We are asking to eliminate Section 38(1)(c) of the Immigration and Refugee Protection Act, for discriminating against people with disabilities, in contravention of the Canadian Charter of Rights and Freedoms and other Canadian laws and International Treaties, and for its destructive social and economic repercussions. The Montoya family case has sparked this petition.

Background:

The Montoya family came to Canada July 1st of 2012 under the Experience Class Work Visa. Felipe Montoya, the father, was hired as tenured full professor at the Faculty of Environmental Studies at York University, and Alejandra, the mother is a dance instructor. They came with two children, their daughter Tania who entered high school, and their son Nicolas (Nico), who entered primary school, both in the public school system. On applying for permanent residency, after the required medical exams, all members of the family were found to be healthy, but only Nico was required to undergo further exams, solely because of his disability, Down syndrome. Finally, after waiting three years for the response from Citizen and Immigration Canada (CIC), they received the “Fairness Letter” where Nico was deemed “Inadmissible” due to his Down syndrome (code 759), and for having a “Moderate Intellectual Disability”. This disability prompted the declaration of “Inadmissible” under the Health clause, Section (38)(1)(c), of the Immigration and Refugee Protection Act, for the probable “excessive demand” that Nico’s education could cost Canadian “social services”. The Montoya family was given 60 days to respond to the Fairness Letter, with the option of signing a “Declaration of Ability and Intent,” where they must prove they have the ability and intent to “not impose an excessive demand on Canadian social services.” They have chosen not to sign this Declaration because they consider it is discriminatory against people with disabilities, that it contravenes the Canadian Charter of Rights and Freedoms and other laws of Canada, and because it unfairly requires them to assume the cost of public services for which they already pay taxes for in Canada. This case has sparked a public outcry, covered by the major mass media outlets of Canada, and a demand for change in public policy. The following arguments support this demand.

Considering that:

1. We all have “disabilities” to one degree or another, in some aspects or other, during some time or other of our lives, under certain conditions or circumstances. To not be able to do what others can commonly do, to be “disabled,” is a fundamental aspect of life, of which we may all partake, through genetic differences, through accidents, through infirmities, through aging. It is that part of being human that pushes us forward to overcome difficulties, to allow us to flourish and to express our full potential.

2. Disability becomes a problem for the individual, when the surrounding society is not capable or willing to transform circumstances to enable that person´s flourishing. The shortcomings of disability are not intrinsic, but societal. By providing the adequate supports for infants, the infirm, the disabled, and the aged, those “disabilities” stop being obstacles for these persons to reach their full potential.

3. Some societies have recognized this, and have made efforts to transform circumstances to enable every person´s flourishing. Canada has proclaimed in its highest laws the principles of non-discrimination against people with disabilities, as a measure of enabling people with disabilities to reach their full potential, to achieve their highest goals: The Canadian Charter of Rights and Freedoms (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.); the Canadian Human Rights Act (3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.); the UN Convention on the Rights of Persons with Disabilities (Article 4(1)(b) 1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;).

4. Societies are in constant evolution, some laws become outdated and need to be changed to conform to the evolving principles and values espoused by society and that are protected by the State. Such is the case of Section 38(1)(c) of the Immigration and Refugee Protection Act (IRPA), where it states that: “38(1) A foreign national is inadmissible on health grounds if their health condition (c) might reasonably be expected to cause excessive demand on health or social services.” The spirit, interpretation and application of this clause effectively discriminates against people with disabilities, not only contravening the aforementioned laws, but going against the spirit of inclusion and accessibility that has moved Canadian society to create and ratify these laws and treaties.

5. In the “Regulatory Definitions Related to Excessive Demand”, provided by CIC in the Fairness Letter, “social services” are defined in such a way that only those services aimed at persons with “disabilities” are subject to excessive demand: “social services means any social service, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services.” This particular selection of “social services” out of the entirety of social services provided by the State (transportation, security, education, etc.), unfairly targets a certain sector of the population, for certain disabilities.

6. Section 38(1)(c) of the IRPA allows some of the ugliest stereotypes, stigmas and anti-values that linger in society to rear their perverse heads. Among them are the conceptions that people with disabilities are sick, instead of people with different sets of abilities to be potentiated; that sick people are a burden to society, instead of persons that require care to allow them to flourish; and that the value of a person is reduced to their monetary contribution to the economy, instead of recognizing that a person’s worth is unfathomable and unbounded.

7. The unfortunate repercussions of Section 38(1)(c) include, not only the direct discrimination of foreign nationals with visible disabilities who apply for permanent residency in Canada, but a confirmation that persons with disabilities, including Canadians, are a burden to the State, diminishing their worth not only in the eyes of society, but in their own eyes. It perpetuates the perspective that some people are worth more, and some people are worth less, consolidating the underlying logic of racism, sexism, ableism, ageism, classism, and other aversions towards difference and the “other”, that creates destructive, costly, and unnecessary rifts between peoples in society. It also represents an enormous opportunity cost to society and the State, by discarding potential talents, possible diamonds in the rough. The greatest assets of society are its people and their diversity. This treasure should not be squandered.

Therefore, we the undersigned, in favor of an Inclusive Canada, respectfully request that:

Section 38(1)(c) of the Immigration and Refugee Protection Act be reviewed, if not discarded, for discriminating against people with disabilities, for contravening the Canadian Charter of Rights and Freedoms and other Canadian laws and International Treaties, and for its destructive social and economic repercussions.