Press Room

Illegal Immigrants Have No Charter Right to Health Care, Canada’s Federal Court of Appeal Rules

In a recent precedent-setting decision, Canada’s Federal Court of Appeal has ruled that persons who enter or remain in Canadacontrary to its immigration laws have no Charter right to health care coverage under Canada’s Interim Federal Health Program (IFHP).

The IFHP is administered by Citizenship and Immigration Canada (CIC) as an interim measure to provide emergency and essential health care coverage to eligible individuals who do not qualify for private or public (provincial) health coverage and who demonstrate need.

The applicant in this case had entered Canada legally as a visitor but had then overstayed her temporary resident visa. As an illegal immigrant, she was not entitled to coverage under provincial health insurance. Her subsequent application for coverage under the IFHP was refused by the CIC on the ground that she did not meet the Program’s conditions for eligibility. The applicant then launched a constitutional challenge in the Federal Court, arguing that the conditions, established by federal Order in Council, violated her s.7 right to life and security of the person and her s.15 equality rights under the Canadian Charter of Rights and Freedoms.

In a recent ruling upholding the lower court’s decision, the Federal Court of Appeal held that there was no violation of the applicant’s s.7 or s.15 Charter rights.

There was no violation of the applicant’s s.7 Charter right to life and liberty, the Court held, since the applicant failed to show that the conditions for eligibility were the “operative cause” of any injury she had sustained to those rights. The Court noted that the provision of public health care coverage and the regulation of access to it are primarily a provincial responsibility. Thus if there was an operative cause of injury to the applicant’s rights, it was because provincial law did not go far enough in providing the medical treatment she required. The applicant, however, had not challenged the constitutionality of provincial laws and thus that issue was not before the court

Further, and more fundamentally, the Court held, by remaining illegally in Canada for many years without taking any steps to obtain legal status, the applicant—not the federal government—had by her own conduct “endangered her life and health”.  Had she obtained legal immigration status in Canada, she would have been entitled to coverage under provincial health insurance.

The Court also rejected that argument that the principles of “fundamental justice” under s.7 of the Charter require governments in Canada to provide access to health care “to everyone inside our borders… even to those defying our immigration laws”. “The Charter does not confer a freestanding constitutional right to health care”, the Court stated; nor, it held, is there anything arbitrary in denying financial coverage for health care to those who have chosen to enter and/or remain in Canada illegally.

The Court similarly held that there was no violation of the applicant’s s.15 Charter equality rights. In particular, the Court held that “immigration status” did not qualify for protection under s.15, the Order in Council did not in any case discriminate against the applicant in the required sense, i.e. by perpetuating or promoting prejudice or stereotyping, nor was it the operative cause of the disadvantage encountered by the applicant.

Finally, while it was not necessary to do so in this case, the Court noted that “[i]n any analysis of justification [of a Charter violation] under section 1 … the interests of the state in defending its immigration laws would deserve weight. If the appellant were to prevail in this case and receive medical coverage under the Order in Council without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.”

For further information on the implications of the Federal Court of Appeal’s ruling in this case (Toussaint v. Canada (Minister of Citizenship and Immigration) 2011 FCA 213), or for information generally on the requirements and process in applying to immigrate to Canada, please contact the immigration law specialists at Green and Spiegel LLP.