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									       Supreme Court Case Decision – Victory for Immigrants with Disability

Here is the press release celebrating the Supreme Court's favourable decision in the
Hilewitz and de Jong cases.

These cases were launched by two families who wish to immigrate to Canada. Canada
Immigration denied their applications because each family includes a child with an
intellectual disability who might make "excessive demands" on the social services system.

Ethno-Racial People with Disabilities Coalition (ERDCO) and the Canadian Association
for Community Living (CACL) were the interveners in this case and were represented by


Hilewitz v. Minister of Citizenship and Immigration de Jong v. Minister of Citizenship and

On Friday 21 October 2005, the Supreme Court of Canada rendered its decision in the
cases of Hilewitz v. Minister of Citizenship and Immigration and de Jong v. Minister of
Citizenship and Immigration. The decision is a victory for persons with disabilities and
their families, and establishes that immigrants with disabilities can become valued
members of Canadian society.

Justice Abella, writing for the majority of the Supreme Court, noted that Canadian
immigration policy has applied "exclusionary euphemistic designations" that concealed
prejudices about persons with disabilities. The Court directed that Canada Immigration
must conduct individualized assessments of a family's immigration application and, as
part of this assessment, immigration officials should consider the resources, time,
personal and financial supports, as well as community supports, that families are able and
willing to provide to children with disabilities.

The Hilewitz and de Jong cases were launched by two families who wish to immigrate to
Canada. Despite first determining both families to be desirable immigrants, the application
of each family was denied by Canada Immigration because each family includes a child
with an intellectual disability. Canada Immigration refused their permanent residency
applications on the grounds that the children might cause "excessive demands" on social

ARCH represented the Canadian Association of Community Living (CACL) and Ethno-
Racial People With Disabilities Coalition of Ontario (ERDCO) before the Supreme Court
of Canada in the Hilewitz and de Jong cases. On behalf of these clients, ARCH argued
that a fair and respectful assessment of eligibility for permanent residency under the
former Immigration Act, and its successor, the Immigration and Refugee Protection Act,
must accord with the equality values of the Canadian Charter of Rights and Freedoms
and international human rights principles. Prospective immigrants should be evaluated on
an individual basis, as whole persons, with consideration given to their individual needs
and their potential contribution to Canada, as well as family and community contribution.

These cases were on appeal from the Federal Court of Appeal (FCA) to The Supreme
Court of Canada. The families appealed the decisions of the FCA that a medical officer is
not required to consider the family's personal circumstances, including a family's financial
ability to provide disability supports, in determining whether their admission to Canada
would cause excessive demands on social services.

The lower court found in the Hilewitz case that the medical officer should have considered
the family's ability and willingness to pay for any social services that their son might
require, including paying for private education and providing future employment for him, in
determining whether his admission would cause excessive demands on the social
service system. In the de Jong case, the lower court found that the family's ability and
willingness to pay for social services that their daughter might need, including tuition for
an inclusive private school to which she had been accepted, were irrelevant to the
"excessive demands" determination.

The CACL and ERDCO intervened in these cases in order to draw the Supreme Court's
attention to the fact that persons with disabilities are being systematically discriminated
against by being denied admission to Canada based on negative stereotypes. Visa
officers rely on the recommendations of medical officers to determine that persons with
disabilities will make "excessive demands" on Canadian social services. These medical
officers have based their recommendations on a medical diagnosis, rather than
considering the whole person. They did not consider what the cost of needed services
would be, or what a "reasonable demand" might be. As the population ages, the definition
of "reasonable demand" may change substantially. Moreover, Canadian immigration
policy does not exclude immigrants with high-risk behaviours, such as heavy smokers or
extreme sports participants.

The CACL and ERDCO pointed out that Canada Immigration fails to consider the positive
contributions that persons with disabilities make to society, and the important role that
families and communities play in providing supports to persons with disabilities. Canada
offers all new immigrants a broad variety of services and supports, which are recognized
as necessary to facilitate the integration of newcomers into their communities. The CACL
and ERDCO contended that it is inequitable to treat immigrants with disabilities differently,
and that immigrants with disabilities should have access to similar supports and services
that facilitate their inclusion in society.

The CACL and ERDCO are pleased that the Supreme Court of Canada directed that
Canada Immigration must not resort to a "cookie-cutter methodology" that simply looks at
the immigrant's disability diagnosis. ARCH's Director of Litigation, Ena Chadha argued
the case before the Supreme Court on behalf of the CACL and ERDCO.

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