Letter to Minister Elliott on meeting the health care needs of people without regular immigration status

Hon. Christine Elliott
Minister of Health
5th Floor, College Park
777 Bay Street
Toronto, ON M7A 2J3

Dear Minister Elliott:

I trust this finds you well. I am writing today to call on the government to take steps to make sure that Ontario’s health policies are consistent with its human rights obligations. In particular, we encourage the government to fully consider the needs of people without regular immigration status during its ongoing health system transformation.

Under s. 29(d) of the Human Rights Code (Code), the Ontario Human Rights Commission (OHRC) has the mandate to make recommendations to ensure that laws, programs and policies are consistent with the intent of the Code. This intention includes the Preamble to the Code, which explicitly refers to the United Nations’ Universal Declaration of Human Rights.

Health care needs of people without regular immigration status[1]

While OHIP-funded health care is available to the vast majority of people living in Ontario, people without regular immigration status are not eligible, despite having significant difficulty accessing health services. Recent studies have found that immigration status is the single most important factor affecting both a person’s ability to seek out health care and their experiences when trying to access it.[2]

People without regular immigration status often work illegally, leaving them susceptible to exploitative workplace practices, poor working conditions and increased likelihood of workplace injuries. Many people without regular immigration status experience a near-constant lack of security and safety due to the fear of detention and deportation. This fear and stress adversely affect their health. Uninsured individuals often delay seeking health care until their condition is urgent or more complex and requires treatment in an emergency department and/or admission to hospital. This is costly to the health care system.

Ontario’s international human rights obligations: Toussaint v Canada

Ontario has an obligation under international law to ensure that all residents can effectively access essential health care services. Canada has signed and ratified the International Covenant on Civil and Political Rights (ICCPR), which is binding on both the federal and provincial governments. As a signatory to the Optional Protocol, people under Canadian jurisdiction who have exhausted domestic remedies may file a complaint with the United Nations Human Rights Committee (HRC) alleging that Canada is in violation of its ICCPR obligations.

In views adopted in matter number 2348/2014, the HRC found that Ms. Nell Toussaint’s then-exclusion from the federal Interim Federal Health Program exposed her to “a serious threat to her life and her health,” and amounted to a denial of her right to life and her right to equality under the ICCPR.

The HRC said:

The Committee recalls that in its General Comment No 6, it noted that the right to life has been too narrowly interpreted and that it cannot properly be understood in a restrictive manner. The protection of this right requires that States adopt positive measures….In particular, as a minimum States parties have the obligation to provide access to existing health care services that are reasonably available and accessible, when lack of access to the health care would expose a person to a reasonably foreseeable risk that can result in loss of life.

While not directly addressed in the HRC’s views, in addition to being denied benefits under the federal IFHP, Ms. Toussaint was also denied access to provincial health care benefits because Regulation 552 under the Ontario Health Insurance Act excludes persons with irregular immigration status from eligibility. While the Human Rights Tribunal of Ontario has held that denying such benefits does not amount to discrimination under the Code due to the application of the s. 16 defence, this finding is not determinative of Ontario’s obligations under international human rights law.

Given the HRC’s view that denying access to essential health care services to Ms. Toussaint violated her right to life, the OHRC encourages Ontario to fully consider the needs of people with irregular immigration status as it develops policies to transform and improve the public health care system. Making sure that people without regular immigration status can access preventative health care for emerging and existing health conditions is consistent with Ontario’s obligations under human rights law.

We look forward to your response.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner

cc.       Hon. Doug Downey, Attorney General of Ontario
           Hon. Ginette Petitpas Taylor, Minister of Health of Canada
           Marie-Claude Landry, Chief Commissioner, Canadian Human Rights Commission