Canadian Immigration Law in the Face of a Volatile Politics
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Dalhousie Law Journal Volume 42 Issue 1 42:1 (2019) Special Issue: Immigration Article 1 Law 4-1-2019 Canadian Immigration Law in the Face of a Volatile Politics Colin Grey Queen’s University Faculty of Law Constance MacIntosh Schulich School of Law, Dalhousie University Sarah Marsden Thompson Rivers University Faculty of Law Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/dlj Part of the Immigration Law Commons This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation Colin Grey, Constance MacIntosh & Sarah Marsden, “Canadian Immigration Law in the Face of a Volatile Politics” (2019) 42:1 DLJ i. This Foreword is brought to you for free and open access by the Journals at Schulich Law Scholars. It has been accepted for inclusion in Dalhousie Law Journal by an authorized editor of Schulich Law Scholars. For more information, please contact [email protected]. Canadian Immigration Law in the Face of a Volatile Politics By Colin Grey,* Constance MacIntosh** and Sarah Marsden*** The genesis of this special issue was a conference of Canadian immigration law scholars at the Université du Québec à Montréal in March 2018. Conference participants sought to look back on the many changes made to Canadian immigration law during the near-decade the Stephen Harper-led Conservative government spent in power (2006–2015). Although the Conservatives did not introduce a single, revamped immigration law— the major legislation remains the Immigration and Refugee Protection Act, brought in under the Jean Chrétien-led Liberals (1992–2006) in 2002—they altered parts of the law nearly beyond recognition. In this introduction, we reÀ ect brieÀ y on these changes; on what has come after, under Justin Trudeau’s Liberal government (2015–), which has employed a more welcoming rhetoric yet left most of its predecessor’s amendments in place; and on what may lie ahead as we approach a federal election in which immigration again promises to be an important issue. Why, at a conference of legal scholars, the results of which are now published in a law journal, did we consider it apt to frame our discussion around the political parties that happen to hold power? Our answer is that it is nearly impossible to examine immigration law meaningfully without focusing on how the politics of immigration have changed and are changing, in Canada and globally. As those who teach and practice it are aware, immigration law evolves continuously; there is no such thing as an up-to-date syllabus. But the politics shift rapidly, too. And the political transformations shape the legal ones, and vice-versa. Thus, our opening premise is that to understand the law, you have to understand the politics. As will be evident throughout this special issue, a focus on both immigration law and politics allows us to do more than critique the decisions of a particular government: it makes visible the ways in which deeper dynamics between immigration law and politics persist even as governments change. * Assistant Professor, Queen’s University Faculty of Law. ** Viscount Bennett Professor of Law, Schulich School of Law, Dalhousie University. *** Associate Professor, Thompson Rivers University Faculty of Law. 1. SC 2001, c 27 [IRPA]. 2. As Ratna Omidvar has written elsewhere: “The immigration system has undergone a small revo- lution. The name, the Immigration and Refugee Protection Act, is merely the skin of an old system. Inside is a very different beast”: Ratna Omidvar, “The Harper InÀ uence on Immigration” in Jennifer Ditchburn & Graham Fox, eds, The Harper Factor: Assessing a Prime Minister’s Policy Legacy (Mon- treal: McGill-Queen’s University Press, 2016) at 179. i It is not fruitful either to focus on the rhetoric of closure and fear of the Harper-led Conservatives or the rhetoric of openness and optimism of the Trudeau-led Liberals. Indeed, neither tells the whole story of either government. It is plausible to claim, as Donald Galloway writes in this issue, that Conservative immigration policies bore the imprint of “xenophobic ideologies which may, in turn, have been fertilized autopoetically by government laws and policies.”3 But it is also plausible to claim that “for the most part, it is remarkable and laudable that the outlook of Harper’s Conservative Party remained liberal and pro-immigrant in a growing global anti-immigrant environment.”4 After all, the Conservatives increased immigration numbers, continued to endorse multiculturalism, and assiduously courted suburban voters belonging to immigrant and minority communities as part of an “ethnic strategy” to target new Canadians whom they believed shared conservative values.5 Similarly, it is obvious that the new Liberal government is “more temperate in its language.”6 Yet it is also possible to criticize this government for leaving in place or merely tweaking many of the changes installed by its predecessor—including some of the most controversial—and for perpetuating the underlying structural dynamics that all too often render non-citizens vulnerable to oppression and unfreedom. It is true that the Conservative government distinguished itself by going much further down certain policy roads.7 The Conservative era brought a marked rise in temporary migration, both relative to permanent migration and in absolute terms.8 Immigration policy underwent signi¿ cant decentralization, devolving selection power to the provinces, territories or 3. Donald Galloway, “Immigration, Xenophobia, and Equality Rights” (2019) 42:1 Dal LJ 17 at 22. 4. Omidvar, VXSUD note 2 at 182. We refrain from evaluating the relative plausibility of these claims. Other attempts at evaluating the legacy of the Harper Conservatives in immigration include: Peter J Carver, “A Failed Discourse of Distrust Amid Signi¿ cant Procedural Change: The Harper Government’s Legacy in Immigration and Refugee Law” (2016) 21:2 Rev Const Stud 209; Erin Tolley, “Political Players or Partisan Pawns? Immigrants, Minorities, and Conservatives in Canada” in JP Lewis & Joanna Everitt, 7KH%OXHSULQW&RQVHUYDWLYH3DUWLHVDQG7KHLU,PSDFWRQ&DQDGLDQ3ROLWLFV (Toronto: University of Toronto Press, 2017) 102 at 112-16. As Paquet and Larios write, “Immigration policy changes implemented under this government have been hard to characterize because they moved in several directions—both restrictive and liberalizing—and used different discourses as justi¿ cations, from the idea of the economic contribution of immigrants to the trope of the “bogus” refugee claimant.” (see Mireille Paquet & Lindsay Larios, “Venue Shopping and Legitimacy: Making Sense of Harper’s Immigration Record” (2018) 51:4 Can J Political Science 817). 5. Tolley, VXSUD note 4 at 112-116. See also Omidvar, VXSUD note 2. 6. Galloway, VXSUD note 3 at footnote 17. 7. Good overviews of the Conservatives’ immigration reforms include: Naomi Alboim & Karen Kohl, “Shaping the Future: Canada’s Rapidly Changing Immigration Policies” (October 2012), online (pdf): 0D\WUHH)RXQGDWLRQmaytree.com/wp-content/uploads/shaping-the-future.pdf> [perma.cc/H6N9- R67Y]; Lotf Ali Jan Ali, “Welcome to Canada? A Critical Review and Assessment of Canada’s Fast- Changing Immigration Policies,” (2014) RCIS Working Paper No 2014/6, online (pdf): 5\HUVRQ&HQWUH IRU,PPLJUDWLRQDQG6HWWOHPHQW<www.ryerson.ca/content/dam/rcis/documents/RCIS_WP_Ali_Final. pdf> [perma.cc/66E8-66HL]. 8. As Sarah Marsden notes in this issue. See also Alboim & Cohl, VXSUD note 7, at 45-53; Ali, VXSUD note 7, at 9-14. LL to private actors.9 The Conservatives radically transformed both the system for hearing refugee protection claims in Canada,10 as well as the system for selecting economic immigrants, culminating in a new “Express Entry” system that includes a step in which applicants are selected by computer algorithm based on a regularly updated new “Comprehensive Ranking System.”11 They expanded the grounds for losing citizenship and raised the bar for acquiring it.12 Finally, as several authors in this special issue note, in selling this agenda the Conservatives often employed a vocabulary of suspicion toward refugee claimants as well as toward citizens to whom they seemed to impute dual loyalties. This manifested itself during the 2015 federal election, during which the Conservatives pledged to ban face coverings during citizenship ceremonies, a measure seen as targeting Muslim women, and to create a tip line for people to report “barbaric cultural practices.”13 It also seems to be the case that the Liberals won in 2015 in part by capitalizing on the perception that the Conservatives had become excessively restrictive and, in particular, anti-Islamic in a way that enough Canadians saw as contrary to their values, as well as inhumane in the face of the surge in the numbers of refugees worldwide, particularly those from Syria.14 At the same time, however, many of the trends in law and policy that scholars and activists found noteworthy or troubling in the Conservative approach to immigration had begun under the Chrétien Liberals and have 9. Alboim & Cohl, supra note 7 at 14-19; Ali, supra note 7 at 9; Sasha Baglay, “Provincial Nominee Programs: A Note on Policy Implications and Future Research Directions” (2012) 13:1 J Intl Migration & Integration 121. 10. Most notably in the Balanced Refugee Reform Act, SC 2010, c 8 [BRRA] and the Protecting Canada’s Immigration System Act, SC 2012, c 17 [PCISA]. This aspect of the Conservatives’ im- migration policy reforms has garnered the most attention. In addition to the papers by Hilary Evans Cameron and Hélène Mayrand in this issue, see Emily Bates & Jennifer Bond, “Troubling Signs: Mapping Access to Justice in Canada’s Refugee System Reform” (2015) 47:1 Ottawa L Rev 1; Angus Grant & Sean Rehaag, “Unappealing: An Assessment of the Limits on Appeal Rights in Canada’s New Refugee Determination System” (2016) 49:1 UBC L Rev 203; Idil Atak, Graham Hudson & Delphine Nakache, “’Making Canada’s Refugee System Faster and Fairer’: Reviewing the Stated Goals and Un- intended Consequences of the 2012 Reform” (2017) CARFMS/ACERMF Working Paper No.