Charter of Rights and Freedoms


Charter of Rights and FreedomsUnder the Charter of Rights and Freedoms the government is restricted in their ability to discriminate on a variety of grounds:

15. (1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object
the amelioration of conditions of disadvantaged individuals or groups including those that
are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.

Of course, there are numerous considerations before I have a convincing argument for discrimination in this case. Let’s see if I can enumerate those I consider to be the most relevant:

  • Disability: is HIV positivity a “disability” within the scope of existing law; once that’s established, we need to worry about the next point
  • Discrimination: does a policy that prohibits essentially everyone with HIV (and not in an exempt group) constitute a form of discrimination? Once that’s established, we need to ensure the government is acting in a proscribed manner
  • Unreasonable: the government is allowed to restrict Charter Rights if it is in the broader public interest.

The first point is actually well-established.  Existing Canadian policy clearly establishes that, as far as the Canadian government is concerned, HIV positivity is a disability, see Canadian Human Rights Commision’s Policy on HIV/AIDS:

The Canadian Human Rights Act prohibits discrimination on the basis of disability. Individuals with HIV/AIDS may therefore seek protection under the Canadian Human Rights Act. People who are not HIV positive may also be subject to discrimination by virtue of their real or perceived membership in a risk group or their association with a person or people with HIV/AIDS. These individuals may also seek protection under the Canadian Human Rights Act on the basis of perceived disability.

So, that seems to be reasonably well covered.

With respect to discrimination, the current standard that seems to apply:

inequality, or a distinction based on personal characteristics with
respect to treatment and/or impact in the formulation or application of
the law; and
discrimination, evidenced by an effect of prejudice to a disadvantaged
individual or group, as determined by the enumerated grounds and/or
those non-enumerated grounds analogous to them.

Almost 80% of all applicants in a non-exempt class that test HIV positive are rejected according to recent statistics (although I’m not finding my source for that statistic at the moment.  One reason I started this blog: to make it easier to find those interesting nuggets when I do find them.)  That certainly seems suspect.

More damning is the Report of the Auditor General – Fall 2011 in the section on Visas notes that CIC should:

examine the methodology and process for assessing excessive demand on health and social services and take corrective measures as necessary.

And the CIC response (in the report) agrees with this:

CIC has started examining the excessive demand processes and will pursue its collaboration with the provinces and territories to review factors generating limitations and inconsistencies in the evaluation of excessive demands and will address the identified deficiencies. This measure will be completed by June 2013.

Others have noted that there are numerous diseases for which CIC does not test that can impose substantial burden upon the public health care system, so calling this specific condition out is a form of discrimination.

Of course, discrimination itself is acceptable if there is some public interest in doing so.  In this case it seems clear that the only visible such criteria is cost.  Note that the cost argument, as it is considered by CIC, ignores any potential contribution.  This does not seem to make it a particularly compelling calculation.

Further, the current definition of “excessive” is merely the average health care cost in Canada.  As has been pointed out in When Does an Immigrant with HIV Represent an Excessive Demand on Canadian Health or Social Services? this is not a particularly defensible position and the numeric value should likely be somewhat higher than that amount.

However, even considering this fundamental assumption that someone immigrating to Canada brings nothing to the table and is only going to be a burden, it would seem that they could at least consider the contributions prior to permanent residency.  I am fortunate in having a good job, and in my first two years paying income taxes in Canada, I have contributed more than 10 years worth of the average health care costs.  Even that is not considered, however.  The assumption is that I will immediately become a deadbeat.

There is an open question about whether or not I can invoke the Charter.  In Lee v Canada the court stated: “Those who are non-citizens, outside of the territory of Canada cannot invoke the Charter as it is purported to be done here.”  So, being a non-citizen but inside Canada, does this prohibition apply, or not?  This seems to be an unsettled question of law.

If I am allowed to invoke the Charter, it would seem that I can present a reasonable argument for being in a protected class and thus the burden of proving that the restrictions are reasonable would fall back to the government.  Yet, even CIC admits their current process is flawed and in need of review – hardly a position of strength.

We shall see (ultimately, I’ll have to leave the arguments up to the attorney, but I do like being in a position to at least gauge his work and correspondingly how well he is advocating for my own position.)

Just for the record, I found this presentation at the aidslaw.ca site informative as well.  This does make me wonder if there are comparable organizations like this operating within British Columbia.  I’ve looked and haven’t found any so far.  If anyone has pointers, please let me know.

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