“The life of the law is experience---not logic”—Oliver Wendell Holmes
“Toute personne qui habite au Canada fait maintenant partie d’un groupe minoritaire.L’uniformite n’est ni souhaitable ni possible dans un pays aussi vaste que le Canada. Il ne serait meme pas possible de definir un type canadien, et encore mois de persuader la plupart des gens de s’y conformer. Une societe qui prenderait pour modele le citoyen moyen engendrerait inevitablement la mediocrite.”—Pierre Elliot Trudeau
Immigration policy in Canada is a complex entity consisting of an interconnected set of guidelines, regulations and actions by government agents. It is often difficult to determine what the main goal of the policy is especially since so much of it is set out of the public eye.
Main Elements of Policy
Three main elements of immigration policy setting stand out.
The first is the flexibility built into the Immigration Act. This is accomplished by defining the Act in very broad terms and in the process assigning extensive powers of control over submissions to Cabinet to be implemented through specific Orders in Council. The latter do not need to be brought before the House for debate, and hence before the public for review.
The second is, using that flexibility, the government has often said one thing and done another when it comes to immigration policy.
The third is an ongoing conflict between short and long term goals of immigration policy. The long term goals focus on demographic impacts of immigration and, in particular, using immigration to generate population growth and accompanying economies of scale. The short term goals involve micro managing the inflow to use it as an element of current labour market policy. This conflict can also be seen as a trade-off between the quantity and the "quality" of the immigration inflow.
These three elements of Canada's immigration policy will emerge repeatedly in the remainder of this report.
Review of Important Dates and Precedents
1910:The Immigration Act of this year gives the Minister and Cabinet virtually unlimited discretionary power to set immigration policies strictly through regulatory process through the use of Orders in Council.(Sec.38)
1913:Minister of Agriculture Clifford Sifton convinces the Borden government to target Ukrainian farmers as the ideal immigrants to settle western Canada. After a tour of Europe when he identified this first target group the “Sifton Plan” became official government policy and Canada introduces its first preferential immigration regulations aimed at non-British citizens.
1919:The revisions to the 1910 Act gives the government the power of inclusion and exclusion based on nationality and race.
1922: The Empire Settlement Act is passed and commits Canada to subsidize travel costs of immigrants willing to settle on farms.
1923:The first formal definition of “preferred and nonpreferred countries” is issued by Order in Council PC 183.
1924:The Three Thousand Family Scheme was introduced which both subsidized fares and provided loans to assist with farm set up costs.This plan financed 7500 new immigrants until its termination in 1929.
1925:Railways Agreement was signed to get around the restrictive 1923 regulations.The Federal Government contracted with the CPR and the CNR to “recruit,transport and place in Canada agricultural families, farm labourers and domestic servants.” These companies searched for immigrants in eastern and central Europe and took a profit,legally,from the sale of steamer and rail tickets sold to these immigrants by their agents. The CPR and the CNR had large landholdings in the west and by the end of the 1920’s 70% of immigrants went west.Two years after the world was officially divided into preferred and non-preferred countries the government was actively recruiting labor from non-preferred central and eastern Europe by using the private sector to carry out the work.An ingenious partnership.
1931:The infamous Order in Council PC 695 is passed by the Bennett government on March 21 that closed the door to most newcomers to Canada after six decades of active recruitment of immigrants. This regulatory instrument was the framework for the mechanism of the “none is too many” policy. Originally conceived as a political response to skyrocketing unemployment due to the depression, it was used by bureaucrats to savagely annul any attempts at humanitarian relief at the height of Nazi power. From 1932 to 1945 Canada took in less Jews than was the one-year quota for German Jews prior to passage of 695. The order stated “…until otherwise ordered, the landing in Canada of immigrants of all classes and occupations is hereby prohibited except as hereinafter provided.” The only exceptions were British and U.S. subjects (with sufficient economic means). This order also specifically excluded members of “any Asiatic race” even those with family in Canada.
1947: MacKenzie King’s famous statement to the House on May 15 wherein even after the Holocaust he states:”With regard to the selection of immigrants much has been said about discrimination. I wish to make it quite clear that Canada is perfectly within her rights in selecting the persons whom we regard as desirable citizens.It is not a ‘fundamental human right’ of any alien to enter Canada. It is a privilege.”And this was his announcement of the resumption of immigration
1947: Despite the above statement,King’s government,issued PC2180 allowing for the admission of Polish war veterans, Dutch farm families and set up the procedures for handling Displaced individuals.
1950:PC 2856 is issued expanding the immigration search across Europe.The first major expansion of immigration parameters since 695.
1952:The reform of the Immigration Act gives the Minister almost total discretionary authority over who would be admitted to Canada, even over the decisions of his officers.This was an evolution of the Sec.38 powers of the 1910 Act.
1956:First wide scale application of emergency procedures in the 1952 Act for the Hungarian refugee crisis.
1959:The first flexing of immigrant political muscle. In March the Diefenbaker government passed Order in Council PC 310 which restricted rights to sponsoring dependants for landed immigrants from Europe. This prompted a strong negative reaction from the immigrant community and 310 was revoked in April.
1962:The Conservative government, curiously, under Minister Ellen Fairclough, passed Order in Council 86 on Jan.18. This order revoked, finally, previous regs giving special status to British and American citizens and also finally lifting the limits on immigrants from Asian countries.Henceforth admission to Canada was to be granted to “…a person who by reason of education,training,skills and other special qualifications is likely to establish himself successfully in Canada and who has the means to support himself until he is established…”
1967:The Liberals bring in the Point System by PC 1616 on October 1. Minister Jack Pickersgill was pleased with the political finesse it took and stated that these provisions were “…the greatest change in immigration policy since Mackenzie King announced the resumptionm of immigration in 1947 and they had gone into effect without approval or even debate in Parliament.” The necessity of “sotto voce” in immigration politics is evident.
1978:April 10 saw a new Immigration Act introduced by the Trudeau government. in which family members and refugees were given top processing priority and Canada was committed to bring in a substantial number of refugees each year---not just in emergency situations.The
legal framework and priorities in this Act set the basis for emergency visas
for Soviet Jews.
1985:Trudeau’s stress on a compassionate and inclusive international immigration policy was a lasting legacy.June of this year saw a position paper of the Mulroney government which demonstrated that economic benefits of increased immigration were really quite limited,but the government would continue to support the “social and humanitarian ideals” that the Government of Canada had committed itself to since 1978. Indeed immigration in the Mulroney years grew from 83,000 in 1985 to 250,000 in 1993.
1991:Introduction in May of a designated occupations list.
1992:new revisions to the Immigration Act.
1994:largest amnesty ever in Canada to meet the plight of Iranians.
1995: First Liberal regulations to the 1993 Act introduced to mandate immigration levels at 1% of the population level.Increased point levels for language skills,education and personal suitability. The first two are increased from 15>20% while the last went from 10>15%. Overriding principle that newcomers “would not add to the burden on social programs.”
Overview and Talking Points for Ministerial Discussions
Any effective advocacy of an initiative must keep in mind the evolution of the main institutions of immigration policy setting and the main trends in the use of those institutions from the political and economic standpoints.This is where the government lives.Our job is to show an understanding of the Minister’s reality, how our request fits into the national experience and underscore the exceptions and exemptions that make our requests acceptable within the institutional,policy and regulatory frameworks.
Perhaps the main defining feature of Canadian immigration policy is flexibility. Starting with the 1910 Act, parliament handed over almost unlimited power to Cabinet to decide who and how many could immigrate to Canada. The 1952 Act which replaced it moved the power further away from parliament to the minister in charge of immigration and the immigration officers. The 1992 Act granted the minister and the department even more power, giving them the ability to set limits on numbers of people entering in sub categories of the inflow: the department could now exclude an applicant even if he or she met all official requirements.
The clearest embodiment of the flexibility is found in the fact that all major features of the immigrant regulation system were set in place by Order in Council rather than being debated in parliament and being made part of the Act. That flexibility served Canada well in instances where quick reactions were called for, such as the Hungarian refugee crisis in 1956,Russian family reunification visas in 1991(limited as they were) and the Iranian amnesty in 1994.
It also meant that on several occasions the government could say one thing but do another for the benefit of humanitarian goals as well as the economic aspects of nation-building.
The decision to divide the world in to preferred and non-preferred countries and to create different admission rules for each was also made at the end of WWI. This division continued until the early 1960's when Canada moved officially to a non-discriminatory policy. One could now see immigration policy as a tool of anti-discriminatory policy as, through the source country distribution of immigrants, the government sends the clear message that individuals from any ethnic background can and do contribute to Canada.
The other main feature of immigration policy that continues to the present is a broad regulatory system set in place in the 1960s. Family and refugee class applicants enter based solely on family ties or refugee status while independent applicants must undergo screening under the point system.
The creation of a separate refugee class was part of a gradual recognition of Canada's international duties toward refugees which now form a part of our immigration policy.
Approaches to the government should be steered to those areas where there is a hook on which to hang a hat in order to underscore, specifically, those times when the Government has shown has shown flexibility not only in humanitarian crises such as Hungary but in general regulatory actions regarding preferred immigrant populations as occurred in the Sifton Plan and the Railroad Agreements.
Most important is the flexibility endowed by the fact that the Immigration Act gives the Department of Citizenship and Immigration very broad powers. Those powers are used through Orders in Council to specify regulations that set out the actual form of immigration policy.
This has meant that immigration policy has not frequently been debated very openly, either in the House of Commons or in public and new immigration initiatives would leave little room to embarrass the government especially in our case where the plan would be spread over five years.
There has been an historic propensity for all Canadian governments,regardless of party to make public statements about the direction of immigration policy and then act in entirely contrary ways either for their own purposes or as a response to special interest groups( i.e.:Farm Policies in the 1920’s;reversal of immigration regulations in the 1960’s as response to immigrant lobbying.)
Throughout Canada's policy history there has been an ongoing battle between those who view immigration primarily as a short term, labour market policy tool and those who believe in its longer term benefits social as well as economic. The current policy appears to have been set by those who hold firmly to a faith in the long term benefits of high levels of immigration. This Minister,particularly after his “LePen” comments at the Alliance and his defense of open borders in a civil society, seems firmly in that camp and that is very much to our advantage.
The essentials in any discussions are the three F’s. Flexibility, fundability and finessibility. Applicant organizations must show that their requests fall within Ministerial regulatory discretion (flexibility); a history of similar special status group funding such as the Three Thousand Family scheme,the Hungarian crisis and the Iranian amnesty(fundability) and that there is a national political consensus that quality immigration is necessary for the growth of the country but with no chance of terrorist importation and that we as Canadians still seek to stretch out a helping hand to people caught in crisis. Communal requests must be phrased within the vocabulary of the national political will if they are to avoid negative political fallout.