By Angus Grant
Canada has a laudable program for granting immigration status to people on humanitarian and compassionate grounds. What is not laudable, however, is the government’s insistence on charging an exorbitant fee to access the program. Many individuals most in need of humanitarian and compassionate relief are not able to access it because they simply do not have the $550-per-adult charged by the government.
Included in this category are minors, stateless people and individuals who, while not refugees in the narrow legal definition of the term, would nevertheless experience profound, wrenching hardship if sent back to their country. We’ll consider whether you deserve our compassion, we tell these people, but only if you pay up front.
In a decision released last week, the Supreme Court of Canada has refused to hear a challenge to this catch-22 of an immigration program. The case, Toussaint v. Canada, involves the question of whether the immigration minister has the obligation to consider waiving the fee charged for humanitarian and compassionate applications in appropriate cases.
The immigration department regularly points to its humanitarian program as being the main way Canada complies with its international obligations. Yet the very program created by the government to ensure that people do not slip between the cracks contains a gaping crevice through which low-income people regularly fall.
Ironically, the matter went up to the Supreme Court after the person involved, Nell Toussaint, won her case at the Federal Court of Appeal. That court found that under the law as it stood at the time, the minister had to consider her request to waive the application fee.
Unfortunately, in the middle of the litigation, and in an end run around it, the government amended the immigration legislation to categorically bar fee waivers, except on the minister’s own initiative. This legislative sleight of hand had the effect of eliminating any impact of the Court of Appeal’s decision. As a result, Ms. Toussaint appealed the matter to the Supreme Court to get a determination on whether she had a constitutional right of access to the humanitarian program, a proposition the Court of Appeal had rejected.
Leaving aside the dubious practice of charging for decisions that are supposed to be made on compassionate grounds, the case also raised an important legal issue. Put simply, the issue is whether Canadian public institutions are permitted to discriminate against people based on their income.
Prior to the Supreme Court’s decision not to hear the case, there had been a significant level of judicial disagreement on the question of whether the Canadian Charter of Rights and Freedoms prohibits poverty-based discrimination, in the same way that it explicitly prohibits discrimination based on other grounds such as race or religion.
The Supreme Court does not explain why it refuses to hear cases, but regardless of its reasons, the decision is a blow for poor and undocumented people seeking a reasoned consideration of this issue by our highest court.
Poor people and their advocates have been trying for years to get the courts to recognize what social science has already clearly established: that poverty is more than just being cash poor—it is a stigmatized social condition that for many is simply impossible to escape. And yet, government lawyers argued in the case that poverty-based discrimination should not be covered under the Charter because, unlike other protected categories, it is not an unchangeable personal characteristic.
The argument is based on the outdated notion that discrimination can only arise from mistreatment directed at people because of their innate or ’immutable’ characteristics. You can’t complain about discrimination based on poverty, the argument goes, because tomorrow you might be rich.
In other contexts, the courts have rejected this narrow interpretation of discrimination, finding for example, that marital status is a ground of discrimination that benefits from Charter protection. As we know all too well, marital status is a decidedly fluid personal characteristic, particularly when viewed alongside research on the enduring nature of poverty.
Several years ago, the courts determined that there is a constitutional right to access the court system that cannot be infringed through the charging of a fee. Of interest, the case that established this rule related to a $50 filing fee in small claims court.
Without diminishing the importance of the small claims court process, Ms. Toussaint argued in her appeal that, at the very least, she should benefit from the same right of access in relation to her immigration application, given the fundamental impact it would have on her life. The refusal of the Supreme Court to hear the case would seem to indicate that this constitutional right of access does not extend to administrative procedures, even if they may have a profound impact on the lives of those involved.
Aside from the question of whether poor people should have the right to have their humanitarian and compassionate applications considered, the case highlighted another key access-to-justice issue relating to the ability of poor people to go to court to assert their rights. It is almost insurmountably difficult for those living in poverty to engage in the prolonged and costly process of taking to court a Charter-based claim for protection. The decision of the Supreme Court last week represented the culmination of several years worth of litigation, funded in large part by the now cancelled Court Challenges Program.
The court’s refusal to hear the case was disappointing. But even more troubling is the question of how such cases will be brought to the court’s attention in the future.