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Court Urges Discretion in Some Disability Cases

Editor's Note: The following article is reprinted from the Toronto Star, October 29, 2005.

Some people say you can judge a society by how it treats its weakest members. So, what about the way a society treats its weakest would-be members?

The interpretation of Canada's rules for dealing with would-be immigrants who have mental or physical disabilities continues to evolve. The Supreme Court of Canada weighed in recently on our immigration laws' "excessive demand" provisions, which can be used to bar immigrants who might strain health and social services if they were allowed to settle in Canada.

The court ruled that immigration authorities were wrong to block the immigration applications of two families--one from the Netherlands, the other from South Africa--because each had a mentally disabled child. In both cases, the court said officials failed to take into consideration the resources the families had at their disposal to help defray the cost of social services.

It is important to note that this ruling had to do with cases involving wealthy immigrants who applied in a category that required them to have considerable financial resources. Supreme Court Judge Rosie Abella, who wrote the decision, said she found it "somewhat incongruous" that we could measure potential immigrants at least in part according to their means, then refuse to take that into consideration when determining whether their disabled children might put a strain on social services.

The ruling underlined a trend away from blanket provisions barring immigrants with certain illnesses or mental or physical disabilities. Instead, the courts have increasingly pushed immigration officials to look at every individual case more closely and to weigh all factors, rather than using a cookie-cutter approach.

Not long ago, the "excessive demand" provisions applied to all classes of immigration applicants. That meant a considerable number of family class applications were refused because of illness or mental health. But in the most recent round of changes to the law, some family class immigrants were exempted from the medical provisions.

So, applications to sponsor spouses, partners and dependant children can no longer be blocked if the family member is ill or handicapped.

But the excessive demand rules still affect independent immigrants who apply to come to Canada, even though the Supreme Court ruling means officials might be more flexible in future.

Abella's ruling offered up a bit of a history lesson on how the immigration policy has changed over the years. In the 1850s, the screening of immigrants amounted to quarantining ships on arrival until passengers could be inspected by a medical superintendent. An 1859 law required that authorities be notified of passengers likely to become a public charge, including "any Lunatic, Idiotic, Deaf and Dumb, Blind or Infirm Person, not belonging to any Emigrant family".

Notably, handicapped immigrants with family support were allowed to proceed.

The 1910 Immigration Act drew a line between those with mental and physical disabilities and instituted an absolute prohibition on admission for those with mental disabilities. But individuals who were "physically defective" could be admitted if there was evidence they had some capacity to make a living or had family support.

By 1927, the list of prohibited classes was expanded to include those who were either "mentally or physically defective to such a degree as to affect their ability to earn a living." That meant even those who could demonstrate they had family support were barred entry.

In the 1970s, the notion of "excessive demand" was introduced so only those who were deemed to pose an undue burden on the system were denied entry.

We have been using variations of that standard for nearly 30 years. I wonder what people will make of it when they look back 50 years from now and examine our rules for denying entry to some immigrants whose children have mental disabilities.

You can read a copy of the Supreme Court ruling in this immigration case at the following link: www.lexum.umontreal.ca/csc-scc/en/index.html (opens in a new window) Under "Recent judgments", type in "Hilewitz v. Canada".

Email immigration@thestar.ca or fax 416-869-4410.

Reprinted with permission--Torstar Syndication Services.