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 ARCH. PRESS RELEASE-UPDATE Hilewitz v. Minister of Citizenship and Immigration de Jong v. Minister of Citizenship and Immigration 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 services. 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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