Canada's Refugee Health Law and Policy from a Comparative, Constitutional, and Human Rights Perspective

AuthorRuby Dhand & Robert Diab
PositionAssistant Professor, Faculty of Law, Thompson Rivers University/Assistant Professor, Faculty of Law, Thompson Rivers University
Pages351-406
351
(2015) 1 CJCCL
Canada’s Refugee Health Law
and Policy from a Comparative,
Constitutional, and Human Rights
Perspective
Ruby Dhand* & Robert Diab**
Under the Interim Federal Health Program (IFHP), Canada has provided healthcare
coverage for immigrants in  nancial need, including refugees, for over half a century.
Until recently, the program provided migrants with comparable coverage to that
available to Canadians on social assistance. In 2012, the government amended the
IFHP to signi cantly reduce coverage for certain classes of migrants, including some
on the basis of their country of origin, and removed coverage from others altogether.
is article br ie y describes the changes in migrant healthcare coverage in Canada,
and compares it with analogous coverage in the United States, the United Kingdom,
and Australia.  e comparison demonstrates that Canada’s recent changes to healthcare
coverage fall below a common standard of coverage in these comparator countries. e
paper then explores arguments made for and against the constitutionality of the revised
IFHP in Canadian Doctors for Refugee Care v Canada, and the consistency of the plan
with Canada’s obligations under international human rights law. e authors contend
that despite the reluctance of courts thus far to recognize a positive duty on the part of
the state to provide health bene ts as a means of protecting Charter rights, facets of this
case present unique and compelling reasons for doing so. Finally, the paper argues that
restoring coverage to levels prior to 2012 would bring Canada in closer conformity to
the values and principles expressed in various international human rights treaties.
* Assistant Professor, Faculty of Law,  ompson Rivers University.
** Assistant Professor, Faculty of Law,  ompson Rivers University.  e
authors would like to thank the Law Foundation of British Columbia for
its generous support of this research, along with Christopher Albinati and
Taylor-Marie Young for their many helpful insights and valuable
352
Dhand & Diab, Canada’s Refugee Health Law and Policy
I. I
II. N   C  R H C
A. Context for the Program
B. Changes to the IFHP in 2012
III. R H C   C P
A.  e United States
B.  e United Kingdom
C. Australia
IV. C  H R C
A. Section 7
B. Principles of Fundamental Justice
C. Section 12
D. Section 15
E. Section 1
F. International Humanitarian Law and Norms
V. C
I. Introduction
Following the Second World War, Canada began to o er healthcare
coverage for certain groups of immigrants brought to Canada with
government assistance. It did so through a series of orders in council that
gradually expanded the scope of coverage to all classes of immigrants who
could not a ord coverage independently.
1 Coverage for migrants in the
early stages of their arrival has thus been generally provided not through
provincial healthcare plans but through what has become known as the
Interim Federal Health Program (IFHP).2
Until 2012, the program provided refugees, refugee claimants, and
other migrants with comparable coverage to that available to Canadians
contributions as research assistants.
1.  e history of the program is explored in greater detail in Part II.
2. As explored below, for certain periods, provincial and territorial health
plans have o ered coverage for certain classes of migrants that overlapped
with eligibility under the IFHP.
353
(2015) 1 CJCCL
receiving social assistance.
3 is included coverage for non-emergency
hospital and doctor visits, vaccines and other preventive medicine, and
basic dental and eye care. In June of 2012, the government amended
the IFHP to signi cantly reduce coverage for certain classes of refugees
and refugee claimants, including some on the basis of country of origin.
4
e government also removed coverage from other categories of migrants
altogether.5 Coinciding with this, Parliament passed a series of legislative
amendments to the process for refugee determination under the
Immigration and Refugee Protection Act,
6 with a more expeditious means
of resolving claims by migrants from certain “Designated Countries of
Origin” that had higher historical rates of failed claims.
7
Under the revised 2012 IFHP, those previously eligible for a wide
range of basic health bene ts have been divided into four tiers of
coverage, with all but 14 percent of those eligible for coverage now placed
in the three lower tiers.
8 ose in the  rst tier continue to enjoy coverage
previously available, while those in the second tier are covered for visits
to doctors or hospitals only if the matter is “of an urgent or essential
3. Government of Canada, “Health care – Refugees”, online: Citizenship
and Immigration Canada
arriving-healthcare.asp> [“Health care - Refugees”].
4. Order Respecting the Interim Federal Health Program, 2012, SI/2012-
26, (2012) C Gaz II, online: Justice Laws Canada
justice.gc.ca/eng/regulations/SI-2012-26/FullText.html>.  e order was
registered on April 25, 2012 and came into force on June 30, 2012.
5. Ibid.
6. SC 2001, c 27 [IRPA].
7. Bill C-31, Protecting Canada’s Immigration System Act, 1st Sess, 41st
Parl, 2012 (assented to 28 June 2012) [Bill C-31]. For an overview of
the amendments in Bill C-31, see Government of Canada, “Protecting
Canada’s Immigration System”, online: Citizenship and Immigration
Canada .
8. Government of Canada, “Interim Federal Health Program: Summary of
Bene ts”, online: Citizenship and Immigration Canada
cic.gc.ca/english/refugees/outside/summary-ifhp.asp> [“Summary of
Bene ts”].  e proportion of claimants in each tier is documented in
the Memorandum of the Attorney General of Canada and Minister
of Citizenship and Immigration, at paras 13-15 [Respondents’
Memorandum] in CDRC, CARL, Garcia, Rodriquez et al v Canada (AG
and MCI), Federal Court  le T-356-13 [CDRC et al v Canada]; the trial
level decision in this case is explored in more detail below.
354
Dhand & Diab, Canada’s Refugee Health Law and Policy
nature,”9 and for medicine or vaccines “only if needed to prevent or treat
a disease that is a risk to public health or to treat a condition of public
safety concern.”10 ose in the third tier are provided the same coverage
as those in the second tier with the exception that hospital and doctor
visits are covered not where urgent or essential but only where necessary
to “diagnose or treat a disease posing a risk to public health or to treat
a condition of public safety concern.”11 Failed claimants and migrants
awaiting a pre-removal risk assessment are now placed in a fourth tier in
which previous eligibility under the IFHP has been removed altogether
(i.e. even if they su er a condition that poses a risk to public health or
safety).12 e new scheme allows for discretionary coverage in individual
cases, but limits their placement in this instance to either the second
or third-tier of coverage.  e new framework thus entails an e ective
withdrawal of coverage for most forms of preventive and, in many cases,
emergency care for some 86 percent of migrants who previously enjoyed
coverage.
Part II of this article brie y explores the history and scope of the
IFHP, and then describes the changes in Canada’s migrant healthcare
coverage and their practical impact. Part III compares Canada’s coverage
with analogous plans in the United States, the United Kingdom,
and Australia. Drawing on this overview, we argue that while various
impediments to healthcare can be found in these other jurisdictions, for
the most part, Canada’s revised plan falls below a common standard of
coverage among these comparator countries.
In Part IV, we explore the constitutionality of the revised IFHP and
its consistency with Canada’s obligations under international human
rights law. We do so by exploring arguments raised in an action brought
by two individual immigrants directly a ected by the changes, along with
the Canadian Association of Refugee Lawyers and Canadian Doctors for
Refugee Care (the Applicants).13 Among the central issues in this case is
whether the decision to remove coverage from certain classes of migrants
9. “Summary of Bene ts”, ibid.
10. Ibid.
11. Ibid.
12. Ibid.
13. CDRC et al v Canada, supra note 8.
355
(2015) 1 CJCCL
violates sections 7, 12, and 15 of the Canadian Charter of Rights and
Freedoms,
14 and if so whether the decision constitutes a reasonable limit
on those rights under section 1. In making these claims, the Applicants
invited the Court to depart from a growing body of case law in which
courts have resisted recognizing a positive state duty under the Charter
to provide a bene t essential for security of the person or for survival,
including healthcare.
15 e Applicants relied in part on the Supreme
Court’s a rmation in Gosselin v Quebec
16 that the Charter might be
applied in this way under “special circumstances.” In July 2014, Mactavish
J of the Federal Court rendered a decision at the trial level, dismissing the
section 7 claim, but  nding the revised IFHP scheme contrary to sections
12 and 15, and not a reasonable limit on those rights under section 1
of the Charter.
17 Setting out an overview of this decision, we highlight
relevant factual  ndings under sections 12 and 15 that are likely to frame
the reconsideration of the case on appeal. We also argue that in dismissing
the section 7 claim, Mactavish J failed to recognize facets of the present
case that distinguish it from earlier case law on the question of a positive
duty under section 7. For reasons to be explored, we suggest that the
present facts come closer than earlier case law to presenting the “special
circumstances” that the majority in Gosselin contemplated as necessary
to justify the imposition of a positive duty under section 7. Finally, the
14. Part I of the Constitution Act, 1982, being Schedule B to theCanada Act
1982(UK), 1982, c 11 [Charter].
15.  ese include Masse v Ontario (Ministry of Community and Social
Services) (1996), 134 DLR (4th) 20 (Div Ct) [Masse], leave to appeal to
CA refused, [1996] OJ No 1526 (QL), leave to appeal to SCC refused,
[1996] SCCA No 373; Clark v Peterborough Utilities Commission (1995),
24 OR (3d) 7 (Gen Div), appeal dismissed as moot (1998), 40 OR
(3d) 409 (CA); Auton (Guardian ad litem of) v British Columbia (AG),
2004 SCC 78 [Auton]; Grant v Canada (Attorney General) (2005), 77
OR (3d) 481 (SC) [Grant]; Wynberg v Ontario (2006), 82 OR (3d) 561
(CA) [Wynberg]; Sagharian v Ontario (Education), 2008 ONCA 411
[Sagharian]; Flora v Ontario Health Insurance Plan, 2008 ONCA 538
[Flora]; CCW v Ontario Health Insurance Plan (2009), 95 OR (3d) 48
(Div Ct) [CCW]; Tanudjaja v Attorney General (Canada) (Application),
2013 ONSC 5410 [Tanudjaja].
16. Gosselin v Quebec (Attorney General), 2002 SCC 84 [Gosselin].
17. Canadian Doctors For Refugee Care v Canada (Attorney General), 2014 FC
651 [Canadian Doctors].
356
Dhand & Diab, Canada’s Refugee Health Law and Policy
paper brie y examines relevant international human rights law that may
assist in a Charter analysis of the issues raised in this case.
II. Nature of the Change to Refugee Health
Coverage
A. Context for the Program
To place the nature and import of the recent changes to refugee health
coverage into context, we begin with a brief overview of the origins and
scope of Canada’s healthcare scheme for immigrants before 2012.
18
e Interim Federal Health Program can be traced to a 1946 Order
in Council that authorized medical coverage for some 4,000 ex-members
of the Polish Armed Forces whom the federal government had selected
for assistance with immigration.19 In 1949, through a further order, the
government extended coverage to immigrants generally, authorizing the
Department of Citizenship and Immigration “to pay hospital accounts
and maintenance expenses of immigrants who may become suddenly ill
after being admitted at the port of entry and prior to their arrival at
destination, in such cases where immigrants lack the  nancial resources
to bear these expenses themselves.”20 In 1952, the plan was extended
to cover the costs of “medical and dental care, hospitalization, and any
expenses incidental thereto” not only to indigent immigrants in need
of care upon entry or arrival at destination, but also to those waiting
for work placements to begin.21 And in 1957, a further order amended
the scheme to extend coverage more generally to “a person who at any
time is subject to Immigration jurisdiction or for whom Immigration
18.  e following account draws upon a summary of the origins of the IFHP
in Toussaint v Canada (Attorney General), 2010 FC 810 at paras 31-39
[Toussaint]; Memorandum from Canadian Doctors for Refugee Care et al,
at paras 4-17 [Applicants’ Memorandum] in CDRC et al v Canada, supra
note 8; Mactavish J’s decision in Canadian Doctors, ibid at paras 32-56.
19. Toussaint, ibid at para 32, citing Order in Council PC 1946-3112 of July
23, 1946.
20. Ibid at para 34, citing Order in Council PC 1949-41/3888 of August 4,
1949.
21. Ibid at para 35, citing Order in Council PC 1949-4/3263 of June 6,
1952.
357
(2015) 1 CJCCL
authorities feel responsible.”22 e 1957 order would continue to be the
primary authority for the program rather than being entrenched in later
immigration or healthcare legislation.23
Prior to 2012, the program o ered immigrants a level of health
coverage roughly equivalent to that provided to citizens or permanent
residents on social assistance.24 is included coverage for hospital and
doctor visits and prescriptions, as is generally the case under provincial
plans; but it also covered certain dental procedures and limited eye care,
as in some plans for those receiving social assistance.25 In these latter
respects, it o ered bene ts not available to working citizens or permanent
residents under most provincial plans. Coverage was also meant to last for
a limited and short duration, until a person began working or obtained
eligibility under provincial or territorial programs.26
Until 1995, the bulk of IFHP funding was spent on care for
“indigent landed immigrants,” but this began to shift in 1995 to “refugee
claimants, refugees, and others in humanitarian need.”27 In 1995 and
1996, Ontario and Quebec, respectively, ceased to provide coverage for
refugee claimants under their plans.28 is caused not only a shift in
the balance of funding between refugees and non-refugees, but also a
signi cant rise in the number of quali ed persons falling within the scope
of the IFHP.29 In 1999, the scope of coverage under the plan was further
extended to include applicants seeking a Pre-Removal Risk Assessment
and victims of human tra cking.30 By 2012, the program serviced a
22. Ibid at para 36, citing Order in Council PC 1957-11/848 of June 20,
1957.
23. Respondents’ Memorandum, supra note 8 at para 10.
24. Applicants’ Memorandum, supra note 18 at para 10; “Health care -
Refugees”, supra note 3.
25. Respondents’ Memorandum, supra note 8 at para 8, relying upon the
A davit of Sonia Le Bris, sworn August 29, 2013, Acting Director of
Migration Health Policy and Partnerships, Health Branch, CIC at paras
7-13 [Le Bris A davit].
26. Ibid.
27. Ibid at para 12, citing Le Bris A davit at paras 18-21.
28. Ibid.
29. Ibid.
30. Ibid.
358
Dhand & Diab, Canada’s Refugee Health Law and Policy
larger number of immigrants (some 126,000 persons, by one estimate),31
and also covered them for a longer average period – close to three years
in the government’s estimate.32 e cost of reimbursement to hospitals,
doctors, and other providers, along with medication and other fees rose
signi cantly. In 1996-97, the IFHP cost $18 million and by 2011-12 it
was $83 million.33
Yet, as litigants challenging the validity of changes to the scheme have
noted, from a broader perspective, the cost of the program was relatively
low. It carried an annual per-capita cost of $552 or roughly 10 percent of
the annual per capita cost of healthcare for Canadians of $5,401.34 e
Applicants also note that the $83 million cost of the program comprises
“only 4/100ths of one percent of total health expenditures in Canada, or
about 60 cents per taxpayer per year.35
Prior to changes in 2012, the IFHP provided the same suite of
coverage to various classes of immigrants, including pending, successful,
and failed refugee claimants, along with government and privately
sponsored refugees, and those awaiting a pre-removal risk assessment.
Coverage lasted until a person became eligible under a provincial plan
or departed from Canada.36 However, as the government has indicated
in the course of litigation, the earlier IFHP did not apply to persons
without status in Canada, or to persons with failed or abandoned or
ineligible claims who had not sought a pre-removal risk assessment. On
this basis, the government has argued that the 2012 revision to the IFHP
did not introduce a distinction in terms of coverage among migrants.
31. Applicants’ Memorandum, supra note 18 at para 14, citing the A davit
of Allison Little Fortin, sworn August 29, 2013, Director of the IFHP,
Health Branch, CIC at para 8 [Little Fortin A davit].
32. Respondents’ Memorandum, supra note 8 at para 13, citing Little Fortin
A davit at para 75 and Le Bris A davit at para 39.
33. Ibid.
34. Applicants’ Memorandum, supra note 18 at para 8, citing the A davit of
Mitchell Goldberg at para 18.
35. Ibid, citing Le Bris A davit at para 39.
36. Ibid at para 7, citing Government of Canada, “Audit of the Control
Framework for the Interim Federal Health Program” (2004), online:
Citizenship and Immigration Canada
resources/audit/ifh.asp>.
359
(2015) 1 CJCCL
B. Changes to the IFHP in 2012
By an order in council on April 25 of 2012, which came into e ect on
June 30, 2012, the government shifted its policy with respect to coverage
signi cantly.37 Coverage would now be tiered, placing immigrants into
four categories, with those in the second and third tiers losing many of
the bene ts and services they enjoyed earlier, and those in the fourth
losing all. In response to criticism of the new scheme, the government
passed an order in council on June 18, 2012, restoring some bene ts
to persons in the second and third tier.38 What follows summarizes the
current plan.39
e rst tier of coverage, referred to in the government documentation
as “Expanded Health-Care Coverage,” applies to government-assisted
refugees, privately sponsored refugees who receive income support
through the Resettlement Assistance Program (or its Quebec equivalent),
and to victims of human tra cking for the duration of the period in
which they hold a “Temporary Resident Permit.”40 Persons in this group
receive the equivalent level of coverage to what the program o ered to
all immigrants prior to 2012.  is includes hospital and doctor services;
laboratory, diagnostic, and ambulance services; and also “supplemental
health bene ts,” such as prescribed medications, limited dental and
vision care, prosthetics, home care, and psychological counselling. As the
government’s brief in the current Charter challenge notes, this tier of
coverage extends to 14 percent of IFHP bene ciaries.41
e second tier, titled “Health Care Coverage,” applies to privately
sponsored refugees not receiving government income support (or the
bulk of privately sponsored refugees), and “Other Protected Persons,”42
until they qualify for provincial or territorial coverage. “Other Protected
Persons” include refugee claimants not from a Designated Country of
37. Order Respecting the Interim Federal Health Program, supra note 4.
38. Order Amending the Order Respecting the Interim Federal Health Program,
PC 2012-945, (2012) C Gaz II (of 28 June 2012).
39. “Summary of Bene ts”, supra note 8.
40. Ibid.
41. Respondents’ Memorandum, supra note 8 at para 35, citing Little Fortin
A davit at paras 47-55.
42. “Summary of Bene ts”, supra note 8.
360
Dhand & Diab, Canada’s Refugee Health Law and Policy
Origin (see below for the de nition); refugees whose claims have been
accepted; immigration detainees; and persons who have received a
positive Pre-Removal Risk Assessment.  is tier provides the following
services “only if of an urgent or essential nature”: hospital, physician,
or nurse services; laboratory, diagnostic and ambulance services; and
medication or vaccine “only if needed to prevent or treat a disease that is
a risk to public health or to treat a condition of public safety concern.”43
As a result, persons in this group are no longer covered in the ordinary
course for prescription medication including insulin, anti-epileptics,
anti-asthma or psychiatric medication.44 e government’s factum notes
that 62 percent of all IFHP bene ciaries (i.e. of persons in the  rst three
tiers) fall within this category.45
e third tier is comprised of refugee claimants from a “safe” or
Designated Country of Origin (DCO)46 and rejected claimants.47
Persons in this group receive what is termed “Public Health or Safety
Health-Care Coverage,” which provides the same coverage as in the
second tier except that whereas in that category, the listed services aside
from medications and vaccines (i.e. hospital and doctor visits, diagnostic
and ambulance services) are covered only where they are of “an urgent or
43. Ibid.
44. Applicants’ Memorandum, supra note 18 at para 10.
45. Respondents’ Memorandum, supra note 8 at para 36, citing Little Fortin
A davit at paras 56-61.
46. Following amendments in Bill C-31 to the Immigration and Refugee
Protection Act in June 2012, the Minister may designate a source country
to be “safe,” triggering an accelerated process for determining refugee
claims, along with the tiered health coverage described above. See s 58
of Bill C-31, supra note 7, amending s 12 of Bill C-11, An Act to Amend
the Immigration and Refugee Protection Act and the Federal Courts Act, 3rd
Sess, 40th Parl, 2010 (assented to 29 June 2010).  irty-seven countries
have been deemed safe, including Hungary and Mexico – which are, as
the Applicants in this case note, a source of signi cant numbers of refugee
claimants in recent years.
47. A rejected claimant is de ned as a person whose claim has been rejected
by the Immigration and Refugee Board and whose right to judicial review
and appeal of that right have been exhausted: Government of Canada,
“Information Sheet for Interim Federal Health Program Bene ciaries”,
online: Citizenship and Immigration Canada
english/refugees/outside/ifhp-info-sheet.asp>.
361
(2015) 1 CJCCL
essential nature,” here both medicine or vaccines and other health services
are provided “only if needed to diagnose, prevent or treat a disease posing
a risk to public health or to diagnose or treat a condition of public safety
concern.”48 is category entails no coverage for preventive care, and no
medication or services except where a condition poses a risk to public
health or safety.  us, it excludes coverage for any disorder that is non-
communicable, including diabetes, asthma, epilepsy, heart conditions,
trauma, blood infections, non-violent psychoses, and pregnancy.49
Twenty-four percent of IFHP bene ciaries are within this category.50
Finally, a fourth group comprises refugee claimants who have
withdrawn or abandoned their claims or have not been found eligible
to make a claim, along with applicants for a pre-removal risk assessment
without a valid claim. Prior to June of 2012, persons in this group were
covered by the IFHP while awaiting the outcome of a pre-removal risk
assessment (PRRA).51 ey now receive no coverage under the IFHP,
even if their condition poses a risk to public health or safety.52
To be clear as to the nature of the di erence between the plan before
and after the June 2012 changes, it might help to consider a common
practical scenario. Both before and since 2012, refugee claims brought
by migrants from certain DCO countries such as Mexico and Hungary
have been refused in a number of cases, but at least some have been
successful.53 us, for example, prior to 2012, if a pregnant woman were
to arrive from a DCO country with a valid and compelling claim for
asylum, she would receive coverage for routine visits to a doctor for pre-
natal care and medicine. Today, falling under the third tier of coverage,
she would not be covered for routine visits or medicine, given that she
48. “Summary of Bene ts”, supra note 8.
49. Applicants’ Memorandum, supra note 18 at para 10.
50. Respondents’ Memorandum, supra note 8 at para 37, citing Little Fortin
A davit at paras 62-70.
51. Applicants’ Memorandum, supra note 18 at para 10.
52. “Summary of Bene ts”, supra note 8; Applicants’ Memorandum, ibid;
Respondents’ Memorandum, supra note 8 at para 26, citing Little Fortin
A davit at para 82.
53.  e DCO category is premised on a higher rate of failed claims from
these countries, but not on an absolute rate of failure or a prohibition on
claims from DCO migrants.
362
Dhand & Diab, Canada’s Refugee Health Law and Policy
does not su er from a potentially communicable disease or a condition
that poses a danger to public safety.
But even once a  nding is made at the Immigration and Refugee Board
that a pregnant woman from a DCO is a successful refugee claimant, she
would only move up to the second tier of coverage.  us, she would still
not be covered for a routine visit to a doctor or for medication, since
the second tier covers visits only of an “urgent or essential nature,” and
medicine only where it is necessary to treat a communicable disease or a
condition that poses a danger to public safety. In short, the plan removes
coverage for many preventive forms of medicine that are necessary to
address matters short of emergencies but critical for life or security of
the person.
In responding to the constitutional challenge to the changes to
the IFHP, the government questioned the severity of the situation
in which persons in the lower three tiers now  nd themselves. Citing
the availability of a range of provincial social welfare programs, such as
Ontario Works, and signi cant numbers of community health centres
that provide free health services, the government suggested that the loss
of IFHP coverage can often be addressed by other means.54 It also cited
evidence that a number of provinces had expanded their healthcare plans
in response to the IFHP reforms, including Quebec, which provides
a ected persons much of what was reduced under the 2012 reforms.55
And in the last resort, the Respondents noted that emergency medical
care at any hospital is available to everyone in Canada unconditionally.
56
54. Respondents’ Memorandum, supra note 8 at paras 40-41, citing Little
Fortin A davit at paras 89-92, 94.
55. Ibid at para 44.
56. Ibid at para 44, citing Little Fortin A davit at para 92. Note, however,
that in the 2011 Federal Court of Appeal decision in Toussaint v Canada
(Attorney General), 2011 FCA 213 at para 59 [Toussaint Appeal], the
Crown disputed whether the exclusion of an undocumented migrant
from coverage under the IFHP deprived access to emergency care on the
basis that “in Ontario, where the appellant lives, hospitals cannot deny
emergency medical treatment to anyone, when to do so would endanger
life”: Public Hospitals Act, RSO 1990, c P 40. Yet, at the trial level, Justice
Zinn had found, supra note 18 at para 91, that “the applicant’s exclusion
from IFHP coverage has exposed her to a risk to her life as well as to
long-term, and potentially irreversible, negative health consequences,”
363
(2015) 1 CJCCL
In the Federal Court’s decision in Canadian Doctors, Mactavish J
accepted the Appellants’ contention that these various sources remain
inadequate to address the critical needs of many migrants.57 Refugee
claimants generally do not qualify for provincial healthcare plans due to
residency requirements and varying de nitions of residency in provincial
legislation.
58 Some refugee claimants, failed claimants, and Pre-Removal
Risk Assessment applicants are eligible for provincial social assistance,
but these provide supplemental bene ts (medication, dental and eye care)
rather than the comprehensive care normally provided under primary
provincial healthcare plans.59 Moreover, due to sponsorship undertakings,
privately-sponsored refugees are precluded from obtaining social
assistance for a year after their arrival, and claimants from Designated
Countries of Origin are not eligible for a work permit for the  rst 180
days in Canada.60 In other words, it is not clear how many refugees are
expected to address a lack of coverage for critical or emergency assistance.
Justice Mactavish held that, in a broader sense, the government’s
position on alternative sources of care “takes no account of the extreme
human cost incurred as individuals search for sources of potentially
life-saving medical care.”61 Many claimants face language barriers or
have limited education, posing further impediments to access.62 Justice
Mactavish was also critical of the assumption that community health
centres or refugee centres could function as a surrogate for the wide range
of walk-in care that would otherwise have been available under the IFHP,
amounting to a deprivation of security of the person under section 7.
e Federal Court of Appeal upheld this  nding at para 66, despite
overturning the lower court decision on other grounds. See below for
further discussion of both decisions.
57. Canadian Doctors, supra note 17 at paras 261-99.
58. Applicants’ Memorandum, supra note 18 at para 15 (see e.g. the de nition
of “residency” in section 1.1 of RRO 1990, Reg 552 of Ontario’s Health
Insurance Act, RSO 1990, c H6 [Regulation 552], the de nition of
“resident” in section 1 of the British Columbia Medicare Protection Act,
RSBC 1996, c 286 and the de nition of “deemed residency” in section 2
of the Medical and Health Care Services Regulation, BC Reg 426/97).
59. Applicants’ Memorandum, supra note 18 at para 15.
60. Ibid.
61. Canadian Doctors, supra note 17 at para 263.
62. Ibid at para 266.
364
Dhand & Diab, Canada’s Refugee Health Law and Policy
given the “severely restricted” medical assistance typical in these essentially
charitable institutions.63 She also noted that neither emergency care nor
the limited coverage available through social assistance could provide
for a wide range of preventive care through routine doctor visits, pre-
natal care, or diagnostic tests.64 Finally, the availability of discretionary
coverage was also a poor substitute for a range of reasons that include
the exclusion in such cases of coverage for medication, the inability to
address emergency situations, the confusion surrounding knowledge of
how to apply, and the general uncertainty as to whether one could obtain
discretionary coverage.65
III. Refugee Health Coverage in a Comparative
Perspective
Before examining the merits of the revised IFHP in terms of the Charter
and Canada’s obligations under international human rights law, in this
section we brie y survey the extent of coverage in the United States, the
United Kingdom, and Australia.  e overview demonstrates that while
migrants face obstacles to healthcare coverage or treatment in these
comparator countries, with one exception, Canada’s revised IFHP falls
below a basic level of coverage common to each of them for both refugee
claimants and failed or non-status migrants.
A. e United States
Healthcare services are provided to refugees and asylum seekers through
the O ce of Refugee Resettlement, which is overseen by the federal
Department of Health and Human Services.66 e O ce administers
63. Ibid at para 273.
64. Ibid at paras 277-81.
65. Ibid at paras 287-93.
66. US migration law distinguishes “refugees” from “asylees.” Refugees are
individuals who seek asylum status from outside of the United States,
while asylees do so from within. We refer to both in what follows as
“refugee claimants.” For a summary of the bene ts available through
programs administered by the O ce of Refugee Resettlement, see US,
O ce of Refugee Settlement, “Fact Sheet: ORR BENEFITS-AT-A-
GLANCE”, online: An O ce of Administration for Children & Families
les/orr/orr_fact_sheet_bene ts_
365
(2015) 1 CJCCL
the Refugee Medical Assistance program to claimants, regardless of their
status for up to eight months.  is federally-funded program provides
coverage from the time a claimant enters the United States and meets the
requirements to  le a claim, or is granted status by either US Citizenship
and Immigration Services or the O ce of Refugee Resettlement.67
Under the Refugee Medical Assistance program, refugee claimants are
provided access to emergency and non-emergency care found “medically
necessary.68 Once coverage under the program expires, those who meet
immigration status requirements under the A ordable Care Act69 have
access to Medicaid, the Children’s Health Insurance Program,
70 and other
healthcare coverage options.71 “Mandatory bene ts” under the federal
Medicaid program provide refugee claimants with coverage that includes
“inpatient and outpatient hospital services; early, periodic, screening,
diagnostic and treatment services, nursing facility services; home health
services, physician services; [and] rural health services.” 72
e United States thus o ers a higher level of basic healthcare
coverage to refugee claimants than Canada does, and it also does so
without distinction on the basis of country of origin. Moreover, in
at_a_glance.pdf>.
67. “Access to Care” (2011), online: Refugee Health Technical Assistance
Center .
68. See State Letter #04-12 from Nguyen Van Hanh, PhD, Director, O ce
of Refugee Resettlement (18 June 2004) to State Refugee Coordinators,
National Voluntary Agencies, and Other Interested Parties,  led 30 June
2008, e ective 1 August 2008.
69. e Patient Protection and A ordable Care Act, Pub L No 111–148, 124
Stat 119 (2010), and the Health Care and Education Reconciliation Act of
2010, Pub L No 111–152, 124 Stat 1029 (2010), collectively are referred
to as the A ordable Care Act [ACA]; s 1411(a)(1) of the ACA (eligibility
for the health insurance “exchanges” and the related a ordability tax
credits).
70.  e Children’s Health Insurance Program was reauthorized by the
Children’s Health Insurance Program Reauthorization Act of 2009, Pub L
No 111-3, 123 Stat 8 at 214.
71. O ce of Refugee Settlement, “Health Insurance – Beyond the First Eight
Months”, online: An O ce of Administration for Children & Families
.
72. Centers for Medicare & Medicaid, “Medicaid Bene ts”, online: Medicaid.
gov rogram-Information/
By-Topics/Bene ts/Medicaid-Bene ts.html>.
366
Dhand & Diab, Canada’s Refugee Health Law and Policy
contrast to migrants in Canada’s fourth tier under the IFHP who now
receive no coverage even in cases of emergency, undocumented migrants
in the US not eligible for Medicaid or the Children’s Health Insurance
Program may still access emergency medical care under the Emergency
Medical Treatment and Active Labor Act73 until their medical condition
is “stabilized.74 “[C]omprehensive primary care”75 services are also
available to these migrants on a sliding fee through Federally Quali ed
Community Health Centres and Migrant Health Centres, which are not-
for-pro t, but federally funded organizations.76
A further signi cant element in US coverage for migrants concerns the
care extended to pregnant women and children regardless of immigration
status. Under the Children’s Health Insurance Program Reauthorization
Act,77 persons in this category enjoy coverage for “mandatory bene ts”78
under Medicaid but also optional bene ts such as therapy, counseling,
immunizations and family planning.79
ere is, therefore, no equivalent in US law to the third or fourth
categories of Canada’s IFHP, which limit DCO and Rejected Refugee
Claimants to coverage for services necessary to “diagnose, prevent or
treat a disease posing a risk to public health or to diagnose or treat a
condition of public safety concern”80 – or, in the case of migrants who
have withdrawn or abandoned refugee claims or are awaiting a pre-
removal risk assessment, no coverage at all.
B. United Kingdom
In the United Kingdom, healthcare coverage for refugees and asylum-
73. 42 USC § 1395dd (1986).
74. Ibid.
75. Michael K Gusmano, “Undocumented Immigrants in the United States:
U.S. Health Policy and Access to Care” (3 October 2012), online:  e
Hastings Centre
health-policy-and-access-to-care/#refmark-16>.
76. Ibid.
77. Supra note 70.
78. Ibid.
79. Ibid.
80. “Summary of Bene ts”, supra note 8.
367
(2015) 1 CJCCL
seekers is administered by the National Health Service (NHS).81 e
NHS Constitution speci es the “rights and responsibilities” of the NHS,
along with its guiding principles. Among the key principles relevant here
is one that states that “[a]ccess to NHS services is based on clinical need,
not an individual’s ability to pay. NHS ser vices are free of charge, except in
limited circumstances sanctioned by Parliament.82 Healthcare coverage
is provided to refugees and asylum claimants awaiting determination of
their claims, and includes both routine medical care through clinical or
hospital visits and specialist care, along with medicine, dental, and eye
care.83 However, the Court of Appeal for England and Wales has held
that failed claimants are deemed not to pass the ordinary residence test
that triggers eligibility for healthcare coverage in the UK, nor are they to
be considered exempt from charges for care when they spend more than
a year in the UK.84
In May of 2014, the government passed Bill 110, the Immigration
Act 2014, which made a series of revisions to healthcare coverage for
migrants.85 e government claims that changes are necessary in light
of challenges it has faced in recovering service charges for Secondary
Medical Care services for undocumented migrants – services that are
o ered by medical specialists for acute healthcare conditions.86 e bill
81. UK, Department of Health, e NHS Constitution:  e NHS belongs
to us all (2013), online: National Health Service
choiceintheNHS/Rightsandpledges/NHSConstitution/Pages/Overview.
aspx>.
82. Ibid at 3.
83. “ e National Health Service, Information Lea et”, online: National
Archives
http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@
en/documents/digitalasset/dh_4122698.pdf>.
84. R(YA) v Secretary of State for Health, [2009] EWCA Civ 225.
85. (UK), c 22; see also Home O ce, “Immigration Act 2014”, online: GOV.
UK .uk/government/collections/immigration-bill>.
86. UK, Home O ce, Controlling Immigration – Regulating Migrant Access
to Health Services in the UK: Consultation document, online: GOV.UK
.uk/government/uploads/system/uploads/attachment_
data/ le/226744/consultation-health.pdf> [Controlling Immigration
– Regulating Migrant Access]; see also UK, Home O ce, Immigration
Bill, Factsheet: Overview of the Bill, online: GOV.UK .
uk/government/uploads/system/uploads/attachment_data/ le/249251/
368
Dhand & Diab, Canada’s Refugee Health Law and Policy
also seeks to deter illegitimate claimants by limiting access to healthcare
in an analogous fashion to the revised IFHP in Canada.87 Portions of the
law yet to come into force will charge undocumented migrants, denied
refugee claimants, and short-term visitors (de ned as those in the UK for
less than six months) for healthcare services.88 However, the NHS has
indicated in its “implementation plan” that:
[T]reatment which is considered by clinicians to be immediately necessary
(which includes all maternity treatment), must never be withheld from
chargeable patients, even if they have not paid in advance …
Treatment which is not immediately necessary, but is nevertheless classed as
urgent by clinicians, since it cannot wait until the overseas visitor can return
home, should also be provided, even if a payment or deposit has not been
secured. Providers are nonetheless strongly encouraged to obtain a deposit
ahead of treatment deemed urgent if circumstances allow. However, if this
proves unsuccessful, the treatment should not be delayed or withheld for the
purposes of securing payment.89
us, by contrast to Canada, no urgent medical care or maternity treatment
is to be withheld due to coverage issues.  ough, as with Canada, routine
visits to doctors or hospitals, and other forms of preventive care, are soon
to be withdrawn from sizable numbers of migrants.
C. Australia
As in Canada and the United Kingdom, migrants and refugee claimants
in Australia are eligible for certain levels of healthcare coverage depending
on their refugee status or visa category.
90 Pursuant to the Migration
Overview_Immigration_Bill_Factsheet.pdf>.
87. Controlling Immigration – Regulating Migrant Access, ibid at 1.
88. Ibid; UK, Home O ce, Immigration Bill, Factsheet: National Health
Service (clauses 33-34), online: GOV.UK .gov.uk/
government/uploads/system/uploads/attachment_data/ le/249315/
Factsheet_08_-_Health.pdf>.
89. UK, Department of Health, Visitor & Migrant NHS Cost Recovery
Programme: Implementation Plan 2014-2016 (Crown Copyright, 2014) at
5, online: GOV.UK
uploads/attachment_data/ le/329789/NHS_Implentatation_Plan_
Phase_3.PDF > [emphasis in the original].
90. Australian Government, Department of Immigration and Border
Protection, “Medicare”, online: Department of Immigration and Border
Protection .au/Help/Pages/health/medicare.aspx>
369
(2015) 1 CJCCL
Regulations 1994,
91 coverage is provided through the Humanitarian
Program for Refugees, which is overseen by the Department of
Immigration and Citizenship.92 e program has two distinct sections:
o shore resettlement (providing refugee protection for those applying
from overseas) and onshore protections (providing refugee protection
for those applying within Australia).93 After the application process,
individuals who are granted a “protection visa,” “refugee visa” or “special
humanitarian visa”94 are able to access Medicare.95 is includes primary
and secondary healthcare services (i.e. referrals to specialists) that are also
available to Australian citizens and permanent residents.96 Early health
assessments, interventions and trauma services are also accessible to these
individuals.97
Asylum claimants are eligible to apply for Medicare within six
months of their arrival in Australia. Migrants without status who have
been in Australia longer than six months, were denied refugee status, or
entered Australia unlawfully are not entitled to Medicare, unless certain
exceptions apply.98 ese include applicants who are unaccompanied
[“Medicare”].
91. (Cth).
92. Ibid; Department of Immigration and Border Protection, Australia’s
Humanitarian Program (Information Paper 2014-2015), online:
Department of Immigration and Border Protection
gov.au/media/publications/refugee/ref-hum-issues/pdf/humanitarian-
program-information-paper-14-15.pdf> [Humanitarian Program].
93. Humanitarian Program, ibid.
94. Australian Medical Students’ Association (AMSA), “Refugees, Asylum
Seekers and Internally Displaced Persons”, online: AMSA
amsa.org.au/student-centre/gh-factsheets/refugees-asylum-seekers-and-
internally-displaced-persons> [“Refugees, Asylum Seekers and Internally
Displaced Persons”]; “Medicare”, supra note 90.
95. “Refugees, Asylum Seekers and Internally Displaced Persons”, ibid.
96. Migration Regulations 1994, supra note 91.
97. Ibid; Ignacio Correa-Velez, Sandra M Gi ord & Sara J Bice, “Australian
health policy on access to medical care for refugees and asylum seekers”
(2005) 2:23 Australia and New Zealand Health Policy 23.
98. Department of Immigration and Border Protection, Assistance for
Asylum Seekers in Australia (Fact Sheet 62), online: Department of
Immigration and Border Protection v.au/media/
fact-sheets/62assistance.htm>; Correa-Velez, Gi ord & Bice, ibid.
370
Dhand & Diab, Canada’s Refugee Health Law and Policy
minors, the elderly, or families with children under 18.99 Australian law
thus excludes coverage from certain classes of migrants, but o ers a more
generous and humane set of exceptions.
IV. Constitutional and Human Rights Concerns
In Canadian Doctors For Refugee Care v Canada,100 Mactavish J
entertained a series of arguments against the constitutional validity of the
revised 2012 IFHP and its consistency with Canada’s obligations under
international human rights law. In what follows, we brie y describe
the circumstances of the individual applicants and the grounds of their
challenge. We then focus our analysis on Mactavish J’s treatment of the
Charter arguments and of international human rights law. Our primary
intention here is twofold. One is to argue that while the Court declined
to  nd a violation of section 7, the challenge on this ground was not
adequately addressed – with the Court overlooking facets of this case that
distinguish it from earlier invitations to  nd a positive duty under section
7 in the healthcare context.  e second point is to highlight ways in
which the Court’s decision o ers a novel resolution to the constitutional
claims through its analysis under sections 12 and 15.
e individual Applicants in the case are two individuals, Daniel
Garcia Rodriquez and Hanif Ayubi.101 Rodriquez is a failed refugee
claimant, though his spouse – who was a successful claimant – had been
in the process of sponsoring him for permanent residence at the time the
application was  led. As a failed claimant, Rodriquez was placed in the
third tier of IFHP care, depriving him of coverage for an urgent operation
in August of 2012 to repair a detached retina.102 Prior to the July changes,
the operation would have been covered. His doctor wrote the Ministry
99. Department of Immigration and Border Protection, Bridging E Visas
for Illegal Maritime Arrivals (Fact Sheet 65), online: Department of
Immigration and Border Protection v.au/About/
Pages/media/fact-sheet-65.aspx>.
100. Supra note 17.
101. Along with Rodriquez and Ayubi, the application was brought by two
advocacy groups: the Canadian Association for Refugee Lawyers and
Canadian Doctors for Refugee Care. See ibid.
102. Applicants’ Memorandum, supra note 18 at para 20.
371
(2015) 1 CJCCL
of Immigration seeking discretionary coverage on the basis that further
delay would risk blindness, but the Ministry declined on the grounds
that Rodriquez was in Canada illegally.103 Doctors performed the surgery
on August 20th to avoid further risk, recovering only a fraction of the
cost.104
Ayubi, the other Applicant, came to Canada from Afghanistan in
2001, made an unsuccessful claim for refugee status, but remained in
Canada due to a moratorium on removals to Afghanistan. As a type 1
diabetic, he had been receiving insulin and medical care prior to 2012,
but lost coverage for medicine under the revised scheme and could not
a ord either the necessary insulin or the blood tests to monitor his
condition. He sought and was eventually granted discretionary IFHP
coverage for medical services but not for medication. As the Applicants’
memoranda of argument noted, “he is being kept alive on free samples of
insulin obtained by a community health centre due to the charity of the
drug manufacturer.105 e government argued that the IFHP is entirely
discretionary or ex gratia and not grounded in any statutory obligation,
rendering the decision of whether to continue funding it – and to what
degree – purely a matter of policy.
106 For the Applicants, the program
may have begun as an ex gratia program, but over the passage of time, it
ceased to be one by virtue of the embrace of a national publically funded
healthcare system for citizens, residents, and in some cases foreigners –
together with treaty obligations under international human rights law
that prohibit discriminatory treatment of refugees among other non-
103. Ibid.
104. Ibid; Respondents’ Memorandum, supra note 8 at para 50 (the
Respondents concede that Rodriquez was eligible for only “public health
and public safety” coverage beginning in August of 2012, but note that he
became eligible for Ontario’s Health Insurance Plan in November of that
year).
105. Applicants’ Memorandum, supra note 18 at para 22 (the memorandum
also indicates that Ayubi requires other medication that he is not receiving
and that the insulin he does receive gratuitously does not always match his
prescription).
106. Backgrounder to the Order Respecting the Interim Federal Health Program,
2012, supra note 4 (appended to the Order), cited in Applicants’
Memorandum, supra note 18 at para 36; Respondents’ Memorandum,
supra note 8 at para 70.
372
Dhand & Diab, Canada’s Refugee Health Law and Policy
citizens.107 e Applicants also argued that the 2012 revisions to the
IFHP were ultra vires because the prerogative of the federal executive in
the  elds of immigration and healthcare had been extinguished due to
the passage of the Canada Health Act (CHA)108 and the Immigration and
Refugee Protection Act (IRPA).109 As the Ontario Court of Appeal held,
“once a statute occupies ground formally occupied by the prerogative,
the prerogative goes into abeyance.  e Crown may no longer act
under the prerogative, but must act under and subject to the conditions
imposed by the statute.”110 In this case, the Applicants contended, the
passage of IRPA and the CHA extinguished any remaining prerogative
over refugee healthcare “expressly or by necessary implication.111 e
government’s response to this second claim was that neither statute at
issue deals in particular with healthcare for immigrants and refugees, and
therefore Crown prerogative in this area may only be extinguished by
explicit legislative directive or by necessary implication of the words in
the statute.112
Justice Mactavish took issue with both parties’ positions.  e IFHP
was neither entirely ex gratia, nor had the prerogative been extinguished.113
Since it was created, it had given rise to obligations to pay healthcare
providers who had agreed to provide coverage under the plan. And due
to the lack of federal legislation addressing the question of healthcare to
refugees, claimants, or failed claimants, “the Crown’s prerogative power
107. Applicants’ Memorandum, supra note 18 at para 36 (see the discussion
below of Article 7 of the Refugee Convention of 1951, and other
obligations under international law).
108. RSC, 1985, c C-6 [CHA].
109. Supra note 6; Applicants’ Memorandum, supra note 18 at para 38.
110. Black v Canada (Prime Minister) (2001), 199 DLR (4th) 228, cited in
Applicants’ Memorandum, supra note 18 at para 44.
111. Applicants’ Memorandum, supra note 18 at para 45.
112. In support of this latter proposition, the Respondents cite section 17 of
the Interpretation Act, RSC 1985, c I-21: “[n]o enactment is binding on
Her Majesty or a ects Her Majesty or Her Majesty’s rights or prerogatives
in any manner, except as mentioned or referred to in the enactment.
ey also cite Khadr v Canada (AG), 2006 FC 727 (in which Phelan J
surveyed Canadian and English authority on the point, concluding that
Crown prerogative “can only be abolished or exhausted by clear words in a
statute or by necessary implication from words in a statute” at para 91).
113. Canadian Doctors, supra note 17 at paras 394-402.
373
(2015) 1 CJCCL
to spend in an area not addressed by statute remains intact,” rendering
the 2012 orders in council intra vires.114 However, this did not relieve the
government from judicial scrutiny over modi cations to the program,
including Charter conformity.115 Although Mactavish J dispensed with
the Applicants’ section 7 claim, she found violations of sections 12 and
15 of the Charter, and held that they were not reasonable under section
1. We consider each section in turn.
A. Section 7
Section 7 guarantees everyone in Canada “the right to life, liberty, and
security of the person and the right not to be deprived thereof except in
accordance with the principals of fundamental justice.”116 e Applicants
in Canadian Doctors had argued that changes to the IFHP had deprived
them of rights to life and security of the person, and that they had done
so in a manner that was contrary to the principles of fundamental justice
for being arbitrary and grossly disproportionate to the government’s
stated intentions.117 e rights were violated because the withdrawal of
coverage had rendered a ected migrants unable to pay for critical care,
placing them at risk of serious illness or death, and subjecting them
to “severe psychological distress.118 Justice Mactavish agreed with the
Respondents’ submission that the Applicants’ claim was tantamount to
asserting a positive obligation on the part of the government to provide
healthcare funding (or some essential social bene t) under section 7 – a
claim that several courts have thus far resisted. Relying primarily on a
series of decisions that include Flora119 and Toussaint,120 which dismissed
attempts to assert a positive right to healthcare under section 7, Mactavish
J conceded that rights to life and security of the person may be engaged
by the facts before the Court, but suggested that the weight of authority
prevents the Court in this case from making the  nding that those rights
114. Ibid at para 401.
115. Ibid at para 402.
116. Charter, supra note 14.
117. Applicants’ Memorandum, supra note 18 at paras 86-97.
118. Canadian Doctors, supra note 17 at para 499.
119. Flora, supra note 15.
120. Toussaint Appeal, supra note 56.
374
Dhand & Diab, Canada’s Refugee Health Law and Policy
have been deprived.121
Yet Mactavish J’s decision on the issue of section 7 fails to address
a broader argument that the Applicants sought to advance in this case
– an argument that may be best addressed at the appellate level, and
perhaps at the Supreme Court of Canada in particular.  e argument
was that the facts in this case present a unique set of circumstances that
may constitute the closest approximation to what the Supreme Court
contemplated in Gosselin v Quebec (Attorney General)122 when it  rst
articulated the possibility that section 7 may, in “special circumstances,”
give rise to a positive duty on the part of the state. While Mactavish
J distinguished the facts at bar from those in earlier Supreme Court
decisions including Chaoulli
123 and PHS Community,
124 she discerned
no substantive di erence between the present case and a series of other
cases in which litigants sought the recognition of a duty to provide an
essential bene t under section 7.125 To make clear how this case can be
distinguished from the facts in those earlier decisions, and why it may
meet the Gosselin test in ways that earlier cases have failed to, we begin by
brie y revisiting the Supreme Court’s considerations in Gosselin.
In decisions preceding Gosselin, without holding so explicitly, the
Supreme Court had contemplated the possibility that section 7 might
protect “economic rights fundamental to human life or survival.”126 Dicta
in other cases had also expressed a reluctance on the part of individual
members of the court to read section 7 too restrictively; for example, in
Singh v Minister of Employment and Immigration,127 Justice Wilson cited
a Law Reform Commission of Canada paper for the assertion that “the
right to security of the person means not only protection of one’s physical
integrity, but the provision of necessaries for its support.
128 Gosselin
121. Canadian Doctors, supra note 17 at para 497.
122. Supra note 16.
123. Chaoulli v Quebec (Attorney General), 2005 SCC 35 [Chaoulli].
124. Canada (Attorney General) v PHS Community Services Society, 2011 SCC
44 [PHS Community or Insite].
125. Canadian Doctors, supra note 17 at paras 547-58.
126. Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 1003.
128. Ibid at 207. For other examples, see the discussion in Martha Jackman,
e Implications of Section 7 of the Charter for Health Care Spending in
375
(2015) 1 CJCCL
involved a challenge to the constitutionality of a di erential funding
scheme under Quebec’s social assistance legislation, giving rise to the
issue of whether section 7 guaranteed a minimal level of social assistance
to safeguard the right to life or security of the person by providing for
basic needs. In declining to recognize this claim on the facts before the
Court, McLachlin CJC, writing for the majority, explicitly a rmed the
broader possibility that section 7 could form the basis for a positive state
duty to protect rights to life and security of the person.
As the Chief Justice noted, much of the prior jurisprudence had
suggested that section 7 was only meant to guard against a deprivation of
life, liberty, or security of the person that occurs as a result of a person’s
“interaction with the justice system and its administration.”129 But in
McLachlin CJC’s view, section 7 need not be applied in such narrow terms:
“[a]n adjudicative context might be su cient” to implicate section 7, she
stated, but the Court had “not yet determined that one is necessary.”130
Even if section 7 does apply to cases where the administration of justice is
not implicated, it would remain to be decided whether section 7 should
protect economic rights essential for survival. Put otherwise, the Court
would have to decide whether section 7 places a positive obligation on
the state to “ensure that each person enjoys life, liberty or security of the
person.”131
e Chief Justice a rmed that it might, asserting that “[o]ne day s.
7 may be interpreted to include positive obligations.”132 Invoking Lord
Sankey’s dicta in Edwards v Attorney-General for Canada,133 she held that
“the Canadian Charter must be viewed as ‘a living tree capable of growth
and expansion within its natural limits’.”134 e Chief Justice provided a
rst step in this direction by setting out a framework for assessing a claim
for a breach of section 7 based on a positive state obligation to provide for
Canada (Ottawa: Commission on the Future of Health Care in Canada,
2002) at 5 [Jackman, e Implications of Section 7].
129. New Brunswick (Minister of Health and Community Services) v G(J),
[1999] 3 SCR 46 at para 65, cited in Gosselin, supra note 16 at para 77.
130. Gosselin, ibid at para 78.
131. Ibid at para 79.
132. Ibid at para 82.
133. [1930] AC 124 [Edwards].
134. Gosselin, supra note 16 at para 82, citing Edwards, ibid at 136.
376
Dhand & Diab, Canada’s Refugee Health Law and Policy
some essential bene t. An applicant must demonstrate:
(1) that the legislation a ects an interest protected by the right to life, liberty
and security of the person within the meaning of s. 7; (2) that providing
inadequate bene ts constitutes a “deprivation” by the state; and (3) that, if
deprivation of a right protected by s. 7 is established, this was not in accordance
with the principles of fundamental justice.135
Despite a powerful dissent by Arbour J, who was disposed to move in
this direction in Gosselin itself (with L’Heureux-Dube J concurring),
McLachlin CJC held that the facts in that case were not su cient to
meet the test she set out, but wrote:
I leave open the possibility that a positive obligation to sustain life, liberty, or
security of the person may be made out in special circumstances. However, this
is not such a case.  e impugned program contained compensatory ‘workfare’
provisions and the evidence of actual hardship is wanting.  e frail platform
provided by the facts of this case cannot support the weight of a positive state
obligation of citizen support.136
e majority in Gosselin thus a rmed the possibility that the provision
of inadequate bene ts could constitute a deprivation under section 7 –
and on this basis, section 7 could compel the state to provide an essential
bene t.137 But it would require “special circumstances” and “evidence
135. Ibid at para 75.
136. Ibid at para 83 [emphasis added].
137. In her dissenting opinion, Arbour J held that “every suitable approach
to Charter interpretation, including textual analysis, purposive analysis,
and contextual analysis, mandates the conclusion that the section 7 rights
of life, liberty and security of the person include a positive dimension”
at para 357. She thus read section 7 to include two distinct parts: “a
free-standing right to life, liberty and security of the person” (at para
386) and a right not to be deprived of those rights except in accordance
with the principles of fundamental justice. She also held, however, that
where the state fails to ful ll its positive obligation to provide for life,
liberty, or security of the person by inaction – rather than by a law or
action that “curtails” one of these rights – it is not necessary to engage in
an analysis of whether the state’s inaction was contrary to fundamental
justice, but only to assess whether the violation could be justi ed under
section 1. In this case, she found that “a minimum level of welfare is so
closely connected to issues relating to one’s basic health (or security of
the person), and potentially even to one’s survival (or life interest), that
it appears inevitable that a positive right to life, liberty and security of
the person must provide for it” at para 358.  e violation could not be
justi ed under section 1.
377
(2015) 1 CJCCL
of actual hardship” compelling enough to support the obligation.  e
groundwork was therefore laid for the  nding of a positive state duty
under section 7, but signi cantly, what McLachlin CJC had in mind
by the phrase “special circumstances” remained unclear. Gosselin invited
future courts to entertain constitutional challenges to deprivations of
coverage for essential services, but o ered no guidance as to when the
test of “special circumstances” is made out.
Despite this ambiguity at the core of Gosselin, later courts have moved
slowly in the direction of ful lling its promise. A number of cases have
held that (a) state involvement that hinders access to healthcare engages
section 7, (b) the hindrance amounts to a deprivation, and in some cases,
(c) the deprivation is contrary to the principles of fundamental justice.
However, in no case after Gosselin has a court held that a state refusal to
fund a bene t constituted a deprivation under section 7 in a manner that
is contrary to fundamental justice.138 Yet, the case law suggests that this
may be a small step from points reached thus far.  e di erences between
the facts in those cases and the present case are important for assessing
why this case might meet the Gosselin test.
For three members of the Supreme Court in Chaoulli v Quebec
(Attorney General)139 (including McLachlin CJC), the prohibition in
Quebec’s Hospital Insurance Act140 on access to private insurance for
treating life-threatening illnesses had engaged section 7. Evidence had
clearly demonstrated that long wait-times in the public system for
critical treatment had placed the applicant’s life or security of the person
in jeopardy.141 Finally, the deprivation was contrary to the principles of
fundamental justice for being arbitrary. On the evidence, the prohibition
on private insurance was not necessary for advancing the legislation’s
primary objective of maintaining the quality of the publically funded
138. One exception to this is the trial decision in Toussaint, supra note 18
(explored in more detail below), in which the exclusion of coverage from
the IFHP of a non-status migrant (i.e. a refusal to fund her) amounted
to a deprivation under section 7; but the deprivation was held to be not
contrary to the principles of fundamental justice.
139. Supra note 123.
140. CQLR c A-28.
141. Supra note 123 at paras 119, 123.
378
Dhand & Diab, Canada’s Refugee Health Law and Policy
healthcare system. Notably, however, Chaoulli involved a law that served
as a barrier to accessing private care.  e present case, by contrast, turns
on the validity of a refusal to continue providing a bene t.142
In some respects, the Supreme Court’s decision in PHS Community,
involving the government’s decision to close a safe-injection site for
heroine addicts in Vancouver, o ers a closer analogy to the facts in the
present case.143 Among the issues in that case was the validity under section
7 of a ministerial exercise of discretion under the Controlled Drugs and
Substances Act144 to exempt healthcare workers and users of the site from
the law’s criminal prohibition on the possession of controlled substances.
e Applicants had argued that the federal Minister of Health’s refusal to
renew an existing exemption amounted to a violation of section 7, given
the likely impact of the refusal on the medical condition of the program’s
clientele.  e evidence had established that the program clearly had
much success in saving lives and avoiding further harm to a vulnerable
population.  e refusal had engaged clients’ rights under section 7 given
that without the exemption, the CDSA’s prohibition on possession
hindered access to a form of assistance by healthcare professionals that
reduced the risk of death or serious illness for those su ering from a drug
addiction.145 Writing for the Court, Chief Justice McLachlin invoked
Morgentaler,
146 Rodriguez,
147 and Chaoulli148 in a rming the proposition
142.  e minority’s approach to the constitutional protection of access to
health care in primarily negative terms (a right not to be hindered from
accessing care rather than a right to be provided a minimal level of care)
has been the subject of extensive critical commentary. See e.g. Colleen M
Flood, Kent Roach & Lorne Sossin, eds, Access to Care: Access to Justice
–  e Legal Debate Over Private Health Insurance in Canada (Toronto:
University of Toronto Press, 2005); Je A King, “Constitutional Rights
and Social Welfare: A Comment on the Canadian Chaoulli Health Care
Decision” (2006) 69:4 Mod L Rev 631; Martha Jackman, “‘ e Last Line
of Defence for [Which?] Citizens’: Accountability, Equality and the Right
to Health in Chaoulli” (2006) 44:2 Osgoode Hall LJ 349.
143. Supra note 124.
144. SC1996, c 19 [CDSA].
145. Supra note 124 at para 93.
146. R v Morgentaler, [1988] 1 SCR 30 [Morgentaler].
147. RodriguezvBritish Columbia (Attorney General), [1993] 3 SCR 519
[Rodriguez].
148. Supra note 123.
379
(2015) 1 CJCCL
that “[w]here a law creates a risk to health by preventing access to health
care, a deprivation of the right to security of the person is made out
… Where the law creates a risk not just to the health but also to the
lives of the claimants, the deprivation is even clearer.149 e refusal to
renew the exemption amounted to a deprivation, and one that was not in
accordance with fundamental justice on the grounds that it was arbitrary,
grossly disproportionate, and overbroad. It was arbitrary in part given the
evidence that the site had saved lives and not increased crime, and the
decision to refuse the exemption bore no relation to the CDSAs objective
of maintaining public health and safety.
As with the Insite case, the present challenge to the 2012 IFHP
involves a decision to remove a bene t that results in adverse health
consequences for those a ected. A key di erence is that in the Insite case,
the Minster of Health decided to exempt the operation of a law (drug
possession) rather than to fund a bene t (for example, the site itself).
e question here is whether the refusal to fund refugee healthcare can
be said to constitute a deprivation of life or security of the person on the
basis that removing coverage is tantamount to depriving a ected persons
of access to care.
e Applicants argue that denying coverage amounts to “erecting
a barrier to essential health services” since many if not most refugee
claimants come to Canada in exigent circumstances, cannot a ord to pay
for care, and philanthropic funding may not be available consistently.150
Denying coverage also entails a “deprivation” of security of the person
comparable to the facts in Chaoulli, on the basis that at least one applicant
is su ering from a potentially life-threatening illness (diabetes).151 On
this reading, the  rst two stages in the Gosselin test would be made out.
e government, by contrast, argues that section 7 is not engaged
because “it does not cause a deprivation of medical care, nor prevent
or prohibit access to it.”152 Refugee claimants, failed claimants, and
those ineligible for IFHP coverage can obtain care through other means
149. PHS Community, supra note 124 at para 93.
150. Applicants’ Memorandum, supra note 18 at para 75.
151. Ibid.
152. Respondents’ Memorandum, supra note 8 at para 101.
380
Dhand & Diab, Canada’s Refugee Health Law and Policy
described above (community health centres, philanthropic programs, or
emergency services at hospitals). On this view, migrants are deprived of
healthcare only if clearly hindered by law or if removal of coverage has
the e ect of hindering access to any necessary care.  e state has not
deprived migrants of care because they still have some means of access.
e Applicants’ claim is, in the government’s view, primarily economic.
And, as the government contended, a wide range of authority holds that
despite the possibility left open in Gosselin, courts have not recognized
that section 7 imposes a positive obligation to provide a bene t necessary
to protect life or security of the person – and have been especially reluctant
to apply section 7 “when the bene t involves an economic component.”153
Curiously, however, in Canadian Doctors, Mactavish J rejected the
proposition that because migrants still had access to other avenues of care
– community health centres, charity, emergency services – they were not
deprived of care.154 She also found that these other avenues are inadequate
for a host of reasons, leaving at least some indigent migrants at risk of
serious illness and in many cases “tremendous psychological strain.155
But she was reluctant to  nd that this deprivation of care endangering
life and security of the person was therefore a possible deprivation of life
and security of the person under section 7.
e Court in Canadian Doctors would have been justi ed in taking
this further step on the basis that none of the authorities on which
the government relies contemplate the guarantee of a minimal level
of healthcare for a group analogous to refugees who come to Canada
under exigent circumstances.  e government’s authorities for limiting
section 7 to a negative duty can be distinguished into three categories
of cases with each entailing a clearly di erent kind of claim from that in
the present case. One consists of cases in which claimants have sought
recognition of a social or economic right to social assistance or housing,
with courts refusing to recognize a positive duty to provide a minimal
level of social assistance.156 A key factor here is that a minimal level of
153. Ibid at paras 102-03, citing Masse, Flora, CCW, Sagarian, Wynberg, Grant,
and Tanudjaja, supra note 15; Toussaint, supra note 18.
154. Canadian Doctors, supra note 17 at paras 261-86.
155. Ibid at paras 285, 295-99.
156. See e.g. Masse, Grant, and Tanudjaja, supra note 15.
381
(2015) 1 CJCCL
assistance is already available throughout Canada. In deciding not to
recognize a section 7 claim in this context, courts are essentially resisting
the invitation to set a minimal amount of assistance, given that a certain
level of assistance is, for the foreseeable future, something close to a social
and political certainty.
A second group contemplates coverage for prescriptions or treatment
for autism and analogous conditions – matters impinging on security
of the person but not life-threatening.157 Finally, three cases that have
the closest application (and are cited in Canadian Doctors) are ones in
which applicants su ering life-threatening illnesses brought section 7
challenges to compel state funding.158 However, the claimants in each of
these cases are in distinctly di erent positions from those directly a ected
by changes to the IFHP. And the applicants in two of the cases were
asking courts to recognize  nancial obligations on the part of the state of
a di erent nature.
e rst of these cases, Toussaint v Attorney General of Canada,159 is
signi cant because it involved a challenge under section 7 to the validity
of the IFHP’s exclusion from coverage (prior to 2012) of a foreign
national who su ered a life-threatening illness. In contrast to the present
case, Ms. Toussaint was a citizen of Grenada who visited Canada in 1999
and chose to outstay her visa, remaining illegally. From 1999 to 2006, she
worked and could a ord health care. At that point her health declined
severely, preventing her from working and requiring greater care than
she could a ord. She received various treatments in hospital in 2007 and
2008, as her condition worsened, and she was unable to pay the bills she
was incurring. In 2009, her condition, which included diabetes, a kidney
disorder, and renal dysfunction, became life-threatening; yet she was able
to obtain only emergency care and limited medication.160 Justice Zinn
157. See e.g. Auton (a decision primarily concerning section 15, though a
violation of section 7 was alleged and dismissed), Wynberg, and Sagharian,
supra note 15.
158. Flora and CCW, supra note 15; Toussaint, supra note 18.
159. Ibid.
160. Ibid at para 91. On the urgency of the Applicant’s condition, Zinn J cited
a davit evidence of a doctor for the  nding that “[i]f she were to not
receive timely and appropriate health care and medications in the future,
she would be at very high risk of immediate death (due to recurrent blood
382
Dhand & Diab, Canada’s Refugee Health Law and Policy
found that in light of the applicant’s condition, the IFHP’s exclusion
of coverage to non-status aliens deprived her of the right to security of
the person under section 7. But his Lordship refused to accept that the
deprivation was contrary to fundamental justice.
e Federal Court of Appeal a rmed the decision but upheld
the holding that the Appellant’s exclusion from coverage amounted
to a deprivation under section 7.161 On the question of whether the
deprivation was in accordance with fundamental justice, the Court went
a step further than Zinn J by suggesting that the operative cause of the
deprivation was not the IFHP’s exclusion, but rather, the limitation
in Ontario’s health insurance plan to non-status aliens, together with
the Appellant’s voluntary choice to remain in Canada without legal
status.162 As Stratas JA asserted, the “provision of public health coverage
and the regulation of access to it is primarily the responsibility of the
provinces and the territories, with the federal government playing a
role in funding, the setting of standards under the Canada Health Act
… and, occasionally, regulation in speci c areas under its criminal law
pow er.” 163 If a deprivation under section 7 occurred here, it was because
the provincial plan did not extend “far enough to cover all of her medical
needs.”164 e Court also a rmed the lower court’s  nding that the
IFHP’s exclusion was not arbitrary, citing Zinn J’s dicta from the decision
below that there is:
… nothing arbitrary in denying  nancial coverage for health care to persons
who have chosen to enter and remain inCanadaillegally. To grant such coverage
to those persons would make Canada a health-care safe-haven for all who
require health care and health care services.  ere is nothing fundamentally
clots and pulmonary embolism), severe medium-term complications (such
as kidney failure and subsequent requirement for dialysis), and other long-
term complications of poorly-controlled diabetes and hypertension (such
as blindness, foot ulcers, leg amputation, heart attack, and stroke).”
161. Toussaint Appeal, supra note 56 at para 61.
162. Ibid at para 72. On the requirement that the claimant establish that an
impugned law is the operative cause of a deprivation under section 7, the
Court cited TrueHope Nutritional Support Limited v Canada (AG), 2011
FCA 114 at para 11.
163. Toussaint Appeal, supra note 56 at para 72.
164. Ibid at para 70.
383
(2015) 1 CJCCL
unjust in refusing to create such a situation.165
In distinction to Toussaint, however, the present case does not involve
applicants who came to Canada in a fully voluntary sense or chose
to remain without status. A more complex question is whether limits
in provincial and territorial coverage are also the operative cause of a
deprivation on the part of refugees covered under the pre-2012 IFHP.
On one reading, they are. As in Toussaint, any deprivation under
section 7 that claimants in this case su er is due primarily to the failure of
provincial and territorial plans to make up the shortfall in coverage – on
the assumption that provinces and territories bear primary responsibility
for regulating access to and coverage of health care for refugees. But Stratas
JA may have oversimpli ed the question of federal jurisdiction over health
care, and of jurisdiction over refugee health in particular. Under section
95 of the Constitution Act, 1867,
166 immigration is a matter of concurrent
jurisdiction, with the federal government having paramount authority in
the event of a con ict.167 Section 91(25) provides the federal government
exclusive jurisdiction over “naturalization and aliens.168 However, in
Schneider v  e Queen,169 the Supreme Court held that:
‘[H]ealth’ is not a matter which is subject to speci c constitutional assignment
but instead is an amorphous topic which can be addressed by valid federal
or provincial legislation, depending on the circumstances of each case on the
nature or scope of the health problem in question.
170
Sections 91(11) and 92(7) of the Constitution Act, 1867171 address the
operation of quarantine and hospitals, but the Constitution is otherwise
silent on the subject of healthcare. Provincial responsibility for the
165. Ibid at para 69; Stratas JA noted at para 71 that the “record reveals no
attempt by the appellant to assert section 7 or 15 of the Charter against
provincial legislation that limits her access to health care.”
166. (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.
167. Nancy Miller Chenier, Federal Responsibility for the Health Care of Speci c
Groups (Ottawa: Parliamentary Information and Research Service, 2004)
at 11.
168. Ibid.
170. Ibid at 142. See also Martha Jackman, “Constitutional Jurisdiction Over
Health in Canada” (2000) 8 Health LJ 95 [Jackman, “Constitutional
Jurisdiction Over Health”].
171. Supra note 166.
384
Dhand & Diab, Canada’s Refugee Health Law and Policy
delivery of most health services is understood to derive from powers over
property and civil rights in section 92(13) and matters of a merely local
or private nature in section 92(16).
172 e federal government’s spending
power over healthcare and criminal law power in matters impinging
upon health are also well established.
173 A further potential source that
may apply to refugee health is found at the outset of section 91, which
provides Parliament the power to “make laws for the peace, order and
good government of Canada, in relation to all matters not coming within
the classes of subject by this Act assigned exclusively to the legislatures
of the provinces.”174 e Supreme Court has held that the POGG power
is available where a matter not addressed elsewhere in the division of
powers is a matter of national concern, is “singular” or “indivisible
in nature, and is not amenable to being addressed in a more e cient
manner by the provinces individually.175 If refugee health care falls within
the purview of the federal government, then by contrast to Stratas JA’s
holding in Toussaint, changes to the IFHP would serve as a more direct
and thus operative cause of a deprivation of security of the person for the
individual applicants in this case.
In the second case, Flora v Ontario Health Insurance Plan,176 the
appellant was diagnosed with liver cancer but found ineligible for a
liver transplant in Ontario under a set of criteria commonly applied by
doctors throughout the province, given the size and number of tumors
in his liver. He then sought and obtained a transplant in England where
the criteria for such a procedure were more generous.  e transplant
saved his life, but cost $450,000. He applied under the Ontario Health
Insurance Plan (OHIP) for reimbursement and was declined.  e Health
172. Martha Butler & Marlisa Tiedemann, e Federal Role in Health and
Health Care (Ottawa: Parliamentary Information and Research Service,
2011) at 1.
173. Ibid at 2-3. See also Eldridge v British Columbia (Attorney General), [1997]
3 SCR 624 at para 15 [Eldridge]; Reference Re Canada Assistance Plan
(BC), [1991] 2 SCR 525 at 567; Jackman, “Constitutional Jurisdiction
Over Health”, supra note 170 at 97.
174. Constitution Act, 1867, supra note 166.
175. R v Crown Zellerbach, [1988] 1 SCR 401 at 431-32; Butler & Tiedemann,
supra note 172 at 4.
176. Supra note 15.
385
(2015) 1 CJCCL
Services Appeal and Review Board upheld the decision on the basis that
the treatment did not meet the criteria for “insured service” under section
28.4(2) of Regulation 552 of the Health Insurance Act,177 because the
transplant was not “generally accepted in Ontario as appropriate for a
person in the same medical circumstances.”178 e Ontario Superior
Court of Justice dismissed an appeal of this decision, and the dismissal
was upheld by the Court of Appeal.179
Before the latter Court, Flora had noted that an earlier version of the
regulation had allowed funding for his treatment on the basis of “medical
necessity” rather than what was “generally accepted” as “appropriate.”
Flora argued that the amended law allowing for discretionary coverage
violated section 7 because denying him coverage deprived him of
access to life-saving treatment. He also argued more generally that
“s. 7 imposes a positive obligation on the state to provide life-saving
medical treatments, thus obviating the need for a  nding of state action
amounting to deprivation.”180 Justice Cronk, on behalf of a unanimous
Court of Appeal, held that Flora had “failed to demonstrate that the
Regulation constituted a deprivation by the state of his rights to life or
security of the person.”181
e Court arrived at this conclusion by distinguishing the facts from
those in Chaoulli,182 Morgentaler,183 and Rodriguez.184 In each of those
cases, the impugned provision placed the appellant in a situation in
which his or her life or security of the person was a ected or threatened:
in Morgentaler, the mandatory therapeutic abortion committee system
had this e ect; in Rodriguez, the criminal prohibition on assisted
suicide did so; and in Chaoulli, the prohibition on private healthcare
forced people in critical condition onto waitlists.185 By contrast, the
regulation in Flora “does not prohibit or impede anyone from seeking
177. Regulation 552, supra note 58.
178. Ibid, s 28.4(2).
179. Flora, supra note 15.
180. Ibid at para 93.
181. Ibid at para 95.
182. Supra note 123.
183. Supra note 146.
184. Supra note 147.
185. Flora, supra note 15 at paras 98-100.
386
Dhand & Diab, Canada’s Refugee Health Law and Policy
medical treatment” or limit the kind of treatment available.186 It provides
for coverage of some out-of-country treatments, but does not violate
section 7 for its failure to cover all of them. On the question of a broader
positive duty under section 7, Cronk JA cited McLachlin CJC’s dicta in
Gosselin, and conceded that “s. 7 may one day be interpreted to include
positive obligations in special circumstances where, at a minimum, the
evidentiary record discloses actual hardship.”187 But to this point, he
noted, “the protection a orded by s. 7… has not been extended to cases
– like this one – involving solely economic rights.”188 us, in this case,
absent evidence of “actual hardship,” or a loss of coverage that actually
threatens a person’s life or security of the person, the claim was perceived
to be “solely economic.” In distinction to this case, however, refugees
or rejected claimants denied coverage under the IFHP do face actual
hardship given the special circumstances that bring them to Canada
(duress, endangerment, and persecution), their inability to pay, and a
critical medical condition.
A third relevant case is CCW v Ontario Health Insurance Plan,189
in which the three appellants had been denied coverage for out-of-
country treatment due to a failure to obtain prior approval from the
General Manager of the Ontario Hospital Insurance Plan.  e appellants
argued, inter alia, that the requirement of prior approval amounted to a
deprivation of the right to life or security of the person under section 7.
ey also sought to draw an analogy between the requirement for prior
approval and the prohibition on private health insurance in Chaoulli.
Both required patients to wait for treatment in the public system, joining
lengthy queues that created life-threatening conditions. At least one
appellant in CCW risked serious injury or death if he did not leave Canada
to seek treatment immediately, and could not obtain prior approval for
coverage given his lack of timely access to his doctor.
Justice Swinton dispensed with the section 7 claim by citing Flora for
the proposition that there is no deprivation under section 7 because of
186. Ibid at para 101.
187. Ibid at para 105.
188. Ibid at para 106.
189. Supra note 15.
387
(2015) 1 CJCCL
the province’s decision to limit funding in ways that do not hinder access
or limit forms of treatment to which one has access. Nor does the law, at
present, impose a positive obligation on the state to provide a “ nancial
bene t that is not otherwise required by law”190 – or, as Cronk JA held in
Flora, not in the absence of evidence of “actual hardship.”191 is case was
also unlike Morgentaler or Chaoulli where the legislative regime at issue
prevented a person from obtaining necessary treatment. Here, as Swinton
J noted, there was “no evidence that the appellants su ered a delay in
obtaining necessary medical services because of the legislation.”192
As with Flora, CCW can be distinguished from the present case by
an absence of “actual hardship” that can be tied directly to the legislative
provision.  e denial of coverage in this case results in a  nancial
hardship. But for the Applicants challenging the IFHP regime, the denial
of coverage is a direct cause of the threat to life or security of the person. It
serves as a direct cause in a way that has no direct analogy in these or any
of the other cases on which the government seeks to rely. In distinction
to the “minimal level of basic service” cases, the Applicants might have
access to no alternate coverage – aside from emergency coverage at
hospitals.  is would mean that a person’s right to life is not infringed
under section 7, but the limitation of coverage to this level still leaves
the question of whether a person is deprived of security of the person
for su ering a serious or life-threatening illness and having to wait for a
visit to the emergency ward to receive treatment. Moreover, unlike Flora,
CCW, and other OHIP cases in which section 7 has been invoked, in the
case of refugee claimants the issue is not strictly monetary.  eir situation
cannot be reduced to a strict inability to pay. It is an inability that  ows
from a position as a refugee or a person in need of protection.  ese may
constitute the “special circumstances” contemplated in Gosselin by virtue
of meeting the standard of “actual hardship” articulated in that case.
B. Principles of Fundamental Justice
If revisions to the IFHP result in a deprivation of life or security of the
190. Ibid at paras 98-100.
191. Supra note 15 at para 105.
192. CCW, supra note 15 at para 101.
388
Dhand & Diab, Canada’s Refugee Health Law and Policy
person under section 7, the application must also meet the third part of
the test in Gosselin: establishing that rights were deprived in a manner
contrary to the principles of fundamental justice. Two principles on which
the appellant seeks to rely are arbitrariness and gross disproportionality.
Writing for a minority in Chaoulli,193 McLachlin CJC and Major J
o ered a de nition of arbitrariness in the context of section 7 that has
been cited approvingly by the Court in later decisions:
In order not to be arbitrary, the limit on life, liberty and security requires
not only a theoretical connection between the limit and the legislative goal,
but a real connection on the facts …  e question in every case is whether
the measure is arbitrary in the sense of bearing no real relation to the goal
and hence being manifestly unfair.  e more serious the impingement on the
person’s liberty and security, the more clear must be the connection. Where
the individual’s very life may be at stake, the reasonable person would expect
a clear connection, in theory and in fact, between the measure that puts life at
risk and the legislative goals.194
Chief Justice McLachlin de ned gross-disproportionality in the Insite
decision in terms of “state actions or legislative responses to a problem
that are so extreme as to be disproportionate to any legitimate government
interest.”195
e Applicants in the IFHP challenge contend that the 2012 changes
were both arbitrary and grossly disproportionate in light of the objectives
of the new plan set out in a press release issued at the time the changes
were announced.196 One objective was “fairness to Canadians,” or to put
in place a scheme that provided no greater bene ts to refugee claimants
than those available to most Canadians. It was assumed to be superior
in the sense of providing limited dental and eye care bene ts, which are
not commonly included in provincial and territorial plans for citizens
and residents. However, the same coverage is extended to those on
social assistance in most provinces and to those el igible under Quebec’s
provincial plan – and this group is a more appropriate comparator to
193. Supra note 123.
194. Ibid at para 131, cited in AC v Manitoba (Director of Child and Family
Services), 2009 SCC 30, and PHS Community, supra note 124.
195. Ibid at para 133.
196. Applicants’ Memorandum, supra note 18 at para 88.
389
(2015) 1 CJCCL
refugees.197 And thus, if it is not correct to assume that the earlier IFHP
o ered superior coverage to what is available to other Canadians, the
Applicants argue that it is arbitrary to deprive persons of a right to life
or security of the person on this ground.  ey also argue that denying
coverage is arbitrary because the new plan does not equalize coverage in
the name of fairness but removes it altogether (for certain classes of non-
citizen).198 ese arguments are consistent with Mactavish J’s analysis of
the government’s objectives under section 1 (explored further below),
in which she dismissed the notion that the pre-2012 IFHP entailed an
unfairness in coverage between migrants and working Canadians.199
A second objective of the revised IFHP was to remove an incentive
for foreigners who may come to Canada in bad faith or who intend to
remain in Canada after a failed refugee claim. Yet, as the Applicants
note, the government has o ered no support for the proposition that
withdrawing coverage from certain groups would deter fraudulent
claims.200 In her section 1 analysis, Mactavish J agreed with this, asserting
that the “deterrence argument is founded to a large extent on a subjective
perception held by unidenti ed individuals.”201 It is also grossly
disproportionate in the sense that by changing the plan and withholding
health care coverage from one refugee claimant so as to deter another
amounts to “a particularly egregious instance of treating a human being
instrumentally as merely a means to an end.”202
A further objective was cost savings, but the Applicants argue that
the cost implications of the program render the changes to the IFHP
both arbitrary and grossly disproportionate in relation to this stated goal.
e Applicants tendered a davit evidence from various stakeholders in
support of the claim that “hospitals, clinics and even health practitioners
have largely been forced to absorb the cost of treating refugees where
the patients could not pay or fundraising came up short.”203 e
197. Ibid at para 159.
198. Ibid at para 91.
199. Canadian Doctors, supra note 17 at paras 946-47.
200. Applicants’ Memorandum, supra note 18 at para 92.
201. Canadian Doctors, supra note 17 at para 1019.
202. Applicants’ Memorandum, supra note 18 at para 93.
203. Ibid at para 95.
390
Dhand & Diab, Canada’s Refugee Health Law and Policy
changes a ect cost transfers, but not cost savings.  ey are also grossly
disproportionate in the sense that government estimates indicate that
the per capita cost of the IFHP was $552 or roughly 10 percent of the
per capita cost for health care for Canadians, or 60 cents per taxpayer
per year.204 As the Applicants contend, “the IFHP spent little on each
recipient, but delivered crucial, life sustaining bene ts.”205 Assessing this
issue under the minimal impairment component of section 1, Mactavish
J had found that there was “no reliable evidence” before the Court “of the
extent to which the 2012 changes to the IFHP will, on their own, result
in cost savings at the federal level.”206
A  nal objective was that the changes were meant to “safeguard public
health and safety.207 But given the reduced scope of health coverage for
many groups that may carry a wide range of illnesses, including mental
illnesses, this goal would seem to be undermined by the changes rather
than supported. Moreover, operational changes to the administration
of the IFHP may lead to delays in providing eligibility certi cates to
new arrivals who may have communicable diseases, thus reducing
public safety.208 In her treatment of this issue under section 1, Mactavish
J concurred: deterring DCO migrants from seeking or obtaining
healthcare, she found, “potentially jeopardize[s] public health.209
e Applicants also argue that the possibility of discretionary relief
under the plan – a possibility preserved in the 2012 IFHP – does not
rectify the deprivation of rights explored earlier. First, the discretion to
raise a person’s status from the third or fourth to the second tier would
still leave him or her without coverage for essential medication for any
condition that is non-communicable.210 More to the point, discretion is
practically moot given that in many cases, care is needed urgently and
discretionary coverage is time consuming and involves a bureaucratic
204. Ibid.
205. Ibid.
206. Canadian Doctors, supra note 17 at para 1012.
207. Backgrounder to the Order Respecting the Interim Federal Health Program,
2012, supra note 106.
208. Applicants’ Memorandum, supra note 18 at para 97.
209. Canadian Doctors, supra note 17 at para 954.
210. Applicants’ Memorandum, supra note 18 at para 99.
391
(2015) 1 CJCCL
process that is “opaque, unpublicized, [and] paper-driven.211
In summary, we have argued in this part of the paper that the facts
in the current challenge to the revised IFHP render this case better suited
than any earlier jurisprudence to the Gosselin test for a positive state duty
under the Charter. But we note that the Gosselin test runs counter to a
considerable body of Charter case law – both before and since Gosselin
– re ecting a deep resistance to a positive interpretation of rights. As
Martha Jackman writes:
Since the inception of the Charter, judges in Canada have, with rare exceptions,
adopted a deferential, negative rights based approach to socio- economic
rights, including the right to health care. In clear contradiction of Canada’s
Rights and other international human rights treaties, they have frequently
held that governments have no a rmative duty to ensure that individuals,
particularly those who are members of socially or economically disadvantaged
groups, do in fact have the means to enjoy Charter rights to life, liberty, security
of the person and equality.212
is tendency may well extend to the  nal disposition in the present
case. We anticipate that at the Federal Court of Appeal, there will be
a strong impetus to apply the law on section 7 as presently con gured,
limiting its application to instances where access to health care is hindered
(rather than where coverage is not provided). In one sense, this would
be a simple function of stare decisis.213 But it would also re ect a lack
211. Ibid. As the Applicants note, as of September 2013, no information
had been published about how to apply for discretionary coverage,
what criteria would be used to assess the application, and no reasons
were required for a decision.  e Applicants draw an apt comparison
here between discretionary coverage under the IFHP and the hospital
committee process for approving access to abortions under the Criminal
Code regime challenged in Morgentaler, supra note 146.  e Supreme
Court in that case held, at 72, that the scheme was “manifestly unfair” in
relation to the stated objective of the legislation (providing a “procedural
structure for bringing into operation a particular defence to criminal
liability”).
212. Martha Jackman, “Charter Review As a Health Care Accountability
Mechanism in Canada” (2010) 18 Health LJ at 27.
213. In Tanudjaja v Attorney General (Canada) (Application), supra note 15,
the Ontario Superior Court summarily dismissed a claim under section 7
of a positive state duty for housing bene ts primarily on the basis of the
weight of authority against such an application of the Charter.
392
Dhand & Diab, Canada’s Refugee Health Law and Policy
of clarity as to how lower courts should apply the test contemplated in
Gosselin. In the absence of greater clarity as to when a case meets the test
of “special circumstances” that merit a  nding of a positive state duty
under section 7, as McLachlin CJC had contemplated, the question may
need to return to the Supreme Court of Canada for further clari cation.
C. Section 12
Section 12 of the Charter states that “everyone has the right not to be
subjected to any cruel and unusual treatment or punishment.”214 e
Applicants in Canadian Doctors argued that the changes to the IFHP
resulted in a denial of “life sustaining health care” that constituted a form
of “cruel and unusual treatment” under section 12.  e government
submitted that while the IFHP may provide for healthcare “treatment,
migrants were not “subjected” to the program and section 12 is concerned
only with “mandatory matters imposed by the state.”215 e government
also argued that the IFHP “does not prevent anyone from obtaining
medical care: rather it o ers and funds some health services for eligible
bene ciaries, who can access them if they choose, at state expense.”216
Justice Mactavish began by noting that most section 12 jurisprudence
concerned punishment rather than treatment, with limited authority
as to the scope of “treatment” for the purposes of that section.217 But
as Mactavish J noted, the Supreme Court in Rodriguez218 a rmed the
possibility that “treatment” could include “that imposed by the state
in contexts other than that of a penal or quasi-penal nature.”219 In
considering the meaning of “treatment” under section 12 in a challenge to
section 241(b) of the Criminal Code, which prohibits “assisted suicide,220
Sopinka J, for the majority in Rodriguez, held:
ere 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
214. Supra note 14.
215. Canadian Doctors, supra note 17 at para 574.
216. Ibid.
217. Ibid at para 578.
218. Supra note 147.
219. Ibid at para 182.
220. Ibid.
393
(2015) 1 CJCCL
question, whether it be positive action, inaction or prohibition, to constitute
“treatment” under s. 12.221
Drawing on this interpretation, Mactavish J held that while refugee
claimants are in a distinct situation from that of Ms. Rodriguez, in seeking
Canada’s protection, claimants are “e ectively under the administrative
control of the state.”222 eir “rights and opportunities” can be “limited
in a number of di erent ways” including their entitlement to bene ts
and their claims for protection.223 A further relevant distinction here
was the fact that whereas Ms. Rodriguez had been subject to a law of
general application, the decision to amend the IFHP “intentionally
targeted an admittedly vulnerable, poor and disadvantaged group for
adverse treatment … for the express purpose of in icting predictable and
preventable physical and psychological su ering.”224 e government’s
actions in both respects brought the IFHP changes within the scope of
the word “treatment” for the purposes of section 12.
In R v Smith,225 the Supreme Court held that treatment or
punishment will be found to be “cruel and unusual” under section 12 if
it is “so excessive as to outrage [our] standards of decency.”226 Among the
factors to be considered are whether treatment exceeds what is necessary
to achieve a legitimate purpose, whether there are adequate alternatives,
whether it accords with public standards, whether it shocks the general
conscience, and whether it is “unusually severe and hence degrading to
human dignity and worth.”227
When applying the factors to this case, Mactavish J found that
the amendments to the IFHP have not “achieved a legitimate aim.228
221. Ibid.
222. Canadian Doctors, supra note 17 at para 585.
223. Ibid. Justice Mactavish noted that recognizing “treatment” as the
government decisions to withhold social bene ts from migrants was
consistent with foreign jurisprudence, including 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 (Conjoined Appeals) [2005] UKHL 66.
224. Canadian Doctors, supra note 17 at para 587.
226. Ibid at para 83.
227. Ibid at para 44.
228. Canadian Doctors, supra note 17 at para 617.
394
Dhand & Diab, Canada’s Refugee Health Law and Policy
ere was not enough evidence to prove that the changes have deterred
illegitimate claims or reduced the costs of the program.229 ey are also
“arbitrary,”230 “have limited social value,”231 are highly criticized by key
stakeholders including provincial governments, medical associations and
non-governmental organizations,232 and therefore do not “accord with
public standards of decency and propriety.233 Signi cantly, Mactavish J
found that there was “substantial evidence … not just of philosophical
di erences with a government policy choice, but of real outrage on the
part of informed, a ected individuals and groups at what has been done
through the 2012 changes to the IFHP.”234 e e ects were “especially
evident insofar as they a ect children.”235 Citing numerous examples
given in evidence of cases in which children su ering from serious
conditions including pneumonia, asthma, and suicidal depression were
denied care, she held that the amendments 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.236
Finding a violation of section 12 on the basis of administrative control
amounting to cruel treatment, Mactavish J o ered a novel basis on which
to capture the violation of dignity and humanity in this case. Notably,
it did so in a manner that avoided the thornier debate about whether
the Charter imposes a positive duty on the part of the state to provide
a social bene t. And given the extensive factual  ndings supporting her
application of the test in Smith, the holding on section 12 – at least with
respect to the issue of cruelty – would appear to be on  rm evidentiary
ground.
229. Ibid.
230. Ibid at para 618.
231. Ibid at para 620.
232. Ibid at para 624.
233. Ibid at para 635.
234. Ibid.
235. Ibid at para 637.
236. Ibid at para 691.
395
(2015) 1 CJCCL
D. Section 15
Section 15(1) of the Charter states that “[e]very individual is equal before
and under the law and has the right to the equal protection and equal
bene t of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion,
sex, age, mental or physical disability.237 Section 15(2) quali es this by
stating: “[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.238
e Applicants in this case argued that the changes to the IFHP have
created a “health care hierarchy.239 Contrar y to section 15, the 2012
IFHP discriminates on the basis of (a) national or ethnic origin and (b)
immigration status.240 It does so on the basis of national or ethnic origin
by providing a lower level of health care insurance to refugee claimants
from DCO countries versus those from non-DCO countries.241 And it
does so on the basis of immigration status by o ering certain migrants
lesser coverage than those of immigrants or Canadians. For example,
both individual Applicants, Ayubi and Rodriques, were denied similar
coverage a orded to other migrants and Canadians, despite having
obtained legal status.242
In response, the government argued that any discriminatory e ect of
the cuts was based not on the IFHP but on distinctions among categories
of migrants in the Immigration and Refugee Protection Act, including those
from Designated Countries of Origin.243 e government also pointed to
earlier jurisprudence in which courts have rejected the argument that
“immigration status” is an analogous ground under section 15 of the
237. Supra note 14.
238. Ibid, s 15(2).
239. Canadian Doctors, supra note 17 at para 694; Applicants’ Memorandum,
supra note 18 at para 64.
240. Canadian Doctors, supra note 17 at para 696.
241. Ibid.
242. Ibid.
243. Ibid at para 699.
396
Dhand & Diab, Canada’s Refugee Health Law and Policy
Charter.244 Moreover, the government submitted, the “right to state-
funded health care”245 is not accessible to all Canadians equally.246
In R v Kapp247 the Supreme Court held that the purpose of subsection
15(1) of the Charter is:
[P]reventing governments from making distinctions based on the enumerated
or analogous grounds that: have the e ect of perpetuating group disadvantage
and prejudice; or impose disadvantage on the basis of stereotyping.248
In Quebec (AG) v A,249 the Supreme Court set out a two-part test for
establishing a section 15 violation. Challengers must show that
i. the law creates a distinction based on an enumerated or analogous
ground, and
ii. the distinction creates a disadvantage by perpetuating prejudice or
stereotyping.250
e analysis underlying the test considers whether the state action has
a “discriminatory impact”251 and whether “the state conduct widens the
gap between the historically disadvantaged group and the rest of society,
rather than narrowing it.”252
Justice Mactavish dismissed the claim that the revised IFHP
discriminated on the basis of immigration status, but held that it did
violate section 15(1) on the basis of national origin.253 e IFHP drew
a distinction between refugee claimants from DCO countries and those
from other countries, limiting the former to “Public Health or Public
Safety (PHPS) bene ts.”254 Her analysis relied in part on Eldridge v British
Columbia (Attorney General),255 in which the Supreme Court held that
the state does not have to provide any particular social bene t; but if a
244. Ibid at para 702.
245. Ibid at para 703.
246. Ibid.
247. 2008 SCC 41 [emphasis removed].
248. Ibid at para 25.
250. Ibid at para 162.
251. Ibid at para 332.
252. Ibid.
253. Canadian Doctors, supra note 17 at para 696.
254. Ibid at para 735.
255. Supra note 173.
397
(2015) 1 CJCCL
government chooses to provide a bene t, “it is obliged to do so in a non-
discriminatory manner.”256 e Court in Eldridge further reasoned that
“in many circumstances, this will require governments to take positive
action, for example by extending the scope of a bene t to a previously
excluded class of persons.”257
Justice Mactavish also dismissed the government’s argument
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.258 e government had contended that the purpose
of the distinctions drawn by the 2012 IFHP were in part to assist
refugee claimants by allocating more funding to migrants whose claims
have longer processing times and therefore stay in Canada for longer
periods.259 e government relied on this approach to section 15(2) in
Alberta (Aboriginal A airs and Northern Development) v Cunningham,260
in which the Supreme Court held that “[a]meliorative programs, by their
nature, confer bene ts on one group that are not conferred on others.”261
ere will not be a violation of subsection 1(2) “if they serve or advance
the object of the program, thus promoting substantive equality.262 But
Mactavish J rejected the claim that increasing processing times for some
migrants would advance the goal of substantive equality – since shorter
processing times for refugee claimants from DCO countries will entail
inequalities in health coverage and other discriminatory e ects.263 As
Mactavish J noted, “[i]t 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 to come to Canada from Sri Lanka (a non-DCO country).”264
By drawing a distinction between the level of health care insurance
coverage provided to DCO countries versus non-DCO countries,
256. Ibid at para 73.
257. Ibid.
258. Canadian Doctors, supra note 17 at para 779.
259. Ibid at para 780.
261. Ibid at para 53.
262. Ibid.
263. Canadian Doctors, supra note 17 at para 796.
264. Ibid at para 804.
398
Dhand & Diab, Canada’s Refugee Health Law and Policy
the 2012 IFHP was also found to perpetuate a prejudice in the form
of depriving coverage from seriously ill claimants,265 and it was found
that the discrimination against DCO claimants “perpetuates negative
attitudes about them.”266 e denial of health insurance coverage
continues to enhance the marginalization faced by refugee claimants
from DCO countries such as the Roma from Hungary and the LGBTQ
communities in Mexico.267
E. Section 1
In light of the  nding that changes to the IFHP violate sections 12 and
15 of the Charter, the Court in Canadian Doctors had to assess whether
the violation constitutes a reasonable limit on the rights in accordance
with section 1 of the Charter. To meet this test, the government had the
onus of establishing,  rst, that the impugned measure has a pressing and
substantial objective, and second, that it meets a general proportionality
test.268 At this second stage, the court must assess whether the objective
bears a rational connection to the chosen measure, whether the measure
minimally impairs the violated rights, and whether the deleterious e ects
of the program are proportionate to its salutary objectives, thus justifying
the limit on the rights in question.269 If appellate courts uphold the
ndings that Charter rights have been violated in this case, Mactavish J’s
factual  ndings supporting her analysis under section 1 will be relevant
on appeal.
Justice Mactavish identi ed the objectives of the revised 2012 IFHP
by citing a press release accompanying the announcement of the changes
in April of 2012.270 ese included “cost containment,” “fairness to
Canadian taxpayers,” “the protection of public health and safety,” and
the need to defend the “integrity of Canada’s immigration system.”271
Citing the Supreme Court’s decision in Newfoundland (Treasury Board)
265. Ibid at para 813.
266. Ibid at para 830.
267. Ibid at para 837.
268. R v Oakes, [1986] 1 SCR 103 at 138-39.
269. Ibid at 139.
270. Canadian Doctors, supra note 17 at para 892.
271. Ibid.
399
(2015) 1 CJCCL
v NAPE,272 Mactavish J noted that while cost alone would not ordinarily
constitute a pressing and substantive objective, it may when “wrapped
up with other public policy considerations,”273 as was the case here. She
found that “fairness to Canadians” might also have constituted a pressing
and substantial objective, but found that a lack of fairness to Canadians
with respect to the pre-2012 IFHP had not been established.274 It was
implausible, in her view, to suggest that the earlier framework was unfair to
working Canadians because migrants under that framework had received
bene ts such as eye and dental care that were only available to Canadians
on social assistance. Given their indigent status and precarious position
as refugees or migrants, and their willingness to abide by immigration
and refugee laws, the provision of bene ts to these individuals was not
unfair.275 Protecting public health and safety was found to be a pressing
and substantial objective, and in light of evidence of abuse of the refugee
system, so too was the goal of protecting the integrity of Canada’s
immigration system.276
Moving to the rational connection test, Mactavish J agreed there
was a reasonable connection between the withdrawal of coverage to
certain classes of migrants under the new framework and the goal of
reducing costs to the program.277 But given her earlier  nding of a lack
of unfairness to Canadians in the earlier coverage under the program,
she found no rational connection between the removal of coverage and
the goal of addressing the alleged unfairness. As she put it, Canadians
are “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.278 She also found that although aspects
of the new scheme bore a rational connection to the goal of protecting
public health and safety, removing all coverage from persons in the
273. Canadian Doctors, supra note 17 at para 909, citing ibid at para 69.
274. Ibid at para 912.
275. Ibid at paras 913-21.
276. Ibid at paras 929-32.
277. Ibid at para 945.
278. Ibid at para 949.
400
Dhand & Diab, Canada’s Refugee Health Law and Policy
fourth tier – including coverage for conditions that pose a risk to public
health and safety – removed any rational connection to the stated goal
with respect to this aspect of the plan.279 Finally, Mactavish J refused
to recognize a rational connection between the new plan and the goal
of protecting the integrity of the immigration system by virtue of the
lack of evidence that changes to coverage remove a material incentive
to illegitimate claimants or that the changes will encourage the quicker
departure of failed claimants.280
Given her  nding that the objectives of fairness to Canadians and
protecting public health and safety were not substantial and not rationally
connected to the IFHP in at least one case, Mactavish J found that the
revised plan also failed the minimal impairment test in those respects.281
However, she also found that it failed the minimal impairment test
in seeking to advance the goals of cost containment and protecting
the integrity of the immigration system. Although she accepted the
government’s evidence that changes to the plan would result in the
“substantial” savings of $70 million in the  rst three years of the new
program and $15 million each year after that, it was not clear that “the
anticipated reduction in program spending is entirely, or even primarily,
attributable to the 2012 changes to the IFHP.”282 In light of the fact that
other recent legislation including the Balanced Refugee Reform Act, 283 the
Protecting Canada’s Immigration System Act,284 and the Faster Removal of
Foreign Criminals Act,285 have helped speed up the refugee determination
process and deterred abuse of the system, the government had failed to
prove what cost savings were due to the IFHP changes in particular. She
concluded on this point that there was “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.”286 But even if there were
279. Ibid at para 962.
280. Ibid at paras 964-70.
281. Ibid at para 994.
282. Ibid at para 999.
283. SC 2010, c 8.
284. SC 2012, c 17.
285. SC 2013, c 16.
286. Canadian Doctors, supra note 17 at para 1012.
401
(2015) 1 CJCCL
such evidence, it would be necessary to establish that those savings could
not have been obtained in a less infringing manner.287 e Applicants,
however, were able to point to at least two less infringing measures that
helped save costs in a “real and substantial manner” – the recent return
to a full complement of adjudicators at the Immigration and Refugee
Board, and carrying out speedier removals once claims are rejected, both
resulting in shorter eligibility periods under the IFHP.288 Finally, given
her  nding that the government had failed to establish that the 2012
changes had removed an incentive for persons from Designated Countries
of Origin to make illegitimate claims, and that this very assumption was
based on subjective “perceptions” and “beliefs,” Mactavish J held that the
government had not met the burden of proving that there were no less
infringing ways of protecting the integrity of the immigration system.289
Justice Mactavish then considered whether the 2012 changes to the
IFHP were proportionate in their deleterious e ects to the program’s
salutary goals, and whether attaining these goals outweighed the breach
of the rights at issue.290 She made the signi cant  ndings that the revised
IFHP was “causing signi cant su ering to an already vulnerable, poor
and disadvantaged population,” and that the changes are “causing illness,
disability, and death.291 e e ects are both serious in terms of their
quality and quantity, being felt “by a signi cant number of individuals,
given the thousands of people who come to the country each year, seeking
its protection.”292 e salutary objectives of the IFHP do not outweigh its
deleterious e ects for various reasons.293 Removing coverage from those
seeking a PRRA and who might pose a risk to public health or safety did
nothing to advance the goal of protecting public health. Given that the
earlier plan was not unfair to Canadians, the objective of being fairer to
Canadians could not be said to outweigh the deleterious e ects of the
new plan. With no clear indication of how much money the program is
287. Ibid at para 1013.
288. Ibid at paras 1014-15.
289. Ibid at paras 1018-27.
290. Ibid at para 1044.
291. Ibid at paras 1048-49.
292. Ibid at para 1050.
293. Ibid at paras 1052-74.
402
Dhand & Diab, Canada’s Refugee Health Law and Policy
saving the federal government – and the fact that there is still a “real cost
to Canadian taxpayers to providing [various] alternative forms of health
care” to which migrants are forced to turn, it is also not possible to say
that cost of bene ts outweigh the deleterious e ects.294 Finally, lacking
evidence that health coverage was a source of abuse of the system on the
part of claimants from Designated Countries of Origin, it was not clear
that the integrity objective outweighed the su ering of migrants deprived
of bene ts.  e revised IFHP had failed to be justi ed under section 1
and was therefore not a reasonable limit on sections 12 and 15 in this
case.295
F. International Humanitarian Law and Norms
e current challenge to the constitutional validity of the 2012 changes
to the IFHP also involves a consideration of Canada’s commitments
under international human rights law. As Martha Jackman has noted,
although Canada has rati ed various treaties containing health-related
protections, these have not been explicitly recognized in Canadian law
and do not o er a basis for granting remedies for rights violations.
296
Yet, as Jackman also notes, the Supreme Court has a rmed in Baker,
297
Canadian Foundation,
298 and Hape299 that international human rights
law may serve as a guide for interpreting Charter rights as well as
domestic law and policy, giving rise to a preference for applications of
the law that are consistent with the values and principles in treaties and
covenants at issue.300 e parties in this case debate the scope and proper
294. Ibid at para 1061.
295. Ibid at para 1087 (Justice Mactavish declared the 2012 IFHP orders in
council invalid pursuant to s 52 of e Constitution Act, 1982, Schedule
B to the Canada Act 1982 (UK), 1982, c 11, but since those OICs
had repealed the pre-2012 IFHP, she suspended the operation of the
declaration for 4 months.  e Attorney General has  led a Notice of
Appeal).
296. Jackman, “ e Implications of Section 7”, supra note 128 at 12.
297. Baker v Canada (Minister of Immigration), [1999] 2 SCR 817 [Baker].
298. Canadian Foundation for Children, Youth and the Law v Canada (Attorney
General), [2004] 1 SCR 76 [Canadian Foundation].
299. R v Hape, 2007 SCC 26.
300. Baker, supra note 297 at para 70; Canadian Foundation, supra note 298 at
para 31; Hape, ibid at paras 53, 56, 68.
403
(2015) 1 CJCCL
application of treaty rights to refugee health coverage in Canada, a debate
that was not resolved in Mactavish J’s treatment of international law in
Canadian Doctors.301 Justice Mactavish conceded that relevant portions
of international law cited by the Applicants have not been incorporated
into Canadian law and lacked the force of law, but she acknowledged
the role of international law as an interpretative aid to Charter rights and
drew on that law for this purpose.302 What follows is a brief overview of
provisions that Mactavish J considered and additional relevant provisions
of international law.
e Applicants highlighted two sources of con ict between the new
IFHP and the provisions of the 1951 Vienna Convention – a primary
source for international refugee law.
303 Article 3 of the Convention
requires that contracting states “apply the provisions of this Convention
to refugees without discrimination as to race, religion or country of
origin.”304 is would appear to prohibit the IFHP’s di erential coverage
of claimants from DCO countries as a form of discrimination based
on country of origin.305 Similarly, Article 7 states that “[e]xcept where
this Convention contains more favourable provisions, a Contracting
State shall accord refugees the same treatment as is accorded to aliens
generally.306 Prior to the changes in 2012, refugees received comparable
coverage to that available to other immigrants, permanent resident
holders, and temporary residents, including students or foreign workers.
e changes to the IFHP now set apart certain refugees from other
immigrants in terms of health coverage.307
e Applicants also invoked the 1990 Convention on the Rights of the
Child,308 which Canada rati ed in 1992. Article 6(2) calls upon signatory
states to “ensure to the maximum extent possible the survival and
301. Supra note 17 at paras 441-75.
302. Ibid at para 474.
303. UN General Assembly,Convention Relating to the Status of Refugees, 28
July 1951,189 UNTS 137.
304. Ibid.
305. Applicants’ Memorandum, supra note 18 at para 142.
306. Supra note 303.
307. Applicants’ Memorandum, supra note 18 at para 149.
308. 20 November 1989, 1577 UNTS 3, 28 ILM 1456, (entered into force 2
September 1990).
404
Dhand & Diab, Canada’s Refugee Health Law and Policy
development of the child.”309 Article 2(1) calls upon parties 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.”310 And  nally, Article
3(1) of the Convention states 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.”311
Justice Mactavish also noted the European Union’s Reception
Directive of 2013, which details standards in that jurisdiction for the
“reception of applicants for international protection.312 Article 19 of
the Directive requires Member States to “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.”313
Article 21, dealing with “vulnerable persons” more generally, mandates
that states must
take into account the speci c situation of vulnerable persons such as minors,
unaccompanied minors, disabled people, elderly people, pregnant women,
single parents with minor children, victims of human tra cking, persons with
serious illnesses, persons with mental disorders and persons who have been
subjected to torture, rape or other serious forms of psychological, physical or
sexual violence …314
While this latter provision contemplates a softer form of protection,
both articles set out standards that clearly prohibit the discriminatory
treatment contemplated in the 2012 IFHP regime.
Martha Jackman has highlighted two further international human
rights instruments that support a rights-based approach to improving
309. Ibid.
310. Ibid.
311. Ibid.
312. EC, 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
internal protection (recast), [2013] OJ, L180/96.
313. Ibid.
314. Ibid.
405
(2015) 1 CJCCL
healthcare access.315 Article 25(1) of the Universal Declaration of Human
Rights of 1948 states that “everyone has the right to a standard of living
adequate for the health and well-being of himself and his family, including
… medical care.”316 Rati ed by Canada in 1978, the 1966 International
health care coverage in two of its articles.317 Article 12(1) sets out “the
right of everyone to the enjoyment of the highest attainable standard of
physical and mental health.”318 Article 12(2)(d) calls upon signatories to
the Covenant to take necessary measures to “assure to all medical service
and medical attention in the event of sickness.”319
V. Conclusion
Changes in 2012 to health care coverage for refugees and other migrants
have marked a signi cant departure from earlier levels of coverage, with
profound practical consequences for migrants dealing with a wide range
of critical conditions.  e changes to coverage have also, for the most
part, set Canada apart from the approach taken in the United States,
the United Kingdom, and Australia, and raise questions in relation to
Canada’s obligations under international human rights law. In Canadian
Doctors, the Federal Court held that the revised plan violates sections
12 and 15 of the Charter and the violations cannot be justi ed under
section 1. However, the Court declined to  nd a violation of section 7
on the basis of a reluctance to recognize a positive duty on the part of the
state to provide healthcare bene ts under the Charter. An appeal of this
decision is pending, giving rise to the possibility of revisiting the issue of
a positive duty under section 7.  is article has argued that while earlier
courts have been consistently reluctant to recognize such a duty, the facts
315. Jackman, “ e Implications of Section 7”, supra note 296 at 12-13; see
also Jackman, “Constitutional Jurisdiction Over Health”, supra note 170
at 110.
316. GA Res 217 (iii), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810,
(1948) 71.
317. 16 December 1966, 993 UNTS 3, 6ILM 368 (entered into force 3
January 1976.
318. Ibid.
319. Ibid.
406
Dhand & Diab, Canada’s Refugee Health Law and Policy
in the present case o er a compelling and unique basis for doing so.
Whatever the outcome of this case, however, the current challenge to the
constitutionality of the IFHP represents a kind of limit case – combining
some of the most vulnerable claimants in some of the most desperate
situations – thus promising to lend greater clarity as to the possible scope
of the Charter as a tool for protecting fundamental socio-economic and
human rights.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT