Date: 20110627
Docket: A-362-10
Citation: 2011 FCA 213
CORAM: BLAIS
C.J.
NADON
J.A.
STRATAS
J.A.
BETWEEN:
NELL TOUSSAINT
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
THE CANADIAN CIVIL LIBERTIES ASSOCIATION
Intervener
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The
applicant is a citizen of Grenada. In 1999, she entered Canada as a visitor. She never left.
She has stayed in Canada, contrary to Canada’s
immigration laws.
[2]
For her
first seven years in Canada, the appellant worked and
earned enough to sustain herself. However, in 2006, her health began to
deteriorate. She could no longer work.
[3]
Since
2006, the appellant has received some medical care without having to pay for
it, but much more medical care is required. Her medical condition has become
most serious.
[4]
In
September 2008, still in Canada contrary to Canada’s
immigration laws, the appellant took steps to try to regularize her status in Canada. She applied to Citizenship
and Immigration Canada for permanent residence status. A few months later, she
applied to Citizenship and Immigration Canada for a temporary residence permit
so she could become eligible for health coverage under the Ontario Health
Insurance Program. In both applications, she asked for a waiver of the fees.
The waivers were refused, the fees remained unpaid, and so the applications
were never considered.
[5]
In May
2009, the appellant applied to Citizenship and Immigration Canada for medical
coverage under its Interim Federal Health Program. As we shall see, this
Program is actually embodied in one of Canada’s immigration laws, Order in Council OIC
1957-11/848. Under this Order in Council, Citizenship and Immigration Canada
covers the cost of emergency medical care for indigent persons that it has
legally admitted to Canada.
[6]
A Director
with Citizenship and Immigration Canada found that the appellant was ineligible
to receive medical coverage and rejected her application.
[7]
The
appellant brought an application for judicial review to the Federal Court, submitting
that she was eligible for medical coverage. In the alternative, she submitted that
her exclusion from medical coverage infringed her rights under sections 7 and
15 of the Charter. She requested the Federal Court to “read” the Order in
Council as including her – in effect, to make this law compliant with sections
7 and 15 of the Charter by extending its terms to provide her with medical
coverage.
[8]
If the
Federal Court accepted the appellant’s request, the curiosity of some might be
piqued: even though the appellant has disregarded Canada’s immigration laws for
the better part of a decade, she would be able to take one of Canada’s
immigration laws (the Order in Council), get a court to include her by extending
the scope of that law, and then benefit from that extension while remaining in
Canada contrary to Canada’s immigration laws.
[9]
But the
Federal Court (per Justice Zinn) did not accept the appellant’s request
to extend the scope of the Order in Council. It rejected her submissions and
dismissed the application for judicial review: 2010 FC 810 (main decision) and 2010 FC 926 (decision
on motion for reconsideration).
[10]
The
appellant appeals to this Court, making submissions substantially similar to
those that were made in the Federal Court.
[11]
I also
reject the appellant’s submissions and would dismiss the appeal.
A. The Order in Council
[12]
Order in
Council OIC 1957-11/848, passed on June 20, 1957, provides as follows:
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 National Health and Welfare.
B. The Director’s decision
[13]
The
decision-maker on the appellant’s application to Citizenship and Immigration
Canada for medical coverage was the Director, Program Management and Control, Health
Management Branch.
[14]
As
mentioned above, the Director denied the appellant medical coverage. The
Director’s decision is as follows:
Health care services are provided by the
Provinces and Territories. As such, access or denial to health care rests with
those Provincial and Territorial authorities, in this case the Province of Ontario.
The Interim Federal Health Program is an
interim measure to provide emergency and essential health care coverage to
eligible individuals who do not qualify for private or public health coverage
and who demonstrate financial need. IFHP services aim to serve individuals in
the following four groups of recipients:
● Refugee claimants;
● Resettled Refugees;
● Persons
detained under the Immigration and Refugee Protection Act (IRPA); and,
● Victims of Trafficking
in Persons (VTIPs).
As you have not provided any information
to demonstrate that your client falls into any of the above-mentioned
categories, I regret to inform you that your request for IFHP coverage cannot
be approved.
Please be advised that your client has no
active immigration application with Citizenship and Immigration Canada (CIC).
C. The standard of review
applicable to the Director’s decision
[15]
As
mentioned above, the appellant applied to the Federal Court for judicial review
of the Director’s decision.
[16]
The
Federal Court did not explicitly select a standard of review for its
consideration of the Director’s decision. However, it did find, in effect on a
correctness standard, that the appellant did not qualify for medical coverage.
[17]
The first
step in determining the standard of review is to appreciate the nature of the
decision in issue. As mentioned at the outset, the Interim Federal Health
Program mentioned by the Director is embodied in an Order in Council (P.C.
157-11/848) and the decision-maker is a delegate of the Minister of Citizenship
and Immigration Canada. In effect, we are reviewing the legal interpretation
and application of an Order in Council by a delegate of the Minister.
[18]
The
Supreme Court has told us that the standard of review will “usually” or
“normally” be reasonableness where “a tribunal” is interpreting its “own statute” or “statutes
closely connected to its function, with which it will have particular
familiarity”: 2008 SCC 9 at paragraph 54, [2008]
1 S.C.R. 190; Celgene Corp. v. Canada (A.G.), 2011 SCC 1 at
paragraph 34, 327 D.L.R. (4th) 513; Smith v. Alliance Pipeline Ltd.,
2011 SCC 7 at paragraph 26, 328 D.L.R. (4th) 1.
[19]
I am
inclined to find that the Director is subject to this “normal” or “usual”
position of deference to his decision-making. But there exists considerable
uncertainty on this, arising from Dunsmuir itself, previous case law,
and the unusual circumstances of this case:
(a) We
are dealing with a Ministerial delegate, not a “tribunal” in any formal sense. In
Dunsmuir the Supreme Court used the word “tribunal” on this point. In my
view, although it is not perfectly clear, in Dunsmuir the Supreme Court did
not intend to restrict this position of deference to interpretations by formal
tribunals. Throughout its discussion of the standard of review, the Supreme
Court used the terms “tribunal,” “decision maker,” “exercises of public
authority,” “administrative
bodies,” “adjudicative tribunal,” “adjudicative bodies,” “administrative
tribunal,” and “administrative actors”: Dunsmuir, supra at paragraphs 28-29, 31, 33,
41, 47-50, 52, 54-56, and 59. It seems to have used the terms interchangeably
and, collectively, they are wide enough to embrace a Ministerial delegate such
as the Director.
(b) In a
relatively recent decision, albeit before Dunsmuir, the Supreme Court
did not defer to the interpretation of a Ministerial delegate who was
interpreting a statute closely related to his function: Hilewitz v. Canada
(Minister of Citizenship and Immigration); De Jong v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, (a visa
officer making an assessment under subparagraph 19(1)(a)(ii) of the Immigration
Act, R.S.C. 1985, c. I‑2); see also Canada (Minister of
Citizenship and Immigration) v. Patel, 2011 FCA 187 and cases cited at
paragraph 27 of Patel. This is certainly consistent with how we today
approach decisions involving some other Ministerial delegates. For example, in
the income tax context, income tax assessors – Ministerial delegates – are very
familiar with the Income Tax Act. One might think that the normal
administrative law standard of review analysis would apply to appeals of these administrators,
with deference to their legal interpretations being the result: see, e.g.,
Canada (Director of Investigation and
Research) v. Southam Inc.,
[1997] 1 S.C.R. 748 and Dunsmuir, supra at paragraph 54. But it
does not. The Tax Court of Canada, sitting in appeal on income tax assessments,
and this Court do not defer at all to the statutory interpretations of the
Minister’s delegate.
(c) The
Supreme Court spoke in Dunsmuir of deference to interpretations of
certain types of “statutes.” Did it mean to restrict this principle to
“statutes”? There would appear to be no principled basis to do so. Deference
probably also applies to interpretations of other types of laws, such as the
Order in Council in this case.
(d) The
Director’s title seems to suggest that he administers programs such as this,
and so he could be considered to be interpreting what Dunsmuir described
as a law “closely connected with [his] function,” warranting our deference. But
there is no evidence in the record on this one way or the other, nor would one
expect there to be such evidence given the narrow nature of a record on
judicial review.
(e) The
position of deference for administrative interpretations of statutes is said in
Dunsmuir to apply only “usually” or “normally.” Does this qualification
refer to the situations mentioned in Dunsmuir where the correctness
standard applies? Perhaps not, as these situations largely do not involve
issues of statutory interpretation. Does this qualification refer to some as yet
unidentified situations? We simply do not know.
(f) In this
particular case, as we shall see, the Director did not engage in any actual
interpretation of the Order in Council. Rather, he simply interpreted and
applied an administrative policy made under that Order in Council. Does this
mean that the Director’s decision is subject to correctness review? I am not so
sure. There are statements in Dunsmuir that suggest that the Director’s
failure to interpret the Order in Council may not matter. In two places in Dunsmuir,
the Supreme Court suggests that in assessing the substance of decision-making under
the reasonableness standard we are to examine the outcome reached by the
decision-maker and not necessarily the plausibility of the reasons actually given.
At paragraph 47, we are directed to ask ourselves “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” and at paragraph 48 we are told that an
administrative decision can be supported on the basis of reasons that “could
[have] be[en] offered” [emphasis added].
(g) I
am not alone in my doubts on this issue. Recently, this Court discussed Dunsmuir
and the standard of review that should apply to the Governor in Council’s
interpretation of a statute. It found the law in this area to be unclear: Global
Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194 at paragraph
35.
[20]
Fortunately,
on the facts of this case, I need not decide whether the standard of review is
correctness or the deferential standard of reasonableness. Regardless of the
standard of review, the Director’s decision passes muster: as the Director
found, the appellant was not entitled to receive medical coverage in this case.
D. The Federal Court’s
conclusions concerning the decision of the Director
[21]
The
Federal Court found that the Director fettered his discretion by following a
departmental guideline instead of interpreting the actual wording of the Order
in Council. In its view, the Director was entitled to read and consider the
departmental guideline but should have interpreted the actual wording of the Order
in Council, the law that governed his discretion.
[22]
However,
the Federal Court held that this was immaterial: if the Director had regard to
the Order in Council, he would have had to rule that the appellant was not
entitled to receive coverage. Therefore, the Director’s decision could stand.
[23]
For the
purposes of this appeal, the Federal Court’s bottom-line conclusion was that
the appellant was ineligible under the Order in Council to receive medical
coverage.
E. Assessment of the
Federal Court’s decision that the appellant was ineligible to receive medical
coverage under the Order in Council
(1) Introduction
and overview
[24]
In my
view, the Federal Court’s bottom line conclusion is correct: the appellant was
ineligible to receive medical coverage under the Order in Council.
[25]
In
reaching its conclusion, the Federal Court relied upon the plain meaning of the
words in the Order in Council. It examined the history behind the Order in
Council in order to see if there was some special significance behind some of
the wording used in it.
[26]
The
Federal Court also placed particular emphasis upon a rationale offered by the
Minister of National Health and Welfare for the Order in Council in 1957: see
the Federal Court’s reasons at paragraph 44. I agree with the Federal Court’s
view that the Minister’s rationale was an important clue as to the intended
scope of the Order in Council. It was right to place particular emphasis on it.
[27]
The
Minister’s rationale was as follows:
THAT on occasion persons are referred for
medical and hospital treatment during the time they are thought to be under the
jurisdiction of the Immigration authorities but before it is possible to
satisfactorily determine their status as immigrants as defined in the
Immigration Act, and because of the urgent nature of the disabling condition,
treatment cannot be prudently postponed until their exact status has been
completely established.
THAT in other instances persons who other
than immigrants as defined who are temporarily under the jurisdiction of the
Immigration authorities become urgently in need of medical care or hospital
treatment, and at the time it is not humanely possible to defer medical action
until the determination of who, if any third party, is financially responsible
for the cost of such action;
THAT it is considered to be in the public
interest and necessary for the maintenance of good public relations between the
two Federal Departments concerned and the large number of individuals,
societies and other agencies who work closely in association with these
Departments during the ordinary course of Immigration operations, that the
existing authority which is restrictive by reason of the term “immigrant” and
also by reason of the conditions of “time” which are applied, be changed to
permit the Department of National Health and Welfare to render the necessary
medical assistance in these instances;
THAT both Departments undertake to
administer this authority in such a way as to confine its use to those
occasions only when circumstances render it the best course of action in the
public interest, and only when humane interests more or less obligate the
Departments to accept the responsibility;…
[28]
The
Federal Court’s overall conclusion was as follows (at paragraph 51):
Properly interpreted, Order-in-Council
P.C. 157-11/848 does not apply to the applicant and she is not eligible for
[Program] coverage. The applicant is not an “immigrant” in the sense that she
is applying for permanent residence in Canada. The applicant is not temporarily under
the jurisdiction of immigration authorities. Nor does the applicant fall into
one of the narrow, well-defined categories for which immigration authorities
feel responsible.
[29]
I agree
with the general thrust of the conclusion in this passage. But I wish to
amplify and clarify it somewhat. This is needed because parties might interpret
this passage in future cases to ascribe to the Order in Council a scope of
medical coverage greater than is warranted by its terms.
[30]
As is seen
from the text of the Order in Council quoted above at paragraph 12, the Order
in Council contains two paragraphs, (a) and (b). Each of these sets out certain
eligibility criteria. In addition to satisfying the eligibility criteria in
paragraphs (a) or (b), a claimant must also “[lack] the financial resources to
pay [the medical] expenses.”
(2) Paragraph (a) of
the Order in Council
[31]
Paragraph
(a) of the Order in Council provides as follows:
(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…
[32]
The Order
in Council does not define “immigrant.” However, the term “immigrant” was
defined in The Immigration Act, S.C. 1952, c. 42, subsection 2(i)
as “a person who seeks admission to Canada
for permanent residence.”
[33]
Definitions
of terms in statutes apply to terms contained in
orders made under them: Interpretation Act, R.S.C. 1952, c. 158, section
38. It is not clear from the Order in Council whether it was made under
the Immigration Act. But, in my view, the definition of “immigrant” in
the Immigration Act sheds light on the meaning of that term in the Order
in Council given that its subject-matter is related to immigration. I also note
that the Minister of Health and Welfare, when offering a rationale for the
Order in Council and in discussing its intended scope of coverage, referred to
“immigrants as defined,” which must be taken to be “immigrants” as defined
under the Immigration Act as it stood at that time: see paragraph 27, above.
[34]
In my
view, only those who seek admission to Canada for permanent residence on or
before entry to Canada fall under paragraph (a).
Paragraph (a) uses the term “immigrant,” meaning “a person who seeks admission
to Canada for permanent residence,” and
the express wording of paragraph (a) shows that person seeking permanent
residence must satisfy one of two conditions:
(i)
The person
seeking admission to Canada for permanent residence was
“admitted at a port of entry” but has not “[arrived] at destination,” i.e.,
is in transit between entry and destination, or
(ii)
The person
seeking admission to Canada for permanent residence is
receiving “care and maintenance pending placement in employment.” A fair
reading of the Order in Council is that the “care and maintenance” is at the
direction of the immigration authorities who met the person upon entry to Canada. In my view, this is a fair
reading in light of the history of the Order in Council, reviewed by the
Federal Court at paragraphs 30-37, which shows that this medical coverage
program was always focused on those entering Canada for the first time, not on those who had
already arrived in Canada.
[35]
The
appellant does not qualify under either of these conditions. She was not
admitted into Canada as an applicant for permanent
residence. She was not in transit between entry and destination. The
immigration authorities did not direct her “care and maintenance pending
placement in employment.” The appellant was simply a visitor who decided to
remain in Canada, contrary to Canada’s immigration law.
(3) Paragraph (b) of
the Order in Council
[36]
Paragraph
(b) of the Order in Council provides as follows:
(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…
[37]
Paragraph
(b) refers to “a person,” not an “immigrant,” the term used in paragraph (a).
As a result, paragraph (b) covers more than those seeking permanent residence
in Canada.
[38]
One
requirement that must be met under paragraph (b) is that the person is “subject
to Immigration jurisdiction” or is a person “for whom the Immigration
authorities feel responsible.”
[39]
At
paragraph 46-50 of its reasons, the Federal Court interpreted these phrases in
light of their plain wording and the rationale offered by the Minister of
National Health and Welfare for the Order in Council in 1957, excerpts of which
are reproduced at paragraph 27, above. The Federal Court held (at paragraph 49)
that those “subject to Immigration jurisdiction” are:
…those persons who are passing through a
port of entry and thus subject to the jurisdiction of the Immigration
authorities, those persons whose status is being processed by the Immigration
authorities, and those persons under detention and in the custody of the
Immigration authorities. Persons temporarily under the jurisdiction of the
Immigration authorities would also include refugee claimants…
I agree with this conclusion and the reasons the Federal
Court offered in support of it (at paragraphs 46-50).
[40]
However,
by way of clarification, “those persons whose status is being processed by the
Immigration authorities” must mean a person who sought that status before or
upon entry to Canada. The Program 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.
[41]
Paragraph
(b) contains another requirement, expressed in the phrase “and who has been
referred for examination and/or treatment by an authorized Immigration
officer.” Does that phrase apply only to those who “[have] been referred for
examination and/or treatment by an authorized Immigration officer”? Or does it
apply both to those who “[have] been referred for examination and/or treatment
by an authorized Immigration officer” and to those who are “subject to
Immigration jurisdiction”?
[42]
In my
view, the latter must be the correct interpretation: all those qualified under
paragraph (b) must have been “referred for examination and/or treatment by an
authorized Immigration officer.”
[43]
This
interpretation is supported by the rationale offered by the Minister of
National Health and Welfare for the Order in Council in 1957: see paragraph 27,
above.
[44]
Finally,
it must be remembered that in 1957, when the Order in Council was passed, Canada did not have a
government-administered medicare scheme. Canadians were obligated to pay for
their own health care or arrange for insurance coverage. Given that historical
context, it does not make sense that all those “subject to Immigration
jurisdiction” would have emergency medical coverage courtesy of the state, even
if not specifically “referred for examination and/or treatment by an authorized
Immigration officer”. I would add that there is no evidence before the Court to
suggest that paragraph (b) was ever interpreted in that way.
[45]
Given this
interpretation, the appellant does not qualify under paragraph (b). Upon entry
to Canada, she did not claim a status
other than visitor and the Immigration authorities were not processing any
other status. She was not in the custody of the Immigration authorities, nor
was she a refugee claimant. At no time was she “referred for examination and/or
treatment by an authorized Immigration officer.” At no time did the
“Immigration authorities feel responsible” for her. The appellant was just a
visitor who decided to remain in Canada, contrary to Canada’s immigration law.
[46]
For the
foregoing reasons, I find that the appellant was ineligible to receive medical
coverage under the Order in Council. Therefore, the Director was correct in
deciding to deny the appellant medical coverage and the Federal Court was
correct in upholding the Director’s decision.
F. Are the appellant’s
rights under sections 7 and 15 of the Charter infringed?
(1) A preliminary
observation
[47]
The appellant
raised the constitutional issues for the first time in her application for
judicial review in the Federal Court and filed her evidence on those issues in
that Court. Before the Director, she did not raise the constitutional issues or
offer evidence on those issues.
[48]
Sometimes
this is a fatal flaw that prevents the reviewing court from considering the
constitutional issue on judicial review: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec
(Attorney General), 2005 SCC 16 at paragraphs 38-40, [2005] 1 S.C.R. 257.
[49]
In this
case, however, the objection would not lie if the Director did not have the
jurisdiction to decide the constitutional issues: Okwuobi, supra,
at paragraphs 28-34 and 38; Nova
Scotia
(Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. In that circumstance, the
Federal Court would be the first place where the constitutional issues could be
determined.
[50]
The point
was not argued before us and, given my ultimate disposition of the
constitutional issues, I need not decide whether the objection lies in this
case.
(2) The standard of review
[51]
What is the
standard of review of the Federal Court’s decision on the constitutional
issues? Since the Director did not consider the constitutional issues, we must
look to the law concerning appellate standards of review, not administrative
law standards of review.
[52]
The normal
rule on appeals is that on pure questions of law or questions of mixed fact and
law where the law predominates or is “extricable”, the standard of review is
correctness. On questions of fact, or questions of mixed fact and law that are
primarily factual in nature, the standard of review is palpable and overriding
error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L.
v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401.
[53]
On occasion,
the Supreme Court has stated that the appellate standard of review on decisions
in constitutional cases is correctness and has used language to suggest that
there can be no deference on any question, factual or legal, in a
constitutional case: see, e.g., Doucet-Boudreau v. Nova Scotia (Minister
of Education), 2003
SCC 62 at paragraph 36, [2003] 3 S.C.R. 3 (“[d]eference ends, however, where the constitutional
rights that the courts are charged with protecting begin”).
[54]
I do not take
these statements to mean that in a constitutional case an appellate court can
readily interfere with factual findings and exercises of discretion that are
heavily suffused with facts. There are many Supreme Court decisions that
confirm that deference on such matters is still warranted: see, e.g., Lake v. Canada (Minister of
Justice), [2008] 1 S.C.R. 761 at paragraph 34, 2008
SCC 23; R. v. Buhay, [2003]
1 S.C.R. 631 at
paragraphs 44-45, 2003 SCC 30;
R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 68; R. v. Belnavis,
[1997] 3 S.C.R. 341; Dagenais v. Canadian Broadcasting Corporation,
[1994] 3 S.C.R. 835 at paragraphs 188-189.
[55]
In other
words, the normal appellate standards of review discussed in Housen and H.L.
apply in constitutional cases. However, as a practical matter, it is fair to
say that correctness review probably happens more frequently in constitutional
appeals because of the centrality of the legal issues in such appeals, and the fact
that questions of constitutional law are often extricable from the questions of
mixed fact and law that arise.
(3) Section 7 of the Charter
[56]
In the Federal
Court and in this Court, the appellant submits that her exclusion from medical
coverage under the Order in Council infringes her section 7 rights to life and
security of the person and her right not to be deprived thereof except in
accordance with the principles of fundamental justice.
(a) Rights
to life and security of the person
[57]
The
Federal Court found that the appellant’s rights to life and security of the
person under section 7 of the Charter were infringed (at paragraph 91):
The evidence before the Court
establishes both that the [appellant] has experienced extreme delay in
receiving medical treatment and that she has suffered severe psychological
stress resulting from the uncertainty surrounding whether she will receive the
medical treatment she needs. More importantly, the record before the Court
establishes that the applicant’s exclusion from…coverage [under the Order in
Council] has exposed her to a risk to her life as well as to long-term, and
potentially irreversible, negative health consequences…. In my view, the
applicant has established a deprivation of her right to life, liberty and
security of the person that was caused by her exclusion from the [Order in
Council].
[58]
This
finding is open to challenge on two grounds. I would reject the first ground,
but accept the second.
- I -
[59]
First, the
respondent disputes the Federal Court’s factual finding that the appellant has
been exposed to delays and risks. On the facts, the respondent submits that the
appellant has been able to obtain hospital admissions and surgeries when
required and has been under the active care of both a family doctor and a
number of specialists. The respondent adds that in Ontario, where the appellant lives, hospitals
cannot deny emergency medical treatment to anyone, when to do so would endanger
life: Public Hospitals Act, R.S.O. 1990, c. P.40. As a result, the
respondent submits that the appellant has not established a serious deprivation
of her right to life or security of the person under section 7 of the Charter.
[60]
The
respondent’s submissions gain force from legal proposition that the effects on
the protected interests under section 7 must be more than trivial. They must be
serious: Chaoulli
v. Quebec (Attorney General), 2005 SCC 35 at paragraph 123, [2005] 1 S.C.R. 791; R.
v. Morgentaler, [1988] 1 S.C.R. 30 at pages 56
and 173; Blencoe v. British
Columbia
(Human Rights Commission),
2000 SCC 44, [2000] 2 S.C.R. 307; New Brunswick (Minister of Health and
Community Services) v. G. (J.),
[1999] 3 S.C.R. 46 at paragraph 60.
[61]
Bearing in
mind the standard of review, I am not prepared to interfere with the Federal
Court’s factual conclusion that the appellant was exposed to a significant risk
to her life and health, a risk significant enough to trigger a violation of her
rights to life and security of the person. The Federal Court had an evidentiary
basis for its finding.
[62]
At
paragraphs 6 to 13, the Federal Court reviewed the appellant’s medical
condition while she has remained in Canada.
Before 2006, she only required minor medical care. After 2006, however, her
medical needs have substantially increased as her health has worsened. Her
conditions include uterine fibroids, uncontrolled hypertension, nephrotic
syndrome, poorly controlled diabetes, a pulmonary embolism, decreased mobility,
shortness of breath, hyperlipidemia and anxiety.
[63]
The
Federal Court reviewed the appellant’s access to health care services and
medication (at paragraphs 6 to 9). Before 2006, the appellant was able to work.
She earned enough income to pay for the minor medical care and medication that
she required. After 2006, her medical needs surpassed her ability to pay but
she was still able to obtain some treatment. There is some evidence that she
had had access to medical assistance at a community health centre. In 2008 she
underwent an operation at Humber
River Regional Hospital for the removal of uterine
fibroids. She was billed for that surgery, but was unable to pay the bill.
Later in 2008, the appellant was admitted to St. Michael’s Hospital for ten days
for uncontrolled hypertension. In 2009, she was admitted to St. Michael’s
Hospital for eight days during which a pulmonary embolism was found. She was
unable to pay for the medication to treat that, but the hospital gave her a
supply.
[64]
Evidence
was before the Federal Court suggesting that the appellant’s access to health
care services and medication was impaired. While eventually the appellant did
have her uterine fibroids surgically removed at Humber River Regional Hospital in 2006, at first she was denied
service at Woman’s College Hospital due to her lack of insurance coverage
and her inability to pay. In 2008, while at St. Michael’s Hospital, a test
aimed at determining the cause of her nephritic syndrome could not be performed
owing to her inability to pay for treatment and for the medicine that might be
necessary if complications arose.
[65]
Also before
the Federal Court was expert medical evidence. Overall, this evidence, accepted
by the Federal Court, suggested that (at paragraph 91):
[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).
[66]
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.
- II -
[67]
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.
[68]
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: TrueHope
Nutritional Support Limited v. Canada (A.G.), 2011 FCA 114 at paragraph 11.
[69]
The provision
of public health coverage and the regulation of access to it is primarily the responsibility
of the provinces and the territories, with the federal government playing a role in funding, the
setting of standards under the Canada Health Act, R.S.C. 1985, c C-6
and, occasionally, regulation in specific areas under its criminal law power: Reference re Assisted
Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457.
[70]
If there is
an operative cause of the appellant’s difficulties, it is the fact that although
she is getting some treatment under provincial law (see paragraph 59, above), that
law does not go far enough to cover all of her medical needs.
[71]
The
appellant has attempted to obtain coverage under the Ontario Health Insurance
Plan. Ontario refused coverage because, as a person in Canada contrary to Canadian
immigration law, the appellant is not a “resident” of Ontario under R.R.O. 1990, Regulation 552,
section 1.4, enacted under the Health Insurance Act, R.S.O. 1990, c. H.6.
She did not judicially review Ontario’s refusal, nor did she argue that Ontario’s eligibility requirements
violate her rights under sections 7 and 15 of the Charter. Nor did she
challenge the Public Hospitals Act, supra, and argue that it is
constitutionally underinclusive or over restrictive. The record reveals no
attempt by the appellant to assert section 7 or 15 of the Charter against
provincial legislation that limits her access to health care.
[72]
Further,
and most fundamentally, the appellant by her own conduct – not the federal government
by its Order in Council – has endangered her life and health. The appellant entered
Canada as a visitor. She remained in
Canada for many years, illegally.
Had she acted legally and obtained legal immigration status in Canada, she would have been entitled
to coverage under the Ontario Health Insurance Plan: see section 1.4 of
Regulation 552, supra.
[73]
In my
view, the appellant has not met her burden of showing that the Order in Council
is the operative cause of the injury to her rights to life and security of the
person under section 7 of the Charter.
(b) The
principles of fundamental justice
[74]
Even if
the appellant had discharged the burden of showing that the Order in Council is
the operative cause of the injury to her rights to life and security of the
person, she would still have to establish that the deprivation of her rights to
life and security of the person was contrary to the principles of fundamental
justice. Here as well, the appellant has fallen short.
[75]
The
appellant submits at paragraph 34 of her memorandum of fact and law that
“[g]overnments ought never to deny access to healthcare necessary to life as a
means of discouraging unwanted or illegal activity, including to those who have
entered or remained in a country without legal or documented status.” The
appellant submits that “[t]his principle is fundamental to judicial and
legislative practice in Canada.”
[76]
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.
[77]
The Charter does not confer a
freestanding constitutional right to health care: Chaoulli, supra at paragraph 104 (per McLachlin C.J.C. and Major
J.).
[78]
The
results reached in other recent cases confirm that the Charter does not confer
a freestanding constitutional right to health care. In these recent cases,
courts have denied claims under the Charter to obtain state funding or
financial assistance for necessary treatments: Auton (Guardian ad litem of) v. British
Columbia (A.G.),
2004 SCC 78, [2004] 3 S.C.R. 657; Ali v. Canada, 2008 FCA 190; Wynberg
v. Ontario (2006), 82 O.R. (3d) 561 (C.A.); Eliopoulos
v. Ontario (2006), 82 O.R. (3d) 321
(C.A.); Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, (2008), 91
O.R. (3d) 412 (C.A.).
[79]
In words
apposite to the case at Bar, Justice Linden of this Court wrote:
The appellants are, in essence,
seeking to expand the law…so as to create a new human right to a minimum level
of health care…. [T]he law in Canada has not extended that far…[A]
freestanding right to health care for all of the people of the world who happen
to be…in Canada would not likely be contemplated
by the Supreme Court.
(Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 at paragraph 36, [2007] 3 F.C.R. 169).
[80]
These
judicial statements and holdings suggest that the principle proffered by the
appellant cannot qualify as a principle of fundamental justice under section 7
of the Charter. It is not a “legal principle” that is “vital or fundamental to
our societal notion of criminal justice,” nor is there “a consensus that the rule or principle is
fundamental to the way in which the legal system ought fairly to operate”: R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74 at paragraphs 112-113, [2003] 3 S.C.R. 571; R. v. D.B., 2008 SCC 25 at paragraph 46, [2008] 2
S.C.R. 3; Canada
(Prime Minister) v. Khadr,
2010 SCC 3 at paragraph 23, [2010] 1 S.C.R. 44.
[81]
The
appellant invokes other principles of fundamental justice under section 7. She
submits that her exclusion from coverage by the Order in Council is arbitrary.
She rightly submits that the Supreme Court has recognized that an arbitrary law
– a law that “bears no relation to, or is inconsistent with, the objective that
lies behind [it]” – will be contrary to the principles of fundamental justice: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paragraph 103, [2009] 2 S.C.R. 181; Chaoulli,
supra at paragraph 104 (per McLachlin C.J.C and Major J.), and Malmo‑Levine, supra at paragraph 135.
[82]
However,
the Order in Council is not arbitrary. It is related to and consistent with the
objective that lies behind it. As a general matter, as the analysis in paragraphs
31-46 above shows, the Order in Council is meant to provide temporary,
emergency assistance to those who lawfully enter Canada and find themselves under the
jurisdiction of the immigration authorities, or for whom the immigration
authorities feel responsible. The Order in Council is not meant to provide
ongoing medical coverage to all persons who have entered and who remain in Canada, lawfully or unlawfully.
[83]
In this
regard, I agree with the Federal Court and adopt its words (at paragraph 94):
I do not accept the
applicant’s submission that her exclusion from health care is not consistent
with principles of fundamental justice because it is arbitrary. I see nothing
arbitrary in denying financial coverage for health care to persons who have
chosen to enter and remain in Canada illegally. To grant such
coverage to those persons would make Canada
a health-care safe-haven for all who require health care and health care
services. There is nothing fundamentally unjust in refusing to create such a
situation.
[84]
The
appellant also submits that the Order in Council offends the principles of
fundamental justice because it is unacceptably vague in the sense that it is
unintelligible and impossible to interpret. This is a very high standard to
meet and, accordingly, successful claims on this basis are extremely rare: R.
v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Ontario v.
Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.
[85]
The
appellant falls well short of establishing that high standard. As is evident
from paragraphs 31-46 above, the Order in Council can be interpreted and a
clear meaning can be gleaned from it.
[86]
Finally,
the appellant submits that the principles of fundamental justice must also take
into account Canada’s obligations under various sources of international human
rights law such as the right to life under article 6 of the International
Covenant on Civil and Political Rights and rights to health under article 12 of
the International Covenant on Economic, Social and Cultural Rights and article
5 of the International Convention on the Elimination of All forms of Racial
Discrimination.
[87]
On the
basis of Khadr, supra at paragraph 23, I accept that, in
appropriate cases, courts can be assisted by these sources when defining the
precise content of certain principles of fundamental justice under section 7.
But in this case we are not at the point of defining the content of a principle
of fundamental justice. We are not even at first base. The appellant has not
offered a principle that meets the criteria set out in Malmo‑Levine, supra and D.B., supra
for admission as a principle of fundamental justice under section 7 of the
Charter.
[88]
Therefore,
I conclude that the appellant’s rights under section 7 are not infringed.
(4) Section 15 of the Charter
(a) General principles
[89]
When assessing
the merits of a subsection 15(1) claim, we must apply a two-part test: (1) whether
the law creates a distinction that is based on an enumerated or analogous
ground and (2) whether the distinction creates a disadvantage by perpetuating
prejudice or stereotyping: Withler
v. Canada (Attorney General), 2011 SCC 12 at paragraph 30;
R. v. Kapp, 2008 SCC 41 at
paragraph 17, [2008] 2 S.C.R. 483.
[90]
The first
step tells us that not all distinctions, in and of themselves, are contrary to
s. 15(1) of the Charter: Withler, supra at paragraph 31; Andrews
v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada
(Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Ermineskin
Indian Band and Nation v. Canada, 2009 SCC 9 at paragraph 188, [2009] 1
S.C.R. 222. Subsection 15(1) only covers distinctions made on the basis of the
grounds enumerated in subsection 15(1), or grounds analogous to them.
[91]
The second
step tells us that the focus under subsection 15(1) is not differential treatment,
but rather discrimination. Therefore, in order to succeed, a section 15 claimant
must show that the impact of the law is discriminatory: Withler, supra
at paragraph 31; Andrews, supra at page 182; Ermineskin Indian
Band, supra at paragraph 188; Kapp, supra at paragraph
28.
[92]
Discrimination
has been described as follows:
…a distinction, whether intentional or not but based on
grounds relating to personal characteristics of the individual or group, which
has the effect of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds or limits
access to opportunities, benefits, and advantages available to other members of
society. Distinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will rarely escape
the charge of discrimination, while those based on an individual's merits and
capacities will rarely be so classed.
(Andrews, supra, at pages 174-175.)
(b) Application of the principles to this
case
[93]
The
appellant submits that her exclusion from the medical coverage afforded by the
Order in Council infringed subsection 15(1) of the Charter because that
exclusion was based on an enumerated and analogous ground, and was discriminatory.
[94]
The Federal
Court rejected the appellant’s subsection 15(1) submission, primarily on the
basis (at paragraphs 79-83) that the appellant had failed to establish that her
exclusion from coverage under the Order in Council was based on an enumerated or
analogous ground.
[95]
I find no
error in the Federal Court’s rejection of the appellant’s section 15
submissions. In my view, there are four main reasons why the appellant’s
section 15 submissions must fail.
- I -
[96]
In my
view, the appellant has failed to demonstrate that the Order in Council makes a
distinction based on any enumerated or analogous ground that is relevant to her
situation. On this point, I substantially agree with the Federal Court reasons.
[97]
In this
Court, the appellant suggests that the Order in Council creates a “primary
distinction” enhanced by a “secondary intersecting ground.”
[98]
The
primary distinction is said to be between foreign nationals possessing certain
immigration status who are covered under the Order in Council, and other
foreign nationals who possess another immigration status who are not covered.
As we have seen, however, coverage is potentially available under paragraph (b)
to all persons regardless of immigration status. For example, the appellant
herself might have been covered by the Order in Council upon her arrival in Canada. Upon entry, she was legally
admitted as a visitor. Had she been in desperate need of emergency medical
attention at that time and could not otherwise afford it, and if the
immigration authorities felt obligated to assist, she would have been covered
by the Order in Council.
[99]
Further, I
do not accept that “immigration status” qualifies as an analogous ground under
section 15 of the Charter, for many of the reasons set out in Corbiere v.
Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at
paragraph 13, recently approved by the Supreme Court in Withler, supra
at paragraph 33. “Immigration status” is not a “[characteristic] that we cannot
change.” It is not “immutable or changeable only at unacceptable cost to
personal identity.” Finally “immigration status” – in this case, presence in Canada illegally – is a
characteristic that the government has a “legitimate interest in expecting [the
person] to change.” Indeed, the government has a real, valid and justified
interest in expecting those present in Canada to have a legal right to be in Canada. See also Forrest v.
Canada (A.G.), 2006 FCA 400 at paragraph 16; Irshad (Litigation Guardian
of) v. Ontario (Minister of Health) (2001), 55
O.R. (3d) 43 (C.A.) at paragraphs 133-136.
[100]
The
“secondary intersecting ground” is said by the appellant to be “a distinction
between undocumented migrants with disabilities, who are adversely affected by
the policy, and those without disabilities, who are similarly disqualified from
coverage, but who do not have serious disabilities or related healthcare needs,
therefore experiencing a differential effect.” Intersecting grounds can affect
the quality of the alleged discrimination and influence the section 15 analysis:
See, e.g., Denise Reaume, “Of Pigeonholes and Principles: A
reconsideration of discrimination law”, (2002) 40 Osgoode Hall L.J. 113-144 at
paragraphs 33-42 and Douglas Kropp, “Categorical Failure: Canada’s Equality Jurisprudence –
Changing Notions of Identity and the Legal Subject,” (1997) 23 Queen’s L.J. 201
at paragraph 8. As the appellant has failed to establish her primary
distinction, immigration status, and since there are other obstacles to her
section 15 claim, discussed below, I need not consider this further.
[101]
Therefore,
in my view, the appellant has failed to demonstrate that the Order in Council
makes a distinction based on any enumerated or analogous ground that is
relevant to her situation.
[102]
Parenthetically,
I would note that if the appellant had prevailed on this point, subsection
15(2) of the Charter might become live. If the immigrants, refugees and others
who do receive medical care under the Order in Council constitute a disadvantaged group embraced by
the enumerated or analogous grounds, and if the Order in Council is aimed at ameliorating
or remedying that group’s condition, the Order in Council would be a “law,
program or activity” within the meaning of subsection 15(2). In such a case, the
Order in Council would not be found to be discriminatory under subsection 15(1):
Kapp, supra at paragraph
41; Lovelace v. Ontario,
2000 SCC 37, [2000] 1 S.C.R. 950.
- II -
[103]
The
appellant has failed to establish that the Order in Council relies upon, perpetuates
or promotes prejudice
or stereotyping.
[104]
The
appellant has been denied coverage because she did not enter as an applicant
for permanent residence, is not a person under immigration jurisdiction, and is
not a person for whom the immigration authorities feel responsible. In imposing
these eligibility criteria, the Order in Council does not suggest that the
appellant and others like her are less capable or less worthy of recognition or
value as human beings. The Order in Council does not single out, stigmatize or
expose the appellant and others like her to prejudice and stereotyping, nor
does it perpetuate any pre-existing prejudice and stereotyping. Indeed, the Order
in Council, with its eligibility criteria, denies medical coverage to the vast
majority of us, and not just the appellant and others like her. The Order in
Council treats the appellant – a non-citizen who has remained in Canada contrary to Canadian
immigration law – in the same way as all Canadian citizens, rich or poor,
healthy or sick.
- III -
[105]
In my
view, the facts and the holding of the Supreme Court in Auton, supra
are directly on point and confirm that the Order in Council does not infringe
section 15 of the Charter. In Auton, the claimants sought an order that British Columbia’s medicare program should be
extended to cover a particular treatment for autism. The denial of coverage was
said to be discriminatory under section 15 of the Charter. The Supreme Court
refused to order British
Columbia to
extend its medicare program to cover the treatment.
[106]
At
paragraph 41, the Supreme Court held that “[i]t is not open to Parliament…to
enact a law whose policy objectives and provisions single out a disadvantaged
group for inferior treatment.” I note that the Order in Council does not do
this. The Supreme Court then added (at paragraph 41):
On the other hand, a legislative choice
not to accord a particular benefit absent demonstration of discriminatory
purpose, policy or effect…does not give rise to s. 15(1) review. This Court has
repeatedly held that the legislature is under no obligation to create a
particular benefit. It is free to target the social programs it wishes to fund
as a matter of public policy, provided the benefit itself is not conferred in a
discriminatory manner: Granovsky v. Canada (Minister of Employment and
Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 at para. 61; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002
SCC 83, at para. 55; Hodge, supra, at para. 16.
[107]
On the
issue whether the benefit was conferred in a discriminatory manner, the Supreme
Court stated (at paragraph 42):
Where stereotyping of persons belonging to a group is at
issue, assessing whether a statutory definition that excludes a group is
discriminatory, as opposed to being the legitimate exercise of legislative
power in defining a benefit, involves consideration of the purpose of the
legislative scheme which confers the benefit and the overall needs it seeks to
meet. If a benefit program excludes a particular group in a way that undercuts
the overall purpose of the program, then it is likely to be discriminatory: it
amounts to an arbitrary exclusion of a particular group. If, on the other hand,
the exclusion is consistent with the overarching purpose and scheme of the
legislation, it is unlikely to be discriminatory. Thus, the question is whether
the excluded benefit is one that falls within the general scheme of benefits
and needs which the legislative scheme is intended to address.
[108]
The exclusion
of the appellant from the coverage provided by the Order in Council does not
undercut its overall purpose. On the other hand, the exclusion of the appellant
from the coverage provided by the Order in Council is consistent with its
purpose. The Order in Council is designed to provide emergency care to legal
entrants into Canada who are under immigration
jurisdiction or for whom immigration authorities feel responsible. Extending
these benefits to all foreign nationals in Canada, even those in Canada illegally, stretches the program well
beyond its intended purpose. Excluding persons such as the appellant keeps the
program within its purpose. In the words of Auton (at paragraph 43), the
appellant’s exclusion from the Order in Council “cannot, without more, be
viewed as an adverse distinction based on an enumerated ground”; rather, “it is
an anticipated feature” of the Order in Council.
[109]
Since the
Order in Council does not confer benefits in a discriminatory manner, the
general rule expressed by the Supreme Court in paragraph 41 of Auton
prevails. The
government was “under no obligation to create a particular benefit” in the
Order in Council and was left “free to target the social programs it [wished]
to fund as a matter of public policy.”
- IV -
[110]
Finally, I
query whether the Order in Council, said by the appellant to be discriminatory,
is the operative cause of the disadvantage the appellant is encountering. The
observations I made in paragraphs 67-73 also apply to the appellant’s section
15 claim.
[111]
Therefore,
for all of the foregoing reasons, I conclude that the Order in Council does not
infringe the appellant’s rights under section 15 of the Charter.
G. Justification and
remedy
[112] On the issue of justification
under section 1 of the Charter – whether the Order in Council is a reasonable
limit prescribed by law in a free and democratic society – the Federal Court
held (at paragraph 94) that if the Order in Council were extended to prove
medical coverage to persons illegally in Canada, such as the appellant, Canada
would become a “health care safe haven.” The Federal Court mentioned this in
the context of the state’s interest that forms part of the analysis of the
principles of fundamental justice under section 7.
[113]
In any
analysis of justification under section 1 of the Charter in this case, the interests
of the state in defending its immigration laws would deserve weight. If the
appellant were to prevail in this case and receive medical coverage under the
Order in Council without complying with Canada’s immigration laws, others could be
expected to come to Canada and do the same. Soon, as the
Federal Court warned, Canada could become a health care
safe haven, its immigration laws undermined. Many, desperate to reach that safe
haven, might fall into the grasp of human smugglers, embarking upon a voyage of
destitution and danger, with some never making it to our shores. In the end, the
Order in Council – originally envisaged as a humanitarian program to assist a limited
class of persons falling within its terms – might have to be scrapped.
[114]
In this
case, it is not necessary to comment on justification under section 1 any
further. Nor is it necessary to comment on what constitutional remedy might be
awarded under subsection 24(1) of the Charter. The appellant’s constitutional
challenge fails for want of proof of rights breach. The Order in Council does
not infringe sections 7 and 15 of the Charter.
H. Concluding comments
[115]
Just
before the release of these reasons, this Court released its judgment in Toussaint
v. Canada (Citizenship and
Immigration), 2011 FCA 146. It held that the Minister must consider the appellant’s
request for a waiver of fees for her application for permanent residence in Canada.
[116]
On
the evidence in this record, and given the reasons set out in paragraphs 35 and
45, above, a decision by the Minister to waive the fees and accept the
appellant’s application will not entitle her to medical coverage under the
Order in Council. However, depending upon the terms of legislation in Ontario,
she may be entitled to health coverage or assistance from Ontario, now or at some point in the
future. That will be for others to decide.
I. Proposed
disposition
[117] I would dismiss the appeal. In
the circumstances, the Crown has asked that costs not be awarded against the
appellant. Accordingly, I would not award costs.
"David Stratas"
“I
agree
Pierre Blais C.J.”
“I
agree
M. Nadon J.A.”
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