Canadian Public Discourse around Issues of Inadmissibility for Potential Immigrants with Diseases and/or Disabilities

1902-2002

Valentina Capurri

A dissertation submitted to the Faculty of Graduate Studies in partial fulfillment of the requirements for the degree of Doctor of Philosophy

Graduate Program in History

York University

Toronto, Ontario

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Abstract

This study focuses on the history of public discourse around Canadian immigration policy with respect to immigrant applicants with diseases or disabilities deemed as inadmissible in light of the fact they might constitute an excessive cost for Canadian health and social services. It looks at the ways the public discourse entertained by elected politicians, two exponents of the press - the Toronto Star and The Globe and Mail - and the judicial system has evolved, mainly in form rather than content, as to systematically prevent foreigners with a disease or disability from entering Canada as permanent residents and later on, citizens of the country. Sources utilized in the study include parliamentary debates as well as interventions by politicians, newspaper articles, letters and editorials, and relevant court cases. The period of time covered in the analysis begins in 1902, when the Canadian medical inspection service was created as a control mechanism to prevent the entrance of undesirable foreign elements. It concludes in 2002, when the current Immigration and Refugee Protection Act was passed under the Liberal government of Jean Chretien. Since 2002, no significant change has been registered in the existing policy of medical admissibility. In its analysis, the study provides a major contribution to the existing literature and poses new and innovative questions on how immigration and disability have been constructed in the country: to what extent can immigrants and disabled persons belong? What are the requirements for citizenship? Why some are deemed 'more' citizens than others? It also investigates the role of politicians, the courts and some exponents of civil society (here the term civil society refers to social structures other than and in between the household and the state - for instance, different interest groups, associations, organizations and the like) in formulating a public discourse that validated this construction. The following pages demonstrate that there has been a system in place in Canada since the 1860s that has shown incredible longevity and resistance and that has been predicated on the belief that individuals are worthy only insofar as productive and useful to the material growth of the country. V

Acknowledgments

This work has been made possible by the help and support of a number of persons to whom I am extremely grateful and forever indebted. First of all, my thanks go to Patricia Wood, my supervisor, who has constantly provided me with advice and direction throughout the gestation and writing of the study. Also of great value were for me the suggestions and comments offered by William Jenkins and Marcel Martel, members of the advisory committee. Thanks to Sonia Lawrence for helping me find relevant court cases and for her advice in the early stages of the writing process. Thanks to Lui Temelkovski, MP for Oak Ridges-Markham from 2004 to 2008, for providing me with a better understanding of some of the intricacies of the Canadian political system. Thanks to Sarah Jordison, OPSEU Campaigns Officer, for sending much needed data and information.

I am also grateful to Engin Isin, who has been a guide and a professional model for the last eight years and who taught me the importance of the concept of citizenship and the value of academic research. Finally, thanks to my partner, Oliver Kennedy, who has supported me along the way and who is my reason for being here in Canada. vi

Table of Contents

Abstract iv

Acknowledgments v

Introduction: the personal and the political 1

Chapter 1. The 'right' kind of citizen 27

Chapter 2. Parliament's discussions around medically inadmissible immigrants 79

Chapter 3. Medically inadmissible immigrants: Toronto Star and The Globe and

Mail, 1902-1985 168

Chapter 4. Medically inadmissible immigrants: Toronto Star and The Globe and

Mail, 1985-2002 253

Chapter 5. The medical inadmissibility provision in the Federal and Supreme

Courts of Canada 302

Conclusion: where are we now and what lies ahead? 349

Appendix 380

Bibliography 388 1

"Penser 1'immigration, c'est penser 1'Etat"

Abdelmalek Sayad (1999, p.396)

Introduction: the personal and the political

In the Introduction to his work Understanding Disability, Michael Oliver argues that

"personal experience does have a direct, if complex, influence both on what gets written and the way it gets written."1 In agreement with this statement, I believe it is important to explain how I have come to write this study and why I have written it the way I have.

Everything discussed in the pages that follow comes from a particular perspective, that of a person with multiple sclerosis who has been directly affected by the provision of the

Immigration and Refugee Protection Act that considers inadmissible to Canada those immigrants with physical or mental disabilities expected to cause excessive demands on health and social services. I do not assume that my perspective corresponds to the

'Truth', and I actually believe that different people will look at the issue with different eyes and probably reach dissimilar conclusions. Nevertheless, I have tried to be as fair as possible in my analysis without hiding behind false claims of objectivity. The meaning of history has traditionally been made by those in power and what we know is what has been allowed to reach us. This study is my personal attempt to bring forward a different interpretation of history. It does not pretend to be the only 'Truth', but neither is the one

1 Michael Oliver, Understanding Disability (New York: St. Martin's Press, 1996) 5. 2

we have always accepted as such. History is a complicated and continuous clash of opposing interests and perspectives that are never exclusive: to assume so would seriously limit our understanding of what occurred and why it occurred.

At the same time, bringing the personal in does not imply that the whole study is based on the assumption that only people with disabilities can understand the meaning and feelings associated with having a disability and the consequent oppression that comes with it. In her paper " 'Race' and sexuality: challenging the patriarchal structuring of urban social space," Linda Peake explains that the belief that only black women can conduct research on black women or that only lesbian women can address the experiences of lesbian women is self-destructive. Peake argues that one's identity should not be the primary determinant of her suitability to engage with a particular issue. Such an attitude results in the tendency of "pitting category against category" and "removes from consideration the many successful research projects entered into jointly by black and white feminists."2 The same argument applies to the field of disability studies. The conceivable assumption that only scholars with disabilities can do research about disability oppression would create an unnecessary divide between those who have experienced that oppression and those who have not. It would also invalidate the perspective of non-disabled people and reproduce the old opposition between 'us' and

'them'.

On the other hand, it is flawed to assume that scholarly research can be objective and detached from the investigator's preconceived notions. We all have our own biases and

2 Linda Peake, "'Race' and sexuality: challenging the patriarchal structuring of urban social space," Environment and Planning D: Society and Space, Vol.11 (1993) 420. 3

they get inevitably reflected in our work. As Peake remarks, "choices about what to study and how to study are politically laden."3 This in turn entails that our lived experiences and beliefs influence, either consciously or sub-consciously, our work. Claiming objectivity in the way research is conducted is simply a cover-up that misguides the reader and denies our individuality. The first duty of scholars is to acknowledge that they approach their research topic from a specific perspective and that the outcome of their investigation is only partial and can/should be complemented with those of other scholars.

Peake suggests that a more productive attitude would consist in recognizing that our intellectual as well as emotional understandings are of a contextually specific nature.4

Both as scholars and human beings, we are distinct from each other, and this distinctiveness is what gives value to our research and contribution. The goal should therefore be to build on these diverse experiences and perspectives in order to gain a more comprehensive and inclusive understanding of the processes at work in society. It is in this spirit that I have decided to explain my personal position on the issue under investigation. Everything argued in the following pages has been deeply affected by my own experience of oppression and discrimination. The conclusions I reach would have probably been different if I had not lived through my own particular situation. In fact, this study might possibly not even exist. Nevertheless, the recognition of my personal bias in the writing of this work does not invalidate it. On the contrary, it simply reaffirms that

3 Peake 419. 4 Peake 420. 4

mine is just one among many different perspectives, some more valuable than others but, in the end, all limited and incomplete.

Then again, the purpose of this study is not limited to telling history from a diverse and somewhat unusual perspective. Though valuable, this is not enough if it does not help us to affect the reality we experience in our daily life. As Oliver explains, "The personal is the political"5 and we can and should use our own lived experiences as the first step towards insightful understanding and concrete change of a reality that still oppresses and represses too many persons with disabilities. In a world that keeps relying on the false distinction between personal and public spheres,6 we must reassert that the two are inextricably intertwined and that, as citizens, our personal is never distinct from the public. More importantly, we can bring our personal into the public in order to change the latter and create a new social, economic and political space more suited to our needs as individuals and as members of society. Therefore, this journey begins from the personal, using it as a launching pad towards a broader discussion of the place of disability in

Canadian society, especially when disability is connected to people who are not perceived as an integral part of that society. Bringing the personal in also helps the reader understand that the present work does not deal only with numbers and statistics soon looked at and soon forgotten. It deals with individuals, each one of them personally and deeply affected by decisions taken elsewhere, each of them still carrying the scars left by those decisions. The author of this study is one among many of those individuals, and it is with her story that the study begins.

5 Michael Oliver, Understanding Disability, (New York: St. Martin's Press, 1996) 13. 6 Oliver (1996) 166. 5

I came to Canada from Italy in September 2001 after being accepted to the Masters

Program in Geography at York University in Toronto. At the end of that month I experienced visual problems and I went to an optometrist to find out what was happening to my sight. The doctor told me that nothing was wrong with my eyes and suggested visiting a neurologist as he suspected something more serious was taking place. After seeing the neurologist at St. Michael's Hospital, I was diagnosed with multiple sclerosis

(MS). I remember I had experienced in past years some of the symptoms of MS, but as common to many of those with the disease, each time I was told by doctors that my health was perfect and that my problems were of a psychological nature. The day I received a final diagnosis I was actually relieved: finally someone believed me rather than dismissing my symptoms under the guise that I was just imagining them.

After being diagnosed with multiple sclerosis, I entered as participant a research study at St. Michael's Hospital sponsored by Sanofi-Aventis Canada. The aim of the clinical trial is to evaluate the long-term benefits and the potential risks of a new medicine called

Teriflunomide in the treatment of relapsing-remitting multiple sclerosis. There is no fee or other compensation for taking part in the study and I am not charged for the medication or any research procedures. The study is now in its extension phase and the results are promising. I have remained attack-free during the extension phase of the study, though my general health has shown signs of deteriorating along the years. For instance, walking long distances is becoming difficult and running or jogging is no longer an option. I also suffer from fatigue. Despite these inconveniences, I am overall a healthy person and I am able to carry out with relative ease most of my daily activities. I am 6

completing my doctoral program in History at York University and I support myself teaching in that same institution.

In 2004 I applied for permanent residence in Canada as an independent. I was aware that my medical condition could have represented an obstacle under art. 38(l)(c) of the

Immigration and Refugee Protection Act. The article, better known as the medical inadmissibility provision, establishes that immigrant applicants with a disease, disorder or disability are inadmissible to the country if their medical condition or disability is likely to pose an excessive demand on Canadian health and social services. On the other hand, I also knew that each application has to be considered individually: given my past history as a hard-working and law-abiding individual, and the fact that I have established myself in the country and built both professional and personal relationships, I was confident the application had some chances of success. In my naive desire to settle in Canada, I honestly believed that no immigration official was going to refuse entrance to someone whose present health condition was overall satisfactory and not affecting her ability to earn a living.

The following months proved me wrong. I must give credit to the Canadian

Immigration Office in Detroit for trying to find reasons other than those based on medical grounds in order to keep me out of the country. Creativity and inventiveness are not lacking in that office. I assume that from the limited perspective of an immigration officer, it does not appear too offensive if the rejection is motivated by reasons other than a medical one. People who apply are rejected every day for a number of different motives. In the end, as pointed out by Howard Adelman in "The New Immigration 7

Regulations," Canadians feel they have a responsibility to carefully select those who can be allowed to enter and settle in the country. As Adelman explains, "Decisions on membership in the body politics determine the future of what will become of Canada."7

No wonder officers are pretty cautious when it comes to screen potential members of the community.

At any rate, I was surprised by the effort the Immigration Office made not to hurt my feelings! It was particularly amusing being told that I had to pass the IELTS

(International English Language Testing System) to receive any points under the

'language proficiency' category. This was in spite of the fact that doctoral students are not usually asked for it and that the Graduate Program Director in the History department wrote a letter of support clearly stating that I was perfectly able to understand, write and speak English. Not enough. Quite a slap in the face for York University: the third largest university in the country is willing to entrust 40 of its students to me each semester, though the Immigration Office does not believe that represents a sufficient guarantee.

Things are different when you have MS. I paid for the test and passed it with excellent results. After exhausting all other avenues to dismiss the application, I was finally required to undergo a medical examination and submit a report from the neurologist who looks after me at St. Michael's explaining in detail my medical history, current treatment and future prognosis. I waited three long years for a final decision of my application.

Three years might not seem much when written on a paper, but it resembles an eternity when your life is hanging in the balance and your fate is going to be decided by someone

7 Howard Adelman, "The New Immigration Regulations" (2002) 1 www.vork.ca/crs/Publications/QCEP%20PDFs/regulations.12.01.final.art2.doc. 8

else. Then again, applicants are required to be patient and understand that immigration officials are really busy in dealing with a huge backlog of applications, never put pressures or remind them that there are human beings with feelings behind all their paperwork.

Finally, in May 2007, I received a 'fairness' letter from the immigration officer in charge of my file informing me that I was "a person whose health condition might reasonably be expected to cause excessive demand on health or social services."8

Therefore, I was being invited to submit additional information relating to this medical condition (what additional information? that I was suddenly MS-free? For those who do not know, as of today there is still no cure for MS) and to possible ways of addressing the issue of excessive demand. Failing to do so would result in a rejection of the application since I was medically inadmissible. In June 2007, I withdrew the application. I had no additional information to provide. More importantly, I was becoming tired of fighting what appeared to be a lost battle, silently waiting more days or months before a final rejection.

The decision to withdraw the application was facilitated by the fact that I had a choice: my country of origin is not stricken by poverty and, though Canada was the place I loved, it was not my only chance for survival or even for a decent living. I could go back tomorrow and no country within the European Union can reject me and tell me I cause

'excessive demand' on the public purse. Some countries will probably think so but they would not have any legal grounds to keep me out. However, people have different stories

8 Moira Escott, Officer at the Consulate General of Canada, letter to the author, 10 May 2007. 9

and for some of them moving to Canada is a necessity rather than a choice. They may be outside the 'refugee' category, still they may search for a better life and more opportunities in a country other than their own. In those cases, acceptance from

Immigration Canada can make the difference between misery and the opportunity of a lifetime.

I also recognize that my situation has somewhat changed since I am currently the spouse of a Canadian citizen and I can apply again as sponsored by this person.

According to the Immigration and Refugee Protection Act passed in 2001, sponsorship of spouses is not subject to art. 38(l)(c) and therefore I will be exempted from the provision of inadmissibility on medical grounds. Although the exemption will work to my

advantage and although I knew it would have been easier to go through with it from the beginning, I initially opted for the most difficult path because it seems questionable to me

forcing someone to implicate her/his partner in the process. I wanted to be accepted for who I am, not for the person I am involved with. I would have also preferred to spare my

companion the intrusiveness of outsiders into a relationship that is private and should

have remained so. What I have to offer Canada goes far beyond my current personal relationship with one of its citizens. For this reason only, soon after receiving the

'fairness' letter, I considered for a moment the option of keeping my application as

independent and bringing an appeal as far up to the Supreme Court if necessary. It has

been done in the past, though the best result achieved was to allow the claimant to remain

under ministerial permit (the present Temporary Resident Permit) without ever changing

the law. After consulting with a lawyer, I was informed that the chances of winning such 10

a battle were extremely limited: so far, Judges of the Supreme Court have failed to show boldness, recognizing there is a dangerous inconsistency between the Charter of Rights and Freedoms and the Immigration Act. I also considered that the financial cost involved would be well beyond my reach. It appears that in the country of rights and freedoms, only people with enough money are allowed to fight for them. Once again, the law is identical for everyone, but offers a little more opportunities to those who have the money to access it.

The day I received the letter from the Immigration Office, I just sat and cried, the way

I did not cry when I was diagnosed with MS. Knowing I had a chronic disease was scary, but it is far scarier to realize people judge you exclusively for the disease or disability you have rather than the person you are. In preparation for this study, I have had the opportunity to read plenty of stories of immigrants with disabilities who have been rejected from Canada. Still, it was difficult to understand the impact the rejection had on their lives. "I have determined you are a person whose health condition might reasonably be expected to cause excessive demand on health or social services"9: reading those words on paper was a wake-up call I was not prepared for. So that is what it feels like, this sense of exclusion and loss, the betrayal by a country I had loved and admired, a country that was not willing to give me a chance and defined me as a burden. If this work can contribute to a better understanding of the impact that the medical inadmissibility provision has had through time on people like me, it will be meaningful. If it can help in changing even an inch of that reality, it will accomplish one of its goals and hopefully

10 Moira Escott, Officer at the Consulate General of Canada, letter to the author, 10 May 2007. 11

give something back to all those who have been excluded by reason of disease, disorder or disability.

This study investigates whether and why Canada has been constructed around an idea of nation-building which had at its centre the development of a morally and physically

'healthy' population, emphasizing a work culture under which people have been assessed mainly on the basis of the material and productive contributions they can make to the country. In his paper, Adelman makes quite clear that Canada is not there to act as a charitable institution on the world stage, instead "Immigrants are selected because of what Canada wants and needs."10 Such a definition of 'usefulness' is however quite restricted and fails to recognize the contributions of persons with disabilities to society. A capitalist system which is exclusively focused on a specific notion of work results in an erosion of disabled people's labour- power that often damages their ability to assert their value as human beings and social actors. The issue is therefore whether and how such a system has affected the way state and society have related through time to persons with disabilities. This study investigates how the public discourse around immigration and disability entertained by certain sectors of society (namely, politicians, individuals and groups able to have their opinions captured by two newspapers - The Globe and Mail and

The Toronto Star - and the court system) in the period between 1902 and 2002 has

changed (though more in its form than in content), what has brought about these changes, what pressures were needed and who exerted them, what has been the role played by the

10 Howard Adelman, "The New Immigration Regulations" (2002) 9, www.vork.ca/crs/Publications/QCEP%20PDFs/regulations. 12.01 .final.art2.doc. 12

notion of citizenship in accelerating such changes, and what still remains to be dismantled.

The choice of concentrating on public discourse stems from the awareness that, as noted by David Ryfe, "reality is constructed through language, or more broadly, through communication."11 The concept of public discourse employed in this study draws from the work of Martin J. Burke who, in analyzing public discourse on the social order in the

United States, defines it as referring "to collections of real individuals in the social world."12 Recognizing that people do not live their lives disconnected from each others, it is important to look at the way diverse individuals and groups handle and discuss public issues.13 Whereas it still holds true that there were and are "a number of conspicuous groups that remain relatively voiceless,"14 and that often those able to engage in public discourse are individuals possessing the cultural, social and economic capital to speak and write on certain issues, it cannot be overlooked that many of their speeches and writings "were designed to address popular audiences, and as such can be considered the political primers and lexicons of [American] public discourse."15 Therefore, public speaking and writing expressing "the opinions, beliefs, and understandings of various groups over time"16 constitute a valuable source to comprehend how concepts such as, in this specific case, disability, immigration, citizenship and rights, "both registered

11 David M. Ryfe, "The Principles of Public Discourse: What Is Good Public Discourse?," Public Discourse in America, eds. Judith Rodin and Stephen Steinberg (Philadelphia: University of Pennsylvania Press, 2003) 163. 12 Martin J. Burke, The Conundrum of Class (Chicago: The University of Chicago Press, 1995) xiii. 13 Thomas Bender, "The Thinning of American Political Culture," Public Discourse in America, eds. Judith Rodin and Stephen Steinberg (Philadelphia: University of Pennsylvania Press, 2003) 33. 14 Neil Smelser, "A Paradox of Public Discourse and Political Democracy," Public Discourse in America, eds. Judith Rodin and Stephen Steinberg (Philadelphia: University of Pennsylvania Press, 2003) 182. 15 Martin J. Burke, The Conundrum of Class (Chicago: The University of Chicago Press, 1995) xiii. 16 Burke xv. 13

historical change and gave shape to its outcomes."17 The focus on public discourse reveals indeed how changing social categories and practices expressed through the language of certain social actors concretely affected reality within society. While we should not "reduce complex social processes and political events to the actors' versions of them,"18 we can certainly use public discourse to gain a better historical understanding of our past.

The research focuses on the situation of a specific group of persons with disabilities, those who are not citizens of the country but attempt to be admitted as permanent residents and, later on, become naturalized. It refers in particular to the current article

38(l)(c) of the Immigration and Refugee Protection Act concerning medically inadmissible classes of immigrants, together with its prior versions contained in the preceding Immigration Acts that have regulated entrance of foreigners into the country in

the last century or so. It examines how the public discourse around this subject has

developed by analyzing what politicians, two selected newspapers and the courts had to

say through time. It looks, for example, at debates or interventions by politicians and

public officials - among them, immigration agents, Chief Medical officers, officers from

both the immigration and health departments who were summoned to answer questions

during the discussions around passage of Bill C-86 and Bill C-31 - that are related to the

issue of immigrant applicants whose health conditions may constitute a burden for the

economy of the country. The period of time covered in the analysis goes from 1902,

when the Canadian medical inspection service was created as a control mechanism to

17 Burke xvi. 18 Burke xvii. 14

prevent the entrance of undesirable foreign elements, to 2002, when the current

Immigration and Refugee Protection Act went into effect under the Liberal government of Jean Chretien. Since 2002, no significance change has been registered in the existing policy on medical admissibility.

The subject of the first part of the study has to a degree been dealt with by other academics and, hence, it takes advantage of a broad range of secondary sources. A number of Canadian scholars, both past and present, have greatly contributed to a better understanding of various aspects of immigration with works of exceptional quality.

Among the several fields related to immigration to Canada, academics have looked at the impact of gender (Wenona Giles, Catherine Dauvergne and Franca Iacovetta, just to name a few of them), religion (Roberto Perin, Mark McGowan, Jiwu Wang), settlement

(Frances Frisken, John Zucchi, Franc Sturino) and the economy (Alan Green, Donald

Avery) on the overall immigration process. Other (and sometime the same) scholars have

explored specific sectors of the immigrant population such as refugees (Lome Waldman,

Catherine Dauvergne), Jews (Irving Abella, Michael Behiels), Italians (Robert Harney,

Enrico Cumbo, John Zucchi), Irish (Mark McGowan, Bruce Elliott), Chinese (Kay

Anderson, Patricia Roy), Blacks migrants (Francis Henry, James W. St. G. Walker,

Robin Winks) and the list goes on. These works have represented significant

contributions in the development of immigration studies within Canada, helping us to understand not only who these new arrivals were and where they came from, but also

what Canadian society was and what it has become thanks to the input received by all the

immigrant groups who have chosen the country as their new 'home'. In particular, plenty 15

of knowledge is now available on the way the Canadian state and Canadian society have related through their immigration policies and attitudes to persons of different race, ethnicity, religious orientation, skills and education.

The analysis of those sections of the Immigration Act (in all its subsequent versions) which refer to the immigration of persons with disabilities has instead scarcely received any attention in the academy. As stated by Longmore in reference to American scholars

(though this holds true for Canadian scholars as well), immigration historians appear to have neglected the importance that exclusion of foreigners with disabilities has always had in American (and Canadian) immigration law. Yet, as pointed out by Douglas

Baynton, "Disability is everywhere in History, once you begin looking for it."19 Trying to account for this omission in historiography, Longmore concludes that it is partly the result of the dominance of the medical paradigm within our society. The medicalized perspective has looked at disability as exclusively related to a specific individual.

Reducing disability to a personal condition has resulted in its dismissal as a subject for a

20 systematic study. Though this approach is now changing and several studies on issues of disability are finally coming out to fill the gap, still there is an unfortunate lack of works dealing with the peculiar situation of immigrants with disabilities. The scarcity of studies on the topic is also due to the fact that scholars may find difficult to consider a subject that has different interpretations and definitions across time and cultures: what might be perceived as a disability at a specific point in time or among one ethnic group, is 19 Douglas Baynton, "Disability and the Justification of Inequality in American History," The New Disability History, eds. Paul K. Longmore and Lauri Umansky (New York: New York University Press, 2001) 52. 20 Paul Longmore, Why I Burned My Book and Other Essays on Disability (Philadelphia: Temple University Press, 2003) 54-55. 16

not necessarily seen as such few years later or among other groups. At any rate, this persistent neglect among scholars and academics is reflected in the scarcity of books and articles about the topic; consequently, the second part of the research is mostly based on primary sources.

Focusing on what has so far been neglected by Canadian scholars, this work provides a major contribution to the existing literature and poses new and innovative questions on how immigration and disability have been constructed in the country (to what extent can immigrants and disabled belong? Why do we find so hard to perceive them as 'us'? What are the requirements for citizenship? Why some of us are deemed more citizens than others?), and on the role of politicians, the court and some exponents of civil society

(within the context of this work, the term 'civil society' refers to social structures other than and in between the household and the state - for instance, different interest groups, associations, organizations and the like) in formulating a public discourse that validated this construction. At the same time, this is not just a work on perceptions around immigration and immigration policies, but also on the way the state operates through its legislation in order to preserve itself, in the process using immigration as an instrument to achieve its goal. In particular, the following pages demonstrate that aside from the personal interests or political orientations of individual figures, there has been a system in place in Canada since the 1860s that has shown incredible longevity and resistance and that has been predicated on the belief that individuals are worthy only insofar as productive and useful to the material growth of the country. The exclusion of immigrant applicants with a disease or disability is the result of rooted perceptions of 'disabled' and 17

'sick' persons being the prototype of un- productiveness and un-usefulness. The focus on productivity as one of the prerequisites in the decisions made to guarantee the well-being of the country is what has allowed the Canadian state to maintain the medical inadmissibility provision despite its apparent unconstitutionality. This, in turn, reveals that the state as a structure is primarily interested in its own survival and growth; whenever there are rights that seem to impede it, the public discourse set up by politicians tends to simply discard it in the name of a 'greater good'. As shown in the following pages, the exclusion of immigrants with a disease, disorder or disability gets presented by elected federal politicians as a tool to prevent an undue economic burden and as a

'necessity' for the preservation of Canadian health and social services to the benefit of

Canadian citizens. This argument, however, is untenable and tries to cover up the fact that the real message Canadians with disability receive is that disability is a burden and they are accepted only because they were lucky enough to be born in Canada. Yet, from the government perspective, a greater good is achieved through the discrimination perpetrated towards a section of one of those equity seeking groups that are actually under the protection of the Canadian Charter of Rights and Freedoms.

In terms of organization, the study is divided into five chapters. The first of them,

"The 'right' kind of citizen," based on previously conducted studies, provides some insight into the situation of people with mental and/or physical disabilities within western society and in particular Canadian society. This section focuses on issues of citizenship and social justice. It explores how the concept of citizenship has been applied to include or exclude those who have been traditionally perceived as 'other' than the ideal white, 18

male, able bodied citizen. The chapter also touches on the concepts of power and empowerment, analyzing with whom this power resides and how it has been and still is exercised within Canadian society. The focus then shifts to a general excursus into the development through time of an immigration policy in Canada, briefly touching on its main goals, results and implications for both Canadians and those who were accepted or rejected by the country. It looks at the barriers and discrimination faced throughout history by potential immigrants with a disease, disorder or disability while trying to enter the country. As mentioned above, this section draws for the most part from studies already conducted by other scholars who have previously engaged with the topic. The two sections are intimately connected as they both rest on the long-held assumption that individuals' value is exclusively measurable in terms of profitability; without discussing the uneasiness of society with everyone (whether Canadian or not) deemed disabled and therefore unproductive and unprofitable, it would not be possible to folly understand the reasons behind the exclusion of immigrant applicants with a disability or medical condition.

After the initial groundwork of laying out the basis upon which the argument is built, the next chapter, "Parliament's discussions around medically inadmissible immigrants," enters directly into the issue of the inadmissibility into Canada of people with diseases or disabilities. The chapter gives evidence of how the public discourse developed by federal politicians presented the issue through discussions which were carried out in the period of time from the early twentieth to the beginning of the twenty-first centuries among members of Parliament in both Houses as well as in several Standing Committees created 19

to deal with immigration matters. The sources utilized in this section consist in the

Official report of the debates in the House of Commons as well as the Senate of Canada for the whole period investigated; Sessional Papers containing Annual Reports from the

Chief Medical Officers and records from relevant Standing Committees are also drawn on. With the assistance of direct quotes from original documents, the chapter presents the general perception existing at the federal level of the government concerning the usefulness of immigration and the place (or 'NON-place') of people with disabilities within it. Although the chapter shows evident criticism of the prevailing attitudes manifested by several politicians with respect to 'foreigners', its main goal is not to ridicule or pass judgment on single individuals but to question the system behind them.

Members of Parliament were not merely a clique of insensitive persons disconnected from the real world; rather they were and are an expression of it. The goal of the chapter is neither to investigate the ideologies or attitudes of individual politicians nor to explain why they had that particular belief or behaved in that particular way. Rather, it aims at showing that a focus on individual figures is irrelevant as no matter their name or their party affiliation, they were all part of a system that none of them ever questioned.

Policies and laws cannot be changed unless society itself changes, therefore approaching issues of immigration and disability from a completely different perspective. Indeed, within a general discourse which deems disability as threatening and dislikeable, it is

Utopian to expect that the legislation will ever reflect an appreciation of persons with disabilities. 20

The third and fourth chapters shift the focus from politicians to segments of the press in the attempt to understand whether judgments and opinions expressed behind the walls in Ottawa actually reflected and/or were reflections of understandings and perceptions among certain sectors of the public, namely individuals and groups who managed to have their views recorded by two Ontario's newspapers - The Globe and Mail and the Toronto

Star. Whereas chapter three, "Medically inadmissible immigrants: Toronto Star and The

Globe and Mail, 1902-1985," looks at events taking place in the period between 1902 and the passage of the Charter of Rights and Freedoms in the early 1980s, chapter four,

"Medically inadmissible immigrants: Toronto Star and The Globe and Mail, 1985-2002," deals with the post-Charter era. The rationale behind the choice of the Charter as a watershed rests with the author's belief that the passage of the Charter has deeply impacted the way Canadian society perceives and relates to minority groups, the disabled community being one of them. Moving away from the setting where government policies were formulated, chapters three and four try to show what has been the perception of the topic under investigation within segments of the larger society by looking at the public discourse elaborated by two major newspapers. In particular, the two chosen newspapers have been used as a source of historical information about what some of the press was writing around the issue as well as to gain insights into the attitudes prevalent among a number of politicians, editorialists and readers who expressed their opinions in interviews, editorials, articles or letters. Through time, for example, the issue came up over and over again in articles and editorials with relation to specific and individual situations: how were these cases portrayed in the newspapers looked at in the study? 21

What kind of attitude did readers have when confronted with concrete events as in the case of an entire immigrant family receiving permanent residency with the exclusion of one of the children who had Down's syndrome? Newspaper analysis constitutes, from this perspective, a narrow opening allowing the voice of the 'common people' (or better, some of them) to be recorded on matters where often only bureaucrats and politicians are heard. Here again the focus is not on investigating the opinions of specific subjects

(which official position was taken at a particular time by the Mayor of Hamilton or the

Methodist Church or the Toronto School Board) but to provide the reader with a flavor of the general discourse animating Canadian society.

For the purpose of the present study, the main sources employed in chapters three and four consist of articles retrieved on-line in the Toronto Star and The Globe and Mail, both of which were published throughout the whole period investigated (though, at times, with different names and owners and, more importantly, with different scales of circulation).

In the case of The Globe and Mail, the paper was created in 1936 after the merging of

The Globe with the Mail and Empire', all articles used in the study for the period previous to this date were retrieved from The Globe. Both papers started their publication on a local city scale; The Globe in 1844, the Toronto Star in 1892. In time, both papers have expanded their circulation to cover the whole province, though only The Globe and Mail has reached a national scale of publication. Despite The Globe's effort to reach out to the whole country, the author recognizes that Ontario and more specifically Toronto remain the focus of attention in both papers. Although it would have been interesting to have a broader perspective, thus including newspapers published elsewhere in Canada, 22

particularly in the provinces of British Columbia and Quebec (in consideration of the fact that, after Toronto, Vancouver and Montreal are the urban centres that have traditionally been receiving the bulk of immigration to the country), this has not been possible in this specific context. Expanding the analysis to cover the whole country would have resulted in a study of its own and this has been the main reason why the author has opted for a micro-level investigation that, though not representative of society's perceptions all across Canada, reveals plenty about opinions dominant in Toronto and, more broadly, the province of Ontario. Furthermore, the decision has not been made arbitrarily as it should be taken into account that as argued by Larry Bourne and Damaris Rose, Toronto has historically been and still remains a "gateway city" for those seeking entry into Canada.21

As the press has the power of influencing society while also being reflective of

society's needs and interpretations of the world and what happens in it, I trust the coverage given by these two newspapers to the issue under consideration provides

additional evidence of the attitudes present among certain sectors of the population towards potential immigrants with disabilities. In conducting this investigation, a total of

358 articles were retrieved through internet research. The two databases examined were

The Toronto Star Pages of the Past and The Globe and Mail Canada's Heritage from

1844. Search by word was conducted on both sites (the words searched for were

'immigration' and 'immigrants'), followed by a selection of retrieved articles based on their relevance for the specific topic of research. At the end of the process, 186 relevant

21 Larry Bourne and Damaris Rose, "The changing face of Canada: the uneven geographies of population and social change," The Canadian Geographer, Vol.45 No.l (2001) 111. 23

articles were found for the Toronto Star and 172 relevant articles for The Globe and Mail.

Most of these articles have then been used as evidence in the chapters.

The methodology adopted for the investigation is known as 'content analysis' and consists in analyzing the messages spread around by the press through the examination of the structure of communication. This kind of research has both quantitative and qualitative aspects, the former being mostly interested in measuring frequencies (how many articles are written on a topic, how many lines or columns are given to a story, etc.), while the other looking at themes, terms and expressions within the article.22

Although recognizing that communication is not neutral and objective but rather informed by specific values and interests, newspapers are useful in understanding what issues were of particular interest at a specific time within society. While acknowledging

Adelman's opinion that newspapers may have a propensity to criticize whatever measure is taken by the government in order "to reinforce a self-declared role as the watchdog of the public interest against mindless and insensitive politicians and bureaucrats,"23 this study is based on the conviction that such an argument is ultimately ineffective. When approached with a critical outlook, newspapers can reveal precious information about society's dominant attitudes and perceptions. After all, the relation between media - and in this particular case the focus is on newspapers - and the audience is interactive: media constructions reflect as well as influence the values and beliefs systems of their

22 Effie Ginzberg, Power Without Responsibility: the Press We Don't Deserve (Toronto: Urban Alliance on Race Relations, 1987) 7-8. 23 Howard Adelman, "The New Immigration Regulations" (2002) 2, www.york.ca/crs/Publications/QCEP%20PDFs/regulations. 12.01 .final.art2.doc. 24

audience.24 Accordingly, Adelman's dismissal of media appears not only arrogant but in the end constitutes an obstacle to any meaningful and honest investigation.

The last chapter of the dissertation, "The medical inadmissibility provision in the

Federal and Supreme Courts of Canada," looks at selected legislative cases of immigrants with diseases or disabilities who have questioned the government's actions and taken their case directly to the courts. Court cases are relevant in analyzing public discourse around the issue of disabled immigrants because they clearly reveal that the legal system is an integral part of society and that the reading of the law provided by the judges is to a certain degree affected by the dominant perceptions and understandings of what constitutes disability at a specific point in time. Court cases are also used as a test to demonstrate that the evolving public discourse (at least for what relates to the language adopted) entertained by politicians and various exponents of civil society and explored in the previous three chapters, has not resulted in any significant overhaul of the ideological system at work in Canada with respect to the place of potential immigrants with disabilities. This section focuses on a shorter and relatively recent period of time as challenges to the law have occurred only since the passage of the Canadian Charter of

Rights and Freedoms in 1982. Although most cases analyzed in the chapter do not make direct reference to the Charter, the latter has given a new relevance to the role of the courts in the lives of ordinary citizens; accordingly, it is not insignificant that since the passage of the Charter, people have started to increasingly look at the legal system as an avenue for contesting government's decisions impacting on their rights. This latter stage

24 Frances Henry, Discourses of Domination. Racial Bias in the Canadian English-Language Press (Toronto: University of Toronto Press, 2002) 7. 25

of the research also reflects on how issues of class, financial availability and education determine who is able to take action within the legal system. In particular, the analysis indicates that there are sharp differences among those who are usually grouped together under the 'immigrant' category. Whereas some immigrant applicants are wealthy and can afford to go to court, several others are barely able to support themselves and therefore are not in a condition to ask for the services of an attorney and go through a process that is rather long, costly and physically and mentally exhausting. All these are issues that need to be taken into consideration in order to better understand how a practice of discrimination can be even harsher over a subgroup of those affected by it. The litigations presented throughout the chapter were made available by Sonia Lawrence, Professor of

Constitutional Law and current Assistant Dean at Osgoode Hall Law School in Toronto.

Having easier access to legal document material, Professor Lawrence kindly offered her help and forwarded me some of the major court cases revolving around the medical inadmissibility provision contained in the Immigration Act of 1976 and the currently in place Immigration and Refugee Protection Act. The material provided by Professor

Lawrence has been used in its entirety with the exception of two cases that were not deemed to add significant and original elements to the analysis.

Finally, the conclusion, "Immigrants with illnesses and disabilities: where are we now

and what lies ahead?," summarizes the main findings of the study and reaffirms the

argument that the Canadian immigration policy's provision of inadmissibility for persons with a disease, disorder or disability considered as an excessive economic burden to the

state is not only unfair and discriminatory but unconstitutional within the Canadian 26

system. It also tries to explain why the 'unconstitutionality' has been allowed, why almost no one seems interested to question it and how the Charter can be used to challenge the existing structure. Although the investigation reveals that the provision is the legacy of a specific historical context and its developments through time, it also argues that its maintenance is today at odds with the country's constitution, thus wondering why such an oddity has not been addressed and what has been the role played by the dominant ideological system in maintaining the status quo. It suggests that a more profound analysis of the Charter of Rights and Freedoms is required in order to fully understand its potential and implications with respects to issues of equality and discrimination. Although the document has become a symbol of what Canada stands for, and is proudly referred to as embodying the Canadian identity, a thorough investigation has never been conducted. It is the author's belief that the Charter has the potential to entirely alter the Canadian system if carried to its ultimate stage. The hope is that the study will contribute to raise awareness among academics around the need for further investigation of the Charter, especially its article 15(1). At the same time, the pages which follow are also aimed at drawing attention to the past and current situation of foreign people with disabilities trying to enter Canada as immigrants. It is therefore the condemnation of a system that for various reasons of indifference and convenience has always eluded recognizing the rights of those who do not 'belong'. 27

Chapter 1

The 'right' kind of citizen

This study focuses on the history of public discourse around Canadian immigration policy with respect to immigrants with diseases or disabilities from the early twentieth century to the beginning of the twenty-first century. It looks at the ways public discourses entertained by elected politicians, two exponents of the press and the judicial system evolved, mainly in form rather than content, through time so to systematically prevent potential immigrants with a disease or disability from entering Canada as permanent residents and then citizens of the country. Despite the principles embodied in article 15 of the Canadian Charter of Human Rights and Freedoms, article 38(l)(c) of the Immigration and Refugee Protection Act which went into effect on June 28, 2002, (whose antecedent was art. 19(l)(a) in the previous Immigration Act of 1976) results in a policy that is discriminatory in the distinction it makes between medically admissible persons and those who are not admissible because their health condition or disability might pose an excessive demand on Canadian health and social services. As the reader will see in a subsequent chapter, in 2002, in Chesters v. Canada (Minister of Citizenship and

Immigration), the plaintiff claimed that subparagraph 19(l)(a) of the Immigration Act violated section 15(1) of the Charter of Rights and Freedoms. The defendant responded to the charge of discriminating against disabled immigrants arguing that the provision was not discriminatory since it focused on excessive demands rather than disease, disorder or disability. The defendant further stated that the case was not about disability but the 28

medical assessment of potential immigrants to Canada within the context of Canadian immigration law and that, by its nature, legislation must be selective and, accordingly, the

Canadian government is entitled to establish entry standards. This study is meant to contribute to the historical investigation around public discourses surrounding Canada's immigration policy on medical inadmissibility, thus trying to show that such argument is a flawed one. It maintains that, contrary to what is sustained by the Canadian state, the provision in question results in discriminatory practices towards people with disabilities and is in violation not only of the Canadian Charter of Rights and Freedoms but of the principle of human dignity embodied in various documents prepared under the auspices of the United Nations and signed or endorsed by Canada.

The study argues that the current art. 38(l)(c) of the Immigration and Refugee

Protection Act, under the fa?ade of protecting Canadian health and social services against excessive demands, thus keeping these services available for Canadians, is actually the inevitable result of a core conception of who is the 'legitimate' citizen, what are the requirements of citizenship, and what are the criteria for establishing these requirements.

In AIDS and the National Body, drawing from Wittgenstein, Thomas Yingling points out that "national identity requires an ideal conception of the body and the rejection of accommodation to Otherness."1 Referring to the American culture, though this holds true in the Canadian context as well, he goes on stating that "public embodiment is in itself a sign of inadequacy to proper citizenship."2 This might explain why women, people of colour, people with disabilities or gays and lesbians are marked as inadequate: they do

1 Thomas E. Yingling, AIDS and the National Body (Princeton: Princeton University Press, 1997) 25. 29

not fit the abstract ideal of the white male citizen. In her work The Body Politic,

Catherine Holland seems to be in agreement with this interpretation and explains that within the context of American liberalism, the concept of citizenship has been formulated since its inception as applying to the dis-embodied entity of the abstract citizen. This has profound consequences for those with disabilities since it results in society's failure and unwillingness to take into consideration the needs and rights of those among its citizens who do not fit the ideal paradigm.4

At the same time, it is important to keep in mind that terms such as citizen, citizenship, disability, excessive burden and discrimination are historically contingent and therefore vary in their meaning through time and place. Scholars should approach these terms in a careful and responsible way in order to prevent accusations of misunderstanding and presentism. For example, the term 'disability' is a relatively new one and to these days there is still no single and universally accepted definition of disability. Canadian legislation has adopted through time what Ena Chadha describes as

"assorted vocabulary" in referring to persons with mental or physical disabilities.5 In the case under review, we go from terms such as 'lunatic', 'insane' and 'idiot' in earlier versions of the Immigration Act to 'less offensive' terms such as 'mentally retarded' and

'handicapped' starting in the late 1960s to 'mental and physical disability ... expected to cause excessive demand' in the present legislation. Despite such awareness, however, the analysis of these terms and concepts is necessary to reach a full understanding of the way

2 Yingling 28. 3 Catherine A. Holland, The Body Politic (New York and London: Routledge, 2001) 66-68. 4 Susan Wendell, The Rejected Body (New York and London: Routledge, 1996) 41. 30

several sectors of Canadian society, namely politicians, those who had their opinions captured by the two selected newspapers in the study, and the courts, have related to people who fell outside the normative idea of the white, able-bodied citizen. From this perspective, the study not merely looks at the treatment reserved to immigrants with disabilities but also touches on the more general issue of discrimination against persons with disabilities within Canadian society, no matter whether they are prospective or current citizens of the country. In order to demonstrate this argument, the following pages investigate if, and if so why and how, the development of the capitalist system in Canada has resulted in the evaluation of individuals in terms of their utility to the maintenance of that system, hence in assessing their economic benefit to it. This trend is not exclusive of

Canadian society but it is at the core of the whole western capitalist system. As pointed out by Turner in The Body and Society, Foucault had already indicated in the early 1980s that throughout the development of capitalism in the eighteenth century, western society came to identify the body as the bearer of new variables such as utility, employability, profitability and suitability to be trained.6

One of the purposes of the study is to question the ideology behind the immigration policy in Canada from 1902 to 2002, thus trying to comprehend how it was reflected in the process of medical exclusion governing immigrants' selection to Canada. The year

1902 has been chosen as the point of departure of the investigation because it was in that year that the Canadian medical inspection service was created.7 Although the first federal

5 Ena Chadha, " 'Mentally Defective" Not Welcome: Mental Disability in Canadian Immigration Law, 1859-1927," Disability Studies Quarterly, Vol. 28 No. 1 (2008). 6 Bryan S. Turner, The Body and Society (London: Sage Publications, 1996) 161. 7 Amy Fairchild, Science at the Borders (Baltimore: The John Hopkins University Press, 2003) 146. 31

Immigration Act passed in 1869 included an exclusionary clause for paupers and disabled o people, it was only in 1902 that under pressure from the United States which was concerned about the kind of immigrants Canada received and could potentially pour into its neighbor's territory, the Canadian government amended the Immigration Act to explicitly add people suffering from dangerous and infectious diseases to the list of the prohibited classes. Such an amendment was required because, as pointed out by Mabel

Timlin, though Canada had entry standards for immigrants established in its first

Immigration Act, control mechanisms were not particularly effective in the years leading up to the new century.9 This laxity could be explained by the fact that up to the 1900s, and despite fears of foreign paupers had been present at various points in time (just remember how the financial resources of cities in Upper and Lower Canada had been

strained around the late 1840s by the arrival of destitute Irish fleeing the notorious potato

famine back home) the country was overall more concerned with attracting rather than rejecting immigrants. Indeed, in the first three decades after Confederation, a large part of emigration from Great Britain and Western Europe found the United States to be a more

attractive place where to settle.10 Even worse, census figures indicate that throughout the

same period, the country was actually losing people as emigration from Canada exceeded

immigration.11 Only after the election in 1896 of the Laurier's Liberal government,

8 Reg Whitaker, Canadian Immigration Policy since Confederation (Ottawa: Canadian Historical Association, 1991)4. 9 Mabel F. Timlin, "Canada's Immigration Policy, 1896-1910," The Canadian Journal of Economics and Political Science, Vol. 26 No. 4 (1960) 517. 10 Donald Avery, Reluctant Host: Canada's Response to Immigrant Workers1896-1994 (Toronto: McClelland and Stewart, 1995) 10. 11 Timlin 518. 32

immigration began its expansionary phase and the attention could shift to issues of selection and restrictive measures.12

Having been 'blessed' with a steady influx of immigrants well before Canada, the

United States had previously amended its immigration law in 1891 when federal officials were given full authority to inspect and exclude immigrants. In 1903, the American government went one step further and instructed the Public Health Service to classify immigrants with disease into two different classes: those with a "loathsome and dangerous" condition and those "likely to become a public charge." Both classes had an intrinsic economic significance and responded to the notions of 'industrial citizen' and the healthy and useful worker. As argued by Fairchild, the immigrants' medical exam soon became a tool for shaping the nation's laboring classes.13 It did not take long for

Canada to follow the example of the United States. The Canadian government was particularly sensitive to accusations as those of US doctor Victor Heiser who defined the

Canadian border as "another leak in the health dam."14 In 1902 a medical inspection service was created to exclude "any immigrant or other passenger who is suffering from any loathsome, dangerous or infectious disease or malady, whether such immigrant intends to settle in Canada, or intends to pass through Canada to settle in some other country."15 Replicating the US model, Canada began to employ the medical inspection as a tool for selecting the 'right' immigrants, those who could be useful to the country. It is significant that, for example, rejections on medical grounds represented over 40 per cent

12 Avery 10. 13 Fairchild 14-16. 14 Fairchild 145. 15 Fairchild 145-46. 33

of total rejections through the 1916.16 Equally important in the choice of the year 1902 as point of departure of the investigation is the fact that only in 1902 did the federal government begin to publish systematic data with respect to rejection or expulsion of immigrants with illnesses and/or disabilities. It is through these statistics that we are able to find out that in the period ranging from 1902 to 1939, individuals deported for medical causes numbered 10,840 of the total 59,734 deportees. For those same years, 5,961 persons were refused admission for medical reasons at ocean ports of entry out of a total of 22,142 rejections.17

The same concern with 'who' was entering the country dominated the Canadian government in the years to follow. Looking at the first three decades of the twentieth century, Martin Paquet points out that despite their ideological differences, Canadian parliamentarians agreed that the ideal immigrant had to bring a sensible contribution to the host country, thus representing a gain rather than a burden.18 Even after the introduction of an officially non-discriminatory immigration policy during the 1960s and up to these days, Canada has remained strictly selective in the formulation of the criteria for permanent residence and formal citizenship, thus contradicting stated principles of inclusion, equality and justice. The only notable change within this area of the immigration law has been the shift from a policy that refused immigrants deemed as a threat to the genetic profile of the nation to one that banned them if considered unemployable to one that rejects those who, under the present system of free health care,

16 Fairchild 145-46. 17 Robert Menzies, "Governing Mentalities: The Deportation of'Insane' and 'Feebleminded' Immigrants Out of British Columbia from Confederation to World War II," Canadian Journal of Law and Society, Vol. 13 No. 2(1998) 141-42. 34

are deemed likely to represent an excessive cost for the state, no matter whether they are working or not. The strictness applied by Canada is even more stunning when we consider that under the Immigration Act passed in 1990, the United States, the country which first pushed through a selective legislation, has restricted the exclusion of those with physical or mental disorders to people who may pose a threat to themselves or others, while no reference at all is made to the inability to earn a living because of disability.19 This change in the American legislation could be explained when considering that at present the United States does not provide its citizens with free medical services, therefore the state does not risk incurring in excessive costs when accepting immigrants with a disability that may require hospitalization or expensive medications. It is significant that here in Canada, aside from an initial parenthesis during which the focus was on the risk of genetic degeneration, whether we talk about un-employability or excessive demand on state resources, the main consideration when looking at the immigration of individuals with a disease or disability has remained one of economic nature.

The current study considers and investigates the peculiar situation of immigrant applicants with diseases or disabilities attempting to enter Canada. Whether or not in agreement with it, I am aware that every country has the legal right to protect itself and maintain its social and economic assets by passing laws and controlling the flow of immigration. Nonetheless, I refuse to believe that the protection of society as a whole

18 Martin Paquet, Tracer les marges de la cite (Montreal: Boreal, 2005) 140. 19 Bill Waddell, "United States Immigration" Handbook of Immigrant Health (New York: Plenum Press, 1998) 14. 35

may imply allowing processes of discrimination against particular groups of individuals.

More importantly, it is highly problematic when the state arrogates to itself the right to decide, based on its own arbitrary criteria, when and how an individual can be considered and categorized as an 'excessive burden'. Within such parameters, human beings can

(and frequently do) end up being valued exclusively in economic terms, thus reducing them to commodities rather than sentient creatures complete with reason and feelings.

This has been done for a long time with respect to people of different ethnicity and race

(and unfortunately, though not officially permitted anymore, it still happens in practice - see, for instance, such fields as employment or housing) and, under the current

Immigration and Refugee Protection Act, continues to be a reality for persons with disabilities or diseases. Article 38(l)(c) of the Act reads that,

A foreign national is inadmissible on health grounds if their health condition

(a) is likely to be a danger to public health;

(b) is likely to be a danger to public safety; or

(c) might reasonably be expected to cause excessive demand on health or social services. 20

Therefore, a person that has been assessed as constituting an excessive economic burden can be refused landed immigrant status, though the Minister of Immigration may grant her an annual permit to stay in Canada, without however having the right to social, community, and health services available to landed immigrants and citizens.

20 Immigration and Refugee Protection Act, 2001. 36

The clause concerning inadmissibility of disabled immigrants appears then arguably at odds with Article 15 of the Canadian Charter of Human Rights and Freedoms which stipulates that,

"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. "21

This provision does not refer exclusively to Canadian citizens since, in 1985, in the Singh ruling, the Supreme Court of Canada ruled that persons who are neither citizens nor permanent residents are under the protection of the Charter. Again in 1989, the Supreme

Court of Canada, in the person of Justice Mclntyre, maintained that since non-citizens are a minority group, they come within the protection of Article 15.22

After following through the major historical developments of the legislation governing immigrant inadmissibility to the country, the study concludes with an analysis of the situation in 2002, the year Angela Chesters unsuccessfully attempted to prove in court that the medical inadmissibility provision in the Immigration Act goes against the Charter and is therefore unconstitutional. At the same time, 2002 has been chosen as the end-date for the investigation because it is the year in which the new and currently in place

Immigration and Refugee Protection Act went into effect. Since then, the legislation concerning the immigration of people who might represent an excessive cost due to their disability or medical condition has not been significantly modified. Different concerns are now taking central stage within Canadian society. It remains to be seen for how long

21 Canadian Charter of Rights and Freedoms, http://www.charterofrights.ca/en/27 08 01. 22 Evelyn Kallen, Ethnicity and Human Rights in Canada (Toronto: Oxford University Press, 1995) 279. 37

the issue of persons with a disease or disability attempting to gain admission to Canada can be actually ignored and left aside. Canadian society is aging and despite medicine's progresses, it does not seem likely that the number of those who are disabled or ill will decrease in the immediate future. Canada remains one of the main countries of immigration and, sooner or later, will have to figure out a new approach to its immigrant population, one that does not merely consider them as expendable tools for economic profit. On the other hand, the voice of groups advocating for rights of people with disabilities is growing louder and louder both within and outside the country; this will also have an inevitable impact on Canadian society and will likely end up affecting all aspects of legislation. It looks like we have not yet reached the last informal chapter in the history of immigrants with disabilities in this country. As interesting as it might be to explore possible developments and their effect on current legislation, this is outside the goal of the present study. Nevertheless, the following pages will hopefully help understand what climate led to the current situation and provide tools to move forward to a better future.

By focusing on the discrimination experienced by immigrant applicants with disabilities, the study proceeds in two different though intertwined directions. It first looks at the broader discourse around people with disabilities, then moves towards the analysis of the basic philosophy underlying the history of immigration to Canada. The two issues are dealt with in the same chapter in order to highlight the fact that they are actually different facets of the same underlining conviction, namely that individuals have been and still are assessed based of their material contributions. In so doing, this study 38

also touches on issues of power and empowerment, thus looking at who, in our society, has the power to make decisions and in response to whose interests these decisions have been and are made. In the chapter "Law and Social Control, Law as Social Control," Neil

Boyd invites the reader to consider the intentions and consequences of law-making, therefore investigating "What interests are being served by the passage of law?"23 As argued by Barton in Disability and Society, the discourse around disability also entails

"an exploration of issues of power, social justice, citizenship and human rights."24

Finally, the study returns to the condition experienced by immigrant applicants with disabilities in the attempt to demonstrate that their peculiar situation, combining the difficulties and barriers met by both persons with disabilities and immigrants, raises several questions and, given the scarcity of sources available, it requires further investigation by scholars as well as governmental and non-governmental institutions.

Before moving forward with the discussion, it is worth clarifying the meaning given to the term 'disability' throughout the study. A number of disability rights groups tend to oppose the inclusion of illness within the disability category, mainly in order to avoid the additional stigma associated with illness to the condition of disabled people. As stated in the January 23, 1998 issue of The CCD Health Inspector, a publication of the Council of

Canadians with Disabilities, disability rights advocates have fought since the 1970s against the association between illness and disability which implied ignoring issues like autonomy and the right to choose in favor of a focus on rehabilitation carried out by

23 Neil Boyd, "Law and Social Control, Law as Social Control," The Social Dimensions of Law, ed. Neil Boyd (Scarborough: Prentice-Hall Canada, 1986) 18. 24 Len Barton, "Sociology and disability, some emerging issues," Disability and Society, ed. Len Barton (New York: Longman Publishing, 1996) 14. 39

medical professionals.25 Furthermore, such association obscures the fact that many individuals with disabilities can be healthy, while the opposite is also true for many sick people who are not disabled. Yet, despite the truth in these arguments, it must be acknowledged that as explained by Susan Wendell in The Rejected Body, "many people with disabilities are also ill,"26 and many people with illnesses are affected at some point in time by some form of disability. Furthermore, access to the workplace is notoriously reduced for both those with a disability and those with an illness.27 More importantly,

Article 38(l)(c) of the Canadian Immigration and Refugee Protection Act assembles together in a common category individuals with a disability and those with a disease.

Accordingly, this study is based on a broad definition of disability that also includes illness. In so doing, it highlights the fact that both conditions are loaded with implications relying on the value system dominant within society. This means that they are not merely biological phenomena but are tied to social understandings which, in turn, "have major economic, social, and psychological consequences in some people's lives."28

On the other hand, the use throughout this study of the term 'people with disabilities' does not imply that individuals with disabilities are similar in all and every aspect. A number of researchers working on issues of disability have pointed out that the category

'people with disabilities' can often be the result of a false universalization whereas a wide range of factors such as gender, age, class, ethnicity, education and occupation operate to

25 Council of Canadians with Disabilities, "Health Is a Disability Issue," The CCD Health Inspector (1998). http://www.ccdonline.ca/publications/health-inspector/0198.htm 26 Susan Wendell, The Rejected Body (New York: Routledge, 1996) 21. 27 Wendell 20. 28 Wendell 23. 40

make the experience of disability a very different one for different individuals. Also to be taken into account are differences coming out from what Oliver defines as the state's tactic of 'divide and rule' whereby, for instance, some groups of disabled such as the blind receive tax allowances while others do not.30 Despite these differences, people with disabilities in our society face common forms of social oppression. Although not everyone experiences all aspects of this oppression, it remains true that "the pattern of oppression produces overlapping patterns of experience"31 among people with disabilities. Laws such as the Immigration Act are among the diverse manifestations of this oppression and reveal much about society's understandings and attitudes towards those it labels as 'disabled'. With this in mind, it makes sense to refer to people with disabilities as a common category within the context of this investigation.

Persons with Disabilities in Canada

The first point to be looked at is if and why, since the formation of a Canadian state in

1867, Canadian society has been generally unable to articulate a discourse of integration for persons with disabilities. Historically, rejection of people with disabilities in western culture has been present even prior to the emergence of a capitalist system. Several scholars have argued that in Greek society, for example, physical and intellectual fitness was considered essential and no space was left for those with a disability. According to some scholars, the ideal of body perfection was so central to the culture of ancient Greece

29 Wendell 29-31. 30 Michael Oliver, The Politics of Disablement (Houndmills: Macmillan, 1990) 102. 31 Wendell 32. 41

that it was common to practice infanticide with the purpose of eliminating children with impairments. Although new scholarship is recently coming out to contest these interpretations by arguing that the source material dealing with infanticide of deformed children in ancient Greece is "too thin to conclude that their destruction was standard practice," 32 it still recognizes that, if not actually killed, deformed people "were mocked

33 and scapegoated." Romans as well seem to have been uncomfortable with deformity if we decide to accept as valid the narrative maintaining they used to drown disabled children into the river Tiber. And what to say of the Jewish culture that "perceived impairments as ungodly and as the consequence of wrongdoing"34? Though rejecting the practice of infanticide, Jewish society precluded individuals with disabilities from participating in religious rituals. At the core of the rejection of people with disabilities appears to have been and certainly still is the perception that impairment threatens notions of discipline and normality, thus exposing human inability to control the world.

Accordingly, it is undesirable and in need of being controlled and hidden.35

In seventeenth-century Europe, those who were identified as 'mad' or 'sick' were perceived as threats to society. In an attempt to prevent disorders resulting from mendicancy and idleness, the first institutions of confinement were created. In studying the spread of these new forms of constraint all around Europe, Foucault concludes that the main concern was not with curing the sick. He sees confinement as a response to the

32 Martha L. Rose, The Staff of Oedipus, (The University of Michigan Press, 2003) 48. 33 Rose 48. 34 Colin Barnes, "Theories of disability and the origins of the oppression of disabled people in western society," Disability and Society, ed. Len Barton (New York: Longman Publishing, 1996) 52-53. 35 John Swain, Sally French and Colin Cameron, Controversial Issues in a Disabling Society (Philadelphia: Open University Press, 2003) 23. 42

economic problems generated by "idleness" and explains that "What made it necessary was an imperative of labor. Our philanthropy prefers to recognize the signs of a benevolence towards sickness where there is only a condemnation of idleness."36

Confinement represented the solution to both unemployment and begging.37 This resulted

in the creation of hospitals that were not medical facilities but institutions established by

the aristocracy and the bourgeoisie to segregate and get rid of economically unproductive

people.38

The oppression of persons with disabilities in western society reached its apogee in the

eighteenth century with the beginnings of industrialization and the new "emphasis on

"scientific rationality" and "social progress."39 As stated by Conrad and Schneider in

Deviance and Medicalization, western societies still retain the "optimism of the

Enlightenment in the belief that in science and technology will be found the means for

achieving good and avoiding evil."40 According to the authors, this belief has led to a

gradual shift in the understanding of deviance from 'badness' to 'sickness'.41 However, it

is important to acknowledge that despite the assumption that science and medicine are

bias free, they have repeatedly been used as forms of social control. Medicine is not

objective and, as pointed out by the authors, "The very nature of medical practice

involves value judgment. To call something a disease is to deem it undesirable. Medicine

36 Michael Foucault, Madness and Civilization (New York: Vintage Book, 1965) 46. 37 Foucault 47. 38 Rosemarie G. Thomson, Extraordinary Bodies (New York: Columbia University Press, 1997) 39. 39 Foucault 56. 40 Peter Conrad and Joseph W.Schneider, Deviance and Medicalization (St. Louis: The C.V. Mosby Company, 1980) V. 41 Conrad and Schneider XI. 43

is influenced by the moral order of society."42 The medicalization of deviance has resulted in the individualization of social problems, thereby presenting the latter as the product of the individual rather than the social system. As a consequence, we continue in the attempt to treat and, when it is not possible, exclude the individual instead of concentrating to change society.43 More to the point, as remarked by Wendell in The

Rejected Body, western society prefers to forget people with disabilities in the effort of avoiding the reminder that our overly celebrated science and medicine have failed so far to deliver what they promise, that is control over nature and the human body.44

Within a western tradition celebrating bodily perfection and utilitarianism, it is no surprise that disability has been trapped in a rhetorical discourse of cost and managerialism, with persons with disabilities perceived as posing an economic problem to the whole community. While the able-bodied citizen was perfectly suited to work for the well-being of the country, the disabled person was considered both an 'unproductive' subject and a 'burden' to the public purse. After all, the term 'handicap' comes from an old English word that meant cap-in-hand and associated people with disabilities with beggars.45 The situation has been exacerbated by the rise of competitive capitalism, a distinctive mode of production based on an industrial labour market that excluded

'incapable' workers. In The Work Ethic in Industrial America, 1850-1920, Rodgers points out that by the end of the nineteenth century, industrialization had brought to the

42 Conrad and Schneider 249. 43 Conrad and Schneider 250. 44 Wendell 63. 45 Willie V. Bryan, Multicultural Aspects of Disabilities (Springfield: Charles C. Thomas Publisher, 1999) 7. 44

fore a work ethic that translated in "horror of chronic dependency."46 Those who were not able to work were considered not useful, but immoral subjects. The basic assumption was that economic autonomy was the result of hard work and virtue whereas poverty was the inevitable outcome of indolence and moral inferiority.47 In the mid-1800, Samuel

Gridley Howe, an American teacher to the 'feeble-minded', expressed his belief that "this class of persons ... are dead weights upon material prosperity of the State."48 Between

1890 and 1920, American reformers began to identify 'crippledom' as a problem with both economic and social outcomes. Being unproductive, 'cripples' had to be kept out of the workplace and therefore were excluded from one of "the most fundamental right and responsibility of citizenship."49 They were no longer individuals but "parasites feeding off the labor of others."50

The English and American response to the non-productivity of people with disabilities, especially those with mental disabilities, was in the creation of institutions to segregate insane individuals. This model was soon adopted by Upper Canada (and here the focus is on a specific province because the analysis in some of the following chapters will be largely centred on the situation in Ontario) where the first provisional lunatic asylum was established in Toronto in 1841, only to be replaced by a permanent Toronto

46 Daniel T. Rodgers, The Work Ethic in Industrial America, 1850-1920 (Chicago: The University of Chicago Press, 1974) 226. 47 Thomson 47. 48 Samuel Gridley Howe, in James W. Trent Jr., Inventing the Feeble Mind (Los Angeles: University of California Press, 1994) 24. 49 Brad Byrom, "A Pupil and a Patient. Hospital-Schools in Progressive America," The New Disability History, eds. Paul K. Longmore and Lauri Umansky (New York: New York University Press, 2001) 133- 35. 50 Byrom 135. 45

Provincial Asylum in 1850.51 In their analysis of the development of Ontario's mental health control system, Smandych and Verdun-Jones consider it as part of a larger process of social control in the province. Although patterns of asylum development had their peculiarities in the Canadian context, the authors believe that "the movement towards the institutionalization of specific problem populations was not unique to Ontario society, and indeed that developments in Ontario were significantly affected by both English and

* 52

American experiences." They also point out that the creation of institutions for the insane was motivated by "a concern on the part of reformers for "effective" and

"economical" means for dealing with the deviant and dependent."53 Rejecting the argument brought forward by proponents of what they define as "conventional liberal perspective," Smandych and Verdun-Jones maintain that the rise of the asylum in the province responded to concerns of effectiveness and economy rather than benevolence towards persons with mental disabilities.54 This belief seems to be shared by Moran who points out that patients in the asylum were put to work not simply because work was perceived as therapeutic but also because patient labour was expected to offset some of the costs of the institution's maintenance.55

In the following decade, the establishment of mental institutions all across Ontario advanced steadily in the attempt to segregate those deemed to be non-productive subjects,

51 James E. Moran, Committed to the State Asylum (Montreal and Kingston: McGill-Queen's University Press, 2000) 49, 62. Russell C. Smandych and Simon N. Verdun-Jones, "The Emergence of the Asylum in 19th Century Ontario: A Study in the History of Segregative Control," The Social Dimensions of Law, ed. Neil Boyd (Scarborough: Prentice-Hall Canada, 1986) 171. 53 Smandych and Verdun-Jones 171. 54 Smandych and Verdun-Jones 177-78. 55 Moran 93. 46

thus freeing society from the burden of directly caring for them. Throughout the 1850s, several 'branch asylums' were put in place at the University of Toronto (1856), Fort

Maiden in Amherstburg (1859), and Orillia (1861), just to name a few.56 As the number of asylums in the province grew, so did the practice of patient labour: while in the late

1870s, approximately one-third of the inmate population was employed, this figure had risen to 75 percent by 1900. Despite claims by asylum's doctors and inspectors that patients' work was not meant to exploit but rather to help patients through "a benign form of moral therapy,"57 annual reports clearly indicate that patients' unpaid labour contributed to considerably reduce expenditures for the province.58 Under the excuse that patients' work was simply a moral treatment directed to help them recover their sanity through the prevention of 'idleness', asylum officials exploited people for internal economic necessity. It is curious that while institutionalized because considered unproductive subjects, records indicate that these same individuals were successfully put to work in asylums all over the province (though the practice was neither exclusive to

Ontario nor to Canada). As pointed out by Reaume, "evidence of patients' unpaid labour that contributed significantly to keeping provincial asylums operating clearly undermines broad statements about their supposed unreliability."59 Exploitation is even more apparent when considering that during the same time, penitentiary convicts were instead

56 Moran 68. 57 Geoffrey Reaume, "Patients at Work: Insane Asylum Inmates' Labour in Ontario, 1841-1900," Mental Health and Canadian Society: Historical Perspectives, eds. James E. Moran and David Wright (Montreal: McGill-Queen's University Press, 2006) 71. 58 Reaume 77, 83-84. 59 Reaume 77. 47

compensated for their work.60 Un-productivity of mentally disabled persons was a cover to take advantage of the free labour performed by patients who were not able to question their unpaid status and reclaim the entitlement of a wage for their work.

Contemporary capitalism reveals a legacy of discriminatory industrial labour markets by continuing to valorize and require non-disabled labour power over all other forms. The attempt to maximize the body as an economic force has led through time to the historical devalorisation of the labour power of people with disabilities. As stated by Michael

Oliver in Understanding Disability, the disabled person has been presented as an economic problem because of changes in the nature of work and the needs of the labour market within capitalism. However, the assumption that all people with disabilities are unable to work and be productive elements of society is a flawed one; instead, many of them face unemployment because of the way in which the labour market operates. This is demonstrated by the fact that during World War Two, several individuals with disabilities were employed in all sectors in response to the serious labour shortage created by the recruitment of able-bodied men on the battlefield.61 The point is also taken up and expanded by Trent in Inventing the Feeble Mind. Looking at the broader picture of a society characterized through time by economic vulnerability, the author argues that

'feeble minds' (but the same logic has often been applied to other disabled people as well) have been constantly played as pawns and exploited to the advantages of the capitalist system. In times of economic prosperity, they have been sterilized and sent back into a community in need of their work while in periods of crisis and

60 Reaume 87. 48

unemployment, they have been portrayed as unproductive burden and incarcerated in institutions, at least until the cost of the latter became excessive and, from the late 1960s, the focus shifted from institutions to communities. However, the real issue is not one of location but productivity: in a society that defines worth in term of production, both settings can be and have been equally exploitative.

In Oliver's opinion, as a phenomenon related to the spread of capitalism, western societies are one of the main theatres of disability oppression. The capitalist system celebrates productivity and rests on the creation of an 'ideal' worker who is healthy, industrious and exploitable. All those who do not fit the ideal are automatically excluded as wasteful and superfluous. The economic and cultural devalorisation of people with disabilities in the capitalist world manifests itself in a pattern of both physical

63 inaccessibility and socio-spatial exclusion. In fact, though it might be an overstatement to argue that the economy is the only determinant of politics, still it is undeniable that

"the politics of social policy is circumscribed by economic considerations."64

Accordingly, discrimination towards people with disabilities is not simply a matter of

"prejudiced attitudes of individuals" but it is ingrained "in the institutionalized practices of society."65 This

is exemplified by society's unwillingness to accommodate individuals with disabilities and, as a consequence, by a number of physical barriers that for example still prevent them from freely moving within the space of our cities. The point is made

6clea1 Michaer by l RoOliverb Imri, Understandinge in Disability Disability and (Nethew City: York :International St. Martin's Press Perspectives., 1996) 91. Looking at the 62 James W. Trent, Inventing the Feeble Mind (Los Angeles: University of California Press, 1994) 275-77. 63 Oliver (1996) 127. 64 Michael Oliver, The Politics of Disablement (Houndmills: Macmillan, 1990) 97. 49

situation in the United Kingdom, Imrie quotes David Curry, then Minister for Local

Government in the U.K., who in 1993 stated that, "whilst committed to creating an environment more accessible to people with disabilities we must ensure that any additional costs do not bear unreasonably heavy on those who provide and use buildings or on the community which ultimately pays the price for good and service."66 Imrie comments by noticing that it is astonishing how the statement excludes people with disabilities from the 'community' as though they are external to the social order. It is this assumed dichotomy between 'us' and 'them' that perpetuates the oppression of disabled people within society.

In "Disability and Dependency: A Creation of Industrial Societies," Oliver argues that the widespread belief that people with disabilities are economically and socially unproductive is a flawed one. Despite the high unemployment rates and the common perception, the majority of those with a disability do work.67 Oliver's argument is shared by Rachel Hurst. In her paper "Conclusion: enabling or disabling globalization?," Hurst states that, "The global belief is that disabled people are unemployable, unproductive and extremely costly."68 The author disproves this conviction, thus showing that the lack of participation of people with disabilities is actually due to barriers created by society itself.

Once these barriers get removed, persons with disabilities can participate and contribute to society. In addition, it is worth to keep in mind that disabled people's contribution is

65 Oliver (1996) 76. 66 David Curry, in Rob Imrie, Disability and the City. International Perspectives (London: Paul Chapman Publishing, 1996) 67. 67 Michael Oliver, "Disability and Dependency: A Creation of Industrial Societies," Disability and Dependency, ed. Len Barton (London: The Falmer Press, 1989) 11. 50

not limited to their role as producers, but it also involves consumption. Oliver remarks that, "The numbers of firms now producing aids and equipment for disabled people . . . are testament to the important and productive role that disabled people play in the economy."69

Devalorization of persons with disabilities constitutes a threat to principles of democracy and equality for citizens with disabilities, denying them access to full citizenship, which is the opportunity to participate into all aspects of social, political, economic and cultural life. In The State in Capitalist Society, Ralph Miliband notes that despite the common assumption that in the context of western society, the state is the guarantor of democracy and acts without bias towards any specific group, this is simply a misconception. In fact, in capitalist societies, the state's goal is exclusively the perpetuation of the capitalist system and the protection "of the economic interests which are dominant in them."70 Those who do not fit in are systematically overlooked. As stated by Brendan Gleeson in Geographies of Disability, people with disabilities all around the world endure social oppression and spatial marginalization. In turn, spatial exclusion and the existence of oppressive environments result from a very specific political project which consists in the use of power to determine who benefits and who loses in the creation of different places. Space production is essentially political and rests on the distinction between those who have power and rights and those who lack them.71

According to Gleeson, the creation of enabling spaces is strictly connected to the

68 Rachel Hurst, "Conclusion: enabling or disabling globalization?," Controversial Issues in a Disabling Society, eds. Swain, French and Cameron (Buckingam: Open University Press, 2003) 166. 69 Oliver (1989) 11. 70 Ralph Miliband, The State in Capitalist Society (London: Quartet Books, 1973) 238. 51

recognition of citizenship rights for people with disabilities. This recognition will be achieved only through political change once societies will restore to disabled people the material needs, cultural respect and political voice that many are at present denied.

Gleeson argues that nothing less than enabling justice, combining both material satisfaction and socio-cultural participation, can free people with disabilities from the oppression and marginalization they have historically been subjected to.72 In Disability:

Whose Handicap?, Ann Shearer points out how persons with disabilities are considered too often as "objects to be pushed about at the convenience of administrators and treasurers"73 rather than as individuals with rights. Any discussion around rights for disabled people, then, brings back on stage the distinction between formal and substantive citizenship, showing that the former is not a sufficient condition for the latter.

Although in theory full access to rights depends on membership in the state (formal citizenship), the case of citizens with disabilities proves that in practice the opportunity for the individual to really be able to practice and enjoy these rights (substantive citizenship) is often independent from its formal status.

The socio-spatial isolation and oppression of persons with disabling differences has been and still is evident in Canada at the national, provincial and municipal levels. In the article "Disabled Women's Activism" published in the book Mind and Body Spaces edited by Butler and Parr, Vera Chouinard argues that recent changes in the state policy towards the disabled both at the federal level and in Ontario have worked to worsen

71 Brendan Gleeson, Geographies of Disability (London: Routledge, 1999) 2-4. 72 Gleeson 143-52. 73 Ann Shearer, Disability: Whose Handicap? (Oxford: Basil Blackwell Publisher, 1981) 190. 52

conditions for people with disabilities. Since 1996, the Liberal government receded from a national strategy for the full integration of disabled individuals by reducing its support and decreasing the number of Canadians with disabilities who can qualify for the

Disability Tax Credit by making the credit conditional on income from employment. The

Federal retreat, then, means that Ottawa is neither prepared to pressure the provinces to address disability issues nor to protect the disabled from provincial government actions such as reduction in funding for community care programs. Chouinard points out that in

Canada and more generally within capitalist societies, the term 'dis-abled' has come to identify those who are "negatively different from the able-bodied ideal: less able to take part in normal activities and, more importantly, to succeed in socially valued ways."74

More recently, things seem not to have improved substantially under the Conservative government of Stephen Harper, particularly under the situation of financial hardship and unemployment which has followed the 2009 recession. For instance, organizations such as the Council of Canadians with Disabilities (CCD) are still pressuring the government to expand eligibility criteria and coverage of Employment Insurance (EI) so to make it more accessible to women with disabilities.75 In fact, after more than thirty years of advocacy on behalf of better conditions for persons with disabilities within Canadian society, it still remains that, as mentioned in the article released by the CCD, "Canadians with disabilities are almost twice as likely as nondisabled Canadians to live in poverty."76

74 Vera Chouinard, "Body Politics: Disabled Women's Activism in Canada and Beyond," Mind and Body Spaces, eds. Ruth Butler and Hester Parr (London: Routledge, 1999) 269, 282-85. 7 Council of Canadians with Disabilities, "Make EI Accessible and Inclusive to Canadian Women with Disabilities," http://www.ccdonline.ca/en/socialpolicv/employment/EI-pressrelease-31March2009 76 Council of Canadians with Disabilities. 53

Focusing on the provincial sphere, this study concentrates its attention on the province of Ontario. The choice has been motivated by the fact that this is the province that has historically received the largest immigrant population, though most of this influx has been directed to Toronto.77 Looking at the Ontario government, its policy is revealing of the lack of interest manifested by the province towards disability issues. In 1995, Mike

Harris promised that, if elected, his Conservative government would have improved the

condition of disabled people, but he appeared to have forgotten his pledge once in power.

Pursuing reductions in social spending, the Conservatives implemented a wide range of

funding, policy and program changes (cuts to paratransit services, cuts in funding for home care services, attempts to decentralize responsibilities for social programmes to

municipalities that lack the fund to support them, and so on) which seriously threatened

the well-being of the disabled all around the province.78 Even in the case of the Ontarians

with Disabilities Act, which was finally passed in 2001, it is interesting to note that the

Harris government had actually made a written promise during the 1995 election to pass

the act in its first term, only to stall and procrastinate the process for as long as possible

in the following years.79 Things have not changed significantly under the Liberal

government of Dalton McGuinty aside from the passage of a new and more effective

Accessibility for Ontarians with Disabilities Act in 2005. In fact, despite its promises to

care for people with disabilities in Ontario, the current liberal government has, for

example, drastically cut "ODSP [Ontario Disability Support Program] allowances for

77 Larry Bourne and Damaris Rose, "The changing face of Canada: the uneven geographies of population and social change," Tha Canadian Geographer Vol. 45 No. 1 (2001) 110. 78 Chouinard 283. 79 http: //www, odacommittee. net/factsheet. html 54

medically necessary supplements and special food."80 On the other hand, while in May

2007 the provincial budget set aside $200 million over 4 years to help "the developmental services sector as well as $7 million in new capital funding for community agencies,"81 it is worth noticing that the move appeared to have originated only because a majority of sector's union contracts were up and an infusion of money would help at the bargaining table. By mid-May 2007, contracts had expired for 34 OPSEU (Ontario Public Service

Employees Union) represented agencies and 17 of them had already received a "strong strike mandate with the other 17 units preparing for votes".82 According to Sarah

Jordison, Campaigns Officer for the Ontario Public Service Employees Union, the government intended to give out in the first year only $60 million, with the rest of the promised $200 million following in the remaining three years. This amount was not sufficient to deal with the wage issues for all of the bargaining units and "several strikes happened, more were about to join them and more money was found to address the wage funding problem to achieve settlements."83

The state, then, both at the federal level and in Ontario, is still increasingly a terrain of struggle for persons with disabilities who do not receive either enough monetary or concrete political support by governments. It does not help that, as pointed out by Lyn

Jongbloed in a paper published in 2003 in the Journal of Disability Policy Studies, the demands of people with disabilities for increased rights "come at a time when federal and provincial governments are under pressure to reduce fiscal deficits and commitments to

80 hUp://ontariondpxom/mcguinty-contiriues-fundirig-cuts-disabled-mari-aLs. 81 http://ww.communitvlivingontario.ca/2007%20Provincial%20Budget%20Release%202007.pdf. 82 http://www.opseu.org/news/Press2007/mayl62007.htm. 83 Sarah Jordison, OPSEU campaigns officer, email to the author, 19 October 2007. 55

welfare-state social policies are decreasing."84 It is also worth noticing that, historically, the different levels of government have tended to blame each other for the lack of action rather than assume responsibility. Therefore, as argued by Vera Chouinard, at present there seems to be still no 'space' in Canadian society for people with disabilities, and

women are often paying a higher price than men if we consider that statistically they are

less likely than disabled men to find employment. Unfortunately, in what Chouinard

defines as "an extremely ableist regulatory regime," Canada is increasingly marginalizing

people with disabilities, restricting their opportunities for enjoying full citizenship

(understood here as participation in all aspects of Canadian social life) and disciplining

or their demands upon state resources. At the same time, while our society has a work

culture which grants social status on the basis of people's ability to work, the definition

of work we have been accustomed to is very limited. For instance, it fails to acknowledge

that persons with disabilities are productive subjects, thus creating barriers to their foil

contribution. As stated by one of the women interviewed by Mary Grimley Mason in her

book Working Against Odds, "Work does not have to mean finding a job that fits into an

already defined system which might have no room for a person who is innovative and

whose needs and abilities are not standard. Work means having a productive role to play

in the world."86

Grimley Mason's argument invalidates Stone's claim that society can be easily

divided into two different categories of people, those able to work and those requiring

84 Lyn Jongbloed, "Disability Policy in Canada: An Overview," Journal of Disability Policy Studies No. 13 (2003) 208. 85 Chouinard 285, 289. 86 Mary Grimley Mason, Working Against Odds (Boston: Northeastern University Press, 2004) 149. 56

support because unable to provide to their own needs. According to Stone, the welfare state was created with the goal of helping those individuals who were "incapable of participating in the wage-labor system,"87among them children, old people and disabled.

Each of these subgroups is comprised of individuals who are inherently prevented from working and being self-sufficient, thus requiring an exemption from participation in the labour system. The problem with disabled people is that the state has difficulty in identifying those who are really unable to work and those who instead just pretend to be disabled, hoping they will not be expected or forced to work with a disability.88 It appears that the state has found a viable solution to this problem by cutting the financial support it gives to people with disabilities in order to make disability undesirable. However, Stone fails to acknowledge that the situation of persons with disabilities is a peculiar one since most of the time their lack of participation in the labor force is not voluntarily but the result of barriers created by society rather than disability itself. Often individuals with disabilities are prevented from working by the unwillingness of employers to accommodate an individual's special needs.

Furthermore, in The Rejected Body, Susan Wendell reminds us that such arguments fail to consider that government support, no matter how generous, does not make up for the disadvantages associated with having a disability, the social burden of stigma being one of the harshest.89 The majority of those currently benefiting from any government support would gladly give it up in return for full integration into society. Wendell

87 Deborah A. Stone, The Disabled State (Philadelphia: Temple University Press, 1984) 21. 88 Stone 22. 89 Wendell 49. 57

maintains that social factors such as absence of opportunities and services as well as blatant discrimination are among the most frequent causes of disabled people's inability to work.90 In Canada as elsewhere in the western world, too many persons with disabilities are forced to rely on state assistance because of the obstacles and discrimination society allows towards them. Though Canada prides itself to be on the avant-garde on issues of legal rights for its disabled citizens, we cannot avoid noticing that law and living experience are too often at odds. Outside the justice system, a whole range of socio-spatial practices of exclusion strongly affect and limit disabled Canadians' life, thus relegating them to the position of 'shadow' citizens whose rights are fundamentally challenged. From this point of view, it makes sense to assert that people with disabilities in Canada surely have a legal space available to them, though they still lack a real and concrete one.

On the other hand, if Chouinard's argument that society is trying its best to make people with disabilities into productive subjects91 is correct, we need to question the motives behind the 'normalization' process pursued by the Canadian state since the

1970s. Is the state emphasizing integration over exclusion simply because of reasons of convenience? Is the attempt to have the disabled live as independently as possible just responding to the need for reducing welfare dependency? In the case of people with mental disabilities, while Carter Park and Radford conclude that the end of the mental asylum during the 1970s represented a victory against the ideology of total exclusion, it is necessary to investigate the reasons behind such move. The authors maintain that

90 Wendell 13. 58

institutionalization in the early twentieth century responded to a logic of "cost efficiency" since those mentally impaired "posed a problem that was largely economic. They were

'unproductive' as a class, a disturbance to home conditions, and a burden to the public

Q7 purse." This perspective seems to be supported by Wolfensberger who, writing on the

American system in The Origin and Nature of Our Institutional Models, argues that in the late nineteenth century the asylum was meant to keep the 'deviants' away from society, thus diminishing the burden they represented to the taxpayer. According to

Wolfensberger, society perceived "the retarded as subhuman."93 But, if the initial solution had been to put them in mental asylums, by the late 1960s the cost of maintaining such institutions had become a burden in itself. Deinstitutionalization with the goal of transforming disabled people into labourers able to carry on unskilled and much needed jobs in what was now a growing industrial economy increasingly appeared the solution to all problems. Is that a real victory? In part it is, yet it still leaves us with several unanswered and troubling questions with respect to the motives behind the change.

Abberley emphasizes that the primary concern of the capitalist system has been and still remains productivity. From this perspective, the problem represented by people with disabilities "is why these people aren't productive, how to return them to productivity, and, if this is not seen as economically viable, how to handle their non-productivity in a manner which causes as little disruption as possible to the over-riding imperatives of

91 Chouinard 289. 92 Deborah Carter Park and John Radford, "Rhetoric and Place in the 'Mental Deficiency' Asylum," Mind and Body Spaces, eds. Ruth Butler and Hester Parr (London: Routledge, 1999) 79. 93 Wolf Wolfensberger, The Origin and Nature of our Institutional Models (New York: Human Policy Press, 1975) 37. 59

capital accumulation."94 Within this line of thought, it is not surprising that since 1974

West Germany (though the law has remained unchanged with German unification) has, for instance, defined disability by assessing "the reduction of one's capacity to work."95

In this context, work is not viewed as a fulfilling activity for the individual but simply as a means to achieve profit.

A society which assesses people on the basis of their productivity is at risk of losing sight of the true meaning of 'humanity'. Moreover, there is the serious risk of focusing on present needs while forgetting, and therefore repeating, past mistakes. As pointed out by

Jenny Morris in Pride Against Prejudice, we should never overlook that just few decades ago Nazis killed persons with disabilities in order "to relieve society of the burden of

'useless lives'."96 Despite our belief that Nazism was inherently different from everything we stand for, reality points to a different pattern. As remarked by Robert Proctor in

Racial Hygiene, scholars writing for the British Westminster Review at the end of the nineteenth century were convinced that only through elimination of the insane, society could be relieved of the burden they represented. During the following century, euthanasia was often seen as the ideal solution: while some believed it constituted a guarantee of people's right to die without suffering or the use of extraordinary measures, others perceived it as a way to relieve society of the financial burden of caring for lives

94 Paul Abberley, "Disabled People, Normality and Social Work," Disability and Dependency, ed. Len Barton (London: The Falmer Press, 1989) 60. 95 Elizabeth C. Hamilton, "From Social Welfare to Civil Rights. The Representation of Disability in Twentieth-Century German Literature," The Body and Physical Difference, eds. David T. Mitchell and Sharon L. Snyder (Michigan: The University of Michigan Press, 1997) 233. 96 Jenny Morris, Pride Against Prejudice (London: The Women's Press, 1991) 45. 60

with no use to the community as a whole.97 In those same years, Charles Eliot Norton, professor and former president of Harvard University, openly "advocated for "the

08 painless destruction" of insane and deficient minds." After World War One, racial

hygienists promoted euthanasia as a response to the fact that "the costs of "maintaining

defectives" had become prohibitive during the war."99 In 1935, Nazi medical philosopher

Fritz Bartels argued that society had to get rid of defectives since "The primary task of

the physician is to discover for whom health care at government expense will be worth

the cost."100 Such an approach was widely shared across the western world. In America, a

Gallup poll conducted in 1937 indicated that 45% of the population was in favor of

eliminating 'defective infants'.101 Throughout the 1940s, several American scientists and

academics strongly maintained that euthanasia was going to help reducing medical

costs.102 It is not inconsequential that at Nuremberg the Allied prosecutors carefully

avoided dealing with Nazi extermination of people with disabilities. As explained by

Chief US counsel Robert H. Jackson, those disabled people put to death "were a

substantial burden to society, and life was probably of little comfort to them."103

In the article "Elizabeth Bouvia, Assisted Suicide, and Social Prejudice," Longmore

points out that a similar attitude continues to operate today in many of the discussions

that look at euthanasia and assisted suicide as a way to relieve people with disabilities "of

97 Robert Proctor, Racial Hygiene (Cambridge: Harvard University Press, 1988) 177-78. 98 Trent 134. 99 Proctor 178. 100 Fritz Bartels, in Procton 185. 101 Morris 46. 102 Proctor 180. 103 Paul K. Longmore, "Elizabeth Bouvia, Assisted Suicide, and Social Prejudice," Why I Burned My Book and Other Essays on Disability (Philadelphia: Temple University Press, 2003) 153. 61

their burdensome lives."104 Issues of abortion of disabled fetuses and euthanasia are still not receiving enough attention within our society. Though problematic and filled with ethical implications, we should not refuse acknowledging and facing these essential matters. A society which avoids engaging with these issues is simply hiding itself and is doomed to ignorance and failure. In the third canto of the Inferno in La Divina

Commedia, Dante refers to those who always refused engagement as "coloro che visser sanza 'nfamia e sanza lodo"105 (those who lived without infamy and without praise) and gives them the harshest punishment. As painful as it might be, human beings have a responsibility to take a stand according to their beliefs and their conscience.

Even in cases when people reject elimination as a possible solution, Morris contends that we have simply replaced physical death with social death. When society refuses to

acknowledge the positive contribution of people with disabilities, it condemns them to an

inevitable social death which manifests itself in the "lack [of] any actual or potential role that confers a positive social status in the wider society."106 On the other hand, people with disabilities are not the only ones to suffer the effects of their exclusion. As stated by

Browne, Connors and Stern in With the Power of each Breath, a society declining the

contribution of disabled people self-inflicts on itself "the loss of our [disabled people] participation, resourcefulness and creativity."107 Persons with disabilities contribute to a

richer and livelier society that values and accommodates differences. In her work

Disability, Self, and Society, Titchkosky maintains that people with disabilities offer

104 Longmore 153. 105 Dante Alighieri, La Divina Commedia, Inferno, 3.36. 106 Jenny Morris, Pride Against Prejudice (London: The Women's Press, 1991) 132. 62

society a new perspective to look at the world around. They "embody alternative ways of being-in-the-world and act as living depictions of the possibility that things could be otherwise."108 They also remind us that in a world dominated by the myth of independence and individualism, the reality indicates that "As a species, we are emphatically interdependent. Disabled people cannot be independent, not because we are pitiable or helpless, but because we are human."109 In the introduction of Why I Burned

My Book and Other Essays on Disability, Paul Longmore quotes scholar Michael Berube urging academics in the liberal arts to include disability in their work by reminding them that, "The cultural representation of people with disabilities affects our understanding of what it means to be human; in more practical terms, it affects public policy, the allocation of social resources, and the meaning of'civil rights'."110 The way people with disabilities are portrayed and treated is not just a concern for the disabled community but for every one of us. Society as a whole has a responsibility to examine its current limitations and find a solution that accommodates both its 'able' and 'dis-abled' members.

Immigration to Canada

Switching the focus of the analysis to a new though interrelated direction, the study investigates the ideology behind Canadian immigration policy, exploring how it has historically been affected by a discriminatory approach towards people other than the

107 Susan, E. Browne, Debra Connors and Nanci Stern, With the Power of each Breath (Pittsburg: Cleis Press, 1985) 14. 108 Tanya Titchkosky, Disability, Self, and Society (Toronto: University of Toronto Press, 2003) 237. 109 Debra Connors, "Disability, Sexism And the Social Order," With the Power of each Breath, eds. Susan E. Browne, Debra Connors and Nanci Stern (Pittsburg: Cleis Press, 1985) 97. 63

ideal white, male, skilled and able immigrant. This section is closely tied to the previous one as both indicate how the treatment reserved to disabled Canadians as well as potential immigrants has been conditioned by the underlying dominant assumption that human beings have a value only insofar as they are 'useful' and 'profitable'. Should this not be the case, they become burdens to society. Despite differences in the outcome (Canadians cannot be sent away while immigrants can be prevented from entering or, once in, deported), both groups are looked at under the same lens. In the paper "Immigration

Controls as Social Policy: The Case of Canadian Medical Inspection 1900-1920," Alan

Sears explains that immigration control "has been one of the major social policy instruments employed by capitalist states."111 According to Sears, capitalist states have used both immigration control and social welfare programs in order to "regulate the size and character of national populations."112 In particular, the two have been an important means to regulate the social reproduction of the working class and prevent 'race degeneration'.

The approach held by Canadian institutions and those responsible for an immigration policy for the country represents an invaluable tool to examine Canadian values with respect to issues of ability/dis-ability and citizenship. As argued by Menzies, since

Confederation, "(t)he quintessential Canadian citizen was white, male, productive, responsible and compliant."113 The regulation of minds and bodies was therefore of vital

110 Paul K. Longmore, Why I Burned My Book and Other Essays on Disability (Philadelphia: Temple University Press, 2003) 6. 111 Alan Sears, "Immigration Controls as Social Policy: The Case of Canadian Medical Inspection 1900- 1920," Studies in Political Economy 33, Autumn 1990: 91. 112 Sears 91. 113 Menzies 140. 64

importance for the well-being of the country. In concrete terms, this meant that the authorities took on themselves the task of disciplining their citizens while rejecting at ports of entry or deporting those who did not meet the required standards.114

Two recurrent trends can be found in Canadian immigration law. The first one encourages immigration as essential for the present and future prosperity of the country, while the other discourages entrance of particular groups, those deemed unproductive or unfit to come. Soon after the new Dominion came into being, a well defined and durable immigration framework was established. In Canadian Immigration Policy Since

Confederation, Whitaker remarks that the first federal Immigration Act passed in 1869,

"gave the federal government authority to deny entry to paupers and the mentally and physically disabled."115 In particular, the act distinguished between two different types of mentally infirm persons, 'lunatics' and 'idiotics': while the former identified those

"considered to be of unsound mind, mentally ill, or insane," the latter "referred to individuals with cognitive impairment, low intelligence, or developmental delay."116 Sir

John A. Macdonald was aware that the first step to secure the future of the union consisted in bringing the West into Confederation, and this could be effectively achieved only through promotion of large-scale immigration of 'ideal' white, Anglo-Saxon and healthy individuals willing to work and build a new home and a new country for themselves and their families. In the effort to create a nation out of what had for a long time just been a colony, immigration policy was deemed essential: in order to become an

114 Menzies 140. 115 Whitaker 4. 1,6 Chadha. 65

independent and successful country, Canada needed economic growth and, therefore, a large population who could be employed as labour and could increase consumption.117 At the same time, as remarked by Martin Paquet in Tracer les marges de la cite, under the influence of the hygienist movement at the end of the nineteenth century, the new federal government began pursuing the ideal of a national community that was genetically sane and strong, therefore excluding all those deemed to bring the threat of degeneracy.118

The same concepts of strength, productivity and sanity resonate again and again throughout the development of Canada, sometimes with an emphasis on the requirement of 'good muscles' and ability to work, sometimes stressing the ethnic and racial characteristics of the new immigrant, those which could determine his capacity to integrate and be assimilated in mainstream society. As shown by Patricia Wood in her article "Defining 'Canadian': Anti-Americanism and Identity in Sir John A. Macdonald's

Nationalism," the patriotic rhetoric of the general election of 1891 was for instance the stage on which to perpetuate the image of ideal Canadian citizens as men who were

"strong, loyal, white, heterosexual, providers and protectors."119 Within this line of thought, at the beginning of the twentieth century, Clifford Sifton, Minister of Interior in the Laurier government, was convinced that only massive immigration of strong farmers could assure Canadian prosperity.120 Responding to mainstream anxiety for the arrival of

'foreigners', Sifton's successor, Frank Oliver, preferred to highlight the necessity for

117 Ninette Kelley and Michael Trebilcock, The Making of the Mosaic (Toronto: University of Toronto Press, 1998) 13. 118 Paquet 152. 119 Patricia K. Wood, "Defining 'Canadian': Anti-Americanism and Identity in Sir John Macdonald's Nationalism," Journal of Canadian Studies, 36:2, Summer 2001: 63. 66

British, West Europeans and North American influxes, in order to preserve the 'original' character of the population.121 However, no matter what aspect was stressed, the main point remained the quest for immigrants that could be 'useful' in achieving Canada's prosperity, especially in the economic field. As pointed out by Paquet, 'utility', in particular economic utility, has traditionally been one of the main criteria of inclusion/exclusion adopted by the Canadian state.122

Given these premises, it comes as a natural consequence that the Immigration Act was amended in 1902 with a new provision for the rejection of those "suffering from any loathsome, dangerous or infectious disease or malady."123 According to Ena Chadha, the amendment was of relevance because it constituted the "first explicit health-related prohibition outright barring certain classes of persons from entering into Canada."124 Few years later, a new revised Immigration Act was passed with the intention of further restricting the admission criteria. The Act of 1906 defined a broad spectrum of undesirable immigrants who were denied entry into the country on the basis of their inability to fully integrate and cooperate to the well being of the host society.125 Among the new categories of inadmissible immigrants were those who were "epileptic, . . . dumb, ... or suffering from any disease or injury."126 In this case, the addition of the terms 'epileptic' and 'dumb' was meant to keep the legislation up to date with "the

120 Harold Troper, History of Immigration since the Second World War (Toronto: Joint Centre of Excellence for Research on Immigration and Settlement, 2000) 7. 121 Whitaker 8. 122 Paquet 142-43. 123 An Act to Amend the Immigration Act, R.S.C. 65,2EVII, C.14,S.24. 124 Chadha. 125 Whitaker 11. 126 Immigration Act, 1906. 67

newest forms of mental disorder diagnoses available to the mental and psychiatric

127 communities." In fact, the new vocabulary introduced in reference to mental conditions was the outcome of developments registered in the booming psychiatric and eugenic science. Another inadmissible class in the new act was that of "feebleminded', a term used at the time to indicate not only those suffering from mental retardation but also persons affected by poverty, alcoholism, and juvenile delinquency. The list would be further expanded four years later when, in the new Immigration Act passed on May 4,

1910, the category of 'imbeciles' made its appearance for the first time as the result of a new scientific term introduced to identify people with an I.Q. (the latter had just been invented in 1904 by psychologist Alfred Binet) lower than average. The 1910 Act is also relevant because while previous legislation had allowed physical and mentally disabled persons to enter if accompanied by a family able and willing to support them, the new

Act eliminated this option in the case of 'mentally deficient' individuals.128

Efforts to exclude 'undesirables' were not limited to politicians and could also be detected in the works of different thinkers. The best example is probably represented by

James Shaver Woodsworth, Methodist minister, social reformer and pacifist (but certainly not the prototype of tolerance), who in his work Strangers within Our Gates, first published in 1908, writes, "it is surely high time that we examined closely the character of our immigration, and shut down those whose presence will not make for the welfare of our national life."129 He further adds, "we cannot but think that we must

127 Chadha. 128 Chadha. 129 James Shaver Woodsworth, Strangers within Our Gates (Toronto: University of Toronto Press, 1972) 223. 68

protect the highest interests of our own land."'30 Nor was Woodsworth an exception; in

1922, another scholar, William G. Smith, in his work Building the Nation: a Study of

Some Problems Concerning the Churches' Relation to the Immigrants, was still wondering how Canada could secure "the right kind of immigrant" and, at the same time, avoid those lacking "the health, the training, the facilities...to tackle the tasks of agriculture, which . . . must be our basic industry."131 Child emigration, for instance, was allowed only for those children with potential to become self-supporting citizens. In

Ontario, the passage of the 1897 Immigrant Children Act unequivocally established that only "children of sound physical condition be brought to Ontario."132 Quebec, Manitoba

and Nova Scotia soon followed with similar legislation.133

As reported by Carter Park and Radford, it is not surprising then to find out that during the 1920s intolerance of 'others' was well entrenched in a wide range of institutions in the Federal government. In a report in 1921, the Canadian National Committee for

Mental Hygiene clearly stated that it "should be the aim of the Federal authorities to so

guard our ports of entry that we do not receive an undue proportion of those who will become eventually a burden to the State."134 Another report observed that "immigration

is a crying need in this country . . . but we must be very particular regarding the types that we admit. Unfortunately, no small percentage of these who find their way here . . .

130 Woodsworth 230. 131 William George Smith, Building the Nation: A Study of Some Problems Concerning the Churches' Relation to the Immigrants (Toronto: Canadian Council of The Missionary Education Movement, 1922) 84-85. 132 Patricia T. Rooke and R.L. Schnell, Discarding the Asylum (Lanham: University Press of America, 1983) 230. 133 Rooke and Schnell 230. 134 Carter Parker and Radford 92. 69

have been of a definitely inferior type."135 Protection against 'undesirables' had become a primary concern for several sectors of Canadian society also in reason of the increasing popularity of eugenics among Canadian scientists, educators, social scientists and civil servants. The request for stricter immigration selection was of particular importance to the eugenic movement as evident in the editorial published in 1920 in the Canadian

Journal of Mental Hygiene, which brought attention to the fact that a large number of those with mental disabilities in the province of Manitoba were immigrants to the

136 country. Politicians' reception of these arguments found its concretization in the

Consolidated 1927 Immigration Act where the category of "persons of constitutional psychopathic inferiority" was added to the ever growing list of 'inadmissibles'. By the

1920s, the concept of 'psychopatic inferiority', first introduced in 1890 by German psychiatrist J.L.A. Koch, had become largely used in psychiatric taxonomy to define a range of disturbed personality traits.137

Things did not change significantly in the period following World War Two.

Throughout the industrial transition and with a growing demand for skilled and unskilled workers, ethnicity and the individual's potential value to the economy remained the basic criteria employed by Canadian immigration officials in the process of selection. As noted by Patricia Roy in The Triumph of Citizenship, despite the fact that Canada was now a highly industrialized country and that unemployment was historically at its lowest level, the desire for a selective immigration policy remained one of the priorities as "Canadians

135 Carter and Radford 92. 136 Avery 84-85. 137 Chadha. 70

wanted to choose their immigrants."138 The official justification behind this course of action can be found in the well-known speech on immigration policy delivered by

Mackenzie King in May 1947. On that occasion, the Prime Minister declared that

"Canada is perfectly within her rights in selecting the persons whom we regard as desirable future citizens. It is not a 'fundamental human right' of any alien to enter

Canada. It is a privilege. It is a matter of domestic policy."139 Built on this guiding principle, the new Immigration Act of 1952 (it became effective June 1, 1953) thoroughly listed all the prohibited classes and established the requirement of examination for immigrants.140 Among those immigrants who were deemed 'unwelcome' in the country for reasons other than criminal ones, the act explicitly mentioned idiots, imbeciles, insane, people having constitutional psychopathic personalities, those with epilepsy, tuberculosis or any other infectious disease, those who were dumb, blind or otherwise physically defective (unless they had sufficient means of support, thus proving they were not going to become a public charge), and all those who were certified by a medical officer as being mentally or physically 'abnormal' and, therefore, unable to earn a living.

Interestingly, the act also established inadmissibility for all individuals who were part of a family when one of its members was mentally disabled and therefore inadmissible.141

The situation did not improve during the short Conservative interregnum from 1957 to

1963. With serious economic problems and high rates of unemployment, it was a tough period for immigration. Even the new regulations introduced in 1962 by Ellen

138 Patricia E. Roy, The Triumph of Citizenship (Vancouver: UBC Press, 2007) 10. 139 William Lyon Mackenzie King, in Whitaker 14. 140 Freda Hawkins, Canada and Immigration (Montreal: McGill-Queen's University Press, 1972)101-02. 141 Chadha. 71

Fairclough, Minister of Citizenship and Immigration in the Diefenbaker government, which aimed to eliminate racial discrimination through the establishment of skill as the main criterion of selection, were nonetheless still tied to the concept of economic 'utility' of newcomers. The new regulations were just replacing one set of discrimination criteria

with another based on education, training and skills. Those who did not meet the requirements were considered 'unproductive' and therefore not welcome in Canada. Of

course, the actual number of immigrants to Canada did increase during the period as a

consequence of the more open attitude introduced by the regulations. The question

remains, however, of who was allowed in and why: was it in response to a sudden

humanitarianism within Canadian society or because the country needed a specific kind

of people in order to prosper and further develop?

After 1963, the immigration climate changed again due to improvements in economic

conditions and decline in the unemployment rate. The recession that had begun in 1958

was over by 1961, and the recovery that followed led to an economic boom which lasted

until 1973 and was characterized by economic growth and low unemployment levels.142

With an expanded economy in conjunction with a large 'brain drain' which was the effect

of significant numbers of Canadian professionals moving to the United States in search of

better paid jobs, the federal government was in desperate need of skilled and professional

immigrants, thus generating pressures for a more pronounced shift from immigration

criteria that focused on ethnicity to those giving relevance to skills. The changes in

immigration policy which had begun in 1962 were completed five years later when, also

142 Kelley and Trebilcock 346. 72

in response to suggestions contained in the 1966 White Paper calling for the recruitment of workers with a relatively high level of training and education needed by the economy, the point system was introduced to assess immigrants.143 The new system was implemented not only to integrate immigration policy more closely with labour market requirements but also to limit the exercise of administrative discretion by immigration officials, thus giving to the process the objectivity and fairness which had always been missing.144 Under the system, people seeking entry into the country were going to be evaluated according to criteria such as age, education, skills, language capability in

English and French, and degree of kinship with relatives already in Canada. The minimum number of points to be considered eligible was fifty out of ninety. However, little progress was made in the degree of tolerance within Canadian immigration policy: the country left behind whatever regulation could be targeted of fostering racial discrimination, but immigration continued to be perceived mainly as a tool to support

Canada's interests. As explained by Reg Whitaker, immigration was "seen simply as an aspect of the employment market."145

The 1976 Immigration Act has usually been presented as an innovative, liberal and effective piece of legislation, and it surely was, at least in terms of the eligibility of people of different races and ethnicities. Nonetheless, it can hardly be ignored that the new attitude was partly the outcome of the Liberal policy of multiculturalism promoted by Prime Minister Pierre Trudeau during the early 1970s. This policy, in turn, was a

143 Avery 176-79. 144 Kelley and Trebilcock 351. 145 Whitaker 19. 73

direct consequence of growing awareness inside the Liberal government of the increasing numerical strength and electoral importance of people of non-British and non-French origins. The official policy of multiculturalism was not only the result of idealistic forces, but also the consequence of political considerations: Canada has always been a nation of immigration, thus the immigrant presence cannot be easily ignored within the country.146

Despite the truth in this statement, Hawkins warns us against thinking that immigration policy in Canada "is arrived at by a careful balancing of conflicting pressures originating in the Canadian community as a whole."147 Aside from special cases involving the

Canadian labour movement, the Jewish community, the Italians and the Chinese, political pressures in those matters concerning immigration have traditionally been almost non- existent at least until the 1980s. Hawkins explains such a state of affairs by arguing that most ethnic groups have tended to be "not sufficiently homogeneous or organized."148

Furthermore, "ethnic groups do not usually demonstrate great concern for other ethnic groups and an interest in the major issues of immigration policy inevitably requires this."149 As we will see in the following chapters, this holds true also when focusing on the topic under consideration, the medical inadmissibility provision. The next pages will indeed show that to the present, a strong 'immigrant' voice challenging the provision has been practically non-existent as different ethnic groups have tended to keep the distance from each other rather than working together in pressuring the government to address the issue.

146 Freda Hawkins, Critical Years in Immigration (Kingston: McGill-Queen's University Press, 1991) 218- 19. 147 Freda Hawkins (1972) 348. 148 Hawkins (1972) 348. 74

At the same time, the question arises whether the persistence of discrimination towards potential immigrants with disabilities can be related to their scarcely influential political impact, given the above mentioned considerations and the fact that, aside from division along ethnic lines, they remain just a small section of the immigrant population as a whole. Would things have been different if Canada was faced with an organized and large group ready to fight for its rights? History shows that help has rarely come from outside and often people have to pressure and fight in order to win their rights, especially when the latter run against the interests of those who control power. On the other hand, it was and still is difficult to unite immigrants with disabilities because of the existing cultural and linguistic barriers combined with their numerical scarcity. This adds to the already uneasy process of bringing people with disabilities together in the first place. As pointed out by Oliver in Understanding Disability, many disabled persons have usually experienced their disability in individual terms, partly because society itself has for a long time presented disability as a problem of the individual. Only recently have disability rights groups become a significant presence to be reckoned with.150

Then again, the alleged end of overt racial discrimination in immigration policy did not imply that the long standing discourse of the immigrant's utility to the country had finally been overcome. According to Troper, even the introduction of the point system represented just another piece of an immigration policy that has traditionally been regarded as a vehicle serving national economic development.151 Whitaker agrees and

149 Hawkins (1972) 348. 150 Oliver 122-24. 151 Troper 45. 75

points out that "The administrative marriage of employment and immigration policy remained in place through the 1980s."152 Following Abu-Laban's argument in the article

"welcome/STAY OUT: The Contradiction of Canadian Integration and Immigration

Policies at the Millenium," it appears that things did not change in the next decade either.

During the 1990s, a general economic decline and the increasing popularity of neo-liberal policy advocating a shift from welfare practices towards privatization and cost saving, negatively affected multiculturalism and Canadian immigration policy. The Liberal policy came back to the concept of immigration as a tool needed for the recruitment of self-sufficient and skilled immigrants, those who do not make demands on the welfare state. It goes without saying that foreigners with disabilities were considered to be at the opposite end of the spectrum and systematically excluded. Moreover, the emphasis on self-sufficiency and readiness to be assimilated was reflected in the gradual substitution of multiculturalism with integration. While the former concept is related to an idea of

Canada as a country 'in the making' through the continuous and changing influx of a plurality of groups, integration presupposes a simple process of reciprocal acceptance between two distinguished and already formed entities.153

Assuming a monolithic Canadian society prior to immigrants' influx brings us back to the old idea that has shaped the country since its beginning: the project of a society of white, Anglo-Saxon, morally and physically healthy settlers. Abiding by this principle, a variety of political, economic, social and legal mechanisms operate in Canada, including

152 Whitaker 19. 153 Yasmeen Abu-Laban, "welcome/STAY OUT: The Contradictions of Canadian Integration and Immigration Policies at the Millenium," Canadian Ethnic Studies 30 (1998) 191-93. 76

those of immigration control and citizenship policy. For immigrants with disabilities, this means the possibility to stay in the country under a ministerial permit, thus lacking the full set of rights associated with the status of citizen or permanent resident. Today, in

Canada as well as in other states, a number of individuals live within the boundaries of civil society but outside those of the national collectivity. This, in turn, highlights the still ambiguous definition and relationship among state, nation and the many collectivities inside civil society, thus revealing that the classical formulation of T.H. Marshall of the coincidence of nation and civic society is no longer acceptable and needs to be reformulated in a different context. Rethinking the relationship between the two should involve the recognition that what is identified with the term 'nation' is often an ideal image formulated by those who have power, an image that actually does not correspond to and does not reflect the reality of the diverse groups of people living everyday within the boundary of the state.

The gap between the state and civic society can be easily detected when we consider the problems arising from placing side by side the Citizenship Act and the 1982 Canadian

Charter of Rights and Freedoms. Indeed, the provisions contained in the latter seem to raise the possibility that a moral and civic conception of citizenship should be regarded as the fundamental source of citizenship rather than the positive and limited law conception embodied in the Citizenship Act. In this regard, it is worth noticing that the Charter, while guaranteeing certain rights to citizens, also includes a general equality clause that applies to every individual, thus creating a situation of conflict. In 1985 the Supreme

Court, in the case of Singh vs. the Minister of Employment and Immigration, made 77

unequivocally clear that the protection of the Charter extends to both Canadian citizens and non-citizens.154 The decision has undoubtedly implications on how the process of immigration unwinds in Canada. For immigrants with disabilities in particular, the

Supreme Court's ruling has provided an avenue to reassert their rights as individuals and question their systemic exclusion from Canadian society.

This chapter has provided a brief overview of the concept of disability within the western capitalist world, in particular focusing on Canada (and, within Canada, Ontario) while trying to connect this experience to the broader picture. In so doing, it has shown that Canada has been built on a capitalist system that relies on the strong link between able bodies and productivity. This has resulted in the devaluation of individuals with disabilities who have been perceived as useless and a burden to society. The chapter has then attempted to trace the overall development of an immigration policy in Canada, demonstrating how the latter, being predicated upon an identical belief in usefulness and productivity, was formulated as a tool to the maintenance of that same capitalist system.

The end result was a policy meant to attract and retain able bodied and productive subjects while discarding all those who did not fit the requirements, among them people with disabilities. The following chapters illustrate how this exclusion has been presented historically in the public discourse formulated by different sectors of society, from politicians to a sample of the press to the courts. The chapters also show how exclusion has resulted in discrimination and oppression of those perceived as 'not belonging'. It is a

154 Whitaker 23. 78

testament to people who have been constantly left without a voice, a story which has waited too long to be told. 79

Chapter 2

Parliament's discussions around medically inadmissible immigrants

According to art.38(l)(c) of Bill C-ll, the Canadian Immigration and Refugee

Protection Act which received Royal Assent on November 1, 2001,

A foreign national is inadmissible on health ground if his/her health condition might reasonably be expected to cause excessive demand on health or social

services

As mentioned in the subsequent paragraph, this does not apply in the case of a foreign national who, (a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulation; (b) has applied for a permanent residence visa as a Convention refugee or a person in similar circumstances; (c) is a protected person; or (d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member or a foreign national referred to in any of paragraphs (a) to (c).1

The provision of inadmissibility on the grounds of mental and/or physical disabilities which might represent an excessive burden to Canadian health and social services was not created in 2001; it has been present all along, though worded differently and with some variations in its content, since the initial formulation of a national immigration policy for the country. Whereas the provision was created with the intention of excluding from Canada those subjects who were considered both a risk to the genetic integrity of the nation and 'unemployable' in reason of their disability, with time the emphasis has

1 Immigration and Refugee Protection Act, art.38(l)(c). 80

shifted to focus on the excessive costs that the disease or disability would likely place on

Canadian medical and social services. The shift is not insignificant as the concern for

'what the immigrant can do for the country' has now been replaced with "what the country is not willing to do for the immigrant'. Nevertheless, both perspectives are predicated upon the belief that immigrants' worth has to be measured in term of usefulness and productivity to the receiving country. In a nutshell, Canada is searching for individuals who are going to contribute to the economic growth of the country while, at the same time, using as less as possible services.

The goal of this chapter is to look back in time and examine the subsequent changes the provision went through in the public discourse framed by federal politicians, while also maintaining that the basic assumptions behind its formulation remained unchanged.

Despite the overall continuity detectable in the development of Canadian immigration policy, it is also important to consider that there are a few shifts that break the whole period into three different phases. The years following 1902 were characterized by a general uneasiness with people having mental or physical disabilities, independently from their legal status as citizens or immigrants. Both groups were considered by politicians a burden to their families and the state. While immigrants could be easily dealt with through exclusion, disabled citizens had to be accepted as a disgrace the country had to face as inevitable or, at best, try to prevent before the subjects were born. The late 1950s signaled a change of direction in this approach; the impact of returning disabled veterans coupled with the advancement of disabled citizens' rights groups brought a new awareness of the many contributions Canadians with disabilities could make in the life of 81

the nation. Although immigrants with disabilities continued to be rejected, the country had to refine the language justifying the exclusion in 'politically correct' terms that were not going to look offensive towards that part of its citizenry affected by the same conditions. This is true for both the language used in the legislation and for the language adopted in discussing the issue in Parliament as well as in the press. A further change occurred in the mid-1980s, after the passage of the Charter of Rights and Freedoms. The clause of non-discrimination towards people with mental or physical disabilities represented a boost to the rights of Canadians as well as immigrants, especially after the

Supreme Court's decision that everyone in Canada, whether a citizen or not, is entitled to the full protection of the Charter.

When looking at art. 38(l)(c) of the current Immigration and Refugee Protection Act from an academic perspective, it is puzzling to realize the dryness of its wording and the lack of empathy towards people who, for diverse reasons, have found themselves in circumstances that are unfortunate at best in the society we have created and still refuse to change, a society which values able-bodiness and rejects those who do not fit the set standard of 'normalcy'. On the other hand, laws are assemblages of words, and words do not come from thin air, they are the concrete and visible manifestation of our ideas and preconceptions of the world. It was with these thoughts that I wondered what led

Canadian parliamentarians to pass such legislation and maintain it through time. Seeking an answer, I decided to listen and I plunged myself in pages and pages of transcripted debates that have taken place from 1902 to 2002 in both the House of Commons and the

Senate of Canada. Parliamentary debates have been chosen as the main source for this 82

chapter because, as Patricia Roy explains in her work The Triumph of Citizenship, "(t)he published debates of the House of Commons and, to a lesser extent, the Senate are a very useful and easily accessible source of political opinion."2 Furthermore, whereas through time many of the policies passed by Parliament were directly or indirectly pushed forward by the Department of Immigration, it remains true that "politicians made

•3 immigration policy" and they were the ones ultimately accountable for them. Even for the period since the last half of the twentieth century, a time when decisions began to be made in the way of regulations issued by the department rather than legislation passed in

Parliament, I maintain that it was Parliament's collective choice to abdicate its power and responsibilities. Canada is a constitutional monarchy and the legislative power rests with

Parliament, meaning that no bill can become law unless it is approved by the House of

Commons and Senate. Whether or not bureaucrats have a role (and I am not arguing they do not) is inconsequential for the purpose of this investigation as the latter does not aim at understanding "who" prepared immigration bills but why a collective of elected members of the legislature took the step to pass them into laws. As much as I am aware of the importance of realizing under what circumstances and for what reasons the Department of Immigration, or some individuals working in it, decided to create certain provisions and rules in their dealing with immigration to Canada, this is not the goal in this study.

The latter simply try to illustrate how the aforementioned provisions and rules were appropriated in the public discourse of elected federal politicians and made into law.

2 Patricia E. Roy, The Triumph of Citizenship (Vancouver: UBC Press, 2007) 14. 3 Roy 308. 83

This chapter aims to offer the reader with the flavor of these discussions. The following pages do not intend to provide a historical summary of various bills debated in the House of Commons and Senate: what concerns me is solely to select some of the interventions made by Members of Parliament (MPs) and Senators in order to reveal the kind of language that was used through time when referring to people with a disease or disability, also showing that that language was shared, with very few exceptions, by members of all parties in Parliament. Following this approach, the chapter is not concerned with the specific views of individual politicians; it is not really relevant who and why made a certain comment as every one of them was merely part of a system they all accepted and worked to maintain. The goal of the chapter is therefore to show that there was an ideological system in place rather than the reasons why the provision was not contested by single MPs or Senators. Whereas I recognize that understanding the historical context in which these discussions were held is important, I also agree with

Anderson's argument that sometimes cultural assumptions have more influence on people's behavior than the existing economic or social situation.4 This means that, in the case under investigation, ideological formulations about persons with a disease, disorder or disability require to be examined in their own terms, notwithstanding the specific economic, social and political circumstances of the moment. As Anderson points out in dealing with the discrimination faced through time by Chinese immigrants in British

Columbia, even in a difficult economic situation, there would have been no grounds to

4 Kay J. Anderson, "The Idea of Chinatown: The Power of Place and Institutional Practice in the Making of a Racial Category," Immigration in Canada, ed. Gerald Tulchinsky (Toronto: Copp Clark Longman, 1994) 236. 84

target a particular group over another if not for the existence of entrenched notions about the inherent inferiority of that group.5 In the case of people with disabilities trying to immigrate to Canada, this work maintains that aside from the economic, social and political circumstances, their oppression has originated in long held assumptions about their worthlessness and un-productivity. Such assumptions emerge with clarity when considering the public discourse around the subject as outlined in politicians' debates.

Reading what was said and decided within the Parliament buildings, it appears that fear and ignorance were two major, though not exclusive, motivations behind much of the rulings pertaining to immigration into Canada. Yesterday as today, fear and ignorance were and are often used as an easy escape from responsibilities; it comes handy to blame actions on them, it seems to bring instant absolution. This study takes its steps from the conviction that fear and ignorance can help explain but do not provide a justification for what is said and done. On these premises, it plans to show that Canadian immigration policy has been, since its inception, a medley of perceptions and preconceptions which were partly the result of fear and ignorance. However, it also relies on the belief that the latter provide no excuse for the discrimination and hurdles that many of those coming to

Canadian shores have been forced to endure.

Let us start then a journey back in history to encounter some of those politicians who have spent days inside the Canadian Parliament passing legislation that is still in many ways affecting our daily lives. It was more than a hundred year ago, on April 16, 1902, that Clifford Sifton, Minister of the Interior, introduced Bill (n.112) to amend the

5 Anderson 236. 85

Immigration Act denying entry to those with "any dangerous or infectious disease." It is relevant to remind here that Sifton was among the main supporters of an immigration policy focused on bringing strong and healthy farmers willing and able to directly contribute to the country's economic growth.6 During the debate which followed the introduction of the bill, on April 29, 1902, Mr. Edward F. Clarke (Conservative, West

Toronto) asked for more stringent requirements which would limit immigration to the

'right classes' of people. In his intervention, Mr. Clarke, an ultra-Protestant Orangeman and former mayor of Toronto, complained that,

It is a lamentable fact. . . that a large number of diseased immigrants have been brought into Canada, are now in Canada, and are being maintained at the expense of the Canadian people.7

Compounding this, politicians realized that the issue was not merely one of national concern: pressures from the United States continued growing in those years to halt the entrance of diseased or disabled persons into Canada. Several Americans feared that immigrants could use Canada as an easy route for accessing the States. As quoted by Mr.

Uriah Wilson (Conservative, Lennox, Ontario) in the Committee of Supply of the House of Commons on July 14, 1903, Mr. Watchorn, Commissioner of Immigration of the

United States, had reported that,

The Canadian route to the United States is known to every unscrupulous agent in Europe, and is by that means made known to the very dregs of society, many of whom having being rejected at United States ports sought this easy mode of escaping the effect of official vigilance.8

6 Troper 7. 7 House of Commons Debates, vol.57, 29 April, 1902, 3743. 8 House of Commons Debates, vol.60, 14 July 1903, 6550. 86

The blaming of Canada for lack of border control by its southern neighbor was touching a nerve with the country's parliamentarians, whether they agreed with the basis of that statement or not. Opponents of the government accused the latter of showing a lax attitude while supporters defended it and resented what were considered unsubstantiated attacks. Members of the cabinet directly called into question were particularly reactive. In his intervention on July 14, 1903, Hon. Clifford Sifton made clear that, "We consider that the officers of the Canadian government are just as competent as those of the United

State government."9 That, of course, meant the accusation had hit the target.

Issues of immigrants' medical inspections and their crossing the border into the States continued to appear the next year. Despite Sifton's remarks that, "at the beginning of the year we had inaugurated a system of inspection which I have reason to believe is about as perfect as we can make it,"10 the debate was far from over. In response to the Minister's comment, Mr. Clarke provocatively questioned the government,

. . . year after year there is published a statement showing the number of these immigrants from Europe wending their way to the United States through Canada, who are prohibited from continuing their journey and who are left stranded in Canada. What is to be done with these people? Can there not be an improvement made in the medical examination?

He concluded his intervention reminding his colleagues that,

People who are debarred because of their physical disabilities, and who are not fitted to become citizens of the United States . . . are certainly not good enough for Canada.11

9 House of Commons Debates, vol.60, 14 July 1903, 6610. 10 House of Commons Debates, vol. IV, 21 July 1904, 7285. 11 House of Commons Debates, vol. IV, 21 July 1904, 7293-7294. 87

The issue was of importance not merely for the tensions it created between Canada and the United States, but also for the significance that immigration of 'good' and

'healthy' people had for the country and its growth. The main purpose of immigration was to help develop Canada. Accordingly, new immigrants were required to be potential hardworking and productive people who were going to contribute in enhancing the nation's standing and its pride. As Hon. Mr. John Henry Wilson (Liberal, Ontario) remarked on June 8, 1905, in the Senate,

We have a noble country, a country that will command the respect of every nation under the sun. We have sons and daughters who are equal to, if not superior to, the people of any country in the world, and it becomes us to be extremely cautious that we import healthy immigrants only into this country . . . the government ought to ... do everything in their power to prevent the admission into this country of any persons whose presence will not be of lasting benefit to the Dominion.12

That same year, Mr. John Hoolahan, Montreal agent, wrote in his report to the

Superintendent of Immigration that, "persons suffering from mental or physical disability or aged people, are not desirable addition to the population of Canada." He justified the statement with the argument that, "Canada is too young and vigorous to welcome any immigrant who is not self-sustaining."13 An incisive summary of the right kind of immigrants for the country was given in the House of Commons on May 10, 1909, during discussion around Bill (No. 17) respecting immigration by the Conservative member from

L'lslet (Quebec), Mr. Eugene Paquet, when he explained that,

We want here desirable immigrants, physically and mentally sound, in order to till our fertile lands . . . and also to develop our agricultural industry, our

12 Senate Debates, 8 June 1905, pp.367-368. 13 Sessional Papers, 1905, vol.X no.25. 88

lumbering industry and our mineral wealth. On the other hand, we wish to eliminate that emigration which does not contribute to the material and moral progress of the Canadian people.14

The invitation was for the government to exercise a stricter control over the admission of immigrants since, as expressed in Senate by Hon. Mr. Henry J. Cloran (Liberal, Quebec),

"It is all very fine to bring in large numbers of people, but it is better to ensure quality."15

But exactly who should have been kept out of the country? Who were the individuals who could threaten its proper and adequate growth? According to the Instruction for the

Medical Inspection of Immigrants contained in the Annual Report of the Department of the Interior for the Fiscal Year Ended 30th June, 1904, there were three distinct classes of people who "may not be admitted into Canada, or only admitted under certain conditions:"

Class I.- Those persons who by reason of some specified physical disability or disease, or through some moral or criminal cause, are refused admission to Canada. Class II.- Those persons who by reason of being diseased, crippled or deformed, or through some mental condition, must be held for examination as to whether the conclusion "that they are likely to become a public charge" can be justified. Class III.- Those persons who, suffering from some physical disease of a curable character, may be admitted for treatment to a Detention Hospital under the supervision of the department, under the conditions set forth in the Act or Regulations.16

As clarified in the report, the term physical disability pertained to "insane persons, epileptics, idiots, blind, deaf and dumb persons and other defectives," quite a wide spectrum of anomalies.

14 House of Commons Debates, 10 May 1909, 6129. 15 Senate Debates, 8 June 1905, p.368. 16 Annual Report of the Department of the Interior for the Fiscal Year Ended 30th June, 1904, Sessional PaperNo.25. 89

The confusion among politicians around who was to be allowed in and who was to be kept out was also the result of applying an old Act to a situation that, due to the increase in immigration throughout the course of the decade, required a more updated and specific set of provisions. Therefore, in 1906, Bill (No. 170), an Act respecting Immigration and

Immigrants, was introduced with the purpose of providing amendments and additions to the existing law in order to make it suit modern requirements (especially the fact that there had been an increase in the overall number of immigrants to Canada). Some of the new sections were controversial and subject to long debates in both Houses of

Parliament; among them, special attention was given to section 28 which read,

No immigrant shall be landed in Canada who is feeble minded, an idiot, or an epileptic, or who is insane, or has had two or more attacks of insanity within five years; no shall any immigrant be so landed who is deaf and dumb, blind or infirm, unless he belongs to a family who accompany him or are already in Canada and who give security, satisfactory to the minister, ... for his permanent support if admitted into Canada.17

Among the most debated points was whether the rejection of these categories of people needed to be strictly applied or some discretionary leverage be given to the Minister in evaluating the situation on a case by case basis. Several politicians agreed that not all situations were such as to call for exclusion from Canada and that many people, though having a physical infirmity, were able to function well in society. On June 13, 1906, in the House of Commons, Mr. Guthrie, Liberal member from Wellington South (Ontario), wondered, "But would the minister be prepared to exclude a man merely because he was

17 House of Commons Debates, vol.3, 13 June 1906,5246. 90

deaf?"18 Mr. Haughton Lennox (Conservative, Simcoe South, Ontario) echoed his concerns when stating, "Deafness should hardly exclude an immigrant from the country."19 The same issue was also discussed in Senate where Hon. Mr. John Henry

Wilson (Liberal, Ontario), noticed that,

As far as epileptics are concerned ... we have any number of individuals so afflicted in Canada who are good citizens and are making a good living not only for themselves but for their families. We are well aware that many of those who are deaf and dumb are good citizens. They marry and intermarry and carry on their vocation, farming or whatever it may be, and are useful citizens in performing their ordinary duties of life.20

Unfortunately, a majority of the Senate disagreed with that opinion and voted to keep in place the exclusion of all immigrants who fell under section 28 of Bill (No. 170).

Another major issue was whether to accept or not people with a disability whose family was ready to take up the cost, thus eliminating the financial problem for the state.

The question was what to do in cases of minors who were deemed medically inadmissible into the country. As pointed out by Hon. Mr. Lawrence Geoffrey Power (Liberal, Nova

Scotia),

If a father and mother come to this country bringing with them say half-dozen children and one of those children happens to be feeble-minded or an epileptic, it seems to me that he should be allowed to come in. . . . If the afflicted person . . . has a family who are prepared to take care of him, and to give security for his permanent support, then he should be admitted.21

No matter how sympathetic his fellow Senators were to this position, the general consensus at that time was that the interest of the state came first and therefore it was

18 House of Commons Debates, vol.3, 13 June 1906, 5247. 19 House of Commons Debates, vol.3, 13 June 1906, 5247. 20 Senate Debates, 3 July 1906, p. 1083. 21 Senate Debates, 3 July 1906, p. 1079. 91

necessary to have strict requirements in place, provided the Minister was left with enough discretion to accommodate individual situations. After all, as reminded by Hon. Sir

Richard Cartwright (Liberal, Ontario), "there has been more or less a systematic attempt

on the part of certain authorities in the old country and elsewhere to dump on Canada persons who would be a charge on their respective unions and ... the department should be armed with pretty extensive powers in order to check any such attempt."22 Once the

government was given the necessary powers to prevent the entry or deport undesirable

immigrants, Hon. Mr. Richard William Scott (Liberal, Ontario) reassured his colleagues

that exceptions for humanitarian reasons were going to be made as "You must have some

sort of confidence in the government administering the law in a humane and proper

manner."23

The consensus on who was to be admitted into the country was not the only obstacle

for parliamentarians in both Houses; an additional problem was to reach an agreement on

the length of time to be allowed for deporting those who had been accepted and had

subsequently developed any "unfavourable characteristics" once in Canada. Bill (No. 170)

provided that immigrants could be deported up to a period of two years after their arrival

in the country. According to Mr. Oliver, Minister of the Interior, the provision was

required given the initial difficulty in "detecting undesirable conditions by our

examination."24 As Mr. F.D. Monk (Conservative, Jacques Cartier, Quebec) further

explained, "there is no examination at present that will ascertain if a man is feeble

22 Senate Debates, 3 July 1906, p.1081. 23 Senate Debates, 3 July 1906, p. 1080. 24 House of Commons Debates, 13 June 1906, 5248. 92

minded, or epileptic or if he has attacks of insanity." Some Members of Parliament pointed out that the provision was questionable since, in the words of Mr. Lennox,

... it is contrary to all natural justice that a person who comes into Canada ... in perfect health . . . and who, within two years afterwards, perhaps without any fault of his own, becomes a charge upon the public funds, municipal, provincial, federal or otherwise, should be deported in consequence. ... If he satisfies the requirements at the time he comes, I do not think we should pursue him for two years afterwards and say that circumstances subsequently arising should be a cause for deporting him.26

Others looked at the issue from a different perspective and, as stated by Mr. Monk, believed in the necessity of protecting Canadian institutions from foreign elements who threatened to exploit and impoverish the country,

We have a certain number of immigrants who are sent out here by their families, some of whom may be epileptic, other with diseases that were not apparent when they landed, and they are sent out here for the purpose of getting rid of them. After they have been here a certain time they end up by getting into our hospitals, our asylums or our jails.27

A similar division was present in Senate where some Senators concurred with Hon. Mr.

James Drummond McGregor (Liberal, Nova Scotia) that,

It is possible that a very worthy citizen might become disabled, and ... I do not think he should be sent back, if he has met with an accident for instance.28

On the other hand, others agreed with Hon. Mr. Robert Watson (Liberal, Manitoba) that,

... it is very important to have a provision whereby such persons could be deported instead of allowing them to remain as a charge upon the community.29

25 House of Commons Debates, 13 June 1906, 5247. 26 House of Commons Debates, 13 June 1906, 5250. 27 House of Commons Debates, 13 June 1906, 5250. 28 Senate Debates, 3 July 1906, p. 1086. 29 Senate Debates, 3 July 1906, p. 1085. 93

Despite Hon. Mr. McGregor's attempt to pass an amendment reducing the time allowed for deportation of immigrants after their arrival from two years to six months, the amendment was declared lost on a division.

Ensuring the debate would not subside, on April 3, 1907, during the discussion in the

House of Commons around Bill (No. 143) introducing an amendment to the Immigration

Act that would have made operational Bill (No. 170) passed the previous year, Mr. Foster

(Conservative, King's, New Brunswick) felt again the urgency to reiterate,

Now a man comes in who is perfectly healthy, all his antecedents are good; he remains in Canada for the first year, and some time during the second year a misfortune happens to him . .. On what proper ground can you deport that man? . .. you will nullify his two years of residence here, his efforts to make a home and place for himself... I think that is altogether too drastic.30

Whether or not the House concurred with Foster's position, it also recognized that politicians were elected representatives and had to take public opinion, and in this case

'public opinion' meant voters, into account when acting on a public level. In very clear terms, Mr. Oliver noted that,

. . . there is a very strong demand on the part of public opinion for the prevention of undesirable immigration, and if it is desirable to prevent it, and we have taken every means we can to prevent it, but still the undesirable is found in our midst, public opinion seems to demand that deportation should follow.31

Once MPs were reminded of the general discourse animating society outside the

Parliament's walls, the bill was passed.

30 House of Commons Debates, 3 April 1907, 5718. 31 House of Commons Debates, 3 April 1907, 5719. 94

Not much difference in tone emerges from the transcripts of the discussion which took place three years after, when the House gave second reading to Bill (No. 102), another piece of legislation intended to amend the Immigration Act further extending the time for deportation. If anything, the opposition to immigration and the call for deportation of diseased immigrants were made even stronger by the economic crisis that had hit the country as a result of the 1908-9 Depression.32 During discussion on Bill (No. 102), Mr.

Uriah Wilson (Conservative, Lennox, Ontario) informed his colleagues that,

The minister has increased the time for deportation from two to three years. Dr. Clarke, of the insane hospital of Toronto, is strongly in favour of increasing the period to four years. For myself I can see no reason why there should be any limit fixed to the time within which deportation may take place. If people come into this country who are not able to take care of themselves, who have to be sent to an insane asylum, or other places, to be supported by the public, I do not see why we should retain them at all.33

Trying to persuade his audience, he appealed once again to their pride as Canadians and the need to protect future generations:

That is a question in which not only we are personally interested, but in which our children and our grandchildren will be still more interested, because they will have to live side by side with these undesirable people who succeed in entering our country. We ought to take every precaution to keep the physical standard of Canadians as high as possible.34

For what concerned any possible outburst of individual humanity, he was sure there was no need for it, since most of those people "are sent to this country by relatives who are

32Menzies 157. 33 House of Commons Debates, 14 March 1910, 5519. 34 House of Commons Debates, 14 March 1910, 5520. 95

anxious to get rid of them."35 In his eyes, the ones who should have complained about unfair treatment were Canadians, not the deported immigrant.

At this point, curiosity demands for the examination of some statistics in order to find out how many people actually experienced deportation from Canada. According to the

Report of the Chief Medical Officer for the Fiscal Year 1908-9, which was included in the Annual Report of the Department of the Interior, among other individuals, 15 persons were deported for rheumatism, 113 because insane, 35 because feeble-minded, 22 for epilepsy, 11 because crippled, 82 for physical debility and 14 for physical and mental

36 debility. What is interesting about the report is the connection it established between issues of 'insanity' and specific nationalities. Its author, Dr. Bryce, Chief Medical

Officer, seemed quite surprised to find out, through an analysis of the available data collected, that people from 'southern countries' showed very few cases of insanity. This was contrary to what was believed to be true, namely that non-Anglo-Saxon races were the ones more prone to infirmity and insanity. The report stated that, The notable absence of mental defectives amongst the people from southern countries is a matter of much interest and, contrary to a too popular opinion, it appears that... we have in such races not only an industrial asset of great value but also the assurance of a population remarkably free from the degenerative effects seen in those classes which have been for several generations factory operatives and dwellers in the congested centres of large industrial population.37

The same conclusion was reiterated in 1914, when in his annual report, Dr. Bryce highlighted that,

35 House of Commons Debates, 14 March 1910, 5520. 36 Annual Report of the Department of the Interior for the Fiscal Year 1908-9, Sessional Paper No.25. 37 Annual Report of the Department of the Interior for the Fiscal Year 1908-9, Sessional Paper No.25. 96

It has been remarked in previous reports that very few Italians and equally few Orientals become insane, and . .. pauper inmates of hospitals.... the fact in both cases that these ruder foreigners are almost all manual labourers, means that as outdoor workers they are naturally healthy . . ,38

What a fortunate coincidence that those same people were just the kind Canada's economy needed so badly during those years! On the other hand, what appears to be a welcoming and positive reception of races 'other' than those of Anglo-Saxon heritage, is not truly so if we consider that Dr. Bryce never referred to immigrants from Asia or southern Europe as potential 'citizens' of the Dominion. They were 'an industrial asset' or 'ruder foreigners' or 'manual labourers', nothing else than an expendable tool to enrich the Canadian nation and not worth any of the rights belonging to those who were recognized as legitimate citizens.

Abiding by the principle that only working 'material' should be allowed to enter the country, on April 7, 1919, Parliament introduced Bill (No.52) to amend the Immigration

Act, and passed it on May 12 of the same year. The measure was in response to the escalating cost of taking care of 'undesirables', combined with the hardship created by increased unemployment conditions during the post-war years. Equally important is to keep in mind that the late 1910s-early 1920s were a time of great popularity of eugenic theories among Canadian scholars, scientists and civil servants, and that immigration of undesirables was a great concern to the whole eugenic movement.39 Psychiatric and eugenic 'science' contributed to the belief that individuals with mental disabilities were by essence the wrong kind of immigrants by reason of their natural tendencies to behave

38 Annual Report of the Department of the Interior for the Fiscal Year 1914, Sessional Paper No.25. 39 Avery 84-85. 97

in a dangerous and degenerate way.40 Among other amendments brought to the floor of

Parliament, Bill (No.52) extended from three to five years the time during which immigrants could be deported. In order to dispel the accusation that such a move was the result of pressures from the United States (which already had an identical provision), Mr.

Calder, Minister of Immigration and Colonization, clarified that,

We are going to adopt that five-year period here, not because they have it in the United States, but simply because we think it is necessary that there should be a longer period than three years in which to ascertain whether or not many of these people who get into the country are desirable.41

The Minister was trying to portray the decision-making process in Canada as independent from any political pressure the southern neighbor might have exercised: ironically though, looking back from 2010's perspective, it seems that for once it would have been more advisable not to re-vindicate any autonomy and instead blame such an opportunistic decision on influences from the US. For a country that likes to portray itself as

'humanitarian' and committed to principles of non-discrimination, it is today problematic to justify the decision of excluding individuals based on considerations of 'desirability',

'ability' and 'sanity'.

Another new element introduced in the bill was the inclusion within the prohibited classes of "persons who are suffering from chronic alcoholism," those who showed

"constitutional psychopathic inferiority," and "all persons who are either mentally or physically in such a condition as that they are not likely to be able to earn a living."42

40 Chadha. 41 House of Commons Debates, 29 April 1919, 1872. 42 House of Commons Debates, 7 April 1919, 1207 98

Asked to clarify what the term "constitutional psychopathic inferiority" meant, Mr.

Calder replied,

In this classification are included various unstable individuals on the border line between sanity and insanity, such as moral imbeciles, pathological liars, many of the vagrants and cranks, and persons of abnormal sexual instincts.43

Reiterating that these individuals represented a threat not only for the present but also for the future of the country, the Conservative member from Perth South (Ontario), Mr.

Michael Steele, warned the House that,

... a very large number of such people are in our hospitals for the insane throughout the country, a burden that is laid upon this country, that will continue for years to come and that will grow in cost to Canada, because we know that these feeble-minded people, if they are not confined in some institution, multiply very rapidly, and statistics show that about eighty per cent of their offspring are also feeble-minded.44

For a country that was experiencing the difficulties of taking care of its own growing population while dealing with problems such as unemployment and the return of veterans, the fact that new additions could result in an economic burden was becoming the principal reason against the admittance of people who were likely to require any medical supervision or service. On March 1, 1928, during discussion on the budget, Mr.

James H. King (Liberal, Kootenay East, British Columbia) reminded his colleagues that they, as representatives of the federal government, had a responsibility towards the provinces, and that the latter were growing dissatisfied with the laxity shown by the government in letting 'mentally insane' people enter the country. Mr. King quoted from

43 House of Commons Debates, 30 April 1919, 1945. 44 House of Commons Debates, 1 May 1919, 1974. 99

statements made by various officers of the provincial governments in order to provide concrete examples of the dissatisfaction and financial difficulties experienced by the various provinces on that issue. Among others, the statement made in 1922 by Dr.

Dunlop, "from the hospital for the insane, feeble minded and epileptic of the province of

Ontario,"45 is worth reporting in its entirety since it concisely summarized the complaints most of the provinces had towards the federal government. Referring to the year 1922,

Dr. Dunlop begun saying that,

The proportion of those admitted born in Canada was 62 per cent. The proportion of the foreign born was 32 per cent. Many of the foreign born came from southern and eastern Europe. In 1922, we had 110 persons admitted who came from that part of the world and the cost of maintaining them was over $40,000. Very few of this class have any means, but become public paupers to be supported by the taxpayers of Ontario. One wonders, when dealing with this subject, how long such an immigration policy should continue, and why the people of Ontario should be taxed to maintain such an alien element, who rarely become permanent assets but are simply floating liabilities.46

The statement does not actually appear to differ much in its basics from discourses circulating today not only in Canada but in several other countries against the entrance of people that for one reason or another, are likely to constitute a 'financial burden' for the taxpayer. Nor was such an attitude exclusive of a few medical specialists; it was instead shared by wider sectors of society as shown by the resolution passed by the Social

Service Council of Canada (the new name given in 1912 to the Moral and Social Reform

Council, a national as well as provincial organization created in 1908 by Protestant churches which adhered to the Social Gospel) at its meeting held that same year in

45 House of Commons Debates, 1 March 1928, 909. 46 House of Commons Debates, 1 March 1928, 909. 100

Montreal. The resolution was quoted in the House of Commons on June 6, 1928, by Mr.

William F. Kay (Liberal, Brome-Missisquor, Quebec), presenter of the report of the

Committee of Agriculture and Colonization. In it, the Council stated,

The Social Service Council of Canada having in mind the burden now laid on the various provinces of Canada in providing for the idiots and the insane, and the unfortunate results of admission into this country of the moron and feeble minded, desires to urge upon the federal government a continued and strict adherence to the provisions of the Immigration Act, in order that the door may not be open for the entrance of these types of prohibited undesirables.47

Mr. King's intervention on the federal responsibilities towards the provinces had occasioned in the discussion around the McConachie case, which concerned a Scottish family trying to gain admission to Canada. The parents had seen their youngest child, a fourteen-month-old girl, being refused entry at the port of Halifax because "mentally defective." Following the rejection, both the mother and the child had been deported therefore separating them from the father and the four remaining children. As we will see in the following chapter, the case had received much attention in the press and had generated feelings of sympathy among the public and intense contrasts of opinions among politicians. Harsh criticism had been reserved for the Minister of Immigration and

Colonization who, according to many parliamentarians, especially and not surprisingly those sitting among the opposition (but, curiously enough, those same politicians will act in a very similar way once at the government), should have shown greater compassion providing the child with a ministerial permit to remain in Canada. On March 5, 1928,

47 House of Commons Debates, 6 June 1928, 3809. 101

during the discussion around the budget, Mr. W.A. Boys (Conservative, Simcoe South,

Ontario) took a chance for pleading the case with the Minister, arguing that,

... if ever there was a case that merited the exercise of favourable discretion on the part of the Minister of Immigration ... it certainly was the case in question. I do not think for one moment that the minister would want to separate a baby of fourteen months old from its mother, nor, on the other hand, the mother and baby from the father and the other four little members of the family.48

The same kind of intentions motivated the intervention of another Member of Parliament,

Mr. E.A. Peck (Conservative, Peterborough West, Ontario) who four days later called on the Minister,

... to reverse his decision with regard to the McConachie child. ... is there any harm in allowing that child to enter Canada when we get the advantage of receiving immigrants whom we need to the extent of a man, his wife, and four other children? There are weak-minded people in this country .. . and it will not hurt very much if another weak-minded person is allowed to come in 49

Members of Parliament were also unwilling to face criticism from the press and several groups which had been quite sympathetic to the child and its family; as noted by

Mr. F.P. Quinn (Conservative, Halifax),

The McConachie case has, up to the present time, elicited many expressions of sympathy and surprise. I am in receipt of letters every day from different people, and from various societies and organizations, expressing sympathy with the family affected.50

The politician concluded his remarks pointing out the discordance between the government's action in dealing with the case and its previous statement of Canada being

48 House of Commons Debates, 5 March 1928, 1001. 49 House of Commons Debates, 9 March 1928, 1186. 50 House of Commons Debates, 12 March 1928, 1229. 102

"a land of tremendous possibilities and wonderful opportunities for the immigrant."51 He also pleaded again with the Minister to review the decision and admit the child and its mother since, no matter what was the actual language of the Immigration Act,

In view of public opinion, in view of the way in which this case has been commented upon, I feel he will have the unanimous endorsation of the people of Canada if he sends for that woman and her infant to come here.52

At the same time, not everyone in the House was convinced of the necessity or appropriateness of disregarding the Act, thus creating a dangerous precedent. On that issue, an angry Mr. William R. Motherwell, Minister of Agriculture in the Liberal cabinet, provocatively asked his colleagues,

Why should these prohibited classes be allowed to enter the Dominion? ... If we are to allow the simple-minded to come in then what about the idiots, the imbeciles, the epileptics, and the others specified in section 3-fifteen or twenty prohibited classes? If one is allowed to enter, why not two; and if two, why not a thousand? . . . We feel sorry for these unfortunates, but, nevertheless, we believe that, as in the past, they should be kept out. There can be no compromise on this question.53

The comment found appreciation with other members of the House who reiterated their support and agreement with the Minister's decision. Among those who showed their approval of the Minister's handling of the case, Mr. J.J.E. Guerin (Liberal, St. Ann,

Quebec) stated,

From what I can gather, this child is a cretin. ... it was born an idiot and is bound to continue so. ... I profoundly sympathize with the parents, but at the same time, dura lex sed lex. You cannot change the law.54

51 House of Commons Debates, 12 March 1928, 1229. 52 House of Commons Debates, 12 March 1928, 1230. 53House of Commons Debates, 12 March 1928, 1204. 54 House of Commons Debates, 12 March 1928, 1234. 103

According to Mr. Guerin, one thing was to be generous and spend money on an unproductive foreigner for a short period of time, a different discourse was to be burdened for years to come without receiving any benefit from it. He went on saying that,

If the expectation of life in the case of a child were brief it might be all right to admit it; but the fact is the children of this description live for many years. They grow up to the age of twenty or thirty, continuing in the same state of infantile decrepitude as when they were born. . . . such a child becomes a load on its parents ... To have a child of this sort in the house is therefore a misfortune beyond description. ... I do not see how the Minister of Immigration, under the circumstances, could possibly think of admitting a person in that state.55

Then, showing arrogance and complete ignorance on the issue of parenting and on the feelings of affection which bond a child to its mother and father, Mr. Guerin concluded his intervention by commenting,

It is not that I have anything but the deepest sympathy for the family, but it is a very easy matter for them to separate themselves from that poor unfortunate child. The baby would never be any the wiser, and the family would be much better off.56

Nor the opposite side of the debate showed a better understanding or respect for who, before being an 'idiot' or 'insane', was a human being; in responding to those who defined the child as an economic burden, Mr. A.E. Ross (Conservative, Kingston,

Ontario) replied that,

The medical officers say that in this type of infant not 9 per cent reach twenty to twenty-five years of age. .. . The baby has not one chance in a hundred to live... If there was any possibility of a menace in this case, or the possibility of any liability being put upon us, I would say there was some reason in taking a little

55 House of Commons Debates, 12 March 1928, 1234. 56 House of Commons Debates, 12 March 1928, 1234. 104

baby from its mother, but not in the case of a baby who has not got one chance in a hundred of reaching even twelve or fourteen years of age.57

Encouraged by the comments and support shown by many of the other parliamentarians,

Mr. Forke, Minister of Immigration and Colonization, stood in the House and reported about the latest development of the case, namely that "the child is to be left on the other side" while Mrs. McConachie was going to return to Canada and rejoin her husband and four other children. Once again giving proof of arrogance, the Minister declared,

I am led to believe that the child will not suffer from the loss of its mother; it would not understand the difference and no hardship will be caused the child by the loss of its mother.58

In the attempt to conclude such a tragic case under a positive note, he directed the last remark to the McConachie family, addressing them with words that appear today patronizing and unapologetic,

The family has my sympathy. I hope Mr. McConachie and his little boys will become loyal Canadian citizens and forget the trouble they have gone through during the last year.59

Although the single case involving the McConachie family had reached a satisfactory conclusion (from a parliamentary perspective as it is unlikely the McConachies shared the same satisfaction), still the issue of admitting immigrants who, due to mental or physical disabilities, were likely to become a burden for the taxpayer remained on the table and kept getting attention in Ottawa. Worthy of consideration was the pressing

57 House of Commons Debates, 8 June 1928, 3949. 58 House of Commons Debates, 8 June 1928, 3968. 59 House of Commons Debates, 8 June 1928, 3968. 105

situation of provincial governments and municipalities which were the first to feel the burden directly on their shoulders, particularly in the context of economic hardship

created by the Great Depression. As Mr. Wesley A. Gordon (Conservative, Timiskaming

South, Ontario), now Minister of Immigration, pointed out in the House of Commons on

July 10, 1931,

. . . the provinces and municipalities have rights. In the poorer municipalities . . . the burden of taking care of people who are not able to take care of themselves, by reason of physical or mental defects, is thrust upon the public. And those municipalities are having a hard enough struggle as it is to get along, without having that additional burden thrown upon them.60

Given the concerns around landed immigrants who had ended up burdening the system as

a result of their mental and/or physical disabilities, it is not surprising to find out that

deportations continued to be carried on. Between the years 1930-31 and 1944-45, there

were 2,724 individuals who were deported from Canada for medical reasons, a majority

of them (1,596 or 58%) due to mental diseases.61 Nonetheless, it is also true that this

number was a significant reduction from previous years: indeed, gripped by the

Depression and its economic consequences, the decade leading up to World War Two

witnessed a decline in both the international movement of people and the efforts to find

out and deport those who had already entered the country.62

If the main problem was the financial cost of immigrants who were "physically or

mentally defective," what about those with enough money to take care of themselves and

free the federal, provincial and local governments of any financial responsibility?

60 House of Commons Debates, 10 July 1931, 3647. 61 Menzies 138. 62 Menzies 171. 106

Although the 1910 Act had eliminated the option for 'mentally deficient' individuals to enter Canada when accompanied by a family member willing to support them, was it possible to make an exception if it turned out to be advantageous for the country? One of such cases came to the attention of Parliament in 1938 when an American citizen, Mr.

Harper, asked for his sister to be accepted to Canada. An American-born woman and the widow of an Italian citizen, Mrs. Belle Hervey Harper Cazzani had recently developed some mental trouble and her brother wanted to have her close by so to take adequate care of her. The case would not have been the subject of much discussion in the Senate if not for the £55,000 the lady was going to bring to the country if accepted. On April 4, 1938,

Hon. Mr. Lacasse (Liberal, Ontario) moved second reading of Bill M-l, an Act respecting Madame Belle Hervey Cazzani. For the purpose of this investigation, what is interesting is not to find out the outcome of the case but rather to understand how the role that disability played within the Immigration Act was strictly related to financial issues, namely whether or not the potential immigrant was going to represent a substantial cost to taxpayers. Being that the case, the actual material gain for Canada would have practically been non-existent and the entire process unworthy of pursuing. With respect to Mrs. Cazzani, opinions tended to differ among Senators: while a number of them agreed with Hon. Joseph Philippe Baby Casgrain's (Liberal, Quebec) argument that

"Canada would benefit by the money that this woman would bring in, and when she died her estate would pay succession duties to the Province of Ontario,"63 others simply believed that the consequences of accepting the person would have been negative for the

63 Senate Debates, 4 April 1938, 212. 107

country. Quoting a statement made by Mr. Frederick Blair, Director of the Immigration

Branch, Hon. Raoul Dandurand (Liberal, Quebec) warned his colleagues,

The present Bill, so far as we are aware, is the first effort to accomplish the admission of a prohibited person by means of an Act of Parliament. Should it be successful it will establish a precedent that will quickly be seized upon by many others desiring similar concessions.64

The creation of a precedent of that nature could have potentially opened the door to an unforeseeable number of mentally disabled immigrants, some of whom could or could not have had the means to cover their expenses. Should the immigrant be unable to cover the costs, the burden was once again to follow on the local governments and according to many politicians that was not a practicable option. The potential economic burden immigrants with disabilities were going to represent was a threat too big to be ignored.

Whereas the late 1940s were years of economic growth and low unemployment

(conditions that are usually associated with an open-door policy towards immigrants), requests for a selective immigration policy were as stronger as ever.65 This is not surprising when considering that persons with an illness or disability were deemed to be not useful in this context as they were regarded as being automatically 'out' of the employable stock. Still in 1953, Mr. J.S.A. Sinnott (Liberal, Springfield, Manitoba) reminded the House that,

... a couple . . . slipped through the immigration department a year or two ago when suffering from a serious malady . . . That couple is now costing the municipality $40 a month or $480 a year . . . That is the type of immigrant we should keep away from this country.66

64 Senate Debates, 4 April 1938, 211. 65 Roy 10. 66 House of Commons Debates, 24 April 1953, 4356. 108

One thing was to help 'cripples' and 'idiots' born within Canada, a whole different matter to take care of those who, being born outside of the country, had no rights to assistance.

Still, it is significant that while uneasiness with immigrants affected by either a disease or disability continued unabated, the reasoning behind it changed, switching from a concern with newcomers likely to corrupt the country's "genetic pool" to a more economic approach, namely the cost of taking care of 'unproductive' subjects. According to Robert

Menzies, the change was one of the results of the war against Nazism; specifically, the growing association between Nazi theories and eugenics had forced many in Canada to distance themselves from the latter and its emphasis on the risks of 'degenerate' populations.67 In addition, it is not insignificant that those were the years that witnessed an increasingly strong demand for medicare throughout the whole of Canada68; and it goes without saying that, in the event the reform movement succeeded and medicare had to be provided, the last thing on Ottawa's agenda was to get burdened with the medical cost for diseased immigrants.

The late 1940s and the 1950s were years of moderate but steady advancement for disabled citizens, partly in reason of the impact of returning veterans who had fought in

World War Two defending their country's freedoms and had come back as disabled.

Whereas organizing and mutual support had already been tools used by disabled veterans following World War One, it was only after World War Two that these efforts were

67 Menzies 170. 68 Alvin Finkel, Social Policy and Practice in Canada: A History (Waterloo: Wilfrid Laurier University Press, 2006) 170. 109

really successful and gained prominence.69 At the same time, the Canadian government made the return of veterans, including disabled veterans, to civilian life, one of its priorities in the post-World War Two period.70 A new Department of Veterans Affairs was created in 1944 and, according to Jeff Keshen, it was extremely valuable in providing disabled veterans with support and medical services for free at a time when approximately one-third of Canadians did not have private medical insurance, not to mention the effort to reintegrate them into the workforce and into civil society.71 The effectiveness of the Department of Veterans Affairs in helping veterans, many of them disabled, readjust to civil society was the result of two factors: first of all, Canada wanted to make sure not to repeat the mistakes made after the conclusion of the Great Conflict when no serious effort had been made to reintegrate and financially support returning veterans; equally important, it was the outcome of a new consciousness among Canadians that a planned economy and the expansion of government social welfare were not something exclusive to war times but could and should be continued in peacetime. From this perspective, Keshen argues that the department had a significant role in the maintenance and expansion of the welfare system in the country and, for what concerns access to free medical treatment, it represented a model for both the Hospital Insurance

Act passed in 1957 and for Medicare in 1968.72

69 Mary Tremblay, "Lieutenant John Counsell and the Development of Medical Reabilitation and Disability Policy in Canada," Making Equality, eds. Deborah Stienstra and Aileen Wight-Felske (Toronto: Captus Press, 2003) 59. 70 Tremblay 65. 71 Jeff Keshen, "Getting It Right the Second Time Around," The Veteran Charter and Post-World War II Canada, eds. Peter Neary and J.L. Granatstein (Montreal: McGill-Queen's University Press, 1998) 77. 72 Keshen 76-78. 110

With respect to the broader society, new organizations focusing on advocating for people with disabilities were created (such as the March of Dimes Canada, the National

Institute for Mental Retardation, the Canadian Paraplegic Association and the Canadian

Association for the Mentally Retarded). Different legislation was also discussed and eventually passed in Parliament throughout the 1950s-early 1960s: for example, Bill

No.462 to provide for allowances for disabled persons, which was passed on June 8,

1954; the Blind Persons Act Amendment Lowering Eligible Age to 18 Years and

Increasing Maximum Annual Incomes, which received Royal Assent on June 28, 1955; the Disabled Persons Act Amendment to increase payments and allowable income, which received Royal Assent on February 15, 1962 (together with a similar amendment to the

Blind Persons Act); and Bill No C-125, an Act to Amend the Old Age Assistance Act, the

Disabled Persons Act and the Blind Persons Act, which increased the monthly amount of money available for assistance or allowance and received Royal Assent on December 12,

1963. Despite the rhetoric and paternalistic attitude emerging in the interventions of several politicians, the trend was towards acceptance and valorization of Canadians with disabilities, from the first tentative steps in 1952, when Mr. Arthur Masse (Independent

Liberal, Kamouraska, Quebec) talked about the "duty" of the government "to help the handicapped" provided it was not "detrimental to our economy"73 to the statement made two years later by Mr. Vaillancourt (Liberal, Quebec) who, in congratulating the Prime

Minister on the introduction of Bill 462, an Act to provide for allowances for disabled persons, said,

73 House of Commons Debates, 28 November 1952,180. Ill

They were formerly a burden to society, but now we are going to help them . . . and many of them will become useful members of society instead of being a burden.74

Even more convinced was the intervention of Mr. G.W. McLeod (Social Credit,

Okanagan-Revelstoke, British Columbia) who, on June 15, 1956, in the House of

Commons talked about the contribution disabled citizens could make to Canadian society, thus pointing out that,

... we are beginning to find that men and women who a few short years ago we thought could not be used in any manner in our labour force are now being trained so they can assume a fitting place in the circles of labour, provide a livelihood for themselves and contribute to the economy of Canada.75

Mr. McLeod reminded the House about the new program in technical training for people with special needs that was made possible under a joint provincial and federal financing agreement.76

The new approach to disability issues which had begun in the 1950s continued to build momentum in the following decade, and the year 1964 witnessed the first Canadian federal-provincial conference on mental retardation while a federal-provincial conference on disability had already taken place in 1952. Both conferences were organized by the government as a response to pressures from social movements headed by disabled citizens (disabled veterans in particular), parents of disabled children and professionals.

Whereas the goal of the 1952 conference had been to expand employment and training programs for disabled adults across Canada, the goal of the 1964 conference was to

74 Senate Debates, 17 June 1954. 75 House of Commons Debates, 15 June 1956, 5095. 76 House of Commons Debates, 15 June 1956, 5095. 112

improve health, welfare, educational and vocational services for mentally retarded children and adults. Among the achievements registered by the conference, there was an expansion of resources and opportunities in the community made possible by a special funding program whose cost was shared between the federal and provincial governments

(the Canada Assistance Plan).77 At the same time, it would be naive to believe that significant advancements could be achieved in the span of few years: whereas the 1950s saw the beginning of a shift in the perceptions of society with respect to Canadians with disabilities (as proven by the creation of a plethora of organizations advocating for disabled citizens and by the aforementioned efforts made by the government to provide more and better services to those with a disability), the process continued in the following years and the next decades were equally important witnesses of a development that has not yet reached its conclusion. For instance, another sign that society's understanding of disability was changing is represented by the discussions around the motion brought in the House on February 1973 and concerning measures to aid handicapped persons. In that occasion, Mr. W.G. Dinsdale (Progressive Conservative, Brandon, Manitoba) emphasized,

. . . that people with physical handicaps, or for that matter with any disability, actually have a special quality that places them in a position to make a particularly effective contribution to the society in which they live. . . . disability is far more frequently the result of social, emotional or economic dependency than physical impairment.78

He concluded inviting his colleagues to work for,

77 Alfred Neufeld, "Disability Policy (Canada)," Encyclopedia of Social Welfare History in North America, eds. John Herrick and Paul Stuart (Thousand Oaks: Sage Publications, 2005) 79. 78 House of Commons Debates, 19 February 1973, 1423. 113

... a society where there is a genuine respect for the handicapped . . . where the handicapped have a fundamental right to participate in industry and in society according to their abilities; where socially preventable distress is unknown; and where no man has cause to feel ill at ease because of disability.79

Unfortunately, throughout the same period, things did not look so rosy for those seeking admission to Canada and the provision of medical inadmissibility continued to stand. As the post-war years saw debates around and eventually the implementation of measures concerning health and welfare (the National Health Program in 1948, the

Unemployment Assistance Act in 1956 and the Hospital Insurance and Diagnostic

Services Act in 1957, just to name a few), the state was determined to prevent the entrance of subjects who could take advantage of the new services at the expense of citizens. Forced by pressures coming from various organizations dedicated to improve the situation of Canadians with disabilities, Parliament was compelled to pass legislation meant to be more inclusive; similar pressures were, however, absent with respect to disabled individuals who were not citizens, thus allowing for the maintenance of the status quo. Whereas Canadian society in the post-war years was slowly affected by a new interest in human rights developing at the international level (the 1945 United Nations

Charter explicitly mentioned "fundamental human rights") which resulted in a more accepting attitude of ethnic diversity and the growth of a human rights movement in

80 Canada, it appears that when it came to immigrants, the focus remained on ethnicity rather than being inclusive of disability. For example, the new Immigration Act of 1952 continued to apply the principle of exclusion by listing all the prohibited classes and 79 House of Commons Debates, 19 February 1973, 1423. 80 Roy 187-88. 114

establishing the requirement of medical examination for immigrants.81 Same story throughout the following decade: even the removal of racial barriers did nothing to eliminate discrimination on the basis of disability. Again, ethnicity was left behind in favour of a stronger emphasis on skills, but immigration continued to be understood as a tool to potentiate the national economy,82 something disabled persons were considered unable to do.

Despite the absence of substantial modifications in the letter of the inadmissibility provision within the Immigration Act, few minor changes were implemented with respect to the criteria of rejection. In 1968, for instance, Bill C-30 was introduced in the House with the purpose of giving permanent status to immigrants following recovery from

83 mental disorder. Though the measure was not concerned with people currently suffering from 'insanity', it is relevant that Parliament took the step to consider the possibility of giving citizenship to those who had recovered from a mental disorder. As noted in Hon.

Lionel Choquette's (Progressive Conservative, Ontario) speech in the Senate,

"Unfortunately, in our present society, mental illness seems to attach a stigma which remains with a person for the rest of his life."84 Within this context, the bill was a refreshing improvement.

Also worthy of consideration is the fact that, throughout the discussion around Bill C-

30, it clearly emerged the discomfort that some parliamentarians felt with respect to the language used in the Immigration Act to define persons with mental disabilities. The

8] Hawkins (1972)101-02. 82 Avery 176-78. 83 House of Commons Debates, 22 March 1968, 7974-81. 84 Senate Debates, 26 March 1968, 1013. 115

issue had already come up two years earlier when in discussing section 5 of the Canada

Immigration Act of 1952, Mr. J.A. Irvine (Progressive Conservative, London, Ontario) had pointed out,

. .. this act... is now out of date ... in the very language it employs. The words "idiot", "imbecile" and "moron" have not been found in modern medical literature for many years. They are considered repulsive as well as outdated. The same can be said of the word "insane"; and medicine has yet to define the word "psychopathic".85

Two years later a concrete suggestion was made to amend the language of the Act because it was out of tune with present Canadian 'sensibilities'. On March 22, 1968, the

House discussed Bill C-30, to amend the Immigration Act, thus giving permanent status to immigrants who had suffered from a mental disease but had then been cured. While dealing with the section concerning immigrants with mental disability, Mr. John Gilbert

(NDP, Broadview, Ontario) remarked,

The word "insane" is not generally accepted by Canadians today. It connotes something that we do not really like to think about. We have got rid of the title "insane institutions" and call them mental institutions. I would hope there would be a further amendment to the section and the word "insane" changed to the phrase "mental illness".86

Once accepted that section 5 of the Immigration Act was susceptible of being understood in more flexible terms, thus allowing people who had recovered from mental illness to enter Canada, the step to follow was for extending the relaxation to people who, though still 'mentally retarded' and a potential economic burden to the country, had members of their family willing to cover the eventual cost. On this topic, in November

85 House of Commons Debates, 25 January 1966, 259. 86 House of Commons Debates, 22 March 1968, 7977. 116

1968, the House of Commons started a discussion around Bill C-10 which amended the

Immigration Act in order to allow for conditional admission of mentally retarded persons.

As explained by Mr. Hubert Badanai (Liberal, Fort William, Ontario),

... if the person seeking admission is a member of a family already in Canada, financially responsible and capable of giving satisfactory security against such an immigrant becoming a public charge, in such a case there would appear to be sufficient justification to relax the regulations to enable that person to join his family. On the other hand, a person with no family ties in Canada would most likely become a public charge, and a rather serious one.87

Although there was general agreement among members on the unfairness of being intransigent with people with mental retardation no matter what their situation was, the government believed the bill to be unnecessary given the discretionary powers the

Minister had to act through individual permits. According to Mr. Gerard Loiselle

(Independent Liberal, St. Anne, Quebec), Parliamentary Secretary to the Minister of

Manpower and Immigration, both the previous and current Ministers had already

"relaxed the absolute prohibition on the admission of those afflicted with mental retardation by using the authority provided by parliament, and allowed them to enter

oo under ministers' permits." The Immigration Act was, therefore, in no need of being further amended and indeed no change of the kind would go through until the passage of the Immigration and Refugee Protection Act in 2002.

Despite the attempt to modify section 5 of the Immigration Act had failed in 1968 as it was believed that ministerial permits provided enough flexibility in applying the prohibition, the provision continued to be seen as problematic both in its language and

87 House of Commons Debates, 22 November 1968, 3114. 88 House of Commons Debates, 22 November 1968, 3116. 117

content. In 1975, the Third Report of the Special Joint Committee of the Senate and

House of Commons on Immigration Policy dealt with some of its most evident shortcomings. Basing its findings on input received by Canadians who participated in public hearings held across the country, the report concluded that contrary to what stated in section 5, "immediate members of a family should not be separated because one member suffers from mental retardation."89 Following such premises, the committee

"recommends that sponsored dependents who are mentally retarded be admissible."90 It also noted that,

Because many forms of mental illness and epilepsy can now successfully be treated and controlled, most Committee members agree that a person with a history of such a disease should be admissible providing he can lead a normal and useful life. A minority of the Committee would have eliminated mental illness and epilepsy altogether from the prohibited classes.91

If the previous years had seen some discussion but little achievement, big hopes were cast in 1976 on what is usually portrayed as one of the milestones in Canada towards a non-discriminatory immigration policy. Bill C-24, the Immigration Act, 1976, marked the third time in that century (after 1910 and 1952) for a complete overhaul of immigration legislation. The bill was the result of four years of preparation which had started in 1973 when the Minister of Manpower and Immigration had created a group to work on a green paper meant to be used as a vehicle for public debate. The green paper had been tabled in

Parliament in February 1975 and referred to a special joint committee of the Senate and

89 Senate Debates, 6 November 1975, 1385. 90 Senate Debates, 6 November 1975, 1385. 91 Senate Debates, 6 November 1975, 1386. 118

House of Commons. Recommendations made by the committee formed the basis on which Bill C-24 was formulated.92

For people with mental or physical disabilities seeking admission to Canada, the new

Immigration Act could have represented a dramatic change towards a less discriminatory policy, though the reality did not match expectations: the language was different and gone were references to 'idiot' or 'lunatic' but the substance was quite the same and disabled persons remained unwanted elements. This was even more disappointing when considering that the 1970s were not the 1950s: many changes had occurred in the space of twenty years and a number of advancements had been made on issues of human rights as well as anti-discrimination practices. As pointed out by Mr. E.W. Woolliams

(Progressive Conservative, Bow River, Alberta),

The bill requires health examination of persons outside Canada to determine whether they will be admitted to Canada. I thought the human rights bill protected those who have some physical or other disability to enable them to function in society like the rest of us, without discrimination. This bill totally contradicts the human rights bill.93

Also relevant was the fact that the bill was formulated in very general terms with the understanding that more precise rules would be established by way of regulations decided by a group of bureaucrats and unavailable for discussion to Parliament. Several parliamentarians perceived the practice as dispossessing them of the prerogative of exercising their right as elected representatives of the Canadian population. Among others, Mr. J.R. Holmes (Progressive Conservative, Lambton-Kent, Ontario) was quite

92 Senate Debates, 1 August 1977, 1174. 93 House of Commons Debates, 21 March 1977, 4182. 119

vocal in opposing such a procedure. On March 14, 1977, in a House of Commons which was discussing a number of proposed amendments to Bill C-24, he stated,

... the bill does not contain most of the important provisions of the government's immigration policy. It is readily apparent that a good deal of the policy will be established by way of regulation and order in council. ... I find it inexcusable that the major, operative portion of legislation, which is embodied in regulations, is not available for members of the House of Commons to assess.94

The practice was not inconsequential for the situation of people with disabilities trying to immigrate. The criteria to establish whether or not a person's admittance "would cause or reasonably be expected to cause excessive demands on health or social services"95 were ultimately left in the hands of medical officers who would have decided outside of any political consideration. Mr. Holmes felt "somewhat uneasy that a medical officer would be given unlimited discretionary powers to make such a decision."96 He further remarked that "we have a different perception of a medical problem today as compared to 20, 30 or

40 years ago" and that "certain medical problems which may be considered inadmissible today, as epilepsy was in 1952, may appear archaic in the future with the advancement of medical technology."97 He explained his point by arguing,

It is not inconceivable that a medical officer in the future could deny admission to an immigrant on medical grounds and yet another medical officer could permit another individual with the same medical problem to enter Canada. This ... does point out the difficulties of giving unlimited discretionary powers to a medical officer during an era where there are rapid changes in medical technology . . .98

94 House of Commons Debates, 14 March 1977, 3955. 95 House of Commons Debates, 14 March 1977, 3955. 96 House of Commons Debates, 14 March 1977, 3955. 97 House of Commons Debates, 14 March 1977, 3955. 98 House of Commons Debates, 14 March 1977, 3955. 120

The 2001 Immigration and Refugee Protection Act does not exclude persons with

specific medical conditions but considers as inadmissible those who, according to a medical practitioner appointed by the state, are deemed likely to constitute an excessive burden on Canadian health and social services. Nevertheless, the discretionary powers

given the medical practitioner (today's equivalent of the medical officer of 1977) are still problematic: in many instances, it is a guess for any doctor to assess whether or not a medical condition which is under control at present will become significant in a period of

time from five to ten years. Not to mention the absurdity of 'scientifically' guessing what

will occur in a span of time when, today more than ever, predictability in the medical and

scientific fields has become a lost game. Unfortunately, as noticed in the previous

chapter, some in society continue to assume that science and medicine are infallible. As pointed out by Wendell in The Rejected Body, medicine has been given complete

authority to describe our bodies, thus meaning that the description is unquestioned and

generally accepted as truth. This authority, in turn, goes far beyond the medical field to

influence government decisions and society's attitudes towards persons with disabilities.

Medicine's authority over our bodies offers the illusion of control, in the process

reducing the body to a corpse rather than a living experience. It creates the perception

that there is no space of ignorance when it comes to medical assessments. Medicine's unwillingness to admit there are still illnesses and disabilities it cannot explain or cure results in patients paying a high price and being alienated from their own bodies."

99 Wendell 117, 120-29. 121

The following decade, the 1980s, represented an interesting and unique case for the particular issue at the centre of this study. Although the provision of the Immigration Act under consideration received very little attention in Parliament (the 1981-82 recession created an anti-immigrant backlash and this resulted in a decline in the number of immigrants accepted), something else of extreme importance happened, something that would have a dramatic impact for people with disabilities in general and, potentially, for immigrants with a disease, disorder or disability. The Canadian Charter of Rights and

Freedoms came into being as part of the Constitution Act of 1982. It replaced the

Canadian Bill of Rights passed in 1960 by the Diefenbaker government; whereas the latter was a simple law applying only to federal legislation, the Charter is part of the

Constitution and therefore applies to the federal as well as provincial governments, also empowering the court system to review and invalidate any law that is contrary to it. For the first time in Canadian history, art. 15 (1) of the Charter unequivocally stated that,

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.100

The Charter was reflective of a new attitude towards issues of equality and rights which went beyond the mere legal sphere to touch every aspect of society. We will deal more in depth with its effects within the larger society later on; for now, we should focus on the way the new impulse towards equality manifested itself in the discussions about immigration held in Parliament.

100 Canadian Charter of Rights and Freedoms, Constitution Act, 1982. 122

Looking at the debates which took place in both the House of Commons and Senate, it is readily apparent that the attention to rights which was developing within society had quickly penetrated the thick walls of the Parliament buildings in Ottawa. With respect to issues of disability, on March 29, 1983, the Senate gave second reading to Bill C-141, an

Act to amend the Canadian Human Rights Act. On that occasion, Hon. Royce Frith,

Deputy Leader of the Government, quoted excerpts from various submissions made two years earlier to the Special Committee on the Disabled and the Handicapped. Among others, the contribution from the Association of the Mentally Retarded reminded legislators of the importance of human rights and dignity, and warned about the risks of giving more importance to material progress than to human dignity. Even more pertinent was the discussion held in the House of Commons in 1985, around Bill C-27, an Act to amend certain Acts having regard to the Canadian Charter of Rights and Freedoms. In his intervention, Mr. Neil Young (Beaches, Ontario) from the NDP complained about the scarce opportunities given to people with disabilities within Canadian society. Taking as an example the fact that people with disabilities were usually considered as unsuitable to be employed in Canada's Armed Forces, Mr. Young expressed his strong disagreement with such assumption,

I see absolutely no reason why an individual who is confined to a wheelchair could not be employed by the Armed Forces in the communications area.... we must open our minds and stop assuming that a disabled person has every opportunity closed to them. Surely a better approach would be to consider how best we can assist a disabled person to fit into an employment field rather than putting up other barriers, preventing adequate employment opportunities for him and saying that his disability makes him unemployable in certain categories.101

101 House of Commons Debates, 28 March 1985, 3453. 123

Touching on the situation of persons with disabilities trying to immigrate to Canada and being rejected, he continued,

Our Government could set an example for other governments in the world by asking if it is fair to continue to deny a family the right to reunite simply because a child whom they were forced to leave in the country from which they emigrated happens to be developmentally handicapped - commonly referred to as mentally retarded - and the child would be a burden on the state in terms of health costs.102

The late 1980s were also the years in which, for the first time, petitions were brought in the House by Members of Parliament on behalf of their constituencies asking for a revision of the medical standards for immigrants. Significant were the petitions presented by Ms. Barbara Greene (Progressive Conservative, Don Valley North, Ontario) on June

8, 1989, and by Mr. Mac Harb (Liberal, Ottawa Centre) on December 15, 1989; both explained the need for a revision in terms of "compliance with the Canadian Charter of

Rights and Freedoms and the enhancement of the human rights and dignity of persons with disability."103 The circulation of these petitions signaled a new awareness among members of the disabled community with respect to the potential of the Charter in enhancing their rights and having them reflected in the legislation. With respect to people with a mental or physical disability attempting to immigrate to Canada, the Charter represents so far the most serious challenge to a provision that keeps discriminating against them. This is true since 1985 when the Singh decision taken by the Supreme

102 House of Commons Debates, 28 March 1985, 3453. 103 House of Commons Debates, 8 June 1989, 2751, and 15 December 1989, 7000. 124

Court established that everyone in Canada (non-citizens included) is entitled to the foil protection of the Charter.104

Following its passage, the number of parliamentary interventions where the inadmissibility of certain categories of immigrants was contested on the grounds that it violated art. 15(1) of the Charter increased dramatically. On June 19, 1992, for instance, while discussing Canadian immigration policy, Mr. Warren Allmand (Liberal, Notre-

Dame-de-Grace, Quebec) reminded the audience that one of its objectives was "to ensure that any person who seeks admission to Canada is not discriminated against in a manner which is inconsistent with our Charter of Rights."105 The year 1992 witnessed quite a lot of debate around issues of immigration and particularly around the clause of medical inadmissibility contained in the Immigration Act. On June 8, 1992, during discussion around Bill C-78, an Act to amend certain Acts with respect to persons with disabilities,

Mr. Rod Murphy (NDP, Churchill, Manitoba) asked for the repeal of section 19(1) of the

Immigration Act which "prevents most persons with disabilities from getting landed immigrant status and from entering Canada."106 In providing a rationale for his request,

Mr. Murphy explained that, "this provision alone serves to perpetuate the misconceptions and misunderstandings about the abilities of disabled persons."107 His request got the endorsement of other Members of Parliament; Mr. Ronald J. Duhamel (Liberal, St.

Boniface, Manitoba), though recognizing that, "[it] is not always easy to look as openly as one might at immigrants who might have certain handicaps and bring them into

104 Whitaker 23. 105 House of Commons Debates, 19 June 1992,12466. 106 House of Commons Debates, 8 June 1992, 11550. 107 House of Commons Debates, 8 June 1992, 11550. 125

Canada,"108 was willing to admit that "not all people with handicaps are a burden to the state. Quite the contrary, they can and often do make major contributions."109 The same concept was reiterated by Mrs. Beryl Gaffney (Liberal, Nepean, Ontario) who condemned the act for failing to acknowledge that "many persons with disabilities are able to be productive members of society and that they are eager to make a meaningful contribution to the Canadian economy."110 The fact that these topics were even discussed in Parliament in a decade that was marked by the desire for fiscal conservatism and restraint in government spending, speaks volume about the impact that the Charter as well as growing advocacy movements for the disabled community were having on

Canadian society.

Similar statements were made during the debate which took place few days later around Bill C-86, a Measure to Amend the Immigration Act. The bill touched on many different issues related to immigration, from the suggested requirement that immigrants settle in certain regions and provinces to changes to the health provision of admissibility.

Intervening in the debate, Mr. Warren Allmand reminded his colleagues that one of the goals of the Act was to eliminate any provision which could be used to discriminate among people "in a manner which is inconsistent with our Charter of Rights."111 He went on adding that,

We all want the best immigrants, but we all know as well that the term the best can be interpreted in many ways. It can be interpreted in a very subjective way and in a political way. We do not want that. . . . We want the best but we want

108 House of Commons Debates, 8 June 1992, 11580. 109 House of Commons Debates, 8 June 1992, 11580. 110 House of Commons Debates, 8 June 1992, 11584. 111 House of Commons Debates, 19 June 1992, 12466. 126

them chosen against rules and criteria . . . which correspond to the goals of our immigration policy that I referred to at the beginning of my remarks.112

In Senate as well, during the discussion on Bill C-86, the medical inadmissibility clause came under attack by some Senators who saw it as violating the principles embodied in the Charter. One of the strongest voices of opposition was found in Senator Mark Lome

Bonnell (Liberal, Prince Edward Island) who warned,

. . . even with the amendments to section 19(1) which remove references to "disease[sic], "disorders" and "disability", the term "excessive demand" in reference to health and social services, could exclude persons with disabilities. This is intolerable. . . . The international community considers Canada to be a caring nation. It is time our actions fulfilled our commitments to the protection of human rights.113

Bill C-86 was then brought in committee where the opinions of experts were also heard and politicians had the chance to ask questions in order to have a better picture of the whole situation, both in the past and at present. The insights given from a number of representatives of different organizations dealing with disabled people and immigrants are helpful in achieving a deeper understanding of the issue. Since the early stages in the consideration of the bill, the discussion was quite heated. On July 27, 1992, while the committee was looking at the changes to the admissibility clause, Mr. Allmand started his intervention by pointing out that before any further consideration, the Act should clearly state whether "the purpose of the changes is to deal with health problems that you're trying to correct or with financial problems in respect to our health and social services."114 Considering that under the Act medical officers would have been given

112 House of Commons Debates, 19 June 1992, 12469. 113 Senate Debates, 15 December 1992, 2447-48. 114 Bill C-86/Projet de loi C-86, 2:13. 127

authority to assess whether the admission of an individual represented an excessive demand for the health and social services, Mr. Allmand wondered whether the provision made sense at all. In his own words, "The medical officer is trained to deal with health problems and not financial problems,"115 accordingly, "how can you ask a medical officer to deal with questions of financial services and the impact on the services of the country?"116

Despite the soundness of the query, no answer was provided and the attention got shifted by the government to the fact that Bill C-86 was going to represent a major change of attitude in Canadian immigration since, while still rightly protecting the population, it was also adopting a fairer and less judgmental approach towards people with medical illnesses or disabilities. Mr. Brian Grant, Director of the Control Policy within the Department of Employment and Immigration, made the point when he reminded the audience that, "When we speak about control and screening people as they come into the country, we are essentially no different from any other sovereign state."117

At the same time, he praised the system for,

We have removed the reference to disability from the act to address the perception that the act discriminates against a group of people or individuals. We have also removed the reference to disease, disorder or health impairment. . .us

For what concerned accusations that the definition of 'excessive demand' was too vague, he replied by saying that that was not the case since,

115 Bill C-86/Projet de loi C-86, 2:13. 116 Bill C-86/Projet de loi C-86,2:13. 117 Bill C-86/Projet de loi C-86, 3:46. 118 Bill C-86/Projet de loi C-86, 3:52. 128

The definition itself ... is in regulation 22. ... It speaks of the availability of services, of the accessibility of services, whether Canadians are lined up, whether they would be displaced if somebody were brought in requiring that service, and the cost of that service. We propose to develop in regulations a list of services that are either not available or that are in critical short supply in the country . . . We are also looking at developing a factor to deal with cost. The notion behind cost would be that the person might require a number of services, none of which are on the list of services in critical short supply, but all of which might amount to a considerable sum of money.119

After the government's presentation, several experts from various organizations were

called in to give their opinions and express concerns. Among them, Mr. Jim Derksen,

President of the Canadian Disability Rights Council, a group organized by the Coalition

of Provincial Organizations of the Handicapped (now Council of Canadians with

Disabilities) to defend the rights of people with disabilities in compliance with Charter jurisprudence, declared his dissatisfaction with the new bill. According to Mr. Derksen,

The actual impediments in the act that discriminate against people with disabilities have antecedents that go back to ... 1869.. . . The actual functioning of that Immigration Act of 1869 has not really changed with the various immigration acts under which we live today, and, we would submit, with the amendments being proposed. The assumption still is that people with disabilities will be an undue burden on society.120

The same feeling of inadequacy was highlighted by Ms. Yvonne Peters, Executive

Director of the Canadian Disability Rights Council. Ms. Peters went further and presented a detailed critique of the suggested amendments. According to her,

First and foremost, section 19 of the act . . . conveys the message that the participation of people with disabilities in our society is not welcomed, is not

119 Bill C-86/Projet de loi C-86, 3:53. 120 Bill C-86/ Projet de loi C-86,4:80. 129

valued . . . from a symbolic sense, disabled Canadians perceive that they are less valuable than other citizens in Canadian society.121

Furthermore,

Canada holds itself out as a leader in promoting human rights in the international arena. Canada ... is a signator to a host of international agreements and instruments that profess its commitment to uphold and respect various human rights principles. . . . they include the Universal Declaration of Human Rights and Canada's willingness to declare the Decade of the Disabled, which was promoted by the United Nations, and so on. It is therefore ironic that Canada would continue to give credence to a law that is so patently offensive and invidious to people with disabilities.122

She proceeded to an exhausting critique of the amendment, going through it point by point. The analysis began targeting the "explicit reference to disability."123 Though admitting that the move represented an improvement from previous legislation insofar as it "eliminates evidence of overt discrimination,"124 it did not go far enough as "it maintains the ability to discriminate adversely against people with disabilities."125 Indeed,

"removing the word disability does little to reassure people with disabilities that the section . . . will not be used to continue to exclude people with disabilities from

1 immigrating to Canada." Whether disability was mentioned or not, "the admissibility of people with disabilities into Canada is couched in what we believe are negative terms of danger to public health and safety and excessive demand on health and social

121 Bill C-86/ Projet de loi C-86,4:81. 122 Bill C-86/ Prjet de loi C-86, 4:81-82, 123 Bill C-86/Projet de loi C-86,4:82. 124 Bill C-86/Projet de loi C-86,4:82. 125 Bill C-86/Projet de loi C-86, 4:82. 126 Bill C-86/Projet de loi C-86, 4:82. 130

197 services." Accordingly, "it is the perceived cost side of the disability that is assessed and not the benefit side that is also assessed."128

A second point worthy of consideration was the fact that historically the different versions of the Immigration Act had tended to include people with disabilities within the exclusionary clause. The proposed amendment was no different from its predecessors and resulted from "very archaic laws introduced at a time when people with disabilities were systematically isolated from mainstream society and regarded as social outcasts."129 Even more troubling was the decision of having two doctors assess whether the perspective immigrant should or should not be allowed in. As Ms. Peters noted,

The disability rights community has argued for years that the medical profession is notoriously ill-equipped to assess the abilities and to evaluate the potential contribution of an applicant with a disability to our society. The medical profession tends to operate from a diagnose and treatment model and certainly not from a rights-based perspective.130

When considering that those same doctors had repeatedly counseled women carrying disabled fetuses to abort or parents of disabled children to place them in institutions, it was no surprise to hear that the disabled community was shaken by the proposal of having the medical profession decide "who is a worthy candidate to get into Canada and

131 who is not." In order to "get away from the medical model" and move towards a more acceptable "human rights model,"132 the Canadian Disability Rights Council suggested

127 Bill C-86/Projet de loi C-86,4:82. 128 Bill C-86/Projet de loi C-86,4:82. 129 Bill C-86/Projet de loi C-86,4:82. 130 Bill C-86/Projet de loi C-86,4:83. 131 Bill C-86/Projet de loi C-86,4:83. 132 Bill C-86/Projet de loi C-86,4:84. 131

the alternative "of a three-person committee that would review the physicians' decisions and would ensure that human rights and equality rights were upheld and respected."133

The following speaker to address the committee was Ms. Diane Richler, Executive

Director for the Canadian Association for Community Living, a Canada-wide charitable organization of family members and others working to improve the lives of persons with mental disabilities. Although her intervention was not as comprehensive as the one by

Ms. Peters, she raised the issue of what kind of image Canada wanted to present to the international community. As she explained,

... for many future Canadians the first experience they have of what Canada is like as a country, what the values are, ... is what they experience when they apply to Canada as immigrants. Unfortunately, for families who have a member who has a disability, the messages that are sent . . . are very, very negative. . . . People are made to feel that being disabled or being related to a person with a disability is a crime in Canada. Certainly, I don't think that is something we want to perpetuate. 134

Ms. Richler was then followed by the Secretary of the Canadian Disability Rights

Council, Mr. Jerome Di Giovanni. Mr. Di Giovanni also represented the Quebec Multi- ethnic Association for the Integration of Handicapped People (Association multi-ethnique pour l'integration des personnes handicappee du Quebec), a non-profit organization formed of people with disabilities and parents of people with disabilities, which was created with the goal of fighting the provisions of the Immigration Act affecting disabled persons. Calling section 19(l)(a) "offensive and discriminatory," Mr. Di Giovanni

133 Bill C-86/Projet de loi C-86, 4:84. 134 Bill C-86/Projet de loi C-86, 4:85-86. 132

demanded its withdrawal. He proceeded to contest the concept of 'excessive burden' contained in the act as,

. . . [it] is a paranoid concept. No government, be it Conservative or Liberal, has ever managed to demonstrate that disabled persons were an excessive burden on Canadian society.

As stated in the "Brief to the proposed amendments" submitted by the Canadian

Disability Rights Council,

. . . there is no data on the rate of use of "health and social" services by immigrants generally as compared to the Canadian population at large - let alone on the rate of usage by immigrants with disabilities. Until a comprehensive study is conducted on this subject, "excessive demand" should not be used as the statutory test for exclusion.136

More importantly, the Brief argued that,

... the assumption of "excessive demand" is systematically used to exclude persons with disabilities while applicants of high health risk categories such as smokers, heavy drinkers and high-stress workaholics are not assessed on the same basis. So "cost arguments" are being used selectively to exclude only certain categories of applicants - among them, persons with disabilities."137

In order to make his point clear, the speaker referred to the example of Mr. Maurice

Lwambwa Tshany, who was in a wheelchair and fighting with the authorities to be accepted as landed immigrant in Canada. Describing the life and accomplishments of

Lwambwa Tshany, Mr. Di Giovanni explained,

Maurice Lwambwa Tshany is an artist. He has opened his own workshop in Montreal. You can see how this makes him an excessive burden for Canadian society. Maurice Lwambwa Tshany teaches pottery and African art to young

135 Bill C-86/Projet de loi C-86, 4:88. 136 Bill C-86/ Projet de loi C-86,4A: 106. 537 Bill C-86/Projet de loi C-86, 4A:94. 133

Canadian men and women in Montreal. That certainly makes him an excessive burden on Canadian society. There were exhibitions of Maurice Lwambwa Tshany's works in Vancouver ... in the Maritimes, in Montreal and in Europe. That surely makes him an excessive burden for Canadian society. Maurice Lwambwa Tshany sits on the board of the Multi-ethnic Association for the Handicapped People. That surely makes him an excessive burden. . . . Maurice Lwambwa Tshany decided to take an active part in the cultural, social and economic development of our society. And yet, Maurice Twambwa Tshany will soon be expelled from Canada. Why? Because he has a physical disability, because he is in a wheelchair.138

After Mr. Di Giovanni's presentation, the stand went to the last speaker for the day,

Mr. Gerry MacDonald, Vice-Chair of the Coalition of Provincial Organizations of the

Handicapped (today Council of Canadians with Disabilities), a group bringing together provincial disability organizations in order to advance disability rights and develop a more inclusive society. He began his intervention underlying that although "Canada has the right of sovereignty and can decide who will and who can cross its borders,"139 he saw as problematic the fact that the section under scrutiny seemed to patently contravene article 15(1) of the Charter which guaranteed "the right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability."140 The inconsistency was apparent once considering that, according to paragraph 3(f) of the Immigration Act,

Any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate in any manner inconsistent with the Canadian Charter of Rights and Freedoms.141

138 Bill C-86/Projet de loi C-86,4:88-89. 139 Bill C-86/Projet de loi C-86,4:90. 140 Bill C-86/Projet de loi C-86,4:90. 141 Bill C-86/Projet de loi C-86,4:90. 134

As pointed out in the "Brief to the proposed amendments," the paragraph meant that

"there can be no discrimination against immigration applicants with disabilities (and refugees) at any point in the application process."142 Furthermore, Mr. MacDonald highlighted another element of contention in the decision to rely exclusively on two medical practitioners when assessing immigrants with disabilities. He asked those present to reflect on the soundness of such a decision, thus inviting everyone to consider: "How do you suffer from a disability? How do you judge the future potential ability of a person with a disability to be independent and self-sufficient through a medical examination?"143

Before opening to questions from the Committee, the last word was left to Mr.

Derksen who concluded with an anecdote and a reflection for all those who had entered the room thinking of disability as a burden. Talking of his experience as an advocate for disability issues in Parliament over the previous decade or so, he remembered,

I met Paul Martin, Sr. once and we had a great chat. I found out that he had a disability similar to my own - polio, once very common but now not common among younger people in Canada. I should say I don't think Paul Martin or I have ever been an undue burden on social services or medical systems in this country. 144

Reactions to the statement are not recorded but it is not difficult to imagine it touched a chord with many of those listening. From an academic perspective, it invites scholars to focus their attention on the reasons motivating society to define immigrants as 'others', people who do not stand a chance when compared to those who belong. Society systematically tends to assess 'outsiders' based on a whole different set of criteria. In the

142 Bill C-86/Projet de loi C-86,4A:79. 143 Bill C-86/Projet de loi C-86,4A:79. 144 Bill C-86/Projet de loi C-86,4:91. 135

mind of a Canadian citizen, it would not make sense to think of Paul Martin Sr. as a burden, but is the same true for a non-Canadian? And yet, there is a refusal to admit that society operates under these assumptions. We spend energies and time justifying ourselves in a weird process of self-denial which refuses to recognize the basic truth that immigrants are still "strangers within our gates."145

After meeting representatives of social organizations, the committee heard from various government officials working in sectors related to the administration of the

Immigration Act. These bureaucrats attempted to clarify the whole process in place with respect to the assessment of immigrants and provided a supporting rationale for the acceptance of the proposed amendments. Dr. Neil Heywood, Assistant Director at the

Immigration and Overseas Health Services within the Department of Health and Welfare, reiterated that the amendment consisting in the removal of the words "disease, disorder, disability or other health impairment" represented an unquestionable improvement since it eliminated the "perception of inequality" and "potentially offensive terminology while leaving the effective elements of the medical assessment process."146 In other words, his statement validated what previous speakers had identified as a camouflage allowing the state to keep discriminating against people with disabilities though using a more nuanced language. Words were changed but the result was the same. Mr. Heywood also attempted to disperse the perception that the Act operated to automatically exclude people with disabilities from immigrating to Canada. As he explained,

145 James S. Woodsworth, Strangers Within Our Gates (Toronto: University of Toronto Press, 1909). 146 Bill C-86/Projet de loi C-86, 6: 6. 136

Each applicant is assessed individually ... An applicant may be determined to be unlikely to create excessive demands on health or social services and be capable of employment and self-support, in which case she or he will be medically admissible.147

This brings us back to the concerns expressed by Ms. Peters and Mr. MacDonald regarding the fact that two medical practitioners were given the authority to decide on something they had no expertise on, namely whether or not the individual might have been capable of employment and self-support.

It is worth noticing that when confronted with the issue, Dr. Gilles Fortin, Acting

Director at the Immigration and Overseas Health Services within Health and Welfare

Canada, replied that actually his department merely provided advice to the officials of the

Immigration Department. The latter had the final word and, therefore, the responsibility to take into account other factors such as "social consideration, family considerations, economic considerations."148 However, when pressed to explain if Health and Welfare physicians had the power to stop someone from coming into the country, he admitted,

Well, we say to the immigration department that under section 19 of the Immigration Act there is enough medical evidence here to suggest that this person is medically inadmissible.149

At the same time, he clarified that the Immigration Department had the authority of "by- passing these medical restrictions by providing the applicant with a minister's permit."150

The statement was a validation of the fears expressed by the Canadian Disability Rights

Council in the "Brief to the proposed amendments." In the document, the department was

147 Bill C-86/Projet de loi C-86, 6: 6. 148 Bill C-86/Projet de loi C-86, 6: 17. 149 Bill C-86/Projet de loi C-86, 6: 17. 150 Bill C-86/Projet de loi C-86, 6: 17. 137

accused of abusing the issuance of permits and the whole practice was subject to severe criticism. Indeed,

While ostensibly they [ministerial permits] are used to alleviate hardship in individual situations, it must be remembered that the hardship is the result of a discriminatory practice in the first place. Secondly, their use perpetuates systemic discrimination against immigration applicants with disabilities by serving as the main weapon in a strategy to "challenge-proof' an unconstitutional law . . . Thirdly, the current use of Minister's Permits, reinforces the idea that persons with disabilities are exceptions - requiring "special" not equal treatment.151

While the second point presented in the Brief will be examined more in details in the chapter "The medical inadmissibility provision in the Federal and Supreme Courts of

Canada", the other issues are in direct relation with the statement made by Mr. Fortin, thereby confirming that ministerial permits represented the exception whereas the medical assessment remained the 'measuring stick' in deciding who could be admitted into Canada.

Speeches from critics and supporters of the proposed amendments presented the committee with two opposing but partial views. In order to hear a more balanced opinion, additional experts were called in. Among them, Dr. Nicholas Birkett, Associate Professor in the Department of Epidemiology and Community Medicine at the University of

Ottawa and member of the Canadian Public Health Association. His intervention began with a discussion around the imagined or real threat to public health and safety represented by some categories of immigrants. After arguing that, in his opinion, the

151 Bill C-86/Projet de loi C-86,4A: 100. 138

"threat to the Canadian public is low,"152 he proceeded to focus on the concept of

excessive demand. Against fears that "immigrants are going to deprive Canadians of their health and social benefits," Dr. Birkett stated that,

There is no evidence that this is the case. On the contrary, data from a number of studies suggested that immigrants actually make lower demands on health and social services than do non-immigrants. In many cases this occurs because immigrants make use of lower-cost alternatives and volunteers.153

Although recognizing that the system was under pressure, he refused to put the blame on

immigrants while instead identifying the main causes of the crisis as coming,

. .. from our aging population, from the insistence of both the general population and physicians on the need for high-tech medicine, on heroic attempts to save dying patients, and on the high unemployment rates .. ,154

The same consideration was made by Dr. Pran Manga, Chairman of the Department of

Health Care Administration at the University of Ottawa. He explained,

There are, indeed, a good number of multicultural health studies in Canada that show immigrants do not visit doctors as often as they should. They do not use a whole variety of other health services as frequently and to the same extent as non-immigrants, meaning Canadians.155

He noticed that the phenomenon was the result of a number of different factors. Among

others,

The extended family idea is one. They look after themselves more. There are also differences in values. There are lots of immigrants who would walk around in pain rather than go to the GP or the clinic . . . They have different concepts of what it means to be ill or not well. There are linguistic barriers. There are cultural

152 Bill C-86/Projet de loi C-86,11:9. 153 Bill C-86/Projet de loi C-86, 11:9. 154 Bill C-86/Projet de loi C-86, 11:10. 155 Bill C-86/Projet de loi C-86, 11:16. 139

barriers. There are barriers of economics, meaning the poor immigrants are not likely to go to doctors who are far away.156

Dr. Manga added that the exclusive focus on the immigrants' health cost was actually part of a much bigger picture. As he stated,

You're looking at only one dimension of immigrants. We're [immigrants] also workers. We also contribute to Canadian life economically, socially, politically and in other ways.157

Such a statement found Dr. Birkett wondering,

. . . how do we assess offsetting benefits? Immigrants pay taxes when they enter Canada. They also contribute to the general economy and the status of Canada around the world. How do we determine if the investment of up-front medical costs is balanced by the future potential of an individual?158

There were further questions to be asked. For instance, in the way excessive demand was going to be measured, whether in terms of dollars or looking at the availability of health services. If the latter was the case,

. . . how widely do we set our net? One example would be that there have been some predictions ... of a serious shortfall in the availability of cancer treatment facilities in Ontario. An immigrant who has smoked heavily for 20 years would have a high risk of developing cancer. Do we exclude this person from immigration on the grounds that there is a reasonable expectation that they would be demanding a limited resource?159

Also important was the issue of unconstitutionality of the provision excluding immigrants with disabilities. As Dr. Birkett pointed out,

156 Bill C-86/Projet de loi C-86,11:17. 157 Bill C-86/Projet de loi C-86,11:17. 158 Bill C-86/Projet de loi C-86, 11:10. 159 Bill C-86/Projet de loi C-86, 11:10. 140

... to deny people immigration solely on the basis of a disability would, in our opinion, be a violation of the Charter of Rights and Freedoms, which this act is subject to, as well as being an inhumane procedure.160

Dr. Birkett was then confronted with the question of how to balance these concerns with the concrete possibility of having to spend considerable amounts of money caring for disabled or diseased immigrants. A member of the committee, Mr. D.J.M. Heap (NDP,

Trinity - Spadina, Ontario), reminded him of the existence of "few horror stories"161 which had taken place in Canada. The doctor replied that those stories represented mere

"anecdotal cases" and that a general policy "should be based on the totality of the system rather than on one individual case."162 Trying to clarify his position, he drew on the example of the existing welfare system, arguing that,

It is like saying we should not have welfare because a case can be found of somebody who has committed welfare fraud. That's wrong; he shouldn't commit welfare fraud, obviously, but that doesn't mean the system is inappropriate and should be changed.163

Furthermore, Dr. Birkett pointed out that one main element got usually ignored when dealing with the issue: the number of people with disabilities trying to enter Canada was quite limited and, accordingly, the costs were not overwhelming. As he explained,

There are 1989 statistics that were released by Employment and Immigration. Only . . . about 0.25% of the applicants, were deemed to be medically permanently inadmissible under the criteria in existence at that time . . . We're not talking about the system screening out large numbers of people who would flood into Canada.164

160 Bill C-86/Projet de loi C-86,11:20. 161 Bill C-86/Projet de loi C-86,11:20. 162 Bill C-86/Projet de loi C-86,11:20. 163 Bill C-86/Projet de loi C-86, 11:20. 564 Bill C-86/Projet d loi C-86, 11:21. 141

In addition,

. . . health is only one aspect of the requirements to immigrate to Canada, and somebody who is in fact at death's door, who is going to require major costs, would be unlikely to meet the other criteria that would be set unless there are humanitarian reasons or family reunification or some such arrangement, in which case the humanitarian considerations might outweigh the costs.1 5

Dr. Birkett concluded his intervention wondering whether immigrants with disabilities were actually kept out of the country because politicians believed, despite the lack of concrete evidence, they were going to represent a significant cost for the system. His impression was a different one and pointed to the suspicion that immigrants with disabilities were simply used as an easy target and a scapegoat for a health care system that was becoming untenable. As he argued in his final remarks,

I fear greatly ... that immigrants could become a scapegoat if we are not careful, and that we could use them as a way of saying, look, we're doing something to keep health care costs down, because we're not letting immigrants come in and they would steal and use all our health care resources. I don't think that is a fair characterization.166

In choosing to present voices that were overall critical of the government's decisions, this study does not suggest the existence of a clear-cut opposition between good guys and bad guys, between those who worked and cared for the disabled community and politicians. As we have seen throughout the chapter, several political figures stepped up throughout the years condemning policies that were perceived as discriminatory towards immigrants with disabilities. Nonetheless, the existence of political voices in either partial or complete disagreement did not obscure the fact that, in order to be kept in place,

165 Bill C-86/Projet d loi C-86, 11:21. 166 Bill C-86/Projet de loi C-86, 11: 24. 142

the medical inadmissibility clause constantly received the support of the majority in both

Houses. Concerns for the threat that potential immigrants with disabilities could cause to the Canadian health system were shared, with small variations, by members of all political parties. On February 2, 1994, though not in direct reference to the issue of people with disabilities but talking more generally about Canadian policy of immigration,

Mr. Art Hanger (Reform Party, Calgary Northeast, Alberta) wondered,

The government in its red book states that we must take humanitarianism and compassion into account in our immigration policy. We are already being more compassionate than any other nation in the world. Is it not fair to demand that this compassion be mated with practicality and a consideration of the other needs in the country?167

Echoing his concerns, but looking at them from a Liberal perspective, Sergio Marchi,

Minister of Citizenship and Immigration, remarked on June 7, 1994, "while our system is

second to none in the world, its resources are limited and involve the provinces."168 From the Minister's point of view, the issue consisted in trying "to balance compassion and the whole question of being fiscally responsible in terms of a viable health care system across the country."169 It was quite unfortunate that such a balance was never achieved and

Canadian immigration policy continued to give more attention to the latter, thus keeping the former just at the level of good intentions. It might be helpful to keep in mind that

from the early-mid 1990s Canada reaffirmed once again its commitment to attract only immigrants considered viable under the economic profile, thus implementing measures

167 House of Commons Debates, 2 February 1994, 803. 168 House of Commons Debates, 7 June 1994, 4949. 169 House of Commons Debates, 1 June 1994, 4949. 143

aimed at reducing the number of immigrants accepted under the family class while increasing the number of worker immigrants.170

It is not surprising then that the confrontation between the advocates of a more humanitarian legislation and those who saw themselves as the defenders of the Canadian system reached its culmination in the early 1990s when HIV and AIDS, a problem western countries had ignored for years, relegating it to the 'Third World' and to the

'rejected' of society (such as homosexuals and drug users), abruptly came to knock at the door. Suddenly, Canada and other industrialized countries realized that so called productive members of their societies were not immune from HIV and AIDS. Therefore, an effective strategy had to be implemented in order to limit its impact and catastrophic consequences. While it would have been wiser to concentrate all the attention and economic effort on prevention and education among the population, often people do not search for what is wise but merely look for what is helpful in the immediate to divert their fears. And who better to serve the purpose than immigrants in a country that since its creation had used them as scapegoat every time the occasion had arisen? Once more, immigrants became the preferred target for those who wanted to believe the 'plague of the century' could be stopped at the border with a simple blood test identifying the culprits and keeping them out of the country. On April 15, 1994, Mr. Art Hanger denounced to his fellow parliamentarians that no HIV test was required for the purpose of immigrating to Canada. He asked the Minister of Citizenship and Immigration, "Why is the minister's department not testing each and every immigration applicant for HIV and

170 Alan Simmons, "Immigration Policy: Imagined Futures," Immigrant Canada: Demographic, Economic and Social Challenges, eds. Shiva Halli and Leo Driedger (Toronto: University of Toronto Press, 1999) 41. 144

why are we letting these people into Canada?"171 He did not hide his outrage for the fact that such a state of affairs was left untouched, especially since "the minister cannot deny that HIV infected immigrants are a threat to our already overburdened health care system."172

Mr. Hangar did not stop there and, on September 23, 1994, brought to the attention of

Parliament a motion "to require the regulation of HIV testing for all applicants for immigration and the barring of those who test positive for HIV and AIDS from immigration to Canada." In providing a rationale for the motion, he pointed out,

Should someone come to Canada infected with HIV, we the taxpayers are looking to a minimum cost of $200,000. That is a minimum cost to treat each patient until death. That is a cost we cannot bear.174

He also explained to his fellow colleagues that "the voting against this measure will cost

175 votes" since, according to the results of a poll conducted by the immigration association the previous summer, the majority of Canadians contacted (but no mention is made about the criteria for selection nor the language the question was framed) were in favour of such a change. If "acting on the will of the Canadian people" was not enough, he reminded the House that "There is also the matter of doing what is best, doing what is right and doing what makes sense."176 In order to eliminate AIDS from Canada, the only viable option was "preventing those who carry this disease from coming into Canada."177

171 House of Commons Debates, 15 April 1994, 3102. 172 House of Commons Debates, 15 April 1994,3102. 173 House of Commons Debates, 23 September 1994, 6104. 174 House of Commons Debates, 23 September 1994, 6105. 175 House of Commons Debates, 23 September 1994, 6105. 176 House of Commons Debates, 23 September 1994, 6105. 177 House of Commons Debates, 23 September 1994,6105. 145

Replying to accusations of discrimination against those with HIV who were attempting to immigrate into the country, Mr. Hanger stated that as far as he was concerned, the priority was to protect the interests of those already in Canada. He argued that, "We would be doing a grave injustice to our electorate if we were to hold any priority above its protection and the protection of the services the government administers for it."178 Using the same tone of the speech made almost fifty years earlier by Mackenzie

King, he noted,

Canada has no moral burden to accept everyone ... We as legislators have a duty to ensure that only the best, only the most fit and only the most productive come to the country as immigrants. We have a duty to protect our constituents.179

Mr. Hanger concluded,

When implemented the motion would be a significant step in the war on AIDS. No one loses. Everyone gains. The people of Canada gain increased safety and a lowering of the burden on our medical system. Legislators gain by voting on an overwhelming popular initiative. . . . Immigrants gain by having the status of their health thoroughly checked.180

Further explaining the last point, he went on adding,

While we will stop them from coming to Canada as immigrants, at the same time we could very well be providing an invaluable test and invaluable information to hundreds or thousands of people who may not know they are infected. We are not doing a disservice to those who are infected since their fate, I am afraid, is certain. However, we could unintentionally be doing a service to those who are infected but do not know it.181

178 House of Commons Debates, 23 September 1994, 6106. 179 House of Commons Debates, 23 September 1994, 6106. 180 House of Commons Debates, 23 September 1994, 6106. 181 House of Commons Debates, 23 September 1994,6106. 146

This kind of argument reveals how the public discourse set up by parliamentarians eluded ethical considerations while responding only to issues of practical convenience. No doubt, whereas politicians have usually tried to present Canada as a compassionate country, their talk often appears just coverage to gain status with the international community and enlarge self-complacency among public opinion. When it comes to its own community, and as pointed out by Paquet in Tracer les marges de la cite, Canada has traditionally considered utility the main criterion of inclusion/exclusion.182 This is however not peculiar to Canada as the state, any state, assesses 'right' and 'wrong' in terms of usefulness and un-usefulness, not in terms of 'good' and 'bad'.

Among the replies to Mr. Hanger's intervention, particularly articulate and providing a synthetic though complete summary on the history of Canadian immigration policy was the one by Ms. Mary Clancy, Parliamentary Secretary to the Minister of Citizenship and

Immigration. The author of this study does not share Ms. Clancy's position on the issue, which she made very unequivocal when stating "I appreciate the concern expressed about not imposing an excessive burden on our country's social and health services. This is a priority for the department of immigration and for the minister."183 At the same time, however, the Parliamentary Secretary carried out a well-done and worth repeating overall history of the country's stance on the subject of inadmissibility of people with disabilities. She began her analysis with a look at the Immigration Act of 1952, whose objective was "protecting public health and safety" and which "listed various diseases and deficiencies that in themselves constituted sufficient ground to deny someone

182 Paquet 142-43. 183 House of Commons Debates, 23 September 1994, 6107. 147

admission to Canada."184 The new Act proclaimed in 1978 marked a "considerable progress over the old act, especially with respect to medical grounds for exclusion" and introduced two relevant changes:

First, the criterion of excessive demand was added. This measure was intended to protect the universal health insurance system that had been created nine years earlier. It was designed to protect the system from becoming overrun by people who had not paid into the system. Second, the list of illnesses and deficiencies that automatically made a person ineligible was eliminated. Inadmissibility was now decided by medical officers.185

The summary was accurate though it failed to take into consideration the fact that, while a medical officer might have been able to assess whether or not someone was going to represent an excessive expense, he was hardly in a position to determine what other positive contributions that same person would be bringing to the new country.

Furthermore, the whole concept of "excessive demand" was left up in the air. When talking of a provision affecting the lives of real people, it seems problematic that such a definition is not included in the Act itself but merely mentioned in the accompanying regulations.

The issue was not exhausted in the space of one meeting but continued to receive attention in the following days and months with contributions both supporting and opposing the motion requiring HIV testing for all immigration applicants and the exclusion of those who tested positive. Among the opponents, Mrs. Pauline Picard

(Drummond, Quebec) from the Bloc Quebecois (the party as a whole rejected the motion), referring to the intervention made by Mr. Hanger, pointed out,

184 House of Commons Debates, 23 September 1994, 6107. 185 House of Commons Debates, 23 September 1994, 6107. 148

In his September 23 speech the Hon. Member continues to surprise us by saying: "When implemented the motion would be a significant step in the war on AIDS". This shows how little my colleague knows about AIDS. AIDS is an international plague that hits indiscriminately without sparing any society, culture or country.186

She went on by stating that,

We in the Bloc Quebecois reject this attitude of denigrating and attacking everything one fears or does not understand; of closing our minds instead of opening them; of telling Canadians: "Let us keep our heads in the sand and maybe when we stick our heads out again, the AIDS problem will be gone and we will be spared".187

Also opposing the motion was the Liberal member from Thunder Bay - Atikokan, Mr.

Stan Dromsky, who attacked the whole approach to immigration contained in the Act.

Reflecting on the present situation, he noted that, "Current Canadian immigration policy focuses too much on a person's disability and fails to take into account his or her ability to contribute to society."188 The point was well taken: though the medical opinion is meant to be just part of a more general process of assessment which rests with immigration authorities, too often it ends up being relied upon and is the only one taken into account, to the detriment of many potential immigrants who, disability or not, may have other contributions to make to society.

Supporters of the motion were no less vocal. Responding to critics, Mr. Keith Martin

(Reform Party, Equimalt-Juan de Fuca, British Columbia) made clear that,

186 House of Commons Debates, 24 October 1994, 7065. 187 House of Commons Debates, 24 October 1994, 7066. 188 House of Commons Debates, 24 October 1994, 7067. 149

This is obviously a politically protected disease. We feel sorry for anybody who is HIV positive and has AIDS. But let it be known that we cannot compromise the health and welfare of Canadians.189

Admitting that from his perspective the financial protection of the Canadian taxpayer overrode any concerns for other people's lives, he continued,

... it is expensive to treat somebody who is HIV positive. They do have a series of blood tests . . . and we give them medications . . . Due to better drugs and better treatment modalities and prophylactic treatments we can use this material to lengthen people's lives. This actually increases the cost to our health system, one that I would say is falling apart at the seams, one that does not have any money. ... we are going to have 30,000 more people with AIDS. How much is this going to cost the Canadian taxpayers?190

What a misfortune for the taxpayer that medical science had progressed so much!

The issue at stake did not just concern people with HIV and AIDS but more generally all those who were not deemed 'good enough' for Canada. In his speech in support of the motion, Mr. Philip Mayfield (Cariboo-Chilcotin, British Columbia) of the Reform Party recalled the way the country had historically dealt with diseased immigrants coming to

Canadian shores, forcing them to a quarantine period on the Quebec island of Grosse-Ile.

It is quite odd that what history books now regard as a dark chapter in the country's past came to be celebrated by a Member of Parliament as a place that "served the purpose of protecting the Canadian population."191 Mr. Mayfield concluded saying that protection of

Canadians "was the guiding principle then and it must remain the guiding principle for

189 House of Commons Debates, 24 October 1994, 7067. 190 House of Commons Debates, 24 October 1994, 7068. 191 House of Commons Debates, 24 October 1994, 7071. 150

our immigration officials today."192 He also added that even not taking into account reasons of physical protection against infections and lethal diseases,

There are other factors to consider. Canada's taxpayer funded health care system is available to all citizens who want to use it. This is not the case for most other countries. It is conceivable that individuals knowingly infected with this virus could come to Canada because we have a publicly funded and accessible health care system. 193

The statement assumed that people decide to move only based on consideration of convenience under the economic perspective and did not take into account that according to the findings of current research, there are several other factors leading individuals to search for a new home for themselves and their families in a different part of the world. It also ignored that moving to another country requires a great amount of courage and brings with it an incredible number of difficulties and obstacles under the economical as well as social and emotional point of view.

It is significant that while there was disagreement along party lines among parliamentarians on the content of the specific motion to stop immigrants who were testing positive for HIV from coming to Canada, they were all on the same page when it came to reject those people who could represent an excessive cost to the taxpayer. Even

Members of Parliament who opposed the motion, did so because they were uneasy with barring a specific category of people and naming a specific medical condition, though they agreed that it was not appropriate to let in immigrants who had been assessed by a medical officer as being a drain to the Canadian economy. The point was made clear by

192 House of Commons Debates, 24 October 1994, 7071. 193 House of Commons Debates, 24 October 1994, 7071. 151

Mr. Sarkis Assadourian, Liberal member for Don Valley North, when he reminded the

House that "the government has a law already in place so medical officers can decide who can be and who cannot be admitted to Canada on medical grounds."194 This position was also shared by Mr. Michel Daviault (Ahuntsic, Quebec) from the Bloc Quebecois who quoted in its entirety section 22 of the regulations establishing the criteria to determine medical admissibility:

For the purpose of determining whether any person is a danger to public health or to public safety or might cause excessive demands on health or social services, the following factors shall be considered by a medical officer in relation to the nature, severity or probable duration of any disease, disorder, disability or other health impairment from which the person is suffering, namely: any reports made by a medical practitioner with respect to the person; the degree to which the disease, disorder, disability or other impairment may be communicated to other persons; whether sudden incapacity or unpredictable or unusual behaviour may create a danger to public safety; whether the supply of health services that the person may require in Canada is limited to such an extent that: the use of such services by the person may reasonably be expected to prevent or delay provisions of those services to Canadian citizens or permanent residents, or the use of such services may not be available or accessible to the person; whether medical care or hospitalization is required; whether potential employability or productivity is affected; and whether prompt and effective medical treatment can be provided.195

Maybe not everyone agreed on explicitly barring immigrants with HIV from the country

(indeed, the motion did not pass). Nevertheless, as stated by Mr. Ed Harper (Reform

Party, Simcoe Centre, Ontario), there was consensus on the fact that "immigration should be a benefit to Canada and not a threat to public health or indeed the economy."196

From a politician's point of view, the issue of immigrants with a disease or disability coming to Canada and potentially representing an excessive cost or using health services

194 House of Commons Debates, 31 October 1994, 7395. 195 House of Commons Debates, 31 October 1994, 7396. 196 House of Commons Debates, 31 October 1994, 7397. 152

that were already strained cannot be downplayed. The problem becomes even more complex once we start looking at the reasons for immigrating; this study does not deny that there is a possibility people may try to enter the country because they are in need of these services and have no access to them in their country of origin. As a matter of fact, this specific problem was deeply troubling for Parliament and came to the forefront of the discussion in the mid-1990s when a Polish man with HIV was accepted as refugee and, on national radio, admitted to have come to Canada because he was in need of the services provided under the Canadian health care system. Members in the House of

Commons were outraged by the confession. On February 20, 1995, Mr. Philip Mayfield expressed his strong opposition to allowing the individual to remain in the country and

"take advantage of our over-burdened health care system" while "thousands of Canadians are waiting in line to use the system they have been paying into for years."197 On the other hand, Hon. Sergio Marchi, Liberal Minister of Citizenship and Immigration, defended the government stating that the person had been accepted as part of the refugee stream not because he was HIV positive but because, due to his sexual orientation, "there was a well-founded fear of persecution."198 As the Minister explained, "It is not a question of being HIV positive. Each individual case must lay before the board

[Immigration and Refugee Board] a well-founded fear in terms of a social group persecution."199

197 House of Commons Debates, 20 February 1995, 9825. 198 House of Commons Debates, 20 February 1995, 9825. 199 House of Commons Debates, 20 February 1995, 9825. 153

Apart from the specific case, the issue at hand is whether the Canadian immigration system should or is in a position to actually assess the reasons motivating people to immigrate into the country. Any assessment would be quite difficult and partial given the fact that human beings hardly act under one impulse but, as mentioned above, make decisions based on a wide array of different considerations. Furthermore, rejecting people because of their health condition has a clear discriminatory flavour and openly goes against the principles embodied in the Charter, principles Canada has made a source of internal pride of honoring and protecting. Last but not least, looking at immigration exclusively under the economic profile would result in a loss rather than a gain for

Canada since people have value and can make concrete contributions much beyond the financial aspect. A world which considers humanity merely for its economic potential is a less enriching and much bleaker place to live in.

Politicians have traditionally attempted to present the subject of medical inadmissibility in a manner acceptable to society as a whole, thus focusing on the problems that would result for the citizenry if new people were allowed to have their hands on an already small pot of money. However, the real discussion should take into consideration the way disability is still perceived, both within and outside the country.

Although progress has been made during recent decades, disability issues have not yet been dealt with in a comprehensive and satisfactory manner. Society still looks at disabled individuals as 'less than normal', poor individuals to pity and help out of the goodness of our hearts rather than as persons with rights. No one wants a hand out; everyone has a right to respect and a decent life. The problem, therefore, is not whether 154

people with a disease or disability should be allowed into Canada but whether Canadian society is ready and willing to view disabled people, both those who are citizens and those who are not, as individuals 'equal' to everyone else. In this respect, the debate which was carried out in Parliament on May 31, 1995, was indicative of the approach held by some political figures towards people with disabilities. In that instance, Mr.

Maurice Bernier (Bloc Quebecois, Megantic-Compton-Stanstead, Quebec) openly criticized in his statement the Prime Minister who, the day before, in responding to one of the questions received, had referred to the president of the Office des personnes handicapees du Quebec as "the president of an association for cripples"200 (he had used the French word "infirme"). According to Mr. Bernier, such a choice of words perpetuated the prejudice that disabled persons were "ill and must be taken care of."201

He found unacceptable the "patronizing way"202 adopted by the Prime Minister in referring to people with disabilities.

Despite the recurrent discussions held in Parliament around the admissibility to the country of people with a disease or disability, not much changed in terms of legislation until the year 2000 when a new Immigration Bill was brought to the attention of the

House of Commons and Senate. Bill C-31, an Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger

(Immigration and Refugee Protection Act), received first and second readings and was then referred to the Standing Committee on Citizenship and Immigration on June 6, 2000.

200 House of Commons Debates, 31 May 1995, 13041. 205 House of Commons Debates, 31 May 1995, 13041. 202 House of Commons Debates, 31 May 1995, 13041. 155

On that occasion, immigration of people with disabilities became a contentious topic within the more general issue of family reunification. The new Act allowed for the entrance of people with disabilities or a medical condition when they were spouses of

Canadians. Not surprisingly, the provision was not well accepted by some Members of

Parliament. Among others, Mr. Leon E. Benoit (Reform Party, Vegreville, Alberta) expressed his concerns by noting that,

... if a Canadian marries a non-Canadian, even if that person would be a tremendous drain on our health care system, there would be a blanket acceptance of that person. I have a real concern about that, when Canadians will be bumped from the waiting lines for receiving health services and non-Canadians will be allowed in to be a drain on our health care system.203

Equally not surprising was the reply he got from Ms. Elinor Caplan, Minister of

Citizenship and Immigration. She explained the move not in terms of fairness but simply pointing out that it was inevitable given that "what this legislation does is normalize what is already occurring."204 In order to clarify the situation, she further explained,

The reality of what's happening today, Mr. Benoit, is when a spouse is refused because of medical inadmissibility, they are able to appeal to the immigration appeal division at the IRB [Immigration and Refugee Board], In almost 100% of cases, they win at the IRB on the basis of humanitarian or compassionate consideration.... this legislation ... makes no change in what is in practice.205

Equally contested was the proposed removal of the inadmissibility bar for adopted children of Canadian citizens. As noted by Ms. Caplan, the proposal was introduced after consulting the provinces and finding out that,

203 Standing Committee on Citizenship and Immigration, 8 June 2000, http://cmte.parl.gc.ca/cmte/CommitteePubIication.aspx?SourceId=54200. 204 Standing Committee on Citizenship and Immigration, 8 June 2000. 205 Standing Committee on Citizenship and Immigration, 8 June 2000. 156

Most provinces always agree that adopted children who were lucky enough to be adopted by a Canadian family, but who may be medically inadmissible because they have a disability should be welcomed and accepted into Canada.206

An exchange of opinions around the subject had already taken place on March 29, 2000, while the Committee was discussing Bill C-16, an Act respecting Canadian Citizenship.

At the time, Ms. Caplan had informed her listeners that,

For the purposes of international adoption, the intention is that a medical will be required for information purposes only. That information will be made available to the parents and the province, so they can know the health status of the child before the adoption is completed.207

The information had raised more than one eyebrow, especially after the Minister had responded affirmatively to an explicit question by Mr. David Price (Progressive

Conservative, Compton - Stanstead, Quebec) about whether children adopted by

Canadians would become automatically Canadian citizens even if having a particular disease.208

The study of Bill C-31 ended in October 2000 at the end of the 36th Parliament. It was presented again as Bill C-ll (same title as the previous bill) at the beginning of 2001 when Parliament resumed, and received Royal Assent on November 1 of that year. The two bills basically differed in organizational and technical aspects, though there were

"also important substantive changes."209 With respect to inadmissibility of people with medical conditions which could result in excessive demands on the health and social

206 Standing Committee on Citizenship and Immigration, 8 June 2000. 207 Standing Committee on Citizenship and Immigration, 29 March 2000, http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SourceId=:53614. 208 Standing Committee on Citizenship and Immigration, 29 March 2000. 209 http://www.parl.gc.ca/common/bills ls.asp?lang=E&ls=cl l&source=library prb&Parl=37&Ses=l. 157

services, Bill C-31 had intended to remove for the first time the bar on admission for those subjects who, though considered an excessive burden, applied as sponsored spouses and dependent children. Such a change was deemed not sufficient by several social organizations involved with issues of disability and the proposed legislation was strongly criticized for its shortcomings during meetings of the Standing Committee on Citizenship and Immigration where members and representatives of some of these organizations and associations were invited to present their opinions and criticisms. A number of interventions and discussions held during these meetings are enlightening for a full understanding of the legislation.

On May 1, 2001, one of the first speakers to be introduced was Mr. Laurie Beachell,

National Coordinator for the Council of Canadians with Disabilities. He began his intervention by explaining the mandate of the organization:

The Council of Canadians with Disabilities is a national advocacy association comprised of people with disabilities. . . . Basically, we monitor federal legislation and initiatives as they impact on people with disabilities.210

In line with its mandate, "CCD has a long interest in the Immigration Act and a long-time concern related to it . . . that is the discrimination that exists within the act that can prohibit the immigration of individuals with disabilities to Canada."211 Particularly with regard to the concept of 'excessive demand', the organization believed to have been shortchanged for years by a government which was not willing to address the issue of discrimination against disabled people. As Mr. Beachell noticed,

210 Standing Committee on Citizenship and Immigration, 1 May 2001. http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SoureeId=54803. 211 Standing Committee on Citizenship and Immigration, 1 May 2001. 158

Our present law would prohibit someone like Stephen Hawking from becoming a Canadian citizen. . . . Our present law has a stereotypical attitude toward people with disabilities that says they do not make a contribution to society and are a drain upon society. ... the Charter of Rights and Freedoms, [sic] prohibits discrimination based on physical or mental disability, yet the Immigration Act continues to discriminate on this basis. CCD has brought this to the attention of government on numerous occasions. We get a sympathetic hearing but little in the way of action.212

Referring to the proposed amendment intended to remove the inadmissibility bar in the case of spouses and children as well as refugees, Mr. Beachell made clear that even if the organization "is pleased" with the amendment, "it does not go far enough. It should be removed from anyone immigrating to Canada."213 Indeed, "It only removes discrimination for some people. Others will continue to face discrimination either overseas or when they get to Canada."214

Mr. Beachell's intervention touched many points of contention among politicians and those working in direct contact and caring for people with disabilities. He attacked the premises upon which the legislation rested,

Our law seems to be based on an attitude that says those with disabilities are not contributors; they are just takers. It is based on an attitude that says people with disabilities will not make a contribution to our society and somehow their 1 c demand upon health care is something we cannot bear.

He then proceeded to invalidate these assumptions. Among other things, the belief that disabled people were going to be more expensive than other immigrants was patently false since, "Many of those who immigrate to Canada may put a demand on our health

212 Standing Committee on Citizenship and Immigration, 1 May 2001. 213 Standing Committee on Citizenship and Immigration, 1 May 2001. 214 Standing Committee on Citizenship and Immigration, 1 May 2001. 215 Standing Committee on Citizenship and Immigration, 1 May 2001. 159

care or social system because of a variety of medical reasons." For instance, "A major

business individual may require quadruple bypass surgery within five months or five

years." 216 Another debatable point was around the whole notion of 'excessive demand'

and the qualifications of those appointed to determine it. Mr. Beachell wondered,

What is an excessive demand? How do you determine this? What education or training is given to people in the field to ensure that the traditional stereotypical attitudes are not what determine who can or cannot come to Canada?217

He also noticed that, in dealing with the amendment removing the inadmissibility bar

from refugees and family reunification, the same Immigration and Refugees Protection

Act "Issue Paper 4" had referred to the change as having a minor financial impact on the

provinces and territories. If that was the case, "why would we continue to keep the

prohibition in place for other people?"218

Furthermore, the CCD opposed the use of ministerial permits. According to its

National Coordinator, "ministerial permits are an abuse of power and are a way of

evading having to amend the law to bring it in line with the charter." Additionally, they

perpetuated discrimination among immigrants since, "Those people who are able to give

their cases a high enough profile get a ministerial permit. But that requires community

organizations, media, etc."219 That is, only those few people who have knowledge of the

system or enough money to mobilize public opinion got really a chance to stay due to the

issuing of a permit from the Minister. Also to consider was the fact that the issue of the

inadmissibility of immigrants with disabilities was not simply circumscribed to a

216 Standing Committee on Citizenship and Immigration, 1 May 2001. 217 Standing Committee on Citizenship and Immigration, 1 May 2001. 218 Standing Committee on Citizenship and Immigration, 1 May 2001. 219 Standing Committee on Citizenship and Immigration, 1 May 2001. 160

particular category of those perceived as 'others'. As pointed out by Mr. Beachell, in a society still affected by many forms of discrimination towards disabled people, the provision had enormous impact on the whole disabled community. As he explained,

. . . stereotypes exist in our society significantly still. Over half of the complaints to human rights commissions across this country are still on discrimination on the basis of disability. Half the complainants among the existing citizens of Canada still face daily discrimination within our society even though the law prohibits that.220

What was the message the Act was sending to Canadian citizens with disabilities? Mr.

Beachell had no doubt that many of them felt 'lesser citizens' and that,

If we weren't born here, we wouldn't be able to come here. So current citizens in Canada are devalued just by the wording of the act as well, because that act continues to provide a devaluation of people with disabilities.221

Several of the points raised by the Council of Canadians with Disabilities were also informing the speeches of representatives from other organizations. Although each group looked at the matter from its own perspective, all seemed to agree on the unfairness and implicit discrimination of the provision towards specific sectors of the foreign population.

On February 5, 2002, the Committee heard from Ms. Alana Klein, Research Associate for the Canadian HIV-AIDS Legal Network, an advocacy organization promoting the human rights of people living with HIV-AIDS both in Canada and throughout the world.

While pleased to learn that under the new act people with HIV-AIDS were not going to be considered anymore a threat to public health, Ms. Klein expressed her concerns with respect to the definition and assessment of 'excessive demand'. One of the main points of

220 Standing Committee on Citizenship and Immigration, 1 May 2001. 221 Standing Committee on Citizenship and Immigration, 1 May 2001. 161

contention was that while the usual "period over which expected costs will be considered will be five years ... it can be extended for up to ten years in the case of chronic illnesses."222 That was troubling since,

... a ten-year projection period is inappropriately long, especially in the case of HIV-AIDS, but also for many other illnesses. The costs for treatment are extremely variable over time. This is a result of medical advances and marketplace considerations, which are constantly in flux, such as the prices of drugs, which are changing all the time. We are concerned that projecting beyond the five-year period would likely be inaccurate ... 223

Moreover, Ms. Klein pointed out that the application of a different standard to people because of the kind of disease they had, seemed to raise the possibility of unconstitutionality of the provision. Indeed,

. . . having a ten-year projection period for some diseases and a lower projection for other disease does raise some constitutional issues. Pending charter scrutiny, this could be considered discrimination based on disability... 224

Echoing what was previously mentioned by Mr. Beachell, Ms. Klein also argued that the definition of excessive demand, while overemphasizing "the expected costs a person would be expected to impose on health and social services,"225 kept ignoring the contributions that person would make to society. As she explained,

If the goal is really about protecting the public purse, then the whole public purse has to be looked at - not just what is being spent, but also what's being taken in. In addition, the network submits that non-economic contributions should be considered.226

222 Standing Committee on Citizenship and Immigration, 5 February 2002. http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SourceId=5852#Int-119984. 223 Standing Committee on Citizenship and Immigration, 5 February 2002. 224 Standing Committee on Citizenship and Immigration, 5 February 2002. 225 Standing Committee on Citizenship and Immigration, 5 February 2002. 226 Standing Committee on Citizenship and Immigration, 5 February 2002. 162

The issue of excessive demand continued to be at the centre stage the next day when discussion of the regulations resumed. In order to ease the tension and have some clarification on the definition, Joe Fontana, Chair of the Committee, asked for some background from Mr. Brian Gushulak, Director General at the Medical Services Branch in the Department of Citizenship and Immigration. The latter recalled that the concept was introduced in the 1976 Act and regulations and that,

Historically, the number of individuals who have been refused for excessive demand represents less than 1% of total applicants. The levels vary depending upon the year, but in absolute numerical terms, we are talking about 2,000 to 4,000 people.227

However, he also admitted that no data was available on the demands placed on the health system by immigrants according to their age or gender. The debate became heated once again when some members of the committee noticed that to judge the potential cost of an individual on the health system on the basis of the average cost of all Canadians was nonsensical. As pointed out by the Chair, a more equitable system on measurement would have been age-specific rather than a simple average. Indeed,

The problem is that if you used an average basis, I think you are going to penalize older people, in my opinion, or maybe even younger women, whose utilization tends to be a little more than that of younger men.228

Unfortunately, as noted by Mr. Beachell, one thing was to be heard while a whole different thing was seeing effective measures to be taken in order to rectify the situation.

Despite the welcoming reception they received in committee, many of the suggestions

227 Standing Committee on Citizenship and Immigration, 12 March 2002. http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SourceId=5357. 228 Standing Committee on Citizenship and Immigration, 12 March 2002. 163

proposed were ignored and never implemented. Proof of this is represented by the fact that various organizations have continued to these days to provide politicians with written submissions asking for drastic changes to the current policies. Among others, in April

2005, the Canadian Association for Community Living submitted a document highly critical of the medical inadmissibility provision contained in the Immigration and

Refugee Protection Act. The document points out that the provision is based on an

"antiquated medical model of disability."229 This model is discriminatory towards people with disabilities and,

. . . ignores the reality that there are a variety of conditions or circumstances that may lead to a person placing a demand on health care or social services. For example, heavy smokers, unsafe drivers and professional athletes in high-risk sports could all give rise to excessive demands on health or social services.230

The brief also notices that focusing on people with disabilities as the only ones posing "a drain on public resources," disregards the fact that the costs associated with including disabled people into society are often "a result of discriminatory barriers"231 created by society itself. The provision is based "on the assumption that disabling conditions are inherent defects rather than socially ascribed deficits, and that a suitable response to the condition is exclusion rather than accommodation and inclusion."232 Even in other cases when suggestions and criticisms were accepted, changes were minimal. For instance, the highly criticized Ministerial Permit was replaced by the new Temporary Resident Permit

229 Immigration and Disability. Submission to the Standing Committee on Citizenship and Immigration. April 2005. http://www.cacl.ca/english/gov.Legalaffairs/CACLCIMMBrief2005.htm. 230 Submission to the Standing Committee on Citizenship and Immigration. April 2005. 231 Submission to the Standing Committee on Citizenship and Immigration. April 2005. 232 Submission to the Standing Committee on Citizenship and Immigration. April 2005. 164

that merged the old Ministerial Permit and the discretionary entry authorization. These permits are valid for limited periods of time and still do not provide health coverage for those admitted. Considering that Ministerial Permits had rarely been issued by the minister personally, the change was formal rather than substantial.233

It did not help in tracking down the fall debate that, after March 13, 2002, all meetings of the Committee took place 'in camera' and therefore the public is not allowed to know what was really said. Still, the results of those discussions are embodied in the present

Immigration Act and, no matter how they were arrived at, they affect the way immigration is currently handled by the Canadian state. An additional obstacle in keeping the debate alive among the public but also behind the walls of Parliament Hill was the fact that after September 11, 2001, when it came to immigration, all of the focus shifted to questions of security. As a result, no time or space was left for what remained a 'hot potato' and the tacit consent was to forget about it and move on with more sensational stories of national security and preparedness where a consensus could be easily reached.

After all, as parliamentarians repeatedly pointed out, their concern was limited to what their constituents wanted and expected from them. Why bother with those outside the boundaries? This brings us back to the concept of who is a citizen and has rights. The

'others' do not fit the definition and there is no duty to look after them. In our society, citizenship is more often than not used as an exclusive rather than inclusive tool.

Derrida's dream of a cosmopolitan "city of refuge" which would make a "genuine

233 Adelman 2. www.yorku.ca/crs/Publications/QCEP%20PDFs/regulations.12.01.final.art2.doc 165

innovation in the history of the right of asylum or the duty to hospitality"234 is still a

dream and no state as ever committed to it.

The reluctance of Parliament to deal with those outside the national boundaries is

particularly evident when we consider that at least since the second half of the twentieth

century, the number of parliamentary debates on the issue has gradually dropped. As

noted by Freda Hawkins, the result has been that policy-making ended up being the

business of bureaucrats, thus emerging "in the form of regulations rather than

legislation."235 This is troubling because, despite the fact that the Department of

Immigration had always had considerable influence over the directions taken, at the end

of the day "politicians made immigration policy"236 and were therefore accountable for it.

Furthermore, even in the case of rare direct parliamentary interventions, the MPs

participating in the discussion tended to be a relatively small number of concerned

people, most of them coming from the ranks of previous ministers of the department or

from ridings with a high percentage of ethnic voters.237 Overall, it is fair to argue that

immigration policies have traditionally responded to "the government's economic policy

and priorities"238 rather than being the result of consultation and balancing of interests

within the community as a whole.

In conclusion, what has emerged from the investigation of the debates that took place

in Parliament in the hundred years from 1902 to 2002, points to a general uneasiness with the subject of immigrant applicants with a disease or disability: as much as possible,

234 Jacques Derrida, On Cosmopolitanism and Forgiveness (London: Routledge, 2001) 4. 235 Hawkins (1972) 347. 236 Roy 308. 237 Hawkins (1972) 351. 238 Hawkins (1972) 348. 166

parliamentarians tended to avoid the topic for the above mentioned reasons. From the

language used in the debates in both the House of Commons and Senate, it also appears

that whenever avoidance was not possible, the mainstream approach was one based on

the assumption that immigrants were supposed to be helpful to the country and that those

with a disease, disorder or disability (whatever these terms meant at different points in

time) were not. Accordingly, either because of their un-productivity or the costs they placed on Canadian health and social services, they represented a burden and were to be

kept out. This attitude was on the whole shared by members of all political parties. The

main points of controversy among parties were on the way to concretely proceed in the

exclusion rather than in the exclusion itself. Even in that instance then, contrasts were

often the result of the political game of blaming the opponent rather than coming out of

serious disagreements around the issue. In many cases, parties blamed each other merely

in order to take advantage of the opponent's difficulties while no meaningful difference

emerged in the basic assumptions about the place or non-place of immigrants with disabilities within Canadian society. Equally important, the analysis has revealed that in the hundred years considered, most of the changes with respect to the provision of medical inadmissibility were in terms of language while the overall policy remained the same. The words used were different but no significant shift is detectable in the content of the provision as contained in the various Immigration Acts passed by Parliament.

The purpose of this chapter has not been to present politicians as heartless and insensitive human beings; they were not. The author's intention has been to provide the reader with enough evidence demonstrating the opposite, that politicians were and are 167

neither heroes nor villains but just people like us, with faults and merits, preconceptions and hopes. The issue does not therefore concern a single group of individuals but the whole society we have, for better or worse, created and kept in place to the present day, a society which prefers to look at persons with disabilities as a burden and at immigrants as

'strangers' who have to prove their worth before being accepted. We will now move a step further to investigate some of the discussions and contradictions which animated the immigration debate in the press. The focus will now be on the opinions and perceptions shared by a number of correspondents, editorialists and ordinary citizens with respect to the subject of immigration of people with a disease or disability, opinions which have been recorded and preserved in various newspapers' articles throughout the whole period investigated. 168

Chapter 3

Medically inadmissible immigrants: Toronto Star and The Globe and Mail, 1902- 1985

The previous chapter gave us an indication of the tone and content of the debates held in Parliament between 1902 and 2002 around the inadmissibility to Canada of people with a medical condition or disability. It is now time to explore the opinions and reactions among certain sectors of the public throughout the same period. The following two chapters look at articles, letters and editorials that appeared in the press during this time frame in order to provide the reader with a better, yet partial, understanding of the public discourse entertained by several groups of Canadians with respect to one category of potential immigrants. While this chapter focuses on material published in the pre-Charter period, the following chapter concentrates on discussions that took place after the passage of the Charter of Rights and Freedoms. As explained in more details in the chapter "The medical inadmissibility provision in the Federal and Supreme Courts of Canada," the

Charter represents a milestone in the path for recognition of persons with disabilities.

What is more important, the Charter's impact has been felt not only in the legal sphere but throughout all of Canadian society. The analysis of selected newspapers helps to clarify this point and reveals, at least to some degree, how Canadian discourse around immigration of people with disabilities has changed since the passage of the Charter.

Though recognizing that this kind of study would have been more accurate if complemented by direct interviews with real people, this has not been possible at the present time. Nevertheless, journalism remains a precious tool to understand the impact 169

that certain issues had on the general society; as argued by Jay Rosen, "the news is

always getting mixed up with our public and popular cultures, returning "us" to us with

all of our excesses and discontents, but also setting out a pattern, amplifying a tone, and

inviting particular behaviors."1 Accordingly, the press does not simply reflect what is

going on around us, but "is an active agent in public life."2

The material analyzed is taken from two newspapers, The Globe and Mail and

Toronto Daily Star. Both newspapers were published throughout the entire period

investigated (though, at times, with different names and owners and with different scales

of circulation). In the case of The Globe and Mail, the paper was created in 1936 after the

merging of The Globe with the Mail and Empire; all articles used in the study for the

period previous to this date were retrieved from The Globe. Both papers started their

publication on a local city scale; The Globe in 1844, the Toronto Star in 1892. In time, both papers have expanded their circulation to cover the entire province, though only The

Globe and Mail has reached a national scale of circulation. As remarked by David Hayes,

the paper started to define itself as "Canada's National Newspaper" as early as the 1900s; however, this was not much more than a wish until 1938, when the Trans-Canada

Airlines began shipping papers all across the country.3 Despite The Globe's effort to reach out to the whole country, Ontario and in particular Toronto remain the focus of attention in both publications. Furthermore, both sources are English-Canadian newspapers and therefore do not take into account nor represent the outlook of French

1 Jay Rosen, "Part of Our World: Journalism as Civic Leadership," Public Discourse in America, eds. Judith Rodin and Stephen P. Steinberg (Philadelphia: University of Pennsylvania Press, 2003) 108. 2 Rosen 108. 3 David Hayes, Power and Influence (Toronto: Key Porter Books, 1992) 49. 170

Canada. This could be misinterpreted as dismissal on the author's side of different approaches to immigration in other parts of the country. Notwithstanding the concrete risk present in selecting two newspapers from the same place, the choice has not been a casual one and has been dictated by the fact that as argued by Larry Bourne and Damaris

Rose, Toronto has historically been a "gateway city" for those seeking entry into

Canada.4 For the period between the 1950s and 1960s, for example, Avery remarks that over half of the total number of new arrivals to Canada tended to look at major centres in

Ontario, and specifically Toronto, as place of settlement.5 As pointed out in the Toronto

Daily Star on July 1, 1967, the trend was quite clear: "About 55 per cent of all immigrants head for Ontario - and the vast majority of these come to Toronto."6 Things do not appear to differ for the years preceding and following 1967. Still in 2001, foreign- born immigrants represented 44% of the total population in the Toronto's Census

Metropolitan Area.7 Besides, as pointed out by Paul Rutherford, central Canada has been at the forefront in the development of the popular press within the country since the

O 1870s. Still, it would be interesting if a study looking at other newspapers in different parts of Canada could be carried out in the future in order to complement the present micro-level analysis and provide a more complete picture around the public discourse generated by newspapers throughout the whole country.

4 Bourne and Rose 110. 5 Avery 13. 6 Toronto Star, 1 July 1967: 54. 7 Mohammad Qadeer and Sandeep Kumar, "Ethnic Enclaves and Social Cohesion," Canadian Journal of Urban Research Vol. 15 No. 2 (2006) 5. 8 Paul Rutherford, The Making of the Canadian Media (Toronto: McGraw-Hill Ryerson Limited, 1978) 49. 171

The methodology used in the selection of the articles consists in the analysis, carried through internet access to both newspapers' archives, of all the articles containing references to immigrants and immigration during the years in between 1902 and 2002.

The selection has then been restricted to those articles that were actually related to the topic of research and could contribute to a better understanding of the dominant perceptions and orientations. A total of 358 articles was examined, 186 of them collected from the Toronto Daily Star and 172 from The Globe and Mail {The Globe for the period previous to 1936, the year when The Globe and Mail was created out of the merger of

The Globe with the Mail and Empire). The research method followed in this study is usually referred to as 'content analysis', consisting in investigating the messages spread around by the press through the analysis and examination of the structure of communication. This kind of research focuses on both quantitative and qualitative aspects, the former being mostly interested in measuring frequencies (how many articles are written on a topic, how many lines or columns are given to a story, etc.), while the latter looking at the analysis of themes, terms and expressions within the article.9

Keeping in mind that communication is never neutral but shaped by specific values, standards and attitudes, it is also necessary to remind the reader that as in all analyses based on newspapers and other analogous publications, the present one does not assume to be exhaustive of the entire debate within Canadian society. One of the main reasons for this is the fact that behind newspapers there are always specific interest groups at work to

9 Effie Ginzberg, Power Without Responsibility: the Press We Don't Deserve (Toronto: Urban Alliance on Race Relations, 1987) 7-8. 172

both emphasize and hide certain aspects of what happens, thus shaping and directing the audience, but also responding to the latter's expectations and ideological perspectives.

Newspapers are products created to be sold; hence, they need to provide the kind of material that is requested by their market. As argued by Robert Hackett, media look at their audience as a commodity, and give people what they expect.10 At the same time, we cannot ignore that despite the tendency to give relevance to subjects of interest to their particular readership, newspapers are also compelled to take into account and address other significant issues, no matter how popular or unpopular they may be with the audience.11 Such issues are guaranteed at least a limited coverage, thus making newspapers not completely unrepresentative or dismissive of various debates and discussions going on within the broader society. It is worth noticing that media, and this includes not only newspapers but also television, radio, and more recently the internet, are both a reflection of, and an extremely powerful influence on society. While in the past they tended merely to give voice to dominant groups and institutions, now they have become the dominant force in shaping and directing other institutions, the government being one among many.12 As mentioned by Patricia Roy, newspapers represent a source of public opinion; whereas scholars can debate whether "newspapers made or reflected public opinion," it is fair to state that their "influence seems to be clear."13

10 Robert Hackett, News and Dissent: the Press and the Politics of Peace in Canada (Norwood: Ablex Pub. Corp., 1991)70-71. 11 Hayes 7. 12 Hackett 16. 13 Roy 12. 173

The relation between media - and in this particular case the focus is on newspapers - and the audience is interactive: media constructions reflect as well as influence the values and beliefs systems of their audience.14 As much as media give space to issues that are of interest to their audience, they have also the power to channel the audience's attention towards specific topics and events. Therefore, despite the greater autonomy gained by media in the last century, ties with the public continue to play a considerable role in affecting the kind of message going out.15 With respect to the changes in regulations carried out by the federal government during the period under investigation, this chapter shows that extended discussions and debates concerning a policy of immigration towards those classes of people deemed as medically inadmissible received limited attention in both selected newspapers. In the majority of cases, the articles and editorials published on the subject either in The Globe and Mail or in the Toronto Star were comparatively shorter than those dealing with other less controversial topics, and tended to be situated in sections of relatively low importance rather than in the first pages of the newspaper.

Furthermore, articles were predominant over editorials, and frequently limited to reporting bare facts, with little or no space at all for comments and opinions. Among the sources employed for this investigation, the author has located 23 editorials, 9 letters from readers and 132 articles for The Globe and 27 editorials, 14 letters and 148 articles for the Toronto Star. The overall scarce attention given to the issue of immigrants with a disease or disability is quite understandable when considering that the number of these

14 Frances Henry, Discourses of Domination. Racial Bias in the Canadian English-Language Press (Toronto: University of Toronto Press, 2002) 7. 15 Hackett 53. 174

people has typically been extremely limited. As a consequence, a vast group of newspaper consumers interested in the topic has never been present. At the same time, with a high concentration of different ethnic groups of immigrants in the country, especially after the formal elimination of racial discrimination in the late 1960s, the attention has been focused on changes concerning issues of racial biases and integration into mainstream society.

Having guarded against false interpretations of newspapers' analysis as being fully exhaustive of the general perceptions among the Canadian public, the reader should also be reminded that different newspapers have different political orientations and are addressed to a specific audience. With respect to the two newspapers selected for the present study, The Globe has consistently been presented as an "elite paper" addressed to a mostly well-educated and business audience, while the Star has claimed through time to be more of a populist paper aimed at the 'little guy'.16 However, despite differences in the approach to political, social, and economic issues, it is important to keep in mind that at least for the first fifty years or so considered in this study, both newspapers were edited for a public that tended to be less diverse than the current one. Readers were mainly coming from a common sector and class of society, namely those literate people who were also willing, because interested and with enough time to spare, and able to afford buying a daily paper. As a consequence, ideological and political inclinations apart, such an audience was not grossly diverse internally and this is reflected in the only slightly different tone taken by the two newspapers when it came to evaluate what was best for

16 Hayes 6, 58-59, 69. 175

Canada and what were the main goals Canadians needed to pursue in order to achieve their country's prosperity. The findings of this chapter lead to the conclusion that an overall comparison of articles and editorials found in the two newspapers does not reveal any marked difference either in the weight given to or in the debate developed around the issue examined.

During the early 1900s, the initial period considered in the investigation, little space was given in the Star to discussions of immigration while more references are found in

The Globe, particularly with respect to the kind of immigrants the country should have avoided. In May 1902, while reporting on the debate in the House of Commons around

Mr. Sifton's bill to amend the Immigration Act, the paper quoted part of Mr. E.F.

Clarke's intervention with respect to the need for "definite instructions given the agents in Europe to prevent Canada being made a dumping ground for immigrants unfit for admission."17 The paper supported the request and, on August 22, reiterated, "The adoption of more stringent regulations is a timely move. Every country is justified in

18 protecting itself against foreigners likely to spread disease or become a public burden."

It is significant that while the previous decade never saw immigration levels pass the

50,000 threshold, immigration underwent a new phase of expansion after the election of the Laurier's Liberal government in 1896. Thanks to the government's efforts in attracting new immigrants from both old sources (the mother country, the States and western Europe) and new ones such as central and eastern Europe, the number of arrivals

17 The Globe, 2 May 1902: 4. 18 The Globe, 22 August 1902: 4. 176

suddenly jumped to 89,102 in 1902, with continuous growth in the following 10 years (in

1912, Canada received 375,756 newcomers).19 While beneficial in certain respects, particularly regarding the development of the West, increased immigration also brought a new set of problems on the economic, social and cultural fronts.

Some space was given in The Globe particularly to the subject of non-desirable immigrants, with the discourse often being moved from a national to an international perspective. As already noticed in the previous chapter when looking at debates among

Members of Parliament, the problem was troublesome because of the tensions it could potentially create in the relations with the United States (US). A number of articles focused on complaints from the southern neighbor that unfit immigrants were allowed into Canada and, from there, attempted to cross the border into the States. One of the titles, for example, highlighted: "THEY GO THROUGH CANADA"20 The article explained that, according to the testimony of Mr. Robert Watchorn, in charge of the US

Immigration Inspection Service in Canada, undesirable immigrants, many of whom were

"diseased" or "idiotic," found an easy way of "coming into the United States through

Canada"21 where immigration inspection and regulations were not strict enough. On the other hand, the US had a more effective system of inspection and therefore should have been looked at as an example to follow and an incentive for improvements. As noted in the editorial "Our Immigration Policy" that appeared on July 16, 1903, "A comparison of

19 Avery 10-11. 20 The Globe, 13 December 1902: 12. 21 The Globe, 13 December 1902: 12. 177

Canadian and American inspection goes to show that the quality of our immigration should in future be more carefully maintained."22 The author of the piece also restated,

That those incapacitated, physically, mentally or morally, for becoming good citizens should be firmly excluded is self evident. ... It is not in the broadest sense charitable to open the doors to ... the physically incompetent. . .. from the standpoint of our own interests an unduly free polic• y is indefensible• . 23

The same subject was considered by the Toronto Star when, on July 22, 1904, the paper noted the difficulty of reconciling the assurances provided by the Canadian

Minister of Interior that "The medical inspection of immigrants . . . was as perfect as it could be made"24 with negative reports from US officials. Undoubtedly, the US was becoming more and more impatient with Canada. President Roosevelt himself, in the annual message to the Congress, did not refrain from mentioning that, "I recommend that no immigrants be allowed to come in from Canada and Mexico." The problem led to constant tensions between the two countries as well as the serious consequence of a rigid border inspection between Canada and the US. As explained by the editorial "Stop

Poisoning the National Blood,"

It is intensely annoying as well as disquieting to read that American immigration officers stationed in Canadian cities are constantly refusing foreigners, who have had no difficulty in getting into Canada, permission to cross into the United States. This means, of course, that they stay in Canada and become a burden and Oft a danger to our population.

22 The Globe, 16 July 1903: 6. 23 The Globe, 16 July 1903: 6. 24 Toronto Star, 22 July 1904: 7. 25 Toronto Star, 5 December 1905: 4. 26 Toronto Star, 21 February 1905: 6. 178

The editorial went on adding that this was unfortunate and not acceptable since,

It is all very well to talk about our boundless prairies and the nobility of offering an asylum to the oppressed of earth; but the truth is . . . that it is not the "oppressed of earth" who come seeking an asylum, but the diseased and incapable...27

The goal of keeping out undesirable immigrants and enhance "the interests of a high standard of Canadian citizenship" was shared by The Globe which in an editorial published on October 30, 1906, argued,

The right of this province or of the Dominion at large to adopt defensive measures against the mentally defectives sent from other countries cannot be questioned. Not only are such persons likely to become a serious public charge which the people of this country are under no obligation to bear, but their presence may be the means of promoting the noticeable and deplorable increase in mental disorders.28

The paper supported the decision of the government to provide for the deportation of those immigrants with a mental defect within two years of their arrival. The measure was considered necessary for the well being of Canada and in particular Ontario as,

The saving to the Province by each deportation is estimated at $2,000, this being based on the actual cost per year per patient, which in Ontario is $135, and the statistical evidence that the average life of a patient resident in an asylum is thirteen years. . . . The European authorities who have been in the habit of regarding Canada as a safe place for dumping their incompetents and dependents 9Q will learn ... that they must support their own human residue.

27 Toronto Star, 21 February 1905: 6. 28 The Globe, 30 October 1906: 6. 29 The Globe, 30 October 1906: 6. 179

Almost one year later, the achievements were impressive and The Globe congratulated the Dominion authorities for "exercising due care with regard to the quality of these • ™ prospective citizens." Declaring that "The immigration policy is working out

11 satisfactorily," the paper emphasized once again,

From the standpoint of Canadian citizenship, as well as in consideration of actual burdens on Canadian taxpayers, it is wise and necessary to see that none is admitted who does not conform to reasonable requirements.32

However, despite evident successes, the problem was not completely eliminated and, on

November 15 of that same year, the newspaper gave notice of a meeting of concerned citizens held in Toronto to consider the whole immigration matter. At the meeting, people agreed that "quality, not quantity"33 was what Canada needed. Abiding by this principle, a series of resolutions was adopted asking the Dominion government to "put into effect stringent measures to prevent the influx into Canada ... of mentally and physically diseased . . . immigrants" and "adopt a more expeditious method than at present exists of deporting undesirable immigrants."34

According to The Globe, the government was doing an excellent job in preventing the indiscriminate immigration of unfit persons to the Dominion. On September 19, 1908, the paper provided data showing that regardless of common assumptions, "Canada has now a

30 The Globe, 17 July 1907: 6. 31 The Globe, 17 July 1907: 6. 32 The Globe, 17 July 1907: 6. 33 The Globe, 15 November 1907: 12. 34 The Globe, 15 November 1907: 12. 180

much more efficient system of inspection than the United States."35 Indeed, based on actual record,

In 1906-07-08 there arrived in Ontario 155,460 immigrants. In those years the insane immigrants placed in asylums numbered 130, so that ... the ratio of increase per thousand is only 0.7. .. . Moreover, it is important to note that of these 130 admissions sixty-four were deported, leaving only 0.4 per thousand of insane. The United States had an immigration in the year 1906 of 1,085,849, and only deported 307 insane, thus proving that the system of inspection in Canada is much more stringent than across the border.36

The exclusion of undesirables was a necessity given the fact that "The defectives of other countries are not merely a burden . . . but they are apt to perpetuate a criminal or otherwise defective population."37 For a young country such as Canada, trying to maintain "a high standard of citizenship,"38 an exclusionary policy was of primary importance.

While pressured by the US and at home to prevent unfit elements from entering

Canada, the government was also faced with a different kind of pressure coming from the mother country. As legislation concerning the inadmissibility of unfit people got refined and became more stringent, Britain saw increasing numbers of emigrants returned to its shores and grew more vocal in its opposition. Canada, however, was not willing anymore to accept being a "dumping ground" for those the mother country found not helpful and burdensome. As reported in the Star on June 15, 1909,

35 The Globe, 19 September 1908: 4. 36 The Globe, 19 September 1908: 4. 37 The Globe, 21 January 1910: 4. 38 The Globe, 21 January 1910: 4. 181

Canada is accused of selfishness in trying to skim the cream of British immigration . . . the Hon. Frank Oliver . . . would exclude the physically, mentally, or worldly unfit, and the charity-aided immigrants.... This policy may have its selfish side. We all want the best. ... But the attitude of Canada acts as a corrective to a delusion that social problems can be solved by shifting the unfortunates from place to place. An epileptic is no better off in Canada than in England ... It is a very doubtful kindness to pack off to a colony those who are feeble in mind or body . . . The right way for all persons belonging to these classes is not to ship them from country to country, but to give them scientific treatment and care in the community to which they belong.39

Among the unfit, paupers were considered on the same grounds with persons with a disease or disability. Accordingly, they were subject to a similar screening process of medical inspection and rejection. In supporting the equivalence between pauperism and disease, the paper quoted the findings of a recent investigation conducted in England which stated that,

Pauperism is due to inherent defects, which are hereditarily transmitted. The paupers examined by the committee were characterized by some obvious vice or defect, such as drunkenness, theft, persistent laziness, a tubercular diathesis, mental deficiency, deliberate moral obliquity, or general weakness of character.40

Rejection of these people was imperative if Canada wanted to avoid finding itself in the same hardship faced by Britain and other European countries. The editorial went on arguing,

The information which has been gathered . .. emphasizes the necessity of careful immigration restrictions; . . . these people . . . are, in the last analysis, to be viewed as an economic disease, which should be given no hold upon the life of the Dominion. . . . The countries of Europe are considering the detention of this

39 Toronto Star, 15 June 1909: 6. 40 Toronto Star, 28 November 1910: 8. 182

species. Canada will devoutly hope that if they do not detain them in special institutions, they will at least detain them within their own borders.41

That hope did not seem to be met and, three years later, Miss Keenan of the Department of Immigration in Ottawa had still reasons to complain for "The country is being made the dumping ground for the scum of European cities, without the slightest doubt."42 Miss

Keenan's comments were made in the context of a decision taken by the Department to deport six "undesirable" women who were found in Toronto institutions and had all come at different times from countries in Europe. According to Miss Keenan, such cases seemed on the increase and were believed to be the result of "laxity at the ports of entry."43

Especially troublesome was the issue of the "feeble-minded" whose "moral depravity has eaten and is eating into the vitals of 'Toronto the Good',"44 according to a report of

The Globe published at the end of 1916. Based on the results of a two-year investigation on the conditions among 'feeble-minded' in Toronto, the two main investigators, Dr.

C.K. Clarke and Dr. Clarence M. Hincks, concluded that the situation was alarming. Dr.

Hincks, presenting his findings at the meeting of the Academy of Medicine, emphasized that a large part of the problem was related to immigration since "54 per cent of some classes of immigrants are feeble-minded."45 These numbers pointed to the fact that such a disheartening state of affairs was mainly the responsibility of politicians "who have

41 Toronto Star, 28 November 1910: 8. 42 The Globe, 28 August 1913:8. 43 The Globe, 28 August 1913: 8. 44 The Globe, 1 December 1916: 6. 45 The Globe, 1 December 1916: 6. 183

permitted these defectives to enter this country."46 A similar conclusion was reached by the Ontario Association for the Care of the Feeble-minded at its annual meeting held in

Toronto in February 1918. At the meeting, a resolution was passed asking the Dominion government for "careful medical inspection in their home locality of all persons preparing to emigrate to Canada"47 or "at least, the Government should treat the question of medical inspection at ports of entering more seriously."48 That same year, Dr. Hincks, this time in his new role as Secretary of the Canadian National Committee for Mental

Hygiene (later renamed Canadian Mental Health Association), repeated the warning for a more accurate medical inspection of immigrants. As reported by The Globe on December

7, 1918, he outlined the work done by the committee pointing out that "at least 50 per cent of the feeble-minded in Canadian asylums have come from other countries."49 Dr.

Hincks stated that "in the light of this fact, the postwar policy of immigration was of fundamental importance."50

Throughout the same period, analogous issues were given relevance in the Toronto

Star. On December 19, 1916, the paper reported about discussions held at the City

Council in conjunction with deliberations on the problem of feeble-mindedness in the city. At the meeting, participants agreed that "We must prevent, if possible, the immigration of the feeble-minded to Toronto."51 Another article appeared on September

29, 1917, on the first page of the paper giving notice of the recommendations coming out

46 The Globe, 1 December 1916: 6. 47 The Globe, 27 February 1918: 5. 48 The Globe, 27 February 1918: 5. 49 The Globe, 7 December 1918: 10. 50 The Globe, 7 December 1918: 10. 51 Toronto Star, 19 December 1916: 5. 184

from the sixth annual congress of the Canadian Public Health Association. In the closing session, Dr. Helen MacMurchy, Inspector of the Feebleminded of Ontario, had encouraged the federal government to put in place legislation contemplating "the ban on mental defectives entering the country to enjoy the full rights of citizenship."52 The subject was once again brought up two years later when Dr. A.H. Desloges, general medical superintendent at the hospital for the insane in the Province of Quebec, addressed the Social Welfare Congress with accusations that "there would not be such a large number of foreign-born inmates in our hospitals"53 if immigration agents had been more careful in the selection process.

Immigration of 'defectives' into Canada was attracting attention, especially at a moment when, after the conclusion of the war, the movement of people from continental

Europe had resumed stronger than before. On January 27, 1919, The Globe published an article focused on the report submitted by Dr. C.K. Clarke, Medical Director of the

Canadian National Committee for Mental Hygiene. In the report, printed in its entirety in the same issue of the paper, Dr. Clarke explained the seriousness of the situation, highlighting that "we have suffered greatly by an influx of defective and diseased immigrants"54 and "inspection at the ports of debarkation has been a failure."55 As a consequence, "the country has been forced to assume the maintenance of a large number of people to whom no obligation is due."56 He invited the federal government to take all

52 Toronto Star, 29 September 1917: 1. 53 Toronto Star, 16 January 1919: 5. 54 The Globe, 27 January 1919: 4. 55 The Globe, 27 January 1919: 4. 56 The Globe, 27 January 1919: 4. 185

the necessary steps in preventing the situation from continuing, thus warning that "If we are to build a great nation, we must, as far as possible, use the best materials, not the worst."57 Believing in the need for greater supervision of immigrants attempting to enter the country, over the years The Globe reported a number of interventions and opinions of specialists and scholars who encouraged the government to exert stricter vigilance.

Among others, Hon. Harry Olson, Chief Justice of the Municipal Court of Chicago, stated that defective European immigrants should have been prevented altogether from embarking and suggested "the establishment of psychopathic experts, physicians and inspectors in Europe, who would prevent undesirable aliens from even starting for the

CO Dominion." A different alternative was suggested on November 13, 1920, by Prof.

W.G. Smith who had conducted an analysis of immigration into the country at the request of the Canadian National Committee for Mental Hygiene. Prof. Smith advocated "for the erection of a large immigration station . . . along the line of the building at Ellis Island,

New York."59

The repeated warning from experts about the negative consequences for Canada of the influx of undesirable migrants as well as the denunciation that not enough was being

done at the government level to solve the problem soon caught the attention of politicians in Ottawa. Some steps had to be taken in order to respond to complaints of inaction. As reported by the Toronto Star,

57 The Globe, 27 January 1919: 4. 58 The Globe, 5 March 1920: 8. 59 The Globe, 13 November 1920: 17. 186

The recent appointment of a number of extra medical inspectors in connection with immigration into Canada is understood to be consequent on the representations of public health bodies throughout Canada that many imbeciles were being admitted to Canada without proper inspection. The staff of medical inspectors has been more than doubled and every precaution is now being taken to prevent incurable imbeciles from entering the country and becoming a public charge.60

The paper welcomed the change towards a stricter inspection process and noted that it was long overdue since,

Canada has suffered too much in the past from loose inspection to be willing to relax the stringency of its present regulations. There are now too many people in Canada being supported in institutions and constituting a serious economic and social weakness, who have come over as emigrants.61

The Globe as well observed with satisfaction that "Regulations covering the entrance into

Canada of European immigrants are more strictly enforced,"62 though more needed to be done. On February 13, 1924, the paper quoted Relief Officer A.W. Brown, who had asked the Town Council in Oshawa to take direct action with the Immigration

Department. According to Mr. Brown, the department was allowing into the country a

"non-progressive type of immigrants . . . Some of the individuals and families are physically and mentally unfit for development into progressive citizens."63 He was therefore calling for an investigation into such class of people who were going to constitute "a burden upon the country."64 Stricter selection was also encouraged by the

60 Toronto Star, 25 May 1920: 12. 61 Toronto Star, 31 July 1920: 6. 62 The Globe, 9 March 1923: 12. 63 The Globe, 13 February 1924: 13. 64 The Globe, 13 February 1924: 13. 187

Social Service Council of Canada whose delegates at the annual convention held in 1925 accused the federal authorities of conducting an inspection process that was "perfunctory

and inadequate."65 Although recognizing that "Commendatory progress is being made ... by the Federal Government in giving the matter careful attention,"66 the problem of

admittance of mental defectives was still threatening the whole fabric of the Canadian nation. As pointed out by Dr. C.M. Hincks in a paper read on the radio during the broadcast of one of the weekly talks sponsored by the Canadian Social Hygiene Council,

a voluntary organization based in Toronto,

The problem of mental abnormality is made more acute in Canada through indiscriminate immigration. In some Provinces more than half of the insane and feeble-minded have been recruited from countries outside of the Dominion. 67

Based on the same set of considerations, few months after, the Canadian Education

Association (an organization of Canadian teachers which had changed its name from

Dominion Education Association in 1918) joined in the cry for a tightening of the

immigration barrier preventing "half-wit and subnormal mentalities to slip into the

Dominion."68

During those same years, the Toronto Star continued to show attention to major

concerns expressed by social organizations with respect to the immigration of 'unfit'

elements. On June 15, 1921, the Star reported on the discussions taking place at the

annual convention of the National Council of Women (founded in Toronto in 1893 with

65 The Globe, 29 January 1925: 3. 66 The Globe, 26 August 1925: 9. 67 The Globe, 26 August 1925: 9. 68 The Globe, 12 November 1925: 2. 188

the goal of joining together women of different creeds, churches and races). The paper quoted the convener, Mrs. J.J. Hall, as urging for a stricter examination process of immigrants. According to Mrs. Hall, the number of mentally defectives in both Toronto and Montreal was steadily increasing and she considered it unacceptable that "In spite of such facts as these, the government spends $1,000,000 each year to encourage immigration."69 A more careful watch on immigrants entering the country was also urged few years later by Dr. Eric Clarke in his address to the Toronto League of Women

Voters. Dr. Clarke emphasized how a number of mistakes had been made in the past in reference to the admission of defectives and concluded by noticing that "Throughout

Canada there are communities that are degenerate as the result of improper inspection in days gone by."70

Throughout those years, the focus on immigrants with mental defects was just part of a much bigger concern for issues of human evolution and the nation's greatness. The anxiety was not exclusive to nor originated in Canada: all through the 1920s, similar ideas were gaining attention both in the US and in Great Britain. Although an organization similar to the British Eugenic Society was only established in Canada in

1930, eugenic theories were widespread among the scientific community and society at large during the decade. Among the topics central to the eugenic movement, public health, educational reforms and immigration selection were all inextricably related components of the same problem.71 At the congress of the British Association for the

69 Toronto Star, 15 June 1921: 22. 70 Toronto Star, 16 February 1924: 16. 71 Avery 84-85. 189

Advancement of Science held in 1924, Dr. Harry H. Loughlin of the Eugenic Record office of the Carnegie Institute of Washington maintained that,

. .. control of immigration is one of the major factors in human evolution and the element most easily managed by national low [sic] and international agreement. 72

His argument was echoed by Professor William McDougall of the Department of

Psychology at Harvard University. In his opening address to the meeting of the British

Education Society, he stated that "eugenic is merely social justice."73 Dealing with the issues faced by a young nation such as Canada, he remarked that "Man and the quality of the population are the matters of prime importance" and "Whether that population shall be capable of national greatness depends largely upon the present."74 Canada therefore had to be particularly careful with its immigration policy in order to practice a "selective

immigration" that would enhance "the qualities of the stock derived by immigration."75

The importance of immigration in the project of nation-building did not interest only

scholars and scientists, but it was amply debated among different sectors of society as

well. In this chapter, comments made by exponents of social agencies are not used to

capture the views of specific organizations but as examples of the general public

discourse permeating Canadian society as covered by the selected newspapers. For

instance, in 1924 immigration was at the forefront in the discussions that animated the

Anglican general synod. As reported by the Star, the issue was further complicated in

72 Toronto Star, 12 August 1924: 1. 73 Toronto Star, 14 August 1924: 17. 74 Toronto Star, 14 August 1924: 17. 75 Toronto Star, 14 August 1924: 17. 190

reason of the particular character and mission of the Church of England in Canada. While some members of the synod agreed with Principal Vance of Vancouver who moved a resolution asking the government for careful examination of immigrants, Archdeacon

Renison of Hamilton saw the move as a rejection of the church's "primary spiritual

76 mission." In opposing the idea that only the best settlers should be admitted into

Canada, he reminded the audience "of the saying of the founder of the church: 'I came not to call the righteous, but sinners to repentance'."77 Differences of opinions were also present among trustees of the Toronto Board of Education; at their meeting on October

15, 1925, protesting against the arrival of families with 'mentally defective' children, the board passed a resolution asking immigration authorities for a more careful inspection of new citizens. However, Trustee Joseph Gordon distanced himself from the motion, declaring that it was offensive to imply that "the children of foreign people in this city are less intelligent than other children."78

Newspapers' reports indicate that even less concern about the fate of immigrants animated the discussion among medical professionals. On May 27, 1926, The Globe recounted that Dr. John MacGregor, addressing delegates of the Ontario Medical

Association at its annual dinner, had emphasized that one of the services doctors were required to perform consisted in educating the public authority on how to prevent the

76 Toronto Star, 1 October 1924: 3. 77 Toronto Star, 1 October 1924: 3. 78 Toronto Star, 16 October 1925: 35. 191

increase of "morons and mental defectives"79 in Canadian society. Immigration was then one of the main problems to be dealt with. According to Dr. MacGregor,

... we must be very particular regarding the types that we admit. Unfortunately, no small percentage of those finding their way here ... are mental defectives of varying degree, who, shortly after coming, find their way into our hospitals and other public institutions, and become charges on our municipalities. The medical profession can perform a lasting public service by bringing the matter to the attention of the Immigration Department, and impressing on them the necessity of more carefully investigating, particularly the assisted immigrant, as to his mental status before he leaves his native country.80

The advice seems to have been followed since more than one year later the paper published an article written by Frank Chamberlain, Secretary of the British Welcome and

Welfare League, in which the author complimented the Canadian government for recently establishing a Canadian medical service in Europe with the task of examining immigrants leaving for Canada. As pointed out by Mr. Chamberlain,

While this new service will cost the Canadian Government probably $100,000 a year to operate, it will reduce the present hardship, will cut down the number of rejection at the ports of entry, and will reduce the number of deportations within the five-year period.81

The issue of deportation mentioned by Mr. Chamberlain was one of major proportions as it involved high costs and created complications in terms of how, when and under what conditions was advisable to implement it. As we have seen in the previous chapter when deportations were debated in Parliament, while the process of rejecting immigrants was

79 The Globe, 27 May 1926: 2. 80 The Globe, 27 May 1926: 2. 81 The Globe, 28 November 1927: 4. 192

quite straightforward, a different and more persuasive rationale had to be provided in the case of someone who had previously been accepted into the country and had afterwards become a 'burden' on the taxpayer. On that subject, in 1926, the Toronto Star gave publicity to the case of a young Scottish girl, Miss Betty Roy, who had been ordered deported after a city relief officer had notified the authority she had become a public charge. Asked by the Star about the government's intentions, Mr. J.C. Mitchell, immigration officer, justified the deportation order by explaining that,

She was in the Mountain sanitarium at Hamilton, and these cases cost the city $10,50 a week and the government 75 cents a day. She came to Canada on June 7, 1923, has been in the sanitarium a good part of the time, and in view of the R9 medical evidence we could not do anything else than what we did.

Despite the officer's declaration that the order was not going to be rescinded, the paper reported that pressures from public opinion began mounting and a provision was passed establishing that Miss Roy could be allowed to remain "if the hospital bill owed to the city in her case were paid and if guarantees were given that she would not become a charge".83 Once the board of control received an offer to pay off the debt, together with a guarantee from the Daughters of Scotland and other friends of Miss Roy that she was not going to represent a charge, the girl was allowed to stay in Canada. 84

Even more complicated was the issue of deporting persons who had become naturalized, since the law had no provision for the deportation of those subjects.

82 Toronto Star, 28 July 1926: 3. 83 Toronto Star, 4 August 1926: 2. 84 Toronto Star, 4 August 1926: 2. 193

Nevertheless, the debate was on and the argument was still made that Canada had no obligation to take care of such individuals. On February 16, 1928, the Toronto Star reported that a change to the immigration law contemplating the deportation of insane immigrants after naturalization had been recommended by Dr. A.H. Desloges of Quebec during a session of the National Committee on Mental Hygiene. According to Dr.

Desloges, the measure was fully justified given the fact that,

Every other country will deport a Canadian, should he become insane. . . . The fact that he may have become a naturalized citizen of their country makes no difference to them. Back he comes to Canada. But here in Canada when an immigrant has been here five years we assume all responsibility.85

Unfortunately, neither the Toronto Star nor The Globe did follow up on the debate.

Deportation of naturalized citizens was not a major concern in those years, probably because there were few occurrences requiring deportation to be considered.

Clamor was instead created in the press when the "McConachie case" exploded like a bomb. The previous chapter has already dealt with the case when looking at the reactions and debates it generated inside Senate and the House of Commons; it is now interesting to look at what the discussion was focusing on in the press. To briefly summarize the case, Mr. McConachie, a Scottish immigrant resident in Canada, had invited his wife and five children to join him in the new country; they had arrived in Halifax and, after undergoing medical examination, the parents had learned that the youngest of the children, a fourteen-month-old baby, was not admissible to Canada because she was

85 Toronto Star, 16 February 1928: Z99. 194

'feeble-minded'. Mrs. McConachie had therefore been returned to Glasgow with the baby while the father and the other four children remained in Nova Scotia. Given the specifics

of the case, in particular the fact that a baby had been rejected and a whole family

separated, it is not surprising that both newspapers were eager to give the story the front page and satisfy the curiosity of many of their readers. Also unsurprising is the fact that

different opinions emerged with respect to what course of action was the most

appropriate to follow.

On February 3, 1928, the Toronto Star gave an account of the situation and concurred

with officials of the Immigration Department that the case of the McConachie child

O/R clearly indicated "the need of medical inspection of migrants in Great Britain." The

impression emerging from reading the article is one of sympathy for a family divided

among two continents, but without any blame for the Immigration Department that had

simply done its job and applied the law. After all, if a culprit had to be found, that was the

mentally defective baby: she was responsible for the family's separation and, as the paper

made clear,

Until death comes to the child and thus releases the mother, or until it can be placed in an institution, Mrs. Maconachie must remain with it in her native Scotland while her husband and four other children are in Nova Scotia. 87

Five days later the paper came back to the case with a piece condemning "the unfair and

unjust reflection on Canada and Canadian immigration methods,"88 restating that the

86 Toronto Star, 3 February 1928: 2. 87 Toronto Star, 3 February 1928: 2. 195

department had acted in accordance with the law of the country. On February 11, the paper reported that three medical officers in Great Britain who had inspected the little girl after her return home had confirmed the finding of the Canadian inspectors. According to the British doctors, "There is little or no hope that the Maconachie child will ever be

on normal." Despite the claim that no wrong had been committed by the Immigration

Department, public opinion was divided and,

Officials of the department . . . have been deluged with letters about the case, some for admittance, some against it. A number of women's organizations are definitely opposed to the admission of a feeble-minded child, as creating a precedent and opening the door for others.90

Other groups were instead more sympathetic; among them, "The Prisoners' Welfare

Association of Montreal has started a fund for the family."91

The agitation to have the child admitted under ministerial permit was so strong that the government felt the need to involve the Department of Justice. Absolving his colleague from any wrongdoing, Mr. W. Stewart Edwards, Deputy Minister of Justice, handed down his legal ruling that,

Under consideration of the sections to which you have drawn my attention, I am of opinion that said section 4 is not intended to authorize the minister to admit to Canada as immigrants persons who are by the other provisions of the act expressly forbidden entry. It appears to me to be abundantly clear that the

88 Toronto Star, 7 February 1928: 3. 89 Toronto Star, 11 February 1928: 11. 90 Toronto Star, 6 March 1928: 21. 91 Toronto Star, 6 March 1928: 21. 196

minister cannot issue any permit under said section except for a limited period of time.92

A similar legalistic approach to the case was shared by The Globe which declared,

The Government officials were . . . acting within the requirements of the law in forbidding entry in this case.. . . The situation is admittedly difficult for both the Government and the household affected. ... the Minister of Immigration cannot be accused justifiably of lack of sympathy.93

Two days later, the paper confirmed its stand and accused those with a different opinion of exploiting the situation to slander the government; indeed,

... the department [of Immigration] is unable legally to make an exception in this case. . . . Political capital has been made out of the incident by Conservative politicians and Conservative newspapers, but through examination by medical experts, not only in Canada, but since the mother and child returned to Britain, has shown that "there is not the least prospect of the mentality of Margaret McConachie ever developing to anything near normal," and the Minister of Immigration cannot admit the child to Canada as an immigrant without breaking the law.94

As a response to those saddened by the split of the family, The Globe provided its own suggestion,

There is nothing to prevent the mother from joining the father and four children in Canada, save that she has not the heart to leave the infant in Scotland. It is felt here that the wisest course in the circumstances would be for the McConachies to return to Britain.95

92 Toronto Star, 10 March 1928: 22. 93 The Globe, 27 February 1928: 4. 94 The Globe, 29 February 1928: 5. 95 The Globe, 29 February 1928: 5. 197

In the opinion of The Globe, justice for the Canadian government seemed to be finally achieved with the report of Professor Kirkpatrick Anderson, "described as the best expert available in Scotland,"96 who had examined the deported child and found she was "an imbecile with a Mongolian feature."97

The year 1928 saw also a number of less clamorous cases related to issues of medical inadmissibility. Some of them found a way to reach the press, as in the case of Miss Flora

McDowall, a Scottish girl who was rejected because she was overweight. An article on the Toronto Star published on May 12, 1928, sided with the Immigration Department and reported that the girl was "almost as broad as she was tall."98 According to a statement from J. Bruce Walker, director of immigration in England,

Miss McDowall was certified three C, owing to marked obesity and stunted height. Her weight was 210 avoirdupois; her breadth almost equal to her height. She was not a domestic and never was. She is now unemployed and because of her obesity is decidedly unemployable.99

A different approach to the issue was taken by The Globe: on the same day, the paper published a short note ironically pointing out,

The overweight Scottish girl whose application for an immigration permit to Canada was refused must have concluded that the attention of the Immigration Department is taken up with little things.100

96 The Globe, 14 March 1928: 7. 97 The Globe, 14 March 1928: 7. 98 Toronto Star, 12 May 1928: 1. 99 Toronto Star, 12 May 1928: 1. 100 The Globe, 12 May 1928: 4. 198

Overall, it appears that the paper did not consider the story worthy of public attention.

In The Globe's opinion, more concerning was the issue of mentally defective immigrants flooding the country. In an editorial published two days later, the Ottawa correspondent for the newspaper defined as "sensational"101 the evidence presented by Dr. David A.

Clark, Assistant Deputy Minister of Health, before the Parliamentary Committee on

Immigration. Commenting on the report, the correspondent concluded,

The number of inmates in Canadian hospitals for the insane who were born outside the country shows, without question, need of a more careful sifting of immigrants that there has been in past years . . . Non-Canadian-born in Ontario institutions in the years 1924-26 numbered 3,170. Seventy per cent of the hospital inmates in Alberta were born outside Canada, and information from Saskatchewan was somewhat similar. Quebec reported 600 such public wards. Immigrants like these constitute a heavy liability to the country. . . . greater discrimination in making selections is necessary.102

A divergence of opinion emerges when looking at the Toronto Star's attitude towards the government. On the whole, the paper was definitely more supportive of the government's handling of immigration. In an article published on May 31, 1928, ample space was given to the presidential address delivered by Dr. Weston Krupp of Woodstock in front of the

Ontario Medical Association in which the speaker "complimented the Canadian government on its medical policy with regard to immigration."103 In particular,

Dr. Krupp stated that the government was to be congratulated on its determination to bring into the country only those who were physically and mentally fit.104

101 The Globe, 14 May 1928: 4. 102 The Globe, 14 May 1928: 4. 103 Toronto Star, 31 May 1928: 17. 104 Toronto Star, 31 May 1928: 17. 199

The year 1930 witnessed a re-igniting of the debate around deportation of disabled immigrants already in Canada, a topic that had received scarce attention just a few years earlier. Following mounting pressures from provincial governments, Ottawa began to apply more strictly the regulations and this resulted in an increase in the number of persons deported. When relatives of these people started to voice their concerns and opposition, the news was soon spread and the debate acquired major proportions. The first case to reach the press was the one of Mrs. Alice Ainsworth, a Hamilton woman who suffered from epilepsy and was deported after eighteen years residence in Canada. On

October 17, 1930, the Toronto Star reported that the deportation had been "properly carried out"105 since, according to the official record, the woman was already an epileptic when she arrived in Canada, though the medical examination had failed to reveal the condition. Only "in 1929 she became a public charge on the province of Ontario"106 and the province decided to press for deportation. Asked by the Star whether five years' residence protected any immigrant from deportation, the commissioner of immigration replied that the measure applied only to those who had entered the country legally. He concluded that "An epileptic cannot enter legally and therefore cannot acquire domicile." Despite the claim that the government had applied the law, the husband of the woman began a protest against the decision and was able to find support in the Mayor

105 Toronto Star, 17 October 1930: 3. 106 Toronto Star, 17 October 1930: 3. 107 Toronto Star, 17 October 1930: 3. 200

of Hamilton, Mr. Peebles, who publicly "declared it was a shame to separate a woman from her family after she had lived here for eighteen years."108

The impact of the case upon the public was magnified by the fact that in the space of few days, two similar cases were reported in Ontario, one regarding Miss Naylor of

London, and the other Alice Barton of Hamilton, both women suffering from epilepsy.

With respect to the former, the paper reported that Miss Naylor was going to be sent to

England where she had no relatives, despite the fact that the family had assured the authorities of being prepared to take care of her in Canada. It was also mentioned that

"the girl's mother is seriously ill because of the shock that followed the order against her daughter."109 In the case of Miss Barton, "Inquiries by The Star indicated that Alice

Barton could not in any way be termed a 'prohibited immigrant,' as she became an

epileptic five years after she came to Canada with her parents."110 Furthermore, the parents of the girl complained that the deportation had taken place without them being

informed of it in advance, although immigration authorities denied that was the case.

Protesting against the treatment reserved to his patient, Dr. Robert Oliver, physician of the Barton family, wrote a letter to The Globe in which he accused the Immigration

Department of carrying out "such unwarranted action."111 According to Dr. Oliver, the parents were denied the opportunity of taking care of their daughter who was shipped out

108 Toronto Star, 25 October 1930: 1. 109Toronto Star, 24 October 1930: 2. 110 Toronto Star, 27 October 1930: 1. 111 The Globe, 30 October 1930: 2. 201

of the country "not like a human being, but like an ordinary piece of merchandise."112 He concluded his letter by stating that the action,

. . . harks back to the days of slavery, and makes one wonder whether we are living in the twentieth century or not; and in my opinion warrants the fullest investigation of the Immigration Department of the Federal Government and widest dissemination before the public of all the information which can be made available regarding all these cases.113

Once challenged, the department publicly came out arguing that, as in the case of Mrs.

Ainsworth, Alice Barton was an epileptic well before entering the country. Therefore,

. . . she had entered Canada illegally, and could not acquire domicile here. Evidence was given that she had received medical treatment in England for epilepsy and the Ontario authorities insisted upon the law being carried out.114

From an academic perspective, it is quite interesting to notice how the issue was dealt with by the various levels of government in power games where each level blamed the other for poor decisions. If we look at the explanations provided by the federal government, there emerges a tendency to avoid responsibility for the action, while indicating that pressures towards deportations had originated at the provincial level. On the other hand, the latter justified the move by arguing it was necessary in reason of the financial constraints and lack of structures experienced by the province. As Mr.

Cumberland, superintendent of the hospital for epileptics in Woodstock, explained to the

Star,

112 The Globe, 30 October 1930: 2. 113 The Globe, 30 October 1930: 2. 114 The Globe, 31 December 1930: 2. 202

There are hundreds of such cases in Canadian institutions and if all were deported it would mean the release of accommodation that would mean a good- sized additional provincial institution. The accommodation is needed for other cases ... 115

In the same article, the paper also reported a statement released by the Immigration

Department that,

The department of immigration regards deportations as the saddest activity it is called upon to perform, and except in the case of out-and-out "scalawags" it only sends immigrants back to the country of origin as a last resort... 116

The following day, another piece was published in which Mr. J.C. Mitchell, Dominion government immigration superintendent for the Toronto district, pointed out that the deportation orders had been carried out under the request of the province since "the hospitals are overcrowded, and ... the public should not have the extra burden of caring for cases that broke the laws of the dominion when they came into the country."117

Despite the fact that, as the paper reported, "Federal officials here decline to enter into discussion on the relative responsibilities of federal and provincial governments"118 so not to "fan the feeling which often exists in Dominion-provincial relationships,"119 it was apparent that Ottawa was not willing to let the whole issue fall onto its shoulders.

According to the Star, information gathered from an anonymous immigration official

115 Toronto Star, 27 October 1930: 27 116 Toronto Star, 27 October 1930: 27 117 Toronto Star, 28 October 1930: 1. 118 Toronto Star, 28 October 1930: 1. 119 Toronto Star, 28 October 1930: 1. 203

indicated that actually "the interests of the federal government are against deportation,

190 and the interests of the provincial government for it." Indeed,

The department of immigration dislikes sending back people whom they have invited and assisted to come and, besides, it costs money, takes a lot of trouble and draws down a flood of criticism. The Ontario government, on the other hand, rids itself by deportation of a charge on one of its institutions, undergoes no expense and suffers relatively little criticism. 121

The article went on recalling that, under the previous King government, very few epileptics had been deported since,

While it was recognized that these inmates constituted a burden on the country, it was considered inhumane to send sick people back to face hardships in the country of origin.122

The piece concluded by noticing that "there is closer sympathy between the present

Ontario government and the Ottawa administration . . . and the series of deportations might be read as a result of the change."123

In light of the general criticism of recent deportation cases both within Canada and abroad, the Toronto Star began to seriously consider the damage which was resulting to the country's image. As a consequence, the paper sided with Ottawa and attempted to present the facts in such a way as to absolve the federal government from any responsibility while emphasizing the role played by the province of Ontario in the whole

120 Toronto Star, 28 October 1930: 2. 121 Toronto Star, 28 October 1930: 2. 122 Toronto Star, 28 October 1930: 2. 123 Toronto Star, 28 October 1930: 2. 204

affair. On October 31, 1930, the paper reported that after being informed of the repatriation to England of two Ontario women, Hon. Robert B. Bennett, new Prime

Minister of Canada, had described the deportations as "monstrous"124 and said that "when the women had been so long in Canada some other solution should have been found."125

Indicating that the deportations had been pressured for a long time by Premier Ferguson

(Conservative) of Ontario, the paper referred to a previous speech given by Mr. Ferguson in Hamilton where he had complained that,

... a proportion of immigrants had become a charge on the public, implying that the immigration officials under the Liberal administration had been too lax in admitting immigrants, though the opinion in Britain was that the Canadian medica• l inspection was very severe. 1 9 f\

Commenting on the cases of the two women deported after almost twenty years in

Canada, the paper sadly wondered whether any immigrant could feel safe if people were still considered "an undue burden" after two decades of residence.127 The article concluded by saying that Ferguson's speech had just been "an ill-service to Canada, for it is Canada that has to carry the odium."128 In order to support this statement, references were made to comments in the press abroad, especially in England; among other newspapers, "The Manchester Chronicle says editorially that . . . Canada is shirking its moral responsibilities."129

124 Toronto Star, 31 October 1930: 1 125 Toronto Star, 31 October 1930: 1 126 Toronto Star, 31 October 1930: 1 127 Toronto Star, 31 October 1930: 1 128 Toronto Star, 31 October 1930: 1 129 Toronto Star, 31 October 1930: 1 205

Regardless of growing criticism, deportations did not stop and on November 1, 1930, the Star informed its readers about the deportation to Bristol, England, of another epileptic woman, Mrs. H.J. Vowels, a mother of four who had been in Canada for sixteen years. Commenting on the case, Rev. W.A. Cameron of Yorkminster Baptist church remarked,

It is a strange procedure that allows that sort of things. Surely a woman who has been here for that length of time has every right to be looked after by this country.... I think a monstrous injustice has been committed.130

Rev. Cameron was echoed by his colleague, Rev. T.T. Shields of Jarvis St. Baptist church, who added that "the deportation is a serious mistake and likely to do injury to

Canada's good name."131 Solidarity was also shown by Father L. Minehan, a Catholic, who noted,

I think it is a very unfair thing to deport people after they have lived seventeen years in this country and made connections here ... I do not think that the public generally will approve of the deportation of these women. It is also unfair for the province to have to bear the expense of these unfortunate people indefinitely; but if we must deport, then I think there should be a three or a five-year limit.132

Asked about his legal opinion, J.E. Corcoran, Toronto lawyer and former chairman of the board of education, commented,

130 Toronto Star, 1 November 1930: 1. 131 Toronto Star, 1 November 1930: 1. 132 Toronto Star, 1 November 1930: 1. 206

I take that the reason given for deportation is a condition existing prior to immigration, making them a charge on the province. If a person had been here eighteen years I would think that she had a prescriptive right to remain.133

From the municipalities' perspective, however, the issue was not deportation per se, but the lack of surveillance at ports of entry which had allowed for the entrance of undesirables in the first place. The entire situation would have never reached such proportions if the federal government would have done its job. As pointed out by Thomas

Rooney, city relief officer in Toronto,

You will be doing Canada a wonderful service if you write in your paper that there are 50 per cent of the people whom I report to the immigration authorities who should never have been admitted to Canada. ... It costs the city over $1,000,000 a year for its hospital relief work and more than 40% of those who received relief were not Canadian born.134

A similar accusation was made by Dr. J.M. Robb, Ontario Minister of Health.

Commenting on the recent deportation cases, he blamed both the press and the federal government while absolving the province of any wrongdoing. Attacking the press, Dr.

Robb declared that the latter was fomenting the public against the provincial government and "striving to blacken the name of Canada in the eyes of the mother country."135 At the same time, Ottawa was not doing enough to prevent the arrival of undesirable immigrants; he therefore concluded that "it is our urgent duty to see that our Canadian portals are more jealously guarded in the future than they have been in days gone by."136

133 Toronto Star, 1 November 1930: 1. 134 Toronto Star, 4 November 1930: 36 135 Toronto Star, 5 November 1930: 3. 136 Toronto Star, 5 November 1930: 3. 207

Such ineptitude of the Immigration Department had resulted in serious overcrowding in

Ontario hospitals and high expenses for the province. In support of his argument, Dr.

Robb noted,

When I tell you that out of 1,853 admissions to our mental hospitals in 1929, 593 were foreign-born . . . you will readily understand that if it were not for this extraordinarily large percentage of foreign-born mental and epileptic cases, nearly all of our Canadian-born who are now awaiting admission to the institutions of their own native province would to-day be receiving up-to-date specialized treatment for the diseases from which they now suffer unrelieved. 137

Following a strategy often adopted by immigration authorities when using immigrants as scapegoats for all the troubles native-born Canadians faced because of mistakes made by the three levels of government or their failure to find adequate solutions, Dr. Robb insisted that "defective" immigrants were benefiting from services created by Canada for

Canadians. Though acknowledging the sad situation experienced by the families of those deported, he continued,

And who shall say that the undoubted tragedy of those deported cases is comparable to that of the long line of sufferers now forced through no fault of theirs to wait with what patience they may, their turn for admission to our overcrowded institutions? . . . our immigration laws are sound and eminently fair. . . . Canada is quite within her rights in repatriating those who by reason of disease from which they suffered previously to coming to Canada are becoming a life charge on the province of their adoption.138

Dr. Robb's argument was rejected in its entirety by Mayor Peebles of Hamilton who, commenting on the speech made the previous night by the provincial health minister,

137 Toronto Star, 5 November 1930: 3. 138 Toronto Star, 5 November 1930: 3. 208

argued that the recent deportations had been initiated by the province while the dominion

Immigration Department had limited itself to applying the law and the press had simply reported about the situation. Asked by the Star for his opinion, Mayor Peebles declared,

Hon. Dr. Robb is merely trying to shift the blame to the press when he accuses the newspapers of creating an unfavorable impression in England ... It is Dr. Robb and his department who are creating the unfavorable impression by their 110 high handed attitude with reference to these deportations.

The Mayor's opposition to having long-time residents deported was shared by other public figures. Among them, Hon. G.N. Gordon of Peterboro, former Minister of

Immigration, pointed out that "The letter of the law has not been violated, but the spirit of it certainly has been completely discarded. . . . The law has never been enforced to the letter. To do so is a most heartless thing."140 Similar concerns were expressed by

Councilor Eastwood of Bolton who, commenting on a recent case, declared,

This is another example of the inhuman action of the Ontario authorities getting rid of unfortunate people who, through no fault of their own, become ill in Canada. They think they can dump these poor creatures at Liverpool like cattle.141

The dissatisfaction towards the recent measures adopted by the Immigration

Department was not, however, always originating in feelings of empathy for immigrants; in particular, there was no agreement about where to draw the line between those who deserved to stay and those who did not. As it is evident from a letter to the Editor of The

139 Toronto Star, 5 November 1930: 1. 140 Toronto Star, 7 November 1930: 1. 141 Toronto Star, 11 November 1930: 23. 209

Globe written by a reader from Toronto, Mr. William Garside, some readers were against the deportation of British subjects, but had no concerns with respect to those coming from outside the Empire. In his accusation to the government, Mr. Garside attacked the

Canadian authorities for actions which have resulted in giving "this country the worst possible reputation in Great Britain and Australasia."142 He went on by arguing,

The soliciting and assisting of immigrants from those parts of the Empire to Canada has now gone to the other extreme of deporting hundreds of British residents in this country to the part of the Empire from which they came, in some instances ten years or a score of years after arrival here. ... it seems as if any pretext is now put forward to send away many residents of this country - for no worse reason than that they are out of work or have become ill.143

Mr. Garside's advice was not intended to safeguard people's rights as human beings but merely to acknowledge the alleged rights of British subjects. He concluded his letter by inviting officials of the Immigration Department to shift the focus of their attention and go back to work,

... by ridding Canada of a lot of foreigners who have no desire to assimilate with others who are here, and who are of such character and nature that no such thing can be thought of. Send a few hundred thousand of these people with unpronounceable names back to Central and Southern Europe and to Russia.144

A clear-cut distinction was made between those who were 'brothers' because part of the

Empire (though a further distinction should to be acknowledged between white and non- white 'imperial subjects') and those who remained 'strangers' in a land which had never

142 The Globe, 4 March 1931: 4. 143 The Globe, 4 March 1931: 4. 144 The Globe, 4 March 1931: 4. 210

embraced them. Despite the reference to long time residency, it seems obvious that time mattered only for those who belonged.

Of course, not all Canadians felt that way. Others were sincerely outraged by a policy of deportation that seemed not to care for the disbandment of too many lives, whether

British or from elsewhere. With no reference whatsoever to racial background, an editorial in The Globe pointed out that,

The series of deportation, including the kicking out of men and women who have lived long in the country and who have committed no crime except that of becoming ill . . . constitutes a record new to Canada, and one for which no apology or explanation seems to be forthcoming. ... A little common sense should be applied before the country becomes the laughing stock of the world.145

The same considerations were reiterated more than a week later when the paper

emphasized once again that "The wholesale deportations of the past few months have not

only agitated Canada but have also inspired indignant protests in the British

Parliament."146 In particular, the call was for eliminating "the possibility of similar

injustices by placing a reasonable time limit on legal deportations."147 Reflecting on the

fact that whole families had been torn apart, another editorial remarked,

. . . there is too often a tendency to regard them [matters of deportations] as mathematical rather than human. But the truth is that tragedy stalks behind scores of these human transshipments.... It is time that Canadians awakened to the fact that our deportation laws are brutal, unjust and unfair. 148

145 The Globe, 10 April 1931: 4 146 The Globe, 23 April 1931:4. 147 The Globe, 23 April 1931: 4. 148 The Globe, 17 August 1931: 4. 211

Although issues of deportation were outraging some community members, less concern was manifested for those immigrants who were neither on Canadian soil nor part of the British Empire. In that case, the plea not to let them in was as strong as ever from several sectors of society. It should not be forgotten that in those years, for example,

Canada was showing no compassion at all for Jews fleeing Austria and Germany and that, as pointed out by Avery, "the Canadian immigration gates remained virtually closed to these tragic refugees."149 Particularly intense were requests for keeping out of the country subjects who were neither 'productive' nor physically and mentally healthy. At the forefront of the campaign for banning "degenerates"150 were members of the medical profession; speaking at the Y's Men clubs convention, Dr. Peter Sandiford, Professor of

Psychology at the University of Toronto, "urged selective immigration for Canada."151

He defined the practice of taking in British and other European immigrants who were morally, mentally and physically weak as the result of a "mistaken idea of philanthropy"152 and added that "It has been a bad thing racially and nationally, this taking care of the insane and mentally ill, and the burden has become an enormous one."153 Dr. Sandiford also mentioned that, for those defectives already in Canada, whether nationals or not, the best solution was prompt sterilization. Addressing the audience, he explained,

There must be sterilization of the unfit if we are to preserve intelligence of the race . . . We can't take the lives of these people by means of a lethal chamber,

149 Avery 13. 150 Toronto Star, 1 June 1931: 20. 151 Toronto Star, 1 June 1931: 20. 152 Toronto Star, 1 June 1931: 20. 153 Toronto Star, 1 June 1931: 20. 212

but we have a perfect right to say they shall not perpetuate their kind. There is nothing painful about sterilization. It is a simple operation, not half as bad as having tonsils removed.154

In accordance with the general feeling about the admission of unfit subjects, the

Department of Immigration continued in those years to strictly apply the law. On

December 29, 1930, the Star reported that a Scottish girl, Miss Mary Doherty, on her way to St. Catharines to visit her mother, had been refused entrance because "of a slight

curvature of the spine."155 Based on the explanations provided to the paper by the

department of immigration, Miss Doherty,

. . . was physically quite incapable of competing in the Canadian labor market, and neither she nor her relatives were in a financial position to guarantee that she would not become a permanent charge on the Canadian public at some early date.156

The paper also gave an account of two other cases in 1932 and 1934. In the first instance,

a wealthy farm owner, Mr. Fred Seabrook, was refused admission to his British wife-to-

be because of her mental conditions. Despite assurances he would cover any future

expenses, the Immigration Department in London told Mr. Seabrook that,

. . . guarantees against becoming a public charge would not secure admission to Canada of a person who failed to pass the medical examination. No immigrant can enter Canada if he or she has been insane.157

154 Toronto Star, 1 June 1931: 20. 155 Toronto Star, 29 December 1930: 1. 156 Toronto Star, 31 December 1930: 30, 157 Toronto Star, 18 February 1932: 23. 213

A similar occurrence was reported two years later when John Steele, farmer and astrologer, was denied entrance to his fiancee who did not pass the medical examination

1 S& in Great Britain because "She has a slight deafness in one ear."

During the following decade almost no articles on the subject of medically inadmissible immigrants appeared in either The Globe or Toronto Star, most likely because the war brought more pressing matters to light, together with the fact that the movement of people was halted by the difficult conditions imposed by the Depression

and by the war itself. Only with the end of the hostilities and better economic conditions

immigration was revived and the old problems came back on the radar screen, this time

further complicated by new issues of refugee settlement. After more than twelve years of

silence, on February 15, 1946, the Toronto Star reported a new case of immigrant

rejection. Patricia Stowe, the 11-year-old daughter of a moulder and war worker, was

coming to Canada with her mother and three brothers from Newfoundland (which would

become a province of Canada in 1949) to join her father when she was denied entrance

by an immigration officer on the ground she was of the "Mongolian type"159 and

therefore "likely to become a public charge."160 Despite a bond put forth by the father

together with three of his co-workers and an uncle of Patricia, the girl was sent back. In

the words of an official of the Department of Immigration, "Mental defectives of

Mongolian type are barred from Canada by statute ... and cannot be admitted to Canada,

158 Toronto Star, 23 April 1934: 7. 159 Toronto Star, 15 February 1946: 17. 160 Toronto Star, 15 February 1946: 17. 214

even on bond."161 Asked about his options, Mr. Stowe said that he would not leave his daughter behind and bring the rest of the family in Canada. Explaining why leaving

Patricia in an institution back in Newfoundland was not a viable alternative, he told the

Star correspondent,

What kind of father would I be to do that? She would die without her mother. If she cannot come to Canada, then I will have to give up my job here, and return to Newfoundland, though my prospects of getting work there now are slim.162

Denouncing the unfairness of the decision, he also declared: "I came to Canada when

Canada needed my work ... It is not right that my daughter should not be allowed to come to Canada to live with me."163

Even more complicated was the issue of immigrants coming from European countries which had been devastated and impoverished by World War Two. While maintaining the right to choose who should have been accepted or kept out, Canadians understood that it was quite controversial to deny help to those same persons Canada had fought to free and rescue just few years earlier. Moreover, as a founding member of the United Nations,

Canada had acquired responsibilities on the international scene, among them the commitment to help solve the problem of refugees and displaced persons coming from

Europe.164 It was not realistic to expect these people to be healthy enough to meet

Canadian standards after years of malnourishment and dislocations. On March 6, 1952,

The Globe and Mail raised the issue in commenting on the statements made in the

161 Toronto Star, 15 February 1946: 17. 162 Toronto Star, 15 February 1946: 17. 163 Toronto Star, 15 February 1946: 17. 164 Avery 145. 215

legislature by the Ontario Minister of Health with respect to the unsatisfactory state of those arriving to Canadian shores. Dr. Mackinnon Phillips had reported that a considerable cost had been incurred by the province in treating displaced persons.

Opposing any suggestion for stricter immigration rules, the paper pointed out,

These people, these refugees, have gone through years of hunger and hardship, which inevitably have weakened their resistance against disease. Could anybody reasonably expect them to be as hale and hearty as Canadians?165

Arguing against Dr. Phillips' proposal to tighten the country's immigration policies and establish a more accurate examination process, the editorial commented,

What Dr. Phillips proposes ... is that only supermen and superwomen and superchildren should be admitted to Canada. What he suggests is an examination so grueling that many - perhaps most - Canadians would flunk it. Surely, we cannot be quite so fastidious. Surely, we cannot expect the countries of Western Europe to let us pick and choose among their citizens in this manner, taking one in a hundred, and flinging the rest back as so much riff-raff.166

Despite the understanding that some flexibility had to be exercised in the case of refugees, still Canada had no intention to let its door wide open to indiscriminate immigration. A number of articles appeared in the following years in the Toronto Star informing about various rejections of immigrants with physical or mental disabilities. On

May 11, 1954, for example, the paper reported about a couple close to celebrating their twenty-fifth anniversary who was prevented from reuniting the whole family by the refusal of immigration authorities to allow the youngest child, a seventeen-year-old living

165 The Globe and Mail, 6 March 1952: 6. 166 The Globe and Mail, 6 March 1952: 6. 216

in Holland, to enter the country. According to immigration officials, the boy, a skilled brick-layer, was "a little slow mentally"167 and therefore under the class of people barred from Canada. Another story was brought to the public attention when Mr. Leslie Horan, a

British man wishing to immigrate to Canada with his wife and children, wrote a letter complaining about Canadian immigration restrictions. As Mr. Horan explained in his letter, he had seen his application rejected twice "on account of my youngest son, aged 11

• 1 years, being a spastic and unable to walk properly." Even more troubling was the content of another letter sent by a chemical engineer who had emigrated from India and was not allowed to bring his wife in Canada because of an error in the examination conducted by Canadian medical authorities in India. The man reported that his wife had been examined in New Delhi and "declared unfit because she had trachoma in her eyes."169 After visiting two eye specialists, she found out that there had been a mistake and that her eyes were "perfectly normal."170 Unfortunately, despite requests for a re- examination of the woman, the appeal was turned down since "according to Canadian medical rules . . . she can only be examined after one year and granted a visa if she is all right."171

Although the regulation barring those with physical or mental disabilities from

entering the country continued to be applied without hesitation, a change of tone occurred in the case of families applying for immigration when a member was inadmissible on

167 Toronto Star, 11 May 1954: 12. 168 Toronto Star, 19 December 1956: 6. 169 Toronto Star, 8 May 1957: 6. 170 Toronto Star, 8 May 1957: 6. 171 Toronto Star, 8 May 1957: 6. 217

medical grounds. On October 23, 1958, the Star published an article dealing with an Irish family barred from entrance because one of the children was epileptic. On that occasion,

an immigration official declared that the policy of the department was "to bar the entire

family rather than permit the family to be split up."172 According to the official, families were allowed to enter Canada and leave a child behind only in exceptional circumstances

1 T\ when the department had been satisfied that the child "will be properly cared for."

Although stating that the practice was "customary," evidence from previous cases points

to the contrary, as shown in the situations of the McConachie child and Patricia Stowe,

where both families were encouraged to immigrate and leave behind the sick member. As

explained in the chapter "The 'right' kind of citizen," the decision to reject the entire

family in case of one of its members being medically inadmissible was actually quite

recent having been introduced in the 1952 Immigration Act. On the other hand, what was

presented as "exceptional" was not so unusual, especially if the person barred was no

longer a minor. On March 28, 1959, a reader wrote a letter to the paper explaining that

his only son, living in France, had been prevented from joining him because afflicted by

arthritis and using a wheelchair as a result of a war incident. The letter is valuable since it

contains the first reference the author has been able to find of the connection between

disability and the rights of individuals, something which will appear frequently in the

years following the passage of the Canadian Charter of Human Rights and Freedoms. As

argued by the reader,

172 Toronto Star, 23 October 1958: 31. 173 Toronto Star, 23 October 1958: 31. 218

The laws and immigration regulations are obviously designed to protect society, but surely it is not their intent ... to wreak more suffering upon an already helpless and agonized victim of the fortune of war. If they are indeed so inflexible, then surely they are inhuman and contrary to the Bill of Human Rights.174

In that year, two more topics related to medically inadmissible immigrants emerged in the press. The first one concerned the already discussed situation of those immigrants now in Canada who faced deportation in case of sickness and need of hospital care.

According to Dr. Jack Griffin, general director of the Canadian Mental Health

Association, the consequences of such a policy were highly negative. The doctor stated that the existence of the section of the Immigration Act providing for deportation of an

immigrant who had become an inmate of an asylum or hospital had prevented many

immigrants from seeking appropriate treatment "for themselves or for relatives who

could be cured."175 He therefore urged the government to rescind the section in question.

The other issue inflaming the debate was the scarce effort of the country in assisting and

welcoming refugees. In a report prepared by the Star staff writer Ron Lowman, it

emerged that,

... we [Canadians] are still niggardly with financial aid to care for the refugees, we still bar our door more closely against them than most other nations, and we have lent fewer trained officials than other nations for overseas refugee work.176

Moreover,

174 Toronto Star, 28 March 1959: 3. 175 Toronto Star, 2 March 1959: 6. 176 Toronto Star, 17 December 1959: 6. 219

While Canada virtually ignores the plight of the refugees our selfishness is accentuated by our immigration policy of accepting only the healthiest and cleverest European immigrants. From 1955 to 1958, for instance, we received 43,800. These may have included a few refugees - but only very healthy ones. In that same period, it was the little Scandinavian countries which showed compassion by receiving the sick, the halt and the lame. . . . Yet their resources and space are smaller than ours. 177

The impact of the report on the Canadian government was not negligible if two days after the publication, Immigration Minister Ellen Fairclough (Progressive Conservative) publicly stated that Canada was willing to admit a larger number of 'handicapped' refugees. At the same time, the minister made clear that the number of refugees admitted was dependent on the willingness of the provinces to take care of them. Explaining that her department was "happy to facilitate" the acceptance of more handicapped refugees,

she also added that "Somebody has to take care of them when they get here - and that's a

provincial matter."178 Of course, the statement did not go by unnoticed; Mr. Leslie Frost,

Conservative Premier of Ontario, commented that "she [Mrs. Fairclough] didn't know

what she was talking about."179 More nuanced but still critical was the response of the

Liberal Leader, Mr. Lester Pearson, who pointed out that the responsibility of accepting

refugees rested with the federal government and that "it was up to Ottawa to "take the

180 initiative" and work out a plan with the provinces." It is not redundant here to remind

that Canada (and not the individual provinces) was a member of the United Nations, and

had therefore assumed certain obligations towards the international community.

177 Toronto Star, 17 December 1959: 6. 178 Toronto Star, 19 December 1959: 1. 179 Toronto Star, 19 December 1959: 1. 180 Toronto Star, 19 December 1959: 1. 220

As seen in previous chapters, the 1950s witnessed a new interest around the topic of rights for citizens with disabilities. New legislation was passed in Parliament in response to the demand for greater recognition of disabled people's needs and rights. Such legislation was the outcome of increased effort by the disabled community to organize and lobby the three levels of government to create a more inclusive society. Certainly, these changes impacted the lives of disabled Canadians much more than they did those of immigrants with disabilities. In fact, while passing laws meant to better the lives of

Canadian citizens with a disability, Parliament had also passed in 1952 a new

Immigration Act (it became effective June 1, 1953) which "exhaustively listed the

1QI prohibited classes and established the right of examination of immigrants." In spite of political inaction with respect to any positive changes in the medical inadmissibility clause, the fact remains that a new general climate was developing around issues of disability and, as little and apparently insignificant as it was, its effect was also going to be seen in the way Canadians started to look at immigrants with a disability. An example of this new attitude is shown in the article published in the Toronto Star on September

11, 1964, which reported the outcome of the United Church of Canada's 21st General

Council held the day before. Among the issues dealt with by the church, "A more humanitarian immigration policy was urged." The Council argued that "a royal commission should examine the principles Canada's immigration policy is based on, and that handicapped people should be given an opportunity to enter the country."183 In

181 Hawkins (1972) 101-02. 182 Toronto Star, 11 September 1964: 3. 183 Toronto Star, 11 September 1964: 3. 221

contrast to the existing situation whereby "Canadian law only allows admission of those who serve the best interest of the country," the Council "urged adoption of the

T O4 humanitarian principle that the needs of unfortunate people in this world" could be met

in Canada.

Another critical view of immigration laws concerning people with disabilities

appeared in the piece written by Marvin Schiff for The Globe and Mail on July 22, 1965.

The editorial condemned those sections of the US' immigration law and Canada's

immigration law which imposed restrictions on 'retarded persons' seeking entry in both

countries. Though recognizing that "a state must reserve the right to refuse admittance to I persons who are likely to become burdens to its taxpayers," the author harshly

criticized "the language in which sections regarding mental deficients are couched,"186 187 defining it as "emotionally repugnant." In order to make his point, Mr. Schiff quoted

Ruth Doehler, a former research worker with the Canadian Association for Retarded

Children (a federation of provincial associations that was formed in 1956), as saying, The words idiot, imbecile and moron have not been found in modern medical literature for many years. They are repulsive as well as outdated. The same can be said for the word insane, and medicine has yet to define the word 1 88 psychopathic.

Furthermore, as argued by Professor John R. Seeley, former York University sociologist,

"We must recognize the damage that is done by the defining process itself, in which a

184 Toronto Star, 11 September 1964: 3. 185 The Globe and Mail, 22 July 1965: W02. 186 The Globe and Mail, 22 July 1965: W02. 187 The Globe and Mail, 22 July 1965: W02. 188 The Globe and Mail, 22 July 1965: W02. 222

human being becomes very largely what he is said to be as a consequence of what is said about him."189 Finally, the piece criticized the fact that, despite the existence of allowances in both Canada and the United States for the waiving of those sections of the

Acts barring mentally disabled persons, those allowances were not made known to the public and, even more troubling, were applied inconsistently.190

The discussion around immigration laws concerning the "mentally retarded" reached the attention of politicians and a group of Canadians was assembled to meet with US

Congressman John Fogarty, known as "a strong spokesman for the retarded,"191 with the purpose of strategizing to liberalize the laws. Among those joining the group, a Member of Parliament (whose name does not appear in the article) stressed his will to prepare a bill which would recognize "the dignity of the individual,"192 while another participant put the emphasis on helping the families of those who "cannot immigrate for better jobs

I GO when they have a retarded child.'"" As part of the results of these discussions, Mr.

Hubert Badanai, parliamentary assistant to the Immigration Minister, told a York South

Liberal meeting that "In light of present medical knowledge,"194 the Department of

Citizenship and Immigration was planning "to revise its policy on the admission of retarded and mentally ill persons."195 Despite of the declared intention, sectors of society continued to put pressure on the government to amend the current legislation. On January

189 The Globe and Mail, 22 July 1965: W02. 190 The Globe and Mail, 22 July 1965: W02. 191 The Globe and Mail, 26 July 1965: 12. 192 The Globe and Mail, 26 July 1965: 12. 193 The Globe and Mail, 26 July 1965: 12. 194 The Globe and Mail, 1 October 1965: 8. 195 The Globe and Mail, 1 October 1965: 8. 223

12, 1966, at the closing session of the Third Institute on Mental Health Services, the

Canadian Psychiatric Association, a national voluntary professional association for

Canadian psychiatrists founded in 1951, renewed the call for a different method of assessing potential immigrants to Canada. In particular, as pointed out by Dr. J.D.

Griffin, general director of the Canadian Mental Health Association,

. .. cases should be decided on individual merit and circumstances. The objection to the present act is that it sets rigid rules and categories. Many persons who suffer from cyclical depression, for instance, are extremely creative and have much to contribute to the country.196

At the same time, the association agreed that "Landed immigrants who become ill after they are in Canada should not be deported because of mental disorder."197

In February 1967, the Canadian Mental Health Association brought its request in front of the Senate-Commons Committee on Immigration. In that venue, Dr. Griffin argued that many newcomers who "enter hospital for a short period of time for treatment of a severe emotional depression . . . may recover in a few weeks."198 He also remarked that often they were simply suffering from "culture shock" which he defined as,

... the shock of hying to adjust to new conditions, new values, new ways of doing things. Sometimes the shock is too much for them. Sometimes they break down as a result.199

196 The Globe and Mail, 13 January 1966: 23. 197 The Globe and Mail, 13 January 1966: 23. 198 The Globe and Mail, 17 February 1967: 10. 199 The Globe and Mail, 17 February 1967: 10. 224

Supporting Dr. Griffin's attempt to prove that not all cases of mental illness resulted in

"unproductive" subjects, Dr. G. Allen Roeher, executive director of the Canadian

Association for Retarded Children, presented data indicating that,

. . . 600,000 Canadians are retarded to some extent. They and their relatives total 2,500,000. However, 75 per cent of the 600,000 are only mildly retarded and can take jobs in industry.200

The briefs prepared by the Canadian Mental Health Association and the Canadian

Association for Retarded Children received scarce attention in the press. Whereas The

Globe and Mail limited itself to basically reporting what had been said in front of the

Senate-Commons Committee on Immigration, the Toronto Star included some comments on the two briefs. While admitting that certain situations were better dealt with

"compassionate exceptions" to the present law, the paper took a cautious approach, thus standing by the principle that "Canada as a general rule should not accept immigrants who are acutely ill or who are likely to suffer relapses"201 and that "The host country is

2Q2 undoubtedly entitled to set minimum mental and physical standards for immigrants."

This was in line with what the White Paper on Immigration Policy had reiterated one year earlier, namely the need for keeping out of Canada those people deemed as "misfits" by immigration officers.203

Regardless of repeated promises by the government that the restrictions for 'mentally retarded' were going to be relaxed, not much was accomplished in the immediate in

200 The Globe and Mail, 17 February 1967: 10. 201 Toronto Star, 1 March 1967: 6. 202 Toronto Star, 1 March 1967: 6. 203 Avery 178-80. 225

terms of legislation, though a more flexible attitude was registered in the application of the law. In 1968, for instance, the Star reported the story of a 7-year-old girl from

Guyana, Annabelle Lopes, who had arrived in Canada two years earlier and had been ordered deported because she "is deaf and has a heart murmer [sic]."204 Luckily for

Annabelle, in what the paper defined as "placing compassion ahead of department regulations,"205 Immigration Minister Allan MacEachen had intervened and ruled the girl and her mother could remain in Canada. In commenting on the Minister's decision, the

Star remarked,

We have had frequent examples in past years of how immigration regulations, rigidly applied, have brought disappointment and tragedy to some who had hoped to build new lives in Canada. It is heartwarming to see that the new immigration minister doesn't hesitate to bend the rules for the sake of a little girl.206

Four years later, even wider publicity received the case of Lina Di Carlo, an 18-year-old who had arrived in Canada in 1966 and had lived since then under a temporary permit because she had polio as an infant and used a wheelchair. Being considered an undesirable immigrant, Lina was prevented from getting landed immigrant status and therefore also from applying for a disability pension and taking advantage of any vocational rehabilitation opportunities. Without the pension, she could not pay for "high school and university and eventually obtain a job to support herself."207 Miss Di Carlo's

204 Toronto Star, 1 December 1968: 6. 205 Toronto Star, 7 December 1968: 6. 206 Toronto Star, 1 December 1968: 6. 207 Toronto Star, 12 August 1972: 1. 226

plea of being allowed to finish school and "support myself with a job"208 highlighted one of the many contradictions embedded in the Canadian immigration policy, particularly the charge that some immigrants were unproductive subjects because of their disability. It was instead the unequal treatment received in the country that forbade them from contributing to society. Although the story of Miss Di Carlo had a happy conclusion with the girl being granted immigrant status by Immigration Minister Bryce Mackasey, the department reiterated that the rules had been bent but they were not inherently wrong. In both the Star and The Globe, a spokesman for the Minister explained,

Miss De [sic] Carlo has been in the country for five years and in that time she did not become a public charge. She has done well in school and the minister felt, for humanitarian and compassionate reasons, that she deserved landed immigrant status.209

An exception had been made, yet the rules were unchanged. In the 1970s, while a number of identity groups were fighting for their rights all around North America, Canadian immigration policy proved that immigrants could receive compassion, but a discussion around their 'rights' was still far away from becoming a reality.

In those years, another story got widespread attention in the press while offering the

Immigration Minister another opportunity to show generosity. On November 6, 1972, the

Star reported that the Immigration Appeal Board had ordered deported Lynn Hackett, a

23-year-old Californian blind woman with a mild form of epilepsy. Despite having a job and friends willing to guarantee she would not become a public charge, the Board had

208 The Globe and Mail, 14 August 1972: 5. 209 The Globe and Mail, 17 August 1972: W04. Toronto Star, 17 August 1972: 3. 227

declared Ms. Hackett inadmissible to Canada and decided "she will be deported to her native California."210 In an editorial published in the same issue, Alexander Ross wrote that the decision "makes me feel ashamed of my country." The author went on by saying,

In a way, I can sympathize with the three members of the board who made this decision. On a baldly legal basis, Lynn's case was not a strong one and the members must have been mindful of last week's election results, which reflected the public's concern at this country's overly indulgent immigration procedures. But from a humane point of view, the decision to deport Lynn Hackett is disgustingly callous.212

From an academic and contemporary perspective, Mr. Ross' comments appear quite interesting when considering that just two days later, both the Star and The Globe were publishing first-page articles announcing that Immigration Minister Bryce Mackasey had his office flooded with so many appeals, "letters, telegrams and petitions"213 that he

"decided to override a deportation order"214 against the woman. According to a spokesman for the Minister, "the wave of public sympathy and support. . . was a major factor in the minister's decision."215 How is it possible to reconcile such an outburst of solidarity towards the young woman with Mr. Ross' statement that the public did not approve the largesse shown by the government in accepting immigrants with mental and physical disabilities? Where did the truth lie? As this and previous chapters demonstrate, society, or better those representatives of society that we have been able to look at

210Toronto Star, 6 November 1972: 1. 211 Toronto Star, 6 November 1972: 25. 212 Toronto Star, 6 November 1972: 25. 213 Toronto Star, 8 November 1972: 1. 214 The Globe and Mail, 8 November 1972: 1. 215 Toronto Star, 8 November 1972: 1. 228

throughout this investigation, often appears to assess issues such as immigration in terms of convenience: as long as immigrants do not bother us or take away what is perceived as

'ours,' they are not a major problem. Things change when immigrants have special needs, when they require health care or welfare, when they are no longer useful tools but are perceived as a burden. Yet when the occasion arises and some sensational case jumps to the national attention on the front-page of major newspapers, there is a tendency to prove how compassionate and generous society can be. Showing compassion in single cases

serves the double purpose of appearing humane without actually questioning the basis of

the general rule. After all, it is just an exception, but one enough to make society look

good.

The following year, another case generated requests for the Minister's intervention.

On June 20, 1973, The Globe and Mail reported that Dr. Jun Yee Ho, a 32-year-old

Taiwanese woman who had been admitted to Canada on a student visa, was to be

deported because she "fell within the section covering insane persons."216 Numerous calls

were made by the public to Manpower and Immigration Minister Robert Andras

protesting against the deportation order. The Canadian Mental Health Association,

represented by its general director, Dr. George Rohn, defined the action as

"discriminatory . . . against the mentally ill"217 and "one more example of the still-

pervasive discrimination and stigma and unfair treatment of people who are sick."218

Public pressure appeared to carry its weight. Despite the Minister's refusal to intervene

216 The Globe and Mail, 20 June 1973: 13. 217 The Globe and Mail, 21 June 1973: 45. 218 The Globe and Mail, 21 June 1973: 45. 229

under the excuse that "The Immigration Appeal Board has the final say,"219 Dr. Ho was in the end allowed to remain in Canada after the Board agreed to another hearing and

"reclassified her under the Immigration Act."220 A similar 'happy' ending was reached in that year with respect to Miss Susan Baxter, an Alaskan woman who had been hired by the Alberta's Department of Health and Social Development in Edmonton, but who had been refused entry because accompanied by her "mentally retarded"221 11-year-old son.

After pressures from the National Institute for Mental Retardation (launched just four years earlier by the Canadian Association for Community Living), Immigration Minister

Robert Andras granted the boy a ministerial permit to enter the country after calling "that particular section of the law archaic."222 Among the arguments put forward by the

National Institute for Mental Retardation, the one by Dr. Allan Roeher pointed out that

"If a family is good enough to come into this country and make a contribution, then this country is obligated to accept any handicapped member of that family." Similar remarks were made by Mr. Paul McLaughlin, an associate of the Institute, who reiterated,

If we allow a family to enter Canada, we should also admit the retarded child who is a member of that family. The contribution that family is going to make is going to far outweigh any expense there may be of having that child here. We too often look at the situation solely in terms of economics.224

The 1970s and 1980s registered several cases settled by granting of ministerial permits because of humanitarian and compassionate reasons, without the law ever being

219 The Globe and Mail, 22 June 1973: 13. 220 The Globe and Mail, 8 October 1974: 14. 221 The Globe and Mail, 10 December 1974: 13. 222 The Globe and Mail, 13 December 1974: 13. 223 The Globe and Mail, 10 December 1974: 13. 224 The Globe and Mail, 14 December 1974: 15. 230

questioned or revised. In March 1975, for instance, parliamentarians intervened with the

Minister of Immigration to allow Hari Charan Singh, a Fijian citizen facing deportation because of a mental breakdown, to stay in Canada. Although "he had no previous history of mental illness and is reported by his doctors to be making a good recovery,"225 Mr.

Singh had been ordered deported by an Immigration Appeal Board on the basis of the section of the Immigration Act dealing with insanity. Pressured by a request from some

Members of Parliament, Immigration Minister Robert Andras agreed "looking at the case to see what discretion I may, or may not have."226 On the other hand, Mr. Andras made clear that "Certainly this has been a proper process of law, although admittedly a case where it is unfortunate."227 After considering the issue, Ron Button, assistant to the

Minister, confirmed that Mr. Singh was going to be given a special ministerial permit to

998 stay in the country in reason of the "extreme humanitarian aspects of the case."

Undoubtedly, there was a big pressure on the department to relax some of its rules, especially in cases where the health conditions causing rejection or deportation were not perceived any longer as threatening to or by Canadians. As pointed out by an editorial published in the Star, Immigrants to Canada have to meet health regulations so that Canadians are protected against communicable diseases, and the prospect of supporting people who will be a drain on society. But some of our health rules for immigrants go beyond that. . . . Epilepsy, mental illness and retardation are problems that

225 Toronto Star, 8 March 1975: A3. 226 Toronto Star, 11 March 1975: A8. 227 The Globe and Mail, 11 March 1975: 11. 228 Toronto Star, 14 March 1975: A4. 231

separate people from society in an unfortunate way. Our immigration laws confirm that separation. 229

In the case of mental retardation, people were getting impatient with a government that had publicly admitted the law was archaic and needed to be changed, yet seemed slow to act.230 Strong criticism was directed towards the Immigration Minister when

Patricia Meyers and her 13-year-old 'retarded' daughter were deported from Canada in early December 1975. The Canadian Association for the Mentally Retarded defined the decision "a grave miscarriage of justice."231 The press as well sided with Mrs. Meyers and her daughter; as noted by the Toronto Star,

... the majority of the retarded can live in the community and . .. can be trained and can even become self-sufficient. So why have Patricia Meyers and her 13- year-old daughter, Dina, been forced to leave the country? Yet everyone, from Immigration Minister Robert Andras to a special parliamentary committee . . . has said that a new law mustn't prohibit the entry of retarded children. The change will mean some extra cost to society for the special care and training these children may need, but humanitarian considerations outweigh this objection.232

Also critical of the decision was The Globe and Mail whose editorial held accountable the Minister for not stopping the deportation. While recognizing that ministerial discretion was to be used cautiously, the paper asked,

. . . would intervention in this case have brought yells of outrage down upon the head of the minister, Robert Andras? We think not. He could well have tempered

229 Toronto Star, 11 September 1975: B4. 230 The Globe and Mail, 21 October 1975: 12. 231 The Globe and Mail, 6 December 1975: 4. 232 Toronto Star, 8 December 1975: C4. 232

the law with mercy, at least in the extent of issuing a temporary minister's permit.233

Similarly outdated appeared the provision against admission of epileptics. The following year, public attention was brought to the issue when Vivienne Anderson, a

Briton married to a Canadian citizen, "turned down an offer of the landed immigrant status she has fought for three years to obtain."234 After staying in Canada under a minister's permit since 1974, the woman, who had been battling the Immigration

Department for repeal of the provision barring epileptics, had finally been offered landed immigrant status under the pretext that she suffered "not from epilepsy but epileptiform seizures (seizures akin to epilepsy)."235 Mrs. Anderson had declined the offer because, as she said in a telephone interview, "I believe the offer was made to try and shut me up."

Committed to change the law to the benefit of all epileptics, she went on explaining that

"If I accept landed status on the terms offered, it will be a one-off decision, which will do no one any good but myself."237 She saw the offer as a way to silence her since "I believe this process of calling the condition epileptiform seizures is used in certain cases the department wants to settle for its own reasons."238 Mrs. Anderson's decision generated a concert of support and solidarity, putting additional pressure on the government to review the legislation. Recalling repeated government promises to intervene and change the law barring epileptic immigrants, an editorial in The Globe and Mail noticed,

233 The Globe and Mail, 9 December 1975: 6. 234 The Globe and Mail, 22 January 1976: 1. 235 The Globe and Mail, 22 January 1976: 1. 236 The Globe and Mail, 22 January 1976: 1. 237 The Globe and Mail, 22 January 1976: 2. 238 The Globe and Mail, 22 January 1976: 2. 233

We have been hearing these assurances and promises for so long that the time has come to ask when we will have a Minister of Immigration with the bare minimum of courage necessary to do what he recognizes should be done. The courage needed, after all, is not great, by no means as great as the courage required by Vivienne Anderson, an epileptic who turned down the immigrant status she had been seeking rather than connive at a questionable Immigration Department dodge that would have left the offending law intact.

Although a spokesman for the department dismissed as "sheer nonsense"240 Mrs.

Anderson's claim that the offer of landed status had been made to silence her, Minister

Robert Andras had to concede that the section of the Immigration Act barring epileptics

was "an extreme embarrassment to the Government."241 Nevertheless, no immediate

legislation was passed to deal with the problem. On February 2, 1976, the Toronto Star

published an editorial accusing the Minister of good intentions which were not followed

by action. Referring to Andras' comment to the press, the piece noticed,

Immigration Minister Robert Andras is embarrassed by an outdated section of the Immigration Act barring epileptics from emigrating to Canada. But he's taking a too leisurely attitude to changing it. Epileptic immigrants may now enter the country by ministerial permit which, Andras says, gives them "the same privileges as any Canadian citizen." So he's going to leave the section as is until it goes to Parliament with a package of changes to the act. But an immigrant without landed immigrant status is only a guest in Canada, however privileged.242

A call to change the provision right away was also made by the Canadian Association of

University Teachers which sent a letter to the editor of The Globe and Mail asking for

239 The Globe and Mail, 23 January 1976: 6. 240 The Globe and Mail, 27 January 1976: 43. 241 The Globe and Mail, 27 January 1976: 43. 242 Toronto Star, 2 February 1976: C4. 234

prompt action. As the Executive Secretary for the association, Mr. Donald C. Savage wrote,

Changes to the immigration regulations can be made, in other circumstances, with little delay. Would it not be possible, in advance of any major overhaul of the Immigration Act, to introduce a small amendment to remove epileptics from the list of prohibited persons. Such a small, decent act would be widely applauded.243

The department stubbornly refused to bend, instead arguing that "no special reform dealing with epileptics will be introduced before a general revision of the Immigration

Act, probably this year."244 Meanwhile, Mrs. Anderson continued her campaign and turned down a second offer of landed immigrant status. In a letter to Mr. Andras, she wrote,

I must once again refuse to put my name to the form whereby I would condone the untruths by which you seek to give me landed status because I have obtained public support and have threatened to take a test case before the court, whilst refusing it landed status to others less articulate whose medical condition is not as severe as my own.245

Mrs. Anderson's resolve threw light on a tactic often used by immigration authorities: making concessions in order to keep everything unchanged. Playing on people's desperation to get in, the department opens the door to those few with enough financial, educational and social capital to publicize their case. It gives applicants what they want in exchange for silence. And not everyone has Vivienne Anderson's strength to say "No,

243 The Globe and Mail, 1 March 1976: 6. 244 The Globe and Mail, 13 February 1976: 5. 245 The Globe and Mail, 12 March 1976: 4. 235

thank you. That's not enough." Throughout the entire investigation, the author has found only two persons, Vivienne Anderson and Angela Chesters, who have been eager to turn down an offer that, though apparently giving them what they were seeking for, attempted to substitute charity for rights.

On the other hand, although new immigration legislation had been promised and was long overdue, there were a number of associated problems to be considered. In particular, as we have already seen in the previous chapter, Members of Parliament were concerned that a new set of provisions alone was not going to change much if the bulk of the decision-making process was left in the hands of bureaucrats who operated through regulations attached to the law and outside Parliament's control. Analogous concerns were also expressed by the press. On November 30, 1976, The Globe and Mail came out with an editorial piece congratulating the government on its intention to introduce new

legislation while also wondering whether the results were going to be as effective as

expected. The editorial remarked that a new law was no panacea, especially when

considering that "From the principles enunciated in the law to the decisions made by an

officer at a point of entry the linkage may be long and sometimes tortuous."246 In

explaining the point, the writer clarified,

. . . whether it works well or badly, will depend more on the regulations and instructions by which it is applied than on the bare bones of the principle, sound in itself, that is stated in the law. And if there is reason for misgiving about this bill it lies in the extent to which it leaves all the real decisions to be made, not by Parliament when it passes, rejects or amends the legislation, but by the Cabinet,

246 The Globe and Mail, 30 November 1976: 6. 236

or the minister - in either case on the advice of the Immigration Department itself - by regulations.247

Things still have not changed in this respect, thus bringing an excessive degree of subjectivity in a field where individual decisions should be kept to a minimum.

As indicated by politicians and the press, the new immigration policy was going to be complicated by a whole set of regulations that very few applicants searching to immigrate to Canada actually knew. This added to the fact that the legislation was not so open and welcoming to start with. As made clear by Barbara Yaffe, reporting for The Globe and

Mail on the case of a 12-year-old Hong Kong boy with Down's syndrome, the long- awaited new bill now discussed in Parliament,

. . . while removing the categorical ban on entry of epileptics, idiots, imbeciles and morons, does not guarantee that retarded children, such as the 12-year-old Hui boy, will be accepted. Exclusion of such applicants would be based instead on danger to public health or excessive demands on health or social services.

The same provision formulated in the new law in order to exclude the above categories did also apply in the case of persons with physical disabilities. All things considered, it was not by chance that the new Immigration Act of 1976 (passed August 5 of the following year) eliminated discrimination on the basis of race, national or ethnic origin, colour, religion or sex but remained silent on the issue of discrimination on grounds of disability. On November 29, 1978, the Toronto Star reported about an Ecuadorian paraplegic, Herman George Aviles, who had been paralyzed in a motorcycle accident and

247 The Globe and Mail, 30 November 1976: 6. 248 The Globe and Mail, 8 August 1977: 10. 237

had come to Canada on a temporary permit for treatment at a hospital in Toronto. Once the permit expired, he was told by immigration authorities to leave the country or face

deportation. After appeals to both Prime Minister Pierre Trudeau and Immigration

Minister Bud Cullen, the latter replied that he had no intention of intervening since

"Canadian taxpayers probably would be burdened with Aviles' medical bills."249 In a last

attempt to remain in the country, Mr. Aviles applied on compassionate grounds for a

ministerial permit, claiming that "Canada has better medical facilities and job

opportunities than his native country."250 However, Mr. Cullen refused to act stating that

he did not want to create a "dangerous precedent."251 Explaining what he was referring

to, he said,

Anyone needing a particular kind of medical treatment available in Canada but not in his or her homeland would be in a position to come to Canada and seek to remain. We have provided a service, but this must not become a new way of immigrating to Canada. 252

The late 1970s witnessed the explosion of a major case that visibly illustrated the way

immigration was also a political tool to potentially gain or lose the support of the

Canadian population or at least sectors of it. On December 8, 1979, the Toronto Star

brought to public attention the story of Neelam Kohli, a blind woman from India who had

been in Canada since 1977 under a visa permit after arriving with her mother, brothers

and sisters, all of them accepted as landed immigrants. Despite guarantees from the

249 Toronto Star, 29 November 1978: B14. 250 The Globe and Mail, 11 December 1978: 9. 251 The Globe and Mail, 11 December 1978: 9. 252 The Globe and Mail, 11 December 1978: 9. 238

family that the girl was not going to become an economic burden for the state, the

Immigration Department had ruled Miss Kohli to be "medically inadmissible" and ordered her deportation. According to Immigration Minister Ron Atkey, "there are adequate facilities in India for Neelam Kohli's care."254 The case generated reactions among several readers sympathetic to the girl. Among the appeals to let her stay, a letter by Ron Santana of Ottawa to The Globe and Mail pointed out,

More than 16,000 persons who were already in the country were permitted to become landed immigrants in 1978, on humanitarian grounds. If the department can make 16,000 exceptions to the rule, one more deserving case, such as that of Neelam Kohli, is not going to make any difference.255

Of a different character were comments published in the Star where some readers of

Indian background perceived the rejection as a racist attack against the whole community. In a letter published on January 2, 1980, Veerendra Adhiya, producer of a

Hindi radio program in Mississauga, declared to speak "on behalf of the majority of East

Indians - approximately 100,000 in the Metro area"256 in asking the Minister to intervene. His message to Atkey was not expressed as a request for favors; as Mr. Adhiya made clear,

This is not a threat, but Atkey should know that there are more than 2,000 East Indian voters in his St. Paul's riding and ... deportation of a blind girl from India are surely going to cost him votes.257

253 Toronto Star, 8 December 1979: A5. 254 Toronto Star, 12 December 1979, p.A12. The Globe, 12 December 1979: 9. 255 The Globe and Mail, 28 December 1979: 7. 256 Toronto Star, 2 January 1980: A9. 257 Toronto Star, 2 January 1980: A9. 239

While aware that letters published on newspapers are handpicked by the editorial staff and therefore tend to reveal more about the latter than about the general public, still they can give us hints around some of the trends in society. In this case, the letter seems to mark a defining moment in the development of immigrant groups' consciousness. It should be read in conjunction with the fact that immigrant minority groups in the late

1970s-early 1980s were acquiring awareness of being a consistent sector of society and a power to be reckoned with. This, in turn, was the result of an increase in the number of visible minorities accepted into Canada after the late 1960s-early 1970s elimination of racist barriers in the immigration process. For instance, whereas Employment and

Immigration Canada reported Britain and the United States as the main sources of immigration in 1968, twenty years later they had been replaced by Hong Kong and

India.258 These groups were starting to realize that their growing presence in the Canadian national and provincial arena allowed them to make a difference. It could be read in this light, and sure it was by the Star, the announcement that, with an election coming the month after, "Immigration Minister Ron Atkey promised yesterday to review a deportation order against a blind East Indian woman."259 It appears that the threat of losing the immigrant vote had proven more effective than a few opposing voices such as that of a reader from Etobicoke who had argued,

That blind girl from India . . . should consider herself fortunate to have been allowed to remain in Canada for more than two years when she was admitted

258 Avery 171. 259 Toronto Star, 15 January 1980: A2. 240

only on a visitor's permit. Illegal immigrants should be allowed no appeal. Wake up Canadians, and speak up against these illegal immigrants.

Unfortunately for Atkey, another story came under the public screen a few days later.

On January 25, 1980, the Star reported the Minister was going to review the case of

Haijit Kaur, an Indian woman who had followed her husband in Canada just to find out he had decided to leave her. The discovery had thrown the woman into depression that

"swiftly grew into acute mental illness."261 She had consequently been ordered deported but the order was repeatedly postponed because she had been judged "too ill to fly

back."262 Nevertheless, the order stood since, as remarked by Mr. Atkey, "Canada was

9 f\\ not in the welfare business." The persistence of the Immigration Department in

declaring the woman should be sent back to India raised more than one eyebrow. As

pointed out by a Toronto Star editorial, The first task of the next minister of immigration . .. should be to implant a heart alongside the body of closely printed regulations that now holds sway, to teach the department's officials the meaning of compassion. . . . Now, no one is saying that Haijit Kaur should be allowed to stay on in Canada forever, but one can't help questioning the unfeeling way the immigration department goes about its work.264

The attack did not go unnoticed and the minister replied to the accusations by stating,

Neither I, nor the immigration officers whose duty is to administer the Immigration Act, fail to recognize that compassion and generosity of spirit must

260 Toronto Star, 17 January 1980: A9. 261 Toronto Star, 25 January 1980: A3. 262 Toronto Star, 25 January 1980: A3. 263 Toronto Star, 27 January 1980: Al. 264 Toronto Star, 30 January 1980: A8. 241

accompany the performance of that duty. . . . Unfortunately there is a conflict between our obligation to uphold Canadian law and the attempt of various persons to enter the country illegally. It is disappointing and disheartening to all of us when a supposedly reputable paper openly supports flouting the laws of our country.265

The situation became further complicated when, in a last attempt to stay in the country, the woman married Ravinder Kumar, a milk store operator. To everyone's surprise, the Minister decided "to go along with the "expulsion order" despite the marriage." Seeing no sparks of light, the newlywed couple went so far as to appeal, without success, to US President Jimmy Carter arguing that "In India she [Mrs. Kumar] would be in the same position as the U.S. hostages in Iran. Her life and welfare would be in jeopardy."267 In what resembled a real-life soap opera, the debate was also fuelled by the fact that the lawyer representing Mrs. Kumar was Mr. James Lockyer, "the New

Democratic Party candidate running against Immigration Minister Ronald Atkey in the

Toronto riding of St. Paul's." Despite reciprocal accusations on both sides and constant media attention, Mrs. Kumar was eventually deported on February 12, after the federal court presided by Judge Hugh Gibson rejected the application to keep her in Canada due to "poor health."269 In explaining the ruling, Judge Gibson said that the court "had no power to restrain the minister from carrying through with the order unless he was committing an illegal act, which he was not."270 Whether or not there were substantial

265 Toronto Star, 7 February 1980: A9. 266 Toronto Star, 6 February 1980: Al. 267 Toronto Star, 10 February 1980: A2. 268 The Globe and Mail, 11 February 1980: 5. 269 Toronto Star, 12 February 1980: A3. 270 The Globe and Mail, 12 February 1980: 2. 242

reasons to deport Mrs. Kumar, the only comment made with respect to the expulsion by

Immigration official Ron Bull was a reassurance to the public that "he had heard that Air

Canada had prepared a special meal for her on board the Toronto-London flight."271 Even the Minister of Immigration did not go much further than sympathizing with the left- alone husband by saying "he would try to facilitate Mrs. Kumar's return to Canada as a legal immigrant" though cautioning he would not "condone any queue-jumping."97 9

The deportation of Mrs. Kumar did not immediately stifle the debate since both supporters and opponents of the woman kept the discussion alive in the subsequent weeks. As pointed out by John Picton for the Toronto Star, the deportation itself had raised many criticisms due to the expense involved. Indeed, Mrs. Kumar's departure left behind "a bill for air fares totaling $6,125 - including round-trip tickets for a female escort and a doctor - and other costs to Canadian taxpayers that officials estimate may go as high as $80,000."273 On the other hand, this was not the only attack the immigration authorities had to face as some people persisted in condemning them for the inhumane treatment reserved to the woman. In Picton's words,

The Kumar case was a bad one for the immigration people because it left them looking like ogres when the news media carried pictures of a weeping Harjit being loaded onto a stretcher and carried to the plane.274

Overall, it seems that several readers who sent letters had been very impressed by the story and tended to empathize with Mrs. Kumar, though there were also few voices of

271 Toronto Star, 12 February 1980: A3. 272 Toronto Star, 13 February 1980: B19. 273 Toronto Star, 17 February 1980: Al. 274 Toronto Star, 17 February 1980: Al. 243

disagreement with the general attitude. Among the others, Mrs. A. Davidson of Toronto sent a letter to the Star expressing her disgust "with all the sympathy given illegal immigrant Harjit Kumar. . . . She cost the Canadian taxpayers $80,000 for lawyers, hospital expenses etc. She should not be allowed to return to Canada."

Politicians and the public were not the only ones to be concerned with the kind of immigrants entering the country; in April 1980, after an inquiry into the suicide of a

Korean man who had jumped through the window of his apartment, an inquest jury recommended that "Anyone with a history of schizophrenia should be banned from emigrating to Canada."276 Despite declaring to immigration authorities that neither he nor members of his family had ever suffered from mental illnesses, it was later discovered that the man had previously "spent three months under psychiatric treatment in Korea and two of his four brothers and sisters also had had mental problems."277 The Toronto coroner's jury additionally asked for all immigrant records to be kept on file in Canada until the immigrant became a citizen and for the screening of parents and siblings of schizophrenics.278 The jury's recommendations were harshly criticized by some members of the health service community. Among others, Dr. Brian Hoffman, staff member at the

Clarke Institute of Psychiatry, noted that "there is often a wide difference among countries' definitions of a schizophrenic."279 He expressed particular concerns for people coming from the US where schizophrenia was often equated with "deviant lifestyles" and

275 Toronto Star, 27 February 1980: A9. 276 Toronto Star, 2 April 1980: C6. 277 Toronto Star, 2 April 1980: C6. 278 The Globe and Mail, 2 April 1980: 3. 279 The Globe and Mail, 3 April 1980: 5. 244

for those arriving from the Soviet Union where political dissidents were jailed "under the label of schizophrenic."280 The suggestion was also opposed by John Gouyea, spokesman for the Canadian Mental Health Association. In pointing out that evidence indicated that children of schizophrenics had only one in ten chances of being affected by the disease, he declared,

We're shocked by what's going on, particularly because it carries discrimination against the mentally ill and the former mentally ill to new levels. Now they're going through family members, a new high in that form of discrimination.

A letter sent to the paper by Frank E. Cashman and Joel Jeffries of the Clarke Institute of

Psychiatry also remarked the inappropriateness of the recommendations. Arguing that "a diagnosis is not always completely reliable" and therefore "some people are mis- diagnosed,"282 the writers further reminded the public that the rejection of all schizophrenics was not necessarily a benefit for the country as,

One need only mention individuals like Nijinsky, who was schizophrenic; James Joyce, one of whose children was schizophrenic; and Vincent Van Gogh, who was possibly schizophrenic, to realize the dangers inherent in blindly following the dictates of the "genetic" of schizophrenia. Some authors would believe that to exclude patients with schizophrenia . . . would preclude many creative individuals who could contribute to our society.283

It is significant that no letters from the readership appeared on this subject, though of course we cannot be sure whether no letters were actually received or they were but the

280 The Globe and Mail, 3 April 1980: 5. 281 The Globe and Mail, 3 April 1980: 5. 282 The Globe and Mail, 22 April 1980: 6. 283 The Globe and Mail, 22 April 1980: 6. 245

newspapers chose not to publish them. Nonetheless, from previous cases reported by the papers and dealt with in this chapter, it seems that readers were more prone to show support for the acceptance of immigrants with mental or physical illnesses and disabilities when individual cases rather than general policies were brought to their attention. The phenomenon is not surprising as being charitable with a single person is easier than accepting to question the entire system upon which society rests. Proof of this is the fact that the following year a new uproar of support was generated when The Globe told the story of a Latvian Jew who had been denied access to Canada because in need of "an expensive kidney operation which relatives in Canada cannot afford."284 Fortunately for the young man, the article mobilized support for his entrance and, even more important, the piece came to the attention of a wealthy benefactor "who agreed to pay $30,000 in medical costs which would cover the kidney transplant."285 As soon as the government received the financial guarantee, "a minister's permit to enter the country was granted to

Mr. Markh."286

As the previous case illustrates, the main issue in allowing persons with disabilities or non-communicable illnesses to enter the country had become the cost these immigrants were going to represent for the taxpayer. This was the result of the introduction of the

Medical Services Act in 1968 (Quebec joined in 1972) which created a national public program securing public coverage of visits to hospitals and doctors together with access

284 The Globe and Mail, 16 January 1981: 15. 285 The Globe and Mail, 28 January 1981: 14. 286 The Globe and Mail, 28 January 1981: 14. 246

to diagnostic services.287 Whereas initially moderate concerns were raised about the cost involved for taxpayers, wider sensitivity to the money spent developed starting in the early 1980s when the country was caught in the middle of an economic recession. On the other hand, even in a time of fiscal crisis, once guaranteed an external financial support either by independent individuals/organizations or by provinces, the federal government saw no justifiable reasons from preventing entrance into Canada. This point was further demonstrated by the positive reception among federal politicians of the proposal made in

1981 by the Manitoba government to start accepting "disabled and handicapped refugees from Vietnam and other Southeast Asian countries."288 The plan was meant to "allow a refugee to join family members already in Canada despite the fact that he does not qualify for entry because of a physical handicap."289 Commenting on it, Ronald Collet, a spokesman for the Minister of Immigration, said,

... the idea of a province willing to accept handicapped and disabled refugees is "terrific" and has the full support of the minister. Mr. Collet said he could see nothing to prevent the federal Government from entering into such an agreement with a single province. Other provinces could join the program as they saw fit.290

The Minister himself expressed his hope that "most provinces will agree to a program based on a Manitoba proposal to increase the number of disabled refugees admitted to

Canada from Southeast Asia."291 To this end, he told the Commons that "a draft

287 Finkel 186-89. 288 The Globe and Mail, 7 My 1981: 11. 289 The Globe and Mail, 7 July 1981: 11. 290 The Globe and Mail, 1 July 1981: 11. 291 The Globe and Mail, 8 July 1981: 2. 247

agreement has been worked out and submitted to the other provinces for consideration."292

While welcoming the proposal for accepting medically inadmissible refugees whenever the province of residence was willing to cover the costs (but refugees are not considered 'immigrants' within the Immigration Act and their situation would require a separate study), the federal government remained steadfast in rejecting any potential immigrant who could end up representing a burden for Canadian taxpayers. On February

24, 1982, the Star reported that Helena Yu, the sister of a Canadian citizen born in Hong

Kong, had been denied entry because she was deaf and "according to immigration regulations, likely to "cause excessive demands on health and social services" in this country."293 The decision was contested by Rev. Bob Rumball, executive director of the

Ontario Mission for the Deaf; he argued the woman, who had been educated through the

Hong Kong School for the Deaf, was going to be an asset to the deaf in Toronto. The

Reverend explained that "she's been getting a better education at that school than anything we have for the deaf in this country. She'll more-likely provide leadership to the deaf in this country."294 Following a review at the immigration appeal board, the woman was allowed to join her brother in Canada; the appeal board decided that though "the rejection was made according to the law ... there were grounds warranting an appeal."295

As the paper pointed out in a follow up article,

292 The Globe and Mail, 8 My 1981: 2. 293 Toronto Star, 24 February 1982: A3. 294 Toronto Star, 24 February 1982: A3. 295 Toronto Star, 27 February 1982: A6 248

. . . there is little evidence that people who are deaf do, in fact, require more health or social services than the ordinary Canadians use in the normal course of their lives. An official of the Society for the Hearing Impaired in Toronto says that, while hard statistics haven't been compiled, every indication is that unemployment among deaf people is no greater than unemployment among the population as a whole. . . . Helena Yu . . . has a high school education, is skilled as a dressmaker, and communicates through sign language and lip-reading in both English and Chinese. By all the evidence, Helena Yu has the potential to be a contributor to Canadian society.296

Further indication that the subject of medical inadmissibility was closely tied to perceptions of the immigrant as an economic burden for the country was provided by another case that came out around the same time. In this instance, Hansaraj Singh, a

Guyanese married to a Canadian citizen, had flown to Toronto as he was in need of heart surgery. Despite doctors' statements that the operation was necessary in order to save his life, "immigration officials refuse to extend his three-week visitor's visa, because he . . . would cause excessive demands on health and social services."297 After the case reached the press, Roger White, a spokesman for the Department of Immigration, declared that the man was not going to be deported "until after his life-saving operation,"298 provided the wife paid the medical costs and signed a declaration to that end. Federal authorities were willing to bend the rules as long as additional expenses were kept under control.

What also emerges from a number of cases which came under public scrutiny in those years is that people were often denied immigrant status because of disabilities that were not actually likely to represent excessive costs to the country. Erring on the side of

296 Toronto Star, 1 March 1982: A14. 297 Toronto Star, 27 February 1982: Al. 298 Toronto Star, 2 March 1982: A7. 249

caution, immigration authorities tended to reject applicants merely on the basis of any condition which was perceived as 'unusual' without further investigations. Only those able and willing to fight the rejection were later accepted through ministerial permits once proving they were not going to be an economic burden. The story of Helen Yu was a case in point. In 1983, another immigrant woman went through similar sorts of mishaps and finally received permission to stay in the country. On August 31, Joe Serge wrote an article for the Star about Shernaz Kapadia, a polio victim from India whose parents and sister were permanent residents in Canada and who had been ordered to return to India because she was classified as "inadmissible."299 The woman had opposed the decision and sent numerous letters to immigration authorities explaining,

I wear braces and crutches instead of using a wheelchair. But I climb like a monkey when there are steps to climb. I love my independence at every cost. It is true that my handicap is permanent. But my general health is perfect. I am not a burden on anybody.300

She received support from Toronto lawyer Mendel Green who defined as "outrageous" the medical report suggesting the woman was likely to become a financial burden.

Fortunately for Shernaz Kapadia, Immigration Minister John Roberts agreed to review the case and intervened in order to let her stay in Canada. It is reasonable to wonder how many other persons were less fortunate and were never given a chance simply because they were too ignorant of the system or because their story never reached the attention of some newspaper correspondent who was willing to take a stand on their behalf.

299 Toronto Star, 31 August 1983: C13. 300 Toronto Star, 31 August 1983: C13. 301 Toronto Star, 31 August 1983: C13. 250

In spite of the publicity given to a number of cases in the press, significant changes to the way immigration authorities approached the issue of immigrants with disabilities were not implemented in the years leading up to the early 1980s. From the articles, letters and editorials examined so far, it also appears that although touched now and then by single stories of hardship, the readership of the two newspapers was reluctant to consider acceptance for those deemed medically inadmissible. The only notable change through the years had consisted in the justification behind the rejection. Whereas initially people with disabilities were kept out because they were deemed a threat to the genetic pool of the country or because unemployable and therefore unworthy due to their condition, after the 1950s emphasis switched to the costs involved in taking care of them. This is not

surprising when considering that throughout the 1950s and 1960s, two main changes had

occurred. First of all, as seen in the previous chapter, a new attitude towards Canadians

with disabilities had started to take place (especially following the returns of veterans

after World War Two and their subsequent activism aimed at creating broad public

support for their rights)302: once accepted that disabled citizens could no longer be

deemed deviant, unemployable and unworthy, it became difficult to use such an argument

with those who were not citizens. At the same time, in the 1950s and 1960s the medicare

debate animated Canadian society, ending in the late 1960s when Canadians were finally

303

provided with coverage of visits to hospitals and doctors, and diagnostic services. As

the government grew concerned with the issue of keeping medical costs down,

302 Aldred H. Neufeldt, "Growth and Evolution of Disability Advocacy in Canada," Making Equality, eds. Deborah Stienstra and Aileen Wight-Felske (Toronto: Captus Press, 2003) 19. 303 Finkel 189. 251

immigrants likely to use such services became more and more a financial expense

Canada was not willing to incur.

Despite the lack of concrete policy changes in the situation of medically inadmissible immigrants, it is important to highlight a major adjustment in the approach taken by both papers throughout their development. Whereas from the beginning of the twentieth century to the years immediately following World War One the Toronto Star and The

Globe limited their coverage to the general policy of immigration and were overall supportive of the federal government's handling of the situation with respect to

'undesirables', the tone of the debate began to change in the late 1920s and early 1930s.

During these years, individual cases started to appear and while the papers continued to be supportive of the actions of the federal government for what concerned the general refusal of diseased or disabled foreigners, they also began showing more sympathy for the unfortunate individuals who were penalized by the legislation. Whether this was

dictated by the fact that individual moving stories had a higher selling potential (which is

what papers were actually interested in) or by a desire to take advantage of the long held

'charity' approach to disability among the larger Canadian society,304 the point remains

that the exercise helped people to see beyond general abstractions and understand that

real lives were torn apart by the provision of medical inadmissibility. Undoubtedly, this

was a step in the right direction, yet not one able of covering huge distances. Things

definitely took a different turn in 1985 after the implementation of section 15 of the

304 Yvonne Peters, "From Charity to Equality," Making Equality, eds. Deborah Stienstra and Aileen Wight - Felske (Toronto: Captus Press, 2003)123. 252

Charter of Rights and Freedoms. The following chapter looks at the way the Charter affected public perceptions on the subject of potential immigrants with disabilities and how some of these new perceptions were reflected in the coverage provided by the two newspapers considered in this analysis. It is therefore time to move forward and explore how and to what extent the Charter impacted the approach of certain sectors of society to the medical inadmissibility provision contained in Canadian immigration policy. 253

Chapter 4

Medically inadmissible immigrants: Toronto Star and The Globe and Mail, 1985- 2002

The last chapter ended mentioning that no significant changes to the medical inadmissibility provision in the Canadian Immigration Act were implemented in the years leading to the early 1980s. It also observed that, on the whole, the same holds true for the coverage given to the issue in both the Toronto Star and The Globe and Mail. Despite the fact that from the early 1930s some sympathy was reserved in articles as well as editorials to foreigners considered as medically inadmissible, support for a general policy of selection and exclusion remained intact. Things started moving in a different direction in 1985 after the implementation of section 15 of the Canadian Charter of Rights and

Freedoms. Although included in the Constitution which had been repatriated in 1982, the equality-rights provisions were implemented only three years later in order "to give

Ottawa and the provinces time to review their laws and eliminate any discriminatory provisions that could not be defended in court as reasonable limits."1 Once implemented, section 15 of the Charter provided ammunition to challenge many of the laws and statutes which were perceived as discriminatory by a number of different identity groups, persons with disabilities among others.

This chapter looks at the impact of the Charter on the situation of immigrant applicants with a disease, disorder or disability as reflected in the coverage provided by both newspapers under scrutiny, The Globe and Mail and the Toronto Star. As in the case

1 The Globe and Mail, 1 February 1985: 8. 254

of the previous chapter, the goal of the author is not to identify the ideological positions of certain associations or sectors whose comments appeared in various articles, letters or editorials. Rather, the chapter aims at conveying the general tone of the public discourse formulated by the press and animating segments of civil society throughout those years; in particular, it focuses on what the press was writing on the issue and on what aspects were emphasized over others. Its purpose is to demonstrate that through time the

'equality clause' has affected the way some of the press has tackled the medical admissibility provision contained in the Immigration Act. Although the legislation in question has not been reversed or substantially modified, the Charter has given a voice to those excluded on medical grounds and, as we will see in the next chapter, has provided them with a powerful tool to contest the decision in a court of law. It has also contributed to a less supportive and more critical approach of the press towards the actions of the federal government with respect to those considered medically inadmissible to Canada.

The first outcome of the Charter was felt within days when on January 31, 1985, the

Conservative government introduced Bill .C-27 to amend various laws believed to be "in clear violation of the Charter of Rights and Freedoms."2 Among others, the bill eliminated "statutory powers of inspectors . . . to enter private homes without the consent of the owner or without a judicial warrant" and "the power of immigration tribunals to hold in camera hearings" as well as the power of the Human Rights Commission "to select members of tribunals that rule on cases of alleged discrimination raised by the

2 The Globe and Mail, 1 February 1985: 1. 255

commission itself."3 Of course, changes were not immediate and both Liberal and New

Democrat Party critics accused the government of dealing "only with the easy and non- controversial issues."4 Indeed, many of the more difficult legal questions such as those

"involving the equality rights of the sexes, racial and ethnic minorities, and the handicapped"5 were completely ignored. Nevertheless, it was just a question of time before these issues were going to appear on the radar screen of the judicial system. On

August 15, 1985, only four months after the implementation of section 15 of the Charter,

The Globe and Mail published an article on the case of a mentally disabled Indian woman who had been refused immigrant status; acting on her behalf, the Canadian Association for the Mentally Retarded (which two years later will change its name to the less problematic Canadian Association of Community Living) had challenged the decision and the whole immigration law as unconstitutional because it was in violation of the

Charter.6 As explained by Orville Endicott, the association's legal counsel,

. . . the woman's right under the Charter to equal benefit of the law is being violated because she is being discriminated against on the basis of mental disability. Mental or physical disability is a prohibited ground of discrimination under the equality provisions of the Charter.7

As we have seen in previous cases, Canadian immigration authorities abroad usually opted to exclude all those applicants with a disability, without really exploring in depth whether the condition was actually going to have a negative impact on the contribution

3 The Globe and Mail, 1 February 1985: 8. 4 The Globe and Mail, 1 February 1985: 8. 5 The Globe and Mail, 1 February 1985: 8. 6 The Globe and Mail, 15 August 1985: M02. 7 The Globe and Mail, 15 August 1985: M02. 256

the person could have made to society. Even more troubling was the discovery that often officials abroad were not equipped to conduct reliable tests and therefore ended up rejecting persons who were not affected by any disease or disability. On October 4, 1985, the Toronto Star reported that Abrar Zuberi, an immigrant from Pakistan, had been denied entry as medically inadmissible because he was affected by tuberculosis. After a series of tests in the US, Mr. Zuberi was however declared in good health. Being also a

British national, he had been able to reach Toronto and here as well doctors had found him to be a healthy man. Asked to comment on his ordeal, Mr. Zuberi declared that he hoped "something is done about the way medical reports are handled in India. I was lucky. I was able to come to Canada and speak out. Others are left high and dry."8 The case came under the scrutiny of the immigration section of the Canadian Bar Association; speaking on the issue, Toronto lawyer Carter Hoppe, vice-chairman of the association, expressed his concern that "in increasing number of cases, parents, spouses and children are denied sponsorship for medical reasons - although independent medical examinations show them to be healthy."9 According to Mr. Hoppe, it was evident that Health and

Welfare Canada doctors overseas "tend to err on the side of caution."10 Quite often, this resulted in doctors becoming "paranoid" in front of any indication of disease or disability

"in the family medical history"11 of the applicant.

Another story that received attention in the press around the same time concerned

Canadian veteran and former prisoner of war Fred Darvin, a 69-year-old who was born in

8 Toronto Star, 4 October 1985: A23. 9 Toronto Star, 4 October 1985: A23. 10 Toronto Star, 4 October 1985: A23. 11 Toronto Star, 4 October 1985: A23. 257

Manitoba but had later become a US citizen. In 1985 he had applied to come back to

Canada in order to spend his last years near his family. However, he had been deemed inadmissible because of his health condition. Since 1972, the man had "lost a kidney, part of his stomach and had his left leg amputated when gangrene developed."12 As soon as the news appeared in the papers, both provincial and national leaders of the Royal

Canadian Legion, created in 1925 to advocate on behalf of veterans and returned service members, began to mobilize in his favor and the Department of Employment and

Immigration came under attack. Despite the department's argument that "Mr. Darvin gave up his Canadian citizenship and is no different than any other U.S. immigrant,"13 several people were outraged by the decision of denying entrance to someone who had risked his life for Canada. Furthermore, in responding to the department's statement that

Mr. Darvin was likely to represent an economic burden if admitted, Ed Slater, director of service for the Dominion Command of the Royal Canadian Legion in Ottawa, dismissed it as nonsense. According to Mr. Slater, Fred Darvin was not going to be a drain on health services since he was entitled to "certain rights because he served his country during the

Second World War. He's a veteran."14 Mr. Slater added that "After all, this man fought for his country and he was a POW [prisoner of war], and if he was good enough to fight for Canada, then we should welcome him back."15

Because of the immediate flood of support Mr. Darvin received from numerous sectors of Canadian society, the Employment and Immigration Minister, Flora

12 Toronto Star, 22 November 1985: A2. 13 The Globe and Mail, 21 November 1985: A2. 14 The Globe and Mail, 21 November 1985: A2. 15 The Globe and Mail, 21 November 1985: A2. 258

MacDonald, agreed to review the case and granted the man permission to come back to

Canada. In her message to the press, Mrs. MacDonald declared that "she was only made aware of the case through The Globe story"16 and that she was willing to issue a ministerial permit to Mr. Darvin. However, the Minister's explanation of not being aware of what was going on in her department appeared to have little credibility, especially after

The Globe and Mail reported that the Veteran Affairs Minister, George Hees, had actually written her twice during the previous months pleading for reconsideration of Mr.

Darvin's case.17 Whether or not that was the truth is now difficult to ascertain and is probably not relevant to this investigation. More significant is the fact that Fred Darvin's story had brought forward much deeper questions around the value of citizenship and its meaning. For the first time, Canadians had been faced with the question of applying immigration regulations to 'one of their own' and this had created a very contentious battlefield between government authorities and certain segments of the population. It is also interesting to reflect on the fact that large parts of civil society seemed to perceive

Fred Darvin as Canadian while the federal government looked at him as a foreigner who had renounced Canadian citizenship of his own will, thus giving up the rights associated with that status. These antithetic approaches bring back to the forefront the distinction between substantive and formal interpretations of citizenship: whereas the former takes into consideration a whole set of factors involved in the definition of a 'citizen', the latter remains focused on a legalistic and limited definition of the term.

16 The Globe and Mail, 22 November 1985: 2. 17 The Globe and Mail, 22 November 1985: 2. 259

The mid-1980s also witnessed the emergence of the relatively new and difficult problem of how to handle immigration of people with HIV or AIDS. The problem was not exclusive to Canada and, as had often happened in immigration matters, the lead was taken by the United States. On February 4, 1986, the Toronto Star reported that the US

Secretary for the Health and Human Services, Mr. Otis Bowen, had signed an order

"requiring all permanent residents and immigrants to the United States to be tested for exposure to AIDS."18Once approved by the White House, the order was going to add

AIDS to the already existing medical conditions that excluded immigrants from entering the country as permanent residents. Substantiating the common belief that AIDS was a disease mainly affecting those who were outside the boundary of 'society', the paper remarked that "The disease is most likely to strike homosexuals, abusers of injectable drugs and hemophiliacs."19 It also implicitly suggested that the people affected were not going to be contributors to society since "About half the more than 400 cases of AIDS

90 diagnosed in Canada have died." As Thomas Yingling remarks in his work AIDS and the National Body, persons affected by HIV or AIDS have for long been considered outside the limit of the ideal national body; if this notion holds true for citizens, it is even more unshakable in the case of those who are not citizens of the country and therefore already considered as 'outsiders'.21

Although the debate of what to do when confronted by cases of applicants with HIV or AIDS was not completely absent from the Canadian scene, Ottawa initially refused to

18 Toronto Star, 4 February 1986: A10. 19 Toronto Star, 4 February 1986: A10. 20 Toronto Star, 4 February 1986: A10. 21 Yingling 25. 260

follow the example of its southern neighbor. In March 1986, the federal Health

Department declared it had "no plans to test all would-be immigrants for AIDS antibodies."22 The decision was not made because of a different approach to the issue than the US had, but simply "because of a lack of testing facilities and because it is possible to get false results."23 Despite a report prepared by the Canadian Bar Association asking that all immigrant applicants be tested, Dr. Alastair Clayton, director of the

Federal Government's Laboratory Centre for Disease Control, rejected the suggestion as

"premature because the test available is inconclusive" and it "is not available in all countries."24 Though it did not get implemented, the request put forward by the bar association was significant insofar as it indicated that certain sectors of Canadian society were firm in their opposition to the entrance of persons affected by the disease, and that several government representatives were not prejudicially against immigrants' testing. In its report, the association made clear that,

. . . immigration to Canada is a privilege and not a right. Individuals who show a positive test of the AIDS antibody have a 5 to 30 per cent chance of developing AIDS ... and those immigrants are expected to contribute to Canadian society.25

The debate continued in subsequent months as the US followed through with its plan to test all immigrants for AIDS. On June 9, 1987, the Toronto Star reported that "only a week after President Ronald Reagan called for "routine" AIDS tests for immigrants,

22 Toronto Star, 19 March 1986: A3. 23 Toronto Star, 19 March 1986: A3. 24 The Globe and Mail, 30 April 1986: A13. 25 The Globe and Mail, 30 April 1986: A13. 261

prison inmates and people attending sexual-disease clinics,"26 Attorney-General Edwin

Meese had announced the creation of a new "massive AIDS testing program" whose goal was to "bar all "immigrants, refugees and legalization applicants" who test positive for

AIDS."27 As expected, the news sparked further discussion in Canada. On June 10, 1987,

The Globe and Mail reported a statement made by Scott Leslie, chief of the department's immigration and quarantine section, explaining that Canada operated differently from its southern neighbor and did not conduct tests for AIDS. At the same time, while the US had decided to ban all immigrants and refugees who tested positive for AIDS antibodies,

Dr. Leslie unequivocally clarified that "people who test positive to AIDS antibodies will not be prevented from immigrating to Canada."28 Ironically enough, despite reassurances to the contrary, Ottawa was quick to change its mind about immigrants' testing. Just three months later, The Globe informed that Health Minister Jake Epp had confirmed that "The federal Government is reconsidering its decision not to make AIDS tests mandatory for prospective immigrants."29 Although giving "no indication of how soon a decision would be made," Epp told the House of Commons that "The federal Immigration Medical

Review Board, an advisory group for the departments of Health and Immigration, has reversed its position and now recommends AIDS testing of immigrants."30 Commenting on the rationale behind the recommendation, the Minister added that "his department is under pressure from some public and professional groups to introduce mandatory testing

26 Toronto Star, 9 June 1987: Al. 27 Toronto Star, 9 June 1987: Al. 28 The Globe and Mail, 10 June 1987: A13. 29 The Globe and Mail, 4 September 1987: A2. 30 The Globe and Mail, 4 September 1987: A2. 262

•2 1 of immigrants." However, the paper was careful not to present the suggestion as a fait accompli. The article also included comments by Dr. Alastair Clayton, director-general of the federal Laboratory Centre for Disease Control, who downplayed the possibility of imminent policy change. According to Dr. Clayton, "Mandatory testing of immigrants offers false impressions of improved security for Canadians and creates a nightmare of procedural difficulties."32 Additionally, there was still the question of "what to do with immigrant applicants and refugees already in Canada who test positive for AIDS exposure."33

Dr. Clayton reiterated his opposition to mandatory testing in November of that year, when stating that it did not represent an effective solution since, even if testing was conducted, it would only identify a number of people "so small the resources would be better spent on education."34 On the other hand, not all experts agreed with Dr. Clayton on the scarce efficacy of mandatory testing for AIDS. Among others, Tracey Tremayne-

Lloyd, national health law chairman for the Canadian Bar Association, was supportive of the idea as a means to spare Canada "enormous expense just in terms of the medical costs."35 The opinion was shared by Dr. Norbert Gilmore, chairman of the National

Advisory Committee on AIDS (established by the government in 1983 to advise the

Minister of National Health and Welfare on how to control and manage AIDS in Canada) who also provided the paper with concrete figures saying that "it currently costs $80,000

31 The Globe and Mail, 4 September 1987: A2. 32 The Globe and Mail, 4 September 1987: A2. 33 The Globe and Mail, 4 September 1987: A2. 34 The Globe and Mail, 10 November 1987: A3. 35 The Globe and Mail, 10 November 1987: A3. 263

to $100,000 in medical expenses alone to care for a person with AIDS."36 In explaining her position, Ms. Tremayne-Lloyd reiterated that "the obtaining of immigration status is a privilege and not a right."37 She went on adding,

. .. it's only reasonable for the admitting country to anticipate a person will be in a position to contribute to society once allowed in.38

Other experts agreed with Dr. Clayton's suggestion that the money should be spent on education rather than testing. Commenting on the US' move to implement mandatory testing of immigrants, Bob Tivey, executive director of the Stop AIDS Project in

Vancouver, remarked,

There was a time when it was important to look at what the U.S. was doing about AIDS. . . . Now they are doing so much wrong, we shouldn't do what they're doing.39

Mr. Tivey noted that the number of those infected in both Canada and the US was getting so large that only naive people could seriously believe "immigrants' testing would prevent the illness from spreading."40

The debate around the screening of immigrants for AIDS virus was not going to end.

On June 6, 1989, The Globe and Mail reported that researchers at Montreal General

Hospital and Queen's University in Kingston had concluded that "screening could have

36 The Globe and Mail, 10 November 1987: A3. 37 The Globe and Mail, 10 November 1987: A3. 38 The Globe and Mail, 10 November 1987: A3. 39 The Globe and Mail, 10 November 1987: A3. 40 The Globe and Mail, 10 November 1987: A3. 264

prevented 310 to 780 HIV-infected immigrants from entering Canada."41 Speaking at the

Fifth International Conference on AIDS held in Montreal, Dr. Hanna Zowall, epidemiologist and one of the researchers from the Montreal General Hospital, explained that in a ten-year period, "screening could save between $5-million and $17.1-million in hospital costs."42 At the same time, researchers were cautious and acknowledged that they "did not take into account the social, legal or ethical implications of screening potential immigrants for AIDS."43 They also conceded that the tests were not 100 per cent accurate and that "The suffering of people who are falsely identified as positives has to come into the equation as well."44 Critics in the audience were also skeptical about the claim that screening could save Canada some money. Furthermore, as pointed out by

Jesse Green, a researcher at New York University Medical Centre, "the cost of treating

AIDS patients in hospitals has been grossly overestimated. AIDS is cheaper to treat than previously believed."45

AIDS was only one of many issues facing the Immigration Department and getting public attention during the second half of the 1980s. On March 3, 1987, the Star recounted the ordeal of an Oakville couple, both of them Canadian citizens, who were refused permission to bring relatives in Canada because one of them had been found

'mentally retarded' and affected by cerebral palsy. The case deserves attention because it shows how immigration ruling was sometimes successful in pitting immigrant applicants

41 The Globe and Mail, 6 June 1989: A8. 42 The Globe and Mail, 6 June 1989: A8. 43 The Globe and Mail, 6 June 1989: A8. 44 The Globe and Mail, 6 June 1989: A8. 45 The Globe and Mail, 6 June 1989: A8. 265

against each other, thus taking advantage of a tactic usually referred to as "divide and rule" whereby the oppressed focus on pointlessly fighting each other rather than concentrating their resources in opposing the source of their oppression. In this particular case, the couple in question accused the immigration authorities of discriminatory behavior after learning that "a Soviet cancer victim was recently allowed to immigrate to

Canada with her husband and daughter for medical treatment."46 They argued that the cases were similar and should have got the same consideration from the department.

However, Frank Rodriguez, immigration appeal board officer, rejected the claim of the

Oakville couple arguing,

. . . there are insufficient grounds to admit the family for humanitarian reasons because there is no evidence of "undue hardship," as in the case of the Soviet family.... [the] case is closed.47

With immigrants scrambling to get accepted, it is also worth assessing what was the perception and attitude prevalent among Canadians when dealing with the subject of immigration. As pointed out by Avery, throughout the 1980s, though political parties were wary not to alienate the ethnic vote (which was growing powerful especially in major metropolitan centres across the country), they were also aware that different segments of Canadian society had started to oppose Canada's pluralistic immigration policy as they feared the threat of ethnic unbalance and the economic impact of

48 immigration, particularly on the unemployment situation. On September 17, 1987, an

46 Toronto Star, 3 March 1987: WE3. 47 Toronto Star, 3 March 1987: WE3. 48 Avery 222-23. 266

advertisement appeared in the main section of The Globe and Mail presenting the results of a national poll on people's opinion around the current state of immigration policy.

Similar full and half-page ads were also placed in several other newspapers across

Canada. According to their content, Gallup Canada had been commissioned to conduct the poll by The Immigration Association of Canada, "a privately funded non-profit and non-partisan agency that grew out of a general concern about immigration policy."49 One thousand and forty-eight people were interviewed. The results indicated that, with reference to the topic considered in this study, 69.6% of the interviewees believed that,

. . . Canada's immigration policy should be designed in the interests of the majority of Canadians and that the entry of immigrant workers and their families should be geared to Canada's social, cultural, and economic needs, without changing the ethnic and cultural composition of the country.50

Only 30.4% of the people contacted agreed with the statement that,

. . . Canada's immigration policy should be designed to provide a safe haven in Canada for the disadvantaged people of the world who may be fleeing from political oppression or poverty.51

On issues of health, the questionnaire asked,

Should immigrants preparing to enter Canada be satisfactorily cleared for all aspects of health, as well as criminal and subversive behaviour, before being permitted to enter, without discretionary power being left to the politicians?52

49 The Globe and Mail, 17 September 1987: A10. 50 The Globe and Mail, 17 September 1987: A10. 51 The Globe and Mail, 17 September 1987: A10. 52 The Globe and Mail, 17 September 1987: A10. 267

In this case the results were almost unanimous, with 94% answering YES against 6% answering NO. Unsurprisingly, "the ads triggered an avalanche of criticism from individuals and organizations across the country."53 While the Immigration Department refused to comment, others felt quite outraged by what was perceived as "blatantly racist and anti-immigration."54 Overall, much of the criticism was over the general tone and language adopted in the questionnaire. From a historical perspective, whereas it is commendable the intention of providing Canadians with an opportunity to express their viewpoint on matters of national interest, it also appears that despite the claim of giving

"a fair and accurate reflection of Canadian opinion,"55 the questions were formulated in such a way that the end result was a general impression of unfriendliness towards immigrants. With respect to Question 1, people were asked to choose an "immigration philosophy" at the expense of the other: was Canada promoting immigration for its own interests or out of generosity? No middle ground was offered. On the other hand,

Question 6 asked whether immigrant applicants should have been cleared "for all aspects of health, as well as criminal and subversive behaviour, before being permitted to enter."56 It is problematic at best to assemble together issues of health with issues of criminality. It implicitly suggests that the two are akin and should be similarly dealt with while they are completely different and non-comparable subjects.

Whether or not the sample in the poll was actually reflective of the general opinion, it seems that most Canadians were not willing to accept a similar treatment extended to

53 The Globe and Mail, 18 September 1987: A15. 54 The Globe and Mail, 18 September 1987: A15. 55 The Globe and Mail, 17 September 1987: A10. 56 The Globe and Mail, 17 September 1987: A10. 268

their nationals abroad. On October 22, 1987, The Globe and Mail reported on the story of

Patrick Worth, a Canadian citizen from Toronto, who had been detained at the airport by

US immigration officials trying to determine whether he was 'mentally retarded'. As explained by John Ingham, deputy district director of the US Immigration and

Naturalization Service, "Under U.S. law, a mentally retarded person is not allowed to enter the country alone."57 The detention had prompted Mr. Worth to ask Ottawa to "take up the issue with Washington."58 He found the behaviour of the US authorities highly offensive and discriminatory towards people with disabilities. Looking back at what had just occurred, Mr. Worth wondered "Why can't I, just as a Canadian citizen, be able to travel into the United States without being harassed?"59 The paper did not deny that Mr.

Worth had enough reasons to complain about the treatment received; however, it also pointed out that an open mind and fairness seemed to work only in one way, namely when Canadians were involved. The article remarked that though complaining about the discrimination manifested by US officials against a Canadian citizen, little attention was given in Canada to the equally discriminatory approach that the Canadian immigration

authorities had recently shown when trying to oppose the entry of a family from

Washington State that intended to move to Alberta and bring a son who had cerebral palsy. Evidently, the right to respect and fairness was easier to assert when Canadians were the beneficiaries.

57 The Globe and Mail, 22 October 1987: A18. 58 The Globe and Mail, 22 October 1987: A18. 59 The Globe and Mail, 22 October 1987: A18. 269

As the two previous cases demonstrate, the attitude manifested by some sectors of society on both sides of the border was still harsh when dealing with people with mental or physical disabilities. A number of Canadians as well as Americans were still uncomfortable in dealing with people with disabilities. In this context, it is significant to note the article written by David Suzuki for The Globe and Mail about mankind's

"unprecedented ability to alter the genetic makeup of life forms."60 Going over the history of genetics and its incredible developments, Suzuki, a Canadian world-renowned geneticist, academic, broadcaster and activist, argued that among its consequences were also tragic outcomes in several states around the globe. In the United States, for example,

Direct results of this enthusiasm . . . were the imposition of immigration restrictions against people considered "inferior," the sterilization of mental patients and the prohibition in many states of interracial marriages.61

In Germany, this downward spiral had reached its apogee and,

. . . doctors and scientists . . . concluded that human beings could be "perfected" through selective breeding and the elimination of "defectives." The Nazi Race Purification programs seemed to represent the application of some of the most "progressive" ideas in science. . . . doctors and scientists of that earlier time - especially geneticists - had . . . popularized the notion of the overriding importance of heredity in human behavior and sold it to Hitler's National Socialists. It led inexorably to the horrors of the holocaust for which scientists must therefore acknowledge some responsibility.

60 The Globe and Mail, 9 January 1988: D4. 61 The Globe and Mail, 9 January 1988: D4. 62 The Globe and Mail, 9 January 1988: D4. 270

Whereas some of his colleagues refused to take the blame and accused Suzuki of being

"hysterical,"63 he kept warning that "This selective memory of science's history amounts to a coverup and a revisionism that only ensures that it could happen again."64 And indeed, though far from the extremism reached during the Nazi period, rejection of

'imperfection' continued unabated to frame the public discourse in almost every sector of society, from the scientific community down to government officials.

On the other hand, those who had traditionally been considered as 'less than normal' finally started to react and claimed to have their rights recognized. The movement gradually spread to the broader society where people became more and more conscious about the topic of disability and less willing to accept blatant discrimination from their government against physically and mentally disabled individuals. While battling immigrants' complaints and public criticism, Immigration Canada was also under attack

from the judicial system. On March 8, 1987, the department filed an appeal against the order of the Canadian Human Rights Commission tribunal to compensate Mehran

Anvari, an Iranian citizen who had been denied landed immigrant status "because of his

disability, a consequence of polio."65 Despite the Immigration Department's argument that Mr. Anvari's "leg problems and scoliosis . . . could prove costly to Canada's health

and welfare system,"66 the tribunal found that the rejection had resulted in "injury to

feelings and self-respect"67 and was therefore contrary to the Canadian Human Rights

63 The Globe and Mail, 9 January 1988: D4. 64 The Globe and Mail, 9 January 1988: D4. 65 The Globe and Mail, 6 March 1989: Al. 66 Toronto Star, 8 March 1989: A8. 67 Toronto Star, 8 March 1989: A8. 271

Act passed in 1985. In a letter published in the Star on March 16, 1989, in response to the ruling, the reader, Kazik Jedrzejckaz of Toronto, expressed his support to the tribunal's decision and attacked immigration officials for the handling of the whole affair by

stating,

It is disgraceful that the Immigration Department is appealing this decision, wasting the taxpayers' money . . . They are afraid that Anvari, stricken with polio, will be too costly to Canada's health and welfare system. But surprisingly, our government is not afraid to spend $9 billion on nuclear-powered submarines. /TO My face is red from the shame.

The debate around the admission of people with disabilities into Canada reached a

new height when the story of Miguel Silva, a 9-year-old boy born in Peru and now living

with his family in Toronto, received public attention after the Star published an article

about his situation. According to the paper, the boy had been denied landed immigrant

status because he was born with Down's syndrome. Although his parents had sought

refugee status for the family, Miguel was ordered back to Peru. Criticizing the decision of

the department, the paper concluded that "Now, Miguel's family has had no choice but to

launch a costly court challenge under the Charter of Rights. That's absurd."69 Some

Canadians were ashamed of the situation, as evident in the letter sent by Mary Bennett of

Pickering. Considering the effects such decisions were going to have on all disabled

people in Canada, Ms. Bennett wrote,

This is a giant step backward for our handicapped. Over the last few years the push has been to get our handicapped out into the community and yet here we are

68 Toronto Star, 16 March 1989: A24. 69 Toronto Star, 18 April 1989: A16. 272

saying no there is something chromosomally wrong with you, we don't want you in our country.70

Even more outraged was the letter of Bonnie McDowell who wrote,

Our Conservative government denies landed immigrant status to a Peruvian family who dojsic] not have a criminal past but do have a 9-year-old son with Down syndrome. The government, ever mindful of our tax dollars, feels that this young boy will be a burden to the Canadian taxpayer. Thank you, Prime Minister Brian Mulroney and Immigration Canada for your concern, but I feel the burden on my tax dollar is having to support a group of inept, insensitive, self-serving bureaucrats. 71

The Silva's case also angered several groups representing the disabled across Canada.

Commenting on the discrimination embedded in the country's immigration laws, Orville

Endicott, lawyer for the Canadian Association for Community Living, a Canada-wide association working on behalf of persons with an intellectual disability since the late

1950s, remarked, "I don't think the average person has any awareness of how a disability

77 figures in people's chances to immigrate." His concerns were shared by Diane Richler, vice-president of the association, who "told reporters the laws assume the worst from the start and, as applied, have become unduly restrictive." Asked few days later to comment on the similar case of another child denied landed immigrant status because affected by

Down's syndrome, Ms. Richler added,

These situations are sending a message to all Canadians who have a mental or other handicap about their value as citizens . . . it's very reinforcing of the image

70 Toronto Star, 1 May 1989: A14. 71 Toronto Star, 21 May 1989: B2. 72 Toronto Star, 10 May 1989: A6. 73 Toronto Star, 10 May 1989: A6. 273

of people with handicaps as having no value. You're telling people that if you had the choice, this country doesn't really want them.74

The Toronto Star as well took a stand and began calling for a change in the immigration law. Referring to the two Metro cases that had recently occupied front pages in the paper, it wondered, "What kind of country would split up a family by granting landed immigrant status to its healthy members while turning away a child with disabilities? Regrettably,

Canada, for one."75 The case also seemed to contradict what an official of the department had told the press back in 1958 (see previous chapter), namely that the official policy of the department was to reject "the entire family rather than permit the family to be split up."76

Ms. Richler's comment to the Toronto Star is of particular importance as it reveals the

strong relation at work between a national immigration policy and issues of citizenship.

When the former is understood as a means of building and developing the national body,

it becomes apparent that some elements are deemed more valuable than others. Whereas rejection of persons with disabilities would be unthinkable when dealing with those who

are already citizens of the country, it seems to be acceptable and actually encouraged in

the case of foreigners. Yet, no one has so far been able to provide a sound rationale why a

disabled person is a burden if he/she comes from outside the national boundaries and is

instead a worthy member of the community if born in the country. Looking at the daily

lives of many Canadians with disabilities, it appears that in fact more often than not

74 Toronto Star, 19 May 1989: CI. 75 Toronto Star, 22 May 1989: A14. 76 Toronto Star, 23 October 1958: 31. 274

'worthiness' of disabled citizens is mere rhetoric and the latter are still considered a burden, just an inevitable one. Therefore, better to make good out of a bad situation and say that we, as a society, value what actually we dislike and still consider burdensome.

An editorial appeared in the paper two weeks later providing a brief account of gains and still unsolved problems faced by the disabled community within Canadian society.

Looking back at the treatment received by people with disabilities in the country of

"freedom and rights," the editorial recalled that,

For decades, disabled people in Canada were either locked away in institutions or held virtual prisoners at home, well away from an intolerant public.... Just eight years ago, disabled rights activist Beryl Potter was told she'd have to buy two plane tickets if she wanted to fly to England because nobody would want to sit next to someone who was missing three limbs. While such an insult now seems almost inconceivable, it's regrettable that some attitudes towards 3 million physically or mentally disabled people in Canada remain mired in the ignorance of the past.77

Pointing out that discrimination was still a reality in the lives of too many persons with disabilities, the writer noted that different sectors of society were not doing enough to change the status quo. Among others,

Government is not blameless. Ottawa is also guilty of perpetuating discrimination. For example, Immigration Canada refuses to grant landed immigrant status to some children with Down syndrome. ... As a society, Canada has encouraged the disabled to come out of hiding. But, clearly, there is much more to do. 7R

77 Toronto Star, 9 June 1989: A24. 78 Toronto Star, 9 June 1989: A24. 275

The message seemed to get through when Ottawa decided to review the section of the

Immigration Act preventing admission of people with disabilities. Revealing that the

Japanese girl with Down's syndrome and her family were being allowed to stay, the

Conservative MP for Don Valley North, Barbara Greene, acknowledged,

. .. this provision of the act is just incompatible with most people's thinking. The presumptions about the handicapped in the act (are that) they will be a burden on society, which - with the proper help and support - they won't be.79

Rita Mezzanotte, a spokesperson for Employment and Immigration Minister McDougall, confirmed that officials in both the Immigration and Health Departments were entering into discussions on how to ease the review process for disabled persons so that it could abide by "the provisions of the Charter of Rights."80 Commending the government for its actions, the Star published an excerpt from an editorial that appeared in The Edmonton

Journal on July 25. The editorial defined as "encouraging . . . that the government is considering changes to provisions of the Immigration Act which discriminate against disabled people."81 The move was appreciated also in light of the fact that, according to the editorial from Edmonton,

Many disabled Canadians have managed to lead productive, useful lives, contributing as fully to society as able-bodied citizens. They would rightfully resent any assumption that their condition automatically places a strain on the country's system of health care and social services.82

79 Toronto Star, 20 July 1989: A3. 80 The Globe and Mail, 21 July 1989: A3. 81 Toronto Star, 6 August 1989: B2. 82 Toronto Star, 6 August 1989: B2. 276

Good intentions aside, concrete measures were not forthcoming in the months following the announcement. This prompted the Canadian Bar Association to go public and declare that "Canada's immigration rules are so outdated that officials are rejecting people with part of a finger missing or who suffer from minor skin conditions or high blood pressure." People were systematically denied admission because authorities felt they could constitute a burden for Canada's health care system. However, according to

Winnipeg lawyer Mira Thow, "there isn't any list immigration officers can use to check whether specific services are in short supply."84

The early 1990s also witnessed an increase in frustration among applicants who were denied admission on health or disability grounds. This resulted in applicants blaming each other rather than focusing their strengths in fighting a law that was plainly discriminatory towards all of them. In particular, potential immigrants started to express their dissatisfaction in having Ottawa opening its door to refugees while keeping out people who, despite their disability, still had enough capital to support themselves and met the other requirements for immigration. On May 10, 1991, The Globe and Mail published an article about a former Canadian living in Southern Ontario who had been prevented from regaining her citizenship because she had cancer. Diane Smith, a nurse's aide, was born in England in 1944, the daughter of "a British war bride who served in the

Royal Canadian Air Force and a soldier with the Royal Canadian Army Medical

Of Corps." While in England, she had not been aware of legislation passed in Ottawa in

83 Toronto Star, 17 February 1990: A3. 84 Toronto Star, 17 February 1990: A3. 85 The Globe and Mail, 10 May 1991: A8. 277

1947 that required natural-born Canadians to register if they wanted to retain their

citizenship and had therefore lost her status. When she came back to Canada to sort out her situation, she was denied landed immigrant status on medical grounds because she

had lung cancer. Despite claims by the Immigration Department that "we are complying

totally by law,"86 Diane Smith strongly believed she was entitled to Canadian citizenship.

What is interesting about the case is that Mrs. Smith blamed Ottawa not so much for the

intrinsic unfairness of the decision but because she was denied her status while,

Canada is opening its arms to many people with no ties to the country, and ... it bends over backward to accommodate people claiming refugee status who are convicted criminals or wanted for crimes elsewhere.87

Ironically, those seeking entrance into Canada have failed to see they are all on the same

boat and have been usually willing to turn against each other rather than unite in fighting

the legislation itself. At the same time, it is worth noticing that uneasiness towards

refugees, people convicted of crimes and immigrants in general was widespread among

several sectors of the community. Throughout the first half of the 1990s, demands for

improved security, better screening at the border, tougher deportation procedures and

reduction in immigration quotas were in fact quite common among the general Canadian

society. Such requests found an answer in the new immigration guidelines adopted by the

Liberal government of Jean Chretien on November 3, 1994; the guidelines established a

lower annual immigration quota, required those accepted to assume a greater share of

86 The Globe and Mail, 10 May 1991: A8. 87 The Globe and Mail, 10 May 1991: A8. 278

their expenses for settlement, set up bonds for family-sponsored immigrants and gave more relevance to the newcomers' knowledge of English or French.88

Another story which caught the press' attention in 1991 concerned a Norwegian family, the Bakkeskaugs, who had moved to Canada the year before and had bought a farm in British Columbia. At the time of their application in 1989, Mr. and Mrs.

Bakkeskaug had been informed that one of their children, Kjetil, had Hodgkin's disease

(as noted in The Globe, a form of cancer of the lymphatic system which is the third most common cancer among kids and teens in between 10 and 14 years of age) and had to undergo medical treatment. However, the doctor conducting the tests for the Immigration

Department had assured the parents that the disease was curable and, once completed the treatment, the son could rejoin the rest of the family in Canada. Confident in what the doctor had told them, the family moved to Canada while waiting for Kjetil to end his chemotherapy in Norway. Things turned for the worst when several months later, despite successful completion of the treatment, Kjetil was ruled medically inadmissible.

According to the Immigration Act, "the failure of any dependent children to qualify is sufficient grounds to refuse the family application."89 As a consequence (and even though, as previously noted, through the years this specific provision had been applied inconsistently), the whole family was ordered back to Norway. In an attempt to appeal the decision, the family's lawyer took the case to the Federal Court of Canada only to see

Mr. Justice Paul Rouleau dismiss the appeal and rule in favour of the Immigration

88 Avery 230. 89 The Globe and Mail, 2 October 1991: A9. 279

Department. Judge Rouleau concluded that what the doctor conducting the medical tests in Norway had said were nothing more that "gratuitous comments holding out hope and I cannot accept that [the doctor] had any authority to make any representations or promises on behalf of the department or bind it in any way."90 In other words, too bad if the

Bakkeskaugs had been so naive to trust someone who actually had no power to make a final decision about admissibility to the country.

Once the news reached the public, letters in support of the family began to arrive at

The Globe. On October 9, G.D. Elkin of Willowdale, Ontario, wrote,

Surely, to the rest of the world, the Canadian Immigration Department must [,s7'c] regarded as something out of Alice in Wonderland where lunacy reigns supreme . 91

Commenting on the decision to deport the entire family, the reader fell victim of the same

'blame the weaker' logic espoused by Diane Smith few months earlier and added,

Contrast this with the criminals, drug runners and murderers who have been allowed into the country under the guise of being refugees, and you are forced to conclude that the Immigration Department is modeled after Orwell's Nineteen Eighty-Four, where bad is good, evil is encouraged, thrift and hard work are chastised, lies are rewarded and truth is punished. 07

As remarked by Dan Irving in an interview given in 2007 to Upping the Anti, a radical journal of theory and action, in which the scholar deals with issues of trans politics and anti-capitalism, the state thrives on the tensions arising among minority groups

90 The Globe and Mail, 2 October 1991: A9. 91 The Globe and Mail, 9 October 1991: Al 6. 92 The Globe and Mail, 9 October 1991: A16. 280

competing for recognition and rights. Although focusing on a different minority group,

Irving's work helps understand how the capitalist state operates to keep apart sub- sections of society in order to weaken their opposition to its policies. The trans activist and teacher explains,

Within a liberal democratic context, we are led to believe that - as segmented groups representing specific atomized interests - we are in competition with other groups for rights, legal protections, access to healthcare, education, and essential services.93

This competition hampers efforts towards solidarity and prevents any resistance against the state and its dominant institutions. It results in a dismal failure of the oppressed and a victory for those who aim at maintaining the status quo.

Different was the message contained in another letter received by the paper and published on October 10. Recalling his family's experience, Alfons Mueller told the story of his Canadian-born son who, after the family moved to Switzerland, was also diagnosed with Hodgkin's disease. The Muellers were allowed to stay in the new country with their child who "underwent chemotherapy treatment and now, 12 years later, he is completely recovered."94 Appealing to the Canadian Immigration authorities to accept the

Bakkeskaug child, Mr. Mueller brought forward the example of his son who,

. . . turned out a responsible and caring human being and will probably produce much more, over his lifetime, than what the treatment costs were at that time. We

93 Dan Irving, "Trans Politics and Anti-Capitalism. An Interview with Dan Irving," Upping the Anti, No.4 (May 2007) 70. 94 The Globe and Mail, 10 October 1991: A20. 281

consider that our costs turned out to be a solid investment in a human life. Give this boy and his family a chance. Canada needs people who are willing to work.95

More self-oriented was instead the letter sent by Sharon Edmundson of Selkirk,

Manitoba. Though conscious that "conditions that place a demand on our already strained

healthcare system cannot be overlooked,"96 the reader came forward to,

.. . propose a simple solution. Waive the exclusion order for the family members already here. The son in Norway can apply independently next year when he turns 21. His health status can be re-evaluated at that time. This solution would not tax our health services and we, as Canadians, would continue to benefit from the family's contribution to our economy and society.97

No doubt a 'simple' solution, though a little odd for a country whose immigration law has

for long claimed to foster family reunification. Fortunately for the Bakkeskaugs, the

British Columbia government opted for a different way out and "raised no objection to

the medical condition of Kjetil."98 Once reassured of the province's willingness to

receive the young man, "the federal government reversed its decision and a minister's

permit was issued."99 Aside from the final decision to allow the family into Canada, the

three letters which appeared in the newspaper, though from different perspectives, reveal

the basic understanding that immigrants were (and still are) assessed based on their

'usefulness' to the country. Within the capitalist system we live in, people are considered

95 The Globe and Mail, 10 October 1991: A20. 96 The Globe and Mail, 6 November 1991: A17 97 The Globe and Mail, 6 November 1991: Al 7. 98 The Globe and Mail, 6 December 1991: A6. 99 The Globe and Mail, 6 December 1991: A6. 282

as producers and consumers rather than human beings. Society does not look at them as living creatures but as contributors.

The Bakkeskaug's case had also highlighted some of the inadequacies of the legislation regulating the immigration of families to Canada. In particular, the rules governing the admission of children with a medical condition were susceptible to criticism. In this context, different groups were taken aback when, on November 1991,

Ottawa informed that new rules were going to take effect under which immigrant children over the age of 19 would be no longer automatically allowed into Canada with their parents "unless they are full-time college students or too disabled to care for themselves."100 According to Immigration Minister Bernard Valcourt, the restriction in the family definition had been necessary to halt the immigration of large numbers of people who "automatically qualify for visa, regardless of their job skills."101 The new legislation appeared confusing since it was in complete contradiction with the current law denying immigration to "people with mental or physical disabilities that might make them a burden on the health care system."102 As noted by various immigration experts,

The reform also sets the scene for bureaucratic battles because a visa officer may use disabilities to justify issuing a visa while health and welfare department officials can then deny the visa for medical reasons.

Despite the immigration spokesperson's reassurances that contradictions were going to be

solved before the new law taking effect, the move appeared ill-conceived and premature.

100 Toronto Star, 6 November 1991: E14. 101 Toronto Star, 6 November 1991: E14. 102 Toronto Star, 6 November 1991: E14. 103 Toronto Star, 6 November 1991: E14. 283

The early 1990s also brought to the forefront once again the issue of immigrants' testing. In November 1992, The Globe and Mail reported the conclusions of a review panel led by Neil Heywood, assistant director of policy, planning and education for

Health and Welfare Canada, and Brian Grant, director of control and enforcement policy for Immigration Canada. The review team asked Ottawa to eliminate the test for syphilis required of all immigrant applicants. Commenting on the fact that the test had been introduced more than forty years earlier, Dr. Heywood remarked that "syphilis was considered a potential public health risk at the time. . . . But with the evolution of medicine, there's a need to bring immigration policy into line."104 As for AIDS testing, the panel voted it down and invited Canada to "not follow the lead of countries such as the United States, France, Australia and China" that required "all long-term visitors and immigrants to take a blood test showing they do not have AIDS or HIV."105 The recommendation took into consideration the fact that even those who had initially called for AIDS screening of immigrants were now having second thoughts. Among them,

Walter Schlech, HIV researcher at Dalhousie University, noted,

We've learned more and more about the disease. We now know that, if an individual is simply HIV positive, it could be 10 to 15 years before he needs treatment for AIDS. There are many more factors to consider than there used to be. AIDS is not a danger to public health because, unless you're talking about being raped, it takes two to tango. Individuals should take their own precautions.106

104 The Globe and Mail, 3 November 1992: A8. 105 The Globe and Mail, 3 November 1992: A8. 106 The Globe and Mail, 3 November 1992: A8. 284

On the other hand, the review panel maintained that while the screening should not have been mandatory for all immigrants, those "who already show clinical signs of having

AIDS will still be asked to take the test. Those who test positive will not be admitted on the grounds that they may impose "an excessive demand" on Canada's medical system."107

Despite fears that the cost of treating immigrants with HIV was going to be devastating to the system, some researchers were not convinced that was going to be the case. Referring to a recent study comparing the cost of treating immigrants with HIV and

AIDS to the cost of treating those with coronary heart disease, researchers estimated that,

484 of the 161,929 immigrants who entered Canada in 1988 were infected with the human immunodeficiency virus and treating their HIV-related illnesses would cost $18.5-million over ten years. ... In comparison . . . 2,558 of the immigrants would develop heart disease, at a cost of $21.6-million over the same period.108

The conclusion arrived at by the researchers was that, if mandatory AIDS testing was to be implemented, so should testing for heart disease. Any other solution "would be arbitrary at best and discriminatory at worst."109 At the same time, scientists like John

Blatherwick, chief medical officer of health for Vancouver, pointed out that AIDS screening was just going to result in a "waste of time."110 As noted by Dr. Blatherwick,

One might want to point out that Canadians have a higher rate of HIV infection than most other countries. If we're going to screen anyone, maybe we should

107 The Globe and Mail, 3 November 1992: A8. 108 The Globe and Mail, 3 November 1992: A8. 109 The Globe and Mail, 3 November 1992: A8. 110 The Globe and Mail, 3 November 1992: A8. 285

screen Canadians going out of the country. We are more part of the spread of AIDS than some poor unfortunate person coming in.111

It is worth noticing that while Canada was still struggling on the question of whether to follow the example of its southern neighbor, US President Bill Clinton was defeated in

Senate on his attempt to lift the ban preventing foreigners with AIDS from immigrating to the United States. On February 18, 1993, the US Senate voted to maintain the ban and change its nature from a mere policy to federal law. Positively commenting on the measure, Oklahoma Senator Don Nickles stated that it was meant to "send the administration a message that letting people with the AIDS virus into the country and letting homosexuals into the military are politically unpopular."112

The debate within Canada was to continue in the following years. On April 26, 1994, the Toronto Star reported that Immigration Minister Sergio Marchi had just confirmed

Ottawa's intention to test all potential immigrants, thus entirely ignoring the opinions of several experts who had concluded the measure was unnecessary and pure nonsense.

Talking to reporters the day before, Marchi had said that "Yes, we are looking at whether

J 1-5

HIV testing should be automatic." The Minister explained that the issue was under review "because of the potential strains on the health-care system that could be caused by admitting immigrants with HIV,"114 though he could not say whether the ruling would also apply to refugees. There is no doubt the government was under pressure by

111 The Globe and Mail, 3 November 1992: A8. 112 The Globe and Mail, 19 February 1993: A12. 113 Toronto Star, 26 April 1994: Al. 1,4 Toronto Star, 26 April 1994: Al. 286

opposition critics; among them, Reform MP Art Hanger went so far as to ask the Minister to "scrap a federally funded international AIDS conference, scheduled for 1996 in

Vancouver, because it will bring about 500 visitors infected with HIV into Canada."115

Mr. Hanger also sponsored a private member's motion "to make HIV testing mandatory for all immigrants and refugee claimants and automatically deny entry to those who test positive."116 The issue became relevant when the government came under attack by the

Reform Party for granting refugee status to a Polish man infected with AIDS. The man, who died in January 1995, had arrived in Canada four years earlier "claiming that he faced persecution because he was both a homosexual and HIV-positive."117 The

Immigration and Refugee Board had accepted the claim, but Reform MP Philip Mayfield had asked the Immigration Minister "to reverse the board's decision and deport the man." In the House of Commons, Marchi defended Canada's decision to allow the man in by saying that "This case does not set a precedent."119 His position received support by Professor James Hathaway, expert in refugee law at Osgoode Hall. As noted by Prof. Hathaway,

The case is unlikely to provoke a flood of either homosexual or HIV-positive refugee claimants because claimants must demonstrate they face serious harm in their own country and that the state is unwilling or unable to stop the abuse.120

115 Toronto Star, 26 April 1994: Al. 116 The Globe and Mail, 24 September 1994: A3 117 The Globe and Mail, 21 February 1995: A4. H8 The Globe and Mail, 21 February 1995: A4. 1,9 The Globe and Mail, 21 February 1995: A4. 120 The Globe and Mail, 21 February 1995: A4. 287

Meanwhile, other cases unrelated to HIV/AIDS were keeping immigration authorities busy. On September 2, 1994, The Globe and Mail published the story of Mohamed

Mussa, a 49-year-old refugee from Somalia who had been denied permanent resident status because he used a wheelchair after having lost a leg in a car accident when still in his home country. Although having a full-time job and requiring "almost no extra health or social services because of his paralysis, the federal government perceives Mr. Mussa as a potential drain on resources."121 The article also noted that under the new regulation expected to take effect in October, it was going to be "even easier for the government to keep out - and deport - people like Mr. Mussa because of their medical condition."122

The new legislation in question was based on the making of a revised handbook for medical officers which listed illnesses and disabilities together with the costs to health and social services. Immigration officers were instructed to reject any applicant whose projected cost over five years were greater than what an average Canadian would incur in the same period of time (according to Statistics Canada, the cost for an average Canadian was $12,370 over five years). The new rule had been introduced to eliminate any discretion on the part of overseas medical officers and to restrict the entrance of people with either illnesses or disabilities, thus resulting in "savings to health and social

123 services." The move had been criticized by both immigration lawyers and disability- rights groups. Critics noted that the new model failed to take into account the immigrants' cultural background, thus assuming that every disabled immigrant was going

121 The Globe and Mail, 2 September 1994: A4. 122 The Globe and Mail, 2 September 1994: A4. 123 The Globe and Mail, 2 September 1994: A4. 288

to over-use social services or health facilities whereas "many cultures consider such a move inappropriate or even taboo."124 According to Toronto immigration lawyer Mendel

Green, "In 35 years, I know of not one single case where an immigrant family has taken a disabled person and put them into a home or institution. They have a different concept of family."125 These comments echo those made by experts two years earlier in the parliamentary committee created to analyze Bill C-86, a Measure to Amend the

Immigration Act, and discussed in the chapter "Parliament's discussions around medically inadmissible immigrants." In that occasion, professionals called to provide a better understanding of the existing situation, had presented evidence indicating that on average immigrants tended to place lower demands on health and social services than

Canadian citizens. Additionally, lawyers feared that more refusals due to medical inadmissibility were going to result in more cases going "to costly years of appeals."126

Finally, as pointed out by Vancouver immigration lawyer Dennis McRea, the model was not considering at all the long-term financial benefits of the applicant's family. He remarked that,

If they were contributing a few thousand dollars in taxes to the system, and their disabled member was only using a few hundred dollars more than the average Canadian in health and social services, it [would be] a good economic position for the government.127

124 The Globe and Mail, 2 September 1994: A4. 125 The Globe and Mail, 2 September 1994: A4. 126 The Globe and Mail, 2 September 1994: A4. 127 The Globe and Mail, 2 September 1994: A4. 289

Rejection of family members with a disability was especially contentious in the case of children. Even the courts were skeptical about decisions denying admission to children because of certain medical conditions. On February 6, 1996, the Toronto Star reported that the Federal Court, in the person of Mr. Justice James Jerome, had overturned the decisions taken by the Immigration Department denying permanent resident status to two families whose children where mentally challenged. According to Jerome, it was wrong to use mental retardation as a stereotype and "to judge the children as if they were adults applying for landed immigrant status."128 Lawyer Cecil Rotenberg commented that "the key to winning in court is to prove that the family will not let the child become a drain on the public purse."129 However, this approach was rejected by federal authorities; as explained by Dr. Neil Heywood, director of immigration health policy, "once families are given landed status, they have the freedom to . . . use whatever services are available to

t Canadian citizens."

On a broader level, various organizations representing mentally and physically challenged persons considered the Immigration Act in need of revision as under the guise of a concern for economic considerations, it discriminated on the basis of disability, therefore violating the Canadian Charter of Rights and Freedoms. As argued by Diane

Richler, executive vice-president of the Canadian Association for Community Living,

"Most branches of law, guided by the Charter, now regard disabilities as a human-rights

128 Toronto Star, 6 February 1996: A2. 129 The Globe and Mail, 14 May 1996: A8. 130 The Globe and Mail, 14 May 1996: A8. 290

issue and not a medical concern."131 The statement was further supported by a report published in 1999 and prepared by an umbrella group of 34 non-governmental organizations. The report labeled Canada as "hypocritical for outlawing discrimination against people with disabilities while explicitly permitting such discrimination in immigration and refugee cases."132 The issue was particularly troublesome in the case of children since Canada's rejection of disabled immigrant children put the country in systematic violation of the United Nations Convention on the Rights of the Child, "which was adopted by the United Nations in 1989" and ratified by all but two countries, "the

United States and Somalia."133

The new century witnessed once again a continuation of the debate around immigration of people with HIV or AIDS. In September of 2000, Citizenship and

Immigration Minister Elinor Caplan revealed that acting on a recommendation from

Health Canada, the department was going to ban immigrants with HIV from entering

Canada. The Minister also mentioned that an exception would be made for refugees and immigrants with close family members already in the country. The rationale behind the ruling was that people with HIV "could put a strain on Canada's health care system and because they could endanger other residents of Canada."134 The announcement was met with criticism from different quarters. Among others, Raif Jurgens of the Canadian

AIDS-HIV Legal Network, an organization created in 1992 to promote the human rights of people living with HIV/AIDS both in Canada and internationally, pointed out that

131 The Globe and Mail, 14 May 1996: A8. 132 The Globe and Mail, 18 November 1999: A7. 133 The Globe and Mail, 18 November 1999: A7. 134 Toronto Star, 21 September 2000: A6. 291

according to the United Nations, "there are no public health grounds for HIV testing of immigrants." 135 He went on by saying,

HIV is very different from tuberculosis. It is not easily transmitted. They are singling out HIV because it's politically more palatable, because [people who have it] are suffering from discrimination already.

Furthermore, he noted that HIV-positive persons "might not develop AIDS symptoms for years, and . . . they could contribute to society in ways that would outweigh health-care costs."137 Mr. Jurgen's position was shared by Dr. Philip Berger, AIDS expert at St.

Michael's Hospital in Toronto, who explained that the HIV virus was not casually transmitted and therefore "People can protect themselves."138 Dr. Berger added that the move smacked of racism because it targeted immigrants from specific countries. He explained,

Since HIV prevalence is higher in African countries, this would be a good way of keeping out immigrants from those areas. This policy will discriminate against people in the poorest countries in the world - mostly non-white countries.139

On the other hand, not everyone among the public agreed with this argument. In a letter published in the Star on September 26, 2000, Ms. Yetman of WolfVille, N.S., declared her support for the new policy. According to the reader,

... as a nation we need to be primarily concerned with the safety and health of our current visitors, landed immigrants and Canadian citizens. ... Do we really

135 Toronto Star, 21 September 2000: A6. 136 The Globe and Mail, 21 September 2000: A4. 137 The Globe and Mail, 21 September 2000: A4. 138 Toronto Star, 21 September 2000: A6. 139 Toronto Star, 21 September 2000: A6. 292

want to put more money into an already deteriorating health-care system in order to treat people who have not (yet) contributed to the tax system and who, by virtue of carrying the virus, may not be well enough to ever contribute? I can't justify it.140

The Globe and Mail as well came out strongly in favour of the policy. In disagreement with the Human Rights Commission's condemnation of the ban against HIV immigrants, the paper reminded its readers that,

Health Canada . . . estimates that among those 200,000 new arrivals about 200 are HIV-positive, and that together they will infect a further 37 individuals at some future date. One issue is the expense of treating HIV patients with the drug cocktail that slows the progress of AIDS. The annual cost for a patient can be as high as $10,000. More important, AIDS still has no cure, and unless one is found, those 37 freshly infected people will face the prospect of a ghastly, premature death. . . . Even one more such death is too many, particularly if it could have been prevented. Health Canada's initial proposal for HIV testing would provide an extra element of protection.141

Curiously enough, Health Canada was not so sure about its own recommendations. In what the Star termed "a dramatic reversal by Health Canada,"142 Health Minister Allan

Rock sent a letter to his counterpart in the Immigration Department informing that "his department has decided to "refine" its advice and no longer advocates an outright ban on

HIV carriers."143 In explaining the decision, Mr. Rock wrote that "An inflexible policy of excluding all immigrants who test positive would not reflect the nature of the risk nor our capacity to minimize it."144 Because of the change in Health Canada advice, Citizenship

140 Toronto Star, 26 September 2000: A27. 141 The Globe and Mail, 2 April 2001: A12. 142 Toronto Star, 12 June 2001: A14. 143 Toronto Star, 12 June 2001: A14. 144 Toronto Star, 12 June 2001: A14. 293

and Immigration Minister Elinor Caplan announced that the ban was being reversed. Yet, she clarified that the department had still power to reject an immigrant with AIDS if the person could pose an excessive demand on Canada's health-care system.145 Although many were relieved by the decision, other felt outraged by it. On June 13, for example, a letter appeared in the Toronto Star condemning the reverse of the ban as "ridiculous."146

According to the writer, Mr. Paul Taylor of Scarborough,

We already let in people who bring no skills, aren't healthy, not to mention those who slip into Canada who are convicted, or wanted, criminals from other countries. If you are a health risk, you are a health risk: You should not be allowed to enter Canada no matter what the circumstances. The decision to let individuals in who are HIV positive to eliminate the stigma that is too often attached to those living with HIV is pathetic. I wish that our government would start looking after our best interests for a change.147

Evidently, the belief that Canada was and could remain a safe haven immune from certain diseases was still cultivated by some people.

The year 2002 opened with a case that certainly summarizes the whole issue dealt with in this chapter. On January 8, the Toronto Star published an article written by staff reporter Maureen Murray about Angela Chesters, a native of Germany married to a

Canadian citizen who had been denied permanent resident status because she had multiple sclerosis. Angela and Robin Chesters married in 1991 after meeting in Frankfurt where Robin was working at the time. They decided to move back to Canada in 1994, but immigration authorities classified Angela as inadmissible. Mrs. Chesters decided to

145 Toronto Star, 12 June 2001: A14. 146 Toronto Star, 13 June 2001: A31. 147 Toronto Star, 13 June 2001: A31. 294

challenge the legislation that found her inadmissible to Canada on the basis that her disability was going to place an excessive demand on health and social services. As explained by Ena Chadha, senior counselor at ARCH, a legal aid clinic for people with disabilities created in 1979 and operating in Ontario, the case was "the first of its kind to make its way to the Federal Court."148 As usual, Ottawa had tried to settle the case out of court by granting Mrs. Chesters permanent resident status on an individual basis, but she had refused the offer arguing that it did not go far enough to change the law while looking more like charity. Despite the fact that Ottawa had just passed amendments to the legislation "exempting spouses and dependent children from having to submit to the test of whether they would be a burden to the health and social services system,"149 Angela

Chesters continued her fight. Asked about her reasons, she stated that "a person should not be banned from immigrating to Canada on the basis of their disability."150 In answering to the plaintiffs argument, Debra McAllister, counsel representing the federal government, dismissed the claim that disabled people were discriminatorily excluded.

Ms. McAllister maintained that "People are not excluded simply because they have MS or are in a wheelchair"151 and that each case was assessed on an individual basis. She added that "For the protection of Canadian society, immigration officials need the ability

1 ci to deem some people inadmissible if they are likely to pose an excessive burden." Mrs.

Chesters disagreed with that statement arguing that the Immigration Department had looked exclusively to her disability without taking into account the possible contribution 148 Toronto Star, 8 January 2002: A2. 149 Toronto Star, 8 January 2002: A2. 150 Toronto Star, 8 January 2002: A2. 151 Toronto Star, 8 January 2002: A2. 152 Toronto Star, 8 January 2002: A2. 295

she could have made to Canadian society. As a matter of fact, it had refused to consider that "she holds master's degrees in history and science, is fluent in French and has broad work experience."153

Instead of quietly accepting the government's offer for a minister's permit, Mrs.

Chesters "launched an unprecedented court bid to have the Canada Immigration Act declared unconstitutional because it allows discrimination on the basis of disability."154

During her cross-examination, Angela Chester was confronted by Ms. McAllister. When the latter, referring to the offer for a ministerial permit, argued "Everything Canada could have done it did, correct? It did everything possible,"155 Mrs. Chester replied

"Incorrect."156 And when Ms. McAllister showed her a neurologist's report indicating she was likely to require increasing nursing care in the future, Mrs. Chesters responded that,

"With all due respect, you may require increasing nursing care."157 The government's claim that people were not assessed exclusively on the basis of their disability was also discredited by the testimony of Ted Axler, a retired medical officer from Canada

Immigration who reiterated that assessments considered "how much a person will cost the heath-care system and . . . how employable they are on "generic" and "stereotypical"

1 S8 factors." Clarifying his statement, Dr. Axler told the court that employability is

"generalized; it is not based on an individual's work record but on the likelihood of

153 Toronto Star, 8 January 2002: A2. 154 The Globe and Mail, 8 January 2002: A16. 155 The Globe and Mail, 9 January 2002: A12. 156 The Globe and Mail, 9 January 2002: A12. 157 The Globe and Mail, 9 January 2002: A12. 158 The Globe and Mail, 9 January 2002: A12. 296

people with a certain illness being employable."159 He further added that excessive demand consisted of "Estimates of the costs of disorders . . . based on expectations for all patients with a disorder, not individuals."160 In order to make his point, Dr. Axler brought

as an example internationally renowned physicist Stephen Hawking who "would be

denied permanent residency status in Canada because he suffers from a debilitating neurological disease."161 Indeed, "If we were lucky enough to have an application for

landing from Professor Stephen Hawking, we would have to say that this international

treasure would be inadmissible."162 Undoubtedly, Dr. Axler chose an example that had

good chances of resonating well with his audience; after all, who could have made any

objection to the fact that receiving Stephen Hawking would be a honour for any country?

Yet, as pointed out by Martha Rose, while the average 'able-bodied' person is never

questioned about his/her worth, the idea that disabled people "must make extraordinary

contributions to society in order to be worthy" is still widely circulated in the North

American public discourse.163

Outside the court, Angela Chesters' case animated a lively debate between supporters

and opponents of the existing legislation, and it received unprecedented attention by the

press. Readers were touched by the story and sent letters in support of Mrs. Chesters. One

of these letters, published in The Globe on January 9, maintained,

159 The Globe and Mail, 9 January 2002: A12. 160 The Globe and Mail, 9 January 2002: A12. 161 Toronto Star, 10 January 2002: A20. 162 Toronto Star, 10 January 2002: A20. 163 Rose 1. 297

Canada should be honoured that someone so accomplished, with such a resolve to be a contributing member of society, would want to live and work here. . . . Whatever "excessive demands" she may require in the future, she will more than adequately give in return with her talents, not the least of which is her unfailing spirit and dignity as a person, despite a debilitating illness.164

The Toronto Star as well publicly showed its support to Mrs. Chesters when, in an editorial on January 10, commented,

Whether the court decides in Chesters' favour or not, the way she was treated is an embarrassment. It contravenes Canadian values and basic human decency. Chesters' manifest ability to contribute to the country was judged less important, by immigration officials, than the possibility she might someday need nursing care. ... No individual who knocks at Canada's door should be subjected to such degrading treatment.165

On July 1, after the federal court ruled against Angela Chesters, the paper came out once again in support of Mrs. Chesters. Distancing itself from the court's decision, the Star remarked,

Canada's immigration department is the face we show the world. It can be a harsh one. Angela Chesters . . . was ruled inadmissible because she might make excessive demands on Canada's health-care system. . . . But Angela Chesters refused to leave without a fight. She took the immigration department to court on the grounds that it had violated her constitutional right to freedom from discrimination based on physical disability. This past week, the Federal Court of Canada ruled against her. Judge Elizabeth Heneghan said admission to Canada is a privilege, granted to those who meet the Canadian government's entry standards. . . . For the immigration department, this is a sweet legal victory. For Canadians who believe in fairness, tolerance and basic decency, it is an embarrassment.166

164 The Globe and Mail, 9 January 2002: A10. 165 Toronto Star, 10 January 2002: A22. 166 Toronto Star, 1 July 2002: A14. 298

Many things could be added in conclusion of this section of the investigation. Among them, the fact that all the excerpts from newspapers' articles that appear in this and the previous chapters indicate that several Canadians often ignore, or prefer to ignore, what really goes on around issues of immigration. Better to leave all responsibilities with bureaucrats and politicians, only to blame and accuse them of 'inhumanity' when some sensational case comes to the public attention. After all, it might seem easier to deal with problems on a case by case basis than to address the systemic unfairness of a legislation that has been kept essentially unaltered for more than a hundred years. On the other hand, the articles, letters and editorials analyzed in this study also reveal unevenness in the attitudes manifested by some Canadians towards those deemed inadmissible to the country. It is appalling when examining the difference in assessments between cases like the one of Angela Chesters, an educated white middle-class woman with MS, and cases

concerning people with HIV or AIDS, especially when the latter are from non-Western countries. While most readers seem quite univocal in their support for the admittance of applicants who, except for their 'unfortunate' disability, are considered 'normal', that is not the case with people whose illness suggests a lifestyle 'anomalous' and usually

condemned as 'unhealthy' and 'deviant' by the general society. Class and race still

continue to play a significant role in the assessment of immigrants and this aspect should be further explored, also highlighting its connections to the way particular diseases are perceived and used to exclude 'others'. A reflection should also go to the fact that, as

evident in their comments reported by the press, exponents of the authorities as well as the broader public tended to assess potential immigrants on the basis of their 299

productivity: whether healthy or not, no person was welcomed to Canada if deemed a non-productive subject. The only exception was constituted by refugees, though the articles analyzed in this chapter have highlighted that, once accepted, refugees were often unfairly blamed for their unproductiveness and abuse of the system. It looks like Canada

accepts refugees because of its international responsibilities, but this does not prevent

criticism and grumbling on the inside.

This chapter has looked at articles, readers' letters and editorials published in the

Toronto Star and The Globe and Mail in the period from the passage of the Canadian

Charter of Rights and Freedoms to 2002, the end point of the investigation. Although

dealing with the same issue that has been the focus in the previous chapter, namely how two major Canadian newspapers (one with national, the other with provincial coverage) have through time approached the subject of medical inadmissibility to the country, the

author has decided to dedicate a separate chapter to the examination of the press' tone in

the period following the passage of the Charter. The reason behind the decision rests on

the fact that the Charter has deeply influenced the public discourse around this topic. In

the case of the press, the chapter has shown that after the passage of the Charter, both newspapers adopted a very different tone when dealing with and reporting cases of medical inadmissibility. Whereas the period preceding the mid-1980s saw both papers

maintain overall support for the medical inadmissibility clause contained in the

Immigration Act, in spite of sporadic outburst of sympathy for individual situations, the tone and content of articles and editorials published from that date on indicate a more

critical approach. From the late 1980s, the papers have started asking for a revision of the 300

section of the Immigration Act dealing with persons deemed medically inadmissible, particularly in situations where the application of the law has resulted in the splitting of families. The change in the way the Toronto Star and The Globe and Mail have presented the topic is significant insofar as it validates the argument that the passage of the Charter of Rights and Freedoms has profoundly impacted diverse segments of Canadian society, among others the press and, as the following chapter will show, the legal system.

In conclusion, I would like to end the chapter with the reply given by Angela Chesters to Debra McAllister in the Federal Court in 2002. Provocatively asked "Everything

Canada could have done it did, correct? It did everything possible,"167 Mrs. Chesters

1 68 answered "Incorrect." Indeed it was incorrect and still is. Despite opposite claims,

Canada prejudicially refuses to consider disabled or ill applicants for immigration to the country. It refuses to consider the opinion of experts in the scientific community who have repeatedly confirmed how the legislation is based on faulty assumptions. More importantly, Canada refuses to consider immigrants as human beings rather than producers. Assuming this, it holds its own citizens too, though many of them appear unaware of it, to this standard, considering them as mere producers and not as living creatures whose intrinsic value goes much beyond their productive capacity. The concept of 'economic burden' which resonates so often in the public discourse does not merely reveal the place of people with disabilities within Canadian society but also the way

167 The Globe and Mail, 9 January 2002: A12. 168 The Globe and Mail, 9 January 2002: A12. 301

immigration in general has been and remains one of the main tools to shape the national body according to principles of usefulness and productivity. 302

Chapter 5

The medical inadmissibility provision in the Federal and Supreme Courts of Canada

This chapter looks at several court cases related to the medical inadmissibility provision contained in the Canadian Immigration Act of 1976. Through an examination of the way these cases were presented and dealt with in courts, the following pages attempt to demonstrate that the provision in question is based on a discriminatory attitude and unconstitutional under section 15 of the Canadian Charter of Rights and Freedoms. In so doing, they also reveal what has been the policy adopted by the state on the subject of medically inadmissible immigrants and provide evidence that the shifts registered in politicians' and newspapers' public discourses are in the end a mere cover up: different language is used but the decision of excluding 'undesirables' stands.

In previous chapters, reference has been made to the fact that the passage of the

Charter, and in particular its section 15 (the equality clause), represents a milestone for the recognition of rights for people with disabilities within Canadian society. As pointed out by Sarah Armstrong in her paper "Disability Advocacy in the Charter Era," the

Charter "became the first constitution to guarantee a right to equality for persons with disabilities."1 Since 1982, advocacy groups and individuals have been able to use the

Charter as a legal tool in the courts in order to advance their claims. In 1989, the Supreme

Court of Canada, in the person of Justice Mclntyre, ruled that the Charter's protection extends to persons who are neither Canadian citizens nor permanent residents. In

1 Sarah Armstrong, "Disability Advocacy in the Charter Era," University of Toronto Journal of Law and Equality 33 (2003). 303

explaining the ruling, Mclntyre "maintained that non-citizens are a minority group analogous to those enumerated under the grounds of s.15 and that they come within the

'y protection of s. 15." The Court decision opened a new avenue for immigrant applicants to fight those provisions of the Immigration Act that were discriminatory. In particular, the

Charter has the potential to strongly impact the medical inadmissibility provision in the

Act. Whereas claims of discrimination by private individuals or groups are usually handled under statutory human rights laws, discrimination by government (such as government laws and policies) is under the purview of the Charter.3 Given the significance of the Charter for the issues considered in this study, it is important to reflect on the way it has been used in the last few decades by advocacy organizations and those directly affected by the medical inadmissibility provision within Canadian immigration policy. Therefore, part of the chapter directly looks at section 15 of the Canadian Charter of Rights and Freedoms and its interpretation in the courts.

In the attempt to investigate the role played by the Charter in questioning the section of the Immigration Act dealing with potential immigrants considered inadmissible due to health conditions or disabilities which might cause excessive demands on health and social services, this chapter focuses on and examines seventeen cases brought to the

Federal Court and the Supreme Court of Canada by the plaintiffs to contest the

Immigration Department's decision of refusing them or their family members' entrance into the country. The cases dealt with in the study have been kindly provided to the

2 Evelyn Kallen, Ethnicity and Human Rights in Canada (Toronto: Oxford University Press, 1995) 279. 3 Kallen 261. 304

investigator by Professor Sonia Lawrence of Osgoode Hall Law School in Toronto.

Having easier access to the material, Professor Lawrence has made available to the author some of the major court cases involving discussions around the medical inadmissibility provision. It is difficult to establish beyond any doubts whether these cases represent the entirety of the legal actions dealt with in courts since not all cases get reported and those which do get reported are often selected because electronic search engines make them

easily accessible. At the same time, whereas litigations which challenge the law on

Charter grounds are usually reported because, involving the Charter, they are considered noteworthy, many other cases of medical inadmissibility would simply go unchallenged

and end up with the person being denied entrance. Although representing just a selection

of cases, I feel confident they are illustrative of the main issues explored in the study.

Indeed, legal decisions follow the rule of 'stare decisis' (let the previous decision stand)

and this is evidenced by the fact that in their orders, courts always refer to previous court decisions. It is highly unlikely that, if any additional relevant case existed on the topic, the courts would not have referred to it in their judgments. Throughout the investigation,

I have not discovered any such cases which would have put into question the general trend that has been traced while looking at the seventeen court cases available. Being that is the case, it seems reasonable to consider the material discussed as representative.

The earliest lawsuit among those discussed was heard in May 1988 while the latest was heard in February 2005. Although the study covers a period of time from 1902 to

2002, a few court cases that were heard after the year 2002 have also been taken into account as they were appeals to previous court decisions or because their outcome has 305

been deemed significant for the purposes of the investigation. Two of the cases reached the Supreme Court; all others were dealt with by the Federal Court of Canada which has two levels: the Federal Court Trial Division and the Federal Court of Appeal. With respect to immigration cases, the former has jurisdiction to hear applications for judicial review of immigration decisions. Its judgments can then be appealed to the Federal Court of Appeal and the Court of Appeal's decisions can further be appealed to the Supreme

Court.

At the beginning of this investigation, it was expected that most of the cases would directly engage with section 15 of the Charter of Rights and Freedoms. After all, the equality clause is the first to come to mind whenever dealing with issues of discrimination by the government against individuals belonging to equity seeking groups.

It was therefore puzzling to find out that only one of the seventeen cases made explicit reference to the Charter while all the others contested the inadmissibility decision without actually questioning the existing law; in each instance, the plaintiff merely argued that the provision did not apply to the specific situation under review. Despite the initial puzzlement, an in-depth analysis reveals that there is a subtle connection between the way the cases were conducted and the Charter. It appears likely that faced by the argument repeatedly put forth by the defense that the medical inadmissibility clause does not refer to persons with disabilities but focuses instead on the concept of excessive demands, the plaintiffs were forced to shift their focal point away from disability and concentrate their attention on showing they were not likely to cause excessive demands for Canadian health and social services. In so doing, while contesting in a tangential way 306

the discriminatory nature of the legislation under the Charter, the core of their argument eluded the issue.

The only exception to this trend is represented by the lawsuit brought forward by

Angela Chesters and already referred to in the previous chapter. In that instance, Mrs.

Chesters maintained that the medical inadmissibility provision was unconstitutional since it offended section 15 of the Charter in discriminating against people with disabilities.

Although unsuccessful, Angela Chesters' case is of paramount importance in understanding the potential impact the Charter might have on the way the Canadian state relates to immigrant applicants affected by a disease, disorder or disability. For this reason, the analysis of the legal action initiated by Mrs. Chesters in 1997 is at the end of the chapter, followed by a broader discussion of the positive and negative results of the

Charter's application in the courts. Having said that, it is worth clarifying that the focus of the chapter is not on one single litigation (notwithstanding its unquestionable uniqueness), but on the whole process of exclusion of immigrants with disabilities which has basically remained unaltered throughout the years despite changes in the language used to justify it. In this context, the Chesters' case becomes a means to an end rather than an end in itself.

The first court case considered in this study is the one of Pamar v. Canada (Minister of Employment and Immigration). The case was heard in the Federal Court of Appeal on

May 3, 1988. The appellant, Swaranjit Kaur Pamar, contested the refusal of the sponsored application presented by his mother and her accompanying dependants. Mr. 307

Pamar's mother had been declared inadmissible under subparagraph 19(l)(a)(ii) of the

Immigration Act of 1976 on the grounds that she suffered from ischemic heart disease, exercise-induced myocardial ischemia, hypertension and non-insulin-dependent diabetes mellitus, all conditions that were reasonably expected to cause excessive demands on health and social services. According to Mr. Pamar, the decision was erroneous because it was based on the "unreasonable" opinions of the medical officers. The appellant argued that, in the case under consideration, "the diagnosis upon which the expectation that the person's admission to Canada will create excessive demands on Canadian health services does not flow reasonably from the medical evidence."4 In her judgment delivered on May

16, 1988, Justice Heald dismissed the appeal stating that there was enough medical evidence in support of "the conclusion reached by the medical officers that Mrs. Pamar's admission to Canada would create excessive demands."5 Justice Heald noted that, as required by the law, the opinion of the medical officer had been confirmed by a second medical officer. Four additional medical reports had also been taken into consideration, three of them supporting the findings of the medical officers. The court therefore sided with the Immigration Appeal Board in deciding that there was reasonable and grounded evidence for rejection.

A different outcome was reached few years later in the Federal Court of Appeal in the case of Deol v. Canada (Minister of Employment and Immigration). The appeal was directed against the decision of the Immigration and Refugee Board dismissing a

4 Pamar v. Canada (Minister of Employment and Immigration), No. A-836-87, Federal Court of Appeal, 16 May 1988. 5 Pamar v. Canada. 308

previous appeal from the immigration officer's refusal of a sponsored application. In that circumstance, the appellant's mother and her two dependant daughters had been refused entrance into Canada on the grounds that one of the daughters was suffering from mental retardation and could reasonably be expected to cause excessive demands on health and social services. The appellant contested the Board's decision on the basis of both validity and equity. In the judgment delivered on November 27, 1992, Justice MacGuigan allowed the appeal and ordered the matter returned to a differently constituted panel for rehearing and redetermination. While recognizing that the Board cannot question a medical diagnosis, MacGuigan declared that "it [the Board] should inquire into the reasonableness of their [the medical officers'] conclusion as to the probable demands on government services. In the case at bar it seems clear to us that the Board did not inquire into the reasonableness of the medical officers' conclusion, but rather assumed . . . that the conclusion was reasonable."6 In explaining her point, MacGuigan added that,

. . . the mere invocation of mental retardation leads to no particular conclusion. Mental retardation is a condition covering a wide range of possibilities from total inability to function independently to near normality. The concept cannot be used as stereotype, because it is far from a univocal notion. It is not the fact alone of mental retardation that is relevant, but the degree, and the probable consequences of that degree of retardation for excessive demands on government services.7

In contesting the validity of the Board's decision, the appellant had also argued that the Board was wrong in establishing that the onus of proof had to be placed on the applicant. Given that mental retardation was a form of mental disability and therefore was

6 Deol v. Canada (Minister of Emplyment and Immigration), No. A-280-90, Federal Court of Appeal, 27 November 1992. 7 Deol v. Canada. 309

an enumerated ground of discrimination under section 15(1) of the Charter, Deol

maintained that any justification had to be made under section 1 of the Charter, which

reads,

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.8

Accordingly, Deol claimed that the onus was on the government. Justice MacGuigan

rejected the argument in reason of the fact that it contradicted section 8(1) of the

Immigration Act which explicitly placed the burden of proof on the person seeking

entrance into Canada. Nevertheless, the court decided to allow the appeal on the basis

that the Board had failed to take into account the nature and degree of the mental

retardation as well as humanitarian and compassionate considerations such as "close

bonds of affection that may arise in such a family."9 In so doing, the Board had ignored

the intention of the Immigration Act to facilitate family reunification. Deol v. Canada is

significant in the context of this investigation insofar as the appellant made a direct albeit

minor reference to s. 15 of the Charter. The court acknowledged that the issue had never before been argued in front of the court. However, in a questionable decision, Justice

MacGuigan maintained that the contention was inconsequential as s. 8(1) of the

Immigration Act had precedence over the Charter. As shown in the following pages, the

issue of whether the Charter should be given priority over any other law in Canada is still

open for debate. While the Charter is an integral part of the Canadian constitution and is

8 The Canadian Charter of Rights and Freedoms, http ://laws. i ustice. gc. ca/en/charter/. 9 Deol v. Canada. 310

therefore considered the most important law in the country, the courts have often acted erratically in their interpretation and conclusions. As a consequence, they have often refused to acknowledge the incongruity existing between the Charter and several of

Canada's laws. This, in turn, has allowed the state to operate in particular circumstances under what Agamben defines as 'state of exception', thus ignoring its own laws in the name of 'necessity'.10 In the case under study, the state keeps excluding immigrant applicants with disabilities despite that the exclusion patently violates its commitment to non-discrimination on grounds of disability. The courts appear complicit in this process of discrimination as their lack of acknowledgment of such violation helps in legitimizing it.

In 1995, another litigation reached the Federal Court Trial Division. An application for judicial review of a negative decision of a visa officer was submitted by Marcel

Gingiovenanu, a Romanian citizen who had applied for permanent residence in Canada.

The application had been refused since Mr. Gingiovenanu's son suffered from cerebral palsy and was therefore inadmissible under s. 19(l)(a)(ii) of the Immigration Act. The applicant claimed that the visa officer's decision was unreasonable since the son was not expected to require any surgery or institutionalization as a result of his condition. Justice

Cullen was not convinced by the appellant's argument and dismissed the application on the grounds that the medical officers' conclusion was "not unreasonable because it flows from the preponderance of the evidence."11 Notwithstanding the dismissal, the court

10 Giorgio Agamben, State of Exception (Chicago: The University of Chicago Press, 2005) 2-5. 11 Gingiovenanu v. Canada (Minister of Employment and Immigration), No. IMM-3875-93, Federal Court Trial Division, 30 October 1995. 311

reaffirmed that visa officers have the responsibility to assess whether medical assessments are reasonable. In particular, they have to take into account whether a medical condition can arguably be assumed to create excessive demands. As evident by the cases that follow, the courts have traditionally been inclined to limit the authority of medical officers in the matter of immigrants' rejection. The courts' argument rests on the conviction that the refusal of admission into Canada for medical reasons is a political decision and, as such, it cannot be left to medical officers but remains the direct responsibility of the Department of Citizenship and Immigration.

A similar approach to the question of who has final authority when deciding about admissibility of applicants with medical conditions and/or disabilities had been taken by

Justice Cullen just few months earlier in Ismaili v. Canada (Minister of Citizenship and

Immigration). The appellant had been refused an application for permanent residence under the assisted relative class on the basis that his son, suffering from severe developmental delay and showing a bilateral hearing deficit with a history of seizures and microcephaly, was likely to make excessive demands on Canadian health and social services. In this instance, the court allowed the application, thus deciding that the visa officer had failed to consider whether the medical officer's decision had ignored evidence and was therefore unreasonable. Referring to Deol v. Canada, Justice Cullen reiterated that "A medical condition, alone, is not necessarily evidence of a reasonable expectation of excessive demands on health and social service" and that "The visa officer - wholly apart from the decision of the medical officers - is obliged to consider whether the applicant's medical condition would place excessive demands on health or social 312

services." 12 In the case at bar, based on the evidence in the record, the court was not convinced that the visa officer had properly considered all the factors. In particular, the court found that the applicant's son was going to require inexpensive medication and special schooling not in high demand in the region of Canada selected by the applicant for settlement. Therefore, Justice Cullen concluded that these requirements did "not amount to excessive use"13 and allowed the application.

The question of how visa officers should assess medical opinions was also at the centre stage of Poste v. Canada (Minister of Citizenship and Immigration). In this case, an application for judicial review of denial of permanent resident status was submitted to the Federal Court Trial Division in 1997 by John Russell Poste, a former Canadian citizen who had lost his citizenship when he moved to Australia in 1973. Mr. Poste had subsequently applied to return to Canada as permanent resident together with his

Australian wife and children. The application was denied since the eldest son had a mental disability. The applicant contested the decision as unreasonable in light of the fact that his wife was a nurse and able to take care for the child. More importantly, Mr. Poste pointed out that his son, Matthew, was entitled to an Australian pension while living within or outside Australia and hence was not going to make excessive demands on health and social services in Canada. Looking at the evidence before the court, Justice

Cullen agreed that the medical officers' opinion had been unreasonable since they had

12 Ismaili v. Canada (Minister of Citizenship and Immigration), No. IMM-3430-94, Federal Court Trial Division, 17 August 1995. 13 Ismaili v. Canada. 313

reached a conclusion of excessive demands on social services without considering the specific circumstances of the case. In delivering the court's order, the Judge stated,

There is an absence of evidence to support the conclusion of excessive demand. There is no evidence to show that the medical officers put their minds to the question of excessive demand as it relates specifically to Matthew. To the contrary, the evidence seems to show that the medical officers only considered the demands placed on social services by the mentally disabled in general. The medical officers have a duty to assess the circumstances of each individual that comes before them in their uniqueness.14

The court did not merely conclude that the medical officers had erred in not meeting the requirement for an individual assessment, but denounced the visa officer's decision as unreasonable. The visa officer had indeed accepted without questioning the medical officers' opinion and rejected Poste's application. Justice Cullen found this approach highly problematic:

The visa officer must not simply accept a medical officer's determination of medical inadmissibility as the basis for rejecting an applicant's AFL [application for permanent status]. To do so effectively gives medical officers "carte blanch" authority to decide who can immigrate to Canada. The final decision must rest with the visa officer, who has a duty to assess all the circumstances of the case.15

Further, in rejecting the application, the visa officer had adduced as one of the reasons the fact that Matthew was unlikely to ever become autonomous and financially independent.

In this respect, Justice Cullen noted that, "Matthew was applying under the category of a

14 Paste v. Canada (Minister of Citizenship and Immigration), No. IMM-4601-96, Federal Court Trial Division, 22 December 1997. 15 Paste v. Canada. 314

dependent . . . There is no requirement under the Immigration Act for a dependent to establish self-sufficiency."16 The court allowed the application for judicial review since,

... it would be a "win-win-win" situation if the applicant and his family were allowed to immigrate to Canada. The first "win" would be that Canada would be gaining two new professionals, resourceful people: the applicant and his wife. The second "win" would be that, although the applicant's son, Matthew, has a mild mental disability, he would be accompanying his family as, by all accounts, a well-adjusted individual considering his circumstances, with an incredible supportive family . . . The third "win" would be in furtherance of Canada's policy of family reunification. The applicant... has an elderly mother in Canada who needs his help.17

The importance of considering non-medical factors when assessing whether a person was likely to cause excessive demands was reiterated in Lau v. Canada (Minister of

Citizenship and Immigration). In 1998, Hing To Lau appealed to the court for judicial review of a visa officer's refusal of his application for permanent residence under the investor category on the grounds that one of his daughters, Kwan, was medically inadmissible. Kwan had moderate mental retardation and was deemed likely to cause excessive demands on social services. Mr. Lau alleged that the decision was unreasonable since his daughter would reside with him and his wife and had therefore family support.

Both the medical officer and the visa officer provided affidavits to the court and were cross-examined on their affidavits. The medical officer argued that he had reached a negative conclusion in light of the fact that he could not be sure that family support was going to continue into the future since, "I don't think it's really possible for us to . .. say what's going to happen to this young person in a few years from now. Will she want to

16 Poste v. Canada. 11 Poste v. Canada. 315

continue living with her family? What if their parents are ... going down the

Queensway."18 A similar rationale was provided by the visa officer who stated that, "we have no guarantees. They may have plans for now, but we don't know what may happen."19 Justice Pinard did not accept this reasoning and allowed the application as

"the lack of due consideration of 'family support' constitutes a blatant failure to consider all of the evidence with respect to the personal circumstances in the applicant's file."20

Despite the court statement that family support was one of the factors to consider when assessing whether a person was likely to cause excessive demands, Justice Pinard did not actually spell out the meaning of 'family support'. For instance, he did not clarify whether it extended to financial assistance, thus leaving the question open to interpretation by individual judges. The question resurfaced in Poon v. Canada (Minister of Citizenship and Immigration). In 2000, Ching Ho Poon applied for judicial review of a visa officer's decision to refuse him and his family immigrant visas after his son, Tat

Chi, was found to be moderately retarded and thus likely to cause excessive demands on health and social services. Poon testified that he was a man of substance and willing to underwrite the cost of all services required by Tat Chi. Justice Pelletier dismissed the argument on the basis that Poon's wealth and willingness to pay for services was irrelevant. Referring to a previous order made by the court in 1995 in Choi v. Canada

(Minister of Citizenship and Immigration), Pelletier clarified,

!8 Lau v. Canada (Minister of Citizenship and Immigration), No. IMM-4361-96, Federal Court Trial Division, 17 April 1998. 19 Lau v. Canada. 20 Lau v. Canada. 316

... the applicant's argument that the family's ability to pay has not been considered, cannot succeed .. . Access to health and social services in Canada is a matter of right for citizens and permanent residents. Once Tat Chi became a permanent resident, he would be entitled to claim access to such publicly-funded services as he required and any agreement to the contrary would be unenforceable against him.21

The court ruling on this matter was significant since, as the reader will find out in the next pages, the issue re-emerged in the following years and different judges adopted very different interpretations and approaches. In Poon's case, while rejecting the contention that the parents' financial assistance be taken into consideration, the court allowed the application and ordered the matter remitted to a different visa officer for redetermination.

The favorable decision rested on the fact that the court found the medical report insufficient because it only took into account the cost of services while failing to consider their supply. As explained by Justice Pelletier, "some consideration must be given to the supply of services in order to conclude that demand would be excessive. I am unable to find any consideration of supply in the record."22 Having based her decision on invalid medical opinion, the visa officer had made an error of law. Accordingly, the refusal was invalid and the matter was remitted to another visa officer for redetermination.

Meanwhile, the fairness of the opinions formulated by medical officers continued to be the principal matter of debate in court. In 2001, Jeannine Elise Redding, a citizen of the United States, applied to the Federal Court Trial Division for judicial review of the refusal of her application for permanent residence on the basis of medical inadmissibility

21 Poon v. Canada (Minister of Citizenship and Immigration), No. IMM-2007-99, Federal Court Trial Division, 1 December 2000. 22 Poon v. Canada. 317

under s. 19(l)(a)(ii) of the Immigration Act. Ms. Redding held two post-graduate degrees from Canadian universities and had been working in Canada with a Canadian employment visa. The woman had been denied her application because she suffered from juvenile diabetes. The applicant contested the decision adducing medical reports indicating that her attention to diabetic care contributed to stabilizing potential complications, thus giving her an excellent prognosis. In considering the case, Justice

Lemieux concluded that the medical officer in charge had ignored Ms. Redding's individual circumstances and reached the decision by exclusively looking at the general diabetes population. Referring to the previous court decision in Lau, Justice Lemieux reiterated that assessments in evaluating medical inadmissibility had to be made on an individual basis. In the case of Ms. Redding, the medical officer had failed to perform such an assessment. In particular, "Dr. Waddell's [the medical officer] statements may be true of the average or majority of diabetes patients . . . However, the applicant's material shows that her condition is stable and her prognosis is excellent. Dr. Waddell simply does not deal with her situation." As a result, the court allowed the application and returned the material to a different visa officer and different medical officers for redetermination.

The question of whether a person's ability to pay for social services should be considered in assessing medical inadmissibility resurfaced in 2002 in Wong v. Canada

(Minister of Citizenship and Immigration). Ching Shin Henry Wong applied for judicial review of a decision by a visa officer denying his application for permanent residence

23 Redding v. Canada (Minister of Citizenship and Immigration), No. IMM-2661-00, Federal Court Trial Division, 22 August 2001. 318

under the self-employed category due to the fact that his daughter suffered from moderate mental retardation and Down's syndrome. Wong had been refused two previous applications in 1994 and 1996 but he had successfully applied for judicial review in the second instance. However, the medical officers who had reconsidered the application had again reached the conclusion that the girl was medically inadmissible and likely to place excessive demands on social services. Wong contested the decision arguing that family support had not been taken into account and that the family was going to pay for all social services needed by the daughter. While the court found that family support had indeed been considered by the medical officer, the application was allowed in reason of the officer's failure to consider that the social services required in the case under review were not free but had to be paid for in the province selected by the applicant as place of residence. Accordingly, the girl's admission was not going to cause excessive demands.

Recalling previous court decisions, Justice McKeown asserted,

The jurisprudence is split on the question of whether the wealth of the applicant should be taken into account in assessing excessive demands on social services. While in Ching Ho Poon v MCI [2000] F.C.J. No. 1993 (T.D.) Pelletier J. found that wealth was not relevant, in my view the better approach was taken by Reed J. in the earlier Wong decision when she found that it would be incongruous to admit somebody as a permanent resident because he has significant financial resources but then refuse to take into account these same resources when assessing the admissibility of the dependant. This approach would not be applicable in the case of medical services but it is applicable with respect to social services.24

In explaining the last point, McKeown added,

24 Wong v. Canada (Minister of Citizenship and Immigration), No. IMM-6060-99, Federal Court Trial Division, 31 May 2002. 319

In my view it is important to note that we are talking about the social services here and not medical services. In Canada one is not permitted to obtain medical services on a private basis. However, there is no such restriction in the social services and as was shown by Ontario's Development Services Act, persons who can afford to pay for social services must pay for them.

The court's conclusion in Wong v. Canada became a launching pad for a number of similar lawsuits. It remains to be further examined whose interests were brought to the forefront in these cases. Due to the high costs of litigation, it is safe to assume that only a restricted and affluent number of applicants for immigration into Canada possess the means to follow through on a lengthy court battle. Still, the majority of those affected by the legislation are unlikely to be able to cover the expenses. On the other hand, not all immigrant applicants have enough money to pay for social services once in the country.

Discrimination on the basis of wealth is not covered by the Charter. It should be kept in mind that according to the Medical Services Act passed in 1968, Canadian citizens and permanent residents have the right to publicly funded coverage of visits to hospitals and doctors as well as to diagnostic services (what is referred to as 'medical services').

Nevertheless, some social services might also be covered depending on the province of residence, particularly when such services are deemed to be an important component in the management of certain health conditions.

One of the major lawsuits heavily relying on Wong v. Canada was brought forward a few months later by David Hilewitz. In this instance, the applicant, a citizen of South

Africa, asked for judicial review of the visa officer's rejection of an application for

25 Wong v. Canada. 320

permanent residence in the 'investor' category. The application had been refused because one of his children, Gavin, suffered from developmental delays and was therefore inadmissible under s. 19(l)(a)(ii) of the Immigration Act (although the Immigration and

Refugee Protection Act had been passed in 2001, section 190 of the new act established that the case had to be decided on the basis of the repealed Immigration Act since the initial application for permanent residency had been refused when the latter was still in effect). Mr. Hilewitz argued that the conclusion reached by the visa officer that Gavin was going to cause excessive demands on social services was incorrect since the family was wealthy enough to pay for any required service and intended to do so. Looking at the evidence in front of the court and at previous court decisions, in particular Wong v.

Canada, Justice Gibson concluded, "I am satisfied that the officer erred in a reviewable

9 f\ manner in her failure to consider all of the material available to her." The appeal was therefore allowed. As a consequence, the decision of the visa officer was set aside and the application for permanent residence in Canada referred to a different officer for redetermination.

Following the court decision, the Minister appealed under the argument that the Trial

Division Judge had erred in stating that the parents' wealth and willingness to pay for social services were relevant to the admissibility issue. In looking at the evidence presented, the Court of Appeal acknowledged that, "in his excessive demands opinion,

26Hilewitz v. Canada (Minister of Citizenship and Immigration), No. IMM-5340-00, Federal Court Trial Division, 8 August 2002. 321

the medical officer did not take into account Mr. Hilewitz' financial means,"27 and that

"[t]here is considerable Trial Division case law supporting the proposition that ability and willingness to pay are relevant considerations."28 Nevertheless, the court concluded that the Minister was correct in arguing that financial considerations were not to be taken into account when assessing medical admissibility. As a result, the Minister's appeal was allowed, the verdict of the Applications Judge set aside and the initial decision of the visa office restored. In giving the reasons of the court, Justice Evans noted that, according to s. 19(l)(a)(ii),

... the excessive demands on health and social services to be considered are those that are "a result of the nature, severity of probable duration of' the disability. This would seem to limit the factors about the individual on which the medical officer is to base an excessive demands opinion to the diagnoses and prognoses of the medical condition, and the health and social services that are thereby likely to be required, but not such non-medical considerations as an ability and willingness to pay for needed services. In addition, the fact that Parliament entrusted responsibility for forming an excessive demands opinion to medical officers may also suggest that they were not intended to have to take into account non-medical factors ... that are not within their expertise.29

Furthermore, in the Judge's opinion, even if non-medical factors were to be considered,

... the benefits to be obtained . . . may be minimal. Thus, for example, once admitted to Canada visa applicants and their families may relocate to a place where publicly funded social services are available without cost recovery ... or where the services required are not available privately. Finally, there is also a speculative aspect about predicting the life choices that a person with a disability may make . . . For instance, Gavin may decide in the next few years to try to make as independent a life for himself as he can . . . Financial misfortune or

27 Hilewitz v. Canada (Minister of Citizenship and Immigration), No. A-560-02, Federal Court of Appeal, 12 November 2003. 28 Hilewitz v. Canada, 2003. 29 Hilewitz v. Canada, 2003. 322

some other unforeseen change of circumstance may also prevent the family from providing the material support for which they had planned.30

The court recognized that its interpretation of the law as mandating the medical officer to exclusively consider medical factors seemed to be in contradiction with the objective of the Immigration Act to facilitate the admission of those meeting the other entry qualifications in a particular category, especially when they were people of wealth who were likely to contribute to the Canadian economy. As stated by Justice Evans,

It could be said that Canada's ability to use immigration policy to attract capital and entrepreneurial talents may be unduly hampered by the exclusion of a person who is expected to make significant contribution to the Canadian economy, if medical officers are not required to conduct a full assessment.31

Nevertheless the discrepancy, the court maintained that the problem could have easily been avoided by providing the person with a ministerial permit (called 'temporary residence permit' under the new Immigration and Refugee Protection Act) which functioned as a probationary admission, enabling the department to reassess the situation after three years. More importantly, the court pointed out that the issue of finding a balance between the benefits of having someone likely to make a significant economic contribution and the risk that the admission would result in excessive demands on social services, was the responsibility of Parliament. Determining how risk averse Canadian immigration policy should be was a policy choice and therefore in the hands of

Parliament, not the Court. In so doing, the judge seemed to be responding to the criticism

30 Hilewitz v. Canada, 2003. 31 Hilewitz v. Canada, 2003. 323

of several scholars who have disapproved of 'judicial activism' and have accused the court of bypassing the democratic process, thus reversing policies made by elected governments.32

A similar approach had been taken the year before by the Federal Court Trial Division in De Jong v. Canada (Minister of Citizenship and Immigration). De Jong, a citizen of the Netherlands, applied for judicial review of the visa officer's rejection of an application for permanent residency in the 'self-employed' category. The application had been rejected because De Jong's dependant daughter suffered from developmental delay and was expected to cause excessive demands on social services. The applicant argued that the visa officer had failed to consider his financial resources that were going to provide for the daughter's special needs. He maintained that in light of the distinction between health and social services (whereby in Canada only health services are publicly funded across the whole country), wealth was a factor to consider when assessing excessive demands on social services. Referring to the previous decision rendered by the

Federal Court of Appeal in Deol v. Canada (while at the same time ignoring the conclusions reached a decade later by Justice McKeown in Wong v. Canada), Justice

Pinard concluded that the distinction between health and social services was not relevant to the issue of medical inadmissibility.33 Looking at the judgment passed by the Federal

Court of Appeal, Pinard noticed that the court had made reference to "any services

32 Armstrong. 33 De Jong v. Canada (Minister of Citizenship and Immigration), Docket IMM-6058-99, Federal Court Trial Division, 13 November 2002. 324

required"34 without considering the distinction between health and social services.

Accordingly, the court dismissed the application. De Jong appealed the decision to the

Federal Court of Appeal. The appeal was heard in 2003, immediately after Hilewitz v.

Canada (Minister of Citizenship and Immigration). In that circumstance, the court held that medical officers were not legally obliged to consider non-medical factors, such as the applicant's wealth, when assessing the likelihood of excessive demands on health and social services. Abiding by the same principles, the court concluded that De Jong's appeal could not succeed and dismissed it.

In 2005, Hilewitz and De Jong appealed the decisions reached by the Federal Court of

Appeal to the Supreme Court of Canada. This time, both appeals were allowed and the applications were referred to the Minister of Citizenship and Immigration for reconsideration and redetermination by a different visa officer. In rendering the court's judgment, Justice Abella maintained that both visa applicants had qualified for admission to Canada because of their assets. For that reason, it appeared "somewhat incongruous to interpret the Immigration Act in such a way that the very assets that qualify these individuals for admission to Canada can simultaneously be ignored in determining the admissibility of their disabled children."35 According to the wording of the medical inadmissibility provision,

Section 19(l)(a)(ii) calls for an assessment of whether an applicant's health would cause, or might reasonably be expected to cause excessive demands on

34 Deol v. Canada (Minister of Citizenship and Immigration), No. A-280-90, Federal Court of Appeal, 27 November 1992. 35 Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), No. 30125; 30127, Supreme Court of Canada, 21 October 2005. 325

Canada's social services. The term "excessive demands" ... shows that medical officers must assess likely demands on social services, not mere eligibility for them. Since, without consideration of an applicant's ability and intention to pay for social services, it is impossible to determine realistically what "demands" will be made, medical officers must necessarily take into account both medical and non-medical factors. This requires individualized assessments. If medical officers consider the need for potential services based only on the classification of the impairment rather than on its particular manifestation, the assessment becomes generic rather than individual. It is an approach which attaches a cost assessment to the disability rather than to the individual... . Given their financial resources, H [Hilewitz] and J [De Jong] would likely be required to contribute substantially, if not entirely, to any costs for social services provided by the province of Ontario, where they wish to settle.36

Furthermore, the court dismissed the Minister's argument that the applicants' ability to pay for those services could not be taken as a guarantee for the future. Indeed, "[t]he fears

articulated in the rejections of the applications, such as possible bankruptcy, mobility,

school closure or parental death, represent contingencies that could be raised in relation to any applicant,"37 and were therefore invalid.

Looking from a historical perspective, the court noted that the initial legislation on the matter of immigration to Canada had allowed the entrance of people who could demonstrate enough financial resources to ensure they would not become public charges.

An absolute ban was only introduced in 1927. Responding to "concerns that such policies were overly restrictive,"38 the new Immigration Act enacted in 1976 had introduced the

'excessive demands' standard as a replacement to the wholesale rejection of 'prohibited classes'. As stated by Justice Abella,

36 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 37 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 38 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 326

The issue is not whether Canada can design its immigration policy in a way that reduces its exposure to undue burdens caused by potential immigrants. Clearly it can. But here the legislation is being interpreted in a way that impedes entry for all persons who are intellectually disabled, regardless of family support or assistance, and regardless of whether they pose any reasonable likelihood of -3Q excessively burdening Canada's social services.

The refusal to consider an individual's ability and willingness to absorb these costs was deemed contrary to the original intent of the act. Consequently, with respect to the applications submitted by Hilewitz and De Jong,

The medical officers were obliged to consider all relevant factors, both medical and non-medical, such as the availability of the services and the anticipated need for them. In both cases, the visa officers erred by confirming the medical officers' refusal to account for the potential impact of the families' willingness to assist.40

Two of the judges in the panel, LeBel and Deschamps, expressed their dissent with the decision. They argued that wealth was not among the factors to take into account when assessing medical admissibility. Both judges sustained that based on the legislation,

. . . the determination of excessive demands is made by reference to the nature, severity and probable duration of the medical condition itself. Rather than exclude persons on the basis of the condition alone, Parliament intended the medical officer to look at how the condition affects the individual. This does not, however, mean looking at criteria that have nothing to do with the medical condition. . . . the fact that Parliament expressly considered whether family support was relevant to excessive demands assessments and chose not to include it in the Immigration Act and the regulations strongly suggests that Parliament did not intend wealth to be a relevant factor.41

39 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 40 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 41 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 327

Besides, obliging medical officers to consider non-medical factors was problematic since,

The more a medical officer's analysis is tied to highly subjective non-medical factors, the more likely it is that the medical officer will be drawn into assessments outside his or her area of expertise. Such an approach may produce inconsistent results for similarly situated applicants and thwart efforts to treat all applicants equally, and would result in longer delays. Finally, without the ability to enforce the promise to pay for social services, there is no way to ensure that the family will in fact mitigate the excessive demands placed on public funding.42

While acknowledging the apparent incongruity in the act of accepting visa applicants because of their assets but refusing to consider those same assets when determining excessive demands, LeBel and Deschamps concluded,

.. . this is what Parliament has done. It has chosen to use criteria for the decision on medical inadmissibility that are distinct from those used for the selection as business or economic applicants. Business or economic applicants are evaluated on the basis of their potential contribution to Canada; however, in order to avoid undermining their potential contribution, these applicants must not fall into an inadmissible class of persons. The applicants can still be admitted on the basis of their wealth, but this is left to the discretion of the Minister who can issue a permit despite the medical inadmissibility.43

While the Minister had the means to make exceptions, this power was not given to medical and visa officers. In fact, throughout time, there had been no indication that wealth was among the factors officers were obliged to consider. As a result, "to adopt an overly expansive view of s. 19(l)(a)(ii) would be to depart from a long history of selective admission policies. When wealth was to be considered by the decision maker,

44 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 45 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 328

the statutes said so clearly. Section 19(l)(a)(ii) makes no such reference. In its historical context, this silence is meaningful."44

According to Justice Deschamps, the fact that the new Immigration and Refugee

Protection Act did not mention wealth as one of the factors to be considered by medical officers was also indicative of the will of Parliament. In that context, Deschamps noted that,

Neither s. 38(l)(e) of the subsequent statute, the IRPA [Immigration and Refugee Protection Act], nor its accompanying regulations (see s. 34 of the Immigration and Refugee Protection Regulations, SOR/2002-227) make any reference to family support or income; instead, s. 34 directs officers drawing conclusions about excessive demands to consider only reports made by a health practitioner or medical laboratory and any condition identified by the medical examination. Likewise, the handbook given to medical officers to assist them in making their assessments specifically directs them to ignore "civil factors, such as the economic circumstances of the applicant" and to focus "solely on the medical considerations specified in the Act and Regulations": Medical Officer's Handbook: Immigration Medical Service (1992 (loose-leaf amended in October 1995), Secion III, "Assessing System and Method", para 3.1(11). ... If Parliament had wanted to direct medical officers to consider family support or wealth, it had ample opportunity to do so when revising the rules. It is not for the courts to make such revisions in a case where there is no constitutional challenge.45

The fact that the Immigration Act of 1976 and its successor did not refer to wealth as relevant in the question of medical admissibility was not accidental. As pointed out by

Deschamps, the legislation was "not drafted in a vacuum; it is impossible to ignore the context of widespread health and social safety nets which existed when the provision

44 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 45 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 329

came into force."46 Therefore, it was fair to assume that Parliament had acted with the specific intention of protecting the financial assets of the state from depletion.

Consequently, LeBel and Deschamps felt they had no other choice but to dissent with the court decision to allow the appeals.

The conclusion reached by the Supreme Court in Hilewitz v. Canada and De Jong v.

Canada represents a milestone in the immigration legal field since, regardless of the dissentions reported above, it sets a precedent by legally establishing that financial ability to pay for social services is of paramount importance when assessing the issue of medical admissibility into the country. It bears the implication that visa applicants should be assessed depending on their wealth. In so doing, it validates the distinction among people on the basis of financial means and economic potential, while ignoring all other non- economic contributions an individual has to make. Hence, with respect to the declared objectives of the Immigration and Refugee Protection Act, it prioritizes the goal,

(c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;47

while leaving aside the social and cultural benefits that immigration may bring to Canada.

As this study has shown in previous chapters, the decision confirms that the main purpose

of Canadian immigration policy is to support the country's economy through the

acceptance of a healthy and productive workforce. Under the assumption that only

productive subjects are useful and welcome, it also sends a message to all Canadians that

46 Hilewitz v. Canada (2005); De Jong v. Canada (2005). 47 Immigration and Refugee Protection Act. 330

this is the ideal they should embody. Failure to attain that ideal will not put them outside the legal framework of citizenship; nonetheless, it will make them 'less worthy'. It seems problematic when society reduces its members to mere producers and consumers, thus valuing them simply based on the money they have rather than the persons they are. It is even more troubling when a court of justice validates such an argument.

The emphasis on wealth and the de-valuation of the other contributions made by persons with disabilities are further confirmed by the fact that almost two years later,

Canada Immigration and Citizenship (CIC) finally responded to the Hilewitz and De Jong ruling and released Operational Bulletin 037 which outlined new procedures complying with that ruling. As pointed out by Guidy Mamann in the article "CIC skirts court medical ruling,"

In its usual "never-give-an-inch" fashion, the department outlined a more individualized procedure, but limited it "only to applications made under the business class." ... all applicants who are in similar circumstances and who are applying in other immigration classes are out of luck. 4-8

It appears that the Department of Citizenship and Immigration has decided that

immigrants with disabilities are to be assessed exclusively on their financial means. Only

applicants considered as wealthy, namely those applying under the business class

category, receive a chance to prove their ability to pay for services. Others are not even

provided with the same opportunity. Hence, not everyone is equal under the law of

Canada, quite an incongruity with respect to s. 15 of the Charter stating that "Every

48 Guidy Mamann, "CIC skirts court medical ruling," Metro, 10 September 2007. 331

individual is equal before and under the law."49 Despite its attractiveness, the concept of equality remains challenging to define and interpretations of the term "equal" have tended to vary in time and according to the context.

As an aside, it is worthy of mention that a search on the web has shown no reference to Operational Bulletin 037 other than a short announcement on the Citizenship and

Immigration Canada's website50 and Mamann's article which first appeared on Metro (a free daily publication available in Toronto, Vancouver, Montreal, Ottawa, Calgary,

Edmonton and Halifax)51 and is now also reproduced on the website of his immigration law practice.52 It would be worthwhile to examine why other more substantial papers, particularly the two selected in this study, have chosen to completely ignore the document and its implication for the immigration policy of the country. This is illuminating on how coverage provided by the press is by its nature highly selective and based on both the editorial line of the specific paper and more general assumptions about what readers are interested or non-interested in.

As noted at the beginning of this chapter and illustrated by the above discussed court

cases, almost all of the immigration lawsuits brought to court failed to make direct reference to the Canadian Charter of Rights and Freedoms. Instead of questioning the law

as unconstitutional because in violation of s. 15 of the Charter, the reviewed litigations

simply cast doubts on the correctness of applying the medical inadmissibility provision

49 Canada Constitution Act 1982, http://www.servat.unibe.ch/law/icl/ca02000_.html. 50 http://www.cic.gc.ca/ENGLISH/resources/manuals/bulletins/2007/ob037.asp 51 Guidy Mamann, "CIC skirts court medical ruling," Metro, 10 September 2007. 52 http://www.migrationlaw.com/ 332

within the Immigration Act to the specific circumstances of the appellants. It is curious that at a moment when "the Charter has invigorated the struggles of groups that represent people with disabilities," references to the Charter were absent in the overwhelming majority of legal cases dealing with individuals who had been refused admission into

Canada because of mental or physical disabilities. As argued at the beginning of the chapter, it appears likely that this occurred because legal counsels were of the opinion that questioning the constitutionality of the Immigration Act was not going to be successful in court. In fact, aside from the traditional conservatism of the courts54, there were two major obstacles to overcome: the government's claim that the issue at stake was not disability but excessive demands created by disability, and the fact that s. 1 of the

Charter establishes that rights and freedoms guaranteed by the Charter itself are not unconditional but subject to reasonable limits (and again, what is or is not reasonable is a matter of interpretation) prescribed by the law.

Equally important is to consider that, as pointed out by Evelyn Kallen in Ethnicity and

Human Rights in Canada, "individuals or organizations bringing complaints under the

Charter must pay for the costs involved."55 Recognizing that costs can be prohibitive, especially for persons belonging to disadvantaged minorities, the federal government had initially set aside some funding for "selected 'Charter Challenge' court cases at the federal level. However, this program was discontinued in 1992."56 While axed by the

Conservative Mulroney government, the program was revived by the Liberals when they

53 Armstrong. 54 Armstrong. 55 Kallen 261. 56 Kallen 261. 333

came to power in 1993. However, after being criticized for years by social conservatives and critics of judicial activism for providing groups with the money to go to court and thus circumvent the will of Parliament, the program has since then been killed once again in the fall of 2007 by the Conservative government of Stephen Harper. As a result, many persons have been prevented from pursuing the option of using the Charter for the protection and recognition of their rights. The high costs involved in bringing Charter claims forward have made the document inaccessible to those needing it most. If not for the subsidies provided by organizations advocating on issues of rights and equity, and the benevolence of some lawyers to bankroll cases, the Charter would remain a luxury many cannot afford.

Despite these difficulties, in 2001 Angela Chesters, a German citizen married to a

Canadian, challenged as unconstitutional the visa officer's decision to refuse her permanent resident status under the 'family class' category on the basis that she had multiple sclerosis and was therefore likely to cause excessive demands on health and social services. Her case is significant as it represents the first serious attempt to question the medical inadmissibility provision contained in the Immigration Act as unlawful because in violation of s. 15 of the Charter. It is also noteworthy because of the publicity it received in the press and the debate it generated in Canadian society at large. The fact that the effort to prove the unconstitutionality of the Act did not succeed speaks volumes about the way Canadian law approaches issues of immigration and disability. At the same time, readers should keep in mind that as unique and remarkable as it is, Angela

Chesters' case highlights a state policy on immigrants with disabilities that has been at 334

work for more than a century and has affected a large number of people who have never reached media attention while remaining anonymous. The focus should therefore remain on a long-lasting process of exclusion rather than on a single figure of note.

In December 1991, Angela Chesters, a German citizen holding Masters' degrees in both History and Science and Information Technology, married Robin Chesters, a native of South Africa who had subsequently acquired Canadian citizenship. In September of that year, Mrs. Chesters had been diagnosed with multiple sclerosis and by the end of

1993 she was using a wheelchair. At that time, the couple lived in England. In 1994, they decided to move to Canada and Mrs. Chesters submitted an application for permanent residence as a member of the family class. On November 14, 1994, Robin Chesters received a telephone call from Mr. Ernest Alston, a visa officer at the Canadian High

Commission in London (where Angela had submitted her application) informing him that his wife had been determined to be medically inadmissible to Canada under s. 19(l)(a)(ii) of the Immigration Act. Mr. Alston advised Mr. Chesters to investigate the possibility of obtaining a ministerial permit allowing Mrs. Chesters to enter the country. By that time, the couple was already living in Canada since Mrs. Chesters had received a visitor's visa in the summer 1994. In April 1995, Angela Chesters was issued a ministerial permit valid for three years. The following year, however, she moved back to Germany to work and was joined by her husband in February 1999. After receiving a negative response from immigration authorities, Mrs. Chesters did not pursue an application for judicial review but decided to challenge the constitutionality of s. 19(l)(a)(ii) by way of action. This was 335

done through the issuance of a statement of claim on April 2, 1997 (an amended statement was filed on July 29 of the same year).57

Angela Chesters commenced her action in 1997. On August 30, 2000, the Minister of

Citizenship and Immigration made an offer in writing to settle the proceeding which included landing for the plaintiff. However, on September 27, 2000, Mrs. Chester rejected the offer. On the basis that the offer had not been accepted, the court dismissed the defendant's claim that the issue before the court was moot, as there was no 'live controversy' between the parties to the litigation. The rationale behind the dismissal is that the court has competence to resolve legal disputes within an adversarial system and this cannot be done without the existence of a true adversarial context. In spite of this, the

court still has authority to hear a case when the latter, which would otherwise be

dismissed, involves collateral consequences for the litigants. Furthermore, the court can

also refuse dismissal when there is an intervener with a stake in the outcome of the

litigation. As pointed out by Justice Dawson, there were valid reasons for the court to

hear the case brought forward by Angela Chesters. Indeed, Dawson noted that the

plaintiffs request was for a declaration that s. 19(l)(a)(ii) was inconsistent with s. 7 and

s. 15 of the Charter. Hence,

While at the end of the day the plaintiff certainly may hope to be landed (and I note parenthetically to be landed by right and not by the defendant's largesse as

57 Chesters v. Canada (Minister of Citizenship and Immigration), No. IMM-1316-97, Federal Court Trial Division, 27 June 2002. 336

reflected in a settlement offer), it remains that the plaintiffs action does not directly put landing in issue and is not limited to a claim for landing. 58

In December 2001, the defense asked for summary judgment and repeated its request to have the issue declared as moot in reason of the fact that a new Refugee and Protection

Act had been given Royal Assent on November 1, 2001 (though it had not yet come into force). The defendant pointed out that Mrs. Chesters "would no longer be medically inadmissible under subsection 38(2) of the new legislation."59 As previously noted, the act establishes that the medical inadmissibility provision does not apply to persons who are refugees or spouses, common law partners or children of a Canadian citizen or permanent resident. After due consideration of the defendant's argument, Justice Lufty dismissed the motion once again on the grounds that,

The plaintiffs action is grounded on the current legislation, not on the new Immigration and Refugee Protection Act which has yet to come into force. In his letter to the Court dated December 4, 2001, counsel for the plaintiff stated that the new legislation has no impact on this litigation.60

In refusing the defendant's motion to have the case dismissed for mootness, the court also considered the fact that, by order dated February 20, 2001, Prothonotary Lafreniere

(the prothonotary is the chief clerk of the court in certain courts of law; this office usually exists in places with an Anglo-American jurisdiction) had granted intervener status to the

Council of Canadians with Disabilities (CCD), a national not-for-profit organization

58 Chesters v. Canada. 59 Chesters v. Canada. 60 Chesters v. Canada. 337

representing people with disabilities. On February 27, 2001, the CCD made a written

submission to the court arguing that it was important to adjudicate on the issue of

constitutionality of s. 19(l)(a)(ii) since the provision contributed "to the pervasive

negative stereotype of persons with disabilities, including those who are permanent

residents of Canada, as a drain on society."61 The organization maintained that for years

the Department of Citizenship and Immigration had attempted to avoid having the

constitutionality of the Act adjudicated in court by issuing ministerial permits to people

who had initiated a Charter challenge. The consequence had been that "Those who are

desperate for permanent status in Canada usually do not have the resilience to see a case

through its conclusion when tempted by the blandishment of a Minister's Permit." The

department's successful attempts in terminating litigations had resulted in the

continuation of a practice that was discriminatory at its roots. Accordingly, the CCD

insisted that,

The issue at the core of this case: the constitutionality of section 19(l)(a) of the Act, is regarded by the CCD as an issue of national importance. This is not only because of its impact on persons with disabilities from abroad, who would be welcomed as new Canadians were it not for their disability; but of equal importance is its discriminatory impact upon Canadians with disabilities who are stigmatized by this legislation's failure to recognize that disabled people make contributions to Canadian society.63

Angela Chesters' case finally reached the trial stage on June 27, 2002. In her

submissions to the court, the plaintiff argued that she had been discriminated on the basis

61 Chesters v. Canada, Written Submissions of the Intervener, No. IMM-1316-97, Federal Court Trial Division, 27 February 2001. 62 Chesters v. Canada, Written Submissions of the Intervener. 63 Chesters v. Canada, Written Submissions of the Intervener. 338

of her medical condition "which was improperly categorized by Canadian immigration officials as a disability."64 She therefore challenged the constitutionality of s. 19(l)(a)(ii) on the grounds that it contravened s. 7 (which guarantees life, liberty and security of the person) and s. 15 of the Charter. According to the plaintiff, s. 7 was violated because she was placed in a situation of uncertainty which resulted in high levels of mental and psychological stress. More importantly, s. 15 was offended as she had been singled out as belonging to a class of persons who were explicitly protected by that section. The plaintiff maintained that even "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."65 Mrs. Chesters' arguments were also adopted by the intervener, the

Council of Canadians with Disabilities. Additionally, the CCD submitted that the medical inadmissibility section of the Immigration Act was "further flawed by failing to address the potential contribution to be made to Canada by persons suffering from disabilities."66

In presenting its case, the defense maintained that s. 19(l)(a)(ii) did not offend s. 7 and s. 15 of the Charter and was, in any event, justifiable under s. 1. The main argument was that Canada had both the right and obligation to set standards for entry into the country, and that subparagraph 19(l)(a)(ii) was meant to accomplish that objective by protecting Canadian health and social services against excessive demands. The defendant denied Mrs. Chesters' claim that the department's actions had resulted in a breach of s. 7

64 Chesters v. Canada, http://recueil.cmf.gc.ca/fc/2003/pub/vl/2003fc31014.html. 65 Chesters v. Canada. 66 Chesters v. Canada. 339

of the Charter since levels of stress are to be assessed objectively and that section was never intended to "protect an individual from the ordinary anxiety that would be felt by a person of reasonable sensibility, as the result of government action." As for s. 15 of the

Charter, the defendant relied on a previous decision reached in 1999 by the Supreme

Court in Law v. Canada (Minister of Citizenship and Immigration) where the court identified three steps to be followed when assessing whether s. 15 of the Charter had been breached. The first step was to look at an appropriate comparator group receiving a different treatment from the plaintiff. Whereas Angela Chesters argued that a distinction had been made between able-bodied and disabled spouses of Canadian citizens who applied for permanent residence, the defendant responded that the distinction to be considered was the one between persons who were medically admissible and those who were not. The second step consisted in assessing whether the distinction had been based upon the enumerated grounds of disability. Contesting Chesters' argument, the defendant stated that the distinction had no relation to disability but was exclusively based on the concept of 'excessive demands'. Finally, the third step looked at discrimination based on stereotypical reasoning. The defendant argued that the plaintiff had been "assessed on a personalized basis"68 and therefore there had been no stereotypical reasoning behind the visa officer's rejection.

67 Chesters v. Canada. 68 Chesters v. Canada. 340

In giving the reasons for the court order, Justice Heneghan began by stating that "It is well-settled law that not every differential treatment gives rise to discrimination."69 He then proceeded to assess whether discrimination had taken place in the case brought forward by Angela Chesters. For that purpose, he heavily relied on the three steps process outlined in Law v. Canada (Minister of Citizenship and Immigration) and previously referred to by the defendant. On the question of a proper comparator group, Justice

Heneghan concluded that Mrs. Chesters had sought admission to Canada as member of the family class; accordingly, the family class and not able-bodied spouses of Canadian citizens was the appropriate comparator group. Accepting the defendant's argument, the court interpreted s. 19(l)(a)(ii) as focusing on excessive demands rather than disability.

As pointed out by Justice Heneghan, "Subparagraph 19(l)(a)(ii) is not directed to any of the specified grounds in subsection 15(1) of the Charter. It is directed to excessive demands."70 Following the defense's line of reasoning, the court explained that the Act had the purpose of protecting Canada against excessive demands and "that purpose is

apparent even if the words "disease", "disorder" or "disability" are deleted." 71

Remarking that entry into Canada is a privilege rather than a right, Justice Heneghan

concluded,

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

69 Chesters v. Canada. 70 Chesters v. Canada. 71 Chesters v. Canada. 341

immigration must be selective. . . . 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 ... In my opinion, this is not within the enumerated grounds of subsection 15(1) nor is it analogous to it.72

With respect to the plaintiffs claim that the actions of the state had put her in a situation of uncertainty which had resulted in high levels of psychological stress, thus contravening the guarantee of life, liberty and security of the person under s. 7 of the

Charter, the court dismissed the argument as well. Stating that "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',"73 the court decided that,

. . . the plaintiffs right to security was not infringed in consequence of the application of the 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.74

Accordingly, the court dismissed the action by concluding that, "subparagraph

19(l)(a)(ii) offends neither subsection 15(1) of the Charter nor section 7."75

In giving the reasons for its decision, the court did not address any of the submissions presented by the intervener, the Council of Canadians with Disabilities. In particular, the

72 Chesters v. Canada. 73 Chesters v. Canada. 74 Chesters v. Canada. 75 Chesters v. Canada. 342

court failed to address the intervener's criticism that the medical inadmissibility provision did not balance the potential contributions to Canadian society of people with disabilities or illnesses against expected costs to health and social services. On that issue, Justice

Heneghan chose to remain silent. As mentioned by Sarah Armstrong in her paper

"Disability Advocacy in the Charter Era," several scholars have repeatedly pointed out that the judicial system is inherently conservative and therefore the courts are more likely to uphold the status quo than validate a progressive interpretation of the Charter.76 This view is also shared by Catherine Dauvergne who maintains that "migration decision- making" in particular is characterized by both "[e]xecutive discretion and judicial deference," this being demonstrated by "the scant impact which the Canadian Charter of

Rights and Freedoms has had on immigration and refugee law."77 The court decision in the case of Angela Chesters appears to confirm Dauvergne's interpretation. On the other hand, it cannot be denied that in a number of cases, the courts have played a significant role "in safeguarding minority rights overlooked in the ordinary processes of majoritarian democracy."78 While acknowledging that the final goal should be educating society rather than merely fighting in the court, it remains true that the Charter represents a valuable tool in the advancement and protection of minority rights also within the judicial system.

With reference to people with mental or physical disabilities, it is apparent that their inclusion in s. 15 of the Charter has been a huge step forward in their struggle for recognition.

76 Armstrong. 77 Catherine Dauvergne, "Sovereignty, Migration and the Rule of Law in Global Times," Modern Law Review, vol.67, issue 4 (July 2004) 591. 78 Armstrong. 343

As recalled by Armstrong in her paper, when s. 15 was introduced in Parliament in

October 1980, it made no reference to people with disabilities. The exclusion of disability from section 15 was strongly opposed by the disability community on three different fronts: in the media and in public debates over patriation, in discussions of the Special

Committee of the House of Commons on the Disabled and the Handicapped (the

Parliamentary Handicap Committee), and in presentations to the Special Joint Committee

of the Senate and House of Commons on the Constitution of Canada (the Hays-Joyal

Committee).79 In particular, the disability community advocated for the constitutional recognition of the right to equality for persons with disabilities. The federal government actively resisted the idea of having mental and physical disability added to section 15. In explaining its opposition, the government, in the person of the Minister of Justice Jean

Chretien, argued that there were three main objections to including disabled among the protected groups: to begin with, the courts were already in a position to intervene if a person with disability was discriminated; second, there was no clear definition yet in

Canadian society of who were those covered by the term disability; finally, there was no real need to protect disability rights under the constitution as the provinces already had

effective human rights codes.80 Another objection, never clearly stated but always hinted at was that it would be too expensive to fund new services that might be required by the

Charter. However, "At no point did the government present statistical or factual support

for the claim that including disability in section 15 would cost too much money."81

79 Armstrong. 80 William Boyce et al., A Seat at the Table: Persons with Disabilities and Policy Making (Montreal: McGill-Queen's University Press, 2001) 53. 81 Armstrong. 344

Before the Hays-Joyal Committee, a number of different disability organizations such as the Coalition of Provincial Organizations of the Handicapped (COPOH) (which in 1994 was renamed the Council of Canadians with Disabilities), the Canadian Association for the Mentally Retarded (CAMR) and the Canadian National Institute for the Blind (CNIB) contested the government's position. They argued that "the cost argument was untenable, first, because the argument itself was unsupported (there was no proof it would be more costly in the long term) and, second, because disability was the only ground of discrimination to which this cost-benefit analysis was being applied."82

It is interesting to note that a similar argument could be easily applied to the medical inadmissibility provision in the Immigration Act of 1976 and in the presently in place

Immigration and Refugee Protection Act. As it emerges in the 2002 decision in Chesters v. Canada, the question of excessive demands is still asked exclusively in relation to immigrant applicants with diseases or disabilities despite the fact that other groups as well could potentially result in high costs for the Canadian economy. In giving its judgment in the Chesters' case, the court maintained that the medical inadmissibility provision was not discriminatory as its intention was to protect the state against the possibility of excessive demands created by some individuals. In particular, the court pointed out that the purpose of the provision was evident whether or not explicit references to disease, disorder or disability were made in its wording. However, the court's argument was flawed as it failed to consider that, should those words be deleted, the provision could be used to keep out of the country also heavy smokers or aged

82 Armstrong. 345

people, both categories that could likely be expected to pose excessive demands on health and social services. The court's rationale did not account for the fact that the Department of Citizenship and Immigration appears to pay no attention to such categories while it keeps focusing on individuals with disabilities.

In the fight to have disability included in the Charter, it certainly played to the advantage of the disability rights' advocates that the whole debate took place in the

United Nations International Year of Disabled Persons. As recalled by Yvonne Peters in her article "From Charity to Equality," Canada had been one of the co-movers of the

United Nation resolution that had designated the year 1981 as the International Year of

Disabled Persons.83 Given these premises, it became difficult to justify the refusal to entrench the rights of people with disabilities into the new Constitution while at the same time supporting the principles of full participation and equality entrenched in the United

84 Nation resolution. In the end, the government capitulated and "Canada added both mental and physical disability to the list of specifically protected groups in sections 15(1) oc and 15(2) of the Charter." Providing people with disabilities with constitutional recognition of their right to equality magnified their impact on society. For the first time ever, they found themselves in possession of a new legal tool in the quest for equality. As

Armstrong points out, "Since the enactment of the Charter, groups representing people with disabilities have repeatedly intervened in equality rights cases to persuade the courts

83 Yvonne Peters 131. 84 Peters 132. 85 Armstrong. 346

to adopt this vision of substantive equality."86 Despite the fact that the courts have not always adopted a progressive view of the Charter (and here 'progressive' refers to the active protection of minority rights that are overlooked in the ordinary process of majoritarian democracy), it still holds true that it has been extremely empowering to

87 finally have a voice in the Supreme Court. Armstrong notes that "The potential for interest advocacy under the Charter has given disability groups significant new opportunities to influence the development of the law and public opinion on fundamental oo disability issues." Although recourse to the courts has not always presented people with disabilities with the expected outcomes, it has nonetheless given them a voice to reach out to and create a lively debate within the broader society.

This chapter has illustrated the way the medical inadmissibility provision in the

Canadian Immigration Act has been contested in the courts during the last twenty years.

It has further unambiguously revealed the state policy on the issue of medically inadmissible immigrants, thus providing evidence that despite the changes in language registered in both politicians' and newspapers' public discourses, there has been no fundamental ideological shift in the way immigrants suffering from illnesses or disabilities have been assessed throughout the last hundred and forty years. The discussion has shown that no matter what has been the language used to justify the exclusion (whether employability or excessive costs), the decision to reject those individuals who are not healthy and 'fully functional' according to society's standards,

86 Armstrong. 87 Armstrong. 88 Armstrong. 347

has continued to stand unaltered. Within this general discourse, the chapter has also focused on the impact of the Charter of Rights and Freedoms in the interpretation of the provision. The main elements that have emerged throughout the investigation point to the fact that in reason of the conservatism of the courts and the defendant's argument that rejection on the basis of medical inadmissibility is not about disability per se but excessive demands to the state, the overwhelming majority of the litigations examined failed to use the Charter to question the constitutionality of the law while merely contesting the appropriateness of applying the law in the particular instance considered. It also surfaces, from an analysis of the only court case that is entirely grounded on the

Charter and its incongruence with the immigration law of the country, that the courts have so far been quite reluctant to address questions of unconstitutionality, thus confirming the arguments of various scholars who maintain the judicial structure tends to uphold intact the existing system. It would be worthwhile to conduct a thorough examination of the reasons behind such attitudes, beginning with considering to what extent this is a reaction to accusations repeatedly addressed to the courts of attempting to bypass the democratic process and reverse Parliament's decisions.

As shown by the case of Angela Chesters, the Charter's application in the courts is no panacea. The judiciary tends to have a very conservative approach to the equality clause and appears inclined to uphold the status quo. Nevertheless, the Charter represents a revolutionary tool in the hand of minority groups. With respect to the issue dealt with in this study, the applicability of the Charter to every person who is on Canadian soil, no matter whether Canadian or not, has a potential that has not yet been fully explored and 348

exploited. In particular, it brings back on the stage the issue of human rights guaranteed to every individual irrespective of nationality. In 1951, Hannah Arendt wrote in The

Origins of Totalitarianism that, "general human rights, as distinguished from the rights of citizens" "proved to be unenforceable."89 Arendt's argument has recently been echoed by

Giorgio Agamben when he maintains that the notion of human rights "is inconceivable in the law of the nation-state,"90 and that there are no rights outside those bestowed upon citizens. The Charter seems to represent the first serious attempt to invalidate such arguments. Whereas still tied to the notion of a nation state (as the document is enforceable only within the Canadian sovereign space), the fact that it applies to every human being physically in Canada without consideration for the individual's nationality, renders the Charter a revolutionary tool of unprecedented proportions. The refusal of the court in 2002 to engage with the criticism brought forward by the Council of Canadians with Disabilities is visible proof that many of the implications of the Charter have so far simply been disregarded. However, disregard is not dismissal. These same issues will likely resurface again, and it is likely that sooner or later the court will be forced to face them.

89 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973) 293. 90 Giorgio Agamben, Means without ends (Minneapolis: University of Minnesota Press, 2000) 19,0. 349

Conclusion: where are we now and what lies ahead?

The goal of this study has been to explore how Canadian immigration policy with respect to persons with a disease, disorder or disability has historically been blatantly discriminatory and, since the passage of the Charter of Rights and Freedoms in 1982, unconstitutional. This has been done through an analysis of the public discourses around the issue entertained by federal politicians, two representatives of the press (the Toronto

Star and The Globe and Mail) and the judicial system. The conclusion summarizes the main findings of the investigation and the challenges (both in terms of additional study and action) that lay ahead in the creation of a structure that is fairer and more equitable towards those trying to immigrate to the country. It looks in particular at the way discrimination in art. 38(l)(c) of the currently in place Immigration and Refugee

Protection Act impacts the notion of citizenship in Canadian society, in its formal as well as substantive meaning. It also discusses how the concept of citizenship can be expanded to take into account social differences, in this instance with respect to a specific minority group, the one composed of persons who are at the same time immigrants and have a disability or illness.

The previous chapters have attempted to fill the gap existing in the academy whereas issues of immigration, disability and citizenship have often been disconnected and dealt with separately. In particular, this study has demonstrated that the way certain sectors of

Canadian society, namely elected officials, various contributors to two widely-read papers, and the legal system, look at and talk about disability is reflected in their 350

approaches to immigration and their understanding of citizenship. The historical devaluation of people with disabilities in Canadian society has resulted in the search for

'ideal' citizens who are both 'healthy' and 'productive', and in the consequent exclusion from the national body of those who do not fit this ideal. While several studies have looked at the immigration process in the country, the situation of persons with disabilities within Canada and the construction of citizenship in the Canadian context, it seems that no investigation has previously been conducted explicitly linking all of these aspects together. The consequence of this failure to establish a connection among the three has hampered a full understanding of the processes regulating the formation, development and maintenance of a Canadian citizenry and national identity. As pointed out by

Catherine Dauvergne, especially in countries of immigration such as Canada, the United

States, Australia and New Zealand, "the mythology of the nation is bound up with immigration . . . [w]hen these nations select immigrants . . . they convey the nation's values."1 Accordingly, a real understanding of Canadian society cannot avoid considering the vital role played by migration laws in the construction of the nation as these laws represent the main instrument for the selection of members of the community.

The study has highlighted the fact that Canadian immigration policy has been formulated since its inception as a tool to construct a national population that was both healthy and productive, thus being able to contribute to the material and economic growth of the country.2 This has resulted in the de-valuation of people who do not fit the

1 Dauvergne 590. 2 Kelley and Trebilcock 13. 351

paradigm and in their consequent exclusion. The Canadian state has heavily relied on the medical inspection of immigrants in order to halt the influx of 'undesirable' applicants at the border. The screening of immigrants has been based on the assumption that only those who might be of use to Canada should be allowed to enter.3 Whereas concerns about individuals with physical or mental 'disorders' were initially related to their

economic as well as social and moral impact, the emphasis has now been restricted to the economic aspect. Today, people with a disease, disorder or disability are not excluded because they bring the threat of 'race degeneration' but because they might constitute a burden to the taxpayer. Despite this shift, Canadian immigration policy was and still remains one of the main methods of regulation of a national population and labour force.

As in many other states within the western system of capitalism, Canada has relied on a

view of individuals as worthy only insofar as useful to the material growth of the country.

This conception of worthiness has resulted in the use of immigration control to prevent

supposedly 'un-useful' and 'un-profitable' subjects from entering. Persons with

disabilities have traditionally been portrayed as the prototype of un-productiveness,

despite evidence that their exclusion from the labour market is a result of barriers created

by society rather than the product of disability itself. Further, they have also been

perceived as costing the system in terms of both services and money without giving back

anything substantial.

The exclusion of 'foreign' people with a disease or disability is indicative of the kind

of national population Canada aims at creating. Accordingly, it sends a message to

3 Sears 91. 352

Canadian citizens as well, reminding those who have a disability or disease that their country is uneasy with their presence within the national body. In a not-so-veiled attitude,

Canada constantly makes clear to its own disabled citizenry that their acceptance is linked to their 'luck' of being born in the country; should they have come from outside the national borders, no value would be recognized in them. The current study has shown that even at present, Canadians with disabilities are forced to face several forms of social oppression and although in possession of formal citizenship, they are still deprived of many of the rights usually associated with the concept of full citizenship. Despite the gains attained by persons with disabilities in the last fifty years, the study has demonstrated that they continue to face socio-spatial isolation and oppression within

Canada at the federal, provincial and municipal levels. This state of affairs results from the fact that society has historically de-valued the contributions of persons with disabilities. Indeed, while Canadian society has a work culture which grants social status on the basis of people's ability to work, the definition of work we have been accustomed to is quite limited. For instance, it fails to acknowledge that persons with disabilities are productive subjects, thus creating barriers to their full contribution.4

The same de-valuation of the potential contributions that persons with disabilities can make to society is reflected not only in the marginalization of disabled citizens but also in the rejection at the border of immigrant applicants with a disease or disability. Since its inception in the late nineteenth century, Canadian immigration policy has steadfastly refused entrance to those who fell outside the ideal of a healthy and productive

4 Mary Grimley Mason, Working against Odds (Boston: Northeastern University Press, 2004) 115, 118. 353

individual. Although the language in subsequent versions of the Immigration Act and its accompanying regulations has been modified through time in order to make it 'less offensive' to constantly evolving sensibilities, it is still formulated in such a way as to unequivocally deny admission to persons with a disease and/or mental or physical disability. Despite the changes the legislation has gone through in the last century, its main focus has remained the support of Canadian material interests. In a nutshell, the language has changed but the ideology at the core of the legislation remains unaltered.

The present study has attempted to prove that this blindness to non-material and non- economic contributions of potential immigrants has not been fully explored by scholars, who have traditionally concentrated on issues of integration and conflict among different cultures, thus leaving aside the debate on the role played by immigrants within the national body apart from their economic involvement. Equally important, this dismissal is worrying as it results in a loss to the whole society. As argued in previous chapters, persons with disabilities are a reminder that difference, understood as, in the words of Iris

Marion Young, "unassimilated otherness,"5 is a value rather than a barrier and that there are many different ways to look at and being in the world. Failure to acknowledge their contribution constitutes an impoverishment and a limitation for the whole civil society.

With respect to the current legislation, the discrimination implicit in Article 38(l)(c) of the Immigration and Refugee Protection Act stems from the widespread use of the

5 Ms Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990) 227. 354

'medical model' for understanding the lives of those with a disability.6 It is therefore based on the assumption that a medical examination is enough to judge the capacity of a person with impairments or disabilities to meaningfully participate in society. Exclusion based on impairment or disability results in the denial of the right to equality recognized to all human beings by both the Canadian constitution and several international agreements signed by Canada. Ruling on the social, intellectual, and emotional potential of the disabled person to participate in the development of Canadian society, the law does not take into account a number of other essential factors such as the person's age, abilities, and background. In reducing the disabled person to an economic factor, the article removes any social, moral, or cultural contribution of the individual in society's development, and it denies that person's right to become a Canadian citizen exclusively on the grounds of disability. As pointed out by Ann Shearer in Disability: Whose

Handicap?, "the "contribution" that people make to their society is not simply to be defined in narrow economic terms."7 The author argues that we all have gifts and talents that enrich society as well as the right to express them. Quoting Paul Hunt, Shearer states that "mo difference between men, however real, unpleasant and disturbing, does away with the right to be treated as fully human."8 These rights belong to each person, whether disabled or not, and are not something to be 'earned' by competence.

It is particularly troubling that Article 38(l)(c) refers to the necessity for the doctor in charge of the medical examination, most often a general practitioner rather than a

6 Bruce Uditsky, "Canada's Disability Gatekeepers: Applying a Questionable Ethic," In Touch, Vol. 4, Issue 3 (May 2001) 2. 7 Shearer 193. 8 Shearer 192. 355

specialist, to state whether the individual with a disease or disability (and the field covered here is quite vast, from blindness to AIDS to Multiple Sclerosis to Down's syndrome and so on) might constitute an 'excessive burden' on health or social services.

In this context, the term 'excessive' refers to costs which would likely exceed the average

Canadian per capita costs over five years (but in some cases the limit can be extended to ten years) as established by Statistics Canada. The reference to 'average Canadian' looks arbitrary at best as it does not take into account differences with respect to age, gender, lifestyle, and mental or physical disabilities. Moreover, a medical examination does not seem to be an optimum tool when applied to disabled persons, since disability is not the same as sickness (though they are often overlapping conditions) and most of the times cannot be cured. Therefore, it would be more appropriate to move away from the medical perspective towards one centered around the notion of re-adaptation which would focus on possible ways to decrease the effects of barriers and their implications on impairment.

A person with a disability, though possibly having obvious limitations, has also the potential to develop and integrate into society, a potential which relies on factors well beyond economic ones. Disability should not be assumed as synonymous with handicap, since handicap is just a barrier created by society itself. In an adequate environment, the disabled person is perfectly able to contribute and enrich society under the human, social and economic profile. Whereas in the past the two terms were often used interchangeably, since 1980 the World Health Organization has adopted a more precise classification of impairments, disabilities and handicaps. The new terminology tries to take into account the fact that while disability refers to functional limitation of the 356

individual, the term handicap indicates the loss or limitation of opportunities to take part in the life of the community on an equal level with others, loss and limitation which are the result of the encounter between the individual and his/her surrounding environment.

The focus is therefore not so much on the person's limitations but on the shortcomings of the environment, with all the barriers that are created at the physical, emotional and social levels.9

Relying on a completely opposite approach, article 38(l)(c) defines people with disabilities as medically inadmissible to Canada, thus unequivocally equating illness and disability while also implying that disabled persons are not able to integrate, and relegating them to a position of disadvantage with respect to other immigrants. Since the early 1980s, different groups and organizations such as VAssociation multi-ethnique pour

I 'integration des personnes handicappee du Quebec, a non-profit organization created in

1980 to support immigrants with disabilities and their families, have been asking the federal government to review Canadian immigration law to be consistent with the spirit of the Charter of Rights and Freedoms and with international human rights instruments to which Canada is signatory.10 However, not much has been accomplished as illustrated by the case, in 2002, of Angela Chesters who, being a native of Germany married to a

Canadian citizen, was refused permanent residency status exclusively because she had multiple sclerosis and was therefore judged to constitute an excessive economic burden on Canadian health and social services.

9 United Nations. Enable. "Standard Rules on the Equalization of Opportunities for Persons with Disabilities," http://www.un.0rg/esa/s0cdev/enable/dissreQl.htm#Backgr0und 10 Luna Bengio, L 'Article 19(1)A de la Loi Canadienne de I'Immigration (Quebec: Association multi- ethnique pour l'integration des personnes handicapees du Quebec, 1990) 11. 357

The Immigration and Refugee Protection Act passed in 2001 has eliminated the admission bar for excessive medical demands for sponsored spouses, common-law partners and dependent children (as an aside, it might be worth reminding readers that, in order to be accepted as sponsor, an individual must either be a Canadian citizen or permanent resident). However, independent immigrants and others in the family class can still be denied access on the grounds their condition would place excessive demands on the system. Therefore, this partial 'concession' does not satisfactorily address the problem of how the Canadian state relates to issues of immigration and disability.

Additional research is still needed in order to pressure for a more adequate response to such vital questions, especially within a country that has based its image both internally and to the outside world as being committed to equality, protection of minorities and openness to diversity. It is particularly significant the way the state keeps rejecting accusations of unconstitutionality when reminded that the medical inadmissibility provision is in direct violation of the Canadian Charter of Rights and Freedoms. The attitude shown by the state seems to indicate that there are exceptional circumstances that allow the state to ignore its own laws and principles (such as the commitment to the protection of minority groups) in the name of a higher good, in this case the maintenance of an economically profitable and healthy national body. As discussed by Giorgio

Agamben in State of Exception, the state increasingly appeals to the necessity for spaces of exception removed from judicial oversight as a technique of government.11 In so doing, it creates spaces where the "normative aspect of law can thus be obliterated and

11 Agamben (2005) 2-4. 358

contradicted with impunity by a governmental violence that. . . nevertheless still claims to be applying the law." 12

The previous chapters have examined from a historical perspective how the issue of

immigrant applicants with a disease or disability has been approached in Parliament, in

the coverage provided by two exponents of the press and in the courts. The analysis of

public discourse at the centre of each chapter, has been meant to illustrate that language

can reveal plenty about the way selected collectivities have framed certain cognitive

categories, in this case people with disabilities and immigrants, and acted to translate

such cultural assumptions into polity. Within this context, if we recognize that insofar as

they have agency they also have a degree of intentionality, it could be inferred that the

different sectors whose public discourse has been analyzed in these pages, were operating

according to a conscious or subconscious collective intent. Indeed, it would not make

sense to talk about the responsibilities shared by parliamentarians, the press and the

courts in the devaluation and exclusion of immigrant applicants with diseases or

disabilities, if we do not recognize any intentionality in the discourse entertained by these

subjects. One of the goals of this study has therefore been to go beyond a mere

illustration of public discourse and reach instead an understanding of what was conveyed

through the spoken and written words chosen by the three selected groups in their

discussions around the topic of investigation.

The chapter "Parliament's discussions around medically inadmissible immigrants"

focused on the interventions and actions of Members of Parliament who passed and

12 Agamben (2005) 87. 359

maintained the medical inadmissibility provision contained in the immigration policy of the country. This was accomplished through the analysis of debates and discussions held in the House of Commons and Senate throughout the entire period investigated. It is worth noticing that on the issue of medical inadmissibility, all parties have historically remained steadfast in their support to the provision, with only a handful of members openly criticizing its value. Indeed, while the country's immigration policy has traditionally been a subject that has found parliamentarians divided along clear party lines, the specific policy and regulations referring to the entrance of medically inadmissible persons seem to represent the only exception where antagonism has been replaced by general agreement. Overall, politicians' interventions have pointed to two main concerns underlining the admission process: whether the potential immigrant was going to become a productive (economically speaking) member of society and whether he or she was expected to constitute an economic burden for Canada. It therefore appears evident that parliamentarians have traditionally adopted a utilitarian approach to immigration, thus letting in only those who have been assessed as representing 'profitable investments'. From this perspective, it is fair to argue that Canadian immigration policy has had since its inception a clear manpower orientation that has not been significantly altered in the course of the last century. Although the immigration doors have been opened and closed alternatively in accordance with economic fluctuations, the basic assumption that immigrants should serve the interests of the country has never been questioned. This validates the argument that the state does not act as a benevolent entity 360

or, in Adelman's terms, as a charitable institution13, but operates exclusively in its own interests. In selecting immigrants, the state is not concerned with presenting itself as moral or virtuous, rather aims at defining its national body according to considerations of usefulness, therefore guaranteeing its self-preservation.

Despite this continuity of approach, a change took place among politicians starting from the mid-1950s in concomitance with and in reason of the moderate advancements made in the legislation as a result of pressures exercised by better-organized advocacy groups. As pointed out, the 1950s witnessed the discussion and passage of several pieces of legislation advancing the status and recognition of disabled Canadians. These improvements did not automatically translate in gains for disabled immigrant applicants as the medical inadmissibility provision continued to stand. Nevertheless, they reflected a new perception of what disability was and how the country should relate to disabled persons. It is highly indicative that in this period the number of parliamentary interventions on the subject of immigrant applicants with a disability drastically dropped and most of the following modifications to the legislation were primarily implemented in the form of regulations put in place by the government or senior officers working in the department responsible for immigration. Even when decisions were made in Parliament, the language was intentionally left so vague that the provisions would have been next to meaningless if not accompanied by regulations prepared elsewhere by bureaucrats. The issue of dealing with immigrants with a disease or disability was becoming contested in light of the new emphasis given to the rights of minority groups within Canadian borders.

13 Adelman 9. 361

Politicians' reluctance to talk about the subject resulted in its avoidance during parliamentary debates. It was indeed preferable to stay away from discussion on how to keep out people whose only fault was in having a disability while at the same time declaring that Canadian society was ready to integrate and benefit from the participation of its disabled population. Certainly, it would have been quite problematic to openly argue for the exclusion of 'foreigners' with a disease or disability while carrying forward new legislation meant to improve the situation of Canadians with similar conditions.

The re-emergence of a lively discussion was brought by the passage of the Charter of

Rights and Freedoms in 1982 (although section 15 went into effect only three years later).

In conjunction with the tireless efforts of several disability activists up to as well as after

1982, the Charter has contributed to symbolize "the shift from disability as a charity concept to legitimizing disability as a status entitled to rights."14 The equality clause in the Charter (s. 15) has provided minority groups, whether their members are Canadians or not, with an extremely effective tool for having their rights recognized. For the first time, Ottawa could be brought to court to defend its legislation and the way it was being applied. This has undoubtedly represented a wake-up call for politicians and has forced them to revisit and change existing laws to bring them into accordance with the Charter.

Faced with the concrete possibility of a law being deemed unconstitutional, Members of

Parliament have been forced to re-appropriate a role too often delegated (largely for reasons of convenience) to the bureaucracy. Although aware that the latter have exercised a strong influence on the way immigration policies were formulated and implemented,

14 Peters 134. 362

this study has not discussed their role under the belief that the ultimate responsibility in passing legislation rests with elected politicians; for instance, the courts, when refusing to intervene, always refer to Parliament as interlocutor and the body responsible for the legislation on matters of immigration. Therefore, it is not surprising that following the passage of the Charter, the number of parliamentary interventions where the inadmissibility of certain categories of immigrants was contested on the grounds that it violated art. 15(1) of the Charter increased dramatically. Unfortunately, while the discussion has been revived, significant changes have thus far not been implemented. The government (both Liberal and Conservative) has fought hard, mainly through issuance of ministerial permits, to prevent people's recourse in the courts to assess the constitutionality of the medical inadmissibility provision. As long as the legislation is not questioned in court, it is relatively easy to divert the attention of the public to 'more pressing' matters, thus allowing the status quo to be tacitly maintained.

Another issue emerging from the debates centres on the role of the state within

Canadian society. Aside from some individual interventions, it becomes apparent that parliamentarians acted to protect what they believed were the interests of the country.

This means that they were, most of the times, neither heroes nor villains but merely people with a specific mandate that required them to ignore moral considerations in order to prevent the country from crumbling under external pressures. It appears to have been their belief that the state was not supposed to be 'ethical' in its acting. The question is therefore whether we can really expect politicians to conform to any ethical standard in their daily operations, and if not, whether no ethics at all is really possible or it simply 363

results in a different kind of ethics, one based on inaction and the maintenance of the

status quo. I have no straightforward answers; the creation of an 'ethical' state through the actions and discourses of its political exponents would be highly problematic: whose ethics are being brought forward? Who decides which measures are ethical and which

ones are not? Ethical and moral criteria are culture specific and vary across different

groups. They imply a value-judgment and therefore discrimination between 'right' and

'wrong', between what/who is acceptable and what/who must be rejected. At the same

time, political figures acting exclusively under the premises of preservation and self-

interest run the serious risk of overlooking the value of human life, thus ignoring that

each and every individual has a right to be treated with respect and dignity. As argued in

a previous paper, the issue could be resolved by adopting the concept of human rights as

a frame of reference that goes far beyond the impasse implicit in the dualism ethics/no-

ethics and "creates a bond among human beings" that "is shared by all cultures."15 The

recourse to human rights brings to the forefront the idea of "unassimilated otherness,"16

of diversity without rejection, of inclusivity rather than discrimination. Valorization and

integration of human life in all its forms is indeed something that goes far beyond ethics,

bringing us back to "the universality of some basic premises . . . which constitute a

constant link among people."17 This should be in the interest of every individual as much

if not more than any material and economic considerations. Whereas the concept of

'human rights' might appear, and indeed is, less legally binding than the concept of

15 Valentina Capurri, "Women as individuals and members of minority groups: how to reconcile human rights and the values of cultural pluralism," GeoJournal 65, 2006: 335. 16 Young 227. 17 Capurri 335. 364

'citizenship', a society that ignores our common humanity and our responsibilities towards each other is meant to become a desolate and impoverished place. In the long run, there is no benefit in controlling and preserving such a society.

Moving from the realm of federal politicians to the editorial room, the two following chapters have investigated the public discourse generated by some exponents of the press with respect to the question of immigration of people with a disease, disorder or disability. The analysis has been done through recourse to several articles, editorials and letters that appeared through time in two major newspapers, the Toronto Star and The

Globe and Mail. The findings in these two sections point to the fact that both papers have usually been quite sympathetic to government actions preventing entrance to those deemed a risk to the financial well-being of the country. The whole picture emerging from the investigation of material published in the two papers is one of uneasiness at best with respect to 'foreigners' likely to become a burden for the taxpayer. However, this approach tended to change completely in instances when the discourse switched from general considerations to single cases. Every time the papers reported specific situations where individuals were rejected at the border or deported from the country, their readership and editorialists seem to have overwhelmingly sided with the 'unfortunate' victim against a 'heartless' law and equally heartless politicians. It appears that showing compassion for an exceptional case was well within the limits of what was perceived as acceptable. As previously argued, the different reaction can be explained by the fact that generosity towards a particular individual looks good while at the same time it does not force reconsideration of the overall status quo. From this perspective, the exception is 365

indeed validating the norm. On the other hand, it is interesting that 'family unity' also provoked sympathy as it looked unfair when whole families were separated because one member was rejected on the grounds of being medically inadmissible to Canada. This is in tune with Canada's long-time commitment to facilitate family reunification as one of the objectives of its immigration policy.

Despite the persistent trend of overall support to the government shown by both papers, one main exemption and two subsequent changes need to be mentioned. The exemption to the widespread endorsement of the medical inadmissibility provision in the immigration policy was actually present over the entire period investigated. It consisted in the fact that a number of readers and members of the press appeared willing to keep

'foreigners' with a disease or disability out of their country, though they did not like to

see their co-nationals occasionally receive the same treatment when trying to enter

another state. This was the case in particular with those Canadians who were refused

access to the United States having being found medically inadmissible. The same attitude

adopted with 'others' apparently did not fit well when applied to 'their own'. We like to point out at every occasion that people have a right to equal treatment, but it still looks as

if at the end of the day, some of us, namely those who 'belong', deserve more

consideration than others.

The two changes aforementioned occurred instead in the years following World War

Two and after the passage of the Charter of Rights and Freedoms in 1982. It is interesting

to note that, as mentioned above, both changes found an echo in Parliament where the 366

debate was affected by changing attitudes within society at large, particularly as a result of the indefatigable work of several disability organizations and activists. Soon after the war, although the policies of the country in the matter of the medical inadmissibility of certain immigrants did not undergo any significant change, Canadian society became more receptive to issues of respect for and integration of people with disabilities, partly because so many of its own citizens had come back from the frontlines as permanently or temporarily disabled. On the other hand, Canada had joined the United Nations and had begun to acquire the reputation of being an accepting and compassionate country on the international stage. Whether or not that corresponded to the truth, Canadians were proud of that image and determined to translate it into reality, at least as much as required to give the impression it was true. Accordingly, people were inclined to show greater flexibility with the rules governing admissibility of immigrants with illnesses or disabilities.

For what concerns the period following the passage of the Charter and its implementation, it is evident that the document greatly impacted the way Canadian society approached issues of equality and recognition of rights for minority groups. The importance the Charter has acquired in the last two decades for Canadians as a symbol of their identity cannot be underestimated. In a relatively short period of time, the Charter became the concretization of what Canadians stood for, namely freedoms and rights.

Regardless of the fact that some sectors of society remained supportive of the medical inadmissibility provision in the Immigration Act, the Charter gave legitimacy to the claims of several groups and organizations working to advance minority rights, therefore 367

strengthening their determination and making them more vocal. In the long run, this has impacted the way some of the press has related to and perceived the treatment received by, among others, the specific group of immigrant applicants that is the focus of this study. Whereas I am not convinced that Canadian society has yet reached the maturity to open up to those it persists in considering 'not normal', I believe the Charter has at least raised a series of questions among the public on issues that were before simply and quite comfortably forgotten or ignored. Although much work is still ahead, this is undoubtedly a very promising step forward.

Finally, the chapter "The medical inadmissibility provision in the Federal and

Supreme Courts of Canada" concentrated on the examination of several court cases revolving around the medical inadmissibility provision within Canadian immigration policy. The chapter clearly illustrates that there has been no ideological shift in the state's approach to the issue, despite changes in the language registered in both politicians' and newspapers' discourses. The timeframe covered in this section is restricted to the period after the passage of the Charter since the latter has provided an incentive for claimants to contest in the legal arena the provision in question. However, it is worth noticing that only one out of the seventeen litigations considered by the author made direct reference to the Charter. In all the remaining lawsuits, claimants contested the way the article had been applied to their specific circumstances rather than directly question its content. As already noted, this appears to be related to the fact that the defendant, the Department of

Citizenship and Immigration, constantly argued that the medical inadmissibility clause was not centered on the notion of disease or disability and therefore was not 368

discriminatory or unconstitutional. According to the defendant, the focus of the clause was the concept of excessive demands potential immigrants were likely to represent and this had nothing to do with discrimination on the grounds of disability. The immediate consequence was that a majority of the claimants opted to leave aside the issue of unconstitutionality in the attempt of avoiding a process that was going to be financially expensive, time consuming and likely unsuccessful in light of the renowned conservatism of the courts.

The only exception among the seventeen court cases considered is represented by the legal action undertaken in the late 1990s by Angela Chesters, a German citizen who challenged the medical inadmissibility provision as unconstitutional for discriminating against persons with disabilities and therefore violating art. 15 of the Canadian Charter of

Rights and Freedoms. Despite its failure, Mrs. Chesters' attempt represents a very important moment in the journey towards a more consistent approach to equality in the

Canadian justice system and society. While the court refused to recognize that there are still laws that are in violation of the Canadian constitution, Chesters' case contributed to ignite the debate within the public and this was undoubtedly a success for all people with disabilities, whether Canadians or not. Although the courts have not always held a progressive interpretation of the Charter, the mere possibility of recurring to the legal sphere has given a voice and empowered minority groups, the disabled community being one among several beneficiaries. 369

In conclusion, this study has contributed to a better understanding of the underlying assumptions present in some of the public discourses circulating in society around

Canadian immigration policy from the beginning of the twentieth to the early twenty-first

century. In particular, it has shown the place immigrants have been given through time in the life of the country and how this has affected their assessment and reception. It has

also shown that Parliament, the press and the court system are not three separate domains,

each one of them proceeding with its own rules and at its own time. They are instead

inherently connected as every step taken in one setting is inevitably reflected in the

others. Above all, the previous chapters have illustrated that the state tends to maintain

the status quo whenever possible and that it takes action only when influenced by the

changing attitudes of politicians, the press and the court system which are in turn

pressured by civil society and activist groups within it. All of the changes (as small as

they might have been) the medical inadmissibility provision went through in the hundred

years considered, have ultimately been made possible through the pressures exercised by

certain sectors of civil society and their dissatisfaction with the existing situation. In lieu

of what is exposed in the previous chapters, it is indeed not reasonable to assume that

certain discussions on the inappropriateness of the language used in the legislation as

well as of several particular provisions (such as the sponsorship of disabled spouses and

dependants) would have reached the floor of Parliament if not because politicians

realized these issues were acquiring some resonance with their constituents. This

realization came through a number of different channels, among them petitions,

individual letters and what was increasingly being reported in the press. Also decisive in 370

affecting politicians' responses and stir up, in turn, state reaction - note that the two are not one and the same and yet are intrinsically linked - were several court proceedings happening in those years: whereas none of them actually resulted in the courts denouncing the law as unconstitutional, still the fact that the legal avenue was pursued more and more by those who had been rejected from immigrating to Canada, compelled the state to concede something in order to avoid the cost involved in a trial and, even more, avoid the risk of having the courts take a bold step and point to the need for overhauling the legislation. The coming into the game of the legal system was of course the consequence of an act of Parliament, namely the passage of the Charter of Rights and

Freedoms in 1982 and the inclusion of persons with disabilities among the equity groups protected by its equality clause; inclusion that was made possible, in turn, by pressures exercised by activist groups such as the Coalition of Provincial Organizations of the

Handicapped (COPOH), the Canadian Association for the Mentally Retarded (CAMR) and the Canadian National Institute for the Blind (CNIB). In all this, it is therefore important to consider the pivotal role played by a number of these advocacy organizations involved in the disabled community. Their contribution was significant in at least three different directions: education of the general society on issues of disability and equal opportunities, pressuring of politicians through written submissions and direct interventions in various parliamentary committees, and support given to those who chose to legally dispute government decisions, either financially or through their role as intervener in court cases. 371

Within the broader discourse of immigration, this study has focused on a particular group of immigrants, those with a disease, disorder or disability. The findings of the analysis have pointed out that whether we look at the political, societal or legal discourse,

Canada has been and is still partly uneasy with the overall idea of having certain individuals within its boundaries. At the same time, the final picture is not so bleak and there are several reasons for an optimistic outlook. Among them, the Charter has provided and will certainly provide in the future a number of opportunities, both within and, more importantly, outside the legal system, for challenging the current legislation, thus creating a more equitable and respectful society. Different organizations and advocacy groups have and will slowly but steadily continue to impact on the way the country as a whole perceives people with diseases or disabilities. As pointed out by

Wood and Isin in Citizenship and Identity, identity is never stable or fixed, it is "a process

1 8 of becoming rather than being." I am confident Canadian identity will find its way of becoming more inclusive and open to dialogue with 'others'.

On the other hand, this study does not represent a conclusion but it is rather the starting point towards a broader and more comprehensive investigation that I hope to continue in the following years. Several questions still remain unanswered and require to be further explored. Among others, it would be interesting and worthwhile to examine the reasons behind the traditionally scarce involvement of various immigrant organizations in contesting the medical inadmissibility provision. The current study has shown that to these days, the main actors in advancing a less discriminatory approach to issues of

18 Engin Isin and Patricia Wood, Citizenship and Identity (London: Sage Publications, 1999) 22. 372

immigration with respect to individuals with disabilities have been Canadian associations and organizations dedicated to improving the condition of disabled people. They have been recently pressuring Parliament and the courts while also carrying forward a work of advocacy and education within the larger society. This process has however been a difficult one as the state has historically been quite persistent in trying to exploit the tensions existing among Canadian and non-Canadian persons with disabilities. In particular, it has endeavored to create a divide between the two groups by arguing that acceptance of immigrants with a disease or disability would inevitably result in economic expenses, thus reducing the already limited amount of money made available for

Canadians with similar conditions. This was made especially clear in the defendant's argument in Chesters v. Canada, when it was maintained that the rejection of Angela

Chesters had nothing to do with disability but was instead motivated by economic reasons in the attempt to protect Canadian health and social services against excessive demand so that those services could be made available to Canadians in need. Whereas some individuals, as revealed by several letters sent to newspapers, seem to have fallen victims of such rhetoric, several disability organizations have escaped the flawed logic of these arguments. They have in fact pointed out that rejection of foreigners with a disease or disability is not merely an economic decision since it impacts Canadians as well by sending a message implicitly underlining who is valued and who is considered as a burden within Canada. Immigrants' organizations in contrast have on the whole been close to absent from the debate. Although this could have been a result of the difficulties in creating a common front among groups that are ethnically, linguistically and culturally 373

diverse, it would be helpful to conduct a more in-depth study on the matter, hopefully also involving and seeking feedback directly from the subjects of the investigation.

It would also be interesting to explore in more details the intersection emerging in the process of immigrant selection among issues of race, ethnicity, class and gender, and how they combine to affect the way immigrants with disabilities are excluded or allowed into the country. The chapter on court cases has, for instance, revealed that access to the legal system is still restricted to those who are able to pay for it. Equally important, since the

Supreme Court decision in Hilewitz v. Canada and De Jong v. Canada, financial ability to pay for social services has become one of the main criteria to consider when assessing whether medical inadmissible immigrants should be allowed into Canada. On the topic of race and ethnicity, the chapter dealing with public discourse in the press has shown that

several readers as well as journalists had a very different reaction depending on whether the person rejected was a white, middle class, educated immigrant like Angela Chesters

or someone coming from 'the outside' such as Mrs. Kumar, an Indian woman who was

deported from Canada in 1980 because diagnosed with mental illness. Further

investigation should also touch on issues of gender: looking at the coverage provided in

the Toronto Star and The Globe and Mail, it becomes apparent that, on the whole and

especially in the years before the 1980s, a larger number of rejected or deported persons

were women. Without an analysis of the actual data for immigrants denied immigration

status throughout the entire period, it is not possible to make credible conclusions. Was

the percentage of women over men really significant? If so, I believe that a gender

analysis would be helpful in better understanding the reasons behind such state of affairs. 374

However, it should also be considered that, especially in earlier years, the number of women applying under the independent immigrant category was lower than today and most of those denied admission were likely applying as sponsored immigrants. It is possible therefore that more women than men were receiving newspaper coverage because these women were members of a family unit and, as we have seen, cases of family separation were more likely to find a sympathetic audience.

Another element requiring further attention is the impact and effect of the current immigration policy on immigrants with a disease or disability who, for different reasons, have been allowed to enter the country. How has their experience as disabled immigrants impacted on their participation in Canadian society? To what degree do they feel or feel not to be 'citizens' in Canada? In a preliminary research project conducted in 1998 by

Judith Sandys, the author pointed out that one of the findings was that several immigrants interviewed reported being reluctant to access the service system in Canada. They repeatedly mentioned that their experience of the immigration process had been highly stressful and left them with a sense of vulnerability, thus discouraging them from seeking access to services.19 It would be interesting to broaden the research in order to understand whether these immigrants have experienced the same difficulties in other fields related to citizenship. How does the perception of being 'undesirable' created through the immigration process affect the way these individuals act as citizens of the country? Does it discourage them to reclaim their citizenship and the rights associated with that status?

19 Judith Sandys, "Immigration and Settlemet Issues for Ethno-Racial people with Disabilities," (1998). http://ceris.metropolis.net/virtual%201ibrarv/health/sandvsi 1 .html 375

Then again, what role is still left for the Charter in advancing the rights of immigrants with disabilities in Canadian society? Is the traditionally conservative approach shown by the courts going to change in the foreseeable future? As previously mentioned, the author of this study is convinced that the full potential of the Charter has not yet been explored.

It is only a question of time before the issue will be brought up in court once again.

Whereas in 2002, when dealing with the case of Angela Chesters, the court refused to address any of the criticisms presented by the intervener at the hearing, the Council of

Canadians with Disabilities, it is unlikely this attitude will remain successful in the long run. The judicial system does not exist in a vacuum but is affected and affects the society it is part of. New approaches towards people with disabilities are already impacting the way society relates to this particular group. The justice system will not be able to ignore these changes and ultimately will have to figure out a way to come to terms with them. It remains to be seen when, how and to what degree this will occur.

Furthermore, while it is true that the judicial system cannot be separated from the

society around it, the same holds equally valid for Parliament. Pressures from both the public and the courts will inevitably force politicians to review once again the legislation

in the matter of medical inadmissibility, even though Parliament has usually preferred to

avoid the subject as long as possible, thus unnecessarily procrastinating any change or revision. As seen in the chapter dealing with debates held in both Houses of Parliament, politicians have traditionally been quite receptive to demands coming from the broader

society as they are aware that ignoring such calls could cost precious votes. It is the

author's belief that one of the first aspects of the legislation to be revised will likely focus 376

on the widening of the exemption to the medical inadmissibility provision to members of the family class other than immediate dependants. In 2007, the Federal government announced in its annual report that Ottawa was going to accept 2000 more family members in the year 2008, not only spouses, partners and dependants but also parents and grandparents of immigrants already in the country. As explained by Richard Kurland, a

Vancouver immigration lawyer, in an article published in the Toronto Star, one of the reasons for the opening to members of the family class is essentially political since the move could boost the fortunes of the Conservative party in the multicultural ridings of cities such as Toronto and Vancouver where several immigrant residents have a family member living abroad. Kurland argues that "It's good politics to let Mummy and Daddy

into Canada."20 Considering the latest census figures that point to immigrants as the main

source of population growth all around the country, it is fair to assume this approach will

remain unaltered in the coming years, whatever political party will be at the government.

It is also likely that in time immigrants will start pressuring for a relaxation of the

medical inadmissibility provision since the percentage of those with a disease or

disability among older family members is usually higher than among independent

workers. This opens up a vast new field of investigation for scholars interested in issues

of immigration with respect to persons with disabilities or those affected by diseases

likely to pose 'excessive demands' on Canadian health and social services.

Last but not least, it would be helpful to look at the international stage and compare

how different countries have approached the matter of admission for immigrants with a

20 Toronto Star, 2 November 2007. 377

medical condition or disability. Whereas there have been a number of comparative studies related to the immigration policies carried out by what are traditionally defined as

'countries of immigration' (United States, United Kingdom, Canada and Australia), more effort is required with respect to other areas of the world. In particular, it would be worthwhile to focus on countries that historically have never experienced a steady influx of immigrants but are now starting to feel the pressure. Though not the only one, the example of some of the countries in the European Union (EU) should be an obvious

starting point. Among others, Italy is increasingly experiencing massive immigration of people from Eastern Europe at a time when employment is down and the immigration policy of the country is not adequate to handle the arrivals. As reported on November 5,

2007, by the Toronto Star, "After Romania joined the EU earlier this year, Romanians poured into Italy in search of work as maids, nannies, waiters, janitors and bricklayers,

and they now account for nearly 1 per cent of the population in Italy."21 The headlines on major national newspapers are increasingly looking at issues such as crime and illegal

activities carried out by the 'foreigners'. This is something Canada knows too well from

its own past. However, when the clamor subsides, the attention will inevitably switch to

less sensational matters. Italy has a welfare system like Canada, though it does not have a

medical inadmissibility provision in its immigration policy. What will happen when

Italians start to complain that newcomers are becoming a burden to the taxpayer? How

will this impact the country's immigration policy? Will the experience of Canada and

other countries of immigration provide any guidance? In what direction? What about

20 Toronto Star, 2 November 2007. 378

other countries experiencing a similar situation, either in the EU or elsewhere around the world?

As this conclusion has attempted to show, there are still many unanswered questions on the topic of immigrants with a disease or disability both within and outside Canada.

Scholars have a vast field open in front of them to explore and understand. Their contribution is not insignificant as only through understanding can change be implemented. And, of course, the aspiration of this study has been all along to bring change and improvement to a situation that has historically discriminated and oppressed one of the most vulnerable groups in society. As already pointed out, the present study is nothing more than a first step, but as cliche as it may sound, any first step is necessary in order to begin a journey. I am also aware that these pages in the end may offer more questions than answers, though this was actually the goal right from the outset as our society does not always appreciate the potential of questioning in breaking down walls that seemed too high and solid to ever be overcome. I therefore hope that others will follow suit and keep questioning a system that has been and still is unfair and discriminatory. After all, often finding the correct answer to a question is not as difficult as finding the right question to ask. With any luck, this study has begun asking some of the right questions.

In ending this study, I would like to dedicate my effort to Vivienne Anderson and

Angela Chesters, the only two persons that to my knowledge had the courage of refusing the tempting offer of a ministerial permit because they believed in something higher than 379

1 personal interest. Both Mrs. Anderson and Mrs. Chesters gave up their chances to remain

in Canada because they were aware that their exception would not have altered the status

quo of a law that was blatantly discriminatory. Whether or not they were or will ever be

successful in their attempts, Vivienne Anderson and Angela Chesters deserve our respect

as they have fought not only for immigrants with a disease or disability but for all of us,

for our right to live in a society that is fair and equitable to every human being. 380

Appendix

Changes to the medical admissibility provision in Canadian immigration policy, 1869-2001

The following is a list of the most significant changes to the medical inadmissibility provision contained in Canadian immigration policy which are mentioned in the study for the period of time from 1869 to 2001. Some of these changes were discussed in the previous pages when they were still at the level of bills debated in Parliament. For identification purposes, I have therefore added the bills' names before they were passed into laws. Note also that these laws are now accessible in the Statutes of Canada (S.C.). To make it easier for the reader to distinguish between the main Acts and amendments to the Acts, the former are in bold while the latter are in italics.

The Immigration Act, S.C. 1869, c.10, s.ll(2) and s.12 (One of the main goals of the Act was to prevent disease from entering Canada. Whereas there were still few actual restrictions preventing entrance into the country, diseased or disabled immigrants were to be recorded on a list and required to pay a bond)

11(2). If, on examination, there is found among such Passengers, any Lunatic, Idiotic, Deaf and Dumb, Blind or Infirm Person, not belonging to any Immigrant family, and such person is, in the opinion of the Medical Superintendent, likely to become permanently a public charge, the Medical Superintendent shall forthwith report the same officially to the Collector of Customs at the Port at which the Vessel is to be entered, who shall (except in the cases in which it is hereinafter provided that such bond may be dispensed with) require the Master of the Vessel, in addition to the duty payable for the Passengers generally, to execute, jointly and severally with two sufficient sureties, a Bond to Her Majesty in the sum of three hundred dollars for every such Passenger so specially reported, conditioned to indemnify and save harmless the Government of Canada or of any Province in Canada, or any Municipality, Village, City, Town or County, or Charitable institution within the same, from any expense or charge to be incurred within three years from the execution of the Bond, for the maintenance and support of any such Passenger;

12. The proper Agent for Immigration may, with the consent of the Minister of Agriculture, make arrangements with the Master, Owner or Charterer of the vessel carrying the lunatic, idiotic, deaf and dumb, blind or infirm person with respect to whom a bond has been given, or money paid in lieu thereof, or with the Master, Owner or 381

Charterer of any other vessel, for the reconveyance of such person to the port from which he was carried to Canada.

An Act to amend the Immigration Act, S.C. 1902, c.14, s.l (also referred to in Chapter 2 as Bill 112)

1. The Immigration Act, chapter 65 of the Revised Statutes, is amended by inserting the following section immediately after section24:-

"24A. The Governor General may, by proclamation or order, whichever he considers most expedient, and whenever he deems it necessary, prohibit the landing in Canada of any immigrant or other passenger who is suffering from any loathsome, dangerous or infectious disease or malady, whether such immigrant intends to settle in Canada, or only intends to pass through Canada to settle in some other country.

The Immigration Act, S.C. 1906, c.19, s.26, s.27 and s.28 (also referred to in Chapter 2 as Bill 170) (The Act expanded the list of inadmissible immigrants to include those who had been former inmates of mental hospitals or jails; it also added a clause for deportation of those who had become public charges after their landing)

26. No immigrant shall be permitted to land in Canada, who is feeble-minded, an idiot, or an epileptic, or who is insane, or has had an attack of insanity within five years; nor shall any immigrant be so landed who is deaf and dumb, or dumb, blind or infirm, unless he belongs to a family who accompany him or are already in Canada and who give security, satisfactory to the Minister, and in conformity with the regulations in that behalf, if any, for his permanent support if admitted into Canada.

27. No immigrant shall be permitted to land in Canada who is afflicted with a loathsome disease or with a disease which is contagious or infectious and which may become dangerous to the public health or widely disseminated, whether such immigrant intends to settle in Canada or only to pass through Canada to settle in some other country; but if such disease is one which is curable within a reasonably short time the immigrant suffering therefrom may, subject to the regulations in that behalf, if any, be permitted to remain on board where hospital facilities do not exist on shore, or to leave the vessel for medical treatment, under such regulations as may be made by the Minister.

28. No immigrant shall be permitted to land in Canada who is a pauper, or destitute, a professional beggar, or vagrant, or who is likely to become a public charge; and any 382

person landed in Canada who, within two years thereafter, has become a charge upon the public funds, whether municipal, provincial, or federal, or an inmate of or a charge upon any charitable institution, may be deported and returned to the port or place whence such immigrant came or sailed for Canada.

An Act to amend the Immigration Act, S.C. 1907, c.19, s.2 (also referred to in Chapter 2 as Bill 143)

2. Section 33 of The Immigration Act, chapter 93 of the Revised Statutes, 1906, is repealed and the following is substituted therefor: -

"33. Whenever in Canada an immigrant has, within two years of his landing in Canada, become a public charge, or an inmate of a penitentiary, jail, prison, or hospital or other charitable institution, it shall be the duty of the clerk or secretary of the municipality to forthwith notify the Minister, giving full particulars.

"2. On receipt of such information the Minister may, in his discretion, after investigating the facts, order the deportation of such immigrant at the cost and charges of such immigrant if he is able to pay, and if not then at the cost of the municipality wherein he has last been regularly resident, if so ordered by the Minister, and if he is a vagrant or tramp, or there is no such municipality, then at the cost of the Department of the Interior.

The Immigration Act, S.C. 1910, c.27, s.3(a),(b),(c) (also referred to in Chapter 2 as Bill 102) (A measure was also added requiring all immigrants to prove they were not destitute by showing they possessed at least $25 upon landing)

3. No immigrant, passenger, or other person, unless he is a Canadian citizen, or has Canadian domicile, shall be permitted to land in Canada, or in case of having landed in or entered Canada shall be permitted to remain therein, who belongs to any of the following classes, hereinafter called "prohibited classes", -

a) idiots, imbeciles, feeble-minded persons, epileptics, insane persons, and persons who have been insane within five years previous;

b) persons afflicted with any loathsome disease, or with a disease which is contagious or infectious, or which may become dangerous to the public health, whether such persons intend to settle in Canada or only to pass through Canada in transit to some other country: Provided that if such disease is one which is curable within a reasonably short time, such 383

persons may, subject to the regulations in that behalf, if any, be permitted to remain on board ship if hospital facilities do not exist on shore, or to leave ship for medical treatment;

c) immigrants who are dumb, blind, or otherwise physically defective, unless in the opinion of a Board of Inquiry or officer acting as such they have sufficient money, or have such profession, occupation, trade, employment or other legitimate mode of earning a living that they are not liable to become a public charge or unless they belong to a family accompanying them or already in Canada and which gives security satisfactory to the Minister against such immigrants becoming a public charge.

An Act to amend the Immigration Act, S.C. 1919, c.25, s.3(l), (2), (3) and (6)0, (k), (I), and (m) (also referred to in Chapter 2 as Bill 52)

3. (1) Subsection one of section three of the said Act is amended by inserting the word "enter or" between the words "to" and "land" in the third line thereof.

(2) Paragraph (a) of section three is hereby amended by striking out the words "within five years previous" in the second and third lines of said paragraph and inserting in lieu thereof the words "at any time previously."

(3) Paragraph (b) of section three is hereby amended by inserting the following words between the word "afflicted" and the word "with" in the first line thereof:- "with tuberculosis in any form or."

(6) Section three of the said Act is further amended by adding the following paragraphs thereto:-

"(j) Persons who in the opinion of the Board of Inquiry or the officer in charge at any port of entry are likely to become a public charge;

"(k) Persons of constitutional psychopathic inferiority;

"(1) Persons with chronic alcoholism;

"(m) Persons not included within any of the foregoing prohibited classes, who upon examination by a medical officer are certified as being mentally or physically defective to such a degree as to affect their ability to earn a living. 384

The Immigration Act, S.C. 1927, c.93, s.3 (a), (b), (c), (j), (k), (1) and (m)

3. No immigrant, passenger, or other person, unless he is a Canadian citizen, or has Canadian domicile, shall be permitted to enter or land in Canada, or in case of having landed in or entered Canada shall be permitted to remain therein, who belongs to any of the following classes, hereinafter called "prohibited classes": -

(a) Idiots, imbeciles, feeble-minded persons, epileptics, insane persons, and persons who have been insane at any time previously;

(b) Persons afflicted with tuberculosis in any form or with any loathsome disease, or with a disease which is contagious or infectious, or which may become dangerous to the public health, whether such persons intend to settle in Canada or only to pass through Canada in transit to some other country: Provided that if such disease is one which is curable within a reasonably short time, such persons may, subject to regulations in that behalf, if any, be permitted to remain on board ship if hospital facilities do not exist on shore, or to leave the ship for medical treatment;

(c) Immigrants who are dumb, blind, or otherwise physically defective, unless in the opinion of a Board of Inquiry or officer acting as such they have sufficient money, or have such profession, occupation, trade, employment or other legitimate mode of earning a living that they are not liable to become a public charge or unless they have a family accompanying them or already in Canada and which gives security satisfactory to the Minister against such immigrants becoming a public charge;

(j) Persons who in the opinion of the Board of Inquiry or the officer in charge at any port of entry are likely to become a public charge;

(k) Persons of constitutional psychopathic inferiority;

(1) Persons with chronic alcoholism;

(m) Persons not included within any of the foregoing prohibited classes, who upon examination by a medical officer are certified as being mentally or physically defective to such a degree as to affect their ability to earn a living.

The Immigration Act, S.C. 1952, c.42, s.5 (a), (b) and (c) (The Act made a clear distinction between preferred classes - British, French and Americans - and undesirable classes - diseased or disabled subjects, independent Asian applicants, homosexuals and prostitutes. Although refraining from explicitly discriminating against specific 385

nationalities, the Act allowed the cabinet or Special Investigating Officers to refuse entrance to those considered unsuitable to Canadian climate and culture)

5. No person, other than a person referred to in subsection two of section seven, shall be admitted to Canada if he is a member of any of the following classes of persons:

(a) persons who

(i) are idiots, imbeciles or morons,

(ii) are insane or, if immigrants, have been insane at any time,

(iii) have constitutional psychopathic personalities, or

(iv) if immigrants, are afflicted with epilepsy;

(b) persons afflicted with tuberculosis in any form, trachoma or any contagious or infectious disease or with any disease that may become dangerous to the public health, but, if such disease is one that is curable within a reasonably short time, the afflicted persons may be allowed, subject to any regulations that may be made in that behalf, to come into Canada for treatment;

(c) immigrants who are dumb, blind or otherwise physically defective, unless

(i) they have sufficient means of support or such profession, trade, occupation, employment or other legitimate mode of earning a living that they are not likely to become public charges, or

(ii) they are members of a family accompanying them or already in Canada and the family gives satisfactory security against such immigrants becoming public charges.

An Act to amend the Immigration Act, S.C. 1967-1968, c.37, s.l (also referred to in Chapter 2 as Bill C-J0)(The Point System was introduced)

1. Subparagraph (ii) of paragraph (a) of section 5 of the Immigration Act is repealed and the following substituted thereof:

"(ii) are insane or, if immigrants, have been insane at any time, except an immigrant whose admission to Canada is authorized by the Governor in Council upon evidence satisfactory to him, which shall include the evidence of a qualified medical practitioner, that 386

(A) For at least seven years immediately preceding the date of his application for admission, he has neither been a patient in any hospital for the treatment of his insanity nor suffered any significant recurrence of the symptoms therefof, and

(B) The symptoms of his insanity are unlikely to recur,"

The Immigration Act, S.C. 1976-1977, c.52, s.19 (l)(a) (also referred to in Chapter 2 as Bill C-24) (While getting rid of formal racial discrimination, the Act continued to exclude people who were perceived as likely to become a burden on health or social services. The emphasis was on economics as proven by the introduction, in the 1980s, of the Business class which consisted of immigrants who were bringing into the country their entrepreneurial talent or investor funds)

19. (1) No person shall be granted admission if he 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,

(i) they are or are likely to be a danger to public health or to public safety, or

(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services.

An Act to amend the Immigration Act and other Act in consequence thereof, S.C. 1992, c.49, s.ll (l)(a) (also referred to in Chapter 2 as Bill C-86)

11.(1) Paragraph 19(l)(a) to (c) of the said Act are repealed and the following substituted therefor:

(a) persons who, in the opinion of a medical officer concurred in by at least one other medical officer, are persons

(i) who, for medical reasons, are or are likely to be a danger to public health or to public safety, or 387

(ii) whose admission would cause or might reasonably be expected to cause excessive demands, within the meaning assigned to that expression by the regulations, on health or prescribed social services;

The Immigration and Refugee Protection Act, S.C. 2001, c.27, s.38 (1) and (2) (The Act was meant to prevent criminal elements from entering the country, tighten the requirements needed to be accepted as a refugee, broaden skill and training requirements, and recognize to same-sex or common-law relationships the same rights of married couples for immigration purposes. Still, no significant change appears in the way applicants with diseases or disabilities were considered)

38. (1) A foreign national is inadmissible on health grounds if their health condition

(a) is likely to be a danger to public health;

(b) is likely to be a danger to public safety; or

(c) might reasonably be expected to cause excessive demand on health or social services.

2. Paragraph (l)(c) does not apply in the case of a foreign national who

(a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;

(b) has applied for permanent residence visa as a Convention refugee or a person in similar circumstances;

(c) is a protected person; or

(d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c). 388

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