Evidence of meeting #85 for Citizenship and Immigration in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cost.
A video is available from Parliament.
Associate Professor, School of Social Work, Carleton University, Council of Canadians with Disabilities
Do you see what I'm getting at? Again, the costs—
Liberal
Randeep Sarai Liberal Surrey Centre, BC
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?
Associate Professor, School of Social Work, Carleton University, Council of Canadians with Disabilities
Yes, I think—
Liberal
Randeep Sarai Liberal Surrey Centre, BC
We don't take 0.2% out, saying that it's because we've eliminated x number of persons with disabilities or excessive demand users. We already take it into account to get to an average. Am I correct?
Associate Professor, School of Social Work, Carleton University, Council of Canadians with Disabilities
Yes, you are. You're close. The cost of that excessive demand is about $7,000 a year. The provision came in in 1976, so it is rather dated itself, but I would say that if you're thinking about doing anything with that threshold, you should raise it, if that's a possibility. I'm talking about abolishing the act, but if you want to talk to me about some possible reforms until that is done, I would say—was it Mr. Whelan who was mentioning this—that the cost is not that significant.
Liberal
The Chair Liberal Rob Oliphant
I need to end this here.
We have a few minutes, maybe four minutes, for Mr. Saroya.
Conservative
Bob Saroya Conservative Markham—Unionville, ON
Thank you, Chair, and thank you to the three witnesses.
We all have issues in our ridings. We get these things every single day. Somebody came to see me last week. His son has Down's syndrome, and his wife has similar issues. He told me that OHIP doesn't cover it. It costs him 400 bucks for a single shot every 10 days.
I'm not a doctor. It's a difficult situation. I'm assuming that subsection 38(1) was brought in to balance, I guess, who can come and who can't come, that sort of thing.
Anybody can ask what the balance point is at which the taxpayers pick up the bill. The $36 million may be a drop in the bucket at the end of the day. This is their money. We give it back to them. Sometimes in Ottawa we act like Santa Claus with taxpayers' money. However, going back to Mr. Sweetman, if we want to bring those people in, we have to up the money. So far it seems that we are holding back all those people. If we bring in 2,000 additional people, what will it cost?
Anybody can answer.
Prof. Arthur Sweetman
My point is that we don't know how much it would cost, and they're probably quite dramatically different amounts for each person. We should put in the effort to find out, and then make sure that the costs are paying for services and that the services are delivered, so that those individuals can have full and wholesome lives.
My key point is that we cannot say we're going to do something, but we're not going to pay for it, and we're going to bring people in who are going to have miserable lives. We want to bring people in to have full and wholesome lives, which means there are costs and we need to pay them, or there may be costs. We should figure out what the costs are, and assuming that there are some, then we need to pay them.
Conservative
Faculty of Education, Brock University, As an Individual
We shouldn't leave out the knowledge that a lot of original decisions that were made about immigration were made in the economic notion that we're going to bring in people who can work really hard, earn a lot of money, and make our country better. That was a form of very basic discrimination right at the point of entry. If you look at hundreds of years ago, it was,“You can stay. You can go. You look sick; you have to go back.”
We haven't really changed that much in terms of how we look at things. It's those unexamined predispositions. Why is it that we do now what we do, and how does that compare to the decisions we made a long time ago? When you look at basic, inherent discriminatory practices, and when you look at this particular clause, it's steeped in the tradition of, if you're worth it, you can come into the country, and if you're not worth it, you have to leave the country, and we decide worth by a dollar value that we attach.
It seems what I'm hearing today from everyone is a real willingness and desire to move beyond that kind of thinking to something that we can imagine that's very different. I commend you for that, because I think that reflects who we are as Canadians.
Liberal
The Chair Liberal Rob Oliphant
I think I need to end it there because there might be a vote and I want to make sure our second panel gets in.
Thank you very much.
NDP
Jenny Kwan NDP Vancouver East, BC
I just want to correct something on the record. I think, Mr. Chair, Mr. Whalen said $135 million per year on the issue of cost. It's actually $135 million over five years.
Liberal
Nick Whalen Liberal St. John's East, NL
It's a rolling $135 million per year, and we had that explained to us by the people. I know a number of witnesses have been confused as to that point, but it's very clear. I'm not trying to overemphasize it, because I think we should make the change anyway, but as Mr. Sweetman said, we need to be honest about the costs, and cutting the cost by a factor of five because you can't count the rolling average isn't the right way to go about it. It's $135 million a year.
Liberal
The Chair Liberal Rob Oliphant
The policy effect is $27 million in one year, but they're doing a five-year effect. Therefore, it is every year, but it's based on a five-year thing. I think it's specious, anyway; however, that's my way of looking at it.
Liberal
The Chair Liberal Rob Oliphant
I think there are other ways to define public expenditures and that, but that's one way.
We need to end it there, but that is a confusing little moment.
Liberal
The Chair Liberal Rob Oliphant
We're going to get back to work.
We have three witnesses. Welcome. Thank you for taking time out of your lives to add to our intelligence and knowledge about this topic.
Mr. Montoya is going to begin. You have seven minutes.
Felipe Montoya As an Individual
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.
Mario Bellissimo Honorary Executive Member, Immigration Law Section, Canadian Bar Association
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.
Thank you.