THE Komagata Maru incident highlights one of the most discriminatory laws in Canadian history. Yet, society has changed in the past century since the ship came to Vancouver. Immigration today is diverse, with immigrants coming from around the world. In the past three decades, immigration has shifted from a Eurocentric to a pan-Asian focus. This is a reflection of changes in the world economy and the structures of government. Aging populations in the so-called developed world, with extensive social support for their residents, no longer seek migration as much as a means to improve their quality of life.

While Canada has changed in the past century, immigration policy has not changed in many ways. Part of the underlying conflict that gave rise to the continuous journey rule was labour competition. Employers sought cheaper labour for various industries, which was filled with immigrants from China, Japan and India. Local unions complained about the loss of work for existing workers. The same conflict has been playing out in the past eight years with the increasing use of the temporary foreign worker program, to allow employers to hire foreign workers. Labour groups complain about wage stagnation, as employers can maintain lower wages due to an accessible pool of workers willing to work at lower rates.

A century ago immigrants coming to Canada faced a relatively quick and cursory examination at a port of entry for admission to permanently live here. There was no pre-screening by way of obtaining a permanent resident visa before travelling to Canada. Immigrants did not provide criminal record checks nor were checked for security reasons. There were no forms to fill out. A quick medical examination at the port of entry determined if persons were “mentally defective,” diseased or “physically defective;” making the persons prohibited from entering Canada.

Under other powers, rules were passed to require immigrants to possess certain amounts of money and to restrict immigrants of specified classes, occupations or character. The government set a higher amount of money required for Asian immigrants. When the Komagata Maru landed, an additional rule has been passed to prohibit the landing of skilled or unskilled labourers through British Columbia ports.

Similar rules continue to exist under current immigration law. Selection rules are inherently discriminatory. Since 1966, in one form or another, selection criteria have included occupational and educational factors. The list of qualified occupations has changed numerous times since then, depending on current economic needs. The foreign skilled worker program is limited to applicants in 24 specific occupations, or those with approved arranged employed or Canadian PhD graduates.

Modern selection rules have generally required an applicant to have the ability to communicate in English or French. The rule is relatively more discriminatory against nationals from non-English and French-speaking countries. These requirements are fundamentally no different than the attempts by the BC government to pass immigration rules in 1908 that imposed an educational test, which was used to prevent the immigration of some Indian immigrants arriving on the SS Monteagle.

Financial requirements are still imposed on some classes of immigrants. Federal skilled worker applicants must have in their possession unencumbered funds amounting to half the minimum income needed for the applicant and their family members. For a single applicant that amounts to about $12,000, about 60 times the amount required by an Asian immigrant in 1914. This inherently discriminates against a larger percentage of the populations in certain countries whose average family incomes are lower. Similar requirements are imposed under some BC provincial nominees.

The continuous journey rule was inherently discriminatory as it was used specifically to prevent migration from India. It could have been used to prevent migration from many other countries that did not have direct transportation connections with Canada. Since 1966, Canada has created immigration policy tied to the economic interests of the country. Selection criteria has adapted to changing economic needs, to attract immigrants who are able to become economically established. The current government has tightened rules to further limit migration of family members and other classes, who are not specifically judged on their ability to become economically established.

Overt discrimination expressly based on race, nationality, ethnicity or religion no longer exists under the immigration laws. However, selection rules still create inherent discrimination against certain nationalities, whose citizens do not generally meet the selection criteria. That discrimination is tolerated, as educational, occupation and linguistic abilities are not an extrinsic part of one’s race or ethnicity. Most persons have the potential to improve their education, or gain an occupation or language skill. I expect Canada will continue to apply immigration selection criteria achieve its economic goals; to attract immigrants who will contribute to the economy and help maintain the social support structure that has developed in the past 70 years.

BY WILLIAM MACINTOSH
William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com