Extracts from a speech delivered by Mr. Raph Girard
At the conference of the Association of Canadian Studies
October 2, 2023
Canada has a well-established record of aid and advocacy internationally on behalf of refugees but the activities most visible to the public are those related to immigration. In my remarks, I will try to trace how refugee policy in the immigration sphere evolved. It began to take shape as a distinct policy immediately after World War II but I would argue that the seminal period for a modern resettlement and asylum policy at the federal level was set in the 1970s and 1980s.
During the Green Paper exercise of 1973 to 1975, which provided for broad based consultations with Canadians on what an immigration program should contain, asylum was dismissed as largely irrelevant to Canada’s role in the world, while resettlement of refugees selected abroad was affirmed to be the flagship. The Minister of the day was later quoted to have said,
” Canada has been, and I hope it will continue to be for the long term , a country with a special compassion and receptivity to genuine refugees from around the world”
The context is which he spoke was exclusively that of resettlement
From Confederation onward through the prewar period, many groups of people who today would be considered refugees, had been resettled in Canada but the initiative was usually external. There was a network of immigration agents in Europe both official and private promoting settlement on the land in Canada but they were not specifically looking for people who we would now consider refugees.
The government either through official agents or as a political decision in Ottawa concurred or declined to approve individual petitions from various sources to resettle groups of displaced or persecuted peoples. The final decision on who could come into Canada was made on a case-by-case basis at ports of entry. Canada had embarked on an enterprise of population building through immigration and to the extent these people fitted that objective, they were welcomed and assisted to settle
The legislation was pitched to describe who should not be allow to settle in Canada than who should. There was no reference to refugees in a series of Immigration Acts or Regulations.
The operational profile changed in the immediate postwar period while the legislative base remained unchanged. The first initiative Canada took to reach out specifically to refugees outside the country took place shortly after World War II in 1946 when Prime Minister Mackenzie King stated in a speech that Canada had a moral obligation to help settle refugees in Europe displaced by World War II.
Visa officers were immediately sent abroad to camps in Germany, Italy and Austria to select refugees that were part of a resettlement effort coordinated by the newly established UNHCR and the IRO. By 1952, this program brought more than 180,000 refugees to Canada.
Policy focussed on providing skills for the rapidly industrializing Canadian economy. Groups who should receive priority consideration were established by Order in Council. This policy was communicated to Visa Officers in the field through administrative instructions. After 1952, with the closure of refugee camps in western Europe, the policy was amended to include recent escapees from Soviet Bloc countries, evolving into what became known as the Ongoing Program for Eastern Europeans.
This became the core activity for refugee resettlement until the Cold War ended with the fall of the Berlin Wall in 1989. Once again, the policy was established by Order in Council which approved a definition of who would be eligible as follows:
- as a result of events arising after World War Two, was displaced from one European country to another and has not been permanently resettled: or
- because of fear of persecution on religious, racial, or political grounds, left one of the Soviet-Bloc countries since the International Refugee Organization terminated its activities on December 31,1951, and has not been permanently resettled.
Resettlement policy was reviewed in Cabinet along with Canada’s accession to the 1951 Convention in 1969. It resulted in the adoption of the 1951 Convention definition for eligibility for resettlement but more importantly it added provisions for people who were internally displaced or members of oppressed minorities who would not meet the strict application of the 1951 Convention definition.
This enabled the admission of refugees and oppressed minorities from anywhere in the world but did not contain any guidance as to whom or how many should the opportunity to settle in Canada be extended. Thereafter, the core resettlement activity for escapees from the Soviet bloc was punctuated by episodes, responding to international crises requiring the resettlement of people such as the Ugandan Asians, Chileans, Tibetans, Salvadorans and Indochinese.
The legislation that emerged from the Green Paper consultation, Immigration Act 1976, defined the classes of immigrants who could be selected for permanent residence in Canada – a provision previous Acts had allowed to be determined administratively and through regulation.
It created a distinct class for selection of refugees and extended the definition by giving the governor in Council authority to designate other classes in need of resettlement. In recognition of the historic involvement of religious groups and secular non governmental agencies, it enabled regulations to be established governing private sponsorship of refugees and members of designated classes.
But, again, there was no overarching principle as to who should be brought to Canada in what numbers and from where.
What induced policy makers to more formally address the question of refugee resettlement policy beyond simply responding to periodic appeals from the UNHCR, was precipitated by provisions in Immigration Act 1976 that required the government to formulate an annual plan for immigration levels including a component dedicated to refugees. This forced the government to plan its resettlement activities ahead and therefore required a framework for rational choice among burgeoning numbers of refugees in the world.
The keystone was the UNHCR’s hierarchy of durable solutions for refugees: firstly, repatriation in safety; secondly, resettlement sur place, and lastly, resettlement in a third country.
The dialogue with the UNHCR about resettlement priorities through the late 1970s and early 80s which was a part of the policy formulation process initially elicited a very tepid response. The UNHCR itself had very little regard for resettlement, often characterizing it as a fig leaf used by immigration countries to mask their disinterest in protection of asylum seekers.
Nevertheless, the policy settled on giving priority in the annual plan to refugees for whom the other durable solutions were not available, typified by such groups as the Vietnamese boat people, refugee women at risk, Karen refugees from Burma, to name only a few.
As often as not both the general public and often some Ministers think that a proper response to all natural and man-made disasters is to offer resettlement to the victims. However, considering that there are very few countries willing and able to offer resettlement places to any number of refugees on a continuing basis, choices have to be made.
Realistically, resettlement will be available to only a small percentage of the refugees in the world. It is critical therefore that decisions on who and how many from among refugee populations around the world will be resettled must be taken carefully and deliberately.
Turning to asylum policy, despite the fact that the Canadian delegation chaired the conference that led to the creation of the 1951 Convention, Canada declined to accede when it was opened for ratification in 1954. The primary obligation of signatory countries in Article 33 of the Convention, unless they specifically registered adherence to a broader definition, was to protect persons whose claims to refugee status derived from events in Europe prior to January 1, 1951. What is described as the non-refoulement principle, prohibits the forced return of people to a country where they could demonstrate a well founded fear of persecution based on one more of the five factors in the 1951 Convention definition.
Canada’s reluctance to sign was due to what I believe was a misunderstanding over constraints on dealing with threats to national security. The government claimed however that it complied with Convention obligation by imposing an administrative ban on deportations to countries behind the Iron Curtain revealing that it viewed asylum issues strictly through the lens of the non refoulement obligation. The protection of refugees brought to Canada from abroad would continue to be effected through the grant of permanent residence and eventual naturalisation.
When in 1967 the New York protocol eliminated the geographic limitations on eligibility by broadening coverage of the Convention to anyone who met the 1951 definition, the Canadian government passed the Immigration Appeal Board Act which among other things enabled individuals facing removal from Canada to advance a claim to refugee status. One can conclude from these decisions that on the issue of asylum policy, Canada took a minimalist position by accepting only the obligation to avoid refoulement of Convention Refugees but nothing more. Canada still had not acceded to the Convention and protocol.
While the government, was evidently comfortable in its resettlement policy to extend the definition of refugee status to cover needy populations that might not meet the technical definition of refugee status, its acceptance of the obligation in asylum policy to refrain from refoulement was anchored strictly in the more narrow definition of refugee status as originally struck in 1951.
When Cabinet finally authorized accession to the Convention and Protocol in 1969, it approved the formation of an ad hoc committee of officials with a mandate to advise the Minister of Immigration on the validity of claims to refugee status advanced by people identified in an Immigration Inquiry as not having a right to remain in Canada. This was a device used to prevent Convention Refugees from being ordered deported and to keep manifestly meritorious cases away from the Immigration Appeal Board which remained the only statutorily authorized body to hear a claim to refugee status.
The committee was later given statutory standing as the Refugee Status Advisory Committee (RSAC), in the 1976 Act and was made independent from the department by Lloyd Axworthy in 1982. But its function did not change and claimants failed by the RSAC remained eligible to have the refusal reconsidered by the Immigration Appeal Board
Cabinet had to address asylum policy anew in the wake of the 1985 Supreme Court decision in the case of Satnam Singh. Writing for the majority, Mme Justice Bertha Wilson found that neither the RSAC nor the Immigration Appeal Board processes for dealing with refugee claims fulfilled the right to due process of law guaranteed to all persons in Canada by the Bill of Rights and the Charter of Human Rights and Freedoms. This led to two pieces of legislation, Bill C 55 and Bill C 84 which among other things created an independent tribunal, the IRB, to provide for oral hearings of refugee claims. The legislation also accorded the right to apply for permanent residence to those whose claims were ultimately determined to be well founded by the IRB.
The legislation also authorized denial of access to the claims system to those persons attempting to enter Canada from listed signatory countries deemed safe for refugee claimants – the safe third country principle. While article 31 of the Convention is generally regarded as constraining signatories from invoking immigration sanctions against Convention Refugees, there is no obstacle to removal of Convention Refugees not lawfully on their territory to a country that does not threaten them with persecution providing they can be admitted to that country. This principle has been deemed compliant with the obligations of signatory countries by the UNHCR and the application of it in Canada has been upheld by the Supreme Court.
Members of the Interchurch Committee for Convention Refugees, the Table de Concertation and the Immigration Bar had lobbied hard in pursuit of a more open system available to anyone who wanted to claim refugee status that would operate independently from the removal process. They also argued for the removal of controls such as visa requirements and fines on transportation companies that brought people to Canada without appropriate entry documents because this prevented some asylum seekers from travelling to our border. But after protracted consideration of the alternatives, the Cabinet settled on a process that would only be open to those who could demonstrate a prima facie need for Canada’s protection – those for whom Canada is their only means of attaining protection from refoulement.
Despite these efforts to buffer the refugee determination system from an excess of claims and the use of methods to fast track meritorious claimants though the system, the IRB has never been able to keep pace with demand on its capacity. The search for a fair system that renders decisions promptly and efficiently and is immune from abuse by individuals looking to game the system for purposes other than international protection continues.