When Angela Chesters learned she could not reunite with her husband in Canada as a landed immigrant because she was likely to create an excessive demand on our health and social services, she felt insulted. Chesters was, and is, an independent woman who obtained a Masters degree in Science and Information Technology and who had engaged in full-time work averaging some 70 hours per week. She is bright, hardworking and had much to offer Canada in 1994.
She also had multiple sclerosis and was in a wheelchair, and so she was deemed a risk of costing Canada too much; too much in medical care, too much in occupational therapy, too much of too much. What Chesters offered by way of her hard work, bright and active mind and being a loving wife to a Canadian citizen was not factored in to the equation. She was disabled, and her value to Canada was simply never considered.
Chesters sued the government of Canada. However, in 2002, a Federal Court judge decided that Chesters was not being discriminated against because she was disabled, she was refused landing because of cost — a cost applied to everyone.
What the judge never referenced in her decision was actuarial evidence submitted on behalf of the plaintiff that foreign nationals who smoke or engage in risky behaviour, such as fast driving, cost even more to our health and social service system, yet they are never labelled an excessive demand. The judge also did not refer to evidence that very bright children who enter gifted programs and cost the school board more than average kids also cost a lot to our social service system, yet they are never “screened out” as applicants for permanent residency.
What this and other evidence revealed was that the assessment of excessive demand was not just about cost, it was and is about where that cost comes from and who is generating it. If you are disabled and may cost the system more than an average Canadian costs, then it is irrelevant whether you are Angela Chesters and work 70 hours a week or Stephen Hawking, a brilliant physicist. You will be refused. If you are a heavy smoker, however, and likely to end up with lung cancer in a Canadian hospital, you are fine.
When asked under cross-examination in Chesters how he could explain how a heavy smoker who would likely cost the taxpayers significant health-care costs could be allowed into Canada without an issue, the director of Canada Immigration’s Medical Services refused to offer a direct answer and instead said that she personally encouraged all smokers to quit! A Trumpian retort if there ever was one.
The focus on disability on a medical assessment has again come to light after Parkdale Community Legal Services began representing a live-in caregiver who faced having her permanent residency application refused as she has a son in the Philippines who is disabled. Although the law was amended after 2002 to exempt spouses, dependent children and a few others from the excessive demand assessment in recognition of its discriminatory and unfair quality, it remains a barrier to other foreign nationals and their children — those like Parkdale’s client, a nanny who had worked long hours, days and years caring for Canadians and now was denied landing in Canada because her son was disabled.
Although the Supreme Court of Canada softened the excessive demand bar in 2005 by infusing a requirement that medical officers consider a family’s willingness and ability to not access publicly funded services, it never softened the insult that a disabled child has no other value beyond health and social service costs, like any able-bodied person, and that that value must be part of the equation.
Chester’s anger at Canada for failing to consider her personal characteristics and the contribution she could make that went beyond the image of the restrictions of her wheelchair and the cost of services was justified then and remains pertinent now. Canada’s recent response to United Nations concerns over the discriminatory conduct of Canada Immigration against people with disabilities was to say that the excessive demand regime was under review. Let’s hope so.
The issue of taxpayer cost is the Trumpian justification, but it remains largely a red herring. A reply of half-truths and false news to the real issue of discrimination is disappointing. The failure of an immigration regime to understand that a child who may not be able to walk or who may need additional help in school may still contribute to Canada in ways that far exceed an accountant’s short-term assessment of cost is unacceptable.