Illegal Immigrants Do Not Have a Charter Right to Health Care

In a case that has generated media publicity, the Federal Court of Appeal has ruled that illegal immigrants do not have a Charter right to health care.  The facts in Toussaint v. Canada, 2011 FCA 213, were simple.  In 1999, the appellant entered Canada as a visitor.  She never left, and never attempted to normalize her status.  In 2006, her health began to deteriorate.  In 2009, she applied to Citizenship and Immigration Canada for medical coverage under the Interim Federal Health Program (the “IFHP”).  Her request was denied, as the IFHP is limited to refugee claimants, resettled refugees, persons detained under the Immigration and Refugee Protection Act, and Victims of Trafficking in Persons.

The Federal Court of Appeal found that the appellant met none of these conditions, and that the IFHP could not have been intended to pay for the medical expenses of those who arrive as visitors but remain illegally in Canada.

A significant portion of the judgment related to Charter arguments regarding whether denying illegal immigrants access to the IFHP breached the right to life and security of the person (s. 7 of the Charter) or the right to equality (s. 15 of the Charter).

The Right to Life and Security of the Person Challenge

Section 7 of Canada’s Charter of Rights and Freedoms states that:

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Federal Court of Appeal did not disagree with the appellant’s assertion that the denial of health care coverage expose her to significant risk to life and health, or that the risk was significant enough to trigger a violation of her rights to life and security of the person.  It did, however, determine that the denial of health care coverage was not the operative cause of the injury to her rights to life and security.  Rather, it found that the Appellant staying in Canada illegally was the main reason that her life and security of the person was affected.

Furthermore, the Federal Court of Appeal reiterated what has become the accepted jurisprudence that the Charter does not confer a freestanding constitutional right to health care, and that the courts can (and frequently do) deny claims under the Charter to obtain state funding or financial assistance for necessary treatments.

The Equality of Person Challenge

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Although “immigration status” is not mentioned as a prohibited ground for discrimination in s. 15, the courts do have the ability to read in analogous grounds.  In Egan v. Canada, for example, the Supreme Court of Canada held that sexual orientation is an analogous ground.

Unfortunately for the appellants, the Federal Court of Appeal did not accept that immigration status qualifies as an analogous ground under s. 15 of the Charter, primarily because immigration is not a characteristic that an individual cannot change.  The court noted that it is not immutable or changeable only at unacceptable cost to personal identity.  Indeed, the court noted that immigration status is a characteristic that the government has a legitimate interest in expecting a person to change.

There were other reason for dismissing the s. 15 Charter argument, including that the policy did not stigmatize or expose illegal immigrants to prejudice, however, the above is probably the most significant in terms of developing obiter dicta.


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