Authored by Yoann Axel Emian, Canadian immigration lawyer.
Human mobility is constant, driven by opportunity, protection, and increasingly environmental factors. Cross-border movement does not automatically trigger public international law, as States retain control over entry through domestic law. While States may impose conditions on admission and stay, this discretion is limited by universal human rights, including non-discrimination, prohibition of inhuman treatment, and respect for family life.
The focus is not the existence of international law in immigration, but its role in interpreting the Immigration and Refugee Protection Act. In Canada, international law informs interpretation, but it does not control it. Tribunals, including the Immigration and Refugee Board of Canada, apply the modern method of interpretation, reading the words of an Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Within this framework, international law is part of the legal context, but remains only one interpretive factor.
A central principle is the presumption that legislation conforms to international law, including both binding obligations and underlying values and principles. Where multiple interpretations are available, the one consistent with those obligations and principles should be preferred. This approach was affirmed by the Supreme Court of Canada in R. v. Hape, 2007 SCC 26, and B010 v. Canada (Citizenship and Immigration), 2015 SCC 58.
This presumption is particularly relevant where legislation implements international obligations, as international instruments may clarify Parliament’s intent in enacting provisions of the Immigration and Refugee Protection Act. However, it is not absolute. International law remains one factor among others. Where the text, scheme, object, and legislative intent point clearly in another direction, its interpretive weight is limited. The same applies to international law values and principles, whether customary or treaty based. Even without incorporation, treaties may inform interpretation, but this remains a rebuttable presumption. Where Parliament has clearly chosen otherwise, tribunals must give effect to that choice.
This framework explains the structure of the Immigration and Refugee Protection Act, particularly section 3, which reflects Parliament’s intent to align the Act with Canada’s international obligations without subordinating domestic law to international norms.
Section 3 of the Immigration and Refugee Protection Act
Subsection 3(2) of the Immigration and Refugee Protection Act states that one of the objectives of the Act is to fulfill Canada’s international obligations toward refugees and displaced persons and to affirm its role in resettlement efforts. At the same time, it reflects concerns of security and international justice through the exclusion of serious criminals and threats to security. This confirms that the Act does not adopt a purely humanitarian approach. Rather, it reflects the balance embedded in the Convention relating to the Status of Refugees, between protection and State control over admission. This understanding was affirmed by the Supreme Court of Canada in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, adopting the reasoning in R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport, [2004] UKHL 55.
Paragraph 3(3)(f) of the Immigration and Refugee Protection Act requires that the Act be interpreted consistently with international human rights instruments signed by Canada. However, this does not incorporate those instruments into domestic law, nor does it give them priority over the Act. If Parliament had intended such priority, it would have stated so explicitly. This reinforces the central thesis that international law informs interpretation but does not displace legislative choice.
This limit is clearly illustrated in de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, where the Federal Court of Appeal held that paragraph 3(3)(f) does not incorporate international norms into Canadian law. The Court relied on paragraph 97(1)(a) of the Immigration and Refugee Protection Act, which defines torture by reference to Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That explicit reference would have been unnecessary if international instruments already had overriding force. The provision instead demonstrates selective incorporation, not general supremacy.
At the same time, paragraph 3(3)(f) expands the presumption of conformity by including international human rights instruments signed by Canada, even if not yet ratified. In de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, the Court confirmed that the Act may be interpreted consistently with such instruments, including the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. This confirms that international law may shape interpretation even before becoming formally binding.
This interpretive openness is significant. It shows that the category of relevant instruments is defined by substance, not formal status. The Convention relating to the Status of Refugees therefore qualifies as a human rights instrument because it is grounded in the right to seek and enjoy asylum. In some cases, such instruments may be determinative in interpreting the Act, absent contrary legislative intent. However, paragraph 3(3)(f) requires conformity at the level of the statutory scheme as a whole, not in each provision taken in isolation. Again, international law informs but does not control.
Direct incorporation of international conventions
The Immigration and Refugee Protection Act also demonstrates that Parliament does not rely solely on interpretive presumptions. In several provisions, it directly incorporates elements of international conventions into domestic law.
Subsection 25(1.3) limits the factors considered in humanitarian and compassionate applications by excluding those used to establish refugee status under the Convention relating to the Status of Refugees, while section 31.1 restricts the application of Article 28 of that Convention for designated foreign nationals.
Similarly, subsection 83(1.1) excludes evidence obtained through cruel, inhuman, or degrading treatment as defined in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Sections 95 and 96 define refugee status by reference to the Convention relating to the Status of Refugees, and subsection 97(1) adopts the definition of torture from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Act also incorporates exclusion mechanisms derived from international law. Section 98, paragraph 112(2)(b.1), subsection 112(3), and subparagraph 113(e)(ii) apply the exclusion clauses found in sections E and F of Article 1 of the Convention relating to the Status of Refugees. Subsection 102(1) and subsection 102(2) link the designation of countries to compliance with Article 33 of that Convention and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Subsection 105(3) connects an order under section 15 of the Extradition Act to exclusion under section F of Article 1 of the Convention relating to the Status of Refugees.
Even where incorporation is indirect, international law remains central. Paragraph 35(1)(c) allows inadmissibility based on measures adopted by international organizations, including sanctions such as travel bans by the United Nations Security Council.
These provisions demonstrate that Parliament incorporates international law selectively and precisely. Interpretation therefore requires first understanding the relevant international instruments before applying them within the domestic framework.
Interpreting incorporated international norms
Where the Immigration and Refugee Protection Act incorporates treaty provisions, interpretation follows a structured two-step approach.
The first step is to determine the meaning of the relevant treaty provision using articles 31 and 32 of the Vienna Convention on the Law of Treaties. A treaty must be interpreted in good faith, according to the ordinary meaning of its terms, in their context, and in light of its object and purpose. Context includes the text, preamble, annexes, and related agreements, with supplementary means such as preparatory work used where necessary.
This framework applies directly to the Convention relating to the Status of Refugees. The ordinary meaning of its terms must always be understood in light of its broader purpose. In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 1222, the Supreme Court of Canada held that interpretation begins with identifying the object of the Convention as a whole. That object, reflected in its preamble, is the protection of fundamental human rights.
Only after determining the meaning of the treaty does the interpreter move to the second step, which is interpreting the corresponding provision in the Immigration and Refugee Protection Act. At this stage, the domestic legal context becomes relevant, including the structure of the Act and, where applicable, the Canadian Charter of Rights and Freedoms.
The process may also involve reference to international interpretive materials, such as the Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees published by the Office of the United Nations High Commissioner for Refugees. Courts have recognized that such materials form part of the interpretive context and may assist in clarifying the meaning of treaty-based provisions.
Conclusion
The interpretation of the Immigration and Refugee Protection Act reflects a consistent structure. International law plays an important role, but it does not override domestic legislation. It informs interpretation through presumptions, contextual analysis, and selective incorporation, while leaving ultimate authority to Parliament.
The Act therefore operates at the intersection of domestic law and international obligations. Its interpretation requires a careful integration of both, where international law guides the analysis but does not displace legislative intent.
