Citizenship and Immigration Committee on Nov. 22nd, 2017

[Ahmed Hussen, Liberal, York South—Weston, ON]

I'm trying to understand your question. You're saying that the only option we should consider is getting a different policy...?

[Jenny Kwan, NDP, Vancouver East, BC]

My question to you is, would you agree that our only option is to get rid of the excessive demand provision, given those rights and given your stated goal?

[Ahmed Hussen, Liberal, York South—Weston, ON]

This is how far I will go on your question. I will say that all options are being considered, and that is one of the options. I would say that all options are on the table, but that would depend on where.... Provinces and territories are the most affected by this provision, so we need to hear from them, but we also need to hear from other stakeholders who have appeared before this committee. We need to hear from the committee and we need to hear from Canadians, and then we'll make the decision. The only thing I can say to your question is that that is one of the options, but it's not the only option.

[Jenny Kwan, NDP, Vancouver East, BC]

Okay.

I can tell the minister this. The vast majority of the people who appeared before this committee agreed that the section on excessive demands should be eliminated, should be repealed. I believe that there are two witnesses, at best, who appeared before us and put forward a list of actions that maybe can improve the current process.

In addition to that, I can share with the minister that my office has received over a thousand emails calling for the repeal of the excessive demand provision. Also, virtually everyone who appeared before this committee agreed that if Canada is to be consistent with the UN Declaration on the Rights of Persons with Disabilities, we cannot have a law that discriminates against people with disabilities. This discriminates in that if you have a different ability, you have to undergo a different process. That in and of itself already creates a two-tier system, if you will, and discriminates against people with a disability.

I hope the minister will take that into consideration, and I hope that it's not just rhetoric—

[Ahmed Hussen, Liberal, York South—Weston, ON]

No, it's not rhetoric.

[Jenny Kwan, NDP, Vancouver East, BC]

—to say that all options are on the table for consideration, because this matters in terms of people's lives.

[Ahmed Hussen, Liberal, York South—Weston, ON]

No, of course; it's not fair—

[Jenny Kwan, NDP, Vancouver East, BC]

The minister talked about a cost-benefit analysis. In fact, the benefit-analysis side is actually missing with respect to this work.

The witnesses all came forward to talk about the contributions of their family unit, but as well, they talked about the person who has been identified as having a different ability in terms of their contributions. Some of it cannot be quantified in a dollars-and-cents way per se, but some could be. Even then, the excessive demand provision applies to them, but there's no consideration as to the benefits with respect to that. The process in terms of this approach is fundamentally flawed with respect to this. I would ask the minister to take a clear look at this, because the approach that has been undertaken does not take in an evaluation of the benefits side.

The other issue that I would bring to the minister's attention is that in the application of the process, the government officials stated that housing, for example, is not considered as a cost in determining whether a person who contributes is part of the excessive demand.... I have a letter here from a lawyer who brought this up in an actual case. The letter from the officials lists “supportive housing” as an issue to be considered as excessive demand, and that was one of the reasons they were being rejected. The application of the law is flawed.

I will ask the minister this question: would you agree that in terms of how the government came up with the numbers to determine what is deemed to be excessive demand, the analysis is flawed, and that the application of that policy is also flawed?

[Ahmed Hussen, Liberal, York South—Weston, ON]

First of all, before I answer the question, I would just reassure the honourable member that this is not an exercise in rhetoric on my part. I am very cognizant of the fairness issues that are raised by this policy, which is why I'm very committed to not only conducting the review but also receiving recommendations from this committee.

If we read the provision, the regulation talks about what excessive demand is, and paragraph 1(1)(b) defines social services. Social services include any social services such as home care as well as specialized residence and residential services, so that addresses your issue around housing.

[Jenny Kwan, NDP, Vancouver East, BC]

Minister, would you agree that the formula for determining excessive demand, with which the government has come forward, is flawed?

[Ahmed Hussen, Liberal, York South—Weston, ON]

I can't comment on that. What I can say to you is that the whole policy is being reviewed. As part of your recommendations, if you feel strongly that the process in its application is flawed and you bring forward options to address that flaw, then I'm open to that.

[Jenny Kwan, NDP, Vancouver East, BC]

My question to you, Minister—

[The Chair, Liberal, Rob Oliphant]

I'm afraid that's the end of your time.

I just want to clarify to the committee what I said about the request for information. This committee does have a reputation, a good reputation, for being one of the most demanding with respect to officials' questions, and that's very appropriate.

With respect to this study, the department has responded with 26 answers to questions raised by committee members. I believe a couple may still be in translation, and a couple were combined. However, there are no outstanding questions with respect to our study on medical inadmissibility.

We thank the officials. We know that places a burden on them.

With respect to the motion Ms. Rempel referred to, that had to do with our study on the irregular border crossings, and there remains one outstanding request. That request deals with the request of the provinces and territories to IRCC—there are requests outstanding from other departments—to get information on costs from the provinces engaged in this, and the department is awaiting information from the provinces on that one. So there is an outstanding IRCC request on the other study. However, we do have requests from other departments that may not be as used to our requests as IRCC is.

We thank you for your diligence in getting those answers to us.

I do want to mention, as well, because we have asked about the provinces and territories, that we have also as a committee asked the provinces and territories to weigh in on our study on this, and we have approached the 13 governments. All of them declined to appear before our committee. They were then asked if they'd like to submit written submissions. Two have responded, Nunavut and Saskatchewan, and Saskatchewan's answer is in translation now. Nunavut's was a very brief letter. That's where we are with those requests in our due diligence in attempting to get the provinces' opinions on that.

I think I've clarified that. When I said most of the stuff is in, I mean all of it's in with respect to this study, and we're awaiting one thing on the irregular border crossings.

This gives me a chance to again thank Ms. Edlund in particular but also all of the officials for their work on behalf of the Parliament of Canada, for their accountability to us, and for being effective in doing that.

Thank you.

Mr. Sarai and Mr. Whalen, I believe, are next.

[Nick Whalen, Liberal, St. John's East, NL]

Thank you very much, Mr. Chair, and thanks, Mr. Sarai, for providing me the first three and half minutes to make some comments and ask some questions.

In the very work that Ms. Rempel and Ms. Kwan have diligently done, they've accurately summarized the situation before the committee, as you would have seen in the blues. The issue isn't whether or not we should change paragraph 38(1)(c). We should. The question is really whether we should eliminate it entirely or, if we do retain it in some fashion, how we can retain it in a way that will preserve the human rights and dignity of applicants and mesh with Canadian values.

I have to say that at this point I side with Ms. Kwan. On the basis of the evidence before me thus far, I do not see how, in a free and democratic society, we can justify any threshold under the Oakes test that would reflect the importance of section 15 of the charter. Any limitation in this particular context, based on the evidence before us, just seems to be out of line with our values.

I highlight the fact that about 170,000 applicants per year would be affected by the provision. Amongst those, only about 1,000 are rejected, so we are cleansing that 170,000 of 1,000 people who are too sick or disabled to come into the country. Right off the bat, just in making that statement, you realize how egregious this is. When we balance the economic benefit of those 170,000 people and the social benefit of those 170,000 people to the nation at large, it greatly dwarfs the cost of the health care for that 1,000.

I would note further that even if we do look at this $135 million a year, or whatever number that may be—some people have said it's less, and some of the testimony has been that it underestimates—regardless, that number is de minimis when compared to the overall national spending on those types of services. It's impossible to see how allowing these 1,000 applicants into our country and cleansing our own souls would put social services or the health care system in any real jeopardy.

If the committee recommends that we simply eliminate paragraph 38(1)(c) and you accept this, how can we be sure that the application of paragraphs 38(1)(a) and (b) don't allow discrimination on the basis of disability or health status through the back door in terms of what the committee and you have explicitly asked the government to do through the front door? I want to see if there are any mechanisms within the act that we should also be looking at. If we want to eliminate paragraph 38(1)(c), might there still be some discrimination existing in paragraphs 38(1)(a) and (b) that we haven't canvassed? Nobody has asked for those to be eliminated, and yet I'm concerned that they could allow government and the department to continue to discriminate against the disabled or the infirm.

Thank you.

[Ahmed Hussen, Liberal, York South—Weston, ON]

I don't think paragraphs 38(1)(a) and (b) are connected to paragraph 38(1)(c). Paragraph 38(1)(b) is self-explanatory, but I believe (a) deals with issues around...an example would be people who have tuberculosis and who are screened to make sure that they don't spread TB in Canada. That's the public health example. I don't think that's the same as paragraph (c).

I think what we're looking at is paragraph 38(1)(c), and there we have a number of options. One is to double or triple the current threshold as to where it kicks in. Right now, it is at $33,275. We could double or triple that. Second, we could strengthen or clarify wait-list consideration by adding a schedule of services with wait-lists by jurisdiction. The other one is that in the definition of services we could remove special education and related services from consideration in paragraph 38(1)(c). We could exempt certain immigration groups and consider exempting additional immigration categories in the legislation: temporary residents, economic class, principal applicants, and dependants. We could stay with the status quo, or we could completely eliminate it.

All of those things are under consideration, but we have to hear from you and others on how to proceed with this.

[Nick Whalen, Liberal, St. John's East, NL]

Thank you, Minister.

I must say that at this point in time I do not see how raising the threshold and excluding fewer people changes the fact that excluding anyone is prima facie discriminatory and violates Canadian values.

Mr. Sarai.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Thank you, Minister.

Thank you, Mr. Whelan.

We heard testimony earlier in terms of how much it costs. The average of about $7,000 is the threshold for medical inadmissibility, that being what an average Canadian expends in a year on medical expenses. When we actually take 170,000, the number Mr. Whelan and I are using—when you take out refugees and you take out family class immigrants, who are exempt already, it's approximately 170,000—it's only 900 people. And for those 900 people, if they were admitted, the average would actually be $7,000. So we are not pushing the average higher because, as Canadians, we have the same diseases, same illnesses, and same disabilities. Taking all of that into consideration, our expenses are $7,000. In fact right now we're actually probably lowering the average artificially by excluding them.

I would say that initially I thought it was a good policy, because that would perhaps be a big burden on Canadians, but then I looked back—and I don't want to equate it to this—and it's no different from the slave trade, in which only those selected as the strongest and the most able-bodied were brought from Africa. It's not that that whole policy is good at all, but I'm saying it is akin to discriminating when we're picking only people who are healthy, fully functioning, with no intellectual disabilities and no physical disabilities. I think as a country, when we look at the cost, even if it was double the average per person, we'd be looking at such a small number. Nine hundred times $7,000 is $6.3 million. Even if you doubled that, it would still be only $12 million or $13 million. If you triple that it's still an inconsequential number compared to overall immigration. I'd like to express my opinion on that, and I want to share that with you, Minister.

Second, the committee has heard from witnesses who applied for permanent residency status in Canada, many of whom have been refused based on medical inadmissibility. What's the IRCC doing to mitigate those challenges related to medical inadmissibility faced by individuals who are already in Canada and who cannot get permanent residency because of one family member? We have heard so far that of those who have applied with a plan of mitigation, very, very few have been accepted. We've also heard some evidence that the expenses used to calculate their inadmissibility are not the ones that are actually used. For example, they're using branded drugs, when in fact our medical—

[The Chair, Liberal, Rob Oliphant]

If you would like the minister to answer, you'll have to wrap it up and give him a chance. You've getting over time.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you for the question. I'll let Ms. Edlund take that.

[Dawn Edlund]

I already spoke about the cases that end up getting approved on humanitarian and compassionate grounds. Ninety-one per cent of folks who have asked for that after a finding of excessive demand have been successful in being granted visas. On the side of the mitigation plan, you'll see in the answer to the undertakings that over the period of 2013 to 2016 just over 700 mitigation plans were successful. Again, those are two different ways in which some of this is mitigated. The actual excessive demand finding is not the end of the story all the time.

I would also say in terms of the costing using branded drugs as opposed to generics that we actually look at the advice from the treating physician and what that treating physician has prescribed for the individual. If it's a branded drug that's more expensive, such as in the context of HIV, that's what we cost against. We don't want to make a supposition that the person should be on a different drug treatment plan that's a generic and that may not work as well for them. If the specialist says the generic is fine, then we recost.

[The Chair, Liberal, Rob Oliphant]

Thank you.

[The Chair, Liberal, Rob Oliphant]

Just to clarify for the analyst, which specialist do you mean?

[Dawn Edlund]

This is the treating physician of the individual.

[The Chair, Liberal, Rob Oliphant]

That is approved by IRCC?

[Dawn Edlund]

No. Our medical officers aren't treating anyone. It's the material provided to us that says, “here are the medications the individual is currently taking for their conditions”—for example, for HIV or renal failure or whatever—and then we cost against those medications as they have already been prescribed and are being used by the individual.