Immigration and Disability: Stephen Hawking Could Never Become a Canadian

Once again the issue of immigration and disability has arisen and once again Canadians with disabilities realize that if they had not been born here they could never become a Canadian for the simple reason that they have a disability.

This past summer the Chapman family, accepted in the Nova Scotia nominee program for immigration to Canada, experienced the challenges of trying to immigrate to Canada with a child with a disability. While not able to research all the facts in this case, if the information provided is accurate, then truly immigration to Canada for persons with disabilities is going to remain difficult.

The Chapman family includes a nine year-old daughter with a disability. The Chapman's came to Canada as visitors/tourists and were aware that they would have to leave the country and continue their application for immigration from outside Canada. However because they have a child with a disability, they were first told they could not enter the country, then told they could stay for a limited time period. Their British passports were seized and after about 30 days of being in Canada they were ordered to leave and return to the UK—all because their child had a disability. This case is bizarre, CCD has never heard of the excessive demand clause being applied to individuals coming to Canada as visitors. According to Mr. Chapman the Canada Border Services Agency (CBSA) told them their daughter had a "lifetime ban" on entering Canada because of her disability. It appears to CCD that Immigration Canada is so concerned with the "excessive demand" clause of the Immigration Act that even though the Chapman family were in Canada this summer as visitors, their application for immigration and the fact they have a daughter with a disability was enough for them to order the family to leave Canada at the end of July this summer. If visitors to Canada who have a disability can be denied, this brings new meaning to discrimination on the basis of disability. Most visitors to Canada carry health insurance and if they required medical services their health insurance would cover the costs. CCD will continue to keep in touch with the Chapman family and see what transpires regarding their immigration.

What is the history of this issue?

Over twenty-five years ago CCD began advocating for a more open Canadian immigration policy for persons with disabilities. In the 1984 federal election campaign CCD raised this issue in our Challenge Ballot. We asked all candidates to support "Canada making a commitment to the United Nations to accept 50 or more disabled refugees per year." CCD also raised amendment of the Immigration Act to bring it in line with the Charter and ensure that disability was a prohibited ground of discrimination.

CCD, along with the now defunct Canadian Disability Rights Council, advocated for reform of the Immigration Act in 1991 through Omnibus legislation. At that time the Immigration Act required that applicants for permanent resident status undergo a medical examination to determine if they were suffering from any disease, disorder, disability or other health impairment by virtue of which "they are likely to be a danger to public health or public safety" or whose admission "would or might reasonably be expected to cause excessive demands on health or social services." This advocacy work resulted in removing the specific reference to disability but the "excessive demand" clause was retained.

In 2000 the Department of Citizenship and Immigration exempted Convention refugees and their dependants from the excessive demand clause. They stated "it is inconsistent for Canada to accept that a Convention refugee overseas is in need of protection but treat them as inadmissible because they would cause excessive demands on health services." The Department at the time also stated that "the financial impact on the provinces and territories from these excessive demand exemptions is expected to be relatively small."

The Chesters Case:

In 2001 CCD applied for and was granted intervener status in the Angela Chesters case being heard by the Federal Court. Angela Chesters, a German woman who uses a wheelchair, married in 1991 a Canadian citizen then working in Britain. Mr. Chesters in 1994 returned to Canada after getting a promotion. Ms. Chesters, applied to immigrate with the sponsorship of her Canadian husband but was denied permanent residency in Canada because she had multiple sclerosis. Ms. Chesters was allowed into Canada as a visitor and later received a temporary minister's permit allowing her to live in Mississauga, Ontario with her husband. But the prohibition on permanent residency remained. Ms. Chesters argued that the Immigration Act breached the equality guarantees of the Charter and ARCH, her legal counsel, took this case to the Federal Court. The Government of Canada tried to settle the lawsuit by offering Ms. Chesters immediate landed immigrant status but Ms. Chesters declined the offer and continued to seek changes to the law. At the same time the Government indicated that they would amend the Act to ensure that the excessive demand clause would not be applied to immigrants coming to Canada to join family members. The Government amendments did waive the "excessive demand" clause for refugees but the amendments for family sponsorship never became law. After an unsuccessful bid to change the law through the Courts Ms. Chesters left Canada to accept a teaching position in Germany. Her husband followed.

The Hilewitz Case:

In 2000 David Hilewitz tried to immigrate from South Africa to Canada with his son Gavin who has a mild developmental disability. They were denied immigration and began a challenge of the "excessive demand" clause. The result of this challenge was for the Supreme Court to uphold the excessive demand clause but order that it not be applied as a blanket denial of immigration. Individual assessments must be made to determine whether an "excessive demand" is likely to be placed on Canada's health and social services.

Why Do Canadians with Disabilities Want Reform of the Immigration Act?

• CCD believes the Immigration Act, both as law and in its practice, continues to discriminate against persons with disabilities and does not meet the equality guarantees of the Charter.
• CCD believes the Immigration Act perpetuates long held stereotypical views of persons with disabilities as being less deserving and a burden on society.
• CCD believes that the current law devalues Canadians with disabilities and does nothing to recognize the contribution persons with disabilities and their families can and do make to Canadian society.

CCD calls upon the Government of Canada to undertake a review of the "excessive demand" clause. This review should once again consider whether this clause is discriminatory both in its policy and/or its practice.