Gavin Hilewitz was the sort of immigrant Canada loves to attract -- an enthusiastic 22-year-old, possessed of a sunny temperament, a keen interest in computers and parents worth at least $5-million.
Just one detail stood in the way of the South African man's bid to become a Canadian: Gavin was mildly retarded. He was barred from immigrating lest he become an "excessive" drain on Canada's social services network, and the Hilewitz family's appeal of that decision reaches the Supreme Court of Canada tomorrow.
The case raises several questions that are as prickly as they are legally compelling. Are disabled people akin to damaged goods, capable of being rejected because they were not born in perfect condition? Should the wealthy be allowed to buy their way into Canada, when those of moderate means would be turned away?
In the Hilewitz case, even a promise by Gavin's parents to pay privately for special services was not enough. Officials said they were bound by a provision Parliament passed in 1976 preventing them from considering the factor of private wealth.
A companion case the Supreme Court is scheduled to hear tomorrow offers a slightly different twist on the same theme. The appellants -- a Dutch family, the de Jongs -- have a mildly retarded daughter, Dirkje.
Unlike the Hilewitz family, however, the de Jongs did not promise immigration authorities they would pay out of their own pockets for special education. They instead offered assurances that a school run by a Southern Ontario branch of their Christian denomination would provide Dirkje's special education at no expense to the public.
They, too, were denied permanent residency under the "excessive demands" provision.
Lawyers for both the federal government and the two families aim to tap into different values the current Supreme Court bench has frequently espoused in recent years. The families will appeal to the court's willingness to come to the aid of vulnerable groups. Federal lawyers, on the other hand, will play strongly to the court's recent pattern of declining to interfere in the way social programs are administered by government.
"Parliament alone should decide how to balance the objective of promoting immigration to Canada by persons willing to contribute to this country, with the responsibility of protecting the finite resources available in Canada's public health care system," says a legal brief written by federal lawyers Michael Morris and Urszula Kaczmarczyk.
The federal lawyers also warn that it is easy for immigrants to promise to pay privately for special social services, but once they are in the country, there is nothing to stop them from reneging on their commitment.
Nor, the federal brief states, can immigration officials be expected to fully research the availability of private social services in different regions of Canada, or to predict how long a disabled immigrant may need specific services.
The case has attracted two legal intervenors -- the Canadian Association for Community Living and the Ethno-Racial People with Disabilities Coalition of Ontario -- who argue that the "excessive demands" provision devalues those who have disabilities.
Michael Bach, executive director of CACL, said officials have far too much leeway to reject prospective Canadians based on offensive stereotypes.
In an interview, Mr. Bach said it is an equally grave mistake to place undue emphasis on wealth when assessing prospective immigrants. The most important pillars of support for a disabled person are those supplied by their family or community, he said. "I wouldn't want to see a judgment that says: 'Yes, let's consider financial support, but not family or personal support,' " Mr. Bach said.
The association's brief, written by lawyers Ena Chadha and Dianne Wintermute, notes that the contentious provision sends a message to all Canadians "that persons with disabilities are to be screened out as inferior, second-class members of society."
It also argues that if prospective immigrants are to be rejected based on the extra drain they may place on Canadian health and social services, then heavy smokers and unsafe drivers should be barred as well. It says that the rejection of those with defects is part a lingering attitude that denies the opportunities and services to a vulnerable group.