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No Charter
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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."

[email-masked]

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