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.