Date: 20100806
Docket: T-1301-09
Citation: 2010 FC 810
Ottawa,
Ontario, August 6, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
NELL TOUSSAINT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for
judicial review by a person who is illegally in Canada. She challenges a decision
of an official of Citizenship and Immigration Canada (CIC) that denied her request
to pay the cost of her medical care, hospitalization, and related expenses under
the Interim Federal Health Program (IFHP).
Procedural
Background
[2]
Ms. Toussaint filed two
applications for judicial review because of an uncertainty as to the proper
procedural avenue to get her concern before the Court. This application (Docket
T-1310-09) is made pursuant to section 18.1 of the Federal Courts Act.
She also filed a second application (Docket IMM-3761-09) pursuant to section 72
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).
The substantive aspects of each application are identical. These reasons apply
to both and a copy will be ordered to be filed in Docket IMM-3761-09.
[3]
The respondent brought a motion to
strike the T-1310-09 application arguing that the decision under review was
captured by section 72 of the Act and that the simultaneous filing of two
applications was an abuse of process.
[4]
By Order of the Chief Justice
dated January 26, 2010, leave was granted in IMM-3761-09 and these applications
were ordered to be heard together. Remaining to be determined is the issue of
which of these applications is properly before the Court. The parties at the
hearing acknowledged that the only impact that will have is with respect to the
avenues available for appeal. If the matter is properly constituted in
T-1310-09, either side can appeal as of right, but if the matter is properly
constituted as IMM-3761-09, then a question would have to be certified before
an appeal could be undertaken.
Substantive
Background
[5]
Ms. Toussaint is a citizen of Grenada. She
came to Canada more than 10 years ago on December 11, 1999, as a
visitor. She overstayed her temporary resident visa and has no status in Canada. She is
forty years old, divorced, and lives in poverty.
[6]
From 1999 until 2006, Ms.
Toussaint worked in Canada without authorization and was able to support
herself, including paying for minor medical care when needed. Her health began
to deteriorate in 2006. She developed an abscess and chronic fatigue that left
her unable to work.
[7]
In June 2008, Ms. Toussaint sought
a referral for surgical removal of uterine fibroids, which were causing her
pain. After receiving the referral, she was denied service at the Women’s College Hospital because she had no public or private medical
insurance and was unable to pay for the procedure. Ms. Toussaint eventually had
the procedure performed in November 2008 at Humber River Regional
Hospital. She was billed $9,385 for her care and is unable to pay the bill.
[8]
On November 27, 2008, Ms. Toussaint
attended at St. Michael’s Hospital with uncontrolled hypertension. She was
admitted for ten days and diagnosed with nephrotic syndrome, a kidney
disorder. Ms. Toussaint also has diabetes and the nephrotic syndrome may be
caused by her diabetes or it may have another cause. The test required for
determining the cause was not performed, apparently in large part because she
would not be able to pay for complications that might arise, including special
medication that might be needed. Instead, Ms. Toussaint was discharged with a
prescription for high blood pressure medication.
[9]
In late February 2009, Ms.
Toussaint developed increasing pain in her right leg. Her doctor sent her to
the emergency department at St. Michael’s Hospital with a suspicion of deep
venous thrombosis. Ms. Toussaint was asked to return the following day for an
ultrasound. When she returned, she was denied the ultrasound on the basis that
she could not afford to pay. She left the hospital and shortly thereafter
developed chest pain. Two days later, on the advice of her doctor, Ms.
Toussaint returned to the emergency room with her counsel. An investigation
was finally performed that found a pulmonary embolism. Ms. Toussaint was
hospitalized for eight days and discharged with a prescription for warfarin.
Unable to pay for the medication, Ms. Toussaint was eventually able to convince
the hospital to provide her with the necessary month’s supply of the
medication.
[10]
Ms. Toussaint also suffers from
decreased mobility and shortness of breath upon exertion. Dr. Guyatt, a
Professor of Clinical Epidemiology & Biostatistics at McMaster University, swore an affidavit detailing Ms. Toussaint’s medical
situation. Dr. Guyatt states:
Ms. Toussaint
is a 40-year-old woman suffering from poorly controlled diabetes with
complications of renal dysfunction, proteinuria, retinopathy and peripheral
neuropathy. In addition to diabetic renal complications, she may well have
primary renal diseases, though the biopsy needed to determine this has not been
carried out. Her neurological problems result in severe functional disability
with marked reduction in mobility and impairment of basic activities such as
dressing. Other problems include hyperlipidemia and hypertension.
[11]
Dr. Guyatt concludes that Ms. Toussaint
has medical problems that require further investigation:
Ms. Toussaint
has severe medical problems that markedly impair her quality of life, are
likely to decrease her longevity, and could be life-threatening over the short
term. She requires intensive medical management by highly skilled
professionals, including medical subspecialists. Negotiating pro bono care by
a number of such doctors is clearly extremely unsatisfactory and potentially
dangerous. Delays resulting from lack of coverage and an inability to pay for
the healthcare that she needs and the risk that she will not have access to
necessary services creates serious risk to her health and may have life
threatening consequences.
[12]
Dr. Hwang, a physician at St.
Michael’s Hospital and a professor in the Faculty of Medicine at the University of Toronto, also swore an affidavit detailing Ms. Toussaint’s medical condition. He
comments on the likely medical outcome for Ms. Toussaint, should she be unable
to obtain adequate healthcare:
Ms. Toussaint
would be at extremely high risk of suffering severe health consequences if she
does not receive health care in a timely fashion. As noted above, she has
already suffered from serious and to some degree irreversible health
consequences due to lack of access to appropriate care, which resulted in
inadequately treated, uncontrolled diabetes and hypertension. As documented in
her medical records, her inability to afford medications in the past has also
contributed to the poor control of her diabetes and hypertension. If she 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).
[13]
Ms. Toussaint provided an affidavit in
which she addresses the impact her healthcare situation has caused her:
I never know
whether I will be able to get treatment or tests I need in a timely fashion. I
cannot predict when doctors or service providers will agree to provide services
without pay and when they will not. This makes me feel that I lack control
over my health.
I am
extremely grateful for the services that I have been provided by doctors and
service providers, despite the fact that I am unable to pay for them. On the
other hand, I find it humiliating and degrading to have to negotiate with
doctors and other healthcare service providers to receive healthcare, out of
charity. It makes me feel that I am not considered of the same worth or value
as other patients.
I am aware
that many doctors, receptionists and people in waiting rooms who hear me
explain why I have no health coverage and ask for compassion based on my
serious circumstances may have negative attitudes about immigrants seeking
healthcare in Canada. I feel vulnerable to being treated as an outsider. I
feel that administrators, receptionists, other patients and doctors who do not
know the details of my circumstances may have negative ideas about people in my
situation. They may think that I have set out to ‘take advantage’ of Canada’s
healthcare system, rather than thinking of me as an equal human being, a
resident of Canada who has worked hard and contributed to society but who has
become ill and needs healthcare to save my life.
When people
are hostile toward me or do not want to allow me to have access to the
healthcare I require, I feel that my life and health are devalued because of my
immigration status and my disability. This leaves me depressed and anxious
about my vulnerable situation and I have to work hard to maintain my dignity
and self-esteem.
[14]
Ms. Toussaint took no steps to regularize
her status in Canada until September 12, 2008, when she submitted an
application for permanent residence based on humanitarian and compassionate
(H&C) grounds accompanied by a request to the Minister to waive the $550
fee associated with this application because of her poverty. The waiver
request was denied by the Minister. The Minister’s decision was upheld by this
Court in Toussaint v. Canada (Minister of Citizenship and
Immigration),
2009 FC 873 [Toussaint
I]. An appeal to the Federal Court of Appeal is pending.
[15]
In March 2009, Ms. Toussaint made an application for a Temporary
Resident Permit to the Minister so that she could become eligible for coverage
under the Ontario Health Insurance Program (OHIP): see section 1.4 of
Regulation 550, R.R.O. 1990 to the Health Insurance Act, R.S.O. 1990, c.
H.6. Ms. Toussaint again requested a waiver of the required fee because of her
poverty. This request was denied.
[16]
In April 2009, Ms. Toussaint was informed that she qualified for welfare
in Ontario because she was in the process of applying for permanent residence
from within Canada based on H&C grounds. While the welfare program covers
the costs of certain medications, it does not pay for medical services. I
express no comment on whether, given the decision of this Court in 2010 FC 873
regarding the H&C application, this welfare entitlement was correctly decided.
[17]
In June 2009, Ms. Toussaint inquired about coverage under OHIP but was
told that she was not eligible. She took no steps to obtain a formal decision
on eligibility from OHIP or to judicially review this response.
[18]
In May 2009, Ms. Toussaint applied to the IFHP for coverage. A negative
decision was rendered July 10, 2009. It is from this decision that Ms.
Toussaint seeks judicial review.
[19]
The decision is short. The relevant portions are 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).
Issues
[20]
I would rephrase the issues the parties set out in their memoranda and
oral submissions as follows:
1. Whether either or both of the applications in Docket
T-1310-09, filed pursuant to section 18.1
of the Federal Courts Act, or in Docket IMM-3761-09 filed pursuant to
section 72 of the Immigration and Refugee Protection Act, are properly
before the Court;
2.
Whether
the decision-maker committed a reviewable error in determining that the
applicant was not entitled to benefits under the IFHP;
3.
Whether the decision
denying the applicant coverage under the IFHP violated principles of
international law, including international conventions to which Canada is
signatory;
4. Whether the decision denying the applicant coverage
under the IFHP violated section 7 of the Charter of Rights and Freedoms
and, if so, whether it is saved under section 1 of the Charter; and
5. Whether the decision denying the applicant coverage
under the IFHP violated section 15 of the Canadian Charter of Rights and
Freedoms and, if so, whether it is saved under section 1 of the Charter.
[21]
The first issue is procedural. The remaining issues are dependant upon
and necessitate an interpretation of Order-in-Council number 157-11/848,
effective June 20, 1957, that established the current IFHP. I will first examine
the procedural issue, and then turn to the proper interpretation of the
Order-in-Council before addressing the four remaining issues set out above.
Analysis
Which
application is properly before the Court?
[22]
The applicant submits that the decision denying her coverage under the
IFHP was made under authority given to what was the Department of National
Health and Welfare by Order-in-Council number 157-11/848, effective June 20,
1957. The applicant submits that this authority was transferred to CIC but
that it was never promulgated either in the Act or its associated Immigration
and Refugee Protection Regulations, S.O.R./2002-227. The applicant says
that section 72 of the Act cannot be read to include decisions made pursuant to
an order-in-council and consequently that this application is properly brought
as an application pursuant to section 18.1 of the Federal Courts Act.
[23]
The respondent submits that IFHP has been exclusively under the
jurisdiction of CIC as an “immigration matter” since 1993. The respondent submits
that it was Parliament’s intention in enacting section 72 of the Act to ensure
that all decisions made in relation to immigration matters be subject to the
leave requirement of that section. The respondent submits that a matter may
fall within section 72 of the Act, whether or not it is explicitly mentioned in
either the Act or its Regulations. The respondent says that it is the
immigration-related content of the Order-in-Council that should be considered,
and that this content brings decisions made pursuant to it under section 72 of
the Act.
[24]
Subsection 72(1) of the Act reads
as follows:
|
72. (1) Judicial review by the
Federal Court with respect to any matter — a decision, determination or order
made, a measure taken or a question raised — under this Act is
commenced by making an application for leave to the Court (emphasis added).
|
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi
est subordonné au dépôt d’une demande d’autorisation (je souligne).
|
[25]
The operative part of subsection 72(1),
for the purpose of the issue before the Court, is the phrase “under this Act.”
When subsection 72(1) is read without the words between the hyphens it reads as
follows:
|
72. (1) Judicial review by the
Federal Court with respect to any matter … under this Act is commenced by
making an application for leave to the Court.
|
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure … prise dans le
cadre de la présente loi est subordonné au dépôt d’une demande
d’autorisation.
|
[26]
In my view, this language makes it clear that the intent of Parliament
was that in order to come within the scope of subsection 72(1) of the Act, the
subject of the application must be a matter under the Act. Had
Parliament intended the broad scope urged upon the Court by the respondent, it would
have added the words “immigration” before “matter” and the words “or otherwise”
after “this Act”, but it did not.
[27]
It is my view that properly interpreted, for
a decision to be subject to subsection 72(1) of the Act, it must be made
pursuant to the Act or its associated Regulations. Decisions related to IFHP
eligibility cannot be said to be “under this Act” because there is no statutory
authority for the IFHP under either the Act or the Regulations. The
Order-in-Council pursuant to which this decision was made and the others that
preceded it were not made under the Act; indeed the Act, as it currently stands,
did not exist at the time.
[28]
Given the wording of subsection 72(1) of
the Act and the fact that the legal basis for the decision under review is an
Order-in-Council and is not the Act, it follows that an application for
judicial review under the Act is not proper; an application challenging the
decision may only be made pursuant to section 18.1 of the Federal Courts Act.
For this reason that application in Docket No. IMM-3761-09 will be dismissed.
What is the proper
interpretation of Order-in-Council number 157-11/848?
[29]
The parties differ on the fundamental question of whether, given her
particular circumstances, the Order-in-Council authorizes the Minister to pay the
applicant’s medical expenses. The applicant submits that “as someone without
status who has submitted various applications to Citizenship and Immigration
Canada [she] is clearly someone who is ‘subject to Immigration jurisdiction’”
as set out in paragraph (b) of the Order-in-Council. The respondent submits
that “a careful reading … shows that the beneficiaries of the IFHP,
consistently throughout its entire 60 years of its existence, have almost
exclusively been those legally admitted to Canada as new immigrants, and more
recently, also those persons welcomed to Canada on the basis of their need for
Canada’s protection on refugee or humanitarian grounds” (emphasis in the
original omitted).
[30]
The respondent provided the Court with a historical record of the
provisions that have permitted the relevant government department to pay for medical
care. The respondent submits that this record affirms his view that medical
care provided at the expense of the government is available only to those
legally admitted to Canada.
[31]
The record reveals that Canada initially provided payment of medical
expenses to specific classes of immigrants – ex-members of the Polish Armed
Forces from the Second World War, followed by those in displaced persons’ camps
in Europe.
[32]
The first authority for such payments was Order in Council P.C. 3112 of
July 23, 1946. That Order authorized the selection and movement of some 4,000
single ex-members of the Polish Armed Forces from Europe to Canada to undertake
employment in agriculture. It also provided authority to the government to pay
for medical and hospital expenses for those suffering from specified diseases
or conditions during the first two years “following entry into Canada.” The
payment of such services was later extended, under prescribed circumstances,
beyond the two-year period by P.C. Minute dated March 15, 1949.
[33]
The next authorization is set out in a Minute of the Privy Council dated
December 30, 1947. The Minute stipulated that it was to apply only to those
who had been in Canada for less than six months. It reads, in relevant part,
as follows:
… [I]n a
number of instances where immigrants have been brought to Canada from Displaced
Persons’ camps in Europe pursuant to Order in Council P.C. 2180 and from other
places under similar arrangements, hospital or medical care has been found
necessary for such persons within a short time following entry into Canada.
…
… [T]he Department
of Labour be authorized to pay or to guarantee the payment of costs of
hospitalization and medical services for immigrants brought to Canada under the
provisions of Order in Council P.C. 2180 … where in the opinion of the
Department of Labour it is necessary that such services be provided to take
care of an emergency situation occasioned by accident or sickness and the
immigrant is, in the opinion of the Department, unable to pay or give
acceptable assurance for the payment of such services or other expenses.
[34]
This class-specific authorization was followed in 1949 by a broader
authorization that more generally covered immigrants to Canada.
Order-in-Council P.C. 41/3888 of August 4, 1949, is described in a letter from
the Deputy Minister of Citizenship and Immigration to the Secretary of The
Treasury Board to have authorized the Department “to pay hospital accounts and
maintenance expenses of immigrants who may become suddenly ill after being
admitted at the port of entry and prior to their arrival at destination, in
such cases where immigrants lack the financial resources to bear these expenses
themselves.”
[35]
Order-in-Council P.C. 41/3888 was rescinded and replaced by Order in
Council P.C. 4/3263 of June 6, 1952, which “authorized the Department of
Citizenship and Immigration to pay the costs of medical and dental care,
hospitalization, and any expenses incidental thereto, on behalf of immigrants
who require such medical attention after being admitted at a port of entry and
prior to their arrival at destination, or while receiving care and maintenance
pending placement in employment, in cases where the immigrants lack the
financial resources to pay these expenses.”
[36]
I agree with the respondents that these instruments provided that it was
only those who had been legally admitted to Canada as immigrants who could
benefit from the payment of their medical expenses. The issue that requires the
Court’s determination, is whether that continued to be the case when, on June
20, 1957, Order-in-Council P.C. 157-11/848 was passed. It is the current
authority for the IFHP and it 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 costs
of medical and dental care, hospitalization, and any expenses incidental
thereto, on behalf of:
(a) an
immigrant, after being admitted at a port of entry and prior to his arrival at
destination, or while receiving care and maintenance pending placement in
employment, and
(b) a person
who at any time is subject to Immigration jurisdiction or for whom the
Immigration authorities feel responsible and who has been referred for
examination and/or treatment by an authorized Immigration officer,
in cases
where the immigrant or such a person lacks the financial resources to pay these
expenses, chargeable to funds provided annually by Parliament for the
Immigration Medical Services of the Department of National Health and Welfare.
(underlining in the original)
[37]
It will be noted that paragraph (a) above, is largely a reiteration of Order
in Council P.C. 4/3263 of June 6, 1952. In order to be covered under (a), the
person whose medical expenses are being paid must be an “immigrant” to Canada.
The terms “immigrant” and “Immigration jurisdiction”, which are found in
paragraph (b) of the Order-in-Council are not defined therein or in the current
Act or its Regulations. The term “immigrant” was defined in The Immigration
Act which was in force at the time the Order-in-Council was passed. It
provided that “immigrant” meant “a person who seeks admission to Canada for
permanent residence:” The Immigration Act, S.C. 1952, c. 42, s. 2(i).
[38]
The applicant submits that she became an “immigrant” within the meaning
of paragraph (a) of the Order-in-Council when she “filed” her H&C
application. However, an H&C application can only be said to have been
filed when it has been filed in accordance with the rules and regulations that
pertain to it. In the applicant’s case, that was not done and therefore no
H&C application for the applicant has been filed.
[39]
The history of the applicant’s purported application is described by
Justice Snider in Toussaint I and may be summarized as follows. On
September 12, 2008, the applicant forwarded an H&C application under cover
requesting that she be exempted from paying the processing fee of $550.00. On
January 12, 2009, her application was returned without processing with a cover
letter that provided, in part: “If you wish to apply for permanent residence
in Canada your application must be accompanied by the required fee.” There is
no evidence that the applicant has ever submitted an application with the
required fee and, in my opinion, the applicant cannot be said to have sought
admission to Canada for permanent residence. To hold otherwise would entail
that anyone who sends a letter or an application without payment to the
Minister requesting permanent resident status would be an “immigrant” to Canada.
This, in my view, would expand the meaning of the term beyond recognition. In
any event, paragraph (a) provides that it applies to an immigrant “after being
admitted at a port of entry and prior to his arrival at destination.” In my
view, this means that the person covered must have been admitted at a port of
entry as an immigrant. Ms. Toussaint has never been admitted to Canada
as an immigrant. She entered Canada on a visitor’s visa and was thus admitted
to Canada as a temporary resident, not as an immigrant. Furthermore, her
temporary resident visa has expired.
[40]
The applicant further submits that she is covered under paragraph (b) because
she is a person “subject to Immigration jurisdiction”. The applicant’s
position is that anyone who may possibly be captured by the provisions of the Act
is someone who is “subject to Immigration jurisdiction” within the meaning of
the Order-in-Council. This would entail that anyone in Canada, other than a
Canadian citizen or a permanent resident whose status is not under challenge,
would be a person subject to Immigration jurisdiction.
[41]
I do not accept that submission. If the phrase “subject to Immigration
jurisdiction” were to be given the broad interpretation the applicant proposes,
then it would include, among others, “an immigrant, after being admitted at a
port of entry and prior to his arrival at destination.” In short, the persons
captured under paragraph (a) would be also captured under paragraph (b).
Paragraph (a) would thus be redundant.
[42]
It is a principle of statutory interpretation that it is presumed that
the legislators avoid superfluous words: Ruth Sullivan, Sullivan on the
Construction of Statutes, 5th ed. (Markham, ON: LexisNexis, 2008) at p. 210.
“It is a well accepted principle of statutory interpretation that no
legislative provision should be interpreted so as to render it mere
surplusage:” R. v. Proulx, 2000 SCC 5 at para.
28. The interpretation proposed by the applicant offends this rule.
Therefore, the phrase “subject to Immigration jurisdiction” must have a
narrower meaning than the applicant submits.
[43]
The respondent submits that one is subject to Immigration jurisdiction
if there is some action or proceeding being taken with respect to that person
under the legislative regime or powers by the Immigration authorities. The
respondent says that these words in the Order-in-Council must be understood in their
usual and ordinary sense. The respondent submits that everyone other than a
citizen is subject to the provision of the Act, but not all of those people are
subject to Immigration jurisdiction. It is submitted that it is only those
persons who are under the custody and care of the Immigration authorities, or
who are the subject of an immigration proceeding provided for in the Act, are
subject to Immigration jurisdiction.
[44]
In my view, the respondent’s interpretation is correct. I find support
for that view in the letter from the Minister of National Health and Welfare
who, with the concurrence of the Minister of Health, recommended the wording of
the Order-in-Council. The Ministers explained the rationale for recommending
the revocation of Order in Council P.C. 4/3263 and the passage of
Order-in-Council P.C. 157-11/848, 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; …
[emphasis
added]
[45]
The words I have underlined in the third recital above make it clear
that the intent of the legislators was to increase the scope of persons for
whom the government could pay medical expenses by the addition of two specific groups
of persons. As shall be discussed later, the increased scope of the
Order-in-Council may extend somewhat beyond these two specific groups.
[46]
The first group described in the Ministers’ letter is comprised of those
persons who are thought by the authorities to be immigrants but whom, in fact,
may or may not be immigrants as their status has yet to be determined. A
person whose status has not yet been determined must be a person who has not
yet been admitted to Canada, because once admitted, their status, whether as an
immigrant or otherwise, has been determined. Therefore, persons falling within
this first group are persons who have not yet been admitted to Canada.
Accordingly, the first group intended to be captured by the Order-in-Council
are persons thought by the Immigration authorities to be immigrants but who may
not be immigrants as their status has not yet been determined, and who have not
yet been admitted to Canada.
[47]
With respect to the first group, the most likely circumstance in which the
authorities might think that a person is an immigrant but not yet have
determined that to be the case, is when a person arrives at a port of entry and
is unable because of illness, speech impairment, or inability to speak English
or French to let it be known that he or she wishes to enter Canada as a
permanent resident and not in some other capacity. In such circumstances,
where the person is in immediate need of medical attention, the government may
reimburse the medical costs.
[48]
That first group of persons would not include persons who have made an
application for permanent residence or have indicated their intent to do so because
in those circumstances their immigration status has been determined, even if
their application has not yet been processed or approved.
[49]
The second group described in the Ministers’ letter is comprised of
those persons who are not immigrants but “who are temporarily under the
jurisdiction of Immigration authorities” and who have an urgent need for
medical treatment. Persons temporarily under the jurisdiction of the
Immigration authorities who are not immigrants would be those persons who are
passing through a port of entry and thus subject to the jurisdiction of the
Immigration authorities, those persons whose status in Canada 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 since refugee claimants are subject to a removal order that is
unenforceable pending determination of their eligibility to make a claim,
adjudication of that claim, and any subsequent application for judicial review
of a negative decision by the Immigration and Refugee Board.
[50]
Paragraph (b) of the Order-in-Council includes these two groups of
persons; however, it also says that it includes a person “for whom the
Immigration authorities feel responsible and who has been referred for
examination and/or treatment by an authorized Immigration officer.” This
further extension of the payment of medical expenses is consistent with the
statement made in the fourth recital above that the department pays for medical
expenses “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.” The Department under this authority has
accepted that it will cover medical expenses for persons who have been subject
to human trafficking. The Department, under this authority, also covers the
medical expenses of resettled refugees and successful refugee claimants pending
their eligibility for provincial health care plans, and in some cases, provides
supplemental coverage even after refugees qualify for provincial plans. These
categories of persons, for which the Department feels responsible, are narrow,
well-defined, temporary, and predominantly composed of individuals in high need
of assistance; this narrow categorization is consistent with the requirement
discussed above that such coverage only be given on rare and well justified
occasions.
[51]
Properly interpreted, Order-in-Council P.C. 157-11/848 does not apply to
the applicant and she is not eligible for IFHP 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.
Did the
Minister commit a reviewable error?
[52]
Order-in-Council P.C. 157-11/848 authorizes but does not require the
Minister or his delegate to pay the health care costs of certain classes of
individuals. Thus, the provision of health coverage under the IFHP is a
discretionary power exercised by the Minister or his delegate.
[53]
The applicant submits that the Minister’s delegate, the Director, Program Management and Control, Health
Management Branch at CIC, fettered his discretion by relying solely on the
Departmental guidelines and failing to consider whether she was eligible for
the IFHP under Order-in-Council P.C. 157-11/848, notwithstanding the
fact that she was ineligible pursuant to the guidelines. The applicant submits
that had the decision-maker turned his mind to the Order-in-Council, he would
have found that the applicant is subject to Immigration jurisdiction because
she “has submitted various applications to Citizenship and Immigration Canada”
and that this, combined with her medical need and inability to pay, qualify her
for IFHP coverage under the Order-in-Council. The respondent submits that the
decision-maker properly interpreted the Order-in-Council and reasonably
concluded that the applicant was not eligible for IFHP coverage.
[54]
Fettering is an error of law.
[A]n agency
may not fetter the exercise of its statutory discretion, or its duty to
interpret and apply the provisions of its enabling statute, by mechanically
applying a rule that it had previously formulated, other than where it is
properly enacted pursuant to a statutory power to make subordinate
legislation…. [T]he issue in each case is not whether the rule, guideline,
precedent, policy, or contract was a factor, or even the determining factor, in
the making of a decision, but whether the decision-maker treated it as binding
or conclusive, without the need to consider any other factors, including
whether it should apply to the unique circumstances of the particular case: Donald
J.M. Brown & John M. Evans, Judicial Review of Administrative Action in
Canada, vol. 3, loose leaf (Toronto: Canvasback Publishing, 1998) at ¶12:4410.
[55]
There is nothing improper about agencies making and relying on
guidelines to assist in their administrative decision-making processes. On the
contrary, guidelines have beneficial purposes such as ensuring administrative
consistency in decision-making: Thamotharem
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198.
Agencies do not need enabling statutory authority to make and rely on
guidelines: Ainsley Financial Corp. v.
Ontario Securities Commission (1994),
21 O.R. (3d) 104 (C.A.). “Although not legally
binding on a decision maker in the sense that it may be an error of law to
misinterpret or misapply them, guidelines may validly influence a decision
maker's conduct:” Thamotharem at para. 59. Nonetheless,
a decision-maker who makes a decision based solely on a guideline and without a
focus on the underlying law, fetters his discretion.
Nonetheless,
while agencies may issue guidelines or policy statements to structure the
exercise of statutory discretion in order to enhance consistency,
administrative decision makers may not apply them as if they were law. Thus, a
decision made solely by reference to the mandatory prescription of a guideline,
despite a request to deviate from it in the light of the particular facts, may
be set aside, on the ground that the decision maker's exercise of discretion
was unlawfully fettered: Thamotharem at para. 62.
[56]
In my view, the decision-maker in this case applied
the Department’s guidelines on eligibility for IFHP coverage as if they were
law and fettered his discretion. The decision-maker reviewed the limited
purpose of the IFHP as adjunct coverage for certain groups of migrants who do
not qualify for coverage under a provincial health care plan. The
decision-maker listed examples of these groups as set out in the guidelines.
The decision-maker determined that the applicant did not fall into any of these
examples as found in the guidelines and that she had “no active immigration
application with Citizenship and Immigration Canada (CIC).” The
decision-maker did not expressly consider Order-in-Council P.C. 157-11/848.
[57]
The decision-maker did not expressly consider whether the applicant was
temporarily under the jurisdiction of Immigration authorities. It could be
argued that the decision-maker’s reference to a lack of an active immigration
application is an implicit determination that the applicant was not subject to Immigration
jurisdiction. However, there is no explicit or implicit consideration in the
decision-maker’s reasons of whether the Immigration authorities felt
responsible for the applicant and should exercise the discretionary authority
to provide IFHP coverage.
[58]
The decision-maker’s reasoning was limited to the applicant’s failure to
show how she fell into the categories of persons set out in the guidelines.
The decision-maker never considered whether these categories were exhaustive
and whether Order-in-Council P.C. 157-11/848 could embrace a wider group of
persons that included the applicant. Instead, the decision-maker relied on the
list of categories in the guidelines as if they were an exhaustive list of the
persons eligible for IFHP coverage and as if they were the binding legal
authority on the decision-maker. In this respect, the decision-maker fettered
his discretion.
[59]
Not every administrative error, even if it constitutes a reviewable
error, will result in the quashing of a decision. Where the error is
immaterial to the result, a reviewing court may exercise its discretion not to
set aside the decision: Patel v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 55.
[60]
In this case, the decision-maker’s fettering of his discretion was not
material to the outcome of the applicant’s application for IFHP coverage. Had
the decision-maker properly considered and interpreted Order-in-Council P.C.
157-11/848 he would have concluded that the applicant was not eligible for IFHP
coverage. The applicant was not an immigrant in the sense that she was
applying for permanent residence. The applicant was not temporarily under the
jurisdiction of Immigration authorities.
[61]
Furthermore, while the applicant did not fall under one of the
categories of persons that the Department had traditionally felt responsible
for and for which it was authorized under Order-in-Council P.C. 157-11/848 to
pay the health care costs, she would not have fallen within the
Order-in-Council, even if that category had been expanded to include her
circumstances. The Order-in-Council provides that coverage may be provided to
“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”
(emphasis added). As is seen, it is not sufficient that the person be one for
whom the authorities feel responsible, the person must also have been referred
for examination and/or treatment by an authorized Immigration official. No
such referral was made with respect to Ms. Toussaint.
[62]
The applicant was in Canada on her own volition and without any legal
status. Unlike resettled refugees or victims of trafficking, and given the
applicant’s lack of a permanent residence application, the applicant did not
and would not qualify for IFHP coverage under Order-in-Council P.C. 157-11/848 if
properly interpreted. As such, the decision-maker’s error was immaterial to
the result. I exercise my discretion not to set aside the decision on this
basis.
Was the
decision contrary to principles of international law?
[63]
It is trite law that “[i]nternational treaties and conventions are not
part of Canadian law unless they have been implemented by statutes:” Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 at para. 69. It is also well-established that international law can
be used to interpret domestic law including the Constitution.
International
treaty norms are not, strictly speaking, binding in Canada unless they have
been incorporated into Canadian law by enactment. However, in seeking the
meaning of the Canadian Constitution, the courts may be informed by
international law. Our concern is not with Canada’s international obligations qua
obligations; rather, our concern is with the principles of fundamental
justice. We look to international law as evidence of these principles and not
as controlling in itself: Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at para. 60.
[64]
The applicant submits that the right to healthcare is protected by
international law. More specifically, she says that Article 12(1) of the International
Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993
U.N.T.S. 3, Can. T.S. 1976 No. 46
[ICESCR] and the International Convention on the Elimination of All
Forms of Racial Discrimination, 7 March 1966, 660 U.N.T.S. 195, Can. T.S. 1970
No. 28
[ICERD] “should inform the interpretation and application” of the Charter
in this case. The applicant submits that to comply with Canada’s
international human rights obligations the IFHP must be extended to cover “any
person subject to Immigration jurisdiction who lacks the means to pay for
necessary healthcare.” The respondent, for its part, makes no submissions on
the application of international law in this case.
[65]
Article 12(1) of the ICESCR reads: “The States Parties to the
present Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.”
[66]
Article 5 of the ICERD reads:
In compliance
with the fundamental obligations laid down in article 2 of this Convention,
States Parties undertake to prohibit and to eliminate racial discrimination in
all its forms and to guarantee the right of everyone, without distinction as to
race, colour, or national or ethnic origin, to equality before the law, notably
in the enjoyment of the following rights:
…
(e) Economic,
social and cultural rights, in particular:
…
(iv) The right
to public health, medical care, social security and social services;
…
[67]
While there is an international right to health, “[d]efining the content
of a right to health is a formidable challenge:” Eleanor D. Kinney, “The
International Human Right to Health: What Does This Mean for Our Nation and
World?” (2001) 34 Ind. L. Rev. 1457 at 1457. “Health” is not necessarily equivalent
to “healthcare”. Nor does a right to health necessarily place a positive
obligation on a state to provide specific health services. Even more
contentious at international law is whether a right to health places positive
obligations on a state to provide certain health services to non-citizens
present in a state’s territory with or without status.
[68]
The applicant cites various commentaries from the international bodies
that supervise the ICESCR and the ICERD. Such commentaries are
persuasive but not binding on the Court. The commentaries cited advocate an
interpretation of the ICESCR and the ICERD that grants
non-citizens the same right to health as citizens regardless of their
immigration status. For example, the Committee on Economic, Social and
Cultural Rights, in its general comment on the meaning of the “right to the
highest attainable standard of health” contained in Article 12(1), contends
that “States are under the obligation to respect the right to health by,
inter alia, refraining from denying or limiting equal access for all
persons, including … illegal immigrants, to preventive, curative and palliative health services:” The
right to the highest attainable standard of health, UNCESCR, 22d Sess.,
General Comment No. 14, UN Doc. E/C.12/2000/4 (2000) at para. 34. By contrast,
the Office of the United Nations High Commissioner for Human Rights and the
World Health Organization recognize that:
States
have explicitly stated before international human rights bodies or in national
legislation that they cannot or do not wish to provide the same level of
protection to migrants as to their own citizens. Accordingly, most countries
have defined their health obligations towards non-citizens in terms of
“essential care” or “emergency health care” only. Since these concepts mean
different things in different countries, their interpretation is often left to
individual health-care staff. Practices and laws may therefore be
discriminatory: Office of the United Nations High Commissioner for Human Rights
& World Health Organization, The Right to Health: Fact Sheet No. 31
online: OHCHR < http://www.ohchr.org/Documents/Publications/Factsheet31.pdf>
at 19.
[69]
It is notable that Canada has not signed the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their
Families, 18 December 1990, UN Doc. A/RES/45/158. Article 28 of that
Convention reads:
Migrant
workers and members of their families shall have the right to receive any
medical care that is urgently required for the preservation of their life or
the avoidance of irreparable harm to their health on the basis of equality of
treatment with nationals of the State concerned. Such emergency medical care
shall not be refused them by reason of any irregularity with regard to stay or
employment.
If the right to health is as wide
in scope as the above United Nations supervisory organizations advocate there
would be little need for further protection of migrant workers such as those
found in Article 28 of the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families.
[70]
Given the applicant’s predominant reliance on the Charter, and
the fact that Canada has not expressly implemented either the ICESCR or
the ICERD in domestic legislation, it is not necessary to pronounce on
the contested scope of the international legal right to health. This
application cannot succeed on the basis of the alleged international law
obligations of Canada because Canada has not expressly implemented them.
Whether the decision violated section 15 of the
Charter?
[71]
Before turning to the applicant’s Charter arguments it is important
to comment on the division of powers aspects of this case. Constitutional
responsibility for healthcare in Canada falls primarily under provincial powers.
Nonetheless, there is some federal responsibility for healthcare, most notably
through the Canada Health Act, R.S.C. 1985, c. C-6. An argument could
be made that the applicant should have formally applied for health coverage
under the Province of Ontario’s public insurance plan, and if refused, brought
her Charter arguments on the basis of that refusal.
[72]
Once cabinet passed Order-in-Council P.C. 157-11/848 it created a
benefit program that, with the advent of the Charter, is subject to Charter
scrutiny. Even though the applicant could have challenged her apparent
exclusion from provincial health coverage there is nothing stopping her from
challenging her exclusion from the IFHP on the basis that her exclusion from
the IFHP violates her Charter rights.
[73]
The applicant submits that the denial of her application for coverage
under the IFHP violated her right to non-discrimination under s. 15 of the Charter
because it amounted to a distinction on the basis of disability and
citizenship. The respondent submits, citing Chaoulli v. Québec (Attorney General), 2005
SCC 35, that there is no freestanding constitutional right to healthcare under
the Charter. The respondent reasons that if there is no such freestanding
right for citizens of Canada then “it clearly follows that non-citizens
residing illegally in Canada certainly do not” possess such rights. The
respondent submits that in Auton v. British Columbia (Attorney General),
2004 SCC 78, the Supreme Court rejected the argument, based on s. 15 of the Charter,
that Canadian citizens are entitled to all medically required treatment.
[74]
The Supreme Court’s decision in Chaoulli must be approached with
some caution. In Chaoulli, the issue was not whether there is a
freestanding right to health care under the Charter; the issue was
whether the Province of Québec
could prohibit Québeckers
from purchasing insurance to obtain private medical services that were
conjointly available under the public health care plan. I say that the
decision must be approached with some caution because the dispositive, or
“tie-breaker” reasons provided by Justice Deschamps were based on the Québec
Charter and not the Charter. Three judges agreed with Justice
Deschamps, but were also of the view that the prohibition of private medical
insurance was also a violation of the Charter. Three judges disagreed
with Justice Deschamps and were of the view that the prohibition did not
violate the Charter. All the commentary provided by both the majority
group of three and the dissenting group of three, insofar as it comments on the
right to health and the Charter, is obiter.
[75]
More importantly, in my view, the respondent has misconstrued the
holding of the majority group of three. The respondent accurately cites the
decision of Chief Justice McLachlin and Justice Major; they held that “[t]he Charter
does not confer a freestanding constitutional right to health care”: Chaoulli
at para. 104. What the respondent fails to note is that they went on to
state: “However, where the government puts in place a
scheme to provide health care, that scheme must comply with the Charter”: Chaoulli at para.
104. The present case is concerned with a scheme (the IFHP) that the
government has put in place to provide health care to certain individuals; it
is not concerned with whether non-citizens, or citizens for that matter, have a
freestanding right to healthcare.
[76]
Similarly, it is my view, that the respondent
misconstrued the Supreme Court’s decision in Auton. In Auton,
the issue was whether the Province of British
Columbia’s "refusal to fund a particular treatment for
preschool-aged autistic children violates the right to equality" under s.
15 of the Charter: Auton at para. 1. The Court determined that
such refusal did not violate s. 15 of the Charter.
[77]
The Supreme Court held, at para. 28, that s. 15(1) of the Charter
is confined "to benefits and burdens imposed by law." The Court
characterized the respondent autistic families' claim as "funding for all
medically required treatment:" Auton at para. 30. The Court
determined that "the legislative scheme does not promise that any Canadian
will receive funding for all medically required treatment:" Auton at
para. 35. Since the benefit claimed by the respondents "was not provided
for by the law" there could be no s. 15(1) breach. Everything else the
Court discussed after this finding is obiter, including the paragraphs
relied on by the respondent.
[78]
The Supreme Court distinguished Auton from Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R.
624, which "was concerned with unequal access to a
benefit that the law conferred and with applying a benefit-granting law
in a non-discriminatory fashion:" Auton at para. 38 (emphasis in
original). In the case before this Court, the applicant is not asking for
funding for all medically required treatment. In this case, like in Eldridge,
there is a law that confers a benefit; the eligibility requirements for that
benefit result in unequal access and therefore, the question is whether the
unequal access is discriminatory. The question is not whether the Department
must establish the IFHP, the question is whether the IFHP, once established, is
discriminatory on the ground that it excludes certain individuals on the basis
of an enumerated ground.
[79]
The applicant submits that she is discriminated against on
the basis of her disability and on the basis of her lack of Canadian citizenship.
Neither submission is convincing.
[80]
There is no doubt that the applicant is disabled with high
medical needs; however, the applicant was not excluded from IFHP coverage
because of her disability. Unlike Nova Scotia
(Workers’ Compensation Board) v. Martin, 2003 SCC 54, to which
the applicant attempted to draw an analogy, Ms. Toussaint’s specific disability
was not excluded from the benefit program.
[81]
Similarly, the applicant was not excluded from IFHP
coverage on the basis of her lack of Canadian citizenship. The applicant was
excluded from coverage because of her illegal status in Canada.
Only if “immigration status” is an analogous ground could the applicant’s
exclusion from IFHP coverage be said to violate s. 15(1) of the Charter.
[82]
The applicant did not argue that “immigration status” was such
an analogous ground. It is not for the Court in Charter cases to
construct arguments for the parties or advance them on their behalf. Given the
applicant’s failure to argue that “immigration status” was an analogous ground,
the applicant’s s. 15(1) argument must fail.
[83]
In this case, the applicant has not established that in denying her IFHP
coverage the decision-maker drew a distinction based on an enumerated ground.
The applicant was not discriminated against because of her disability or
because of her citizenship; consequently, the applicant’s s. 15(1) argument
must fail.
Whether the decision violated section 7 of the Charter?
[84]
The applicant submits that delay in receiving medical treatment has been
recognized by the Supreme Court as engaging s. 7 of the Charter. The
applicant submits that in her case the delays she has experienced increased her
“risk of life threatening illness,” caused her to suffer long-term pain, and
caused her serious psychological suffering and anxiety, all of which negatively
impact her long-term health. The applicant contends that her circumstances are
analogous to Chaoulli in that she is not asking for a “new benefit but
only access to an existing one.” The applicant submits that her exclusion from
the IFHP is arbitrary and not consistent with the requirements of fundamental
justice.
[85]
The respondent submits that the applicant is the author of her own predicament.
The respondent cites R. v. Lyons, [1987] 2 S.C.R. 309 for the proposition
that s. 7 of the Charter does not confer on individuals the most
favourable procedure imaginable. The respondent says that
[p]roviding
unlimited and free access to Canada’s healthcare to all persons living in
Canada, be they Canadian citizens and permanent residents or nationals of other
countries choosing to reside in Canada illegally, may indeed be ‘the most
favourable procedure imaginable’, but it is not the procedure reasonably and
legitimately chosen by the government of Canada.
[86]
To establish a breach of s. 7 of the Charter the applicant must
prove (1) that the Charter applies to her circumstances, (2) that she
was deprived of her right to life, liberty and/or security of the person, and (3)
that this deprivation was not consistent with principles of fundamental
justice.
[87]
In my view, there can be no doubt that the IFHP, and the applicant’s
exclusion, constitutes “government action” to which the Charter generally
applies. In Singh v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177 at 202, the
Supreme Court held that the word “everyone” in s. 7 of the Charter “includes
every human being who is physically present in Canada….” Accordingly, there
can be no debate that non-citizens in Canada, including illegal immigrants, are
entitled to the protections of s. 7 of the Charter. Such a broad
conception of s. 7 is consistent with the notion that all human beings,
regardless of their immigration status, are entitled to dignity and the
protection of their fundamental right to life, liberty and security of the
person. This does not mean that non-citizens, and in particular illegal
migrants, are entitled to remain in Canada.
[88]
There is no international legal right to migration. Article 12 of the International
Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171,
Can. T.S. 1976 No. 47
protects the freedom of mobility of persons “lawfully within the
territory of a State” as well as the right of persons to leave any country and
to return to their own country, but it does not confer a freestanding right to
migration (emphasis added). Consistent with this absence of a right to
migrate, the Supreme Court has held that:
[t]he most fundamental principle of immigration law is that
non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a
non-citizen in itself cannot implicate the liberty and security interests
protected by s. 7 of the Canadian Charter of Rights
and Freedoms: Medovarski
v. Canada
(Minister of Citizenship and Immigration), 2005
SCC 51 at para. 46.
[89]
Further, s. 7 of the Charter may not be implicated even in
situations where the deportation of a non-citizen to their home country exposes
them to jeopardy resulting from the inability of their home country to provide
life-sustaining medical treatment. In Covarrubias v. Canada
(Minister of Citizenship and Immigration), 2006 FCA 365, the applicant
suffered from end-stage renal failure for which he was receiving
life-sustaining hemodialysis treatment in Canada. This treatment was not
available in his home country. The applicant filed a pre-removal risk
assessment (PRRA) application arguing that he faced a risk to his life if
returned to his home country, where he would not be able to receive the same
life-sustaining treatment, and would surely die. The Court of Appeal upheld
the rejection of the applicant’s PRRA application finding that another State’s
allocation of healthcare resources could not form the basis for a successful
PRRA decision unless the allocation was made to deliberately exclude the
specific applicant from treatment in a persecutory manner. The Court of Appeal
did not address the applicant’s Charter arguments finding that they were
without the proper evidentiary foundation and that the applicant had other
avenues to explore prior to bringing a Charter application.
[90]
Ms. Toussaint is in Canada without status. She may not be able to
obtain the medical care she needs if deported from Canada. Nonetheless, there
are no current barriers that prevent Canada from instigating removal
proceedings against the applicant. For reasons that are not before the Court, such
proceedings have not been instigated and the applicant remains in Canada. In
light of the applicant’s physical presence in Canada, it is necessary to
proceed to the second and third requirements for establishing a breach of s. 7
of the Charter.
[91]
Delay in medical treatment and severe psychological stress caused by government
action have both been recognized as implicating the life, liberty and security
of the person protections in s. 7 of the Charter: Chaoulli, supra;
R. v. Morgentaler, [1988] 1 S.C.R. 30; New Brunswick (Minister of
Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. The
evidence before the Court establishes both that the applicant 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 IFHP coverage
has exposed her to a risk to her life as well as to long-term, and potentially
irreversible, negative health consequences. The medical evidence before the
Court establishes that
[i]f she 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).
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 IFHP.
[92]
The applicant says that her exclusion from health care is not consistent
with principles of fundamental justice because it is arbitrary. The respondent
says that the applicant’s exclusion from the IFHP is fundamentally just because
the program was never intended for illegal migrants who chose to come to Canada
and to remain here illegally by choice.
[93]
At its core, the purpose of the IFHP is to provide temporary healthcare
to legal migrants. Canada also provides IFHP coverage to some illegal migrants,
such as victims of trafficking, who are often unwittingly illegal migrants. Canada
feels responsible for such illegal migrants because of the fact that they have
been exploited by unscrupulous human traffickers. Ms. Toussaint is neither a
legal migrant nor is she unwittingly an illegal migrant. Although she entered
this country legally, she chose to remain here illegally; there is nothing
stopping her from returning to her country of origin. She has chosen her
illegal status and, moreover, she has chosen to maintain it. I fail to see how
her situation can be said to fall within the purpose of the IFHP. There is a
principled reason why a victim of trafficking is entitled to health coverage
for medical treatment if needed but other illegal migrants are not. The former
is here through deception and manipulation by others; the latter is here by
choice.
[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 heath care and health care services. There is nothing
fundamentally unjust in refusing to create such a situation.
[95]
For these reasons this application is dismissed. Considering the issues
involved which are in the public interest and beyond merely personal interests
to the applicant, and considering the applicant’s personal circumstances, it is
appropriate that there be no order as to costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application is dismissed;
2. A
copy of these Reasons for Judgment and Judgment are to be filed in Docket
IMM-3761-09; and
3. There is no order made as to costs.
“Russel W. Zinn”
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