Hope still lingers as Canada ratifies the UN Convention on the Rights of Persons with Disabilities

Canada ratified the UN Convention on the Rights of Persons with Disabilities, on March 11^th, one day before the official opening of the Paralympic Games in Vancouver. This long-awaited ratification made Canada the 78^th nation to have adopted the Convention.[1] In addition to requiring provincial governments to update a number of laws, the document imposes a fundamental shift of the focus from institutionalization to integration of people with disabilities. Further, the convention will empower individuals to challenge laws and policies, deemed in conflict with the convention. The UN Convention on the Rights of Persons with Disabilities has important implications in Canadian immigration and refugee law. How far can its remedial stretch extend in offering hope to disabled immigrant and refugee applicants who seek permanent status or asylum in Canada?

The blatant exclusion of people of disabilities from immigration to Canada on the basis of disability stems back to the 1910 Immigration Act which altogether banned the immigration of people with mental disabilities. The 1927 Immigration Act expanded the basis for refusal to entry to Canada to physical disabilities as well. The subsequent amendment of the Act in 1976, introduced a less blatant discriminatory provision. Under this Act, people with disabilities could be excluded from immigration because they might place “excessive demands” on health or social services. This practice acquired a new dimension with the passing of the 1985 Immigration Act, which had s. 19(1)(a)(ii), and laid the foundations of the current 2001 Immigration and Refugee Protection Act.[2]A slight re-formulation of the Act did not eliminate the prohibitions, but simply rephrased them. Although offering hope to some individuals, this latest amendment of the Act left untouched prohibitions denying immigration to persons with disabilities that “might reasonably be expected to cause excessive demands on health or social services”.[3] This latest amendment of the Act materialized in the Hilewitz and De Jong cases.

The 2005 Hilewitz v. Minister of Citizenship and Immigration and De Jong v. Minister of Citizenship and Immigration cases have been hailed as a step forward for persons with disabilities in Canada. Judge Rosalie Abella added a supplementary factor in the way disabled applicants are assessed. She found it incomprehensible to deny immigration to “all persons who are intellectually disabled, regardless of family support or assistance”. Hence, the wealth of families must be taken into consideration when their children are deemed inadmissible to identify whether they place “excessive demands on health or social services.”[4] Alongside these cases, the ratification of the UN Convention on the Rights of Persons with Disabilities can be said to be the latest milestone for the Canadian disability rights community.

This UN Convention provides additional hope that the provisions of the Immigration & Refugee Act can be rendered inoperative by virtue of Article 18, or the Liberty of Movement and Nationality provisions. Under art. 18 of the Convention, “States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities…(b)Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement.”[5]

The latest case of Chris Mason’s deportation on the basis of his disability demonstrates that without the Convention, the Immigration Act will continue to provide a legal basis for discrimination against persons with disabilities. Chris Mason is a British citizen who lived in Canada, and while working as a long-haul truck driver, became paraplegic on the job. After his visa expired, Immigration officials refused granting Mason a permanent resident status because he would create an undue economic burden under s. 38(I)(c) of the 2001 Immigration Act.[6] This latest 2009 case of a refusal to grant status to a person because of his disability would be deemed unacceptable under the Convention. Hence, Canada’s recent ratification of the UN Convention of the Rights of Persons with Disabilities offers hope that individuals will have an additional legal recourse to obtain a remedy for the alleged discrimination perpetuated under the current Immigration Act.

[This entry was made possible by the Rathlyn Foundation Student Activities Endowment.]

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