Statement from the HIV Legal Network
For more than 20 years, the Government of Canada has been discriminating against people living with HIV and other health conditions through the “excessive demand” provision in the Immigration and Refugee Protection Act, which prevents individuals from immigrating to Canada if they are living with a health condition that is expected to place an “excessive demand” on the public system.
We were hopeful when the Minister of Immigration, Refugees and Citizenship promised to revoke the “excessive demand” regime in 2018. At that time, the Minister acknowledged that “[this regime] no longer aligns with our country’s values on the inclusion of persons with disabilities in Canadian society.” The Minister then increased the “excessive demand” threshold, meaning that fewer individuals would be denied residence in Canada based on the cost of their health conditions. But the Minister did not revoke the regime and it remains in effect to this day.
When a new Immigration Minister took office in September 2023, we again called for the end of this “excessive demand” rule, in partnership with the HIV & AIDS Legal Clinic Ontario (HALCO) and Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA). The Minister did not respond.
To date, Canada has not lived up to its promise to recognize and respect the human rights of people living with HIV who wish to travel to, or remain in, Canada.
This is why, alongside a client of Battista Migration Law Group, we are challenging the constitutionality of the “excessive demand” regime in Federal Court. On February 2, 2024, we filed our legal arguments challenging the decision of Immigration, Refugees and Citizenship Canada (IRCC) to deny a work permit to an individual applicant based on their HIV status. We are proud to work with this brave claimant.
In the challenge, we argue that the decision to deny the individual applicant’s work permit was not only unreasonable and unfair but that the very existence of the “excessive demand” provision is discriminatory, and thus inconsistent with s. 15 of the Canadian Charter of Rights and Freedoms. It does not represent the Canada we want to live in.
We highlight clear evidence, confirmed by the House of Commons Standing Committee on Citizenship and Immigration in 2017, that the provision is harmful to migrants living with health conditions by increasing application costs and delays compared to those without health conditions and by perpetuating stigmatizing views that people with disabilities are burdens on society and that migrants merely abuse public programs.
We stress that the provision does not consider the value that these individuals bring to Canadian society — including economic, social, and cultural.
Finally, we highlight the IRCC’s own evidence that the “excessive demand” rule does not protect public health, as the provision leads to minimal financial savings. Provinces and territories have regularly asked IRCC to reverse its “excessive demand” decisions and affirmed their willingness to absorb the resulting minimal additional healthcare costs to benefit from the incredible value that immigrants bring to Canada.
After years of waiting, we knew it was time to challenge the constitutionality of this law. We now wait for the Federal Court to provide a hearing date where we can make this important case. In the meantime, we hope the government will do the right thing and revoke the provision — a provision it has itself already determined to be ineffective and discriminatory.
In solidarity,