The Federal Court Strikes Down Refugee Health Cuts as Unconstitutional Under Section 12 and 15 of the Charter
The Cut to health care imposed by the Federal Government on refugees through the Interim Federal Health Program (IFHP) was struck down by the Federal Court, as a violation of section 12 and 15 of the Canadian Charter of Rights and Freedoms. The Federal Government immediately responded that it intends to pursue an appeal of this decision.
The Applicants brought an action against the Attorney General of Canada and the Ministry of Citizenship and Immigration, arguing that the changes brought to the Interim Federal Health Program (IFHP) by the Orders in Council (OICs) are beyond the powers of the executive branch. They also argued that the modifications are unconstitutional, violating sections 7, 12 and 15 of the Charter and are not saved by section 1.
The Applicants submitted that changes can put the life of certain claimants at risk and that the changes subject refugees to “cruel and unusual treatment”. The changes create differences between refugee claimants of Designated Countries of Origin (DCO) and non-DCO countries, providing less health coverage to claimants of DCO countries and none at all to claimants only subject to a Pre-Removal Risk Assessment (PRRA), effectively creating a hierarchy amongst refugee claimants. The changes also discriminate against the nationality or ethnic origin of claimants and their immigration status.
The Respondents argued that the changes do not violate the Charter and that there is no right to health care in Canadian Law. They claimed the refugees are not “subjected” to the IFHP and lastly, that “immigration status” is not an analogous ground for the purpose of section 15 of the Charter. The Federal Court disagreed. In a strongly worded decision, Justice Mactavish held that the cut backs to health care coverage for refugee claimants constituted “cruel and unusual” treatment.
Justice Mactavish held that the Orders in Council are not ultra vires the powers of the executive branch and did not breach a duty of procedural fairness.
The Applicants’ section 7 arguments did not succeed as the Court held there is no right to state funded health care in Canadian law and the applicants are seeking to impose a positive obligation on the State. Under Canadian law theCharter does not impose positive obligations upon the government to provide benefits such as health care. There is nothing in the IFHP that prohibits the refugees from spending their own money to obtain health care although the court recognizes that most refugees may not be able to pay (due to lack of financial resources).
However, the Court did find a breach of section 12 of the Charter, despite the high threshold that had to be met. In this case, those seeking the protection of Canada are under immigration jurisdiction, and as such are effectively under the administrative control of the State. The claimants may be detained or subject to conditions (such as reporting) which may be very strict. Their right to work or to receive social benefits may also be limited by the State. “The executive branch of government has in this case intentionally targeted an admittedly vulnerable, poor and disadvantaged group for adverse treatment, making the 2012 changes to the IFHP for the express purpose of inflicting predictable and preventable physical and psychological suffering on many of those seeking the protection of Canada.”[1] (Italics in original)
In order for the “treatment” to be “cruel and unusual” it has to be “so excessive as to outrage [our] standards of decency.”[2] The court held that the actions of the government to limit a benefit previously conferred to the poor and vulnerable (refugee claimants) constitute “treatment” for the purposes of section 12 of the Charter. This “treatment” is also cruel and unusual especially in regards to children of refugee claimants considering that they have been brought here by their parents and not of their own will. “Denying health care insurance coverage to innocent children as a means of affecting the behaviour of their parents and others is illogical and unjust. It constitutes cruel and unusual treatment.”[3] It is not in the best interest of children and there is no evidence that the government considered the interest of children when they imposed the changes. The respondents have not proven that the changes to the IFHP were necessary to achieve a legitimate goal. The court maintained that the cuts were somewhat arbitrary.
With respect to the section 15 claim, the Federal Court held it is clear that the new IFHP creates unequal access to health care creating different levels of care depending on the nationality or ethnic origin and this is clearly discrimination as it creates a distinction between DCO and non-DCO refugee claimants. The Orders in Council do not authorize the Minister to pay the cost of health care for DCO refugee claimants. The discrimination is not saved by section 15(2) of the Charter as it does not form part of an ameliorative program. This distinction continues to perpetuate the disadvantage suffered by refugees and creates an even bigger gap between refugee claimants and the rest of Canadian society.
Furthermore, the Court held that the Respondent had failed to show evidence that there is a correlation between the distinction in the IFHP and the disadvantage that DCO claimants experience. The changes to the IRPA Regulations prohibiting DCO refugee claimants to obtain work permits for the first 180 days reinforces the disadvantage suffered by this group whereby they cannot work to pay for their medications or other health related costs. Both the purpose and the effect of the 2012 OICs violate section 15(1) of the Charter.
The Court then conducted an analysis under section 1 of the Charter and the Oakes test.[4] The objectives of the 2012 OICs are cost containment, fairness to Canadians, protection of public health and safety and protection of the integrity of Canada’s immigration system. Some of the objectives are indeed pressing and substantial but not all of the objectives meet this portion of the test.
Only in extreme situations can cost containment alone be considered a pressing and substantial objective but the respondents have failed to show that we are facing financial constraint. Since cost containment is one of a few factors, the court held that it is a pressing and substantial objective. The court was not persuaded that fairness to Canadians was a pressing and substantial objective since there is no evidence that the pre-2012 IFHP created an unfair situation for Canadians. It is obvious that protecting the health and safety of Canadians is a pressing and substantial objective and the applicants have agreed that preserving the integrity of the Canadian immigration system is a pressing and substantial objective as well.
The next portion of the Oakes test is the proportionality component. The objectives must have a rational connection, they must minimally impair the rights of refugee claimants and they must be just. There is no proof that the changes to the IFHP program will save taxpayer money but, to the extent that the OICs cut the level of health insurance, the cuts may reduce the cost of the program; the changes to the IFHP are rationality connected to the cost containment objective. The respondents have not established that the pre-2012 IFHP was unfair to Canadians or that the present IFHP in more fair to Canadians. There is therefore no rational connection between the goal of fairness and the changes. The fact that the health coverage may avert some refugee claimants from seeking medical attention especially in cases of communicable diseases such as tuberculosis, which the respondent has maintained is prevalent among refugee claimants, puts the health of Canadians at risk.
Also, the fact that claimants who are only entitled to a PRRA receive no health care regardless of their health conditions including those with HIV or tuberculosis surely puts the health of Canadians at high risk. In light of all this, the changes to the IFHP are not rationally connected with the objective of protecting the safety and health of Canadians. Knowing that the lack of health or medical care in some countries has provided an incentive to some refugee claimants to stay in Canada even after a failed refugee claim, it can be said that there is a connection between the integrity of the immigration system and the changes.
Justice Mactavish stated,“Given my earlier conclusions with respect to the objectives of “fairness to Canadians” and the protection of public health and safety, it is clear that the impairment of the rights at issue is not responsive to, and goes well beyond what could be justifiably necessary to advance these two goals.”[5] In regards to cost containment, the Court point it out that that some of the costs previous paid by the federal government has been downloaded to the provincial governments. There has been a reduction in backlog by the Minister of Citizenship and Immigration in treating claims made by DCO claimants. Taking this in consideration, there are numerous other ways the government could achieve the objective of cost containment in a less infringing manner. The respondents had failed to show that there are no alternatives to cost containment that would infringe the rights of refugee claimants less. Given the fact that it is only a subjective perception that the changes to the IFHP will preserve the integrity of the immigration system in Canada and that the changes in fact put the health of Canadians at risk, it does not minimally impair the Charter rights of refugee claimants.
The last stage of the Oakes test is the proportionality of the effects of the 2012 changes to the IFHP. The court found that the changes to the IFHP have caused “illness, disability and death”. The changes can have a grave effect on those seeking protection from Canada. Given the number of people who come to seek refuge annually, the effects affect a large number of people. The Respondents failed to meet their burden of proof. The violations of the refugee claimants section 12 and section 15 have not been saved by section 1 of the Charter.
The Court declared that the Orders in Council that created the violations of section 12 and 15 of the Charter are of no force or effect. To give time to the Governor in Council to act, the court has suspended the operation of the declaration for four months. Given the fact that the applicant, Mr. Rodriguez, is now a permanent resident, he is not entitled to IFHP and the court will not give this applicant a remedy. The court ordered that the applicant, Mr. Ayubi, be provided with health care equivalent to the pre-2012 changes after the expiration of the four months.
[1] Canadian Doctors for Refugee Care and others v. Attorney General of Canada and Minister of Citizenship and Immigration, 2014 FC 651, at para 585 (Canadian Doctors for Refugee Care).
[2] R. v. Smith, [1987] 1 S.C.R. 1045, [1987] 1 S.C.J. No. 36, at para 83, citing Trop v. Dulles (1958), 356 U.S. 86 at p. 101, 78 S. Ct. 590.
[3] Canadian Doctors for Refugee Care, at para 669.
[4] R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7.
[5] Canadian Doctors for Refugee Care, at para 994.3
The Canadian Association of Refugee Lawyers applies to intervene in Etienne v. (Canada) Minister of Public Safety and Emergency Preparedness
This is a case that should have never ended up in Court. The removal of the Etienne family (2 adults and three children) to Turks and Caicos was scheduled to be enforced on August 31, 2013. However, an assessment had never been performed of the risk the family may face upon being returned to the Turks and Caicos.
Although the family had a refugee hearing, the Refugee Protection Division Member did not consider family’s arguments regarding the persecution they faced in Turks and Caicos as a result of their Haitian origins. Instead, he based his decision on what he assumed to be a valid Internal Flight Alternative to the United Kingdom. However, this was later proven not to be a viable option.
Gerami Law PC sent a deferral of removal request on behalf of the Etienne family, which was received by the Canada Border Services Agency Officer on August 25, 2013. The letter explained that paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act (“IRPA”) prevented the Etienne family from applying for a Pre-Removal Risk Assessment (“PRRA”) before their scheduled removal date. Section 112(2)(b.1), colloquially referred to as the “PRRA bar”, prevents individuals from applying for a PRRA until a year after a failed refugee claim. It was explained in the letter that the Etienne family would become eligible for a PRRA on September 11, 2013. The Officer also received evidence that the family’s youngest son Simeon suffered from post-traumatic stress disorder (‘PTSD’) resulting from the trauma of persistent discrimination and physical abuse he suffered at the hands of his school teacher in the Turks and Caicos (due to his Haitian background). Simeon’s doctor provided a letter stating that Simeon’s return to that same environment would result in a significant worsening of his condition. Nonetheless, the Officer did not grant deferral of their removal.
Gerami Law PC brought an emergency stay of removal on behalf of the Etienne family on August 27, 2013. It was argued that the Officer did not give proper consideration to the fact that no assessment had been performed of the risk the family faced if returned to Turks and Caicos and that their eligibility for a PRRA was imminent. It also argued that the Officer failed to consider the best interest of the children, particularly the evidence that Simeon’s PTSD would worsen upon return to Turks and Caicos.
In granting the stay, the Federal Court stated that it had been established that irreparable harm would result if the stay were not granted. The decision also stated that although an Officer is required to arrange for the removal of a failed refugee claimant “as soon as possible,” this must be as soon as legally possible. Removal that would result in a violation of individuals’ rights to life, liberty and security of the person, guaranteed under the Canadian Charter of Rights and Freedoms, would be illegal and impermissible.
A notice of leave for judicial review and an application for judicial review were filed at the same time as the stay application. The application raised the following issues:
1 - Whether the Officer incorrectly applied the requirement in subsection 48(2) of the IRPA that failed refugee claimants be removed from Canada “as soon as possible” in such a way that his decision violated the Canadian Charter of Rights and Freedoms; and
2 - Whether section 112(2)(b.1) of the IRPA is unconstitutional.
In its response to the leave application, the Minster of Public Safety and Emergency Preparedness (“the Minister”) stated that the Officer’s decision not to defer the family’s deferral had been quashed on the basis that in making his decision the Officer had failed to take the best interests of the child into account. The Minister then went on to ask that judicial review not be granted, arguing that the issue was now moot because the relief the family sought had been granted and, consequently, there was no live controversy between the parties. The Minster also pointed to the fact that there had been other cases heard at the Federal Court in December 2013 that dealt with the constitutionality of the PRRA bar and thus argued that the issue did not need to be decided in the Etienne case.
Nonetheless, the Federal Court granted leave in Etienne v. Minister of Public Safety and Emergency Preparedness on December 24, 2013.
On February 19, 2014, the Minster brought a Motion for Judgment to the Federal Court, again arguing the matter was moot. Again, the Minster argued that the Court should grant the relief requested by the Etienne family, but, as the family had been granted the relief it had requested, it was not necessary or desirable for the Court to hear argument regarding the constitutionality of paragraph 112(2)(b.1).
On March 14, 2014, the Federal Court dismissed the Minister’s motion. Mr. Justice Zinn ruled that “determining the constitutionality of paragraph 112(2)( b.1) is exactly the role of the Court.” He found that although the situation facing the Etiennes would never arise for them again, it may well arise for other individuals in similar situations. He also differentiated the Etienne case from the cases argued in December, stating that unlike the other cases, the Etienne case dealt with the risk of harm to a child and, even more importantly, unlike the individuals involved in the other cases, the Etiennes had never received a risk assessment. For more information about Mr. Justice Zinn’s order click here.
On Friday, March 7, 2014, the Canadian Association of Refugee Lawyers (“CARL”) brought a motion to intervene in this case. CARL argued that the PRRA bar could result in failed refugee claimants being returned to countries where they will face violations to their rights to life, liberty or security of the person and that this would lead to violations of rights guaranteed under the Charter and international law. The decision on this motion is pending. A similar motion was granted allowing CARL to intervene in the PRRA bar cases that were heard in December, so a positive outcome seems likely.
We at Gerami Law PC are very excited that this judicial review is going to be heard and we are hopeful that CARL will be joining us in arguing that the PRRA bar violates the Canadian constitution.
The Federal Court to consider the Constitutionality of the PRRA Bar in the Etienne case
Justice Zinn agreed that the constitutionality of subsection 112(2)(b.1) of Immigration and Refugee Protection Act, SC 2001, c 27 is a live issue on the facts of this case. In particular, he emphasized that this case involves risk of harm to a minor and applicants being removed from Canada “without any risk assessment whatsoever” (para 8-9). He stated, “Although that situation will never again arise for these Applicants, it may well arise for others.”
Justice Zinn outlined the criteria set out by the Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 SCR 342 to decide whether to hear a matter that is moot, namely: (1) the presence of an adversarial context; (2) concern for judicial economy; and, (3) the need for the Court to be sensitive to its role as the adjudicative branch in the political network.
With respect to the presence of an adversarial context, Justice Zinn noted that the Canadian Association of Refugee Lawyers (CARL) has now brought forth a motion to be added as a party to the application or, in the alternative, to be granted leave to intervene. If CARL’s motion is granted, “the adversarial context will be present regardless of the interests of the personal Applicants” (para 12).
With respect to judicial economy, Justice Zinn stated, “Although judicial economy is served by refusing to permit this moot matter to be heard, it may be a false economy because it is very likely that the present situation will come back before the Court only with different litigants” (para 13).
Finally with respect to the role of the courts, Justice Zinn stated, “In this case, determining the issue of the constitutionality of paragraph 112(2)(b.1) is exactly the role of the Court. Its determination does not intrude into the role of Parliament any more than the current applications before this Court” (para 14).
As such, his Honour dismissed the Respondent’s Motion for Judgment and declared that “notwithstanding mootness, this application shall be heard on the issue of the constitutionality of paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, SC 2001, on the facts of the present application”.
Sign the Fair Citizenship Campaign Petition to Stop the Dismantling of the Canadian Citizenship Regime
It is clear that day by day Canada’s immigration and refugee policies are moving backward, not forward. It is a degenerative cycle with significant and unnecessary costs, compromising Canada’s international reputation and commitment to equality and human rights.
The Canadian government must respect the rights and values enshrined in the Canadian Charter of Rights and Freedoms, in the law making process. Rather than drafting legislation that does not pass the constitutionality threshold, and then shifting the burden to the courts to strike it down after a lengthy, costly and completely unnecessary court battle, Canadian laws must be drafted in a Charter compliant manner in the first place, taking into account Canada’s constitutional values, and international commitments.
A clear example of this is the Government’s proposed changes to Citizenship Act. The Fair Citizenship Campaign has highlighted some of the major shortcomings of the proposed changes to the Citizenship Act, including:
- Easier revoking of citizenship by replacing an in-person hearing before an independent judge with a review by an anonymous government bureaucrat who never sees or hears the citizen;
- Dividing Canadians into two classes of citizens: first class Canadians who hold no other citizenship, whose citizenship is protected forever; and second class Canadians – dual citizens, who can have their right to live in Canada taken away from them by the federal government;
- Making Citizenship harder to get: The proposed changes to the Citizenship Act will create unfair barriers to citizenship and make citizenship inaccessible to many;
- Extending the costly language testing process from applicants aged 18-55 to now include those aged 14-64, so that children and grandparents must now pass difficult language tests or risk never becoming citizens;
- Granting government officials authority to deny citizenship on sheer speculation that an applicant does not intend to reside in Canada in the future;
- Dramatically increasing the cost of applying for citizenship by tripling the application fee, (added to the new cost imposed on applicants a year ago when the government privatized language testing, resulting in a four-fold increase in the price of applying for citizenship since 2006);
- Extending the formal residency requirement during which an applicant must live as a permanent resident in Canada from 3 to 4 years;
- Making it harder for students, workers and refugees to become citizens by denying them the ability to count any of their time in Canada prior to becoming permanent residents when applying for citizenship;
- Removing a right of appeal to the Federal Court for refused citizenship applicants – continuing a theme of greater bureaucratic control over citizenship decision-making and less judicial oversight over the process;
- Putting all naturalized citizens under the implicit threat of having their citizenship revoked, by making it possible for government officials to strip someone of citizenship if they believe that person never intended to live in Canada;
- Allowing officials to take away a person’s citizenship based on criminal convictions that occur outside of Canada, regardless whether the regime or judicial system under which the person was convicted is undemocratic or lacks the rule of law;
- Bringing back “the ancient punishment of exile or banishment – abandoned centuries ago”, allowing government officials to strip citizenship from dual citizens based on certain convictions in Canada even though the citizen will already have been properly punished by the Canadian criminal justice system. This will include Canadians who were born in Canada.
Federal Court Orders Stay of Removal: Stateless person suffering from Life Threatening Medical Condition
This afternoon, the Honourable Madam Justice Gleason of the Federal Court ordered a stay of removal in the case of a stateless person (Bidun) originally from Kuwait who suffers from severe ulcerative colitis. The Applicant’s refugee claim was rejected in May 2013 and he applied to the Federal Court for leave to review that decision. Despite new evidence of risk provided by his doctors documenting his current medical condition, due to the new legislation barring Pre-Removal Risk Assessment (‘PRRA’) applications for one year after a negative refugee decision, the Applicant was unable to apply to have his risk assessed by a PRRA Officer.
Canada Border Service Agency informed the Applicant that he was going to be removed from Canada on February 10 2014, despite his serious medical condition and despite the evidence before the Officer from his doctor in Kuwait that stateless individuals do not receive the type of treatment that is vital for his condition.
The Court held that objective documentary evidence before the Officer indicated that Kuwait discriminates in the provision of medical services between nationals and stateless individuals (of whom there are many in Kuwait). The documentation indicated that medical insurance may be purchased by stateless individuals, but did not state to what extent it covers the cost of drugs, like Remicade. In addition, the Court acknowledged that the applicant is currently unable to work due to his disability and is in receipt of benefits under the Ontario Disability Support Program. As such, he would be unable to work to acquire funds to purchase health insurance if returned to Kuwait.
The Court stated:
In the face of this evidence, the Officer concluded that the applicant would be able to
obtain Remicade in Kuwait. In my view, there is a strong argument that this conclusion is unreasonable, as it contradicts the documentary evidence before the Officer. Thus, I find that the applicant has established the presence of a serious issue.
…
I also find that the applicant has established that he will suffer irreparable harm if
returned to Kuwait. The evidence shows that he requires Remicade, failing which he will need surgery to resect his bowel. This surgery would leave him with an ileostomy. The only evidence before me regarding the availability of Remicade for the applicant in Kuwait is from the applicant’s Kuwaiti physician, who stated that the drug is not available to the applicant. There is likewise no evidence that the applicant would be able to obtain the surgery he would need in Kuwait if he does not continue with his Remicade regimen, and without such surgery his life would be at risk.
…
I find that the applicant has met this higher threshold and has established that there is a strong argument that the Officer committed a reviewable error in determining that the applicant would likely be able to benefit from the medical care he needs if returned to Kuwait.
I note that the respondent did not refer this file to one of its medical specialists for advice prior to ruling on the applicant’s deferral request and did not inquire as to the availability in Kuwait of the required Remicade treatment for the applicant.
Ultimately, the Court concluded that the Applicant had met the tripartite test, demonstrating a serious issue, irreparable harm and that the balance of convenience was in his favour. As such Justice Gleason ordered a stay of his removal.