CHAPTER X

Immigration

The Proposal

1. The 1987 Accord contains a procedure by which constitutional status can be conferred upon certain federal­provincial agreements related to immigration and the temporary admission of aliens. Once a federal­provincial agreement, freely entered into, is blessed by a Proclamation issued by the Governor General under the Great Seal of Canada authorized by resolutions of both the Senate and the House of Commons and the provincial legislature, both levels of government will be firmly bound by the terms they have agreed to except in two circumstances:

2. Pending adoption of the proposed constitutional amendments, Quebec and Canada will continue to cooperate in immigration matters under the terms of the Cullen-Couture Agreement of March 30, 1979, as hereafter described. In the meantime, however, the political Accord, which is not part of the constitutional amendment itself provides, that the government of Canada will conclude an agreement with the government of Quebec that will

guarantee that Quebec will receive a number of immigrants, including refugees, within the annual total established by the federal government for all of Canada proportionate to its share of the population of Quebec, with a right to exceed that figure by five per cent for demographic reasons.

provide an undertaking by Canada to withdraw services (except citizenship services) for the reception and integration (including linguistic and cultural) of all foreign nationals wishing to settle in Quebec where services are to be provided by Quebec, with such withdrawal to be accompanied by reasonable compensation,

and the Government of Canada and the Government of Quebec will take the necessary steps to give the agreement the force of law under the proposed amendment relating to such agreements.

Any such new agreement will come into effect, we are told, only if the constitutional amendments are made and the new agreement is approved by the Senate and House Commons (and the Quebec Legislative Assembly) and entrenched under the formula.

3. The 1987 Constitutional Accord, in paragraph 3, provides that the Accord should not be construed so as to prevent the negotiation of similar agreements with other provinces.

The Policy Considerations

4. The principal concerns raised by witnesses at our hearings were as follows:

5. With respect to the argument about regional "loyalties" at the expense of national patriotism, the Joint Committee notes that, since 1971 the government of Quebec and the government of Canada have operated under three comprehensive agreements dealing with the issue of immigration--the Lang­Cloutier Agreement in 1971, the Andras­Bienvenue Agreement in 1975 and, effective March 30, 1979, the Cullen-Couture Agreement referred to in the 1987 Constitutional Accord. The purpose of these agreements is to lay down the basis for cooperation in all areas relating to immigration and, in particular, to enable Quebec and Canada to participate jointly in the selection of persons who wish to settle permanently or temporarily in the province of Quebec.

6. Other provinces have made similar agreements with the federal government including Newfoundland (1979), Nova Scotia (1978), Prince Edward Island (1978) New Brunswick (1978), Saskatchewan (1978) and Alberta (1985). These agreements are all authorized by section 109(2) of the federal Immigration Act, 1976, which provides that "the Minister, with the approval of the Governor in Council, may enter into an agreement with any province or group of provinces for the purpose facilitating the formulation, coordination and implementation of immigration policies and programs".

7. The clear objective of the constitutional amendment so far as Quebec is concerned was to ensure that any immigration agreement made with the federal government would not be overridden by the exercise of Parliament's paramount legislative power except with respect to "national standards and objectives". Any abuse of the pre administrative arrangements with respect to immigration, as feared by some critics, would likely have surfaced before now in our opinion. The only change brought about by the amendment would be that the agreements become "more" unbreakable. The actual contents of the agreements will be placed before the Senate and House of Commons for their review and approval.

8. In the event that the Senate and House of Commons are not satisfied with the provisions of a new agreement, they will have an opportunity to say so, and if they think fit, to refuse to approve the agreement.

9. Much of the concern expressed by witnesses about the allocation of new immigrants to Quebec, and the potential difficulties that could be created if Quebec did not in fact attract the number of immigrants it seeks, appears to have been created by the text of the Accord and in particular the underlined words:

guarantee that Quebec will receive a number of immigrants, including refugees, within the annual total established by the federal government for all of Canada proportionate to its share of the population of Canada, with the right to exceed that figure by five per cent for demographic reasons,...
(Emphasis added)

10. Witnesses questioned how such a "guarantee" could be given to Quebec in light of the fact that Quebec has not achieved even its present immigration quota in recent years. Moreover, the clause does not say that Quebec "is entitled to receive" that number of immigrants. It says Quebec "will receive" that number of immigrants. And further, if Quebec is to be guaranteed its proportionate share of immigrants plus another 5 per cent of the national quota, what will that do to agreements with other provinces? They are entitled to negotiate similar agreements. Will this result in Canada having to accept 150 per cent of the immigration quota? Obviously not. What will happen to the proportion of immigrants allocated to other provinces if Quebec does not satisfy its quota? Will the other provinces have to cut back on their allocation to stay in line with any shortfall experienced by Quebec?

11. These provisions caused particular concern among some witnesses from western Canada who anticipated that operation of these agreements could impede the free flow of immigration to the western provinces and thereby slow western economic development.

12. Most of these concerns seem to result from the curious (and inappropriate) language used in the political Accord quoted above in paragraph 9. The controversial language is not repeated in the Constitutional Amendment, 1987 itself. The quoted language thus has no "constitutional" status.

13. As already pointed out, any new agreement between the government of Canada and the government of a province must be approved federally by the House of Commons and the Senate and provincially by the legislative assembly of the province in question. Thus, the House and the Senate will have an opportunity to scrutinize any provisions about numbers and guarantees and cut backs in immigration to other provinces before the agreements acquire constitutional status. At that time important policy issues, such as those described above, can be addressed.

14. Moreover, as discussed below, the Canadian Charter of Rights and Freedoms is expressly made applicable to federal­provincial agreements on immigration and temporary admission of aliens, including its mobility rights provisions. Accordingly, regardless of the original point of settlement, new immigrants to Canada are guaranteed the right to migrate within the country to the areas where they see the greatest economic opportunity. We are told that more than a third of immigrants to Quebec in recent years have in fact decided to migrate to other parts of Canada and, of course, there is nothing in any of the federal­provincial agreements on immigration to prevent this.

15. The same analysis should dispose of another concern raised at the hearings, namely, that a shortfall of immigrants to Quebec could lead to obstacles to family reunification for immigrants settled elsewhere in Canada. The perceived danger only arises if immigration allocations to regions outside Quebec are liable to be cut if Quebec immigration does not materialize in the expected numbers. We understand that this will not happen. Quebec is to receive an annual allocation, as will other provinces. If Quebec does not achieve its quota other provinces will not have their quotas cut back. They are entitled to rely on the quota originally allocated.

16. It is only fair to point out that despite the existence of the Cullen­Couture Agreement and other provincial agreements that have been in operation for many years, and despite the consistent shortfall in immigration to Quebec, the concerns discussed above do not seem to have arisen. There is no reason to believe that giving a new constitutional status to such agreements by itself would create any new administrative problems. The controversy about this section appears to be a false alarm.

Constitutional Background

17. Section 95 of the Constitution Act, 1867 gives the federal government and the provinces concurrent legislative powers over immigration. The provinces are limited in that any laws that they may pass must not be "repugnant to any Act of the Parliament of Canada". Quebec is the only province that has exercised this constitutional power, and has established its own Ministry to deal with immigration matters.

18. Reference must also be made to section 91(25) of the Constitution Act, 1867. This provision states that Parliament shall have exclusive legislative authority over "Naturalization and Aliens". This power, unlike the power in respect of immigration, is not a shared power; only Parliament may enact laws relating to matters of naturalization and aliens.

19. The actual text of the proposed new constitutional jurisdiction in relation to agreements on immigration and the admission of aliens reads as follows:

20. For purposes of this Report it is not necessary to review in detail the intended working of these sections. Clearly, what is intended is to continue in effect the cooperative arrangements of the Cullen­Couture Agreement or such different arrangements as may be agreed upon by the respective governments and approved by the Senate and the House of Commons and the Quebec National Assembly.

The Cullen­Couture Agreement

21. In order to evaluate the 1987 constitutional proposal it may be useful to set out what areas of immigration policy are already covered by the Cullen­Couture Agreement, dated March 30, 1979.

22. The Agreement establishes a Joint Committee of federal and Quebec immigration officials to provide a forum to develop cooperative policies on such matters as immigration objectives (economic, demographic and sociocultural), immigration levels, processing priorities, information exchange, and requirements for sponsors (Article II, 3).

23. The Cullen­Couture Agreement provides detailed criteria for the following five categories of persons seeking admission to Canada:

Effect of Constitutional Entrenchment

24. The provision of the Constitution Amendment, 1987 can be divided into four different categories. First, proposed section 95A requires the government of Canada to negotiate an agreement relating to "immigration or the temporary admission of aliens" to a province if the province so requests. Second, section 95B deals with the constitutional status of an agreement that has been declared in accordance with the procedure under section 95C. Third, section 95C describes the process for a declaration respecting an agreement as well as the procedure for amending an agreement. Fourth, sections 95D and 95E deal with procedures to amend the federal­provincial agreements thus entered into.

Conclusion

25. While these provisions represent an important new step in federal­provincial cooperation in immigration (a field that is already one of concurrent jurisdiction), they excited little comment at our hearings.

26. Because the proposed amendments relate to the legal status of immigration agreements rather than their content, it is important to keep in mind that the actual terms will be reviewed by the Senate and House of Commons before any such agreement acquires constitutional immunity under the proposed amendments. Parliament, in the exercise of its legislative powers in relation to immigration and the admission of aliens, will continue to be able to override any such agreements that have not received the appropriate approvals and therefore have not acquired constitutional status.

27. We are also reassured by the fact that similar agreements (lacking any constitutional status) have been in operation since 1971 and no serious adverse effects have been brought to our attention. Even under the proposed new regime, Parliament would retain its paramount authority to fix "national standards and objectives". The Charter is expressly made applicable to immigration agreements.

28. For these reasons we believe that the immigration provisions of the 1987 Accord represent a reasonable and workable solution to Quebec's demand for greater control in immigration matters as a condition of giving its willing assent to the Constitution.


Last HTML revision: 12 May, 1996

William F. Maton