Canada, prior to ratifying the United Nations Convention on the Rights of Persons with Disabilities in 2010, reviewed its laws and policies to ensure that the Convention could be implemented in conformity with the Canadian constitution. One of the laws that must reflect this new international commitment is the Immigration and Refugee Protection Act. Currently, section 38(1)(c) of the Act, which excludes certain people admission to Canada based on medical or disability grounds, is out of touch with Canadians’ values.

Broadly, the medical inadmissibility provision based on what is termed “excessive demand”, section 38(1)(c), has two components. Excessive demand is understood as a higher than average estimated cost to the health and social services systems or a demand that would add to existing wait lists which could result in the inability to provide timely services to Canadian citizens or permanent residents. Human rights and disability advocates, lawyers, immigration organizations as well as individuals argue that this provision does not respect basic human rights and is discriminatory. This provision dates from before Confederation and has lingered despite numerous legislative changes to Canada’s immigration system. Although it is no longer explicitly discriminatory, the provision still has adverse effects on people with disabilities who apply to become permanent residents in Canada. Others have argued that the burden placed on the administrative system as well as the potential economic loss to Canada by the exclusion of certain people or their family members could outweigh the cost savings in medical and social services, although data on this is difficult to find. There are broadly held concerns that, without repeal, section 38(1)(c) of the Immigration and Refugee Protection Act and the accompanying regulatory provisions related to excessive demand, our immigration laws unjustifiably violate human rights of certain would-be newcomers to Canada and this is inconsistent with the modern values Canadians associate with contemporary human rights protections.

Faced with these concerns, the House of Commons Standing Committee on Citizenship and Immigration decided to study the federal government’s policies and guidelines regarding medical inadmissibility, in particular the excessive demand on health and social services provision. Immigration, Refugees and Citizenship Canada and witnesses provided detailed information and data to help the Committee understand the current medical inadmissibility policies and its challenges. This report provides a number of recommendations based on the issues heard during the course of the study. Foremost, the Committee would like to bring the Immigration and Refugee Protection Act in line with Canadian principles, and recommends repealing section 38(1)(c) of the Act. The Committee also acknowledges that such legislative change can take time, involves conversations with the provinces and territories, and thus emphasizes the need to immediately improve the application of the excessive demand provision in the meantime.

The Minister of Immigration, Refugees and Citizenship, in collaboration with its provincial and territorial counterparts also recently undertook a fundamental review of the medical inadmissibility provision based on excessive demand to ensure it is in line with Canada’s commitments and principles. The Committee welcomes the ongoing consultation between the federal, provincial and territorial governments on this issue, as it is of multi-jurisdictional interest.

Canadians value diversity and inclusiveness and it should be mindful of all the abilities and contributions of its citizens, newcomers and potential immigrants as it moves forward with reviewing the medical inadmissibility.

To these ends, the Committee broadly recommends the repeal of section 38(1)(c) of the Immigration and Refugee Protection Act and the relevant regulatory provisions. In the intervening period, the Committee recommends implementing certain interim measures to, among other things, increase the cost threshold for excessive demand inadmissibility and modify the calculation criteria for this threshold. Furthermore, the Committee recommends that Immigration, Refugees and Citizenship Canada follow the ruling of the Supreme Court of Canada decision in Hilewitz v. Canada when training staff, determining and evaluating excessive demand on a case by case basis.