Thank you, Mr. Chair and members. It's always good to be back before the committee to share with you our perspective.
It is a pleasure to appear once again before this committee.
The government appreciates the committee's decision to undertake this study.
As you know, Immigration, Refugees and Citizenship Canada has undertaken a fundamental review of the excessive demand provision, and we've consulted with provincial and territorial governments. As I have openly stated to my provincial and territorial counterparts, this review is necessary and long overdue.
To put it into perspective, this provision has been in place for more than 40 years. From a principled perspective, the current excessive demand provision policy simply does not align with our country's values on the inclusion of persons with disabilities in Canadian society. The current objective of the provision is to strike a balance between protecting publicly funded health and social services and facilitating immigration to Canada, while also supporting humanitarian and compassionate objectives in Canada's immigration policy. But there is now a recognized need to realign the policy, to also make it more fair and inclusive of persons with disabilities.
As you know, Mr. Chair, to begin our review of this policy, our government launched consultations with provinces and territories in October 2016. Departmental officials also engaged stakeholders, including disability advocates.
The results of these discussions, together with consideration of public perspectives, judicial decisions, and media reports, as well as this committee's recommendations, will inform the development of options to be presented for decision by the government.
As my officials indicated previously to this committee, the health inadmissibility provisions are designed in part to reduce impacts on Canada's publicly funded health and social service systems. While a number of policy principles underpin our review of the excessive demand provision, these include the need to continue to protect health and social services.
That being said, the numbers we are talking about are incredibly small.
As my officials indicated, a cost-benefit analysis found that the total number of decisions on excessive demand made in a single year will result in an estimated savings of about $135 million over a period of five years of projected health care coverage. That amount represents just 0.1% of all provincial and territorial health spending in 2015.
Since our initial discussions, we have shared potential areas of change with provinces and territories. These have included possible adjustments to the cost threshold, changes in the groups exempted from the provision, redefining the services under consideration, or enhancements in how wait-lists are considered.
This information will give provinces and territories the opportunity to assess these options and the potential impacts on their jurisdictions.
As we agreed in September at our federal, provincial, and territorial meeting of ministers responsible for immigration, we are committed to ensuring that the policy continues to recognize the need to protect health, social services, and education while treating applicants fairly. In particular, our government wants to ensure that the implementation of this policy aligns with our values regarding the inclusion of persons with disabilities into Canadian society.
Once again, I appreciate that the committee has chosen to undertake a study of this really important and sensitive policy.
The government is eager to receive your recommendations.
I look forward to answering your questions.
Thank you, Minister, for being here today.
Minister, in this study we've had individuals come here and share their testimony. One individual was a caregiver. Another individual was a professor at a university. In both cases, they have lived in Canada and paid their fair share of taxes. They felt as though they were good enough to work here, but they weren't good enough to stay. It was hard to hear some of their testimony, because they felt that Canada is not welcoming and is splitting their family.
From ongoing testimony, we feel that there is a two-tiered system. I was wondering if you could elaborate on that and on how we can be more welcoming and how we can strike a balance between allowing these individuals to be here with their families—because they've contributed so much—and health care providers.
Thank you. That's a really important question.
Before I answer the question, I want to say that Canada has an excellent settlement and integration program, which is the envy of the world, not only because of the government's efforts but also because we have a very welcoming society. Canadians are open to welcoming and embracing newcomers.
I think the reason you hear about these cases, the cases we know about and the ones that don't make it into the media, is that they raise issues around fairness. This is precisely why we've decided to launch a fundamental review of this policy. It's why we are making sure we hear from everyone about how best to move forward with the underlying reasons for the policy, but also bringing it into the 21st century and making sure that the excessive demand policy aligns well with what Canadians expect in terms of the inclusion of everyone in Canadian society.
That is why I'm very eager to get the recommendations and the feedback from this committee on ways to move forward on this. The cases you highlight do raise issues around fairness, and this is precisely why we need to review this policy: to make sure it's in line with Canadian values.
The final point I'll say about it is that this policy has been in place for more than 40 years. We're doing something that no other government has attempted to do, which is to look back and say, “Okay, how can we bring this policy up to Canadian values on how we include people?” We're doing the right thing; it's just making sure that we do it right, and to get it right, we have to hear from the committee, as well as from provinces and territories that are impacted by any possible changes to this policy.
First of all, I think the committee is open to looking at this policy from their own perspective and coming up with their own recommendations. I'm certainly open to that.
Secondly, I want to reassure you and the committee that all options are on the table with respect to moving forward on this policy. You have my word on that. If you think we should have a more comprehensive look at the contributions of family, that is certainly something you can put forward.
The only contribution I'll make to that suggestion is to say that Australia moved forward on that approach, and they weren't able to succeed. They weren't able to succeed in terms of looking holistically at families.
Well, Minister, I think for once we agree on something. Our immigration policy shouldn't be ableist, but it also needs to be cognizant of the need to ensure the sustainability of our social programs. It's a balance in this situation.
We've heard testimony from quite a few experts in the field who have made some suggestions on low-hanging fruit, as it would be, in terms of ways to change the process. One of the things that came up yesterday was the fact that it's not so much the legislative framework around this issue but how the rules are currently being applied.
We've heard about dozens of cases where the rules were applied either unevenly or improperly, so I'm just wondering, have you, as part of the review, instructed your department at all to look at perhaps a new training mechanism or some sort of service delivery standard to ensure that department officials are actually following the law consistently and perhaps putting some more consistency frameworks in place to apply the rules in this situation?
One of the common denominators in feedback that this committee has received is the application of the rules being inconsistently delivered by your department. Being presumptive and assuming there would be some sort of framework even after the results of your review, what is your department doing to ensure that.... There seems to be a friction point with service delivery on this, and part of what immigration lawyers have told us themselves in cases is that they don't know what the criteria are and also that they're being applied unfairly.
We've heard them say that procedural fairness levels are difficult to understand and that most people who want to challenge a finding of medical inadmissibility feel they must hire a lawyer. One of the recommendations that have come up many times is that your department could be simplifying the language in these letters.
Regardless of what the legislative framework changes, it's clear that there's also a service delivery issue. Have you instructed your department to look at those friction points at all as part of your review?
Just while I have you, as we rarely get a chance to chat, I want to inform you and your officials that I have put the following motion, which I hope I don't have to move, on notice: that the committee report to the House the matter of the failure of the Department of Immigration, Refugees and Citizenship Canada to provide the committee information it requested regarding the issue of asylum seekers on September 28, October 3, and October 5, since privilege may be involved, and give the House an opportunity to reflect on this matter.
Thank you very much, Mr. Chair.
Thank you to the minister and his officials for agreeing to be here today.
I want to start with a fundamental question.
Minister, in your comments just now, you said, quote, that “this provision is out of date”, referring to the excessive demand provision, and that you want to bring the policies more in line with a Canada that is to be inclusive of people with disabilities. We also have a variety of laws in place, namely the charter of freedoms, in terms of our commitment to equality and human rights, and our provincial and federal human rights legislation. As well, Canada is a signatory to the UN Convention on the Rights of Persons with Disabilities.
Now, if you take a look at all of those rights in the context of the Immigration and Refugee Protection Act, you will note that this provision is in fact contrary to those protected rights. To that end, is really the only option in going forward to do away with the provision of excessive demand? No matter how you tinker with the policy and its application, it is not going to align with those stated rights in our charter and our human rights legislation, as well as the fact that Canada has signed on to the UN declaration.
I can tell the minister this. The vast majority of the people who appeared before this committee agreed that the section on excessive demands should be eliminated, should be repealed. I believe that there are two witnesses, at best, who appeared before us and put forward a list of actions that maybe can improve the current process.
In addition to that, I can share with the minister that my office has received over a thousand emails calling for the repeal of the excessive demand provision. Also, virtually everyone who appeared before this committee agreed that if Canada is to be consistent with the UN Declaration on the Rights of Persons with Disabilities, we cannot have a law that discriminates against people with disabilities. This discriminates in that if you have a different ability, you have to undergo a different process. That in and of itself already creates a two-tier system, if you will, and discriminates against people with a disability.
I hope the minister will take that into consideration, and I hope that it's not just rhetoric—
The minister talked about a cost-benefit analysis. In fact, the benefit-analysis side is actually missing with respect to this work.
The witnesses all came forward to talk about the contributions of their family unit, but as well, they talked about the person who has been identified as having a different ability in terms of their contributions. Some of it cannot be quantified in a dollars-and-cents way per se, but some could be. Even then, the excessive demand provision applies to them, but there's no consideration as to the benefits with respect to that. The process in terms of this approach is fundamentally flawed with respect to this. I would ask the minister to take a clear look at this, because the approach that has been undertaken does not take in an evaluation of the benefits side.
The other issue that I would bring to the minister's attention is that in the application of the process, the government officials stated that housing, for example, is not considered as a cost in determining whether a person who contributes is part of the excessive demand.... I have a letter here from a lawyer who brought this up in an actual case. The letter from the officials lists “supportive housing” as an issue to be considered as excessive demand, and that was one of the reasons they were being rejected. The application of the law is flawed.
I will ask the minister this question: would you agree that in terms of how the government came up with the numbers to determine what is deemed to be excessive demand, the analysis is flawed, and that the application of that policy is also flawed?
I'm afraid that's the end of your time.
I just want to clarify to the committee what I said about the request for information. This committee does have a reputation, a good reputation, for being one of the most demanding with respect to officials' questions, and that's very appropriate.
With respect to this study, the department has responded with 26 answers to questions raised by committee members. I believe a couple may still be in translation, and a couple were combined. However, there are no outstanding questions with respect to our study on medical inadmissibility.
We thank the officials. We know that places a burden on them.
With respect to the motion Ms. Rempel referred to, that had to do with our study on the irregular border crossings, and there remains one outstanding request. That request deals with the request of the provinces and territories to IRCC—there are requests outstanding from other departments—to get information on costs from the provinces engaged in this, and the department is awaiting information from the provinces on that one. So there is an outstanding IRCC request on the other study. However, we do have requests from other departments that may not be as used to our requests as IRCC is.
We thank you for your diligence in getting those answers to us.
I do want to mention, as well, because we have asked about the provinces and territories, that we have also as a committee asked the provinces and territories to weigh in on our study on this, and we have approached the 13 governments. All of them declined to appear before our committee. They were then asked if they'd like to submit written submissions. Two have responded, Nunavut and Saskatchewan, and Saskatchewan's answer is in translation now. Nunavut's was a very brief letter. That's where we are with those requests in our due diligence in attempting to get the provinces' opinions on that.
I think I've clarified that. When I said most of the stuff is in, I mean all of it's in with respect to this study, and we're awaiting one thing on the irregular border crossings.
This gives me a chance to again thank Ms. Edlund in particular but also all of the officials for their work on behalf of the Parliament of Canada, for their accountability to us, and for being effective in doing that.
Mr. Sarai and Mr. Whalen, I believe, are next.
Thank you very much, Mr. Chair, and thanks, Mr. Sarai, for providing me the first three and half minutes to make some comments and ask some questions.
In the very work that Ms. Rempel and Ms. Kwan have diligently done, they've accurately summarized the situation before the committee, as you would have seen in the blues. The issue isn't whether or not we should change paragraph 38(1)(c). We should. The question is really whether we should eliminate it entirely or, if we do retain it in some fashion, how we can retain it in a way that will preserve the human rights and dignity of applicants and mesh with Canadian values.
I have to say that at this point I side with Ms. Kwan. On the basis of the evidence before me thus far, I do not see how, in a free and democratic society, we can justify any threshold under the Oakes test that would reflect the importance of section 15 of the charter. Any limitation in this particular context, based on the evidence before us, just seems to be out of line with our values.
I highlight the fact that about 170,000 applicants per year would be affected by the provision. Amongst those, only about 1,000 are rejected, so we are cleansing that 170,000 of 1,000 people who are too sick or disabled to come into the country. Right off the bat, just in making that statement, you realize how egregious this is. When we balance the economic benefit of those 170,000 people and the social benefit of those 170,000 people to the nation at large, it greatly dwarfs the cost of the health care for that 1,000.
I would note further that even if we do look at this $135 million a year, or whatever number that may be—some people have said it's less, and some of the testimony has been that it underestimates—regardless, that number is de minimis when compared to the overall national spending on those types of services. It's impossible to see how allowing these 1,000 applicants into our country and cleansing our own souls would put social services or the health care system in any real jeopardy.
If the committee recommends that we simply eliminate paragraph 38(1)(c) and you accept this, how can we be sure that the application of paragraphs 38(1)(a) and (b) don't allow discrimination on the basis of disability or health status through the back door in terms of what the committee and you have explicitly asked the government to do through the front door? I want to see if there are any mechanisms within the act that we should also be looking at. If we want to eliminate paragraph 38(1)(c), might there still be some discrimination existing in paragraphs 38(1)(a) and (b) that we haven't canvassed? Nobody has asked for those to be eliminated, and yet I'm concerned that they could allow government and the department to continue to discriminate against the disabled or the infirm.
I don't think paragraphs 38(1)(a) and (b) are connected to paragraph 38(1)(c). Paragraph 38(1)(b) is self-explanatory, but I believe (a) deals with issues around...an example would be people who have tuberculosis and who are screened to make sure that they don't spread TB in Canada. That's the public health example. I don't think that's the same as paragraph (c).
I think what we're looking at is paragraph 38(1)(c), and there we have a number of options. One is to double or triple the current threshold as to where it kicks in. Right now, it is at $33,275. We could double or triple that. Second, we could strengthen or clarify wait-list consideration by adding a schedule of services with wait-lists by jurisdiction. The other one is that in the definition of services we could remove special education and related services from consideration in paragraph 38(1)(c). We could exempt certain immigration groups and consider exempting additional immigration categories in the legislation: temporary residents, economic class, principal applicants, and dependants. We could stay with the status quo, or we could completely eliminate it.
All of those things are under consideration, but we have to hear from you and others on how to proceed with this.
Thank you, Mr. Whelan.
We heard testimony earlier in terms of how much it costs. The average of about $7,000 is the threshold for medical inadmissibility, that being what an average Canadian expends in a year on medical expenses. When we actually take 170,000, the number Mr. Whelan and I are using—when you take out refugees and you take out family class immigrants, who are exempt already, it's approximately 170,000—it's only 900 people. And for those 900 people, if they were admitted, the average would actually be $7,000. So we are not pushing the average higher because, as Canadians, we have the same diseases, same illnesses, and same disabilities. Taking all of that into consideration, our expenses are $7,000. In fact right now we're actually probably lowering the average artificially by excluding them.
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 that 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. I think as a country, when we look at the cost, even if it was double the average per person, we'd be looking at such a small number. Nine hundred times $7,000 is $6.3 million. Even if you doubled that, it would still be only $12 million or $13 million. If you triple that it's still an inconsequential number compared to overall immigration. I'd like to express my opinion on that, and I want to share that with you, Minister.
Second, the committee has heard from witnesses who applied for permanent residency status in Canada, many of whom have been refused based on medical inadmissibility. What's the IRCC doing to mitigate those challenges related to medical inadmissibility faced by individuals who are already in Canada and who cannot get permanent residency because of one family member? We have heard so far that of those who have applied with a plan of mitigation, very, very few have been accepted. We've also heard some evidence that the expenses used to calculate their inadmissibility are not the ones that are actually used. For example, they're using branded drugs, when in fact our medical—
It has also been suggested that we eliminate immigration medical examinations due to the cost. These are the examinations that determine, as you pointed out, danger to public health, danger to public safety, and excessive demand. Do you believe that Canada should not be conducting immigration medical examinations on potential immigrants to screen for such things as tuberculosis, dementia, and schizophrenia before they immigrate to Canada?
Thanks, Minister, for coming today, and thanks for undertaking the fundamental review of the “excessive demand” provision, because we have heard, in the testimony, how many families have to go through a lot of painful, emotional stress. I am one of them. Many years ago my mother-in-law's case of immigration was rejected because of medical inadmissibility.
We have heard testimony about the effort and the resources that are put into the mitigation plans when an applicant receives a letter warning them that they are facing a finding of medical inadmissibility.
Immigration lawyer Michael Battista said, “They evaporate after a permanent resident becomes a permanent resident”. He added that his phone charge is $4,000 to $5,000 to prepare a mitigation plan as it's labour-intensive and those fees don't include extras like expert medical opinions. He added that the system “does seem to be economically biased toward those who can afford the legal fees to fight the determinations.”
Roy Hanes of Carleton University said that this creates a two-tier system: those who can afford to hire legal help and to mitigate their costs, and those who cannot; and the latter more often find the door to Canada is closed.
Minister, can you please tell us what happens to these mitigation plans after they are accepted? I'm not suggesting enforcement of these plans, barring outright fraud. We heard that systemic tracking would be expensive and a bureaucratic nightmare. It does lead to these questions, though. What purpose do these mitigation plans serve? Are they achieving that purpose, and are they creating a two-tier entry into Canada?
Minister, we have heard examples of cases of medical inadmissibility that came to your office for appeal on H and C grounds. We heard of cases such as that of a caregiver, Mercedes Benitez, who received a waiver through this route. We also heard that there are many cases that don't receive media attention as Mercedes' case did, and that H and C appeals are an answer to a bad law.
I would like to ask this. When you receive an H and C medical inadmissibility appeal, and if you are overturning 90% of those decisions, does that speak to a deeper issue within the medical inadmissibility process?
First of all, in the case you referred to, it was an officer who made the humanitarian and compassionate grounds decision. It wasn't me. It was an immigration officer who made the decision.
With respect to the cases that receive media attention and the ones that don't, the fairness issues raised by these cases are the reasons we are where we are now.
I want to remind the committee again that this policy has been in place for more than 40 years. No government has changed it. We are moving ahead and we believe that now is the time to do so. It is precisely because of the heart-wrenching cases that have come up and that have been concerning to Canadians and to members of Parliament, including you. That is why we believe it's time to move forward on this policy, to bring it in line with our values.
We have two minutes left in the meeting. With the committee's agreement, I'd like to give it to the analyst to ask the officials a point of clarification. Is that okay with the committee?
Some hon. members: Agreed.
The Chair: Madalina, go ahead.
I want to make note of this. We started our committee meeting five minutes late, and then of course, in the middle, Mr. Chair, you interjected. I believe your comments took about four minutes and a bit, and now two minutes with the analyst, which I don't oppose.
What that means is that it robbed me of another round, because I believe the next round would have been five minutes with the Liberal member side, and I would have gotten another round.