Every so often in Canada (and other countries but I’m focusing on Canada here) a sad story will appear in the papers. It’s one that we’ve seen before and will unfortunately see again. A family has been denied permanent residency because a family member (usually a minor child) is disabled. The most recent iteration of this recurring story involves the family of York University professor Felipe Montoya. The Montoyas were denied permanent residency because their son, Nico has Down Syndrome.
Nico is being refused under Canada’s Immigration and Refugee Protection Act under health grounds. The relevant section of the act maintains that someone can be denied permanent residency in Canada if,
38 (1) A foreign national is inadmissible on health grounds if their health condition
(a) is likely to be a danger to public health;
(b) is likely to be a danger to public safety; or
(c) might reasonably be expected to cause excessive demand on health or social services.
Nico is being refused under the third subsection about the potential drain on health or social services.
This portion of the Act is a catchall which is used to summarily refuse residency to disabled people. It places a burden of proof that affects no other applicants as regards health. At least the first two subsections are dealing with immediately identifiable issues like whether a person is currently ill. The third however requires disabled people to prove that they will never be seriously ill or that their conditions will not deteriorate. While the wording suggests that the risk of expense must be reasonable to apply, in practice it becomes swiftly apparent that the presence of disability regardless of whether or not the individual is currently in need of expensive treatment or services or if those services might require alternate funding anyway.
There is no onus on a nondisabled applicant to prove that they will never contract cancer, experience a disabling accident or simply experience prolonged unemployment necessitating the use of social supports. This is however completely impossible to guarantee. It is also entirely impossible to prove that a disabled applicant will be a burden on the Canadian public.
The thing is, that this section of Canadian immigration legislation is of questionable constitutionality. It also most definitely does contravene the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
Section 15 of the Charter of Rights and Freedoms states that,
Marginal note:Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Marginal note:Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
You will notice that 15(2) directly states that laws or actions that encourage the equal treatment of the protected groups listed in 15(1) are allowed. This means that the financial hardship argument found in immigration legislation in regards to disabled applicants is flimsy at best. Legal jurisprudence on the issue of constitutional exceptions for financial reasons bares this out, with the courts having
stated its intention to continue to view budgetary justifications for Charter breaches with scepticism, “because there are always budgetary constraints and there are always other pressing government priorities.”
And yes, the Charter of Rights and Freedoms applies to all laws, even those dealing with nonCanadians such as immigration law.
The problem here is not that Canada’s immigration law is constitutional but that the government will maintain a convenient discriminatory and unconstitutional law until someone raises a Supreme Court Charter Challenge. They are gambling that people unfairly affected by unjust laws will not have the money or years to invest in a Supreme Court challenge (and yes Charter challenges take years, even the successful ones).
When the Charter was first proposed people were hopeful particularly as regards section 15 that marginalized people would not have to fight for legal protections anymore. It was hoped that the Charter would force the government to be proactive in aligning Canadian legislation with the Charter. Unfortunately this has not been the case and people have repeatedly had to fight for the supposed rights that the Charter claims to guarantee.
The government bets that people won’t have the time, money or energy to fight and doesn’t back down when they do. They do this despite the Charter and despite the UNCRPD which Canada has ratified. Article 18 of the UNCRPD directly states that
1. States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities:
- Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability;
- Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement;
- Are free to leave any country, including their own;
- Are not deprived, arbitrarily or on the basis of disability, of the right to enter their own country.
2. Children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents.
18(2) is particularly important to one case of refusing a Yukon family residency because in this case the disabled child was born in Canada and thus a Canadian citizen but because the rest of the family were noncitizens, when they were deported, they had to choose to either take him with them (and saving Canada the cost of his care) or leaving him behind (ensuring care but depriving them of him). Basically, Canada was able to deprive a disabled Canadian citizen of his rights by forcing his noncitizen parents into an impossible choice.
It’s hard to know just how often this sort of exemption actually happens. We tend to only hear about it if the family fights back. It is impossible to know how many simply accept their rejections and return to their countries of origin or are denied entry to Canada in the first place.
When stories are publicized, they are frequently very sympathetically presented (even in cases where writers are not opposed to the exclusionary nature of our immigration law. see here for one such example focusing on the Montoya case). I suspect it is because people see these stories as exceptions. The fact that they frequently focus on children also helps tug at people’s heart strings. This certainly seems to have been the case for Canadian comedian Rick Mercer who devoted one of his famous rants to the Montoyas case
While Mercer has some fantastic things to say in his rant. He acknowledges that Nico Montoya will grow up and that in no way undermines his value as a person. He calls out the ridiculousness of predicting how much of a burden someone will be and the related assumption that this means that person has nothing to contribute.
It is however a bit disheartening that Mercer doesn’t appear to realize that this issue is bigger than kids with Down Syndrome. He says,
Apparently there is a war on kids with Down Syndrome that I was completely unaware of.
If he had just stuck to commenting on this particular case or other cases involving permanent residency, I would let’s be honest still be annoyed because the issue is far more encompassing than that but I can understand that sometimes the bigger issue is to huge to tackle all at once. My issue starts with the fact that he doesn’t seem to realize that there is a bigger issue. He goes on to say,
What’s next, we’re gonna say that family can’t come in because that kid in grade eight just failed his math test, or that one’s got a funny foot (emphasis mine)
He says this as though it would be utterly unthinkable to deny someone residency on the grounds of having a “funny foot” but the fact of the matter is that it could very well be a reason for exclusion.
The reality is that this affects more than just kids with Down Syndrome. Hell, it affects more than just kids. Consider Chris Reynolds who was 21 when he was deemed inadmissible on his family’s permanent residency application. His father, Thomas E. Reynolds is a professor (there seems to be a trend here) at Emanuel College at the University of Toronto. Chris was refused on the grounds of his Asperger’s Syndrome diagnosis. This despite the fact that all of his medical expenses were covered by his father’s private insurance, not medicare. There is no followup to the case that I could find but Dr. Reynolds is still listed as faculty at Emanuel College so I can only hope that his reapplication for the family to be considered for permanent residency on compassionate grounds was successful.
Consider also the case of Eniko Reka Kincses and her daughter Boglarka who were denied permanent residency because Boglarka has cerebral palsy. In this case the Saskatchewan government (where they were living) intervened and they were allowed to stay but the reason is worth highlighting,
Health Minister Dustin Duncan and Economy Minister Bill Boyd penned a joint letter of support for the Kincses family to federal officials.
They said Kincses [the mother] was a valuable, skilled worker and assured the federal government the province was willing to cover Boglarka’s “minimal” health care and social services needs”
Enika Reka Kincses wanted to open a care facility, so that she could not only provide care for her daughter herself but would also provide a service that the province sorely needed. Saskatchewan did not see any particular value in Boglarka but rather thought that her assumed deficits were outweighed by the skills of her mother.
This is a trend that continues in both the Montoya and Reynolds cases. The skills and contributions of the parents are highlighted as is to say “on balance if we let them stay at least we benefit from the work of the parents”. Sure, these stories tug at the heartstrings regardless but it’s hard not to wonder how many stories we don’t hear because the parents aren’t highly skilled as an offset to their child’s disability. These stories are more palatable because the disabled person comes with a consolation prize to offset the possible burden they may one day pose.
Disabled people in these scenarios are not seen as having any inherent value beyond that they may be cute children. This is bad enough in the context of what it says about disabled people trying to enter Canada. The problem worsens when you realize that this is essentially how Canada views its disabled citizens.
If disabled Canadians were viewed as having inherent value it would be harder to argue for this discriminatory immigration policy. What the Canadian government and public have to say about foreign disabled people is likely to be a reflection on how those of us who are here by right of birth are viewed.
In order to foster an inclusive society, Canada needs to show that they value all disabled people. Not pay lip service to focusing on those of us who are already here. It’s a little hard to argue that we are valued members of society when people are being excluded from the country for being like us.
Changing the law would not only improve the lives of disabled applicants because they would be considered on their merits (yes they have them, no I’m not suggesting we just let everyone in who applies) rather than have them rejected on grounds that are not only protected under the Charter but in line with international human rights agreements.
Now as I mentioned above, I know Canada is not the only country with discriminatory immigration laws. Everyone seems to be of the opinion that if they open their borders to disabled people, suddenly we will all descend on that country en masse. Again I’m not against all immigration policies so this is absurdly reactionary. Also this mentality fails to recognize that when disabled people are treated like everyone else, we tend to behave like everyone else because here’s the thing that people also miss, if disabled people can come to Canada, we can also leave. People tend to immigrate because they are offered further opportunity elsewhere but I and my fellow disabled Canadians do not have that option despite it being directly addressed in the UNCRPD.
Exclusionary laws like current immigration policy clearly show that the supposed equality we are guaranteed in the Charter of Rights and Freedoms is still little more than a dream. We are in practice little more than tolerated and then only if there is no other option.
It is time Canada led by example and fixed it’s discriminatory immigration policy because both our constitution and international agreement. Changing the law will create a legal precedent to stop the far to common excuse that disabled people are first and foremost burdens. The mentality that allows the odd story of exclusion to hit the news and illicit sympathetic emotions for exceptional cases where there is a cute child or the government seems to have overreached or the loss of a highly qualified parent makes the gamble worthwhile but glosses over the inherent discrimination that created those scenarios in the first place. People don’t want to look at the bigger picture, they are happy to get self-righteous on a case by case basis but ignore or actively support the wholesale exclusion of disabled people.
Changing the law won’t erase prejudice and discrimination in Canada but it will make it harder for those with discriminatory attitudes to justify them. But first the Canadian government needs to address it’s reliance on that prejudice and set an example not only for Canada but for the rest of the world as well. It may become harder for other countries to rationalize their own discriminatory immigration laws with Canada leading by example and advocating for change.
In the end it will help disabled people at home and abroad.
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