It was one of the earliest and most consequential Charter decisions by the Supreme Court, one that created Canada’s modern asylum-claim system – and laid down a path for snowballing backlogs that threaten to break that system.
In 1985, the top court ruled in Singh v. Minister of Employment and Immigration that refugee claimants already in Canada were entitled to the protections of the then three-year-old Charter of Rights and Freedoms, including a “full oral hearing.”
That put a stop to the practice of decisions based on written submissions and led to the creation of the Immigration and Refugee Board of Canada in 1989. Even while the IRB was still being set up, there were growing backlogs of refugee cases, hitting 85,000 as the board began operating.
On the Brink
This is part of a series on the continuing challenges facing Canada’s immigration system.
Overview: Our pillars of immigration are crumbling
Labour: Focus on the workers and skills we need the most
Border: Ottawa must change old thinking about a new frontier
Enforcement: Incentives to follow the rules are not enough
Flash forward to October, 2024, when the backlog of refugee claimants surged to 260,142, nearly double that of October, 2023 – itself twice as high as October, 2022. Each one of those claimants is entitled to an oral hearing, courtesy of the 39-year-old Singh ruling. (That is not the case with refugees not in Canada, who must be referred for a claim to be heard at all.)
At the current rate that cases are being processed, it would take the IRB close to three years to clear the backlog – if no new claims were made. But the volume of refugee claims is in fact surging. With two months still to be accounted for, the number of refugee claims made this year is nearly triple the level of 2022, part of a long-term trend stretching back to the Liberals’ arrival in office in 2015.
The increased movement of migrants worldwide is at work, but the backlog in Canada’s refugee-claims system is undoubtedly a factor. Anyone acting in bad faith can count on years of residence in Canada before having to prove their case. Once they make their claim, the queue grows – as does the motivation for someone else to make a dubious claim.
Unsurprisingly, the number of claims abandoned or withdrawn before being heard has surged in recent years, accounting for a larger proportion of a much bigger cohort. In 2015, only 5.5 per cent of cases were scrapped before the IRB could make a determination. So far in 2024, 21 per cent of cases have been abandoned or withdrawn by claimants.
Without a radically revised approach, the backlog is certain to grow. And that is not even considering the possibility of hundreds of thousands of migrants in the United States heading north to Canada rather than risking deportation under the incoming Trump administration.
More spending is likely unavoidable. But any new outlays should be time-limited and accompanied by an aggressive schedule for reducing the backlog.
More cash alone won’t be enough. The IRB has already ramped up staffing in recent years, rising to 2,579 people in 2024 from 954 in 2015. More cases are being finalized. For the first 10 months of the year, the IRB has made decisions in 41,755 cases, more than triple its tally for all of 2015.
But the number of new cases is still outrunning the IRB’s capacity. More of the same will not fix the backlog; new thinking is needed.
Part of that new thinking must be abandoning the rigid rule that cases are heard in the order in which they are filed. That first-in-first-out approach combined with the soaring volumes creates the incentive for false claims. Much better, then, to hear new claims first and reduce that incentive.
Similarly, the conceit that the IRB must hear all refugee claims needs to end. Claims cannot be ignored, of course. But Robert Vineberg, a former director general of Citizenship and Immigration Canada, has made the eminently sensible suggestion that the Department of Immigration, Refugees and Citizenship should first examine cases, approving those claims that are clearly genuine. Only those that were borderline or headed for rejection would proceed on to the IRB.
That would fulfill the obligations laid down in the Singh judgment, since any rejected claimant would have the benefit of an oral hearing. And no claimant would protest about an expedited approval.
Ottawa must act to reduce the claims backlog before today’s crisis becomes tomorrow’s collapse. Otherwise, a future government may find its only option is the even more radical step of using the notwithstanding clause to suspend the effects of the Singh ruling. That would be a stunning epitaph for the Liberals’ mismanagement of the immigration system.
Podcast: A new diagnosis for immigration
How can Canada reach a better balance on immigration, housing and the labour market? Editorials editor Patrick Brethour spoke with The Decibel about the issues explored in this series. Subscribe for more episodes.