Nell Toussaint v. Attorney General of Canada, 2011 FCA 213

This week, the Supreme Court of Canada refused leave to appeal from the Federal Court of Appeal in the case of Nell Toussaint v. Attorney General of Canada. The case considers constitutional arguments against the denial of health coverage to people in Canada contrary to immigration law. Human rights advocates denounced the decision citing Canada’s commitment to international human rights which supports the provision of health care to all people even if they have committed the most heinous of crimes. The case, therefore, provides an interesting look at health law in the immigration sphere.


Ms. Toussaint had come from Grenada in 1999 on a visitor’s visa and never left. She worked until 2006 when her health began to deteriorate and she could no longer work. In order to receive medical benefits, she needed to legitimize her immigration status. In 2008, she attempted to apply for permanent or temporary residency status. She also applied to have the application fees waived but was denied, and so the applications were never processed. In 2009, she applied for benefits under the Interim Federal Health program, in which Citizenship and Immigration Canada covers the cost of emergency medical care for indigent persons that it has legally admitted to Canada under an Order in Council. She was denied coverage because of her illegal immigration status.

She brought an application for judicial review and made the case that a denial of coverage infringed her rights under ss. 7 and 15 of the Charter. The Federal Court dismissed her application, as did the Federal Court of Appeal. As mentioned, the Supreme Court of Canada refused leave to appeal. The crux of the decision in both courts was summarized by Stratas JA. in the FCA decision.

If the Federal Court accepted the appellant’s request, the curiosity of some might be piqued: even though the appellant has disregarded Canada’s immigration laws for the better part of a decade, she would be able to take one of Canada’s immigration laws (the Order in Council), get a court to include her by extending the scope of that law, and then benefit from that extension while remaining in Canada contrary to Canada’s immigration laws.

This is a summary of the FCA decision.

Order in Council Interpretation

The Order in Council (OIC PC 1957–11/848) reads:

The Board recommends that Order in Council P.C. 4/3263 of June 6, 1952, be revoked, and that the Department of National Health and Welfare be authorized to pay the costs of medical and dental care, hospitalization, and any expenses incidental thereto, on behalf of:

(a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment, and

(b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer,

in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the Immigration Medical Services of the Department National Health and Welfare.

The Director, Program Management and Control, Health Management Branch decided Ms. Toussaint’s initial application for medical coverage. In his decision, he stated:

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.

Ms. Toussaint argued, first, that “immigrant” in paragraph (a) of the ought to mean “a person who seeks admission to Canada for permanent residence” and that she was in the process of apply for permanent residence. Stratas JA did not accept this interpretation, and instead relied on the definition of an immigrant as set out in the Immigration Act, where

(i) The person seeking admission to Canada for permanent residence was “admitted at a port of entry” but has not “[arrived] at destination,” i.e., is in transit between entry and destination, or

(ii) The person seeking admission to Canada for permanent residence is receiving “care and maintenance pending placement in employment.”

Ms. Toussaint did not fulfill this definition. Stratas JA stressed that the OIC was focused on providing coverage for those who were entering Canada for the first time. The applicant was a visitor who had decided to remain in Canada contrary to immigration laws.

Paragraph (b) of the OIC refers to any “person”, rather than immigrant. Stratas JA again agreed with the Federal Court’s decision in interpreting this paragraph.

However, by way of clarification, “those persons whose status is being processed by the Immigration authorities” must mean a person who sought that status before or upon entry to Canada. The Program could not have been intended to pay the medical expenses of those who arrive as visitors but remain illegally in Canada and who, after the better part of a decade of living illegally in Canada, suddenly choose to try to regularize their immigration status. Coverage for those persons would be against the whole tenor of the Order in Council, the history of the Order in Council, and the Minister’s stated rationale.

The FCA thus agreed with the interpretation of the OIC as excluding Ms. Toussaint from coverage.

Charter Challenges

s. 7 Right to Life and Security of the Person

Ms. Toussaint argued that her exclusion from medical coverage infringed on her right to life and security of the person under s. 7 of the Charter. The court agreed that, despite receiving emergency surgery and life-saving medication without having to pay, Ms. Toussaint was exposed to serious health risks. However, the court did not accept that the Order in Council was the operative cause of the injury to her rights to life and security of the person. (See TrueHope Nutritional Support Limited v. Canada (A.G.), 2011 FCA 114) Rather, the court suggested that the applicant’s own conduct endangered her life, and that had she acted legally and obtained proper immigration status, she would have been entitled to coverage.

Principles of Fundamental Justice

Ms. Toussaint also argued that “[g]overnments ought never to deny access to healthcare necessary to life as a means of discouraging unwanted or illegal activity, including to those who have entered or remained in a country without legal or documented status.” The appellant submits that “[t]his principle is fundamental to judicial and legislative practice in Canada.” Stratas JA rejected this argument as well. In doing so, he cited the broad finding in Chaoulli by McLachlin CJC that the Charter does not confer a freestanding constitutional right to health care (Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at para. 104). Also,

The appellants are, in essence, seeking to expand the law…so as to create a new human right to a minimum level of health care…. [T]he law in Canada has not extended that far…[A] freestanding right to health care for all of the people of the world who happen to be…in Canada would not likely be contemplated by the Supreme Court. (Covarrubias v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 169 at para. 36.)

The court also did not accept an argument that the Order in Council’s exclusion was arbitrary. (at para. 83) Stratas JA took these findings as support that there is no recognized principle to fundamental justice under s. 7 that the applicant receive medical care.

s. 15 Discrimination Under Enumerated and Analogous Grounds

Stratas JA rejected the argument that the applicant had been denied coverage was contrary to s. 15. With regards to discrimination on analogous grounds, he commented

“Immigration status” is not a “[characteristic] that we cannot change.” It is not “immutable or changeable only at unacceptable cost to personal identity.” Finally “immigration status” – in this case, presence in Canada illegally – is a characteristic that the government has a “legitimate interest in expecting [the person] to change.” Indeed, the government has a real, valid and justified interest in expecting those present in Canada to have a legal right to be in Canada. (at para. 99)

A final policy comment was made by the court.

If the appellant were to prevail in this case and receive medical coverage under the Order in Council without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

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