Postscript – Selective Concern: An Overview of Refugee Law
in Canada
James C. Hathaway*
This is a postscript to J.C. Hathaway, “Se-
lected Concern: An Overview of Refugee
Law in Canada” (1988) 33 McGill L.J. 676.
Since that article was prepared for publica-
tion, the Canadian Senate presented studies
recommending changes to Bills C-84 and C-
55. Both those recommendations as well as
the final legislation enacted in the fall of 1988
are addressed by Professor Hathaway.
La pr~sente note est un supplment A J.C.
Hathaway, << Selected Concern: An Over-
view of Refugee Law in Canada)> (1988) 33
R.D. McGill 676. Depuis la redaction de cet
article, le S~nat a recommand6 des amen-
dements aux projets de loi C-84 et C-55. Ces
recommandations ainsi que la loi finalement
sanctionn~e A l’automne 1988 font l’objet de
la pr~sente 6tude.
From late 1987 until the summer of 1988, there was something of a
tug-of-war between the Senate and the House of Commons over the sub-
stance of the Government’s proposed refugee law reform. The Senate’s
Standing Committee on Legal and Constitutional Affairs heard testimony
from many Canadians concerned that Bills C-84 and C-55 were designed
to do more than preserve the integrity of the inland determination system.
Witnesses argued that the true intention of the proposed legislation was to
discourage refugee claimants from seeking protection in Canada and that it
would contravene domestic and international law. The Senate was per-
suaded to push for important changes to both bills, and the government,
in turn, eventually yielded some ground in order to secure the Senate’s assent
to passage of the legislation. Although the final amendments failed to dis-
mantle the strong enforcement orientation of the bills, they did attenuate
the extent of the protectionist victory.
Under the House of Commons’ version of Bill C-84, the Minister of
Immigration was to have been given the power to interdict ships at sea, and
to turn away vessels carrying undocumented aliens, without inquiring into
any claims to refugee status.I The Senate rejected this principle in its entirety,
Associate Professor of Law, Osgoode Hall Law School of York University, Toronto.
“Where the Minister believes on reasonable grounds that a vehicle … is bringing any person
into Canada in contravention of this Act or the regulations, the Minister may, after having
due regard to the safety of the vehicle and its passengers, direct the vehicle to leave or not to
enter the internal waters of Canada … and any such direction may be enforced by such force
as is reasonable in the circumstances.” Bill C-84, An Act to amend the Immigration Act, 1976
and the Criminal Code in consequence thereof, 2d Sess., 33d Par., 1986-87, as passed by the
House of Commons, at s.8.
1989]
REFUGEE LAW IN CANADA
and determined instead that unauthorized ships should be apprehended and
taken to a Canadian port. Once there, the owners and crew could be pros-
ecuted for violation of Canadian law, while any claims to refugee status
made by passengers would be examined on their merits.2 Under the com-
promise legislation ultimately enacted, the Minister retains the authority to
direct ships suspected of transporting refugee claimants to Canada not to
enter Canadian waters, but only in cases where the vessel can safely return
to another state that agrees to protect the refugees from persecution. 3 Most
important, the authority to interdict ships at sea is made an explicitly interim
power, and will lapse six months after the new refugee determination system
comes into operation. 4
Changes were also made to the “safe third country” access test. Under
the safe country principle as proposed by the House of Commons, refugees
arriving in Canada could have been excluded from the determination pro-
cedure and summarily expelled if they failed to come directly to Canada
from their state of origin. 5 Refugees arriving from a country judged by the
federal cabinet to respect the basic prohibition on the refoulement of refugees
would have been refused entry, whatever the concerns a particular individual
may have had about the true extent of protection available in the inter-
mediate state.
2″The Committee has … concluded that ships should not be turned around at sea but should
be brought to port … The best deterrence for organizers of irregular boat arrivals is swift and
sure punishment. The only appropriate treatment for passengers who claim to be refugees is
speedy and just processing according to the laws which apply to all refugee claimants, whether
they arrive by air, land or sea.” Standing Senate Committee on Legal and Constitutional Affairs,
Report on Bill C-84, 2d Sess., 33d Parl., 1986-87, at para. 47.
3″The Minister may make a direction [for a ship not to enter Canadian waters] where the
Minister is satisfied that (a) the vehicle can return to its port of embarkation without endan-
gering the lives of its passengers; (b) all passengers who seek Convention refugee status and
are nationals or citizens of the country where the vehicle embarked them have been removed
from the vehicle and brought into Canada; (c) the country where the vehicle embarked its
passengers is a signatory to the Convention and complies with Article 33 thereof; and (d) the
country would allow the passengers to return to that country or to have the merits of their
claims to Convention refugee status determined therein.” An Act to amend the Immigration
Act, 1976 and the Criminal Code in consequence thereof, S.C. 1988, c. 36, s. 8(1) [adding
s. 91.1(1.1) to the Immigration Act, 1976, S.C. 1976-77, c. 52].
4lbid., s. 8(2). The new determination system began operation on 1 January 1989, the result
of which is the lapse of the interdiction power as of 1 July 1989.
5″A person who claims to be a Convention refugee is not eligible to have the claim determined
by the Refugee Division if… (b) the claimant came to Canada from a country that has been
prescribed as a safe third country…. Bill C-55, An Act to amend the Immigration Act, 1976
and to amend other Acts in consequence thereof, 2d Sess., 33d Parl., 1986-87, as passed by the
House of Commons, at s. 15 [purporting to add s. 48.1(1)(b) to the Immigration Act, 1976,
supra, note 3].
McGILL LAW JOURNAL
[Vol. 34
The Senate elected not to challenge the safe third country concept, but
did limit its application to persons who would actually be allowed to return
to the intermediate country, or who would at least be allowed to have their
refugee claims decided on the merits in the intermediate state.6 Moreover,
the Senate recognized that cabinet authority to draft the safe country list
would move refugee protection issues into “the political arena”7 , and pro-
posed instead that it be compiled by the more expert Chairman of the
Immigration and Refugee Board. The legislation as finally enacted retains
the right of cabinet to draft the “safe country” list, but adopts the spirit of
the Senate’s concern to safeguard the rights of individuals by providing that
refugees can be returned to a safe intermediate state only if that state’s “laws
or practices” establish that they would be “allowed to return” to that country,
or alternatively “would have the right to have the merits of their claims
determined in that country”. 8 The amendment seems to contemplate the
possibility that evidence may be adduced at the access hearing on the impact
of the intermediate country’s laws and practices on the refugee claimant and
persons similarly situated. The meaning that will be given to the phrases
“ability ‘to return”‘ and “to have ‘the merits’ of one’s refugee claim deter-
mined” is unclear. This may pose serious protection problems unless it is
established that “return” implies a right to remain and enjoy basic human
rights, and that a determination of a refugee claim on the merits requires
access to a full and fair hearing on the substance of the claimant’s fear of
persecution.
Other important concerns remain as well. The government’s power to
prosecute Canadians who help refugees enter Canada in order to claim
protection was enacted,9 Senate efforts to the contrary notwithstanding. 10
Judicial review of a negative refugee determination is no longer available
as of right, but is now subject to a leave requirement, generally without the
opportunity of personal appearance.” Harsh provisions on detention and
an overly broad power to define and exclude “security risks” are further
evidence of the strong tendency to curtail Canada’s provision of asylum to
persons at risk. In tandem with the ongoing policy of imposing visa controls
6Standing Senate Committee on Legal and Constitutional Affairs, Report on Bill C-55, 2d
Sess., 33d Par]., 1986-87, at 5-7.
71bid. at 8.
sAn Act to amend the Immigration Act, 1976 and to amend other Acts in consequence thereof,
S.C. 1988, c. 35, s. 14 [adding s. 48.01(l)(b)(ii) to the Immigration Act, 1976, supra note 3].
9An Act to amend the Immigration Act, 1976 and the Criminal Code in consequence thereof,
supra, note 8, s. 19 [adding s. 83.1(1) and (3) to the Immigration Act, 1976, supra, note 3].
supra, note 3, s. 9 [adding s. 95.1 to the Immigration Act, 1976, supra, note 3].
m0″The law should apply only to those who encourage people to come to Canada and make
refugee claims knowing that the individuals in question have spurious cases.” Standing Senate
Committee on Legal and Constitutional Affairs, supra, note 3, at para. 52.
1’An Act to amend the Immigration Act, 1976 and to amend otherActs in consequence thereof,
1989]
REFUGEE LAW IN CANADA
357
on refugee-producing countries and stiff penalties for transportation com-
panies that fail to enforce those restrictions on their passengers, the net
result will clearly be a reduction in the number of refugees admitted to
Canada through the inland determination process.
Legal challenges to the refugee law reform on these and other grounds
have already been commenced. The government’s refusal to accede to the
Senate’s well-informed counsel, and to pursue instead a decidedly restric-
tionist refugee policy threatens both the safety of persons in flight from
persecution and the ability of the new determination procedures to with-
stand constitutional scrutiny. The steadfast commitment of the government
to the interposition of political and administrative discretion in what should
be a human rights-based protection system confirms once more the selec-
tivity of Canada’s concern for refugees.
