Guest post by Audrey Macklin, Professor and Chair in Human Rights Law, University of Toronto on the recent Canadian court ruling on asylum seekers' access to public health care, Canadian Doctors for Refugee Care, Canadian Association of Refugee Lawyers, Daniel Garcia Rodrigues, Hanif Ayubi, and Justice for Children and Youth v. Attorney General of Canada and Minister of Citizenship and Immigration, 2014 FC 651. Prof Macklin was a member of the Applicants’ legal team.

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 On 4 July 2014, the Federal Court of Canada gave refugees and their supporters a rare cause for celebration: It ruled that the Canadian government’s policy of reducing or eliminating access to publicly insured health care by non-citizens seeking Canada’s protection violates the Canadian Charter of Rights and Freedoms.

The 268 page judgment by Justice Mactavish (double spaced) is available here (all quotes below are to paragraph numbers).

Background

In 2011, Canada’s conservative government reformed the inland refugee determination process in order to speed it up and deter asylum seekers. In preparing the ground for these changes, the government deployed vilifying rhetoric that painted asylum seekers as ‘bogus,’ as threats to security, and as ‘queue jumpers’ seeking to exploit Canada’s generosity. It also borrowed from Europe the concept of a ‘safe country of origin’ (SCO) and immediately put Hungary and Mexico on the list. Hungarian Roma and Mexicans had constituted a significant proportion of refugee claimants to Canada because, unlike all other refugee producing countries, Canada did not impose a visa requirement on their home countries. The government was determined to halt their flow and introduced the SCO as one mechanism for achieving that.

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Physician and hospital services are publicly funded in Canada. Health care falls within provincial jurisdiction, although the federal government transfers money to the provinces to help finance it. Immigration, in contrast, remains squarely within federal jurisdiction. Since 1957, the federal government has directly financed temporary basic, essential, and urgent health care for newcomers until they became eligible for provincial coverage. The program evolved considerably over the years, and by 2012, it covered health care for government and privately resettled refugees, as well as for asylum seekers from their point of arrival to acceptance of their claim or removal from Canada. This Interim Federal Health Program (IFHP) furnished health care comparable to that received by Canadians and permanent residents on social assistance, which entails coverage under provincial health care,  plus most medication and emergency optometry or dental services. (People who are not on social assistance either pay or self-insure for these supplemental services, or are covered through employee benefit packages.)

In 2012, the government announced major changes to the IFHP, proclaiming that “Canadians have been clear that they do not want illegal immigrants and bogus refugee claimants receiving gold-plated health care benefits that are better than those Canadian taxpayers receive” (para. 56).

The government did not merely eliminate supplemental benefits from the IFHP. Rather, the new IFHP created different tiers of coverage, and indexed them to the individual’s location in the refugee process: Resettled refugees (those selected from abroad) received the same health care as before. Ordinary asylum seekers received “urgent or essential health care.” Asylum seekers from designated safe countries of origin and refused asylum seekers received no health care coverage unless their condition posed a danger to public health or public safety―in other words, if they were contagious or dangerous to Canadians. Those who were ineligible to make refugee claims and could only benefit from a pre-removal screening received no coverage at all.

The following passage gives a flavor of the arbitrariness of the post-2012 IFHP:

[A] government-assisted refugee from Burma will have insurance coverage for asthma medication, but a refugee claimant from Burma would not. A pregnant refugee claimant from Iran will have insurance coverage for pre-natal and obstetrical care, but a pregnant refugee claimant from Mexico will not. A psychotic refugee claimant from Hungary will have insurance coverage for medications and doctors’ visits, while a suicidal refugee claimant from Hungary will not. (paras. 619)

The government was candid that its motives for stripping SCO and failed asylum seekers of all but “public health and public safety coverage.” Citing the government’s own witnesses, Justice Mactavish stated:

Thus, through the introduction of the 2012 changes to the IFHP, the Governor in Council is intentionally trying to make life harder for vulnerable, poor and disadvantaged individuals who have lawfully come to Canada seeking the protection of this country. It has done this in order to encourage these individuals to leave the country more quickly once their refugee claims have been rejected: see Transcript, Vol. 3, p. 38. In addition, as the then-Minster of Immigration himself noted, the 2012 changes to the IFHP were also intended to discourage “bogus” refugees from coming to Canada and abusing the generosity of Canadians. (para. 589)

The IFHP cuts were rolled out amid much bureaucratic chaos and confusion among health professionals, which had a chilling effect on some providers’ willingness to accept patients on IFHP at all. Refugee claimants relied on the charity of health providers and pharmaceutical companies to obtain treatment. Other claimants avoided seeking treatment because they feared (often correctly) that they would not be covered by the IFHP and could not afford to pay cash. Some ended up in emergency wards of hospitals when their untreated illnesses became urgent or life threatening. Because the provincially operated hospitals do not turn people away, the federal government’s refusal to finance health care for refugees ultimately transferred these costs to the provinces in the form of unpaid bills. Two provinces, Ontario and Quebec, stepped in to partially fill the gap left by the federal government’s withdrawal of health care, although they insisted that they were only doing so on an interim basis.

The Case and the Judgment

In 2014, two affected refugee claimants, as well as the Canadian Association of Refugee Lawyers, Canadian Doctors for Refugee Care, and Justice for Children and Youth (“Applicants”) brought a legal challenge to the 2012 IFHP. The Applicants based their arguments on administrative law as well as the Charter rights to life, liberty and security of the person (s. 7), the right to be free from cruel and inhuman treatment or punishment (s. 12) and equality rights (s. 15). The judge ruled in favour of the Applicants on s. 12 and, with qualification, s. 15.

Prior to this case, no Canadian judgment had considered the application of s. 12 outside the penal context. In its analysis of s. 12, the Court relies partly on UK House of Lords decision in R. v. Secretary of State for the Home Department, ex parte Adam & Ors, US Supreme Court decision in Plyler v. Doe, and the UN Convention on the Rights of the Child. Justice Mactavish concluded that:

I am satisfied that the affected individuals are being subjected to “treatment” as contemplated by section 12 of the Charter, and that this treatment is indeed “cruel and unusual”. This is particularly, but not exclusively so as it affects children who have been brought to this country by their parents. The 2012 modifications to the Interim Federal Health Program potentially jeopardize the health, the safety and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency. They violate section 12 of the Charter. (para. 11)

I have not, however, been directed by the respondents to any evidence that would show that any consideration was given by the Governor in Council as to the impact that the 2012 cuts to the IFHP would have on the lives of children affected by the changes. (para. 662)

Elsewhere, she added that charity is no substitute for an entitlement to health care:

putting individuals affected by the 2012 cuts to the IFHP … in the position where they have to beg for life-saving medical treatment is demeaning. It sends the message that their lives are worth less than the lives of others. It is cruel and unusual treatment that violates section 12 of the Charter. (para. 688)

(Source: Macleans)
The Court ruled that the IFHP cuts amounted to cruel and inhuman treatment of all those prejudiced by the changes. However, the Court found that the scheme violated s. 15 of the Charter’s equality guarantee only with respect to claimants from designated SCOs.

Relying on precedent, Justice Mactavish stated that “immigration status” is not a ground of discrimination under s. 15. National origin is a stipulated ground, however, and the deprivation of insured health care to refugee claimants from countries on the list of ‘safe countries of origin’ was discrimination based on national origin. Justice Mactavish’s dicta regarding the discriminatory impact of the IFHP cuts on claimants from SCOs is worth reading at length, as it directly responds to the governments attempt to justify the policy on the basis of the very type of vilification that s. 15 is designed to ameliorate:

The [SCO/non-SCO] distinction drawn in the IFHP has an adverse differential effect on refugee claimants from [SCO] countries. It puts their lives at risk and perpetuates the stereotypical view that they are cheats, that their refugee claims are “bogus,” and that they have come to Canada to abuse the generosity of Canadians. This aspect of the applicants’ section 15 claim thus succeeds. (para. 851)

En route to this conclusion, Justice Mactavish helpfully explains, using examples from Hungary and Mexico (among others), why it is “grossly simplistic” (para. 840) to depict unsuccessful asylum claims as “bogus,” brought by queue jumpers and cheats” (para. 840).

Section 1 of the Canadian Charter gives the government an opportunity to justify rights violations through the application of a proportionality test. In this, case, the government listed the objectives of the IFHP reforms as: cost containment, “fairness to Canadians,” protection of public health and safety, and the “integrity” of the refugee regime, by which it meant deterrence of unfounded refugee claims.

The Court rejected the second objective out of hand: “The pre-2012 IFHP… provided low-income individuals seeking the protection of Canada with a level of health insurance coverage that was comparable to that provided to similarly-situated Canadians. There was nothing unfair about this” (para. 920). In other words, and contrary to government assertions, refugees and refugee claimants were never beneficiaries of so-called “gold plated health care” in the first place.

Similarly, the Court was unpersuaded that the cuts advanced the objective of protecting public health and safety, to the extent that many affected individuals would delay or avoid seeking medical treatment, thereby increasing public health risks. Moreover, some previously covered individuals were now denied even public and public safety coverage, which directly undermined rather than advanced public health and safety (paras. 954, 962).

As for cost containment, Justice Mactavish surveyed the evidence and concludes as follows:

There is… no reliable evidence before this Court of the extent to which the 2012 changes to the IFHP will, on their own, result in cost savings at the federal level. Moreover,… it appears that some of the cost of medical services that was previously covered under the IFHP has now simply been downloaded to the provinces. Assuming, however, that the 2012 changes to the IFHP have indeed resulted in some measure of cost savings at the federal level, are there ways that this cost savings could be achieved in a less infringing manner, keeping in mind that this alternative measure does not have to satisfy the objective of cost containment to exactly the same extent or degree? (paras. 1012-1013)

Justice Mactavish then noted that speeding up the refugee determination process and ensuring that removals are carried out more expeditiously would reduce the time that failed claimants spend in Canada, thereby lowering expenditures on health care (paras. 1014-1016).

Finally, Justice Mactavish addressed the government’s deterrence argument. She was prepared to accept that preventing abuse of the refugee regime by unfounded claims is a valid government objective, but found the government failed to adduce evidence substantiating the hypothesis that stripping access to health care would advance that goal:

[T]he respondents’ deterrence argument is founded to a large extent on a subjective perception held by unidentified individuals that the provision of state-funded health insurance coverage to those seeking the protection of Canada constituted a reason why some foreign nationals came to Canada to assert unfounded refugee claims.

I have already indicated that I am prepared to accept that the availability of state-funded medical care in Canada may provide something of an incentive for some individuals to come to Canada to seek medical care. I have not, however, been provided with any reliable evidence as to the extent to which this is the case, or whether it is a material factor in the choices made by a significant number of refugee claimants. Nor have I been provided with any reliable evidence to show whether the 2012 cuts to the IFHP will in fact serve the objective of deterring these individuals from coming to Canada. (paras. 1019,1025)

The government was unable to justify the rights violations entailed by the 2012 IFHP as a proportionate means of promoting public health, deterrence, or cost containment. The absence of any evidence that the government had performed any meaningful analysis before or after the IFHP cuts about the policy’s health, fiscal, or behavioural impacts, suggests a certain disregard not only of constitutional rights, but also of evidence-based policy making.

The Federal Court declared the IFHP unconstitutional, and gave the government four months to devise an alternative scheme that complies with the Charter. The simplest response, of course, would be to restore the pre-2012 program. The government reacted swiftly to the judgment, and announced that it will appeal the decision to the Federal Court of Appeal. Whatever the outcome of the appeal, the case seems destined to reach the Supreme Court of Canada.

For more on Canada, see Catherine Dauvergne's Non-Citizens and the Charter of Rights and Freedoms and Efrat Arbel's The Shifting Landscape of the Canadian Border and the Politics of Refugee Exclusion.

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How to cite this blog post (Harvard style):

Macklin A (2014) Canadian Court Rules that Denying Asylum Seekers’ Access to Public Health Care is “Cruel and Unusual Treatment” and Discriminatory. Available at: http://www.bordercriminologies.law.ox.ac.uk/canadian-court-asylum-seeker-healthcare (Accessed [date]).