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.]

Before discussing the states in question, it is worth mentioning two examples of the latest human rights violations in Iran. In the examples discussed below, the Iranian government suspends human rights by breaching provisions of the Iranian constitution. The use of judicial and military methods like prolonged imprisonment, forced confessions and the utility of legislative techniques aimed at reducing women’s civil rights, all contravene Iranian constitutional guarantees. According to unofficial statistics, there are more than 1000 political prisoners in Iran.[3] In contravention of article 37 of the Iranian constitution, political prisoners are often first tortured and then forced to confess. [4] One of the numerous female human rights activists in Iran, Bahareh Hedayat, received 16 charges for participating in a peaceful march. The charges vary from “Propagation against and blackwashing of the regime,” “Active participation in gatherings after the elections,” “Interviews with and news propagation to foreign press,” “Insulting the Leader,” “Insulting the President,” and “Mutiny and congregation and actions against national security”[5]. These charges are all in contravention of the freedom of assembly and association, and freedom of the press constitutional guarantees in the Iranian constitution (articles 24-27). The Iranian government’s denial of human rights also involves the tabling of legislation that severely undermines women’s civil rights.

A bill was proposed this month in the Iranian government which would give men the right to take additional wives without requiring the wife’s permission, as under current laws. The law would also impose restrictions on alimony for women.[6] This is another manifestation of the Iranian government’s undermining of its own constitution. Article 3, 9 and 21 guarantee the status of women and the need for special protection as a way to advancing their status.[7] Contrary to these constitutional provisions, the bill in question aims to limit women’s civil rights and is thus anti-constitutional. Despite gross human rights abuses by the Iranian government, numerous states in the last Universal Periodic Review on Iran effectively denied such abuses by failing to discuss them.

Among the countries that abstained from criticizing Iran’s deplorable human rights record was Pakistan who commended the “high standards set out in the area of economic, social and cultural rights”.[8] Bahrain, Sri Lanka, Lebanon, Venezuela and Libya recognized Iran’s commitment to promoting economic, social and cultural rights and Nicaragua acknowledged the country’s compliance with “several human rights treaties”. Qatar, Tajikistan, Kyrgyzstan, Malaysia, India and Syria noted the recent advances made by Iran in terms of the provision of welfare, education and the protection of refugee populations. Russia, Vietnam, Kuwait, Bangladesh and India abstained from criticizing and commended Iran’s progress, whether in combating illiteracy or in cooperating with international human rights bodies like the OHCHR.

While Iran’s trade partners maintain ambivalence towards the regime’s severe post-election crack-down, the remaining members of the delegation did not spare the opportunity to shame the Iranian government’s denial of human rights. Strong statements were made by Denmark, who expressed concern about the post-election crackdowns and cited reports of extrajudicial killings, rapes, torture and violations of the rights of freedom of assembly and expression, as well as thousands of arbitrary arrests. Chile was alarmed at the excessive use of force against demonstrators and expressed concern about the use of the death penalty. The remaining states were equally alarmed, expressing varying degrees of concern about the status of women and minorities, political prisoners, the treatment of detainees and Iran’s failure to comply with international human rights legislation. Given the gross human rights abuses, it is time international law proves its effectiveness as an enforcement mechanism for human rights. Clearly, the Iranian government has so far failed in enforcing its own constitutional provisions and has instead fixated itself  entirely on tightening its grip on power for as long as possible.

Belaouni’s legal struggles showcase many of the obstacles that disabled applicants face in pursuit of legal status in Canada. What is the attitude of Canada’s immigration system towards disabled applicants? What does medical inadmissibility entail in the context of Canadian immigration law? In order to address these questions, it is important to describe Belaouni’s legal struggles in relation to two commonly cited cases on disability and immigration law in Canada, the Hilewitz and De Jong cases.[1]

The Algerian man who had lost his eyesight in his mid-twenties, fled to New York City in 1996 after a civil war unraveled in his country. Apprehensive about his future in the USA, a country where racial prejudice had spiked following the 9/11 terrorist attacks, Belaouni sought refuge in Canada in March 2003. He was denied status on the basis that he was unemployed and because he did not have family in the country. Ever since his arrival, this man and hundreds of supporters standing behind him have fought steadfastly to prove that, regardless of his disability, he can be a functioning member of Canadian society.

In addition to running a radio broadcast from the Church where he taught French and Arabic and sent messages, and before going into a sanctuary, Belaouni volunteered for the Multi-Ethnic Association for the Integration of Persons with Disabilities. His many attempts in finding employment were unsuccessful. In an interview, he admits: “In Canada, the discrimination is not because I’m Muslim or Arabic, but because I’m blind.”

According to the Canadian National Institute for the blind, only 25% or working people with vision loss are employed and only 30% of those have permanent employment.[2] These systemic barriers in the integration of blind residents in Canada are illustrative of the debates that often surround the topic of disabled applicants’ treatment under Canadian immigration law. Another systemic impediment in the admission and integration of disabled people into Canadian society is Section 19(1)(ii) of the former Immigration Act.[3] According to this provision, one can be denied an application for permanent resident status in Canada on grounds of medical inadmissibility, namely because of a disability that would cause an excessive burden on Canada’s health care system. A similar paragraph 38(1)(c) came into force at the repeal of the former Immigration Act and the passing of the new Act in 2001.[4]

The question on medical inadmissibility as ground for rejection of one’s admission as a permanent resident arose before the Courts in both the Hilewitz and De Jong cases. In these cases, both applicants, although deemed qualified under the “investor” and “self employed” classes set out in the Immigration Act, were denied admission because a dependent child suffered from an intellectual disability.[5] The issue raised was whether the resources of the Hilewitz and De Jong families should be ignored in determining if the disabled children would create an excessive burden on Canada’s social services.[6]

The Court concluded on an analysis of paragraph 19 of the former Immigration Act that a mere finding of ineligibility because his or her admission “would” or “might reasonably be expected to cause excessive demands” does not satisfy the intent of the legislation.[7] A further analysis of Ontario’s Developmental Act made by the Court led it to find that Ontario considers financial contributions from families and their ability and willingness to contribute a significant portion of the costs associated with certain social services provided by the province.[8]

Furthermore, the Court made a significant change in its reasoning. After embarking on a review of legislative history, the majority Judges concluded that there had been an important shift in approach taken by the Courts: from one based on an unconditional refusal to a more context-based and individualized assessment, as expressed by Justice Abella in the following paragraph:

43. “To do so, the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with willingness and ability of the applicant or his or her family to pay for the services.”

Effectively, the majority cast aside the standard used by the Federal Court of Appeal, which held that non-medical factors, such as family support and the ability and willingness to pay, were not relevant considerations, and instead the Supreme Court reaffirmed the contrary.

The successful outcome in the case of Abdelkader Belaouni is reminiscent of the principle of “individualized assessment”, asserted in Hilewitz and De Jong. This approach is perhaps more adequate in ensuring that disabled persons are not placed in one single category, but that their cases are carefully reviewed on an individual basis. It remains to be seen whether the individualized approach provides a viable alternative to addressing ableism within Canada’s immigration system.

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

[2] Canadian National Institute for the Blind, “Fast Facts about CNIB.” http://www.cnib.ca/en/about/media/vision-loss/Default.aspx (accessed on February 1, 2010)

[3] Hilewitz v. Canada (Minister of Citizenship and Immigration) and De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 at par. 3

[4]Immigration and Refugee Protection Act (2001, c. 27)

http://laws.justice.gc.ca/eng/I-2.5/page-3.html#anchorbo-ga:l_1-gb:l_4

[5] Hilewitz supra at para 3

[6] Hilewitz supra at para 73

[7] Hilewitz supra at para 68

[8] Hilewitz supra at para 69

Iran is a signatory to the Nuclear Nonproliferation Treaty and as such is entitled to enrich uranium. The degree of enrichment is essential here. Low enriched uranium (LEO) is for use of fuel in an electricity generating plant. Medium enriched uranium is for production of medical isotopes, and more than 90 percent enrichment is for a bomb-grade fuel. Iran has so far manifested LEO at its Natanz nuclear plant. The latest UN report on Iran’s nuclear program however calls into question Iran’s compliance with the non-Proliferation Treaty. A recently disclosed facility built into a mountain near the city of Qom sparked the latest IAEA report, according to which the building of the facility began in 2002. In fact, the Iranian government refused to ratify the Additional Protocol to the Nuclear Nonproliferation Treaty, asserting that it is not obliged to disclose new sites to international inspectors until six months before introducing nuclear arsenal to them, a contention largely disputed by the IAEA and by Western powers. In addition, in a letter on Oct. 28th, Iran’s Atomic Energy Organization states that “”threats of military attacks against Iran” precipitated the construction of a network of “contingency centers for various organizations and activities.” A copy of the “Iran Six” resolution prepared for the October meeting indicates that Iran’s delay in reporting the new Qom facility “does not contribute to the building of confidence in Tehran’s nuclear capabilities.” The latest finding, according to the UN quarterly report on the Qom facility, suggests that Iran has built a nuclear program in contravention of its international nuclear obligations under the Nonproliferation Treaty. In addition, the report also raises questions about whether there are other existing nuclear facilities in Iran.

The Islamic Republic has enriched uranium enough for up to two nuclear weapons. In accordance with the October 1st agreement, with the “Iran Six”, the Islamic Republic is to ship over 70% of its enriched uranium to Russia. In exchange, Iran is to receive fuel, to be used in a plant for medical research and the development of medical isotopes. Iran is yet to respond to its international nuclear obligations to swap its enriched uranium for fuel.

The IAEA Chief Mohamed ElBaradei urged Iran on Wednesday to endorse a plan that would reduce Iran’s enriched stockpile by over 70%. So far, his comments have been the strongest public denouncement of Iran’s attempt to modify the proposal. After Monday’s “Iran Six” meeting, the six world powers drafted a resolution to censure Iran on its latest nuclear facility and to involve the UN Security Council. However, would all six powers agree on the imposition of sanctions?

In the wake of the global economic crisis, both China and Russia have opted to maintain economic relations with Iran. In a recent meeting, China decide to continue cooperating with Iran in the field of hydrocarbons and trade. Russia is in the process of building a nuclear electricity-generating power plant near the Iranian city of Bushehr. These and other examples of economic cooperation suggest that China and Russia will not support sanctions on Iran. However, the latest grouping of China and Russia into the “Iran Six” countries represents a unified action which might make both countries more inclined to support a fourth set of Security Council measures.

The latest news on the development of the most recent IAEA resolution on Iran shows that the world powers have already begun a discussion on imposing new economic sanctions. Noncompliance with treaty provisions, combined with unified action from world powers might lead to an unprecedented headway in the enforcement of international law for the strengthening of peace and security.