100 Years Later, What has Changed? / by Sean Rehaag

In 1914, over 300 passengers from India onboard the Komagata Maru were refused landing in Canada. After a standoff, the ship returned to India, where many of the passengers were imprisoned — and some even killed by British Raj forces. These forces viewed the passengers as dangerous political agitators seeking the independence of India from British rule.

Passengers on Board Komagata Maru.jpeg

Canadian immigration officials ostensibly turned away the passengers because the ship did not make a continuous journey directly from the country of citizenship of those on board, as required by Canadian immigration regulations. The actual reason, however, was racism. The continuous journey requirement was applied selectively, with the goal of restricting immigration from India. As Justice McPhillips put it in the BC Court of Appeal case involving the Komagata Maru: 

Our fellow British subjects of the Asiatic race are of different racial instincts to those of the European race - and consistent therewith, their family life, rules of society and laws are of a very different character - in their own interests, their proper place of residence is within the confines of their respective countries in the continent of Asia, not in Canada, where their customs are not in vogue and their adhesion to them here only give rise to disturbances destructive to the well-being of society and against the maintenance of peace, order and good government... Better that peoples of non-assimilative - and by nature properly non-assimilative - race should not come to Canada, but rather, that they should remain of residence in their country of origin and there do their share, as they have in the past, in the preservation and development of the Empire.

The 100th anniversary of the Komagata Maru incident offers an occasion to think about how things have changed. Refugee law is one framework for thinking through this question, especially because Canadian law did not include any provisions for the protection of refugees in 1914.

First, the good news.

In 1969, Canada signed on to the 1951 Convention relating to the Status of Refugees, which means that Canada agrees to refrain from returning refugees to countries where they face persecution on account of their race, religion, nationality, political opinion or membership in a particular group. A few years later, in 1976, Canada established a refugee determination system to implement the Refugee Convention. Then, in 1985, the Supreme Court of Canada held in Singh v. Minister of Employment and Immigration that refugee claimants physically present in the country are entitled to constitutional rights, including the right to access a refugee determination system that complies with the principles of fundamental justice. This holding led to a revised refugee determination system with enhanced procedural protections, including access to an oral hearing and the right to reasons for refusals of refugee protection so as to facilitate judicial oversight. By the 1990s, Canada's refugee determination system was widely regarded as among the more progressive systems in the world.

Now for the bad news.

Although refugee claimants who make it to Canada are entitled to many important rights, the government still does everything it can to prevent their arrival. The main tool used to this end is to impose visa requirements on nationals of countries that generate significant numbers of refugee claimants — and to refuse visas to those who are likely to make refugee claims. 

It would, however, violate the Refugee Convention if Canada imposed penalties on refugees who manage to get to the country without holding visas, so the government has turned to two other techniques to enforce visa requirements.

The first technique is to intercept asylum seekers at points of departure or points of transit. For example, Canada deploys Migration Integrity Officers to assist airline staff abroad in screening passenger travel documents prior to allowing passengers to board flights to Canada. Canadian officials also work with foreign enforcement agencies in transit countries to prevent the departure of unauthorized boats with asylum seekers destined for Canada.

The second technique is to impose penalties on those who provide asylum seekers with transportation. For example, transportation companies are fined $3,200 for each person they bring to the country without valid visas, even where the passengers transported obtain refugee protection. More seriously, if transportation companies or their staff know that their passengers do not have the requisite visas but they provide transportation anyway, they can be charged with human smuggling. In instances involving groups of 10 persons or more, these charges carry a maximum penalty of life in prison, and, once again, there is no exception if those transported obtain refugee protection.

And that’s not the end of the bad news.

Recent changes to Canadian immigration law go even further. Rather than just penalizing those who bring refugees to the country, the new provisions also penalize the refugees themselves, which, as already noted, violates the Refugee Convention. Under these changes, if a group arrives in Canada without valid visas, they can be designated as irregular arrivals. The consequences of designation include:

  • mandatory detention with limited opportunities for review;
  • no access to an administrative appeal at the Immigration and Refugee Board for negative refugee decisions;
  • no right to an automatic stay on removal pending judicial review of negative refugee decisions, meaning that refugee claimants can be deported while the Federal Court is still considering the legality of a negative refugee decision;
  • no access to permanent residence for a period of at least five years after refugee protection has been granted, during which time they cannot sponsor family members for immigration. 

So, how would things be different if the Komagata Maru were to show up on Canadian shores today? 

Well, the passengers could make refugee claims, and they’d have a fairly strong case that they meet the refugee definition because they faced persecution on account of political opinions imputed to them by the British Raj. Moreover, the passengers would be entitled to constitutional due process protections in the consideration of their refugee claims. That means, for example, that if an immigration official, a refugee adjudicator, or a judge were to display the kind of explicit racism shown by Justice McPhillips in the passage quoted above, courts would not hesitate to overturn their decisions.

But the Komagata Maru passengers would only be able to access these rights if they actually reached Canada. That would be unlikely because of all the barriers Canada places in their way. Moreover, if they did manage to get to Canada, they could be subject to penalties, such as mandatory detention and limits on access to permanent residence. Meanwhile, the owners and crew of the ship would likely face large fines and lengthy jail time. 

Taken together, 100 years after Canada turned away the Komagata Maru, many things have changed for the better — and these positive developments should be celebrated. However, at the end of the day, Canada still tries to deter the arrival of asylum seekers like those on board the Komagata Maru. That leads me to wonder, 100 years from now, what will people think about Canada’s current exclusionary policies towards refugees? 

Sean Rehaag is a professor at Osgoode Hall Law School, where he specializes in immigration and refugee law.