Abstract

In this paper, I read the narrative developed by mainstream media in the Montoya case in the context of a dominant neoliberal understanding of the worth of persons with disabilities in Canadian society. I argue that the way newspapers framed the story of the Montoya family feeds into the neoliberal script of who counts as a human being, and thus results in a disservice to individuals with disabilities. I also situate the case in a broader historical context as I examine a few court cases, all including dependents, related to the medical admissibility provision. My goal is to demonstrate how the courts have validated the state argument that distinguishes between valuable (read economically profitable) and non-valuable immigrants, further entrenching the neoliberal discourse of who counts and who is disposable in our society. This is a concerning trend that results in the commodification and layering of citizenship and should be resisted.


In March 2016, Canadians were forced to reassess and reconsider the strength of their commitment to equality and anti-discrimination. National mainstream media reported that York University Professor Felipe Montoya, a temporary worker from Costa Rica who had applied for permanent residence status with his family, was informed by Citizenship and Immigration Canada (CIC) that the family was inadmissible. His son Nicolas has Down syndrome and could therefore, according to the state's reading of disability, place an excessive burden on the social services system (McQuigge 2016). Following widespread public criticism directed at the government's decision, the family was eventually allowed to stay on humanitarian and compassionate grounds. Despite the successful outcome, the story offered Canadians an opportunity to further reflect on their country's assessment of persons with disabilities and in particular immigrant applicants with disabilities. In this paper, I read the narrative presented by mainstream media in the context of a dominant neoliberal understanding of the worth of persons with disabilities in Canadian society. I argue that the way newspapers framed the story of the Montoya family feeds into the neoliberal script of who counts as a human being, and thus results in a disservice to individuals with disabilities. In fact, the language used in newspapers of different political orientations is not neutral but "embodies systems of thought which structure what can be understood" (Philo 2007, 176). Newspapers do not simply report news stories but position these stories within an ideological framework. I also situate the case in a broader historical context as I examine a few court cases, all including dependents, related to the medical admissibility provision. My goal is to demonstrate how the courts have recently validated the state argument that clearly distinguishes between valuable (read economically profitable) and non-valuable immigrants, further entrenching the neoliberal discourse of who counts and who is disposable in our society. This is a concerning trend that results in the commodification and layering of citizenship and should be resisted. The paper begins with an investigation of neoliberalism and the way it approaches disability, followed by a brief overview of the Montoya case and an analysis of how the press presented the story. I then discuss how the Canadian justice system has been complicit in validating the narrative developed by the state and amplified by the media. I conclude with a warning about the dangers implicit in assessing potential immigrants based on their economic status and on their assumed abilities or disabilities vis-à-vis their potential contributions and costs.

The reason why I chose to discuss media representations of the Montoya story and previous court decisions related to similar cases is because I consider immigrant applicants with disabilities among those who, through time, have been discriminated against in and by this country. It is true that the oppression and exclusion of immigrants with disabilities from Canada precedes neoliberalism and has been a reality in the country since the passage of the first Immigration Act in 1869. As documented by Timlin (1960), Whitaker (1991), Menzies (1998), and Paquêt (2005) among others, Canada has tried since its inception to restrict entrance to those individuals it considered undesirable because of disabilities. However, while the initial motivation for the exclusion was the threat of degeneracy, with time the argument has assumed a more economic connotation and now rests on the unproductiveness and economic burden persons with disabilities might represent for the country. Considering that Canada came to be as a white settler colonial society through the extermination of those it considered inferior and therefore unworthy and disposable (Thobani 2007), it is little surprise that the removal and rejection of people deemed as undesirable remains central to the country's immigration policy. While resting on a different justification, the shift I have just described has not changed at its core the oppression experienced by potential immigrants with disabilities. This oppression has not only been expressed at the individual level but has been institutionalized, meaning that it has been "sanctioned by the courts, legitimated by laws, enforced by the police, and ideologically sustained and reproduced by the media" (Teun A. van Dijk 1993, 255). In the case of the media as well as the judicial system, it is apparent that, irrespective of diversity of opinions among individual journalists, commentators, and judges, there exists a common understanding of how valuable or non-valuable each individual is to society based on an accepted set of requirements that include the ability to be employed. Systematically, persons with disabilities are not just assessed but assumed as lacking any value. Their situation is presented as "naturally" problematic, as if no alternative approach to disability could even be contemplated. It is this "naturalness" that I find concerning and ascribe to the hegemonic position acquired by neoliberal discourse in Canadian society. In fact, as I am going to demonstrate, neoliberalism appears to not only perfectly fit but magnify as well the entire system of exclusion Canada has built throughout the years.

Neoliberalism and Persons with Disabilities

According to David Harvey, neoliberalism is a "theory of political economic practices that proposes that human well-being can best be advanced by liberating individual entrepreneurial freedoms" (2007, 2). While Peck correctly points out that neoliberalism is not monolithic but rather "contradictory and polymorphic" (2010, 8) and is therefore applied differently to various spatial and temporal contexts, the existing scholarship largely agrees that, in all its different "contextually embedded articulations" (Mladenov 2015, 446), neoliberalism relies on a core set of tenets such as "deregulation, privatization, and withdrawal of the state from many areas of social provision" (Peck 2010, 3) and emphasizes individual agency over ties to the community (Walks 2009; Robinson 2011). Because of its insistence on expanding the market logic to every aspect of life, Mladenov defines it as "a doctrine of radical marketization" (2015, 446) that, while promoting competition and self-interest, is entirely oblivious to the idea of solidarity. Neoliberalism is antithetical to the notion of community as it proposes "a doctrine of the survival of the fittest" (Hughes 2015, 992) which rests on the distinction among "hard-working citizens" and "the so-called parasitic classes" (993). The latter are framed as undeserving and appropriating resources that would be better spent on the deserving majority, a group constituted by those individuals who are economic contributors. While Western capitalist societies have always been defined by the importance given to waged labor (MacGregor 2012), neoliberalism has further strengthened the connection between worthiness and employability. As Hughes notes, the neoliberal state finds its legitimacy in presenting "a vision of an 'underclass' of parasitic undesirables who live off the hard-working moral majority" (2015, 1001). Persons with disabilities are systematically assessed as undeserving and disposable since they do not fit the neoliberal ideal of "young, able-bodied males, perceived as productive members of society" (Dossa 2009, 22). Disability is therefore seen as a tragedy to be solved or at least managed not only for the individual experiencing it but for the entire society, since even those not directly experiencing the disability are burdened with the costs of having to support disabled persons.

Across the Western world, neoliberalism has become dominant since the 1970s, following the election of Margaret Thatcher in the United Kingdom and Ronald Reagan in the United States (Harvey 2007). In Canada, federal and provincial levels of government have adopted neoliberal polices and practices beginning with the 1990s, mainly but not exclusively in an effort to better integrate Canada's economy with the economy of our major trading partner, the United States (Walks 2010; Walks 2011). For the purpose of this investigation, my interest focuses on the way "neoliberalism has helped in positioning citizens not as bearers of rights within the community, but as individuals responsible for their own success and well being" (Capurri 2013, 6) and how this approach has impacted persons with disabilities. Because the latter are portrayed as lacking the core elements of the ideal citizen, namely self-sufficiency and economic productivity, they are automatically transformed into "less than" citizens, a group that I refer to as "citizens minus." These are individuals who are legally citizens of the country but are nonetheless deprived of the recognition and most of the rights associated with that status. This second-class standing is justified by the argument that such citizens are faulty and unable to contribute in any substantial way to the national project. The state goal then becomes to reduce them in number. While this goal cannot be achieved by removing from the country those disabled individuals who are nationals, it can and in fact does succeed when forbidding entry to foreign-born persons with disabilities. This is possible because within the neoliberal argument, immigrants are exclusively assessed based on whether they add any "significant utilitarian value to the Canadian economy" (Roberts and Mahtani 2010, 251). From this perspective, the concept of immigrants with disabilities is an oxymoron since it is assumed as a fact that a person with a disability cannot be economically useful and productive and hence can never qualify for immigration.

There is substantial literature available to indicate that "disabled people in the neoliberal turn are in a precarious position" (Grover and Soldatic 2013, 226) and are portrayed as unable to achieve independence, resulting therefore in a financial burden to the contributing taxpayer. This is particularly the case for persons with an intellectual disability who, being often unable to sustain themselves economically, are perceived as dependent and are therefore marginalized within the neoliberal discourse (Dowse 2009; MacGregor 2012). If the measuring stick is economic and financial independence, then obviously everyone who is unable to achieve self-sustainment gets transformed into a citizen minus who is a burden rather than an asset. Furthermore, as emphasized by Handle and Kelly (2015), spurred by an austerity agenda that is built around cost-saving measures, neoliberalism advocates for the reduction, if not the entire elimination, of programs and services that are essential to ill or disabled persons. This is illustrated, for example, by the retrenching of government benefits and reforms to the welfare system implemented in the United Kingdom since the election in 1997 of the New Labour government of Tony Blair and continued under the Conservative government of David Cameron (Owen and Parker Harris 2012). While there is by now a fairly solid consensus among scholars that neoliberalism is inimical to those, including but not exclusively persons with disabilities, who are perceived as economically unproductive and users/abusers of public resources, my argument in this paper is that the neoliberal narrative has been absorbed and magnified by the discourse developed in mainstream media. In fact, the language adopted in the media when discussing medical inadmissibility of immigrant applicants is imbued with the neoliberal understanding of who is deserving of admission and who must instead be kept out in order to protect already scarce services meant for the Canadian population. A classic illustration of how the media have, even when critical of certain government decisions, embraced the language of neoliberalism is offered by the coverage of the Montoya case in Canada.

The Montoya Case

Felipe Montoya is a full-time professor in the Department of Environmental Studies at York University, the second largest university in Ontario and the third largest in Canada. He is a native of Costa Rica who entered Canada as a temporary foreign worker and in 2013 filed an application for permanent residency together with his wife and two children. In early 2016, he received a letter from Citizenship and Immigration Canada (CIC) informing him that his 13-year-old son Nicolas (Nico) was medically inadmissible since he has Down syndrome and could therefore pose an excessive demand on social services in Canada (McQuigge 2016). Article 38(1)(c) of the Immigration and Refugee Protection Act states that a foreign national is inadmissible on health ground if their health condition "might be reasonably expected to cause excessive demand on health or social services." Excessive demand is defined as exceeding Canadian per capita health care and/or social services costs. As of 2014, the Canadian Institute for Health Information has set the threshold to approximately $6400 per year. Wilton, Hansen, and Hall note that it is fairly easy to exceed that threshold since "there is no stratification of costs by age or other factors" (2017, 7). Concerning is the fact that this test is only applied to immigrant applicants with disabilities, not to heavy smokers, heavy drinkers, the aged, or professional athletes, all categories that could also reasonably be expected to exceed the threshold established by the Canadian state. Obviously, such selective application raises suspicions of discrimination.

It is important to point out again that the provision of medical admissibility has been in existence, albeit with some modifications, since the initial formulation of an immigration policy in 1869. As I discussed elsewhere, the rationale behind the provision has changed through time, from concerns with genetics that could corrupt the national stock to current apprehensions around the economic burden disabled or ill individuals could place on Canadian medical and social services, especially following the passage of the Medical Care Insurance Act in the late 1960s (Capurri 2012). My goal in this paper is not to conduct an assessment of the legislation nor of its possible unconstitutionality (since it appears to breach the equality clause in the Charter of Rights and Freedoms). I have previously made quite clear (2012) that I find the CIC argument in defense of the provision inherently flawed. My concern is to demonstrate how, irrespective of its validity or lack thereof, newspapers and the courts have embraced the neoliberal framework that sustains CIC argument. Focusing on the media narrative is helpful in revealing how disability is perceived and assessed at a historical moment when neoliberal thinking dominates Canadian society. In particular, I find troubling the media's insistence that the high income status and productivity potential of Felipe Montoya, the principal applicant, should have been considered by CIC when assessing the family's application for permanent status and should have overcome any concern with the potential costs that Nico could represent to the country. By focusing on the benefits that acceptance of a valued professional such as Professor Montoya would bring to Canada irrespective of the medical condition of his son, the media reasserted that money counts more than any other contribution a human being can make to society and purged Nico from their story by refocusing the attention on his father.

On March 27, 2016, in an opinion piece written for CBC News, Rais Pagtakhan maintained that the medical admissibility provision is necessary in order to prevent Canadians from being faced with exorbitant medical costs or having to face longer lines for treatment. Pagtakhan, who is an immigration lawyer in the province of Manitoba, argues that the Montoya family should be accepted to Canada since they were not told beforehand that their permanent resident application was going to be rejected and were therefore deceived into thinking they could remain permanently in the country. At the same time, he seems to have embraced the neoliberal rationale that it is unfair to burden Canadian taxpayers with costs incurred by a foreign-born disabled individual. Unsurprisingly, his approach excludes from the start that a person with Down syndrome like Nico could ever become a contributing member of society, mostly because Pagtakhan has already decided that the term contribution has an exclusively economic connotation. From this perspective, there is no other significant contribution a human being can make to society.

A week before, the story had also been reported in the National Post. On that occasion, the paper clarified the reason behind Felipe Montoya's questioning of the CIC decision concerning his family. Professor Montoya argues that the claim advanced by CIC that Nico could cost public services more than what an average Canadian would is unfounded since currently his son makes use of the same public service resources as his non-disabled daughter. Furthermore, Professor Montoya emphasizes that he and his wife are among those taxpayers who, according to CIC, would end up being burdened with Nico's expenses (National Post 2016). In an interview published on August 10, 2016 by CBCnews Toronto, when asked whether he would agree to commit covering out of pocket any additional cost that might be incurred by Nico above and beyond the threshold established by the government of Canada, he reiterated his family's unwillingness to do so: "We were not willing to be charged for something we had already been paying for." On April 5, still on the National Post, Terence Corcoran also noted that Felipe Montoya, a tenured professor at a Canadian university, was a taxpayer and as such entitled to public coverage of any expense incurred by his son. While Felipe Montoya and Terence Corcoran were certainly correct, what if the costs of supporting Nico were in fact above average? And what if the Montoyas were not taxpayers, and affluent taxpayers for that matter? Would this impact on the worth of Nico as a human being? Would it make him less worthy of acceptance into Canada? I find problematic when a disabled child's value is exclusively assessed based on the contributions of his non-disabled parents. This framing of disability has been magnified by the neoliberal insistence on the individual rather than the community; this means that under neoliberalism, individuals are assessed on whether they can be self-sufficient, and self-sufficiency is interpreted as exclusively related to the economic ability to support oneself. Each and every individual who fails to meet such standard is automatically portrayed as faulty and burdensome, hence disposable. This approach distorts the reality of the inter-dependence of all human beings within society. By focusing on the individual rather than the community, we ignore the cultural, social, and emotional contributions that a person makes to the community. In the case under consideration, when we emphasize the economic contribution of parents rather than focusing on the non-economic impact of the child on the well-being of the family and the community at large, we validate the argument that those unable to play an economic role are worthless unless a connection can be established with non-disabled contributing taxpayers. The subtext to such an argument is that the life of a disabled dependent is in and of itself worthless.

Assessing a person's worth exclusively on the basis of economic potential and social status means that those of us with severe disabilities who are lacking such attributes are considered half-human if human at all. And yet, as pointed out by Paul Hunt in "A Critical Condition" (1966), most persons with disabilities consider themselves as fully human beings. They know that their value as humans transcends their economic contribution or their possessions. They also understand that there are myriad other ways a person can contribute to the community above and beyond being employable and productive. Not everything has a price: how much is the smile of your loved one worth? Can you put a price tag on it? Equally important, Hunt rightly affirms that persons with disabilities do not have to prove their worth to society in order to be accepted into it: whether the able-bodied recognize it or not, disabled persons are already part of society, not on the outside asking for permission to join in. They do have an impact on society, add value to it, are an asset, albeit not necessarily an economic one.

After the Montoya case went public and significant criticism was addressed to Ottawa for rejecting the family's application, Minister of Immigration John McCallum overturned the decision "on humanitarian and compassionate considerations" (Toronto Star 2016). My interest here is not with the happily-ever-after outcome but focuses on how the narrative developed by mainstream media in Canada framed the case. On August 12, 2016, for example, a Toronto Star editorial rejoiced at the news that the government had reversed its decision and that the Montoyas were coming back to Canada by noting how the story was "heading towards a happy ending, bringing back to Canada a family that has already shown it can be solid contributors to the country (emphasis added)." A similar argument had been presented few months earlier by Noel Sturgeon, Dean of the Faculty of Environmental Studies at York University, who urged CIC "to seek whatever flexibility they have to award Professor Montoya and his family permanent residency and avoid the loss of a respected professor (emphasis added)" (yFile 2016). While the decision of allowing the family to stay is indeed good news, it is unsettling that most of the rejoicing seems to revolve around the person of Felipe Montoya rather than Nico, thus reasserting that, should the government have remained steadfast in his refusal to admit the family, Canada would have suffered the loss of a valued professional. The implication is that the loss of Nico would have been not a loss at all for this country because individuals with disabilities are non-contributors to the Canadian economy and thus inherently unimportant and disposable.

The narrative presented by mainstream Canadian media was overall fairly consistent in emphasizing how counterproductive immigration law can be when its implementation might result in the loss of immigrants who would otherwise contribute substantially to the country as both taxpayers and holders of skills Canada badly needs. In the next section, by looking as some relatively recent court decisions, I show that this reading is not exclusive to the media but has also been validated by the judicial system. I consider this as evidence of the widespread acceptance of a neoliberal discourse across all sectors of Canadian society.

Judicial Endorsement of the Neoliberal Framework

As mentioned above, neoliberalism has dominated the political stage in Canada since the election of the Conservative government of Brian Mulroney in 1984, and the Liberal government of Jean Chretien, which came to power in 1993 (Allahwala, Boudreau, and Keil 2010). Subsequent governments have all conformed, to different degrees, to a neoliberal framework. The judicial system has also absorbed and committed itself to the same framework. In this section, I am going to illustrate how, in the specific case of immigrant applicants with disabilities, the judiciary has validated the neoliberal claim that economic productivity is at the core of the assessment regarding who can/cannot be admitted to Canada. The first example of this approach is found in Poste v. Canada (Minister of Citizenship and Immigration), a case that reached the Federal Court Trial Division in 1997. On that occasion, John Russell Poste submitted an application for judicial review of a decision denying permanent resident status to him and his family. A former Canadian citizen who lost his citizenship after moving to Australia in 1973, Mr. Poste had applied to return to Canada as permanent resident together with his family. The application was denied since the eldest son, Matthew, had a mental disability and the state had assessed him as an economic burden to the country. The applicant contested the decision as unreasonable in light of the fact that his wife was a nurse and could take care of the child, thus significantly reducing any costs Matthew might have incurred. Furthermore, being an Australian citizen, the son 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 visa officer had accepted without questioning the medical officers' opinion and rejected Mr. Poste's application by adducing as a reason the fact that Matthew was unlikely to ever become financially independent. Justice Cullen 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 … 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 (Poste v. Canada 1997).

Evidently the Judge thought important for the visa officer to take into account the economic benefits that would accrue to Canada in accepting two valuable professionals. This is in line with mainstream understanding of immigration as a tool meant to assist Canada economically and with neoliberal arguments that consider self-sufficiency (in this case as provided by the family) as a priority. In the state framing, while a disabled immigrant such as Matthew might be considered an economic burden if looked at individually, the assessment changes once the family nucleus is considered, especially if the other family members are going to be valuable assets for Canada.

The issue of economic self-sufficiency came up again in 2002 in Wong v. Canada (Minister of Citizenship and Immigration) when Ching Shin Henry Wong applied for judicial review of a decision by a visa officer denying his application for permanent residence under the self-employed category due to the fact that his daughter had moderate Down syndrome, a condition that again was assessed by the state to be economically burdensome for Canada. Wong had been refused two applications in 1994 and 1996, but had successfully applied for judicial review in the second instance. However, the medical officers had again reached the conclusion that the daughter was medically inadmissible. Wong contested the decision by arguing that family support had not been taken into account and that the family was willing to pay for all social services needed. 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 in the province selected by the applicant as place of residence and therefore the girl's admission was not going to cause excessive demand. 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 (Wong v. Canada 2002).

The court's conclusion in Wong v. Canada became a launching pad for similar lawsuits. It is however unclear whose interests were brought to the forefront in these cases. According to the Canada Health Act of 1985, Canadian citizens and permanent residents have the right to publicly funded coverage of visits to hospitals and doctors as well as to diagnostic services. 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. By allowing into Canada only those disabled immigrants who can cover their expenses, citizenship is reframed in accordance with market imperatives (Jayasuriya 2006). Canada and other countries that have embraced a neoliberal political discourse increasingly rely on a new concept of "consumer-citizen" (Larner 2000) that constructs subjects as de-racialized, de-gendered and de-classed, but not de-monetarized. Such a discourse is gradually eroding any understanding of citizenship as an inclusive status while replacing it with the idea of membership based on economic participation and competition. The concept of "citizen minus" comes out of this layering of citizenship on the basis of income, financial ability, and level of productivity. Citizens minus are those individuals lacking the attributes necessary to be considered full citizens. In the field of immigration, there is an urgent need to conduct a comprehensive investigation on the consequences of considering wealth as among the determining criteria for admission to the country, as it feeds into this layering of citizenship.

A few months after Wong won his appeal, David Hilewitz brought forward a related lawsuit. A citizen of South Africa, Hilewitz asked for judicial review of the visa officer's rejection of his application for permanent residency in the investor category. The application had been refused because his son Gavin was diagnosed with developmental delays and assessed by the state as inadmissible. Mr. Hilewitz argued that the visa officer's claim that Gavin was going to cause excessive demand on social services was incorrect since the family was wealthy enough to pay for any required service. The appeal was accepted. In response, 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 factors. In allowing the Minister's appeal, Justice Evans noted that,

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 (Hilewitz v. Canada 2003).

Even if non-medical factors were to be considered,

once admitted to Canada visa applicants … may relocate to a place where publicly funded social services are available without cost recovery … or where the services required are not available privately … Financial misfortune or some other unforeseen change of circumstance may also prevent the family from providing the material support for which they had planned (Hilewitz v. Canada 2003).

Justice Evans recognized that his interpretation of the law as mandating the medical officer to exclusively consider medical factors seemed 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:

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 (Hilewitz v. Canada 2003).

The court observed that the problem was preventable by recourse to a ministerial permit (now renamed Temporary Resident Permit) that functioned as a probationary admission. More importantly, it was Parliament's responsibility to find 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 demand on social services.

In 2002, in De Jong v. Canada (Minister of Citizenship and Immigration) the Federal Court Trial Division had adopted a similar approach. De Jong, a citizen of the Netherlands, applied for judicial review of the visa officer's rejection of his application for permanent residency in the self-employed category. The application was rejected because De Jong's dependant daughter had developmental delay and the state used the diagnosis to portray the girl as someone who could be expected to cause excessive demand on social services. The applicant argued that the visa officer 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 country, wealth was a factor to consider when assessing excessive demand on social services. Justice Pinard concluded that the distinction between health and social services was irrelevant when deciding on medical admissibility and 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 demand on health and social services, and therefore dismissed De Jong's appeal.

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. In rendering the court's judgment, Justice Abella held that both visa applicants had qualified for admission to Canada because of their assets. For that reason, it appeared "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" (Hilewitz v. Canada 2005; De Jong v. Canada 2005). The court noted that the initial legislation on the matter of immigration to Canada had allowed for 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," the 1976 Immigration Act introduced the "excessive demand" standard as a replacement to the wholesale rejection of prohibited classes. Justice Abella noted:

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 excessively burdening Canada's social services (Hilewitz v. Canada 2005; De Jong v. Canada 2005).

The refusal to consider an individual's ability and willingness to absorb these costs was deemed contrary to the original intent of the act. With his judgment, Abella validated Canada's ability to select immigrants on the basis of economic considerations.

Two of the judges in the panel, LeBel and Deschamps, dissented with the decision arguing that, "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" (Hilewitz v. Canada 2005; De Jong v. Canada 2005). While acknowledging the apparent incongruity of accepting immigrant applicants because of their assets but refusing to consider those same assets when determining excessive demand, 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 (Hilewitz v. Canada 2005; De Jong v. Canada 2005).

According to Justice Deschamps, the omission of wealth as one of the factors to consider was indicative of the will of Parliament:

Neither s. 38(1)(c) 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 … 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 (Hilewitz v. Canada 2005; De Jong v. Canada 2005).

The fact that the Immigration Act of 1976 and its successor, the 2001 Immigration and Refugee Protection Act, omitted any reference to wealth in the question of medical admissibility was likely due to Parliament's intention to protect the financial assets of the state from depletion.

The conclusion reached in 2005 by the Supreme Court in Hilewitz v. Canada and De Jong v. Canada sets a precedent by legally establishing that financial ability to pay for social services is important when assessing medical admissibility. It opens the doors to the assessment of immigrant applicants on the basis of 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. 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, it also sends a message to Canadians that 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 transform them into citizens minus. It should be a cause for concern when society reduces its members to mere producers and consumers, valuing them based on the money they have rather than the persons they are. It should be even more concerning when the judicial system validates such an argument. The neoliberal narrative embraced by Canada's courts is dangerous insofar as it contributes to legitimizing the replacement of the universal (at least on paper) concept of citizen with the one of consumer whose value is determined by the individual's buying power and ability to achieve self-sufficiency.

Conclusion

In this paper I have discussed the dangers inherent in adopting a neoliberal framework when assessing the value of persons with disabilities, particularly when the latter are foreigners trying to gain admission to Canada. My goal has been to demonstrate that the neoliberal approach to immigration and disability presented by the state has largely been uncritically embraced by two of the most powerful institutions within Canadian society: the press and the judicial system. By looking at newspapers' coverage of the Montoya case and at past court decisions related to similar cases, I have argued that neoliberalism has become a dominant lens in Canada to interpret the world and the role of human beings in it. In this conclusion, I suggest a different way to look at the world, one that considers people more than mere producers and consumers.

As Tanya Titchkosky (2007) points out, disability, marginalized within a neoliberal discourse that exclusively celebrates the independent self, can teach us the importance of nurturing alterity. The assumption that disability is necessarily a problem to be dealt with, shuts down the opportunity to understand the world as a place where difference resides and forecloses the benefits of learning and thriving from an alterity that, whether we like it or not, belongs in and to this world. When we adopt a neoliberal framework of understanding, we assert that "a citizen is constituted as one able to make an economic contribution" (168); persons with disabilities are automatically repositioned as those who can never achieve full citizenship because of faulty bodies and/or minds that prevent them from making such contribution. They are therefore inevitably relegated to the category of disposable, unworthy, redundant citizens minus.

While neoliberalism assumes that the ability to work and contribute economically is a precondition for full membership in society, I agree with Russell and Malhotra that "[a] radical disability perspective could offer great liberatory potential by proposing to abolish this notion and to offer counter-values to those of productivism" (2002, 223). If we hope to create an inclusive society, we must re-establish that employability, productivity, and economic contributions are not and can never be requirements for incorporation into humanity. A person's value should not be based on participation in waged labor (MacGregor 2012). Human life is worthy and valuable beyond employment status or economic potential. Work is not "a condition for membership of the human race" (233). Every person is valuable and has dignity as he/she teaches us a little more about this complicated and multifaceted world we live in. Nico Montoya's life does matter and is important, not because his parents are skilled professionals who can economically benefit Canada, but because life in all its forms has meaning. Nico should have been accepted into Canada not because of economic or humanitarian considerations but because his life is a testament to the wonderment of alterity and is therefore making a contribution to his family, his community, and society at large. That the Canadian government failed to grasp such a truth and decided instead to embrace the neoliberal narrative that celebrates productivity and employability, is a real shame. That the press and the judicial system validated the government's interpretation of who counts and who does not count, and is therefore disposable, in this society should be considered an even greater shame for the country and for all of us. It's the failure of a society too embroiled in its own petty economic calculations to open itself to the beauty of alterity.

Bibliography

Documents

  • Canada Health Act, Revised Statutes of Canada 1985, c. C-6.
  • De Jong v. Canada (Minister of Citizenship and Immigration). No. IMM-6058-99 (Federal Court Trial Division 2002).
  • De Jong v. Canada (Minister of Citizenship and Immigration). No. 30127 (Supreme Court of Canada 2005).
  • Hilewitz v. Canada (Minister of Citizenship and Immigration). No. IMM-5340-00 (Federal Court Trial Division 2002).
  • Hilewitz v. Canada (Minister of Citizenship and Immigration). No. A-560-02 (Federal Court of Appeal 2003).
  • Hilewitz v. Canada (Minister of Citizenship and Immigration). No. 30125 (Supreme Court of Canada 2005).
  • Immigration and Refugee Protection Act, Statutes of Canada 2001, c. 27.
  • Poste v. Canada (Minister of Citizenship and Immigration). No. IMM-4601-96 (Federal Court Trial Division 1997).
  • Wong v. Canada (Minister of Citizenship and Immigration). No. IMM-6060-99 (Federal Court Trial Division 2002).
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