IMM-1316-97
2002 FCT 727
Angela Chesters (Plaintiff)
v.
Her Majesty the Queen in Right of Canada as represented by the Minister of Citizenship and Immigration (Defendant)
and
Council of Canadians With Disabilities (Intervener)
Indexed as: Chesters v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Heneghan J.--Toronto, January 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25 and June 27, 2002.
Citizenship and Immigration -- Exclusion and Removal -- Inadmissible Persons -- Plaintiff suffering from multiple sclerosis declared medically inadmissible under Immigration Act,s. 19(1)(a)(ii) -- S. 19(1)(a)(ii) not contrary to Charter ss. 7, 15.
Constitutional Law -- Charter of Rights -- Life, Liberty and Security -- Plaintiff declared medically inadmissible under Immigration Act, s. 19(1)(a)(ii) as suffering from multiple sclerosis, reasonably likely to cause excessive demands on health services -- Plaintiff's right to security of person not infringed in consequence of application of medical inadmissibility provision -- Plaintiff not victim of state action -- As potential immigrant, plaintiff subject to meeting requirements of Immigration Act, Regulations -- No right to enter Canada in capacity of spouse of Canadian citizen -- Process by which plaintiff assessed meeting criteria identified in Nova Scotia Pharmaceutical; tools exist to guide conduct of medical assessment, inform legal debate; assessment procedure not arbitrary; principles of natural justice not offended.
Constitutional Law -- Charter of Rights -- Equality Rights -- Plaintiff declared medically inadmissible under Immigration Act, s. 19(1)(a)(ii) as suffering from multiple sclerosis, reasonably likely to cause excessive demands on health services -- S. 19(1)(a)(ii) not in violation of Charter, s. 15 -- In absence of evidence, Act's excessive demands provisions not having adverse discriminatory impact on persons in plaintiff's class -- Case not about disability but medical assessment of potential immigrants within context of Canadian immigration law, therefore no discrimination on enumerated or analogous ground.
The plaintiff, a German citizen, married a Canadian citizen who was then living in England. She was diagnosed as having multiple sclerosis in 1991. When her husband transferred to Canada in 1994, they decided to move to Canada permanently. She applied for permanent residence, as a member of the family class. By then she was wheelchair bound. The medical officers involved concluded that her condition was expected to progress, resulting in repeated hospitalization and specialist care, placing an excessive demand on health and social services, and that she was therefore inadmissible pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act. The visa officer concurred with this medical assessment and her husband was advised that the plaintiff was medically inadmissible to Canada. The plaintiff was nevertheless issued a Minister's permit, allowing her to enter Canada.
Here, the plaintiff, through an action for a declaration, challenged the constitutionality of subparagraph 19(1)(a)(ii) on the grounds that it contravenes both sections 7 and 15 of the Charter. It allegedly offends section 7, the guarantee of life, liberty and security of the person, by placing her in a situation of uncertainty as to her civil status in Canada (hence, mental and psychological stress) and dependent upon the charity of the Governor in Council in granting her status to be in Canada. She further alleged that lack of access to provincial health benefits constitutes an infringement of her rights under section 7 of the Charter. She also argued that the process by which her medical condition was assessed was the result of a constitutionally vague process. The legislation does not prescribe a precise means of calculating "excessive demand". She submitted that the process by which her medical assessment was conducted was procedurally flawed because it was based on an arbitrary process improperly relying on stereotyped reasoning concerning persons with disabilities.
The plaintiff argued that the medical admissibility provision offends section 15 of the Charter because it identifies a class of people who are singled out and subjected to closer scrutiny on the basis of a disease, disorder or disability. If not discriminatory on its face, it was argued, then it still breaches the guarantee of equality because it has an adverse discriminatory effect. The intervener additionally submitted that the provision was further flawed by failing to address the potential contribution to be made to Canada by persons suffering from disabilities.
Held, the action should be dismissed.
In Law v. Canada (Minister of Citizenship and Immigration), [1999] 1 S.C.R. 497, the Supreme Court of Canada proposed a three-step framework for analyzing a section 15 claim. The first step is to determine whether subparagraph 19(1)(a)(ii) of the Immigration Act draws a distinction, based on one or more personal characteristics, between the plaintiff and some other person or group to whom she may be properly compared, resulting in unequal treatment. While the plaintiff proposed able-bodied spouses as the comparator group, the proper comparator group was the family class--the capacity in which the plaintiff sought admission to Canada.
The application of subparagraph 19(1)(a)(ii) did not result in differential treatment in relation to the comparator group. The application of this provision results in different consequences for individuals since those who are found to be medically admissible will be permitted to enter Canada, so long as they meet the other requirements of the Immigration Act and Regulations. Those who are found to be medically inadmissible will not be authorized to enter Canada, regardless of whether they satisfy the other requirements. The excessive demands provisions of the Act do not have an adverse discriminatory impact on persons in the plaintiff's class in the absence of evidence to that effect. Furthermore, the adverse effect arguments are subject to the legal context prevailing here--admissibility of persons to Canada under the immigration law. Entry is not a right for anyone other than Canadian citizens and permanent residents. It is a privilege, and its grant lies within the purview of the Canadian government, which is entitled to establish entry standards, including an assessment of potential excessive demands on health services.
Subparagraph 19(1)(a)(ii) is not directed to any of the specified grounds in subsection 15(1) of the Charter. It is directed to excessive demands. The argument of discrimination on the basis of an analogous ground must also fail. The provision in question focuses on excessive demands, not on disease, disorder or disability. Contrary to the stance taken by the plaintiff, this case is not about disability but the medical assessment of potential immigrants to Canada within the context of Canadian immigration law. By its nature, immigration legislation must be selective. The process of assessing medical condition for the purposes of determining excessive demands upon existing Canadian health services is an aspect of the screening process to which immigrants are subject. This is neither within the enumerated grounds of subsection 15(1), nor is it analogous to it.
In New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, the Supreme Court found that the constitutional guarantee of security of the person did not protect against "ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action." The plaintiff's right to security of the person was not infringed in consequence of the application of the medical inadmissibility provision. She was not the victim of state action. As a potential immigrant, she was subject to meeting the requirements of the Immigration Act and Regulations. She had no right to enter Canada in her capacity as the spouse of a Canadian citizen.
There was no breach of Charter, section 7, in relation to the application of subparagraph 19(1)(a)(ii), on the basis of vagueness. The process by which the plaintiff was assessed met the criteria identified in Nova Scotia Pharmaceutical. There are tools to guide the conduct of the medical assessment and to inform a legal debate. The assessment procedure is not arbitrary. The principles of fundamental justice were not offended.
statutes and regulations judicially
considered
Canada Pension Plan, R.S.C., 1985, c. C-8.
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 8, 15, 24. |
| Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 3 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 2), 8, 11(1), 19(1)(a)(ii), 38 (as am. by S.C. 1992, c. 49, s. 27). |
| Immigration Regulations, 1978, SOR/78-172, s. 22 (as am. by SOR/78-316, s. 2). |
| Universal Declaration of Human Rights, GA Res. 217 A (III), UN GAOR, December 10, 1948. |
cases judicially considered
applied:
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; (1999), 170 D.L.R. (4th) 1; 43 C.C.E.L. (2d) 49; 236 N.R. 1; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703; (2000), 186 D.L.R. (4th) 1; 50 C.C.E.L. (2d) 177; 253 N.R. 329; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; (1999), 176 D.L.R. (4th) 1; [1999] 10 W.W.R. 1; 127 B.C.A.C. 161; 66 B.C.L.R. (3d) 253; 46 C.C.E.L. (2d) 206; 244 N.R. 145; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1; R. v. Simmons, [1988] 2 S.C.R. 495; (1988), 67 O.R. (2d) 63; 55 D.L.R. (4th) 673; 45 C.C.C. (3d) 296; 66 C.R. (3d) 297; 89 N.R. 1; 30 O.A.C. 241; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; (1992), 114 N.S.R. (2d) 91; 93 D.L.R. (4th) 36; 313 A.P.R. 91; 74 C.C.C. (3d) 289; 43 C.P.R. (3d) 1; 15 C.R. (4th) 1; 10 C.R.R. (2d) 34; 139 N.R. 241; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; (1999), 216 N.B.R. (2d) 25; 177 D.L.R. (4th) 124; 26 C.R. (5th) 203; 244 N.R. 276; 50 R.F.L. (4th) 63.
considered:
Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161.
referred to:
Irshad (Litigation guardian of) v. Ontario (Minister of Health) (2001), 55 O.R. (3d) 43; 197 D.L.R. (4th) 103; 141 O.A.C. 239 (C.A.); Prata v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376; (1975), 52 D.L.R. (3d) 383; 3 N.R. 484; Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139; 29 Imm. L.R. (2d) 1 (F.C.T.D.); Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56; 10 Imm. L.R. (3d) 75 (F.C.T.D.); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; (1999), 181 D.L.R. (4th) 385; [2000] 1 W.W.R. 565; 131 B.C.A.C. 280; 70 B.C.L.R. (3d) 215; 47 M.V.R. (3d) 167; 249 N.R. 45; Schachter v. Canada, [1992] 2 S.C.R. 679; (1992), 93 D.L.R. (4th) 1; 92 CLLC 14,036; 10 C.R.R. (2d) 1; 139 N.R. 1.
ACTION for a declaration that the medical inadmissibility provision of the Immigration Act (subparagraph 19(1)(a)(ii)) is discriminatory and unconstitutional because it offends the guarantees of security of the person and equality in sections 7 and 15 of the Charter. Action dismissed.
appearances:
Ronald P. Poulton and Ena Chadha for plaintiff.
Debra M. McAllister, Diane B. N. Dagenais and Ann Margaret Oberst for defendant.
J. David Baker for intervener.
solicitors of record:
Mamann & Associates, Toronto, for plaintiff.
Deputy Attorney General of Canada for defendant.
Bakerlaw, Toronto, for intervener.
The following are the reasons for order rendered in English by
Heneghan J.:
INTRODUCTION
[1]Mrs. Angela Chesters (the plaintiff) seeks a declaration that the medical inadmissibility provision of the Immigration Act, R.S.C., 1985, c. I-2, as amended (the Act) in subparagraph 19(1)(a)(ii), is discriminatory and unconstitutional because it offends the constitutional guarantees of security of the person and equality provided in the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter), sections 7 and 15.
FACTS
[2]The plaintiff is a German citizen. She was raised and educated in Germany and obtained a first- level teaching certificate in 1980. This authorized her to teach foreign languages and in 1981 she obtained a term position teaching foreign languages in Northern Ireland.
[3]She subsequently pursued graduate studies in history at the University of New Mexico in Los Alamos. She obtained a masters degree from that university in 1989. She commenced research with a view to pursuing a doctoral degree in history but encountered difficulties in locating a supervisor. In 1987, the plaintiff returned to Germany and took up employment in Frankfurt. At that time, she met Mr. Robin Chesters and a romantic relationship developed between them. In January 1991, the plaintiff moved to England where Mr. Chesters was then employed.
[4]While living in England, the plaintiff decided to embark upon a further course of studies and she enrolled at the University of Kingston in Surrey, England to obtain a degree in information technology. By this time, the plaintiff was having difficulty in walking that followed problems she had experienced in 1985. She underwent medical investigations in August 1991 at Maida Vale Hospital, London. Those investigations included physical examinations and a magnetic resonance imaging test (MRI). On September 23, 1991, the plaintiff was advised by her doctor that she had multiple sclerosis.
[5]This diagnosis came as a major shock to the plaintiff. She described her reaction as one of numbness. However, she was not deterred from continuing with her intended studies and began her program at the University of Kingston in September 1991, as planned. The diagnosis of multiple sclerosis did not prevent the plaintiff from pursuing these further studies nor interfere with her plans to marry, and on December 20, 1991, the plaintiff married Mr. Robin Chesters.
[6]Prior to their marriage they had discussed plans for children in the future. Although Mr. Chesters was not as keen as his wife, the plaintiff testified that, following discussions between them, he agreed that they would have at least one child. This agreement was reached after the diagnosis of multiple sclerosis and prior to their marriage.
[7]After her diagnosis the plaintiff was not prescribed any particular form of treatment, other than drugs relative to continuing urinary incontinence. She began a course of medical consultations at six monthly intervals, and this pattern continued until 1994, when she left England. With the exception of a medical examination including an MRI which the plaintiff required for her subsequent employment in Germany, her medical treatment since 1991 consisted of consultations and reviews, and continuing treatment, including prescription medications, for incontinence.
[8]The plaintiff completed her course of studies and obtained a Masters in Science and Information Technology by October 1992. The course program had required a work component which she completed at Hammersmith Hospital. The plaintiff used a wheelchair between April and June 1992, but otherwise was able to walk and to use buses and cabs for transportation.
[9]Following completion of the degree at the University of Kingston, including the related work at Hammersmith Hospital, the plaintiff obtained a contract job with the British Broadcasting Corporation (BBC). At this time, the plaintiff and her husband were living in Hampton Wick, about 11 miles [17,7 kilometres] west of London, and she commuted daily to London. She worked full time and her average work week, including commuting time, was 70 hours a week. The plaintiff testified that she also worked, from home, on the weekends. Her contract with the BBC ended in April 1993.
[10]By late 1992, early 1993, the plaintiff had progressed to using a manual wheelchair which she propelled with her arms. By the end of 1993, the plaintiff was using a wheelchair all the time. In 1994, she got an electric wheelchair and by the beginning of 1995, she was using it on a full-time basis.
[11]In May 1993, the plaintiff travelled to Toronto, Ontario, with her husband. Mr. Chesters was attending a conference. This was the plaintiff's first visit to Canada and she accompanied her husband with a view to relocating to Canada, to establish themselves and a family. Mr. Chesters, a native of South Africa, had immigrated to Canada in 1971 and subsequently became a Canadian citizen. He considered Canada his adopted home.
[12]In 1994, Mr. Chesters was working in England for General Electric. He sought a transfer to Canada and in May 1994 an opportunity presented for his return to Canada to work on a special project. The plaintiff and her husband discussed the opportunity and decided to move back to Canada. It then became necessary for the plaintiff to seek status in Canada and on June 16, 1994, she submitted her application for permanent residence, as a member of the family class, to the Canadian High Commission in London.
[13]The plaintiff's application for permanent residence, together with the undertaking signed by her husband and a covering letter, was delivered to the Canadian High Commission in London on June 16, 1994, by her husband Mr. Robin Chesters. At that time, Mr. Chesters met with Mr. Ernest Alston, a visa officer at the High Commission. In accordance with the usual practice, the application was subject to a preliminary determination on admissibility.
[14]According to the computerized case notes maintained by the visa officer, and the evidence of Mr. Chesters, Mr. Alston commented on the plaintiff's condition of multiple sclerosis and advised that this might constitute an impediment to her admission into Canada. However, again in accordance with the usual practice as explained by Ms. Joan Atkinson, currently Assistant Deputy Minister of Policy Program and Development with the Department of Citizenship and Immigration, the plaintiff was advised that she would have to undergo a medical examination at her own risk and at her own cost.
[15]All prospective immigrants to Canada are required to undergo a medical examination, according to the evidence of Ms. Atkinson. The request to undergo the medical examination is not a commitment that a potential applicant for permanent residence would be accepted.
[16]The plaintiff was provided with the names of three Designated Medical Practitioners (DMPs). DMPs are local physicians who are recruited by the Canadian government to conduct medical examinations for overseas visa applicants.
[17]The plaintiff decided to visit Dr. Roodyn and did so on June 20, 1994. He conducted a basic medical examination and made arrangements for the plaintiff to undergo a chest X-ray and blood work. He obtained the plaintiff's personal medical history as a result of a question and answer process; he did not have a copy of her visa application before him and according to the plaintiff, he did not ask about her employment, education, past work experience or plans for the future.
[18]Dr. Roodyn completed the portions of the medical report form which he was required to complete, including the medical examination, physical examination and his notes addressing particular matters, including a conclusion and diagnosis. His conclusion provided as follows:
The multiple sclerosis appears to be stable at present but further attacks of demyelination are an ever present possibility. She is wheelchair bound and as the years progress, will require increasing nursing care. On medical grounds, I would not pass her as fit for immigration.
[19]The plaintiff attended for her medical examination before the DMP on June 20. By letter dated June 22, 1994, her husband notified the High Commission that they intended to leave England for Canada within a few weeks. Mr. Chesters at that time was inquiring about the status of the plaintiff's application. Mr. Alston responded by telephone on June 24, 1994 and advised that processing of the application was not complete and that the plaintiff could travel to Canada on a visitor's visa. That is what she did.
[20]This medical report was forwarded to the Canadian High Commission in London where it was reviewed by a visa officer. It was determined that further information on the plaintiff's condition was required and on July 13, 1994 a letter was sent out to the plaintiff, over the signature of Dr. Elliott, requesting the provision of further information. Specifically, the letter requested a current report from a neurologist. The process of requesting further information about the plaintiff's medical condition was known as "furthering" the initial medical examination.
[21]In due course, the plaintiff submitted further information, consisting of letters and reports from the time of the initial diagnosis of multiple sclerosis in August 1991 up to and including a letter dated July 29, 1994 from her family doctor, Dr. Giovanna Mallucci. No new information was available at that time and Dr. Mallucci concluded her letter by saying there was "nothing further I can contribute."
[22]The results of the medical examination and the further information were submitted to the medical office of the High Commission. The two medical officers who were involved in the assessment of the plaintiff's case were Dr. A. Williams and Dr. John Lazarus.
[23]Dr. Williams, although a Canadian trained physician, was not a permanent member of the staff of the Canadian High Commission. He was retained on contract and his job was to review medical examinations performed by DMPs, for the purpose of screening the reports prepared for applicants for permanent residence to Canada.
[24]According to Dr. Lazarus, the medical report from Dr. Roodyn and additional information provided in response to the letter of July 13, 1994, were first reviewed by Dr. Williams when this information was sent to the medical division of the High Commission. Dr. Williams prepared a worksheet with a preliminary medical profile, using the guidelines provided in the Medical Officer's Handbook. He assessed the plaintiff as "M1 D4 T4 S1 E4 M7". He sent the worksheet to Dr. Lazarus, seeking his opinion.
[25]Dr. Lazarus reviewed the information relating to the plaintiff. He paid particular attention to the discharge summary dated August 26, 1991 for the National Hospital for Nervous Diseases in London. This report provided the diagnosis of multiple sclerosis.
[26]He testified that he also consulted the Medical Officer's Handbook concerning the management and treatment of multiple sclerosis in the Canadian context. He also drew on his own experience of the condition, resulting from his years in practice in Canada as a general practitioner and certified specialist in the field of family medicine, together with his experience as a medical officer in the federal public service.
[27]Dr. Lazarus concluded that the plaintiff's condition of multiple sclerosis placed her in the medically inadmissible class, pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act because she was reasonably likely to require future health and medical services in Canada that would fall in the category of excessive demands.
[28]However, Dr. Lazarus also held the opinion that with the use of certain drugs, for example, Interferon, it was possible that the plaintiff's condition in the future might be sufficiently ameliorated that she would no longer be medically inadmissible. Accordingly, he changed the medical admissibility factor, or her profile, from "M7" to "M5". This reclassification recognized the possibility that the plaintiff's medical status could change.
[29]Dr. Lazarus completed the narrative portion of the Medical Notification Form and signed it, as the first signatory. Dr. Williams reviewed it and concurred, and provided the second signature. The narrative says, in part, as follows:
This applicant has multiple sclerosis and . . . is wheelchair bound. Her condition is expected to progress resulting in repeated hospitalization and specialist care, placing an excessive demand on health and social services. Inadmissible as section 19(1)(a)(ii) of the Act.
[30]Dr. Lazarus testified that the medical opinion is reached on the basis of medical factors. It is a discretionary decision calling upon the experience of the medical officer. The issue of "excessive demands" is not defined but guidance is provided by the jurisprudence of the Federal Court, the Immigration Regulations, 1978 [SOR/78-172] [the Regulations] and the Medical Officer's Handbook. "Excessive demands" is considered to be higher than average when assessed against the average per capita cost of providing medical care in Canada.
[31]This understanding of excessive demands and how it is applied to persons seeking landing was also expressed by Dr. Axler, a former medical officer who testified on behalf of the plaintiff, and Dr. Giovannazo, a senior medical officer, who testified on behalf of the defendant.
[32]These three doctors also testified that the medical assessment was conducted on an individual basis, having regard to the individual applicant. The medical officer makes no decision on the issuance of a visa but provides a medical assessment only.
[33]The medical officers reached their conclusion on September 24, 1994, that the plaintiff was medically inadmissible to Canada. That decision was communicated to the visa officer on October 6, 1994. No formal written notification of this decision was ever sent to the plaintiff but on November 14, 1994, the plaintiff's husband received a telephone call from Mr. Alston in London. Mr. Alston told Mr. Chesters that the plaintiff had been determined to be medically inadmissible to Canada pursuant to subparagraph 19(1)(a)(ii) of the Act.
[34]In the same conversation on November 14, 1994, Mr. Alston had advised Mr. Chesters that he would investigate the possibility of obtaining a Minister's permit that would allow the plaintiff to enter Canada with her husband. A Minister's permit is a discretionary measure which is available to allow a person who is otherwise inadmissible to enter Canada.
[35]The plaintiff learned about the determination of her medical inadmissibility from her husband who told her about the conversation he had had with Mr. Alston. She was upset and could not believe that she, as the wife of a Canadian citizen, would be denied admission into Canada as the result of a medical condition. She viewed the decision as one of discrimination. She immediately set out to remedy that situation.
[36]Upon arrival in Canada, the plaintiff and her husband established themselves in Mississauga. They rented an apartment. Mr. Chesters was working with General Electric. The plaintiff accessed public libraries to research the workings of the Canadian immigration system. She contacted the Multiple Sclerosis Society. She worked on a volunteer basis at Erindale College.
[37]When she learned of the determination of her medical assessment in November 1994, she commenced writing a series of letters to Mr. Alston at the Canadian High Commission in London and at least one letter to Mr. Sergio Marchi, then Minister of Citizenship and Immigration. She sought information about the availability of an employment authorization and the meaning of the Minister's permit. She did not reject the idea of being admitted to Canada under a Minister's permit and as part of that process, attended with her husband for an interview on January 24, 1995, at the offices of Canada Immigration in Mississauga.
[38]That interview was conducted by Ms. Donna Reid-Moncrieffe, a visa officer. The personal circumstances of the plaintiff, including her education and previous work experience, were reviewed and Ms. Reid-Moncrieffe made a positive recommendation concerning the issuance of a Minister's permit.
[39]That recommendation was forwarded to the regional office in Ontario. The file was reviewed and the recommendation was confirmed. The approval was forwarded to Mr. Alston in London. By letter dated April 12, 1995 Mr. Alston informed the plaintiff and her husband that a Minister's permit would be issued. He also instructed her about the procedure to be followed, that is attendance at a location outside Canada for validation of the permit after payment of the requisite fee. He also advised the plaintiff that she was eligible for an employment authorization, again upon payment of the required fee.
[40]The plaintiff obtained a Minister's permit in April 1995, together with an employment authorization for one year. The Minister's permit was valid for three years and was renewed once. The plaintiff also renewed her employment authorization for one year, although she did not stay in Canada.
[41]On March 19, 1995, the plaintiff wrote a letter specifically inquiring about the meaning and significance of both the Minister's permit and her employment authorization. She posed the following questions:
1. Employment:
a. Why will my employment authorisation only be valid for one year?
b. What happens after that year? Is it possible that the authorisation will be withheld? If so, for how long? Repeatedly?
c. Will, in the future, the authorisation only be renewed for one year at a time?
d. Will we have to pay $125.00 for the renewal each time?
2. On what conditions exactly will the granting of landed status in x number of years depend? Where can I get this in writing? [Emphasis in original.]
[42]In due course, the plaintiff received a response from the desk officer with Immigration Canada, legal affairs and litigation. In part, that response provided as follows:
As already explained to you by Mr. Alston, under s. 38(1), the Governor in Council may authorize the landing of any person who has resided continuously in Canada for at least five years under the authority of a written permit issued by the Minister. I am sure that you will understand that I cannot make any commitment on actions to be taken by others five years from now. I wish to assure you, however, that unless something very significant and unexpected happens, your situation will be resolved favourably in due course. You are correct that the Charter of Rights and Freedoms, as part of the Constitution of Canada, forms part of the supreme law of Canada. Section 1 of the Charter states that "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Section 19(1)(a)(ii) of the Immigration Act deems inadmissible to Canada persons who are suffering from health impairments as a result of the nature of which, in the opinion of a medical officer, their admission would cause or might reasonably be expected to cause excessive demands on health or social services. This Department is satisfied that s. 19(1)(a)(ii) is not in contravention of the Charter of Rights and Freedoms.
[43]In the meantime, the plaintiff sought employment in Canada. She sent out at least four, and possibly five, applications for employment in the information technology field. She testified that having regard to the nature of computer technology, every day she was unemployed represented a loss in the value of her education in that area. She was unsuccessful in obtaining work.
[44]In December 1995, the plaintiff travelled to Germany for a job interview. The proposed area of employment was as a teacher of foreign languages to students who planned to study abroad. She spent approximately five days in Germany, two days of which were spent in the airport at Dusseldorf because she was unable to obtain accommodation at a hostel in that city.
[45]She returned to Canada to spend Christmas with her husband and having obtained the employment in Germany, returned to that country in January 1996. She taught in Hagen for one year and then resumed studies necessary to obtain her full teaching certificate in Germany. She completed that program of studies in 1998. She then obtained a position in a community college situated approximately 80 kilometres north of Cologne, in North-Rhine-Westphalia.
[46]The plaintiff remained in Germany without her husband from January 1996 until February 1999 when Mr. Chesters obtained employment in Cologne. In the preceding period that is between January 1996 and February 1999, the plaintiff spent approximately 12 weeks of each year with her husband. She travelled to Canada at Christmas and Easter for approximately three weeks at a time and her husband spent some time with her in Germany in the fall.
[47]Although the plaintiff and her husband initially resided together, due to the lengthy commute required for Mr. Chesters to reach his place of work in Cologne, the plaintiff and her husband agreed that he would stay in Cologne during the work week living in a rented apartment and spend the weekends with her in North-Rhine-Westphalia. That is the manner in which the plaintiff and her husband work and live today.
[48]The plaintiff was rejected as an applicant for permanent residence to Canada in November 1994 but she was never formally advised of that rejection. Her notification of that decision was made in a telephone conversation from Mr. Alston to her husband. Concurrently, the subject of applying for a Minister's permit was raised and steps were put in motion to achieve that end. Although the plaintiff sent a letter to Immigration Canada on November 16, 1994, requesting an appeal form relative to the negative decision, there is no evidence that her letter was received. However, there is evidence that she did not receive any appeal form and that she did not take any steps to appeal the decision.
[49]There is little evidence that she sought legal advice concerning her rights or remedies in relation to the negative medical inadmissibility determination. She did not pursue an application for judicial review. Rather, the plaintiff chose to challenge the constitutionality of the medical inadmissibility provision by way of action. She commenced this action upon the issuance of a statement of claim on April 2, 1997. An amended statement of claim was filed on July 29, 1997.
PLAINTIFF'S SUBMISSIONS
[50]The plaintiff claims that she was discriminated against because she is the disabled wife of a Canadian citizen. She argues that she was treated differently than able-bodied spouses of Canadian citizens would be, in applying for permanent residence in Canada. She argues that as the spouse of a Canadian citizen, she had the right to enter Canada without regard to her medical condition which was improperly categorized by Canadian immigration officials as a disability.
[51]She alleges that as the result of this discriminatory behaviour, she was injured, that she suffered mental and psychological stress, that her rejection on medical grounds made her feel like a second-class citizen and unworthy to participate in Canadian society, that her education and ability to contribute to Canadian society were ignored, that her feelings of exclusion and stigmatization negatively affected her relationship with her spouse and negatively impacted upon their desires to establish a family, and that the ultimate grant of the Minister's permit was an act of charity which was misplaced. The issuance of a Minister's permit does not relieve these injurious factors because the Minister's permit is a discretionary action which will not lead inevitably to her admission into Canada.
[52]Substantively, the plaintiff challenges the constitutionality of subparagraph 19(1)(a)(ii) on the grounds that it contravenes both section 7 and section 15 of the Canadian Charter of Rights and Freedoms. It offends section 7, that is the guarantee of life, liberty and security of the person, by placing her in a situation of uncertainty as to her civil status in Canada and dependent upon the charity of the Governor in Council in granting her status to be in Canada, either on a temporary basis or on a more permanent basis upon an application being made for a grant of citizenship pursuant to section 38 [as am. by S.C. 1992, c. 49, s. 27] of the Act. The plaintiff argues that this breach of her Charter rights cannot be justified by section 1.
[53]The plaintiff argues that the mental and psychological stress endured by her following the rejection of her application for permanent residence in 1994 and the continued uncertainty associated with her status as the holder of a Minister's permit following the issuance of that permit in 1995, constitute the type of psychological distress described by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46.
[54]Section 7 of the Charter guarantees security of the person. The application of section 7 raises two questions: is life, liberty and security engaged and secondly, does the challenged legislation offend the principles of fundamental justice?
[55]When the Minister's permit was originally granted, the health insurance system operating in Ontario, that is the Ontario Health Insurance Plan, provided that medical coverage would be available to holders of Minister's permits. That was changed subsequent to the issuance of her Minister's permit in 1995 and as a holder of a Minister's permit, she is no longer eligible to be covered by the provincial health insurance plan. She relies on the decision of the Ontario Court of Appeal in Irshad (Litigation guardian of) v. Ontario (Minister of Health) (2001), 55 O.R. (3d) 43 to support the argument that lack of access to provincial health benefits constitutes an infringement of her rights under section 7 of the Charter.
[56]She also argues that the process by which her medical condition was assessed and was found to constitute an excessive demand on the health services in Canada, is the result of a constitutionally vague process. The law is vague; it does not prescribe a precise means of calculating "excessive demand". The vagueness of the legislation gives rise to legitimate concern about its constitutionality. In this regard, the plaintiff relies on the decision of the Supreme Court of Canada in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.
[57]The plaintiff argues that the medical assessment is carried out without regard to particular circumstances of an individual, including an individual's employment history, education, career plans and life status, including status as the spouse of a Canadian citizen. She also submits that the process by which her medical assessment was conducted was procedurally flawed because it was based on an arbitrary process which improperly relied on stereotyped reasoning concerning persons with disabilities.
[58]Furthermore, she argues that the medical assessment was procedurally flawed because Dr. Williams, who provided the second opinion, had no authority to provide the second signature for a medically inadmissible person. His signing authority was limited to the first signature in such cases. She invites the Court to draw a negative inference from the failure of the defendant to produce Dr. Williams as a witness at trial.
[59]She argues that section 3 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 2] of the Act set forth the purposes of the Act. Section 15 of the Charter applies to everyone, citizen or not. The Charter is the expression of the supreme law of Canada and must inform the interpretation and application of Canadian statutes.
[60]The Immigration Act purports to foster reunification of families. This is consistent with Universal Declaration of Human Rights [GA Res. 217 A (III), UN GAOR, December 10, 1948] which recognizes the value of reuniting families. An interpretation and application of the Act which conflicts with the Charter and the Universal Declaration of Human Rights is unconstitutional.
[61]Next, the plaintiff argues that the medical admissibility provision offends section 15 of the Canadian Charter of Rights and Freedoms because it identifies a class of people who are to be singled out and subjected to closer scrutiny on the basis of a disease, disorder or disability. She says that the language is discriminatory on its face and has the effect of identifying a particular class of people for special and exclusionary treatment.
[62]Alternatively, the plaintiff argues that if the provision is not discriminatory on its face, then it still breaches the guarantee of equality because it has an adverse discriminatory effect. It improperly impacts upon a distinct group of people who are already vulnerable to discrimination.
[63]She argues that reliance on personal characteristics, such as a disability, to determine suitability for admission into Canada, is discriminatory and constitutionally offensive. In this regard, the plaintiff relies on the decision of the Supreme Court of Canada in Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 which identifies elements of discrimination. She argues that the Medical Officer's Handbook, which is intended to inform the manner in which medical admissibility is assessed, is flawed. It is designed to focus on degrees of disability and to perpetuate a stereotypical view of disability in assessing suitability for admission into Canada.
[64]The plaintiff alleges that subparagraph 19(1)(a)(ii) is unconstitutional because it offends sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and cannot be justified pursuant to section 1.
INTERVENER'S SUBMISSIONS
[65]The Council of Canadians with Disabilities (the intervener) adopts the arguments advanced by the plaintiff. Additionally, it submits that subparagraph 19(1)(a)(ii) is further flawed by failing to address the potential contribution to be made to Canada by persons suffering from disabilities. Briefly, the intervener argues that the failure of Parliament to take this factor into account is contrary to the admission criteria of the Immigration Act as stated in section 3.
[66]The intervener argues that the medical inadmissibility provision fails to allow for the balancing of potential contribution as appears to be the case for persons who may be inadmissible under other provisions of section 19. As an example, the intervener argues that persons with criminal convictions are provided with the opportunity to demonstrate rehabilitation. That implies a balancing between the interests of the individual and those of the state, which opportunity is not afforded to persons excluded pursuant to subparagraph 19(1)(a)(ii).
DEFENDANT'S SUBMISSIONS
[67]The defendant argues that all Charter analyses must be conducted with a full appreciation of the context. Here, the legal context is immigration law. In this regard, the defendant relies on the decision in Prata v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376, where the Supreme Court of Canada stated that immigration is a privilege, not a right.
[68]The Charter challenge advanced here is based on sections 7 and 15, and the burden of proving a breach of these sections lies on the plaintiff. If the plaintiff succeeds in proving such breach, the burden moves to the defendant to show that the challenged legislation is justified pursuant to section 1 of the Charter.
[69]The defendant takes the position that the challenged provision of the Immigration Act offends neither section 7 nor section 15 but in any event, can be justified pursuant to section 1. In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, the Supreme Court of Canada considered whether the deportation of a permanent resident who had been convicted of certain offences constituted a breach of section 7. Justice Sopinka, writing for the Court, concluded that there was no breach of section 7. The fundamental principle is that an alien does not have an unqualified right to remain in Canada.
[70]Canada has the right and obligation to establish standards for entry into the country, for the protection of its people. The defendant says that subparagraph 19(1)(a)(ii) is such a provision because it protects Canadian health and social services against excessive demands, consequently sustaining these services for the future.
[71]The defendant then addresses the particular circumstances of the plaintiff. She applied for permanent residence as the wife of a Canadian citizen and sought the issuance of an immigrant visa to allow her entry into Canada as a permanent resident. She was sponsored by her husband and applied as a member of the family class. As a member of the family class, her occupation or employment is irrelevant to the question whether an immigrant visa should be issued.
[72]A member applying in the family class must meet the admission requirements of subsection 11(1) of the Act and the Immigration Regulations, 1978.
[73]The defendant agrees that the Supreme Court of Canada has established a two-step analysis in respect of a breach of section 7. First, there must be deprivation of life, liberty or security of the person and once this is established the question becomes whether that deprivation has occurred in accordance with principles of fundamental justice. The principles of fundamental justice fall into two categories, that is substantive principles and procedural principles.
[74]In so far as the plaintiff alleges that she suffered a loss of security of the person because she was denied access to health coverage in Ontario pursuant to OHIP, the defendant says that this issue is not properly before this Court in this action. There is no factual underpinning for such issue and in any event in Irshad, supra, the Ontario Court of Appeal held that the provincial scheme, which limited access to provincial health benefits, was valid and did not infringe section 15 of the Charter.
[75]The issue of security of the person, pursuant to section 7, was considered by the Supreme Court of Canada in G. (J.), supra. The defendant argues that this decision stands for the principle that security of the person, pursuant to section 7 of the Charter, extends to a situation of state-imposed psychological stress as the result of state conduct which deprives an individual of his or her own security. Second, section 7 does not protect an individual from the ordinary anxiety that would be felt by a person of reasonable sensibility, as the result of government action, and the levels of stress are to be assessed objectively.
[76]The defendant argues that in the present case, the state took no action vis-à-vis the plaintiff. The plaintiff applied for permanent residence and was found to be medically inadmissible. There is no question that the forces of the state were brought to bear upon the plaintiff, she alone set the apparatus in motion. Furthermore, the state facilitated her entry on a Minister's permit so that she could live with her husband in Canada and issued an employment authorization so that she could seek employment in this country.
[77]The defendant argues that whatever stress was suffered by the plaintiff following her application for permanent residence and in the time frame which is covered by this action, it was not of such a high degree as to constitute psychological harm.
[78]The defendant also addresses the decision of the Supreme Court of Canada in Nova Scotia Pharmaceutical, supra, and submits that an allegation of constitutional invalidity on the basis of vagueness must be assessed against three criteria, as follows:
(1) the provisions in question must provide fair notice to the citizen;
(2) the essence of the vagueness standard is whether there are tools for legal debate;
(3) the availability of a broad discretion is not problematic as long as there are tools for the court to engage in that legal debate.
[79]Applying these principles to the present case, the defendant argues that there was fair notice in relation to the question of medical inadmissibility, since the statute provides that. The evidence provided by three doctors who had worked with the medical inadmissibility provision was that there are sufficient tools to interpret the excessive demands provision. It was the evidence of three doctors who had worked with the medical assessment process and the criteria of excessive demands that the case law had indicated that excessive demands meant more than normal. As well, the medical officers were guided by section 22 [as am. by SOR/78-316, s. 2] of the Regulations, as interpreted by the Court in Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139 (F.C.T.D.) and Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56 (F.C.T.D.).
[80]The defendant argues that in the present case, which is a trial and not an application for judicial review, it is clear that there are tools available to govern the exercise of discretion in the conduct of a medical assessment. Consequently, the provision is not constitutionally vague.
[81]As for the issue of procedural fairness, the defendant rejects the plaintiff's arguments that the law was arbitrary because employability was considered in relation to her medical condition but without regard to her real employability, given her background and training. The second aspect of the plaintiff's argument about breach of procedural fairness in the conduct of her medical assessment, is based on the fact that the second and concurring signature on the medical notification form was signed by Dr. Williams, who lacked the authority to sign the second signature.
[82]The defendant acknowledges that the principles of fundamental justice are found in the basic tenets of the Canadian legal system, as discussed in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868. The content of procedural fairness may require different things in different contexts.
[83]Again, this issue is to be explored in the context of the immigration law and that was the situation in Chiarelli, supra, in which the Supreme Court of Canada concluded that immigration is a privilege, not a right.
[84]The defendant says that the plaintiff's employability was considered in a positive light by the medical officers but this was not the most important factor in their assessment. In the legal context, employability is not relevant to persons applying as members of the family class. Again, the defendant relies on section 8 of the Act and argues that the plaintiff, as a prospective immigrant, bore the burden of establishing that she met the admission requirements of the Act.
[85]As for the plaintiff's argument that Dr. Williams signed the medical notification form as the second signature, without authority, the defendant argues that the evidence shows that Dr. Williams had received a dispensation to sign M4 and M5 reports. He was a Canadian-trained physician with experience in the Canadian medical environment. He brought the plaintiff's situation to the attention of Dr. Lazarus because of the serious implications for the plaintiff resulting from the initial assessment as M7. The order of events determined the order of the signatures from the medical officers and there is nothing sinister resulting from this.
[86]The Immigration Act requires a concurring opinion between two medical officers. There is no requirement in the Act that the opinions be given in a particular order. The defendant argues that there is no infringement of the principles of fundamental justice having regard to the law and its context.
[87]As for section 15, the defendant relies on the recent decision of the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 that identifies the steps to be followed in assessing whether a breach of section 15 has occurred.
[88]In brief, the defendant argues that the test in that case requires the court to first look at the distinction which is drawn between the plaintiff and other individuals, that is the comparator group. The plaintiff says that the distinction is between able-bodied persons who apply for permanent residence and those that are disabled. The defendant says that this identified comparator group is incorrect and that the distinction should properly be drawn between persons who are medically admissible and those who are not because they would create an excessive demand on Canadian health or social services.
[89]The next step, according to Law, supra, is to ask whether the distinction is based upon an enumerated or analogous ground. The plaintiff argues that the distinction is based upon the enumerated ground of disability, but the defendant submits that the distinction is based on whether a person might reasonably be expected to cause excessive demands upon health or social services. In these circumstances, the defendant argues that this is neither an enumerated nor analogous ground in relation to section 15.
[90]The third step arising from Law, supra, test is whether there is discrimination. In Law, the Court emphasized that the approach should be flexible but the key is the application of stereotypical reasoning.
[91]The defendant says there is no application of stereotypical reasoning here. The plaintiff was assessed on a personalized basis, having regard to her needs and abilities. According to the evidence, the medical officers looked at the factors identified in section 22 of the Regulations, considered the Handbook and the factors identified in that, including availability of medical service, cost, access and displacement of Canadians. Medical officers also considered medical texts and journals, together with their personalized knowledge and experience and reached a decision which was based on the medical evidence specific to the plaintiff.
[92]The defendant addressed the argument of the plaintiff that an adverse inference should be drawn from the failure of the defence to produce Dr. Williams as a witness at trial.
[93]The short answer made by the defendant to this argument is found in the agreed statement of facts which was filed by the parties. The defendant says that according to this agreed statement of facts, there was no need to call Dr. Williams. The plaintiff agreed to the statement of facts, which was amended in the course of the trial merely with reference to the availability of the drug Interferon in Canada, but that did not affect anything in relation to Dr. Williams. The defendant argues that this submission by the plaintiff is irrelevant.
[94]Finally, the defendant addressed the question of remedies. In this case, the plaintiff seeks a remedy pursuant to section 24 of the Charter. The defendant submits that the plaintiff has failed to show that she is entitled to such remedy, even if she succeeds in showing a breach of her Charter rights.
[95]The primary remedy sought by the plaintiff is a declaration of the invalidity of subparagraph 19(1)(a)(ii) pursuant to section 52 of the Constitution [Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. Additionally, the plaintiff claimed damages. The defendant argues that the plaintiff failed to show that she is entitled to damages, as a remedial measure.
[96]The defendant argues that an award of damages in this case would be inappropriate, in light of the decision of the Supreme Court of Canada in Schachter v. Canada, [1992] 2 S.C.R. 679. She has not led evidence to show that she has suffered financial loss as a result of having been found medically inadmissible in 1994. She has not demonstrated that her personal stress and anxiety merit an award of general damages. There is no foundation to the claim that she was impeded in her desire to commence a family, as a result of a negative determination in 1994.
[97]In short, the defendant argues that no monetary award should be made pursuant to section 24.
ANALYSIS
[98]This action involves a challenge to the constitutional validity of section 19(1)(a)(ii) of the Immigration Act, supra. That section provides as follows:
19. (1) No person shall be granted admission who is a member of any of the following classes:
(a) persons who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,
. . .
(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;
[99]The plaintiff claims that this section offends sections 7 and 15 of the Canadian Charter of Rights and Freedoms. These sections provide as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
. . .
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[100]It is well-settled law that not every differential treatment gives rise to discrimination. In Law, supra, at paragraph 51 the Supreme Court proposes a purposive and contextual approach to subsection 15(1). The Court identifies the purposes of subsection 15(1) in the following passage:
It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society.
[101]Understanding the meaning of human dignity is the key that shapes all elements of the discrimination analysis, according to Law, supra, at paragraph 53, the Court says:
Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.
[102]In Law, supra, at paragraph 39, the Supreme Court of Canada synthesized the prior jurisprudence and proposed a three-step framework for analyzing a section 15 claim:
First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).
The Comparative Approach
[103]The first step in a subsection 15(1) analysis is therefore to determine whether subparagraph 19(1)(a)(ii) of the Immigration Act draws a distinction, based on one or more personal characteristics, between the plaintiff and some other person or group to whom she may be properly compared, resulting in unequal treatment. Crucial to this analysis is the identification of the proper comparator group.
[104]In Law, supra at paragraph 58, the Court acknowledged that generally a claimant will identify the comparator group for the purpose of the discrimination analysis, saying:
When identifying the relevant comparator, the natural starting point is to consider the claimant's view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimant's characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups. Clearly a court cannot, ex proprio motu, evaluate a ground of discrimination not pleaded by the parties and in relation to which no evidence has been adduced: see Symes, supra, at p. 762. However, within the scope of the ground or grounds pleaded, I would not close the door on the power of a court to refine the comparison presented by the claimant where warranted.
[105]As noted above, the Court should be inclined to evaluate the grounds of discrimination as presented by the claimant, however, it may refine the comparison where warranted. In Granovsky, supra, the Court modified the comparator as set out by the applicant on the basis that he did not properly consider the purpose and effect of the legislation in question and said at paragraph 47:
Such identification has to bear an appropriate relationship between the group selected for comparison and the benefit that constitutes the subject matter of the complaint. As was pointed out in Law, supra, at para. 57:
Both the purpose and the effect of the legislation must be considered in determining the appropriate comparison group or groups.
[106]In Granovsky, supra, disability was considered in the context of the Canada Pension Plan [R.S.C., 1985, c. C-8] related to contribution periods. The applicant was a person who suffered from a temporary disability who wished to be compared to able-bodied persons in the discrimination analysis. The Court concluded that the proper comparison in that situation was with the manner in which a person with a permanent disability was treated under the legislation.
[107]The plaintiff argues that she was unlawfully discriminated against and treated in a different manner than able-bodied spouses of Canadian citizens. She proposes that the able-bodied spouses constitute the «comparator» group. The defendant says that the impugned section of the Immigration Act focuses on excessive demands and the proper comparator group is that class of persons who, like the plaintiff, seek admission into Canada as members of the family class.
[108]In my opinion, the appropriate comparator group in this case is the family class. That is the capacity in which the plaintiff sought admission into Canada. As stated in Granovsky, supra, the comparator must relate to the benefit which is the subject-matter of the challenge. Here, the benefit is entry into Canada.
[109]Does the application of subparagraph 19(1)(a)(ii) to the plaintiff result in differential treatment in relation to the comparator group, contrary to subsection 15(1)?
[110]The plaintiff contends that it does, on the prohibited ground of disability, and says that the provision invites such an interpretation, on its face.
[111]The defendant argues that the use of the words "disease", "disorder" or "disability" in subparagraph 19(1)(a)(ii) are merely indicators of the types of circumstances which may give rise to excessive demands, but that this language is not the focus of the subparagraph. The purpose of the subparagraph is to inquire whether the admission of a particular individual into Canada as a permanent resident may reasonably be expected to impose excessive demands on health or social services, and that purpose is apparent even if the words "disease", "disorder" or "disability" are deleted.
[112]Guidelines are provided for the conduct of a medical assessment, by way of a handbook issued to the medical officer. While an initial medical examination is conducted by a designated medical practitioner in the area where the potential immigrant files an application for permanent residence, the assessment of the medical condition is conducted by medical officers appointed under the Immigration Act. The medical officers are either staff employees or contract physicians. In this case, the medical assessment was signed by Dr. Lazarus, a staff doctor with the Canadian High Commission in London, and Dr. Williams, a Canadian-trained physician who was a contract physician with the Canadian High Commission in London.
[113]According to the evidence of Dr. Lazarus, the personal and individual circumstances of the plaintiff were assessed. Her illness was assessed against the prospect of future care in Canada, including potential hospitalization and the availability and need for pharmaceutical products to assist in the management of the plaintiff's health condition.
[114]The application of the section results in different consequences for individuals since those who are found to be medically admissible will be permitted to enter Canada, as long as they otherwise meet the other requirements of the Immigration Act and the Regulations. Those who are found to be medically inadmissible will not be authorized to enter Canada, regardless of satisfying the remaining provisions of the Act and Regulations.
[115]Different consequences resulting from the application of a general requirement, that is a medical examination for all persons seeking admission into Canada as members of the family class, invite inquiry whether the plaintiff was adversely affected by the application to her of the excessive demands criteria, on the basis of a disability, that is multiple sclerosis.
[116]The plaintiff argues that the section has an adverse discriminatory effect on her because it focuses on disability. She submits that a discriminatory purpose is not necessary to establish a breach of subsection 15(1) if the effect of the legislation is a denial of equal treatment under the Immigration Act.
[117]While indirect discrimination must be considered in any subsection 15(1) analysis, success on such argument depends upon evidence that the legislation indeed has an adverse discriminatory impact on an individual or group, based on enumerated or analogous grounds. In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, the claimant succeeded in showing that uniformly applied minimum physical fitness standards for forest firefighters in British Columbia have a discriminatory effect on women. There was evidence to show that on the basis of physiological differences, most women have a lower aerobic capacity than most men.
[118]Although there was evidence in this case from Ms. Catherine Frazee, who was qualified as an expert witness in critical disability analysis and social context theory, that evidence was not specifically directed to the issue of excessive demands in the context of the Immigration Act.
[119]I am unable to find that the excessive demands provisions of the Act have an adverse discriminatory impact on persons in the plaintiff's class in the absence of evidence to that effect. Furthermore, the adverse effects arguments are subject to the legal context prevailing here.
[120]That context is immigration law, in particular the circumstances in which persons will be found to be admissible to Canada. Such entry is not a right for anyone other than Canadian citizens and permanent residents. It is a privilege and its grant lies within the purview of the Canadian government which is entitled to establish entry standards, including an assessment of potential excessive demands on health services.
A Purposive Approach to Establishing Discrimination
[121]The second and third stages of a subsection 15(1) inquiry acknowledge that not all differential treatment will amount to discrimination. Differential treatment amounts to discrimination where those who are subject to it fall within one or more of the enumerated grounds, where the differential treatment reflects the stereotypical application of presumed group or personal characteristics or when differential treatment has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society.
[122]Subparagraph 19(1)(a)(ii) is not directed to any of the specified grounds in subsection 15(1) of the Charter. It is directed to excessive demands. That raises the question whether the section discriminates on an analogous ground.
[123]Discrimination on an analogous ground was considered by the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. In determining whether an analogous ground of discrimination exists, it is necessary to consider whether that ground is similar to the enumerated grounds and to grounds recognized as analogous in the past. Consideration must also be given to whether the differential treatment is premised on grounds that implicate human dignity.
[124]The issue addressed by subparagraph 19(1)(a)(ii) is not disability, as urged by the plaintiff, but the question of excessive demands. On the basis of the evidence, it appears that this is assessed having regard to personal characteristics of a potential immigrant, including a health condition which may reasonably be expected to cause excessive demands upon existing Canadian health and social services.
[125]In my opinion, the argument of discrimination on the basis of an analogous ground must fail. The section in question focuses on excessive demands, not on disease, disorder or disability. Contrary to the stance taken by the plaintiff, this case is not about disability but the medical assessment of potential immigrants to Canada within the context of Canadian immigration law. By its nature, legislation governing immigration must be selective.
[126]Regulation of immigration is a matter falling within federal jurisdiction and it is clearly within the right of the federal government to control the entry of people into Canada. The Immigration Act specifically provides that only Canadian citizens and permanent residents have a right to enter Canada. All other persons seeking entry must comply with the Act and Regulations.
[127]In R. v. Simmons, [1988] 2 S.C.R. 495, the Supreme Court of Canada, in dealing with the issue of an unreasonable and illegal search and a challenge to same pursuant to section 8 of the Charter, commented on the right of a sovereign state to control and screen persons crossing its borders. At page 528, the Court said as follows:
People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function.
[128]Although the factual situation in Simmons, supra, differs from that presently in issue, the decision is relevant in so far as it recognizes the right of a state to screen potential entrants seeking admission within its borders. The process of assessing medical examinations for the purpose of determining excessive demands upon existing Canadian health services is an aspect of the screening process to which potential immigrants are subject. In my opinion, this is not within the enumerated grounds of subsection 15(1) nor is it analogous to it.
The Contextual Factors
[129]The third step of the inquiry examines whether the differential treatment constitutes discrimination in the substantive sense. In light of my conclusion that the exclusion in subparagraph 19(1)(a)(ii) does not amount to discrimination based on an enumerated or analogous ground, it is not necessary to address the third aspect of the Law test.
SECTION 7
Security of the Person
[130]The issue of security of the person was recently considered by the Supreme Court in G. (J.), supra. At paragraph 59, the Court finds the constitutional guarantee of security of the person does not protect against "ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action." The concept of "government action" is relevant to the section 7 inquiry. The anxiety must be caused by some interference or action on the part of the state.
[131]I am satisfied that the plaintiff's right to security of the person was not infringed in consequence of the application of the medical inadmissibility section. She was not the victim of state action. As a potential immigrant, she was subject to meeting the requirements of the Immigration Act and Regulations. Contrary to her arguments, she had no right to enter Canada in her capacity as the spouse of a Canadian citizen. That is not the law and her challenge to the medical inadmissibility section must be assessed in relation to the prevailing law, subject to the provisions of the Charter.
Vagueness
[132]Both parties refer to Nova Scotia Pharmaceutical, supra, as authority for determining whether or not a breach of section 7 has occurred, in relation to the application of subparagraph 19(1)(a)(ii). On the basis of the evidence of Dr. Axler, Dr. Giovannazo and Dr. Lazarus, I find the arguments of the defendant more persuasive than those advanced by the plaintiff. I am satisfied that the process by which the plaintiff was assessed meets the criteria identified in Nova Scotia Pharmaceutical, supra, that there are tools to guide the conduct of the medical assessment and to inform a legal debate, that the assessment procedure is not arbitrary, and that the principles of fundamental justice are not offended.
[133]The plaintiff underwent a medical examination in accordance with the Act and Regulations. Her particular circumstances were assessed by two Canadian-trained physicians, that is Dr. Lazarus and Dr. Williams. According to the evidence of Dr. Giovannazo, Canadian-trained physicians are chosen to act as medical officers because they are familiar with the health system in Canada, including available and pending treatment.
[134]The plaintiff's arguments with respect to a stereotypical approach to assessment of a medical condition are based in her challenge pursuant to section 7 of the Charter as well as section 15. In relation to section 7, she alleges that her right to life, liberty and security has been compromised as the result of having been found medically inadmissible to Canada. She argues that the medical inadmissibility section is unconstitutional because it offends the principles of fundamental justice because it is vague and the implementation of the section depends upon the application of arbitrary standards. In particular, she points to the lack of conduct of a true functional assessment, including an assessment of her education, skills, work history and potential for productive work in Canada.
[135]The evidence of Dr. Lazarus makes it clear that the plaintiff's capacity for productive work was not in issue and he recognized her ability in a positive fashion. However, that was overridden by his assessment that her likely future need for medical care in Canada would be excessive. The issue of excessive demands was discussed by Dr. Axler and Dr. Heywood, and the general consensus is that «excessive demands» is something higher than average.
[136]Although the evidence shows that the costs of treating persons in Canada with multiple sclerosis has not been calculated, the evidence of Dr. Lazarus was that this condition is a costly one to treat in Canada. He concluded on the basis of the plaintiff's history, including the possibility of renal failure, that she was likely to require hospitalization and costly future treatment.
Procedural Fairness
[137]As a final argument in relation to section 7, the plaintiff submits that her medical assessment was procedurally flawed because Dr. Williams, the contract physician, signed as the second signatory. She argues that he had no authority to do so.
[138]In my opinion, this argument about procedural fairness is misplaced in the present proceedings. It is more appropriate to a judicial review of the negative medical inadmissibility determination, a remedy which was not pursued. In any event, it does not meet the criteria for establishing a breach of section 7.
[139]For the reasons outlined above, I conclude that subparagraph 19(1)(a)(ii) offends neither subsection 15(1) of the Charter nor section 7.
[140]The action is dismissed. If parties cannot agree, then they are invited to make submissions on costs.