Citizenship and Immigration Committee on Nov. 20th, 2017

[Adrienne Smith]

That's actually where I'm going next.

Because of these two examples from our practice, we really have to come to the question of whether there is a solution or whether this section should be repealed.

We are recommending that the section be repealed, because we feel that fixing the issues with the procedural fairness letters is going to require, as Michael said, significant government resources. If the purpose is to save the government money, it doesn't make more sense to put money into a system that is broken. We strongly feel that this is a system that's broken and it's not worth fixing.

Thank you. I look forward to your questions.

[The Chair, Liberal, Rob Oliphant]

Thank you.

First, we'll have Mr. Tomlinson and then Ms. Johnston.

[Maurice Tomlinson, Senior Policy Analyst, Canadian HIV/AIDS Legal Network]

Good evening, committee. I'm a Jamaican lawyer working with the Canadian HIV/AIDS Legal Network where I collaborate with local groups to challenge HIV in the Caribbean.

As a Caribbean immigrant to Canada, I'm aware of our shared history of discriminatory colonial-era laws. Canada has excluded immigrants with disabilities, since before Confederation, when it denied immigration to persons considered physically and mentally defective.

While the Immigration and Refugee Protection Act no longer employs such reprehensible language, the excessive demand regime is rooted in discrimination and conceals outdated prejudices that people with disabilities are a burden on Canadian society. Ironically, the U.K., which was the source of these discriminatory laws, got rid of them, while we cling to a regime that fails to serve its stated purpose.

In 2010, Canada celebrated our ratification of the UN Convention on the Rights of Persons with Disabilities, and the federal government has expressed its commitment to upholding and safeguarding the rights of persons with disabilities and enabling their full participation in society.

Article 18 of the convention specifically calls on states parties to “recognize the rights of persons with disabilities to liberty and movement, to freedom to choose their residence, and to a nationality”. The excessive demand regime clearly violates this convention.

The UN has also repeatedly called upon countries to eliminate HIV-related restrictions on residents and described HIV-related discrimination in immigration as a violation of the right to equality before the law. By effectively preventing people who are living with HIV from becoming legal residents, the excessive demand regime also violates the rights of people living with HIV and other disabilities to education, employment, and health, as provided for in numerous international human rights laws that Canada has ratified.

Several countries do not have any laws or policies that deny immigration based on HIV status. For example, the U.K. does not impose mandatory HIV testing for those entering the country as immigrants. Driven by increasing public pressure to reduce the number of migrants to the U.K., on the grounds that they were overburdening the social welfare infrastructure, nevertheless, the U.K.'s All-Party Parliamentary Group on HIV and AIDS concluded that the U.K. government cannot look to exclude individuals on the basis of poor health in the U.K., while simultaneously working to provide access to health in developing countries.

The same can be said of Canada, which has invested roughly $350 million between 2001 and 2011 on international projects with a focus on disability and recently pledged over $800 million to the Global Fund to fight HIV, TB, and malaria, yet the excessive demand regime would deny some of the very persons who we fund overseas from coming to Canada.

On a personal note, my brother and I now live in Canada, while my ill parents are left alone in Jamaica. Neither would qualify as Canadian permanent residents because of excessive demand. When one parent eventually dies, we will have the hard choice of what to do about the other. Our parents have been a great source of support to us. Now, Canada's discriminatory immigration regime excludes them and many others like them from the care they need simply because they are deemed undesirable.

This is a legacy that we should not continue to defend.

Thank you.

[Meagan Johnston, Staff Lawyer, HIV & AIDS Legal Clinic Ontario]

My name is Meagan Johnston. I'm a staff immigration lawyer at HALCO, the HIV & AIDS Legal Clinic Ontario. We serve people who are living with HIV in the province of Ontario.

At HALCO I witness my clients' pain and frustration caused by the discriminatory excessive demand regime on a daily basis. Even for people who are ultimately accepted after all the paperwork, dealing with excessive demand is a terrible way for someone to start their new life in Canada, and the sense of exclusion that it creates stays with my clients for years afterwards. I want to illustrate this with some examples from my practice.

First, I routinely advise international students who have contracted HIV here in Canada during their studies. These students had planned to pursue their studies, gain work experience, and then apply for permanent residence. Their futures are now turned upside down because their application to stay in Canada can now be refused because of excessive demand. This threat of refusal is particularly ironic since international students represent a group of immigrants that Canada states it most wants to attract.

Second, at HALCO we often represent clients in their humanitarian and compassionate applications, H and Cs. Our clients' H and C applications take years longer to process than those of other applicants because they have to request waivers for medical inadmissibility due to their HIV before they are granted approval in principle. During this time, my clients remain in limbo, unsure of whether their application will be approved and they will get to stay in Canada. It's harder to successfully integrate when you spend years here not knowing if you'll be able to stay. One client's child aged out of the definition of dependant while her H and C application was being processed. This meant the child could no longer be sponsored after my client got her permanent residency.

Third, the excessive demand regime creates a climate of fear for people living with HIV. New clients regularly ask me on the phone or in person if their HIV status will be a problem for immigration, or even for citizenship, where it's completely irrelevant. Even people who are exempt from excessive demand still get the message that someone's HIV status can be, as so many of my clients put it, “a problem” for Canada.

The discrimination inherent to the excessive demand regime isn't just in the refusals. It's in the way the excessive demand regime forces people living with HIV and people with other disabilities into a different process with more hoops and longer wait times because of their disability. That is discriminatory.

Excessive demand is still discriminatory even if it focuses on the cost of health or social services and not the medical condition itself. This is a false distinction. It doesn't make a difference to my clients to know they're not begin refused because of their HIV status but because of the cost of their life-saving HIV medications. They're still being refused.

The department justifies excessive demand on the grounds of cost savings, but there are many costs associated with immigration, such as settlement services, language classes, and the costs of educating newcomer children. These costs, however, are not considered in the immigration application process. By only considering the costs of health and social services, and by using these costs as grounds for exclusion, the excessive demand regime relies on outdated and discriminatory stereotypes that people with disabilities are a burden, and it erases the important contributions that people living with HIV and other disabilities make to Canadian society every day.

We urge this committee to show leadership and recommend removing excessive demand inadmissibility by repealing paragraph 38(1)(c) of the IRPA.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Ms. Schweitzer and Ms. Benitez, welcome as well.

[Mercedes Benitez, As an Individual]

Good evening. Thank you for inviting me to share my story.

My name is Mercedes Benitez, and I am a mother and a caregiver. I came to Canada in March 2008 under the live-in caregiver program. My husband, Romeo, and sons, Harold and Bill, are in the Philippines. When I first came to Canada, Harold was nine and Bill was 14 years old. I applied for permanent residence in 2010, after working for two years. In my application, I included my son and my husband. While I was working in Canada, I missed Bill's high school graduation because my husband and I agreed that I should focus on completing the requirements of the live-in caregiver program. Even though it was very hard for me not to be there to celebrate my son's graduation and to miss my boys' birthdays and all our Christmases together, we could bear it because we knew that eventually we would be reunited. You cannot imagine the pain of a mother knowing that her sons are growing up without her.

In November 2015, after waiting five years, I received a letter from immigration saying that we might be refused because of Harold's intellectual disability. I was devastated. It hurts me to feel that Canada thought we were not good enough. The months of uncertainty since we received the letter have been some of the hardest months of my life. I had chest pains; at times I thought I was having a heart attack from the stress. There were so many sleepless nights worrying that any day I could be refused and sent back home after working so hard for so many years. I was afraid. Who would provide for my family? Sometimes it was too much to bear and I thought of giving up, but my family relies on me for support. I am the sole breadwinner. I needed to be strong.

In Canada, it is said that everyone has equal rights, but the decision to find me and my family inadmissible based on my son's disability made me question this. I was eventually able to get legal assistance, and just two weeks ago I was told we would be approved for permanent residence on humanitarian and compassionate grounds. I couldn't believe it. I feel as if I won the lottery. I am so grateful, but I wonder about others who are also in the same situation that I was. I'm not sure how many of you are parents, but put yourself in the shoes of a mother who is being told that she cannot stay in Canada because her child has a disability. Excessive demand should be eliminated because there should not be any more mothers crying every night or children discriminated against based on their disability or health condition. We need change now.

Thank you for listening.

[Toni Schweitzer, Staff Lawyer, Parkdale Community Legal Services]

My name is Toni Schweitzer. I'm one of the lawyers at the Parkdale legal clinic in Toronto, and we were able to work with Mercedes. She came to us almost on the cusp of her and her family being ultimately refused. We were able to work with her and, as you have heard, her case was ultimately successful but on a discretionary basis, on humanitarian grounds.

What I think you have just heard is a first-hand account of what this section does to people. This was a family who, for at least five years, was living with the threat hanging over their heads that they were going to be refused because one of their family members was non-desirable.

You've heard lots of lawyers and bureaucrats talk, and now you've heard what this actually does to people, the amount of mental and psychological stress it causes people who are here or who are applying, who are going to contribute. That's exactly what Mercedes did. She has worked for many years as a caregiver to an elderly man in Toronto. As we are an aging population, we all know there's an increasing need for people who are going to do this kind of work. That's exactly what Mercedes was doing, yet at the end of that, we as a country were prepared to say she wasn't good enough: “Thanks, now it's time to go.”

Her case didn't turn out that way, but that's not an answer to the unfairness of the law. It is simply not acceptable to say that we can fix a law that is arbitrary and unfair by saying there can be discretionary decisions made in the appropriate case. Then you're in a position where you're saying that only those people who have the ability to mount a case, to build publicity, to get the media involved, are the ones who are going to benefit. That's simply arbitrary and unfair, and I don't think any of you would agree that this is a country where we should say that is okay.

I want to make two other points.

Basically, I want to supplement what others have said, and I want to take issue with a couple of things that you have already been told by other people who have appeared before you. You, as some members of this committee, had asked other officials who have appeared before you whether this law has ever been found to be unconstitutional. Previous witnesses have left you with the impression that this law has been carefully considered and found to be constitutionally sound. I think it's important that you understand that's not entirely true.

There are in fact two cases where this issue has come up, one in which the court didn't really address it. It was a case of the Federal Court of Appeal in 2002. The way in which the case came before the court didn't allow them to look at the issue from the point of view of the applicant who was being discriminated against. It was in the context of a sponsorship appeal, and therefore, it was the sponsor in Canada. The court said it was hard to see where the discrimination was against the sponsor. That case certainly does not stand for the principle that this law is constitutionally sound, or that the Federal Court of Appeal so found it.

The other case in which this law was looked at was the Chesters decision, which I don't know if any of you are familiar with. It was a challenge to the excessive demand provision as it stood under the old act. It was brought in relation to a woman who was the spouse of a Canadian citizen, who at that time was subject to the excessive demand provision. The court ultimately found that it was not an issue of discrimination because it wasn't based on disability; it was based on cost.

I think you have now heard from enough people that, while the language of the provision is in terms of cost, the way in which it is applied and interpreted is solely on the basis of a person's disability.

[The Chair, Liberal, Rob Oliphant]

I need you to wrap up.

[Toni Schweitzer]

The important thing is that case was literally on the cusp of the law being amended. It was in relation to a spouse, and as you know, spouses are not subject any longer to the excessive demand provision, so in that case it clearly had an influence on the judge. By the time the decision came out, the law had changed.

You are in the position I think to understand that it is not at all clear that this law is constitutionally sound. I'd certainly say that in a case that came before it that had the proper preparation, I think it would be found to be unconstitutional.

[The Chair, Liberal, Rob Oliphant]

I need to have you end there. You may get a question through which you get to answer that. I'm going to be a bit uncharacteristically firm in our timing so that everybody can have a round.

We'll begin with Ms. Zahid.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Thank you, Chair, and thanks to all the witnesses.

Thanks, Ms. Benitez, for your heartbreaking testimony.

My first question is to Ms. Schweitzer.

As I understand it, the medical inadmissibility rules do not apply to convention refugees, protected persons, and in many cases some members of the family class such as spouses, partners, and direct dependants. This seems somewhat arbitrary to me. Does it makes sense to you that these rules apply to some categories and not all of them?

[Toni Schweitzer]

No, it doesn't, if you look at the way the law functions. As you've heard now in a number of different circumstances, the law is discriminatory. It's not a matter of saying that we shouldn't discriminate only against this person, because there are situations, such as Mercedes', in which the law does apply. If you accept that there is a problem with the law, then the issue is not who is exempted.

[Salma Zahid, Liberal, Scarborough Centre, ON]

My next question is to Mr. Battista.

Could you provide insight on the cost of legal representation involved in making an appeal of a finding of inadmissibility and providing a detailed plan to mitigate those costs that is likely to be viewed favourably by the department?

Also, the Federal Court has held that it is unreasonable to find medically inadmissible an applicant who has submitted a detailed plan for the payment of costs. Does this create a two-tier system of entry, whereby those with the financial resources to secure legal advice and mitigate their medical costs stand a better chance of entering into Canada and those who can't afford to pay for those legal costs don't get a chance to come to Canada?

[Michael Battista]

I think it's a very good question. As I said earlier, we actually benefit from this medical inadmissibility provision, because people turn to us for advice, assistance, and expertise, which we provide to them. It's a very resource-intensive endeavour to provide adequate submissions and to go on that journey with a client to build the case that they are not medically inadmissible.

Our fees are high. Most lawyers who practise in this area have high fees, because it is very resource-intensive. Yes, there are clients who cannot afford our fees who probably cope with a refusal. I have often reflected upon the fact that this provision does seem to be economically biased toward those who can afford the legal fees to fight the determinations.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Do you have any ballpark number for the actual cost?

[Michael Battista]

Yes. I can say that our fees solely on medical inadmissibility are probably in the range of about $4,000 to $5,000. That is without the expert opinions that we often have to seek from doctors, specialists, psychologists, or autism specialists.

The fees, then, are very high; however, most people are willing to pay them, because at that stage of their immigration journey they're very close to obtaining permanent residency. It's the last hurdle. In some sense, they will give it everything they can give it, because they feel that they are close, that they have a shot at it.

[Salma Zahid, Liberal, Scarborough Centre, ON]

In your opening remarks you talked about the enforcement of the mitigation plans. How enforceable is a promise to pay medical costs when someone is a permanent resident and has the legal right to access the public health care system? Other plans may change. Sometimes people move to a job in which they have a different health plan under their employer. Barring an outright and obvious case of fraudulent misrepresentation, are these plans really enforceable?

[Michael Battista]

There's no enforcement mechanism in place to follow through with these plans, and that's part of the injustice and unfairness. Clients sink a lot of resources into building these plans only to become permanent residents, and then, as I said before, they evaporate into thin air. Some of my clients have said to me, “Why was the government so concerned that I had to invest all of this money and work with you to build a plan, and then I'm a permanent resident and there's no follow-through at all?”

I should also mention that in order for there to be follow-through, the government has to be prepared to sink significant resources into tracking these mitigation plans. The government would have to establish a mechanism for the provinces to report on individuals who create mitigation plans so as to track their health and social service spending in every province. If they move, the government would basically have to speak with every province to track what they've been doing. That would raise huge privacy concerns, so it might be impractical as well as very costly. Then there's the whole enforcement mechanism that would need to follow. We're talking about removal orders, appeals, challenges.

It would be an extremely expensive project for the government to come up with some kind of enforcement for these mitigation plans.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Once a plan is submitted, and a person is accepted by the visa officials and they get the right to come to Canada and become PRs, where does this plan go?

[Michael Battista]

I have no idea. Nowhere. It goes into my storage cabinet. There is no follow-through at all.

[Salma Zahid, Liberal, Scarborough Centre, ON]

I have a question for Ms. Johnston.

As provinces and territories shoulder the cost of public health care, should they have the ability to overturn a finding of medical inadmissibility if they feel an individual or a family makes a contribution to the community that outweighs the provincial costs?

[Meagan Johnston]

Sure. As Mr. Waldman mentioned in the previous panel, there used to be a mechanism that did allow the provinces similar powers in this area. This points to the unfairness of the provision as a whole, and also the unworkability of the system.

I don't think it makes sense, and I certainly would not advocate that this committee just tinker with the system. If it's already been recognized that there is a problem, that this system is discriminatory, then allowing the provinces additional mechanisms to circumvent this discrimination is not a fair way to approach the issue.

With respect to the point that it's the provinces who shoulder the burden of health care costs, we have some concerns with the cost savings estimates that have been provided. My colleagues and I have reviewed the transcripts of the first day when the department bureaucrats were here, and—

[The Chair, Liberal, Rob Oliphant]

I'm afraid I have to cut you off there. If you'd like to submit something to us in writing, that would be very helpful, or someone may follow up in another question.

[Meagan Johnston]

It's in our brief.

[The Chair, Liberal, Rob Oliphant]

Perfect.

Ms. Rempel.