December 2017

On November 7^th, 2017, Norma Lee MacLeod, the host of CBC Maritime Noon, invited myself, along with York University professor Felipe Montoya, to discuss the medical inadmissibility provision in the Immigration Refugee Protection Act. I spent countless hours preparing, so that I would be ready for any question that might be posed.  In my research, I discovered that truth is stranger than fiction.

What is medical inadmissibility?

All foreign nationals applying to come to Canada as permanent residents, as well as their family members, must undergo a medical examination by a designated medical practitioner. The purpose of the medical exam is to determine whether the person seeking admission to Canada poses a danger to public health and safety, or has a health condition that will impose excessive demand on Canadian health and social services. Communicable diseases such as active tuberculosis, untreated syphilis and uncontrolled mental health conditions exclude individuals because they pose a danger to public health and safety.  Excessive demand is used as a catch-all provision, and causes individuals with HIV, Down Syndrome, Cerebral Palsy, and who are deaf or blind to be ineligible for immigration to Canada. This is because the government assumes that individuals with these conditions will place excessive demands on social services, such as special education and health services. 

Applicants are provided with the opportunity to submit a Mitigation Plan outlining how they will alleviate the burden on social and health services, either through personal financial means or the family’s willingness and ability to contribute time and resources to support the individual. Immigration officers are tasked with assessing the feasibility of the plan, and rendering a final decision on medical inadmissibility. This decision is subjective. It can also lead to catastrophic consequences, as all family members will be excluded if one individual is medically inadmissible.

Professor Felipe Montoya himself experienced the effect of the excessive demand provision when he filed a permanent residence application. The application was rejected because his son, Nicolas, has Down Syndrome. The immigration officer found Nicolas medically inadmissible and by extension, his family was also inadmissible to Canada. It was believed that Nicolas would place an excessive burden on Canadian social and health services. Felipe and his family had to leave Canada, but the Minister of Immigration intervened and overturned the decision based on humanitarian and compassionate grounds.  

Is the provision out of step with Canadian law and values?

Canada has had a ‘medical inadmissibility’ provision for as long as it has had immigration legislation. The 1869 Immigration Act classified people with disabilities as “the defective class”. This included "the deaf and dumb, the blind, the lunatic, the idiotic and the infirmed".

In 2001, the Canadian government introduced the current format of the excessive demand provision. Most individuals are shocked to learn that no court has found a violation of Section 15 of the Canadian Charter of Rights and Freedom. Section 15 guarantees “equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. Courts have found that the exclusion of the individual does not arise from their disability, but from the excessive demand their condition places on services. Over the years, the provision has led to absurd results, which have outraged the Canadian public.

Several callers to Maritime Noon expressed anger at excluding individuals with disabilities from immigrating to Canada. One caller even went so far as to label the provision as smacking of eugenics. The government has been reluctant to address the issue for a number of reasons. One caller defended the provision, pointing out that the Canadian health care system is overburdened with many individuals experiencing delays in accessing health services. However, another caller pointed out Canada must assume some liability to continue attracting the best and the brightest. ‘We can’t just expect the gravy’, he said.

Excluding individuals with disabilities from immigrating to Canada ignores the positive contributions they will make once they are in Canada. For example, one caller on the show talked about how her Greek father who is blind, immigrated to Canada in the early 80’s. Her father helped draft the United Nations Convention on the Rights of the Disabled. Yet, under the current excessive demand provision, her father could have been excluded. As a few callers pointed out, technological advances have made it easier for individuals to cope with disabilities.

The medical inadmissibility provision can also be emotionally devastating for families as it conveys the attitude that individuals with disabilities are unworthy. A caller described how in 1947, her father received a job in the United States. All her family members needed to pass a medical check, but her brother failed the medical check because he had Down Syndrome. The caller and her family could not move to the U.S., despite having a job lined up. Their family was still feeling the emotional effects of that denial a half century later.  Both the caller and Professor Montoya described the Canadian provision as ‘mean’ and ‘hurtful’.

If you are feeling outraged and ready to march down to Parliament Hill with pitchforks, you will be relieved to know that on October 24^th, 2017, the Standing Committee on Citizenship and Immigration began examining the medical inadmissibility provision. This examination arose out of the public’s outrage for cases like Professor Montoya’s, and Canada’s international obligations. In 2010, Canada ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD), promising to recognize that “all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law”. Under Article 35 of the Convention, Canada is obligated to submit a comprehensive report to the Committee on the Rights of Persons with Disabilities on the measures taken to comply with its obligations under the Convention. Canada submitted its first report in February 2014. The committee highlighted several issues, including the medical inadmissibility provision and its effect on individuals with disabilities. The government responded to the concern by stating that it is undertaking a review of the excessive demand provision.

The Standing Committee has held several hearings. On November 22^nd, 2017 Minister Hussein appeared before the Committee and stated, "from a principled perspective, the current excessive demand provision policy simply does not align with our country's values of inclusion of person with disabilities in Canadian society". Minister Hussein rejected the proposition of providing a new training mechanism for officers to lead to a more consistent application of the provision.  He made it clear that the provision needs to be changed to be in line with the government’s accessibility agenda.

It is still unclear how the provision will be changed and whether the operation of the provision is suspended until the government decides on a course of action. Minister Hussein suggested that repealing the provision is an option amongst many other options. The goal is to balance between excessive costs and fairness & equity for immigration applicants. I am glad I will not be the one juggling this difficult balancing act!

The winds of change already seem to be in the air. On Tuesday, a Manitoba family learned that the denial of their application for permanent residency was being overturned; their disabled daughter would no longer be considered medically inadmissible.  

If you would like to listen to the show, please click here: http://www.cbc.ca/news/canada/nova-scotia/programs/maritimenoon/donkin-layoffs-immigrants-heath-sexist-cartoon-feedback-1.4391171

If you would like to learn more about medical inadmissibility in Canada, you can read this reference document prepared for the show:

https://drive.google.com/file/d/1ATRR_sgSAIi4XhiqxrJkfKTbxTLj-PpW/view?usp=sharing

You can read about the Standing Committee on Citizenship and Immigration’s work on this issue at these links:

http://www.ourcommons.ca/DocumentViewer/en/42-1/CIMM/meeting-78/evidence

http://www.ourcommons.ca/DocumentViewer/en/42-1/CIMM/meeting-85/evidence

http://www.ourcommons.ca/DocumentViewer/en/42-1/CIMM/meeting-86/evidence

Briefs submitted to the Committee can be read here:

http://www.ourcommons.ca/Committees/en/CIMM/StudyActivity?studyActivityId=9719668

An overview of the briefs can be found here:

https://globalnews.ca/news/3872320/advocates-demand-trudeau-end-unjust-immigration-law-call-it-a-black-eye-for-canada/

http://www.cbc.ca/news/politics/hussen-immigration-medical-disability-1.4414274