Docket: T-356-13
Citation:
2014 FC 651
Ottawa, Ontario, July 4, 2014
PRESENT: The
Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
CANADIAN DOCTORS FOR REFUGEE CARE, THE CANADIAN ASSOCIATION OF
REFUGEE LAWYERS, DANIEL GARCIA RODRIGUES, HANIF AYUBI AND JUSTICE FOR
CHILDREN AND YOUTH
|
|
Applicants
|
|
and
|
|
ATTORNEY GENERAL OF CANADA AND MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondents
|
JUDGMENT AND REASONS
I.
Introduction
[1]
For more than 50 years, the Government of Canada
has funded comprehensive health insurance coverage for refugee claimants and
others who have come to Canada seeking its protection through the Interim
Federal Health Program. In 2012, the Governor in Council passed two Orders in
Council which significantly reduced the level of health care coverage available
to many such individuals, and all but eliminated it for others pursuing
risk-based claims.
[2]
The effect of these changes is to deny funding
for life-saving medications such as insulin and cardiac drugs to impoverished
refugee claimants from war-torn countries such as Afghanistan and Iraq.
[3]
The effect of these changes is to deny funding
for basic pre-natal, obstetrical and paediatric care to women and children seeking
the protection of Canada from “Designated Countries of Origin” such as Mexico and Hungary.
[4]
The effect of these changes is to deny funding
for any medical care whatsoever to individuals seeking refuge in Canada who are only entitled to a Pre-removal Risk Assessment, even if they suffer from a
health condition that poses a risk to the public health and safety of
Canadians.
[5]
The applicants assert that the 2012
modifications to the Interim Federal Health Program are unlawful as the Orders
in Council are ultra vires the prerogative powers of the Governor in
Council. They also say that prior consultations and past practice created a
legitimate expectation on the part of stakeholders that substantive changes
would not be made to the Interim Federal Health Program without prior notice
and consultation with interested parties. According to the applicants, the Governor
in Council breached its duty of procedural fairness by making radical changes
to the Interim Federal Health Program without any advance notice or consultation.
[6]
The applicants further submit that that 2012
changes to the Interim Federal Health Program breach Canada’s obligations under
the 1951 Convention Relating to the Status of Refugees and the Convention
on the Rights of the Child. In addition, the applicants say, the changes
violate sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms
in a manner that cannot be saved under section 1 of the Charter.
[7]
For the reasons that follow, I have concluded
that the Orders in Council are not ultra vires the prerogative powers of
the Governor in Council, nor has there been a denial of procedural fairness in
this case.
[8]
I have also concluded that the applicants’ section 7
Charter claim cannot succeed as what they seek is to impose a positive
obligation on the Government of Canada to fund health care for individuals
seeking the protection of Canada. The current state of the law in Canada is that section 7 guarantees to life, liberty and security of the person do not
include a positive right to state funding for health care.
[9]
I have, however, concluded that while it is open
to government to assign priorities and set limits on social benefit plans such
as the Interim Federal Health Program, the intentional targeting of an
admittedly poor, vulnerable and disadvantaged group for adverse treatment takes
this situation beyond the realm of traditional Charter challenges to social
benefit programs.
[10]
With the 2012 changes to the Interim Federal
Health Program, the executive branch of the Canadian government has intentionally
set out to make the lives of these disadvantaged individuals even more
difficult than they already are in an effort to force those who have sought the
protection of this country to leave Canada more quickly, and to deter others
from coming here.
[11]
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.
[12]
I have also concluded that the 2012 changes to
the Interim Federal Health Program violate section 15 of the Charter
inasmuch as the program now provides a lesser level of health insurance
coverage to refugee claimants from Designated Countries of Origin in comparison
to that provided to refugee claimants from non-Designated Countries of Origin.
This distinction is based upon the national origin of the refugee claimants, and
does not form part of an ameliorative program.
[13]
Moreover, this distinction has an adverse
differential effect on refugee claimants from Designated Countries of Origin.
It puts their lives at risk and perpetuates the stereotypical view that they
are cheats and queue-jumpers, that their refugee claims are “bogus”, and that they have come to Canada to abuse the generosity of Canadians. It serves to perpetuate the historical disadvantage
suffered by members of an admittedly vulnerable, poor and disadvantaged group.
[14]
I have not, however, been persuaded that the Interim
Federal Health Program violates subsection 15(1) of the Charter based upon
the immigration status of those seeking the protection of Canada, as “immigration status” cannot be considered to be an
analogous ground for the purposes of section 15. Consequently, this aspect
of the applicants’ section 15 claim will be dismissed.
[15]
Finally, the respondents have not demonstrated
that the 2012 changes to the Interim Federal Health Program are justified under
section 1 of the Charter.
[16]
Consequently, the applicants’ application will
be granted.
II.
The Parties
A.
Canadian Doctors for Refugee Care
[17]
Canadian Doctors for Refugee Care (CDRC) is a
group of physicians specializing in the treatment of refugees and refugee health
issues. It was formed on April 26, 2012, in response to the then-pending
changes to the Interim Federal Health Program (IFHP) that had been announced
the previous day. CDRC asserts that its members now face difficult moral,
ethical and professional dilemmas as to whether to treat or continue to treat
patients who no longer have IFHP coverage.
[18]
While CDRC’s memorandum of fact and law appears
to suggest that its members have been directly affected by the changes to the
IFHP, it became clear at the hearing that what it seeks is public interest
standing to pursue this case. The standing issue will be addressed further on
in these reasons.
B.
Canadian Association of Refugee Lawyers
[19]
The Canadian Association of Refugee Lawyers
(CARL) is an association of lawyers and academics with an interest in legal
issues related to refugees, asylum seekers and the rights of migrants. Its
purposes include legal advocacy on behalf of these groups, in part through
participation in public interest litigation dealing with issues affecting
vulnerable refugees, asylum seekers and migrants.
[20]
Since its formation in 2011, CARL has been
active in lobbying and public education, and it has intervened in litigation
touching on the rights of refugees, asylum seekers and migrants.
C.
Justice for Children and Youth
[21]
Justice for Children and Youth (JFCY) is a
non-profit legal aid clinic with a focus on the legal rights of children. It
has expertise in protecting and promoting the legal rights of children, and has
experience working with child refugees. JFCY is the operating name for the
Canadian Foundation for Children, Youth and the Law.
D.
Hanif Ayubi
[22]
Hanif Ayubi is one of the two individual
applicants in this proceeding. Mr. Ayubi is a diabetic and a failed
refugee claimant from Afghanistan. He has been in Canada since 2001 and has not
been removed because Afghanistan is a “moratorium country”. That is, the
Government of Canada has suspended removals to Afghanistan because the
country’s general conditions are such as to put the safety of the general population
at risk.
[23]
Until June 30, 2012, Mr. Ayubi had coverage
under the IFHP for his insulin and medical supplies, and for the medical care
that he requires to manage his diabetes. After the changes to the IFHP came
into effect, Mr. Ayubi no longer had health insurance coverage for any of
his medical care or his medications as he is classified as a rejected refugee.
[24]
Mr. Ayubi works as a dishwasher and is a
low-income person. He says that he is unable to pay for the medications and the
diabetic supplies that he needs to monitor his diabetes and its complications. Mr. Ayubi
was eventually granted discretionary IFHP coverage by the Minister which pays
for his medical services such as doctors’ appointments, but does not pay for
his medication and diabetic supplies. Mr. Ayubi is currently being kept
alive by free samples of insulin supplied to a Community Health Centre by a
pharmaceutical company.
E.
Daniel Garcia Rodrigues
[25]
Daniel Garcia Rodrigues and his wife came to Canada from Colombia in 2007. He claimed refugee protection based upon his fear of paramilitaries
belonging to the Fuerzas Armadas Revolucionarias de Colombia (FARC). The
Immigration and Refugee Board seems to have accepted that the FARC had
attempted to forcibly recruit Mr. Garcia Rodrigues, but it was not
persuaded that he would still be of interest to the organization.
[26]
While Mr. Garcia Rodrigues’ refugee claim
was refused, his wife’s claim was accepted. She subsequently applied for
permanent residence in Canada as a protected person, including Mr. Garcia
Rodrigues in her application.
[27]
Mr. Garcia Rodrigues had IFHP coverage
until the changes to the IFHP came into effect on June 30, 2012. In July of
2012, he suffered a retinal detachment. Mr. Garcia Rodrigues was advised
that he needed surgery, and that any delay in operating could put his vision at
risk. He was scheduled for surgery in August of 2012, but the surgery was
cancelled when it was determined that, as a failed refugee claimant, Mr. Garcia
Rodrigues was ineligible for coverage under the IFHP.
[28]
Mr. Garcia Rodrigues could not afford to
pay the $10,000 cost of the surgery himself. However, his doctor ultimately
agreed to operate on him for a fraction of the normal cost, in light of the
fact that any further delay could have resulted in the permanent loss of Mr. Garcia
Rodrigues’ vision.
F.
The Respondents
[29]
The Minister of Citizenship and Immigration is
generally responsible for Canada’s immigration policy, and is also responsible
for the development of strategic and operational policies and guidelines with
respect to migration health. The Minister’s Department, Citizenship and
Immigration Canada (CIC), is responsible for overseeing health screening for
newcomers migrating to Canada and for managing the IFHP. CIC was also
responsible for the policy review that culminated in the 2012 changes to the
IFHP.
[30]
The Attorney General of Canada has also been
named as a respondent in this matter.
III.
Background
[31]
I will address the facts giving rise to this
application in greater detail as I consider each of the arguments raised by the
parties. However, the following summary will serve to provide a context for
that discussion.
A.
The Pre-2012 IFHP
[32]
According to the affidavit of Sonia Le Bris, the
Acting Manager of Migration Health Policy at CIC, even before Canada signed the
1951 Convention Relating to the Status of Refugees, it had long
recognized that refugees often face more challenges than others in becoming
established and self-sufficient in Canada. It had also long been recognized
that some such individuals required urgent or essential medical care soon after
their arrival in this country and that they would not be able to pay for that
care.
[33]
As a consequence, the program now known as the
IFHP was created shortly after the end of the Second World War as an emergency
humanitarian response in order to meet the needs of “refugee-like”
individuals. At the time, Canada had a private health care system, and the IFHP
was created to fund basic and essential medical and health services for
newcomers to Canada who urgently required medical care and lacked the resources
to pay for it.
[34]
The respondents say that although the IFHP has
evolved over time, the purpose of the program has never been to provide health
care coverage for everyone who comes to Canada, but rather to provide
insurance coverage for urgent and essential health care to eligible
beneficiaries for a limited and short duration.
[35]
The IFHP has always operated pursuant to an
Order in Council (OIC) and has never been addressed in immigration legislation.
A 1952 OIC authorized the federal government to permit the Immigration Branch “…to pay hospitalization, medical care, dental care and
expenses incidental thereto, for immigrants, after being admitted to a port of
entry and prior to their arrival at destination, or while receiving care and
maintenance pending placement in employment, in cases where the immigrants lack
the financial resources to pay these expenses themselves”.
[36]
In 1957, Order in Council P.C. 1957-11/848 was
passed (the 1957 OIC). It revoked the 1952 OIC and provided the authority for
the IFHP until the 2012 changes came into effect on June 30, 2012. The 1957 OIC
authorized the Department of National Health and Welfare (DNHW) to pay the cost
of “medical and dental care, hospitalization, and any
expenses incidental thereto” for, amongst others, persons who were at
any time:
subject to Immigration jurisdiction or for
whom the Immigration authorities feel responsible and who has been referred for
examination and/or treatment by an authorized Immigration officer, in cases
where the immigrant or such a person lacks the financial resources to pay these
expenses, chargeable to funds provided annually by Parliament for the
Immigration Medical Services of the Department of National Health and Welfare.
[37]
Persons “subject to
Immigration jurisdiction or for whom the Immigration authorities feel
responsible” were not specifically identified or defined in the 1957
OIC.
[38]
From 1957 to 1993, the DNHW managed what is now
known as the IFHP program. With the advent of publicly-funded health care in Canada in the 1950s and 60s, and the subsequent enactment of the Canada Health Act,
R.S.C., 1985, c. C-6, economic immigrants had access to provincial public
health care schemes after a short qualifying residency period and the IFHP
stopped funding health care for these individuals.
[39]
In 1993, a Memorandum of Understanding was
signed between the DNHW and the Canada Employment and Immigration Commission
(CEIC, now CIC) to transfer various programs, including the IFHP, from the DNHW
to CEIC. CEIC began delivering services under the IFHP in 1995.
[40]
Some provinces, notably Ontario and Quebec, had been covering the cost of health care for refugee claimants under their
provincial health insurance schemes. However, in the mid‑1990s these two
provinces announced that they would no longer do so, thereby increasing the
cost of the program to the federal government.
[41]
By 1996, the focus of the IFHP had shifted away
from taking care of the medical needs of newly-arrived indigent immigrants, and
the program now applied almost exclusively to refugee claimants,
government-assisted refugees and others in humanitarian need. The IFHP was
extended to cover members of the “Deferred Removal
Orders Class” and persons detained by the newly-created Canada Border
Services Agency (CBSA). Later changes extended the IFHP to provide health
insurance coverage for applicants for Pre-removal Risk Assessments (PRRAs) and
for victims of human trafficking.
[42]
Those eligible for IFHP coverage prior to the
2012 changes also included protected persons, government-resettled refugees,
privately-sponsored refugees, refugee claimants, and refused refugee claimants
whose negative decisions were under judicial review or appeal or who were
awaiting removal from Canada. These individuals could receive IFHP benefits until
they either became eligible to receive provincial or territorial health care or
left the country. No distinction was made in terms of level of coverage based
upon the type of claim being advanced or the stage of the proceeding in issue.
[43]
Not entitled to coverage under the pre-2012 IFHP
were refugee claimants and their dependant children who were not eligible to
have their claims determined by the Immigration and Refugee Board, those who
were determined under the pre-1993 Immigration Act to have “no credible basis” for a claim to refugee status, and
those who had withdrawn or abandoned their claims.
[44]
Under the pre-2012 IFHP, individuals were also
ineligible for coverage if it was ascertained, usually in an interview at the
first point of contact with the individual claiming refugee protection, that
they had the means to pay for health care or if they were eligible or became
eligible for provincial health insurance.
[45]
Those who were deemed eligible for the IFHP
received an eligibility certificate valid for one year, which was typically
renewable for 12-month periods.
[46]
For individuals claiming refugee protection at a
port of entry, an eligibility certificate was usually issued at the port of
entry once it was determined that the individual was eligible to make a refugee
claim. In the case of inland refugee claims, if delays were anticipated in
processing the claims, inland claimants would be issued a 30-day certificate to
provide them with health insurance coverage until their eligibility to make a
claim was determined, at which point they would be issued a renewable
eligibility certificate that was valid for one year.
[47]
An eligibility certificate entitled the
individual to federally-funded health insurance coverage for medical care of an
urgent or essential nature that was roughly equivalent to the level of health
care benefits that is provided to low-income Canadians on social assistance
under provincial or territorial health insurance plans.
[48]
This included coverage for essential and
emergency health services for the treatment and prevention of serious medical
conditions and emergency dental conditions. Also covered were immunizations and
other forms of preventative medical care, contraception, dental and vision
care, essential prescription medications, prenatal and obstetrical care and
immigration medical examinations.
B.
The Decision to Reform the IFHP
[49]
Over the years, CIC had carried out several
reviews of the IFHP. It made recommendations for the modernization of the
program in 1994 and again in 2004, neither of which resulted in substantial
changes to the IFHP. However, the cost of the IFHP continued to rise as a
result of a general increase in the cost of health care in Canada, and the increasing number of people eligible for IFHP coverage. For example, there were
105,326 people eligible for IFHP benefits in 2003, whereas there were 128,586
people eligible for IFHP benefits in 2012.
[50]
The respondents also say that the original
intent of the IFHP, namely to provide short term, interim medical care to
eligible individuals, had been eroded over time. The cost of the IFHP is
directly affected by the length of time that people are eligible for benefits.
While the average period of IFHP eligibility was 548 days in 2003, the average
eligibility period had climbed to 948 days by 2012.
[51]
The combined result of these factors was that
the IFHP cost Canadian taxpayers $50,600,000 in 2002/2003 and almost
$91,000,000 in 2009/2010. As a consequence, cost containment was a driving
principle underlying the decision to reform the IFHP.
[52]
Another impetus for reform was this Court’s
decision in Toussaint v. Canada (Attorney General), 2010 FC 810, [2011]
4 F.C.R. 367 [Toussaint FC], aff’d 2011 FCA 213, [2013] 1 F.C.R. 374, leave
to appeal to SCC refused, [2011] S.C.C.A. No. 412. This decision traced the
evolution and expansion of the IFHP since its inception, with this Court noting
that the actual operation and beneficiaries of the IFHP in 2010 bore little
resemblance to the terms of the 1957 OIC. The Court further observed that the
current operation of the IFHP was based largely upon CIC’s own internal
policies, and took little heed of the 1957 OIC. As a result of this decision,
CIC decided that a new IFHP policy had to be grounded in a new OIC.
[53]
As a consequence of these and other considerations,
CIC decided that the IFHP was in need of reform, and that five key principles
should guide that reform. The respondents identify these principles as
including the need to:
i.
Modernize, clarify and reaffirm the original
intent of the IFHP as a temporary, interim, short term ex gratia
program;
ii.
Change the IFHP to ensure “fairness to Canadians”;
iii.
Protect public health and public safety in Canada;
iv.
Defend the integrity of Canada’s refugee determination system and deter its abuse; and
v.
Contain the financial cost of the IFHP.
[54]
In September of 2010, the Minister announced
that CIC would undertake a complete policy review of the IFHP. The result of
this review was the April 25, 2012 announcement of major changes to the IFHP as
part of the federal budget. That same day, Order in Council P.C. 2012‑433,
the “Order Respecting the Interim Federal Health
Program, 2012” (the April 2012 OIC), was published in the Canada
Gazette. The April 2012 OIC, together with the amendments made on June 28, 2012
by Order in Council P.C. 2012-945 (the amending OIC), replaced the 1957 OIC,
effective June 30, 2012. These two OICs will be referred to jointly in these
reasons as the “2012 OICs”.
[55]
The respondents say that abuse of the IFHP was “not the issue which guided or motivated the reform”.
Rather, the changes were intended to support the overall objective of refugee
reform, and were “but one way in which the government
could deter unfounded claims and possibly discourage failed refugee claimants
from remaining in Canada when they ought to be leaving”: Transcript,
Vol. 3, p. 38.
[56]
A statement made on behalf of the then-Minister
of Citizenship and Immigration shortly after the 2012 changes to the IFHP came
into force provides further insight into the rationale for the modifications
made to the program. The Minister’s spokesperson explained the changes in the
following terms:
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. Our
Government has listened and acted. We have taken steps to ensure that protected
persons and asylum seekers from non-safe countries receive health care coverage
that is on the same level as Canadian taxpayers receive through their provincial
health coverage, no better. Bogus claimants from safe countries, and failed
asylum seekers, will not receive access to health care coverage unless it is to
protect public health and safety. Shamefully, the NDP and the Liberals support
bogus and rejected asylum seekers receiving gold-plated health care benefits.
We disagree. Those who have been through our fair system and [are] rejected
should respect Canada’s laws and leave the country.
C.
The 2012 IFHP
[57]
The pre-2012 IFHP provided the same level of
insurance coverage to all individuals eligible for benefits, whether they were
refugees, refugee claimants, failed refugee claimants, individuals only
entitled to a PRRA, victims of human trafficking or immigration detainees.
Coverage was available to these individuals until
they either became eligible to receive provincial or territorial health
insurance, or left the country.
[58]
The 2012 IFHP continues to provide limited,
temporary health insurance coverage to:
i.
Protected persons, including resettled refugees,
successful refugee claimants and positive PRRA recipients;
ii.
Refugee claimants and rejected refugee
claimants;
iii.
Victims of human trafficking with temporary
resident permits;
iv.
Persons granted permanent residency as part of a
public policy or for humanitarian and compassionate reasons by the Minister,
and who receive income support through the resettlement assistance program or
the equivalent in Quebec; and
v.
Foreign nationals and permanent residents
detained under the Immigration and Refugee Protection Act, S.C. 2001, c.
27.
[59]
However, unlike the situation under the pre-2012
IFHP, individuals who are only entitled to make a PRRA application and not a
refugee claim are no longer entitled to any form of IFHP coverage whatsoever.
This includes people who not admissible to Canada on security grounds, or
because of criminal activity or human rights violations. It also includes those
who fail to file their refugee claims in a timely manner and those who have
previously made an unsuccessful refugee claim.
[60]
For the purpose of these reasons, I will refer
to the various classes of individuals described in the two preceding paragraphs
collectively as individuals “seeking the protection of Canada”.
[61]
In contrast to the pre-2012 IFHP, which provided
the same level of coverage to all those eligible for the program, the 2012 IFHP
regime now provides for three tiers of coverage:
i.
Expanded Health Care Coverage (EHCC);
ii.
Health Care Coverage (HCC); and
iii.
Public Health or Public Safety Health Care
Coverage (PHPS).
[62]
Which tier of IFHP coverage a person will be
entitled to receive under the 2012 IFHP depends upon a number of factors
including:
i.
Where the individual is in the refugee
determination process (e.g. refugee claimant, successful claimant or rejected
claimant);
ii.
whether the individual is a national of a
Designated Country of Origin (DCO);
iii.
if the individual is not a refugee claimant, the
person’s status in Canada (e.g: permanent resident, resettled refugee, victim
of human trafficking, person with a positive PRRA decision, etc.);
iv.
whether the individual receives federally-funded
resettlement assistance; and
v.
whether the individual is being detained.
[63]
Under the 2012 IFHP it is now therefore possible
for an individual to receive different levels of IFHP coverage at different
times. By way of example, a refugee claimant from a non-DCO country would
receive HCC while their claim is outstanding, but their coverage would be
reduced to the PHPS level if the claim is rejected. This is the case even
where, as with Mr. Ayubi, the Government of Canada has placed a moratorium
on returning rejected refugees to their country of origin.
[64]
Similarly, a refugee claimant from a DCO country
would be limited to PHPS coverage while his or her refugee claim is pending
before the Immigration and Refugee Board, but if the claim is ultimately
accepted, the individual’s level of insurance coverage would then increase to the
HCC level.
[65]
Also noteworthy is the fact that the 2012
changes to the IFHP eliminated the means test, with the result that everyone in
a particular category of claimants is entitled to health insurance coverage at
the relevant level, regardless of their ability to pay for their own health
care.
[66]
The scope of the coverage provided under each
tier of the IFHP will be discussed next.
(1)
Expanded Health Care Coverage
[67]
Expanded Health Care Coverage is substantially
equivalent to the level of IFHP benefits provided under the pre-2012 program,
and is essentially the same level of publicly-funded health care insurance
coverage as is available to low-income Canadians under provincial or
territorial benefit plans. EHCC pays for the services of hospitals, physicians,
nurses, and other health care professionals. Coverage is also provided for
laboratory, diagnostic and ambulance services, translation services for health
purposes, and supplemental services and products such as prescription
medications, emergency dental services, vision benefits and assistive devices.
[68]
Those entitled to EHCC benefits include most
government-assisted refugees and some privately-sponsored refugees, as well as
victims of human trafficking and some individuals admitted under a public
policy or on humanitarian and compassionate grounds. According to the
respondents, 14% of all IFHP beneficiaries now receive EHCC benefits.
(2)
Health Care Coverage
[69]
The second tier of coverage is Health Care
Coverage. The respondents submit that HCC provides health insurance coverage
that is similar to the level of coverage received by working Canadians through
their provincial or territorial health insurance plans. In addition, HCC
provides coverage for medications and immunizations that are required to
prevent or treat a disease posing a risk to public health or treat a condition
that is a public safety concern. Other medications are not covered under HCC,
even if they are required for life-threatening conditions.
[70]
While not a change from the pre-2012 IFHP, it is
factually incorrect to say that HCC provides health insurance coverage that is
similar to the level of coverage received by working Canadians. There is
a limitation on HCC coverage that does not apply to the coverage
provided to working Canadians under provincial or territorial health insurance
plans. That is, while HCC beneficiaries recieve coverage for services and
products such as hospital in-patient and out-patient services, physicians,
nurses, and other health care professionals and laboratory, diagnostic and
ambulance services, the 2012 OIC makes it clear that these services and
products are only covered “if they are of an urgent
or essential nature” as defined in the Interim Federal Health
Program Policy.
[71]
The Interim Federal Health Program
Policy defines services and products of an urgent nature as “those provided in response to a medical emergency – an
injury or illness that poses an immediate threat to a person’s life, limb or a
function”. There is a further qualifier imposed by the IFHP with respect
to the availability of services and products of an urgent nature which is that
they are not to be “more than what is required to
respond to the medical emergency …”.
[72]
Services of an essential nature are
defined by the Interim Federal Health Program Policy s being services
provided to an IFHP beneficiary for the “assessment and
follow-up of a specific illness, symptom, complaint or injury”.
Essential services also include “prenatal, labour and
delivery, and postpartum care” and services provided “for the diagnosis, prevention, or treatment of a disease
posing a risk to public health or for the diagnosis or treatment of a condition
of public safety concern”.
[73]
Thus, routine primary health care services such
as annual check-ups, preventative health care and standard screening tests
(other than those for communicable diseases or conditions of concern to public
safety) are not available to recipients of HCC benefits, although these types
of services are generally available to working Canadians under provincial or
territorial health insurance plans.
[74]
Those entitled to HCC benefits include refugee
claimants from non-DCO countries, refugees, successful PRRA applicants, most
privately-sponsored refugees, and all refugee claimants whose claims were filed
before December 15, 2012, regardless of the claimant’s country of origin. The
respondents indicate that 62% of all IFHP beneficiaries receive HCC benefits.
(3)
Public Health or Public Safety Health Care
Coverage
[75]
Public Health or Public Safety Health Care
Coverage only insures those health care services and products that are
necessary or required to diagnose, prevent or treat a disease posing a risk to
public health, or to diagnose or treat a condition of public safety concern.
[76]
According to the April, 2012 OIC, a “disease posing a risk to public health” is defined as
a communicable disease that is either identified in the Interim Federal
Health Program Policy or is on the list of national notifiable diseases
maintained by the Public Health Agency of Canada. These include diseases such
as tuberculosis, HIV, malaria, measles, chicken pox, and other contagious
diseases. A “condition posing a risk to public safety”
includes mental health conditions where a person is likely to cause harm to
others. Mental health conditions where the individual only poses a risk to him
or herself are not covered under PHPS coverage.
[77]
Those entitled to PHPS-level coverage include
refugee claimants from DCO countries whose claims were filed after December 15,
2012, refugee claimants whose claims have been suspended while they are under
investigation for possible inadmissibility, and failed refugee claimants. The
respondents say that 24% of all IFHP beneficiaries receive PHPS benefits.
[78]
Beyond these services, the IFHP covers the cost
of immigration medical examinations for those individuals eligible for any of
the three aforementioned tiers of coverage.
(4)
PRRA-only Claimants
[79]
There is, however, a fourth class of individuals
who had health insurance coverage under the pre-2012 IFHP who now receive no
health insurance coverage whatsoever, even if they suffer from a health
condition that poses a risk to public health or safety. This class is made up
of individuals who are only entitled to a Pre-removal Risk Assessment
(PRRA-only claimants).
(5)
Ministerial Discretion
[80]
Under section 7 of each of the 2012 OICs,
the Minister retains the discretion to pay the cost of HCC, PHPS coverage or
immigration medical examinations “in exceptional and compelling
circumstances”. It will be recalled that Mr. Ayubi was ultimately
granted discretionary IFHP coverage by the Minister for his diabetes-related
medical services, but not for his medication.
[81]
Indeed, the amending OIC makes it clear that the
Minister’s discretion does not extend to cover the payment of medications or
immunizations, unless they are required to treat a condition that involves a
threat to public health or safety.
[82]
The respondents further acknowledge that the
existence of Ministerial discretion under section 7 of the 2012 OICs is
not designed to address emergency medical situations.
[83]
It also appears that a request for section 7
discretionary relief may potentially have consequences for the way in which an
individual’s refugee claim is processed.
[84]
CIC’s Operational Bulletin 440-G provides
guidance with respect to the processing of refugee claims in accordance with
amendments to IRPA made under the Balanced Refugee Reform Act,
S.C. 2010, c. 8 (which received Royal Assent on June 29, 2010) and the Protecting
Canada’s Immigration System Act, S.C. 2012, c. 17, which came into force on
December 15, 2012.
[85]
Section 8 of the Operational Bulletin deals
with Ministerial interventions and identifies criteria for use by CIC and CBSA
in identifying refugee cases that may warrant Ministerial intervention. One
such criteria is that the “claimant appears to be
making a claim in order to access benefits”. The Bulletin goes on to
cite the example of where “urgent IFH[P] coverage [is]
requested during or before the eligibility interview”. The applicants
submits that this could serve as a disincentive for refugee claimants to apply
for section 7 relief, raising the fear that such a request could
negatively affect their claims.
[86]
I do not accept the respondents’ contention that
section 8 of Operational Bulletin 440-G has no application in the case of
requests for section 7 Ministerial relief. The respondents’ argument is
predicated on the assumption that concerns that a claimant may be making a
refugee claim in order to access benefits will only arise where the
individual requests urgent IFHP coverage during or before his or her
eligibility interview. Indeed, the respondents suggest that the Operational
Bulletin should actually have referred to an “urgent
request for an eligibility interview” rather than an “urgent request for
IFH[P].”
[87]
I am not prepared to interpret the Operation
Bulletin in the way suggested by the respondents. It is clear on the face of section 8
of the Operational Bulletin that a request for IFHP coverage during or before
an eligibility interview is cited as only one example of circumstances that
could trigger a Ministerial intervention. This does not, however, preclude the
possibility that a request for section 7 Ministerial relief at any point
in the processing of a refugee claim could also potentially give rise to
concerns that a claimant is making a refugee claim in order to access health
care benefits, thus prompting Ministerial involvement in the claim.
D.
The Impact of the 2012 Changes to the IFHP
[88]
The 2012 changes to the IFHP have provoked a
strong public reaction and have had a significant impact on individual
patients, health care providers and the health care system. Before turning to
consider these issues, however, it is first necessary to address the
respondents’ objection to some of the evidence adduced by the applicants.
(1)
The Expert Evidence
[89]
The respondents object to five of the affidavits
filed by the applicants on the basis that they contain opinion evidence and
none of the formalities associated with the leading of expert evidence
contemplated by the Federal Courts Rules, S.O.R./98-106 were complied
with prior to the commencement of the hearing.
[90]
The affidavits in issue are those of
Dr. Michael Rachlis, Dr. Christopher Anderson, Dr. Joanna Anneke Rummens,
Dr. Michael Ornstein and Dr. Denis Daneman.
[91]
Dr. Rachlis is a medical specialist
certified in public health and an Adjunct Professor at the University of Toronto’s School of Public Health and the Institute for Health Policy Management
and Evaluation. He has 25 years of experience consulting in the area of health
policy and health economics.
[92]
Dr. Rachlis states that he has analyzed the
reforms to the IFHP, providing what he describes as his “expert opinion on health care utilization and costs”:
at para. 6. He outlines what he says is the “optimal method” to determine
whether the 2012 changes to the IFHP have actually resulted in any net public
sector cost savings. Dr. Rachlis states that, to the best of his
knowledge, the Government of Canada has not carried out any such an analysis.
[93]
Dr. Rachlis further states that what is
certain is that the changes to the IFHP are “causing
illness, disability and death”: at para. 38.
[94]
Dr. Anderson is an Assistant Professor in the
Department of Political Science at Wilfrid Laurier University. He has a
doctorate in political science from McGill University. His thesis examined
immigrants, refugees and asylum seekers and the regulation of Canada’s border between 1867 and 1988. Dr. Anderson teaches in the area of migration policy.
[95]
Dr. Anderson’s affidavit provides a history of Canada’s immigration policy and “situates contemporary Canadian
refugee policy within a long-standing historical pattern that originated soon
after Confederation”: at para. 2. He discusses the ways in which
Canadian immigration policy has been designed over the years so as to attract
certain immigrants while excluding others, and the negative stereotypes that
have been ascribed to groups identified as “undesirable”.
[96]
Dr. Rummens holds a doctorate in sociology
from York University and is a Health Systems Research Scientist with the
Community Health Systems Resource Group and Project Investigator, Child Health
Evaluative Sciences at the Hospital for Sick Children in Toronto. She is also
Senior Scholar and Former Director of the Joint Centre of Excellence for
Research on Immigration and Settlement.
[97]
Dr. Rummens is a Principal Investigator in
a research project entitled “Migratory Status of the Child and Limited
Access to Health Care”, and her affidavit examines the impact of health
care insurance coverage on access to care and health outcomes for immigrant,
refugee claimant and other migrant children. She notes that the preliminary
results of her study indicate that a lack of health insurance will have a detrimental
impact on the health of children.
[98]
Dr. Ornstein is the Director of the
Institute for Social Research at York University and an Associate Professor of
Sociology. He holds a doctorate in Social Relations from Johns Hopkins University and has published in the area of survey research. He describes himself in
his affidavit as “an expert in survey research methods
and in survey data analysis”: at para. 1.
[99]
Dr. Ornstein’s affidavit provides a summary
of the available data on the economic conditions of refugees, concluding that,
as a group, they experience “extreme economic
deprivation”.
[100] Dr. Daneman is an endocrinologist and the
Paediatrician-in-Chief at the Hospital for Sick Children in Toronto. His
affidavit describes the position taken by the Canadian Paediatric Society,
which has issued a position statement advocating against the 2012 cuts to
refugee health care.
[101] Dr. Daneman also describes a letter to the then-Minister of
Citizenship and Immigration that he authored in his capacity as the President
of the Paediatric Chairs of Canada, which is composed of 15 Chairs of the
Department of Paediatrics at all of the Canadian universities’ faculties of
medicine. This letter once again criticized the 2012 changes to the IFHP, and
described the negative impact that he says the changes would have on children’s
health outcomes.
[102] In accordance with a case management order issued in April of 2013,
the applicants were required to serve and file their affidavit evidence in this
case by May 30, 2013. Twenty-one affidavits were filed by the applicants by
this deadline, including the five affidavits in issue. The respondents had
until August 30, 2013 to file their affidavits. While the respondents filed
four affidavits by this deadline, including the affidavits of Ms. Le Bris and Ms.
Little Fortin already referred to, no evidence was filed by the respondents
directly in response to any of the disputed evidence.
[103] Cross-examinations on affidavits were to be completed by October 15,
2013. While the respondents cross-examined a number of the applicants’
witnesses, they elected not to cross‑examine any of the five witnesses
whose evidence is in dispute.
[104] The applicants’ memorandum of fact and law was to be served and
filed by October 30, 2013, and the respondents’ memorandum of fact and law was
to be served and filed by November 29, 2013, approximately two weeks
before the commencement of the hearing. It was only in their memorandum of fact
and law that the respondents first took issue with the evidence of the five
witnesses in question.
[105] Referring to the applicants’ “so-called
‘expert evidence”’, the respondents observed in their memorandum that
none of the affiants were qualified as experts, and that the procedural
requirements of the Federal Courts Rules with respect to expert evidence
had not been complied with, including the filing of Codes of Conduct
signed by the deponents of the affidavits agreeing to be bound by the
requirements of the Rules.
[106] In support of their objection, the respondents rely on the Federal
Court of Appeal’s decision in Es-Sayyid v. Canada (Minister of Public Safety
and Emergency Preparedness), 2012 FCA 59, [2012] F.C.J. No. 250, where the
Court observed that Rule 52.2 of the Federal Courts Rules “sets out an exacting procedure that must be followed for the
admission of expert evidence, a procedure that, among other things, is designed
to enhance the independence and objectivity of experts on whom the courts may
rely”: at para. 42.
[107] The applicants explain that they did not initially view the disputed
evidence as being expert evidence: Transcript, Vol. 1, p. 12. They subsequently
stated that their failure to comply with the Rules regarding expert evidence
was an “oversight” on their part: Transcript, Vol. 3, p. 200. In response to
the respondents’ objection, and at the direction of the Court, the applicants
filed Certificates signed by the deponents of the five affidavits in issue on
January 15, 2014, with each deponent agreeing to be bound by the Code of
Conduct for Expert Witnesses contained in the schedule to the Rules.
The Certificates were not, however, modified to recognize that they were being
signed after the fact.
[108] The respondents submit that the filing of Certificates executed
after the fact by the deponents of the five affidavits cannot cure the defect
in the affidavits in issue, as they were initially signed without reference to
the Code of Conduct. In support of this contention, the respondents cite
this Court’s decision in Saint Honoré Cake Shop Ltd. v. Cheung’s Bakery
Products Ltd., 2013 FC 935 at para. 19, [2013] F.C.J. No. 1018.
[109] At the hearing, the respondents took particular issue with the
evidence of Drs. Rummens and Daneman, submitting variously that their evidence
should not be considered as expert evidence, that it should be given little
weight, or that it should be excluded in its entirety.
[110] The respondents say that they made what they described both as a “strategic decision” and a “judgment
call” not to raise their concern at an earlier point in the proceedings,
and to instead “submit to the Court that the evidence
that the Applicants have put forward ought to be given little weight”.
[111] However, elsewhere in their submissions, the respondents say that it
was not until they received JFCY’s memorandum of fact and law that they became
aware that the affidavits, particularly those of Drs. Rummens and Daneman, were
being relied upon as expert evidence.
[112] I agree with the respondents that the disputed evidence is clearly
expert evidence. This is obvious on the face of the affidavits in question. As
such, the requirements of the Federal Courts Rules should have been
complied with.
[113] That said, I am extremely troubled by the conduct of the respondents
in this matter. I do not accept their submission that it was only when they
received JFCY’s memorandum that they became aware that the affidavits were
being relied upon as expert evidence. Whether an affidavit contains expert or
non-expert evidence is revealed by the content of the affidavit in question,
and not how the party adducing the affidavit characterizes the evidence in
their factum.
[114]
I do accept that the respondents did
precisely what they say that they did: namely, that they made the “strategic decision” not to raise their concerns in a
timely manner, choosing instead to wait until the last possible minute to raise
the issue. This is contrary to the spirit of the 2010 amendments to the Rules
dealing with expert evidence, in particular Rule 52.5(1), which requires
parties to raise any objection to an opposing party’s proposed expert witness
that could disqualify the witness from testifying “as
early as possible in the proceeding”.
[115] Indeed, the Federal Court of Appeal has
cautioned that Courts “must be especially vigilant to prevent [such] tactical
conduct”: Apotex Inc. v. Pfizer Canada Inc., 2014 FCA 54 at para. 10,
citing Apotex Inc. v. Bristol-Myers Squibb Company, 2011 FCA 34, at para.
37, 414 N.R. 162. While the Court’s comments were made in the context of
pharmaceutical litigation, the same principle should apply here.
[116] This matter was, moreover, intensively case managed. I held
teleconferences and face-to-face meetings with the parties in the months
leading up to the hearing. There was frequent correspondence between the
parties and the Court. Motions were brought and addressed and Directions
issued. At no time did the respondents give any hint that they had a concern
with respect to the evidence of the five witnesses in issue. I can only
conclude that they decided to wait in the weeds and spring their objection on
the applicants at the last minute.
[117] The respondents contend that they have been prejudiced as a result
of the failure of the applicants to make it clear that they were relying upon
the five disputed affidavits as expert evidence. They say that they relied upon
the fact that the applicants were not submitting this evidence, in particular
that of Drs. Rummens and Daneman, as expert evidence in deciding what kind of
evidence was required in response. It also informed the respondents’ decision
as to whether or not to cross-examine on the affidavits.
[118] I do not accept this submission. As was noted earlier, the
respondents had the applicants’ affidavits by May 30, 2013. They knew who the
deponents were and what their affidavits said. They made strategic decisions as
to whether to adduce responding evidence and whether to cross-examine the
applicants’ witnesses. They chose not to do so and they now have to live with
the consequences.
[119] In rejecting the respondents’ allegations of prejudice, I also note
that curricula vitae were provided with the affidavits of each of the
five witnesses whose evidence was in issue, clearly delineating the
qualifications of each of the deponents. The respondents have not taken issue
with the qualifications of any of the five witnesses to offer the opinions that
they have provided. Nor have any concerns been raised with respect to the
objectivity of four of the witnesses, although the respondents do suggest that
Dr. Daneman lacks objectivity because he has publicly advocated for the
reversal of the 2012 changes to the IFHP.
[120] Indeed, the respondents do not appear to take issue with much of the
evidence in question, at least some of which is supported by other reports in
the record, including reports prepared by CIC itself.
[121] For example, the respondents expressly accept Dr. Ornstein’s
conclusion that most of those seeking the protection of Canada are economically disadvantaged: see Transcript, Vol. 2, p. 182. Nor have the respondents
taken issue with the seemingly common sense observation offered by both
Drs. Rachlis and Rummens that poor individuals without health insurance
are less likely to seek medical care, which can increase the risk of adverse
health effects.
[122] In light of the foregoing, and taking into account the provisions of
Rule 3 of the Federal Courts Rules which requires that the Rules be
applied so as to achieve “the just, most expeditious
and least expensive determination of every proceeding on its merits”, I
am of the view that I should exercise my discretion to consider the affidavits
of four of the five witnesses as expert evidence, notwithstanding the
applicants’ failure to comply with the Rules in this regard.
[123] I do, however, agree with the respondents that Dr. Daneman’s
role as an advocate in the fight against the 2012 changes to the IFHP is
inconsistent with his role as an expert witness in this case. The role of the
expert witness is not to advocate for a cause, but rather to assist the court
through the provision of an independent and unbiased opinion about matters
coming within the expertise of the witness: National Justice Compania
Naviera S.A. v. Prudential Assurance Co Ltd. (the “Ikarian Reefer”)
[1993] 2 Lloyd’s Rep. 68, at pp. 81-82.
[124] As a consequence, while I am prepared to consider the factual
evidence provided by Dr. Daneman as to steps that he may have taken in the
wake of the 2012 changes to the IFHP, as well as the steps that may have been
taken by organizations of which he is a member, I am not prepared to assign
probative value to the opinions that he offers in his affidavit.
[125] Having so determined, I turn now to consider the public reaction to the
2012 changes to the IFHP, and the impact that these changes have had.
(2)
The Public Reaction
[126] The 2012 changes to the IFHP were condemned by many involved in
providing health care and other forms of assistance to those seeking the
protection of Canada, as well as by newspaper editorial writers and provincial
governments. I will deal with the public outcry that followed the creation of
the 2012 IFHP in greater detail in the context of my section 12 Charter
analysis, but will briefly identify the nature of the concerns that were
expressed in order to provide a context for the discussion that follows.
[127] Some 21 national medical organizations, including the Canadian
Medical Association, the Royal College of Physicians and Surgeons, the College
of Family Physicians of Canada, the Canadian Association of Midwives, the
Canadian Psychiatric Association, the Canadian Paediatric Society, the Public
Health Physicians of Canada and the Canadian Association of Emergency
Physicians offered statements expressing concerns with respect to the cuts to
the IFHP.
[128] A group of these organizations wrote to the Minister of Citizenship
and Immigration on May 18, 2012, decrying the pending changes to the IFHP.
Amongst other things, the organizations observed that the cost of providing
care to vulnerable individuals would be downloaded to provincial social support
programs, community-based health programs, the charitable sector and others.
[129] The organizations further note that the failure to provide “upfront health services” created the risk that
undiagnosed and untreated medical conditions would result in increased medical
complications, as well as future health care costs. In addition, the failure to
address medical concerns would make it more difficult for newcomers to Canada to learn new languages, attend school or enter the job market.
[130] Dr. Meb Rashid is a family physician in Toronto and a founding
member of CDRC. He states in his affidavit that despite requests from these
medical associations for a meeting with the Minister of Citizenship and
Immigration to discuss the pending changes to IFHP, no such meeting ever took
place.
[131] Provincial governments also expressed serious concerns with respect
to the changes to the IFHP. For example, shortly before the 2012 IFHP came into
effect, the Ontario Minister of Health and Long Term Care wrote to the federal
Ministers of Health and Immigration calling on the federal government to
reinstate the pre-2012 IFHP.
[132] The Ontario Health Minister’s letter accused the Government of Canada
of having “abdicat[ed] its responsibility towards some
of the most vulnerable in our society”. The Minister stated that if
denied coverage for early health care interventions and medication, people
would not seek medical care until they were in need of emergency treatment. In
addition to causing “needless pain and suffering”,
the failure to treat conditions “will exacerbate the
future health care needs [of affected individuals]” and has “effectively downloaded federal costs onto the provincial
health care system”.
(3)
Confusion in the Health Care Profession
[133] It will be recalled that the changes to the IFHP were first
announced on April 25, 2012, and came into effect on June 30, 2012. CIC carried
out a number of briefings during this time, explaining the changes to the
provinces and territories, national health organizations, service provider
organizations, the Canadian Council of Refugees and other national
organizations representing refugees and refugee claimants. Information Bulletins were also published on the CIC website and on the website of the claims
administrator, Medavie Blue Cross.
[134] There was, nevertheless, considerable confusion on the part of
health care providers in processing the health care claims of refugee claimants
in the wake of the 2012 changes to the IFHP. The applicants’ affiants state
that surgeries have been cancelled due to uncertainties surrounding patients’
IFHP insurance coverage. Incorrect information has also been provided with
respect to other patients’ IFHP status, with the result that health care has
been denied to patients who were in fact eligible for coverage for the care in
question.
[135] In others cases, doctors have demanded that patients pay the cost of
medical treatment “up front”, even though patients might actually have IFHP coverage
for the services or treatment in question.
[136] Some doctors have found the new system too confusing, and are now
simply refusing to see any IFHP patients. According to the affidavit of
Dr. Rashid, this is a particular problem with specialists.
[137] Manavi Handa is a midwife working with refugee claimants in Ontario. She describes in her affidavit how two of her clients, IFHP beneficiaries
receiving obstetrical care in hospitals were asked to pay hospital fees upfront
following the 2012 changes to the IFHP, even though the status of their health
care coverage had in fact remained unchanged.
[138] Dr. Paul Caulford, a family physician and co-founder and
Medical Director of the Community Volunteer Clinic for the Medically Uninsured,
outlines numerous difficulties that his clinic has encountered since June 30,
2012, asserting that the IFHP system has “become a
confusing administrative nightmare”: at para. 23.
[139] This confusion on the part of health care providers is hardly
surprising. Indeed, the chapter in the CIC manual dealing with the IFHP is some
52 pages in length, complete with flow-charts and eligibility tables explaining
which class of claimant is entitled to what level of care at which stage in the
proceedings. Dr. Rashid testified that a colleague of his with an interest
in refugee health told him “[s]end me Einstein’s theory
of relativity. It’s easier”: Rashid
cross-examination at question 337.
[140] While not denying that problems have occurred since the changes to
the IFHP came into effect on June 30, 2012, Allison Little Fortin, the Director of the IFHP in the Health Branch of CIC, describes in her affidavit the efforts that
CIC has made to address the concerns that have arisen in the wake of the
changes to the IFHP, particularly with respect to ensuring that information
regarding a patient’s entitlement to IFHP coverage is accessible and accurate.
[141] The respondents note that the claims administration process is
substantially the same as it was before the 2012 changes were made to the IFHP.
The respondents further argue that cross-examination of some of the affiant
health practitioners reveals that some of this confusion was due “in large
part” to their failure to “inform themselves of the changes”: see Transcript,
Vol. 2 at p. 72. The record also reveals, however, that some doctors such as
Dr. Caulford did make efforts to learn about the 2012 changes to the IFHP and
to understand how it works.
(4)
The Systemic Consequences of the 2012 Changes to
the IFHP
[142] In addition to the confusion in the health care profession discussed
in the preceding section, the 2012 changes to the IFHP have had a number of
other consequences for the health care system as a whole.
[143] As was noted earlier, an individual’s entitlement to IFHP coverage,
and the level of that coverage can change over time. As a consequence, patient
eligibility for coverage now has to be updated on a regular basis, creating an
additional administrative burden for health care providers.
[144] Difficulties confirming the status of a patient’s IFHP coverage have
been encountered when the patient presents for treatment outside of the office
hours of the IFHP claims administrator - Medavie Blue Cross. Problems have also
been encountered when the Medavie Blue Cross website is down, which has
evidently occurred from time to time.
[145] Delays in issuing eligibility certificates for inland refugee
claimants have also created difficulties when these refugee claimants have
developed health problems prior to receiving their certificates. In contrast to
the pre-2012 system where most refugee claimants were granted temporary
coverage upon entry into Canada pending determination of their eligibility,
under the 2012 IFHP, refugee claimants are not granted any health care coverage
until their eligibility is determined. Although some of these delays have been
addressed by the respondents, it appears that difficulties may still be
encountered in emergency situations.
[146] Ms. Handa, the midwife mentioned earlier, identified a particular
concern that arises in the case of pregnant women. Ms. Handa notes that obstetricians
commit to take on the care of pregnant women for a defined period of time,
generally nine months. A patient’s entitlement to IFHP can change over time as
individuals move through the refugee determination process. Patient entitlement
to health insurance coverage can also change over time as the program continues
to evolve, for example, as new countries are added to the DCO list. As a
result, obstetricians cannot be certain that a woman taken into care at one
stage in her pregnancy will still have IFHP coverage for obstetrical care later
in her pregnancy.
[147] The result of this, Ms. Handa says, is that “more
and more obstetricians are reluctant to take on any women who now have IFHP
regardless of what category they fall into”: Handa affidavit at para. 12.
[148] Concerns have also been expressed by doctors with respect to the
ethical issues that are created for them as a result of the 2012 changes to the
IFHP. As Dr. Rashid explained in his cross-examination “…once
you see somebody who has pneumonia, and you’ve ruled out TB, what if they’re
still sick?” Are we supposed to then just say, I’m sorry, your coverage
is finished, please move on? Once you assume care for an individual I think
ethically it’s highly problematic to say two visits, three visits, sorry, you don’t
have TB. We don’t care what you have, please move on”: Rashid cross-examination
at question 357.
[149] Evidence has also been provided with respect to the impact of the
2012 changes to the IFHP on overall health care spending. While the respondents
have pointed to a decrease in spending on health care for IFHP beneficiaries as
a result of the changes to the program, the applicants’ witnesses suggest that
it is not at all clear that the changes will actually result in any net savings
to Canadian taxpayers, once the costs that have simply been downloaded to
others are factored into the equation. The changes will, moreover, most
certainly have negative health consequences for the affected individuals.
[150] Dr. Rachlis has analyzed the 2012 changes to the IFHP and has
provided an expert opinion on health care utilization and costs. He asserts
that study after study has confirmed that poor individuals without health
insurance are less likely to seek medical care, which can increase the risk of
adverse health effects. These individuals “use fewer
primary health care services (e.g. family doctors, nurse practitioners,
midwives), taking less needed prescribed medication, and therefore only seek
health care if/when they have a health crisis …”: Rachlis affidavit at para. 5. This results in “poorer overall health and higher use of hospital services,
both emergency rooms and acute care beds”: at para. 6.
[151] There is, moreover, a cost to reducing access to primary health
care. According to Dr. Rachlis, any cost savings achieved by cutting
insurance for primary health care “may be outweighed by
higher subsequent costs for other health care services, especially hospital
services”.
[152] Dr. Rachlis has identified what he says is the proper
methodology that should be followed in order to determine whether the 2012
changes to the IFHP have actually resulted in any net public sector cost
savings. To the best of Dr. Rachlis’ knowledge, the Government of Canada
has not carried out such an analysis.
[153] Evidence was also provided by Dr. Rummens with respect to the
impact of health care insurance coverage or a lack thereof on access to medical
care and health outcomes for immigrant, refugee claimant and other migrant
children. It will be recalled that Dr. Rummens is a Principal Investigator
in a research project entitled “Migratory Status of the Child and Limited
Access to Health Care”. Dr. Rummens’ evidence essentially mirrors that
of Dr. Rachlis, except that it specifically addresses the health
consequences of a lack of health insurance for children.
[154] Based upon an analysis of paediatric emergency records,
Dr. Rummens says that the preliminary findings of her research are that “children without health care insurance access emergency care
less often and with more serious health concerns compared to children who were
covered under the former … IFHP”: Rummens affidavit
at para. 6.
[155] These children “are also found to be more
highly represented at more serious triage levels than children with [pre-2012]
IFHP coverage”: at para. 5. According to Dr. Rummens, this suggests
that there may have been a delay in seeking help for some of the children – a
phenomenon that has been identified in research regarding uninsured adult
populations.
[156] It can be anticipated, says Dr. Rummens, that the health status
outcomes of children who have had their health care insurance coverage reduced
by the 2012 changes to the IFHP “will likely come to
mirror” the health status outcomes for the uninsured children in her
study: at para. 8.
(5)
The Impact on Individual Claimants
[157] A significant body of evidence was adduced by the applicants with
respect to the impact that the 2012 changes to the IFHP have had on individuals
requiring health care. Before turning to consider this evidence, however, it is
first necessary to address the respondents’ objections to some of the
applicants’ evidence on this issue.
(a)
The Frailties in the Applicants’ Non-expert
Evidence
[158] The respondents take issue with much of the evidence adduced by the
applicants with respect to the impact of the 2012 changes to the IFHP on individuals
other than Messrs. Ayubi and Garcia Rodrigues, submitting that the applicants
have failed to place sufficient direct, specific and detailed evidence before
the Court to support their Charter claims.
[159] The respondents note that although the applicants have provided
evidence regarding the experiences of many individuals under the 2012 IFHP,
only a few of these individuals have been identified by name. According to the
respondents, much of this evidence is hearsay, or is anecdotal, unreliable,
general and non-specific, and thus of little value.
[160] Furthermore, the respondents say that cross-examination on a number
of the applicants’ affidavits revealed uncertainty as to critical facts,
including the IFHP eligibility of the patient in question, as well as the tier
of IFHP coverage to which the patient may have been entitled at the relevant
time.
[161] As will be discussed in greater detail in relation to the issue of
standing, the applicants say that they have encountered “considerable practical difficulties” in having
individuals come forward with information in this case. For example,
Dr. Rashid explains that, beyond their physical and mental illnesses and
their psychological frailties, his patients have been reluctant to share their
stories publicly because of their lack of secure immigration status, and the
fact that they would be criticizing the very government from which they are
seeking protection.
[162] While acknowledging that doctors and other health care providers who
have provided affidavits in this case were, in some cases, referring to
information that they had received from others, the applicants nevertheless say
that the vast majority of the evidence provided by these affiants was evidence
regarding cases in which the deponents were personally and directly involved.
[163] The applicants also note that the respondents do not dispute that
the 2012 modifications to the IFHP have probably had an adverse effect on the
health of some of those affected by the changes. According to the applicants, “there is no better evidence than that of a doctor who is
called upon to treat an individual and can’t provide the treatment that is
required because the individual doesn’t have the necessary health care
coverage”: see Transcript, Vol. 2 at p. 226.
[164] The applicants further observe that the respondents were unable to
produce evidence to dispute any of the information provided by the affiants
demonstrating that the changes to the IFHP are having adverse effects, with the
result that the evidence of harm is uncontradicted.
[165] The Supreme Court has been clear that “Charter
decisions should not and must not be made in a factual vacuum” and that
“Charter decisions cannot be based upon the unsupported hypotheses of
enthusiastic counsel”: MacKay v. Manitoba, [1989] 2 S.C.R. 357 at
para. 9, [1989] S.C.J. No. 88.
[166]
Similarly, in Danson v. Ontario (Attorney
General), [1990] 2 S.C.R. 1086, [1990] S.C.J. No. 92, the Court observed
that it had “been vigilant to ensure that a proper
factual foundation exists before measuring legislation against the provisions
of the Charter, particularly where the effects of impugned legislation are the
subject of the attack”: at para. 26. See also Canada v. Stanley
J. Tessmer Law Corp., 2013 FCA 290 at para. 9, [2013] F.C.J. No. 1360.
[167]
A distinction is drawn in Charter litigation
between “adjudicative facts” and “legislative facts”: see Danson,
above at para. 27 for an explanation of the distinction between the two. More
recently, however, the Supreme Court has recognized that social and legislative
facts may in fact be intertwined with adjudicative facts: Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 52, [2013] S.C.J. No. 72 [Bedford].
[168]
Although they are not parties to the litigation,
the evidence regarding the experiences of unnamed individuals is closer to evidence
regarding “adjudicative facts” rather than to “legislative facts”.
According to the Supreme Court in Danson, “[s]uch facts are specific, and must be proved by admissible
evidence”: at para. 27.
[169] That said, as will be discussed further on in these reasons, there
is some room in Charter litigation for the use of reasonable hypotheticals
which are neither “far-fetched” nor “only marginally imaginable as a live
possibility”: see, for example, R. v. Goltz, [1991] 3 S.C.R. 485 at paras. 68-69,
[1991] S.C.J. No. 90.
[170] I agree with the respondents that there are frailties in some of the
applicants’ evidence regarding the experiences of individuals under the 2012
IFHP. There are, for example, material gaps in the information regarding the
immigration status of certain individuals or the level of IFHP coverage to
which the individual was entitled at the time in question. These gaps
significantly undermine the probative value of the evidence.
[171] There are, however, several affidavits provided by individuals other
than Mr. Ayubi and Mr. Garcia Rodrigues who – people who have
themselves been directly affected by the 2012 changes to the IFHP. This
evidence is specific, and deals with matters coming within the direct knowledge
of the deponents. As a consequence, I am prepared to ascribe probative value to
this evidence, which will be discussed further on in this section.
[172] A number of community workers, health care providers and lawyers
have also provided affidavit evidence about the cases of unnamed individuals in
which the deponents have been directly involved. I am satisfied that in the
cases discussed below, enough reliable detail has been provided to warrant
consideration of the evidence in question as being illustrative of some of the
ways in which the 2012 changes to the IFHP can affect program beneficiaries.
[173] Before turning to consider the evidence regarding non-parties,
however, I will first address the evidence with respect to the two individual
applicants.
(b)
Mr. Ayubi’s Experience
[174] As was noted earlier in these reasons, Mr. Ayubi is a failed
refugee claimant from Afghanistan who first came to Canada in April 2001. Mr. Ayubi
says that he developed “juvenile” or “Type 1”
diabetes when he was 10 years old, and that since then he has been dependent on
regular injections of insulin for his survival.
[175] Mr. Ayubi deposes that he left Afghanistan in part because of
his fear of the human rights violations committed by the Taliban, and also
because the war in Afghanistan prevented him from getting adequate medical care
for his diabetes. He confirmed in his cross-examination on his affidavit that
part of the reason that he came to Canada was because he could not always get
the medication that he needed in Afghanistan.
[176] Mr. Ayubi’s refugee claim was rejected by the Immigration and
Refugee Board in 2001. In light of Mr. Ayubi’s “overall
lack of credibility”, the Board did not believe that he had encountered
any problems with the Taliban as a result of his opposition to the war in his
country. Nor did the Board accept that Mr. Ayubi would have any problems
with governmental authorities, based upon his alleged opposition to the war.
The Board noted that Mr. Ayubi’s “fragile health”
made him unfit for military service, and that he had not provided credible and
trustworthy evidence to demonstrate that he had a well-founded fear of being
recruited by the Taliban.
[177] The rejection of Mr. Ayubi’s refugee claim does not, however,
mean that he is not at risk in Afghanistan.
[178] As was noted earlier, Mr. Ayubi was not removed from Canada after the rejection of his refugee claim because Afghanistan is a “moratorium country”. That
is, the Government of Canada has determined that the conditions in Afghanistan are simply too dangerous to allow for the repatriation of Afghan nationals,
including failed refugee claimants.
[179] While Mr. Ayubi has briefly accessed social assistance
benefits, he has worked “fairly steadily” since
his arrival in Canada, primarily in minimum wage jobs in restaurants and gas
stations. Throughout his time in this country, Mr. Ayubi has filed his tax
returns and paid his taxes. He was working as a dishwasher at the time that he
swore his affidavit, but continues to be a low-income person making
approximately $10,000 a year.
[180] In accordance with the provisions of the pre-2012 IFHP, Mr. Ayubi
had health care coverage from the time of his arrival in Canada until the changes to the IFHP came into effect on June 30, 2012. As a result, Mr. Ayubi’s
insulin and diabetic supplies, as well as the medical tests and care that he
required to manage his diabetes were all paid for by the federal government. Mr. Ayubi
was unable to confirm in his cross-examination how much the Government of
Canada has paid for his medical expenses over time.
[181] After June 30, 2012, Mr. Ayubi only had Public Health or Public
Safety Health Care Coverage. This only covered those health care services and
products necessary or required to diagnose, prevent or treat a disease posing a
risk to public health, or to diagnose or treat a condition of public safety
concern.
[182] Mr. Ayubi’s diabetes is complicated by retinopathy, nephropathy
and neuropathy. According to Dr. Stephen Feder, who has been Mr. Ayubi’s
family physician at the Pinecrest-Queensway Community Health Centre since 2007,
“this places him at significant risk for major
morbidity such as blindness, renal failure requiring dialysis or transplant,
peripheral arterial disease requiring surgical intervention, coronary artery
disease and of course premature mortality”: Ayubi affidavit, Exhibit A.
[183] Dr. Feder explains that the only way for Mr. Ayubi to
avoid these problems “is by taking good care of
himself”. To do this, “he requires numerous
medications to lessen the burden of illness”, including “insulin,
antihypertensives, renal protection, lipid lowering agents to name but a few”.
Dr. Feder also explains that Mr. Ayubi “benefits
from an antidepressant to help him maintain his morale and his courage going
forward”.
[184] After the changes to the IFHP came into effect, Mr. Ayubi no
longer had insurance coverage for his medications or his medical treatments and
tests as he is classified as a rejected refugee. Mr. Ayubi is unaware of
the cost of his various medications and his diabetic supplies such as lancets
and testing strips, but is certain that he would not be able to afford them.
[185] A request for discretionary relief was made on behalf of Mr. Ayubi
in January of 2013. In May of 2013, he was granted discretionary IFHP coverage
by the Minister. This pays for his medical services, but not for his medication
and diabetic supplies.
[186] Mr. Ayubi is currently being kept alive by free samples of
insulin which are provided to his Community Health Centre by a pharmaceutical
company on compassionate grounds. There is, however, no guarantee that these
samples will continue to be available to Mr. Ayubi in the future. Mr. Ayubi
indicated that samples of the specific medications prescribed to him are not
always available, and that he sometimes takes “different kind[s]” of medication:
Ayubi cross-examination, at question 215.
[187] Mr. Ayubi is not currently able to access some of his other
medications at all. According to Dr. Feder, “not
having access to these essential medications will undoubtedly be disastrous for
[Mr. Ayubi] … and will ultimately … be far more expensive to the health
care system when he inevitably presents with complications placing him in a
life and death situation”.
[188] In his affidavit Mr. Ayubi describes the “constant and severe psychological stress” that he is
suffering as a result of his lack of health insurance and the uncertainty
surrounding his continued access to life-saving medication. . He adds that the
situation is “taking a serious toll” on his health: para. 14.
[189] Mr. Ayubi is a resident of Ontario. He has never applied for
coverage under the Ontario Health Insurance Plan (OHIP), although it is by no
means clear that he would qualify for OHIP coverage in light of the tenuous and
transitory nature of his employment. In any event, OHIP would not cover the
cost of Mr. Ayubi’s medication and diabetic supplies. Mr. Ayubi has
also stated that he cannot afford to purchase private health insurance.
[190] Evidence was also provided regarding Mr. Ayubi’s case by
Christopher Bradley, a nurse practitioner at the Pinecrest-Queensway Community
Health Centre.
[191] Mr. Bradley describes the efforts that he made to find a new
endocrinologist for Mr. Ayubi after his long-time endocrinologist refused
to keep treating him when he lost his pre‑2012 IFHP health insurance
coverage.
[192] Mr. Bradley’s affidavit also discusses the time that he spent
trying to locate other specialists willing to see Mr. Ayubi. He describes his
efforts to negotiate lower prices at a local hospital so that Mr. Ayubi
could receive certain tests, something Mr. Bradley says that he never had
to do before June 30, 2012. While Mr. Bradley was successful in
negotiating a lower price for the tests, the Community Health Centre
nevertheless paid some $2,700 on Mr. Ayubi’s behalf for tests that would
previously have been covered under the pre-2012 IFHP.
[193] Mr. Bradley also notes that all of the time that he has spent
advocating on Mr. Ayubi’s behalf is time that could otherwise have been
spent attending to the health care needs of other patients.
[194] Mr. Bradley confirmed on his cross-examination that free
samples of Mr. Ayubi’s medications are not always available, and that Mr. Ayubi
has not been able to obtain certain of his medications. In other cases it has
been necessary to substitute one medication for another. According to Mr. Bradley,
a substitution in Mr. Ayubi’s anti-hypertensive medication led to him
suffering a hypotensive crisis. This required the administration of intravenous
fluids to restore Mr. Ayubi’s blood pressure.
[195] Mr. Bradley says that the Pinecrest-Queensway Community Health
Centre has been unable to provide Mr. Ayubi with enough test strips to
allow him to test his blood sugar levels as often as they should be checked,
thereby creating an unsafe situation.
[196] Finally, Mr. Bradley stated in his cross-examination that he
understood that Mr. Ayubi was working part-time, observing that before he
received discretionary medical coverage in May of 2013, Mr. Ayubi would
likely have been better off if he quit his job and went on social assistance.
[197] Mr. Ayubi is not directly challenging any specific decision
with respect to his own IFHP coverage, nor is he seeking compensation from the
government. Rather he is asking for the reinstatement of his IFHP coverage
retroactive to June 30, 2012.
(c)
Mr. Garcia Rodrigues’ Experience
[198] As noted earlier, Mr. Garcia Rodrigues is a failed refugee
claimant from Colombia who arrived in Canada in October 2007. After his refugee
claim was rejected in January of 2012, he sought permanent residence in Canada as the husband of a protected person, as his Venezuelan-born wife had been granted
Convention refugee status. At the time of the events in issue in this
proceeding, Mr. Garcia Rodrigues was awaiting the outcome of his wife’s
sponsorship application. He is also the father of a Canadian-born child.
[199] Mr. Garcia Rodrigues had been employed for three years at the
time of his cross-examination in September of 2013, and he had been paying his
taxes. He was employed as a security equipment specialist earning $19 an hour,
giving him an annual income of somewhere between $39,000 and $41,000. This is
approximately $4,000 to $6,000 above the low income cut-off for a family of
three.
[200] Mr. Garcia Rodrigues’ employment did not provide him with any
health insurance benefits. Mr. Garcia Rodrigues’ wife worked part-time in
the cosmetics department at Target, and she also did not have access to any
health insurance benefits through her employment.
[201] Mr. Garcia Rodrigues had IFHP coverage for urgent and essential
medical care and medications from October 2007 until the changes to the IFHP
came into effect in June of 2012. Over that five year period, Mr. Garcia
Rodrigues did not take any medications on a regular basis and he had no serious
health issues.
[202] As a failed refugee claimant, Mr. Garcia Rodrigues only had
health insurance coverage after June 30, 2012, for conditions that threatened
public health or public safety.
[203] In July of 2012, Mr. Garcia Rodrigues began suffering from
vision problems in his right eye. He was referred to Dr. David Wong, an
eye surgeon in Toronto, and on August 8, 2012, Mr. Garcia Rodrigues was
diagnosed as having suffered a retinal detachment. He was told that he needed
to have surgery as quickly as possible, or he risked the permanent loss of his
vision.
[204] Mr. Garcia Rodrigues was initially scheduled for surgery on
August 13, 2012. However, the surgery was cancelled when it was determined that
he did not have any IFHP coverage for the procedure. It appears that Mr. Garcia
Rodrigues’ PHPS coverage had expired on August 12, 2012, and he had not renewed
it.
[205] Mr. Garcia Rodrigues explained in his cross-examination that
when he made inquiries to immigration authorities about renewing his IFHP
coverage on August 8, 2012, he was told that there was not point in renewing
his insurance certificate as his immigration status meant that he was not
entitled to coverage for any of his current medical needs.
[206] Mr. Garcia Rodrigues says in his affidavit that the
cancellation of his surgery caused him “severe
emotional distress”, as he feared losing his vision, and he could not
see how he would be able to provide for his family if he lost his sight: at
para. 12.
[207] Efforts were nevertheless made to reinstate Mr. Garcia
Rodrigues’ IFHP coverage, and the surgery was re-scheduled for August 20, 2012.
In particular, Dr. Wong contacted the CIC Health Branch on two occasions to
explain the urgency of Mr. Garcia Rodrigues’ health situation.
[208] On August 17, 2012, CIC advised Mr. Garcia Rodrigues’
ophthalmologist that he was not entitled to coverage for the surgery. According
to a CIC representative, Mr. Garcia Rodrigues was “an
illegal migrant in Canada and [was] expected to leave the country”. The
CIC representative further noted that Mr. Garcia Rodrigues was only
entitled to public health or safety coverage, and that this would not cover the
cost of the eye surgery: Garcia Rodrigues affidavit, Exhibit B.
[209] Although the respondents have suggested that Mr. Garcia
Rodrigues was eligible for OHIP benefits, he states in his affidavit that he
made inquiries during the period at issue and was told that he did not qualify
for OHIP. He further states that he was unable to raise the estimated $10,000 cost
of the surgery on such short notice. Indeed, the respondents acknowledged
during the hearing that it was “not realistic”
to think that he would be able to do so: Transcript, Vol. 2, at p. 130.
[210] Dr. Wong ultimately agreed to operate on Mr. Garcia Rodrigues,
given that any further delay in the surgery could cause the permanent loss of
his vision. Dr. Wong also provided Mr. Garcia Rodrigues with
post-operative care, seeing him every couple of weeks for two and a half months
after the surgery, waiving his fees for the follow-up care.
[211] Ultimately the only cost incurred by Mr. Garcia Rodrigues in
connection with his retinal detachment was the $130 fee that he paid to see an
optometrist when he first began experiencing vision problems in July of 2012.
[212] Mr. Garcia Rodrigues and his wife’s applications for permanent
residence were subsequently approved in principle, and he became eligible for
OHIP coverage. On September 16, 2013, Mr. Garcia Rodrigues and his
wife were both landed as permanent residents of Canada.
[213] Like Mr. Ayubi, Mr. Garcia Rodrigues is not directly
challenging any specific decision relating to his own IFHP coverage and is not
seeking compensation from the government. Rather he is asking for reinstatement
of his IFHP coverage retroactive to June 30, 2012.
[214] As noted earlier, the applicants have also provided affidavits from
a number of other individuals who have been detrimentally affected by the 2012
changes to the IFHP, individuals who are not parties to these proceedings. This
evidence will be reviewed next.
(d)
Saleem Akhtar
[215] Saleem Akhtar is a Pakistani national who sought refugee protection
in Canada after unsuccessfully seeking refugee protection in the United States. Mr. Akhtar’s refugee claim was based upon his alleged fear of
persecution in Pakistan because of his Christian faith. His refugee claim had
not been heard at the time that Mr. Akhtar signed his affidavit. Mr. Akhtar
is identified in the Notice of Application as “Patient
1”.
[216] Shortly after his arrival in Canada in June of 2012, Mr. Akhtar
began feeling ill and he was subsequently diagnosed with an aggressive form of
lymphoma which required urgent treatment. Mr. Akhtar went to a hospital on
July 14, 2012 for his first round of chemotherapy. As a refugee claimant, his
IFHP insurance covered his hospital services, but not the cost of his
chemotherapy or anti-nausea drugs. Mr. Akhtar had to sell some of his
possessions to cover his first round of chemotherapy, after which he says that
he was destitute.
[217] The Royal University Hospital in Saskatoon ultimately agreed to pay
for the cost of Mr. Akhtar’s second round of chemotherapy treatments,
which included one treatment a week for 15 weeks. As of August 2012, he
received outpatient chemotherapy treatments through the Saskatoon Cancer
Centre.
[218] In November of 2012, the provincial government announced that it
would cover the cost of the medication provided to Mr. Akhtar. The Premier
of Saskatchewan was quoted in a newspaper article about Mr. Akhtar’s case
as saying “It’s unbelievable … [t]he decisions that
have been taken federally have been having this impact on people who are
clearly the most vulnerable”: Akhtar affidavit, Exhibit A.
[219] A nun who had been assisting Mr. Akhtar was also quoted in the
same article as stating that “[t]his gentleman’s life
was on the line and the amount of anxiety and stress that has been added to his
situation was awful”.
[220] Mr. Akhtar confirmed in his affidavit that it was stressful
enough to receive a cancer diagnosis when he was alone in Canada seeking refugee protection, and that the lack of health insurance for his chemotherapy
treatments added greatly to his stress.
(e)
Victor Pathiyage Wijenaike
[221] Victor Pathiyage Wijenaike is a failed refugee claimant from Sri Lanka who was 76 years at the time he swore his affidavit in this proceeding. He is
identified in the applicants’ Notice of Application as “Patient
2”.
[222] The Immigration and Refugee Board found Mr. Wijenaike’s
allegations of past persecution to be credible, but concluded that conditions
within Sri Lanka had changed enough in the months since Mr. Wijenaike had
left the country that he was not currently in need of protection in Canada. Leave was denied by this Court to judicially review the Board’s decision. At the
time that he swore his affidavit, Mr. Wijenaike had outstanding applications
for permanent residence on humanitarian and compassionate grounds and for a
Pre-removal Risk Assessment. These applications were subsequently refused.
[223] Mr. Wijenaike lives in Calgary in subsidized seniors’ housing.
As a failed refugee claimant, he is only entitled to Public Health and Public Safety
coverage under the IFHP, and he is no longer entitled to benefits under the
Alberta Works program. Mr. Wijenaike testified that he never inquired
about his entitlement to provincial health insurance coverage, nor did he look
into the cost of private health insurance.
[224] Mr. Wijenaike suffers from a number of life-threatening health
conditions including bladder cancer, diabetes, hypertension, aortic valve
endocarditis and anaemia. His urologist has agreed to cover the cost of his
chemotherapy treatments, but he deposes in his affidavit that his other
medications cost approximately $600 a month.
[225] On his cross-examination, Mr. Wijenaike clarified that he gets
free samples of some medications from his family doctor, and some from the
Calgary Urban Project Society. Nevertheless, each month Mr. Wijenaike has
to beg family members for money to pay for his other drugs. He asserts that
this is only a short-term solution, as he does not expect that his family will
continue to be able to assist him in the future.
[226] Mr. Wijenaike has also incurred significant medical expenses as
a result of emergency room visits related to his failing health. He has been
unable to pay for these services, and is being pressed for payment by a
collection agency. According to Mr. Wijenaike, all of this has caused him
to be “burdened daily with immense psychological
stress”: at para. 10.
[227] A lawyer acting on Mr. Wijenaike’s behalf applied to CIC for
discretionary relief for Mr. Wijenaike on November 26, 2012. In his May,
2013 affidavit, Mr. Wijenaike indicated that to date there had been no
answer to this request. The respondents suggested to Mr. Wijenaike in his
cross-examination that he had in fact been granted discretionary IFHP HCC
benefits in February of 2013, which were in effect retroactively from January
9, 2013 to January of 2014, although the evidence on this point is unclear. In
any event, as was noted earlier, discretionary IFHP benefits would not cover
the cost of Mr. Wijenaike’s medication.
[228] Mr. Wijenaike was unable to confirm information put to him by
the respondents as to the amount of money for medical expenses that had been
paid on his behalf under IFHP to June 30, 2013, although he did express his
appreciation for whatever money had been expended on his behalf.
(f)
Rosa Maria Aylas Marcos de Arroyo
[229] The story of Rosa Maria Aylas Marcos de Arroyo and her 14 year old
daughter, Naomi, reveals a different aspect of the impact that the 2012 changes
to the IFHP has had on beneficiaries of the program.
[230] Ms. Marcos de Arroyo and Naomi are citizens of Peru, and both are failed refugee claimants. As such, they are only entitled to PHPS-level IFHP
coverage. At the time that Ms. Marcos de Arroyo swore her affidavit, the family
had an outstanding application for permanent residence in Canada on humanitarian and compassionate grounds.
[231] In October of 2012, Naomi joined the Royal Canadian Sea Cadets,
where she has been involved in community service, as well as fitness and
leadership training. Naomi has greatly enjoyed her involvement in the Sea
Cadets and has received awards for her participation in the organization.
According to her mother’s affidavit, Naomi’s involvement in the Sea Cadets “has been an important part of [her] integration into
Canadian society and has helped her, a traditionally shy girl, to gain
confidence”: at para. 9.
[232] In February of 2013, Naomi’s Sea Cadets group went on a camping
trip. In order to go on the trip, cadets had to provide proof that they had
health insurance. Because Naomi’s health insurance coverage was limited to
conditions involving public health and safety, she was the only member of her
Sea Cadet group who was not permitted to go on the trip.
[233] In April of 2013, Ms. Marcos de Arroyo was advised by the Sea Cadets
administration that Naomi would have to provide proof of a new health card, as
her previous card had expired. Discussions ensued, and as of the date of Ms.
Marcos De Arroyo’s affidavit, it was unclear whether Naomi would be permitted
to remain in the Sea Cadets, given the restrictions on her health insurance.
(g)
“Sarah”
[234] Laura Mansfield is a social worker in British Columbia, who works
for a non-profit settlement organization assisting refugee claimants. One of
Ms. Mansfield’s clients is an Iranian woman she calls “Sarah”.
[235] Ms. Mansfield has seen Sarah’s immigration papers and confirms that
she is a refugee claimant from a non-DCO country whose refugee claim is
currently outstanding. As a consequence, Sarah is entitled to HCC-level IFHP
coverage, which covers her for medical services and products of an urgent or
essential nature, but does not cover the cost of her medications.
[236] Sarah suffers from angioedema, asthma and severe allergies. She
requires a number of medications to manage her conditions. Her Canadian doctor
has provided a letter stating that Sarah may die if she does not take her
medications regularly: Mansfield affidavit, Exhibit A.
[237] Sarah’s family of three has had to use some of their $401 monthly
support budget from provincial income assistance to pay for medications, which
has threatened their basic food needs. The family simply could not afford to
pay for some of Sarah’s medications, as well as the diagnostic testing and
follow-up visits that are not covered under the IFHP.
[238] Ms. Mansfield states in her affidavit that she and her colleagues
have devoted “countless hours looking for resources to
help with Sarah’s medication needs”. Ms. Mansfield’s organization has
also expended some of its own limited resources to purchase medication for
Sarah from time to time, although this is not something that the organization
can continue to do over the long term, or on a regular basis: para. 4.
[239] By the time that Ms. Mansfield swore her affidavit, Sarah had
received a work permit and had thus become eligible for provincial “MSP” [Medical Services Plan] benefits, subject to a
three-month waiting period. Once Sarah received MSP benefits, her medications
would evidently be paid for, as is the case with other low-income people in British Columbia. However, Ms. Mansfield points out that the time Sarah has spent without
access to her medications has led to great uncertainty, anxiety and stress for
her and her family: Mansfield affidavit at para. 7.
[240] I would note that the respondents have not identified any frailties
in Ms. Mansfield’s evidence, nor did they choose to cross-examine her on her
affidavit.
(h)
“BB”
[241] Richard Goldman is a lawyer, and is the sole staff member of the
Committee to Aid Refugees in Montreal. In that capacity Mr. Goldman has
represented two HIV positive individuals who he identifies in his affidavit as “AA” and “BB”.
[242] AA is identified as “Patient 5” in
the applicants’ Notice of Application. Based upon allegedly poor advice, AA
withdrew her refugee claim before it could be heard. The applicants have
confirmed that they are not pursuing their challenge to the 2012 changes to the
IFHP inasmuch as they apply to individuals who have withdrawn or abandoned
their refugee claims, as health insurance coverage was not provided to these
individuals under the pre-2012 IFHP. Consequently I will not consider this
aspect of Mr. Goldman’s evidence.
[243] Mr. Goldman explains that BB is not entitled to make a refugee
claim, although the evidence as to why this is so is not entirely clear. In any
case, there is no dispute about the fact that BB is in the “PRRA-only” category. As such, BB is not entitled to
any health care coverage whatsoever under the IFHP, despite the fact
that he is HIV positive and thus has a communicable disease that could
potentially pose a threat to public health or the safety of Canadians.
According to Mr. Goldman, the Quebec government has also not assumed any
responsibility for BB’s medical care.
[244] Mr. Goldman’s affidavit includes a letter from BB’s doctor at
the McGill University Health Centre. The doctor states that after BB lost his
IFHP coverage, the Centre was forced to find “compassionate
access” so as to allow BB to continue with his anti-retroviral therapy.
BB is receiving treatment through the generosity of a pharmaceutical company,
but his doctor describes his situation as “precarious”,
noting that it requires renewal and reassessment on a monthly basis. According
to the doctor, this has caused extra work on the part of the Centre’s pharmacy
team, and considerable anxiety for BB: Goldman affidavit, Exhibit A.
[245] BB’s doctor further explains that an interruption in his drug
therapy “could have dire health consequences”
for BB, putting him at immediate risk of developing the serious opportunistic
infections associated with full-blown AIDS.
[246] Mr. Goldman assisted BB in applying for discretionary IFHP
coverage under section 7 of the 2012 OIC. The application was filed in
October of 2012 and was refused in April of 2013. No reasons were provided for
this decision, and when Mr. Goldman requested reasons he was advised by
CIC that “reasons are not provided in the context of a
s.7 discretionary decision”.
(i)
Manavi Handa’s “Second Case”
[247] It will be recalled that Manavi Handa is a midwife working with
refugee claimants in Toronto. She describes the case of one of her patients, a
refugee claimant from Mexico.
[248] This patient’s refugee claim was outstanding at the time that Mexico was added to the DCO list. The patient was in the late stages of pregnancy, and was
planning a hospital delivery. When she went to pre-register at the hospital,
the patient was advised that she would have to pay an up-front hospital fee of
$2,600 a day. Concerned about this situation, and unable to pay this fee, the
woman decided to plan a home birth instead, since midwifery services are
covered by the province at no charge to the patient, although she was “very
afraid” about this option. It turned out that the patient was in fact entitled
to HCC-level IFHP coverage, as it appears that her refugee claim was filed
prior to December 15, 2012.
[249] Although the patient’s situation was eventually sorted out and the
patient safely delivered her baby at home, this example is nevertheless
illustrative of the difficulties that may be encountered by female IFHP
beneficiaries from DCO countries who seek obstetrical care.
(j)
Conclusion as to the Impact of the 2012 Changes
to the IFHP on Individual Claimants
[250] As illustrated by the above examples, it is apparent that the 2012 changes
to the IFHP have had a serious impact on the physical health and psychological
well-being of numerous individuals. The respondents say that even though
individuals may no longer have health insurance coverage for the treatment of
their medical conditions under the IFHP, there are numerous other avenues of
access to medical care available to these individuals. This issue will be
addressed next.
E.
Alternative Sources of Health Care
[251] The respondents submit that the cuts to the IFHP have to be
considered in light of what they call the “whole
panoply of options” that are available to people who would otherwise
have had comprehensive health care insurance coverage under the pre-2012 IFHP.
[252] According to the respondents, there are any number of alternatives
available to individuals who find themselves in a situation where their
particular level of IFHP coverage is not sufficient for their medical needs.
These include provincial health insurance coverage that has been instituted to “fill the gaps” created by the 2012 changes to the
IFHP, as well as regular provincial or territorial health insurance, private
insurance and the goodwill of others.
[253] Indeed, the respondents note that the record is replete with
examples of people benefiting from the goodwill of pharmaceutical companies,
and from medical clinics for the uninsured.
[254] Each of the alternatives identified by the respondents will be
discussed below.
(1)
Provincial and Territorial Health Insurance
[255] At the time that the changes to the IFHP came into effect on June
30, 2012, no province or territory was providing health care coverage for
individuals who had previously received comprehensive coverage under the
pre-2012 IFHP.
[256] As was noted earlier, several provinces vociferously criticized the
federal government’s change in policy, calling it “unbelievable”
in the case of Premier Wall of Saskatchewan, and an “abdication of
responsibility towards some of the most vulnerable in our society”, by the
Ontario Minister of Health. The Manitoba Health Minister stated that the
changes were “hurting families and [would] lead to
longer-term and more expensive problems”.
[257] Since June 30, 2012, a number of provinces have stepped in to
provide some level of health insurance for those who would previously have had
comprehensive health care insurance coverage under the pre-2012 IFHP. The
respondents rely on this to show that health care is in fact still being provided
to individuals who have lost their health insurance coverage under the 2012
changes to the IFHP.
[258] In August of 2012, the Québec government announced that it would
provide refugee claimants with insurance coverage for urgent and essential
services, as well as coverage for the treatment of conditions that pose a risk
to public health and safety. A newspaper report from September of 2012 stated
that Manitoba would pay for medical benefits that had been cut by the federal
government, although it is not clear from the article who would be eligible for
these benefits, or what level of benefits would be provided.
[259] On December 9, 2013, the Ontario government announced the creation
of a new program funding health care services for refugees living in Ontario called the Ontario Temporary Health Program (OTHP) which would come into
effect on January 1, 2014. As of that date, refugee claimants (whether from a
DCO country or not) and failed refugee claimants would have funded access to
basic medical care, including coverage for medications, subject to an income
test. Privately-sponsored refugees (who are currently entitled to OHIP
benefits) would also be covered for the cost of their medications under the
OTHP.
[260] No such programs appear to have been implemented as yet by the
provinces of Alberta, Nova Scotia, or Saskatchewan, although the Alberta Health
Minister was quoted as saying that the province was considering setting up a
temporary health care program for refugee claimants. Saskatchewan does provide
coverage for individuals in need on a case-by-case basis, as it did for Mr. Akhtar,
and some health care is evidently being provided to affected individuals on an ad
hoc basis in Nova Scotia. No information has been provided as to the
situation in the remaining provinces and territories.
[261] I am thus satisfied that there are still parts of Canada where provincial governments have not “filled the gap” created
by the 2012 changes to the IFHP. In addition, the fact that the situation may
now have been remedied in some provinces such as Québec and Ontario does not
address the concerns that may have arisen prior to the creation of provincial
health insurance plans for IFHP beneficiaries who were “falling through the
cracks”.
[262] Moreover, while it is commendable that provinces such as Saskatchewan are “filling the gap” on a case-by-case basis,
I am not persuaded that ad hoc provincial largesse constitutes a
reasonable alternative to funded health insurance coverage. We need only look
at the case of Mr. Akhtar to see the flaw in the respondents’ position.
[263] Indeed, the respondents’ argument takes no account of the extreme
human cost incurred as individuals search for sources of potentially
life-saving medical care. One can only imagine the psychological distress that
someone like Mr. Akhtar would feel, being alone in a strange country,
having just been diagnosed with an aggressive cancer, and not knowing whether
or not he would be able to get the chemotherapy treatments on which his life
depended.
[264] The respondents also note that most provinces have schemes in place
whereby refugee claimants with valid work permits are eligible for health
coverage under provincial and territorial plans. I accept that there is at
least a possibility that some people who would have had comprehensive health
care coverage under the pre-2012 IFHP could eventually qualify for provincial
health insurance in some provinces, but there are a number of reasons why this
will not be a viable option for many people.
[265] First of all, refugee claimants from DCO countries are not entitled
to receive a work permit for the first 180 days that they are in Canada.
[266] Secondly, many refugee claimants will speak neither of Canada’s official languages. They may have limited education, and no familiarity with
Canadian culture. There is no assurance that they will come to this country
with the language, education or skills to allow them to immediately begin work
in Canada. Indeed, the respondents accept that full-time employment is not
something that refugee claimants can “walk into
immediately”: Transcript, Vol. 2 at p. 132.
[267] Thirdly, to qualify for provincial health insurance, at least in Ontario, a claimant has to have an agreement in place to work full-time for an employer and
they must be working under that agreement for six months or longer. Many
refugee claimants are only able to access part-time or transitory work that
would not allow them to qualify for OHIP benefits.
[268] Finally, the majority of provincial and territorial health insurance
plans have a waiting period before coverage will take effect, typically three
months, leaving applicants uninsured or under-insured in the interim.
(2)
Self-funding
[269] The respondents also identify self-funding as an option for those
requiring medical services or medications not covered by the IFHP. That is,
they say that affected individuals can pay for their own medical care, either
directly, or by purchasing private health insurance. Once again, however, this
will not be a realistic option for many of those affected by the 2012 changes
to the IFHP.
[270] Working as a dishwasher making $10,000 a year, it is inconceivable
that Mr. Ayubi could ever pay the $2,700 reduced cost of the medical tests
that he needed. Nor could Mr. Garcia Rodrigues, supporting a family of
three on a job paying $19 an hour, ever have hoped to raise $10,000 in time to
pay for the emergency eye surgery that would preserve his sight and allow him
to keep on working and supporting his family.
[271] It will be recalled that Dr. Rashid is a family physician in Toronto who works with refugees. He noted that “we are seeing people who have often been
fleeing war; they left with nothing but the clothes on their back; many of them
just don’t have a change of clothing when they arrive. So the notion of
accessing private health insurance, for the refugees I see, and the refugee
claimants I see it’s not on the radar. So it’s out there and I would hope that
people know that, it’s not really something that’s attainable for most people”:
Rashid cross-examination at question 289.
[272] Indeed, the respondents accept that the beneficiaries of the IFHP
program are generally vulnerable, poor and disadvantaged. Paying for doctors’
visits, diagnostic testing, medications and hospitalizations or private health
care insurance will be simply out of the question for many, if not most of the
affected individuals.
(3)
Community Health Centres and Refugee Shelters
[273] Assistance may be available for some of those seeking the protection
of Canada through community health centres and refugee shelters. While Richard
Goldman has testified that there are no clinics in Québec that offer medical
services to the uninsured, community health centres serving the uninsured do
exist, at least in Ontario. However, access to medical assistance at these
centres is severely restricted.
[274] This is explained by Dr. Rashid, who has worked in a dozen or
so community health centres over a fourteen year period. He states that over
the last 10 years, the patient rosters for most community health centres have
been closed. Moreover, most centres do not operate on a “walk-in” basis so that, for example, a mother would
not be able to access medical care for her feverish child at a community health
centre.
[275] Dr. Caulford, the Medical Director of the Community Volunteer Clinic
for the Medically Uninsured, stated that “what I have seen in my practice since
June 30, 2012 is without precedent”. He goes on to describe “[r]efugee patients not able to access the care they need,
patients arriving needing urgent care for otherwise treatable illnesses because
they lacked or thought they lacked coverage, medical services being denied due
to confusion around eligibility, and the downloading of costs onto health care
providers, clinics, and provincial hospitals”. He notes that clinics
that were previously scheduled to last four hours now sometimes last 6 hours.
He concludes by expressing his concern that “this pace
is not sustainable over the long term, as we rely so heavily on volunteers.”
All quotes from Caulford affidavit at para. 27.
(4)
Midwifery Services
[276] The respondents point out that midwifery services are available to
anyone in Ontario, free of charge. This may be true, but it obviously does not
assist pregnant women in other provinces. Nor does it assist the pregnant woman
in Ontario whose high-risk pregnancy requires that her baby be delivered in a
hospital setting.
(5)
Hospital Emergency Rooms
[277] Hospital emergency rooms are also identified by the respondents as a
source of medical care for IFHP beneficiaries. While they may indeed provide
care in emergency situations, emergency rooms are a costly way in which to
deliver health care. Moreover, as we saw in the case of Mr. Wijenaike, at
least some provinces will attempt to recover the cost of medical services
provided to uninsured patients.
[278] Hospital emergency rooms also do not provide primary health care,
nor do they provide the kind of preventative health care (such as diabetic
monitoring or treatment for mental health conditions, for example) that would
allow patients to avoid the hospital in the first place. Finally, patients
still have to pay to fill prescriptions that they receive through hospital
emergency rooms.
(6)
Social Assistance
[279] The respondents also suggest that going on social assistance is
another way that IFHP beneficiaries can access health insurance. Indeed, Mr. Bradley
observed that Mr. Ayubi would likely have been better off in terms of his
ability to access health care had he simply quit his job and gone on social
assistance.
[280] At the same time, the respondents acknowledge that privately-sponsored
refugees are banned from going on social assistance for their first year in Canada, with the result that this is not a viable option for these individuals.
[281] Moreover, provincial social assistance programs do not provide
comprehensive medical benefits to recipients. Where health benefits are
provided, they only cover things like medication and supplementary services,
but do not ordinarily extend to cover the cost of doctor’s visits, pre-natal
care, diagnostic testing etc.
[282] To the extent that cost containment was identified as an objective
of the 2012 changes to the IFHP, it must also be recognized that there are
costs associated with forcing people to go onto social assistance in order to
access potentially life-saving medications and medical treatment. These
include, of course, the direct financial cost of the social assistance benefits
themselves.
[283] There is, however, also an intangible cost to human dignity that
comes with forcing people to quit their jobs and go on welfare in order to
access medical care. Not only does forcing people to withdraw from the
workforce inhibit their ability to integrate into Canadian society, as the
Supreme Court of Canada observed in Reference re Public Sector Employee
Relations Act (Alberta) [1987] 1 S.C.R. 313, [1987] S.C.J. No. 10:
Work is one of the most fundamental aspects
in a person’s life, providing the individual with a means of financial support
and, as importantly, a contributory role in society. A person’s employment is
an essential component of his or her sense of identity, self-worth and
emotional well-being. [at para. 91]
(7)
Charity
[284] The respondents also point to charitable donations as an alternate
source of health care for those affected by the cuts to the IFHP.
[285] It is true that a number of the individuals identified in the record
have benefited from the charity of health care providers, medical institutions
and pharmaceutical companies. However, the evidence also shows that the
availability of the charity of others is uncertain, and that the uncertainty as
to whether or not medical care will ultimately be available puts tremendous
psychological strain on those in need of medical care.
[286] The respondents’ argument that charity is an appropriate alternate
source of medical care for the affected individuals also does not take into
account the cost to human dignity incurred by requiring sick individuals to
have to rely on the goodwill of others. Supreme Court of Canada Charter
jurisprudence is replete with references to the importance of human dignity. It
is simply demeaning to require desperately ill people to go begging for
essential medical treatment.
(8)
Section 7 Discretionary IFHP Coverage
[287] The last alternate source of medical insurance coverage identified
by the respondents is section 7 discretionary IFHP coverage.
[288] It will be recalled that in accordance with the provisions of section 7
of the 2012 OIC, the Minister retains the discretion to pay the cost of health
care coverage, public health or public safety health care coverage or
immigration medical examinations “in exceptional and
compelling circumstances”. Mr. Ayubi was ultimately the beneficiary
of such discretionary IFHP coverage for his diabetes-related medical services,
but not for his medication.
[289] Once again, this may be a satisfactory source of alternate medical
insurance coverage for some individuals, but it does not come close to
compensating for the loss of health care benefits resulting from the 2012
changes to the IFHP.
[290] First, the Minister’s discretion under section 7 of the OIC
does not extend to cover the cost of medications or immunizations, unless they
are required to treat a condition that involves a threat to public health or
safety.
[291] Second, it is conceded by the respondents that the existence of
Ministerial discretion under section 7 of the OIC is not designed to
address emergency medical situations. The concession that the exercise of this
discretion is not a viable option in emergencies is supported by the evidence
regarding Mr. Ayubi’s request for discretionary relief, which was
outstanding for five months before it was approved. Indeed, Ms. Fortin admitted
on her cross-examination that many requests for section 7 relief had been
outstanding for several months.
[292] Moreover, although the 2012 OICs are publicly available documents,
as is CIC’s 2013 policy manual dealing with the IFHP, it appears that the existence
of section 7 Ministerial discretion is not widely known. This is
demonstrated by the fact that, as of the date of the record, only 23 requests
for discretionary relief had been received by CIC.
[293] Finally, section 7 relief is discretionary, and thus, by
definition, uncertain.
(9)
Conclusion Regarding the Alternatives to IFHP
Funded Health Care
[294] The respondents repeatedly emphasized that in every case cited by
the applicants, the individuals in question were ultimately able to obtain the
medical care that they required. According to the respondents, this is proof
that there are satisfactory alternatives to federally-funded health care
insurance benefits for those involved in the refugee process.
[295] There are a number of reasons why I do not accept this submission.
[296] The first is that it is factually incorrect. We know that Mr. Ayubi
has not been able to obtain all of the medical care that he requires. He
has been unable to get some of his medications, which his doctor says “will undoubtedly be disastrous for him … and will ultimately
… be far more expensive to the health care system when he inevitably presents
with complications placing him in a life and death situation”: Ayubi
affidavit, Exhibit A.
[297] We also know that Mr. Ayubi’s inability to access prescribed
medication has in fact already caused him physical harm. That is, when one of Mr. Ayubi’s
anti-hypertensive drugs was not available though his community health centre,
an alternative medication had to be substituted. This caused him to suffer a
hypotensive crisis, requiring the administration of intravenous fluids at a
community health centre to restore his blood pressure.
[298] There are, moreover, numerous short-comings in all of the alternate
sources of health care identified by the respondents. These other sources of
health care are not always timely. We know that it was only through the
goodwill of Mr. Garcia Rodrigues’ ophthalmologist, who agreed to perform
his surgery for a fraction of the usual price, that he did not lose the vision
in his eye, which could have impaired his ability to support his family.
[299] The respondents’ proposed alternatives are also uncertain, and do
not take into account the psychological harm inflicted on people like Mr. Akhtar,
who, on top of receiving a cancer diagnosis, was left wondering whether or not
he would be able to receive life-saving chemotherapy treatments.
[300] Nor do the respondents’ proposed alternatives take into account the
negative impact on human dignity that flows from forcing people to have to rely
on the charity of others for life-saving medical treatments.
[301] The respondents concede that people have probably been harmed by the
2012 changes to the IFHP: Transcript, Vol. 2 at p. 119. Given the number of
people affected by the changes, and the uncertain and unsatisfactory nature of the
alternative avenues of care, this is undoubtedly true. Indeed, I accept the
evidence of Dr. Rachlis, to the extent that he asserts that the changes to
the IFHP are most certainly causing illness and
disability. I further agree with Dr. Caulford that sooner or later, “a refugee
claimant will eventually die as a result of inadequate access to health care” caused
by these changes: Caulford affidavit at para. 28.
IV.
Issues
[302] The applicants identify the subject of their challenge as being the
decision of the Governor in Council to cancel the pre-2012 IFHP and replace it
with a new IFHP that provides lesser care to most program beneficiaries, and
eliminates health care insurance coverage altogether for others.
[303] The following issues have been raised by the parties:
1.
Whether CDRC, CARL and JFCY should be granted
public interest standing in this matter;
2.
Whether the 2012 modifications to the IFHP are
unlawful because the 2012 OICs are ultra vires the executive branch of
government;
3.
Whether Governor in Council breached its duty of
procedural fairness by failing to provide notice and an opportunity to
participate prior to the proclamation of the 2012 OICs;
4.
Whether the 2012 changes to the IFHP violate section 7
of the Charter;
5.
Whether the 2012 changes to the IFHP violate section 12
of the Charter;
6.
Whether the 2012 changes to the IFHP violate section 15
of the Charter;
7.
Whether any breaches of Charter rights can be
saved under section 1 of the Charter; and
8.
What, if any, remedy is appropriate in this
case.
V.
Standing
[304] The law of standing governs who is entitled to bring a case before
the Courts. It is intended to limit the ability of those with no real stake in
a matter from over-burdening the Court system with frivolous or duplicative
cases, and to ensure that cases are determined based upon the competing
arguments of those directly affected by matters in dispute. This in turn allows
Courts to fulfill their proper function within our democratic system of
government: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607
at p. 631, [1986] S.C.J. No. 73.
[305] Those whose individual rights are at stake or who have been directly
affected by government action are generally entitled to pursue legal action to
enforce those rights or interests. Indeed, the respondents do not dispute the
entitlement of Mr. Ayubi and Mr. Garcia Rodrigues to pursue their
challenges to the 2012 OICs before this Court.
[306] Standing may also be granted to individuals and organizations to
advance a case before the Courts where it is in the public interest to do so.
CDRC, CARL and JFCY seek public interest standing in this case.
[307] The parties agree that the test for public interest standing is that
articulated by the Supreme Court of Canada in Canada (Attorney General) v.
Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,
[2012] 2 S.C.R. 524 and considered again in Manitoba Métis Federation Inc. v.
Canada (Attorney General), 2013 SCC 14, 355 D.L.R. (4th) 57.
[308] In these cases the Supreme Court recognized that in public law cases
such as the one before me, Courts “have taken a
flexible, discretionary approach to public interest standing, guided by the
purposes which underlie the traditional limitations [on standing]”: Downtown
Eastside, above at para.1.
[309] The Supreme Court also noted in Downtown Eastside that “[a]t the root of the law of standing is the need to strike a
balance ‘between ensuring access to the courts and preserving judicial
resources’”: at para. 23, citing Canadian Council of Churches
v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236
at p. 252, [1992] S.C.J. No. 5.
[310] There are three factors that a Court must weigh in deciding whether
or not to exercise its discretion in favour of granting public interest
standing. These are:
1.
Whether the case raises a serious justiciable
issue;
2.
Whether the party bringing the action has a real
stake or a genuine interest in its outcome; and
3.
Whether, having regard to a number of factors,
the proposed action is a reasonable and effective means to bring the case to
court.
[311] In exercising the Court’s discretion with respect to a question of
public interest standing, these factors are not, however, to be treated as “technical requirements”. Instead, “the factors should be
seen as interrelated considerations to be weighed cumulatively, not
individually, and in light of their purposes”: Downtown Eastside,
above at para. 36. The principles governing the exercise of this
discretion should, moreover, “be interpreted in a
liberal and generous manner”: Downtown Eastside at paras. 2 and
35, citing Canadian Council of Churches, above at pp. 253 and 256.
A.
Serious Justiciable Issue
[312] A “serious justiciable issue” is one
that raises a substantial or important constitutional issue that is “far from frivolous”: Downtown Eastside, above
at para. 42. The respondents concede that this case raises serious
justiciable issues.
[313] The respondents contend, however, that the CDRC, CARL and JFCY
should not be granted public interest standing in this matter as JFCY has not
shown that it has a genuine interest in the issues before the Court, and none
of the three organizations have demonstrated that allowing them to participate
in this proceeding will result in reasonable and effective litigation of the
issues.
B.
Does JFCY Have a Genuine Interest in this
Proceeding?
[314] In support of their contention that JFCY has not shown that it has a
genuine interest in the issues before the Court, the respondents point out that
JFCY did not express any interest in this issue for more than a year after the
2012 changes to the IFHP came into effect.
[315] The respondents also say that JFCY’s position is “largely
redundant”, given that it has relied on the affidavit evidence of the other
applicants and has not raised any new issues. Indeed, the respondents point to
the fact that JFCY did not attend the cross-examination of several affiants
upon whose evidence they rely as evidence of their lack of interest in this
proceeding.
[316] The Supreme Court addressed this second aspect of the test for
public interest standing in Downtown Eastside, where it noted that “this factor reflects the concern for conserving scarce
judicial resources and the need to screen out the mere busybody”: at para. 43,
citing Finlay, above at p. 633. The Supreme Court went on to describe
this factor as being concerned with “whether the
plaintiff has a real stake in the proceedings or is engaged with the issues
they raise”: at para. 43.
[317] The Court then went on to discuss the interests of litigants granted
public interest standing in earlier jurisprudence. Of particular note are the
Court’s comments with respect to the interests of the applicant in the Canadian
Council of Churches case cited earlier. The Court observed that in that
case, the Canadian Council of Churches had a “genuine
interest” in the proceedings at issue, “as it
enjoyed ‘the highest possible reputation and has demonstrated a real and
continuing interest in the problems of the refugees and immigrants’”: Downtown
Eastsid, above at para. 43, citing Canadian
Council of Churches at p. 254.
[318] By examining the organization’s reputation, its continuing interest,
and its link with the claim, “the Court thus assessed
its ‘engagement’, so as to ensure an economical use of scarce judicial
resources”: Downtown Eastside at para. 43, citing K. T.
Roach, Constitutional Remedies in Canada (loose-leaf), at para 5.120.
[319] In order to situate the respondents’ argument in this case, it is
first necessary to have an understanding of the procedural history of this
matter.
[320] JFCY was not originally a party to this application, which was
commenced by the other applicants on February 25, 2013. JFCY commenced its own
application for judicial review on August 13, 2013 (T-1376-13). JFCY’s
application raised essentially the same issues as this application, although it
did so from the perspective of the impact of the 2012 changes to the IFHP on
the legal rights of child refugees and migrants.
[321] On the consent of the parties, I ordered that JFCY be added as a
party to this application on the basis of an undertaking by JFCY that it would
discontinue its application in T-1376-13. It was understood at the time that
this order was made without prejudice to the rights of the respondents to
challenge the standing of JFCY to pursue this matter at the hearing on the
merits.
[322] At the respondents’ request, and with the consent of the parties (including
JFCY), I also ordered that JFCY not be permitted to file any additional
evidence in this application beyond the affidavit of Jeffrey Rosekat, which had
been filed in support of application T-1376-13.
[323] I further ordered, once again with consent of the parties, that
rather than participate directly in the cross-examinations on the respondents’
affidavits, JFCY was to provide lead counsel for the applicants with any
questions that it wanted to have posed to the respondents’ affiants, so that
the witnesses would be cross-examined by only one lawyer. This did not,
however, preclude JFCY from attending the cross-examinations, and indeed their
counsel attended the cross-examinations of the respondents’ three main affiants,
as well as the cross-examinations of eight of the eleven applicants’ affiants.
[324] Given this background, I am not prepared to accord a great deal of
weight to the fact that JFCY has relied on the affidavit evidence adduced by
the other applicants and did not attend some of the cross-examinations as
evidence of their lack of interest in this proceeding.
[325] I am, moreover, satisfied that JFCY is engaged with the issues that
it raises. As was noted earlier, JFCY is a non-profit legal aid clinic with a
focus on the legal rights of children. It has experience working with child
refugees and has a demonstrated history of advocating for the rights of
children. For example, it was the sole applicant in the constitutional
challenge to the corporal punishment sections of the Criminal Code: Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General),
2004 SCC 4, [2004] 1 S.C.R. 76. JFCY was also granted leave to intervene before
the Supreme Court in Downtown Eastside, and in Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] S.C.J. No. 3.
[326] As such, I am satisfied that JFCY has demonstrated a genuine
interest in, and a real engagement with the issues raised by this application,
insofar as it affects the rights of children.
C.
Is Granting Public Interest Standing to the
Applicant Organizations a Reasonable and Effective Way to Bring these Issues
Before the Court?
[327] The respondents say that none of the three applicant organizations
have demonstrated that allowing them to participate in this proceeding will
result in reasonable and effective litigation of the issues.
[328] The respondents note that in Downtown Eastside, the Supreme
Court observed that having a plaintiff with standing as of right is generally
to be preferred: at para. 37. Moreover, in Canadian Council of Churches,
the Supreme Court stated that the granting of public interest standing “is not required when, on a balance of probabilities, it can
be shown that the measure will be subject to attack by a private litigant”:
at p. 252.
[329] Given the number of people directly affected by the 2012 changes to
the IFHP, including the numerous individuals referred to in the applicants’
affidavits, the respondents say that granting public interest standing to the
three applicant organizations is not required. Indeed, the respondents point
out that there are already two individual applicants with standing as of right
in this case.
[330] The respondents do not accept that there are any impediments that
would limit the ability of individual applicants to mount a challenge to the
IFHP. Insofar as the alleged reluctance of individuals to come forward with
such a challenge against the government from which they are claiming protection
is concerned, the respondents note that thousands of individuals challenge
immigration decisions in the Federal Court every year and there is no evidence
that any of these individuals suffer reprisals from the government as a
result.
[331] The respondents further submit that there is no evidence before me
to show that directly affected individuals have been prevented from litigating
the issues raised by this application due to a lack of pro bono counsel
or legal aid funding.
[332] The respondents concede that public interest standing may be granted
where allowing public interest groups to bring a challenge can result in the
creation of a better evidentiary foundation on which to determine the issues
than would be the case in an individual application. However, the respondents
say that the evidentiary foundation produced by the applicants in this case is
deficient as they have provided “very little direct,
reliable, correct evidence before the court of negative ramifications of the
IFHP”: Transcript, Vol. 3, p. 119.
[333] It was, moreover, open to the three organizations to bring a motion
to intervene in applications brought by individual applicants. According to the
respondents, the organizations’ failure to do so does not mean that the
applicant organizations should now be granted public interest standing to
pursue this application.
[334] While recognizing that a flexible approach must be taken to the
question of public interest standing, the respondents cite Downtown Eastside,
above, for the proposition that this “should not be
equated with a license to grant standing to whoever decides to set themselves
up as the representative of the poor or marginalized”: at para. 51.
[335] In Downtown Eastside, the Supreme Court observed that Courts
are required to consider whether, in light of a number of considerations, the
proposed suit is a reasonable and effective means to bring the challenge to
court: at para. 44. The Court stressed the need for this third factor, in
particular, to be “assessed and weighed cumulatively,
in light of the underlying purposes of limiting standing and applied in a
flexible and generous manner that best serves those underlying purposes”:
at para. 20.
[336] In considering whether there are other reasonable and effective ways
of bringing the issues raised by this application before the Court, the
question must be addressed “from a practical and
pragmatic point of view and in light of the particular nature of the challenge
which the plaintiffs propose[…] to bring”: at para. 47.
[337] The Supreme Court further instructed that this third factor is not
to be applied rigidly but purposively, so as to ensure a full and complete
adversarial presentation and conserve scarce judicial resources: at para. 49.
Amongst other things, Courts should consider “whether
the proposed action is an economical use of judicial resources, whether the
issues are presented in a context suitable for judicial determination in an
adversarial setting and whether permitting the proposed action to go forward
will serve the purpose of upholding the principle of legality”.
Consideration must also be given to realistic alternatives: at para. 50.
[338] Taking these matters into consideration, I have concluded that
granting public interest standing to the three applicant organizations will
best allow for the reasonable and effective litigation of the issues raised by
this application.
[339] In coming to this conclusion, I note that both Mr. Ayubi and Mr. Garcia
Rodrigues are failed refugees, neither of whom is currently in any danger of
being removed from Canada. As such, they come from only one of the several
different classes of individuals affected by the 2012 changes to the IFHP. No
directly affected privately-sponsored refugees, refugee claimants from non-DCO
countries, refugee claimants from DCO countries or PRRA-only applicants have
come forward with their own applications.
[340] Although concerted efforts were made by CDRC and CARL to identify
individuals from other classes of beneficiaries to challenge the cuts to the
IFHP, their evidence shows that most of the individuals identified were
unwilling to participate in the litigation. Amongst other practical
impediments, some potential applicants were simply too physically or mentally
ill to mount such a challenge. Others were facing removal from Canada, with the result that they might not be here to see the litigation through to its
conclusion. Some were lacking in the financial or other resources to do so.
[341] In addition, evidence was adduced from Mitchell Goldberg (a refugee
lawyer and vice-president of CARL) and Dr. Rashid, both of whom describe
the reluctance of applicants to challenge the Government of Canada while their
immigration status is uncertain.
[342] While the respondents are correct that thousands of applicants
challenge individual immigration decisions in this Court every year, these
challenges are generally mounted once the the claims have been denied, and the
applicants have little left to lose. It is quite a different thing to ask a
refugee claimant whose case is still pending to take on the very government
whose protection he or she seeks in a systemic challenge to a government
policy.
[343] It is true that many immigration decisions are not in fact made by
the government, but rather by arm’s-length tribunals such as the Immigration
and Refugee Board. However, one cannot expect someone seeking the protection of
Canada, who may have limited education and knowledge of Canada’s official languages, and no familiarity with the Canadian legal system, to understand the
nuances of independent decision-making by quasi-judicial tribunals in deciding
whether to take on the government.
[344] Even if members of the other affected classes were to commence their
own separate challenges to the changes to the program, this would simply result
in a multiplicity of proceedings and the unnecessary expenditure of scarce
judicial resources. It makes more sense from a resource allocation perspective
to have these issues addressed once, in a coherent, comprehensive manner,
rather than have them litigated in a piecemeal fashion down the road.
[345] The applicant organizations in this case have assembled a
substantial evidentiary record, including numerous affidavits from individuals
affected by the 2012 changes to the IFHP, health care providers, historians,
health policy and health economics experts, and survey data analysis experts.
Frailties in the applicants’ evidentiary record have previously been identified
and discussed. However, the reliable evidence before this Court greatly exceeds
what one could reasonably expect individuals seeking the protection of Canada, who the respondents concede are generally economically disadvantaged, to assemble.
Viewing the matter from a practical and pragmatic perspective, it is unlikely
that individual litigants could mount the sort of challenge that is now before
the Court.
[346] Beyond this, the Supreme Court has held that even if there could be
other plaintiffs with a direct interest in the issue, a court may nevertheless
consider whether a given public interest plaintiff “will
bring any particularly useful or distinct perspectives to the resolution of the
issue”: Manitoba Métis, above at para 43.
[347] The three applicant organizations seeking public interest standing
in this case are credible organizations with demonstrated expertise in the
issues raised by these applications. They are represented by experienced
counsel, and have the capacity, resources, and ability to present these issues
concretely in a well-developed factual setting: Downtown Eastside, above
at para. 51. This suggests that this litigation constitutes an effective
means of bringing the issues raised by the application to court in a context
suitable for adversarial determination.
[348] CARL’s membership has extensive experience in refugee law, and the
organization is an active advocate for refugees. Although a relatively new
organization, it has already been granted intervener status in at least three
cases before the Supreme Court of Canada: Downtown Eastside, Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013]
S.C.J. No. 36 and Ezokola v. Canada (Citizenship and Immigration), 2013
SCC 40, [2013] S.C.J. No. 40.
[349] CDRC is a group of physicians specializing
in the treatment of refugees and refugee health issues. The organization has
extensive practical knowledge of matters relating to refugee health care. In
addition to its medical expertise, CDRC brings a particular perspective to
these proceedings as its members deal with the practical realities of the 2012
changes to the IFHP, as well as the ethical, moral and professional challenges
that they and other health care providers face as a result. I note that it was
on a similar basis that an individual physician was granted public interest standing
in Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at para. 35,
[2005] 1 S.C.R. 791.
[350] As the Supreme Court observed in Downtown Eastside, Courts
should also consider the fact that one of the concepts animating public
interest litigation “is that it may provide access to
justice for disadvantaged persons in society whose legal rights are affected”:
at para. 51. The issues raised by this application impact on an admittedly
economically disadvantaged and vulnerable group, and are clearly matters of
significant public interest which transcend the interests of those most
directly affected by the 2012 changes to the IFHP.
[351] Finally, this is not a case where “the
failure of a diffuse challenge could prejudice subsequent challenges to the
impugned rules by parties with specific and factually established complaints”.
Nor am I persuaded that the failure of those members of affected classes with a
direct and personal stake in the issues to bring applications challenging the
2012 changes to the IFHP should militate against granting public interest
standing to CDRC and CARL: see Downtown Eastside, above at para. 51,
citing Danson, above at p. 1093.
[352] Many of the points made above apply with equal force to JFCY. I
have, moreover, already found that the organization brings a particular
expertise to the proceeding insofar as the legal rights of children are
concerned. As such, JFCY is uniquely positioned to address the impact that the
2012 changes to the IFHP have had on child refugees and migrants.
[353] The medical evidence demonstrates how children’s health issues can
differ from those of adults, and how the 2012 cuts to the IFHP can have a
differential impact on children’s health. Other evidence shows that limitations
on the health care insurance available to children can also impact their
ability to access social institutions such as schools, as well as youth
programs such as the Sea Cadets. Having regard to the factors articulated by
the Supreme Court in Downtown Eastside, I am satisfied that JFCY should
also be granted public interest standing in this matter.
VI.
Are the 2012 OICs Ultra Vires the Governor
in Council?
[354] The applicants contend that the 2012 modifications to the IFHP are
unlawful because the 2012 OICs are ultra vires the executive branch of
government. There is no suggestion that the actions of the Governor in Council
in enacting the 2012 OICs constituted an unlawful incursion into an area of
provincial jurisdiction. Rather, the applicants say that the Governor in
Council simply lacked the authority to make the modifications to the program.
A.
The Applicants’ Arguments
[355] The applicants note that an “OIC Backgrounder” appended to the
April, 2012 OIC describes the IFHP as “a discretionary,
ex gratia program not based on statutory obligation.” According
to the applicants, this description is incorrect, as ex gratia payments
typically arise in the context of relationships that are governed by the common
law of contract, tort, and property, where the entity making the payment
expressly disavows any private law obligation to render the payment.
[356] The applicants note that the Government of Canada’s own definition
of an ex gratia payment is “…a benevolent
payment made by the Crown”, which payment “is
made in the public interest for loss or expenditure incurred where the Crown
has no obligation of any kind or has no legal liability or where the claimant
has no right of payment or is not entitled to relief in any form”. Such
payments are “used only when there is no other
statutory, regulatory or policy vehicle to make the payment”: all quotes
from Appendix A – Definitions to the Directive on Claims and Ex Gratia
Payments, Available online:
http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=15782§ion=text#Exgratia.
[357] According to the applicants, when the 1957 OIC was promulgated, Canada did not have a nation-wide, provincially administered, publicly-funded health care
system. Health care was paid for through private contracts between patients and
health care providers. As a consequence, describing a program of publicly
reimbursing health care providers for care provided to those in “refugee-like”
situations as ‘ex gratia’ was consistent with the otherwise private
nature of health care in Canada at the time.
[358] By the 1960s, however, publicly insured, universal, accessible
health care had become the norm, and deviations (based on duration of
provincial residency or type of service) became the exception. As a result, the
applicants say that to describe publicly insured health care in 2012 as ‘ex
gratia’ is inaccurate and anachronistic.
[359] The applicants note that Ms. Le Bris, the Acting Manager of
Migration Health Policy at CIC, acknowledged in her cross-examination that
doctors who provide services that are covered by IFHP have a legally
enforceable right to receive payment. The applicants say that this is
completely contrary to the notion of ex gratia payments which were never
intended to be part of ongoing permanent insurance schemes. Indeed, the
applicants say that the 2012 OICs are statutory instruments that create legal
obligations.
[360] The applicants say that the fact that the Governor in Council can
modify or terminate the IFHP does not make the program ‘ex gratia’, or
otherwise distinguish it from any other government program that distributes
benefits such as social assistance or pensions, whether by way of statute or
regulation.
[361] None of these schemes arise out of prior legal obligation in
contract or tort. According to the applicants, the public instrument used to
deliver a benefit (whether it be statute, regulation, or, as in this case,
Orders in Council) does not determine the character of the benefit, but simply
determines how that scheme of public benefits might be altered or abolished.
[362] Finally, the applicants observe that the Government of Canada has
specific accounting requirements for ex gratia payments and that
payments made by CIC under the IFHP have never been reported as ex gratia
payments in the Public Accounts of Canada. According to the applicants, this is
proof of the fact that IFHP expenditures are not ex gratia payments.
[363] If the IFHP does not involve ex gratia payments, then the
applicants say that the only other way that the program could be legal would be
if it was a valid exercise of the Crown prerogative. The applicants say that
this is not the case, however, as there is no residual executive prerogative
for the Governor in Council to exercise in relation to immigration and health
care.
[364] The applicants say that the Crown prerogative regarding immigration,
including access to insured health care for non-citizens involved in the
refugee determination system, was extinguished by the exercise of federal
jurisdiction to legislate in relation to aliens and naturalization and by
whatever jurisdiction it may have over health care.
[365] As the Ontario Court of Appeal observed in Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215, 147 O.A.C. 14, “once a statute occupies ground formerly occupied by the
prerogative, the prerogative goes into abeyance. The Crown may no longer act
under the prerogative, but must act under and subject to the conditions imposed
by the statute”: at para 27.
[366] According to the applicants, the legislative landscape at the time
of the enactment of the 2012 OICs was very different than it was in 1957. By
2012, the combined effect of the Immigration and Refugee Protection Act (IRPA),
the Immigration and Refugee Protection Regulations, and the Canada
Health Act was to extinguish, either expressly or by necessary implication,
any residual federal prerogative over refugees and refugee claimants, including
regulation of publicly insured health care for refugee claimants and refugees.
[367] Insofar as IRPA is concerned, the applicants note that the
structure of the 2012 OICs “is entirely parasitic on IRPA’s
classifications of refugees and refugee claimants”. They say that this
further demonstrates the extent to which IRPA has already occupied the
field of governing Canada’s refugee regime: applicants’ memorandum of fact and
law at para 49.
[368] The applicants also say that through the Canada Health Act,
Parliament has spoken with respect to the federal government’s spending powers
over health matters, specifically how federal money is to be allocated in
relation to health care across the country. As a consequence, any previously
existing Crown or executive prerogative governing this sphere of activity has
been extinguished.
[369] In support of their extinguishment claim, the applicants note that
in Liability of the Crown, Hogg and Monahan list the existing residual
spheres of the executive prerogative. They identify these as including the
legislature, foreign affairs, the armed forces, ‘emergency’, appointments and
honours, mercy, the creation of Indian reserves, immunities and privileges, and
unclaimed property. Nowhere on this list do refugees, refugee claimants or
health care appear: P.W. Hogg, P.J. Monahan and W.K. Wright, Liability of
the Crown, 4th ed. (Toronto: Carswell, 2011) c. 1.5(b) at pp. 23-4.
[370] Finally, the applicants argued at the hearing of this application
that the IFHP could not be a valid exercise of the federal spending power
because it was not an Act of Parliament and the federal spending power is one
that can only be exercised by Parliament itself.
B.
The Respondents’ Arguments
[371] The respondents say that the vires issue has already been
decided by this Court in Hospitality House Refugee Ministry Inc. v. Canada
(Attorney General), 2013 FC 543 at paras. 13-16, 284 C.R.R. (2d) 165.
In the interests of judicial comity, the respondents say that this Court should
follow that decision and find that the OIC is legally valid.
[372] The respondents further submit that the federal government has the
inherent power to spend the money that it raises through its taxing power in
the manner that it chooses to authorize, and that the power of the Crown to
create spending programs can be considered a Crown prerogative power.
[373] According to the respondents, the prerogative power of the Crown to
make executive decisions regarding the expenditure of public funds to which
individual members of the public have no enforceable entitlement has not been
displaced by either IRPA or the Canada Health Act.
[374] The respondents submit that the Crown’s power to create spending
programs includes the power to establish an administrative scheme for the
program. The Crown may exercise its prerogative or common law power by creating
a scheme for payment of funds in accordance with specific criteria, as long as
it is not in substance legislation encroaching on a matter coming within
provincial jurisdiction.
[375] The Courts have, moreover, confirmed that the Crown’s authority to
make ex gratia payments pursuant to the federal spending power and to
establish administrative schemes governing the spending is entirely
discretionary.
[376] Contrary to the applicants’ submission, the respondents say that ex
gratia payments are not necessarily limited to one-time, lump sum payments
for a specific loss or harm suffered. The IFHP is a very different type of ex
gratia payment scheme in the form of insurance: the federal government
created a formalized, yet wholly discretionary scheme to administer and fund
health care coverage, pursuant to an Order in Council. The Crown’s prerogative
power to establish such a funding scheme includes the ability to define,
restrict and change that scheme.
C.
Analysis
[377] I do not accept the respondents’ contention that the issue of the vires
of the 2012 OICs has already been decided by this Court in Hospitality House.
At paragraph 13 of his decision in Hospitality House, Justice
O’Reilly described the applicants’ vires argument in that case as being
that the 2012 OICs were:
… inconsistent with the Immigration and
Refugee Protection Act … and Regulations… and, therefore, is ultra
vires. In particular, they maintain that, since members of the refugee
abroad class cannot be found medically inadmissible to Canada … it would be inconsistent to require sponsors to assume the health care expenses of members
of that group. The exemption from inadmissibility, they say, should be
interpreted as an exemption from the payment of medical expenses.
[378] The applicants further argued in Hospitality House that the
2012 OICs “conflict[…] with s. 153(3) of the [Immigration
and Refugee Protection Regulations], which provides that the parties to a
sponsorship agreement are jointly and severally liable for breach of a
sponsorship undertaking”. As a result, the applicants contended that “as a party to sponsorship agreements, the Minister cannot
breach the corresponding undertakings”: Hospitality House at para. 14.
[379] It is thus apparent that the vires argument in Hospitality
House was fundamentally different to that being advanced in this case. As a
consequence, the decision in that case has no bearing on the question before
me.
[380] The question here is whether the executive branch of the federal
government has the authority to spend money providing health care to
individuals seeking the protection of Canada as an exercise of the Crown
prerogative, and whether any such prerogative has been extinguished by the
enactment of IRPA and the Canada Health Act.
[381] I would start by observing that this entire argument appears to be
contrary to the applicants’ ultimate interests, given that they are seeking an
order restoring the IFHP to its pre-2012 levels.
[382] As was noted earlier, “once a statute
occupies ground formerly occupied by the prerogative, the prerogative goes into
abeyance”: Black v. Canada, above at para. 27. If the applicants
are correct and the effect of the enactment of IRPA and the Canada
Health Act is to occupy ground formerly occupied by the Crown prerogative,
this would call into question the authority not just of the 2012 IFHP, but of the
pre-2012 IFHP as well.
[383] That said, the applicants have not persuaded me that the 2012 OICs
are in fact ultra vires the executive branch.
[384] In Khadr, above, the Supreme Court described the Crown’s
prerogative power as being the “residue of
discretionary or arbitrary authority, which at any given time is legally left
in the hands of the Crown”: at para 34, citing Reference as to the
Effect of the Exercise of Royal Prerogative of Mercy Upon Deportation
Proceedings, [1933] S.C.R. 269 at p. 272, [1933] 2 D.L.R. 348, per Duff
C.J., quoting A. V. Dicey, Introduction to the Study of the Law of the
Constitution (8th ed. 1915), at p. 420.
[385] The Supreme Court went on in the same paragraph to refer to the
Crown’s prerogative power as “a limited source of
non-statutory administrative power accorded by the common law to the Crown”:
citing P.W. Hogg, Constitutional Law of Canada, 5th ed. Supp.
(Scarborough, Ont.: Thomson/Carswell, 2007) (loose-leaf updated 2008, release
1) at pp. 1-17.
[386] The applicants rely on the list of residual spheres of the executive
prerogative identified in Hogg and Monahan’s Liability of the Crown,
suggesting that because refugees, refugee claimants or health care do not
appear on that list, there can be no existing Crown prerogative allowing the Governor
in Council to regulate in these areas.
[387] It is not at all clear, however, that the list in question is
intended to be an exhaustive one. Indeed, it is apparent from the jurisprudence
that the Crown retains the power to spend in areas apart from those on the list
in question.
[388] As the applicants have pointed out, a number of the cases relied
upon by the respondents (such as Winterhaven Stables v. Canada (Attorney
General), [1989] 1 W.W.R. 193, 53 D.L.R. (4th) 413, leave to appeal
refused, [1989] 1 S.C.R. xvi at 215, YMHA Jewish Community Centre v. Brown,
[1989] 1 S.C.R. 1532, [1989] S.C.J. No. 57, Eldridge v. British Columbia
(Attorney General), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, and Reference
Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, [1991] S.C.J. No.
60) deal with Parliament’s spending power, as opposed to that of the Governor
in Council. While the funds for the IFHP are appropriated by Parliament, the
terms and conditions under which they are disbursed are determined by the Governor
in Council.
[389] However, in Pharmaceutical Manufacturers Assn. of Canada v.
British Columbia (Attorney General), [1997] B.C.J. No. 1902, 149 D.L.R.
(4th) 613, leave to appeal refused, [1997] S.C.C.A. No. 529, the British
Columbia Court of Appeal held that it was open to the executive branch of the
provincial government to make decisions regarding the expenditure of public
funds, specifically to modify a program that reimbursed certain individuals for
drug costs so as to reduce the level of reimbursement available to program
beneficiaries.
[390] In coming to this conclusion, the Court cited the English decision
in R. v. Criminal Injuries Compensation Board, ex parte Lain, [1967] 2
Q.B. 864 for a broader understanding of the Crown’s prerogative power, which
includes the “general power of government to make
executive decisions regarding the expenditure of public funds to which
individual members of the public have no enforceable entitlement”: Pharmaceutical
Manufacturers, above at para. 27.
[391] The Court further noted in Pharmaceutical Manufacturers that “it is not necessary for the government to rely on its
traditional prerogative powers in this context: the Crown has the capacities
and powers of a natural person and a natural person has the capacity to
establish programs for public benefit and to define or restrict the
distribution of such benefits”: at para. 27. Moreover, there was
nothing in the legislation at issue in that case (the Continuing Care Act)
that was incompatible with the Crown’s authority to adopt its own drug pricing
policy.
[392] As Peter Hogg states in Constitutional Law of Canada, 5th
ed., at 1-19, “[s]ometimes, the term ‘prerogative’ is
used loosely, in a wider sense, as encompassing all the powers of the Crown
that flow from the common law.” He further notes that “[n]othing practical now turns on the distinction between the
Crown’s ‘true prerogative’ powers and the Crown’s natural-person powers,
because the exercise of both kinds of powers is reviewable by the Courts.”
[393] The question remains as to whether the Crown can continue to
exercise this power in the area of health insurance as it pertains to refugees
and refugee claimants.
[394] I agree with the respondents that the applicants’ suggestion that
the Government of Canada’s accounting practices concerning IFHP funds means
that it cannot involve ex gratia payments “elevates
form over substance”. That said, describing the IFHP as involving ex
gratia payments is not entirely apt. That is, while there may have been no
obligation on the Governor in Council to create the IFHP, once the program was
created, health care providers have a right to payment under the plan.
[395] Nor do I accept the applicants’ contention that any Crown
prerogative that may have existed to make executive decisions regarding the
expenditure of public funds on health care for those seeking the protection of Canada has been displaced or extinguished by either IRPA or the Canada Health Act.
Indeed, as noted above, if that were the case, the enactment of these Acts
would arguably have invalidated the pre-2012 IFHP as well.
[396] The Crown prerogative can only be abolished or exhausted by clear
words in a statute or by necessary implication from words in a statute. Section 17
of the Interpretation Act, R.S.C. 1985, c. I-21 codifies this common law
rule of statutory interpretation, providing that “no
enactment is binding on Her Majesty or affects her Majesty’s rights or
prerogatives in any manner, except as mentioned or referred to in the
enactment”: see also Ross River Dena Council Band v. Canada, 2002
SCC 54, [2002] S.C.J. No. 54.
[397] The applicants admit that there is nothing in IRPA that deals
with the provision of health care to individuals governed by the legislation.
The fact that the 2012 OICs may adopt terminology and concepts from IRPA
such as “refugee” and “designated country of origin” does not mean that the Act
has occupied the field of creating and funding a scheme to provide insured
health care benefits to refugee claimants, refugees, and failed claimants.
[398] Indeed, there was shared terminology between the pre-2012 IFHP and
the relevant immigration legislation. The applicants do not, however, suggest
that the 1957 OIC was ultra vires because it adopted terminology from
the 1952 Immigration Act.
[399] The Canada Health Act requires the federal government to
contribute to the funding of provincial health insurance programs provided that
they conform to certain specified statutory criteria: Eldridge, above at
para. 25.
[400] That is, the Canada Health Act establishes criteria and
conditions related to insured health care services that the provinces and
territories must fulfill in order to receive federal cash contributions under
the Canada Health Transfer. Under the Act, insured persons are generally
residents of a province or territory who have completed the minimum residence
period. The Canada Health Act does not legislate concerning immigrant or
refugee groups, nor does it provide health insurance for them.
[401] Indeed, there is no federal legislation that requires the federal
government to provide health care to refugees, refugee claimants, or failed
refugee claimants. As a consequence, the Crown’s prerogative power to spend in
an area not addressed by statute remains intact, and the 2012 OICs are intra
vires the executive branch of the Government of Canada.
[402] This does not, however, mean that modifications made to the IFHP
resulting from the 2012 OICs are immune from judicial scrutiny. The exercise of
the Crown prerogative by the Governor in Council is subject to certain limits:
it must be intra vires federal jurisdiction, it must be procedurally
fair (if a duty of fairness is owed) and it must conform to the Charter: see,
for example, Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at para. 28,
[1985] S.C.J. No. 22, Canada Assistance Plan, above at p. 567,
and Winterhaven Stables, above at para. 28.
VII.
Did the Government Breach its Duty of Procedural
Fairness by Failing to Provide Notice and an Opportunity to Participate Prior
to the Proclamation of the 2012 OICs?
[403] It will be recalled that the 2012 modifications to the IFHP were first
announced on April 25, 2012 as part of the Federal Budget. On the same
day, the Order Respecting the Interim Federal Health
Program, 2012 (the April 2012 OIC)
was published in the Canada Gazette.
[404] Because the changes to the IFHP were effected through the budget
process, they were subject to Cabinet confidentiality and budget secrecy. As a
consequence, there was no advance notice of the pending changes to the program,
nor was there any consultation with stakeholders prior to the enactment of the
April 2012 OIC, despite the fact that the changes to the IFHP detrimentally
affected provinces, health care providers, and patients. The applicants say
that this breached the general duty of fairness owed to stakeholders by the
executive branch of government and was, moreover, contrary to stakeholders’
legitimate expectation that they would be accorded participatory rights before
any fundamental changes were made to the IFHP.
A.
The Applicants’ Arguments
[405] The applicants acknowledge that the jurisprudence has held that no
general duty of procedural fairness is owed by the government in the exercise
of its legislative functions. However, they note that because the modifications
to the IFHP were brought about by executive fiat rather than through a
legislative or regulatory process, there was also no opportunity for public
notice, study or debate prior to the changes coming into effect.
[406] The applicants say that the Parliamentary appropriation of funds for
the IFHP (which is the extent of Parliament’s engagement with the program) is not
equivalent to the Parliamentary readings, committee hearings, debate in the
House of Commons, and Senate review that would ordinarily take place as part of
the legislative process.
[407] According to the applicants, “the tenuous
Parliamentary engagement occasioned by appropriation is exacerbated in the
present case, where the appropriation was located in a budget document hundreds
of pages long, and shielded from advance disclosure by claims to budget
secrecy”: applicants’ memorandum of fact and law at para. 54.
[408] While recognizing that the doctrine of legitimate expectation does
not create substantive rights, the applicants note that it can give rise to
procedural obligations. These include procedural entitlements that might not
otherwise exist, but for the legitimate expectation created by an
administrative decision-maker that a particular procedure would be followed
prior to a decision being made.
[409] By 2012, the IFHP had been in effect for some 55 years, and the
contemplated changes would clearly have a dramatic impact on the people who
relied on the program. According to the applicants, the interests of various
stakeholders had been recognized and taken into account over the history of the
pre-2012 IFHP. There had, moreover, been repeated consultations with the provinces.
By way of example, the applicants note that when the Province of Ontario decided that it no longer wished to cover refugee claimants under OHIP, the federal and
Ontario governments entered into negotiations that culminated in a 1995
Memorandum of Understanding.
[410] The applicants assert that this past practice and these prior
consultations gave rise to a legitimate expectation on the part of stakeholders
that the IFHP would not be radically altered without a public process involving
advance notice and consultation in which program beneficiaries, the provinces,
health professionals, refugee organizations, and other affected parties could
participate.
[411] In support of this contention, the applicants note that English
courts have recognized that reliance on a certain policy by certain individuals
or groups can ground a legitimate expectation that the policy will not be
fundamentally altered absent notice and an opportunity to participate: R.
(Bhatt Murphy) v. Independent Assessor [2008] EWCA Civ. 755.
[412] The applicants also cite the Federal Court of Appeal’s decision in Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C. 264, 24 Admin. L.R. (3d) 279 as authority for
the proposition that the doctrine of legitimate expectation can and should
extend to executive rule-making, whether it be authorized by prerogative or by
delegation.
[413] In Apotex, Justice Evans, writing for himself, noted that the
doctrine of legitimate expectation “applies in
principle to delegated legislative powers so as to create participatory rights
when none would otherwise arise”. In coming to this conclusion, he noted
that the rationale for exempting legislation from the doctrine of legitimate
expectation did not apply to Cabinet regulations which are not subject to the
same level of scrutiny as primary legislation that must pass through the full
legislative process: at para. 126.
[414] It bears noting, however, that Justice Evans’ comments were made in obiter
and that serious reservations were expressed by Justices Décary and Sexton as
to the applicability of the doctrine of legitimate expectation to Cabinet in
the exercise of its regulation-making power. The
Supreme Court also took note of Justice Evans’ comments in Mount Sinai
Center v. Québec, 2001 SCC 41, [2001] 2 S.C.R. 281, remarking that the “issue remains open for another day”: at para. 34.
[415] The applicants recognize that Justice Evans’ comments in Apotex
were made with respect to participatory rights in connection with delegated
legislation, rather than executive action. They say, however, that the
distinction he drew between the enactment of statutory and delegated
legislation, “applies equally to Orders in Council
untethered to statute”: applicants’ memorandum of fact and law at para. 55.
[416] The applicants also assert that a duty of fairness was owed by the
executive prior to making changes to the IFHP, independent of any legitimate
expectation that may have arisen as a result of past practice. In support of
their claim that the duty of fairness can apply in relation to Orders in
Council, the applicants cite jurisprudential examples such as the Federal Court
of Appeal’s decision in Oberlander v Canada (Attorney General), 2004 FCA
213, [2005] 1 F.C.R. 3, and the Supreme Court’s decision in Attorney General
of Canada v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735, 115 D.L.R. (3d)
1.
[417] Because the minimum requirements of procedural fairness (which they
identify as consultation and an opportunity to engage) were not met in this
case, the applicants say that a declaration should issue that the 2012 changes
to the IFHP were effected in a manner that was inconsistent with principles of
fairness, as well as natural and fundamental justice, with the result that the
2012 changes to the IFHP should be set aside.
B.
The Respondents’ Arguments
[418] The respondents deny that any duty of fairness was owed to the
applicants in this case, or that the applicants could have had any legitimate
expectation that they would be accorded participatory rights before the IFHP
was modified.
[419] The respondents also say that even though CIC had no legal duty to
provide notice or to consult, it did in fact engage with stakeholders between
April of 2012, when the April 2012 OIC was published in the Canada Gazette, and
June 30, 2012, when the two OICs came into force. During this time, stakeholders
reviewed the proposed changes and made representations to government. CIC also
delivered numerous public briefings to explain the policy reform.
[420] Finally, the respondents assert that the fact that the April 2012
OIC was amended on June 28, 2012 in relation to government-assisted refugees
and some privately sponsored refugees is evidence of stakeholder engagement in
the process.
C.
Analysis
[421] The question, then, is whether, either as a result of a legitimate
expectation on the part of stakeholders or the nature of the rights affected by
the OIC, the Governor in Council owed a duty of procedural fairness to
stakeholders in connection with the changes made to the IFHP. I find that no
such duty arose in this case.
[422] In coming to this conclusion, I would start by observing that the
legitimate expectations of a person challenging a decision may affect the
procedures that must be followed in a given case: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 26.
[423] The doctrine of legitimate expectation arises where representations
have been made to an applicant concerning the procedure that will be followed
in particular circumstances. However, as the Supreme Court observed in Canada
(Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, the
representations said to give rise to the legitimate expectations must be “clear, unambiguous and unqualified”: at para. 68.
[424] The applicants have not adduced evidence of any clear, unambiguous
and unqualified practices, conduct or representations that could reasonably
have been relied upon so as to create a legitimate expectation on the part of
stakeholders that they would be accorded participatory rights in this case.
[425] Moreover, as was noted by both sides, no duty of fairness is owed by
the government in the exercise of its legislative functions: see, for example, Authorson
v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40.
[426] While certain decisions of the Governor in Council can attract a
duty of fairness, this is by no means always the case. Whether a duty to
observe natural justice or procedural fairness exists in a given case depends
on a number of factors, including the subject matter of the decision in
question, the consequences of the decision for those affected by it, and the
number of people involved: Baker, above at paras. 23-27.
[427] According to the Supreme Court of Canada, procedural rights do not
arise where the executive decision at issue is a “legislative
and general” one rather than one that is “administrative
and specific”: Wells v. Newfoundland, [1999] 3 S.C.R. 199 at para. 61,
177 D.L.R. (4th) 73.
[428] An example of an “administrative and
specific” decision giving rise to participatory rights is found in Oberlander,
above. The decision at issue in that case was the decision by the Governor in
Council to revoke Mr. Oberlander’s Canadian citizenship, a matter of
obvious direct and immediate concern to him.
[429] In contrast, no duty of fairness was owed in circumstances where, by
Order in Council, the government denied appeals of a decision of the Canadian
Radio-television and Telecommunications Commission setting a new rate structure
for Bell Canada. The Supreme Court concluded that this was a regulatory matter
that was not of individual concern, with the result that there was no duty for notice or consultation:
Inuit Tapirisat, above.
[430] As was the case with the OIC at issue in Inuit Tapirisat, the
2012 OICs implementing the modifications to the IFHP were clearly “legislative and general”, and did not give rise to
participatory rights on the part of what was clearly an amorphous and
potentially infinite group of stakeholders.
[431] I note that Justice O’Reilly came to a similar conclusion in Hospitality
House. It is instructive to have regards to the facts of that case,
however, as they are far more compelling from a fairness perspective than the
situation here. Nevertheless, no duty of fairness was found to have been owed
to the applicants in that case.
[432]
Hospitality House
involved a challenge to the 2012 modifications to the IFHP insofar as they
changed the rules relating to health coverage for privately-sponsored refugees.
Hospitality House and the Synod of the Diocese of Rupert’s Land had undertaken
to support the resettlement of hundreds of refugees through the Government of
Canada’s private sponsorship program. In turn, the Minister of Citizenship and
Immigration had agreed to provide the sponsored refugees with health insurance
coverage through the IFHP.
[433] After the sponsorship agreement was entered into between the
applicants and the Government of Canada, the changes to the IFHP came into
effect. The applicants were concerned that they would henceforth be called upon
to pay the difference between pre-2012 IFHP health
care coverage and the new, more limited coverage then available to the
sponsored refugees. As a consequence, the sponsoring groups brought an
application in this Court challenging the 2012 OICs, asserting, amongst other
things, that the OICs breached the sponsorship contract between them and the
Minister. They also asserted that the OICs were enacted in breach of the duty
of fairness owed to them.
[434] Justice O’Reilly concluded that the promulgation of the 2012 OICs
was a legislative act, and was not a direct or intentional attack upon the
applicants’ interests. As a consequence, he concluded that there was no legal duty on the part of the Governor in Council to consult with
the applicants before proceeding with the policy changes reflected in the OICs:
Hospitality House, above
at para. 19.
[435] It bears noting that the applicants in Hospitality House were
a finite and readily identifiable group who had entered into direct contractual
arrangements with CIC, only to find that the basis upon which they had
undertaken financial responsibility for refugees had been fundamentally altered
by the 2012 modifications to the IFHP.
[436] That is, the result of the changes to the IFHP was to potentially
expose the sponsoring organizations to greater financial obligations than they
could reasonably have anticipated at the time that they entered into the
sponsorship agreements. Even then, this Court concluded that the applicants
were not entitled to advance notice of the changes, or an opportunity to be
consulted.
[437] As the evidence adduced by the applicants in this case demonstrates,
the 2012 OICs affect numerous classes of individuals seeking the protection of
Canada, including refugee claimants from DCO and non-DCO countries, some
privately-sponsored refugees, successful refugee claimants and other protected
persons, failed refugee claimants, victims of human trafficking, foreign
nationals, permanent residents detained under IRPA and PRRA-only
applicants.
[438] The applicants’ witnesses have also identified the various ways in
which the changes to the IFHP have detrimentally affected provincial
governments, doctors and other health care providers, as well as hospitals and
other health care facilities, and social agencies. There is, thus, a very large
and not readily identifiable group of potential stakeholders, some of whose
interests are potentially considerably more remote than those of the applicants
in Hospitality House.
[439] The Supreme Court observed in Wells that the interests at
stake in that case were no different in kind than those “of an unhappy tax-payer who is out-of-pocket as a result of
a newly enacted budget, or an impoverished welfare recipient whose benefits are
reduced as a result of a legislative change in eligibility criteria”: at
para. 61. The Supreme Court nevertheless concluded that the executive
action in question in that case did not involve a personal matter, but rather a
legislative policy choice that did not attract a duty of procedural fairness.
The same may be said here.
[440] As a consequence, I have concluded that there was no duty of
procedural fairness owed to stakeholders in connection with the changes made to
the IFHP, whether as a result of a legitimate expectation or the nature of the
rights affected by the 2012 OICs.
VIII.
The International Law Arguments
[441] Before considering the various Charter issues raised by this
application, it is important to first have regard to the international law
arguments advanced by the applicants. These arguments are based primarily on
the Convention Relating to the Status of Refugees, 4 June 1969, 189 UNTS
150, Can TS 1969 No 6 (the Refugee Convention), in particular, Articles
3 and 7 thereof, and the Convention on the Rights of the Child,
20 November 1989, 3 UNTS 1577, Can TS 1992/3 No. 3.
[442] It is undisputed that “[i]nternational
treaties and conventions are not part of Canadian law unless they have been
implemented by statutes”: Baker, above at para. 69.
[443] The respondents note that Articles 3 and 7 of the Refugee
Convention and the Convention on the Rights of the Child have not
been incorporated into Canadian law, and that the mere ratification of an
international treaty does not give the treaty the force of law in Canada: Québec
(Minister of Justice) v Canada (Minister of Justice), [2003] R.J.Q. 1118 at
para. 89, 175 CCC (3d) 321 (Que. C.A.). The respondents further note that
international law, whether binding or not, is not a source of domestic rights
or remedies.
[444] The respondents do acknowledge, however, that international law is
an interpretive aid, sometimes a valuable and persuasive one, when Courts are
determining whether there has been a breach of the Charter: see the
respondents’ memorandum of fact and law at para. 132, citing R. v. Hape,
2007 SCC 26, [2007] 2 S.C.R. 292; Baker, above; Health Services and
Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007]
2 S.C.R. 391, 2007 SCC 27; Ahani v Canada (Attorney General), [2002]
O.J. No. 431, (2002) 58 O.R. (3d) 107 (Ont. C.A.).
[445] The Supreme Court of Canada has, moreover, observed that the Charter
should be presumed to provide at least as great a level of protection as
is found in the international human rights instruments which Canada has ratified: see, for example, Health Services, above at para. 70; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47 at paras. 22-23,
[2013] 3 S.C.R. 157. The Supreme Court’s repeated use of the phrase “at least as great” signals that Canadian Charter
protections may, in some cases, actually exceed those provided by international
law.
[446] Canada’s international obligations and principles of international
law are also instructive in defining the rights in issue: Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, [1989] S.C.J. No.
45; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General)
above; R. v. Hape, above.
[447] In Suresh v. Canada (Minister of Citizenship and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3, the Supreme Court observed that “in seeking the meaning of the Canadian Constitution, the
courts may be informed by international law”. In making this comment,
the Court observed that its concern was “not with Canada’s international obligations qua obligations; rather, our concern is with the
principles of fundamental justice. We look to international law as evidence of
these principles and not as controlling in itself”: at para. 60.
See also Toussaint (FCA), above at para. 87. As a consequence, it
is important to have regard to the international norms relating to the issues
raised by this application.
[448] Canada is a party to the Refugee Convention,
which applies to refugees and refugee claimants, but not to rejected refugee
claimants. Article 3 of the Refugee Convention provides that contracting
states “shall apply the provisions of this Convention
to refugees without discrimination as to race, religion or country of origin”.
This Article has been interpreted not just as a general anti-discrimination
provision, but as one prohibiting discrimination between refugee claimants and
refugees and the nationals of the host country, as well as prohibiting
discrimination between classes of refugees: see James Hathaway, The Rights
of Refugees under International Law (New York: Cambridge University Press,
2005) at p. 238.
[449] According to the applicants, the 2012 IFHP provides different (and
inferior) health insurance coverage for refugee claimants from DCO countries as
compared to that available to refugee claimants from non-DCO countries. The
applicants say that this constitutes discrimination between and among refugees
on the basis of their country of origin.
[450] The applicants also cite Hathaway as authority for the
proposition that “refugee status under the Convention
arises from the nature of one’s predicament rather than from a formal
determination of status”. As a consequence, the applicants say that the
rights accorded to refugees under the Refugee Convention “must be respected by state parties until and unless a
negative determination of the refugee’s claim to protection is rendered”:
both quotes from Hathaway at pp. 278-279. See also the United Nations High
Commission for Refugees, Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees, HCR/IP/4/Eng/REV.1 (1979, Re-edited, Geneva, January
1992), at para. 28.
[451] The applicants also rely on Article 7(1) of the Refugee
Convention which provides that “[e]xcept where this
Convention contains more favorable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.”
[452] The applicants say that Canada generally affords aliens access to
publicly funded universal health care, as long as their presence in Canada is
authorized and of some foreseeable duration. The applicants cite, as examples,
permanent residents and, in some cases, students and persons on long-term work
visas, all of whom are eligible for provincial or territorial health insurance
programs.
[453] The applicants thus say that, in keeping with Article 7(1)
standards, resettled refugees and refugees recognized within Canada’s refugee determination system should be entitled to similar health insurance coverage, which
had been the case under the provisions of the pre‑2012 IFHP.
[454] The applicants acknowledge that treaty rights flowing from the Refugee
Convention technically do not adhere to failed asylum seekers. However,
they note that the circumstances of this group can vary widely. Some failed
refugee claimants may be applying for subsidiary forms of international
protection, whereas others, such as Mr. Ayubi, cannot be removed from Canada because of the conditions in their countries of origin.
[455] The applicants submit that failed asylum seekers are still
considered to be under the jurisdiction of the United Nations High Commissioner
for Refugees and deserve to be treated humanely in the context of their
removal, especially where removal is delayed through no fault of the failed refugee
claimant.
[456] The applicants point to other international agreements as providing additional
guidance with respect to the international norms in this area. For example,
they note that Article 19 of the European Union’s “Reception Directive”
provides that: “Member States shall ensure that
applicants receive the necessary health care which shall include, at least,
emergency care and essential treatment of illnesses and of serious mental
disorders…”: Directive 2013/33/EU of the European Parliament and of
the Council of 26 June 2013 laying down standards for the reception of
applicants for international protection (recast), [2013] OJ, L180/96 at
106.
[457] The applicants further note that Article 19 of the “Reception Directive” applies both to those seeking
Convention refugee status, and to those who are seeking subsidiary forms of
protection.
[458] The applicants also observe that there are other principles
enshrined in the Refugee Convention that have application here, such as
the principle of family unity. By way of example, the applicants note that Mr. Garcia
Rodrigues’ wife is a Convention Refugee, and they submit that he should be able
to draw on her status.
[459] Insofar as the Convention on the Rights of the Child is
concerned, the applicants note that Canada played an instrumental role in
drafting and promoting the Convention and that it ratified it in 1991.
The Convention on the Rights of the Child requires Canada to act in the best interests of children, and codifies its obligation as a signatory
to ensure, to the maximum extent possible, the survival and development of
children: Article 6(2).
[460] Article 2(1) of the Convention on the Rights of the Child
provides that state parties are required to “respect
and ensure the rights set forth in the present Convention to each child within
their jurisdiction without discrimination of any kind, irrespective of the
child’s or his or her parent’s or legal guardian’s race, colour, sex, language,
religion, political or other opinion, national, ethnic or social origin,
property, disability, birth or other status”.
[461] Article 3(1) of the Convention provides that “[i]n all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration”.
[462] The United Nations Committee on the Rights
of the Child has provided guidance in how the “best
interests” principle is to be applied, noting that the child’s right to health
is central in assessing a child’s best interests: General comment No. 14
(2013) on the right of the child to have his or her best interests taken as a
primary consideration (art. 3, para. 1), CRC/C/GC/14 (29 May 2013), at
para. 77.
[463] State parties are, moreover, required to ensure that the best
interests of children are “appropriately integrated and
consistently applied in every action taken by a public institution”, and
that all policies and legislation concerning children demonstrate that the best
interests of the child, or particular group of children, have been a primary
consideration: paras. 14 and 32. In addition, the “[s]hort-,
medium-, and long-term effects of actions related to the development of the
child over time” must be borne in mind: at para. 16.
[464] The Supreme Court of Canada has, moreover, recognized that the
interests and needs of children, including non-citizen children, are important
factors that must be given substantial weight as they are central humanitarian
and compassionate values in Canadian society: Baker, above at paras. 67
and 70.
[465] The respondents say that in accordance with the provisions of the Immigration
and Refugee Protection Act, refugee status is not conferred until the
Immigration and Refugee Board determines a person to be a Convention refugee or
a person in need of protection, the person has been determined to be a
Convention refugee (or a person in similar circumstances) under a visa
application, or the Minister allows an application for protection.
[466] The respondents also deny that refugee claimants, refugees and
failed refugees are all entitled to the same bundle of rights, noting that each
group has a distinct status under Canadian law.
[467] Moreover, the respondents note that in Toussaint (FC),
Justice Zinn quoted the Office of the United Nations High Commissioner for
Human Rights and the World Health Organization as recognizing that states have
expressly stated before international human rights bodies or in their own
domestic legislation “that they cannot or do not wish
to provide the same level of protection to migrants as to their own citizens”. As
a result, “most countries have defined their health
obligations towards non-citizens in terms of ‘essential care’ or ‘emergency
health care’ only”: at para. 68.
[468] Because these concepts “mean different
things in different countries, their interpretation is often left to individual
health-care staff. Practices and laws may therefore be discriminatory”: Toussaint
(FC), above at para. 68, citing the Office of the United
Nations High Commissioner for Human Rights and World Health Organization, Fact
Sheet No. 31: The Right to Health, June 2008, online: OHCHR <http:
//www.ohchr.org/Documents/Publications/Factsheet31.pdf>, at p. 19.
[469] According to the respondents, there is no principle in the Convention
on the Rights of the Child requiring Canada to provide and fund health care
for every child at each stage of the refugee determination process. This Court
has confirmed in Toussaint (FC), above, that there is no right in
Canada to health care based upon international law, either for citizens or
non-citizens, that the scope of the international legal right to health is
contested, and that claims to the right to health care based on alleged
international law obligations cannot succeed on the basis of international
conventions that Canada’s Parliament has not expressly implemented through
specific legislation: Toussaint (FC) at paras 67 and 70. See also Toussaint
(FCA), above at para 99.
[470] The respondents accept that the principles set out in the Convention
must be interpreted through the lens of Canadian values and that Canadian
jurisprudence recognizes the “best interests of the child” principle as a “primary consideration”. The respondents note,
however, that the Supreme Court has expressly rejected the claim that “the best interests of the child” is “a principle of fundamental justice” under section 7
of the Charter: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), above at para. 7.
[471] To the extent that the applicants rely on international
jurisprudence in support of their Charter claims, the respondents say that the
Federal Court of Appeal has explicitly cautioned that foreign cases are not
binding on Canadian courts: Mohamed v. Canada (Minister of
Citizenship and Immigration), 2012 FCA 112 at para. 17, 432 N.R. 328.
[472] While the applicants have pointed to the health care benefits
provided to migrants and refugee claimants by some European countries, the
respondents note that Canadian courts have rejected such comparative approaches
where they do not reflect “what the Canadian vision of
democracy embodied in the Charter permits”: Sauvé v. Canada (Chief
Electoral Officer), 2002 SCC 68 at para. 41, [2002] 3 S.C.R. 519. It
is worth noting, however, that the Supreme Court’s comment in Sauvé was
made in a situation where lesser rights were accorded to a disadvantaged
group by foreign governments than were accorded in Canada.
[473] The respondents further point out that in Chaoulli, the
Supreme Court cautioned that “it is particularly
dangerous to venture selectively into aspects of foreign health care systems
with which we, as Canadians, have little familiarity”: above at para
229.
[474] I accept the respondents’ contention that because none of the operative
portions of the two Conventions relied upon by the applicants have been
incorporated into Canadian law, they do not have the force of law in Canada, nor are they the source of domestic rights or remedies. That said, the Supreme
Court has been clear that the Conventions to which Canada is a signatory are
relevant as interpretive guides in a Charter analysis and they will thus be
taken into account for that purpose.
[475] Insofar as the international jurisprudence cited by the applicants
is concerned, I will address the relevance of that jurisprudence as the issues
arise.
IX.
Introduction to the Charter Issues
[476] The applicants identify the subject matter of this proceeding as
being the decision implemented by the 2012 OICs to cancel the pre-2012 IFHP and
replace it with a modified IFHP which limits access to health care insurance
for the majority of program beneficiaries, and eliminates it altogether for
certain individuals who had previously received coverage under the pre-2012
IFHP.
[477] The applicants have served a Notice of Constitutional Question in
which they assert that the changes to the IFHP reflected in the 2012 OICs
violate sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms,
s. 7, Part I of the Constitution Act, 1982, Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 (the Charter), in a manner that cannot be
saved under section 1 of the Charter.
[478] In order to provide a context for these arguments, consideration
must first be given to the role of the Courts when reviewing actions taken by
the executive branch of government.
[479] The respondents identify three main changes that were made to the
previous IFHP. These include the abolition of the means test, and the
institution of tiered coverage tied to the immigration status of the
individual. The third change has been described by the respondents as the
institution of a different “comparator group”.
[480] That is, the respondents say that there has been a “shift in focus of the program”. Rather than continue
to tie the level of insurance coverage available to IFHP beneficiaries to that
available to low-income Canadians on social assistance, the goal is now to “try and make most of the recipients receive what working
Canadians not collecting social assistance, but having provincial healthcare
get”: Transcript, Vol. 2 at p. 136
[481] According to the respondents, each of these changes reflects a
governmental policy choice.
[482] The respondents concede that “probably some
Interim Federal Health plan beneficiaries have been harmed in some way, to some
degree by the changes in the Order in Council”: Transcript, Vol. 2 at p.
119. Nevertheless, they say that the Courts have recognized that “sometimes hard choices need to be made”: Li v. Canada (Minister of Citizenship and Immigration), 2011 FCA 110 at para. 37, [2012] 4 F.C.R.
479.
[483] Indeed, the respondents say that the making of, and acting on policy
choices is at the heart of the role of both the executive and the legislative
branches of government, and that considerable deference has to be paid to these
choices by the Courts.
[484] In support of this contention, the respondents cite the decision of
Justice Hugessen in A.O. Farms Inc. v. Canada, [2000] F.C.J. No. 1771,
28 Admin. L.R. (3d) 315, where he observed that “[a]ny,
perhaps most, government actions are likely to cause harm to some members of
the public. That is why government is not an easy matter. Of course, the
government owes a duty to the public, but it is a duty owed to the public
collectively, not individually. The remedy for those who think that duty has
not been fulfilled is at the polls and not before the Courts”: at para. 11.
[485] That said, the respondents do acknowledge that in exercising its
powers, the executive branch of government is not exempt from constitutional
scrutiny: Operation Dismantle, above, Khadr above at para. 36.
As the Supreme Court observed in Canada (Attorney General) v. PHS Community
Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 [Insite], once a
government policy choice has been translated into state action, it becomes
reviewable under the Charter: at para. 105.
[486] Indeed, this Court has already found that the exclusion of
individuals from coverage under the IFHP constitutes government action to which
the Charter applies: Toussaint (FC), above at para. 87.
[487] As Justice Zinn also noted in Toussaint (FC), the Supreme
Court held in Singh v. Minister of Employment and Immigration, [1985] 1
S.C.R. 177, [1985] S.C.J. No. 11, that “the word
‘Everyone’ in s. 7 of the Charter … includes every human being who is
physically present in Canada...”: at p. 202. He went on to observe that “[s]uch a broad conception of s. 7 is consistent with the
notion that all human beings, regardless of their immigration status, are
entitled to dignity and the protection of their fundamental right to life,
liberty and security of the person”: Toussaint (FC) above at para. 87.
[488] A number of factors favour a high degree of deference being paid to
governmental policy choices. The Supreme Court has identified a non-exhaustive
list of these factors as including “the prospective
nature of the decision, the impact on public finances, the multiplicity of
competing interests, the difficulty of presenting scientific evidence and the
limited time available to the state”: Chaoulli, above at para. 95.
[489] At the same time, however, as [now Chief] Justice McLachlin stated
in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199,
[1995] S.C.J. No. 68, “... care must be taken not to
extend the notion of deference too far”. Indeed, she went on to observe
that “[d]eference must not be carried to the point of
relieving the government of the burden which the Charter places upon it of
demonstrating that the limits it has imposed on guaranteed rights are
reasonable and justifiable”: at para. 136.
[490] Even though a matter may be “complex,
contentious or laden with social values”, this “does
not mean that the courts can abdicate the responsibility vested in them by our
Constitution to review legislation for Charter compliance when citizens
challenge it”: Chaoulli above, at para. 107. Indeed, it is the
duty of the Courts to ensure that governments “do not
transgress the limits of their constitutional mandate and engage in the illegal
exercise of power”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R.
486 at p. 497, [1985] S.C.J. No. 73, citing Amax Potash Ltd. v. Government
of Saskatchewan, [1977] 2 S.C.R. 576 at p. 590, 11 N.R. 222.
[491] Finally, the Supreme Court has not hesitated to intervene in cases
where it finds that government policy choices in relation to the provision of
health services violate the Charter rights of affected individuals: see, for
example, Chaoulli and Insite.
[492] With this understanding of the role of the Courts in reviewing
actions taken by the executive branch of government, I turn now to consider the
Charter arguments advanced by the parties, starting with their section 7
arguments.
X.
Do the 2012 Changes to the IFHP Violate Section 7
of the Charter?
[493] Section 7 of the Charter provides that “Everyone
has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental
justice”.
[494] I understand the parties to agree that the onus is on the applicants
to prove the violation of constitutional rights: Chaoulli, above at para. 30.
This violation must be proved on a balance of probabilities: Khadr,
above at para. 21.
[495] I also understand it to be common ground that the test to be applied
in determining whether or not there has been a violation of section 7 of
the Charter is the two-part test established by the Supreme Court of Canada in
cases such as Gosselin v. Quebec (Attorney General), 2002 SCC 84 at para. 75,
[2002] 4 S.C.R. 429; Chaoulli, above at paras. 29 and 109, Insite,
above at para. 84, and R. v. Malmo-Levine, 2003 SCC 74 at para. 83,
[2003] 3 S.C.R. 571.
[496] That is, the applicants must demonstrate:
1.
That the government action in issue deprives
individuals of their right to life, liberty, security of the person;
2.
If so, that this deprivation was not carried out
in accordance with the principles of fundamental justice.
[497] The first question, then, is whether the modifications to the IFHP implemented
through the 2012 OICs deprive persons seeking the protection of Canada of their right to life, liberty or security of the person. In addressing this
question, I note that the Supreme Court has held that government action that
interferes with any of these rights will “engage”
this provision of the Charter or constitute a “deprivation”
under section 7: Insite, above at para. 85.
[498] The applicants say that the 2012 modifications to the IFHP have
affected individuals’ section 7 rights to life and to security of the
person. Because those seeking the protection of Canada are generally unable to
afford to pay for medical services, the changes to the IFHP will expose them to
a risk of not having access to basic and necessary health care, which will in
turn put lives and the security of these persons at risk.
[499] The right to security of the person is also implicated in this case,
the applicants say, because of the severe psychological distress caused by
being denied the health insurance coverage that had previously been made
available to those seeking the protection of Canada.
[500] The applicants acknowledge that although the government may not be
prohibiting refugees and asylum seekers from obtaining health care per se,
the government is nevertheless creating a situation of deprivation in which the
lives and the security of the person of vulnerable individuals are being
jeopardized.
[501] According to the applicants, the government should have known that
the vast majority of affected individuals would be unable to pay for health
care or private health insurance. It should, moreover, have also been aware
that philanthropic access to health care for these individuals might not be
consistently and uniformly available to them.
[502] By reducing IFHP health insurance coverage for individuals who
cannot afford to pay for their own health care or for private health insurance,
and for whom alternative avenues of access to health care may be neither
consistent nor satisfactory, the applicants say that the Governor in Council
has effectively erected a barrier to essential health services for refugees and
asylum seekers.
[503] According to the applicants, this constitutes a deprivation of section 7
rights that is at least as serious as the bar to accessing private health
insurance that was found to constitute a section 7 deprivation in Chaoulli.
[504] The applicants further submit that their argument does not require a
finding by this Court that the Government of Canada has a positive duty to
provide state-funded health care to those seeking its protection. Rather, what
they challenge is the withdrawal of a previously available service, which
exposes vulnerable individuals to risks to their lives and to the security of
their persons.
[505] The respondents say that what the applicants are asserting is a
right to state-funded health care under section 7 of the Charter, and that
there is no positive obligation on the Government of Canada to provide health
insurance coverage to those seeking its protection. In support of this
contention, the respondents note that Canadian law to date has overwhelmingly
held that section 7 of the Charter does not create or impose a positive
obligation on the state to provide any necessities to maintain life and the
security of the person.
[506] The respondents recognize that in Chaoulli, the Supreme Court
held that while the Charter does not confer a free-standing constitutional
right to health care, if the government does choose to put a health insurance
scheme in place, it must comply with the Charter.
[507] However, the respondents say that the 2012 OICs do not cause a
deprivation of medical care, nor do they prevent or prohibit access to it.
According to the respondents, it remains open to any refugee, refugee claimant
or failed refugee claimant who is not otherwise eligible for IFHP coverage or
specific services or products under the IFHP to obtain such care, services or
products by other means.
[508] This distinguishes this case from the situation in Chaoulli,
where the question was whether residents of the Province of Québec who were prepared to spend their own money to get speedier access to health care could
be prevented from doing so by the state. As a result, the respondents say that
the rights at issue in this case are economic in nature, and are not protected
by section 7 of the Charter.
[509] Finally, the respondents say that even if there is a deprivation of section 7
Charter rights in this case, the 2012 OICs are not the operative cause of that
deprivation.
[510] As will be explained in the next section of these reasons,
after giving their arguments careful consideration, I have concluded that the
applicants’ section 7 claim must be dismissed as what they seek is to
impose a positive obligation on the Government of Canada to fund health care
for those seeking the protection of Canada. As sympathetic as the applicants’
arguments may be, the law does not currently recognize a section 7 Charter
right to state-funded health care.
A.
Positive Rights and Section 7 of the
Charter
[511] As noted above, a major focus of the respondents’ section 7
argument is their contention that the applicants are essentially seeking to
impose a positive obligation on the Government of Canada to provide state-funded
health care for those seeking the protection of Canada. According to the
respondents, the applicants’ section 7 claim cannot succeed as it is
well-established in Canadian jurisprudence that the Charter does not impose
positive obligations on governments to provide social benefits programs such as
health insurance in order to secure their life, liberty or security of persons.
[512] The question of whether the Charter imposes positive obligations on
governments to provide social benefits programs is one that has generated an
enormous amount of discussion, both in the jurisprudence and in academic circles. Different Courts have,
however, addressed this question at different stages in the section 7
analysis.
[513] For example, it was at the outset of its section 7 analysis
that the Supreme Court held in Chaoulli that there is no “free-standing” constitutional right to health care:
at para. 104.
[514] In contrast, in Bedford, above, the Supreme Court addressed
the question of whether the case involved the assertion of a positive right in
the context of its discussion of whether section 7 rights were engaged and
whether there had been a deprivation of those rights: at paras. 88 and 89.
A similar approach was taken by the Supreme Court in Gosselin, above at para. 81
and by the Ontario Court of Appeal in Wynberg v. Ontario, [2006] O.J.
No. 2732 at paras. 218-225, 82 O.R. (3d) 561.
[515] In contrast, the question of whether the case involved the assertion
of a positive right under section 7 of the Charter was discussed in the
context of the Federal Court of Appeal’s “fundamental justice”
analysis in Toussaint (FCA), above at paras. 76 to 80.
[516] Finally, in New Brunswick (Minister of Health and
Community Services) v. G. (J.), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47 [J.G.],
the Supreme Court addressed the issue of positive rights in the context of its section 1
analysis, and again in relation to the question of remedy.
[517] The respondents’ assertion that the applicants were seeking to
assert a positive section 7 right was a major focus of their section 7
argument. Moreover, the question of whether a claim involves the assertion of a
positive right permeates the entire section 7 analysis, starting with the
question of whether section 7 rights have been engaged. As a consequence, I
will deal with this issue at the outset of my analysis, keeping in mind the
teachings of the jurisprudence mentioned above.
[518] In Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, the
Supreme Court discussed the difference between positive and negative rights,
albeit in the context of a freedom of expression claim under subsection 2(b)
of the Charter. The Court explained that in order “[t]o
determine whether a right claimed is a positive right, the question is whether
the appellants claim the government must legislate or otherwise act to support
or enable an expressive activity”. In contrast, “a
negative right would require the appellants to seek freedom from government
legislation or action suppressing an expressive activity in which people would
otherwise be free to engage, without any need for any government support or
enablement”: at para. 35.
[519] A number of academics have observed that the line between positive
and negative rights is not always a bright one: see, for example, Wilkie &
Zisman Gary, above at p. 38. Professor Jamie Cameron argues that “the distinction between the two is not persuasive”:
at p. 71. Indeed, one commentator has gone so far as to describe the
distinction between positive and negative rights as “highly
artificial”: Cousins, above at p. 725.
[520] Indeed, as Professor Cameron has observed, it can be difficult to
characterize an entitlement as either exclusively positive or exclusively
negative. She cites the example of an accused’s negative right not to be denied
a trial within a reasonable time under subsection 11(b) of the Charter.
She observes that the practical consequence of the Supreme Court’s decision in R.
v. Askov, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106, vindicating a
negative subsection 11(b) right not to be deprived of a trial within a
reasonable time, was nevertheless to compel the government to inject
significant sums of money into the justice system in order to ensure that
timely trials could be provided: at pp. 70-71.
[521] I recognize that Askov was not a section 7 claim. I
note, however, that the Supreme Court’s section 7 decision in Singh,
above, had similar consequences for the refugee determination process.
[522] Indeed, the section 7 jurisprudence has demonstrated that the
fact that a particular claim may involve a request that the government spend
money in a particular way is not necessarily fatal to the claim. For example,
in J.G., the Supreme Court ordered that state-funded legal counsel be
provided in a child welfare case in light of, amongst other things, the
seriousness of the interests at stake and the limited capacity of J.G. to represent
herself: at paras. 75-81.
[523] Similarly, in Inglis v. British Columbia (Minister of Public
Safety), 2013 BCSC 2309, [2013] B.C.J. No. 2708, the British Columbia
Supreme Court recently observed that “the fact that the
state might be required to expend some resources does not transform the claim
into one alleging a positive obligation”: at para. 393.
[524] The respondents rely on a line of cases (cited at para. 103 of
their memorandum of fact and law) which have culminated in the recent decision
of the Ontario Superior Court in Tanudjaja v. Canada (Attorney General),
2013 ONSC 5410, [2013] O.J. No. 4078,
as authority for the proposition that there is no positive obligation on the
Government of Canada to fund social programs such as comprehensive health care
insurance for all IFHP beneficiaries. In the absence of such an obligation, the
respondents say that there can be no violation of section 7 of the
Charter.
[525] The question raised in the Tanudjaja case was whether section 7
of the Charter imposed a positive obligation on governments to provide
affordable, adequate, accessible housing for vulnerable individuals or to take
steps to reduce homelessness.
[526] Unlike the present case, however, Tanudjaja did not involve a
single, discrete decision taken by a government with respect to access to a
particular social program. Rather what was in issue were a series of changes to
legislative policies, programs and services taken over a number of decades, at
both the federal and provincial levels, which allegedly eroded access to
affordable housing. According to the applicants in Tanudjaja, the
combined effect of these changes over the years was to increase homelessness
and violate the section 7 rights of vulnerable individuals.
[527] The Court struck out the application in Tanudjaja as
disclosing no reasonable cause of action and as having no reasonable prospect
of success. In concluding that the application should be struck, the Court
noted that there was no positive obligation on governments under section 7 to
provide affordable, adequate, accessible housing for vulnerable individuals,
nor was it obliged to take steps to reduce homelessness. The Court further held
that the government action at issue in Tanudjaja did not constitute a “decision” that engaged section 7 of the Charter.
[528] The Court was, however, careful to distinguish the Supreme Court’s
decision in Chaoulli. The Court observed in Tanudjaja that in Chaoulli,
the Government of Québec had made “a self contained
decision to disallow the purchase of private insurance”: at para. 33.
It was as a result of this decision that access to timely health care was
limited, thereby breaching section 7 of the Charter.
[529] Like Tanudjaja, a number of the other cases cited by the
respondents involve the sort of broad, values-based social policy questions
that might be better addressed through a Royal Commission than a Charter
challenge.
[530] For example, in Grant v. Canada, [2005] O.J. No. 3796, 77 OR
(3d) 481, the Ontario Superior Court held that section 7 of the Charter
did not impose a positive duty on governments to provide housing. In Lacey
v. British Columbia, [1999] B.C.J. No. 3168, the Supreme Court of British
Columbia held that section 7 did not guarantee a minimum standard of
living and welfare benefits.
[531] In contrast, this case raises a focused question with respect to a
discrete government action, namely the decision of the Governor in Council
reflected in the 2012 OICs to reduce IFHP health care insurance coverage for
the majority of those previously entitled to benefits under the program, and to
eliminate it altogether for those only entitled to apply for a PRRA. As a
consequence, the issue in this case is closer to that in Chaoulli than
the issues that confronted the Courts in Tanudjaja and its predecessors.
[532] Does it necessarily follow from this that the decision of the Governor
in Council engages section 7 Charter rights? A review of the jurisprudence
confirms that it does not.
[533] In Chaoulli, the applicants succeeded in their section 7
challenge to provincial health care legislation in Québec. However, it is
important to note that the Supreme Court was not asked in Chaoulli to require
that the Province of Québec fund specific health services for the applicants.
Rather, what was at issue was a provincial law that limited access to
private health services by prohibiting the individuals from purchasing private
health insurance for those services covered by provincial public insurance.
What the applicants sought was “a ruling that because
delays in the public system place their health and security at risk, they
should be allowed to take out insurance to permit them to access private
services”: para. 103.
[534] In other words, the applicants in Chaoulli were not asking
the Court to order that the government pay for their private health care. As
the Ontario Court of Appeal observed in Wynberg v. Ontario, “on the contrary, they sought the right to spend their own
money to obtain insurance to pay for private health care services”:
above, at para. 222.
[535] In their dissenting opinion in Chaoulli, Justices Binnie and
LeBel warned that basing a positive right to health care on section 7 of
the Charter would require the Courts to weigh in and determine the appropriate
scope of health services and the acceptable length of wait times reasonably
required under the Charter. This would be a very uncomfortable role for the
Courts, as it has long been recognized that decisions as to the setting of
priorities and the allocation of scarce resources are matters not for the
Courts, but for governments.
[536] In Insite, a governmental decision was made not to renew an
exemption from the application of the Controlled Drugs and Substances Act, S.C.
1996, c. 19 that had previously allowed for the operation of safe injection
sites for drug addicts. Once again, the Supreme Court did not find that
there was a positive obligation on the government to fund safe injection sites.
Rather, the Court was satisfied that the Ministerial decision not to renew an
exemption from the application of drug legislation created a risk to health by
preventing access to health care. Consequently, it was the decision to deny the
exemption that led to the deprivation of the right to security of the person in
that case.
[537] It can be argued that in Chaoulli, the Supreme Court ordered
the government not to do something, whereas in Insite, the government
was ordered to do something, namely grant the exemption. Indeed, it has been
suggested that portions of the Supreme Court’s decision in Insite can
arguably be interpreted “as holding that where a
government action will decrease the risk of death and disease, (i.e., ensure
access to health care) and there are no compelling reasons to do otherwise, the
government should take that action, and that the failure to do so may amount to
a breach of the Charter”: Voell, above at p. 12.
[538] There is, however, a world of difference between requiring the state
to grant an exemption that would allow a health care provider to provide
medical services funded by others and requiring the state itself to fund
medical care.
[539] Indeed, the respondents have cited a line of cases dealing with
access to health care services as authority for the proposition that there is
no obligation on governments to fund specific health care services: see, for
example, Flora v. Ontario (Health Insurance Plan, General Manager), 2008
ONCA 538, [2008] O.J. No. 2627; C-W(C) v. Ontario Health Insurance Plan (General
Manager), [2009] O.J. No. 140, 95 O.R. (3d) 48; and Wynberg, above.
These cases are instructive as to the scope of the health-related rights that
have been found to exist based upon section 7 of the Charter.
[540] At issue in Flora was a decision of the Health Services
Appeal and Review Board which upheld OHIP’s refusal to reimburse the appellant
for the $450,000 cost of a liver transplant on the basis that it was not an “insured service” within the meaning of the provincial
Health Insurance Act. The appellant had been diagnosed with liver cancer
and had been told that he was not a suitable candidate for a liver transplant
by Ontario standards. He subsequently underwent transplant surgery in the United Kingdom, surgery which saved his life.
[541]
The Ontario Court of Appeal had to address the
appellant’s claim that his rights to life and
security of the person under section 7 of the Charter
had been violated by the statutory definition of “insured services”, which limited coverage to services that were “generally accepted in Ontario as appropriate for a person in
the same medical circumstances as the insured person”.
[542] That is,
the appellant in Flora contended that the
denial of his OHIP claim deprived him of access to a life-saving medical
treatment, thus violating his section 7 rights to life and security of the
person. Amongst other things, the appellant argued that section 7 of the
Charter imposed a positive obligation on the government to provide life-saving
medical treatment: at para. 93.
[543] The Ontario Court of Appeal concluded in Flora that the
appellant had failed to demonstrate that the law in question constituted a “deprivation” by the state of his right to life or to the
security of his person, and that this was fatal to his section 7 claim: above
at para. 95.
[544] In coming to this conclusion, the Ontario Court of Appeal
distinguished the Supreme Court’s decisions in Chaoulli, R. v.
Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385, and Rodriguez v.
British Columbia, [1993] 3 S.C.R. 519, 107 D.L.R. (4th) 342, on the
basis that, in contrast to the legislative provisions at issue in those cases,
the legislation at issue in the case before it did “not
prohibit or impede anyone from seeking medical treatment”: Flora,
above at para. 101.
[545] Rather, the legislation provided “a defined benefit for out-of-country
medical treatment that is not otherwise available to Ontarians”. It identified this as “the right to obtain public funding for
certain specific out-of-country medical treatments”. The Court held that “[b]y not providing funding for all
out-of-country medical treatments, it does not deprive an individual of the
rights protected by s. 7 of the Charter”: Flora, above at para. 101. See also C-W(C)
v. Ontario Health Insurance Plan, above at para. 100.
[546] The Ontario Court of Appeal expressly addressed the question of
whether the protections afforded by section 7 of the Charter could extend
to require the provision of a minimum level of health care: Flora, above
at paras. 105-109. Noting that this question had specifically been left
open by the Supreme Court in Gosselin, the Court also observed that thus
far, the protection afforded by the Charter had not been extended to cases
involving what the Court in Flora characterized as “solely economic rights”: above at para. 106.
[547] The Ontario Court of Appeal further observed in Flora
that there was no law limiting the appellant’s ability
to spend his own money to obtain a liver transplant at a private hospital in
England, which was, of course, precisely what he had chosen to do: above at para. 107.
[548] The Court concluded that “where - as here - the government elects to
provide a financial benefit that is not otherwise required by law, legislative
limitations on the scope of the financial benefit provided do not violate s. 7”. The Court went on to observe that “[o]n
the law at present, the reach of s. 7 does not extend to the imposition of a
positive constitutional obligation on the Ontario government to fund
out-of-country medical treatments even where the treatment in question proves
to be life-saving in nature”: at para. 108. Consequently, the Court found that the appellant had failed to establish
a deprivation of his right to life or security of his person under section 7
of the Charter: at para. 109.
[549] Similarly, in Toussaint (FCA), the Federal Court of Appeal
observed that claims under section 7 of the Charter seeking to obtain
state funding or financial assistance for necessary medical care had all been
rejected by the Courts, referring specifically to Flora and Wynberg,
above, as well as to the Supreme Court’s decision in Auton (Guardian ad
litem of) v. British Columbia (Attorney General), 2004 SCC 78, at para. 78,
[2004] 3 S.C.R. 657.
[550] Likewise, in Covarrubias v. Canada (Minister of Citizenship and
Immigration), 2006 FCA 365, 354 N.R. 367, an applicant was seeking a
positive Pre-removal Risk Assessment on the basis that he would be unable to
access life-sustaining medical treatment in his country of origin. In rejecting
his appeal, the Federal Court of Appeal found that the appellant was
essentially seeking to expand the law so as to create a new human right to a
minimum level of health care for the purposes of section 97 of IRPA.
[551] The Court observed in Covarrubias that “[w]hile their efforts are noble, the law in
Canada has not extended that far”: at para. 36,
citing Chaoulli for the proposition that there is no freestanding
constitutional right to health care. That being the case, the Federal Court of
Appeal observed that the Supreme Court would be unlikely to contemplate “a freestanding right to health care for all of the people of
the world who happen to be subject to a removal order in Canada”.
[552] The applicants in this case say that they are not asking the Governor
in Council to implement a social benefit program where none previously existed.
They note that the executive branch has, for more than half a century, chosen
to provide health care insurance to those seeking the protection of Canada. It is the decision made by the Governor in Council in 2012 to reduce the level of
benefits available to most IFHP beneficiaries and to eliminate benefits
altogether for others who had previously been entitled to benefits under the
pre-2012 regime that the applicants say is the subject of the section 7
Charter challenge in this case.
[553] Indeed, the applicants concede that there may have been no
obligation on the executive branch to provide health insurance coverage to
those seeking the protection of Canada. However, they say that once it chooses
to do so, it must do so in a manner that complies with the Charter, citing Chaoulli,
above at para. 104.
[554] In support of this contention, the applicants rely on the statement
by the Supreme Court in Eldridge that even though the state may be under
no obligation to provide a benefit, once it elects to do so, the benefit must
be provided “in a non-discriminatory manner”,
and in some circumstances, “this will require
governments to take positive action”: above, at para. 73. See also Auton,
above at para. 41 to the same effect.
[555] I accept that this is so, but this does not mean that the Charter
necessarily imposes an ongoing positive right to a particular level of health
insurance.
[556] It should be noted that the statements in Eldridge and Auton
relied upon by the applicants were made in the context of claims made under section 15
of the Charter, and not under section 7. As will be discussed further on
in these reasons, Courts have been far less reluctant to impose positive
obligations on governments in order to ensure substantive equality.
[557] As previously noted, the applicants assert that what is in issue in
this case is the decision to cut or eliminate the IFHP benefits available to
affected individuals. According to the applicants, it is this change to the program
that makes their claim reviewable under section 7 of the Charter.
[558] The difficulty with this argument is that it has already been
rejected in a number of cases. For example, in Flora, the appellant
argued that the Ontario Legislature’s decision to amend the former version of
the legislation so as to modify the test for OHIP funding for out-of-country
medical services constituted a deprivation of his rights under section 7
of the Charter. However, the Ontario Court of Appeal held that “a Charter violation cannot be grounded on a mere change in
the law”: Flora, above at para. 104, citing Ferrel v. Ontario (Attorney General) [1998] O.J. No. 5074, 42 O.R. (3d) 97 (Ont. C.A.).
[559] In Ferrel, Associate Chief Justice Morden observed that “[i]f there is no constitutional obligation to enact [the
legislation at issue] in the first place, I think that it is implicit, as far
as the requirements of the constitution are concerned, that the legislature is
free to return the state of the statute book to what it was before [the
impugned legislation]”: at p. 110.
[560] The Ontario Court of Appeal came to a similar conclusion in Lalonde
v. Ontario [2001] O.J. No. 4767, 56 O.R. (3d) 505, where the Court held
that “in the absence of a constitutional right that requires
the government to act in the first place, there can be no constitutional right
to the continuation of measures voluntarily taken, even where those measures
accord with or enhance Charter values”: at para. 94.
[561] Similarly, in Masse v. Ontario (Ministry of Community and Social
Services), [1996] O.J. No. 363, 134 D.L.R. (4th) 20, the Ontario Divisional
Court held that no section 7 Charter violation was established where the
provincial government cut welfare benefits by 21.6%: see also Tanudjaja,
above at paras. 38 and 107.
[562] Indeed, Gosselin, above, involved a change made by the
Government of Québec to the provincial social assistance scheme. In an effort
to encourage young people to obtain job training and enter the work force, the
Province decided that the base amount of welfare benefits payable to recipients
under the age of 30 should be lower than those payable to welfare recipients
over the age of 30, unless the younger recipients agreed to participate in a
designated work activity or educational program. In rejecting a Charter
challenge to the legislation, the Supreme Court held that the change effected
by the new legislation did not affect an interest protected by the right to
life, liberty and security of the person guaranteed by section 7 of the
Charter, in the absence of a positive right to an
adequate standard of living.
[563] Consequently, I cannot accept the applicants’ argument that the
exercise of the discretionary power of the Governor in Council in enacting the
IFHP becomes reviewable under the Charter by virtue of the changes that were made
to the Program in 2012.
[564] Like the legislation that confronted the Ontario Court of Appeal in Flora,
there is nothing in the 2012 IFHP that limits the ability of those seeking the
protection of Canada to spend their own money to obtain health care. I fully
recognize that the right of those affected to pay for their own medical
treatment will be a largely illusory one, given the fact that most of those
affected by the 2012 modifications to the IFHP will be economically
disadvantaged individuals.
[565] I would, however, note that in Wynberg, the Ontario Court of
Appeal upheld a limitation on access to publicly-funded treatment for autistic
children through the public school system, even though the Court recognized
that alternative avenues of access to the treatment at issue were likely to be
out of reach for most families.
[566] In so doing, the Court observed that there was no constitutional
obligation on governments to ensure that every school-age autistic child had
access to particular educational services. As a result, the failure of the
Province to provide a particular type of treatment to children over a certain
age, did not amount to depriving those children of a constitutionally-protected
right: see also Sagharian (Litigation guardian of) v. Ontario (Minister of
Education), 2008 ONCA 411, [2008] O.J. No. 2009.
[567] As the Court observed in Wynberg, there was no mandatory
requirement that school-age children attend public school. Parents were free to
seek treatment elsewhere, and there was no
legal impediment to parents educating their
children at home or in private schools. The Court expressly recognized that the
financial realties were such that this may not be a viable option for “many if not most parents”. This financial reality did
not, however, engage section 7 rights that were not otherwise engaged, nor
did it convert a non-section 7 deprivation into a deprivation of section 7
rights: at para. 231.
[568] Finally, the applicants rely on the Supreme Court’s decision in Dunmore
v. Ontario (Attorney General), 2001 SCC 94 at paras. 24-26, 207 D.L.R.
(4th) 193 as authority for the proposition that there are circumstances where
positive action on the part of the state may be required in order to allow
vulnerable claimants access to a Charter-protected right that they could not
otherwise enjoy.
[569] As the applicants note, in Dunmore, the majority decision in
Supreme Court identified three requirements for recognition of such a positive
obligation:
1.
The claim must be grounded in a fundamental
Charter right, not just access to a statutory regime;
2.
There must be an evidentiary foundation that the
claimants must be incapable of accessing this right on their own; and
3.
It must be possible to hold the state
accountable for any inability to exercise a fundamental freedom.
[570] The difficulty for the applicants is, of course, with the first
element of the Dunmore test. That is, they have not established that
there is indeed a right to state-funded health care under section 7 of the
Charter.
B.
Conclusion with respect to the Applicants’ Section 7
Claim
[571] For these reasons I have concluded that the current state of the law
in Canada is that section 7 of the Charter’s guarantees of life, liberty
and security of the person do not include the positive right to state funding
for health care. Consequently, the applicants’ section 7 claim must be
dismissed.
XI.
Do the 2012 Changes to the IFHP Violate Section 12
of the Charter?
[572] Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and
unusual treatment or punishment”.
[573] The applicants accept that the 2012 changes to the IFHP do not
constitute “punishment” as contemplated by section 12
of the Charter. They do, however, assert that the changes to the IFHP
constitute cruel and unusual treatment of a poor, vulnerable and disadvantaged
group by the executive branch of the Canadian government.
[574] The respondents say that the IFHP funds health care “treatment” at
the expense of the state, but that no one in Canada is “subjected” to the IFHP.
The respondents contend that section 12 of the Charter is concerned with
mandatory matters imposed by the state and is in no way analogous to an IFHP
beneficiary’s acceptance of medical “treatment”.
The IFHP does not prevent anyone from obtaining medical care: rather it offers
and funds some health care services for eligible beneficiaries, who can access
them if they choose, at state expense.
[575] As the respondents point out, the threshold for establishing a
breach of section 12 is high: Charkaoui v. Canada (Minister of
Citizenship and Immigration), 2007 SCC 9 at para. 95, [2007] 1 S.C.R.
350. Moreover, as the Ontario Superior Court held at paragraph 24 of McNeill
v. Ontario (Ministry of Solicitor General and Correctional Services),
[1998] O.J. No. 2288, 126 C.C.C. (3d) 466, “[a] program
introduced to comply with a well motivated and properly passed law designed to
meet an entirely worthy social goal, public health, can hardly be found to be
cruel and unusual”.
[576] With this in mind, there are two questions that must be resolved in
determining whether a breach of section 12 of the Charter has been made
out. The first is whether those seeking the protection of Canada are being subjected to “treatment” within the meaning of section 12. The second is
whether any such treatment is “cruel and unusual”.
A.
Do the 2012 Changes to the IFHP Constitute “Treatment”
within the Meaning of Section 12 of the Charter?
[577] The vast majority of the section 12 jurisprudence arises out of
the criminal law, and involves “punishment” rather than “treatment”. As a consequence, there has been limited judicial
consideration of the meaning of “treatment” for the purposes of section 12
of the Charter.
[578] None of the parties have identified a successful section 12
claim made outside of the penal or quasi-penal context. While there has in fact
been at least one such case, it was an early Charter decision and is of limited
assistance here: see Alvero-Rautert v. Canada (Minister of Employment and
Immigration), [1988] F.C.J. No. 8, [1988] 3 F.C. 163 (F.C.T.D.).
[579] The Supreme Court has, however, expressly left open the possibility
that “treatment” may include “that imposed by the state
in contexts other than that of a penal or quasi-penal nature”: Rodriguez,
above at para. 182.
[580] In Chiarelli v. Canada (Minister of Employment & Immigration),
[1992] 1 S.C.R. 711, 2 Admin. L.R. (2d) 125, the Supreme Court observed that
the Concise Oxford Dictionary (1990) defined ‘treatment’ as “a process or manner of behaving towards or dealing with a
person or thing...”. According to the Supreme Court, deportation may “come within the scope of a ‘treatment’ in s. 12”:
at para. 29.
[581] In Rodriguez, the Supreme Court considered what could
constitute “treatment” for the purposes of section 12 of the Charter in
the context of a Charter challenge to the provision of the Criminal Code
that prohibited assisting in a suicide. After referring to its earlier comments
in Chiarelli, the Court observed that “a mere
prohibition by the state on certain action, without more, cannot constitute
‘treatment’ under s. 12”. However, the Court went on to state that by
this it “should not be taken as deciding that only
positive state actions can be considered to be treatment under s. 12; there may
well be situations in which a prohibition on certain types of actions may be
‘treatment’…”: both quotes at para. 182, citations omitted.
[582] The Court went on in Rodriguez to explain that in cases where
a prohibition on certain types of actions may constitute “treatment”, claimants will be “in some
way within the special administrative control of the state”: at para. 182.
It was not enough that Ms. Rodriguez, like all other Canadians, was subject to
the prohibition on assisted suicide contained in the Criminal Code.
Similarly, the fact that the prohibition created particular suffering for her
as a result of her illness did not mean that she had been subjected to “treatment”
by the state.
[583] Indeed the Court was clear in Rodriguez that “[t]here must be some more active state process in operation,
involving an exercise of state control over the individual, in order for the
state action in question, whether it be positive action, inaction or
prohibition, to constitute ‘treatment’ under s. 12”.: at para. 182.
[584] I agree with the applicants that the situation of those seeking the
protection of Canada may be readily distinguished from that of Ms. Rodriguez.
[585] 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. Some claimants may be detained, and obligations such as
reporting requirements may be imposed upon others. In addition, their rights
and opportunities (such as their right to work or their ability to receive
social assistance benefits) may be limited in a number of different ways by the
state. Indeed, their entitlement to a range of benefits is wholly dependent
upon decisions made by various branches of the Government of Canada as to their
right to seek protection, and the ultimate success of their claims for
protection.
[586] Furthermore, Ms. Rodriguez was subject to a law of general
application, albeit one that had an adverse differential impact on her because
of her compromised physical condition.
[587] In contrast, in the present case, the decision to change the IFHP
was not a neutral decision taken by the Governor in Council that has only
incidentally had a negative impact on historically marginalized individuals who
were covered under the former IFHP. Rather, 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.
[588] The respondents explain that “the previous IFHP was perceived by
some as constituting a reason some foreign nationals came to Canada to assert
unfounded claims and also a reason why they sought to remain in Canada for as
long as possible after their claims were rejected…”: Le Bris affidavit, at para. 73.
Indeed, one of the articulated objectives of the 2012 OIC was to deter this
supposed abuse of the refugee system.
[589] 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.
[590] Whether or not this action can be justified by the government in
furtherance of its policy goals is a matter for consideration under section 1
of the Charter. For the purpose of my section 12 analysis, however, this
intentional targeting of a vulnerable, poor and disadvantaged group
distinguishes this case from the usual situation involving the assigning of
priorities and the drawing of lines by government in relation to the
availability of social benefit programs. In the unusual circumstances of this
case, I am thus satisfied that the actions of the executive branch of
government at issue here constitute “treatment” for the purposes of section 12
of the Charter.
[591] While recognizing that foreign jurisprudence is not binding on me, I
would nevertheless note that my conclusion on this point is consistent with the
international jurisprudence. Of particular relevance is the decision of the
British House of Lords in R. v. Secretary of State for the Home Department,
ex parte Adam; R. v. Secretary of State for the Home Department ex parte
Limbuela; R. v. Secretary of State for the Home Department ex parte
Tesema [2005] UKHL 66, (2006) 1 AC 396 [“ex parte Adam”].
[592] Before addressing the ruling in ex parte Adam, it must
first be recognized that it was a case decided under the European Convention
for the Projection of Human Rights and Fundamental Freedoms, as amended by
Protocols Nos. 11 and 14, 4 November 1950, ETS 5, 213 U.N.T.S. 222 [“European
Convention”]. Article 3 of the European Convention prohibits member
states from subjecting persons within their jurisdiction “to torture or inhuman or degrading treatment or punishment”.
[593]
The wording of article 3 of the European
Convention is somewhat different to that of section 12 of the Canadian
Charter. However, when invited to do so, counsel for the respondents was unable
to explain how “torture or inhuman or degrading
treatment or punishment” is materially different from “cruel or unusual treatment or punishment”.
[594] Indeed, in R. v. Smith, [1987] 1 S.C.R. 1045, [1987] 1
S.C.J. No. 36, the Supreme
Court of Canada observed that article 3 of the European Convention provides
protection against cruel or inhuman punishment that is “similar”
to that provided under section 12 of the Charter. The Court further noted
that this, and other international instruments with comparable provisions, “may on occasion be of assistance in attempting to give
meaning to relevant provisions of the Charter”: at paras. 25 and 26. See also United
States of America v. Burns, 2001 SCC 7 at para. 5, [2001] 1 S.C.R.
283.
[595] Ex parte Adam involved a
challenge to a British law that disqualified asylum seekers who were deemed to
have delayed in filing their applications for asylum from receiving government
support in most cases. According to Lord Bingham, the legislation at issue
prohibited the Secretary of State “from providing or
arranging for the provision of accommodation and even the barest necessities of
life for such an applicant”: at para. 6.
[596] The question for determination by the House of Lords was whether the
regime imposed on late claimants amounted to “treatment” within the meaning of
article 3 of the European Convention.
[597] In concluding that it did, the House of Lords started its analysis
by identifying the concerns that had given rise to the legislative change in
issue. These concerns bear a striking resemblance to those identified by the
respondents’ affiants in this case as motivating the 2012 changes to the IFHP.
[598] In his reasons, Lord Bingham explained that there had been a sharp
rise in the number of applications for asylum that had been made in the United
Kingdom over the last decade, and that this had “given
rise to a number of administrative and other problems”: at para. 2.
He went on to observe that:
The legislative response of successive
governments has been founded on two premises in particular: that while some of
the applications are made by genuine refugees, having a well-founded fear of
persecution in their home countries, a majority are not but are made by
so-called economic migrants, applicants seeking a higher standard of living
than is available in their home countries; and that the UK is an attractive
destination for such migrants because it treats, or is widely believed to
treat, such applicants more generously than other countries: at para. 2.
[599] In order to address this latter concern, legislation had been
enacted to limit the access of asylum claimants to public funds in order to “reduce the burden on the public purse; to restrict public
support, so far as possible, to those who both need and deserve it; to mitigate
the resentment widely felt towards unmeritorious applicants perceived as
battening on the British taxpayer”: at para. 2.
[600] As in this case, a further objective of the legislation at issue in ex
parte Adam was “to discourage the arrival
here of economic migrants by dispelling the international belief that
applicants for asylum are generously treated”. Lord Bingham noted,
however, that the legislative policy choices underlying the statutory provision
in question were not at issue before the Court: at para. 2.
[601] While there may be no general public duty to provide for the
destitute under Article 3 of the European Convention, Lord Bingham
stated that he had “no doubt that the threshold [for establishing an Article 3 claim] may be
crossed if a late applicant with no means and no alternative sources of
support, unable to support himself, is, by the deliberate action of the
state, denied shelter, food or the most basic necessities of life”: at para. 7 [my emphasis].
[602] An alternative test for the existence of “treatment” can be found in
the judgments of Lords Hope and Brown in ex parte Adam, where both Law
Lords held that in determining whether “treatment” has occurred, the focus
should be on whether the government could be held responsible for the
applicant’s suffering, rather than on whether the conduct in issue constituted
positive or negative state action.
[603] In concluding that the regime imposed on refugee claimants who filed
their claims late amounted to “treatment” within the meaning of Article 3 of
the European Convention, Lord Hope noted that “[t]he
imposition by the legislature of a regime which prohibits asylum seekers from
working and further prohibits the grant to them, when they are destitute, of
support amounts to positive action directed against asylum-seekers and not to
mere inaction. This constitutes ‘treatment’ within the meaning of the article”:
at para. 56.
[604] Lord Scott noted in ex parte Adam, albeit in obiter
and by way of illustration, that a bar from receiving health care services
under the national health care service would constitute “treatment” under
article 3 where the government provides such services and determines
entitlement to them, even where it is not required to do so. He noted that “[i]t could not, in my opinion, sensibly be argued that a
statutory bar preventing asylum seekers, or a particular class of asylum
seekers, from obtaining NHS treatment would not be treatment of them for
article 3 purposes”: at para. 69.
[605] I recognize that there is no express statutory bar contained in the
IFHP preventing asylum seekers, or a particular class of asylum seekers, from
obtaining medical treatment. The Governor in Council has, however, deliberately
cut access to health insurance coverage in order to achieve a similar goal to
that of the legislation at issue in ex parte Adam, namely to
deter “bogus” refugee claimants from seeking the protection of Canada.
[606] Moreover, as was discussed earlier in these
reasons, the practical effect of the 2012 cuts to the coverage provided by the
IFHP is to limit or prevent access to a range of health care to those seeking
the protection of Canada as a result of the combined effect of the
impecuniosity of the majority of IFHP beneficiaries and the uncertain and
unsatisfactory nature of the alternative sources of health care that were
identified by the respondents.
[607] Furthermore, as was the case in ex parte Adam, at
least some of those seeking the protection of Canada are statutorily prohibited
from working. In this regard it will be recalled that refugee claimants from
DCO countries are not entitled to receive a work permit for the first 180 days
that they are in Canada. Others, such as privately-sponsored refugees, are
banned from going on social assistance for their first year in Canada. These statutory bars further inhibit the ability of affected individuals to access
health care, through provincial or private health insurance schemes or by
self-funding, thereby exacerbating the impact of the 2012 changes to the IFHP.
[608] There has, moreover, been express government action limiting the
health care coverage to some classes of individuals affected by the 2012
changes to the IFHP, and eliminating it altogether for others. For instance,
subsection 4(3) of the April 2012 OIC states that the “Minister is not
authorized to pay the cost of health care coverage incurred for refugee
claimants who are nationals of a country that is, when services or products are
provided, [a] designated [country of origin]”. This has been done, to quote
Lord Bingham, “by the deliberate action of the state”,
in order to make the lives of a vulnerable, poor and disadvantaged group even
more difficult.
[609] This is precisely the kind of “more active state process”
contemplated by the Supreme Court of Canada in Rodriguez that constitutes
“treatment” under section 12 of the Charter.
[610] As a result, in the unusual circumstances of this case, I am
prepared to find that the decision of the Governor in Council to limit or
eliminate a benefit previously provided to a discrete minority of poor, vulnerable
and disadvantaged individuals coming within the administrative control of the
Government of Canada subjects these individuals to “treatment” for the purposes
of section 12 of the Charter.
[611] The next question, then, is whether this treatment is “cruel and
unusual”.
B.
Are the 2012 Changes to the IFHP “Cruel and
Unusual” within the meaning of Section 12 of the Charter?
[612] In R. v. Smith, above, the Supreme Court established the test
to be applied in determining when a treatment or punishment will be found to
have violated section 12 of the Charter. The Court held that “in its modern application, the meaning of ‘cruel and unusual
treatment or punishment’ must be drawn ‘from the evolving standards of decency
that mark the progress of a maturing society’”: at para. 83, citing
Trop v. Dulles (1958), 356 U.S. 86 at p. 101, 78 S. Ct. 590.
[613] The Court concluded in R. v. Smith that “cruel and unusual”
treatment or punishment is that which is “so excessive
as to outrage [our] standards of decency”: above at para. 83.
[614] In determining whether treatment or punishment is “cruel and
unusual”, Canadian courts have looked at a number of factors as part of a kind
of ‘cost/benefit’ analysis. These factors include whether the treatment goes
beyond what is necessary to achieve a legitimate aim, whether there are
adequate alternatives, whether the treatment is arbitrary and whether it has a
value or social purpose. Other considerations include whether the treatment in
question is unacceptable to a large segment of the population, whether it accords with public standards of decency or propriety,
whether it shocks the general conscience, and whether it is unusually severe
and hence degrading to human dignity and worth: R. v. Smith, above at para. 44.
[615] With respect to the question of whether the treatment goes beyond
what is necessary to achieve a legitimate aim, as will be discussed in greater
detail in the context of my section 1 analysis, while deterring abuse of
the refugee system is a legitimate goal, it has not been shown that the 2012
changes to the IFHP are necessary to achieve the government’s aims.
[616] The modifications to the IFHP are part of a comprehensive package of
changes that have been made to the Canadian refugee process over the last
several years. These changes include faster processing times and removals,
temporal restrictions on access to the PRRA and H&C processes, the
introduction of the DCO list and a summary claims process for claimants from
DCO countries, as well as other measures that have been taken by the Government
of Canada. Early evidence indicates that these changes have reduced the overall
amount of time that refugee claimants spend in Canada relying on IFHP insurance
coverage, thereby reducing the overall cost of the program.
[617] There is, however, no persuasive evidence to show that the changes
to the eligibility and coverage provisions of the IFHP have served to deter
unmeritorious claims, thereby reducing the cost of the program. While the
respondents have provided information regarding the overall reduction in
refugee claims following the recent changes to the refugee process, there has
been no attempt to identify how much of a reduction in refugee claims, if any,
is actually attributable to the cuts to the IFHP, as opposed to the other
changes that have been made to the refugee determination process. As a
consequence, it cannot be said that the 2012 changes to the IFHP were necessary
to achieve a legitimate aim.
[618] The cuts to the IFHP are also somewhat arbitrary. Funding for
medical care is being allocated in accordance with factors that are completely unrelated
to the health needs of those seeking the protection of Canada. While the respondents initially asserted that the program had been “tailored
to meet the [needs of] specific subgroups of beneficiaries who get benefits
under the IFH[P]”, when asked to explain how this was, it was conceded
that the program does not in fact respond to the health needs of the various
classes of individuals covered under the program: Transcript, Vol. 2, pp.
187-190.
[619] Moreover, as counsel for the applicants pointed out by way of
illustration, under the 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.
[620] The changes to the IFHP have limited social value. While cutting the
level of benefits provided may result in a cost savings to taxpayers (at least
at the federal level), they do not make health care any more accessible to Canadians.
Nor do they address an inequity in the health care system between Canadians and
refugees and asylum seekers - one of the stated objectives of the changes -
because no such unfairness existed in the first place.
[621] Again, as will be explained in greater detail in the context of my section 1
analysis, there was nothing inherently unfair about providing those seeking the
protection of Canada (who are admittedly predominately low-income individuals)
with a comparable level of health insurance coverage to that provided to
low-income Canadians. It is, moreover, difficult to see how it is any fairer to
Canadians to provide low-income refugees and asylum seekers with a comparable
level of health care to that available to working Canadians who are not on social
assistance.
[622] Similarly, it is difficult to see how it is any fairer to Canadians
to only provide PHPS coverage to refugee claimants from DCO countries. Nor is
it apparent how it is any fairer to Canadians to deny any health care insurance
coverage whatsoever to those only entitled to a PRRA. Indeed, one has to ask
how fair it is to Canadians to deny insurance coverage to PRRA-only claimants
for the diagnosis and treatment of infectious diseases that potentially present
a risk to the health and safety of the Canadian public.
[623] While I have insufficient evidence before me to make a finding in
this regard, I would also note that there is a real question as to whether the
cuts to the IFHP will in fact achieve any real cost savings to taxpayers -
another stated objective of the changes - or whether the costs of providing
medical care to those seeking the protection of Canada are simply being
downloaded to the provinces and others.
[624] The next question is whether the 2012 changes to the IFHP are
unacceptable to a large segment of the population. As was noted earlier, the
cuts to the IFHP were met with considerable consternation on the part of
provincial governments, groups involved in providing health care and other
forms of assistance to those seeking the protection of Canada, and newspaper editorial writers.
[625] Some 21 national medical organizations, including the Canadian
Medical Association, the Royal College of Physicians and Surgeons, the College
of Family Physicians of Canada, the Canadian Association of Midwives, the
Canadian Psychiatric Association, the Canadian Paediatric Society, the Public
Health Physicians of Canada and the Canadian Association of Emergency
Physicians offered statements expressing concerns with respect to the cuts to
the IFHP. As an editorial in the Calgary Herald observed, “it’s rare that doctors are so outspoken on political
matters”.
[626] A group of these organizations also wrote to the Minister of
Citizenship and Immigration on May 18, 2012 decrying the pending changes to the
IFHP. Amongst other things, the organizations observed that by failing to
provide “upfront health services” there was a
risk that undiagnosed and untreated medical conditions would result in
increased medical complications, as well as future health care costs. In
addition, the failure to address medical concerns would make it more difficult
for newcomers to Canada to learn new languages, attend school or enter the job
market.
[627] In a June 6, 2012 letter to the Minister of Citizenship and
Immigration, the Canadian Psychiatric Association asked “[h]ow are we to tell a woman with PTSD that she can no
longer receive an anti-depressant or an anxiolytic to help her cope with the
effects of trauma?” The letter goes on to ask “[h]ow
should we tell a recently arrived mother fleeing from danger and suffering from
depression that neither she nor her child are eligible for care, simply because
of their country of origin?”
[628] A group of health professionals at the McGill University Department
of Psychiatry noted their concerns with the changes, observing that, “for example, a rape victim from a Designated Country of
Origin suffering from severe depression would not be entitled to either health
care or anti-depressant medication unless she is viewed as a threat to others”.
[629] The City of Toronto’s Medical Officer of Health observed that “[r]efugees are an already marginalized group, facing health
risks, barriers to access, and difficult and traumatic pre-migration
experiences”. Similar concerns were also expressed by the Ontario
Medical Association, University of Toronto Department of Psychiatry, the
Canadian Healthcare Association, the Catholic Health Alliance of Canada, the
Public Health Association of British Columbia, and the Wellesley Institute.
[630] Provincial governments also expressed serious concerns with respect
to the changes to the IFHP. For example, as was mentioned earlier, shortly
before the 2012 IFHP came into effect the Ontario Minister of Health and Long
Term Care wrote to the federal Ministers of Health and Immigration, accusing
the Government of Canada of having “abdicat[ed] its
responsibility towards some of the most vulnerable in our society”.
[631] The Ontario Health Minister stated that by denying coverage for
medications and early health care interventions, people would not seek medical
care until they were in need of emergency treatment. She added that in addition
to causing “needless pain and suffering”, the
failure to treat conditions “will exacerbate the future
health care needs [of affected individuals]” and has “effectively downloaded federal costs onto the provincial
health care system”.
[632] It will also be recalled that Premier Brad Wall of Saskatchewan was
quoted in the newspaper in relation to Mr. Akhtar’s case, stating that “[i]t’s unbelievable … [t]he decisions that have been taken
federally have been having this impact on people who are clearly the most
vulnerable”.
[633] Premier Wall went on to say that he did not understand the
government’s decision, observing that “it is very much
part of Canadian values and Saskatchewan values to want to make sure that these
people, who are obviously very vulnerable, especially if they have a medical
issue that they developed either before or after they came here, that we help
them”.
[634] Newspaper
editorials from across the country also decried the changes to the IFHP. A
number of these editorials questioned whether any real saving to the taxpayer
would be realized as a result, or whether costs would simply be downloaded to
the provinces. More importantly for our purposes, they questioned the humanity
of subjecting already disadvantaged and vulnerable individuals to this kind of
treatment, describing it in one case as “needlessly punitive”: Applicants’ Compendium, at p.
838.
[635] There is, thus, substantial evidence before me, not just of
philosophical differences with a government policy choice, but of real outrage
on the part of informed, affected individuals and groups at what has been done
through the 2012 changes to the IFHP. While this is by no means determinative,
it is a strong indication that the cuts to the IFHP are unacceptable to at
least a segment of the Canadian population and do not, in the view of these
individuals and organizations, accord with public
standards of decency or propriety.
[636] I am, moreover, satisfied that the effects of the 2012 changes to
the IFHP are indeed “cruel and unusual” in terms of their impact on affected
individuals.
[637] While the negative impact of the 2012 changes to the IFHP is by no
means felt exclusively by the children of those seeking the protection of Canada, the cruelty of the changes to the IFHP is especially evident insofar as they affect
children.
[638] To the extent that the 2012 changes to the IFHP were intended to act
as a deterrent to so-called “bogus” claims, it
must be recognized that children ordinarily have no choice in where they live:
this is a matter that will be determined by the adults in their lives. Children
are thus the innocent victims of world events and family choices.
[639] Nevertheless, the ability of these children to access health care
has been severely curtailed by the Governor in Council in its attempt to deter
their parents and others from coming to Canada and seeking the protection of
this country.
[640] Indeed, the effect of the 2012 changes to the IFHP is to take away
insurance coverage for pediatric health care for certain children who are in Canada seeking the protection of this country. Some children will only have insurance
coverage for conditions that endanger the public health and safety of
Canadians, and others will have no insurance coverage whatsoever for any
form of health care.
[641] The applicants’ witnesses have provided evidence with respect to the
impact of the 2012 changes to the IFHP on children seeking the protection of Canada. While I have found that the evidence surrounding certain of these cases to be
lacking, I note that section 12 jurisprudence permits the use of
reasonable hypothetical examples to demonstrate constitutional deficiencies:
see, for example, R. v. Goltz, [1991] 3 S.C.R. 485 at para. 69,
[1991] S.C.J. No. 90. See also R. v. Wiles, 2005 SCC 84 at para. 5,
[2005] 3 S.C.R. 895, R. v. Mills, [1999] 3 S.C.R. 668 at para. 41,
[1999] S.C.J. No. 68.
[642] A “reasonable hypothetical example”
is one which is “not far-fetched or only marginally
imaginable as a live possibility”. It must not involve “remote or extreme examples”, but must instead “focus on imaginable circumstances which could
commonly arise in day-to-day life”: Goltz, above. See also R.
v. Wiles, above, R. v. Mills, above.
[643] With this in mind, the following examples serve to illustrate the cruelty
of the government’s policy choice insofar as it relates to children.
[644] It will be recalled that the recipients of HCC benefits include
refugee claimants from non-DCO countries, refugees, successful PRRA applicants,
most privately-sponsored refugees, and all refugee claimants whose claims were
filed before December 15, 2012, regardless of the claimant’s country of origin.
[645] HCC provides health insurance coverage for medical services of an
urgent or essential nature. It does not, however, cover the cost of
medications, even if they are required for life-threatening conditions, unless
they are required to prevent or treat a disease posing a risk to public health
or to treat a condition that is a public safety concern.
[646] As a result, a refugee-claimant child with asthma may be able to
access emergency room treatment for an acute asthma attack, but could later be
left gasping for breath if his impoverished refugee claimant parents could not
afford the cost of the child’s asthma medication.
[647] A child with difficulties hearing might receive coverage for a
hearing assessment, but may be left hearing impaired if his parents could not
afford the cost of a hearing aid. This could impact on the child’s ability to
attend school, and have long-term consequences for the child’s development.
[648] The situation is far worse for children brought to Canada by their parents from Designated Countries of Origin whose refugee claims were filed after
December 15, 2012. It will be recalled that these children are only entitled to
Public Health or Public Safety Health Care Coverage. PHPS coverage only insures
those health care services and products that are necessary or required to
diagnose, prevent or treat a disease posing a risk to public health, or to
diagnose or treat a condition of public safety concern.
[649] As a consequence, a child screaming in pain because of an ear
infection would not be entitled to funding for any medical care whatsoever,
because an ear infection is not a condition that poses a risk to public health
or safety. While the child’s parent’s might be able to have the child seen by a
doctor through a hospital emergency room, no health insurance coverage would be
available to assist with the cost of the antibiotics that would be required to
treat the infection.
[650] In his affidavit, Dr. Rashid described the case of a young child
with a fever and cough who was unable to get a chest x-ray to rule out
pneumonia - a potentially life-threatening illness - because the child only had
PHPS coverage.
[651] Dr. Caulford described the case of an asthmatic 8 year old from Africa who began coughing and wheezing more severely because his mother could no longer
afford medical care and asthma medications after his IFHP coverage was reduced
to the PHPS level following the rejection of the family’s refugee claim:
Caulford affidavit at para. 17.
[652] Similarly, the young girl from a DCO country who has been
traumatized by sexual or gang violence in her country of origin would not be
entitled to health insurance coverage for any kind of mental health care if she
becomes suicidal, as medical care is not available to the child whose mental
health condition only poses a risk to the child herself. Once again, emergency
hospital care might be available to deal with a suicide attempt, but no
insurance coverage would be available for the ongoing psychiatric treatment and
medications that could assist in allowing the traumatized child to recover.
[653] Finally, it will be recalled that children who are only entitled to
a PRRA are not entitled to any medical care whatsoever, even if they have a
health condition that poses a risk to the public health and safety of
Canadians.
[654] Thus a young child infected at birth with HIV would have no right to
insurance coverage for any kind of medical treatment, effectively condemning
the child to an early death.
[655] Not only would a child with active tuberculosis be ineligible for
insurance coverage to cover the cost of his or her diagnosis and treatment, the
child could also potentially expose family members, friends, teachers and
classmates to the disease.
[656] I recognize that many of the situations that could result in
claimants only being entitled to a PRRA, such as past involvement in war
crimes, are unlikely to arise in the case of children. However, children could
find themselves in this position if their parents fail to file their refugee
claims in a timely manner, whether it be as a result of ignorance or bad
advice: see IRPA subsection 99(3).
[657] A child could also find him or herself in this position if the
child’s parent has previously made an unsuccessful refugee claim on behalf of
the family: see, for example, Canada (Minister of Citizenship and
Immigration) v. Toledo, 2013 FCA 226, 454 N.R. 139.
[658] As the Federal Court of Appeal observed in Toledo, children
do sometimes have to live with the consequences of their parents’ actions: at para. 67.
It is, however, one thing to say that a child has to live with the procedural
consequences of his parents’ choices, insofar as they relate to access to the
refugee determination process. It is quite another thing to say that children
should be exposed to unnecessary pain and suffering, potentially putting their
very lives at risk, because of choices made by their parents.
[659] As was noted earlier in discussing Canada’s international
obligations, Canada has recognized its obligations with respect to children,
most particularly in the Convention on the Rights of the Child. While
this Convention has not been incorporated into Canadian law, the respondents
accept that it is nevertheless a valuable interpretive aid in determining
whether there has been a breach of the Charter.
[660] It will also be recalled that Article 6(2) of the Convention on
the Rights of the Child requires Canada to act in the best interests of
children, and codifies its obligation as a signatory to ensure to the maximum
extent possible, the survival and development of children. The treatment of
children described in the preceding paragraphs does not, in my view, conform to
this standard.
[661] Moreover, Canada’s own domestic law recognizes that the best
interests of children should always be taken into account, and contemplates the
exercise of parens patriae jurisdiction where necessary to ensure that
the interests of children are protected. In Baker, above, the Supreme
Court of Canada recognized that the interests and needs of children, including
non-citizen children, are important factors that must be given substantial
weight, as they are central humanitarian and compassionate values in Canadian
society: at paras. 67 and 70.
[662] 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.
[663] I fully accept that amongst those who arrive here ostensibly seeking
the protection of Canada there will inevitably be some who are not refugees at
all, but economic migrants who are attempting to use the refugee system as a
back door into this country. There will be others who file refugee claims in an
attempt to achieve family reunification in Canada.
[664] Be that as it may, it is surely antithetical to the values of our
Canadian society to visit the sins of parents on their innocent children.
[665] While recognizing that it is not binding on me, the words of the
Supreme Court of the United States in Plyler v. Doe, 457 U.S. 202, 102
S. Ct. 2382 (1982) on this point are nevertheless apposite.
[666] In Plyler v. Doe, the United States’ Supreme Court struck
down a state statute denying funding for the education of the children of
illegal immigrants. In so doing, the Court stated that the children in question
were “special members” of the underclass of
illegal immigrants. The Court went on to observe that while “[p]ersuasive arguments support the view that a State may
withhold its beneficence from those whose very presence within the United
States is the product of their own unlawful conduct. These arguments do not
apply with the same force to classifications imposing disabilities on the minor
children of such illegal entrants”: at pp. 219-20.
[667] While recognizing that those who elect to enter the United States illegally should be prepared to bear the consequences of their actions, the
Court held that the children of illegal immigrants are not comparably situated.
It went on to observe that “[e]ven if the State found
it expedient to control the conduct of adults by acting against their children,
legislation directing the onus of a parent’s misconduct against his children
does not comport with fundamental conceptions of justice”: at p. 220.
[668] Citing its earlier decision in Weber v. Aetna Casualty &
Surety Co., 406 U.S. 164, 175 (1972), the Court stated that “visiting … condemnation on the head of an infant is
illogical and unjust. Moreover, imposing disabilities on the … child is
contrary to the basic concept of our system that legal burdens should bear some
relationship to individual responsibility or wrongdoing. Obviously, no child is
responsible for his birth and penalizing the … child is an ineffectual - as
well as unjust - way of deterring the parent”: at p. 220, my
emphasis.
[669] There is an important distinction between the children in Plyler
v. Doe and the children affected by the 2012 changes to the IFHP: the
children in this case are generally not in this country illegally. With
that caveat, the same point may be made in this case. 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.
[670] The cruelty of the 2012 changes to the IFHP is not, however, limited
to children. Because pregnancy is not a condition that poses a risk to public
health or public safety, the pregnant victim of sexual violence from a DCO
country will have no coverage for prenatal or obstetrical care, potentially
putting the lives of both mother and baby at risk: see CIC’s “Interim Federal Health Program Reform: Examples of
Coverage for Selected Conditions”, at p. 5.
[671] Similarly, no health insurance coverage will be available for a
refugee claimant from a DCO country who is having a heart attack: CIC’s “Interim Federal Health Program Reform: Examples of
Coverage for Selected Conditions”, at p. 6.
[672] It is no answer to say, as the respondents suggest, that claimants
from DCO countries can simply get health care in their countries of origin. If
that is indeed the case, one has to wonder how the availability of health
insurance coverage in Canada under the pre-2012 IFHP would have operated as a “pull factor” in the first place.
[673] More fundamentally, however, for some claimants from DCO countries,
returning home is simply not an option. The respondents have conceded that not
every refugee claimant from a DCO country will be making an unfounded claim. At
the hearing, the respondents expressly accepted that there can and will be bona
fide refugee claims from all of the countries that have been identified as
Designated Countries of Origin: Transcript, Vol. 2, at pp. 170-171.
[674] Recognizing that this is the case, the respondents’ argument actually
demonstrates that it is the DCO claimants who cannot return home - those who
really are genuine refugees - who are the ones most severely hurt by the cuts
to their insurance coverage resulting from the 2012 changes to the IFHP.
[675] Nor is it an answer to say that alternative sources of health care
are available to those seeking the protection of Canada, including claimants
from DCO countries. As I previously found, it is theoretically possible that
such individuals may purchase such care, services or products themselves, or
may purchase private medical insurance to cover this type of expenses. However,
as a practical matter, this will be beyond the reach of most of those affected
by the 2012 changes to the IFHP, given their extreme economic deprivation.
[676] Indeed, the observations of the trial judge in Chaoulli that,
in light of the costs involved, the economic barriers in that case were so
closely related to the possibility of gaining access to healthcare that access
to private care was illusory, have similar application here.
[677] Moreover, as was explained earlier in these reasons, there are
numerous shortcomings in all of the alternate sources of health care identified
by the respondents. They are uncertain and not always timely. Indeed, in some
cases, the treatment prescribed by doctors has simply been unavailable to
patients.
[678] I have also concluded that forcing individuals to rely on the
charity of others is not a reliable or appropriate alternate source of medical
care for affected individuals, and that it is demeaning to require desperately
ill people to go begging for essential medical treatment.
[679] Nor do the respondents’ proposed alternatives take into account the
psychological harm inflicted on individuals with serious health conditions as a
result of their uncertain or limited access to medical treatment.
[680] Refugee claimants from non-DCO countries also face potentially
devastating consequences as a result of the 2012 cuts to the IFHP.
[681] It will be recalled that Mr. Akhtar came to Canada from Pakistan, a non-DCO country, and was waiting for his refugee hearing when he was
diagnosed with an aggressive form of lymphoma. Mr. Akhtar and others
described “awful” psychological distress that he
felt being alone in a strange country, having just been diagnosed with an
aggressive cancer, and not knowing whether or not he would be able to get the
chemotherapy treatments on which his life depended.
[682] The cruelty of the 2012 changes to the IFHP is also evident as it
relates to Mr. Ayubi. As a failed refugee claimant, Mr. Ayubi only
had Public Health or Public Safety coverage after June 30, 2012 until May of
2013, when the Minister exercised his discretion under section 7 of the
2012 IFHP to provide him with discretionary IFHP coverage. Mr. Ayubi still
does not, however, have insurance coverage for the cost of his medications.
[683] Mr. Ayubi is, however, effectively trapped in this country as
he cannot safely return to Afghanistan. Indeed, through the imposition of a
moratorium on removals to Afghanistan, the Government of Canada has itself
recognized that it is simply too dangerous to allow for the repatriation of
Afghan citizens.
[684] As a diabetic, Mr. Ayubi has a life-threatening illness. He is
trying to work. He pays his taxes. Nevertheless, he never knows from one day to
the next whether he will be able to get the insulin upon which his survival
depends. He has already suffered at least one health crisis as a result of his
lack of access to necessary medications, and he is now dependent on the charity
of others.
[685] Mr. Garcia Rodrigues also suffered great stress and came very
close to losing the vision in his eye, because of his lack of insurance
coverage. Indeed, it was only as a result of the kindness of Dr. Wong that
Mr. Garcia Rodrigues’ vision was saved.
[686] In Smith, the Supreme Court of Canada identified the question
of whether state action is degrading to human dignity and worth as being
another factor to consider in determining whether a treatment is cruel and
unusual: above at para. 44.
[687] Access to health care is recognized as being at the core of the
preservation of human dignity: see, for example, Chaoulli, above at
para. 241.
[688] As I have already found, putting individuals affected by the 2012
cuts to the IFHP such as Mr. Ayubi, Mr. Garcia Rodrigues and Mr. Akhtar
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.
C.
Conclusion with Respect to Section 12 of
the Charter
[689] For these reasons, I have concluded that while is it open to
government to assign priorities and set limits on social benefit plans such as
the IFHP, the intentional targeting of an admittedly poor, vulnerable and
disadvantaged group takes this situation outside the realm of ordinary Charter
challenges to social benefit programs.
[690] With the 2012 changes to the IFHP, the executive branch of the
Canadian government has set out to make the lives of disadvantaged individuals
even more difficult than they already are in an effort to force those who have
sought the protection of this country to leave Canada more quickly, and to
deter others from coming here. In light of the unusual circumstances of this
case, I am satisfied that the affected individuals are being subjected to “treatment” as contemplated by section 12
of the Charter.
[691] I am also satisfied that this treatment is “cruel
and unusual”, particularly, but not exclusively, as it
affects children who have been brought to this country by their parents. The
cuts to health insurance coverage effected through the 2012 modifications to
the IFHP potentially jeopardize the health, 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.
XII.
Do the 2012 Changes to the IFHP Violate Section 15
of the Charter?
[692] Subsection 15(1) of the Charter provides that “[e]very individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability”.
[693] Subsection 15(1) is, however, qualified by subsection 15(2),
which provides that “[s]ubsection (1) does not
preclude any law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability”.
[694] The applicants assert that the 2012 changes to the IFHP create a
health care hierarchy whereby the lives of some refugees and refugee claimants
- a historically disadvantaged group whose presence is anticipated and
authorized by Canadian law - are deemed less worthy of public protection. This,
the applicants say, amounts to discrimination under section 15 of the
Charter.
[695] The applicants assert that the 2012 changes to the IFHP violate section 15
of the Charter in two ways. First, the 2012 OICs draw a distinction between
classes of refugee claimants based upon their country of origin. They provide a
lower level of health insurance coverage to individuals coming from DCO countries
than is provided to refugee claimants coming from non-DCO countries. According
to the applicants, this constitutes discrimination on the basis of national or
ethnic origin.
[696] The applicants also submit that the 2012 IFHP draws a distinction
between individuals who are lawfully in Canada for the purpose of seeking
protection, and other legal residents in Canada who are provided with health
insurance benefits by the government. Under the 2012 IFHP, individuals legally
in Canada such as Mr. Ayubi and Mr. Garcia Rodrigues are now
prevented from obtaining the same level of health benefits as other legal
residents in Canada.
[697] According to the applicants, this distinction in entitlement to
health benefits is based upon the analogous ground of immigration status.
[698] The respondents deny that there has been any violation of section 15
of the Charter on the basis of either the national or ethnic origin or the
immigration status of IFHP beneficiaries.
[699] According to the respondents, the 2012 changes to the IFHP do not create
a distinction on the basis of the national origin of IFHP beneficiaries because
any distinction that may be made arises out of the provisions of the Immigration
and Refugee Protection Act. The respondents further note that a multitude
of countries have been designated as Designated Countries of Origin, arguing
that any distinction that may be made between foreign nationals of diverse
origins does not constitute discrimination on the basis of “national or ethnic origin”.
[700] If there is any unequal treatment in treating refugee claimants from
DCO countries differently from others seeking the protection of Canada, the respondents say that the distinction creates an advantage in that it
provides access to state-funded health insurance, and not a disadvantage.
[701] Further, by granting DCO claimants a level of state-funded health
care benefits, the respondents submit that the Governor in Council is not “perpetuating prejudice or stereotyping”. Rather, the executive
branch is recognizing that even though refugee claimants from these countries
are generally coming from safe, “non-refugee producing”
nations with health care systems that are comparable to that of Canada, they are deserving of a minimum level of state-funded health care while they are in Canada making a refugee claim.
[702] Insofar as the applicants’ arguments regarding alleged
discrimination on the basis of immigration status are concerned, the
respondents submit that “immigration status” has
clearly been rejected by the Courts as an analogous ground for the purposes of section 15
of the Charter. As a consequence, the applicants have failed to establish that
there is a “distinction” resulting from 2012
changes to the IFHP that would engage the provisions of subsection 15(1)
of the Charter.
[703] The respondents also submit that the nature of the interest asserted
by the applicants is a right to state-funded health care, which is a right that
not even Canadian citizens possess. There are, moreover, shortcomings in the
Canadian health care system, and not every Canadian can receive the health care
that he or she needs in a timely fashion.
[704] In the alternative to the above arguments, the respondents submit
that the 2012 IFHP is an “ameliorative program”,
with the result that any potential distinction it creates is thus protected by
subsection 15(2) of the Charter. According to the respondents, it is
unavoidable that in seeking to help one group, ameliorative programs
necessarily exclude others.
[705] Finally, if there is any distinction in the 2012 IFHP that is not
saved by subsection 15(2) of the Charter, the respondents submit that the
applicants have failed to demonstrate that the distinction constitutes
substantive discrimination, with the result that their section 15
arguments must fail.
A.
Legal Principles Governing Section 15
Claims
[706] In Law Society British Columbia v. Andrews, [1989] 1 S.C.R.
143, [1989] S.C.J. No. 6 [Andrews], the Supreme Court described the subsection 15(1)
guarantee of equality as “the broadest of all
guarantees”, noting that it “applies to and
supports all other rights guaranteed by the Charter”: at para. 52.
[707] Subsection 15(1) of the Charter is aimed at preventing the
drawing of discriminatory distinctions that impact adversely on members of
groups identified by reference to the grounds enumerated in section 15 or
to analogous grounds: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 [Kapp].
[708] The focus of subsection 15(1) of the Charter is on “preventing governments from making distinctions based
on the enumerated or analogous grounds that: have the effect of perpetuating
group disadvantage and prejudice; or impose disadvantage on the basis of
stereotyping”: Kapp, above at para. 25, emphasis in the
original.
[709] The law governing section 15 claims is complex, and has
undergone a number of iterations since the Supreme Court’s seminal decision in Andrews
“set the template” for the Court’s approach to
claims under section 15 of the Charter: see Kapp, above at para. 14.
[710] The majority in Andrews defined “discrimination”
as “a distinction, whether intentional or not but based
on grounds relating to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds or limits
access to opportunities, benefits, and advantages available to other members of
society”: above at para. 37.
[711] It was also in Andrews that the Supreme Court first
articulated its commitment to the principle of substantive, rather than formal,
equality.
[712] “Formal equality” requires that everyone, regardless of their individual
circumstances, be treated in an identical fashion. In contrast, “substantive equality” recognizes that in some
circumstances it is necessary to treat different individuals differently, in
order that true equality may be realized. In this regard, “substantive equality” is based upon the concept that “[t]he promotion of equality entails the promotion of a
society in which all are secure in the knowledge that they are recognized at
law as human beings equally deserving of concern, respect and consideration”:
Andrews, above at para. 34, per McIntyre J.
[713] As William Black and Lynn Smith explained in “The Equality Rights”,
in Gérald Beaudoin & Errol Mendes, eds., Canadian Charter of Rights and
Freedoms, 4th ed. (Markham, Ontario: LexisNexis Butterworths,
2005), at p. 969:
The term “substantive equality” indicates
that one must take account of the outcomes of a challenged law or activity and
of the social and economic context in which the claim of inequality arises.
Assessing that context requires looking beyond the law that is being challenged
and identifying external conditions of inequality that affect those outcomes.
Substantive equality requires attention to the “harm” caused by unequal
treatment.
[714] In 1999, the Supreme Court of Canada rendered its decision in Law
v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1999]
S.C.J. No. 12 [Law]. In Law, the Supreme Court observed that “[a] purposive and contextual approach to discrimination
analysis is to be preferred, in order to permit the realization of the strong
remedial purpose of the equality guarantee, and to avoid the pitfalls of a
formalistic or mechanical approach”: at para. 88.
[715] As the Court subsequently observed in Gosselin, above, the
central lesson of Law was the need for a contextual inquiry in order to
establish whether a governmental distinction conflicts with the purpose of subsection 15(1)
of the Charter, such that “a reasonable person in
circumstances similar to those of the claimant would find that the legislation
which imposes differential treatment has the effect of demeaning his or her
dignity”: see Gosselin, above at para. 25, citing Law above
at para. 60.
[716] In Kapp, the Supreme Court recognized that difficulties had
arisen in using human dignity as a legal test. The Court observed that although
human dignity is an essential value underlying the subsection 15(1)
equality guarantee, “human dignity is an abstract and
subjective notion that […] cannot only become confusing and difficult to apply;
it has also proven to be an additional burden on equality claimants,
rather than the philosophical enhancement it was intended to be”: Kapp,
above at para. 22, emphasis in the original.
[717] The Supreme Court observed that the analysis “more usefully focusses on the factors that identify impact
amounting to discrimination”, recognizing that the “perpetuation of disadvantage and stereotyping” are
the “primary indicators of discrimination”: Kapp,
above at para. 23. Thus the “central concern”
of section 15 is “combatting discrimination,
defined in terms of perpetuating disadvantage and stereotyping”: at para. 24.
[718] For the purposes of a section 15 Charter analysis, “disadvantage … connotes vulnerability, prejudice and
negative social characterization”: Kapp, above at para. 55.
In determining whether a government action imposes disadvantage on the basis of
“stereotyping”, regard should be had to, amongst
other things, “the degree of correspondence between the
differential treatment and the claimant group’s reality”: Kapp, above
at paras. 19 and 23.
[719] Since Kapp, the Supreme Court has reminded us of the
importance of looking beyond the impugned government action in a section 15
Charter analysis, and of the need to examine the larger social, political and
legal context of the legislative distinction in issue: see Ermineskin Indian
Band and Nation v. Canada, 2009 SCC 9 at paras. 193-194,
[2009] 1 S.C.R. 222.
[720] Indeed, in Withler v. Canada (Attorney General), 2011 SCC 12,
[2011] 1 S.C.R. 396 [Withler], the Supreme Court stated that “[a]t the end of the day there is only one question: Does the
challenged law violate the norm of substantive equality in s. 15(1) of the
Charter?”: above at para. 2.
[721] Most recently, in Quebec (Attorney General) v. A., 2013
SCC 5, [2013] 1 S.C.R. 61 [A.G. v. A.], Justice Abella noted that “the main consideration must be the impact of the law
on the individual or the group concerned”. She also observed that the
purpose of section 15 was “to eliminate the
exclusionary barriers faced by individuals in the enumerated or analogous
groups in gaining meaningful access to what is generally available”: at para. 319,
citing Andrews, emphasis in the original.
[722] Thus the test to be used in identifying whether there has been a section 15
violation is whether an applicant can show that the government has made a
distinction based on an enumerated or analogous ground and that the
distinction’s impact on the individual or group creates a disadvantage by perpetuating
prejudice or stereotyping: A.G. v. A., above at para. 324. If the
applicant discharges his or her burden in this regard, then the burden shifts
to the government to justify the distinction under section 1 of the
Charter.
[723] According to A.G. v. A., while prejudice and stereotyping are
indicia that may help identify discrimination, “they are not discrete elements of the test which the claimant is
obliged to demonstrate”: above at para. 325.
[724] ‘Prejudice’ has
been described by the Supreme Court as “the holding of
pejorative attitudes based on strongly held views about the appropriate
capacities or limits of individuals or the groups of which they are a member”.
While ‘stereotyping’, like prejudice, “is a disadvantaging attitude”, it is an attitude “that
attributes characteristics to members of a group regardless of their actual
capacities”: both quotes from A.G. v. A., above at para. 326.
[725] Citing its earlier decision in Withler, the Supreme Court
held in A.G. v. A. that “where the
discriminatory effect is said to be the perpetuation of disadvantage or
prejudice, evidence that goes to establishing a claimant’s historical position
of disadvantage or to demonstrating existing prejudice against the claimant
group, as well as the nature of the interest that is affected, will be
considered”: above at para. 327.
[726] Caution must, however, be exercised so as to avoid improperly
focusing on whether a discriminatory attitude or conduct exists,
rather than on whether the impugned government action has a discriminatory impact.
As a consequence, it is not necessary that claimants prove that a distinction
perpetuates negative attitudes about them: A.G. v. A., above at paras. 327-330.
[727] Ultimately, the question is whether “a
distinction has the effect of perpetuating arbitrary disadvantage on the
claimant because of his or her membership in an enumerated or analogous group”:
A.G. v. A., above at para. 331. As a consequence, “[i]f the state conduct widens the gap between the
historically disadvantaged group and the rest of society rather than narrowing
it, then it is discriminatory”: at para. 332.
[728] With this understanding of the relevant legal principles, I turn now
to consider whether the applicants have demonstrated that the 2012 changes to
the IFHP create a distinction between refugee claimants from DCO countries and
refugee claimants from non-DCO countries in a way that violates section 15
of the Charter.
B.
Does the 2012 IFHP Draw a “Distinction” Between
Refugee Claimants from DCO Countries and Non-DCO Countries on the Basis of an
Enumerated or Analogous Ground?
[729] As noted above, the first question that must be addressed is whether
the government action in issue, in this case, the changes to the IFHP brought
about by the 2012 OICs, creates a “distinction” based
on an enumerated or analogous ground under subsection 15(1) of the
Charter.
[730] As the Supreme Court observed in Withler, above, “inherent in the word ‘distinction’ is the idea that the
claimant is treated differently than others”: at para. 62.
[731] It will be recalled that unlike the pre-2012 IFHP (which provided
the same level of coverage to all those eligible for benefits), the 2012 IFHP
regime provides for different tiers of coverage: Expanded Health Care Coverage
(EHCC), Health Care Coverage (HCC) and Public Health or Public Safety Health
Care Coverage (PHPS).
[732] The tier of IFHP coverage that a person is entitled to receive under
the 2012 IFHP depends upon a number of factors. Amongst others, these include
where the individual is in the refugee determination process; whether the
individual is a national of a Designated Country of Origin; if the
individual is not a refugee claimant, the person’s status in Canada; whether the individual receives federally-funded resettlement assistance; and whether the
individual is being detained.
[733] EHCC is the highest level of health insurance benefits available
under the 2012 IFHP. It is roughly equivalent to the level of IFHP benefits
provided under the pre-2012 IFHP program, and is similar to the level of health
insurance coverage available to low-income Canadians. Those entitled to EHCC
benefits include most government-assisted refugees and some privately-sponsored
refugees, as well as victims of human trafficking and some individuals admitted
under a public policy or on humanitarian and compassionate grounds.
[734] HCC benefits are similar to the health insurance benefits received
by working Canadians through their provincial or territorial health insurance
plans, with the proviso that services and products are only covered “if they are of an urgent or essential nature” as
defined in the IFHP. Those entitled to HCC benefits include refugee
claimants from non-DCO countries, recognized refugees, successful PRRA
applicants, most privately-sponsored refugees, and all refugee claimants whose
claims were filed before December 15, 2012, regardless of the claimant’s
country of origin.
[735] Refugee claimants from DCO countries and failed refugee
claimants are only entitled to Public Health or Public Safety (PHPS) benefits.
It will be recalled that PHPS coverage only insures those health care services
and products that are necessary or required to diagnose, prevent or treat a
disease posing a risk to public health, or to diagnose or treat a condition of
public safety concern.
[736] With respect to refugee claimants from DCO countries, subsection 4(3)
of the April 2012 OIC specifically provides
that the Minister is not authorized to pay “the cost of
health care coverage incurred for refugee claimants who are nationals of a
country that is, when services or products are provided, designated under subsection 109.1(1)
of the Act” [my emphasis].
[737] Thus, as a result of the changes brought about by the Governor in
Council through the promulgation of the 2012 OICs, the 2012 IFHP now draws a
distinction, on its face, as to the level of health insurance coverage that
will be provided to those seeking the protection of Canada based, in part, on
the nation from which the claimant comes.
[738] The 2012 IFHP provides a lesser level of health insurance coverage
to refugee claimants from DCO countries than is afforded to refugee claimants
from non-DCO countries, thereby singling out refugee claimants from DCO
countries for adverse differential treatment. This situation is thus readily
distinguishable from that which confronted the Federal Court of Appeal in Toussaint:
above at paras. 104-105.
[739] It is also important to keep in mind that what is at issue in this
case is not access to extraordinary or experimental treatment, or what the
Supreme Court described in Auton as “recent and
emergent” treatment: above at para. 56. The effect of the 2012
changes to the IFHP is to deny insurance coverage for basic, “core” medical care that is available to refugee
claimants from non-DCO countries under the IFHP and to Canadians under
provincial or territorial health insurance programs.
[740] The respondents say that the nature of the interest asserted by the
applicants on behalf of refugee claimants from DCO countries is a right to
state-funded healthcare - a right that not even Canadian citizens possess: Chaoulli,
above.
[741] While I have already concluded in the context of my section 7
analysis that there is no free-standing constitutional right to state-funded
health care, that does not provide the respondents with a defence to the
applicants’ section 15 claim.
[742] Although there may be no obligation on the Governor in Council to
provide health insurance coverage to those seeking the protection of Canada,
once it chooses to provide such a benefit, “it is
obliged to do so in a non-discriminatory manner”: Eldridge,
above. The Supreme Court went on in Eldridge to observe that “[i]n many circumstances, this will require governments to
take positive action, for example by extending the scope of a benefit to a
previously excluded class of persons”: both quotes at para. 73,
citations omitted.
[743] It is, moreover, not open to government to enact a law whose policy
objectives and provisions single out a disadvantaged group for inferior
treatment: Auton, above at para. 41, citing Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, [1999] S.C.J.
No. 24 [Corbière].
[744] The respondents say that if there is any distinction in treating
claimants from DCO countries differently from others seeking the protection of Canada, this distinction creates the advantage of providing access to state-funded
health care to refugee claimants from DCO countries, and not a disadvantage. I
do not agree.
[745] In this case, we have a government program that provides health
insurance coverage to IFHP beneficiaries. However, the eligibility requirements
established by the 2012 OICs result in unequal access to that benefit,
providing an inferior level of benefits to some IFHP beneficiaries based on the
claimant’s nation of origin.
[746] The question, then, is whether this unequal access constitutes
discrimination on the basis of the “national origin” of the claimants.
[747] The respondents say that there is no such discrimination, as
numerous countries have been identified as “Designated Countries of Origin”. According
to the respondents, distinctions made between foreign nationals of diverse
origins do not constitute discrimination on the basis of “national or ethnic
origin”.
[748] I do not accept this argument. The fact that a program may
explicitly exclude Asians, Hispanics and Blacks does not make it any less
discriminatory than a program that only excludes Asians.
[749] The respondents also argue that “national or
ethnic origin is not the same as citizenship”: Transcript, Vol. 2, at p.
175. In support of this contention, the respondents submit that one can be a
citizen of one country, while having a national or ethnic origin that is quite
different. The difficulty with this argument is that it equates national origin
with ethnic origin, and fails to consider the distinction between the two.
[750] Subsection 15(1) of the Charter prohibits discrimination on the
basis of national or ethnic origin. The use of the disjunctive “or”
suggests that the two terms are not synonymous. It is, moreover, clear that an
individual can have one national origin while having a different, or even
several different ethnic origins.
[751] The 2012 OICs explicitly state that a lower level of health care
benefits will be provided to refugee claimants from certain designated
countries of origin. This is clearly discrimination on the basis of the nation
that the claimant comes from: that is, their national origin.
[752] The respondents have cited several cases to support their claim that
the IFHP does not draw a distinction on the basis of national origin. However,
each of these cases is readily distinguishable from the situation that
confronts the Court in this case.
[753] Pawar v. Canada (1999), 247 N.R. 271,
[1999] FCJ No 1421 involved a challenge to the residency requirement of the Old
Age Security Act, R.S.C. 1985, c. O-8 brought by individuals who were born
abroad. In dismissing the action, the Federal Court of Appeal held that “being born abroad” was not embraced in the concept of
“national and ethnic origin” and was neither an
enumerated nor an analogous ground under section 15 of the Charter.
[754] The Court in Pawar also held that a distinction based upon
prior residency in countries without reciprocal pension agreements with Canada had nothing directly to do with the plaintiffs’ “national or
ethnic origin”. In other words, the distinction at issue in Pawar was
not based on the particular country where the individual had previously
resided, but rather on whether that country had entered into a reciprocal
pension agreement with Canada: para. 2.
[755] In contrast, in this case, the distinction drawn by the 2012 OICs is
based entirely on the country that the refugee claimant comes from.
[756] In Tabingo v. Canada (Minister of Citizenship and
Immigration), 2013 FC 377, 431 F.T.R. 118, Justice Rennie had to consider
whether the cancellation of applications for Federal Skilled Workers based on
the date of application under subsection 87.4(1) of the Immigration and
Refugee Protection Act resulted in a section 15 violation based
upon the applicants’ national origin.
[757]
Although Justice Rennie observed at paragraph
120 of Tabingo that “the applicants were a
diverse group, sharing no commonality of [...] national origin …”, that
was not the basis for his finding that there had been no section 15
violation.
[758] Justice Rennie accepted that the impact of the decision to cancel
visa applications had a differential impact, depending on the location of the visa
office to which an applicant had applied as a result of variances in processing
rates at different visa offices. However, in concluding that this did not
constitute a distinction based on an enumerated or analogous ground for the
purposes of section 15 of the Charter, he noted that visa applications
were transferred between visa posts, with files from
high demand posts being transferred to lower demand posts in order to
facilitate timelier processing. Consequently, the differences in clearance
rates at various posts did not directly correspond to the applicants’ countries
of origin. As a consequence, there was no discrimination on the basis of
national origin.
[759]
It does not, however, follow from the decision
in Tabingo that there could be no discrimination on the basis of
national origin in the hypothetical event that the Government of Canada decided
to process visa applications emanating from Great Britain at twice the rate of
visa applications from, say, Cameroon, Pakistan and Vietnam (assuming for the
sake of argument that visa applicants outside of Canada do in fact have rights
under section 15 of the Charter).
[760]
The last two cases relied upon by the
respondents involved human rights complaints brought under two different human
rights statutes, rather than under section 15 of the Charter. Both cases
involved complaints with respect to higher tuition
fees charged to foreign students in comparison to those charged to Canadians
students: Nova Scotia Confederation of University Faculty Assns. v.
Nova Scotia (Human Rights Commission) (1995), 143 N.S.R. (2d) 86, [1995]
N.S.J. No. 296 [Nova Scotia] and Simon Fraser University
International Students v. Simon Fraser University, [1996] B.C.C.H.R.D. No.
13 [Simon Fraser].
[761]
The complaints alleged that
the differential fee structures constituted discrimination on the basis of the
students’ race and national or ethnic origin in the Nova Scotia case,
and on the basis of race and/or place of origin in the Simon Fraser case. Both complaints were dismissed.
[762]
In Nova Scotia, the Court observed that
the higher fee did not apply to Canadian citizens and landed immigrants, who
may come from many different racial backgrounds and national/ethnic origins.
The extra fee was based on the students’ citizenship or place of residence, and
not on their race or national or ethnic origin. Neither citizenship nor place
of residence was a proscribed ground of discrimination under the applicable
human rights legislation, with the result that the complaint had to be
dismissed.
[763] Similarly, in Simon Fraser, international students were charged
much higher tuition fees than were charged to Canadians students. In rejecting
the complaint, the British Columbia Council of Human Rights observed that the
affected students came “from over fifty different
countries” and could not “be characterized by race
or place of origin”. The Tribunal further observed that Canadian
students may also come from a variety of other
countries: at para. 17.
[764]
As a result, the Tribunal in Simon Fraser concluded that the
University’s fee policy was based on the citizenship or place of residence of
the affected students and their legal status in Canada, and not their race or
place of origin. Given that these were not statutorily
prohibited grounds of discrimination, it followed that this complaint was also
dismissed.
[765]
These decisions do not, however, lead to the
conclusion that there would be no discrimination on the basis of national
origin if higher tuition fees were only charged to
students coming from, for example, Hungary, Mexico and the United States, which would be the more apt analogy to the current case.
[766] As was noted earlier, the April 2012 OIC specifically provides that the Minister is not authorized to pay “the cost of health care coverage incurred for refugee
claimants who are nationals of a country that is, when services or
products are provided, designated under subsection 109.1(1) of the Act”
[my emphasis]. The ordinary meaning of this phrase is to deny a benefit to
individuals seeking the protection of Canada from specified countries based
upon their national origin, thereby creating a distinction for the purposes of
subsection 15(1) of the Charter.
[767] The plain meaning of the term “national origin” is broad enough to
include people who are not only born in a particular country, but who come from
that country. Indeed, such an interpretation is consistent with the term used
in IRPA, namely “Designated Country of Origin”
[my emphasis].
[768] Before leaving this issue, I would also note that my interpretation
of “national origin” for the purposes of subsection 15(1) of the Charter
as encompassing a prohibition on discrimination between classes of non-citizens
based upon their country of origin is one that is also consistent with the
provisions of the Refugee Convention, article 3 of which prohibits
discrimination against refugees based upon their country of origin.
[769] Although not raised in their memorandum of fact and law, the
respondents argued at the hearing that the distinction drawn in the 2012 OICs
between refugee claimants from DCO countries and non-DCO countries is one based
upon citizenship, rather than national origin. As a result, they say
there can be no section 15 violation.
[770] As I have already explained, I am satisfied that the 2012 IFHP does
indeed make a distinction based upon the national origin of claimants. As a
consequence, it is not strictly necessary to address the respondents’
citizenship argument, and I will do so only briefly, particularly given that
citizenship was not identified as a basis for the applicants’ constitutional
challenge in their Notice of Constitutional Question.
[771] I would simply note that to the extent that the respondents submit
that any distinction contained in the 2012 OICs was based upon citizenship
rather than national origin, it would still be discriminatory, as citizenship
has expressly been recognized as an analogous ground for the purposes of section 15
of the Charter: see Andrews, above, and Lavoie v. Canada, 2002
SCC 23, [2002] 1 S.C.R. 769.
[772] Indeed, as Justice La Forest observed in Andrews, “[d]iscrimination on the basis of nationality has from early
times been an inseparable companion of discrimination on the basis of race and
national or ethnic origin, which are listed in s. 15”: at para. 68.
[773] While I recognize that both Andrews and Lavoie
involved distinctions being drawn between Canadian citizens and non-Canadians, as
the Supreme Court observed in Lavoie, “[o]nce
identified, an analogous ground stands as ‘a constant marker of potential
legislative discrimination’ and need not be established again in subsequent
cases”: at para. 41, citing Corbière, above at paras. 7‑10,
and Little Sisters Book and Art Emporium v. Canada (Minister of Justice),
[2000] 2 S.C.R. 1120 at para. 119, 2000 SCC 69.
[774] Finally, the respondents submit that the distinction in the 2012 OIC
is not discriminatory, as the distinction between DCO and non-DCO countries
arises out of the provisions of the Immigration and Refugee Protection Act,
noting that the applicants have not challenged the statutory DCO designation
process in this proceeding.
[775] It is true that the concept of a “Designated
Country of Origin” is one that is created by subsection 109.1(1) of
IRPA, which allows the Minister of Citizenship and Immigration to
designate countries for certain purposes under the Act. That does not, however,
serve to insulate the 2012 changes to the IFHP from scrutiny under section 15
of the Charter.
[776] What is at issue in this case is not the inclusion of subsection 109.1(1)
in IRPA, but rather the decision of the Governor in Council to import
the concept of “Designated Countries of Origin” into
the 2012 OICs, using it as a criterion for determining who will be eligible for
health insurance coverage, and at what level. This decision is clearly
reviewable under section 15 of the Charter.
[777] Having concluded that the 2012 OICs create a distinction based on
the enumerated ground of national origin, the next issue that must be addressed
is the respondents’ assertion that the IFHP is an ameliorative program and that
this distinction is thus saved by subsection 15(2) of the Charter.
C.
Is the Subsection 15(1) Breach Saved on the
Basis that the IFHP is an Ameliorative Program?
[778] Subsection 15(2) of the Charter provides that subsection 15(1)
of the Charter “does not preclude any law, program or
activity that has as its object the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged because of race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability”.
[779] In the event that this Court were to find that the distinction drawn
with respect to the level of IFHP benefits that are made available to refugee
claimants from DCO countries relative to those available to refugee claimants
from non-DCO countries constitutes a violation of subsection 15(1) of the
Charter, the respondents assert that the IFHP is an ameliorative program
directed at improving the situation of groups that are in need of assistance in
order to enhance substantive equality, as contemplated by subsection 15(2)
of the Charter.
[780] That is, the respondents say that the IFHP is a government program
that has as its object the amelioration of the health conditions of refugee
claimants, refugees and failed claimants in particular circumstances of need in
Canada: respondents’ memorandum of fact and law, at para. 122. They submit
that the distinction between the benefits provided to refugee claimants from
DCO countries and others serves that purpose in allocating funds to persons
from countries whose claims take longer to process, with the result that they
are in Canada for a longer period of time.
[781] In Alberta (Aboriginal Affairs and Northern Development)
v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670 [Cunningham], the
Supreme Court explained that the purpose of subsection 15(2) of the
Charter is to save ameliorative programs from claims of “reverse discrimination”: at para. 41. It allows
governments to implement programs or laws that are designed to improve the
situation of members of historically disadvantaged groups to assist in the move
towards substantive equality.
[782] The Supreme Court observed in Cunningham that subsection 15(2)
achieves its purpose by “affirming the validity of
ameliorative programs that target particular disadvantaged groups, which might
otherwise run afoul of subsection 15(1) by excluding other groups”.
The Court further observed that in so doing, “[i]t is
unavoidable that ameliorative programs, in seeking to help one group,
necessarily exclude others”: above at para. 40.
[783] Underlying subsection 15(2) is the notion that “governments should be permitted to target subsets of
disadvantaged people on the basis of personal characteristics, while excluding
others”. The Court recognized that governments may have particular goals
in relation to advancing or improving the situation of particular groups, and
that they may not be in a position to help all of the members of a
disadvantaged group at the same time. As a consequence, governments should be
permitted to establish priorities, failing which “they
may be precluded from using targeted programs to achieve specific goals
relating to specific groups”: both quotes from Cunningham, above
at para. 41.
[784] The first detailed consideration of the scope of the subsection 15(2)
exception appears in the Supreme Court’s decision in Kapp, above. There,
the Court explained that subsections 15(1) and 15(2) of the Charter “work together to promote the vision of substantive equality
that underlies s. 15 as a whole”. The Court stated that “subsection 15(1) is aimed at preventing discriminatory
distinctions that impact adversely on members of groups identified by the
grounds enumerated in s. 15 and analogous grounds”, which was “one way of combating discrimination”: Kapp,
above at para. 16.
[785] That is not, however, the only way to combat discrimination.
Governments may also attempt to address discrimination by developing measures
that pro-actively combat discrimination through programs aimed at helping
disadvantaged groups improve their situation: Kapp, at para. 25.
Subsection 15(2) of the Charter preserves the right of governments to do
so, without the program being struck down under subsection 15(1).
[786] In order to establish that a government program constitutes an
ameliorative program for the purposes of subsection 15(2) of the Charter, the
government must show “that the program is a genuinely
ameliorative program directed at improving the situation of a group that is in
need of ameliorative assistance in order to enhance substantive equality”:
Cunningham, above at para. 44. A “naked
declaration” that a program has an ameliorative purpose is not sufficient
to attract the protection of subsection 15(2) against a claim of
discrimination: Cunningham, above at para. 44.
[787] There must also be a correlation between the program in question and
the disadvantage suffered by the group that the program is intended to benefit:
Kapp, above at para. 49.
[788] According to Cunningham, if the above conditions are met, subsection 15(2)
of the Charter will protect “all distinctions drawn on
enumerated or analogous grounds that ‘serve and are necessary to’ the
ameliorative purpose”. To show that a distinction is ‘necessary’ to this
ameliorative purpose, it must be shown that “the
impugned distinction in a general sense serves or advances the object of the
program, thus supporting the overall s. 15 goal of substantive equality”.
That is, “distinctions that might otherwise be claimed
to be discriminatory are permitted, to the extent that they go no further
than is justified by the object of the ameliorative program”, my
emphasis. To come within the exception created by subsection 15(2) of the
Charter, the distinction “must in a real sense serve or
advance the ameliorative goal, consistent with s. 15’s purpose of promoting
substantive equality”: all quotes from Cunningham, above at para. 45.
[789] The Supreme Court identified the “fundamental
question” in subsection 15(2) cases as being “up to what point does s. 15(2) protect against a claim of
discrimination?”, noting that “[t]he tentative
answer suggested by Kapp […] is that the distinction must serve or
advance the ameliorative goal”: Cunningham, at para. 46.
[790]
The Court went on in Cunningham to note
that “[a]meliorative programs, by their nature, confer
benefits on one group that are not conferred on others”. Such
distinctions will generally be protected “if they serve
or advance the object of the program, thus promoting substantive equality”,
even if, for example, “the included and excluded groups
are aboriginals who share a similar history of disadvantage and
marginalization”: above at para. 53, citing Lovelace v. Ontario
(1997), 33 O.R. (3d) 735 (Ont. C.A.) [Lovelace – O.C.A.], aff’d 2000 SCC
37, [2000] 1 S.C.R. 950 [Lovelace].
[791] Ameliorative programs are often challenged by those outside
the group that the program is designed to assist. By way of example, in Kapp,
a program that provided for the issuance of communal
fishing licenses to three aboriginal bands was challenged by commercial
fishers, most of whom were non-aboriginal.
[792] That is not the situation here: in this case, the changes to the
IFHP brought about through the 2012 OICs are being challenged on behalf of some
of the very individuals that the program was purportedly designed to benefit,
namely refugee claimants from DCO countries and failed refugee claimants.
[793] As the Ontario Court of Appeal observed in Lovelace – O.C.A.,
“[a] s. 15(2) program that excludes from its reach
disadvantaged individuals or groups that the program is designed to benefit
likely infringes s. 15(1)”: at para. 67. The Supreme Court of Canada affirmed the Court of Appeal’s decision without specific comment on this point.
[794] This also distinguishes this case from the situation that confronted
the Federal Court of Appeal in Toussaint. There, the Court was faced
with a challenge to the exclusion of illegal immigrants from coverage under the
IFHP: that is, a claim of under-inclusiveness brought by someone outside
the group that the program was designed to assist. It was in this context that
the Federal Court of Appeal observed that if Ms. Toussaint had succeeded in
establishing a “distinction” under subsection 15(1),
“subsection 15(2) of the Charter might
become live”: at para. 102.
[795] In contrast to the situation in Toussaint, the 2012 IFHP
provides health insurance coverage for those seeking the protection of Canada, but specifically singles out certain refugee claimants for lesser treatment, based
upon their country of origin, thus discriminating against refugee claimants
from DCO countries, in both purpose and effect.
[796] The respondents say that the IFHP has as its object the amelioration
of the health conditions of refugee claimants, refugees and failed claimants in
particular circumstances of need in Canada. Given that this is the goal of the
program, it is unclear how the exclusion of refugee claimants from DCO
countries from eligibility for basic, “core”
health care benefits serves or is necessary to the ameliorative object of the
program or how it advances a goal of enhancing substantive equality.
[797] Indeed, as the Supreme Court observed in A.G. v. A, above, “if the state conduct widens the gap between the historically
disadvantaged group and the rest of society, rather than narrowing it, then it
is discriminatory”: at para. 332.
[798] It also bears recalling that the government action at issue in this
case is the decision of the Governor in Council to modify the IFHP to take
away the health insurance coverage that was previously available to refugee
claimants from DCO countries. Indeed, it is difficult to understand how the
DCO/non-DCO distinction in the IFHP can be characterized as ameliorative when
one of the stated goals of the 2012 modifications to the program was to make
things harder for refugees from DCO countries in order to deter other so-called
“bogus” claimants from coming to Canada and abusing the generosity of Canadians.
[799] In determining whether the IFHP qualifies as an “ameliorative program” for the purposes of subsection 15(2)
of the Charter, regard must also be had to whether it was “rational for the state to conclude that the means chosen to
reach its ameliorative goal would contribute to that purpose”. The Supreme Court explained that for a distinction to be
rational, “there must be a correlation between
the program and the disadvantage suffered by the target group”. While this standard “permits
significant deference to the legislature”, it
allows for judicial review “where a program
nominally seeks to serve the disadvantaged but in practice serves other
non-remedial objectives”: all quotes from Kapp,
above at para. 49.
[800] As was noted earlier, distinctions that might otherwise be claimed
to be discriminatory are permitted under subsection 15(2) of the Charter,
but only “to the extent that they go no further than is
justified by the object of the ameliorative program”: Cunningham,
at para. 45.
[801] The respondents have described the object of the IFHP as being “the amelioration of the health conditions of refugee
claimants, refugees and failed claimants in particular circumstances of need in
Canada”. They say that “[t]he distinction
between DCOs and others serves that purpose in allocating funds to persons from
countries whose claims take longer to process such that they are in Canada for
a longer period of time”: both quotes from respondents’ memorandum of
fact and law at para. 122.
[802] The question is thus whether there is a correlation between the
provisions of the IFHP and the disadvantage suffered by the target group.
[803] The respondents argued at the hearing that any
distinctions were tailored to meet the specific needs of subgroups of
beneficiaries who get benefits under the IFHP. These “needs” were initially identified by the respondents
as being health needs: Transcript, Vol. 2, p. 188, see also the respondents’ memorandum
of fact and law at para. 122.
[804] However, the fact that some refugee claimants from DCO countries may
be in Canada for less time than claimants from non-DCO countries does not mean
that their health conditions and health care needs will be any less acute while
they are here than the needs of non-DCO claimants. It does not follow that a
refugee claimant from Mexico (a DCO country) who arrives in Canada about to give birth necessarily requires less health care than does a pregnant refugee
claimant who has come to Canada from Sri Lanka (a non-DCO country).
[805] Indeed, Ms. Le Bris acknowledged in her cross-examination that the
respondents have no data that would suggest that the health needs of refugee
claimants from DCO countries are any less than those of refugee claimants from
non-DCO countries, nor do they have any evidence to suggest refugee claimants
from DCO countries are any more able to pay for their health care than are
refugee claimants from non-DCO countries: Transcript, questions 105-106.
[806] There is thus no evidence to show that the tiered coverage structure
of the IFHP corresponds to the reality of refugee claimants from DCO countries,
or to use the language from Kapp, that there is a
correlation between the distinction drawn in the IFHP and the disadvantage
suffered by refugee claimants from DCO countries.
[807] As a consequence, it cannot be said that the distinction between
refugee claimants from DCO countries and refugee claimants from non-DCO
countries contributes to the stated purpose of “amelioration of the health conditions of refugee claimants,
refugees and failed claimants in particular circumstances of need in Canada”.
[808] Having failed to demonstrate that the 2012 changes to the IFHP can
be saved as an ameliorative program under subsection 15(2) of the Charter
insofar as refugee claimants from DCO countries are concerned, the focus of the
analysis returns to subsection 15(1).
[809] The next question for consideration is thus whether the distinction
drawn in the IFHP as to the health insurance benefits that are available to
refugee claimants from DCO countries relative to those provided to refugee
claimants from non-DCO countries creates a disadvantage by perpetuating prejudice
or stereotyping, thus violating subsection 15(1) of the Charter.
D.
Do the 2012 OICs Create a Disadvantage by
Perpetuating Prejudice or Stereotyping?
[810] The respondents say that by granting refugee claimants from DCO
countries a level of state-funded health insurance coverage, the Governor in
Council is not “perpetuating prejudice or
stereotyping.” Rather, it is simply recognizing that even though these
refugee claimants are from countries that are generally safe, “non-refugee producing” nations with health care
systems that are comparable to Canada’s own, they are deserving of a minimum
level of state-funded health care while they are in Canada making a refugee
claim.
[811] There are several problems with this argument.
[812] The first problem is with the respondents’ starting premise that DCO
countries have health care systems that are comparable to that in Canada. The quality or availability of health care is not a criterion that is used
in designating countries as “Designated Countries of
Origin” under IRPA, and I have not been directed to any evidence
that would demonstrate that the level of health care that is available in, say,
Mexico, is comparable to that which is available in Canada.
[813] The second problem with the respondents’ argument is that it assumes
that a refugee claimant in Canada from a DCO country who develops a serious
health condition can simply return home and get the health care that he or she
needs in his or her country of origin.
[814] Implicit in this argument is the assumption that there is no merit
to the individual’s refugee claim and that they are indeed “bogus” refugees (to quote the Minister’s
spokesperson), with the result that they can safely return home to access the
health care that they need.
[815] While this may be true of some claimants from DCO countries, the
respondents themselves concede that it is not true of all of them. As was
mentioned earlier, the respondents have expressly acknowledged that some
claimants from DCO countries do indeed face real persecution in their countries
of origin and are in fact genuine refugees.
[816] Indeed, as I have previously noted, the irony of the respondents’
argument is that it demonstrates that it is the DCO claimants who cannot return
home - those who really are genuine refugees - who are the ones most severely
hurt by the cuts to their insurance coverage resulting from the 2012 changes to
the IFHP.
[817] The Supreme Court of Canada held in Auton, above, that in
considering whether a benefit has been conferred in a discriminatory manner
where stereotyping of members of the group is at issue, regard must be had to “the purpose of the legislative scheme which confers the
benefit and the overall needs it seeks to meet”: at para. 42.
[818] The Court observed that “[i]f a benefit
program excludes a particular group in a way that undercuts the overall purpose
of the program, then it is likely to be discriminatory: it amounts to an
arbitrary exclusion of a particular group”. On the other hand, if “the exclusion is consistent with the overarching purpose and
scheme of the legislation, it is unlikely to be discriminatory”: Auton,
above at para. 42.
[819] More recently, Kapp taught us that in considering the issue
of stereotyping, regard had to be had to the degree of correspondence between
the differential treatment and the claimant group’s reality: above at para. 19.
[820] Finally, as the Supreme Court observed in Gosselin,
government action that is “closely tailored to
the reality of the affected group” is unlikely to discriminate within
the meaning of subsection 15(1): above at para. 37.
[821] As was noted earlier, the respondents described the object of the
IFHP as being “the amelioration of the health
conditions of refugee claimants, refugees and failed claimants in particular
circumstances of need in Canada”: respondents’ memorandum of fact and
law at para. 122.
[822] However, the respondents have also conceded that the 2012 IFHP
program does not in fact respond to the health needs of the affected
individuals. Thus it cannot be said that the changes to the IFHP brought about
by the 2012 OICs were “closely tailored to the reality
of the affected group”. Indeed, the changes to the program limit
access to core health care services to genuine refugee claimants from DCO
countries in a manner that undercuts the stated objective of the program.
[823] The respondents also say that abuse of the IFHP was not the issue,
in and of itself, that guided or motivated the 2012 reforms to the program. The
changes to the IFHP were, however, made to support the government’s overall
goal of reforming the refugee process and curtailing abuse of the system.
According to the respondents, making changes to the IFHP was but one way in
which the government could deter unfounded claims and possibly discourage
failed refugee claimants from remaining in Canada when they ought to be leaving
the country: Transcript, Vol. 3, at p. 38.
[824] As Ms. Le Bris explained in her affidavit, “the
previous IFHP was perceived by some as constituting a reason why some
foreign nationals came to Canada to assert unfounded claims and also a reason
why they sought to remain in Canada for as long as possible after their claims
were rejected by the IRB and often the Federal Court”: at para. 73
[my emphasis].
[825] There does not, however, appear to have been any attempt by the
government to determine whether the subjective perception on the part of
certain unidentified individuals referred to by Ms. Le Bris was in fact
justified. Nor has there been any attempt to determine the extent to which, if
at all, the availability of state-funded health care operates as a “pull factor” for non-meritorious refugee claimants.
[826] Indeed, it is hard to reconcile the respondents’ argument that the
availability of health care in Canada operates as a “pull
factor” for refugee claimants from DCO countries with their claim that
refugee claimants from DCO countries do not need health insurance coverage
while they are in Canada because they can get comparable health care back home.
[827] As was noted earlier, and as will be explained in greater detail in
the context of my section 1 analysis, there is also no persuasive evidence
before me to show that the changes to the IFHP have themselves served to deter
unmeritorious claims, or encouraged anyone to leave Canada more quickly.
[828] What is apparent, however, is that the decision was made by the
executive branch of the Canadian government to reduce the level of IFHP
benefits for refugee claimants from DCO countries relative to those available
to refugee claimants from non-DCO claimants as a result of a belief that
refugee claimants from DCO countries are not real refugees at all, but are
simply in Canada seeking to “game the system” and
abuse the generosity of Canadians.
[829]
This was made very clear by the statement made
on behalf of the then-Minister of Citizenship and Immigration at the time that
the changes to the IFHP were introduced. It will be recalled that the
Minister’s spokesperson explained the changes in the following terms:
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. Our Government has listened and acted. We have taken steps to ensure
that protected persons and asylum seekers from non-safe countries receive
health care coverage that is on the same level as Canadian taxpayers receive
through their provincial health coverage, no better. Bogus claimants from
safe countries, and failed asylum seekers, will not receive access to health
care coverage unless it is to protect public health and safety… [my
emphasis]
[830] As was noted earlier in my review of the legal principles applicable
to section 15 claims, the Court’s focus should be on whether the impugned
government action has a discriminatory impact. It is not necessary that
claimants prove that a distinction perpetuates negative attitudes about them.
[831] That said, both have been established in this case.
[832] Insofar as the discriminatory impact of the 2012 changes to the IFHP
are concerned, funding for potentially life-saving medical treatments is made
available to refugee claimants from non-DCO countries but is denied to refugee
claimants from DCO countries. The 2012 changes to the IFHP have erected
additional barriers to accessing basic health care for refugee claimants from
DCO countries, clearly perpetuating the hardship suffered by what the
respondents have accepted are a vulnerable, poor and disadvantaged group.
[833] Indeed, even though refugee claimants from DCO countries may come
from wealthier countries, I do not understand the respondents to dispute that
most individual refugee claimants from these countries will nevertheless
themselves be vulnerable, poor and disadvantaged. Indeed, as was previously
noted, Ms. Le Bris acknowledged in her cross-examination that the respondents
have no evidence suggesting that refugee claimants from DCO countries are any
more able to pay for their health care than are refugee claimants from non-DCO
countries.
[834] The disadvantage suffered by refugee claimants from DCO countries is,
moreover, exacerbated by the fact that recent changes to the Immigration and
Refugee Protection Act and Regulations prohibit them from working
for the first 180 days that they are in Canada, further limiting their ability
to pay for their own medical treatment: Immigration and Refugee Protection
Regulations, subsection 206(2).
[835] The interests at stake in this case are significant. I have found as
a fact that the distinction drawn between the health insurance benefits
available to refugee claimants from non-DCO countries and to refugee claimants
from DCO countries puts the lives of claimants in this latter group at risk.
Moreover, it sends the clear message that refugee claimants from DCO countries
are undesirable, and that their well-being, and indeed their very lives, are
worth less than those of refugee claimants from non-DCO countries.
[836] The respondents have acknowledged that in cutting the health
insurance benefits for refugee claimants from DCO countries, it is trying to
use the hardship that will be suffered by claimants in Canada as a means to an end in deterring others from coming to Canada. Indeed, this is one of the
stated objectives of the 2012 changes to the IFHP. This demonstrates a lack of
regard for the inherent dignity of these claimants.
[837] The distinction drawn between the health insurance benefits accorded
to refugee claimants from DCO and non-DCO countries also serves to further
marginalize, prejudice, and stereotype refugee claimants from DCO countries. In
particular, it perpetuates the stereotype that refugee claimants from DCO
countries are queue-jumpers, “bogus” claimants
and cheats who are only here to take advantage of Canada’s social benefits and
its generosity.
[838] As described by Dr. Anderson in his affidavit, this attitude
reflects historical stereotypes that have been ascribed to groups of immigrants
identified as “undesirable”: stereotypes that
have their origins in racism, fear of “others”,
fear of economic competition, and more recently, fear of criminality and
terrorism. By limiting the health insurance benefits that are provided to
refugee claimants from DCO countries, the executive branch of the Canadian
government is perpetuating the stereotypical view that refugee claimants from
these countries are undesirable, thereby reinforcing existing prejudice and
disadvantage.
[839] As was noted earlier, the fact is that some refugee claimants from
DCO countries are indeed genuine refugees. By way of example, in 2011, the
Immigration and Refugee Board accepted 155 refugee claims from Hungary. In 2013, the Board accepted 183 such claims. Having been accepted by the Board as
being legitimately in need of refugee protection, these claimants were clearly
not queue-jumpers, bogus claimants or cheats.
[840] It is also true that a substantial percentage of refugee claims from
DCO countries do not succeed. Does it necessarily follow that these claims were
all “bogus”, brought by queue jumpers and cheats
seeking to abuse the generosity of Canadians? To suggest that this is the case
is to have a grossly simplistic understanding of the refugee process.
[841] Amongst all of the people who come to Canada each year seeking
refugee protection there will undoubtedly be some who are in reality economic
migrants and those who are using the refugee process in an effort to achieve
family reunification. It is, however, both unfair and inaccurate to
characterize all failed refugee claimants from DCO countries as “bogus” refugees.
[842] Refugee claims are often brought on the basis of real hardship and genuine
suffering. Amongst those whose claims do not succeed will be individuals who
may well have come to Canada because of a real fear of persecution in their
country of origin, but who were unable to meet the strict legal requirements of
the refugee definition.
[843] By way of example, a Roma from Hungary may have experienced a
lifetime of discrimination, abuse and marginalization in her country. She may
truly dread returning home as a result of her past experiences. The Immigration
and Refugee Board may well accept the claimant’s story as true, but may
conclude that the treatment experienced by the claimant, while discriminatory,
did not rise to the level of “persecution”. Alternatively,
the Board may accept that the claimant had experienced “persecution”,
but may also find that adequate state protection is available to her in Hungary. Under either scenario, the fact that the refugee claim did not ultimately succeed
does not mean that there was anything “bogus” about
it.
[844] Similarly, a family targeted for kidnapping and extortion by a drug
cartel in Mexico may flee their country, seeking to put as much distance
between themselves and their persecutors as possible. The Immigration and
Refugee Board may well believe that the family had been targeted by a powerful
cartel, and that their terror is indeed genuine. The Board may nevertheless
conclude, however, that by the time of the hearing, the family had been away
from Mexico for long enough that their persecutors may have lost interest in
them, or that the family could live safely in another part of Mexico.
[845] While our hypothetical family’s refugee claim may not have
succeeded, it does not follow that the claim was necessarily “bogus”, that it was made in bad faith, or that it had
been brought for an ulterior motive such as a desire to access so-called
“gold-plated” health care in Canada.
[846] There are other reasons why a refugee claim may not succeed that
have nothing to do with the bona fides of the claimant. Using a
hypothetical example from a non-DCO country to illustrate the point, a young
Tamil man from northern Sri Lanka may have fled his country in 2009, at the
height of the civil war, and come to Canada in order to make a refugee claim.
[847] In 2009, a person with the profile of our hypothetical claimant was
presumptively a genuine refugee. However, by the time that the refugee claim is
heard a couple of years later, the Immigration and Refugee Board could conclude
that conditions in Sri Lanka had changed enough that it would now be safe for
our claimant to return home. As a result, the claimant would no longer have a
well-founded forward-looking fear of persecution, and his refugee claim would
fail.
[848] Once again, the fact that such a refugee claim does not succeed
would not mean that it was necessarily a “bogus”
claim. Indeed, some failed refugee claimants do in fact go on to gain status in
Canada through other processes such as Pre-removal Risk Assessments, or they
may be granted humanitarian relief because of the unusual, undeserved and
disproportionate hardships that they would face if returned to their countries
of origin.
E.
Conclusion on the Subsection 15(1) Issue
Relating to DCO Claimants
[849] For these reasons, I have concluded that the changes made to the
IFHP through the promulgation of the 2012 OICs violate subsection 15(1) of
the Charter, both in their purpose and in their effect.
[850] The 2012 IFHP draws a distinction between refugee claimants from
DCO-countries and those from non-DCO countries, providing a lesser level of
health insurance coverage to refugee claimants from DCO countries based upon
the national origin of these claimants. This distinction cannot be saved as an “ameliorative program” contemplated by subsection
15(2) of the Charter.
[851] The DCO/non-DCO distinction drawn in the IFHP has an adverse
differential effect on refugee claimants from DCO 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.
F.
Does the 2012 IFHP also Violate Subsection 15(1)
of the Charter on the Basis of Immigration Status?
[852] The applicants further submit that the 2012 IFHP also discriminates
between asylum seekers generally and other similarly-situated individuals
accessing health care in Canada, specifically low-income Canadians. Under the 2012
IFHP, individuals who are legally in Canada for the purpose of seeking
protection are now prevented from obtaining the same level of health benefits
as are provided to other lawful residents of Canada.
[853] The applicants point out that the extent to which lawful residents
who are not seeking the protection of Canada receive state-funded health
insurance coverage is determined on the basis of income, which is used as a
proxy for need. Low-income residents thus receive a higher level of health
insurance benefits than ordinary working Canadians.
[854] In some instances, where additional need is demonstrated,
individuals who exceed the income threshold required for social assistance may
also be provided with additional support, above and beyond the regular health insurance
coverage they would otherwise receive.
[855] In contrast, under the 2012 IFHP, most low-income individuals who
are lawfully in Canada seeking its protection no longer receive the same base
level of health insurance benefits that are accorded to other low-income legal
residents of Canada. According to the applicants, a clear distinction is drawn
between individuals legally in Canada seeking its protection and other legal
residents of Canada who receive health care. The applicants submit that the 2012
IFHP thus creates a distinction in an individual’s entitlement to health
insurance coverage based upon their immigration status, which should be
recognized as an analogous ground for the purpose of subsection 15(1) of
the Charter.
[856] The applicants acknowledge that the jurisprudence relating to
immigration status as an analogous ground for the purpose of subsection 15(1)
of the Charter is “mixed”, but submit that
whether or not a person’s immigration status constitutes an analogous ground should
depend on the nature of the particular immigration status in issue. According
to the applicants, being an asylum seeker is not a situation that is marked by
choice. As a result, the status of being an asylum seeker should be considered
to be an immutable characteristic that qualifies as an analogous ground.
[857]
In support of their argument the applicants
point out that immigration status was treated as an analogous ground in Jaballah
(Re), 2006 FC 115, [2006] F.C.J. No. 110. In that case, this Court
concluded that a provision of the Immigration and Refugee Protection Act
infringed Mr. Jaballah’s rights under subsection 15(1) of the Charter
on the basis of his immigration status.
[858] The legislation at issue provided that foreign nationals detained
under the provisions of a security certificate had no right to a detention
review until a determination was made as to the reasonableness of the
certificate, whereas permanent residents detained under security certificates
had the right to a detention review every six months. As a consequence, the Court
ordered that Mr. Jaballah be provided with a detention review on the same
basis as a permanent resident similarly detained.
[859] While recognizing that there are other decisions that have rejected
immigration status as an analogous ground, the applicants suggest that the
issue should be approached on a case-by-case basis, having regard to the
particular immigration status at issue. They point out that the Courts have not
yet decided whether the status of “individuals legally
seeking protection in Canada” constitutes an analogous ground for the
purposes of section 15 of the Charter. As will be explained below, I
cannot accept the applicants’ argument.
[860]
First of all, the individuals described
collectively in these reasons as “those seeking the
protection of Canada” are not merely refugee claimants, but have a range
of different immigration statuses. These include protected persons, (including
resettled refugees, recognized refugees and positive PRRA recipients), refugee
claimants, rejected refugee claimants, victims of human trafficking with
temporary resident permits, persons granted permanent residency as part of a
public policy or for humanitarian and compassionate reasons by the Minister,
and who receive income support through the resettlement assistance program or
the equivalent in Québec, foreign nationals and permanent residents detained
under the provisions of the Immigration and Refugee Protection Act.
[861]
Moreover, the Federal Court of Appeal held in Toussaint
that “immigration status” does not qualify as an
analogous ground under section 15 of the Charter on the basis that it “is not a ‘[characteristic] that we cannot change’. It is not
‘immutable or changeable only at unacceptable cost to personal identity”:
at para. 99, citing Corbière, above at para. 13.
See also Forrest v. Canada (Attorney General), 2006 FCA 400 at para. 16, 357 N.R. 168.
[862]
It is true that the Court then went on in Toussaint
to consider the specific context of the claim being advanced, noting that the “immigration status” at issue in that case - presence
in Canada illegally - was “a characteristic that the
government has a ‘legitimate interest in expecting [the person] to change’”:
at para. 99.
[863]
As I read the decision, however, this statement
appears to be a further reason for the Court’s overall conclusion that “immigration status” does not constitute an analogous
ground for the purposes of section 15 of the Charter, and not a basis for
limiting the Court’s finding to cases where the immigration status in question
was illegal presence in Canada.
[864]
The Ontario Court of Appeal came to a similar
conclusion with respect to immigration status as an analogous ground in Irshad
(Litigation guardian of) v. Ontario (Minister of Health), [2001] O.J. No.
648 at paras. 133-136, 55 O.R. (3d) 43 [Irshad].
[865] In Irshad, the Court was called
upon to consider changes made to the Ontario Health
Insurance Plan which tied the eligibility of some
claimants to their status under the Immigration Act, R.S.C. 1985, c. I-2.
[866]
In concluding that status as a permanent or
non-permanent resident of a province was not an analogous ground for the
purposes of section 15 of the Charter, the Court observed that “[a] person’s status as a non-permanent resident for the
purposes of OHIP eligibility is not immutable”. In support of this
conclusion, the Court noted that “[i]n the course of
this litigation, four of the five appellants who were non-permanent residents
for the purposes of OHIP eligibility became permanent residents by virtue of
changes in their immigration status”: Irshad, above at para. 136.
[867] For the Ontario Court of Appeal, the
fact that an individual’s immigration status may be beyond the individual’s
effective control and may require the intervention of another party before it
could be changed did not render that status immutable. The Court noted that the
residency status of one appellant would change “if his
immigration status changes, either because he is reclassified or because the
Minister grants him landed immigrant status”: Irshad, above
at para. 136 [my emphasis]. That need for the intervention of a government
actor did not, however, serve to render the individual’s immigration status
immutable.
[868]
As was noted earlier, in Lavoie, the
Supreme Court rejected a context-dependent approach to the identification of
analogous grounds. It held that “[o]nce identified, an
analogous ground stands as ‘a constant marker of potential legislative
discrimination’ and need not be established again in subsequent cases”:
above at para. 2, citing Corbière, above at paras. 7-10.
[869]
If the recognition of an analogous ground stands
for all situations and does not have to be re-litigated in every case, it
follows that the refusal to recognize a particular ground as an
analogous ground for the purpose of section 15 of the Charter should also
stand for all cases and should not be judicially revisited whenever the issue
arises in a different context.
[870] The Federal Court of Appeal has already held that “immigration status” does not qualify as an analogous
ground under section 15 of the Charter. That finding is binding on me, and
is dispositive of the applicants’ argument. Consequently, this aspect of the
applicants’ section 15 claim will be dismissed.
G.
Conclusions on the Section 15 Issues
[871] For these reasons, I have concluded that the 2012 IFHP violates section 15
of the Charter inasmuch as it provides a lesser level of health insurance
coverage to refugee claimants from DCO countries in comparison to that provided
to refugee claimants from non-DCO countries. This distinction is based upon the
national origin of the refugee claimants and does not form part of an
ameliorative program. It is, moreover, based upon stereotyping, and serves to
perpetuate the disadvantage suffered by members of an admittedly vulnerable,
poor and disadvantaged group.
[872] I have not, however, been persuaded that the 2012 IFHP violates subsection 15(1)
of the Charter based upon the immigration status of those seeking the
protection of Canada. Consequently, this aspect of the applicants’ section 15
claim will be dismissed.
XIII.
Have the Breaches of Sections 12 and 15 been
Justified by the Respondents under Section 1 of the Charter?
[873]
Section 1 of the Charter provides that “[t]he Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society”.
[874] Unlike the other provisions of the Charter, where the onus is on
Charter claimants to establish a breach of the right in issue, the onus is on
the respondents to establish a justification for the breaches of sections 12
and 15 that have been established by the applicants: Bedford, above at
para. 126.
[875] The respondents say that the changes to the IFHP created pursuant to
the 2012 OICs are reasonable limits prescribed by law which are demonstrably
justified in Canada’s free and democratic society. In support of this
contention, the respondents cite the Supreme Court’s decision in Chaoulli,
where it observed that “[a]s we enter the 21st century,
health care is a constant concern…[t]he demand for health care is constantly
increasing…no one questions the need to preserve a sound public health system”:
above at paras. 2, 14 and 104.
[876] The respondents further note that governments have finite resources
to spend on health care for everyone present in Canada, including Canadian
citizens, permanent residents, refugee claimants, refugees, failed claimants
and those with no legal status or claims whatsoever. It is “impractical”, they say, for governments to fund all of
the health services that everyone in Canada may seek. As a consequence, “difficult
and potentially unpopular choices” have to be made.
[877] The respondents submit that the Supreme Court has told Canadians
they must accept such choices, even though they have Charter rights: citing Auton,
above at paras. 35 and 41. According to the respondents, the applicants must similarly
accept the choices made in the IFHP that affect them: respondents’ memorandum
of fact and law, at paras. 128-29.
A.
Legal Principles Governing Section 1 of the
Charter
[878] According to the Supreme Court, “[t]he
question of justification on the basis of an overarching public goal is at the
heart of s. 1” of the Charter. This section addresses “whether the negative impact of a law on the rights of
individuals is proportionate to the pressing and substantial goal of the law in
furthering the public interest”: both quotes from Bedford, above
at para 125.
[879] Moreover, as the Supreme Court observed in A.G. v. A., the
public policy basis for government action in issue is “central
to the s. 1 inquiry”: above at para. 421; see also Andrews, above
at pp. 177-78.
[880] I understand the parties to agree that the test to be applied by this
Court in determining whether the 2012 changes to the IFHP are saved by section
1 of the Charter is that first articulated by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J.
No. 7.
[881] That is, in order to establish a section 1 justification, the
respondents must demonstrate that:
1)
the objectives of the 2012 changes to the IFHP
are pressing and substantial; and that
2)
the impairment of the rights at issue is proportional
to the importance of those objectives in that
a)
the means chosen are rationally connected to the
objectives of the program;
b)
the means chosen impair the Charter rights minimally
or “as little as possible”; and
c)
there is a proportionality between any
deleterious effects of the program and its salutary objectives, so that the
attainment of the goal of the program is not outweighed by the abridgment of
the rights in question.
See Oakes at paras. 69 and 70. See
also R. v. Edwards Books & Art Ltd., [1986] 2 S.C.R. 713, [1986]
S.C.J. No. 70; RJR-MacDonald Inc., above; and Divito, above at
para. 68.
[882] As the Supreme Court observed in Eldridge, “where the legislation [or in this case, the program] under
consideration involves the balancing of competing interests and matters of
social policy, the Oakes test should be applied flexibly, and not
formally or mechanistically”: above at para. 85.
[883] With these principles in mind, I will next identify the objectives
of the 2012 OICs, and consider whether these objectives are pressing and
substantial.
B.
What were the Objectives of the Changes to the
IFHP Brought About by the 2012 OICs?
[884] In order to identify the objectives of the government action in issue,
the Court must examine the nature of the social problem addressed by the 2012 OICs.
The context of the impugned government action “is also
important in order to determine the type of proof which a court can demand of
the legislator to justify its measures under s. 1”: see Thomson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 at paras.
87 and 88, [1998] S.C.J. No. 44.
[885] Relevant contextual factors may include the nature of the harm
addressed, the vulnerability of the group protected, subjective fear and
apprehension of harm, and the nature and importance of the infringed activity:
see R. v. Bryan, 2007 SCC 12, at para. 10, [2007] 1 S.C.R. 527. See also
Thomson Newspapers Co., above, and Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827.
[886] It will be recalled that in the context of their subsection 15(2)
argument, the respondents argued that the IFHP is a government program that has
as its object the amelioration of the health conditions of refugee claimants,
refugees and failed claimants in particular circumstances of need in Canada: respondents’ memorandum of fact and law, at para. 122.
[887] However, the respondents also contend that the 2012 IFHP “is not a program that has as its focus the
treatment of people’s illnesses and conditions” [my emphasis]. While
recognizing that it provides funded access to health care, the respondents say
that this is not the sole purpose of the modified IFHP. According to the
respondents, “you have to look at the IFHP in the context of refugee law and
the reality of refugee claims and processing deportations and removals and what
the government was trying to do in a broad sense”. As a consequence, changes
made to the IFHP may have nothing to do with the health of the people who
benefit from the program, but may relate instead “to
the government's broader goals in the area of immigration and refugee law”:
Transcript, Vol. 2, pp. 189-191.
[888] The respondents submit that the federal government has reformed
Canadian immigration and refugee legislation with several broad public policy
goals in mind. These include reducing the time taken to decide refugee claims,
and reducing the strains on the Immigration and Refugee Board, in part by
addressing its significant backlog.
[889] Other policy goals include reducing the multiple forms of recourse
available to failed refugee claimants, facilitating timely removals of those
with no right to be or remain in Canada, and deterring possible abuse of the
refugee determination system by individuals from “safe, non-refugee producing” countries.
[890] According to the respondents, abuse of the IFHP, in and of itself,
was not the predominant issue which guided or motivated the reform. Rather, the
IFHP was reformed in 2012 in order to complement and accord with the
government’s broad public policy goals and accompanying legislative changes in
the areas of immigration and refugee protection.
[891] The respondents say that the 2012 changes to the IFHP are consistent
with, and complementary to Parliament’s goals of accelerating the processing of
refugees, removing failed refugees from Canada faster, and dissuading migration
to Canada for the purpose of making unfounded claims: Dikranian affidavit at
paras. 55-56.
[892] The press release accompanying the announcement of the April 2012
OIC identifies several parallel goals underlying the changes to the IFHP. These
include cost containment, fairness to Canadian
taxpayers, and the protection of public health and safety. Defending the
integrity of Canada’s immigration system was also identified as a further objective
of the changes.
[893] Thus, the 2012 changes to the IFHP must be viewed in context as
forming part of a larger government program of reform to the immigration and
refugee system. Within that broader context, the specific objectives of the
2012 OICs may be summarized as being:
1.
Cost containment;
2.
Fairness to Canadians;
3.
The protection of public health and safety; and
4.
The protection of the integrity of Canada’s immigration system.
[894] The next question to be addressed is whether these goals are “pressing and substantial”.
C.
Are the Objectives of the 2012 changes to the
IFHP “Pressing and Substantial”?
[895] As Chief Justice McLachlin observed in A.G. v. A, in order to
satisfy the section 1 test, the onus is on the respondent to demonstrate “a
sufficiently important objective to justify an infringement of a Charter right”:
above at para. 434. Indeed, “[b]ecause the question is
whether the broader public interest justifies the infringement of individual
rights, the law’s goal must be pressing and substantial”: Bedford, above at para. 126.
[896] As will be explained below, I am satisfied that some, but not all of
the objectives of the 2012 changes to the IFHP do qualify as “pressing and substantial” objectives.
(1)
Cost Containment
[897] The first question is whether the goal of “cost
containment” can be said to be a “pressing and
substantial” government objective.
[898] The respondents’ submissions on this point were very brief.
Reference was made to evidence contained in Ms. Le Bris’ affidavit indicating
that the cost of providing health care in Canada
generally increased by about 25% between 2005 and 2010, during which period,
the number of IFHP beneficiaries continued to rise. The categories of
individuals covered under the IFHP also expanded.
[899] The respondents further note that the average period of IFHP
eligibility rose over time. In 2003, it was 548 days, on average. By 2012, that
number had almost doubled.
[900] According to an explanatory note accompanying the publication of the
April 2012 OIC in the Canada Gazette, the government anticipated saving
$70 million in the first three years of the new program, and $15 million in
each fiscal year thereafter.
[901] The respondents submit that “this is not insignificant for CIC and for the federal government”, and that “cost
containment is a sufficiently important objective [to be considered pressing
and substantial], particularly in times of fiscal constraint”: Transcript, Vol. 3, p. 137.
[902] Controlling costs is clearly a central responsibility of governments
as guardians of the public purse. Does it follow that a policy objective of
containing costs within a given government department is necessarily a pressing
and substantial one for the purposes of a section 1 Charter analysis?
[903] The Supreme Court has on several occasions considered the extent to
which the issue of cost can be considered to be a “pressing
and substantial” objective in the context of a section 1 Charter
analysis.
[904]
In Nova Scotia (Workers’ Compensation
Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, the Court observed that
“[b]udgetary considerations in and of themselves cannot
normally be invoked as a free-standing pressing and substantial objective for
the purposes of s. 1 of the Charter”: at para. 109.
[905]
The Court did, however, find that budgetary
considerations were a “pressing and substantial”
objective in Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC
66, [2004] 3 S.C.R. 381 [N.A.P.E.]. In that case, the Court had to determine
whether a legislative provision that had the effect of extinguishing a pay
equity settlement, thereby breaching the section 15 Charter rights of the
beneficiaries of the settlement, could be justified under section 1 of the
Charter.
[906] In concluding that a section 1
justification had been established by the Government of Newfoundland, the
Supreme Court had regard to its comment in Martin that budgetary considerations cannot normally be invoked as a
free-standing pressing and substantial objective for the purposes of section 1
of the Charter. The Court went on, however, to note that the evidence before it
demonstrated that “[t]he spring of 1991 was not a
‘normal’ time in the finances of the provincial government”. Indeed, the Court was satisfied that at the time that
the legislation in issue was enacted, the province was facing a financial
crisis: N.A.P.E., above at
paras. 59-62.
[907]
The Supreme Court went
on to observe that “[a]t some point, a financial crisis can attain a dimension
that elected governments must be accorded significant scope to take remedial
measures, even if the measures taken have an adverse effect on a Charter right,
subject, of course, to the measures being proportional both to the fiscal
crisis and to their impact on the affected Charter interests”: N.A.P.E., above at para. 64.
[908]
In contrast, while the
respondents in this case made passing reference to these
being “times of fiscal
constraint”, there was no suggestion that Canada is currently in a state of financial
crisis as was the case in N.A.P.E.
[909]
That said, the Court
went on in N.A.P.E. to state that while financial cost alone will not
ordinarily create a pressing and substantial objective
for the purposes of section 1 of the Charter, “financial
considerations wrapped up with other public policy considerations could
qualify as sufficiently important objectives under s. 1”: at para. 69, emphasis in the original.
[910]
Thus it
appears that where cost is the only objective of the government action in
issue, cost containment will only be considered to constitute a pressing and substantial government objective in extreme situations.
[911]
Given that cost
containment is only one of several goals of the 2012 changes to the IFHP, and
was accompanied by other policy objectives, I am prepared to accept that it is
a pressing and substantial government objective. I will, however, return to consider the respondents’
financial arguments under both the “minimal
impairment” and “proportionality”
components of the section 1 analysis.
(2)
Fairness to
Canadians
[912]
Insofar as the “fairness
to Canadians” argument is concerned, I accept that ensuring that
Canadians are treated fairly in comparison to how non-Canadians are treated
could, in some cases, constitute a pressing and substantial governmental
objective. I am not, however, persuaded that seeking “fairness
for Canadians” constitutes a “pressing and
substantial” government objective in this case, simply because it has
not been established that there was anything unfair to Canadians about the
pre-2012 IFHP.
[913] The respondents say that to be fair to Canadians, most IFHP
beneficiaries should receive health care benefits that are equal to
government-funded provincial or territorial health insurance plans available to
working Canadians who are not receiving social assistance. Fairness to
Canadians further requires that the level of taxpayer-funded coverage provided
by Canada to IFHP recipients should diminish if a refugee claim is withdrawn,
abandoned, suspended or rejected.
[914] Finally, the respondents say that in order to be fair to Canadians, some
IFHP beneficiaries receiving government assistance should receive enhanced
benefits, equal to what Canadians receiving certain forms of government
assistance receive.
[915] Dealing with the respondents’ first “fairness”
argument, Ms. Le Bris’ affidavit explains that “[o]ne
of the key underlying principles of the policy reform was to put in place a
program that provided coverage that was not more generous than benefits
received by Canadians”: at para. 50.
[916] Similarly, the April 25, 2012 press release accompanying the
announcement of the April 2012 OIC quotes the then-Minister of Citizenship and
Immigration explaining that “we do not want to ask Canadians to pay for
benefits for protected persons, refugee claimants and others that are more
generous than what they are entitled to themselves”.
[917]
It will be recalled that the statement made on
behalf of the then-Minister shortly after the 2012 changes to the IFHP came
into effect also addressed this “fairness to Canadians”
issue, stating 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”.
[918] The respondents elaborated on this at the hearing, explaining that
under the pre-2012 IFHP, all program beneficiaries received more publicly
funded health care insurance benefits than were received by Canadians under
their provincial or territorial plans. This included insurance benefits for
virtually all their health care needs, including optometry, dental,
prescription medication, nursing visits, long term care, rehabilitative care,
and ambulatory services - benefits that are not ordinarily available to working
Canadians through provincial and territorial health-insurance plans.
[919]
As was noted earlier, there is no dispute about
the fact that those seeking the protection of Canada are generally economically
disadvantaged. Under the pre-2012 IFHP, individuals who were able to satisfy a
means test were entitled to a level of health insurance coverage that provided
them with health care benefits that were roughly equivalent to those afforded
to low-income Canadians through provincial or territorial health insurance
plans.
[920] The pre-2012 IFHP thus 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.
[921] This aspect of the respondents’ “fairness
to Canadians” argument is thus based upon a flawed premise:
namely, that there was something “unfair to Canadians” about the pre-2012 IFHP.
In the absence of any demonstrated unfairness to Canadians resulting from the
provisions of the pre-2012 IFHP, there was no question of “fairness to
Canadians” that could constitute a “pressing and substantial” objective of the
government action in issue.
[922] The respondents contend that the objective of “fairness to Canadians” also took into account that
individuals who have abandoned or withdrawn their refugee claims should not be
entitled to publicly funded health insurance benefits under the IFHP. I do not
need to address this argument as the applicants are not challenging this aspect
of the 2012 changes to the IFHP.
[923] The respondents also say that the objective of “fairness to Canadians” means that persons not in need
of Canada’s protection - those who have been determined not to be refugees -
should not be the beneficiaries of publicly funded health insurance benefits
under the IFHP.
[924] Ms. Le Bris explains this policy objective in her affidavit, stating
that “[a]nother important element of this ‘fairness’
requirement supporting the IFHP reforms was that persons found not to be in
need of protection by Canada should not be granted the same level of health
coverage as those who could be refugees (refugee claimants) or have been found
to be refugees by the IRB”: at para. 56.
[925] To the extent that this is really an argument that Canadians should
not be expected to pay for health insurance coverage for failed refugee
claimants, the argument is better addressed in the context of the objective of
cost containment. Suffice it to say in the present context, that it is not
readily apparent how it is unfair to Canadians that those individuals
seeking the protection of Canada receive health insurance coverage for core
health care services and products for as long as they are in compliance with
Canadian immigration and refugee laws.
[926] This is especially so when one considers that some failed refugee
claimants will ultimately succeed in obtaining the protection of Canada through the Pre-removal Risk Assessment process. Other failed claimants may be
unable to leave Canada until such time as travel documents are obtained from
their country of origin. Still others, like Mr. Ayubi, may come from
moratorium countries, where the Government of Canada has determined that the
conditions are simply too dangerous to allow them to return home.
[927] Finally, the respondents assert that in order to be fair to
Canadians, some IFHP beneficiaries receiving government assistance should
receive enhanced benefits equal to what Canadians receiving certain forms of
government assistance receive. It is not, however, clear how it is any fairer
to Canadians that most government-assisted refugees and some
privately-sponsored refugees receive Expanded Health Care Coverage, while other
privately-sponsored refugees and refugee claimants only receive Health Care
Coverage or Public Health and Public Safety Coverage.
[928] As a consequence, I have not been persuaded that seeking “fairness for Canadians” constitutes a “pressing and substantial” government objective in
this case
(3)
Protecting Public
Health and Public Safety
[929] I accept the respondents’
contention that safeguarding public health and public safety is a pressing and substantial government
objective. Whether the changes to the IFHP actually have this effect is a
question that I will address under the “rational
connection” component of the analysis.
(4)
Protecting the Integrity of Canada’s Immigration
System
[930]
Finally, the applicants accept that there is
abuse in the refugee system and have expressly conceded that preserving the
integrity of Canada’s immigration system is a pressing and substantial
objective.
[931] The respondents have, moreover, provided evidence of the significant
number of refugee claims that are rejected each year by the Immigration and
Refugee Board, particularly those emanating from countries that have been
identified as Designated Countries of Origin.
[932] I am thus satisfied that the protection of the integrity of Canada’s immigration system is a pressing and substantial governmental objective.
D.
Is the Impairment of the Charter Rights at Issue
Proportional to the Importance of the Objectives of the 2012 OICs?
[933] Having identified the objectives of the 2012 changes to the IFHP,
and having determined that at least some of these objectives are pressing and
substantial, the analysis then moves on to the second phase of the Oakes
test. At this stage the question is whether the impairment of the section 12
and section 15 rights at issue in this case is proportional to the importance
of the government’s objectives: that is, whether the
means chosen by the Governor in Council to achieve its objectives are
proportional or appropriate to the ends.
[934] Put another way, the task for the Court at this stage of the inquiry
is to determine whether impugned legislation is “carefully
designed, or rationally connected, to the objective”. Legislation “must impair the right in issue as little as possible”,
and the effect of the legislation “must not so severely
trench on individual or group rights that the legislative objective, albeit
important, is nevertheless outweighed by the abridgment of rights”: R.
v. Edwards Books, above at para.117.
[935] The three branches of the proportionality component of the Oakes
test have been usefully described as concerning the logical (rational
connection), the careful (minimal impairment) and the just (balancing/proportionality):
Guy Davidov, “Separating Minimal Impairment from Balancing: A Comment on R.
v. Sharpe (B.C.C.A.)” (2000) 5 Rev. Const. Stud. 195.
[936] Context infuses every aspect of this
component of the Oakes test: Health
Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, above at para. 195.
[937] In assessing whether the impairment of the sections 12 and 15
Charter rights at issue in this proceeding is proportional to the importance of
the objectives of the 2012 changes to the IFHP, the first question is whether
there is a rational connection between the policy objectives of the Governor in
Council and the means that were chosen to attain those objectives. This issue
will be considered next.
(1)
Are the 2012 Changes to the IFHP Rationally
Connected to the Objectives of the Governor in Council?
[938] As the Supreme Court observed in Bedford,
“[t]he ‘rational connection’ branch of the s. 1
analysis asks whether the law was a rational means for the legislature to
pursue its objective”: above at para. 126.
[939] That is, the respondents must show that reducing the level of health
insurance coverage for some classes of individuals seeking the protection of Canada and eliminating it altogether for others is rationally connected to the four identified
goals of the Governor in Council in modifying the IFHP. The burden on the
respondents to show a rational connection between its means and its ends is “is not a heavy one”: A.G. v. A., above at para. 359.
[940] To establish the existence of such a rational connection, the party invoking section 1 of the Charter must demonstrate “a causal connection between the infringement and the benefit
sought on the basis of reason or logic”: RJR-MacDonald
Inc., above at para. 153.
[941] As the Supreme Court explained in Alberta
v. Hutterian Brethren of Wilson Colony, 2009 SCC 37,
[2009] 2 S.C.R. 567 [Hutterian Brethren], “[t]he
rational connection requirement is aimed at preventing limits being imposed on
rights arbitrarily. The government must show that it is reasonable to suppose
that the limit may further the goal, not that it will do so”: at para.
48, my emphasis.
[942] As Chief Justice Dickson observed in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, [1990] S.C.J. No. 129, “... as long as the challenged provision can be said to
further in a general way an important government aim it cannot be seen
as irrational”: at para. 56, my emphasis.
[943] With this understanding of the relevant legal principles, I turn now
to consider the 2012 changes to the IFHP in light of each of the Governor in
Council’s four underlying objectives.
(a)
Cost Containment
[944]
Dealing first with the objective of “cost containment”, as will be discussed further on in these reasons, there are
significant problems with the evidence adduced by the respondents as to the
cost savings that will allegedly be achieved as a result of the 2012 changes to
the IFHP. Suffice it to say at this juncture that to the extent that one of the
objectives of the changes to the IFHP was cost containment, it has not be
demonstrated that the 2012 changes to the IFHP will in fact result in any real
savings to Canadian taxpayers.
[945] That said, the effect of the 2012 changes to the IFHP has been to reduce the number of people eligible for benefits under the IFHP.
The 2012 OICs also cut the level of health insurance coverage provided by the
federal government to the vast majority of those seeking the protection of Canada, and eliminated it altogether for individuals who are only entitled to a PRRA. To
that extent, it is reasonable to suppose that the cuts may result in a
reduction of costs to the program, and
the changes to the IFHP are thus rationally connected to the goal of cost
containment.
(b)
Fairness to Canadians
[946] The second objective of the 2012 changes to the IFHP identified by
the respondents is “fairness to Canadians”. In
other words, the intention of the Governor in Council was to put in place a
program that did not provide more generous benefits than those that are received
by working Canadians.
[947] I have already explained why this argument is based upon a faulty
premise inasmuch as there was no unfairness to Canadians arising out of the
pre-2012 IFHP. However, even if I had accepted that such unfairness existed, I
have also not been persuaded that the changes made to the IFHP in 2012 could
rationally be seen to address that unfairness.
[948] That is, it is no fairer to Canadians to now provide vulnerable,
poor and disadvantaged asylum seekers with a level of health insurance coverage
that is comparable to that available to working Canadians.
[949] Canadians are also not treated any more fairly because refugee
claimants from DCO countries, and failed refugee claimants who are still in
compliance with Canadian immigration and refugee laws, are now denied any
health insurance coverage whatsoever, unless it is for a condition that
endangers public health or public safety.
[950] Nor is it somehow fairer to Canadians that those only entitled to a
PRRA receive no health insurance coverage whatsoever, even if they suffer from
a health condition that puts the health and safety of those same Canadians at
risk. This is not a hypothetical concern: for example, the respondents’ own
witness acknowledged the high incidence of tuberculosis in the refugee
population: see Le Bris affidavit at para. 67.
[951] Moreover, a City of Toronto study entitled “Health Impacts of
Reduced Federal Health Services for Refugees”, states that Canadian
research has shown that “refugees face increased health risks as a result of
infectious and communicable diseases, including mortality form infectious and
parasitic diseases and hepatitis”: at p. 6.
[952]
The government may well have an interest in
seeing that Canadians are treated fairly. However, given the absence of any
evidence that the pre-2012 IFHP was unfair to Canadians or that the 2012 IFHP
is any fairer to Canadians, the respondents have failed to establish that the
2012 changes to the IFHP are rationally connected to the goal of achieving
fairness for Canadians.
(c)
Protecting Public Health and Safety
[953]
To the extent that the 2012 IFHP continues to
provide health insurance coverage to those involved in the refugee
determination process for conditions that pose a risk to public health or
public safety, it could be said that it is rationally connected in a general
way to the objective of protecting public health and safety.
[954] However, I agree with the applicants that concerns about the extent
of their health insurance coverage may well deter some IFHP beneficiaries,
particularly those from DCO countries, from seeking medical treatment for
health conditions that may turn out to be communicable diseases, thereby
potentially jeopardizing public health.
[955] Indeed, as Dr. Rachlis observed, denial of coverage for routine
primary health care service will inevitably lead to reduced contact with health
care services: affidavit at para. 35.
[956] The result of this is that if, for example, impecunious failed
refugee claimants or refugee claimant parents from a DCO country have a child
with a cough, they may be reluctant to take the child to see a doctor because
of the restricted nature of the family’s health insurance coverage and their
limited financial resources. If it subsequently turns out that the cause of the
child’s cough was tuberculosis, the child’s classmates, friends and teachers
may have already been infected by the child, thereby jeopardizing the public
health and safety of Canadians.
[957] Moreover, as Mr. Bradley pointed out, there are other
communicable health conditions such as conjunctivitis, head lice, scabies and
diarrhoea, all of which can jeopardize the health of school children, in
particular. These conditions are not on the list of communicable
diseases for which treatment will be available under the Public Health and
Public Safety component of the 2012 IFHP: Bradley affidavit at para. 11.
[958] This means that children affected with these ailments may be banned
from school under school board policies, thus perpetuating their disadvantage. It
also means that they may infect other children as a result of their untreated
conditions, thereby jeopardizing the public health and safety of Canadian
children.
[959] While the problem appears to have now been resolved, I would also
note that the 2012 IFHP originally limited coverage for doctors’ visits and
diagnostic testing in a way that impeded the ability of doctors to determine
whether a patient did, in fact, suffer from a condition that posed a risk to
public health or public safety and was covered by the IFHP.
[960] Moreover, as was noted earlier, one of the 2012 changes to the IFHP
was to take away every form of previously-offered health insurance
coverage for those only entitled to a PRRA, including coverage for the
diagnosis and treatment of health conditions such as tuberculosis or HIV –
conditions that can pose a risk to public health or public safety.
[961] The respondents explain that the IFHP was not intended to provide
benefits to everyone seeking protection in Canada. According to the
respondents, a policy decision was made to link IFHP eligibility to the refugee
determination process. Because PRRA-only applicants do not go before the Immigration
and Refugee Board, they are no longer eligible for IFHP benefits.
[962] That may be so, but what is at issue at this stage of the analysis
is whether the means chosen by the Governor in Council in making the 2012
changes to the IFHP are rationally connected to their objectives. Inasmuch as
the decision was made to take health insurance coverage for the diagnosis and
treatment of health conditions that pose a risk to public health or public
safety away from those individuals who are only entitled to a PRRA, that
decision cannot be said to be rationally connected to the objective of
protecting public health and safety.
(d)
Protecting the Integrity of Canada’s Immigration System
[963] The final objective of the 2012 changes to the IFHP is the protection
of the integrity of Canada’s immigration system.
[964] According to the respondents, the 2012 changes to the IFHP limit or
take away an incentive for individuals, particularly those from Designated
Countries of Origin, to come to Canada and make refugee claims, and may encourage
unsuccessful refugee claimants to leave the country more rapidly.
[965] The evidentiary foundation for this argument is found in paragraph
73 of the affidavit of Sonia Le Bris. It will be recalled that Ms. Le Bris has
been the Acting Director of Migration Health Policy and Partnerships within
CIC’s Health Branch since June 2011.
[966] As noted earlier, Ms. Le Bris explained that “the previous IFHP was perceived by some as
constituting a reason why some foreign nationals came to Canada to assert
unfounded claims and also a reason why they sought to remain in Canada for as
long as possible after their claims were rejected by the IRB and often the
Federal Court” [my emphasis].
[967] I find it troubling that the respondents seek to justify actions
that I have found to be cruel, inhumane and discriminatory by relying on the
subjective perceptions of unidentified individuals.
[968] As I have already noted, no attempt appears to have been made by the
government to determine whether this subjective perception is in fact
objectively justified. Ms. Dikranian (the Manager of Asylum Policy in the
Refugee Affairs Branch of Citizenship and Immigration Canada during the
relevant period) confirmed that she was not aware of any studies having been
carried out by the federal government in an effort to determine if there was any
objective validity to this perception: Dikranian cross-examination, question
210.
[969] Not only have I not been provided with any empirical evidence on
this point, I have also not been provided with any evidence as to why such empirical
evidence could not be obtained by the respondents.
[970] The respondents argued at the hearing that evidence of this nature
would not be available as no one was going to admit that they came to Canada in order to access state-funded health care. Instead, the respondents urge me to
simply rely on “reason and logic” in this regard.
[971] In support of this contention, the respondents point to the Supreme
Court’s decisions in cases such as Libman v. Quebec (Attorney General),
[1997] 3 S.C.R. 569 at para. 39, [1997] S.C.J. No. 85, and RJR-MacDonald Inc., above, where the Supreme Court observed that scientific
proof is not always required in order for a government
to establish a section 1 justification on a balance of
probabilities. The Court observed in RJR-MacDonald Inc. that “the balance of probabilities may be established by the
application of common sense to what is known, even though what is known may be
deficient from a scientific point of view”: at p. 333.
[972] The respondents have not, however, established that asking those
seeking the protection of Canada whether access to state-funded health care
operated as a “pull” factor in their case would
be the only way to measure the extent to which access to state-funded health care
operates as an incentive for people to come to Canada in order to advance
unmeritorious refugee claims or to remain in this country for longer than they
would otherwise have done, once those claims have been rejected.
[973] As was discussed in the course of the hearing, one potential way to
determine whether this perception is objectively supported would be to look at
epidemiological research as to the incidence of chronic illnesses such as
diabetes in the refugee population in Canada as compared to the incidence of
the same illnesses within the equivalent population in the claimants’ countries
of origin.
[974] Evidence showing that a disproportionate number of those seeking the
protection of Canada suffer from chronic diseases could provide at least some
objective circumstantial evidence regarding the extent to which the
availability of state-funded health care operates as an incentive for people to
come to or remain in Canada.
[975] The respondents’ arguments as to the incentive provided by
state-funded health insurance coverage are also inconsistent with other
arguments that they have made in this case.
[976] I have already noted that the respondents’ claim that the availability
of health care in Canada operates as a “pull factor”
for refugee claimants from DCO countries is difficult to reconcile with their
argument that refugee claimants from DCO countries do not need health insurance
coverage while they are in Canada because they can get comparable health care
back home.
[977] The respondents also argued that the cuts to the IFHP are defensible
as there are numerous alternative ways that those seeking the protection of Canada can access medical care, such as community health clinics and hospital emergency
rooms. I did not accept this argument. However, if it were true that there are
indeed satisfactory alternatives readily available to those seeking the
protection of Canada, it is difficult to see how changing the IFHP would deter
anyone from coming to Canada.
[978] I will return to my concerns with respect to the frailties in the
respondents’ evidence on this point when I examine the issues of minimal
impairment and proportionality.
[979] However, we know from the Supreme Court’s decision in Hutterian
Brethren that all that is required at the “rational
connection” stage is that it be “reasonable to
suppose” that the changes to the IFHP may further the government’s goal
of preventing abuse of the immigration system, “not
that it will do so”, above at para. 48.
[980] We know from reading the Immigration and Refugee Board’s decision in
Mr. Ayubi’s case that one of the reasons he left Afghanistan and came to Canada was his fear about his continued ability to access medication for his
diabetes in Afghanistan. While that may not have been the only reason that Mr. Ayubi
came to Canada, the availability of medical care in this country does appear to
have played a role in his decision.
[981] It is also reasonable to assume that Mr. Ayubi is not alone,
and that the availability of state-funded health care may provide something of
an incentive for at least some individuals to come to Canada, although we have no evidence as to the extent to which this may be a consideration.
[982] We also know that the unavailability of medical care in other
countries can and has provided an incentive for some individuals to seek to
stay in Canada after their refugee claims have failed: see, for example, Covarrubias,
above.
[983] As a consequence, I am satisfied that the 2012 changes to the IFHP
are rationally connected to the objective of protecting the integrity of Canada's refugee determination system and deterring its
abuse.
(2)
Do the 2012 Changes to the IFHP Impair Charter
Rights Minimally or “As Little as Possible?
[984] The next stage of the Oakes analysis requires the Court to
examine whether the changes made to the IFHP through the 2012 OICs impair the Charter
rights of those seeking the protection of Canada minimally or “as little as reasonably possible in order to achieve the
legislative objective”: RJR-MacDonald Inc., above at para. 160.
See also A.G. v. A., above at para. 360, R. v. Edwards Books,
above at para. 117.
[985] In Hutterian Brethren, the Supreme Court observed that the
question at this stage of the analysis is “whether the
limit on the right is reasonably tailored to the pressing and substantial goal
put forward to justify the limit”. That is, the Court must consider “whether there are less harmful means of achieving the
legislative goal”: above at para. 53.
[986] Courts must, however, accord governments “a
measure of deference, particularly on complex social issues where the
legislature may be better positioned than the courts to choose among a range of
alternatives”: Hutterian Brethren, above at para. 53.
[987] Indeed, in A.G. v. A., Chief Justice McLachlin observed that “the state must have a margin of appreciation in selecting
the means to achieve its objective”: at para. 439. That said, this deference
“is not blind or absolute”: para. 63.
[988] In RJR-MacDonald Inc., the Supreme Court held that in order
for an impairment to be “minimal”, the
legislative or policy choice of the government “must be
carefully tailored so that rights are impaired no more than necessary”. The
Court acknowledged that the tailoring process may not be perfect, but that if
the government action “falls within a range of
reasonable alternatives, the courts will not find it overbroad merely because
they can conceive of an alternative which might better tailor objective to
infringement”: above at para. 160.
[989] Where, however, “the government fails to
explain why a significantly less intrusive and equally effective measure was
not chosen, the law may fail”: RJR-MacDonald Inc., above at para.
160.
[990] The Court further explained in Hutterian Brethren that there
is an “internal limitation” within the minimal
impairment test, given that the test “requires only
that the government choose the least drastic means of achieving its objective”,
whereas other, less drastic means that do not achieve the stated
objectives are not considered at this stage: above at para. 54, emphasis in the
original.
[991]
In conducting a ‘minimal impairment’ analysis, a
Court “need not be satisfied that the alternative would
satisfy the objective to exactly the same extent or degree as the
impugned measure”: Hutterian Brethren, above at para. 55,
emphasis in the original.
[992]
The Supreme Court went on in the same paragraph
in Hutterian Brethren, however, to state that Courts “should not accept an unrealistically exacting or precise
formulation of the government’s objective which would effectively immunize the
law from scrutiny at the minimal impairment stage”. The Court further
noted that “[t]he requirement for an ‘equally effective’
alternative measure … should not be taken to an impractical extreme”, and
“includes alternative measures that give sufficient
protection, in all the circumstances, to the government’s goals”, citing
Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,
[2007] 1 S.C.R. 350.
[993]
The Court concluded in Hutterian Brethren
by noting that “[t]he test at the minimum impairment
stage is whether there is an alternative, less drastic means of achieving the
objective in a real and substantial manner”: above at para. 55.
[994]
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.
[995] The question for the Court is thus whether the means chosen by the Governor
in Council to achieve its remaining goals of cost containment and the
protection of the integrity of Canada’s immigration system were reasonably
tailored to address the problems of escalating costs and abuse of the
immigration system: Hutterian Brethren, above at para. 56.
[996] Can it be said that the 2012 changes to the IFHP impair the section
12 and 15 Charter rights of those seeking the protection of Canada minimally or “or as little as is reasonably possible”
in order to achieve the objectives of the Governor in Council? In other words,
could the Governor in Council achieve its objectives in a less infringing
manner?
(a)
Cost Containment
[997] Insofar as the issue of cost containment is concerned, the
jurisprudence has made it clear that although purely financial considerations
are insufficient to justify an infringement of Charter rights, the issue of
cost can be taken into consideration at the minimal impairment stage in
determining the standard of deference owed to government policy choices: N.A.P.E.,
above, at para. 79, citing Reference re Remuneration of Judges of the
Provincial Court of Prince Edward Island; Reference re Independence and Impartiality
of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R.
3 at para. 283, [1997] S.C.J. No. 75.
[998] As previously noted, the explanatory note accompanying the
publication of the April 2012 OIC in the Canada Gazette stated that the government
anticipated saving $70 million in the first three years of the new IFHP
program, and $15 million in each fiscal year thereafter.
[999]
While these amounts are substantial, it does not
necessarily follow that the anticipated reduction in program spending is
entirely, or even primarily, attributable to the 2012 changes to the IFHP.
[1000] First of all, it was not clear from the cross-examination of Ms. Le
Bris how these estimates were arrived at, or the extent to which a reduction in
the number of refugee claims, particularly those filed by claimants from DCO
countries, factored into the equation. Ms. Le Bris did, however, confirm that
the estimated $70 million saving over three years “was
a global saving”, and she was unable to recall how much of that amount
would have been attributable to IFHP savings: Le Bris cross-examination,
questions 63-80.
[1001] Indeed, as was emphasized by the respondents throughout the hearing,
the 2012 changes to the IFHP cannot be considered in isolation as they were but
one part of a comprehensive package of changes that have been made to the
refugee determination system in recent years.
[1002] Entitlement to IFHP benefits was previously closely tied to the
length of time that a program beneficiary remained in Canada, and the average period of IFHP eligibility continued to rise over time. According to Ms. Le
Bris’ affidavit, in 2003, the average period of program eligibility was 548
days. By 2012, that number had almost doubled to 948 days: at para. 83.
[1003] This was due, in part, to the fact that the previous refugee
determination process was slow. According to Ms. Dikranian’s evidence, before
the changes were made to the IFHP in 2012, it took some
20 months from the time that a refugee claim was filed for the case to proceed
to a hearing before the Immigration and Refugee Board.
[1004] Ms. Dikranian further explained that it took
on average some four-and-a-half years from the date a refugee claim was filed to
the date that the individual was removed from Canada following the rejection of
that claim. That number has been greatly reduced as a result of the changes to
the system, and the government is currently aiming to have failed refugee
claimants removed from Canada within approximately 14 months of the rejection
of their claims.
[1005] However, as the respondents have pointed out, the speeding up of the
refugee determination process and the deterrence of
abuse was not a goal that was unique to the reform of the IFHP. Through the
enactment of the Balanced Refugee Reform Act, the Protecting Canada’s
Immigration System Act, and the Faster Removal of Foreign Criminals Act,
S.C. 2013, c. 16, Parliament has implemented other measures designed to
achieve the same goal.
[1006] The changes to the refugee determination process included the
creation of “Designated Countries of Origin”, and
the introduction of an expedited claims process for claimants from DCO
countries. According to the respondents, the number of refugee claims made by
individuals coming from DCO countries since January of 2013 has dropped
significantly.
[1007] Ms. Dikranian also confirmed in her cross-examination that the
imposition of a visa requirement for visitors coming from Mexico likely had an impact on the number of refugee claims from that DCO country.
[1008]
Moreover, certain classes of individuals are no
longer entitled to a statutory stay of removal pending an application for leave
and for judicial review to this Court, permitting the government to remove
individuals in these groups from Canada more quickly.
[1009] Other changes designed to expedite the process included time bars on
alternate avenues of recourse for failed refugee claimants, such as Pre-removal
Risk Assessments and applications for permanent residence on humanitarian and
compassionate grounds. In addition, the government has implemented an “Assisted Voluntary Returns and
Reintegration” pilot program, which provides
financial support to those willing to voluntarily return to their countries of
origin.
[1010] Ms. Dikranian also confirmed in cross-examination that the Refugee
Protection Division of the Immigration and Refugee Board was able to reduce its
backlog by approximately 50%, once the government appointed a full complement
of members to the Board after having left many positions vacant for long
periods of time. This has greatly assisted in speeding up the refugee determination
process.
[1011] Spending on the IFHP may well decrease substantially over the next
few years. However, no attempt appears to have been made to determine how much
of the anticipated cost savings will actually be attributable to the cuts to
the level of benefits provided under the program and the restriction on the
classes of people that are eligible for benefits, as opposed to the fact that
fewer individuals are coming to Canada to make refugee claims and many
claimants who do come are now in Canada for much shorter periods of time.
[1012] There is, thus, 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, as will be discussed in the next
section of these reasons, 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.
[1013]
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?: Hutterian
Brethren, above at para. 55.
[1014] The applicants point out that by simply bringing the complement of
adjudicators on the Immigration and Refugee Board up to full strength, the
government was able to greatly reduce the length of time that cases languished
before the Immigration and Refugee Board. This has, in turn, helped to shorten
the time that unsuccessful claimants remain in Canada, reducing the period for
which they are eligible for IFHP benefits, with a commensurate cost savings.
Adding even more members to the Board would presumably further improve
processing times.
[1015] The government is also ensuring that removals are carried out more
quickly after refugee claims are rejected, again reducing the time that
claimants are eligible for IFHP benefits, reducing program costs accordingly.
One can assume that speeding up the removals process even more would result in
further cost savings to the IFHP, without requiring a reduction in the level of
benefits provided by the program.
[1016] There would, of course, be costs associated with adding more members
to the Immigration and Refugee Board or expediting the removal of failed
refugee claimants, and I have no evidence as to what these costs would be.
[1017] However, I also do not have any reliable evidence as to the cost
savings that are or will likely be directly attributable to the 2012 changes to
the IFHP. In the circumstances, the respondents have not persuaded me that
there are no alternatives to cutting the benefits to the IFHP that could
reasonably achieve the government’s goal of cost containment “in a real and substantial manner”: Hutterian
Brethren, above at para. 55.
(b)
Protecting the Integrity of Canada’s Immigration System
[1018] Insofar as the protection of the integrity of Canada’s immigration system is concerned, the respondents’ evidence is that the 2012 changes to the
IFHP were intended to take away an incentive for individuals, particularly
those from Designated Countries of Origin, to come to Canada and make unmeritorious refugee claims.
[1019] As was noted earlier, the 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.
[1020] As the applicants have noted, there is no evidence that any other
developed country uses the denial of publicly-funded primary health care as a
means of deterring unfounded refugee claims.
[1021] Moreover, the Government of Canada has conceded that it has not
carried out any research in order to determine whether denying health care as a
means of deterrence has any empirical validity or chance of success. Indeed,
the respondents’ witnesses confirmed in their cross-examinations that the means
chosen were based on “perceptions” and “beliefs”, and they were not aware of any
evidence that would support limiting access to state-funded health
insurance coverage as an effective means of deterring unmeritorious refugee
claims.
[1022] It is true that the respondents have adduced evidence that shows
that the number of refugee claims from DCO countries have dropped significantly
since the implementation of the changes to the IFHP. According to the affidavit
of Ms. Dikranian, 6,718 refugee claims were filed by individuals from DCO
countries in 2011, which represented 26% of all claims filed that year, and
4,298 such claims were filed in 2012, representing 21% of all claims filed. In
the first half of 2013, after the implementation of the changes to the IFHP, only
323 refugee claims had been filed by individuals from DCO countries,
constituting only 7% of the total number of claims filed in the same period. It
does not, however, follow from this that the 2012 changes to the IFHP are
necessarily having their intended deterrent effect.
[1023] This is because the promulgation of the 2012 OICs was accompanied by
the numerous other measures that have been previously identified, all of which
were intended to speed up the refugee determination process and curtail the
abuse of the system. No attempt has, however, been made to segregate out the
extent to which the various deterrent measures implemented by the Government of
Canada are having their desired effect.
[1024] Indeed, the respondents conceded at the hearing that “one can only speculate” that the
drop in refugee claims from DCO countries is attributable, at least in part, to
the 2012 changes to the IFHP since “the government does not have any numbers or any sort of study on
why this is the case”. The respondents did suggest
that “one possible and very
plausible explanation” for
the drop in numbers of claims from DCO countries is the changes that were made
to the IFHP: Transcript, Vol. 3 at p. 39.
[1025] 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.
[1026]
The respondents also assert that the changes to
the IFHP were intended to encourage people to leave Canada more quickly after
their claims are dismissed. While I have accepted that some failed refugee
claimants may indeed seek to remain in Canada in order to access potentially
life-saving medical care, I have not been persuaded that there is no less
infringing way to achieve the government’s objective of faster departures.
[1027] Indeed, as I have already noted in relation to the issue of cost
containment, by devoting additional resources to the timely removal of failed
refugee claimants, the Government of Canada can achieve its objective of faster
departures without compromising the health and safety of those who have come to
Canada seeking its protection.
(c)
Other Minimal Impairment Arguments
[1028] The respondents also submit that the 2012 IFHP minimally impairs the Charter rights of those seeking the protection
of Canada because it provides 76% of those currently entitled to IFHP benefits
with health insurance coverage that is comparable to, or better than the level
of health insurance coverage that is provided to working Canadians under
provincial or territorial health insurance plans.
[1029] However, as was noted earlier, 62% of IFHP beneficiaries only receive
HCC-level benefits, the class of benefits that are roughly comparable to those
available to working Canadians not on social assistance. Given that these
individuals are predominately poor, their position cannot reasonably be equated
to the position of working Canadians. As a result, it cannot be said that the
availability of HCC benefits means that the affected individuals’ section 12
and 15 Charter rights have been minimally impaired.
[1030] A further 24% of IFHP beneficiaries admittedly now only have health
insurance coverage for conditions that pose a threat to public health or public
safety. This group is made up of refugee claimants from DCO countries and
claimants who have exhausted all their remedies in Canada. Meanwhile, those who
are only entitled to make PRRA claims receive no health insurance coverage
whatsoever. Once again, it cannot be said that these individuals’ section 12
and 15 Charter rights have been minimally impaired.
[1031] The respondents further contend that the 2012
IFHP minimally impairs the Charter rights of those
seeking the protection of Canada because it is carefully “tailored to their needs as an immigrant
group”: Transcript, Vol. 3, at p. 65.
[1032] As was noted earlier, the respondents initially identified these “needs” as being “health
needs”: Transcript, Vol.
2, p. 188.
[1033] The respondents explain that government-assisted
refugees and certain privately-sponsored refugees are eligible for Extended
Health Care Coverage under the 2012 IFHP because CIC had identified that government-assisted
refugees and certain privately-sponsored refugees who are receiving government income
support would be unable to pay for supplemental health care services. A CIC
Operational Manual appended to Ms. Le Bris’ affidavit also suggests that there
was a recognition on the part of CIC that these classes of refugees cannot
access social services for a year after their arrival in Canada.
[1034] There is, however, no evidence to suggest that other classes of
refugee claimants are any more economically advantaged than government-assisted
refugees and privately-sponsored refugees receiving income assistance. It also
bears recalling that refugee claimants from DCO countries are barred from
working for the first six months that they are in Canada, greatly inhibiting
their ability to pay for their own health care.
[1035] Indeed, Ms. Le Bris confirmed that the government has no data that
would suggest that refugee claimants from DCO countries are any more able to
pay for their health care needs than those from non-DCO countries: Le Bris
cross-examination, question 106.
[1036] The respondents have also not explained how the health needs of the
immigrant group of government-sponsored refugees are different from those of
the immigrant group of privately-sponsored refugees not receiving income
support, or how the needs of the immigrant group of inland refugee claimants
from non-DCO countries are different from those of the immigrant group of
inland refugee claimants from DCO countries. Nor has it been suggested that the
health needs of those seeking the protection of Canada change in a way that
accords with the changes to their level of health insurance coverage as they
move through the refugee determination process.
[1037] When pressed on this point at the hearing, counsel for the
respondents indicated that the only response that she could offer was that
government-assisted refugees, resettled refugees and privately-sponsored
refugees have already been determined to be refugees prior to their arrival in Canada.
[1038] That may be so, but it does not address the question of how the needs
of these “immigrant groups” are different from the needs of individuals
making their refugee claims from within Canada. Indeed, the respondents
ultimately conceded that the changes to the IFHP do not,
in fact respond to the health needs of the various classes of individuals
covered under the program: Transcript, Vol. 2, pp. 187-191.
[1039] The respondents also note that in assessing whether government
action minimally impairs Charter rights, regard may be had to the fact that
alternative measures were considered and reasonably rejected by the government.
They point to changes that were made to the April 2012 OIC through the amending
OIC, as well as CIC’s efforts to address the confusion that followed the 2012
changes to the IFHP as evidence of “responsiveness and
consultation”: Transcript, Vol. 3, p. 143.
[1040] Not only are these steps not evidence that alternative measures were
considered and reasonably rejected by the government, it is noteworthy that all
of them post-dated the fundamental changes to the IFHP that were
effected by the promulgation of the first OIC in April of 2012.
[1041] Finally, the respondents submit that the changes to the IFHP
minimally impair the rights of those seeking the protection of Canada because of the possibility of an exemption being granted by the Minister under
section 7 of the IFHP in “exceptional and compelling
circumstances”.
[1042] However, as I have previously explained, the respondents have
conceded that section 7 does not assist in cases where urgent medical care is
required. Moreover, the Minister cannot provide discretionary coverage for medications
and medical products such as the insulin and diabetic supplies on which Mr. Ayubi’s
survival depends.
[1043] As a consequence, the respondents have not demonstrated that the
changes made to the IFHP through the promulgation of the 2012 OICs minimally impair the Charter rights of those seeking the protection
of Canada.
(3)
Are the 2012 Changes to the IFHP Proportionate
in their Effect?
[1044] The final stage of the Oakes test requires the Court to
consider whether there is proportionality between the deleterious effects of
the program and its salutary objectives, such that the attainment of the goals
of the program is not outweighed by the abridgment of the rights in question.
[1045] As the Supreme Court observed in Hutterian Brotherhood, “the
first three stages of Oakes are anchored in an assessment of the law’s
purpose. Only the fourth branch takes full account of the ‘severity of the
deleterious effects of a measure on individuals or groups’”: above at para. 76.
[1046] In Bedford, the Court further explained that at this stage of
the analysis, the Court is required to “weigh the
negative impact of the law on people’s rights against the beneficial impact of
the law in terms of achieving its goal for the greater public good”. In
so doing, the Court is to have regard to the impact of the impugned government
action, “judged both qualitatively and quantitatively”:
above at para 126.
[1047] In addressing the issue of proportionality, it is important to start
by recalling the fundamental nature of the rights at stake in this case: namely
the right to be free from cruel and unusual treatment and the right to equal
treatment without discrimination on the basis of national origin.
[1048] Also important to the analysis is the devastating impact that the
2012 changes to the IFHP have had on those seeking the protection of Canada. As discussed earlier, I have concluded that the changes brought about by the 2012
OICs are causing significant suffering to an already vulnerable, poor and
disadvantaged population.
[1049] Indeed, I have found as a fact that the 2012 changes to the IFHP are
causing illness, disability, and death.
[1050] I am therefore satisfied that the deleterious effects of the
government action at issue in this case are serious in terms of their quality. Quantitatively,
I am satisfied that these deleterious effects will be felt by a significant
number of individuals, given the thousands of people who come to this country
each year, seeking its protection.
[1051] The question, then, is whether the respondents have met their onus
and shown that the salutary objectives of the 2012 changes to the IFHP outweigh
its significant deleterious effects. On the evidence before me, I have no
hesitation in concluding that they have failed to do so.
[1052] While the protection of public health and public safety is a
salutary objective of the IFHP, taking away health insurance coverage
for conditions that pose a risk to public health or public safety from those
seeking the protection of Canada who are only entitled to a PRRA does nothing
to advance that objective. Indeed, it is actually detrimental to its achievement.
[1053] I have, moreover, concluded that there was nothing unfair to
Canadians about the pre-2012 IFHP, and that Canadians are not treated any more
fairly as a result of the changes brought about by the 2012 OICs. Consequently,
this objective cannot be said to outweigh the negative impact that the 2012
changes to the IFHP has had on those seeking the protection of Canada.
[1054] To the extent that the respondents’ “fairness
to Canadians” arguments are really about the cost of the IFHP
program for Canadian taxpayers, cost is certainly a factor that may be
considered in connection with the question of proportionality.
[1055]
Indeed, in N.A.P.E., the Supreme Court
observed that governments “have a large ‘margin of
appreciation’ within which to make choices”. However, the Court went on
to note that “the scope of that ‘margin’ will be
influenced, amongst other things, by the scale of the financial challenge
confronting a government and the size of the expenditure required to avoid a
Charter infringement in relation to that financial challenge”: above, at
para. 84.
[1056] It has not been suggested by the respondents that Canada is currently facing a financial crisis of the sort that faced the Government of Newfoundland
in N.A.P.E. Nor is it evident from the record before me that there have,
in reality, been any significant net savings for the taxpayers of Canada that are clearly attributable to the 2012 changes to the IFHP.
[1057] First of all, as was noted in the previous section of these reasons,
we do not have any reliable data that would indicate precisely how much money
will actually be saved directly as a result of the 2012 changes to the IFHP. While
estimates of cost savings have been provided by the respondents, it is not
clear to what extent these program savings are actually attributable to the
fact that refugee claims are now being processed faster and failed refugee
claimants are being removed more quickly after their claims have been dismissed,
rather than the cuts to the IFHP.
[1058] I have accepted that the decreased level of coverage and limitations
on the classes of individuals who are eligible to IFHP benefits will likely
result in some degree of cost savings at the federal level. However, there does
not appear to have been any attempt by the respondents to quantify the extent
to which the health care costs for those seeking the protection of Canada that
were previously borne by the federal government through the IFHP have now simply
been downloaded to provincial and territorial governments, or are being
absorbed by others involved in the health care sector.
[1059] It will be recalled that the respondents have argued that there are
any number of alternatives that are available to individuals who find
themselves in a situation where their particular level of IFHP coverage is not
sufficient for their medical needs. They pointed to the provincial health
insurance coverage that has been instituted in certain provinces in order to “fill the gaps” created by the 2012 changes to the
IFHP as one such example.
[1060] The respondents further submitted that assistance will be available
for some individuals through community health centres and refugee shelters.
Others may benefit from provincially-funded midwifery services, at least in Ontario. Hospital emergency rooms are another source of medical care for IFHP
beneficiaries. The respondents also suggested that going on social assistance
is another way that IFHP beneficiaries can access health care.
[1061] I have previously found as a fact that there are numerous shortcomings
in all of the alternate sources of health care identified by the respondents.
More important for our present purposes, however, is the fact that there is
a real cost to Canadian taxpayers in providing these alternate forms of
health care.
[1062] I have not, however, been provided with any reliable data to show
the extent to which these cost savings have simply been downloaded to others,
including provincial and territorial governments.
[1063] We do know, however, that a community health centre paid some $2,700
on Mr. Ayubi’s behalf for tests that would previously have been covered
under the pre-2012 IFHP, and that the Ottawa Hospital absorbed $1,500 of the
cost. Similarly, the cost of Mr. Akhtar’s chemotherapy treatment was absorbed
by the Saskatoon Cancer Centre.
[1064] Mr. Wijenaike’s urologist has kindly agreed to cover the cost of his
chemotherapy, but he has had to seek medical care through hospital emergency
rooms on a number of occasions. The hospitals have billed Mr. Wijenaike for
their services, but he has been unable to pay the cost of the medical services
that he has received, leaving the hospitals with approximately $5,000 in unpaid
receivables.
[1065] Mr. Bradley, a community health centre employee, also described the
hours that he spent negotiating and advocating on Mr. Ayubi’s behalf – time
that could otherwise have been spent attending to the health care needs of
other patients. Other health care providers have provided similar evidence with
respect to the additional time that they have had to spend on behalf of
patients as a result of the 2012 changes to the IFHP. There is, of course, an
administrative cost to all of this that is borne by publicly-funded health care
institutions.
[1066] Dr. Rachlis has suggested that the reduced expenditures for primary
health care services under the IFHP may actually be outweighed by higher
subsequent costs for other health care services, particularly hospital costs
and emergency room visits. He has identified what he calls the “optimal method” that should be used to estimate the
true costs of providing care for refugees and refugee claimants who have lost
their health insurance coverage. He further explains that, in the absence of
such an analysis having been conducted, “there is
significant doubt that there will be reduced public sector costs as a result of
this new policy”: Rachlis affidavit at para. 6.
[1067] Ms. Le Bris confirmed in her cross-examination that when the
respondents calculated the savings that would be achieved through the 2012
changes to the IFHP, regard was only had to the cost savings that would be
realized by CIC. No consideration was given to the impact that the changes
might have on provincial or territorial health care costs.
[1068] According to Ms. Le Bris, this was because “it’s
such a small percentage of the overall health expenditure in Canada that our
opinion was that the impact would be very, very minimal because it was like $83
million versus, like, you know, billions that it cost. So we looked into it
from that perspective but we didn’t do a detailed cost analysis”: Le
Bris cross-examination, question 84.
[1069] Ms. Le Bris was then asked: “So if I
understand you, the total impact was so small that it wasn’t really worth
trying to figure out how much it would cost when it shifted to the provinces?”
Her response was “Exactly because we continued to pay a
significant amount of the services we were used [sic] to pay for”:
Le Bris cross-examination, question 85.
[1070] The respondents say that the federal government is interested in
containing spending at the federal level, and that it is not obliged to look at
provincial costs. That may be so, but one of the stated goals of the 2012
changes to the IFHP was to “ensure fairness to Canadian
taxpayers”: see the April 25, 2012 press release. It is not at all
clear that Canadian taxpayers are realizing any savings at the end of
the day as a result of the 2012 changes to the IFHP.
[1071] As a result, it has not been shown that the beneficial impact of the
2012 changes to the IFHP in terms of cost containment and fairness to Canadian
taxpayers outweighs the negative impact of the 2012 changes to the IFHP on the
constitutional rights of those seeking the protection of Canada.
[1072] Finally, I have accepted that the protection of the integrity of Canada’s refugee determination process is undoubtedly a pressing and substantial government
objective. However, I have also noted that that the respondents have provided
no evidence as to the extent to which access to taxpayer-funded health care
plays a material role in the abuse of the Canadian refugee system. Nor have the
respondents demonstrated that denying health insurance coverage for primary
health care for those seeking the protection of Canada will have a material
deterrent effect on the bringing of unmeritorious refugee claims.
[1073] Consequently it cannot be said that the beneficial impact of the
2012 changes to the IFHP in terms of protecting the integrity of Canada’s refugee determination process outweighs the negative impact of the 2012 changes to the IFHP
on the constitutional rights of those seeking the protection of Canada.
[1074] In summary, I am satisfied that the profoundly deleterious effects
of the 2012 changes to the IFHP greatly outweigh the salutary goals of the Governor
in Council in making these changes. This is especially so in light of the fact
that it has not been established that the changes will in fact contribute in a
material way to the realization of any of these goals.
(4)
Conclusion with Respect to the Section 1
Justification
[1075] For these reasons I have concluded that the respondents have not
satisfied their onus of demonstrating that the rights violations resulting from
the 2012 changes to the IFHP are justified under section 1 of the Charter as a
reasonable limit prescribed in a free and democratic society.
XIV.
Final Conclusion
[1076] I have thus concluded that the 2012 OICs are not ultra vires
the prerogative powers of the Governor in Council, nor has there been a denial
of procedural fairness in this case.
[1077] I have also concluded that the applicants’ section 7 Charter claim
cannot succeed as what they seek is to impose a positive obligation on the
Government of Canada to fund health care for individuals seeking the protection
of Canada. The current state of the law in Canada is that section 7 guarantees
to life, liberty and security of the person do not include a positive right to
state funding for health care.
[1078] I have, however, concluded that while it is open to governments to
assign priorities and set limits on social benefit plans such as the IFHP, the
intentional targeting of those seeking the protection of Canada - an admittedly poor, vulnerable and disadvantaged group - takes this situation beyond the
realm of traditional Charter challenges to social benefit programs.
[1079] With the 2012 changes to the IFHP, the executive branch of the
Canadian government has intentionally set out to make the lives of these
disadvantaged individuals even more difficult than they already are. It has
done this in an effort to force those who have sought the protection of this
country to leave Canada more quickly, and to deter others from coming here to
seek protection.
[1080] I have found 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 with respect to children who have been brought to this
country by their parents. The 2012 modifications to the IFHP potentially
jeopardize the health, 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.
[1081] I have also concluded that the 2012 changes to the IFHP violate
section 15 of the Charter inasmuch as it now provides a lesser level of health
insurance coverage to refugee claimants from DCO countries in comparison to
that provided to refugee claimants from non-DCO countries. This distinction is
based entirely upon the national origin of the refugee claimants, and does not
form part of an ameliorative program.
[1082] Moreover, this distinction has an adverse differential effect on
refugee claimants from DCO 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. It undermines their dignity and serves to perpetuate
the disadvantage suffered by members of an admittedly vulnerable, poor and
disadvantaged group.
[1083] I have not, however, been persuaded that the IFHP violates
subsection 15(1) of the Charter based upon the immigration status of those
seeking the protection of Canada, as “immigration
status” cannot be considered to be an analogous ground for the purposes
of subsection 15(1). Consequently, this aspect of the applicants’ section 15
claim will be dismissed.
[1084] Finally, the respondents have not demonstrated that the 2012 changes
to the IFHP are justified under section 1 of the Charter.
[1085] Consequently, the application is granted. What remains to be
determined is the appropriate remedy. This issue will be considered next.
XV.
Remedy
[1086] The applicants have challenged the constitutional validity,
applicability and effect of the 2012 Orders in Council that created the 2012
IFHP.
[1087] I do not understand the respondents to dispute that Orders in
Council constitute “law” for the purposes of
subsection 52(1) of the Constitution Act, 1982 [Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], which
provides that “any law that is inconsistent with the
provisions of the Constitution is, to the extent of the inconsistency, of no
force or effect”.
[1088] I am mindful of the admonitions of the Supreme Court in cases such
as Schachter v. Canada, [1992] 2 S.C.R. 679, [1992] S.C.J. No. 68 [Schachter],
where the Court observed that Courts should only strike down laws “to the extent of the inconsistency” by using the
doctrine of severance or ‘reading down’: at para. 26. However, none of the
parties have suggested that the offending portions of the Orders in Council are
severable in this case, and a review of the Orders in Council confirms that
this is so.
[1089] Consequently, a declaration will issue declaring that the Orders in
Council that created the 2012 IFHP are inconsistent with sections 12 and 15 of
the Canadian Charter of Rights and Freedoms and are of no force or
effect.
[1090] The applicants further seek a declaration that the denial of health
insurance coverage to those seeking the protection of Canada is inconsistent with Canada’s obligations under Articles 3 and 7 of the 1951 Convention
Relating to the Status of Refugees and its obligations under the Convention
on the Rights of the Child.
[1091] As mentioned earlier in these reasons, while it is a valuable
interpretative aid, international law, whether binding or not, is not a
source of domestic rights or remedies. Consequently I decline to grant
declaratory relief in this regard.
[1092] In the event that I were to grant the declaratory relief sought by
the applicants, the respondents ask that I suspend the operation of that
declaration for a period of one year in order to permit the Governor in Council
to act. The respondents submit that a suspension is appropriate in this case,
as a legislative void created by my order would jeopardize public safety and
deprive deserving people of important benefits.
[1093] Given that the 2012 OICs had the effect of repealing the pre-2012
IFHP, the respondents were asked if the effect of a general declaration of
invalidity would not be to simply reinvigorate the pre-2012 IFHP, rendering a
temporary suspension unnecessary. The respondents replied that a general declaration of invalidity would create a policy
vacuum, and that new government appropriations would be
required to create the policy.
[1094] The applicants point out that there is no evidence before the Court
that the necessary appropriations no longer exist. As a consequence, they say
that there is no need for a temporary suspension of my
declaratory order.
[1095] While it is true that I have no evidence with respect to the
administrative and policy consequences that would flow from a general
declaration of invalidity, I am prepared to accept as a matter of common sense
that it is inevitable that a certain degree of administrative disruption will
result from my decision. I am also concerned that this disruption could
potentially exacerbate the harm suffered by those seeking the protection of Canada. It is thus appropriate to give the Governor in Council a period of time in which to
act in response to this decision.
[1096] At the same time, I am also mindful of the fact that the changes to
the IFHP that were effected through the 2012 OICs are having a devastating
impact on those seeking the protection of Canada. Indeed, I have found as a
fact that lives are being put at risk.
[1097] Balancing these competing considerations, I have concluded that it
is appropriate to suspend the operation of my declaration for a period of four
months.
[1098] This leaves the question of individual remedies for Mr. Ayubi
and Mr. Garcia Rodrigues.
[1099] Several personal claims for relief are asserted on behalf of the
individual applicants under subsection 24(1) of the Charter. Subsection 24(1)
provides that “[a]nyone whose rights or freedoms, as
guaranteed by this Charter, have been infringed or denied may apply to a court
of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances”.
[1100] The applicants seek a declaration that what Mr. Ayubi and Mr. Garcia
Rodrigues each experienced in relation to their treatment under the 2012 IFHP
constituted a violation of their constitutional rights. In my view, this is
implicit in the general declaration of invalidity that I have already granted,
and no further order is required in this regard.
[1101] In their Notice of Application, the applicants (other than JFCY) also
sought orders of mandamus directing the Minister of Citizenship and
Immigration to forthwith issue health insurance coverage at the pre-2012 level
to Mr. Ayubi and Mr. Garcia Rodrigues, both on a going-forward basis
and retroactively to June 30, 2012.
[1102] The respondents note that a section 24 remedy is generally not
available at the same time as a section 52(1) declaration of invalidity, citing
Canada (Attorney General) v. Hislop, 2007 SCC 10 at para. 102,
[2007] 1 S.C.R. 429 [Hislop]. They submit, moreover, that such remedies
are not appropriate on the facts of this case.
[1103] The respondents note that Mr. Garcia Rodrigues is now a
permanent resident of Canada with the result that he is entitled to health
insurance coverage under the Ontario Health Insurance Plan. As a consequence,
he is no longer eligible for IFHP benefits.
[1104] Because Mr. Garcia Rodrigues is now a permanent resident of Canada, he is no longer a person seeking the protection of Canada. He would no longer have been
entitled to health insurance coverage under the pre-2012 IFHP, and I agree with
the respondents that he is not entitled to such coverage on a prospective
basis. Indeed, I do not understand the applicants to still be pressing this
claim.
[1105] Insofar as his claim for past benefits is concerned, while Mr. Garcia
Rodrigues was undoubtedly subjected to unnecessary distress, no claim for
damages has been asserted in this regard. Moreover, Mr. Garcia Rodrigues
did ultimately receive the health care that he required at no cost to himself,
other than the minimal fee that he paid to see an optometrist when his eye
problem first surfaced. A mandatory order that he be provided with health
insurance coverage on a retrospective basis would not provide any real benefit
to Mr. Garcia Rodrigues, but could only benefit non-parties. In these
circumstances, I decline to make a mandatory order in favor of Mr. Garcia
Rodrigues.
[1106] Mr. Ayubi has also been subjected to considerable psychological
distress as a result of his lack of health insurance coverage and his uncertain
access to life-saving medical treatment and medications. Once again, however,
no claim for damages has been asserted in this regard. He has, moreover,
ultimately received the health care that he required at no financial cost to
himself. Any order that Mr. Ayubi be provided with health insurance
coverage on a retrospective basis would thus not provide any actual benefit to
him, and could only benefit non-parties.
[1107] Mr. Ayubi has been granted discretionary relief under section 7
of the 2012 IFHP since May of 2013. This covers the costs of his doctors’
appointments and medical tests. While I have concluded that the 2012 OICs
creating the 2012 IFHP are constitutionally invalid, I have suspended the
operation of my order for a period of four months, with the result that Mr. Ayubi’s
discretionary coverage will likely continue for at least that period. It is,
however, not clear what will happen thereafter.
[1108] Moreover, Mr. Ayubi does not currently have any insurance
coverage for the cost of his medications and diabetic supplies, and his access
to these medications and supplies remains uncertain. As a consequence, an order
reinstating his coverage in this regard could result in a potentially
life-saving benefit for him.
[1109] That said, the Supreme Court has held that a section 24(1) remedy
cannot operate during a period in which a declaratory order is under
suspension: see, for example, R v. Demers, 2004 SCC 46 at paras. 56-64, [2004]
2 S.C.R. 489.
[1110] The question, then, is whether I should order that Mr. Ayubi be
provided with health insurance coverage for the cost of doctors’ appointments
and medical tests, as well as his medications and diabetic supplies on a
prospective basis, with such order taking effect only after the expiry of the
four month period during which my declaratory order is suspended.
[1111] The rationale for limiting the availability of a subsection 24(1)
remedy in cases where there has been a subsection 52(1) declaration of
invalidity was addressed in Hislop. There, the Supreme Court explained
that it “is a general rule of public law that ‘absent
conduct that is clearly wrong, in bad faith or an abuse of power, the courts
will not award damages for the harm suffered as a result of the mere enactment
or application of a law that is subsequently declared to be unconstitutional’”:
above at para. 102, citing Mackin v. New Brunswick (Minister of Finance);
Rice v. New Brunswick, 2002 SCC 13 at para. 78, [2002] 1 S.C.R. 405.
[1112] As previously noted, I have concluded that in this case, the
Governor in Council purposefully targeted a vulnerable, poor, and disadvantaged
group, intentionally setting out to make their lives even more difficult than
they already are in an effort to force those who have sought the protection of
this country to leave Canada more quickly, and to deter others from coming
here.
[1113] Mr. Ayubi is himself vulnerable, poor, and disadvantaged. He is
stuck in this country, as the Government of Canada has itself recognized that
it is simply too dangerous to return him to Afghanistan. He is seriously ill,
but tries to work to support himself. The respondents have themselves conceded
that “[n]obody expects him to make enough money to
purchase his own health care”: Transcript, Vol. 2, at p. 129.
[1114] In my view, the circumstances of this case come within the
exceptional situation that was identified by the Supreme Court in Hislop where
a section 24 remedy is appropriate, notwithstanding that I have also granted a
declaratory remedy under section 52 of the Constitution Act, 1982.
[1115] I will therefore order that commencing four months from the date of
my decision, Mr. Ayubi is to be provided with health insurance coverage
that is equivalent to that to which he was entitled under the provisions of the
pre-2012 IFHP so that he may continue to receive the medical care on which his
life depends.
[1116] Finally, none of the parties seek an order of costs, and none are
awarded.
JUDGMENT
THIS COURT:
1.
Declares that Orders in Council P.C. 2012-433 and
P.C. 2012-945 are inconsistent with sections 12 and 15 of the Canadian Charter
of Rights and Freedoms and are of no force or effect;
2.
Orders that the effect of this declaratory order
is suspended for a period of four months; and
3.
Orders that commencing four months from the date
of this decision, the respondents are to provide Hanif Ayubi with health
insurance coverage that is equivalent to that to which he was entitled under
the provisions of the pre-2012 IFHP.
"Anne L. Mactavish"
FEDERAL
COURT
SOLICITORS
OF RECORD
|
DOCKET:
|
T-356-13
|
|
STYLE OF CAUSE:
|
CANADIAN DOCTORS FOR REFUGEE CARE, THE
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
|
|
PLACE OF
HEARING:
|
Toronto, Ontario
|
|
DATE OF
HEARING:
|
December 17, 2013, December 18, 2013 and
January 30, 2014
|
|
JUDGMENT
AND REASONS:
|
MACTAVISH J.
|
|
DATED:
|
juLY 4, 2014
|
APPEARANCES:
|
Mr. Lorne Waldman
Ms. Adrienne Smith
|
For
The Applicants
CANADIAN
DOCTORS FOR REFUGEE CARE, DANIEL GARCIA RODRIGUES AND HANIF AYUBI
|
|
Ms. Pia Zambelli
Ms. Jaqueline Swaisland
|
For
The Applicant
THE
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
|
|
Ms. Mary Birdsell
Ms. Emily Chan
|
For
The Applicant
JUSTICE
FOR CHILDREN AND YOUTH
|
|
Ms. Marie-Louise Wcislo
Ms. Neeta Logsetty
Ms. Hillary Adams
|
For
The Respondents
|
SOLICITORS OF RECORD:
|
Waldman & Associates
Barristers and Solicitors
Toronto, Ontario
|
For
The Applicants
CANADIAN
DOCTORS FOR REFUGEE CARE, DANIEL GARCIA RODRIGUES AND HANIF AYUBI
|
|
Waldman & Associates
Barristers and Solicitors
Toronto, Ontario
|
For
The Applicant
THE
CANADIAN ASSOCIATION OF REFUGEE LAWYERS
|
|
Justice for Children and Youth
Toronto, Ontario
|
For
The Applicant
JUSTICE
FOR CHILDREN AND YOUTH
|
|
William F. Pentney
Deputy Attorney General of Canada
Toronto, Ontario
|
For
The Respondents
|
Email this Content