Canada is doing the right thing by trying to minimize the impact of our discriminatory laws that refuse people with health conditions based on medical inadmissibility. But the consensus of everyone who works in the area is that it is not enough. Here are our comments on the government’s proposed regulatory changes to our medical inadmissibility laws.
Representations concerning Regulations Amending the Immigration and Refugee Protection Regulations (Excessive Demand): Canada Gazette, Part I, Volume 155, Number 13
April 26, 2021
Introduction and background:
Battista Smith Migration Law Group has substantial experience and expertise in representing clients at risk of being determined medically inadmissible, and we are grateful for the opportunity to comment on proposed regulatory amendments regarding the application of s. 38(1)(c) of the Act.
Our experience with health-based inadmissibility developed through decades of representation of clients based within the LGBTQ community, many of whom are living with HIV. It is also based upon our work with HIV organizations across the country, who consult us as they try to mitigate the extent to which medical inadmissibility presents a barrier for immigrants and newcomers to Canada.
Over the years, however, our experience base in advocacy for applicants to Canada with health issues has broadened to cover almost every type of health condition, including conditions such as Alzheimer’s and other mental health conditions, heart conditions, developmental issues in children, diabetes, and cancer. Clients seek us out for this expertise and for the most part we are successful in assisting them to overcome medical inadmissibility concerns. One of our notable Federal Court cases is Companioni which extended the mitigation plan process beyond social services to health services such as pharmaceutical medication for which applicants can demonstrate private coverage of costs.
Our office participated in the study of excessive demand inadmissibility launched by the Standing Committee on Citizenship and Immigration in October 2017, providing written and oral submissions. Our position was that s. 38(1)(c) of the Act should be repealed because it is unconstitutional, violating s. 15 of the Canadian Charter of Rights and Freedoms.
We were pleased that in June 2018 IRCC implemented a public policy intended to mitigate the discriminatory aspects of Canadian immigration inadmissibility based on excessive demand. We understand that the proposed regulations are intended to implement this policy which has been in place for over two years. However, it is our position that while the public policy has reduced refusals based on medical inadmissibility, the discriminatory aspects of the medical inadmissibility regime remain, rendering it unconstitutional. We believe that the proposed regulations solidify that regime and result in a scheme that is more vulnerable to Charter challenge. In particular, it reduces the cost saving justification of the regime while increasing arbitrariness by eliminating certain health conditions from analysis without a rational basis for leaving other conditions in the analysis.
We note that the Regulatory Impact Analysis Statement conducts an analysis of various aspects of the proposed change, such as a small business lens, and gender-based analysis. Significantly, the RIAS does not include an analysis of Charter compliance, even though the majority of stakeholders and disability advocates in Canada have criticized the regime for being discriminatory and contrary to the Charter.
Summary of our representations:
The Regulations attempt to codify three major changes contained in the public policy:
1) The tripling of the excessive demand cost threshold which triggers medical inadmissibility based on excessive demand,
2) The elimination of certain health conditions from an analysis of excessive demand inadmissibility,
3) The clarification of decision-making roles between medical officers and migration officers.
Our representations will focus on the first two changes because these have Charter consequences. As explained in further detail below, we believe that these changes increase, rather than decrease, the regime’s non-compliance with the Charter. In particular,
- The medical inadmissibility regime has a discriminatory history and impact,
- The regime has a cost-saving purpose which is advanced to justify the regime’s discriminatory impact,
- The proposed Regulations significantly diminish if not eliminate the cost-saving justification for the regime. What remains is a discriminatory history and impact.
Historical and current discriminatory impact:
The discriminatory history of inadmissibility on the basis of health was thoroughly described by the Supreme Court of Canada in Hilewitz. While the Hilewitz decision did not analyze the constitutionality of the medical inadmissibility provision, it acknowledged that historically the policy “often result[ed] in the application of exclusionary euphemistic designations that concealed prejudices about, among other characteristics, disability”.
The excessive demand regime’s current discriminatory impact stems from the fact that applicants subject to the regime are viewed solely as potential burdens and no consideration is given to their anticipated contributions. Jurisprudence developed pursuant to s. 15 of the Charter establishes that government actions or laws that take into account the claimant’s actual needs, merits, capacities or circumstances in a way that respects his or her value as a human being are less likely to limit section 15(1), whereas those that reflect stereotypical assumptions and decision-making will violate the equality guarantee: Lavoie v. Canada, 2002 SCC 23 at paragraph 44. The historical discrimination against persons with disabilities stereotypically views them as societal burdens and ignores their contributions.
The current excessive demand regime fails to consider the actual abilities, capacities and contributions of applicants and in our opinion would likely be found to violate s. 15. The objectives of Canadian immigration policy are social, cultural and economic. Applicants who meet these objectives are currently rejected on the basis of s. 38(1)(c) without any consideration of whether their potential contributions outweigh the projected demand on health or social services. Thus, a challenge to excessive demand inadmissibility would easily, in our opinion, lead to a finding of discrimination contrary to s. 15.
The cost saving justification:
The saving of costs constituting an “excessive demand” is advanced as a justification for the discrimination inherent in the excessive demand inadmissibility regime.
As described in Hilewitz, Canada’s initial categorical exclusion of people with health conditions evolved into an approach which justified exclusion based on the excessive cost of treating the health condition. A higher cost saving to Canada would tend to give greater justification to the regime, while a lower or marginal cost saving will render the regime less justifiable.
The trend in Canadian immigration policy has been toward restricting and limiting the impact of the excessive demand regime, thereby restricting and limiting its cost saving justification. At one time, excessive demand inadmissibility applied to all immigration and temporary residence categories. Currently, they apply to some temporary resident categories, economic categories, and successful applicants for permanent residence on humanitarian and compassionate grounds. Economic and humanitarian and compassionate admissions are targeted to be approximately 60% of permanent admissions in the 2021-2023 levels plan.  Therefore almost half of immigrants receiving permanent residence annually are exempt from the regime.
The evidence before the Standing Committee, prior to the current public policy, was that concerns of excessive demand inadmissibility arose in only 0.2% of applications annually. The estimated cost saving at that time was $2.7 million annually ($135 million over 5 years).
However, this cost is exaggerated because it does not account for the fact that some of the 0.2% of applications raising medical inadmissibility concerns would not in fact be found to be medically inadmissible after mitigation plans and humanitarian and compassionate circumstances are taken into consideration. It is also inaccurate because it does not incorporate the administrative expenses involved in enforcing the excessive demands regime, as described in the RIAS, which must be factored in to reduce savings from the regime.
As noted in the RIAS, annual health spending in Canada amounts to $172 billion. The cost saving from the medical inadmissibility provision therefore, was 0.0016% of the annual healthcare budget in Canada. This can hardly be classified as a saving of an excessive cost.
Under the public policy, the excessive demand threshold for inadmissibility is tripled, and several health conditions have been removed from assessment for medical inadmissibility. It can therefore be assumed that the current savings from the medical inadmissibility regime under the public policy is significantly less than 0.0016%.
The cost saving justification of the medical inadmissibility regime, therefore, is negligible to non-existent. What remains is a discriminatory regime without justification.
In Canadian Charter jurisprudence, arbitrariness is a characteristic that is recognized as undermining a justification: R. v. Butler,  1 S.C.R. 452.
The proposed regulations redefine “health services” and “social services” to remove from consideration certain health conditions “that persons with disabilities require to help them overcome limitations to their participation in society”. These conditions are identified as those which “create a barrier to immigration for many individuals with health conditions that are in fact manageable” and “would be able to make an economic and social contribution to Canada” “despite their health condition. Special education services are identified as an example of such a service.
Explicitly removed from the definition of health services are services provided by chiropractors and physiotherapists, and explicitly removed from the definition of social services are special education services, social and vocational rehabilitation services, and personal support services.
Remaining among the services which render an individual inadmissible are pharmaceuticals and assistive devices such as hearing aids, wheelchairs and prosthetics. Hospital surgeries such as knee and hip replacements are also among captured services.
As stated above, the justification for removing some services from those which render an individual inadmissible is the theory that these services help individuals “overcome limitations to their participation in society”. Yet is it difficult to understand how medication which assists someone manage a health condition does not assist them to participate in society as much as physiotherapist or chiropractic treatment. It is difficult to understand how an assistive device such as a wheelchair or prosthetics, or a joint replacement, does not assist someone to participate in society as much as special education services.
For these reasons, the redefinition of services subject to the medical inadmissibility regime incorporates arbitrariness into an already discriminatory regime and renders it more vulnerable to a claim that it is contrary to the Charter.
The excessive demands regime represents discrimination without justification:
The numbers indicate that the cost saving of the excessive demands regime is close to non-existent. The justification for the regime cannot be supported. What remains is a regime with a discriminatory roots and current discriminatory impact, with no justification.
The proposed Regulations implement a regime is disconnected from the legislation’s cost saving purpose and perpetrates discrimination by viewing applicants in stereotypical discriminatory manner. The Regulations and the section of the statute under which they have been developed, s. 38(1)(c) of the Act, are contrary to s. 15(1) of the Charter. For these reasons, we do not support the promulgation of the proposed Regulations.
BATTISTA SMITH MIGRATION LAW GROUP
for Michael Battista and Adrienne Smith
*Certified by the Law Society as a Specialist in Immigration and Refugee Protection Law
 Companioni v. Canada (Citizenship and Immigration), 2009 FC 1315  Hilewitz v. Canada (Minister of Citizenship and Immigration) 2005 SCC 57 supra, para. 41-53.  Immigration Act, 1976, c. 52, s. 19(1)(ii).  IRCC, 2021-2023 Immigration Levels Plan: https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/supplementary-immigration-levels-2021-2023.html  Government of Canada, Standing Committee on Citizenship and Immigration, Report 15:Building an Inclusive Canada: Bringing the Immigration and Refugee Protection Act in Step with Modern Values, Adopted by the Committee December 13, 2017.