Toussaint v. Canada (Attorney General)

The applicant challenged the decision of the Citizenship and Immigration Canada’s (‘CIC’) to deny her coverage under the Interim Federal Health Program (‘IFHP’) for her medical care, hospitalization, and related expenses. At the time the applicant began seeking medical services, she was illegally in Canada; her temporary resident visa had expired, and she had not yet applied for permanent residency. Due to her lack of coverage, and inability to pay out-of-pocket, the applicant was often denied services, testing and necessary medication. Her quality of life and longevity were diminished by her lack of access to necessary healthcare.

The applicant challenged CIC’s decision under international and Canadian law, claiming that she was entitled to health benefits under the IFHP. She claimed the decision to deny her coverage violated her right to healthcare under Article 12(1) of International Covenant on Economic, Social and Cultural Rights [ICESCR], Article 5(e)(iv) of the International Convention on the Elimination of All Forms of Racial Discrimination [ICERD], as well as her rights under the Canadian Charter of Rights and Freedoms (‘Charter’). Particularly, she invoked her section 7 “right to life, liberty and security of the person, and … right not to be deprived thereof except in accordance with the principles of fundamental justice”, and section 15(1) right to non-discrimination. She contended that she was seeking equal access to an existing benefit rather than a new benefit, and she submitted that her exclusion from the IFHP was arbitrary and inconsistent with the principles of fundamental justice.

The Court held that the applicant was not entitled to IFHP coverage, and found that CIC’s decision to deny her coverage did not violate the Charter. The Court found that the applicant did not qualify for coverage because she did not fall within one of the groups to which IFHP coverage was available: persons whose immigration status had yet to be determined, non-immigrants temporarily under the jurisdiction of immigration authorities, and narrow, well-defined categories of persons for whom immigration authorities felt responsible, like unwitting victims of human trafficking.

The Court refused to consider whether CIC’s decision to deny coverage to the applicant violated principles of international law. Canada had not expressly implemented either the ICESCR or ICERD, and, consequently, these international human rights instruments were not part of Canadian law.

The Court further held that CIC’s decision to deny IFHP coverage did not violate the applicant’s section 7 Charter rights. The Court acknowledged that the Charter applied to someone in the applicant’s circumstances, and furthermore, found that her exclusion from the IFHP had infringed her right to life, liberty and security of the person because the applicant had experienced extreme delay in receiving medical treatment. The Court also found that exclusion from IFHP coverage had exposed her to long-term, and potentially irreversible, negative health consequences. However, the Court held the exclusion of illegal migrants from the IFHP, as a temporary healthcare remedy for legal migrants and unwitting illegal migrants, was not arbitrary, unjustified or inconsistent with principles of fundamental justice. The Court found that the applicant had not only chosen her illegal status, but also chosen to maintain it.

Finally, the Court held that the applicant’s exclusion from the IFHP did not violate her right to non-discrimination under section 15(1) of the Charter. The Court found that she was not discriminated against based on her disability or her citizenship. Also, the Court indicated that immigration status could possibly qualify as an analogous ground of wrongful discrimination, but noted that the applicant did not advance such an argument.

“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.” (Para 93)

“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.” (Para 94)