CCPR/C/123/D/2348/2014
to provide appropriate medical treatment. 2 Similarly, Dr. Hwang3 commented on the likely
medical consequences should she be unable to obtain adequate health care from a hospital. 4
2.10 The Federal Court found that the evidence established a deprivation of the author’s
right to life and security of the person that was caused by her exclusion from IFHP.
However, the Court found that the deprivation of the rights to life and security of the person
in the author’s case was not contrary to section 7 of the Canadian Charter, that denying
financial coverage for health care to persons who have chosen to enter or remain in Canada
illegally is consistent with fundamental justice and that the impugned policy was a
permissible means to discourage defiance of Canada’s immigration laws.
2.11 The author then appealed to the Federal Court of Appeal, arguing that the Federal
Court’s decision was contrary to the right to life under article 6 of the Covenant and to
protection from discrimination on the ground of immigration status under international
human rights law.
2.12 The Federal Court of Appeal upheld the Federal Court’s finding that the author “was
exposed to a significant risk to her life and health, a risk significant enough to trigger a
violation of her rights to life and security of the person”. The Court held, however, that the
“operative cause” of the risk to her life was her decision to remain in Canada without legal
status and agreed with the lower court’s finding that the deprivation of the right to life and
security of the person in this case accorded with the principles of fundamental justice. The
Federal Court of Appeal further held that discrimination on the grounds of immigration or
citizenship status did not qualify for protection as an “analogous ground” of discrimination
under the Canadian Charter. The Court also commented that in assessing whether the
exclusion of immigrants without legal status from access to health care was justifiable as a
reasonable limit under section 1 of the Canadian Charter, appropriate weight should be
given to the interests of the State in defending its immigration laws. The Court held that
while international human rights law could be considered in interpreting the Canadian
Charter, it was not relevant in this case.
2.13 The author then sought leave to appeal the Federal Court of Appeal’s decision to the
Supreme Court of Canada. 5 The application for leave to appeal was denied on 5 April
2012.6
2.14 Shortly afterwards, the Government of Canada repealed the 1957 Order-in-Council
and replaced it with the Order Respecting the Interim Federal Health Program. The new
policy in relation to access to IFHP does not, however, provide undocumented migrants
with health-care coverage under the Program and makes no explicit exception for situations
where life or health is at risk, except where there is a clear health risk to the public.
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“The author has severe medical problems that markedly impair her quality of life, are likely to
decrease her longevity, and could be life-threatening over the short term. She requires intensive
medical management by highly skilled professionals, including medical subspecialists. Negotiating
pro bono care by a number of such doctors is clearly extremely unsatisfactory and potentially
dangerous. Delays resulting from lack of coverage and an inability to pay for the health care that she
needs and the risk that she will not have access to necessary services create serious risk to her health
and may have life-threatening consequences.”
A physician at St. Michael’s Hospital and a professor in the Faculty of Medicine at the University of
Toronto.
“The [author] would be at extremely high risk of suffering severe health consequences if she does not
receive health care in a timely fashion …. She has already suffered from serious and to some degree
irreversible health consequences due to lack of access to appropriate care, [which has] resulted in
inadequately treated, uncontrolled diabetes and hypertension. As documented in her medical records,
her inability to afford medications in the past has also contributed to the poor control of her diabetes
and hypertension. If she were to not receive timely and appropriate health care and medications in the
future, she would be at very high risk of immediate death (due to recurrent blood clots and pulmonary
embolism), severe medium-term complications (such as kidney failure and subsequent requirement
for dialysis), and other long-term complications of poorly-controlled diabetes.”
A letter from the Office of the United Nations High Commissioner for Human Rights was attached to
the application for leave to appeal, affirming the importance of the issues raised in relation to
compliance by Canada with its international human rights treaty obligations.
The Supreme Court of Canada grants leave to appeal only in exceptional circumstances and does not
indicate the reasons for its negative decisions.
3