Wealth Meets Health: Disabled Immigrants and Calculations of 'Excessive Demand
| Author | Constance Macintosh |
| Pages | 293-316 |
293
Wealth Meets Health: Disabled Immigrants
and Calculations of “Excessive Demand”
constance macintosh
A. INTRODUCTION
In October of , the Supreme Court of Canada released a consolidated set
of reasons for two appeals involving immigration applications from families
with children with mental or cognitive disabilities, Hilewitz v. Canada and
De Jong v. Canada. Although meeting most of Canada’s immig ration criteria,
both families were rejected. e reason? e families included a cognitively dis-
abled chil d who ran afoul of a legislative provi sion which speci cally targ ets im-
migrants whose disability would likely place an “excessive demand” on health
and social services. In such situations, the fami ly is usually oered the option
of either having their application rejected, or else agreeing to leave the disabled
Hilewitz v. Canada (Minis ter of Citizenship and Immig ration); de Jong v. Canada (Minis-
ter of Citizenship and Imm igration) SCC [Hilewitz].
Under the
Immigration Act, , S.C. –, c. [], neither “excessive demands”
nor “health or socia l services” were dened. e Im migration and Refugee Protecti on Act,
S.C. , c. [] does dene these terms i n s. : the denitions appear to larg ely be
codications of the ju risprudence under the . Pur suant to Immigration and Refuge e
Protection Regulations, SOR/- [], “health servic es” is dened as “any health
services for which t he majority of the funds are contributed by govern ments, including
the services of fa mily physicians, medic al specialists, nu rses, chiropractors and physio -
therapists, laborator y services and the supply of pharma ceutical of hospital care.” “So cial
services” is de ned as “any social serv ices, including home care, sp ecialized residence
and residential serv ices, special education ser vices, social and voc ational rehabilitation
services, p ersonal support service s and the provision of devices relate d to those services,
(a) that are intended to assist a person in fu nctioning physically, emotionall y, socially,
psychological ly or vocationally; and (b) for which the majority of the f unding, includ-
294 Health Law at the Supreme Court of Canada
family member behind. In exceptional circu mstances , there is discretion to
grant permission for the excluded family member to come with the family on a
Temporary Resident Permit.
Canada has a long history of singli ng out persons with mental and physical
disabilities as undesirable immig rants, which is to say, undesirable members of
Canadian society. Late nineteenth century legislation dictated that such indi-
viduals would not be permitted to disembark from the boat upon arrival in
Canada, unless a bond was posted on their behalf. At best, these turn of the
century policies essentialized disability as a source of social and economic bu-
rdens, and dependency. At worst, they were a eugenics-inspired head-tax.
Such a conceptualization of disability and disabled persons has been, at
least in principle, rejected by the Supreme Court and Parliament for Canad-
ian citizens. However, disabled non-citizens appear to have been le behind.
Our current immigration legislation, as interpreted by the Supreme Court in
Hilewitz, continues to resonate with our nineteenth century legislation in its
focus upon disabled individuals as an “object of expenditure,” as decits in a
scal calculation about whether it is worthwhile to let this individual and their
family in.
In the Hilewitz decision, the majority of the Court found that the “exces-
sive demands” calculation was being performed incorrectly, in that the legisla-
tion cal led for an individua lized and fact-based prediction b ased on reasonable
probabilit y, but decision-makers were rel ying upon general ities. Specically, as-
sessments were wrongly calibrated according to categories of disability, not the
ing fundi ng that provides direct or ind irect nancial supp ort to an assisted person, i s
contributed by governments, either dire ctly or through publicly-funded a gencies.”
, ibid., s. . ese permits were pre viously known as a Minister ’s Permit. e IP:
Temporary Residents Permits M anual (Citizenship and Immigr ation Canada, ) cau-
tions that “Decisions to recom mend and issue permits in these ca ses should not be made
lightly” (at ); that “in the absence of compel ling need, permits shou ld not be issued
even if the inadm issibility and ri sk are minor” (at ); and that provincial approva l is
required (at ).
M. Somervi lle & S. Wilson “Crossing Bounda ries: Travel, Immigration, Human R ights
and AIDS” () McGill L .J. –.
I take this tu rn of phrase from K. Krog h and J. Johnson, “A Life without Living : Challeng-
ing Medical a nd Economic Reductionism in Home Suppor t Policy for People with Dis-
abilities” in D. Pothier & R. D evlin, eds., Critical Disability eor y: Essays in Philosophy,
Politics, Policy, and L aw (Vancouver: UBC Press, ) at [Critical Disability eory].
Hilewitz,supra note at paras. –, , and . e majority reason s were delivered by
Abella J. for McLa chlin C.J. and Major, Bast arache, Binnie, Fish, a nd Charron JJ. e
dissenting reas ons of LeBel and Deschamps J J. were delivered by Deschamps J.
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