Saturday, July 9, 2011


I was quoted in today's National Post newspaper in connection with the derision of the Federal Court of Appeal denying free public health care to an illegal alien who failed in several immigration applications but wanted to be covered by the emergency Interim Federal Health Plan available to restricted classes of persons.

No Charter rights to health care for illegal immigrants

No Charter rights to health care for illegal immigrants

Adrian Humphreys, National Post · Jul. 9, 2011 Last Updated: Jul. 9, 2011 4:06 AM ET

An illegal immigrant has no right to free medical intervention or ongoing health care under the Charter of Rights, the Federal Court of Appeal has ruled in a precedent-setting decision.

The ruling will help protect Canada from medical tourism, when people come to Canada expressly to get medical treatment paid for by the government, an immigration specialist said.

Nell Toussaint is a citizen of Grenada who came to Canada in 1999 as a visitor. Her visitor's permit expired six months after her arrival, but she remained here without legal status.

In 2006, she developed kidney problems. She has received free medical care, but much more is needed.

In 2008 she applied for a temporary residence permit that would make her eligible for the Ontario Health Insurance Plan. She did not pay the application fee, however, and her application was not processed.

Her health has since deteriorated.

In 2009, she applied to Citizenship and Immigration Canada for medical coverage under the Interim Federal Health Program, which offers emergency medical care for indigent people legally living in Canada.

As an illegal immigrant, her application was declined.

With the backing of refugee support organizations and the Canadian Civil Liberties Association Ms. Toussaint appealed to the courts -seeking both to have her application fees to remain in Canada waived and to gain access to health coverage under the Charter of Rights, which grants the right to life and security of the person.

In May she won her appeal on the application fees, with the Federal Court ordering the government to reconsider its refusal.

The Federal Court of Appeal, however, did not agree with her position on health care or treatment for her medical problems.

"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," says the unanimous decision, written by David W. Stratas and released this week.

"The appellant by her own conduct ... has endangered her life and health. The appellant entered Canada as a visitor. She remained in Canada for many years, illegally. Had she acted legally and obtained legal immigration status in Canada, she would have been entitled to coverage."

The decision has been hailed as a significant and sensible one.

"This case is extremely important because it limits the potential claims that other classes of people in Canada may make for medical coverage, such as visitors or those without any status and under the radar, of which the number is currently unknown but estimated in the hundreds of thousands," said Sergio Karas, a Toronto-based immigration lawyer and analyst.

Iris Fischer, a lawyer who argued for the Canadian Civil Liberties Association on Ms. Toussaint's behalf, said covering crucial treatment is in accordance with international and humanitarian principles.

"The Canadian Civil Liberties Association is disappointed that the Federal Court of Appeal did not recognize that a denial of health care to Ms. Toussaint in these life threatening circumstances violates her right to life and to equality."

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