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