Disabled immigrant cases reach top court
By KIRK MAKIN
From Monday's Globe and Mail
Canada's National Newspaper
Gavin Hilewitz was the sort of immigrant Canada loves to attract -- an
enthusiastic 22-year-old, possessed of a sunny temperament, a keen interest
in computers and parents worth at least $5-million.
Just one detail stood in the way of the South African man's bid to become a
Canadian: Gavin was mildly retarded. He was barred from immigrating lest he
become an "excessive" drain on Canada's social services network, and the
Hilewitz family's appeal of that decision reaches the Supreme Court of
Canada tomorrow.
The case raises several questions that are as prickly as they are legally
compelling. Are disabled people akin to damaged goods, capable of being
rejected because they were not born in perfect condition? Should the wealthy
be allowed to buy their way into Canada, when those of moderate means would
be turned away?
In the Hilewitz case, even a promise by Gavin's parents to pay privately for
special services was not enough. Officials said they were bound by a
provision Parliament passed in 1976 preventing them from considering the
factor of private wealth.
A companion case the Supreme Court is scheduled to hear tomorrow offers a
slightly different twist on the same theme. The appellants -- a Dutch
family, the de Jongs -- have a mildly retarded daughter, Dirkje.
Unlike the Hilewitz family, however, the de Jongs did not promise
immigration authorities they would pay out of their own pockets for special
education. They instead offered assurances that a school run by a Southern
Ontario branch of their Christian denomination would provide Dirkje's
special education at no expense to the public.
They, too, were denied permanent residency under the "excessive demands"
provision.
Lawyers for both the federal government and the two families aim to tap into
different values the current Supreme Court bench has frequently espoused in
recent years. The families will appeal to the court's willingness to come to
the aid of vulnerable groups. Federal lawyers, on the other hand, will play
strongly to the court's recent pattern of declining to interfere in the way
social programs are administered by government.
"Parliament alone should decide how to balance the objective of promoting
immigration to Canada by persons willing to contribute to this country, with
the responsibility of protecting the finite resources available in Canada's
public health care system," says a legal brief written by federal lawyers
Michael Morris and Urszula Kaczmarczyk.
The federal lawyers also warn that it is easy for immigrants to promise to
pay privately for special social services, but once they are in the country,
there is nothing to stop them from reneging on their commitment.
Nor, the federal brief states, can immigration officials be expected to
fully research the availability of private social services in different
regions of Canada, or to predict how long a disabled immigrant may need
specific services.
The case has attracted two legal intervenors -- the Canadian Association for
Community Living and the Ethno-Racial People with Disabilities Coalition of
Ontario -- who argue that the "excessive demands" provision devalues those
who have disabilities.
Michael Bach, executive director of CACL, said officials have far too much
leeway to reject prospective Canadians based on offensive stereotypes.
In an interview, Mr. Bach said it is an equally grave mistake to place undue
emphasis on wealth when assessing prospective immigrants. The most important
pillars of support for a disabled person are those supplied by their family
or community, he said. "I wouldn't want to see a judgment that says: 'Yes,
let's consider financial support, but not family or personal support,' " Mr.
Bach said.
The association's brief, written by lawyers Ena Chadha and Dianne
Wintermute, notes that the contentious provision sends a message to all
Canadians "that persons with disabilities are to be screened out as
inferior, second-class members of society."
It also argues that if prospective immigrants are to be rejected based on
the extra drain they may place on Canadian health and social services, then
heavy smokers and unsafe drivers should be barred as well. It says that the
rejection of those with defects is part a lingering attitude that denies the
opportunities and services to a vulnerable group.
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