Arghavan Gerami

Parents and grandparents can once again be sponsored – But spots are limited

One of the legislated objectives of Canadian immigration law is to promote family reunification; however, Citizenship and Immigration Canada (CIC) did not accept any new sponsorship applications for parents and grandparents (PGP) between 2011 and 2014.  On January 2, 2015, CIC re-opened the PGP family sponsorship program, but only permitted 5,000 such applications during the year.

As of January 2, 2015, CIC is once again accepting 5,000 applications for 2015.  Applications are accepted on a first-come, first-served basis, where only the first 5,000 complete PGP sponsorship applications will be processed.  Like all sponsorship applications, the required documentation, fees, and checklists must be included in the application in order to be considered complete.  As such, great care should be taken to ensure that the application contains all the necessary supporting documentation.

Since 5,000 complete PGP sponsorship applications were received within 3 weeks in 2014, we can anticipate that the new 2015 spots will also be filled just as quickly.

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by Arghavan Gerami

New Express Entry Permanent Residency Program Launched on January 1st 2015

On January 1st, 2015, Citizenship and Immigration Canada introduced a new form of express processing for Federal Skilled Worker Program, Federal Skilled Trades Program, and Canadian Experience Class program, with a one-year turn-around time for all applications.

The program will be based on a Comprehensive Points System (CPS) that will rank candidates. The candidates with the highest scores will be selected for a pool, and then drawn from that pool and invited to make an Application for Permanent Residency (APR) within 60 days.

The CIC will hold periodic draws, where the system will be given a set list of instructions for candidates to be selected from a selection pool. The candidates selected will be invited to make an Application for Permanent Residency within 60 days.

Applicants who do not receive an APR within 12 months of creating their application could choose to re-apply for the program. If they choose not to re-apply their applications will be removed from the database.

ADVANTAGES AND DISADVANTAGES OF THE SYSTEM

The Express Entry System has a variety of supporters and opponents, as it brings substantial change to the way the Canadian Economic Immigration system works.

One of the major positive aspects of the program is the speed: most applications are expected to turn in about a year, while previously it could take several years before the applicants heard back. This would be very advantageous for attracting talented foreigners, who could be turned off by the long processing times.

However, the program also introduces some new challenges, such as giving half of the points for a provincial nomination, or an LMIA approved job offer. This potentially mean that candidates who qualify for categories which did not require a job offer previously, such as CEC, will be ranked much higher if they had a job offer.

HIGHLIGHTS OF PROS AND CONS OF THE EXPRESS ENTRY PROGRAM

EXPRESS ENTRY SYSTEM PROCESS

Step 1: Candidates will create an online profile

Their applications will be ranked based on:

The maximum points candidates can obtain is as follows:

Applicants without a Labour Market Impact Assessment approved job will be requested to register on jobs.gc.ca, where employers with LMIA approved positions will advertise their employment needs

Applicants currently in an LMIA approved position in Canada can request their employer to connect with them through the government website

Up to half the available points will be granted for having an LMIA approved position or being nominated through a PNP

Labour Market Impact Assessment: An application made by the Canadian based employer made to Employment and Social Development Canada (ESDC) to approve the impact of inviting the foreign worker on the Canadian Labour Market. This process requires a period of advertising of the position to Canadians, completing a comprehensive application package for employees, compliance with the wage standards, as well as other criteria the ESDC will consider relevant at the time of the applications.

Step 2: The highest ranking candidates will be invited to apply for permanent residence

As soon as a candidate is invited to apply, they will have 60 days to submit an online application for permanent residency.

However, Quebec has a separate processing system for applications and the Express entry system will not affect its processes for immigration.

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by Arghavan Gerami

The Hassan Diab Case: A “Dangerous New Low On What’s Acceptable To Extradite”

The Hassan Diab Case: A “Dangerous New Low On What’s Acceptable To Extradite”[1]

 

This past month, Hassan Diab, a 60 year old Canadian citizen was removed from Ottawa and sent to a detention facility in the vicinity of Paris, after the Supreme Court denied leave for appeal from the Ontario Court of Appeal decision to extradite him.Now in the custody of French authorities, he has been charged for first-degree murder and other offences in relation to a terrorist attack in Paris in 1980. This case is a prime example of why Canada’s extradition laws are in need of a major overhaul. A lack of procedural fairness and little protection for individuals under the Extradition Act are only one of the many reasons, advocates are calling for reform.[2]

Diab’s frightening ordeal began in October 2007 when a French reporter for the daily newspaper Le Figaro first approached him after one of his classes at the University of Ottawa. He began to ask him questions in relation to a terrorist attack that occurred in 1980. Soon after that, Diab started being followed by unidentified agents and was later arrested by the RCMP in 2008.[3] He is accused by French authorities for planting a bomb outside a synagogue which killed four people and injured dozens. “Diab insists he played no role in the deadly attack, saying the unwavering moral principle throughout his life has been promoting equality and respect for all.”[4]

The law surrounding extraditions in Canada has been somewhat murky with courts often just succumbing to extradition requests without any real investigation into the reliability of the evidence adduced by the foreign state. A 2006 Supreme Court ruling known as Ferras[5] clarified the role of the courts at the extradition hearing and “essentially told provincial courts to stop rubber-stamping extradition requests and start weighing evidence from countries requesting the extradition of Canadian citizens.”[6] If the evidence was found to be unreliable, then the extradition request from the foreign country should be refused. Despite this ruling, in June 2011, Justice Robert Maranger of the Ontario Superior Court committed Diab for extradition to France, despite admitting the case against him was “weak”. “The following April, then-justice minister Rob Nicholson signed an extradition order surrendering Diab to France.”[7]

In May 2014, the Ontario Court of Appeal dismissed both Diab’s appeal from committal and his application for a judicial review of the Minister’s decision to surrender. During the appeal, the Court agreed with Justice Maranger’s decision to accept into evidence a flawed report by a handwriting expert despite noting several key deficiencies. It found that the report was not “manifestly unreliable”.[8] The Court wrote:

[61] As to the substance of the appellant’s arguments, the extradition judge wrote that the report “has been shown to be based on some questionable methods and on an analysis that seems very problematic” and “is susceptible to a great deal of criticism and attack”: at paras. 118,120. He described the report as “convoluted, very confusing, with conclusions that are suspect”: at para. 121.

After his appeal before the Ontario Court of Appeal was dismissed on May 15, 2014, Mr. Diab said in a written statement that:

This is a sad day not just because of this miscarriage of justice, but also because the court accepted as evidence a handwriting analysis report that has been found by five leading handwriting experts to be absolutely erroneous and completely flawed[…] Such a decision means that any Canadian citizen can be detained, uprooted, and extradited based on deeply flawed evidence that a foreign state submits. Unfortunately, Canadians have very limited rights when they are sought by a foreign state […]

Canada has an obligation to ensure that both the decision to extradite and the criminal prosecution in the foreign state meet the minimum standards of procedural fairness and complies with our constitutional standards. In this Case, Canada should have refused to surrender Diab, if his extradition would violate s. 7 of the Charter. Section 7 of the Charter requires that no one can be deprived of life, liberty and security of the person unless in accordance with principles of fundamental justice. The process which Hassan Diab was subjected to was in itself a breach of section 7, as it requires reliance on intelligence-based evidence that is itself unknown, and which he will not be able to gain access to. Section 7 also requires that the person charged with a crime know the case to be met against him.[9] Diab’s defence argued they will not be able to probe the underlying intelligence reports and that intelligence officers will not be required to answer questions when cross-examined. The appellant argued the frailties of using such evidence:

[205] The source of the evidence is unknown. The circumstances in which the evidence was gathered are unknown. Often the intelligence evidence itself is unknown because, for national security reasons, the named person is denied access to it. In the appellant’s words, the intelligence information is “unsourced, uncircumstanced, and unknown”.[10]

Moreover, they argued that French courts use evidence to prosecute terrorists and “have admitted torture-derived statements as evidence in the past”.[11] Canada should have refused to surrender Diab unless France could satisfy its onus that the intelligence information that it relies on is not the product of torture. It is fundamentally unfair to place the onus on the person being extradited to establish plausible connection between intelligence evidence and the use of torture. General assurances by French authorities on how their system operates are not sufficient.[12] The French authorities must specifically assure Canada that in this case, the intelligence information they will rely on at Diab’s trial is not the product of torture. Only then can we determine whether it would shock the Canadian conscience to deport Mr. Diab.[13] “Hassan’s case presents a very real danger that basic human rights will be trampled once again in the name of an illusory and restrictive sense of security.”[14] Canada has failed to live up to its constitutional and international obligations for the protection of fundamental human rights of all its citizens.

[1] Donald Pratt, a member of Diab’s support committee is highly critical of Canada’s extradition law and the treatment of Mr. Hassan Diab. See CBC News, Hassan Diab loses Supreme Court bid to halt extradition to France (November 13, 2014), online at:

http://www.cbc.ca/news/canada/ottawa/hassan-diab-loses-supreme-court-bid-to-halt-extradition-to-france-1.2833099.

[2] See Chris Cobb, The Ottawa Citizen, Canada's extradition law: A legal conundrum (November 15, 2014), online at:http://ottawacitizen.com/news/local-news/canadas-extradition-law-a-legal-condundrum.

[3] Justice for Hassan Diab, online at http://www.justiceforhassandiab.org/about (accessed on November 28, 2014).

[4] Jim Bronskill, Global News, Appeal court upholds decision to extradite terror suspect Hassan Diab, online at:http://globalnews.ca/news/1333639/appeal-court-upholds-decision-to-extradite-terror-suspect-hassan-diab/.

[5] United States of America v. Ferras, 2006 SCC 33.

[6] Cobb, Supra n1.

[7] Ibid.

[8] France v. Diab, 2014 ONCA 374 at 63. [Hereinafter, Diab ONCA].

[9] Diab ONCA, Supra n8 at 212.

[10] Diab ONCA, Supra n8 at 205.

[11] Diab ONCA, Supra n8 at 273. See also Human Rights Watch Report, : Preempting Justice: Counterterrorism Law and Procedures in France (July 2, 2008), online at: http://www.hrw.org/en/reports/2008/07/01/preempting-justice-0

[12] See Diab ONCA, Supra n8 at 217.

[13] Ibid.

[14] Justice for Hassan Diab, online at http://www.justiceforhassandiab.org/about (accessed on November 28, 2014).

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by Arghavan Gerami

Is CBSA above the Rule of Law? Silenced Voices: Canada’s mistreatment of immigration detainees

The recent recommendations of the B.C. coroner’s inquest into the suicide of a Mexican migrant in Vancouver and a new investigative series reported by Global News this past month have re-ignited the debate around CBSA’s questionable detention practices and the mistreatment of its detainees.

Under the authority of section 55(1) and (2) of the Immigration and Refugee Protection Act (IRPA), a CBSA officer may detain or arrest a person on entry into (and within Canada) if it has reasonable grounds to believe that the person is inadmissible and is either a danger to the public, is unlikely to appear for an examination, an admissibility hearing or a removal order (a flight risk) or lastly, because it is not satisfied of the identity of the foreign national.[1]

A 2012-2013 report by The Canadian Red Cross Society (CRCS) which monitors the treatment and conditions of persons detained in Canada under the Immigration and Refugee Protection Act (IRPA) identified eight areas in which significant protection gaps were present and made strong recommendations to improve those areas. These problem areas included[2]:

The Dangerous Impact of Co-mingling

A deep concern addressed in the report is the continued and disturbing practice of co-mingling immigration detainees with criminal offenders in provincial and federal detention facilities.

Co-mingling presents a greater degree of risk to immigration detainees who are co-mingled with a volatile corrections population, some serving, or awaiting trial (in the case of a remand or pre-trial facility) for violent or gang-affiliated crimes. The CRCS is concerned that immigration detainees could inadvertently experience physical, psychological or emotional harm due to exposure to violent or gang-affiliated criminals.[3] [Emphasis added]

Pam Shrialdini, the common-law partner of an Iranian man in detention in a maximum-security prison in Lindsay, Ontario tells a reporter:

“He has no criminal (background) and he’s in a maximum-security facility here in Lindsay. He’s locked down most of the time, so it’s a very stressful time for us, and also for him too. I’m concerned about his safety inside the jail.”[4]

Her partner, Masoud Hajivand, had been living in Canada for seven years before his arrest. His initial claim in 2007 was rejected by the Immigration and Refugee Board. He stated that he was fled Iran after a police crackdown on protestors. His younger brother was killed during one of the protests.[5] He was called for deportation in 2011 but failed to present himself. He admitted in an affidavit that his conduct was wrong and that at the time he was “in a complete panic” and “didn’t know what else to do”.[6] He was terrified to return to Iran and so he continued to live in Canada. He eventually fell in love with Shrialdini and converted to Christianity. He now fears for his life if he is sent back to his home country; Iranian law “allows for the application of capital punishment in cases of apostasy.”[7] He tried to kill himself when CBSA tried to deport him back to Iran for the second time this year. Despite a removal order being in place, he is still unsure of his fate.

Hajivand’s lawyer says the stalemate is whether CBSA can oblige Air Canada to pay for a charter flight for Hajivand, since his bitter resistance makes it impractical to put him on a commercial flight. He estimates the cost at about $300,000.

In the meantime, lawyers for the government say Hajivand’s fear of being deported to Iran make him enough of a flight risk to warrant his continued incarceration.[8]

Immigration detention in Canada can have significant negative repercussions on the emotional, physical and mental state of detainees as detention can be indefinite, having no maximum time limit.

Immigration lawyer, Guidy Mamann points out that detainees can end up in provincial jails or higher security prisons because of health issues since more lenient facilities may not provide adequate services. In addition, the co-mingling of criminal offenders and immigration detainees in these provincial jails can have detrimental effects on the health and well-being of these vulnerable individuals.

“We’ve heard credible complaints of multiple sexual abuse of people who have no criminal record, and who want to say nothing during or after these experiences. During, because no one’s going to care, and you’re in a vulnerable situation, and after, because ‘I just want to put it behind me, I don’t want to remember it, and I certainly don’t want my spouse to find out what happened.’”[9]

Canada is clearly failing to abide by the minimum international standards required by the International Covenant on Civil and Political Rights which Canada is a party to since 1976)) and the United National Standard Minimum Rules for the Treatment of Prisoners.

According to Guideline 8 of the revised version of the Detention Guidelines for Asylum seekers published by the UN in 2012:

Detention of asylum-seekers for immigration-related reasons should not be punitive in nature. The use of prisons, jails, and facilities designed or operated as prisons or jails, should be avoided. If asylum-seekers are held in such facilities, they should be separated from the general prison population. Criminal standards (such as wearing prisoner uniforms or shackling) are not appropriate.

 

CBSA also needs to ensure better access to mental health services for detainees especially those in provincial facilities where they are at a greater risk of developing mental health issues as a result of co-mingling with often dangerous and violent offenders.

A Deep Concern: Detention of Minors

The detention and treatment of minors continues to be an area of particular concern and requires improvement according to the 2012-2013 Red Cross report. Children remain one of the most vulnerable groups of persons. Through its investigation, the Red Cross found that “[s]ome of these impacts could significantly negatively affect the emotional, social and psychological well-being of a minor.”[10] According to Article 37 of the UN Convention on the Rights of the Child, children must only be detained “as a measure of last resort and for the shortest appropriate period of time”.

In 2012, an estimated 291 minors were detained in Canada under the IRPA. “Of those detained, 288 were held in federal facilities and three were held in provincial facilities (two in Ontario and one in British Columbia). These include unaccompanied and accompanied minors on a formal detention order.”[11] However, the actual numbers may be even higher. The Red Cross remains concerned that these statistics do not adequately reflect the number of minors detained across the country including accompanied minors who are Canadian citizens and are not part of a formal detention order. In addition, “[i]nspectors found the border agency had no facility that could appropriately accommodate a complete family unit of mother, father and children — or a father with child — without having to separate family members.”[12]

The CBSA needs to always ensure that the best interest of the child is a primary consideration when detaining a minor. In its recommendation, investigators from the Red Cross firmly stated that CBSA has “an obligation to consider alternatives to detention for all minors. Deprivation of a minor’s liberty must only be used as a measure of last resort and for the shortest period of time.”[13] It also recommended that a national minor policy and operating procedures be implemented by CBSA to govern both the conditions and treatment of minors in detention. Of course, any policy must also take into account any additional vulnerabilities of the minor, such as mental or health issues, minors that have been trafficked or requier special physical or mental support.

Many critics and advocates are troubled by the sweeping and unsupervised powers the CBSA currently holds in regards to immigration detention. These individuals are victims of a system they do not understand and for many their stories often go unheard because of their fear of being deported or detained indefinitely. A vast majority of detainees do not have related criminal offences but their treatment by immigration authorities paints a bleak picture.

Stuck in Limbo

Immigration detainees are often stuck in limbo. CBSA will not allow them to enter or stay in Canada but will often also not allow them to leave the country either. That was the case for Csaba Csizmar, a Hungarian citizen who was detained for six weeks at Rexdale immigration detention centre before being allowed to return home to Serbia. He was denied entry into Canada on Sept. 2 because an immigration officer was not satisfied that he would leave at the end of his authorized period of stay. He was coming to visit his friend, Zsuzsanna Losci with whom he had started a romantic relationship over the Internet two years ago. She was still finalizing her divorce and they wanted to meet in person to get to know each other better before taking their relationship further. She had also planned on visiting his family in Serbia. However, their plans were short lived as CBSA continued to detain Mr. Csizmar as they believed he was a flight risk (that he not show up for his removal).

At an admissibility hearing on September 26, it was determined that Mr. Csizmar would have to leave the country. Csaba did not argue this finding and was prepared to leave immediately. According to CBSA policy, removal orders should always be enforced as soon as possible.

Mr. Csizmar is not a criminal; he was simply coming to visit his friend in Canada. For a month and a half, he was deprived of his fundamental right to freedom because of an administrative oversight by CBSA. His total stay in detention cost taxpayers an estimated $11,044.[14]

Nagendra Selliah, a paralegal hired to represent Csaba at his first detention hearing called the situation “bizarre” in an interview with the Toronto Star back in October.

“This guy never claimed refugee status,” said Nagendra Selliah. “They could have turned him back at the airport and sent him home in two days … Now they’ve kept this man in detention for five weeks. He’s just sitting here, and the taxpayer is paying for it.[15]

Abuse of Power, Need for Oversight and Better Management

The death of Ms. Vega Jimenez, a 42 year-old Mexican woman last December was a prime example of CBSA’s reckless management and the urgent need for independent oversight of its activities. Jimenez was arrested on December 1, 2013 after Transit police identified her as being wanted by CBSA on immigration matters. Jimenez was first held at a women’s maximum security prison just outside of Vancouver. She was later transferred to a holding cell at the Vancouver airport where she attempted to kill herself after being held in custody for three weeks. She succumbed to her injuries and died eight days later in the hospital.[16]

A private security firms was contracted by the CBSA to guard the facility when Jimenez tried to commit suicide. There were supposed to have three guards checking on the detainees during the morning when Ms. Jimenez tried to commit suicide. There was only one male guard present. A coroner’s inquest revealed that the firm committed many errors while conducting its duties. More than 40 minutes had gone by, with no one checking on Jimenez despite the fact that security guards were supposed to be checking on immigration detainees every 30 minutes.[17] The jury made recommendations including:

… access to legal counsel, medical services, NGO’s, spiritual and family visits, along with monitored Internet access. Telephones should also be readily available and should include local calls and international calling cards. The jury would also like to see suicide prevention training be made mandatory for all CBSA and subcontracted security companies, along with mental health courses.[18]

According to Claudia Franco Hijuelos, Consul-general of Mexico in Vancouver, Jimenez “feared being deported due to a domestic situation at home.”[19]

CBSA has such broad powers of arrest, detention and deportation since its inception more than a decade ago, that some advocates and critics alike say that they are virtually “unstoppable” without independent oversight of the organization that boasts approximately 13,000 employees. In the face of such sweeping powers, many advocates argue that these individuals find themselves in very vulnerable situations, feeling helpless and afraid to speak out.

Refugees and detainees don’t report incidents of bullying, threats or abusive interrogations fearful of being deported or imprisoned, says Janet Dench, executive director of the Canadian Council for Refugees. There is a litany of abuses – both big and small – occurring across the country, she and others believe.[20]

A former CBSA senior officer, Reg Williams believes many of the agency’s deficiencies could be solved administratively “by tightening supervision and management”.[21]

The problem lies with management of the CBSA, says Williams, who took early retirement from his post as director of the Greater Toronto Enforcement Centre in 2012 when he was abruptly transferred to another job after the deportation of a detainee failed. “There is no management of officers,” he says. “There’s no management of cases … The philosophy is: “I’m in my office. I’m closing my doors. I’m not involved in the day-to-day operation.”

The CBSA is not above the rule of law. It has to respect the basic rights and dignity of all detainees held for immigration matters- no matter what their status is in Canada. CBSA has an obligation to ensure that their conditions of detention are always humane and dignified. It seems that a combination of poor management, a lack of independent oversight and a forgotten sense of its duty to respect the rights of all migrants are problems plaguing the organization. The unjust and arbitrary deprivation of any individual’s right to liberty is an issue of fundamental importance for all Canadians to be concerned about.

[1] CBSA officers also has authority under section 55(3) of the IRPA in order for the examination to be completed or if it has reasonable grounds to suspect that the individual in question is inadmissible for security reasons or for violation of human (or international) rights.

See CIC Enforcement Manual (20), available online at: http://www.cic.gc.ca/english/resources/manuals/enf/enf20-eng.pdfat p7.

[2] Canadian Red Cross Society 2012-2013 Annual Report on Detention Monitoring Activities in Canada, available online at : http://vipmedia.globalnews.ca/2014/11/red-cross-reports-on-canada-s-immigration-detention-system.pdf at p6. Hereinafter, [CRCS Report]

[3] CRCS report, Supra n. 2, p25.

[4] Patrick Cain, Global News ,‘I’m not a criminal’: Jailed with no charge, no sentence, no oversight’ (November 5, 2014), available online at: http://globalnews.ca/news/1618257/im-not-a-criminal-jailed-with-no-charge-no-sentence-no-oversight/ . Hereinafter, [Global Report].

[5] See Affidavit of Masoud Hajivand (October 3, 2014), see para. 6, available online at:http://www.scribd.com/doc/245643195/Affidavit-of-Masoud-Hajivand.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] CRCS Report, Supra n1, at 20.

[11] CRCS Report, Supra n1, at 21.

[12] Jim Bronskill, The Star, Red Cross uncovers problems facing canadian immigration detainees (Sept. 25, 2014), available online at: http://www.thestar.com/news/canada/2014/09/25/red_cross_uncovers_problems_facing_canadian_immigration_detainees.html.

[13] CRCS Report, Supra n1, p41.

[14] Marco Chown Oved, Star News, Hungarian visitor denied entry and detained six weeks finally allowed to go home (October 15, 2014), available online at:http://www.thestar.com/news/immigration/2014/10/15/hungarian_visitor_denied_entry_and_detained_six_weeks_finally_allowed_to_go_home.html

[15] Marco Chown Oved, Star News, Can't get in, can't leave — stuck in immigration limb (October 9, 2014), available online at:http://www.thestar.com/news/immigration/2014/10/09/cant_get_in_cant_leave_stuck_in_immigration_limbo.html.

[16] Andrea Woo, The Globe and Mail, Documents reveal CBSA expected scrutiny for contracting out security (Nov. 10, 2014), Available online at: http://www.theglobeandmail.com/news/british-columbia/documents-reveal-cbsa-expected-scrutiny-for-contracting-out-security/article21530607/. Hereinafter, [The Globe and Mail article]

[17] Amy Judd, Global News, Jury recommendations in case of Lucia Jimenez include self-harm proofing of bathrooms (Oct. 8, 2014), available online at:

http://globalnews.ca/news/1603908/jury-recommendations-in-case-of-lucia-jimenez-include-self-harm-proofing-of-bathrooms/

[18] Ibid.

[19] The Globe and Mail article, Supra n14.

[20]Debra Black, The Star, Does Canada Border Services Agency need oversight? (Nov. 2, 2014), available online at: http://www.thestar.com/news/canada/2014/11/02/does_canada_border_services_agency_need_oversight.html.

[21] Ibid.

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by Arghavan Gerami

Federal Government Loses Health Cuts Stay: Time to Safeguard what it means to be Canadian

This past July, Justice Anne Mactavish of the Federal Court found that the 2012 changes to the Interim Federal Health Program violated the Charter under sections 12 and 15, that it amounted to “cruel and unusual” treatment and that these violations were not found to be justified under section 1. The legislation was consequently struck down by the Court. The declaration of invalidity was suspended for a period of four months for practical reasons such as allowing the government sufficient time to implement a new policy of health care for refugee claimants.

Unfortunately, rather than immediate compliance, following the ruling, the Government decided to appeal the decision. In the meantime, its four month deadline (November 4, 2014) to implement new changes was fast-approaching. In an attempt to gain more time, the Government sought to stay the judgment of the Federal Court pending the appeal of this decision. Thankfully, on Friday, October 31, 2014 Justice Webb dismissed the government’s stay motion.

Perhaps the decisions of Justice Mactavish and Justice Webb are a sign of what is to come if the Government in fact continues with the appeal of the Federal Court decision. The government must accept the rule of law, and the fundamental constitutional rights enshrined in the Canadian Charter of Rights and Freedoms (`Charter`). The writing is on the wall; not only will the Federal Court of Appeal uphold the Federal Court decision, so will the Supreme Court of Canada if the government insists to pursue this litigation.

The idea that it can ever be justified to deny access to health care to vulnerable refugees, including children as a cost saving measures is unthinkable, let alone rational or justifiable; it is also not in line with our Canadian values and long standing commitment to promoting international human rights and the rule of law. We are a proud nation of Canadians and yes, it seems we now have to safeguard what it means to be a Canadian!

For over fifty years, the Government of Canada has funded comprehensive health coverage for refugee claimants seeking protection within its borders. However, in 2012 the Conservative government adopted significant measures that considerably reduced the level of health coverage available to these vulnerable individuals. What has changed in these last two years? Why did the government believe these amendments could possibly meet the requirements of the Charter in the first place? In fact, nothing has changed, and the Charter does not permit the refugee health cuts regime that the government implemented, without due regard to its real life consequences on the lives of those affected; nor can these violations ever be justifiable in a free and democratic society.

 

In the stay motion brought by the government, the Court applied the three part test in the Supreme Court decision of RJR-Macdonald v. Canada[1] [1994]. At stage two of the test, Justice Webb focused his analysis on the irreparable harm to the appellants if the stay was not granted. He disagreed with the government’s argument that a policy vacuum would be created because the 2012 program was deemed to be of “no force or effect”. In unequivocal terms, Justice Webb described his position at paragraph 10 of his judgment:

[10] It does not seem to me that this would be the result of denying the stay. The Judgment provides that the 2012 OICs “are of no force or effect”. This would mean that if the stay is not granted, everyone would be in the same position as if the 2012 OICs had not been adopted. Therefore, whatever changes the 2012 OICs made to the 1957 Program would not be made. There would be no policy vacuum. The 1957 Program would simply not be affected as there would not be any Order in Council to modify it. Since the 1957 Program operated for over 50 years (with some modifications), it is not at all clear while it could not continue awhile longer. I do not accept the appellants’ argument that not granting the stay would cause the harm as submitted by the appellants.[2] [Emphasis Added]

 

The Appellants also argued at this stage of the test that additional costs would be incurred as a result of the new changes required and that there would be harm caused if the program was changed multiple times.[3] Justice Webb disagreed with the above arguments and concluded that the government could mitigate any harm “by simply reverting back to the 1957 Program (which was in place for over 50 years, with some modifications)”[4] until the appeal of the judgment was finally disposed of by the Court. Yet, because the government is charged with “promoting and protecting the public interest” and that the 2012 legislation was adopted pursuant to that responsibility, the Court assumed that the Appellants would indeed face irreparable harm if the stay was not granted.

However, the Government failed to meet the last prong of the test (balance of inconvenience), namely that the harm they would suffer would be greater than the one suffered by the Respondents if the stay was not granted. The Supreme Court inRJR-Macdonald clearly stated that “[t]he factors which must be considered in assessing the “balance of inconvenience” are numerous and will vary in each individual case”.[5] It was also noted in that case that public interest considerations in constitutional cases can be assessed by the Court at this stage of the test.

The Respondents argued that children would be undoubtedly harmed if the stay was granted and the 2012 program stayed in effect despite being deemed unconstitutional. In July, Justice Mactavish had highlighted in her reasons for judgment the serious impact that children faced under the new 2012 health care system. She noted that they are particularly vulnerable and require protection and access to adequate health care. Justice Webb reiterated her sentiments on Friday in his reasons and stated at paragraph 23:

 

 

[23] […] If, however, the stay is not granted and during the period after the judgment is effective and before the appeal of the decision is determined by this Court, there is no one who would be affected by the changes made by the 2012 OICs, there would be no harm to the appellants since there would be no additional health care costs that the appellants would incur. On the other hand, if there is such a child (or other person) before the appeal is determined by this Court, there could be serious irreparable harm if the child (or other person) does not receive medical treatment. It seems to me that this tips the public interest in favour of the respondents. [Emphasis added]

 

The Appellants also argued that “other health care options” are available to individuals affected by the 2012 changes to the IFHP. Justice Mactavish had already addressed the “numerous shortcomings” of the other health care options that had been proposed by the Government in her judgment. Justice Webb noted in his reasons that a stay motion was not the appropriate forum to challenge that finding.

In the end, the Court found the Respondents had successfully demonstrated that the public interest component of the balance of convenience test was tipped in their favour and the motion was therefore dismissed. Justice Webb at paragraph 26 concluded by stating that:

[26] […] The harm that would be caused by reverting to the 1957 Program and delaying the implementation of the changes made by the 2012 OICs (if the stay is denied and the appellants are successful in the appeal before this Court) is outweighed, in this case, by the harm that would be suffered by those who would have reduced health coverage under the 2012 Program (if the stay is granted and the respondents are ultimately successful).

 

The Federal Government’s disappointing losing streak continues with this important decision though it still has plans to follow through with its appeal.[6] According to the Canadian Press, Kevin Menard, a spokesman for Immigration Minister Chris Alexander was critical of the court’s decision. “Our government disagrees with the court’s flawed decision and will continue to do what’s necessary to protect the interests of Canadian taxpayers and genuine refugees,” he wrote in an email.[7] Unfortunately, this will only mean more litigation, and more unnecessary time and resources wasted, which is certainly not in the interest of Canadians who are paying the legal bills for the government lawyers having to fight this losing battle!

[1] RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 313.

[2] Canada (Attorney General) v. Canadian Doctors for Refugee Care 2014 FCA 252 at 10. Hereinafter, [Canadian Doctors].

[3] Ibid at para. 14.

[4] Canadian Doctors, Supra at 14.

[5] Canadian Doctors, Supra at 17.

[6] CBC News: The Federal government’s court-case losing streak, online at http://www.cbc.ca/news/politics/the-federal-government-s-court-case-losing-streak-1.2696593 [accessed on 6 November 2014].

[7] CBC News: Refugee health cuts: Ottawa has until Nov. 4 to put in place new policy, online at: http://www.cbc.ca/news/politics/refugee-health-cuts-ottawa-has-until-nov-4-to-put-in-place-new-policy-1.2820485 [accessed on 5 November 2014].

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by Arghavan Gerami