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:
(ii) The entrenched agreement can be changed by the consent of the parties expressed through elaborate formalities akin to a constitutional amendment.
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.
4. The principal concerns raised by witnesses at our hearings were as follows:
(2) some witnesses were concerned that any shortfall in Quebec immigration could lead to the imposition of cuts in immigration to other regions of Canada. If true, this could have an adverse effect on people (reunification of families) and on the economy (fewer workers in areas where they are needed).
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,...
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.
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:
95B.(1) Any agreement concluded between Canada and a province in relation to immigration or the temporary admission of aliens into that province has the force of law from the time it is declared to do so in accordance with subsection 95C(I) and shall from that time have effect notwithstanding class 25 section 91 or section 95.
(2) An agreement that has the force of law under subsection (I) shall have effect only so long and so far as it is not repugnant to any provision of an Act of the Parliament of Canada that sets national standards and objectives relating to immigration or aliens, including any provision that establishes general classes of immigrants or relates to levels of immigration for Canada or that prescribes classes of individuals who are inadmissible into Canada.
(3) The Canadian Charter of Rights and Freedoms applies in respect of any agreement that has the force of law under subsection (1) and in respect of anything done by the Parliament or Government of Canada, or the legislature or government of a province, pursuant to any such agreement.
95C.(1) A declaration that an agreement referred to in subsection 95B(1) has the force of law may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of the province that is a party to the agreement.
(2) An amendment to an agreement referred to in subsection 95B(I) may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized:
(a) by resolutions of the Senate and House of Commons and of the legislative assembly of the province that is a party to the agreement; or
(b) in such other manner as is set out in the agreement.
95D. Sections 46 to 48 of the Constitution Act, 1982 apply, with such modification as the circumstances require, in respect of any declaration made pursuant to subsection 95C(1), any amendment to an agreement made pursuant to subsection 95C(2), or any amendment made pursuant to section 95E.
95E. An amendment to sections 95A to 95D or this section may be made in accordance with the procedure set out in subsection 38(1) of the Constitution Act, 1982, but only if the amendment is authorized by resolutions of the legislative assemblies of all the provinces that are, at the time of the amendment, parties to an agreement that has the force of law under subsection 95B(1)."
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.
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:
Quebec is given a leading role with regard to independent immigrants, that is, those selected on the basis of economic and social factors designed to assess their ability to adapt and to contribute to Canada. Article II, A (1)(a) of the Agreement provides that the selection of independent immigrants will be "on a joint and equal basis, according to separate sets of criteria for Canada and for Quebec". Article III, A (2)(b) further provides that "the landing of an independent immigrant requires Quebec's prior agreement". In effect, both parties have a veto. Immigrants not passing Quebec's assessment may not proceed to Quebec (although if they meet Canada's criteria, they could proceed elsewhere if they wish).
Independent immigrants selected by Quebec may still be rejected by federal officials applying the statutory criteria of the Immigration Act, 1976 relating to medical, criminal and security requirements.
Both the Quebec and federal governments have developed a point system which they use to select independent immigrants. Both grids have many of the same features, with points for education, employment, specific vocational preparation and so on. There are, however, several significant differences between the two. As might be expected, the Quebec grid rewards knowledge of French more significantly than knowledge of English. An applicant can receive up to 15 points for French and up to 2 points for English. The Quebec grid awards a potential number of points for adaptability that is more than double that available in the federal system and includes two points for knowledge of Quebec.
The Quebec grid also contains a number of factors not present federally. First Quebec applicants can receive five points for relatives or friends who reside in Quebec in the settlement area (two points if they reside elsewhere in Quebec). Second, spouses can boost an applicant's points--four points each for the ability to speak French fluently and to follow an occupation in Quebec in which there is at least an average demand. Finally, there are points available for families with children under 12 years of age, with a maximum of four points for three children.
Quebec has agreed to receive approximately onethird of Canada's refugee commitment, currently 12,000 refugees selected abroad. The Agreement (Article III, C) states that Convention refugees and those in a "similar situation" (designated classes, special programs) will be selected jointly and that Quebec will contribute to their adaptation to the Quebec environment. In effect, refugees destined to Quebec are selected by Quebec, as are the independent applicants.
(c) Family members
The family class is not "selected" in the sense that independent and refugee applicants are selected. Provided family class applicants can prove the relationship required by the Immigration Act, 1976 (e.g. parent, child under 21, spouse, fiancé(e) and so on) and pass the health, criminal and security checks, their entry is assured. Quebec's role is thus necessarily limited, although its officials often interview applicants and provide counselling. The province does play a role in evaluating sponsors.
In the case of temporary or seasonal workers, the Agreement states that Quebec will express its views on the merits of each offer of employment made by a Quebec employer to foreign workers. In the first instance, the offer to foreign workers may be submitted for approval to either federal or provincial officials. The proposal will be refused if either Quebec or Canada can show that the jobs in question could be filled within Canada. The proposal will likely be approved if no other solution (i.e. training Canadian workers) can be found either by the federal government or Quebec.
(e) Students and teachers
Except for students coming to Quebec under a program of assistance to developing countries, Quebec must approve all student visas. The same rule applies to teachers college and university levels.
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.
Section 95A of the Constitution Amendment, 1987 requires the government of Canada to negotiate for the purpose of concluding an immigration agreement with any province that so requests. It does not compel the parties actually to enter into an agreement. It does not prescribe the terms of any agreement although it is likely that the CullenCouture terms will be the basic model for future agreements. The 1987 Accord above does not force either level of government to make an agreement that the government does not wish to make. If the federal government makes a foolish agreement it can be turned down by the Senate or House of Commons where public pressure may be brought to bear. This represents an improvement over the present process where federalprovincial agreements are frequently entered into as executive acts without any reference to Parliament and without any opportunity for public input.
(b) Constitutional status of immigration agreements
In addition to providing that an immigration agreement has the force of law once declared in accordance with section 95C(l), it is provided in section 95B(l) that an agreement "shall from that time have effect notwithstanding class 25 of section 91 or section 95". These words are included to ensure that an agreement is valid even though the agreement allows the province to operate in an area in which Parliament has exclusive legislative authority, that is to say, the temporary admission of aliens. It also means that Parliament could not use its paramount legislative authority over immigration to override unilaterally a federalprovincial, agreement once entered into, except on the basis of "national standards an objectives relating to immigration or aliens", over which Parliament does retain complete and unfettered legislative authority.
This is made clear by subsection 95B(2) which provides, in effect, that an agreement remains in force "only so long and so far as it is not repugnant to any provision of an Act of the Parliament of Canada that sets national standards and objectives relating to immigration or aliens".
The dividing line between "national standards and objectives", which Parliament may alter without provincial consent, and other terms of the Agreement which cannot be altered without compliance with the special amending procedure, is not entirely clear.
Some indication of what is encompassed in the term "national standards and objectives" may be found in the new section 95B(2) proposed by the 1987 Accord, which specifically refers to "any provision that establishes general classes of immigrants or relates to levels of immigration for Canada or that prescribes classes of individuals who are inadmissible into Canada". Examples of the areas where Parliament retains its paramount authority may also be found in section 3 of the Immigration Act, 1976, which lists the "objectives" of present Canadian immigration policy as follows:
"(a) to support the attainment of such demographic goals as may be established by the Government of Canada from time to time in respect of the size, rate of growth, structure and geographic distribution of the Canadian population;
(b) to enrich and strengthen the cultural and social fabric of Canada, taking into account the federal and bilingual character of Canada;
(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;
(d) to encourage and facilitate the adaptation of persons who have been granted admission as permanent residents to Canadian society by promoting cooperation between the Government of Canada and other levels of government and non-government agencies in Canada with respect thereto;
(e) to facilitate the entry of visitors into Canada for the purpose of fostering trade and commerce, tourism, cultural and scientific activities and international understanding;
(f) to ensure that any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate on grounds of race, national or ethnic origin, colour, religion or sex;
(g) to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;
(h) to foster the development of a strong and viable economy and the prosperity of all regions in Canada;
(i) to maintain and protect the health, safety and good order of Canadian society; and
(j) to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity."
The variety of matters that could be characterized as "national standards and objectives" thus appears to be sufficiently broad to assure a continuation of federal leadership in matters affecting immigration and the temporary admission of aliens provided, of course, Parliament chooses to exercise its legislative authority in this respect.
(c) Immigration agreements and the Charter
Of particular importance is section 95B(3), which expressly states that the Canadian Charter of Rights and Freedoms applies to an agreement having the force of law and to anything done by the Parliament or government of Canada, or the legislature or government of a province, pursuant to any such immigration agreement.
A major practical effect of this provision is to assure the rights of immigrants in any part of Canada to move to any other part of Canada. Subsection (3) brings in its train section 6 of the Charter, which, among other things, gives every person lawfully resident in Canada the right "to move to and take up residence in any province" and "to pursue the gaining of a livelihood in any province", subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
Subsection 95B(3) not only guarantees mobility rights but also guarantees the exercise of other rights and freedoms such as freedom of religion, freedom of conscience and the legal rights guaranteed by sections 7 to 15 of the Charter, subject as well to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
(d) Sections 4648 of the Constitution Act, 1982
Given the proposed constitutional status of immigration agreements, it is in our view appropriate that the adoption of amendments should be subject to procedural restrictions analogous to those that apply to amendments to the Constitution of Canada itself.
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.
William F. Maton