Immigration and refugee protection act : balancing individual rights and national security

Abstract

Early in 2001 the federal government tabled Bill C-11, the Immigration and Refugee Protection Act (IRPA), new comprehensive legislation intended to overhaul Canada’s immigration laws. By this time, refugees had become singled out above other classes of immigrants as a threat to Canadian national security because a backlog of applicants had permitted thousands of failed refugee claimants to remain in Canada and allowed a small number of undesirable individuals to commit serious crimes and to plan and support terrorist activities. This led to public concern that refugees were a potential threat to public safety, national security, and even Canada-US relations. As a result, there were calls for Canada to tighten up its refugee system by adopting a more restrictive adjudication process for refugee claims. At the same time, there were calls for Canada to maintain a fair and open refugee system. This thesis uses discussions from parliamentary committees, an ethical analysis of the right of liberal states to exert sovereignty at the expense of their obligation to protect refugees, and key provisions in both the 1976 Immigration Acts and IRPA, to compare how the two important public goods discussed above, the rights of refugees and the need to protect national security, were balanced in the IRPA. Three major research questions guide this analysis: What provided the impetus for extra legal and security provisions in the IRPA related to refugees? Did amendments in the IRPA constitute a fundamental change to Canada’s refugee determination system? Did the IRPA strike a right balance between safeguarding the rights of refugees and safeguarding national security? These questions represent key elements of the refugee/ security nexus, a problem that the IRPA was designed to address. My thesis finds that for the most part the IRPA provided a balanced legislative response to this problem and that it protected the rights of refugees and moderately enhanced provisions related to public safety and national security, although for the latter it did not constitute a marked improvement, nor for the former did it address the outstanding issue of security certificates. But these two deficiencies in the IRPA serve to highlight the inherent tension Canada has had enacting security measures while maintaining fundamental rights for refugees in a changing geo-political environment.