Canada is doing the right thing by trying to minimize the impact of our discriminatory laws that refuse people with health conditions based on medical inadmissibility. But the consensus of everyone who works in the area is that it is not enough. 这里是我们对政府提出的对我们的医疗不容性法律的监管改革的意见.
关于修订移民和难民保护条例(过度需求)的条例声明:加拿大公报, Part I, Volume 155, Number 13
April 26, 2021
Introduction and background:
Battista Smith Migration Law Group has substantial experience and expertise in representing clients at risk of being determined medically inadmissible, 我们非常感谢有机会就s的应用提出的法规修正案发表评论. 38(1)(c) of the Act.
Our experience with health-based inadmissibility developed through decades of representation of clients based within the LGBTQ community, many of whom are living with HIV. It is also based upon our work with HIV organizations across the country, who consult us as they try to mitigate the extent to which medical inadmissibility presents a barrier for immigrants and newcomers to Canada.
Over the years, however, our experience base in advocacy for applicants to Canada with health issues has broadened to cover almost every type of health condition, including conditions such as Alzheimer’s and other mental health conditions, heart conditions, developmental issues in children, diabetes, and cancer. Clients seek us out for this expertise and for the most part we are successful in assisting them to overcome medical inadmissibility concerns. One of our notable Federal Court cases is Companioni[1] which extended the mitigation plan process beyond social services to health services such as pharmaceutical medication for which applicants can demonstrate private coverage of costs.
Our office participated in the study of excessive demand inadmissibility launched by the Standing Committee on Citizenship and Immigration in October 2017, providing written and oral submissions. Our position was that s. 38(1)(c) of the Act should be repealed because it is unconstitutional, violating s. 15 of the Canadian Charter of Rights and Freedoms.
We were pleased that in June 2018 IRCC implemented a public policy intended to mitigate the discriminatory aspects of Canadian immigration inadmissibility based on excessive demand. 我们理解，拟议的法规旨在实施这一已实施两年多的政策. However, 我们的立场是，虽然公共政策减少了基于医疗不允许的拒绝, the discriminatory aspects of the medical inadmissibility regime remain, rendering it unconstitutional. 我们认为，拟议的条例巩固了这一制度，并导致了一个更容易受到《网赌最正规的平台软件排行榜》挑战的计划. In particular, it reduces the cost saving justification of the regime while increasing arbitrariness by eliminating certain health conditions from analysis without a rational basis for leaving other conditions in the analysis.
我们注意到，《正规真人实体现场网投平台》对拟议变更的各个方面进行了分析, such as a small business lens, and gender-based analysis. Significantly, the RIAS does not include an analysis of Charter compliance, even though the majority of stakeholders and disability advocates in Canada have criticized the regime for being discriminatory and contrary to the Charter.
Summary of our representations:
该条例试图将公共政策中所载的三项重大变化编入法律:
1)过度需求成本阈值的三倍，从而引发基于过度需求的医疗不允许,
2)消除某些健康条件，从分析过度的要求不允许,
3)明确医务人员和移民官员之间的决策角色.
我们的意见将集中于前两项改变，因为它们具有《网赌最正规的平台软件排行榜》的后果. As explained in further detail below, we believe that these changes increase, rather than decrease, the regime’s non-compliance with the Charter. In particular,
- The medical inadmissibility regime has a discriminatory history and impact,
- -该制度有节省费用的目的，提出这一目的是为了证明该制度的歧视影响是合理的,
- -拟议的条例即使不能消除，也大大减少了该制度节省费用的理由. What remains is a discriminatory history and impact.
Historical and current discriminatory impact:
加拿大最高法院在《正规真人实体现场网投平台》中详细描述了因健康原因而不予受理的歧视性历史 Hilewitz.[2] While the Hilewitz 该决定没有分析医疗不予受理条款的合宪性, it acknowledged that historically the policy “often result[ed] in the application of exclusionary euphemistic designations that concealed prejudices about, among other characteristics, disability”.
The excessive demand regime’s current discriminatory impact stems from the fact that applicants subject to the regime are viewed solely as potential burdens and no consideration is given to their anticipated contributions. Jurisprudence developed pursuant to s. 宪章第15条规定，政府的行动或法律应考虑到索赔人的实际需要, 优点, 尊重他或她作为人的价值的能力或环境不太可能限制第15(1)条, 而那些反映刻板假设和决策将违反平等保障: Lavoie v. Canada, 2002 SCC 23 at paragraph 44. The historical discrimination against persons with disabilities stereotypically views them as societal burdens and ignores their contributions.
The current excessive demand regime fails to consider the actual abilities, 在我们看来，申请人的能力和贡献可能会被发现违反s. 15. The objectives of Canadian immigration policy are social, cultural and economic. Applicants who meet these objectives are currently rejected on the basis of s. 38(1)(c)未考虑其潜在贡献是否超过对保健或社会服务的预期需求. 因此, a challenge to excessive demand inadmissibility would easily, in our opinion, lead to a finding of discrimination contrary to s. 15.
The cost saving justification:
The saving of costs constituting an “excessive demand” is advanced as a justification for the discrimination inherent in the excessive demand inadmissibility regime.
As described in Hilewitz, Canada’s initial categorical exclusion of people with health conditions evolved into an approach which justified exclusion based on the excessive cost of treating the health condition. 加拿大节省的成本越多，就越能证明该制度的合理性, while a lower or marginal cost saving will render the regime less justifiable.
网赌最正规的平台软件排行榜政策的趋势是限制和限制过度需求制度的影响, thereby restricting and limiting its cost saving justification. At one time, 过分的要求不被接受适用于所有移民和临时居住类别.[3] Currently, they apply to some temporary resident categories, economic categories, 以及基于人道主义和同情理由申请永久居留权的成功申请人. Economic and humanitarian and compassionate admissions are targeted to be approximately 60% of permanent admissions in the 2021-2023 levels plan. [4] 因此，每年获得永久居留权的移民中，几乎有一半是免税的.
The evidence before the Standing Committee, prior to the current public policy, was that concerns of excessive demand inadmissibility arose in only 0.2% of applications annually. The estimated cost saving at that time was $2.7 million annually ($135 million over 5 years).[5]
然而，这一成本被夸大了，因为它没有考虑到一些0.2% of applications raising medical inadmissibility concerns would not in fact be found to be medically inadmissible after mitigation plans and humanitarian and compassionate circumstances are taken into consideration. 它也是不准确的，因为它没有包括执行过度要求制度所涉及的行政费用, as described in the RIAS, which must be factored in to reduce savings from the regime.
As noted in the RIAS, annual health spending in Canada amounts to $172 billion. The cost saving from the medical inadmissibility provision therefore, was 0.0016% of the annual healthcare budget in Canada. This can hardly be classified as a saving of an excessive cost.
Under the public policy, the excessive demand threshold for inadmissibility is tripled, 由于医疗不允许，一些健康状况已从评估中删除. It can therefore be assumed that the current savings from the medical inadmissibility regime under the public policy is significantly less than 0.0016%.
The cost saving justification of the medical inadmissibility regime, therefore, is negligible to non-existent. What remains is a discriminatory regime without justification.
In Canadian Charter jurisprudence, 任意性是一种被认为破坏正当理由的特征: R. v. 巴特勒, [1992] 1 S.C.R. 452.
The proposed regulations redefine “health services” and “social services” to remove from consideration certain health conditions “that persons with disabilities require to help them overcome limitations to their participation in society”. These conditions are identified as those which “create a barrier to immigration for many individuals with health conditions that are in fact manageable” and “would be able to make an economic and social contribution to Canada” “despite their health condition. Special education services are identified as an example of such a service.
从保健服务的定义中明确删除的是脊医和理疗师提供的服务, 特殊教育服务明确地从社会服务的定义中移除, social and vocational rehabilitation services, and personal support services.
其余使个人不能被接受的服务包括药品和助听器等辅助器具, wheelchairs and prosthetics. 医院外科手术，如膝关节和髋关节置换手术也被纳入服务范围.
As stated above, the justification for removing some services from those which render an individual inadmissible is the theory that these services help individuals “overcome limitations to their participation in society”. Yet is it difficult to understand how medication which assists someone manage a health condition does not assist them to participate in society as much as physiotherapist or chiropractic treatment. 很难理解如何辅助设备，如轮椅或假肢, or a joint replacement, 不像特殊教育服务那样帮助别人参与社会.
For these reasons, the redefinition of services subject to the medical inadmissibility regime incorporates arbitrariness into an already discriminatory regime and renders it more vulnerable to a claim that it is contrary to the Charter.
The excessive demands regime represents discrimination without justification:
这些数字表明，过度需求制度的成本节约几乎不存在. The justification for the regime cannot be supported. 剩下的是一个带有歧视根源和当前歧视影响的政权, with no justification.
Conclusion
The proposed Regulations implement a regime is disconnected from the legislation’s cost saving purpose and perpetrates discrimination by viewing applicants in stereotypical discriminatory manner. 条例和规约的部分，他们已经发展，s. 38(1)(c) of the Act, are contrary to s. 15(1) of the Charter. For these reasons, we do not support the promulgation of the proposed Regulations.
BATTISTA SMITH MIGRATION LAW GROUP
Michael Battista*
for Michael Battista and Adrienne Smith
*获律师协会认证为移民和难民保护法专家
[1] Companioni v. Canada (Citizenship and Immigration), 2009 FC 1315 [2] Hilewitz v. Canada (Minister of Citizenship and Immigration) 2005 SCC 57 supra, para. 41-53. [3] Immigration Act, 1976, c. 52, s. 19(1)(ii). [4] IRCC, 2021-2023 Immigration Levels Plan: http://www.canada.ca/en/immigration-refugees-citizenship/news/notices/supplementary-immigration-levels-2021-2023.html [5] Government of Canada, Standing Committee on Citizenship and Immigration, Report 15建设包容的加拿大:使移民和难民保护法与现代价值观保持一致, Adopted by the Committee December 13, 2017.