Y.Y. Brandon Chen, “Extending Health Care Entitlement to Lawful Non-Transient International Migrants: Untapped Potential of the Universality Principle in the Canada Health Act”

Working Abstract

Foreign nationals who reside in Canada on a non-transient basis face varying degrees of coverage gaps under the supposedly universal healthcare system. Although these international migrants have launched multiple lawsuits against the government based on the Canadian Charter of Rights and Freedoms in hope of acquiring public healthcare benefits, these advocacy efforts have largely remained unsuccessful to date. This paper explores an alternative litigation strategy by examining the untapped potential of the Canada Health Act (“CHA”), which articulates the fundamental principles that provincial healthcare schemes must observe in order to receive full federal transfer payments. Relying on statutory interpretation, I argue that the universality criterion stipulated in the CHA in fact envisions the inclusion of all lawful non-transient international migrants who are ordinarily present in Canada in the public healthcare system, and therefore the federal government must step up its enforcement of the Act to ensure provincial compliance. In the absence of such federal enforcement, I suggest that medically uninsured international migrants and their advocates should consider an application for judicial review as another means to enforce the terms of the CHA. Framing international migrants’ healthcare disentitlement as a violation of the CHA has the added potential of highlighting the solidarity between Canadians and foreign nationals in defending the founding principles of Canada’s healthcare regime.

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