CCPR/C/123/D/2348/2014
Optional Protocol entered into force for Canada on 19 August 1976. The author is
represented by counsel.
The facts as submitted by the author
2.1
On 11 December 1999, the author lawfully entered Canada as a visitor from
Grenada. She worked in Canada from 1999 to 2008 without obtaining residency status or
permission to work. However, some of her employers made deductions from her salary to
cover federal and provincial taxes, Canada Pension Plan and Employment Insurance.
During this period, she managed to pay privately for any medical costs.
2.2
Encouraged by an employer who wished to hire her permanently, the author began
to seek regularization of her status in Canada in 2005. That year, she paid a significant part
of her savings to an immigration consultant who turned out to be dishonest and provided no
useful service. The author could not afford to make further attempts to regularize her status
for some time.
2.3
In 2006, her health began to deteriorate as she developed chronic fatigue and
abscesses. In November 2008, she became unable to work due to illness, and in 2009 her
health deteriorated to life-threatening status. In February 2009, she was diagnosed with
pulmonary embolism and suffered from poorly controlled diabetes with complications of
renal dysfunction, proteinuria, retinopathy and peripheral neuropathy, according to Dr.
Guyatt, a professor of clinical epidemiology and biostatistics at McMaster University. Her
neurological problems resulted in severe functional disability with marked reduction in
mobility and impairment of basic activities. She also suffered from hyperlipidaemia and
hypertension.
2.4
In 2008, the author received free assistance from a qualified immigration consultant
and made an application for permanent resident status on humanitarian and compassionate
grounds to Citizenship and Immigration Canada.
2.5
In April 2009, the author was informed that she had qualified for provincial social
assistance under the Ontario Works programme due to her pending application for
permanent residence in Canada based on humanitarian and compassionate grounds. She
was also deemed eligible for social assistance from the Ontario Disability Support Program,
but neither of those programmes covered health care or the cost of fees for a humanitarian
and compassionate application.
2.6
On 6 May 2009, she applied for health-care coverage under the Federal
Government’s programme of health care for immigrants, called the Interim Federal Health
Benefit Program (IFHP),1 established pursuant to a 1957 Order-in-Council.
2.7
On 10 July 2009, the author was denied health coverage under IFHP by an
immigration officer as she did not fit into any of the four categories of immigrants eligible
for IFHP coverage as set out in the Citizenship and Immigration Canada guidelines: refugee
claimants, resettled refugees, persons detained under the Immigration and Refugee
Protection Act and victims of trafficking in persons. The life-threatening nature of the
author’s health problems was not mentioned as a consideration.
2.8
The author sought judicial review before the Federal Court of Canada of the decision
denying her health-care coverage under IFHP. She argued that the decision was in breach of
her rights to life, to security of the person and to non-discrimination under sections 7 and 15,
respectively, of the Canadian Charter of Rights and Freedoms and that the immigration
officer had failed to apply domestic law in a manner consistent with the international
human rights treaties ratified by Canada. The author also provided the Court with extensive
medical evidence proving that her life had been put at risk.
2.9
During the Federal Court procedures, Dr. Guyatt provided expert evidence
describing the author’s medical situation and the implications for her health status of failure
1
2
The Interim Federal Health Benefit Program was authorized to expend funds for medical or dental
care, hospitalization or any incidental expenses for immigrants or anyone “subject to immigration
jurisdiction or for whom the immigration authorities feel responsible” where the person lacks the
resources to pay the costs of the medical care.