Illegal immigrant has no right to government health care, court rules

by Adrian Morrow

The Federal Court of Appeal has denied an illegal immigrant coverage under Canada's universal health care system, a precedent-setting decision that could discourage others from travelling to the country to obtain free treatments.

The case relates to Nell Toussaint, a Grenadan national who entered Canada in 1999 as a visitor and has lived in Toronto since then. Suffering from a kidney ailment, by 2006 she was too ill to support herself. Among other ailments, she suffered from blood clots, diabetes and tumours.

Facing hospital and other medical bills she could not pay, she applied to become a permanent resident in 2008 so she could qualify for health care coverage in Ontario. However, she did not pay the fees for her applications, so they were not considered.

She applied for the federal government to pay her health care bills under a 1957 Order in Council that extends coverage to anyone who is being handled by the immigration system. The government refused and she twice appealed the decision, arguing that her rights to life, liberty and security of the person under the Charter of Rights and Freedoms had been violated. Her second appeal was turned down in a decision released Friday.

Judge David Stratas, writing for the three-member Federal Court of Appeal, argued that the federal government was not obliged to pay her medical bills because, as an illegal immigrant who had not paid the fees to have her application processed, her case was not being handled by the immigration system. The Order in Council, it found, was designed to help only people who enter the country legally.

While the court agreed that Ms. Toussaint suffered from severe medical problems that could lead to her death if left untreated, it found that the lack of medical coverage was her own fault since she had not applied to legally immigrate until she had lived in Canada for nearly a decade.

“The appellant by her own conduct – not the federal government by its Order in Council – has endangered her life and health,” Judge Stratas wrote. “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 under the Ontario Health Insurance Plan.”

He further ruled that the court should reject her appeal in order to defend the country's immigration process and avoid setting a precedent.

“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,” he wrote. “Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined.”

Her legal saga may not be over yet: another court has ruled the government must consider waiving the fees on her residency application, which could restart the immigration process. If she is successful in qualifying as a temporary or permanent resident, the government of Ontario could end up paying her health care bills.


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