August 24, 2018
UN Releases Decision on Access to Canada’s Interim Federal Health Plan for Undocumented Migrants
Last week the government of Canada was reported to be reviewing the views of the UN Human Rights Committee on Canada’s Interim Federal Health Plan (IFHP). The success of Nell Toussaint’s UN petition has the potential to increase access to health care for some individuals without immigration status in Canada. The IFHP provides limited health care coverage over varying lengths of time to some individuals who are refugee claimants, resettled refugees, victims of human trafficking, detained for immigration purposes or received a positive decision on a refugee claim or Pre-Removal Risk Assessment made in Canada.
Ms. Toussaint’s diabetes and hypertension led one of her doctors to declare in a 2010 affidavit that Ms. Toussaint would be at extremely high risk of suffering severe health consequences if she does not receive health care in a timely fashion. Despite the severity of her condition, Ms. Toussaint was found to be ineligible for the program because she was not a refugee or other protected person, victim of human trafficking or detained migrant.
A citizen of Grenada, Ms. Toussaint had initially been admitted to Canada with a temporary resident visa and had worked in Canada from 1999 to 2006 without status. She found herself unable to work due to her medical condition and pleaded with health care professionals for assistance. In September 2008, Ms. Toussaint applied for permanent residence on humanitarian and compassionate grounds. However, her application was not reviewed because she could not afford to pay the processing fee and was denied a fee waiver. She applied for IFHP coverage but her application was refused in July 2009.
In December 2013, Ms. Toussaint filed a petition with the UN Human Rights Committee. The Committee adopted the view on 24 July 2018 that Canada had violated her rights to life, to equality before the law and to equal protection of the law without discrimination, recognized in the International Covenant on Civil and Political Rights. Canada was obligated to provide Ms. Toussaint “with adequate compensation for the harm she suffered” from 2009 to 2013 and under an obligation to take steps to prevent similar violations in the future, including reviewing its national legislation to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life.
The road to some semblance of justice for Ms. Toussaint was certainly long. She had previously challenged the decision to deny her IFHP coverage in the Federal Court and Federal Court of Appeal without success. Additionally, the Supreme Court of Canada refused leave to appeal. In the domestic courts she argued that her rights under the Canadian Charter of Rights and Freedom to life, liberty and security of person and to non-discrimination had been violated. She alleged discrimination against her on the basis of disability and citizenship. Her application for judicial review was dismissed by the Federal Court, which interpreted Order-in-Council P.C. 157-11/848 – in force from 1957 to 2012 and the root of the IFHP eligibility criteria – in line with the Citizenship and Immigration Canada director’s decision to refuse her application. The Court found that the purpose of the IFHP is to provide temporary healthcare to legal migrants. Canada also provides IFHP coverage to some illegal migrants, such as victims of trafficking, who are often unwittingly illegal migrants. Canada feels responsible for such illegal migrants because of the fact that they have been exploited by unscrupulous human traffickers. Ms. Toussaint is neither a legal migrant nor is she unwittingly an illegal migrant. Although she entered this country legally, she chose to remain here illegally; there is nothing stopping her from returning to her country of origin. She has chosen her illegal status and, moreover, she has chosen to maintain it…