Toronto, ON, October 18, 2013 – Historically, Canada’s immigration system was riddled with discriminatory provisions, excluding immigrants who were female, gay or lesbian, were from non-European countries, or were non-Christian based on negative stereotypes about those groups.  While the system has been reformed to remove many of these discriminatory barriers, it continues to exclude people with disabilities who are deemed likely to place an “excessive demand” on health and social services.  Bakerlaw believes this “excessive demand” provision is discriminatory and does not meet the equality guarantee of the Canadian Charter of Rights and Freedoms.

In 2005, the Supreme Court of Canada had a chance to consider the “excessive demand” provision when the Hilewitz and De Jong families challenged the decisions of immigration officers who had found their children with disabilities were inadmissible to Canada under the provision.  A majority of the Supreme Court held that when applying the “excessive demand” provision, medical immigration officers must assess likely demands on services, not mere eligibility for them, which includes consideration of an applicant’s ability and intention to pay for social services. As a result of the Supreme Court’s decisions, medical officers must conduct an individualized assessment that takes into account both medical and non-medical factors.

While medical officers must now conduct individualized assessments in such cases, the overall approach of the immigration system remains the same – it continues to focus on what an immigrant with a disability would likely cost Canada in terms of health and social services.  By focusing exclusively on the impact on Canada’s resources, the current law devalues people with disabilities.  It disregards the contributions to society made by people with disabilities and perpetuates negative stereotypes.  Bakerlaw believes the “excessive demand” provision is discriminatory and must be removed from Canada’s immigration system.  To that end, Bakerlaw associate Meryl Zisman Gary is working with an advisory group to a public interest organization considering a Charter challenge of the excessive demand provision.  Check the Bakerlaw website for further updates on this legal challenge.

Read the Supreme Court’s Decision by clicking this link: Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706, 2005 SCC 57

Read the Immigration Research Report Bakerlaw prepared for the Council of Canadians with Disabilities.