Like so many other illegal immigrants desperate to avoid deportation, Nell Toussaint is down to her last resort: an application for mercy on humanitarian and compassionate grounds. Broke, jobless and suffering from severe kidney problems, the 39-year-old Grenada woman, who has lived in Canada for a decade, seems like an ideal candidate for 11th-hour clemency—the type of person who would surely endure “undeserved or disproportionate hardship” if forced to leave.
The federal government receives hundreds of similar requests every year, and approves more than half. But bureaucrats won’t even read Toussaint’s application—because she is too poor to pay the $550 processing fee.
That refusal is now the subject of a looming constitutional challenge in front of the Federal Court of Appeal, pitting the rights of impoverished migrants with no legal status against the government’s right to recoup the costs of operating our immigration system. Simply put, the judges will have to answer one crucial question: if an applicant proves he is truly destitute, should Ottawa at least consider waiving the $550 fee?
Last month, a lower court said no. Justice Judith Snider ruled that the cash requirement is not a Charter breach, because a humanitarian and compassionate application “provides foreign nationals with a discretionary and exceptional benefit—and not a right.” She also described the fee as a “neutral and rationally defensible policy choice” that, if overturned, could leave the feds “inundated with requests for waivers of any and all fees.”
“This is a woman who picks up pop tins and trades them in for money,” says Andrew Dekany, a Toronto lawyer who has taken on Toussaint’s appeal. “It is completely unfair to say that there is potential relief on humanitarian and compassionate grounds, but only if you have a certain amount of money. People who can afford to pay get access, and others don’t.”