiction would prevent the possible situation described above,
whereby a number of provinces exercising their immigration jurisdiction
would make it very difficult, if not impossible, for the federal government
to manage a coherent national program, and, in particular, to set and
deliver target immigration levels. There would be one set of rules under
which people could enter Canada, regardless of their province of destination,
although the federal government could certainly take provincial requests
and needs into account.(7)
of Duplication - Exclusive federal
jurisdiction would ensure that all applicants abroad, and all sponsors
in Canada, would need to deal with only one level of government. It would
therefore eliminate the duplication of resources that results from the
stationing of provincial officials abroad and the extra staff at home.
Disadvantages of Exclusive Federal Jurisdiction
Poor Reflection of Quebec Reality
- Although a situation of exclusive federal jurisdiction would reflect
the current situation vis-à-vis nine of the ten provinces, for Quebec
the reality is entirely opposite. As discussed above, Quebec has been
able to achieve a significant degree of autonomy under the present system,
which it would be politically unthinkable for it to relinquish. The province
has been able to achieve this while benefiting from the delivery system
established and maintained by the federal government.
order to achieve exclusive jurisdiction for the provincial government
in the area of immigration, section 95 of the Constitution Act, 1867
would have to be amended and the subject matter of immigration conferred
solely on the provinces. The federal Immigration Act would require
replacement (or adoption) by each of the provinces. Domestic enforcement
systems would have to be instituted within the provinces, and facilities
established abroad by those provinces that wished to select immigrants.
Provincial measures for dealing with refugee claims in Canada would have
to be put in place.
Advantages of Exclusive Provincial Jurisdiction (8)
- Exclusive provincial jurisdiction would ensure that provinces could
directly control both the number of immigrants admitted to the province
and the composition of the immigrant flow. Provinces that wished to concentrate
on business immigrants or workers with particular skills could do so.
Provinces whose economies were expanding could choose to accept more immigrants,
and vice versa. New classes of immigrants could be created, or existing
classes expanded, according to the desire of the individual province.
Disadvantages of Exclusive Provincial Jurisdiction
of Laws and Policies - The "checkerboarding"
suggested as a possibility, if more provinces were to use the flexibility
available in the present system, would be almost inevitable under this
configuration, unless provinces agreed to pass uniform laws (in which
case, what would be gained?) Three, seven or even ten different immigration
laws would be likely to make control of immigration levels, policy, and
national enforcement impossible.
- Provinces administering an active immigration program would face both
domestic and foreign costs that are now incurred by the federal government.
Although the province of Quebec incurs some of these costs under its present
arrangements, there would be additional costs relating to medical, security
and criminality screening, functions now performed by the federal authorities.
Quebec might also find it necessary to open more offices abroad, because
the Canadian offices would no longer be available to forward files to
them. For the other provinces, all the domestic and foreign costs would
Scope of Program - No individual
province could begin to provide the overseas immigration delivery service
currently provided by the federal government. Provinces would therefore
have to choose overseas locations very carefully; inevitably, prospective
immigrants would face more difficulties (and their present difficulties
are numerous, even with over 60 posts). Pressure from Canadians wishing
to sponsor relatives might be predicted to increase, as would charges
of discrimination that would follow a reduction in the number of posts
- The potential for duplication seems great under such a system: Would
each large province wish to establish an immigration presence abroad?
Would the smaller provinces co-operate and establish a joint office? Would
each province, or group of provinces, establish separate medical, security
and criminality screening systems? Would a person from another country
wishing to travel across Canada be required to obtain 10 different visitor
visas? Would provincial offices compete among themselves to attract the
most desirable immigrants?
Problems - The current Immigration
Act contains numerous inadmissibility provisions whose purpose is
to exclude undesirable immigrants and visitors or to provide for their
removal from the country. The rules are enforced nationally. A situation
in which all (or a number) of the provinces had different inadmissibility
criteria would create confusion and significant loopholes as entrants
sought to be admitted to the most lenient jurisdiction and then moved
freely to the real province of destination.
of National Identity - It is possible
that too great a provincial role in immigration might encourage provincial
loyalties to the detriment of national patriotism.
in relation to federal/provincial jurisdiction might be defined as an
arrangement in which one province would enjoy powers that other provinces
would not. As will be clear from the preceding portions of this paper,
the current immigration jurisdiction is already exercised in a manner
that may be described as asymmetrical: Quebec has its own selection criteria
for independent immigrants, sets it own sponsorship financial criteria,
maintains its own offices abroad, and so on. The other provinces do none
of those things (although it has been noted that it would theoretically
be possible for some or all of them to initiate similar arrangements with
the federal government).
or should, the current de facto asymmetry become a de jure
one? Section 95 of the Constitution Act, 1867 could be amended
to provide for federal jurisdiction over immigration generally, with concurrent
jurisdiction reserved for Quebec alone. In this scenario, it will be assumed
that paramountcy is reserved to the federal government.
Advantages of Constitutional Asymmetry
Averted - This option would avert
negative consequences described above, if all, or a significant number,
of provinces exercised the same powers over immigration as Quebec now
does. Thus, there would continue to be national laws, policies and administration,
with the proviso that immigrants to Quebec would be handled differently.
In essence, this has been the case for over 20 years.
Disadvantages of Constitutional Asymmetry
Precluded - The other provinces
do not at present participate in overseas selection, but should participation
seem advantageous to some of them in the future, it would not be possible.
Unacceptable? - Although provinces
other than Quebec do not currently exercise significant powers in relation
to immigration, enshrining a de facto situation into the Constitution
might be politically impossible, on grounds of principle, for most of
the English-speaking provinces.
preceding section posited concurrent jurisdiction over immigration to
continue for Quebec alone, along with federal paramountcy. Provincial
paramountcy, on the other hand, would provide that if a federal and a
Quebec law conflicted, that of Quebec would take precedence with regard
to that province.
Advantages of Asymmetry/Provincial Paramountcy
Control - From its point of view,
Quebec would be able to introduce criteria relating to such matters as
admissibility, health or criminality that differed from those of the rest
of Canada. It might be able to block certain immigrants who would be otherwise
acceptable under Canadian law (e.g., if Quebec enacted a definition of
family class that was narrower than the federal one).
Disadvantages of Asymmetry/Provincial Paramountcy
of Control - To the extent that
Quebec enacted conflicting laws, federal control over immigration law
and policy would be diluted. If Quebec's admission laws were more lenient,
the tendency would be for immigrants to gain entry to Canada through that
province. If criteria relating to criminality, security, or health were
to differ, enforcement problems would arise.
Unacceptable? - The comments made
above in relation to asymmetry with federal paramountcy remain true -
and even more so - in relation to this configuration.
CURRENT CONSTITUTIONAL DEVELOPMENTS
Shaping Canada's Future Together, published in September 1991,
the federal government made two proposals regarding immigration. The first
was that the government was prepared to negotiate bilateral agreements
with all provinces, appropriate to the circumstances of each. The other
proposal was that the agreement with the Province of Quebec, the Canada-Quebec
Accord, would be constitutionalized, as would be any other agreements
that were negotiated.
Consensus Report on the Constitution, reached at Charlottetown
on 28 August 1992, reflected these proposals. As fleshed out in the
draft legal text of 9 October 1992, the immigration provisions closely
followed those that had been contained in the Meech Lake Accord of 1987,
with two additions and one change. The first addition specified that negotiations
for a federal-provincial immigration agreement requested by any province
should be concluded within a reasonable time; the other addition specified
that provinces would receive treatment equal to that of any other province
with an agreement, taking into account the needs and circumstances of
change in the 1992 wording would have allowed the immigration provisions
of the Constitution to be amended using the normal formula; the Meech
Lake Accord would have given a veto on such amendments to any province
with an immigration agreement that had been given the force of law pursuant
to its provisions.
failure of the Charlottetown Agreement on 26 October 1992 means,
of course, that existing and future immigration agreements cannot be "constitutionalized";
however, there is nothing to impede the signing of additional or expanded
agreements between Canada and the provinces. Indeed, Bill C-86 provides
an expanded framework for such agreements.
(1) Bill C-86, given
first reading in the House of Commons on 16 June 1992, would amend
virtually all aspects of the Act. The scope of the Act would, however,
(2) Canada's first immigration statute in 1869
had 14 pages; by 1952, it had reached 34 pages.
(3) These offices are in: Bangkok, Brussels,
Buenos Aires, Hong Kong, Lisbon, London, Mexico City, New York and Paris.
(4) Section 114(4) of the Immigration Act
states: "For the purpose of this Act and the regulations, whenever
a person is granted landing and terms and conditions are imposed, no such
term or condition may specify the area in which that person shall reside."
Bill C-86 contains a provision that would permit conditions relating to
occupation and place of residence to appear on an immigrant visa.
(5) This provision is subject to section 1 of
the Charter regarding reasonable limits, but cannot be overridden by Parliament
or a legislature because the notwithstanding clause (section 33) does
not apply to it.
(6) Not to consult the provinces would be to
ignore the fact that they are directly and substantially affected by immigration
by virtue of its impact on schools, social services, the demand for housing,
employment, and so on.
(7) For example, the present system allows for
the federal government to adjust admission criteria of independent workers
to target regional labour market needs.
(8) It is interesting to note that the Quebec
Liberal Party's Allaire Report, A Quebec Free to Choose, January
1991, does not list immigration on the list of powers that should belong
exclusively to the province. (It goes without saying, however, that complete
control over its borders would be an essential attribute of a modern independent
(9) Even with its many posts, the federal government
is regularly criticized for having a more limited presence in India and
Africa than in Europe and the United States.