CIMM Committee Report

Dissenting Opinion of the New Democratic Party of Canada

Introduction:

New Democrats are staunchly opposed to discrimination in all its forms. The NDP fully supported the Standing Committee on Citizenship and Immigration undertaking an in-depth study on the federal government’s policies and guidelines regarding the medical inadmissibility of immigrants. Through the compelling and near unanimous views of of the witnesses, this study has cemented in the opinion of New Democrats that section 38(1)(c) is legislated discrimination against individuals with disabilities and that it needs to be recognized as such.

New Democrats, therefore, whole-heartedly support Recommendation 1 of the main report which clearly states:

“That section 38(1)(c) of the Immigration and Refugee Protection Act and the exemptions to it be repealed; that the Governor in Council repeal all corresponding regulations; and that Immigration, Refugees and Citizenship Canada repeal all corresponding policies and guidelines.”[i] 

However, New Democrats feel obliged to express dissent to the main report because the report also recommends inconsistent half-measures which allow for the continuation of this discrimination. With no recommendation for a timeline to make the repeal, and no timeline announced for the Minister to finish his consultations, New Democrats cannot support these half-measure fixes to such a serious issue. These additional recommendations are contradictory to the fact that nearly all the witnesses shared the perspective there is no such thing as an acceptable threshold to allow for discrimination. It was clearly expressed by all but two witnesses that attempts to reduce the number of people subject to the discrimination is insufficient and the only option is to eliminate this legislated policy of discrimination.

Section 38(1)(c)

Section 38(1) of the Immigration and Refugee Protection Act (IRPA) states:

38(1) A foreign national is inadmissible on health grounds if their health condition

• (a)   Is likely to be a danger to public health;
• (b)   Is likely to be a danger to public safety; or
• (c)    Might reasonably be expected to cause excessive demand on health or social services[ii]

As the main report notes, Canada ratified the United Nations Convention on the Rights of Persons with Disabilities in 2010. Additionally, the Canadian Charter of Rights and Freedoms applies to everyone physically present in Canada, and Section 15 states that every individual has the right to equal benefit of the law without discrimination based on mental or physical disability.[iii]

Based on witness testimony, it is apparent that a vast majority of the witnesses believe that section 38(1)(c) of IRPA contradicts the Canadian Charter of Rights and Freedom not to mention Canada’s commitment to the international community about the rights of persons with disabilities. Simply put, section 38(1)(c) is legislated discrimination against individuals with disabilities.

Even the Minister of Immigration, Refugees and Citizenship, in his appearance at the committee stated, “From a principled perspective, the current excessive demand provision policy simple does not align with our country’s values on the inclusion of persons with disabilities in Canadian society.”[iv]

A fundamental review of a policy that does not align with Canada’s values is not an exercise in playing with dollar figures of a threshold, or adding more classes of newcomers who are exempt from this policy. This sentiment was echoed nearly unanimously amongst both witnesses and committee members during this study. This study produced a unique situation where sometimes the preambles to questions from the members of the committee were nearly as compelling and strongly worded as the responses from the witness.

The Opinion of Committee Members:

The Member for Scarborough-Centre echoed views of Professor Sheila Bennett who discussed the emotion and financial stress that families are put through when a member of the family is flagged under section 38(1)(c). This was because she knew from experience, as the Member’s family had gone through that situation when sponsoring her husband’s parents in 2002.[v]

The Member for St. John’s-East declared his opposition to this policy stating to the Minister, “I must say that at this point in time I do not see how raising the threshold and excluding fewer people changes the fact that excluding anyone is prima facie discriminatory and violates Canadian values”[vi]

The Member for Surrey-Centre also spoke to his change of opinion about this policy, and evoked a strong and harsh image when he compared this policy to the mindset of the slave trade:

“I would say that initially I thought it was a good policy, because that would perhaps be a big burden on Canadians, but then I looked back – and I don’t want to equate it to this – and it’s no different from the slave trade, in which only those selected as the strongest and the most able-bodied were brought from Africa. It’s not that the whole policy is good at all, but I’m saying it is akin to discriminating when we’re picking only people who are healthy, fully functioning, with no intellectual disabilities and no physical disabilities.”[vii]

The Member for Surrey-Centre had previously summed up the views of the committee when he said, “As you can tell, almost all of us have an inclination that this policy is discriminatory. We already can see that even within immigration there’s a two-tiered policy.”[viii]

In addition to the opposition to the policy on grounds of discrimination, the committee also heard early in the study that section 38(1)(c) is used to deny the applications of under 1,000 people a year.[ix] Members of the committee expressed in their exchanges with witnesses, department officials, and the Minister, a difficulty in reconciling the point of such a discriminatory policy, given its little savings impact in the grand scheme of the immigration system and the healthcare system.

The Member for St. John’s-East, in an exchange over the cost on the healthcare system asked, “It seems like a drop in the bucket? Why should we even care about the cost at all? Human rights can cost money. It’s part of living in a free and democratic society. Why are quantifying this at all…?”[x]

It is clear to the New Democratic Party that the majority of committee members view this policy as discriminatory.

Furthermore, the committee’s acceptance of recommendations in the main report around significant increases in data collection appears to directly contradict the views expressed by the Member for St. John’s-East. Following his comments around the thus far quantified minimal additional costs associated with repeal of section 38(1)(c), he went on to say,

“If it’s a trivial amount, why should we even measure it? It may cost more to measure it. It may cause more unseemliness in the whole process than simply saying, ‘Here, provincial government, is a transfer of $36 billion.’ Notionally, $135 million of that is going to be associated with paying for the health care costs of about 5,000 immigrants over a five-year period, among almost 1.5 million immigrants, who are also going to be users of the health care system but paying taxes, but it all comes out in the wash.”[xi] 

The Opinion of the Witnesses:

Witnesses referred to the significant investigative journalism that Global News had undertaken which brought to light a range of significant concerns regarding Section 38(1)(c) and its application. Witnesses and department officials spoke about the issues raised by Global News. Of particular note, significant concerns were raised about the flaws in the calculation and determination of the medical and social cost threshold were raised by witnesses. As well, the inconsistency in which the policy was applied and the fact that the policy in and of itself is discriminatory were also observed by witnesses.  Witnesses also highlighted the fact that there is no recognition of the benefit aspect of IRCC’s cost/benefit analysis of the applications.

Nearly every witness who appeared before the committee was clear in the opinion that section 38(1)(c) needed to be repealed.

Immigration lawyer Adrienne Smith firmly stated her opposition to the policy saying, “We’re questioning the implementation of this law. We’re urging the committee to repeal it. You’ll hear from other witnesses, and we’ve heard from the panel before us, that this is a system that discriminates against persons with disabilities.”[xii]

Parkdale Community Legal Services representative Toni Schweitzer pointed to repeal as being the only way forward when asked if not repeal, could anything be done:

“I don’t have any suggestions actually. I think that the law discriminates, and the numbers that have been provided as a justification are arbitrary and inaccurate. It appears even that senior officials are not aware of some of the things that are being done by decision-makers. That’s a situation that is unacceptable. I don’t know what else I could say to that. I can say that the system as it stands is unacceptable and shouldn’t continue.”[xiii]

Canadian disability advocacy groups were loud and clear. John Rae of the Council of Canadians with Disabilities opened his testimony with “We recommend in the strongest possible terms that the excessive demand clause in the immigration act be repealed”.[xiv]

Canadian HIV/AIDS advocacy groups were united in their opinions as well. Meagan Johnston of HIV&AIDS Legal Clinic Ontario urged the committee to “show leadership and recommend removing excessive demand inadmissibility by repealing paragraph 38(1)(c) of the IRPA.”[xv] This was followed by Maurice Tomlinson of the Canadian HIV/AIDS Legal Network’s view that,

“Quite simply, we have to repeal this section. It is in complete violation of our international obligations, and any reasonable assessment would prove that. It is a violation. What is ironic is that we ratified the UN Convention on the Rights of Persons with Disabilities at the start of the Vancouver Paralympic Games, when we welcomed the world of disabled individuals to Canada. You could play here; you just couldn’t stay here. That’s the message that was sent.”[xvi]

Individual cases of findings of medical inadmissibility under section 38(1)(c) of the Immigration and Refugee Protection Act (IRPA) have, over the past two years made national headlines and caused significant concern in the Canadian public. Two of the individuals that were gravely impacted, Professor Felipe Montoya, and Mercedes Benitez, appeared as witnesses before the Committee to share their story. Their individual stories have shone a spot light on the discriminatory nature of the medical inadmissibility provision and its unfair application.

Both Professor Montoya and Mercedes Benitez had gone through the experience of a loved one being deemed medically inadmissible under section 38(1)(c). Thankfully for these families, successful resolutions were found, allowing them to remain in Canada united with their families. However, that their situations were resolved was not enough for them.

Mercedes Benitez is a caregiver who came to Canada in 2008. After nearly a decade of separation from her family while she cared for Canadian families, she was informed her son was medically inadmissible due to an intellectual disability. While she was happy to have received the support, assistance, and ultimately intervention that addressed this injustice, she said that, “Even though my case is already resolved, I think the excessive demands should be repealed. I still feel the pain when they say I’m good to work, but not good enough to stay because of my son.”[xvii]

Professor Felipe Montoya was a high profile case in the Canadian media when his son’s intellectual disability was going to force the family to leave. This was despite having all been in Canada for years and making significant contributions to the community around them, and his son showing no evidence of placing an excessive demand on the health or social services in Canada. Professor Montoya addressed several reasons why this policy should be repealed:

“It does not make sense on social grounds because social services considered for calculating excessive demand are a narrow selection of services, precisely those used by persons with disabilities, making the disabled community a burden to Canadian social services by definition. Second, paragraph 38(1)(c) implies that social services used by disabled persons are a burden, implying by extension that the disabled community of Canadian citizens and permanent residents is also a burden to Canadian society. Third, paragraph 38(1)(c) ignores the potential contributions of immigrant working families to Canadian society, in spite of, and sometimes even because of, the presence of a disability in the family, as has already occurred on countless occasions in Canada.

It does not make sense on moral or ethical grounds because foreign immigrant workers are, in fact, Canadian taxpayers, and by signing a declaration of ability and intent, they are subject to being twice charged for what they have already contributed to through their taxes. Second, the attempt to resolve the inherently flawed paragraph 38(1)(c) of the IRPA by offering the option of signing a declaration of ability and intent simply adds another layer of discrimination, this time against people with lower incomes. Third, there already exists a moral precedent of offering exemptions to the clause of excessive demand to refugees, for example, so it is not inconceivable to extend an exemption to the category of temporary workers who have already been accepted into Canada and pay Canadian taxes. Fourth, reducing persons to what they cost the state rather than valuing them for what they can contribute can lead us down a dark path. The targets are the elderly and infirm. Fifth, it is beneath the dignity of the Canadian state, which is recognized the world over as a beacon of inclusion, to keep paragraph 38(1)(c) of the IRPA on the books when it is flawed on so many counts.”[xviii]

It should be noted that during the course of this study, the Migrant Workers Alliance was circulating an open letter calling for the repeal of section 38(1)(c). As of November 22, 2017 that open letter had been signed by 1,001 individual persons, 396 individual endorsers with organizational affiliations, and 54 organizational endorsers.

Of those who did not directly recommend repeal, most noted the discriminatory elements of the policy and the difficulty in reconciling this policy with Canada’s values and obligations regarding human rights.  When asked if this policy constituted a violation of our basic human rights, Professor Arthur Sweetman stated, “Clearly, it does.”[xix]

Mr. Mario Bellissimo, on behalf of the Canadian Bar Association acknowledged that this provision can “absolutely”[xx] be applied in a discriminatory fashion.

Ms. Chantal Desloges, arguably the most in favour of keeping section 38(1)(c), acknowledged serious issues with the administration of the provision in her opening remarks stating, “If these laws were properly applied by decision-makers, which they absolutely are currently not, our system would be functioning a lot better.”[xxi]

Brent Diverty, representing the Canadian Institute for Health Information, while avoiding policy recommendations, noted the limited impact repeal could possibly have. He noted that, “based strictly on averages, it’s hard to imagine how 900 people in 35 million could affect our average health care per capita of $6,600.”[xxii]

The answer was made clear and obvious.  Section 38(1)(c) has no place within Canadian immigration law.

In addition to the discriminatory nature of the policy, immigration lawyer Lorne Waldman spoke to high costs of administrating this policy not being worthwhile. He believes:

“We should probably just eliminate medical inadmissibility because the number is so small, the costs associated with it are very high, it impedes our ability to compete for the immigrants we need, and it creates a lot of hardship.”[xxiii]

Recommendations:

This study has made it abundantly clear, that the only way forward is to repeal section 38(1)(c). Any attempt at a policy fix regarding this provision is changing the threshold for acceptable discrimination. It is the opinion of New Democrats that there is no such acceptable threshold. Therefore, the NDP recommends:

Recommendation 1:

“That section 38(1)(c) of the Immigration and Refugee Protection Act and the exemptions to it be repealed; that the Governor in Council repeal all corresponding regulations; and that Immigration, Refugees and Citizenship Canada repeal all corresponding policies and guidelines.”[xxiv] 

While it was also made clear that there was little to no risk that repealing this provision would lead to a significant increase in formerly inadmissible individuals attempting to migrate to Canada, for those that do, there could be associated costs, as discussed in the main report. It is of the utmost importance that Canada’s health and social services are adequately funded. There are significant intersections of jurisdictional powers between the provinces, territories, and the federal government in the funding and provision of health and social services, and the immigration system. Given this, the NDP further recommends:

Recommendation 2:

That the federal government work with provinces and territories to determine any increased costs to social and/or health services as a result of repealing section 38(1)(c), and to increase CST and CHT funding appropriately.

Conclusion:

New Democrats agree with the Minister, those impacted by the policy, immigration lawyers, disability advocates, committee members, and the general public: section 38(1)(c) is out of line with Canadian values. However, New Democrats cannot support the report tabled for this study due to the fact that it included recommendations that while acknowledging discrimination is occurring, provide avenues to allow it to continue.  As the main report states, consultations by the Minister of Immigration, Refugees and Citizenship regarding this policy have been ongoing since October 2016 as part of a “fundamental review of the excessive demand provision”[xxv]. The time has come for action to be taken.  It is therefore the opinion of New Democrats that the only way forward is full repeal of this provision.