Recently, the Federal Court decision Canadian Doctors for Refugee Care et al v. AG (Canada) was released. In the decision, Justice Mactavish found that the government has violated the Canadian Charter of Rights and Freedoms by restricting access to health care for refugees. On the surface this may seem like a very positive decision for the rights of those living within Canada. But upon close inspection, we at CWP are very concerned that this decision could have harmful consequences for people living in poverty.
You’re probably thinking “what’s going on? Isn’t this a great decision for refugees? Doesn’t CWP care about refugees? Didn’t you just write a blog a few weeks ago, about how refugees shouldn’t face barriers in accessing social assistance benefits?”
Well, the answer to all those questions is “yes”. Allow me to clarify. The finding that the cuts to refugee health care are unconstitutional was, in our view, absolutely correct. The real problem lies in how the court arrived at this decision and what rights the court didn’t recognize in the decision. In Canadian law, often it’s more important how you get to a decision rather than who wins the case.
What is the case about?
In 2012 the Federal Government announced that they were making changes to the Interim Federal Health Program (IFHP), a program that was created in the aftermath of the Second World War when many refugees were arriving in Canada. The program was designed to fund limited, basic and essential medical and health services for newcomers who needed urgent medical care but didn’t have the resources to pay for it. The 2012 cuts to the program reduced the level of health care coverage for refugees, created a tiered system for people from specific countries, and eliminated access to the program all together for certain newcomers.
What this meant was the denial of pre-natal, obstetrical and paediatric care for women and children from countries like Mexico and Hungary. It meant that refugee claimants from Afghanistan and Iraq couldn’t access basic life-saving medicine like insulin – one of Canada’s proudest discoveries. Basically, it created conditions in which the lives of refugees living in poverty were put at risk.
The Good Parts of the Decision: Section 12 and Section 15
First let me highlight the good news. The court did in fact find that, by making these cuts, the federal government had violated section 12 (cruel and unusual punishment) and section 15 (equality rights) of the Charter. In fact, as most social justice advocates will agree, the court was very progressive in the way that they recognized that the 2012 changes to the program violated the applicants’ right to be free from cruel and unusual punishment.
The Bad Parts of the Decision: Section 15, Section 7 and International Law
The bad news is that the court did not recognize some very important Charter rights for people living in poverty, namely equality rights (section 15) and the right to life, liberty and security of the person (section 7).
This is where it gets confusing, because as I just said above, the court did find that the law violated section 15 of the Charter. Well, while the court did say that the cuts discriminated against people based on their country of origin, as people from certain countries such as Hungary and Mexico were treated differently than others, they did not find that the cuts discriminated against people based on immigration status.
This is problematic for two reasons, firstly the fact that the question of whether immigration status as a ground of discrimination has actually not been settled by the courts, and secondly this decision could hurt future cases for people living in poverty. The list of grounds of discrimination in the Charter is short, and many more grounds can be argued, including the ground of poverty. By not doing a proper analysis of a potentially new ground of discrimination, the court essentially ignored the fact that this list can and should be expanded.
It’s the court’s analysis of section 7 that we think may really hurt people living in poverty. Section 7 of the Charter recognizes the right to life, liberty and security of the person, in this case the right of the poor to access life-saving health care. The government has argued that they don’t have any positive responsibility under section 7 to actually assist people living in poverty. However, our position at CWP is that International Treaties that have been ratified by Canada explicitly impose such as responsibility on the government. But instead of looking at the existing legal principles and commentary, including international law authorities, the court shut this door and said that the government doesn’t have any positive obligations to people living in poverty.
And here’s what really raises our eyebrows, the court looked to an Ontario Superior Court decision, Tanudjaja v Attorney General (Canada), to illustrate that the government doesn’t have any positive obligations under section 7. What’s odd is that this case hasn’t actually be decided yet, and none of the evidence has been heard. And on top of that, it’s not even really the argument that the applicants have made. The Tanudjaja case was not heard because the government successfully asked the judge for a motion to strike. This means that the case was struck out of court before ANY of the evidence was heard. The decision to strike the case is now being appealed at the Ontario Court of Appeal and a decision will be released in the upcoming months.
To use this case in this manner completely disregards the idea that the government has an obligation to address poverty, an issue that has yet to be decided on by the higher level of courts in Canada. This is a major blow to people living in poverty – if more judges improperly use this case to analyze the rights of the poor, it could have huge consequences on the future of Canadian law.
Many of our allies are celebrating this decision. But we ask that our friends and colleagues pause for a moment to think about the effects of the section 7 and 15 analysis in the decision. While we should celebrate that the court found the cuts to refugee health care to be a violation of the Charter, we should also look to the future and the ways that this decision will ultimately hurt people living in poverty – including newcomers to Canada!