CIMM Committee Report

    Section 38 of the new Act provides that a person is inadmissible to Canada on health grounds if they "might reasonably be expected to cause excessive demand on health or social services." Clause 32 of the proposed regulations defines "excessive demand" (in part) as demand that would likely exceed average Canadian per capita health or social services costs over a period of five consecutive years, unless there is evidence that significant costs are likely to be incurred beyond that point, in which case the period may be up to 10 years.

    The Committee agrees with witnesses who pointed out that using average per capita health costs would be unfair to sponsored parents and grandparents, whose health care will, in the normal course of events, likely exceed that figure. We note as well that health care costs vary by sex.

    A recent report by the Conference Board of Canada contains per capita public health care expenditures by age and sex. It is noteworthy that individuals 55 and over of both sexes exceed the average per capita cost of Canadian public health care. Also of interest is the fact that men and women have similar public expenditures only at the ages of 55 to 64. For every other age cohort, expenditures differ by sex; sometimes men’s expenditures are higher and sometimes women’s. For these reasons, we have concluded that the correct reference point for the definition of "excessive demand" should be to age- and sex-related costs. We note as well that the definition as proposed refers to average costs, without specifying public costs. Because the purpose of the excessive demand requirement is to protect public health care plans, this is an important omission.

RECOMMENDATION 50

The definition of "excessive demand" should refer to age- and sex-related average Canadian per capita public health or social service costs.

    In other testimony, the view was advanced that a potential window of 10 years is too long, and that excessive demand should be based on short time frames. The Committee agrees that 10 years is too long a time period. The pace of medical advances these days is so extraordinary that it makes little sense to try to predict the future of medicine beyond five years. Every day, it seems, brings an announcement of the discovery of the cause of a certain disease, a new drug, or a new treatment. The disease or disability that today may be seen as likely to cause an excessive demand on our health or social services may in the future be either curable or controllable in ways that can only be dreamt of now. We conclude that the framework for the calculation of excessive demand should not exceed five years.

    The Committee agrees that the wording of the provision should be clearer. We assume that the drafting was intended to reflect the degrees of communicability of a disease and recommend that clause 29 be redrafted accordingly.

    Section 64 of the new Act removes the right of permanent residents convicted of a "serious criminal offence — defined as any offence for which a sentence of at least two years was imposed — to appeal their deportation order to the Immigration Appeal Division. Thus, if an immigration officer reports a permanent resident to an adjudicator as inadmissible on this basis, the permanent resident automatically faces deportation regardless of any extenuating factors.

    Currently, the Appeal Division is permitted to hear such appeals, except when the Minister submits an opinion that the person is a danger to the public. Circumstances that will be considered at these hearings have been enumerated in a case called Ribic v. Canada (MEI) and include:

• The seriousness of the offence;

• The possibility of rehabilitation;

• The length of time spent in Canada and the degree to which the person is established here;

• Any family in Canada and the dislocation to the family that deportation would cause;

• The support available to the person, not only within the family but within the community; and,

• The degree of hardship that would be caused to the person by return to the country of nationality.

    Section 44 of the Act is permissive in that an officer who is of the opinion that someone is inadmissible may prepare a report to send to the Minister, which report may be referred to an admissibility hearing. Section 53 grants the Governor in Council the authority to make regulations governing the exercise of these, and other, discretionary powers. The Department has indicated that discretion does exist when determining whether to write a report and whether to refer a report to a hearing. Nothing in the proposed regulations, however, addresses this discretion.

    In testimony before the Committee in the course of its hearings on Bill C-11, witnesses indicated quite clearly that their preference would be to remove section 64 from the Act, thereby allowing an appeal. As an alternative, some have now suggested including the Ribic criteria in the regulations that would govern whether or not a permanent resident convicted of a serious offence is referred to an admissibility hearing. Regulations mirroring the Ribic criteria could address the concern that long-term permanent residents with strong ties to Canada and who are low risks to re-offend would face deportation based solely on the fact of their conviction and sentence.

    When this issue was raised again in the course of the Committee’s study of the regulations, reference was made to a previous statement by the Department that there is a thorough review of individual circumstances when considering enforcement action against a long-term permanent resident. The Committee believes that the factors that are considered should appear in the regulations. In fact, the union representing immigration workers testified that front-line employees would find such guidance extremely helpful.