First of all, I'd like to thank members of the committee for inviting me to speak about the excessive demand clause of the Immigration and Refugee Protection Act. I am particularly grateful that members of Parliament are examining this clause, and I congratulate all political parties for their concern about the plight of people with disabilities and their families who wish to immigrate to Canada.
One of the things I'll be focusing on primarily is disability as a minority group status, as opposed to illness or anything along those lines. I begin with this concept of disability as a human variation, as depicted by Higgins in 1992, when he talked about disability intersecting all racial, gender, religious, class, cultural, and ethnic divides. According to recent United Nations reports, there are over one billion people with disabilities worldwide, making the disability community one of the largest minority populations in the world.
The United Nations Convention on the Rights of Persons with Disabilities incorporates what we refer to as a social model of disability, and defines disability as follows:
||...disability is an evolving concept...that...results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others....
The United Nations Convention on the Rights of Persons with Disabilities asserts quite unequivocally that yes, people with impairments are very much part of humankind, always have been, and always will be. It is the social interaction process and the creation and maintenance of structural and attitudinal barriers that stigmatize, exclude, oppress, and minimize opportunities for education, employment, relationships, and indeed immigration and mobility. Members of the Council of Canadians with Disabilities assert that in short, it is societies that disable people with impairments.
While it is true that the Immigration and Refugee Protection Act does not categorically state that people with disabilities need not apply, contemporary immigration policies and practices depicted in the excessive demand clause and the inadmissible category make it very difficult for foreign nationals with disabilities and their families to be citizens of Canada. It is my opinion, and it is shared again by the Council of Canadians with Disabilities, that the excessive demand clause stigmatizes, excludes, and creates barriers. In the end, it prevents and disables people from attempting to become citizens.
Terms such as “disabled persons” and “persons with disabilities” are not merely adjectives and nouns. Indeed, they were actually created as socio-legal terms to separate the deserving from the non-deserving, and are rooted in legislation dating as far back as the English Poor Laws of 1601. I find it interesting that we are meeting here today, some 416 years later, to discuss legislation created as a legal category of disability and intended, by the way, to prevent movement of populations in the United Kingdom at that time.
I would like to add that it's also 170 years since legislation pertaining to the early roots of the excessive demand clause and concerns about disabled people becoming an expense on the public purse was introduced by the colonial governments of Upper and Lower Canada in 1848. Terms such as lunatic, idiotic, deaf and dumb, blind or infirm persons were the targets at that time.
Not to get into a long history, but Canada's first immigration act in 1869 itself talks about disability dependence, and legislation on who should and who shouldn't become citizens. I'm not going to get into all of the legislation, but suffice it to say that the immigration acts of 1869, 1906, 1910, and onward until the present time, all have concern about disabled people becoming burdens on the state.
It is interesting, too, that there's another element that is part of the excessive demand clause and also the inadmissible act. It has to do with violent psychosis and contagious diseases. In fact, these are rooted in legislation going back over a hundred years as well. I find it quite interesting that we still talk about contagious diseases such as syphilis, and other contagions such as tuberculosis and cholera, and in some capacities about psychosis and mental health, yet, considering the advances in medical science and pharmaceuticals, these issues can be addressed quite safely in the modern era.
As I indicated earlier, I find that disabled people are one of the largest minority populations in the world. Can you imagine the outcry here if legislation had changed as slowly for other minority populations, such as people of Chinese origin, LGBTQ persons, Jews, or Muslims, and they were still being denied permission to immigrate to Canada? For people with disabilities, there doesn't seem to be the same potential for outrage.
I did an exercise in my class not long ago and asked students to raise their hands if they represented any one of the minority populations. At the end of the class, almost 70% of the class wouldn't have been there, because their families or they themselves wouldn't have been allowed to come to Canada.
One of the things that is linked to the excessive demand clause and which I hope the committee will address is that people are being turned away for infractions, and they're deemed to be part of the inadmissible category. Who else is part of the inadmissible category? How is it that people with disabilities are associated with this group?
Besides people with disabilities, other constituents of the inadmissible class include persons involved in subversion, terrorism, violence, and espionage, and persons who have been involved in crimes and crimes against humanity, persons who have been convicted of a crime, and persons involved in organized crime. Last but not least are people who are likely to cause an excessive demand on public health and public services and likely endanger the public good. By association and extension, family members of people with disabilities become part of the inadmissible population. I am not sure if this applies to any other group.
In short, over the years, reforms have put an end to immigration policies and practices rooted in racism, sexism, xenophobia, and homophobia, but no similar reforms have put an end to practices rooted in ableism.
Some recent presenters have indicated that the IRP Act provides opportunities for people with disabilities and their families to immigrate to Canada if the family is willing to—or can provide evidence that they're willing to—cover the costs of long-term possible medical, social, and educational services.
Thank you for this opportunity to speak today. It is a real honour. As an aside, having grown up in 1960s Newfoundland with Joey Smallwood, when I tell you it's a real honour, I mean it's a real honour. The fact that we as a country can speak to each other and make decisions that are this important is the essential cornerstone of who we are as Canadians, so I very much appreciate the time you are taking to listen.
I come here as a lifelong educator, administrator, faculty member, and researcher. My choice to share the information with you today has been shaped by my experience and my learning. My career has as its focus the inclusion of students with special needs in the regular classroom.
The purpose of my testimony is to highlight the importance of diversity and inclusive practice as essential components of our national and international identity. I have been fortunate to work and develop relationships with researchers, educators, and organizations across Canada. Through these experiences, I have had the privilege of engaging in ongoing research and discussion about diversity and inclusion. My pan-Canadian experience has provided me with multiple opportunities to engage in this field at the international level. It is clear from my work that across Canada and across the globe discussions of equity and diversity framed within an inclusive perspective are at the forefront of critical thought and active change.
I am proud to be a Canadian. Born in Newfoundland and Labrador to pre-Confederation parents, I learned the lessons of what it meant to be Canadian. I began my education in a two-room school, where segregation was not an option. Everyone belonged. This allowed inclusion to be woven into the pattern of my experience. When I graduated as a teacher in 1982, the Charter of Rights and Freedoms freshly minted, I looked forward to seeing the leadership standard set by our federal government enacted through the lives and the futures of all the students I would meet.
I feel as though I am preaching to people who know this, but just in case, section 15 of the Charter of Rights and Freedoms states:
||Every individual is equal before and under the law and has the right to the 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.
In reviewing this committee's October 24 meeting, I was reassured to see that the charter mandate as it relates to the deliberations of this committee was discussed. As noted during the October meeting, thus far the charter challenges with regard to immigration policies have been unsuccessful. Despite these unsuccessful attempts, it is clear that a relationship exists between our rights as delineated by the charter and the recommendations that will be made by this committee.
Canada is a diverse country. , in his 2016 presentation to the World Economic Forum in Switzerland, said, “We need societies that recognize diversity as a source of strength, not a source of weakness.”
From my perspective, diversity, as it relates to individuals with disability, needs to be brought to the forefront. One of many research projects focusing on students with intellectual disabilities, and I've been engaged in a number of them, highlights for me the gap between what inclusion means when we speak about larger populations and what inclusion means when we speak about people with disabilities. The tag line for this project has become: if inclusion means everyone, then what about me? Pictured below it is a school-aged child with Down syndrome sitting alone in a classroom.
The chronic undervaluing of persons with disabilities in our society speaks to a much larger and more insidious pattern of discrimination. Low expectations and unexamined predisposition, veiled under the auspices of charity and benevolence, have kept many individuals in positions of power in stasis, unwilling or unable to make decisions and take action. If we are to live up to the expectations that Canada is a country in which diversity is valued, we must not set limits on what it means to be diverse. School systems pride themselves on inclusivity, but the inclusion of students with special needs continues to be debated.
A 2009 publication that I wrote and which was used by Immigration Canada discusses this debate:
||Some researchers still argue vehemently that the segregation of students into specialized learning environments is essential in order to provide them with the type of individualized instruction that their learning profile suggests would be beneficial. Other researchers argue that to separate students on the basis of ability or other characteristics represents a form of “colonization” that blocks access to a larger learning environment. Many see the segregation of students with exceptionalities as a human rights issue....
Hand in hand with this debate, of course, is the question of cost. Having spent 18 months as co-chair on a government working table of special education funding, I know only too well that there exists a desire to quantify disability. For the purposes of this committee's deliberations, it's important to differentiate service delivery in the context of cost.
For a shrinking number of school boards across the country, the delivery of services to students with special education needs is a separate service. The budgeting for these services and service delivery models is differentiated from what you might refer to as the “regular” class. Interestingly, school boards are transitioning to a system of service delivery for learners that includes universal design for learning and differentiation of planning and curriculum delivery. For those school systems, all students belong. The emphasis is on creating supported communities of learners where all students can access learning, as well as social opportunities is their age-appropriate peer group.
Inclusive settings have been shown to decrease bullying, enhance learning and social engagement for students with special needs, and improve the attitudes and interactions of the larger class group. In essence, all students benefit. They learn to be more tolerant of difference and are able to access learning in multiple ways. For systems that use inclusive models, the question of cost is still a real one. To provide those types of professional learning, educator support, paraprofessional engagement, and auxiliary services, it requires funding. The difference in that funding is that funding dollars are spent on the entire school community to raise the expectation for all.
School systems are a reflection of societal values and norms. School systems are also a projection of societal possibility. Inclusive schools have been shown to have a positive effect not just on academic and social learning of the students with special needs. They also, more importantly, have a positive effect in terms of tolerance and acceptance of difference among all members of a school community. Schools are a microcosm of society. They tell us that cognitive and physical diversity add value.
Good morning. I would also like to thank you for the invitation to appear today.
Decisions regarding the federal government's policies and guidelines on the medical inadmissibility of immigrants are based on many factors: moral, legal, economic, etc. I'd like to focus my remarks on economic issues.
While the government's current goal is to mitigate excessive demand on health and social services, as far as I'm aware, we—and I use “we” to refer to all of us who make up the Canadian community—have no good measures of actual demand or costs for such services by the subset of potential immigrants who are at risk of being adjudicated as excessive cost or risk. Although there would be some challenges, it would not be extremely difficult to produce such estimates using mostly provincial health and social service administrative data, although it would need to be done province by province. If a complete picture for all provinces were required, the task would take a little bit of time. Overall, while some bits and pieces of evidence do exist, as far as I'm aware, we do not know how well we, at the time of screening new immigrants, are able to predict who will be high cost.
I encourage you, as part of your deliberations, to go beyond simply listening to those who appear before you and what they happen to say and, rather, to produce any evidence you need for good decision-making yourselves. Moreover, I encourage you to take full responsibility for any costs of decisions you recommend. One of the oddities of our Constitution is that the decisions and costs of decisions are not always borne by the same level of government. This can sometimes lead to poor decisions. I encourage you, therefore, to not only figure out what the costs of your decisions are, but if there are increases in costs by provincial governments, that those increases are funded by the decision-maker. Having pointed out our lack of knowledge on the topic, I can point to a few things that we do know.
First, health care costs are extremely unevenly distributed among the population. For example, a group inside the Ontario Ministry of Health and Long-Term Care recently calculated that about 1.5% of Ontario's population represents about 5% of those with the highest costs, and they incur about 61% of total hospital and home care costs. Put another way, of Ontario's population, about 3.9 million people incurred hospital and home care costs in 2009-10 and the total cost was just over $14.2 billion. Of this group, the top 1% in terms of costs, which is just under 200,000 residents, incurred costs that made up $8.6 billion out of that $14.2 billion. A small number of users can make a great deal of difference to total costs. As an aside, these dollar values are limited and do not include, for example, physician billings, which are not normally part of hospital and home care budgets.
An important follow-on to this question has to do with the persistence of costs. It turns out that high-cost use is quite persistent, though clearly there is some turnover. Looking at physician billings, which are less persistent than, say, residential care, one of my students calculated that over 40% of those in the top 5% of costs in 2004-05 were still in the top 10% of costs in 2008-09. A group in the Ontario Ministry of Health also found high levels of year-over-year persistence looking at a broader cost base.
Another important issue for this committee is whether the immigration system as it works at the moment introduces immigrants to Canada who are more or less likely to be high-cost users of health care than people who are Canadian born. As far as I can tell, based mostly on work by researchers at the University of Toronto and Ontario's Institute for Clinical Evaluative Sciences, there is absolutely no difference. In Ontario, immigrants and Canadians by birth are exactly equally likely to be high-cost users of health care. Overall, the cost implications for health and social services resulting from a small and somewhat persistent set of so-called high-cost users, in Ontario at least and probably more broadly in the Canadian health payment system, are substantial. However, none of this evidence speaks to the anticipated costs of those affected by the current operation of our immigration system's effort to mitigate excessive demand on health and social services. Figuring out costs for that group would take more work and, of course, deciding if our society wishes to bear those costs is another issue altogether.
Yes. As a person who's spent all my career in education, I'm quantifying it in terms of school systems. When school systems talk about additional cost, talk about children by what we would think of as type of disability, we often hear autism, Down's syndrome, cerebral palsy, but really it's any physical, cognitive, social, or emotional diversity. Children who have excessive behaviour problems, for example, can cost a system money.
What we think about in the education system when we look at cost is how that cost gets distributed. As I mentioned, some systems self-contain that cost and some systems extrapolate it over the entire school population. How school boards do that is up to them. Some provinces extrapolate it across the entire province. The notion is that all children then have access to differentiated learning, differentiated opportunities, and support systems.
For example, one of the projects I worked on with McMaster has to do with occupational therapy services as delivered in schools. When we used a model that brought occupational therapists into the schools, the waiting lists in every school we went into went to zero, and children who had not previously been identified as having occupational therapy needs were identified early, and the costs were saved.
So in terms of school system costs in disability, I would argue pretty vehemently, based on my 30-plus years of experience, that there's an added benefit to having a student with a diverse way of interacting with the world, whether that be physical, cognitive, or emotional. It adds incredible value to us as citizens, because it allows us to create friendships and to build a society and then create gainful employment for people who, when we look back at when immigration [Technical difficulty—Editor] were done, were discriminated against.
Thank you very much, Mr. Chair.
Thank you to our witnesses for their thoughtful presentations.
I'd like to begin my questions with this premise. I think the committee is grappling with the issue on excessive demand as it is applied to a group of people, in this instance, people with different abilities. It's been advanced on the issue and the application of this policy on the principle of fairness.
To that end, what we do know, and I want to put it on the record, is that the assessment process that the government uses is a flawed process. The figures they've come up with in identifying the cost of what is deemed to be excessive demand are not accurately backed up. Its application in the process of evaluating different people is also flawed in that process.
First, I'd like to establish this. Canada, of course, has made commitments in our Canadian charter to equality and human rights and the rights of people with disabilities. We have enshrined those rights provincially and federally in our human rights legislation. We're also a signatory to the UN Convention on the Rights of Persons with Disabilities. However, we have an immigration policy that clearly discriminates against people with different abilities.
On that premise, what we heard yesterday—it was virtually unanimous—is that all of the witnesses said the government should repeal the section “excessive demand”, because it simply violates our basic human rights.
On that principle, not on the issue of cost, but on the principle of that violation, could I get quick answers from each of the panellists on whether you agree that it is a violation of our basic human rights with respect to this provision of the immigration policy?
Let's get into this second issue, the issue of cost, but on the flip side. This is along the lines that our chair was heading towards.
What we also know, and what was admitted by the officials who presented to us, is that they do zero calculation with respect to the contributions of different people and the family members they bring to Canada.
Ms. Bennett, you mentioned about the classroom, and you reminded me of something that I learned from my son. In his class, he has different children with different abilities. Something he has learned—and I'm so proud of the school and of him—that he talks to me regularly about is that different people with different abilities engage the students in a different way. They all participate. The value he brings from that experience is something that is not quantifiable.
In addition to that, of course, when people come as a family unit, you may have a family member with a different ability, but those families make different contributions as well, and that's not quantified.
To that end, how can we possibly come up with a formula that will be fair and accurate in this assessment, or is that at all possible?
Again, I'm just going to go down the line with respect to this.
Thank you for bringing up your child's experience.
When I teach around fairness in terms of disability, we have this statement, “Fairness does not mean everyone gets the same. Fairness means everyone gets what they need.”
If we use the first definition of fairness, which is giving everyone the same thing, then anybody on this committee who wears glasses would have to take them off, because not everybody can wear glasses.
When we talk about quantifying, in education we can quantify. In multiple studies over many decades, what we can quantify is that when you have an inclusive practice, bullying goes down for children, tolerance levels get high for all children, and learning improves for all children. That is quantifiable evidence in terms of the notion that when we add diversity, and with that diversity, add the support needed to protect it, we absolutely have an added benefit for that.
Yes. It's even more than a two-tiered system.
First of all, it distinguishes disabled from non-disabled. As I said before, this whole argument is over 400 years old, to control people. It is a two-tiered system.
The other part of that is a result of the Supreme Court decisions in Hilewitz v. Canada and De Jong v. Canada. Even if people can afford to pay, does that really help? It does help individual families of those who get those minister's permits, but at the end of the day, that's not what we're about. What about people who want to come here to join families, part of family reunification, and they can't afford those costs? That's an issue.
I know of families who come here, may have a child, and they're waiting for their citizenship. If that child is born with an impairment, they risk being deported. People who come here.... If you're working and you get injured here, and you're just shy of your citizenship, you can be deported.
Absolutely, to me, it's more than a two-tiered system.
I'm not sure that people with disabilities would jump on the bandwagon to come here just for the sake of disability costs. It could happen, but I doubt it.
The other thing is that, speaking for myself, I would say, “Welcome.” I believe in diversity, and disability is just another form of human variation. I don't see it as an issue.
I know that there are many other concerns, for sure, but I keep reminding the committee to shift away from this medical model notion of disability, because I'm getting a message that many of you, as members of Parliament, have constituents who are being disabled as family members from sponsoring people as well.
I don't think it's going to happen, but I think that if it did happen it would be minimal. Again, I think that if it happened, it would also be an opportunity for diversity. Think about this. I raised the question earlier that if somebody like Stephen Hawking wanted to be a citizen of this country, would he be allowed to immigrate here. The answer is no.
I'm sorry, I'm just trying for lack of time to get some questions in.
The other thing, and correct me if I'm wrong, is that currently the average medical cost is based on the province, and currently it's averaging about $7,000 across the country per year. That's the number they use. It's whether you exceed that $7,000 number. That $7,000 number already takes into account high users and low users. It's an average.
Do you not think that when we are giving our transfer payments to the provinces and otherwise, we already are factoring this in, and by discriminating against those people, we're in fact overpaying a percentage to the provinces because we're eliminating people with disabilities? We are already, then, covering it, and we're not able to get the benefit, because we're taking 0.2% out of the immigration population. Am I correct on that?
Good morning, Mr. Chair. I would like to thank you for this opportunity to address the committee.
I'll begin my statement by giving a brief account of my case, followed by recommendations for policy changes based on our experience.
Last year my family and I were deemed inadmissible for permanent residency in Canada because my son Nico has Down's syndrome. Before coming to Canada to work for York University, I was warned by the immigration and relocation coordinator that my son's Down's syndrome could be an obstacle for acquiring permanent residency in Canada. This already suggested the existence of a practice of profiling and discrimination based on disability in the permanent residency application process. My son's Down's syndrome was not, however, an obstacle for obtaining temporary work and student visas for my family. These were granted for a period of four years, and we landed in Canada on July 1, 2012.
Approximately a year after our arrival, we began our application for permanent residency. As part of the normal application process, the entire family underwent the required medical exams. We all came out healthy, including my son Nico, who at the time was 11 years old. However, because of his visible genetic identity as a person with Down's syndrome, he was singled out for additional examinations, including a pediatric exam, spinal column X-rays, thyroid exam, and developmental and cognitive assessments. No one else in the family was examined or tested further because of their genetic makeup. Only Nico was saddled with the burden of proof of health and ability beyond the basic medical exams required of all family members.
The permanent residency application process dragged on for more than three years, representing additional costs in time, energy, and money for the family, precisely because of the burdens placed on Nico for his disability.
At the end of this difficult and costly process, the fairness letter we received from Citizenship and Immigration Canada in response to the application stated that Nicolas had the “medical condition” of Down's syndrome, code 759, and that due to his “moderate intellectual disability” he was deemed inadmissible for permanent residency, along with his entire family, because of the excessive demand he was expected to have on Canadian social services. In the fairness letter we were given the opportunity to submit a declaration of ability and intent, where we could show how our family could cover the costs of this excessive demand in order for Citizenship and Immigration Canada to reevaluate their decision.
While signing the declaration was a viable option for us, we chose not to sign, and instead opted for trying to promote changes in what we considered was a discriminatory process that unjustly affected not only our family, but many other families. We took our case to the media, whose overwhelming response was supportive of our arguments. Eventually I was invited to meet with representatives of the office of the Minister of Immigration to present our case and our recommendations. At this meeting my legal counsel and I were guaranteed by the minister's office that they would take the necessary steps to enact relevant policy changes by the fall of 2016. While this did not take place at that time, in August we were notified that the minister had intervened on humanitarian and compassionate grounds, granting Nico and the entire family relief from inadmissibility based on the health provisions in paragraph 38(1)(c). Soon after we took the steps to become permanent residents of Canada, which is our current status.
Our family's experience provides the basis for recommending the elimination of paragraph 38(1)(c) of the Immigration and Refugee Protection Act as it does not make sense on medical, legal, economic, social, or ethical grounds, as I will explain.
It does not make sense on medical grounds because, one, disabilities are not illnesses that can be cured by medical procedures, but rather are conditions of a person, often part and parcel of his or her identity. Two, social services are not medical services, and so should not be included under the medical inadmissibility grounds. Three, the screening of persons with disabilities on medical grounds is arbitrary and discriminatory when contrasted, for example, with the possibly much greater costs to the state from smokers, for example, who are not targeted or profiled during the initial medical exams.
It does not make sense on economic grounds because: one, the cost represented by persons with disabilities is negligible to the overall budget of medical services; two, there is no cost-benefit analysis to determine what is gained and what is lost when a family of taxpaying immigrant workers is deemed inadmissible because of the disability of one of its members, not only in tax revenue forfeited, but in productivity of all the members of the family to the economy; and three, the accounting process to determine the individual cost of including an additional student with special needs in an existing classroom of special education is deficient when using national averages to determine individual cases.
If the argument of excessive demand of social services were merely economic, then gifted children who also use special education would be screened, which they are not, nor should they be.
It does not make sense on legal grounds because disability discrimination goes against section 15 of the Canadian Charter of Rights and Freedoms. It goes against the United Nations Convention on the Rights of Persons with Disabilities ratified by Canada in 2010, and it goes against the Canadian Human Rights Act signed by Parliament in 1977.
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.
Thank you, Chair.
Mr. Chair and honourable members, thank you on behalf of the Canadian Bar Association's immigration law section for your invitation and the opportunity to comment on this very important study.
The CBA is a national association of over 36,000 lawyers, law students, notaries, and academics. This CBA section has approximately 1,000 members practising in all areas of immigration law. Our members deliver professional advice and represent clients in Canada and abroad. A key aspect of CBA's mandate is seeking improvements in the law and the administration of justice.
The issues surrounding medical inadmissibility are large and international but also personal and sensitive. The implications transcend many layers of our society. Attempting to forecast the demands on health and social services not just monetarily but in terms of the displacement of Canadians and permanent residents is a difficult process for the families affected, as we've heard, and for our many CBA members who represent applicants. As well, a medical inadmissibility finding has a serious consequence not only to the individual found to be inadmissible but to their family members as well, who are barred from entry. This ranges from family class applicants to workers and economic migrants. It can hinder family unification and have significant consequences on Canadian businesses.
To deliver a successful immigration program, historically there's been a need to protect public health and the integrity of the Canadian health care system while striking a balance with the legitimate needs of migrants in a manner consistent with Canadian charter values and international human rights standards. With a view to maintaining the lawfulness and inclusiveness of the process, the penultimate question before this committee is where and how must that balance be struck.
We've heard that the cost of health care in Canada continues to rise with advances in technology and our aging population. At the same time, an increasing number of migrants are arriving in Canada with both associated benefits and potential public health risks and health and social service costs. We've heard from many witnesses that the excessive demand, or ED, regime is not rationally connected to its purported goal of controlling health care costs, that it is discriminatory, and that it should be repealed. This includes criticism over statistical methods used to determine the cost threshold and the factors considered in the ED assessment.
Notwithstanding, we have come a long way since the Supreme Court of Canada decision in Hilewitz and De Jong nearly 13 years ago and subsequent cases like Colaco, Sapru, and Lawrence, with certain CBA members, led by the late Mr. Cecil Rotenberg Q.C., having worked for decades to minimize the discriminatory effects of medical inadmissibility. These efforts contributed to a much better process guided by the core teaching in Hilewitz that assessment should be fair, diligent, proactive, and with a move away from cookie-cutter methodology focusing on the medical condition rather than the individual. But there remain serious challenges that we have heard through testimony and that have been highlighted in the briefs. I'll just address a few today.
First, the presumptive categorical exclusion of applicants based on certain conditions remains a persistent and ongoing barrier for persons with disabilities, in particular, in immigrating to Canada. Too many refusals are still based on improper or inadequate consideration of an applicant's individualized needs.
Second, the bifurcate ED assessment process is undermined by a lack of proper instruction from IRCC to its officers clearly delineating the distinct roles of medical and immigration officers. Medical officers should be assessing medical and non-medical factors, and immigration officers must determine only the reasonability of those findings.
Third, applicants face obstacles in their abilities to properly engage with officers when concerns are raised. The process and the language in fairness letters can be presumptive and unclear, and the transparency and accuracy of pricing can be uneven. This is also contrary to the court's instruction. The IRCC website offers little by way of meaningful assistance.
How can this improve?
In March 2017, the CBA section commented on IRCC's 2015 review of the existing model. A link to this more detailed submission can be found in our current submission. We recommended, among other things, the expansion of the role of IRCC's centralized medical accessibility unit, CMAU; an increase in budget and personnel with a view to centralizing the process; better alignment of health and social services costs, in particular with respect to special education and prescription drugs, to mention two of the most common social services, and the impact on waiting lists relating to mortality and morbidity. The CMAU should also update resources, including the IRCC website.
The rewriting of procedural fairness letters in plain language with clear instructions, including an explanation of what can be privately disbursed is critical. This would garner more effective exchanges, minimize the need for counsel, ease the intrusiveness of the process, reduce inaccurate findings, and streamline the M5 evaluation, which was listed in the IRCC's 2015 report at 230 to 348 days.
In addition, we recommended additional training for officers on the distinct decision-making roles of medical and immigration officers.
Before this committee we have provided 12 additional recommendations. In particular, there is the need for a detailed analysis of health and social service costs as well as the impact on applicable waiting lists, to support critical policy decisions moving forward. This would aid in refining the admission threshold; examining the impact and potential expansion of foreign national exemptions quantified in the 2015 report as 27% of the 525,000 immigration medical assessments conducted annually; assessing a risk-based approach and modernization possibilities; and determining the feasibility of exploring other mitigating factors, including contribution to Canada by the applicant and their admissible family members. A view to the failed Australian attempt to implement a cost-benefit analysis could inform the feasibility of such an approach in Canada.
Such a study would contribute to framing the balance that must be struck, as well as providing a more fulsome understanding of the need for further improvements, or ultimately, as many have suggested, repealing. Any findings, given the very serious issues at play, must be convincingly shown to exist.
Following this study, the CBA further recommends that the figures and formulas for the setting of the excessive demand threshold must be transparent, with the opportunity for stakeholder input and comment, including information-sharing with provinces and territories.
To conclude, the CBA section supports IRCC's efforts to streamline the ED process while maintaining inclusiveness and individualized assessment. The process could be significantly improved if these recommendations were implemented, without the need for a significant overhaul of the program or legislative and regulatory amendment at this time, pending further study. The evolution of the excessive demand regime since 2005 has resulted in a more equitable and effective process than before 2005, but the process should be further modernized, refined, and balanced, to ensure medical assessments are consistently executed in accordance with Hilewitz, far removed from social handicapping and presumptive exclusions.
Good morning, Mr. Chair, and committee members. It's a pleasure to appear before you today.
My name is Chantal Desloges. I'm an immigration and refugee lawyer with close to 19 years of experience. I'm certified by the Law Society of Upper Canada as a specialist in both immigration law and refugee law. I'm the co-author of a recent book, a legal text on citizenship, immigration, and refugee law.
I'm cognizant today of my co-panellists. I would be remiss if I didn't mention and draw to your attention that Mario Bellissimo is one of Canada's foremost legal experts on the issue of medical inadmissibility. He has appeared as counsel or co-counsel in virtually every single one of the seminal court cases on this issue, and has been actively involved in the interpretation of what medical inadmissibility means. On a personal level, I happen to know that he advocated most of it pro bono or close to pro bono.
I also want to acknowledge the passion and the dedication of Professor Montoya, although I'm about to disagree with him. I want to start off by saying that I really respect you, and in spite of our differing views, I was really touched by your comments.
It's my view that our laws on medical inadmissibility are sound. They're well thought out and they do a good job of balancing the objectives of the act to promote immigration while at the same time protecting the safety of our system. This also allows deserving cases to be considered for exemption on humanitarian and compassionate grounds. That system, in my personal experience, works pretty well.
If these laws were properly applied by decision-makers, which they absolutely are currently not, our system would be functioning a lot better. In my opinion, eliminating the criteria of excessive demand would be irresponsible to Canadians and an abrogation of responsibility to those who already live in Canada for the benefit of those who do not have vested rights as of yet.
I don't mean to be harsh, but getting permanent residency is not a right. I see nothing wrong with setting parameters for those who will get it and those who will not, and that certainly will result in some painful decisions that cause hardship for newcomers or intended newcomers. Nobody cares about that more than I do. I know that everyone around the table feels that. I wish that resources were unlimited, but they're not. Frankly, the needs are only going to increase in the future.
Don't change the law. This is my first recommendation. That said, I do think that many applicants are being tarred with the brush of excessive demand who do not deserve that label. As I said, the problem is not with the legislative framework; it's with the decision-making process.
I have reviewed and agree with the written submissions of the Canadian Bar Association. I support the recommendations they make in their written brief. I can say a lot about them, but I think that they've already made their points pretty well.
In particular, better research and better data is required in order to make proper assessments about the real costs and the real availability of the services that are included in the ED analysis. Likewise, better research is required to figure out what the per capita cost of an average Canadian really is, because recent reports suggest credibly that the current numbers that are being used simply don't incorporate everything that most Canadians use.
To illustrate the practical problems, I can give you a real-life example of a case that I worked on recently. This was of a man who was destined for the province of Ontario. He had had a kidney transplant in the past, and he was rejected on excessive demand, saying that his medications and follow-up care would exceed the average per capita cost. The calculation of the cost of medication was marked down as double the actual cost of what that medication is in the province of Ontario because the medical officer used the price of the name brand drug rather than the price of the generic drug, which is the one that's actually covered by the province.
A quick five-minute Internet search revealed that the costing error was obvious. This was pointed out to the officer before the decision was made, and yet no response was given. There was no explanation or analysis as to how the cost of the follow-up care was calculated. There was just a number, followed by two web links. One didn't lead anywhere, and the other one is a landing page. A privately commissioned medical report from an Ontario doctor revealed that the actual cost for the follow-up care was a fraction of that projected by the medical officer.
I've also seen cases where no costs were mentioned at all; there was just a list of services. Far too often, officers are still not doing the individualized assessment of a person's needs, even though the Supreme Court ruled on this 12 years ago. When someone has the wherewithal to respond to a procedural fairness letter, it's often completely ignored. Frequently, even if you do get a response, what you see is, “This didn't change my opinion,” with no explanation of why. This isn't good enough. Applicants deserve better. They deserve to know that at least their case is going to get a thorough and fair assessment.
Also, it's not for me to say whether it's poor training or carelessness, but the courts have been pretty clear about what the requirements are again and again. It's not complicated. What specific services does this person need? Are those services publicly funded and what's the cost? Often, when people do mount a serious challenge to the findings, they are successful in getting the finding overturned or at least mitigated.
The problem is that it's really difficult for an average person to know how to challenge these medical assessments. Most people don't have the knowledge about how to research the costs, and frankly speaking, it doesn't cross most people's minds to question the opinion of the medical officer and do the math. I've even seen this among legal professionals who represent applicants. I don't know if it's just an assumption that the medical officer or government official couldn't be wrong or if it's laziness, but many representatives don't even look behind the medical opinion at all.
It's very difficult to locate doctors who are willing to provide expert opinions on the costs and availability of services even when the clients are willing to pay for the report. When you can find these doctors, they're worth their weight in gold. My recommendation is that IRCC consider providing a list or a resource with the procedural fairness letter about how to find Canadian medical experts who are willing to provide these assessments and opinions for a fee. That would make life so much easier for clients, both represented and unrepresented.
My final recommendation, which I think might be controversial, is that the government consider allowing applicants for PR with legitimate excessive demand findings to simply pay the lump sum that's equal to the five-year treatment costs before being granted permanent residence. Let me be clear. I'm not talking about a bond. I'm not talking about a guarantee that you're not going to use services, which is unenforceable under the Canada Health Act anyway. I don't support a two-tier system for permanent residence. For those who don't yet have the rights of permanent residence, I am suggesting that they simply pay for it before immigrating if they have the means and the will to do so. That would satisfy the concern about expenses and it also doesn't abridge their rights later on to access health care just like everybody else.
Thank you for the question.
On a very basic level, I was paying twice as much in taxes as what the excessive demand seemed to suggest my son would cost, so Canada would have lost economically, in that sense.
Apart from that, every person's value is incommensurable, but I can maybe speak to some of my academic contributions. I'm the director of the Las Nubes project in the faculty of environmental studies at York University. I'm a tenured professor there. This is a project that looks at sustainability in the tropics, at biological corridors, and at how humans and human communities can be productive while preserving the rainforest. That's a very limited view of it.
My wife is a dancer and she began a project called Tablao Flamenco Toronto, which is a monthly presentation of flamenco artists that has continued to be in place while we have been out of Canada. It galvanized the flamenco community and they are very appreciative of that. My son, Nico, made friends in school. He was liked by his teachers and was a good classmate. My daughter graduated with honours from Bayview High School and is currently studying digital animation and working while we are in Costa Rica right now. While we are permanent residents at this moment, we are living in Costa Rica for the time being.
These are the types of contributions we would make to Canadian society.
Two of them come to mind right off the top of my head.
First of all, the way the procedural fairness letter is written—the way it's worded—uses a lot of legalese. It's hard for people to understand it and to understand the tests they need to meet and what information they might need to provide to overcome it.
The second issue is that when you provide your mitigation plan, they always give you this piece of paper that they ask you to sign to say if you're planning to pay for the services yourself. That conveys to applicants that if they just promise to pay for it themselves, that's going to be enough. In fact, it's far from enough. It's barely worth the paper it's written on, because everybody knows it's unenforceable. I've never actually seen an officer give that simple declaration weight.
It's important for people to know they have to back up their statements with evidence, and that the evidence should ideally be Canadian evidence, because that's the expense we're talking about. It's not what it is in your country, but what it is actually here. What would you be given here, what are you likely to use, and what is the cost of that? Most people don't understand that.
If they are not represented, you see people put in mitigation plans that really are not very good, simply because they are shooting around in the dark.
It's two separate questions.
In terms of the analysis, it needs to be measured for those people who are admitted. What actual expenses did they incur? Does it match up with what the projected cost was, or not?
Also, are people complying with their mitigation plans? We don't need to go on a witch hunt, but simply to study and get more data, because I agree with what Mario says. You can't make big decisions like this in a vacuum. There need to be numbers associated with that.
The second thing is the cost-benefit analysis. All of that can be done within the context of the humanitarian and compassionate analysis. Those arguments can still be made.
With exceptional people like Professor Montoya, there's a way to make those arguments, and the existing regime is enough to accommodate that.
Thank you very much, Mr. Chair.
Thank you to our witnesses for being here today.
I'd like to build on the presentation from Mr. Montoya. He advanced the issue around contributions. He advanced the issue of the essence of why we're here today, which is to talk about an immigration policy, or law, if you will, that discriminates against a class of people.
How does it discriminate? In the case of Mr. Montoya, and others, but I'll use his case for today, he went through a process which clearly said that no one else in his family would have to undergo the application for immigration purposes except for his son, Nico, simply because he has been identified with having different abilities.
Canada has signed on to a whole variety of different covenants, including the UN Convention on the Rights of Persons with Disabilities. If we want to say that we're a country that respects these rights, how is it possible that we would have a law that clearly discriminates against people with disabilities?
On that premise, I will ask Mr. Montoya to expand on that point. He made it in his presentation, but I want him to expand on it. How can we reconcile that difference on the issue of rights?
I appreciate the different points of views and comments, and from the Canadian Bar Association, as always, they are very thoughtful and detailed with their brief.
In the series of recommendations you have presented to us in your document, Mr. Bellissimo, it lists the issues around the flaw of the current system as it stands. I now grant that you're right: the current system is hugely flawed. The question for me becomes, is it fixable? If we use the premise of our basic rights in recognizing human rights, I take the point of view that I don't think it's fixable.
We heard yesterday from a number of witnesses. In fact, in yesterday's presentations from the two panels, they were unanimous in saying it's not fixable. In my office I've received over 1,000 emails from people saying this section of the law needs to be repealed. Mr. Bellissimo, in your submission to us, on page 2 under “Priorities and Processes” it reads:
||To deliver a successful immigration program, the need to protect public health and the integrity of the Canadian health care system must be balanced with the legitimate needs of migrants, in a manner consistent with Canadian Charter values and international human rights.... This is particularly important given the vulnerability of non-citizens with disabilities. The focus cannot be on prohibiting applicants with a medical condition from entering Canada.
On the basis of this paragraph alone—and I don't think I heard an answer from you when the question was asked about whether or not, aside from trying to fix the problem, on the issue of rights alone, should the government not entertain the idea of repealing this discriminatory policy and law?
We have about four minutes before I'm expecting the bells to ring.
I'm going to go to Mr. Tabbara, but I'll just inform the committee of a couple of things before I turn to him.
One is a reminder that we will have the minister for one hour tomorrow at 12:15.
We'll be doing drafting instructions on Thursday. I'm going to suggest we start at 9:45 instead of 8:45 and do one hour of drafting instructions. Given that we've had a busy week with other things, you can take the morning. We'll do that one hour then.
For witnesses for the further Yazidi meetings, I'd like a deadline of Friday the 24th at noon. Today is Tuesday. We have until Friday at noon. We should have a summary of evidence on Thursday afternoon, so we have that, but you can now be thinking about that.
I'm going to suggest no meeting on the 28th; time off for good behaviour. On the 30th, we'll have two hours with Yazidi study witnesses. That's next Thursday. Then, on the 5th, we'll do another hour of Yazidi witnesses, if we need it. If we don't, we'll move right to instructions, but we have time for three hours of witnesses and instructions.
We have the minister coming on the 7th for supplementary estimates (B), and then we'll be considering this report on the 12th.
Ms. Rempel, go ahead.
I'm sorry for the votes. It's just the nature of the job.
I'll try to share my time with Mr. Whalen, if I can quickly get through this.
Thank you for being here. My first question is for Mr. Montoya.
From your testimony, and with the committee going on, we hear a lot of witnesses saying that this is a two-class system. We heard from witnesses who have been here on temporary residence. They have contributed so much to Canada and paid their taxes. They feel they're good enough to be here, but maybe extended family members are not. They feel that Canada welcomes them to come and work; however, after their work is done, they are asked to leave. They feel that they are being discriminated against.
Mr. Montoya, in your testimony you mentioned the contributions that you, your wife, and your children have made to Canada. How do you feel this is discriminatory between temporary residents and permanent residents?