Canadian Refugee Procedure/History of refugee procedure in Canada

History of the concept of the refugeeEdit

The term 'refugee' was first used in the 1600s in France. The concept's genealogy is entwined with the emergence of the modern view of state sovereignty at that time in Europe. This section traces the history of these two concepts and how the refugees of the 17th century differed from earlier exiles and moving persons.

The world today is divided into sovereign states. All individuals are to be organized into populations and divided territorially amongst these states. In this way, the international state system is both a way of organizing political power, and also a means of organizing people.[1] It was with the Treaty of Westphalia of 1648 that the inter-state legal and political relationships which undergird this system were first established, and the feudal society of the medieval world was superseded by this modern society of sovereign territorial states.[2] Key concepts of modern international relations emerged at this point, including the inviolability and fixity of borders and non-interference in the domestic affairs of foreign sovereign states. In this way, the concept of state sovereignty that emerged with the Peace of Westphalia helped build the modern concept of the state which partitions the world into a vast juxtaposition of independent territorial units.[3] One of the facets of this system was that territory was consolidated, unified, and centralized under a sovereign government and the population of the territory now owed final allegiance to the sovereign. The sovereign state could demand religious and sometimes linguistic conformity to ensure such allegiance.[4]

Within a few decades of the Peace of Westphalia, the term 'refugee' was coined. The word ‘refugee’ can be traced to its origins in the French word réfugié that was used to identify the Huguenots, hundreds of thousands[5] of Reformed Protestant French migrants who escaped the French Catholic monarch to move to non-Catholic European countries[6] around the time of Louis XIV’s revocation of the Edict of Nantes in 1685.[7] This edict had previously allowed Protestant Huguenots to practice their religion openly.[8] With the revocation of the edict, the legal guarantees that had protected Protestant religious practice for a century ended. Calvinist churches were destroyed, Ministers were forcibly exiled, Protestants were forced to convert, and restrictions were put in place on their access to public office and the professions.[9] The term "refugee" was adopted into the English language as these Huguenots arrived in England.[10] Protestants in New France were similarly affected - forced to either abjure Protestantism, return to France, or leave for an English Protestant colony in the new world.[11]

While the term “refugee” was birthed at this point in the 17th century, related concepts, including those of refuge, migration, exodus, asylum, sanctuary, fugitives, exiles, and émigrés have long pre-dated the modern usage of the term. Eve Lester states that flight and requests for hospitality and asylum are concepts as old as life itself,[12] long predating the emergence of the nation-state as the dominant governing structure. Ancient Greece, for example, had a strictly governed system for offering sanctuary at dedicated shrines.[13] Indeed, the word "asylum" dates from this time and its Greek roots refer to the notion of someone who cannot or should not be seized.[14] Gil Loescher states that every major world religion contains teachings on the importance of providing protection to those in need.[15] Migration is a major theme of the Jewish Torah and rabbinical scholars have argued that the concept of non-refoulement has an analogue in ancient biblical Jewish legal principles of refugee protection.[16] The practice of extending benevolence and love to the vulnerable migrant fleeing harm can also be found in Koranic references.[17] For example, Prophet Muhammad and his followers took refuge at Medina after facing persecution from the rulers of Mecca.[18] Furthermore, there has been a long history of intra-European movement to flee persecution, war, religious intolerance, and governmental instability, as with the expulsion of Jews from Spain in 1492 or when many English persons escaped to France during the Interregnum of 1649-1660.[19]

What arguably distinguishes the phenomenon of the refugee from these earlier exiles and moving persons, was how the movements of refugees interacted with the newly emergent state system. In this way, it is no coincidence that the term "refugee" emerged at this time in the 17th century alongside the rise of the modern conception of the state. Indeed, Harsha Walia labels the very concept of an asylum seeker a "state-centric taxonomy only possible because of a prevailing assumption of the border as a legitimate institution of governance".[20] As Emma Haddad argues, the phenomenon of the refugee was marked by its new scale, bureaucratized processes, clear definitions of insiders and outsiders occasioned by newly locked borders and assumptions about the nation state being a proper home for individuals, and the lack of obvious receiving countries as national identities increasingly superseded religious ones.[21] Rebecca Hamlin contrasts the concept of the refugee, which entails crossing an international border and appealing to a state for protection, with practices from earlier in European history when appeals for protection could be made to families, individuals, or religious leaders, not (just) a state.[10] This change had consequences for the individuals themselves; in Arendt’s words, unlike their ‘happy predecessors in the religious wars’, the modern refugee was increasingly ‘welcomed nowhere and [could] be assimilated nowhere’.[22]

Refugee and population movements in pre-confederation CanadaEdit

Turning to Canada, (im)migration processes, of various sorts, including ones involving the search for refuge, have long been present in this territory. Asking about the history of refugee processes in Canadian history raises an ontological question about who should qualify as a refugee when one looks at population flows in centuries past. To the extent that refugees may be regarded as those with experiences marked by discrimination, displacement across borders, a severing of the bond between the individual and their government, and an overriding apprehension of persecution in their home community, persons meeting such criteria have a long history in this land. That said, the concept of the refugee is indeed a modern one, as described above, and applying it to population movements of pre-Confederation Canada is surely anachronistic. In Rebecca Hamlin's words, "to look back and place a refugee/migrant binary onto crossings of the past does not accurately reflect the realities of those events."[23] It is nonetheless appropriate to review (not erase) the history of population movements in the territory of Canada, both indigenous and colonial, and to chart how the contemporary concept of the refugee is deeply linked with the modern colonial state.

To start, movement and displacement of persons in the territory of Canada is not new. Some First Nations were highly itinerant, as with the Blackfoot who would follow bison across the prairies to hunting grounds where they would utilize bison jumps and runs.[24] Warfare between First Nations also led to aboriginal persons fleeing aggression and moving to new regions. For example, in the 16th century, the Haudenosaunee (Iroquois) embarked on campaigns to subjugate or disperse neighbouring groups while pursuing an ancient ideal that they “extend the rafters of the longhouse” by absorbing their neighbours into one nation and thereby produce a universal peace.[25] In 1649 the Haudenosaunee dispersed the French-allied Huron-Wendat from their homeland by destroying villages. Haudenosaunee dispersal campaigns then impacted the Petun, Neutral and Erie in the 1650s, with those nations dissolving and their members either joining together to form new communities or joining pre-existing Iroquoian nations.[26]

Forced displacement of Indigenous persons also resulted from the actions of the colonial regimes that took hold in Canada and the United States. European powers established their North American colonies on lands that they seized from the pre-existing Indigenous nations. These seizures involved the imposition of borders and attendant physical, social, and cultural displacement. As noted below, this had a number of consequences, including that many First Nations persons were killed by disease and warfare and had their mobility and ways of life disrupted by this new colonial order.

To begin, the colonial regimes in North America used force to establish themselves and to erect international boundaries. These borders have served to restrict First Nations' mobility - British North America and the United States of America required the First Nations to subject themselves to these emergent colonies, even where pre-existing living arrangements did not neatly fit on one side of the border or the other. For example, Crees and Chippewas from Canada became considered "foreign Indians" in the United States and deportable "illegal immigrants" despite ties to lands in the present-day United States that pre-date that country's founding.[27] The subversive chant "we didn't cross the border, the border crossed us" is, for this situation, entirely apt.[28]

Furthermore, even within national boundaries, the colonial regimes erected borders which limited mobility, including the borders involved in the reserve system, which abrogated many relationships with traditional territories, and involved related social, cultural, and political displacements.[29] Many Indigenous persons were compelled to reside on reserves, and, after the 1885 Northwest Rebellion, the federal government developed a pass system — a process by which Indigenous people had to present a travel document authorized by an Indian agent in order to leave and return to their reserves.[30] Even apart from the reserve system, the movements of many First Nations persons were controlled by settlers in Canada, as when a xenophobic hysteria overtook Victoria, BC upon the arrival of Smallpox in 1862, something which led to the police emptying nearby Indigenous encampments at gunpoint, burning them down, and towing canoes filled with smallpox-infected Indigenous people up the coast. Over the next year, as these Indigenous persons returned to their home communities, taking Smallpox with them, and at least 30,000 Indigenous people are reported to have died, representing about 60 per cent of the extant First Nations population.[31] Indeed, one of the most significant effects of colonialism was the large number of First Nations persons in Canada who died of diseases introduced by European colonists. One of the effects of these deaths was the emergence of post-contact communities such as the Abenaki, an aboriginal group in present-day New Brunswick and Quebec which emerged when numerous smaller bands and tribes who shared linguistic, geographical, and cultural traits joined together into a new political grouping after their original tribes were destroyed by disease and warfare.[32]

Apart from the effects of such epidemics and forced movements, the newly created nation of Canada also effected the social and cultural displacement of the pre-existing aboriginal peoples. In the words of the section of the final report of the Royal Commission on Aboriginal Peoples on displacement and assimilation:

[The impact of colonialism on indigenous populations was profound.] Perhaps the most appropriate term to describe that impact is 'displacement'. Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions.[33]

At times Indigenous communities relied upon the newly created international boundaries when seeking refuge from such displacement. For example, after American troops destroyed 40-50 Cayuga villages in the present-day US in 1779, many peoples of the Cayuga tribe fled the United States to seek refuge in British North America, and in so doing relied on these new borders for their associated guarantee of safety.[34] Indeed, in the 1700s and 1800s, the British instituted policies to encourage immigration to British North America. The people that the British encouraged to relocate included persons who would rightfully be termed refugees today. For example, 50,000 United Empire Loyalists, supporters of the British in the American revolution, migrated north in response to American republicanism.[35] Many of them migrated northward either because they did not wish to become citizens of the new American republic or because they feared retribution for their public support for the British during the War of Independence.[36] The retribution meted out to loyalists in the United States included beatings, imprisonment, and other forms of harassment.[37] Among these loyalists who migrated northward were an estimated 2000 members of the aboriginal peoples bordering the Thirteen Colonies who had supported the British cause, believing that an alliance with the British offered the best hope for preserving their independence and protecting their territories from land-hungry colonists.[38] The loyalists also included thousands of free black persons, some of whom had heeded a British proclamation issued early in the war offering freedom to any slave who deserted his (sic) American master during the Revolution and volunteered to serve with the King's forces. Most of the new black arrivals responded to an offer made late in the conflict that guaranteed that all slaves who made formal claim to protection behind British lines would receive their freedom.[39] Upon arrival, many of these black loyalists faced the scourge of racism and dismal agricultural prospects in Nova Scotia, where they primarily settled, and, bitterly disappointed, 1,200 sailed for Sierra Leone to start afresh on the west coast of Africa in 1792.[39] Nonetheless, over the next century an estimated 30,000 African Americans came to Canada as the final stop on the underground railroad, seeking protection from slavery in that country.[40]

While it is the case that black and aboriginal persons did flee the United States for Canada, the fact is that a racial logic was at work in the Canadian colonial project which shaped who the regime saw fit to welcome.[41] We can see this logic of colonialism in Canada's history, both in terms of how First Nations were treated, but also with how the state responded to ethnic and national outsiders. In the 1700s, the British enacted deliberate policies to reinforce the British character of their North American possessions. This included the forced deportation of Acadians from present-day Nova Scotia. In 1755, Lieutenant-Governor Lawrence and his council decided that the Acadians should be dispersed among the several colonies on the continent through forced transhipment. More than 3000 Acadians were transported to southern British colonies in the present-day United States that year. As many as a third of the passengers died on the ships. Many Acadians sought refuge on Prince Edward Island and in Cape Breton; they gained only temporary respite. In 1758, another British expedition against Louisbourg forced its surrender, and 6000 more Acadians were forcibly removed from their homes.[42]

Indeed, while the government in Canada made explicit efforts to entice persons who can aptly be titled refugees to choose to come to the country, they were generally individuals who hailed from the "right countries" and were of desired races, religions, and nationalities. For example, John Graves Simcoe, the first lieutenant-governor of Upper Canada, issued a proclamation in 1792 inviting Americans to emigrate to Upper Canada. This included a special appeal to the members of pacifist religious communities, including Quakers, Mennonites, and Dunkards, which promised them an exemption from military service.[43]

Finally, the concept of the refugee may also be thought of as a legal concept, and in this respect the First Nations in Canada have long faced questions about how to define and justify the conditions of community membership. Today such questions are primarily viewed through the lens of immigration and citizenship in the Canadian legal regime, but in aboriginal legal regimes they may equally be viewed through the concepts of family law, house group membership, and kinship rights, among others.[44] Indeed, a multitude of indigenous laws and legal traditions have persisted in the territories of Canada, both prior to, and then alongside, this country's colonial legal order. As John Borrows writes, the earliest practitioners of law in North America were its Indigenous inhabitants.[45] These indigenous laws and legal traditions have been defined by their diversity, continuity, repression, survival, and adaptability.[46] Bhatia writes, for example, about a number of First Nations' legal principles that relate to citizenship and welcoming the other,[46] such as the Dish With One Spoon wampum agreement, an Indigenous citizenship law made between Haudenosaunee and Anishinaabe nations in 1701.[47] Arima, for their part, writes about First Nations' legal principles related to family relations, such as the way that the Nootka on Vancouver Island would intermarry with persons from the Coast Salish groups on the mainland, despite otherwise less than amicable relations between the nations.[48]

The emergence of legal restrictions on immigrationEdit

During its earliest centuries, Canada and its forebears had neither an official immigration policy, nor the means to control the movement of individuals at the border.[49] This tracks the experience of other western states at the time. In Chetail's summary, the 17th century rise of the nation-state, and its implicit corollary—territorial sovereignty—did not generally coincide with the introduction of border controls.[50] Quite the contrary, the admission of (the right kinds of) foreigners was viewed as a means of strengthening the power of the host state, primarily for demographic and economic reasons. As a result, until the 19th and early 20th centuries, displaced, persecuted, and poor populations in Europe and North America were able to simply move to new jobs and opportunities in new regions.[51] While the federal Parliament had been given jurisdiction over "Naturalization and Aliens" pursuant to section 91(25) of the Constitution Act, 1867, Canada's first post-Confederation immigration law, the 1869 Act Respecting Immigration and Immigrants, reflected the laissez-faire zeitgeist by saying nothing about which classes of immigrants should be admitted and which categories should be proscribed.[52] Passports, for example, were not generally required for European and North American travel prior to the First World War.[53] Given all of this, defining a refugee was not a major concern for the reigning powers.[54]

While, from the point of view of western states people prior to World War I enjoyed a certain freedom of movement in the world, by no means did these comparatively open-door immigration practices result in a practical and non-discriminatory freedom of movement for all. Restrictions on freedom of movement took many forms. Some of the earliest restrictions on movement which were imposed by states were imposed on the internal movement of both nationals and non-nationals within each state's territory. In Europe such internal migration restrictions were mainly imposed for tax purposes,[50] and in British North America, as discussed above, one of the principal reasons for such restrictions was to control the aboriginal populations.

Furthermore, even at this time, not all migrants were welcomed by Canadian society. Even while all British subjects formally had the right to settle anywhere in the Empire, including the British Dominion of Canada,[55] as Jan Raska describes it, the Canadian government admitted migrants based on prevailing sociocultural, economic, and political views of the ‘desirable’ immigrant.[56] The seemingly laissez-faire immigration policies of early Canada existed, to an important extent, because of de facto travel restrictions which particularly limited travel to Canada for those of "undesirable races", not least of which were the lack of economical transportation modes to the new world from anywhere except western Europe for several centuries.[41] Even for those who were able to migrate to a new country at this time, the comparatively open-door immigration practices did not result in historical refugees enjoying the suite of rights set out in the modern Refugee Convention. For example, as Emma Borland writes, the French Huguenots of the 17th century did not receive an entirely welcoming reception in the United Kingdom and were not granted permanent residence.[57] Instead, the Huguenots kept the status of foreigner, rather than being considered ‘subjects’, and therefore had only limited rights in England at that time.[58]

In any event, the comparatively laissez-faire attitude towards immigration which had prevailed began to increasingly give way as the capacity of the state to monitor and govern the populace increased.[50] The concept of asylum took on a newfound importance in the 1800s in Europe as countries began to conclude bilateral treaties committing to extradite criminals, which limited individuals' hitherto freedom to abscond from one state to another. States did see fit to exclude from such extradition regimes those who had perpetrated political crimes, on the basis that they should properly be granted asylum from prosecution.[59] The concept of a political asylee in Latin America was similarly codified in a series of regional conventions dating from 1889.[60] Yet more restrictive immigration policies began to be imposed at the turn of the 20th century concomitant to the emergence of the modern welfare system. In Thériault's chronology, as states became more financially involved in the welfare of their population, they became increasingly concerned with the perceived additional burden of new immigrants and refugees.[61] Furthermore, increased global mobility at this time began to make racially-inflected concerns about immigration more acute.[62]

The barriers that states began to erect increasingly affected those who would today be termed refugees, as exceptions to the country’s growing immigration restrictions were generally not made based on the reason why an individual wished to depart their home state. As James Hathaway puts it, "what mattered was not the motive for immigration, but rather the immigrant's potential to contribute to the development of Canada".[63] That said, despite lacking a refugee policy as such, the government occasionally attempted to ease and facilitate the entry of victims of religious and political persecution.[64] A number of the people that the Canadian government specifically sought to entice to come to Canada during this period could, incidentailly, rightfully be thought of as refugees, including:

  • In the 1870s and 1880s the Canadian government sought to entice Mennonites to settle in western Canada. The Mennonite search for a new home was precipitated by the introduction of a policy of Russification in the schools of the Ukraine, where they lived, and by the implementation of universal conscription, which went against their pacifist beliefs.[65] The Canadian government not only offered them freedom from military service, but also freedom from swearing the oath of allegiance, a requirement which conflicted with their religious beliefs.[65]
  • Following the assassination of Tsar Alexander II in March 1881, violent pogroms took place throughout Russia, and hundreds of Jews were massacred, while others were systematically turned out of their homes and ordered from their villages. At this point, millions of Russians fled in search of refuge.[66] Hundreds of them availed themselves of group-settlement opportunities in western Canada. The first party of more than 200 Russian Jewish refugees to arrive in Canada in 1882 faced what Trebilcock and Kelley describe as "formidable obstacles" to their resettlement.[67] For example, when the federal government and the Jewish community settled on an appropriate piece of land for the new arrivals, the plan was abandoned after neighbouring Mennonites objected to living beside Jews. Eventually, a number of settlements succeeded and by the turn of the century, the Jewish population of Canada was approximately 17,000, almost ten times that of 1880.[67] Then, from 1900 to 1921, a further 138,000 Jews immigrated to Canada, many of them refugees fleeing yet further pogroms in Czarist Russia and Eastern Europe.[68]
  • Persecuted Doukhobors also began to arrive from Russia at this point, as well.[68]

Over time, amendments to Canada's immigration legislation began to explicitly enshrine the country’s discriminatory policies in statute. These amendments were in keeping with the rise of such restrictions in other western countries at this time; indeed, by 1930 every independent state in the Western Hemisphere had passed legislation limiting migration on racial grounds.[69] That said, as Somani puts it, racism at the Canadian border was masked by a performance of legality as Canada was reluctant to incorporate racial restrictions into its immigration laws too overtly, lest this undermine the notion of a cohesive British empire and undermine geopolitical relationships, say with the Japanese, or lend support to independence movements, for example that in India.[70] To this end, Canadian policies which de facto discriminated on the grounds of class, race, sex, and disability[71] were couched in neutral language, as with a power accorded to Cabinet to exclude any class of immigrant where it deemed that such exclusion was “in the best interests of the country”.[72]

The specific exclusionary measures employed in Canada included:

  • Documentation requirements: Canada, like many states at the beginning of the 20th century, implemented a requirement that travellers to Canada carry passports. As Kaprielian-Churchill writes, the passport requirement appears to have been implemented for the purposes of exclusion.[73] It was strictly applied to Asian immigrants, for example, while not being required for more favoured classes of immigrants.
  • Restrictions based on ethnicity, including racially selective taxation: the Chinese head tax was used to selectively exclude this groups of migrants.[40] It was first imposed by the Chinese Immigration Act of 1885, which is described as the first piece of Canadian legislation to exclude immigrants based on ethnic origin.[74] The head tax on Chinese immigrants was set at $50 in 1885, raised to $100 in 1900,[75] and then raised to $500 in 1903.[76] In contrast, the standard fare to enter the country for other immigrations was one dollar per passenger over one year of age.[77] Later, the 1923 Chinese Immigration Act eliminated the duties placed on earlier Chinese immigrants,[74] but instead outright prohibited the permanent settlement of almost all Chinese migrants. While exceptions were formally made for diplomats, merchants having invested at least $2,500 in an established business (and their wives),[78] people of Chinese origin born in Canada,[79] and students, only 15 Chinese immigrants were admitted to Canada in the 23 years following this Act.[74] It was repealed in 1947.[80]
  • Racial restrictions on immigration incentive and loan programs: Loan an incentive programs, such as the 1950s Assisted Passage Loan Scheme, provided loans to those who could not afford their own transportation to Canada. Loans were provided to those from Europe, but not to those from Africa or Asia.[81]
  • Racially-based internment: the internment of Ukrainians was directed at excluding and controlling these migrants.[82]
  • Refusal to process immigration paperwork for racial reasons: Of the more than 1 million American immigrants reported to have emigrated to Canada between 1896 and 1911, fewer than 1000 of them were African Americans. Trebilcock and Kelley report that there was relatively limited interest in settling in Canada shown by the African-American community and that the Canadian government did less than nothing to cultivate such interest. On those occasions when department officials or immigration agents were approached by African Americans wishing to emigrate to Canada, government policy was restrictive. At times, requests were simply ignored by Canadian immigration agents or put 'on file' indefinitely.[83] Otherwise, section 38(c) of the 1910 Immigration Act, allowed the Governor-in-Council to “prohibit ... the landing in Canada ... of immigrants belonging to any race deemed unsuited to the climate or requirements of Canada.” Black American immigrants were routinely excluded as being “unsuited to the climate” of Canada.[84]
  • Discriminatory use of health-based restrictions: Facially neutral legislative provisions were also employed in discriminatory ways; for example, while nothing in the Immigration Act specifically barred black Americans, any immigrant could effectively be denied access to Canada for health reasons under the Act's medical provisions. The government in 1911 instructed immigration inspectors along the American border to reject all black persons as unfit for admission on medical grounds. As Harold Troper notes, "there was no appeal."[36]
  • Class-based restrictions: In 1879, an order-in-council was passed to prohibit the landing in Canada of "indigents and paupers" unless the master of the ship carrying them deposited sufficient funds to provide temporary assistance and cover inland travel expenses.[85] The government amended the Immigration Act in 1910 to prohibit all "charity cases" who had not received written authority to immigrate to Canada from the superintendent of immigration at Ottawa or the assistant superintendent of emigration for Canada in London. As Valerie Knowles writes, this clause was inspired by the large number of impoverished British immigrants who had arrived in Canada with the assistance of charitable organizations eager to rid Britain of paupers and to provide them with a new start in Canada.[86]
  • Restrictions based on the manner of coming to Canada: Canada used facially neutral legislation regarding the manner in which individuals came to Canada to discriminate against racial minorities. The Chinese Immigration Act of 1885 limited the number of Chinese persons a ship could carry to one for every fifty tons of cargo, as compared to one European for every two tons of cargo.[87] Later, the 1906 “continuous journey regulation” authorized the Minister to prohibit entry of immigrants unless they came to Canada from the country of their birth or citizenship "by a continuous journey on through tickets purchased before leaving the country" (the wording was subsequently amended slightly).[88] This regulation famously prohibited the landing of all but 20 of the 376 passengers, most of whom were Sikhs, on the SS Komagata Maru in 1914.[89] The boat was not allowed to dock in Vancouver, and, after a two-month stalemate, the Komagata Maru was forced to turn around and sail back across the Pacific Ocean. While these would-be immigrants had not started out as refugees,[90] 26 of its passengers were killed by the British Indian police upon arrival in India,[74] who suspected that the passengers had become aligned with a group based in North America that was committed to the overthrow of the British Raj in India.[40] This continuous journey rule had particular implications for refugees, regardless of race, because its requirement that tickets be purchased in the country of birth or in Canada, an impossible requirement for most refugees who, by definition, would be loath to return to their country to embark on a voyage to Canada.[91] Furthermore, the restrictive intent behind the continuous journey rule was exemplified by actions that the Canadian government took to stop the only direct ship service between India and Canada, the Canadian Pacific shipping line's Calcutta-Vancouver service.[74] Later, the federal government would come to prohibit the landing of "skilled and unskilled workers" in Western seaports in 1913; that restriction had predictable racial effects considering who it was who was likely to arrive in Canada via the Pacific ocean.[92] Another Canadian interdiction effort from the early 1900s involved authorities responding to consternation among prairie residents about a possible influx of African-American settlers[93] by instructing railway staff not to sell train tickets to Black people coming from the US.[94]
  • Religious restrictions: For a three-year period starting in 1919, Doukhobors, Mennonites, and Hutterites were specifically prohibited entry into Canada because of, in the words of the relevant order-in-council, "their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry."[95] The Hutterites are said to have provoked particular resentment in Canada at this time on account of their pacifism and consequent refusal to bear arms in the World War.[96]
  • Sex-based policies: In 1938, male residents of Canada who were able to support their intended wives were able to sponsor a fiancée. Female residents of Canada were not extended the same ability to sponsor a spouse.[97]

Exceptions to these restrictive policies were made for those with temporary status in Canada, for example fifteen thousand Chinese men were brought to Canada to construct the country's first transcontinental railroad.[98] However, exceptions were generally not made based on the reason why an individual wished to depart their home state - indeed, until the 1970s, Canada made no formal distinction between refugees and other migrants.[72]

League of Nations eraEdit

It was in the wake of the First World War and the Russian Revolution that the term "refugee" came to be widely used. While the term "refugee" does date to the 17th century, it had not been widely used until this point. It was during the 1920s that the term "refugee" began to emerge with more frequency and long-standing "competitor terms", like asylum, protection, and hospitality, began to be "relegated to oblivion". As Hamlin describes it, the term refugee "was a product of this period."[99] Amidst rising public concern about this issue, and in response to an appeal from the International Committee of the Red Cross,[100] Member states of the League of Nations approved the creation of a refugee office in 1921 and appointed Fridtjof Nansen as the first High Commissioner for Refugees.[101] In 1922, Nansen created the so-called 'Nansen Passport' for Russian refugees.[102] This was an international identity certificate facilitating the movement and resettlement of refugees uprooted by the events of World War I, the Russian revolution, and the Armenian genocide in Turkey. This institutional innovation provided several million post-WWI European refugees with a way to seek protection and assistance.[101] It has also been pinpointed as the beginning of international refugee law.[103] In 1925, the Refugee Service of the International Labor Organization (ILO) took on responsibility for issuing these Nansen Passports. Five years later, the League of Nations entrusted this humanitarian aspect of refugee work to the Nansen International Office for Refugees, or International Refugee Office for short.[104][105]

Thériault states that at first it was generally assumed that the refugee problem was temporary and states voluntarily afforded refugees relatively generous benefits. However, by the late 1920s, European states began to recognize the enduring nature of the refugee problem and increasingly refused to integrate refugees. This led to a shift in international refugee law as efforts to have states adopt agreements that imposed substantial obligations, such as the 1922 and 1924 arrangements regarding the issuance of the Nansen Passport to Russian and Armenian refugees, began to meet with limited state interest.[106] Canada, for one, refused to sign onto any of these international initiatives.[107] The Canadian government steadfastly refused to recognize the Nansen Passport on the basis that Canada would only accept such passport bearers if they were returnable to another country in the event that they became criminals or insane, something that Kaprielian-Churchill describes as a smokescreen and means of rejecting refugees.[108] In fact, even once other countries strove to accommodate the Canadian demand for returnability, Canadian officials continued to refuse refugees, finding other grounds for rejection.[109] In 1931, Canadian officials spoke with pride that only "a dozen refugees" had been admitted to Canada on the League of Nations' Nansen Passport.[110]

In order to address the fact that the agreements underpinning the Nansen Passport lacked the status of treaty law,[111] the League of Nations convened an international conference in 1933 to negotiate a Convention Relating to the International Status of Refugees. Canada neither attended the conference nor subscribed to the ensuing agreement.[112] Nonetheless, this Convention is remembered as the first attempt to create a comprehensive legal framework for the protection of refugees.[113]

The stark limits on Canada's willingness to take in refugees can be illustrated by looking at the main refugee groups that sought sanctuary during this period. As Irving Abella and Petra Molnar write, xenophobia and anti-semitism permeated Canada and "there was little public support for, and much opposition to, the admission of refugees [to the end of the Second World War]".[40] For example, in the 1930s Canada restricted the admission of European Jews who sought safe haven from antisemitism and the emergence of fascism in Germany, but welcomed Sudeten Germans from Czechoslovakia in search of refuge given that they were considered to be more "desirable" immigrants.[56] Armenian refugees were also subject to Canada's exclusionary policies. The Ottoman Empire began the mass killing, relocation, and deportation of its Armenian population in 1915. This claimed more than 1 million lives and resulted in more than half a million displaced persons. While 80,000 Armenian refugees would receive sanctuary in France, and 23,000 in the United States, fewer than 1,300 were admitted to Canada.[114]

Canada justified its restrictive resettlement policies by employing a narrow definition of who qualified for refugee protection (to the extent that it discussed the categorization whatsoever). For example, when Jewish organizations in Canada asked the Canadian government for permission to resettle Jewish refugees displaced in Europe, the government demurred, claiming that, since many had left Russia with the consent of the authorities, they could not be considered refugees.[115] Canada also did not support efforts to expand the conception of who was entitled to refuge. In 1938, the US government brought together 30 countries for a conference on the subject of the worsening refugee situation in Europe. Canada was a reluctant participant, tarrying for months before accepting the US invitation to attend the Evian, France event. Valerie Knowles describes Canada's participation at the summer 1938 conference as having been "minimal" and states that it was to Canada's relief that the delegates at the conference accomplished little more than to produce a statement of lofty principles not actually necessitating more liberal immigration policies.[116] The Intergovernmental Committee on Refugees (ICR) that was established that year, mandated to assist Jews from Germany and Austria, operated without Canadian involvement.[117] Evian's legacy is that it is seen as a key moment in what Hathaway has caled "the individualization of refugee law", because when the ICR was founded, it set forth a definition of a refugee that focused for the frist time on why people were beign displaced, something that would come to influence the 1951 Refugee Convention.[118]

Canada also appears to have disregarded the notion of refoulement in its deportation decisions. For example, in its zeal to expel Communists, Canada removed persons who would be persecuted in their home countries. Hans Kist reportedly died of torture in a German concentration camp after being sent to that country from Canada.[119] Kelley and Trebilcock write that many activitists sent to fascist countries such as Italy, Germany, Finland, and Croatia were also in danger of losing their lives upon return.[119]

That said, some people appropriately regarded as refugees did move to Canada during this time through Canada's regular immigration streams. In fact, Prime Minister Mackenzie King asserted that between 1932 and 1943 most of the immigrants who entered Canada were refugees.[120] For example, between 1923 and 1930 close to 20,000 Mennonites from Russia were permitted to settle in Canada. As Kelley and Trebilcock set out the history, German-speaking Mennonite refugees from Russia came to Canada to escape hardship they were experiencing following the Russian revolution. Their refusal to take up arms during the revolution had alienated and angered both sides of the conflict, and Mennonites increasingly became the victims of brutal assaults and intimidation, which continued after the civil war ended. Throughout the 1920s, land expropriation, official intolerance of their religion, and threats of forcible relocation to Siberia prompted thousands to seek a safe haven elsewhere.[121]

WWII-era refugee policiesEdit

Canadian refugee policy continued to be marked by antisemitism and xenophobia throughout the Second World War. Sanctuary was provided to many persons of favoured ethnicities, principally the British, and was denied to others.

At the beginning of the war, Canada began to allow for the admission of British children in danger overseas. The government agreed to the admission of 5,000 British children and their mothers and more than 4,500 British children and 1,000 mothers came to Canada. The movement was abruptly terminated in 1940 when two ships carrying children to Canada were torpedoed.[122]

Entry for non-British persons was not facilitated in the same way. For example, a visible manifestation of the antisemitism which marked Canada's immigration and refugee policy at this time was the 1939 decision to deny admission to 930 Jewish refugees on the SS St. Louis seeking asylum from Nazi Germany. These refugees were instead sent back to what awaited them in Germany. When, later in the war, in 1943, Canada did announce that it intended to admit some Jewish refugees who had made their way to the Iberian peninsula, this is said to have "ignited a storm of protest from anti-refugee interests". Quebec opposition leader Maurice Duplessis held rallies in which he charged that that provincial and federal Liberals were set to allow the "International Zionist Brotherhood" to, in his words, settle 100,000 Jewish refugees in Quebec in return for election financing.[123] Ultimately, Canada admitted 5,000 Jewish refugees during the Second World War, something Trebilcock and Kelley call one of the worst records of any democracy in providing assistance to the persecuted Jews of Europe.[124] In contrast, the US allowed 240,000, Britain 85,000, China 25,000, Argentina and Brazil over 25,000 each, and Mexico and Colombia received some 40,000 between them.[40] When Canadian immigration officials were asked how many Jews the country would admit after the war, their famous response was, “None is too many.”[125]

Measures were also employed to exclude and restrict persons considered "enemy aliens" during the Second World War. Canada enacted mass internment policies that placed so-called German enemy aliens - Nazi sympathizers and Jewish refugees alike - into camps.[126] Regulations under the War Measures Act also restricted entry by Japanese immigrants, provided for the deportation of Canadian citizens of Japanese descent,[127] and effected the internment of Japanese persons.[40] In February 1942 the government ordered the expulsion of some 22,000 Japanese Canadians from a 100-mile swath of the Pacific Coast. The majority were relocated in the interior of British Columbia, often in detention camps in isolated ghost towns. Japanese Canadians were forced to remain in these detention camps until the end of the war. Then, after the conclusion of hostilities, about 4,000 would surrender to pressure and leave Canada for Japan under the federal government's "repatriation" scheme. Of these, more than half were Canadian-born and two-thirds were Canadian citizens.[116]

During the war, the British government also transported 2,500 "enemy aliens" to Canada. For the most part, these were German and Austrian nationals, many of them highly educated Jews, who had been living in Great Britain when the war erupted. Valerie Knowles describes their reception in Canada as follows:

The Canadian government agreed to receive these male civilian internees in the belief that it would be assisting hard-pressed Britain by accepting custody of a number of "potentially dangerous enemy aliens". Canadian authorities were therefore astonished to see a large assortment of teenage boys, university students, priests, and rabbis step ashore at Quebec. Despite their misgivings, however, the Canadians proceeded to place all in camps that resembled maximum security prisons. And it was here that scientists, theologians, musicians, teachers, artists, and writers, among others, would be forced to bide their time for months to come.[123]

Knowles notes that, fortunately for these prisoners, the British government soon realized that it had done a possibly grave injustice to many of the internees and initiated steps to have them released. In 1945, Canada reclassified these one-time prisoners as "Interned Refugees (Friendly Aliens) from the United Kingdom" and invited them to become Canadian citizens. 972 chose to do so.[128]

United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organization (IRO)Edit

In 1943, with the end of World War II in sight, the allied powers began to lay the foundations of a post-war refugee regime. In that year, they established the United Nations Relief and Rehabilitation Agency (UNRRA) in preparation for the liberation of Europe.[129] The War had created a refugee crisis of at least 10 million stateless persons in Europe alone.[130] At war’s end, there were over a million displaced persons and refugees in crowded shelters maintained by United Nations agencies in Europe. Some of these people were concentration camp survivors, others were individuals who had been dispatched to labour camps in Germany and Austria, and still others were those refusing to be repatriated to communist regimes.[131] Canada provided funding to the UNRRA, which operated more than 800 displaced persons camps in Europe;[132] distributed about $4 billion worth of goods, food, medicine, and tools, at a time of severe global shortage; and focused on the repatriation of displaced persons back to their home countries in Europe in 1945-46.[133]

The activities of the UNRRA immediately began to be enmeshed in Cold War politics. The organization was faced with large numbers of displaced persons who were reluctant to return to countries where communist parties were taking a firm hold. Many Polish, Ukrainian, and Baltic persons were thus residing in camps, asking to be referred to a non-communist country, as opposed to their country of citizenship. Soviet officials objected to any willingness to countenance such demands. While the UNRRA was returning large numbers of displaced persons to their countries against their will at this point, this was becoming increasingly untenable.[134] In response, in December 1946 Western governments decided to stop funding the UNRRA and to transfer the task of organizing resettlement work from the UNRRA to a new entity, the International Refugee Organization. Unlike the UNRRA, the IRO had no Soviet participation[101] and its chief function was not repatriation, but instead the overseas resettlement of refugees and displaced persons.[135] As Shauna Labman writes, it was at this point that the focus of refugee law and institutions shifted from an individual's inability to return home to their unwillingness to return home.[129] In retrospect, this move to accommodate those with objections to returning to communist countries represented a sea-change in the international approach to refugees. Previously, international organizations had dealt only with specific groups of refugees, such as Russian or German refugees, and, in Gil Loescher's words, governments had never attempted to formulate a general definition of the term 'refugee'. For the first time, therefore, with the establishment of the IRO, the international community was making refugee eligibility dependent on the individual rather than group membership and accepted the individual's right to flee from political persecution to a safe country.[135]

To achieve its mandate, the IRO had its own specialized staff, a fleet of more than 40 ships, and, most importantly, the political and economic support of the developed world. With the opening up of this IRO resettlement program, the number of repatriations to Eastern Europe was reduced to a small trickle and the IRO began operations that would relocate more than 1 million Europeans to the Americas, Israel, Southern Africa, and Oceania.[136] After the Second World War, the Canadian government began to receive more pressure both domestically and internationally to fulfill its humanitarian responsibility of hosting displaced persons.[137] In 1946, the Canadian government signed an order-in-council that allowed Canadians to sponsor displaced family members in Europe.[138] In 1947, Canada began to accept refugee referrals from the International Refugee Organization.[139] Canada also deployed its own immigration officers overseas for the purposes of selecting from among the displaced persons.[140] Collectively, these arrivals comprised what was called the Displaced Persons Movement, which successfully resettled 186,154 persons to Canada over the course of six years.[138] Of these, 100,000 entered Canada between 1947 and 1951 through what were termed labour-sponsored movements whereby an employer could show the government that a job could not be filled locally and the government in turn would have the IRO refer two or three potential immigrants from among available refugees for each needed labourer.[141] During the four and a half years of IRO operations, Canada would accept 12% of all refugees resettled by the organization, when compared to Australia at 18%, Israel at 13%, and Britain at 8%.[135] The terminology used at this time is not consistent: at times 'displaced persons' were contrasted with refugees in that displaced persons were those willing to return to their country of nationality post-war whereas refugees were not;[142] at times the terms 'refugee' and 'displaced person' were used as synonyms; and at times the term 'displaced persons' was used to refer to what we now think of as 'internally displaced persons', in contrast to 'refugees' who had fled across a border from their home state.[143]

When announcing the government's willingness to allow the movement of war survivors to Canada on May 1 1947, Prime Minister Mackenzie King articulated the government's position as follows: "It is not a 'fundamental human right' of any alien to enter Canada. It is a privilege. It is a matter of domestic policy. Immigration is subject to the control of the parliament of Canada."[144] Despite such protestations to the contrary, this speech is seen as the beginning of Canada accommodating the concept of human rights enshrined in the then-new United Nations Charter. For example, in deference to the UN Charter, Mackenzie King announced that the Chinese Immigration Act of 1923 would be repealed and that Chinese residents of Canada would be able to apply for naturalization.[145] Similarly, it was at this time that Canada was involved in discussions about the Universal Declaration of Human Rights, which would emerge in 1948 recognizing that “everyone has the right to seek and to enjoy in other countries asylum from persecution.”[146] Despite this growing accommodation to human rights rhetoric, King's realpolitik was reflected in Canada's actions: the tens of thousands of displaced persons that Canada accepted during this post-war period were "carefully selected, and most of them would have satisfied our standards if they had been applying as immigrants", according to one contemporary author.[147] Furthermore, it is arguable that the Holocaust had surprisingly little effect on refugee policies in the immediate post-war decades, especially in comparison to the effect of Cold War power politics on Canada's actions.[148]

1947 also saw the birth of the modern concept of Canadian citizenship, with the coming into force of the Canadian Citizenship Act that January.[149] The new Citizenship Act eliminated the previous classification of "British subject",[74] merged the pre-existing legal concepts of “nationality” and “citizenship” into a single status, that of “Canadian citizen”, and in so doing sought to create a unifying symbol for Canadians.[150]

The founding of the UNHCR, negotiation of the Refugee Convention, and growing refugee intakeEdit

The International Refugee Organization had a time-limited mandate. The assumption of the international community was that refugees and displaced persons were a creation of war, hence an end to the fighting would mean an end to the existence of such individuals.[151] However, as the IRO's June 1950 termination date neared, refugees continued to abound in Europe. Indeed, they were increasingly arriving across Western European borders from the Eastern Bloc.[152] As a result, on December 3, 1949, the UN General Assembly decided to establish the United Nations High Commissioner for Refugees (UNHCR).[18] A year later, on December 14, 1950, the Statute of the Office of the United Nations High Commissioner for Refugees was passed by the UN General Assembly, which defined the UNHCR's mandate to provide for the protection of refugees and forcibly displaced people and assist in their voluntary repatriation, local assimilation, or resettlement to a third country.[153] The UNHCR began its work on January 1, 1951 with a staff of 99 and a budget of $300,000.[154] At that point, the IRO was engaged in an extended wind up of its operations, which it completed by 1952.[155] The UNHCR, too, was intended to be temporary, with the UN General Assembly giving the organization a 3-year mandate to address the needs of displaced Europeans from World War II.[156]

At the same time, negotiation of what would become the foundational treaty for modern refugee protection, the 1951 United Nations Convention Relating to the Status of Refugees, was underway. The preparatory work for the Convention started in 1948,[157] with the initiation of the UN Secretary-General’s ‘Study on Statelessness’.[158] The first round of negotiations in the drafting of the Refugee Convention then began through what was termed the Ad Hoc Committee on Statelessness and Related Problems, which was appointed by the UN Economic and Social Council on 8 August 1949.[159] The Ad Hoc Committee was said to comprise a small circle of government representatives possessing ‘special competence’ on the subject, in the words of the relevant ECOSOC resolution.[160] It was mandated to consider, and act on, the recommendations made in the Secretary-General’s ‘Study on Statelessness’.[158] Cold War politics were felt during these discussions largely through the absence of the eastern block countries—the USSR and Poland first ‘walked out’ and then boycotted the Ad Hoc Committee in protest of the participation of (Nationalist) China.[161] The committee, chaired by Canadian Leslie Chance, met from 16 January to 16 February 1950, and prepared the first draft of a refugee convention.[162]

The Ad Hoc Committee then provided its report to the Social Committee of the UN Economic and Social Council. Discussions among the 15 country representatives on the Social Committee then took place over the course of eight meetings from 31 July to 10 August 1950.[159] A draft text was voted on by ECOSOC, and the text then passed to the UN General Assembly. On December 14, 1950, the General Assembly debated and then adopted a draft of the text by 41 votes to 5, with 10 abstentions.[163]

From there, a committee entitled the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons was formed to conduct the final negotiations on the Convention.[164] The much-discussed travaux préparatoires of the Refugee Convention are from these meetings, which ran from July 2 to July 25, 1951, with the Convention being signed three days later on July 28.[165] Cold War politics played an important role in the countries that participated in this conference—other than Yugoslavia, no Soviet bloc country attended the meetings.[166] Pursuant to this Refugee Convention, refugee status was a label held by individuals on the grounds of their personal circumstances. This contrasted with earlier definitions that had generally applied to all nationals of a particular state or persons of a particular ethnic group from that state, and in so doing required the asylum seeker to provide a more personalized account of their experiences as well as the general situation in the country of origin. Thereby, the scope of protection was narrowed and the importance of individual screenings increased.[167]

Canada was seen to be a leader at the conference drafting the Convention: it was one of twenty-six countries to send a delegate to participate in the conference;[56] a Canadian, Leslie Chance, chaired the conference;[168] Canada was the country in the Americas that presented the most proposals during the process of drafting the Convention, voicing comments during discussions that were otherwise dominated by the European states; and Canada was a part of the working group vested with the responsibility of drafting arguably the key part of the Convention - the definition of a refugee in Art. 1 of the document.[169] Canadian chairman Leslie Chance reported “we have been regarded throughout as taking a forward attitude.”[170] As an aside, Chance's statement could be regarded as somewhat self-serving given the shifting positions Canada took at the conference, for example arguing, contra France and the United Kingdom, for the inclusion of temporal and geographical limitations in the Convention, prior to flipping that position and arguing against such restrictions.[171] In any event, Canada did ultimately advocate at the conference "in favour of the widest possible definition" and took the position that "the purpose of the Convention was to protect refugees, not states."[172]

Commonwealth states like Australia and Britain ratified the resultant Convention.[173] Unlike those countries, Canada declined to do so. By way of explanation, then Secretary of State for External Affairs Lester B. Pearson announced that the government was concerned the Convention would give the refugee “the right to be represented in the hearing of his appeal against deportation” and, further, that the Convention would “grant rights to communists or to other persons who believed in the destruction of fundamental human rights and freedoms.”[170] The Canadian government also noted with concern that, "some sections of the Convention appeared to prohibit states from deporting 'bona fide' refugees, even on grounds of national security".[174] This reflected the RCMP’s belief that the Convention would restrict Canada’s right to deport refugees on security grounds and the government’s suspicion that the International Refugee Organization was infiltrated by communists.[175] Without Canada, the Refugee Convention entered into force on April 22, 1954.[176]

Despite not signing the Convention, in the ensuing years Canada inexorably became more involved in refugee matters:

  • Pledging to respect non-refoulement obligations: Despite not signing the Convention, Canada pledged to nonetheless uphold the Convention’s non-refoulement obligation. In practice, Canada had no difficulty in ensuring compliance with what it viewed to be the requirements of the Convention because, from the late 1940s, and in line with US practice,[177] Canada's Immigration Branch had invoked an administrative ban on deportations to any Communist country.[178] Haddad notes that such a commitment was not onerous as the numbers emerging from behind the Iron Curtain were minimal for the simple reason that "refugees could not escape".[179]
  • Financially supporting UNHCR: Canada financially supported the UNHCR from its establishment.[139] That said, Canada's contributions to UNHCR for the maintenance of refugees during this period have been described as "minimal" and in 1952 the Canadian government eliminated the UNHCR’s Canadian office.[180]
  • Becoming a member of UNHCR ExCom: In 1959, began to sit on the then-new UNHCR Executive Committee, an advisory body of states that gives guidance to the High Commissioner.[181] The UN General Assembly established the Executive Committee of the Programme of the United Nations High Commissioner for Refugees in 1958, several years after the founding of the UNHCR. ExCom is responsible for approving the Office's annual budget and programme, for setting standards and reaching conclusions on international refugee protection policy issues, and for providing guidance on UNHCR's management, objectives, and priorities. In the 1950s, this group started with 24 member states.[182] ExCom members need not have ratified the Refugee Convention, but are instead selected ‘on the basis of their demonstrated interest in and devotion to the solution of the refugee problem’.[183]
  • Growing refugee resettlement and admission: At the time of UNHCR's creation, one of its principal tasks was to resolve the situation of those in displaced persons camps in Europe. Despite an initial expectation that this could be accomplished quickly, as of 1960 the UNHCR was still running refugee camps in Europe for persons displaced during WWII.[184] For its part, by this time Canada had admitted nearly 250,000 displaced persons from Europe,[185] many of whose journeys to Canada had been subsidized by a Canadian government seeking to recruit more workers for a booming economy.[186] In the years following the UNHCR's creation, Canada also allowed for refugee entry on an ad-hoc basis for those displaced from other regions and for other reasons, ranging from small groups, such as when Canada admitted 39 Palestinian families in the wake of the displacement occasioned by the founding of the State of Israel,[187] to larger movements, including the 37,000 Hungarian refugees Canada admitted following the Hungarian Revolution in 1956.[188]
  • Increased procedural fairness and creation of immigration appeal boards: Canada also saw a movement towards increasing the extent of procedural fairness offered to migrants in Canada, providing for the creation of immigration appeal boards in 1952 which could hear appeals from decisions to deport aliens. Each board would consist of at least three members selected by the executive from officials at the department. That said, Canada's overall immigration laws continued to restrict persons for reasons of race, class, and health, and "national security" concerns related to the fear of communism, which were used to reject more than 29,000 applications to enter Canada between 1946 and 1958.[185] The ability to have recourse to an immigration appeal board was also limited at this time: all appeals were to be heard by the Minister unless, at the Minister's discretion, the appeal was directed to an IAB.[189] Furthermore, the Minister could also reverse any decision of an IAB.[190]

Non-discrimination measuresEdit

The 1952 Immigration Act empowered Cabinet to limit the admission of migrants by reason of a large number of grounds that allowed for Canada's discriminatory policies, including:

(i) nationality, citizenship, ethnic group, occupation, class or geographical area of origin,

(ii) peculiar customs, habits, modes of life or methods of holding property,

(iii) unsuitability having regard to the climatic, economic, social, industrial, educational, labour, health or other conditions or requirements existing ... in Canada ... or

(iv) probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship ...[191]

By the 1960s, values were changing across Canada, and around the world, and Canada’s racially-based, Eurocentric approach to immigration and refugee policy was becoming less and less aligned with how the country both viewed itself and wished itself to be seen. Canada’s unofficial ban on black immigrants was costing it diplomatic legitimacy with newly independent former colonies and, by 1961, Britain began to pressure Canada to change its policies as it had an open door to immigrants, such as those from the West Indies, that were barred entry into Canada.[192] Further, this race-based approach clearly contradicted the then-new Canadian Bill of Rights.[193]

Canada began to repeatedly liberalize who it was prepared to admit, for example admitting 325 tubercular refugees and their families around 1960, the first time that Canada had waived its health requirements for refugees.[68] In 1962, Prime Minister Diefenbaker's Immigration Minister tabled new regulations in the House that eliminated racial discrimination as a major feature of Canada's immigration policy. With this revision, historian Valerie Knowles states that the last vestige of discrimination which remained in the immigration regulations was a provision that allowed immigrants from Europe and the Americas to sponsor a wider range of relatives, something that was inserted at the last moment because of a fear that there would be an influx of sponsorships by persons from India.[194] In 1965, Canada ratified the four Geneva Conventions which form the basis of international humanitarian law,[195] including the 1949 Geneva Convention Relating to the Protection of Individuals in Times of War which includes a provision that refugees should not be considered enemy aliens if they had formerly had the nationality of an enemy power.[196] Then, in 1966 Lester B. Pearson's government created the Department of Manpower and Immigration and mandated it with the responsibility of processing refugees without “discrimination by race, country or religion”.[170] That department set to work and in 1967 all vestiges of discrimination were removed from the immigration regulations, if not the statutes themselves, and the government implemented its much-vaunted 'points system' in the regulations to guide the selection of many categories of immigrants.[86]

Immigration Appeal Board ActEdit

Immigration Appeal Boards, each consisting of three staff members from the immigration department, had been a feature of the Immigration Act since the 1950s. 1962 regulations expanded the jurisdiction of these boards to include appeals from all deportation decisions under the Act.[197] In this way, while immigration to Canada continued to be considered a privilege, and not a right, basic due process protections were coming to be seen as properly extended to aliens. Specifically, as Trebilcock and Kelley note, it was coming to be accepted that the rules governing admission or deportation of aliens should be reasonably well specified and transparent, and that deportation decisions should generally be open to challenge before a neutral tribunal.[198] That said, at this point, the Immigration Appeal Boards played what Trebilcock and Kelley describe as “a very minor role” in immigration decisions because their jurisdiction was limited to questions of law, and in view of the large discretionary powers granted to the Department of Citizenship and Immigration, errors of law were quite rare.[199] Furthermore, given that the boards were controlled by immigration as officials, they could be considered neither neutral nor independent.

In March 1967, the Immigration Appeal Board Act changed this. This Act emerged from what was called the Sedgwick Report, drawn up by Joseph Sedgwick, Q.C., a one-man board of inquiry which had been commissioned by the government to study a series of highly controversial deportations. Chief among the recommendations was the establishment of a completely independent immigration appeal board.[200] The principal features of the newly reconstituted Board were:

  • Independence: The Board was no longer controlled by immigration as officials, but was instead a a quasi-judicial entity independent of the Department of Manpower and Immigration.
  • Broader jurisdiction: A right of appeal to the Board was created for everyone who had been ordered deported from Canada, including those who believed themselves to be refugees in accordance with the 1951 Geneva Convention, and for denial of Canadian citizens’ family sponsorship applications.[201] Persons could appeal to the IAB on grounds of law, fact, mixed fact and law,[202] or compassion.[68] The Immigration Appeal Board Act empowered the Board to quash a deportation order against a person it determined to be a Convention refugee.[178]
  • Final authority over deportation decisions: Under the 1952 Immigration Act, the IAB consisted of Immigration Branch officials who made recommendations to the Minister, which the Minister could accept or reject at their discretion. Decisions of the newly reconstituted IAB were instead final (subject only to judicial review, as set out below).[141]
  • Judicial review: IAB decisions were final, subject to an appeal with leave to the Supreme Court of Canada on questions of law, including jurisdiction.[202] As commentators have noted, these leave requirements have effectively served to "insulate" such administrative decisions from judicial review.[203]

The 1967 changes to the Immigration Appeal Board are said to have proceduralized and judicialized immigration policy to an unprecedented degree and to have presaged calls for similar due process protections in the determination of refugee claims.[204] That said, the Board had a statutory limit of 7 to 9 judges[205] (later increased to 10) and was unable to keep pace with the scale of removals being ordered.[206] Almost immediately, the Board was swamped with a backlog that, at existing case processing rates, was expected to take decades to go through.[207] For example, as of August 1973 the IAB had a backlog of 17,000 cases, which it was deciding at a rate of 100 cases per month.[208] In effect, anybody wanting to achieve de facto permanent residence in Canada only needed to lodge an appeal of their deportation with the Immigration Appeal Board to be added to the Board's backlog, which began to extend into the 21st century.[206] As a result, in 1973 the government amended the Immigration Appeal Board Act to abolish the universal right of appeal for all persons in Canada. Instead, only permanent residents, valid visa holders, and persons claiming to be refugees or Canadian citizens were given a right of appeal.[208] In order to clear the backlog, the government also instituted a one-time amnesty program, which more than 39,000 people availed themselves of, including a significant number of US draft dodgers.[209]

Negotiation of the 1967 Refugee ProtocolEdit

In the late 1960s, negotiations were underway to expand the temporal and geographic scope of the 1951 Refugee Convention. This initiative was driven by decolonization in Africa and the scale of the emerging refugee phenomenon there. To wit, in the early 1960s, 150,000 Tutsi refugees fled Rwanda for Uganda, Burundi, Tanzania and Zaire; more than 80,000 refugees from Zaire could be found in Burundi, the Central African Republic, Sudan, Uganda and Tanzania by 1966; the first Sudanese war that ended in 1972 created 170,000 refugees; and there were 250,000 refugees from Rhodesia in Mozambique, Zambia and Botswana by the end of the 1970s. Estimates put the total refugee population of Africa at 400,000 in 1964, a figure that had reached one million by the end of the decade.[210] At the same time, many newly independent African states saw the the 1951 Convention as one that reflected European experience - and by its terms was limited to those fleeing persecution ‘as a result of events occurring before 1 January 1951'. The Organization of African Unity's move to negotiate a regional refugee convention for Africa was feared by the UNHCR as something that could limit its authority and undermine the (supposedly) universal regime it shepherded.[211] The 1967 Protocol was UNHCR's response. As articulated by the UNHCR, the motivation behind this initiative was to ensure that the de facto racial distinctions built into the 1951 Convention yielded to a growing anti-discrimination postcolonial zeitgeist:

The Convention had led to an unfortunate discrimination among the different groups of refugees, in particular with regard to the African refugees. Such discrimination conflicted with the Statute of his Office and was contrary to the universal spirit of the Convention itself.[212]

The resultant protocol was signed at New York in January 1967. It entered into force that October. The changes that the protocol made to the 1951 Refuge Convention were straightforward: extending the territorial and temporal scope of the Refugee Convention to cover refugees outside of Europe and those displaced for newly emerging reasons.[213] Canada was a laggard in signing the instrument. It initially refused to commit to the initiative to negotiate a protocol to the Refugee Convention on the basis that it was preparing what it termed its White Paper on Immigration.[214] In 1966 Canada released its White Paper on Immigration to, in researcher Clare Glassco's words, "test the waters" for making more fundamental changes to the immigration regime.[215] Reaction to the White Paper was negative.[74] As a result, it would be three years until Canada would come to sign onto the 1967 Refugee Protocol.

Canada's ratification of the Refugee Convention and ProtocolEdit

Among many initiatives, the 1966 White Paper on Immigration committed to the establishment of an immigration admissions policy that would be free from discrimination on the grounds of race, religion, or ethnicity. Further, the Paper proposed both the introduction of a refugee determination process within Canada’s borders, as well as the ratification of the 1951 UN Refugee Convention. As immigration official E.P. Beasley noted in 1966, in reference to the need for a clear refugee policy, in his view Canada had “become a country of first asylum,” and, thus, “the time may have come to set forth in legislation machinery and a methodology for determining these individual cases more precisely and more fairly.”[215] The concept of a "first country of asylum" in this context refers to a situation where Canada is the first country that grants protection to an individual, as opposed to resettling individuals who have already found temporary protection elsewhere.[216] At this time, Canada was increasingly seeing itself as a country of first asylum as Cold War crises caused thousands to seek safe haven in the West.[56]

In May 1969 Canada ratified the 1957 Agreement Relating to Refugee Seamen.[217] Then, a month later, in June 1969 Canada ratified the 1951 Convention Relating to the Status of Refugees as well as the 1967 Protocol Relating to the Status of Refugees.[218] Despite these ratifications, and while access to the Immigration Appeal Board continued to be available for those who had been ordered deported from Canada, no statute-based, official refugee policy existed in Canada for affirmative claims until the implementation of the 1976 Immigration Act.[219] Instead, in 1973 the Canadian government established its first formal administrative structure to deal with refugee claimants. An interdepartmental committee comprised of representatives from the Departments of External Affairs and Manpower and Immigration met to assess individual claims and forward their recommendations to the Minister of Manpower and Immigration who had the authority to decide whether a refugee claimant would remain in Canada or be deported.[56] At this point, inland claims occurred at the level of hundreds per year. Individual orders-in-council granted a person status in Canada at the Minister’s discretion and were based in part on humanitarian, economic, and political considerations.[56]

This in-Canada assessment system complemented the overseas assessments then ongoing. Canada had issued a “Guideline for Determination of Refugee Status” in 1970 to give immigration officers criteria for selecting refugees overseas.[220] That year Cabinet also approved what was termed the Oppressed Minority policy, which provided for the selection of oppressed people who were not Convention refugees because they were still in their home countries.[221]

Establishment of the Federal Court and increasing judicial scrutiny of immigration decisionsEdit

Immigration law during the first century of Canada as a nation has been said to have been implemented in a "highly discretionary and largely unaccountable" manner.[222] It had previously been the case that the Immigration Act included a very strong privative clause, which courts had largely respected. The 1910 Act stated that "no court, and no judge or officer thereof shall have jurisdiction to review, quash, reverse, restrain or otherwise interfere with any proceeding, decision or order of the Minister or of any Board of Inquiry, or officer in charge ... relating to the detention or deportation of any rejected immigrant ... upon any ground whatsoever, unless such person is a Canadian citizen or has Canadian domicile."[223] As Trebilcock and Kelley summarize, courts of the day, on the whole, respected these limitations imposed upon them.[224] The comments of one Quebec Superior Court judge on this privative clause from a 1921 decision are illustrative:

... what Parliament intended, and what Parliament actually provided in the language of this statute, was that all questions as to the entry of immigrants into Canada should be determined exclusively by the machinery of the Department of Immigration, namely by the board of inquiry and immigration officers, subject only to an appeal to the Minister, and without any powers of review or control by the Courts ... ... no Court or Judge may interfere with the proceedings of a board of inquiry, either on the grounds of misunderstanding or misrepresentation of the law, or of the regulations, nor on account of admission of illegal evidence, nor of error in weighing the evidence heard, nor on account of any informality or omissions which may fairly be classed as a matter of procedure, or of departmental regulation.[225]

This began to shift so that principles of fairness and due process began to assume an increasing importance in the system. The scope of the privative clause in the Act was reduced and in 1971, the Federal Court was established. This court would come to have a significant effect on immigration enforcement practices in Canada given that it not only inherited the previous Exchequer Court’s jurisdiction, it was also accorded the power to review decisions of all federal boards, commissions, and tribunals.[226] Its immigration caseload would come to account for a large majority of its work and caused long queues of cases seeking judicial review. In the years preceding the implementation of the Refugee Appeal Division at the IRB in 2012, judicial review of inland refugee matters made up around half of the Federal Court’s caseload.[227] Raphael Girard also credits the court's decisions with, in all likelihood, embedding principles of procedural fairness and transparency of decision making in the immigration Ministry's day-to-day operations.[228]

1976 Immigration ActEdit

The revised Immigration Act introduced into Parliament in 1976, and brought into force two years later, was a watershed moment for Canadian immigration policy. It overhauled the statute for the first time more than two decades, expunged the last vestiges of open discrimination in the Act, for example by lifting a ban prohibiting gay men and women from immigrating,[56] and, after a broad national debate, introduced a series of objectives into the statute which largely remain to this day. It did all of this through provisions that, with their detail and specificity, served to constrain executive decision making.[229] It was with the introduction of the 1976 Immigration Act into Parliament that the government reinforced its willingness to assume its international share in refugee resettlement.[110] It was this legislation that, for the first time, incorporated Canada's Refugee Convention obligations into statutory form.[230] The new Act recognized Convention refugees as a class of immigrants that could be selected abroad for permanent residence in Canada.[231] The legislation also gave legal standing to the pre-existing ad hoc committee for advising the Minister of Immigration on individual refugee claims from people at the border or in Canada, the Refugee Status Advisory Committee (RSAC).[231]

The RSAC process was as follows: those who sought refugee stats in Canada had to first present themselves to an immigration officer. If they were found to be inadmissible (as was usually the case), then they would be sent to an immigration inquiry for a determination about whether they should be removed from the country. It was at this point that the individual could request refugee status, in which case the removal order was stayed and the person was brought before a senior immigration officer for an interview regarding the substance of the refugee claim. The senior immigration officer then sent the transcript of the interview to the RSAC. The RSAC reviewed the application and made a recommendation to the Minister as to whether to accept or deny the claim for protection.[232] The program was very small: it processed only a few hundred claims per year throughout the late 1970s.[233] In the year that the revised Immigration Act came into force, for example, 4,130 refugees were admitted to Canada, all of whom were fleeing communism.[234]

Those who were not granted refugee status by the RSAC or the Minister had recourse to make an application on humanitarian and compassionate grounds. Such applications were considered by what was termed the Special Review Committee, which acted in an advisory capacity to the Minister.[232] The system did also include limited appeal rights to the Immigration Appeal Board.[235] The IAB reviewed the documentary record and was authorized to grant an oral hearing on the merits of the claim for any applicant who, on the basis of the documentary record, showed that there were reasonable grounds to believe that the claim could be established.[232] Under this system, in its last year of operation, about nine percent of claimants determined by the Minister not to be refugees were determined by the Board to be refugees.[236]

At the same time that Canada incorporated its obligations under the Refugee Convention and Protocol into domestic law, a series of international efforts to expand the scope of those treaties were underway. Some were successful, for example Canada ratified the Protocol to the Agreement relating to Refugee Seamen in 1975.[237] Other efforts were fruitless. In 1967 the United Nations adopted a Declaration on Territorial Asylum[238] which provided, in Article 3, that no person entitled to invoke Article 14 of the Universal Declaration of Human Rights should be subjected to measures such as rejection at the frontier. A conference was then held in 1977 to embody this, and other provisions, in a revised convention, a proposed UN Convention on Territorial Asylum.[239] While a draft was produced,[240] the conference ultimately ended in failure.[241]

In the 1970s, most refugees that Canada accepted came via overseas resettlement, not an in-Canada asylum process. In the early 1970s Canada accepted its first non-European refugees by resettling a group of 228 Tibetan refugees and developing a “Tibetan Refugee Program” to host them.[242] Tibetan refugee hosting opened the doorway to other refugee resettlement, as Canada accepted more than 7,000 ethnic South Asians expelled from Uganda under the dictatorship of Idi Amin in 1972-73, the first non-white refugees admitted to Canada in large numbers.[243] Canada then admitted 7,000 Chilean refugees fleeing Pinochet’s regime in 1973 and about 10,000 Lebanese refugees fleeing the Lebanese Civil War between 1975 and 1978.[244] In the 1970s, the U.S. was the largest source country of immigration, in part because of the large numbers of draft dodgers and deserters unwilling to fight in Vietnam who found refuge in Canada.[68] Historian Valerie Knowles states that it is impossible to arrive at hard numbers for the number of draft resister and deserters who escaped to Canada during the Vietnam War, but estimates range from 30,000-40,000 from the Canadian Council for Refugees to between 80,000-200,000 according to Mark Fruitkin, a "draft resister" and author.[245] Later that decade, from 1978 and 1981, 60,000 refugees from Southeast Asia were accepted - a figure that represents 25 percent of the number of immigrants admitted in these years.[185] During this time, Canada resettled more refugees from overseas than any other country on a per capita measurement.[246] Canadian immigration officials also travelled to El Salvador to interview prisoners at risk from paramilitary death squads there and grant refuge in Canda to some of those at risk, an example of processing claims in another country.[247]

That said, decisions to accept these groups of individuals were ad hoc and highly political; for example, fearing that most of the Chilean political refugees were too left wing, and not wishing to alienate either the American or new Chilean administrations, the Canadian government restricted the numbers, which is what limited Canada to only accepting about 7,000 Chileans during that 30-year conflict.[40] Similarly, while Canada accepted some Ugandan Asian refugees, there was marked public opposition to the move, with a poll in 1972 indicating that only 45 percent of Canadians approved of the government's decision; some in the government came to view this initiative as having cost the government seats in that year's election.[248]

To address demands from civil society to have more of a role in refugee sponsorship, and criticism about government refugee sponsorship decisions, in 1978 Canada established a Private Sponsorship Program through which citizens could assist fully or partially in privately sponsoring new refugees.[249] To date more than 300,000 refugees have come to Canada through this program.[250]

Background to the founding of the Immigration and Refugee BoardEdit

The background to the creation of the Immigration and Refugee Board of Canada lay in concerns about the rigour, capacity, independence, and fairness of the pre-existing refugee status determination system in the 1980s.

To begin with, throughout the 1980s there were concerns about the rigour of Canada's asylum system and about potential abuse of the system. In the words of Deborah Anker, in the early 1980s the government undertook to amend what it painted as a fragile asylum system being taken advantage of by ‘illegitimate’ immigrants.[251] Such concerns about the integrity of the system were exemplified by the Reform Party platform in the 1980s which invoked what has been labelled "inflammatory language" about "immigration abuses, bogus refugees, [and] improper selection of immigrants".[252] One response to these concerns, implemented in the mid-1980s, was what Deborah Anker describes as a series of restrictive measures, including the elimination of employment authorization and various social services for refugee claimants, and a new practice of returning refugee claimants travelling from the US to that country until their Canadian hearing date approached.[251]

There were also concerns about the capacity of the pre-IRB system as a result of a growing number of refugee claims that were being made during the decade. Rebecca Hamlin states that Canada signed the above-noted international treaties making commitments to refugee protection before it began to consider itself to be a country of first asylum and before asylum seekers started coming to its shores in significant numbers.[253] In 1980 Canada received what today looks like a very modest 1,488 refugee claims.[235] By the middle of the 1980s, however, such a large number of people were making in-country asylum claims that the system had become completely overloaded, with 8,260 claims being made in 1985.[235] This increase in Canada mirrored similar increases elsewhere in the world, for example, while in 1976 Western European nations received 20,000 asylum seekers, in 1980 there were 158,000 such applicants and by 1986, more than 200,000 claims were being made annually.[254]

In response to these growing numbers, as well as concerns about political interests potentially affecting decision-making on claims, in 1982 decision-making was transferred to a newly reorganized Refugee Status Advisory Committee,[255] which for the first time was made clearly independent of the immigration department, with its own Chairman and an increased budget. This allowed it to, for the first time, compile authoritative and independent documentation on refugee-producing situations around the world.[231] This system involved only written submissions, assessed by the committee in private, with the committee ultimately making recommendations to the Minister of Immigration,[256] although in 1983 a pilot to provide such claimants with an oral hearing began in Toronto and Montreal.[56] The Committee consisted equally of members from private life, the Department of Immigration, and the Department of External Affairs.[257] As such, concerns about the independence of the refugee determination process from Canada's foreign policy persisted. The granting refugee status could be seen to make a statement about the state of origin, and Canada had a history of restricting the grant of refugee status on political grounds, focusing it in particular on Communist states and demonstrating a reluctance to recognize refugees from newly emerging post-Colonial states, lest such grants of refugee protection be perceived as an admission that western powers' policies and actions had been the cause of refugee flows.[258]

This impetus for change was bolstered by a series of court decisions which undermined the extant framework for the refugee system. To that point, the system had distinguished between "in status" and "out-of-status" persons, contemplating refugee claims only for those individuals under inquiry for having violated the Immigration Act.[259] In 1985, the Federal Court held that distinction to be unfair and inoperative.[260] Furthermore, another 1985 decision, Singh v. Minister of Employment and Immigration, established that where the credibility of a claimant is at stake, an oral hearing before the then-Immigration Appeal Board was required. In so ruling, the Supreme Court of Canada set aside the previous system under which an application for an oral hearing had to be made.[261] The Singh decision is often seen as a watershed that enforced Canadian Charter of Rights and Freedoms protections for migrants on arrival on Canadian soil, thereby requiring an overhaul of the refugee determination process to ensure that fair oral hearings started to be offered as a matter of course.[235] One immediate response to the Singh decision was to expand access to oral hearings and to increase the capacity of the system in order to facilitate such access. In 1985, Bill C-55 modified the IAB to ensure that all refugees had the opportunity to have an oral hearing during their appeal and the bill increased the number of IAB members from eighteen up to fifty.[262]

To address this constellation of challenges, the Canadian governments of the day commissioned a series of major studies, principally the 1983 Robinson Report entitled Illegal Migrants in Canada, the 1984 Ratushny Report entitled A New Refugee Status Determination Process for Canada, and the 1985 report by Rabbi Gunther Plaut entitled Refugee Determination in Canada. Each of these reports recommend approaches for a new asylum determination system that would address both the right to be heard, and balance the competing interests of fairness and efficiency.[235] What ultimately emerged from these reports and the related legislative machinations of the 1980s was a new asylum system centred around a tribunal model. The relevant legislation, Bill C-55, or the Refugee Reform Act, was introduced in the House of Commons in 1986. There was lengthy debate about the legislation and it was not passed until 1988.[235]

Finally, one of the formative events in the creation of the IRB was the perceived crisis situation which emerged in the late 1980s when the federal government recalled Parliament for an emergency session to amend the Immigration Act after 174 Sikh persons arrived by lifeboat near the fishing village of Charlesville, Nova Scotia.[56] At that time, the Canadian Employment and Immigration Advisory Council reported that most business and labour leaders felt the government had "lost control of the border".[263] Parliament's resultant law, Bill C-84, the Refugee Deterrents and Detention Act, supplemented the yet-to-be-brought-into-force Bill C-55, and was considered to be a restrictive piece of legislation.[264]

The Immigration and Refugee Board of Canada emerged from these bills, and it represented a fresh start for asylum policy-making in Canada. The IRB came into existence as an independent administrative tribunal on January 1, 1989 with 115 members.[265] At that time, the IRB consisted of two divisions: the Convention Refugee Determination Division and the Immigration Appeal Division. Gordon Fairweather, a former Attorney General of New Brunswick and the first Chief Commissioner of the Canadian Human Rights Commission, was appointed as the first Chairman of the IRB.[56]

Features and aspects of the new system included:

  • Governor-in-Council appointees: Members of the Convention Refugee Determination Division were appointed by the Governor in Council.[205]
  • Non-adversarial processes: The CRDD hearing into a claim was usually conducted in a non-adversarial manner, in that the Minister was entitled only to present evidence and could not cross-examine the claimant or make representations (save where exclusion was at issue).[205] Panels of the CRDD were assisted by an IRB employee called a Refugee Hearing Officer (RHO).[205]
  • Private proceedings: In contrast to the public proceedings at the former IAB, CRDD proceedings were normally conducted in camera.[205]
  • Informal processes: IRB management aimed to ensure that the Board respected its quasi-judicial status and avoided the trappings of a conventional court system, pushing the idea of brief written decisions and also supporting oral decisions.[266]
  • No countries designated pursuant to the safe third country regime: One concern raised by civil society with the new legislation was the Safe Third Country Regime that it introduced. In response to public criticism of the Safe Third Country Regime, Barbara McDougall, who was then Minister of Employment and Immigration, became persuaded that the United States might send refugee claimants deported from Canada back to Central America where their lives would be in jeopardy. As a result, she announced in December 1988 that she was "prepared to proceed with no country on the safe third country list ... We think the new system will be able to function without it."[267]
  • Limitations on judicial review: This bill introduced a leave requirement for access to the Federal Court of Appeal for judicial review of a CRDD decision.[268]
  • Post-determination risk assessment: The government instituted a policy in 1989 to conduct a risk review for refused refugee claimants where time had passed between their refusal and deportation to assess claims regarding new risks.[68] Specificially, unsuccessful refugee claimants were able to apply for post-determination review by an immigration official to evaluate whether removal would result in compelling personal risk. This review assessed "risk to life, inhumane treatment, or extreme sanctions," and could provide protection to persons not covered by the 1951 Convention and Protocol.[269] Approximately 2-3% of such applications were accepted.[270] As discussed below, this process eventually became the foundation for what is now s. 97 of the IRPA.

As part of the transition to the new system, the government instituted a one-time expedited review program for people with pending asylum applications. This was designed to "clear the decks" and allow for a fresh start in asylum policy-making.[233] It essentially amounted to a general amnesty for refugee claimants who had entered Canada before 21 May 1986, one where individuals were permitted to stay in Canada and become permanent residents if they were already employed or likely to secure employment in the near future and had no medical, security, or criminal concerns.[56] While under the previous system 30% of applicants had been accepted,[271] under the expedited review program, acceptance rates were much higher - approximately 85% of the 28,000 applicants processed in 1986, for example, were accepted. All told, a backlog of 125,000 cases accumulated between the Singh decision and the coming into effect of the reformed refugee determination system in 1989, cases which were addressed through this expedited review program.[228] While the expedited review program was supposed to be able to process the outstanding applications within two years, it took much longer to do so, keeping, in the words of the Canadian Council for Refugees Executive Director Janet Dench, "refugees in limbo and separated from their families for years".[74]

Juridification of the refugee system and broader interpretations of the refugee definitionEdit

A longer-term implication of the Singh decision and the resultant changes to the refugee system, including the creation of the IRB, has arguably been the increasing 'juridification' of the refugee system.[272] Colin Scott defines juridification as the “process by which relations hitherto governed by other values and expectations come to be subjected to legal values and rules”.[273] The reasons offered for decisions by the Refugee Status Advisory Committee in the 1980s were scant; as refugee lawyer David Matas describes it, the reasons often consisted of "merely a few sentences" which "seldom related the findings of fact on which their conclusions were based".[274] In short, he states, what were offered were conclusions, as opposed to reasons. The reasons offered by the IRB would generally be more fulsome. This transition was consistent with international trends at the time - for example, it was not until 1984 that the Home Secretary in the UK was even required to give reasons for an asylum decision.[275]

In this way, as the juridification of the system emphasized the importance of individuals retaining counsel, it is no coincidence that it was in 1986 that a group of immigration consultants assembled to form the immigration industry association in Canada, the Association of Immigration Counsel of Canada.[74] Questions that remained about the legality of the immigration consultant regime were put to rest in the 1990s with legal proceedings that the Law Society of British Columbia brought against Jaswant Singh Mangat, who ran Westcoast Immigration Consultants Ltd., providing representation for a fee before the Immigration and Refugee Board. After a BC judge issued an injunction against these activities on the basis that Mangat was not called to the bar in British Columbia, his became a test case, ultimately resolving in 2001 when the Supreme Court of Canada concluded that non-lawyer immigration consultants were in fact legal and authorized by the Immigration Act.[74] At this time there was no system regulating immigration consultants and there was nothing in Canadian law which would prohibit an unlicenced individual from charging a fee to represent a client in an immigration matter.[74] This would not arrive until after 2002.

With the end of the Cold War, and this juridification of the refugee system, the nature of who was recognized as a refugee began to shift - the concept went from being primarily about flight from Communism to a broader human rights-based conception of who was entitled to protection. The newfound IRB began to interpret the Refugee Convention in a way that was characterized as "expansive" and "progressive". In 1991, Canada became one of the first countries in the world to recognize sexual orientation-related persecution as a basis for claiming asylum.[276] In 1993, the Immigration Act was amended to give the Chairperson the authority to issue guidelines.[277] Canada then issued guidelines on the handling of gender-based asylum claims in 1993, something that was associated with a growing acceptance of claims related to gender-based persecution.[278] In 1996, the IRB adopted guidelines on child refugee claimants, reportedly the first such policy initiative of its kind adopted by any state system.[279] Much later, in May 2017, the Board, for the first time, implemented guidelines on the adjudication of claims involving Sexual Orientation and Gender Identity and Expression (SOGIE).[280]

These progressive interpretations of Canada's refugee obligations were influenced by Canada's human rights obligations and international human rights procedures that refugee claimants may access. Claimants can bring individual complaints to seven UN treaty bodies, as well as to the special procedures established by the UN Human Rights Council, in particular, the Special Rapporteur on the human rights of migrants. The Committee against Torture is by far the most solicited UN treaty body and between 80 per cent and 90 per cent of all individual complaints submitted thereto concern alleged violations of the principle of non-refoulement enshrined in Article 3 of the Convention.[281]

Growing claim numbers and efficiency measuresEdit

The arguable corollary to this broadened definition of a refugee was an increasing difficulty of distinguishing refugees from other migrants.[282] Such challenges, the individualistic status determination model employed in Canada, as well as a ballooning number of claims, quickly resulted in backlogs. Soon after the IRB started in 1989, the number of asylum seekers reaching Canada began to rise, from a rate of several thousand a year, to reach 37,000 in 1992.[283] This happened concomitant to several global crises, including the implosion of the former Yugoslavia in 1991-92, which saw a number of persons come to Canada and claim asylum. At this point, Canada also fast tracked the admission of more than 25,000 refugees from Bosnia through its resettlement program.[284]

Bill C-86, passed by the Senate in December 1992, was a response to this influx of claimants. The bill was perceived to be primarily concerned with boosting the system's efficiency. It did this in a number of ways:

  • First was by eliminating a screening system for claims at the IRB and transferring authority for determining whether an applicant was eligible to claim refugee status from the Board to senior immigration officers at the immigration department.[285] Specifically, the Immigration Act had previously included a procedure whereby all applicants had a hearing before a panel of two in which a claimant had the burden of proving that they were eligible to have their claim determined and that there was a credible basis for the claim.[286] If either of the two panel members were persuaded, then the claim would be heard at a full hearing before the CRDD. As of October 1989, 5% of claims had been determined to lack a credible basis pursuant to this process.[287] In the name of efficiency, Bill C-86 transferred the eligibility determination step to the department and abandoned the screening process designed to eliminate claims with “no credible basis”.[288]
  • Changes were also made to the process for seeking judicial review of the Board's decisions. Until 1993, panels of the Federal Court of Appeal had been conducting the judicial reviews, where they granted leave. In that year, amendments to the Immigration Act vested single judges of the Federal Court of Canada, Trial Division, with original judicial review jurisdiction over decisions of the Convention Refugee Determination Division.[289] The move from multi-member panels to single judges for judicial reviews was yet another efficiency measure implemented for this high volume system.

In 1994, as a concession to pragmatism, the government decided not to return certain refused refugee claimants to their countries of origin, particularly certain claimants from China. It did this by introducing the Deferred Removal Orders Class (DROC), which allowed applications for landing from refused refugee claimants who had not been removed after three years, subject to certain conditions. The Class was particularly aimed at resolving the situation of some 4,500 Chinese claimants waiting in limbo.[74] In this way, the initiative was a compromise: providing a sort of amnesty for the existing backlog of claimants, who had waited while deportations to China were suspended following the Tiananmen Square massacre, while also announcing that deportations of new refused claimants would recommence. Later, Canada also introduced special measures to address the situations of claimants who were not being recognized through regular procedures. In January 1997 the government introduced the Undocumented Convention Refugees in Canada Class (UCRCC), which offered a means for some refugees from Somalia and Afghanistan who were unable to satisfactorily establish their identity to become permanent residents, but imposing a five year wait from the date of their refugee determination.[68]

Finally, the position of the Refugee Hearing Officer continued to be seen as an important part of the efficiency and integrity of the system. This position assisted CRDD Members by conducting research and being responsible for questioning during hearings. In 1995, the position was renamed to be called a Refugee Claim Officer.[277]

Growing claim numbers and deterrence measuresEdit

There was a time when the refugee "problem" was thought to be solvable.[290] The Office of the United Nations High Commissioner for Refugees (UNHCR) was originally set up for only three years. The office was renewed by the UN General Assembly thereafter, but only for successive five-year periods. This UNHCR's temporary nature, and repeated renewals, continued until December 2003. At that time, the UNGA removed the temporal limitation and created a framework for refugee protection set to continue indefinitely, "until the refugee problem is solved".[290] In Shauna Labman's words, the removal of the temporal limitation on UNHCR's mandate speaks to the recognition of the increasing unlikelihood of such a resolution.[290] Ebbing expectations of any permanent solution to refugee issues have come at the same time as refugee numbers have grown, asylum claimants have come from further afield, and concomitant refugee status determination costs have increased. This has been driven by reductions in the cost of international air travel, and the end of the Cold War, and with it a sharp reduction in the number of countries placing limits on the ability of nationals to leave their state (viz. the fall of the Berlin Wall).[179]

In response, in Bríd Ní Ghráinne's words, states have begun to employ increasingly "creative" means to constrain refugee flows and restrict the number of individuals they recognize as refugees.[291] Such measures have included curtailing the entry of refugees onto their territories through what she terms “relatively invisible—and hence politically expedient—non-entrée measures”[291] which have been deployed by Canada to an increasing extent in recent decades. Canada's geographic location, buffered by the U.S., Mexico, and three oceans, has long made it difficult for irregular migrants to reach its territory.[292] As the number of claimants in the country has risen in recent decades, Canada has increasingly turned towards the following non-entrée measures:

  • Restrictive visa policies: Until the late 1970s Canada had many fewer direct flights from other countries and it also had no visa requirement for any country in the western hemisphere.[293] Instead, many travellers to Canada had to switch flights in the United States, something which generally required a visa to that country. In the late 1970s, direct flights to Canada from other countries began to spring up and Canada began to implement an in-Canada asylum system. Canada simultaneously began to require visas for entry into Canada, something which restricted access to the asylum process.[280] Such visa requirements expanded to the point that today citizens of states considered to be "refugee producing" generally require visitor visas that are described as "extremely difficult to obtain".[294] For example, the rejection rate for visa applications from refugee-producing countries such as Somalia, Yemen, Afghanistan, and Syria is nearly 75 per cent.[251]
  • Carrier sanctions: Carrier sanctions refer to obligations placed on airlines and other transportation services to take care that they not transport anybody without a visa, if they are required to have one.[295] The Department of Citizenship and Immigration charges a carrier what has been labelled a "hefty" administration fee[296] for each traveller arriving with improper documents.[297]
  • Criminalization of people smuggling: Canada has used provisions criminalizing human smuggling as a means to deter asylum claims, for example bringing charges against a US humanitarian worker for smuggling (an offence under IRPA that carries a maximum life sentence) for transporting twelve Haitian asylum seekers to the USA–Canada border.[298] Furthermore, in 1993 the passage of Bill C-86 established an expanded list of criteria by which an applicant might be determined inadmissible.[299]
  • Biometric requirements: In the early 1990s, the government introduced a requirement that asylum applicants be fingerprinted.[300] The government also then introduced and gradually expanded biometric requirements for visa applicants; by the end of 2018, all visitors requiring visas also required biometrics.[301] Measures were also taken to use such biometric identifiers as part of information-sharing agreements with other countries. The Canada-US Smart Border Declaration of December 2001 committed that the two countries would develop common biometric identifiers and engage in the exchange of information.[302] A 2003 agreement between the countries entilted Sharing of Information on Asylum and Refugee Status Claims allows for the automated, systematic sharing of information between Canada and the US about asylum seekers, including biometric and biographic data.[302]
  • First country of asylum principles: Canadian immigration legislation has permitted the designation of safe countries since 1988.[303] This provision was used to authorize the safe third country agreement between Canada and the United States in 2004 (see below).
  • Stricter port-of-entry interviews and security screening: In the early 1990s, the government introduced deterrence measures design to push down the number of refugee claims, including stricter port-of-entry interviews.[300] Then, in the wake of the 9/11 attacks, the then Immigration Minister announced that there would be much greater utilization of the strategy of Front-End Security Screening (FESS) for refugees as they arrive in Canada.[304] More detail on FESS screening is available at: Canadian Refugee Procedure/Changing the Date or Time of a Proceeding#Regulation 159.9(3)(b): The process for investigations and inquiries related to sections 34 to 37 of the Act is referred to as the FESS process.
  • Pushback operations: For example, in 1998 Canadian officials arranged for the interception by the Senegalese navy of a boat carrying 192 Tamil persons from Sri Lanka, individuals who were then returned to Colombo before they could arrive in Canada.[305]
  • Overseas interdiction: CBSA employees called migration integrity officers work overseas, ensuring that individuals who are travelling to Canada have proper travel documentation.[306] Canada's interdiction programs abroad are a component of what is termed its Multiple Borders Strategy (MBS). Under the MBS, liaison officers are tasked with preventing persons who lack Canadian authorization or other required documents from boarding planes or boats bound for Canada.[307] In 2012 the government reported that there were 63 such officers in 49 locations worldwide.[308] Between 2001 and 2014, such liaison officers intercepted over 86,000 persons offshore.[309] For example, in 2018, 7,208 people, mostly from Romania, Mexico, India, Hungary, and Iran, were barred from boarding flights to Canada due to "improper documentation".[310]
  • Funding for border enforcement in countries of transit: Canada funds border enforcement in the global South to prevent departure.[311]

Furthermore, measures have been implemented to streamline the asylum process for those in Canada and make claiming asylum in Canada less desirable:

  • Limitations on appeal: One efficiency measure that was implemented at the time of the IRB's founding was that refugee claimants no longer had the ability to appeal a refusal of their claim under this revised system. As David Matas writes, this aspect of the new process was much criticized by legal counsel for refugees at the time.[312] Claimants whose claims were declined continued to have recourse to seek judicial review at the Federal Court. However, a leave requirement was introduced in amendments to the Immigration Act in 1989.[313] As a result of this, those seeking judicial review at the Federal Court required leave of the court to have their case heard. Leave to appeal has been granted in about 10 per cent of cases and reasons for refusal of leave are not granted.[314]
  • Broader restrictions on eligibility to claim: In 1994, authority was provided to the Minister of Citizenship and Immigration to issue a danger opinion against a refugee applicant on the basis of serious criminality. This had the effect of staying the refugee proceedings, removing the case from the jurisdiction of the IRB.[315]
  • Restrictions on employment for claimants: In the early 1990s, the government prevented refugee claimants from working. This was changed later in the 1990s.
  • Move from two-person panels to one-person panels: As the Convention Refugee Determination Division was originally conceived, refugee claimants would appear before panels of two decision-makers, only one of whom needed to accept their claim for their application to be successful. A cost-saving initiative was announced in March 1995 to move to one-person panels.[316] While the legislation would not be changed to make one-person panels the norm until the next decade, one-person panels de facto became the norm in the 1990s anyways. During that period, refugee determinations were usually made by one member sitting alone, with the "consent" of the applicant to do so. Catherine Dauvergne writes that by the time of the legislative amendment in 2002 that formalized this practice, one-person panels had already become rare.[317]
  • Increased focus on effecting removals: Citizenship and Immigration Canada describes removal as a key tool within the refugee system.[318]
  • Professionalization of immigration consultants: Steps were taken to professionalize the non-lawyer immigration consultants who can represent individuals before the IRB, including the 1996 creation of an Immigration Practitioners Certificate Program at Seneca College in Ontario, the first such program in Canada.[74]

Rebecca Hamlin situates the rise of this regime to deter asylum claims in the following way: "the rise of the regime of deterrence is, in part, a story of unintended consequences, because international commitments made by each country in a particular political moment came back to haunt future generations of policymakers. Had these countries' leaders anticipated the financial, security, and political challenges of the present-day situation, they might not have been as willing to make commitments that, at the time, were largely an abstraction."[253]

The 2002 move from the Immigration Act to the IRPAEdit

In the late 1990s, the federal government began a process to overhaul the then-Immigration Act, including with a lengthy public consultation period.[319] It commissioned a report entitled Not Just Numbers: A Canadian Framework for Future Immigration which set out priorities for the reformed system, some of which were accepted and others (like removing jurisdiction for determining refugee status from the IRB and transferring it to civil servants[320]) which were not. The resulting Immigration and Refugee Protection Act (“IRPA”) was an entirely new statute and represented the first complete revision of immigration legislation in Canada since 1978.[321] The shift from the Immigration Act to the IRPA in June 2002 also marked a new era of asylum policy in Canada - one that has been described as being focused on relieving administrative burdens. In the drafting and development of the IRPA, considerable public attention was been devoted to the question of whether to have one act governing immigration matters and a separate act governing refugee law. The idea, motivated by concern about the fundamental differences between immigration and refugee law, and advocated for in the Not Just Numbers report, was ultimately rejected; however, the Act's new title and the establishment of a separate division of the legislation devoted to refugees reflect this concern.[322] Highlights of the new legislative framework include the following:

  • Framework legislation: Compared to the previous legislation, the IRPA was described as framework legislation, with more details to be found in the regulations.[277]
  • Consolidated grounds for refugee protection: The IRPA expanded the categories of persons entitled to refugee protection. Under the former immigration legislation, the only category of person who was clearly entitled to protection was a person who fell within the definition of “Convention refugee”. IRPA expanded the scope of coverage to include persons who are at risk of torture, death, and cruel and unusual treatment upon deportation to their country of nationality or former habitual residence.[323] Canada had ratified the Convention Against Torture in 1987, but did not implement it directly in Canadian domestic law until this point.[324] Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of section 97 to be monumental when it discussed IRPA before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important."[325] Immediately after IRPA went into force, the IRB Legal Services division produced a lengthy guide for decision makers on how to make section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach".[325]
  • Creation of the RAD: The IRPA created the Refugee Appeal Division (RAD), which would review negative decisions on their merits, though this took ten years to fully implement.[326] Specifically, after the Act was passed, Citizenship and Immigration Canada announced that as a result of “pressures on the system” implementation of the RAD would be delayed.[327]
  • Shift from the CRDD to the RPD: The Convention Refugee Determination Division (CRDD) became the Refugee Protection Division (RPD), to reflect the fact that it now had jurisdiction over the consolidated grounds for refugee protection and, because the IRB backlog was a huge concern, the staff time required to support the RAD was created through a shift from two-member panels to single-member hearings so that half the number of Board members would be required for each case.[328]
  • PRRA: The IRPA transitioned from the Post-Determination Refugee Claimants in Canada Class (PDRCC) to the Pre-Removal Risk Assessment (PRRA) process.[329] The way PRRA functions is that if a refused asylum seeker is not removed from Canada within a year of the last decision on their refugee claim, they may be eligible for a PRRA to assess whether the risk faced by the refugee claimant changed over that year.[330] When the government announced the creation of CBSA in 2003, originally the plan was to transfer PRRA responsibility to them, but in the wake of pressure from NGOs, PRRA responsibility remained with Citizenship and Immigration Canada.[331] PRRA is an administrative review of an application done on the basis of a written submission.[332]
  • Increased security provisions: Sharryn Aiken, et. al., write that the most significant shift signalled by the IRPA is that it demonstrated a marked security turn in Canadian immigration law. They note that "this is hardly surprising in legislation that was passed in the immediate aftermath of the September 11, 2001 attacks in the United States.[319] Peter Showler writes that the government almost scrapped IRPA to introduce a law much tougher on refugees, but that Immigration Minister Elinor Caplan decided to proceed with the IRPA in the end.[333] This law included a number of security-related measures, including:
    • Increased authority to detain claimants: The IRPA expanded the authority of immigration officers to detain refugee claimants where they represented a flight risk, a danger to the public, and/or their identity was in doubt. This expanded authority resulted in the number of individuals detained pursuant to the Immigration Act rising substantially, from 8,000 people in the year 2000 to some 11,500 in 2003.[334]
    • Broader grounds of ineligibility to claim refugee protection because of criminality: When compared to the 1976 Act, IRPA included broadened grounds restricting the eligibility of refugee claimants to have their refugee claims determined.[335]
    • Anti-smuggling measures: The past century has seen what Gil Loescher describes as "dramatic growth" in human trafficking and trans-continental people smuggling.[336] Provisions in the IRPA for the first time implemented Canada's obligations under the Palermo Convention together with its Smuggling Protocol and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.[337] Smugglers became eligible for a sentence of life imprisonment upon criminal conviction.[338]

While the above overhaul of the system represented considerable change, it is also notable that some of the changes argued for in the Not Just Numbers report were ultimately rejected. For example, that report had recommended that the processing of overseas and inland refugee claims be unified within a single system with shared decision-makers for both. Having a single system reflected a desire for more consistent decision-making on refuge status, but, in Shauna Labman's words, "[brushed over] the additional necessity of the selection aspect in overseas resettlement."[339] The proposal was not adopted.

Post-IRPA measuresEdit

Following the introduction of the IRPA, a number of measures were taken which had a continued focus on system integrity, efficiency, and reducing backlogs at the RPD. These included:

  • Reverse-order questioning: The year following the introduction of the IRPA, in 2003, the IRB Chairperson issued Guideline 7 on the Conduct of a Hearing, which created a new order for questioning during an RPD hearing. The new order of questioning in a hearing of a claim for refugee protection was that, if the Minister is not a party, any witness, including the claimant, would be questioned first by the RPD and then by the claimant’s counsel.[340]
  • Refusal to introduce the RAD: Over the next decade subsequent to the coming into force of the IRPA, there were several attempts by some members of Parliament to pass another act forcing the implementation of the RAD, including a very near success in summer 2008.[341]
  • Creation of CBSA: The Canada Border Services Agency was established in 2003. It operates as part of the Department of Public Safety Canada, also created in 2003 following the model of the US Department of Homeland Security. [342]
  • Increasingly merit-based Member appointment process: Additionally, there were changes to the appointment process for Governor in Council Members of the Division. Such GIC appointments to the IRB have always been controlled by the Minister of Citizenship and Immigration, although reforms implemented in the 1990s started to provide greater scope for management of the IRB to participate in the selection and reappointment of Members based on more merit-based criteria. These efforts were reversed in the winter of 2006 when the newly elected government introduced changes to give the Minister greater control and discretion. The Chair of the IRB unexpectedly resigned at this time, eight months before the end of his mandate, leading to speculation that he did so in protest, having been a strong advocate for a more merit-based appointment process.[314]
  • Introduction of the Safe Third Country Agreement with the United States: STCAs are bi- or multi-lateral agreements requiring refugees to seek refuge in the first country they reach, prohibiting them from seeking asylum in the other state(s) party to the agreement.[94] A provision for safe third country agreements was included in Canada's Immigration Act in the 1980s. Canada attempted to negotiate such an agreement with the United States in the decades following, without success. For example, in 1993 Canada entered into a Memorandum of Agreement with the United States with the intent of the latter being declared as a safe third country,[343] but in 1998 the Canadian government announced that negotiations with the U.S. pursuant to that Memorandum of Agreement, negotiations which aimed to see the US designed a safe third country, were being abandoned.[68] It was only in the wake of 9/11 that Canada was able to successfully conclude such negotiations.[344] Specifically, on December 5, 2002, Canada signed its STCA with the United States.[345] That agreement came into effect on December 29, 2004, the first time that the safe third country regime in Canada's immigration legislation was first utilized.[346] The agreement, modelled on the multilateral Dublin Regulation among European Union member states,[347] prohibits most persons from seeking asylum at a regular land port of entry in either country if they first landed in the other one.[94] The immediate impact of the STCA was to significantly lower the number of inland refugee claims in Canada; there was a 49 percent drop in claims made at the Canada-US border after the agreement came into effect.[94] This trend, however, did not last.[348] For those who did make a claim at the Canadian border, the vast majority fitted within one of the exceptions to the agreement - in 2005, of the 4033 claims made at the border, only 303 refugee claimants were returned to the United States as ineligible to apply in Canada.[332]
  • Enlargement of UNHCR ExCom: Canada has continued to sit on the UNHCR ExCom. Its size has grown from 25 states in the 1950s to 106 today. As a result, Gil Loescher writes, ExCom has become too large and politicized and it is frequently not an effective decision-making body.[182]
  • Regulation of immigration consultants: The Canadian Society of Immigration Consultants was established to regulate the activities of immigration consultants providing representation for a fee in 2004, the first time that such a regulatory body had been established in Canada.[74]

Refugee reform in 2010 and 2012Edit

Two pieces of legislation made significant changes to the refugee system in 2010 and 2012, the Balanced Refugee Reform Act (BRRA, 2010) and the Protecting Canada’s Immigration System Act (PCISA, June 2012). Key portions of PCISA were originally part of the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Human Smugglers Act), which was introduced as Bill C-49 in October 2010. After a Canadian federal election in May 2011 caused Bill C-49 to die on the order paper, the newly formed majority government re-introduced the provisions as Bill C-4 in June 2011. This Human Smugglers Act was then incorporated into Bill C-31, PCISA, in June 2012.[349]

As Neil Yeates describes it, the thrust of these reforms was for faster processing of claims, with a view that bona fide claimants would be more quickly approved, and failed claimants, after access to the new Refugee Appeal Division of the IRB, would be more quickly removed from Canada.[350] Various changes were made to assist this, including:

  • Legislated timelines for hearings: The legislation included accelerated timelines for scheduling refugee hearings,[347] with a requirement that a hearing take place within 60 days of a claimant making their claim.[351]
  • Implementation of the Refugee Appeal Division (RAD). As part of this reform, the RAD came into being on December 15, 2012.[352]
  • Public servant decision-makers: Shifting from Governor-in-Council appointees to public servants as first-level decision makers at the IRB’s Refugee Protection Division. The shift away from Governor-in-Council appointees reflected a key recommendation from the government's own immigration-law advisory committee, namely that qualified public servants should be named to the Immigration and Refugee Board, not political appointees.[353]
  • Elimination of the Refugee Protection Officer position: A position that had variously gone by the name Refugee Hearing Officer (RHO), Refugee Claim Officer (RCO), and Refugee Protection Officer (RPO)[354] was eliminated on the basis that it would no longer be necessary given the expertise that the public servant decision-makers would possess. These roles had previously assisted Members by conducting questioning at hearings.
  • Creating a list of Designated Countries of Origin (DCOs), countries that were not generally considered to be refugee-producing, and where measures to deter and expedite such claims were consequently legislated.[355] The Designated Country of Origin list was introduced in 2012 as part of the Protecting Canada’s Immigration System Act. The initiative was modelled on the European Safe Country of Origin list, which is used in that asylum system.[347] The implications for asylum seekers coming from DCOs included an expedited hearing process with shortened timelines, no access to the Refugee Appeal Division, no automatic stay of removal for failed claimants seeking judicial review, limited access to PRRA, and no eligibility for a work permit or health care while awaiting a decision on their claim. Designation as a safe country was dependent on a combination of qualitative observations of countries’ levels of democratic process and human rights records and on two quantitative thresholds, including when 75 percent or more of previous claims by nationals of a country had been rejected by the IRB or 60 percent or more of previous claims by nationals of a country had been withdrawn. The initial DCO list included 25 countries and was eventually expanded to include 42 countries.[356] On May 17, 2019, following a Federal Court ruling in which specific provisions of the DCO policy were struck down for not complying with the Canadian Charter of Rights and Freedoms, the Government of Canada announced that it would remove all countries from the DCO list[356] and that the DCO regime would eventually be repealed through legislative amendment.[357]
  • Creating the concept of Designated Foreign Nationals: The PCISA reforms established a regime for what are termed Designated Foreign Nationals.[358] DFNs, as defined in the Act, are groups of two or more refugee claimants suspected by the Minister of Public Safety 'irregular arrival' with the aid of smugglers.[359] The implications of being so designated include that DFNs will be automatically detained until their refugee claim is determined if they are sixteen years of age or older.[351] This built on the way that mandatory detention had already been utilized in Canada after the arrival of Tamil refugees aboard the MV Ocean Lady and MV Sun Sea in 2010.[360] Furthermore, even if their claim is accepted, DFNs are unable to apply for permanent residence status for five years,[351] as well as being unable to obtain a travel document and unable to sponsor family members.[359] Soon after the introduction of these provisions in the Act, they were invoked by the government in multiple cases.[361]
  • The IRB doing PRRA: The Balanced Refugee Reform Act also transferred authority over the PRRA from the Minister to the IRB, although this transfer has never actually been brought into force.[362]
  • Limitations on the Interim Federal Health Program: The Interim Federal Health Program provides refugee claimants with access to health care while their claims are pending. As part of a strategy to create disincentives for refugee claimants to come to Canada, in 2012 the government cut access to health care for some categories of claimants.[363] It was introduced via Orders in Council in 2012 which limited access to health care in Canada while select refugee claims were pending, principally claims from claimants who originated from DCOs.[364] This policy was declared unconstitutional by the Federal Court in 2015, with the court concluding that the resultant regime amounted to "cruel and unusual treatment" prohibited by the Canadian Charter of Rights and Freedoms.[186] This decision is one in a line of similar cases from courts that have pushed back against restrictive asylum legislation around the world. For example, the UK House of Lords, in Limbuela, found that decisions made to refuse support to asylum seekers risked violating the prohibition on inhuman and degrading treatment due to the risk of a claimant being "obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene".[365]

The current version of the Refugee Protection Division rules came into force on October 26, 2012 following the coming-into-force of this legislation.[366] The Immigration and Refugee Board, in its public comments, emphasized these rules and the importance of decisions being guided by them. This aligned with comments at the time from the Immigration Minister Jason Kenney of this sort: "I think most Canadians intuitively understand that broad public support for immigration, and, frankly, diversity in our society is contingent on having a well-managed, rules-based, fair immigration system. I think they understand that we all have a stake in maintaining such a system".[252] Following the coming into force of this new legislation and RPD rules in 2012, there was a 49 percent decline in asylum claims.[367]

2010s refugee protection initiativesEdit

Resettlement programsEdit

Canada actively resettles thousands of refugees per year within a voluntary burden-sharing scheme. This act places Canada near the top of a small group of approximately thirty countries worldwide willing to offer refugee protection through resettlement in addition to the promise of non-refoulement in the Refugee Convention.[368] Three states have traditionally been the leaders in resettlement: Canada, Australia, and the United States. Combined, they have tended to receive approximately 90 percent of the UNHCR's resettlement referrals.[369] By way of example, in the 2017 calendar year, the United States resettled 33,400 refugees, while Canada resettled 26,600 refugees, and Australia resettled 15,100 refugees.[370] In line with this tradition, Canada launched a program to resettle more than 25,000 Syrian refugees in 2015.

Sanctuary city movementsEdit

Many people do not file for asylum but live in the margins of society as undocumented self-settled migrants fearing arrest, deportation, and other punitive measures.[371] The 1906 Immigration Act made it the duty of municipal authorities to report select categories of removable immigrants, including those who had become a charge upon public funds or upon any charitable institution.[372] This duty was subsequently removed from Canada’s immigration legislation. Nonetheless, persons without legal immigration status in Canada, whether that of a refugee, refugee claimant, or otherwise, have faced difficulties accessing government and private services lest immigration documents be demanded or they be referred to immigration authorities and deported. In Canada, since 2013, Toronto, London, Vancouver,[373] and Hamilton have all declared themselves sanctuary cities.[374] These sanctuary city policies have generally involved ordinances ensuring access to municipal services for the undocumented, though without going so far as prohibiting information-sharing with federal border enforcement authorities altogether.

Expanded information-sharing agreements between Five Eyes countriesEdit

The 2010s saw a significant increase in the use of biometric technologies by asylum systems around the world. By the end of 2018, for instance, the UN Refugee Agency alone reported the capture and storage of biometric identity for over 7.1 million refugees.[375] Canada has long been collecting biometric information from refugee claimants and at this time is began to exchange such information more with partner countries. Canada has long had information-sharing agreements with the United States whereby information about refugee claimants is exchanged. For example, the Canada-US Smart Border Declaration of December 2001 committed that the two countries would develop common biometric identifiers and engage in the exchange of information.[302] A 2003 agreement between the countries entilted Sharing of Information on Asylum and Refugee Status Claims allows for the automated, systematic sharing of information between Canada and the US about asylum seekers, including biometric and biographic data.[302] The exchanged information includes: identity-related information, for example biographic and biometric data; previous refugee claim status (denied, abandoned, or granted); data that would indicate that a claim is inadmissible; and any evidence submitted to support a previous application.[302] In 2009 the "Five Eyes" countries signed a Data Sharing Protocol to conduct a small number of "immigration checks" through biometric (fingerprint) data exchanges. This arrangement was intended as a pilot for automated data exchanges and it involved commitments to share 3000 fingerprints annually. Canada then reached information sharing agreements with the United Kingdom (2015), Australia (2016), and New Zealand (2016) which moved from the pilot model to the automated sharing of information.[302]

Irregular border crossing controversyEdit

Since the Board's 1989 founding, the number of people making refugee claims has increased greatly, both in Canada and internationally. Looking at the numbers globally, during decade of the 1980s, there were 2.3 million applications for asylum lodged worldwide, mostly in western Europe, the United States, and Canada. During the 1990s, this number grew to 6.1 million applications filed, and the list of receiving nations grew to include Australia, New Zealand, Scandinavia, and southern Europe. During the 2000s, there were 5.5 million new applications filed worldwide, and countries such as Ireland, Greece, Poland, and South Africa became popular new destinations.[376] Today, roughly one million individuals apply for asylum globally each year,[377] with those classified as refugees representing 7–8 per cent of the global migrant population.[378] Similarly, in Canada, while the volume of new claims has gone through cycles, volume has trended upwards over time. Soon after the IRB started in 1989, the number of asylum seekers reaching Canada went up from a rate of several thousand a year to reach 37,000 in 1992.[283] Since then, three notable case decision backlogs have occurred: in 2002 with over 57,000 claims, in 2009 with over 62,000 pending claims,[379] and post-2017, where the Refugee Protection Division had 90,000 claims awaiting decision.[380]

In this context, persons crossing irregularly from the United States into Canada became a significant political issue starting around 2017.[252] Such crossings occurred primarily at Roxham Road on the Quebec-New York border and at Emerson, Manitoba. From 2017 to 2020 more than 59,000 people crossed the Canada-US border in an irregular manner and claimed asylum in Canada,[381] in order to evade the restrictions put in place by the Safe Third Country Agreement. This included 20,593 claimants in 2017, 19,419 claimants in 2018, and then 16,077 claimants in 2019.[381] Quebec received approximately 95% of the irregular border crossers from the United States.[382] The total number of asylum claims in Canada similarly rose over this period, going from 23,870 in 2016, to 50,390 in 2017, to 55,040 in 2018, to 64,045 in 2019.[383]

The resources dedicated worldwide to Refugee Status Determination (RSD) have been appropriately described as immense. States and UNHCR rendered 1.5 million decisions on individual asylum claims in 2017[384] and as of 2018 there were 3.5 million asylum seekers in the world.[385] Although exact figures are difficult to determine, academics note that the combined cost of RSD performed by states and UNHCR exceeds the total cost of direct humanitarian assistance provided to refugees by UNHCR.[386] In fact, Thériault has estimated that the Global North alone spends $20 billion on RSD,[387] a number which is a multiple of the UNHCR’s budget,[388] and, by his estimate, four times the budget made available to agencies that are responsible for the care of the refugee population in the Global South, despite the fact that 85% of refugees reside there.

Around the world, irregular arrivals generally have higher success rates for asylum claims than those who apply after arriving on some other temporary visa. For example, in Australia, the historical average success rate for asylum seekers who arrive by boat has been more than 80 per cent. The academic Daniel Ghezelbash states that this is largely due to the effectiveness of visa regimes in identifying persons with potential asylum claims and not giving them a visa which would allow them to travel to the country by regular means.[389] Despite the comparative bona fides of such claimants, the journeys undertaken by claimants arriving in a country irregularly, and necessitated by state deterrence measures, are often hazardous. For example, several crossers into Canada lost limbs to frostbite after walking for hours in freezing temperatures, and Mavis Otuteye, a 57-year-old Ghanaian grandmother, was found dead from hypothermia in a ditch near the Canada-US border in 2017.[390]

This increase in border crossings between the United States and Canada had political, procedural, and legal consequences, including:

  • Challenges to Safe Third Country Agreement: There were post-2017 calls to suspend or end the Safe Third Country Agreement, including a legal challenge to the agreement, which was denied by the Federal Court of Appeal in 2021 for procedural reasons.[391]
  • Increase in claims: The increase in claims caused the government to increase IRB capacity. One of the effects of this increase in refugee claims has been a growing backlog of claims to process at the Immigration and Refugee Board of Canada. In its 2019-20 departmental plan, the IRB noted that "an inventory of more than 75,000 claims has accumulated, representing more than two years of work at current funding levels".[392] One of the federal government initiatives in response to this surge in claims was to temporarily expand the processing capacity of the IRB. The government increased resources at the Refugee Protection Division so that it could deal with up to 50,000 asylum claims annually by 2021.[393]
  • Calls to extend the Safe Third Country Agreement: There were post-2017 calls to extend the application of the Safe Third Country Agreement across the entire Canada-US border. As of 2017, polls indicated that 70 percent of Canadians felt that security along the Canada-US border should increase.[394] A 2018 Angus Reid poll indicated that more than half of respondents said that Canada was too generous to asylum seekers who cross into Canada irregularly.[395] In their 2019 platform, the Conservative Party of Canada committed to prioritizing "economic migration" and favouring those facing "true persecution" over "bogus" refugee claimants.[252] The Conservative Party indicated that, if elected, it would hire 250 more CBSA officers and move IRB Members closer to crossing sites to expedite the process.[396]
  • Changes to eligibility for referral to the IRB: The irregular border crossing controversy led to Parliament making changes to which claimants are eligible for a hearing before the IRB. In June 2019, amendments were made to the Immigration and Refugee Protection Act in Bill C-97, the Budget Implementation Act. These changes introduced new grounds of ineligibility for refugee claimants if they have previously requested asylum in a country with which Canada has an information-sharing agreement or arrangement. In practice this means that individuals who made a previous claim in the United States, United Kingdom, Australia, or New Zealand (the "five eyes countries") are ineligible to claim refugee status in Canada and have their claims heard by Immigration and Refugee Board, though if information sharing agreements are made with other countries, they also will be included.[397] This is so regardless of whether a decision was ever made on the previous claim.[398] Those found to be ineligible to make a claim to the IRB may submit an application for a pre-removal risk assessment instead.[399] Idil Atak describes this omnibus Bill as having been "adopted hastily in the lead-up to the 2019 federal election" as part of the government's measures to respond to the irregular border crossing controversy[400] and this can be seen as an example of the Canadian government's capacity to respond to developing circumstances quickly with new immigration legislation.[401]
  • Changes to IRB scheduling: As the backlog of claims at the IRB rose, the average wait time for a first hearing at the RPD grew to two years, as opposed to the statutory timeline of two months for most asylum seekers.[402] The increase in claims triggered a change in how the IRB scheduled and prioritized claims. The Immigration and Refugee Protection Regulation allows for exceptions to the time limit for the RPD to hold a hearing in the case of operational limitations.[403] To deal with its backlog, the IRB began to prioritize older cases for scheduling before newer cases and abandoned the case processing timelines in the Regulations. Previously, when IRCC or CBSA referred a file to the RPD, the claimant was also provided a hearing date; the RPD then postponed that hearing for lack of capacity to hold it within the time limit. As of August 29, 2018, claimants were no longer provided a hearing date at the time of referral.[404]

Covid-19Edit

In 2020, in response to the Covid-19 virus, fifty-seven countries shut their borders to asylum seekers.[405] At first, the Canadian government announced that all claimants arriving outside ports of entry would be screened for the virus and then quarantined if the test results were positive. The Canadian government changed its position days later, announcing that all claimants would be returned to the United States.[406] As part of this, the two countries reached a temporary agreement which allows Canada to send back individuals entering Canada from the US to make an asylum claim.[407] The agreement applies between official ports of entry along the land border and at air and marine ports of entry. The government also designated Roxham Road as a port of entry for the purposes of the Safe Third Country Agreement and began returning refugee claimants to the US at this point.[408] In response to these measures, the number of those attempting to cross the border irregualrly plummeted, for example, 24 irregular migrants sought to make claims between March 16, when the border closed, and May 8, 2020.[409]

The pandemic saw a number of states temporarily suspend asylum procedures.[410] Canada was one of them. The Refugee Protection Division shut down all hearings for several months as a result of the pandemic, resuming them in the summer of 2020. Referrals of claims to the IRB by IRCC and CBSA were delayed or suspended for far longer.[411]

The Covid-19 pandemic also saw the Canadian government implement one of its periodic amnesty campaigns for asylum seekers, in this case a program that became colloquially known as the Guardian Angels initiative which granted permanent residence status to asylum seekers who were involved with front-line caregiving during the pandemic.

ConclusionEdit

The next chapters in the story of refugee protection procedure in Canada remain to be written. What can be said is that the concept of the ‘refugee’ is as old as the state system, and, in the words of academic Eve Lester, it will remain with us for as long as the state system remains.[12] As Emma Haddad writes, refugees are the consequence of erecting political boundaries and failing to protect all individuals as citizens, hence pushing insiders outside. So long as these conditions pertain - there are political borders constructing separate states and creating clear definitions of insiders and outsiders, and failures of protection - there will be refugees.[412]

ReferencesEdit

  1. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 48.
  2. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 49.
  3. Chetail, V. (2019). International Migration Law. London, England: Oxford University Press, page 16.
  4. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 50.
  5. Reports of the number of people who left France at this time vary. Julia Morris cites a figure of 1 million in Julia Morris, The Value of Refugees: UNHCR and the Growth of the Global Refugee Industry, Journal of Refugee Studies, 11 January 2021, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa135 at page 4. Emma Haddad writes "From the 1670s to the start of the eighteenth century it is estimated that between 200,000 and 500,000 French Protestants left France as refugees to seek protection abroad" in Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351 at page 52. In contrast, Hazal Barbaros writes: “The number of immigrants varies according to sources. To begin with, the total number of members of the Reformed Church of France is estimated to be around 900,000. Some sources indicate that the most likely number of emigrants is 200,000 approximately, whereas the others give hyper-inflated figures like 800,000 which basically means France was deprived of nearly the whole of its Protestant population. Concerning those who chose England as their destination, the number is approximated to be between 40,000 to 50,000.” See Hazal Barbaros, Post Tenebras Lux: The Huguenot Diaspora in Early Modern London and its Reflections in Refugee Wills, Master’s Thesis, August 2021, Department of History, İhsan Doğramacı Bilkent University, Ankara, <http://repository.bilkent.edu.tr/bitstream/handle/11693/76474/10412602.pdf?sequence=1> (Accessed August 28, 2021), pages 9-10 of document.
  6. Melanie Baak, Once a Refugee, Always a Refugee? The haunting of the refugee label in resettlement, in Jordana Silverstein and Rachel Stevens Refugee Journals: Histories of Resettlement, Representation, and Resistance, Feb. 4, 2021, ANU Press, <https://library.oapen.org/bitstream/handle/20.500.12657/47330/book.pdf?sequence=1> (Accessed March 20, 2021), at page 56.
  7. Hazal Barbaros, Post Tenebras Lux: The Huguenot Diaspora in Early Modern London and its Reflections in Refugee Wills, Master’s Thesis, August 2021, Department of History, İhsan Doğramacı Bilkent University, Ankara, page 7 of document.
  8. Gil Loescher, Refugees: A Very Short Introduction, May 2021, Oxford, ISBN: 9780198811787, page 23.
  9. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351 at page 52.
  10. a b Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 28.
  11. Jaenen, Cornelius J.. "Huguenots". The Canadian Encyclopedia, 16 December 2013, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/huguenots. Accessed 06 April 2021.
  12. a b Eve Lester, Australian responses to refugee journeys: Matters of perspective and context, in Jordana Silverstein and Rachel Stevens Refugee Journals: Histories of Resettlement, Representation, and Resistance, Feb. 4, 2021, ANU Press, <https://library.oapen.org/bitstream/handle/20.500.12657/47330/book.pdf?sequence=1> (Accessed March 20, 2021), at page 26.
  13. Laura Madokoro, On public sanctuary: exploring the nature of refuge in precarious times, in Dauvergne, C. (ed), Research handbook on the law and politics of migration, April 2021, ISBN: 9781789902259, page 96.
  14. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 27.
  15. Gil Loescher, Refugees: A Very Short Introduction, May 2021, Oxford, ISBN: 9780198811787, page 22.
  16. Gilad Ben-Nun, Migration and Society: Advances in Research 4 (2021): 124–136, doi:10.3167/arms.2021.040112, at page 126.
  17. UNHCR, “Islam and Refugees” UN High Commissioner’s Dialogue on Protection Challenges. Theme: Faith and Protection English (12–13 December 2012), as cited in Smieszek M. (2021) Rights of Asylum: Overview of International and European Laws Concerning Inclusion and Exclusion. In: The Evolving Psyche of Law in Europe. Springer, Cham. https://doi-org.peacepalace.idm.oclc.org/10.1007/978-3-030-74413-7_2.
  18. a b John Aku Ambi, Appraisal of The Principle of Burden-Sharing in Refugee Protection, NAUJILJ 12(2) 21, <https://www.ajol.info/index.php/naujilj/article/download/215310/203063> (Accessed October 9, 2021), page 18.
  19. Hazal Barbaros, Post Tenebras Lux: The Huguenot Diaspora in Early Modern London and its Reflections in Refugee Wills, Master’s Thesis, August 2021, Department of History, İhsan Doğramacı Bilkent University, Ankara, <http://repository.bilkent.edu.tr/bitstream/handle/11693/76474/10412602.pdf?sequence=1> (Accessed August 28, 2021), page 8 of document.
  20. Albeit she is referring to the related term of “asylum seeker” in this quote. See: Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, ISBN: 9781773634524, page 6.
  21. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 62.
  22. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace and World, 1966), p. 267.
  23. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 29.
  24. Dempsey, Hugh A.. "Blackfoot Confederacy".  The Canadian Encyclopedia, 18 July 2019, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/blackfoot-nation. Accessed 25 October 2021.
  25. Heidenreich, C.E.. "Huron-Wendat".  The Canadian Encyclopedia, 10 October 2018, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/huron. Accessed 01 January 2021.
  26. Peter G. Ramsden and Zach Parrott, "Haudenosaunee (Iroquois)" in The Canadian Encyclopedia, August 28, 2015 <https://thecanadianencyclopedia.ca/en/article/iroquois> (Accessed December 30, 2020).
  27. Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, ISBN: 9781773634524, page 25.
  28. Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, ISBN: 9781773634524, page 23.
  29. Melissa May Ling Chung, The Relationships Between Racialized Immigrants And Indigenous Peoples In Canada: A Literature Review, MA Thesis, 2012 <https://digital.library.ryerson.ca/islandora/object/RULA%3A1429> (Accessed December 30, 2020).
  30. Nestor, Rob, "Pass System in Canada". In The Canadian Encyclopedia. Historica Canada. Article published July 10, 2018; Last Edited July 13, 2018. https://www.thecanadianencyclopedia.ca/en/article/pass-system-in-canada
  31. Joshua Ostroff, How a smallpox epidemic forged modern British Columbia, August 1, 2017, Maclean's, <https://www.macleans.ca/news/canada/how-a-smallpox-epidemic-forged-modern-british-columbia/> (Accessed October 30, 2021).
  32. Lee Sultzman (July 21, 1997). "Abenaki History". Archived from the original on April 11, 2010. Retrieved March 20, 2010.
  33. Report of the Royal Commission on Aboriginal Peoples. Ottawa: The Commission, 1996. Print, at page 132 <http://data2.archives.ca/e/e448/e011188230-01.pdf> (Accessed January 1, 2021).
  34. Emerson Klees. Persons, Places, and Things around the Finger Lakes Region. Rochester, Finger Lakes Publishing, 1994. Page 10.
  35. Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 6.
  36. a b Troper, Harold. "Immigration in Canada".  The Canadian Encyclopedia, 19 September 2017, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/immigration. Accessed 30 December 2020.
  37. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 36.
  38. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 40.
  39. a b Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 42.
  40. a b c d e f g Irving Abella and Petra Molnar, Refugees, The Canadian Encyclopedia, June 21, 2019, <https://www.thecanadianencyclopedia.ca/en/article/refugees> (Accessed May 9, 2020).
  41. a b Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 47.
  42. Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 34-35.
  43. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 45-46.
  44. For a discussion of the universality of such concepts, see: Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 3.
  45. John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 301.
  46. a b Bhatia, Amar. "We Are All Here to Stay? Indigeneity, Migration, and ‘Decolonizing’ the Treaty Right to Be Here." Windsor Yearbook of Access to Justice, vol. 13, no. 2, 2013, p. 61.
  47. Craft, A. 2013. Breathing Life into the Stone Fort Treaty An Anishinabe Understanding of Treaty One. Vancouver, BC: Purich Publishing.
  48. Arima, E.Y., "Nuu-chah-nulth (Nootka)". In The Canadian Encyclopedia. Historica Canada. Article published February 07, 2006; Last Edited November 12, 2018. https://www.thecanadianencyclopedia.ca/en/article/nootka-nuu-chah-nulth
  49. Bon Tempo, Carl J. 2008. Americans at the gate: the United States and refugees during the Cold War. Princeton, N.J.: Princeton University Press. Page 14. This speaks to the US experience, which was similar to the Canadian.
  50. a b c Chetail, V. (2019). International Migration Law. London, England: Oxford University Press, page 39.
  51. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 6 (para. 2).
  52. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 71.
  53. Julia Morris, The Value of Refugees: UNHCR and the Growth of the Global Refugee Industry, Journal of Refugee Studies, 11 January 2021, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa135 at page 5.
  54. Mathilde Crepin, The Notion of Persecution in the 1951 Convention Relating to the Status of Refugees and its Relevance for the Protection Needs of Refugees in the 21st Century, Dissertation, King’s College London, 2019, <https://kclpure.kcl.ac.uk/portal/> (Accessed August 1, 2020), at page 42 of document’s pagination.
  55. Alia Somani, Untangling the Strands of Memory: Historicizing the 1914 Komagata Maru Incident and the Concept of Refugeeness, Chapter 2 in Vinh Nguyen and Thy Phu (eds.), Refugee States: Critical Refugee Studies in Canada, 2021, Toronto: University of Toronto Press, <https://tspace.library.utoronto.ca/bitstream/1807/106645/1/Refugee_States_UTP_9781487541392.pdf> (Accessed July 17, 2021), Page 55.
  56. a b c d e f g h i j k Jan Raska, Canada’s Refugee Determination System, Canadian Museum of Immigration at Pier 21, August 21, 2020, <https://pier21.ca/research/immigration-history/canada-s-refugee-determination-system> (Accessed January 1, 2021).
  57. Emma Borland, Temporal pillars of fairness: reflections on the UK's asylum adjudication regime from an original refugee-centred position, PhD Thesis, 2020, Cardiff University, <https://orca.cardiff.ac.uk/132879/> (Accessed June 30 2021), page 38.
  58. Bernard Cottret, The Huguenots in England: Immigration and Settlement C.1550-1700 (Cambridge University Press 1991) 53.
  59. Laabidi, A and Nacir, R. (2021) Asylum Between Yesterday and Today, A Comparison Between Islamic Law and International Law. Review of International Geographical Education (RIGEO), 11(5), 3602-3611. doi: 10.48047/rigeo.11.05.246, page 3607.
  60. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 103.
  61. Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf?sequence=2> (Accessed July 10, 2021), page 18.
  62. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 34.
  63. Hathaway, James C., 1988. "Selective Concern: An Overview of Refugee Law in Canada", McGill Law Journal 33, no. 4: 676-715, at 679.
  64. Bon Tempo, Carl J. 2008. Americans at the gate: the United States and refugees during the Cold War. Princeton, N.J.: Princeton University Press. Page 15.
  65. a b Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 75.
  66. Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 99.
  67. a b Ninette Kelley and Michael J. Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 75-76.
  68. a b c d e f g h Janet Dench, "A Hundred Years of Immigration to Canada, 1900-1999: A Chronology Focusing on Refugees and Discrimination" (2000), online: Canadian Council for Refugees <https://ccrweb.ca/en/hundred-years-immigration-canada-1900-1999>.
  69. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 35.
  70. Alia Somani, Untangling the Strands of Memory: Historicizing the 1914 Komagata Maru Incident and the Concept of Refugeeness, Chapter 2 in Vinh Nguyen and Thy Phu (eds.), Refugee States: Critical Refugee Studies in Canada, 2021, Toronto: University of Toronto Press, <https://tspace.library.utoronto.ca/bitstream/1807/106645/1/Refugee_States_UTP_9781487541392.pdf> (Accessed July 17, 2021), Page 61.
  71. Dirks, Gerald E.. "Immigration Policy in Canada".  The Canadian Encyclopedia, 23 October 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/immigration-policy. Accessed 30 December 2020. See also the discussion of the act passed in 1885 "to restrict and regulate Chinese immigration" (the head-tax act) in Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 71.
  72. a b George Melnyk and Christina Parker, Finding Refuge in Canada: Narratives of Dislocation, February 2021, Athabasca University Press, ISBN 9781771993029, page 8.
  73. Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. International Migration Review, 28(2), 281–306. https://doi.org/10.1177/019791839402800203 at page 282.
  74. a b c d e f g h i j k l m n CAPIC ACCPI, The History of Canadian Immigration Consulting, Oct. 15 2017, Kindle Edition, North York: ON, ISBN 978-1-7751648-0-0-7.
  75. An Act respecting and restricting Chinese Immigration, SC 1900, c 32, s 6.
  76. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 144.
  77. Martine Valois and Henri Barbeau, The Federal Courts and Immigration and Refugee Law, in Martine Valois, et. al., eds., The Federal Court of Appeal and the Federal Court: 50 Years of History, Toronto: Irwin Law, 2021, at page 297.
  78. Robert J. Shalka, The Resettlement of Displaced Persons in Canada (1947-1952): Lobbying, Humanitarianism, and Enlightened Self-Interest (Part 2), CIHS Bulletin, June 2021, Issue 97, <http://cihs-shic.ca/wp-content/uploads/2021/07/Bulletin-97-June-2021.pdf> (Accessed July 18, 2021), at page 16.
  79. An Act respecting Chinese Immigration, SC 1923, c 38, s 5.
  80. Laura Madokoro, Erasing Exclusion: Adrienne Clarkson and the Promise of the Refugee Experience, Chapter 3 in Vinh Nguyen and Thy Phu (eds.), Refugee States: Critical Refugee Studies in Canada, 2021, Toronto: University of Toronto Press, <https://tspace.library.utoronto.ca/bitstream/1807/106645/1/Refugee_States_UTP_9781487541392.pdf> (Accessed July 17, 2021), Page 72.
  81. Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 329.
  82. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 127.
  83. Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 156-157.
  84. Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf?sequence=2> (Accessed July 10, 2021), page 81.
  85. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 82.
  86. a b Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 111.
  87. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 98.
  88. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 149.
  89. Alia Somani, Untangling the Strands of Memory: Historicizing the 1914 Komagata Maru Incident and the Concept of Refugeeness, Chapter 2 in Vinh Nguyen and Thy Phu (eds.), Refugee States: Critical Refugee Studies in Canada, 2021, Toronto: University of Toronto Press, <https://tspace.library.utoronto.ca/bitstream/1807/106645/1/Refugee_States_UTP_9781487541392.pdf> (Accessed July 17, 2021), Page 56.
  90. George Melnyk and Christina Parker, Finding Refuge in Canada: Narratives of Dislocation, February 2021, Athabasca University Press, ISBN 9781771993029, page 9.
  91. Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf> (Accessed July 10, 2021), page 90.
  92. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 187.
  93. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 145.
  94. a b c d Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, ISBN: 9781773634524, page 88.
  95. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 135.
  96. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 128.
  97. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 254-255.
  98. Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, 2021, ISBN: 9781773634524, page 158.
  99. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, page 36.
  100. Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 19.
  101. a b c Peter Gatrell, Anindita Ghoshal, Katarzyna Nowak & Alex Dowdall (2021) Reckoning with refugeedom: refugee voices in modern history, Social History, 46:1, 70-95, DOI: 10.1080/03071022.2021.1850061 .
  102. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 6 (para. 1).
  103. Julia Morris, The Value of Refugees: UNHCR and the Growth of the Global Refugee Industry, Journal of Refugee Studies, 11 January 2021, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa135 at page 8.
  104. Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 20.
  105. Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. International Migration Review, 28(2), 281–306. https://doi.org/10.1177/019791839402800203 at page 284.
  106. Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf?sequence=2> (Accessed July 10, 2021), pages 21-22.
  107. Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf> (Accessed July 10, 2021), page 89.
  108. Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. International Migration Review, 28(2), 281–306. https://doi.org/10.1177/019791839402800203 at page 281.
  109. Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. International Migration Review, 28(2), 281–306. https://doi.org/10.1177/019791839402800203 at page 290.
  110. a b Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. International Migration Review, 28(2), 281–306. https://doi.org/10.1177/019791839402800203 at page 297.
  111. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 13 (para. 26).
  112. Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. International Migration Review, 28(2), 281–306. https://doi.org/10.1177/019791839402800203 at page 291.
  113. Tamta Zaalishvili, Multifaceted Asylum Triangle: Does Fragmentation of the Right to Asylum and the Non-Refoulement Rule Deters the Functioning of Equitable and Predictable Burden- and Responsibility-Sharing Mechanism on Refugees?, Groningen Journal of International Law, 9(1), 2021, 174–194, <https://doi.org/10.21827/grojil.9.1.174-194>, at page 180.
  114. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 205.
  115. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 204.
  116. a b Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 153.
  117. Julia Morris, The Value of Refugees: UNHCR and the Growth of the Global Refugee Industry, Journal of Refugee Studies, 11 January 2021, https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa135 at page 9.
  118. Rebecca Hamlin, Crossing: How We Label and React to People on the Move, Stanford, CA: Stanford University Press, 2021, ISBN 9781503627888, pages 39-40.
  119. a b Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 248.
  120. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 262.
  121. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 199.
  122. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 269.
  123. a b Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 150.
  124. Ninette Kelley and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 260.
  125. Marlene Epp, “Refugees in Canada: A Brief History,” Immigration And Ethnicity In Canada 35 (2017), <https://cha-shc.ca/_uploads/5c374fb005cf0.pdf> (Accessed May 9, 2020), at 8.
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  127. Pierre-André Thériault, Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System, April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf?sequence=2> (Accessed July 10, 2021), page 84.
  128. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 151.
  129. a b Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 21.
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  131. Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015, March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 157.
  132. Robert J. Shalka, The Resettlement of Displaced Persons in Canada (1947-1952), in Canadian Immigration Historical Society, Bulletin 96, March 2021, <http://cihs-shic.ca/bulletin-96-march-2021/> (Accessed April 17, 2021), page 8.
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  137. Mark Rook, Identifying Better Refugee Policies for an Evolving Crisis, April 21, 2020, University of Pennsylvania Honors Thesis, <https://repository.upenn.edu/cgi/viewcontent.cgi?article=1037&context=ppe_honors> (Accessed May 9, 2020), page 128.
  138. a b Marlene Epp, “Refugees in Canada: A Brief History,” The Canadian Historical Association Immigration And Ethnicity In Canada Series 35 (2017), <https://cha-shc.ca/_uploads/5c374fb005cf0.pdf> (Accessed May 9, 2020), at 10.
  139. a b Shauna Labman, Refugee Protection in Canada: Resettlement's Role, Canadian Diversity Magazine, Volume 17 No. 2 2020, <https://dalspace.library.dal.ca/bitstream/handle/10222/79384/Labman%203C.pdf?sequence=1> (Accessed June 20, 2020), at page 7 of the document.
  140. Andreas Zimmermann (editor), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 45 (para. 14).
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