The debate on immigration resumed with force at the start of the school year this year. This time, the focus is finally on the harmful effects of the uncontrolled growth of temporary immigration on the economy, housing and access to public services. The debate is no longer limited to the question of permanent immigration, which is less relevant in the current context.
What can our government do to control the pace of arrivals of asylum seekers, foreign students and temporary foreign workers?
The sharing of immigration responsibilities between the Canadian and Quebec governments was established in 1991 with the signing of the Canada-Quebec Accord relating to immigration and the temporary admission of aliens, signed in the wake of the Accord du Meech Lake of which it was to be an extension. The agreement on immigration was to concretize the notion of a distinct society accepted by the federal government of Brian Mulroney. In 1991, the objective of both parties was to recognize Quebec’s control over all immigration on its territory, including temporary workers, with the sole exception of asylum seekers.
Quebec can control the admitted number of foreign students by giving its consent by means of a certificate of acceptance for studies. It is different for work permits, which have seen a considerable increase since Justin Trudeau came to power.
There are two federal programs today that result in a temporary work permit. One is subject to the 1991 Accord and the need for Quebec’s consent by means of a certificate of acceptance for temporary work: the Temporary Foreign Worker Program (the TFWP, 57,000 permits in the first 11 months of 2023). The other, less known but more important, the International Mobility Program (the PMI, 69,000 permits in the same period), is a gaping hole in the Agreement and entirely escapes the control of Quebec.
The fact that workers admitted to the PMI escape Quebec’s consent results from an unduly narrow interpretation of the Agreement, a quasi-constitutional document which deserves an interpretation according to the usual rules of constitutional law. It is well known that the Constitution must be interpreted according to the theory of the living tree, which allows the scope of the 1991 Agreement to be extended to current conditions. The Agreement reflects the immigration system in place at the time, when permanent immigration (people arriving with permanent resident status) was the norm, and temporary immigration was marginal and truly temporary.
In the last decade, this approach has completely changed. The PMI was created unilaterally by Ottawa in 2014 from the PTET, which was the only one to exist in 1991. The PMI allows, after a few years, access to permanent residence and citizenship. This is how Ottawa circumvents the agreement on immigration. Extending the scope of the latter to the PMI would respect the obvious intention of its authors, as recalled in 2021 in the pages of Duty André Burelle, former federal negotiator and constitutional advisor to the Prime Minister of Canada.
Quebec’s control over the volumes and selection of all of its immigration is essential for at least two reasons: to demonstrate to the host population that there is sound Quebec management of the file, an important factor in social cohesion , and to ensure the successful reception and integration of all people arriving in Quebec. The Accord allows the Government of Quebec to use it according to the imperative needs of Quebec society.
If the federal government is unwilling to listen to reason, there are other legal means to resolve this major problem. Immigration is a shared legislative jurisdiction under the Constitutional Act of 1867. Quebec has its own independent jurisdiction in this area. It can legislate to subject the PMI to a certificate of acceptance from Quebec issued under its own conditions. This would not contradict federal jurisdiction since it would be possible to obey both laws simultaneously.
Such a law may invoke article 1 of Bill 99, the Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the State of Quebec, which affirms Quebec’s right to self-determination, internal or external. This law, which is underused, was validated by the Quebec Court of Appeal in 2021 in a judgment that the Attorney General of Canada wisely chose not to bring before the Supreme Court.
It is high time that Quebec fully occupies the field of autonomy assigned to it by the Canadian Constitution. Immigration represents the future of Quebec. Welcoming people who arrive here and integrating them well into the evolution of this unique society whose culture is expressed in French is the responsibility of the Quebec state. The Canadian Constitution and the Canada-Quebec Accord recognize this. Let the government take responsibility for it.