Toussaint v Canada

2011 FCA 213
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HEADNOTE

The appellant was a citizen of Grenada that held illegal immigration status in Canada. After experiencing deteriorating health, she tried to access the Interim Federal Health Program, a program established under Order-in-Council 1957-11/848 that provides emergency medical coverage to low-income immigrants. However, she was refused medical coverage. The Court held that the appellant was ineligible to receive medical coverage under the Order, and the Order did not infringe the appellant’s s. 7 or s. 15 rights under the Canadian Charter of Rights and Freedoms despite her lack of access to health-care and medicine.

FACTUAL AND PROCEDURAL BACKGROUND

The appellant, Toussaint, is a citizen of Grenada that entered Canada in 1999 as a visitor. She continued to stay in Canada after her legal status as a visitor expired. In 2006, the appellant required medical attention as her health began to deteriorate and continues to require medical care. In 2008, she applied for permanent residence status and for a temporary residence permit through Citizenship and Immigration Canada so she could be eligible for coverage under the Ontario Health Insurance Program. She requested a waiver of fees for her applications but was subsequently refused. Her fees remained unpaid so her applications were never considered. In 2009, the appellant applied for medical coverage under the Interim Federal Health Program (IFHP) run by Citizenship and Immigration Canada and established under Order-in-Council 1957-11/848. The IFHP is a program that covers emergency medical costs for low-income legal immigrants during the immigration process. Citizenship and Immigration Canada refused her application for medical coverage on the basis that the appellant had not provided any evidence that she fell into one of the categories of recipients that the IFHP served.
The appellant brought an application for judicial review to the Federal Court, claiming that she was in fact eligible for medical coverage under the Order-in-Council, and in the alternative the refusal of her application infringed her rights under s. 7 and s. 15(1) of the Charter despite the fact that she remained in Canada contrary to immigration laws. The Federal Court held that the appellant was ineligible to receive medical coverage under the Order-in-Council, and the Order should not be read to provide the appellant with medical coverage based on her s. 7 and s. 15 Charter rights. Her application was dismissed. The appellant then appealed to the Federal Court of Appeal.
RELEVANT LEGAL PROVISIONS
Order-in-Council P.C. 1957-11/848 (repealed)
The Board recommends that Order-in-Council P.C. 4/3263 of June 6, 1952, be revoked and that the Department of National Health and Welfare be authorized to pay the costs of medical and dental care, hospitalization, and any expenses incidental thereto, on behalf of:
(a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment, and
(b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer,
in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the immigration Medical Services of the Department of National Health and Welfare.
Section 7 of the Canadian Charter of Rights and Freedoms
s.7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 15 of the Canadian Charter of Rights and Freedoms
s. 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The court held that the appellant was ineligible to receive medical coverage under the Order-in-Council. The court found that for someone to qualify under the Order-in-Council paragraph (a), they had to have been applying for permanent residence by the time they arrive in Canada. The Order-in-Council was not meant to establish a medical coverage program for those who had already arrived in Canada. The court further found that for someone to qualify under paragraph (b) by being “subject to Immigration jurisdiction”, a person must have sought immigration status before or upon entry to Canada and must have been referred to treatment by the immigration authority the prospective immigrant encounters at the port of entry. The court held that the appellant failed both conditions because she was not admitted into Canada as an applicant for permanent residence, nor was she subject to Immigration jurisdiction or referred to treatment by an immigration authority. Her status was simply as a visitor that had overstayed and thus was remaining illegally in Canada. Medical coverage was not intended to extend to these parties under the Order-in-Council.
The Court held that the applicant’s s. 7 rights to life, liberty and security of person were not violated. The Court upheld the Federal Court’s factual finding that the appellant was exposed to a significant risk to life and health due to her serious medical condition and lack of access to health care and medicine caused by her lack of medical coverage, and therefore s. 7 was triggered. But the appellant failed to prove that the Order-in-Council was the operative cause of the injury to her s. 7 rights. The Court found the appellant’s decisions to enter Canada as a visitor, stay in Canada for several years illegally and not pursue legal immigration status (which would have provided her medical coverage) were the cause of her endangered life and health. Further, the Court held that any deprivation was not contrary to the principles of fundamental justice and therefore s. 7 was not infringed. S. 7 does not require the government to provide access to health care to everyone within the country. The Charter does not provide a constitutional right to health care; this is not a principle of fundamental justice.

The Court held that the applicant’s s. 15 rights were not infringed. The Court agreed with the reasoning of the Federal Court that the Order did not make a distinction based on an enumerated or analogous ground. The Order provided potential coverage and access to health-care to all persons regardless of immigration status. The Court further reasoned that the Order did not perpetuate prejudice or stereotyping; the eligibility criteria treated the appellant in the same way as all Canadian citizens. Furthermore, the exclusion of the appellant from funding and access to health-care was not discriminatory; the program was meant to fund and provide emergency health-care only to legal entrants or to those whom immigration authorities felt responsible for. Excluding the appellant was not discrimination, but an “anticipated feature” of the program.

Para 40: “The [Immigrant Federal Health Program enacted through the Order of Council] could not have been intended to pay the medical expenses of those who arrive as visitors but remain illegally in Canada and who, after the better part of a decade of living illegally in Canada, suddenly choose to try to regularize their immigration status. Coverage for those persons would be against the whole tenor of the Order in Council, the history of the Order in Council, and the Minister’s stated rationale”

Para 65-66: “Also before the Federal Court was expert medical evidence. Overall, this evidence, accepted by the Federal Court, suggested that […] ‘[if the appellant] were to not receive timely and appropriate health care and medications in the future, she would be at very high risk of immediate death (due to recurrent blood clots and pulmonary embolism), severe medium-term complications (such as kidney failure and subsequent requirement for dialysis), and other long-term complications of poorly-controlled diabetes and hypertension (such as blindness, foot ulcers, leg amputation, heart attack, and stroke).’ Given this evidence, and bearing in mind the deferential standard of review that must be applied to the Federal Court’s findings of fact, I would not give effect to the respondent’s submission that the Federal Court erred in finding that the appellant was exposed to serious health risks.”

Para 67-68: “As mentioned above, based on this evidence, the Federal Court found that the Order in Council created a risk to the appellant. That is true in the sense that if the Order in Council were broader and provided her with all of the treatment and medication she needs, all risk would be averted. But that is not sufficient legally to demonstrate that the Order in Council has caused injury to the appellant’s rights to life and security of the person. It is incumbent on the appellant to establish that the failure of the Order in Council to provide medical coverage to her is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter.”

Para 76-77: “At the root of the appellant’s submission are assertions that the principles of fundamental justice under section 7 of the Charter require our governments to provide access to health care to everyone inside our borders, and that access cannot be denied, even to those defying our
immigration laws, even if we wish to discourage defiance of our immigration laws. I reject these
assertions. They are no part of our law or practice, and they never have been. The Charter does not confer a freestanding constitutional right to health care.”

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