Chesters v. Canada (Minister of Citizenship and Immigration)

Chesters v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2002-06-27
Neutral citation
2002 FCT 727
File numbers
IMM-1316-97
Notes
Reported Decision
Decision Content
Federal Court Reports Chesters v. Canada (Minister of Citizenship and Immigration) (T.D.) [2003] 1 F.C. 361
Date: 20020627
Docket: IMM-1316-97
Neutral citation: 2002 FCT 727
BETWEEN:
ANGELA CHESTERS
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
- and -
COUNCIL OF CANADIANS WITH DISABILITIES
Interveners
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
[1] Mrs. Angela Chesters (the "Plaintiff") seeks a declaration that the medical inadmissibility provision of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act") in section 19(1)(a)(ii), is discriminatory and unconstitutional because it offends the constitutional guarantees of security of the person and equality provided in the Charter of Rights and Freedoms (the "Charter"), sections 7 and 15.
FACTS
[2] The Plaintiff is a German citizen. She was raised and educated in Germany and obtained a first level teaching certificate in 1980. This authorized her to teach foreign languages and in 1981 she obtained a term position teaching foreign languages in northern Ireland.
[3] She subsequently pursued graduate studies in history at the University of New Mexico in Los Alamos. She obtained a masters degree from that university in 1989. She commenced research with a view to pursuing a doctoral degree in history but encountered difficulties in locating a supervisor. In 1987, the Plaintiff returned to Germany and took up employment in Frankfurt. At that time, she met Mr. Robin Chesters and a romantic relationship developed between them. In January 1991, the Plaintiff moved to England where Mr. Chesters was then employed.
[4] While living in England, the Plaintiff decided to embark upon a further course of studies and she enrolled at the University of Kingston in Surrey, England to obtain a degree in information technology. By this time, the Plaintiff was having difficulty in walking that followed problems she had experienced in 1985. She underwent medical investigations in August 1991 at Maida Vale Hospital, London. Those investigations included physical examinations and a magnetic resonance imaging test (MRI). On September 23, 1991, the Plaintiff was advised by her doctor that she had multiple sclerosis.
[5] This diagnosis came as a major shock to the Plaintiff. She described her reaction as one of numbness. However, she was not deterred from continuing with her intended studies and began her program at the University of Kingston in September 1991, as planned. The diagnosis of multiple sclerosis did not prevent the Plaintiff from pursuing these further studies nor interfere with her plans to marry, and on December 20, 1991, the Plaintiff married Mr. Robin Chesters.
[6] Prior to their marriage they had discussed plans for children in the future. Although Mr. Chesters was not as keen as his wife, the Plaintiff testified that, following discussions between them, he agreed that they would have at least one child. This agreement was reached after the diagnosis of multiple sclerosis and prior to their marriage.
[7] After her diagnosis the Plaintiff was not prescribed any particular form of treatment, other than drugs relative to continuing urinary incontinence. She began a course of medical consultations at six monthly intervals, and this pattern continued until 1994, when she left England. With the exception of a medical examination including an MRI which the Plaintiff required for her subsequent employment in Germany, her medical treatment since 1991 consisted of consultations and reviews, and continuing treatment, including prescription medications, for incontinence.
[8] The Plaintiff completed her course of studies and obtained a Masters in Science and Information Technology by October 1992. The course program had required a work component which she completed at Hammersmith Hospital. The Plaintiff used a wheelchair between April and June 1992, but otherwise was able to walk and to use buses and cabs for transportation.
[9] Following completion of the degree at the University of Kingston, including the related work at Hammersmith Hospital, the Plaintiff obtained a contract job with the British Broadcasting Corporation ("BBC"). At this time, the Plaintiff and her husband were living in Hampton Wick, about 11 miles west of London, and she commuted daily to London. She worked full time and her average work week, including commuting time, was seventy hours a week. The Plaintiff testified that she also worked, from home, on the weekends. Her contract with the BBC ended in April 1993.
[10] By late 1992, early 1993, the Plaintiff had progressed to using a manual wheelchair which she propelled with her arms. By the end of 1993, the Plaintiff was using a wheelchair all the time. In 1994, she got an electric wheelchair and by the beginning of 1995, she was using it on a full-time basis.
[11] In May 1993, the Plaintiff travelled to Toronto, Ontario, with her husband. Mr. Chesters was attending a conference. This was the Plaintiff's first visit to Canada and she accompanied her husband with a view to relocating to Canada, to establish themselves and a family. Mr. Chesters, a native of South Africa, had immigrated to Canada in 1971 and subsequently became a Canadian citizen. He considered Canada his adopted home.
[12] In 1994, Mr. Chesters was working in England for General Electric. He sought a transfer to Canada and in May 1994 an opportunity presented for his return to Canada to work on a special project. The Plaintiff and her husband discussed the opportunity and decided to move back to Canada. It then became necessary for the Plaintiff to seek status in Canada and on June 16, 1994, she submitted her application for permanent residence, as a member of the family class, to the Canadian High Commission in London.
[13] The Plaintiff's application for permanent residence, together with the undertaking signed by her husband and a covering letter, was delivered to the Canadian High Commission in London on June 16th, 1994, by her husband Mr. Robin Chesters. At that time, Mr. Chesters met with Mr. Ernest Alston, a visa officer at the High Commission. In accordance with the usual practice, the application was subject to a preliminary determination on admissibility.
[14] According to the computerized case notes maintained by the visa officer, and the evidence of Mr. Chesters, Mr. Alston commented on the Plaintiff's condition of multiple sclerosis and advised that this might constitute an impediment to her admission into Canada. However, again in accordance with the usual practice as explained by Ms. Joan Atkinson, currently Assistant Deputy Minister of Policy Program and Development with the Department of Citizenship and Immigration, the Plaintiff was advised that she would have to undergo a medical examination at her own risk and at her own cost.
[15] All prospective immigrants to Canada are required to undergo a medical examination, according to the evidence of Ms. Atkinson. The request to undergo the medical examination is not a commitment that a potential applicant for permanent residence would be accepted.
[16] The Plaintiff was provided with the names of three Designated Medical Practitioners (DMPs). DMPs are local physicians who are recruited by the Canadian government to conduct medical examinations for overseas visa applicants.
[17] The Plaintiff decided to visit Dr. Roodyn and did so on June 20th, 1994. He conducted a basic medical examination and made arrangements for the Plaintiff to undergo a chest x-ray and blood work. He obtained the Plaintiff's personal medical history as a result of a question and answer process; he did not have a copy of her visa application before him and according to the Plaintiff, he did not ask about her employment, education, past work experience or plans for the future.
[18] Dr. Roodyn completed the portions of the medical report form which he was required to complete, including the medical examination, physical examination and his notes addressing particular matters, including a conclusion and diagnosis. His conclusion provided as follows:
The multiple sclerosis appears to be stable at present but further attacks of demyelination are an ever present possibility. She is wheelchair bound and as the years progress, will require increasing nursing care. On medical grounds, I would not pass her as fit for immigration.
[19] The Plaintiff attended for her medical examination before the DMP on June 20. By letter dated June 22, 1994, her husband notified the High Commission that they intended to leave England for Canada within a few weeks. Mr. Chesters at that time was inquiring about the status of the Plaintiff's application. Mr. Alston responded by telephone on June 24, 1994 and advised that processing of the application was not complete and that the Plaintiff could travel to Canada on a visitor's visa. That is what she did.
[20] This medical report was forwarded to the Canadian High Commission in London where it was reviewed by a visa officer. It was determined that further information on the Plaintiff's condition was required and on July 13th, 1994 a letter was sent out to the Plaintiff, over the signature of Dr. Elliott, requesting the provision of further information. Specifically, the letter requested a current report from a neurologist. The process of requesting further information about the Plaintiff's medical condition was known as "furthering" the initial medical examination.
[21] In due course, the Plaintiff submitted further information, consisting of letters and reports from the time of the initial diagnosis of multiple sclerosis in August 1991 up to and including a letter dated July 29th, 1994 from her family doctor, Dr. Giovanna Mallucci. No new information was available at that time and Dr. Mallucci concluded her letter by saying there was "nothing further I can contribute."
[22] The results of the medical examination and the further information were submitted to the medical office of the High Commission. The two medical officers who were involved in the assessment of the Plaintiff's case were Dr. A. Williams and Dr. John Lazarus.
[23] Dr. Williams, although a Canadian trained physician, was not a permanent member of the staff of the Canadian High Commission. He was retained on contract and his job was to review medical examinations performed by DMPs, for the purpose of screening the reports prepared for applicants for permanent residence to Canada.
[24] According to Dr. Lazarus, the medical report from Dr. Roodyn and additional information provided in response to the letter of July 13, 1994, were first reviewed by Dr. Williams when this information was sent to the medical division of the High Commission. Dr. Williams prepared a worksheet with a preliminary medical profile, using the guidelines provided in the Medical Officer's Handbook. He assessed the Plaintiff as "M1 D4 T4 S1 E4 M7". He sent the worksheet to Dr. Lazarus, seeking his opinion.
[25] Dr. Lazarus reviewed the information relating to the Plaintiff. He paid particular attention to the discharge summary dated August 26, 1991 for the National Hospital for Nervous Diseases in London. This report provided the diagnosis of multiple sclerosis.
[26] He testified that he also consulted the Medical Officer's Handbook concerning the management and treatment of multiple sclerosis in the Canadian context. He also drew on his own experience of the condition, resulting from his years in practice in Canada as a general practitioner and certified specialist in the field of family medicine, together with his experience as a medical officer in the federal public service.
[27] Dr. Lazarus concluded that the Plaintiff's condition of multiple sclerosis placed her in the medically inadmissible class, pursuant to section 19(1)(a)(ii) of the Immigration Act because she was reasonably likely to require future health and medical services in Canada that would fall in the category of excessive demands.
[28] However, Dr. Lazarus also held the opinion that with the use of certain drugs, for example, Interferon, it was possible that the Plaintiff's condition in the future might be sufficiently ameliorated that she would no longer be medically inadmissible. Accordingly, he changed the medical admissibility factor, or her profile, from "M7" to "M5". This reclassification recognized the possibility that the Plaintiff's medical status could change.
[29] Dr. Lazarus completed the narrative portion of the Medical Notification Form and signed it, as the first signatory. Dr. Williams reviewed it and concurred, and provided the second signature. The narrative says, in part, as follows:
This applicant has multiple sclerosis and... is wheelchair bound. Her condition is expected to progress resulting in repeated hospitalization and specialist care, placing an excessive demand on health and social services. Inadmissible as section 19(1)(a)(ii) of the Act.
[30] Dr. Lazarus testified that the medical opinion is reached on the basis of medical factors. It is a discretionary decision calling upon the experience of the medical officer. The issue of "excessive demands" is not defined but guidance is provided by the jurisprudence of the Federal Court, the Immigration Regulations and the Medical Officer's Handbook. Excessive demands is considered to be higher than average when assessed against the average per capita cost of providing medical care in Canada.
[31] This understanding of excessive demands and how it is applied to persons seeking landing was also expressed by Dr. Axler, a former medical officer who testified on behalf of the Plaintiff, and Dr. Giovannazo, a senior medical officer, who testified on behalf of the Defendant.
[32] These three doctors also testified that the medical assessment was conducted on an individual basis, having regard to the individual applicant. The medical officer makes no decision on the issuance of a visa but provides a medical assessment only.
[33] The medical officers reached their conclusion on September 24, 1994, that the Plaintiff was medically inadmissible to Canada. That decision was communicated to the Visa Officer on October 6, 1994. No formal written notification of this decision was ever sent to the Plaintiff but on November 14, 1994, the Plaintiff's husband received a telephone call from Mr. Alston in London. Mr. Alston told Mr. Chesters that the Plaintiff had been determined to be medically inadmissible to Canada pursuant to section 19(1)(a)(ii) of the Act.
[34] In the same conversation on November 14, 1994, Mr. Alston had advised Mr. Chesters that he would investigate the possibility of obtaining a Minister's permit that would allow the Plaintiff to enter Canada with her husband. A Minister's permit is a discretionary measure which is available to allow a person who is otherwise inadmissible to enter Canada.
[35] The Plaintiff learned about the determination of her medical inadmissibility from her husband who told her about the conversation he had had with Mr. Alston. She was upset and could not believe that she, as the wife of a Canadian citizen, would be denied admission into Canada as the result of a medical condition. She viewed the decision as one of discrimination. She immediately set out to remedy that situation.
[36] Upon arrival in Canada, the Plaintiff and her husband established themselves in Mississauga. They rented an apartment. Mr. Chesters was working with General Electric. The Plaintiff accessed public libraries to research the workings of the Canadian immigration system. She contacted the Multiple Sclerosis Society. She worked on a volunteer basis at Erindale College.
[37] When she learned of the determination of her medical assessment in November 1994, she commenced writing a series of letters to Mr. Alston at the Canadian High Commission in London and at least one letter to Mr. Sergio Marchi, then Minister of Citizenship and Immigration. She sought information about the availability of an employment authorization and the meaning of the Minister's permit. She did not reject the idea of being admitted to Canada under a Minister's permit and as part of that process, attended with her husband for an interview on January 24, 1995, at the offices of Canada Immigration in Mississauga.
[38] That interview was conducted by Ms. Donna Reid-Moncrieffe, a Visa Officer. The personal circumstances of the Plaintiff, including her education and previous work experience, were reviewed and Ms. Reid-Moncrieffe made a positive recommendation concerning the issuance of a Minister's permit.
[39] That recommendation was forwarded to the Regional Office in Ontario. The file was reviewed and the recommendation was confirmed. The approval was forwarded to Mr. Alston in London. By letter dated April 12, 1995 Mr. Alston informed the Plaintiff and her husband that a Minister's permit would be issued. He also instructed her about the procedure to be followed, that is attendance at a location outside Canada for validation of the permit after payment of the requisite fee. He also advised the Plaintiff that she was eligible for an employment authorization, again upon payment of the required fee.
[40] The Plaintiff obtained a Minister's permit in April 1995, together with an employment authorization for one year. The Minister's permit was valid for three years and was renewed once. The Plaintiff also renewed her employment authorization for one year, although she did not stay in Canada.
[41] On March 19, 1995, the Plaintiff wrote a letter specifically inquiring about the meaning and significance of both the Minister's permit and her employment authorization. She posed the following questions:
1. Employment:
a. Why will my employment authorisation only be valid for one year?
b. What happens after that year? Is it possible that the authorisation will be withheld? If so, for how long? Repeatedly?
c. Will, in the future, the authorisation only be renewed for one year at a time?
d. Will we have to pay $125.00 for the renewal each time?
2. On what conditions exactly will the granting of landed status in x number of years depend? Where can I get this in writing? [emphasis in original]
[42] In due course, the Plaintiff received a response from the desk officer with Immigration Canada, legal affairs and litigation. In part, that response provided as follows:
As already explained to you by Mr. Alston, under s. 38(1), the Governor in Council may authorize the landing of any person who has resided continuously in Canada for at least five years under the authority of a written permit issued by the Minister. I am sure that you will understand that I cannot make any commitment on actions to be taken by others five years from now. I wish to assure you, however, that unless something very significant and unexpected happens, your situation will be resolved favourably in due course. You are correct that the Charter of Rights and Freedoms, as part of the Constitution of Canada, forms part of the supreme law of Canada. Section 1 of the Charter states that "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Section 19(1)(a)(ii) of the Immigration Act deems inadmissible to Canada persons who are suffering from health impairments as a result of the nature of which, in the opinion of a medical officer, their admission would cause or might reasonably be expected to cause excessive demands on health or social services. This Department is satisfied that s. 19(1)(a)(ii) is not in contravention of the Charter of Rights and Freedoms.
[43] In the meantime, the Plaintiff sought employment in Canada. She sent out at least four, and possibly five, applications for employment in the Information Technology field. She testified that having regard to the nature of computer technology, every day she was unemployed represented a loss in the value of her education in that area. She was unsuccessful in obtaining work.
[44] In December 1995, the Plaintiff travelled to Germany for a job interview. The proposed area of employment was as a teacher of teaching foreign languages to students who planned to study abroad. She spent approximately five days in Germany, two days of which were spent in the airport at Dusseldorf because she was unable to obtain accommodation at a hostel in that city.
[45] She returned to Canada to spend Christmas with her husband and having obtained the employment in Germany, returned to that country in January. She taught in Hagen for one year and then resumed studies necessary to obtain her full teaching certificate in Germany. She completed that program of studies in 1998. She then obtained for a position in a community college situated approximately 80 kilometres north of Cologne, in North-Rhine-Westphalia.
[46] The Plaintiff remained in Germany without her husband from January 1996 until February 1999 when Mr. Chesters obtained employment in Cologne. In the preceding period that is between January 1996 and February 1999, the Plaintiff spent approximately twelve weeks of each year with her husband. She travelled to Canada at Christmas and Easter for approximately three weeks at a time and her husband spent some time with her in Germany in the Fall.
[47] Although the Plaintiff and her husband initially resided together, due to the lengthy commute required for Mr. Chesters to reach his place of work in Cologne, the Plaintiff and her husband agreed that he would stay in Cologne during the work week living in a rented apartment and spend the weekends with her in North-Rhine-Westphalia. That is the manner in which the Plaintiff and her husband work and live today.
[48] The Plaintiff was rejected as an applicant for permanent residence to Canada in November 1994 but she was never formally advised of that rejection. Her notification of that decision was made in a telephone conversation from Mr. Alston to her husband. Concurrently, the subject of applying for a Minister's permit was raised and steps were put in motion achieve that end. Although the Plaintiff sent a letter to Immigration Canada on November 16, 1994, requesting an appeal form relative to the negative decision, there is no evidence that her letter was received. However, there is evidence that she did not receive any appeal form and that she did not take any steps to appeal the decision.
[49] There is little evidence that she sought legal advice concerning her rights or remedies in relation to the negative medical inadmissibility determination. She did not pursue an application for judicial review. Rather, the Plaintiff chose to challenge the constitutionality of the medical inadmissibility provision by way of action. She commenced this action upon the issuance of a Statement of Claim on April 2, 1997. An amended Statement of Claim was filed on July 29, 1997.
PLAINTIFF'S SUBMISSIONS
[50] The Plaintiff claims that she was discriminated against because she is the disabled wife of a Canadian citizen. She argues that she was treated differently than able-bodied spouses of Canadian citizens would be, in applying for permanent residence in Canada. She argues that as the spouse of a Canadian citizen, she had the right to enter Canada without regard to her medical condition which was improperly categorized by Canadian Immigration Officials as a disability.
[51] She alleges that as the result of this discriminatory behaviour, she was injured, that she suffered mental and psychological stress, that her rejection on medical grounds made her feel like a second class citizen and unworthy to participate in Canadian society, that her education and ability to contribute to Canadian society were ignored, that her feelings of exclusion and stigmatization negatively affected her relationship with her spouse and negatively impacted upon their desires to establish a family, and that the ultimate grant of the Minister's permit was an act of charity which was misplaced. The issuance of a Minister's permit does not relieve these injurious factors because the Minister's permit is a discretionary action which will not lead inevitably to her admission into Canada.
[52] Substantively, the Plaintiff challenges the constitutionality of section 19(1)(a)(ii) on the grounds that it contravenes both section 7 and section 15 of the Charter of Rights and Freedoms. It offends section 7, that is the guarantee of life, liberty and security of the person, by placing her in a situation of uncertainty as to her civil status in Canada and dependent upon the charity of the Governor in Council in granting her status to be in Canada, either on a temporary basis or on a more permanent basis upon an application being made for a grant of citizenship pursuant to section 38 of the Act. The Plaintiff argues that this breach of her Charter rights cannot be justified by section 1.
[53] The Plaintiff argues that the mental and psychological stress endured by her following the rejection of her application for permanent residence in 1994 and the continued uncertainty associated with her status as the holder of a Minister's permit following the issuance of that permit in 1995, constitute the type of psychological distress described by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.) (1999), 177 D.L.R. (4th) 124.
[54] Section 7 of the Charter guarantees security of the person. The application of section 7 raises two questions: is life, liberty and security engaged and secondly, does the challenged legislation offend the principles of fundamental justice.
[55] When the Minister's permit was originally granted, the health insurance system operating in Ontario, that is the Ontario Health Insurance Plan, provided that medical coverage would be available to holders of Minister's permits. That was changed subsequent to the issuance of her Minister's permit in 1995 and as a holder of a Minister's permit, she is no longer eligible to be covered by the provincial health insurance plan. She relies on the decision of the Ontario Court of Appeal in Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 197 D.L.R. (4th) 103 to support the argument that lack of access to provincial health benefits constitutes an infringement of her rights under section 7 of the Charter.
[56] She also argues that the process by which her medical condition was assessed and was found to constitute an excessive demand on the health services in Canada, is the result of a constitutionally vague process. The law is vague; it does not prescribe a precise means of calculating "excessive demand". The vagueness of the legislation gives rise to legitimate concern about its constitutionality. In this regard, the Plaintiff relies on the decision of the Supreme Court of Canada in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.
[57] The Plaintiff argues that the medical assessment is carried out without regard to particular circumstances of an individual, including an individual's employment history, education, career plans and life status, including status as the spouse of a Canadian citizen. She also submits that the process by which her medical assessment was conducted was procedurally flawed because it was based on an arbitrary process which improperly relied on stereotyped reasoning concerning persons with disabilities.
[58] Furthermore, she argues that the medical assessment was procedurally flawed because Dr. Williams, who provided the second opinion, had no authority to provide the second signature for a medically inadmissible person. His signing authority was limited to the first signature in such cases. She invites the Court to draw a negative inference from the failure of the Defendant to produce Dr. Williams as a witness at trial.
[59] She argues that section 3 of the Act set forth the purposes of the Act. Section 15 of the Charter applies to everyone, citizen or not. The Charter is the expression of the supreme law of Canada and must inform the interpretation and application of Canadian statutes.
[60] The Immigration Act purports to foster reunification of families. This is consistent with Universal Declaration of Human Rights which recognizes the value of reuniting families. An interpretation and application of the Act which conflicts with the Charter and the Universal Declaration of Human Rights is unconstitutional.
[61] Next, the Plaintiff argues that the medical admissibility provision offends section 15 of the Charter of Rights and Freedoms because it identifies a class of people who are to be singled out and subjected to closer scrutiny on the basis of a disease, disorder or disability. She says that the language is discriminatory on its face and has the effect of identifying a particular class of people for special and exclusionary treatment.
[62] Alternatively, the Plaintiff argues that if the provision is not discriminatory on its face, then it still breaches the guarantee of equality because it has an adverse discriminatory effect. It improperly impacts upon a distinct group of people who are already vulnerable to discrimination.
[63] She argues that reliance on personal characteristics, such as a disability, to determine suitability for admission into Canada, is discriminatory and constitutionally offensive. In this regard, the Plaintiff relies on the decision of the Supreme Court of Canada in Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 which identifies elements of discrimination. She argues that the Medical Officer's Handbook, which is intended to inform the manner in which medical admissibility is assessed, is flawed. It is designed to focus on degrees of disability and to perpetuate a stereotypical view of disability in assessing suitability for admission into Canada.
[64] The Plaintiff alleges that section 19(1)(a)(ii) is unconstitutional because it offends section 7 and 15 of the Canadian Charter of Rights, and cannot be justified pursuant to section 1.
INTERVENER'S SUBMISSIONS
[65] The Council of Canadians with Disabilities (the "Interveners") adopt the arguments advanced by the Plaintiff. Additionally, they submit that section 19(1)(a)(ii) is further flawed by failing to address the potential contribution to be made to Canada by persons suffering from disabilities. Briefly, the Interveners argue that the failure of Parliament to take this factor into account is contrary to the admission criteria of the Immigration Act as stated in section 3.
[66] The Interveners argue that the medical inadmissibility provision fails to allow for the balancing of potential contribution as appears to be the case for persons who may be inadmissible under other provisions of section 19. As an example, the Interveners argue that persons with criminal convictions are provided with the opportunity to demonstrate rehabilitation. That implies a balancing between the interests of the individual and those of the state, which opportunity is not afforded to persons excluded pursuant to section 19(1)(a)(ii).
DEFENDANT'S SUBMISSIONS
[67] The Defendant argues that all Charter analyses must be conducted with a full appreciation of the context. Here, the legal context is immigration law. In this regard, the Defendant relies on the decision in Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, where the Supreme Court of Canada stated that immigration is a privilege, not a right.
[68] The Charter challenge advanced here is based on sections 7 and 15, and the burden of proving a breach of these sections lies on the Plaintiff. If the Plaintiff succeeds in proving such breach, the burden moves to the Defendant to show that the challenged legislation is justified pursuant to section 1 of the Charter.
[69] The Defendant takes the position that the challenged provision of the Immigration Act offends neither section 7 nor section 15 but in any event, can be justified pursuant to section 1. In Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, the Supreme Court of Canada considered whether the deportation of a permanent resident who had been convicted of certain offences constituted a breach of section 7. Justice Sopinka, writing for the court, concluded that there was no breach of section 7. The fundamental principle is that an alien does not have an unqualified right to remain in Canada.
[70] Canada has the right and obligation to establish standards for entry into the country, for the protection of its people. The Defendants says that section 19(1)(a)(ii) is such a provision because it protects Canadian health and social services against excessive demands, consequently sustaining these services for the future.
[71] The Defendant then addresses the particular circumstances of the Plaintiff. She applied for permanent residence as the wife of a Canadian citizen and sought the issuance of an immigrant visa to allow her entry into Canada as a permanent resident. She was sponsored by her husband and applied as a member of the family class. As a member of the family class, her occupation or employment is irrelevant to the question whether an immigrant visa should be issued.
[72] A member applying in the family class must meet the admission requirements of section 11(1) of the Act and the Immigration Regulations.
[73] The Defendant agrees that the Supreme Court of Canada has established a two step analysis in respect of a breach of section 7. First, there must be deprivation of life, liberty or security of the person and once this established the question becomes whether that deprivation has occurred in accordance with principles of fundamental justice. The principles of fundamental justice fall into two categories, that is substantive principles and procedural principles.
[74] Insofar as the Plaintiff alleges that she suffered a loss of security of the person because she was denied access to health coverage in Ontario pursuant to OHIP, the Defendant says that this issue is not properly before this court in this action. There is no factual underpinning for such issue and in any event in Irshad, supra , the Ontario Court of Appeal held that the provincial scheme, which limited access to provincial health benefits, was valid and did not infringe section 15 of the Charter.
[75] The issue of security of the person, pursuant to section 7, was considered by the Supreme Court of Canada in G.(J.), supra. The Defendant argues that this decision stands for the principle that security of the person, pursuant to section 7 of the Charter, extends to a situation of state-imposed psychological stress as the result of state conduct which deprives an individual of his or her own security. Second, section 7 does not protect an individual from the ordinary anxiety that would be felt by a person of reasonable sensibility, as the result of government action, and the levels of stress are to be assessed objectively.
[76] The Defendant argues that in the present case, the state took no action vis-a-vis the Plaintiff. The Plaintiff applied for permanent residence and was found to be medically inadmissible. There is no question that the forces of the state were brought to bear upon the Plaintiff, she alone set the apparatus in motion. Furthermore, the state facilitated her entry on a Minister's permit so that she could live with her husband in Canada and issued an employment authorization so that she could seek employment in this country
[77] The Defendant argues that whatever stress was suffered by the Plaintiff following her application for permanent residence and in the time frame which is covered by this action, it was not of such a high degree as to constitute psychological harm.
[78] The Defendant also addresses the decision of the Supreme Court of Canada in Nova Scotia Phamaceuticals, supra, and submits that an allegation of constitutional invalidity on the basis of vagueness must be assessed against three criteria, as follows:
1) the provisions in question must provide fair notice to the citizen;
2) the essence of the vagueness standard is whether there are tools for legal debate;
3) the availability of a broad discretion is not problematic as long as there are tools for the court to engage in that legal debate.
[79] Applying these principles to the present case, the Defendant argues that there was fair notice in relation to the question of medical inadmissibility, since the statute provides that. The evidence provided by three doctors who had worked with the medical inadmissibility provision was that there are sufficient tools to interpret the excessive demands provision. It was the evidence of three doctors who had worked with the medical assessment process and the criteria of excessive demands that the case law had indicated that excessive demands meant more than normal. As well, the medical officers were guided by section 22 of the Regulations, as interpreted by the court in Ismaili v. Canada (Minister of Citizenship and Immigration) (1995) 100 F.T.R. 139 (Fed. T.D.) and Poon v. Canada (Minister of Citizenship and Immigration), 10 Imm. L.R. (3d) 75.
[80] The Defendant argues that in the present case, which is a trial and not an application for judicial review, it is clear that there are tools available to govern the exercise of discretion in the conduct of a medical assessment. Consequently, the provision is not constitutionally vague.
[81] As for the issue of procedural fairness, the Defendant rejects the Plaintiff's arguments that the law was arbitrary because employability was considered in relation to her medical condition but without regard to her real employability, given her background and training. The second aspect of the Plaintiff's argument about breach of procedural fairness in the conduct of her medical assessment, is based on the fact that the second and concurring signature on the medical notification form was signed by Dr. Williams, who lacked the authority to sign the second signature.
[82] The Defendant acknowledges that the principles of fundamental justice are found in the basic tenants of the Canadian legal system, as discussed in B.C. (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868. The content of procedural fairness may require different things in different contexts.
[83] Again, this issue is to be explored in the context of the immigration law and that was the situation in Chiarelli, supra, in which the Supreme Court of Canada concluded that immigration is a privilege, not a right.
[84] The Defendant says that the Plaintiff's employability was considered in a positive light by the medical officers but this was not the most important factor in their assessment. In the legal context, employability is not relevant to persons applying as members of the family class. Again, the Defendant relies on section 8 of the Act and argues that the Plaintiff, as a prospective immigrant, bore the burden of establishing that she met the admission requirements of the Act.
[85] As for the Plaintiff's argument that Dr. Williams signed the medical notification form as the second signature, without authority, the Defendant argues that the evidence shows that Dr. Williams had received a dispensation to sign M4 and M5 reports. He was a Canadian trained physician with experience in the Canadian medical environment. He brought the Plaintiff's situation to the attention of Dr. Lazarus because of the serious implications for the Plaintiff resulting from the initial assessment as M7. The order of events determined the order of the sig