Oct 16, 2020

Canadian Doctors for Refugee Care v. Canada (Attorney general), 2014 FC 651

Canadian Doctors for Refugee Care v. Canada (Attorney general), 2014 FC 651 (CanLII)

Background

In 1995 the federal government created the Interim Federal Health Program (IFHP), which provided public health care to all refugees and asylum seekers in Canada. Gradually, it also covered other similar migrants such as victims of human trafficking and people in immigration detention.

The IFHP covered refugee costs through the asylum-seeking process, up to the point of success and therefore they become qualified for provincial health insurance, or deportation. This relatively straightforward program allowed for a wide range of humanitarian migrants, with some minor exceptions, received the same healthcare coverage.

In June 2012, the federal policy changed. Instead of providing all refugees and refugee claimants with the same health care coverage, the new policy divided refugees and refugee claimants into four categories, with different levels of health care protection. The new IFHP was extremely confusing, difficult, and time-consuming to figure out who had coverage for which services.

In 2013, two refugee claimants, with the support of Canadian Doctors for Refugee Care and the Canadian Association for Refugee Lawyers, took the federal government to court over the cuts to the program. They argued that the government had breached refugees’ and refugee claimants’ equality rights, their rights to life and security of the person, and their right to be free from cruel and unusual treatment.

Verdict: Finding for the claimants. The cuts to the IFHP constituted cruel and unusual punishment and breached the claimants equality rights.

Sidebar: Section 12 of the Charter – “Cruel and Unusual Punishment”

Section 12 of the Charter states that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. From the case law, we know that section 12 prohibits the imposition of certain treatments or punishments. Specifically, it is targeted at treatment or punishment that is “grossly disproportionate” or would “outrage our societies sense of decency” such that Canadians would find it “abhorrent or intolerable.” See R v Smith, [1987] 1 SCR 1045 and R v Morrisey, 2000 SCC 39.

The threshold for “cruel and unusual” is a high one. It cannot be “merely excessive” or disproportionate, it must be “grossly disproportionate” enough to cause outrage and offend standards of decency. In previous litigation things that have met this bar include but are not limited to: torture, the infliction of corporal punishment, grossly disproportionate periods of imprisonment, several mandatory minimum sentences, indefinite detention, and certain fines or forfeitures of property.

Analysis

Justice MacTavish of the Federal Court made her decision in July 2014. She found the refugee claimants were successful at arguing their s. 15 equality rights were violated, on the basis that they were being treated negatively by the government on the basis of national origin when it drew the distinction between refugees from designated countries and those from elsewhere.

She also found that the cuts breached s. 12 of the Charter. Stating that the cuts “potentially jeopardize the health, and indeed the very lives, of innocent and vulnerable children (among others) in a manner that shocks the conscience and outrages our standards of decency.” These violations could not be justified under s. 1.

Current Status

In April 2016, the current federal government reinstated the IFHP back to its pre-2012 level, even extended it to cover certain costs of resettled refugees’ medical care prior to their arrival in Canada, such as the costs of vaccination and medical evacuation.