Covarrubias v. Canada (Minister of Citizenship and Immigration), 2005 FC 1193

Date: 20050901

Docket: IMM-6045-04

Citation: 2005 FC 1193

Ottawa, Ontario, this 1^st day of September, 2005

Present:           THE HONOURABLE MR. JUSTICE MOSLEY                           

BETWEEN:                           

                                             KATIA MONTANO COVARRUBIAS,

ANGEL GABRIEL OLVERA RAMIREZ,

BEERI NOE OLVERA MONTANO,

ASAEL OLVERA MONTANO and

ELIEZER IVAN OLVERA MONTANO

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION and

THE SOLICITOR GENERAL OF CANADA

Respondents

REASONS FOR ORDER AND ORDER

[1]         This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review of a Pre-removal Risk Assessment ("PRRA") dated May 19, 2004. The applicants are a family from Mexico. Mr. Angel Gabriel Olvera Ramirez and Mrs. Katia Montano Covarrubias have three young children. They came to Canada in October 2001 and immediately claimed refugee status based on membership in the social group of impoverished people and victims of crime.

[2]         In February 2002, Mr. Ramirez was diagnosed with serious kidney disease, admitted to hospital and placed on three times a week hemo-dialysis treatment which he continues to receive.

[3]         The applicants' Convention refugee claims were refused on March 7, 2003 by a panel of the Refugee Protection Division of the Immigration and Refugee Protection Board. The Board found that the applicants did not face a personalized risk because of poverty and crime, nor were they persons in need of protection because of risk to their lives including the risk to Mr. Ramirez' health. The Board held that a paragraph 97(1)(b) risk cannot be caused by the inability of a country to provide adequate health care. The family did not request judicial review of that decision.

[4]         The family has made an application for permanent residence on humanitarian and compassionate ("H & C") grounds. The fees for this application were paid in March 2003 but the immigration consultant acting for the family at that time failed to file the application on their behalf. It was submitted directly by the family a year later. The H & C application was still outstanding at the time of the hearing of this application.

[5]         In their pre-removal risk assessment submissions, the applicants requested that humanitarian and compassionate factors be considered, based on their counsel's understanding of Zolotareva v. Canada (Minister of Citizenship and Immigration) (2003), 241 F.T.R. 289 (F.C.). The applicants included evidence related to the non-availability of dialysis treatment for Mr. Ramirez in Mexico due to his lack of means. This consisted, largely, of an affidavit by a law student assisting the family deposing as to statements made to him by a physician at a renal clinic in Vallarta, Mexico.

[6]         A stay of removal was granted pending the determination of this judicial review. Counsel advised at the hearing that the respondent has undertaken to defer removal until the H & C application decision is rendered.

DECISION UNDER REVIEW

[7]         The PRRA officer refused to consider humanitarian and compassionate grounds and found that the question of the availability of health care in Mexico was excluded from consideration:

Counsel for the applicants has submitted that under Section 25(1) of the Immigration and Refugee Protection Act an officer may apply humanitarian and compassionate consideration in an application for PRRA and in this regard, has cited Zolotareva v. M.C.I. The application of Section 25(1) would apply in the case of an Application for Humanitarian and Compassionate Consideration. In the case before me, however, the legislation is clear that an application for PRRA may only be considered in accordance with Section 96 and 97 of the Immigration and Refugee Act. The applicants have identified only personal circumstances which are excluded from consideration under Sections 97(1)(b)(iv) and therefore, cannot be assessed in this risk assessment.

[8]         The officer found that there was no new evidence of risk to life should the applicants be returned to Mexico, and after reviewing the country condition documents for Mexico, refused the application for protection.

[9]         The applicants filed a fresh affidavit in these proceedings from the law student containing evidence that counsel concedes was not before the PRRA officer and consists again, in part, of further third party statements from the Vallarta clinician. The student's affidavit also attaches one made by Mrs. Covarrubias for the purposes of the stay application, together with letters from Mr. Ramirez' Canadian physicians.

[10]       The applicants' evidence is that Mr. Ramirez is in end-stage renal failure and requires dialysis three times per week. The evidence indicates that this treatment is not available in Mexico unless one has either private health insurance or the means to pay for the treatment. The applicants have neither. The evidence also indicates that if dialysis treatment were not available to him, Mr. Ramirez would die within a week.

LEGISLATION

[11]       The relevant provisions of section 97 read as follows:

ISSUES

[12]       The applicant argues the following issues:

1.          Did the PRRA officer err in finding that the applicants are excluded by the operation of paragraph 97(1)(b)(iv)?

2.          Did the PRRA officer err in failing to consider H & C factors, as requested by the applicants?

3.          If the PRRA officer erred in neither of the above determinations, is the resulting operation of section 97 contrary to section 7 and subsection 15(1) and not justified under section 1 of the Canadian Charter of Rights and Freedoms?

PRELIMINARY ISSUE

[13]       As a preliminary matter, the respondent submits that portions of the affidavit of the law student (paragraphs 7-11) are not properly before the court because they consist of material that was not before the PRRA officer: Lemeicha v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49 (T.D.); Asafov v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 713 (T.D.).

[14]       The respondent further submits that it was improper for the applicants to not swear their own affidavits in these proceedings, and that the evidence included in the law student's affidavit sworn on their behalf should consequently be given little or no weight: Mazuryk v. Canada (Minister of Citizenship and Immigration) 2002 FCT 257.

[15]       The applicants submit that it is acceptable for the law student, who had first hand knowledge of the history of their case, to make the affidavit. The matters attested to in paragraphs 7 to 11 are relevant because they relate to procedural matters (demonstrating attempts to obtain a stay) and provide evidence about how the law student went about carrying out the inquiries the PRRA officer should have done, they argue, regarding the current state of medical care in Mexico.

[16]       An objection to hearsay evidence submitted in the form of a law student's affidavit was also raised in Mazuryk, supra, a case under the former Immigration Act, R.S.C. 1985, c. I-2 involving similar facts and the same counsel for the applicants. In that decision, Justice Dawson observed, at paragraph 21 of her reasons, that it was poor practice to have a third party, and not an applicant, swear supporting affidavits. Evidence not based on personal knowledge and not otherwise admissible pursuant to the common-law exceptions to the hearsay rule ought to be given no weight.

[17]       Justice Dawson also noted that evidence not before the decision maker is only admissible in very limited circumstances as, for example, where it is needed to establish a breach of natural justice. There is no assertion in these proceedings that the applicants were denied procedural fairness by the PRRA officer, although the applicants argue the officer should have conducted further inquiries.

[18]       I am mindful that in the particular circumstances of this case it appears that the applicants were not well served by their immigration consultant and had considerable difficulty in accessing legal services. The law student whose affidavit was filed on their behalf was diligent in attempting to assist the applicants and is to be commended for his efforts. However, I would remind the applicants' counsel, also counsel in Mazuryk, that the concerns expressed by Justice Dawson are not to be disregarded as the consequence may be dismissal of an application that may otherwise have merit.

[19]       Insofar as paragraphs 7 to 11 of the student's affidavit explain procedural steps taken since the PRRA application, they are acceptable as background material to help the court understand the context of this case. The hearsay statements related to Mr. Ramirez's health or the Mexican health system that were not before the PRRA officer are inadmissible.   

STANDARD OF REVIEW

[20]       The parties made no submissions on the appropriate standard of review of the PRRA officer's decision. In Figurado v. Canada (Minister of Citizenship and Immigration)(2005), 262 F.T.R. 219, Justice Martineau held that considering the impugned PRRA decision "globally and as a whole", the applicable standard of review should be reasonableness simpliciter : see also Zolotareva, supra and Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, [2004] F.C.J. No. 30 (Q.L.) at para. 7.

[21]       In Rith Kim v. Canada (Minister of Citizenship and Immigration) 2005 FC 437, applying a pragmatic and functional analysis, I concluded that in the judicial review of PRRA decisions the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness: Pushpanathan v. Canada (MCI), [1998] 1 S.C.R. No. 982.

[22]       Where a particular finding of fact is made by the PRRA officer, the Court should not substitute its decision for that of the PRRA officer unless it is demonstrated by the applicant that such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA officer (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended; Liang v. Canada (MCI), 2003 FC 1501, [2003] F.C.J. No.1904; Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194 para. 14).

[23]       Applying the relevant law to the facts as found by the officer "globally and as a whole", I would agree with Justice Martineau that the overall standard should be one of reasonableness.

[24]       The PRRA officer was not asked to consider whether the operation of s.97 might infringe the Charter, in keeping with Justice Russell's finding in Singh v. Solicitor General of Canada, [2004] 3 F.C.R. 323 (F.C.) that the pre-removal risk assessment process is not the appropriate forum to decide complex legal issues including questions of constitutional interpretation. The Court itself, of course, has the jurisdiction to determine constitutional questions in judicial review proceedings from a tribunal which cannot entertain such issues. A tribunal which bases its decision on constitutionally invalid legislation commits a jurisdictional error: Gwala v.Canada (Minister of Citizenship and Immigration) [1999] 3 F.C. 404 (F.C.A.).

ARGUMENT & ANALYSIS

1.          Section 97(1)(b)(iv)

[25]       The applicants submit that the phrase "inability of that country to provide adequate health or medical care" (in French, "l'incapacité du pays de fournir des soins médicaux ou de santé adéquats") in paragraph 97(1)(b)(iv) should be construed narrowly so as to apply only in the case of states that are genuinely unable to provide adequate health care. Where the state is able to provide care but chooses not to for any reason, including cost, persons who are facing life threatening conditions and cannot access health care in their countries of origin should be able to seek surrogate protection in Canada.

[26]       As I understand the applicants' argument, it relies in part on the analysis of the distinction between being "unable" or "unwilling" to avail oneself of state protection in Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689. The applicants contend that the purpose of paragraph 97(1)(b)(iv) is to avoid stigmatizing states as human rights abusers which are genuinely incapable of providing adequate health care. Where a state has the capacity but chooses not to apply it to its residents who cannot afford to access health care, the exclusion should not apply.

[27]       Thus, the applicants' argument goes, the PRRA officer failed to interpret and apply IRPA properly and erred in law because consideration was not given to whether the reason Mr. Ramirez would be denied medical treatment in Mexico was not because that state is unable to provide dialysis to him, but rather because the state is unwilling to provide it at no cost or at a cost he can afford.

[28]       The evidence is that dialysis treatment is readily available in Mexico to anyone who can pay for it. The applicants argue that means Mexico is unwilling to provide adequate health care, and as that unwillingness will cause the death of the applicant, the stigma of causing a human rights violation is fully justified and the exclusion in 97(1)(b)(iv) is not warranted.

[29]       The respondent submits that the PRRA officer properly applied the exemption in paragraph 97(1)(b)(iv). The adequacy of health care is not within the PRRA officer's mandate. If Mr. Ramirez cannot afford and thus cannot access the care, it is effectively not available to him, and if it is not available to him, it is not adequate health or medical care within the meaning of paragraph 97(1)(b)(iv) and is excluded as a personalized risk factor: Singh, supra.

[30]       In Singh, Justice Russell dealt with a fact situation similar to this case. There was evidence that the applicant could have access to dialysis in India, but not at a price her family could afford. As Justice Russell summarized the arguments at paragraph 20 of his reasons, the applicant was asserting, in effect, that she should not be removed to India because that country does not provide the free, universal health care that she required because of her particular ailment and her financial position. The respondent contended, as here, that these are humanitarian and compassionate factors to be considered in an application under section 25 of IRPA and not in a pre-removal risk assessment.

[31]       Evidence of the legislative intent of paragraph 97(1)(b)(iv) was provided to the court in Singh through the clause by clause explanatory notes submitted to Parliament for the consideration of Bill C-11 [An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, 1st Sess., 37th Parl., 2001], subsequently enacted as IRPA. The notes, while not extensive on this question, have the following to say about section 97 and health facilities:

Cases where a person faces a risk due to lack of adequate health or medical care can be more appropriately assessed through other means in the Act and are excluded from this definition. Lack of appropriate health or medical care are not grounds for granting refugee protection under the Act.

[32]       While acknowledging that it was a very difficult case, Justice Russell concluded at para. 24:

This leads me to the conclusion that the respondent is correct on this issue. A risk to life under section 97 should not include having to assess whether there is appropriate health and medical care available in the country in question. There are various reasons why health and medical care might be "inadequate." It might not be available at all, or it might not be available to a particular applicant because he or she is not in a position to take advantage of it. If it is not within their reach, then it is not adequate to their needs. [Emphasis added]

[33]       I think it is clear that the intent of the legislative scheme was to exclude claims for protection under section 97 based on risks arising from the inadequacy of health care and medical treatment in the claimant's country of origin, including those where treatment was available for those who could afford to pay for it. I agree with Justice Russell's interpretation of the statute. Thus I find that the PRRA officer did not err in applying the exclusion to Mr. Ramirez and the application cannot succeed on that ground.

2.          Consideration of Humanitarian & Compassionate Factors

[34]       The applicants submit that the PRRA officer was obliged to consider H & C factors in the exercise of his discretion: Zolotareva, supra. His refusal to do so was an error of law and contrary to the legislative scheme intended by Parliament.

[35]       The respondent submits that Zolotareva does not apply to this case, because here it was a PRRA officer considering a PRRA application. Zolotareva dealt with a PRRA officer considering an H & C application. To compel staff at all stages of IRPA decision-making to consider H & C factors would bring the administration of the Act to a standstill: Banik v. Canada (Minister of Citizenship and Immigration) (July 3, 2003) IMM-4861-03; Padda v. Canada (Minister of Citizenship and Immigration) 2003 FC 1081; Firsova v. Canada (Minister of Citizenship and Immigration) 2003 FC 933.

[36]       In Rith Kim, supra, I made the following comments at paragraphs 63 and 64:

I agree with the respondent that Zolotareva is distinguishable. First, Zolotareva did not find a requirement for PRRA officers to consider H & C factors, but that it was permissible for the PRRA officer in that case to represent the Minister for the purpose of the H & C application as well as the PRRA assessment. In that case, the officer was performing the assessment of both applications. Here, there is no evidence of a separate H & C application, let alone that such an application was before the officer.

Zolotareva does not, in fact, address the applicant's underlying argument, which, as I understand it, is that according to subsection 25(1) of IRPA, humanitarian and compassionate factors must be considered by any ministerial delegate if there is a request for examination of the applicant's circumstances.

[37]       I concluded in Kim that PRRA officers need not consider humanitarian and compassionate factors in making their decisions. The PRRA inquiry and decision-making process are not intended to take into account factors other than personalized risk. The H & C determination mechanism is a better forum for consideration of the grant of discretionary relief.

[38]       Thus, I find that the officer did not err in law by refusing to consider humanitarian and compassionate factors in the context of the PRRA decision.

3.          Charter of Rights and Freedoms Issues

[39]       The applicants submit that the scheme of IRPA provides for a PRRA to ensure that no one is removed from Canada to a place where his or her life is at risk. This is consistent with Canada's Charter values and international commitments: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 53; Universal Declaration of Human Rights (1948) Article 25, para. 1.

[40]       The applicants' position is that paragraph 97(1)(b)(iv), as interpreted and applied by the PRRA officer in this case, violates the Charter in two ways. First, if no protection can be offered to individuals for the lack of medical care in their home country, and it is not appropriate for the PRRA officer to consider H & C factors in making the decision, then the effect of the exclusion is to discriminate against people on the basis of disability contrary to Charter section 15, and such discrimination cannot be saved by section 1.

[41]       Secondly, the applicants argue, Mr. Ramirez' rights to life and security of the person under Charter section 7 are implicated by the decision to exclude him from consideration for protection under IRPA section 97. If he were required to return to face death in Mexico, he would suffer cruel or unusual treatment not in accordance with the principles of fundamental justice. In his situation, faced with a life threatening condition, adequate medical care is intrinsic to the right to life and security of the person.

[42]       Notices of constitutional questions were served on the federal and provincial Attorneys General as required by section 57 of the Federal Courts Act.

[43]       The respondent contends that there is no evidentiary foundation sufficient to allow this Court to make a Charter determination: MacKay v. Manitoba, [1989] 2 S.C.R. 357; Mazuryk, supra at paras. 35-41; Adviento v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 295. In MacKay and in other decisions, the Supreme Court of Canada has cautioned that Charter decisions should not be made in a factual vacuum as doing so would both trivialize the Charter and result in ill-considered opinions.

[44]       In Mazuryk, supra, the applicant advanced Charter arguments similar to those presented in this case premised upon the assertion that return to the Ukraine would result in her immediate death. Justice Dawson found that the evidence did not support that claim. Indeed, the post-claim determination officer who made the challenged decision under the former legislation, while concluding that the inability of a country to provide adequate health or medical care was not a pertinent risk factor, had nonetheless found that adequate state medical care would be available to the applicant in her home country. That was sufficient to decide the application and it was unnecessary to consider the alleged Charter violations.

[45]       Similarly in Adviento, supra, the decision to refuse to defer removal because of the applicant's medical condition - kidney failure - was found to have been made by the officer on the factual evidence. An H & C application, relied upon by the removals officer, had been previously denied on the ground that treatment was available in the Philippines and accessible with government funding. The applicant failed to exhaust the judicial review procedures available to her to challenge that finding. In those circumstances, while the evidence of the availability of adequate medical care in the Philippines was mixed, the court held that the applicant had not satisfied the requisite evidentiary threshold to prove a Charter violation.

[46]       In Singh (F.C. 2004), discussed above, the PRRA officer was invited to disregard paragraph 97(1)(b)(iv) and grant a constitutional exemption from its operation on Charter section 7 grounds. The officer's decision that he lacked the competence to decide that question was upheld on review. It does not appear that the Court in Singh was asked to make its own determination of whether the legislation was invalid.

[47]       In this case, the evidence properly before me to support the applicants' Charter allegations is very limited. As noted above, I do not accept as evidence that part of the affidavit submitted by the applicants that contains information received from a third party. The remaining evidence consists of an affidavit by Ms. Covarrubias, sworn for the purposes of the stay application, in which she deposes to her husband's medical condition, describes the family's financial circumstances and asserts that they would be unable to pay for dialysis treatment if returned to Mexico. In addition, there are letters on the record from hospital staff physicians stating that Mr. Ramirez requires continuous dialysis treatment, expensive medication to maintain his blood chemistry and follow up visits with specialists, all of which it is asserted would not be available to him based upon the physicians' understanding of health care in Mexico. There is no evidence before me as to what that understanding was based upon. As hearsay without any additional evidentiary support, I am not satisfied that it is sufficiently reliable to prove the truth of the content of the statements as fact.

[48]       Apart from the brief excerpt from the explanatory notes to Parliament referred to above, there is no evidence before me of the purpose and background of the legislation and the social, economic and cultural context in which it was enacted.

[49]       Taking the applicants' evidence at its highest, I am not satisfied that it is sufficient to allow the Court to properly decide whether a constitutional violation arises from the operation of    subparagraph 97(1)(b)(iv) to exclude persons from consideration for protection where the risk to life arises from the lack of adequate medical care in their countries of origin.

[50]       I am also persuaded that there is an adequate alternative remedy for the applicants in their pending application for consideration of permanent residence status for humanitarian and compassionate reasons. The H & C process, while discretionary, provides an opportunity for a review of the applicants' circumstances and, in particular, of the availability of health care services in Mexico. There would also be a further opportunity to seek judicial review of the decision, should the applicants be unsuccessful.

[51]       I note that the respondent has undertaken to defer removal efforts until after the H & C determination is made. The applicants submit that is unsatisfactory because the applicants will remain in a form of limbo in the interim without residency status and without eligibility for Ontario health insurance. The applicants acknowledge that Mr. Ramirez would continue to receive treatment pending the H & C decision, as Ontario hospitals and physicians are obliged to provide medical treatment for uninsured persons requiring emergency care. If they are successful in the H & C application, the family may be granted temporary residence permits but Mr. Ramirez will likely still be found inadmissible for permanent residence due to his medical condition. There is no question this would not be the most satisfactory solution for the family. But the test is whether the alternative remedy is adequate, not whether it is perfect: Froom v. Canada (Minister of Justice) [2005] 2 F.C.R. 195 (F.C.A.).

[52]       In the event that I am in error about these conclusions, I will briefly review the parties' submissions on the Charter issues.

[53]       In any analysis of the application of the Charter to immigration proceedings, it is perhaps trite to observe that the rights and freedoms guaranteed may be enjoyed by "...every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law": Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 at paragraph 35.    Paragraph 3(3)(d) of IRPA specifically provides that the Act is to be construed and applied in a manner that ensures that decisions taken under the Act are consistent with the Charter including its principles of equality and freedom from discrimination. Paragraph 3(3)(f) requires interpretations that comply with international human rights instruments to which Canada has adhered.

[54]       Parliament is entitled to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. The Charter expressly recognizes in section 6 that non-citizens do not have the same rights to remain in the country as do Canadians: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711.

[55]       In 2005 SCC 35">Chaouilli v. Quebec (Attorney General) 2005 SCC 35 at paragraph 104, McLachlin C.J. and Major J., with concurrence by Bastarache J., stated succinctly: [t]he Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the charter."

[56]       In paragraph 97(1)(b), Parliament has expressly set out several limitations to the right to protection against risks to life or to cruel and unusual treatment or punishment which narrow the range of protection extended to nationals of other countries. Among those limitations, in enacting paragraph 97(1)(b), Parliament has chosen to exclude from protection persons for whom there is a risk of harm which arises explicitly from the lack of adequate medical care in their countries of origin and, implicitly, from their own health status and not from the threat of action by any exterior agency or factor.

[57]       In enacting the medical inadmissibility provisions of the former Immigration Act paragraph 19(1)(a)(ii) and section 38 of IRPA, Parliament has also evidently concluded that the health care needs of foreign nationals seeking permanent residence in this country could impose an excessive burden on the provincial health care systems and for that reason alone they may be denied entry. The Immigration Act medical inadmissibility provisions were found to withstand constitutional scrutiny under sections 7 and 15 of the Charter in Chesters v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 361.

[58]       As I noted in C.U.P.E v. Canada (Minister of Health) (2004), 261 F.T.R. 237, serious questions regarding the shortage of doctors, nurses and other providers in many areas, and waiting lists for diagnostic and surgical services have engaged public debate about the adequacy and cost of health care in this country. As stated by Justice Deschamps in Chaoulli supra,at paragraph 2, "[a]s we enter the 21^st century, health care is a constant concern. The public health care system, once a source of national pride, has become the subject of frequent and sometimes bitter criticism."

[59]       Thus it does not seem unreasonable for Parliament to have made the determination that the right to protection in Canada against personalized risks to life in other countries should not encompass risks arising from the failure of those countries to provide adequate medical care to their own nationals.

[60]       I will turn now to the parties' submissions on the application of sections 15 and 7 to the legislation in question in these proceedings.

Section 15

[61]       Subsection 15(1) reads as follows:

[62]       The applicants submit that Mr. Ramirez is being discriminated against contrary to subsection 15(1) of the Charter, because he cannot take advantage of the protection afforded by section 97 by reason of a physical disability. His medical condition of end stage renal failure is such a disability. He is denied the equal benefit of the law as the law has a differential impact upon him compared to healthy individuals: Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143; Eldridge v. British Columbia, [1997] 3 S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493.

[63]       The respondent submits that there is no breach of subsection 15(1) because the applicant is not excluded from protection under paragraph 97(1)(b) because of his physical disability. The purpose of section 97 is to provide protection in Canada to persons who cannot expect or may be justifiably unwilling to seek protection in their home countries from serious risks to their lives or to their health from violent acts such as torture, or cruel and inhumane treatment or punishment. It is not intended to offer protection to persons who can't obtain health care at home.

[64]       In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 529, the Supreme Court of Canada, described the purpose of Charter subsection 15(1) as being to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice. Legislation that effects differential treatment between individuals or groups will violate this fundamental purpose where those affected fall within one or more of the enumerated or analogous grounds and where their treatment under the law reflects stereotypical application of presumed group or personal characteristics or otherwise has the effect of perpetuating or promoting the view that the individual is less capable or less worthy of recognition or value as a human being.

[65]       While an analysis under subsection 15(1) is not to be confined to any rigid formula, the Supreme Court in Law set out a three-step process to be followed in determining whether a breach has occurred.

[66]       The first step is to look at whether a distinction has been drawn between the applicant and other individuals in a comparator group. Generally, it is appropriate to rely upon the comparator group identified by the applicant for the purpose of a discrimination analysis. I think that it is reasonable to conclude that the comparator class is, as Mr Ramirez suggests, similarly denied refugee claimants who are not physically disabled but face other risks to their lives or physical safety in their home countries. The distinction, he says, is that members of the comparator group who face death from such acts of violence can seek protection whereas he cannot because of his disability and Mexico's inability to give him adequate care. However, more is required than a simple finding of distinction. If established, the distinction must be truly discriminatory.

[67]       The respondent argues that there is no distinction between the applicant and others who may be protected by section 97. If Mr. Ramirez had established a risk covered by the section, his application would have been accepted, notwithstanding his disability. In any event, more is required than a simple finding of distinction. If established, the distinction must be truly discriminatory.

[68]       The next step under the Law formula is to ask, should there be a distinction, whether it is based upon an enumerated or analogous ground. In Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at paragraph 69, Justice Iacobucci noted that "[w]here the denial is based on a ground expressly enumerated in s. 15(1), or one analogous to them, it will generally be found to be discriminatory, although there may, of course, be exceptions: see, e.g., Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872."

[69]       The applicant suffers from a medical disability, an enumerated ground, but that alone, the respondent submits, is not sufficient to establish that he was subjected to differential treatment as a consequence. Subparagraph 97(1)(b)(iv) limits the scope of the risks for which protection is available but does not grant or withhold protection to those who are healthy or disabled.

[70]       The third step is to determine whether there is discrimination in a substantive sense, "bringing into play the purpose of subsection 15(1) of the Charter in remedying such ills as prejudice, stereotyping and historical disadvantage" (per Law at 524). A breach of subsection 15(1) may also be found if the legislation indirectly has an adverse discriminatory effect on the members of enumerated or analogous groups: British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3.

[71]       It is not difficult to have sympathy for Mr. Ramirez in his present circumstances, but I am not convinced that the legislation discriminates either directly or indirectly against him. With the enactment of section 97, the Immigration and Refugee Board was given jurisdiction to assess risks of harm in addition to the Convention refugee grounds covered by section 96. These are the so-called consolidated grounds. Previously, other risk factors were assessed under the Minister's discretion on humanitarian and compassionate grounds under section114 of the former Immigration Act. Section 97, in granting this jurisdiction to the Board, expressly constrains its scope by the limitations set out in sub-paragraphs (i)-(iv).   

[72]       The effect of sub-paragraph 97(1)(b)(iv) is to exclude a risk arising from the inability of the country of origin to provide adequate health or medical care. Persons in Mr. Ramirez' situation are treated the same as those in the comparator group in relation to the risks covered by section 97. Each would have to establish that they face a risk to their lives or safety within that class. Parliament may chose to limit or expand the class of risk for which it wishes to extend protection, so long, I believe, that it does not do so arbitrarily. As noted above, I accept that there are rational grounds for excluding persons from protection whose claim is based solely on their state's inability to provide health care.

[73]       The legislation does not draw a distinction between claimants based on a personal characteristic - whether they suffer or do not suffer a disability - but rather on the nature of the risks faced. Had it drawn a distinction based on the disability of the claimant, I would have had no difficulty finding discrimination. However, exclusion of a particular form of risk does not, in my view, constitute discrimination.

[74]       Accordingly, I find that the operation of subparagraph 97(1)(b)(iv) does not infringe subsection 15(1) of the Charter .

Section 7

[75]       Section 7 reads as follows:

[76]       Two questions arise under section 7 of the Charter: first, has there been a deprivation of the life, liberty and security of the individual by the operation of the impugned statute and second, if deprivation is established, is it contrary to the principles of fundamental justice: Re Criminal Code Sections 193 and 195.1 (1)(c), [1990] 1 S.C.R. 1123. The Supreme Court has held that deportation to a risk of torture may deprive an individual of liberty, security and perhaps life: Suresh, supra, at para. 44.

[77]       The applicants submit that Mr. Ramirez' right to life is threatened by his exclusion from consideration under section 97. They contend that the right to life contemplated by section 7 includes a right not to be deprived of the medical care he is now receiving in Canada. Removal to a place where he cannot obtain this treatment to preserve his life would violate the principles of fundamental justice. Not allowing him to seek protection under section 97 to continue to receive state-funded medical treatment will deprive him of his right to life just as a failure to provide state-funded legal counsel in certain circumstances may deprive someone of security of the person: New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46.

[78]       Further, the applicants submit, Canada must take responsibility even if the violation of Mr. Ramirez' Charter rights were to happen after his removal from Canada: United States v. Burns, [2002] 1 S.C.R. 283.

[79]       The applicants cite R. v. Morgentaler, [1988] 1 S.C.R. 30 and Collin v. Lussier, [1983] 1 F.C. 218 (T.D.) (rev'd [1985] 1 F.C. 124) for the proposition that, in certain situations, medical care is intrinsic to the rights to life and security of the person.

[80]       The applicants urge me to find that where the condition suffered by the section 97 claimant is, as here, life threatening, that alone should be sufficient to find that section 7 has been infringed. I note that the impugned subparagraph makes no distinction on the nature of the condition for which adequate health care is not available. Presumably, if section 7 interests are engaged by the operation of the exclusion in subparagraph 97(1)(b)(iv), they are not limited to life threatening illnesses. One might postulate that the lack of adequate health care for any serious condition could threaten the psychological or physical security of the person. I have difficulty, therefore, with the applicants' submission that a line could be drawn to limit the impact.

[81]       The respondent denies that there is a breach of a section 7 interest in this case. But assuming the right to life is engaged, in the next stage of analysis the principles of fundamental justice to be applied must be derived from the immigration context: Chiarelli, supra; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053. In this case, the procedure followed is in accordance with the principles of fundamental justice because the applicants had a chance to present their case, to make written submissions by counsel and to submit any documentation they wished the PRRA officer to consider: Winnipeg Child and Family Services v. KLW, [2000] 2 S.C.R. 519.

[82]       In G.(J.), supra, at paragraph 65, Chief Justice Lamer observed that "the subject matter of section 7 is the state's conduct in the course of enforcing and securing compliance with the law, where the state's conduct deprives an individual of his or her right to life, liberty, or security of the person." In that case, the state had initiated child protection proceedings against the appellant which could result in her child being taken from her care by the state. Denying her state funded legal aid threatened the appellant's psychological security and did not accord with principles of fundamental justice related to the right to counsel.

[83]       In Morgentaler, supra, the state prohibited abortion unless approved by a therapeutic abortion committee. The majority of the Court found that the law unduly put the health of women at risk and thus infringed their security and could not be saved by section 1. As stated by Justice Beetz at paragraph 121, "the state has intervened in such a manner as to create an additional risk to health, and consequently, this intervention constitutes a violation of the woman's security of the person."

[84]       By analogy, a law that prevented persons in Mr. Ramirez' situation from receiving medical treatment while in Canada would likely infringe section 7 as it would constitute an intervention by the state threatening the life or security of the person. But the reasoning in Morgentaler cannot support the proposition, in my view, that persons are entitled to enter or remain in Canada, to receive medical services, if they are neither citizens nor permanent residents.

[85]       Collin v. Lussier, supra concerned the transfer of an inmate with a heart condition to a maximum security unit where, he alleged, he would not receive adequate treatment. Décary J., as he then was, held that depriving the inmate of adequate medical care would impair his security of the person. Justice Décary found that the transfer was not conducted in accordance with fundamental principles of fairness and therefore infringed section 7. The Court of Appeal reversed on the ground that the findings were not supported by the evidence. In Singh at 208 and Morgentaler at paragraph 120, the Supreme Court cited with approval Justice Décary's finding that a showing by the inmate that his health would be impaired by the transfer to a unit where adequate medical care was not available would be sufficient to constitute a deprivation of security of the person.

[86]       I think it important to note that in Collin v. Lussier, the state controlled both the mechanism for transfer of the inmate and the quality of the medical services that would be available to him in the maximum security unit. The risk to the inmate's security interests, if established, would have been entirely caused by "the state's conduct in the course of enforcing and securing compliance with the law," as stated in G(J), supra.

[87]       In this case, the operation of the exclusion in subparagraph 97(1)(b)(iv) does not directly put Mr. Ramirez life in jeopardy. That risk will only arise if he is required to return to Mexico and is unable to obtain adequate medical treatment in his homeland. Were the law to deny him treatment while he is in Canada, his right to life would be clearly implicated.

[88]       Even if I were to assume that Mr. Ramirez' security interests are engaged by the operation of subparagraph 97(1)(b)(iv), I am not persuaded that the statute offends principles of fundamental justice. Those principles, as stated by Lamer J., as he then was in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 503, are to be found in the basic tenets of our legal system. As noted above and as expressly recognized in section 6 of the Charter, non-Canadians do not have the same rights to remain in this country as do Canadians. However, they do have the right to a fair hearing and other procedural safeguards before they are removed. Mr. Ramirez has been provided with several opportunities to establish that he had a valid claim for protection as a refugee or for protection from violence or cruel and unusual treatment in his home country. He has a pending H & C application which provides him with a further opportunity to be landed in this country. It seems to me that his health status and the availability of adequate medical care for his condition in Mexico will be very relevant considerations for the exercise of the Minister's discretion.

[89]       In Burns, supra, Canada was actively taking steps to extradite the individuals concerned to a death penalty state for trial on murder charges. Execution was a very real possibility, thus engaging their section 7 interests. The Supreme Court looked to the fundamental principles of criminal justice applied in this country and internationally and to the extradition context. Balancing those principles, the Court found that extradition without assurances that the death penalty would not be sought would violate fundamental justice. Similarly, in Suresh, supra the Court balanced Canada's interests in combatting terrorism with the appellant's interests in not being tortured in his homeland. Section 7 was engaged if there was a sufficient causal connection between the acts of the Canadian government and the risks of torture. Fundamental justice rejected deportation to torture.

[90]       Mr. Ramirez has access to further procedures under Canadian immigration law that may result in his remaining in this country and continuing to receive treatment. For the purposes of this application, I do not need to decide whether Mr. Ramirez' security interests would be engaged by the execution of a removal order should he be unsuccessful in his application for humanitarian and compassionate consideration. I am satisfied that the operation of subparagraph 97(1)(b)(iv) does not deprive Mr. Ramirez of the right to life and to security of the person in violation of section 7 of the Charter.

Conclusion

[91]       I conclude that the PRRA officer did not err in deciding that the applicants were excluded from consideration under section 97 by reason of the operation of subparagraph 97(1)(b)(iv), that the officer did not err in declining to take humanitarian and compassionate considerations into account and that there is an insufficient evidentiary basis upon which to decide whether the legislative scheme violates the Charter. If I am in error on the last conclusion, I find that the applicants' arguments that the legislation infringes section 7 and subsection 15(1) of the Charter must also fail. Accordingly, this application must be dismissed.

Certified Questions

[92]       The applicants' have proposed the following questions for certification:

1.(A) When there is a personalized risk to the life of a person facing removal from Canada due to the failure of his country to provide life-sustaining medical treatment, is the PRRA Officer required to make a determination that the country's failure to provide the treatment is due to the country's inability to provide that medical service (due to lack of resources, or due to the fact that the treatment is not even available in the country), before the exception in section 97(1)(b)(iv) can be applied?

(B) If there is evidence that the medical service is available in the country to which the PRRA applicant is facing removal, but that the country does not provide the service to persons who need it if they cannot pay for it, is the PRRA Officer required to determine that the PRRA applicant faces a personalized risk to his life which is not due to his country's inability to provide adequate medical services, but due to his country's unwillingness to do so, and that the PRRA applicant is therefore a person in need of protection ?

2.When a PRRA Officer determines that an Applicant faces a personalized risk to his life but that this risk is due to the inability of his country to provide adequate medical services, and the PRRA Officer is also advised that a request for "humanitarian and compassionate" (H & C) consideration has been made pursuant to section 25(1) of the Act, does the PRRA Officer have the jurisdiction, pursuant to his /her delegated authority under section 25(1) of the Act, to make a decision that on H & C grounds the Applicant should not be removed from Canada to the place where his life is at risk due to unavailability of adequate medical care.

3. If section 97(1)(b)(iv) is correctly interpreted to exclude consideration of risk to life due to the state's unwillingness to provide adequate medical care, and if the PRRA Officer cannot use his delegated authority under section 25(1) to permit a person facing risk to his life to remain in Canada on H & C grounds, does the legislative scheme of the PRRA violate the Charter of Rights and Freedoms by failing to protect the life of a PRRA applicant who is seriously disabled and requires life-sustaining medical care that will not be available to him in his country of origin, and by depriving this PRRA applicant and his dependent family members of their "security of the person" in a manner that does not accord with the principles of fundamental justice, and which cannot be justified under section 1 of the Charter ?

[93]       Question 1(a) is a matter of statutory interpretation answered by Justice Russell's decision in Singh, supra. Question 1(b) does not squarely arise in this case as there was no evidence of Mexico's unwillingness to pay for renal dialysis. The second question concerning the PRRA officer's jurisdiction to make a H & C determination has been answered in several decisions of this court cited above.

[94]       As I have recognized the possibility of error in my conclusion that there is an insufficient evidentiary basis upon which to decide the Charter issues in this case, I am prepared to certify a modified version of the applicants' third question as follows:

Does the exclusion of a risk to life caused by the inability of a country to provide adequate medical care to a person suffering a life-threatening illness under section 97 of the Immigration and Refugee Protection Act infringe the Canadian Charter of Rights and Freedoms in a manner that does not accord with the principles of fundamental justice, and which cannot be justified under section 1 of the Charter ?

                                               ORDER

THIS COURT ORDERS that the application is hereby dismissed. The question set out in paragraph 94 of the accompanying reasons is certified as a serious question of general importance.

" Richard G. Mosley "

Judge

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                  IMM-6045-04

STYLE OF CAUSE: KATIA MONTANO COVARRUBIAS,

ANGEL GABRIEL OLVERA RAMIREZ,

BEERI NOE OLVERA MONTANO,

ASAEL OLVERA MONTANO and

ELIEZER IVAN OLVERA MONTANO

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION and

THE SOLICITOR GENERAL OF CANADA

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   May 25, 2005

REASONS FOR ORDER

AND ORDER BY : The Honourable Mr. Justice Mosley

DATED:                     September 1, 2005

APPEARANCES:

Geraldine Sadoway                                           FOR THE APPLICANTS

Neeta Logsetty                                                  FOR THE RESPONDENTS

SOLICITORS OF RECORD:

GERALDINE SADOWAY                                          FOR THE APPLICANTS

Parkdale Community Legal Services

Toronto, Ontario

JOHN H. SIMS, Q.C.                                                  FOR THE RESPONDENTS

Deputy Attorney General of Canada

Toronto, Ontario