Laidlow v The Minister of Citizenship and Immigration

(2012) FC 144
Download Judgment: English

The applicant was a citizen of Saint Vincent and the Grenadines who entered Canada on a visitor visa, and remained in Canada illegally after his visa had expired. During this time, he was hospitalized after losing his eyesight and memory. He was diagnosed with a benign tumor affecting his brain and pituitary gland. The tumor was surgically removed, but the applicant would require daily doses of certain medicines for the rest of his life, as well as occasional testing for the tumor’s recurrence. The applicant then filed a claim for refugee protection. He claimed that removal to St. Vincent would expose him to a risk of life, due to a lack of adequate medical supplies and treatment there. The applicant also filed an application for permanent residence based on humanitarian and compassionate grounds, which was outstanding at the time the case was heard.

The Refugee Protection Board (‘Board’) denied the applicant’s claim for refugee protection. The applicant filed for judicial review of the decision, and challenged the constitutionality of section 97(1)(b)(iv) of the Immigration and Refugee Protection Act (‘IRPA’) under the Canadian Charter of Rights and Freedoms (‘Charter’). Section 97(1)(b)(iv) of the IRPA states that a person does not need protection from a risk to their life if that risk is caused by their home country’s inability to provide adequate health or medical care. The applicant claimed this section violated his Charter rights under section 7 to “life, liberty and security of the person”, and section 15(1) to non-discrimination.

In this application, the central issue was whether s. 97(1)(b)(iv) of the IRPA violated ss. 7 and 15 of the Charter.

The Court dismissed the application for judicial review. The Court found the Board’s decision that (i) St. Vincent provided a fulsome health care system for its nationals without discrimination based on wealth or individual circumstances, and (ii) removal to St. Vincent did not expose the applicant to a risk of irreparable harm or death, to be reasonable and to take into account all relevant evidence.

The Court held that s. 97(1)(b)(iv) did not violate the applicant’s right to non-discrimination under s. 15(1) of the Charter as an individual or as a member of a particular class. The applicant would not be denied or face discrimination in the provision of medical treatment in St. Vincent. The Court also referred to Covarrubias v Canada, in which the Federal Court of Appeal dealt with Charter arguments relating to s. 97(1)(b)(iv) IRPA. In that case, the Court noted that removing the exclusion would require the Board to make a finding that another country’s public policy decision to not provide a certain level of health care was inadequate by Canadian standards.

The Court held that s. 97(1)(b)(iv) did not violate the applicant’s s. 7 Charter right. Again, on the facts, the Court held that a return to St. Vincent would not endanger the applicant’s life. The Court also found that s. 7 did not impose a positive obligation on the Board to adjourn its hearing until the determination of the application for permanent residency.

“The Board concluded, on the evidence that St. Vincent provides a fulsome, if not perfect, healh care system for its nationals and does not discriminate based on wealth or individual circumstances. I find that the Board, in its reasons, did take into account all relevant evidence.” (paras 17-18)

View full summary and print   |   Download summary as PDF