February 12, 2019 was a national day of action to call for the inclusion of non-status people in our health care system in Canada. The call to action touches on a gaping hole in human rights protections in Canada: the exclusion of immigration status as a ground for discrimination.
Anyone who has less than Canadian citizenship status in Canada faces discrimination, with those with the lowest status, being non-status, facing the worst of all. Despite this daily reality, immigration status is not included as a ground of discrimination in Canadian law. Canadian law only goes so far as to count citizenship (included in the Ontario Human Rights Code) as a ground of discrimination, but not immigration status more generally. This leaves countless people unprotected.
This post will focus on access to health care for non-status people by focusing on the case of Nell Toussaint and the decision at United Nations Human Rights Committee about her case, which also rebuked the general exclusion of non-status people in Canada from health care. With renewed pressure on the government to include non-status people, it is important to put some more focus on it.
Charter anti-discrimination law
I will only focus anti-discrimination law under the Canadian Charter of Rights and Freedoms because the subject of this post only deals with that.
Section 15 of the Canadian Charter of Rights and Freedoms states:
- (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.
Affirmative action programs
(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. (84)
It has a very short list; however, each item on the list is not a closed box, but open to interpretation if legal precedents are set.* For example, “sex” now includes sexual orientation. In contrast, “national origin” does not include immigration status. In order to include a new category, it requires showing that there’s some “immutable” characteristic that is being used to discriminate against a person. That means something that is a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.” (See Supreme Court of Canada Egan case). The unchangeable aspect has been criticized because, for example, religion is sometimes changed without great personal cost.
One might think that national origin or citizenship is the same as immigration status. It isn’t. Using an example from provincial human rights law, discrimination based on national origin would be, for example, a landlord denying a possible tenant an apartment because that possible tenant is from Pakistan, and the landlord doesn’t rent to people from Pakistan. Discrimination based on immigration status covers many more people. Examples include the one being discussed in this post, as well as the relatively lower standard of non-status person’s liberty in immigration detention compared with the liberty interest of everyone else with regards to detention under the criminal justice system (a subject for another day).
Health care for non-status people
People without status in Canada do not have any guaranteed access to heath care, even for urgent care, unless there is a demonstrated public safety risk (i.e. only if people considered more human are affected). People without status, who may number ½ million in Canada or more, stay sick or injured because they often have no recourse, except for limited services of community health clinics in some cities. The troubling absence of proper access to the of non-status people to healthcare was highlighted in a rebuke of Canada’s denial of non-status people by the United Nations Human Rights Committee in 2018.
On July 24, 2018, the case of Nell Toussaint was decided by the United Nations Human Rights Committee (see Toussaint decision). She came to Canada in 1999 as a visitor, but then remained and worked for many years in Canada. She initially paid out of pocket for her health care expenses. This severely limited her ability to access health care when needed. By 2008, she developed chronic fatigue and her health began to deteriorate further. By 2009, her condition became life-threatening, as she was diagnosed with pulmonary embolism and complications from poorly controlled diabetes. The Committee decided that Canada acted in a discriminatory fashion in her case and commented that the omission of non-status people in Canada from health care coverage through the Interim Federal Health Program (IFHP) was systemic discrimination. Canada was ordered to compensate her (emphasis added):
11.6 The Committee notes the author’s claim under article 26 that excluding her from IFHP coverage on the basis of her “immigration status” is not an objective, proportionate or reasonable means of deterring illegal immigration, in particular as her life-threatening health conditions were not taken into account. The Committee also notes the State’s party submission that in allocating public health care funding, it may reasonably differentiate between those with legal status in the country, including immigrants, and foreign nationals who have not been lawfully admitted to Canada and that legal residence is a neutral, objective requirement that cannot be considered as a prohibited ground of discrimination.
11.7 The Committee recalls its General Comment No. 18 (1989) on non-discrimination, in which it reaffirmed that article 26 entitles all persons to equality before the law and equal protection of the law, prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations and prohibits discrimination in law or in fact in any field regulated and protected by public authorities. The Committee also recalls that in its General Comment No.15 (1986) on the position of aliens under the Covenant, it stated that the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. While the Covenant does not recognize the right of aliens to enter and reside in the territory of a State party, the Committee also stated that aliens have an “inherent right to life”. States therefore cannot make a distinction, for the purposes of respecting and protecting the right to life, between regular and irregular migrants. More generally, the Committee also recalls that not every differentiation based on the grounds listed in article 26 amounts to discrimination, as long as it is based on reasonable and objective criteria, in pursuit of an aim that is legitimate under the Covenant.
11.8 The Committee considers that in the particular circumstances of the case where, as alleged by the author, recognized by the domestic courts, and not contested by the State party, the exclusion of the author from the IFHP care could result in the author’s loss of life or the irreversible negative consequences for the author’s health, the distinction drawn by the State party, for the purpose of admission to IFHP, between those having legal status in the country and those who have not been fully admitted to Canada, was not based on a reasonable and objective criteria, and therefore constituted discrimination under article 26.
13. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to persons whose rights recognized by the Covenant have been violated. Accordingly, in the present case, the State party is obliged in particular to provide the author with adequate compensation for the harm she suffered. The State party is also 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 decision is no binding on Canada.
Along the way to the decision of the UN Human Rights Committee, Ms. Toussaint sought a review of her rejected coverage by the IFHP. Her application for review was further rejected by the Federal Court and the Federal Court of Appeal. Interestingly, the Federal Court found that her rights to life under section 7 of the Charter were infringed as a result of being denied IFHP coverage. However, the treatment was considered justifiable, as it was held that Canada could lawfully deny non-status people coverage. The reasoning applied a rather narrow assessment of “choice”, Justice Zinn stating: “Although she entered this country legally, she chose to remain here illegally; there is nothing stopping her from returning to her country of origin.” (at para 93). Leaving a place that she built a network of supports to go somewhere that she had no assurances should not be considered a fair choice.
That being said, there was an interesting analysis about discrimination that may have left a door open for immigration status as a potential analogous ground. The Federal Court did not find that she was discriminated against due to the nature of her disability. With regards to immigration status, Justice Zinn said the following very interesting words (emphasis added):
 (...) Only if “immigration status” is an analogous ground could the applicant’s exclusion from IFHP coverage be said to violate s. 15(1) of the Charter.
 The applicant did not argue that “immigration status” was such an analogous ground. It is not for the Court in Charter cases to construct arguments for the parties or advance them on their behalf. Given the applicant’s failure to argue that “immigration status” was an analogous ground, the applicant’s s. 15(1) argument must fail.
I believe those words are indicative that the Court would have readily considered the inclusion of immigration status as an analogous ground.
Toussaint decision and immigration status as ground of discrimination
The decision is not binding on Canada. Even though it is an order, it is not an order Canada must follow. That being said, it does have application, perhaps more than may be apparent at present. First of all, while a decision of the UN Human Rights Committee is not binding on Canada, the International Covenant on Civil and Political Rights (Covenant) was signed and ratified by Canada, with much of it being adopted into the Charter and human rights law in Canada … just not the part about “status” as a ground for discrimination.
The UN Human Right’ Committee’s conclusion about discrimination based in immigration status found a violation of the following section of the Covenant (which sounds close in many respects to s. 15 of the Charter):
26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
That brings it close to existing law in Canada. Supreme Court of Canada jurisprudence brings it closer. The 1999 Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship and Immigration) held that International law, even if not binding on Canada, cannot be ignored. Speaking about the international Convention on the Rights of the Child, the majority stated:
69 (…) I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law.
70 Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:
[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.]
This precedent has been applied countless times to, for example, help protect the best interests of children in decisions considering the removal of a parent from Canada.
Coming back to the subject at hand, the next time there is an opportunity to raise the issue of discrimination of a person based on immigration status, I think there is a case that it should be found an analogous ground due to the effect of the Toussaint decision and ongoing social pressure. The “immutable” characteristic required to add an analogous ground of discrimination to s. 15 of the Charter has some flex and has been responsive to social pressure in the past.
Immigration status is not easily changed. People exist in such a condition in Canada for months or years for complicated reasons. Just leaving may not be so easy.
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*The Charter is almost impossible to amend, so the analogous grounds approach is taken instead.