Federal Court finds Ottawa’s health care cuts for refugees violate charter

OTTAWA—The Federal Court has ruled against controversial changes to health-care coverage for refugee claimants, the latest in what is becoming a lengthy list of stinging legal rebukes to the governing Conservatives.

In her 268-page decision, Justice Anne Mactavish denounced the cuts as “cruel and unusual” treatment, particularly to the children of claimants who have sought refuge in Canada.

“This is particularly, but not exclusively so as it affects children who have been brought to this country by their parents,” she wrote in a decision released Friday.

“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.”

The Tories scaled back medical benefits for newcomers two years ago, leaving most immigrants with basic and essential health care, but without supplementals such as vision and dental care.

But rejected refugee claimants, and refugee claimants from countries the government considers safe, are now eligible for care only when they pose a threat to public health.
That, according to Mactavish, violates a section of the Charter of Rights and Freedoms.
It also creates two tiers of health coverage between refugees from countries on the government’s safe list and those who are not, she wrote.

“Moreover, this distinction has an adverse differential effect on refugee claimants from designated countries of origin,” Mactavish wrote.

“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.”

The judge suspended the effect of the ruling for four months.

Citizenship and Immigration Minister Chris Alexander says the government will appeal.

“We remain committed to putting the interests of Canadians and genuine refugees first,” he said in a statement.

“Failed claimants and those from safe countries like the U.S. or Europe should not be entitled to better health care than Canadians receive. We will vigorously defend the interests of Canadian taxpayers and the integrity of our fair and generous refugee determination system.”

Government lawyers previously told the court that striking down the changes would “result in a policy vacuum” that could endanger refugee claimants as well as public safety.
The government cuts were challenged by a coalition including refugee lawyers and a doctors’ group. They welcomed the ruling.

“This decision gives life to Canada’s commitment to protect refugee rights,” said Lorne Waldman, president of the Canadian Association of Refugee Lawyers.

“It sends a clear message to government that it cannot abdicate its responsibility to meet the most basic health care needs of vulnerable refugees and refugee claimants.”

Liberal MP John McCallum, the party’s immigration critic, praised the courts for rejecting what he called an “extraordinarily cruel and mean-spirited” policy.

“Thank goodness for judges and the charter to make us a kinder country, even if the government doesn’t want to go in that direction,” he said in an interview.

There have been several recent court rulings against the Conservatives.

The Supreme Court of Canada ruled the government cannot use Parliament alone to impose Senate term limits, allow consultative elections for senatorial candidates or abolish the upper chamber.

The Supreme Court also ruled against provisions in the government’s Truth in Sentencing Act, which sought to stop judges from routinely giving inmates extra credit for time spent in jail before custody. The court ruled judges have the discretion to allow up to 1.5 days credit.

The court also rejected the Harper government’s appointment of Justice Marc Nadon to the Supreme Court.

“Some of the laws that have been struck down have been so blatantly inconsistent with the charter that one has to conclude the government doesn’t really care, doesn’t really take the Charter seriously,” McCallum said, “and now it’s paying the price.”

Government lawyers argued the new rules bring health benefits for newcomers in line with what other Canadians receive and deter those who would abuse the health-care system.
Refugee claimants can still access health care through other programs, the lawyers argued, including those put in place by some provinces to reinstate access to essential and emergency care.

However, not all provinces offer the same level of coverage.
Follow (at)steve_rennie on Twitter