Canadian Doctors for Refugee Care et al. v. Canada (Attorney General) et al., (2014) 458 F.T.R. 1 (FC)

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: January 30, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 458 F.T.R. 1 (FC);2014 FC 651

Cdn. Doctors for Refugee Care v. Can. (A.G.) (2014), 458 F.T.R. 1 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JL.020

Canadian Doctors for Refugee Care, The Canadian Association of Refugee Lawyers, Daniel Garcia Rodrigues, Hanif Ayubi and Justice for Children and Youth (applicants) v. Attorney General of Canada and Minister of Citizenship and Immigration (respondents)

(T-356-13; 2014 FC 651; 2014 CF 651)

Indexed As: Canadian Doctors for Refugee Care et al. v. Canada (Attorney General) et al.

Federal Court

Mactavish, J.

July 4, 2014.

Summary:

The Government of Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program (IFHP). In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals, and all but eliminated it for others pursuing risk-based claims. The applicants asserted that: (1) the OICs were ultra vires the prerogative powers of the Governor in Council; (2) that the Governor in Council breached its duty of procedural fairness by making the changes to the IFHP without advance notice or consultation; (3) the changes to the IFHP breached Canada's obligations under the Convention Relating to the Status of Refugees and the Convention on the Rights of the Child; and (4) the changes to the IFHP violated ss. 7, 12 and 15 of the Charter, in a manner that could not be saved under s. 1 of the Charter.

The Federal Court granted the application. (1) The OICs were not ultra vires the prerogative powers of the Governor in Council; (2) There had been no denial of procedural fairness; (3) The s. 7 Charter claim could not succeed. The current state of the law was that s. 7 guarantees to life, liberty and security of the person did not include a positive right to state funding for health care; (4) The changes to the IFHP violated s. 12 of the Charter. The affected individuals were being subjected to "treatment", and that treatment was "cruel and unusual", particularly as it affected children; (5) The changes to the IFHP violated s. 15 of the Charter. The 2012 IFHP provided a lesser level of health insurance coverage to refugee claimants from Designated Countries of Origin (DOC countries) in comparison to that provided to refugee claimants from non-DOC countries. That distinction was based upon national origin, and did not form part of an ameliorative program. Moreover, the distinction had an adverse differential effect on refugee claimants from DOC countries; (6) The 2012 IFHP did not violate s. 15 of the Charter based upon the immigration status of those seeking the protection of Canada. "Immigration Status" could not be considered to be an analogous ground; and (7) The respondents had not demonstrated that the 2012 changes to the IFHP were justified under s. 1 of the Charter.

The Federal Court, with respect to remedy: (1) declared that the OICs were inconsistent with ss. 12 and 15 of the Charter and were of no force or effect; (2) ordered that the effect of the declaratory order was suspended for a period of four months; and (3) ordered that commencing four months from the date of this decision, the respondents provide the applicant Ayubi with health insurance coverage that was equivalent to that to which he was entitled under the provisions of the pre-2012 IFHP.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See third Government Programs - Topic 5224 ].

Administrative Law - Topic 3205

Judicial review - General - Crown prerogative - [See second Government Programs - Topic 5224 ].

Aliens - Topic 3.2

Definitions and general principles - International Conventions and obligations (incl. incorporation of) - [See fourth Government Programs - Topic 5224 ].

Civil Rights - Topic 208

Life - Right to health care (incl. funding) - [See fifth Government Programs - Topic 5224 ].

Civil Rights - Topic 938

Discrimination - Government programs - Health and social services - [See seventh, eighth, ninth, tenth and eleventh Government Programs - Topic 5224 ].

Civil Rights - Topic 1001

Discrimination - Immigration - General - [See seventh, eighth, ninth, tenth and eleventh Government Programs - Topic 5224 ].

Civil Rights - Topic 1400

Security of the person - Health care - Denial of (incl. funding for) - [See fifth Government Programs - Topic 5224 ].

Civil Rights - Topic 3808

Cruel and unusual treatment or punishment - General - Treatment - Meaning of - [see sixth Government Programs - Topic 5224 )

Civil Rights - Topic 3823.3

Cruel and unusual punishment or punishment - What constitutes - Interim Federal Health Program - [see sixth Government Programs - Topic 5224 )

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - [See seventh, eighth, ninth, tenth and eleventh Government Programs - Topic 5224 ].

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - General - Application of - Persons protected - Aliens - [See second Government Programs - Topic 5224 ].

Civil Rights - Topic 8314

Canadian Charter of Rights and Freedoms - General - Application - Social programs - Health care and treatment - [See second Government Programs - Topic 5224 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See twelfth Government Programs - Topic 5224 ].

Civil Rights - Topic 8377

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Prerogative writs - The Governor in Council passed two Orders in Council (OICs) modifying the Interim Federal Health Program (IFHP), effective June 30, 2012 - The OICs were declared constitutionally invalid - The operation of the declaration was suspended for a period of four months - Several personal claims for relief were asserted on behalf of the individual applicants (Ayubi and Rodrigues) under s. 24(1) of the Charter in relation to their treatment under the 2012 IFHP - The applicants sought orders of mandamus directing the Minister of Citizenship and Immigration to forthwith issue health insurance coverage at the pre-2012 level to Ayubi and Rodrigues, both on a going-forward basis and retroactively to June 30, 2012 - The Federal Court declined to make a mandatory order - Rodrigues was now a permanent resident of Canada - Insofar as the claim for past benefits was concerned, no claim for damages had been asserted - Moreover, both Rodrigues and Ayubi ultimately received the health care that each required at no cost - A mandatory order that health insurance coverage be provided on a retrospective basis could only benefit non-parties - A s. 24(1) remedy was appropriate after the expiry of the four month suspension, given Ayubi's exceptional circumstances - Ayubi was to be provided health insurance coverage equivalent to that to which he was entitled under the pre-2012 IFHP "so that he may continue to receive the medical care on which his life depends." - See paragraphs 1103 to 1115.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The applicants challenged the constitutional validity, applicability and effect of the two Orders in Council (OICs) that created the 2012 Interim Federal Health Program (IFHP) - The OICs significantly reduced the level of health care coverage available to refugee claimants and others seeking the protection of Canada - The respondents did not dispute that OICs constituted "law" for the purposes of s. 52(1) of the Charter ("any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect") - The offending portions of the OICs were not severable - The Federal Court issued a declaration that the OICs were inconsistent with ss. 12 and 15 of the Charter and were of no force or effect - While the Court had no evidence with respect to the administrative and policy consequences that would flow from a general declaration of invalidity, it was inevitable that some administrative disruption would result, and that such disruption could potentially exacerbate the harm suffered by those seeking the protection of Canada - At the same time, the changes to the IFHP that were effected through the OICs were having a devastating impact on those seeking the protection of Canada - Balancing those competing considerations, the Court suspended the operation of the declaration for a period of four months - See paragraphs 1089 to 1097.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See first Government Programs - Topic 5224 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - The Federal Court reviewed the legal principles governing claims under s. 15 of the Charter - See paragraphs 706 to 727.

Civil Rights - Topic 8671

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Enumerated categories - [See tenth Government Programs - Topic 5224 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See eleventh Government Programs - Topic 5224 ].

Crown - Topic 545

Orders-in-council - Judicial review - The Federal Court considered the role of the Courts when reviewing actions taken by the executive branch of government - See paragraphs 478 to 492.

Crown - Topic 2202

Crown privilege or prerogative - General - Statutory limitations and orders-in-council - [See second Government Programs - Topic 5224 ].

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - For more than 50 years, the Government of Canada had funded comprehensive health insurance coverage for refugee claimants and others who had come to Canada seeking its protection - The applicants identified the subject of their challenge as being the decision of the Governor in Council to cancel the pre-2012 Interim Federal Health Program (IFHP) and replace it with a new IFHP that provided lesser care to most program beneficiaries, and eliminated health care insurance coverage altogether for others - Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, and Justice for Children and Youth (JFCY), a non-profit legal aid clinic with a focus on the legal rights of children, sought public interest standing to pursue the case - The respondents conceded that the case raised serious justiciable issues, but contended that JFCY had not shown that it had a genuine interest in the issues, and that none of the three organizations had demonstrated that allowing them to participate in the application would result in reasonable and effective litigation of the issues - The Federal Court, having regard to the factors articulated by the Supreme Court of Canada in Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General) (2012), granted the three organizations public interest standing - See paragraphs 303 to 353.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - In 2012, the Governor in Council passed two Orders in Council (OICs) modifying the Interim Federal Health Program (IFHP) - The OICs significantly reduced the level of health care coverage available to refugee claimants and others who had come to Canada seeking its protection - The applicants contended that the Governor in Council lacked the authority to make the modifications - The Federal Court held that the OICs were not ultra vires the prerogative powers of the Governor in Council - "The question here is whether the executive branch of the federal government has the authority to spend money providing health care to individuals seeking the protection of Canada as an exercise of the Crown prerogative, and whether any such prerogative has been extinguished by the enactment of IRPA [the Immigration and Refugee Protection Act] and the Canada Health Act." - The Court concluded that "there is federal legislation that requires the federal government to provide health care to refugees, refugee claimants, or failed refugee claimants. As a consequence, the Crown's prerogative power to spend in an area not addressed by statute remains intact, and the 2012 OICs are intra vires the executive branch of the Government of Canada. This does not, however, mean that modifications made to the IFHP resulting from the 2012 OICs are immune from judicial scrutiny. The exercise of the Crown prerogative by the Governor in Council is subject to certain limits: it must be intra vires federal jurisdiction, it must be procedurally fair (if a duty of fairness is owed) and it must conform to the Charter" - See paragraphs 354 to 402.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - The applicants challenged the 2012 modifications to the Interim Federal Health Program (IFHP) implemented by two Orders in Council (OICs) - The effect of the changes was to deny funding: for life-saving medications to impoverished refugee claimants from war-torn countries; for basic pre-natal, obstetrical and paediatric care to women and children seeking the protection of Canada from Designated Countries of Origin; and for any medical care to those only entitled to a pre-removal risk assessment - As the changes were effected through the budget process, they were subject to Cabinet confidentiality and budget secrecy - Consequently, there was no advance notice of the pending changes to the IFHP, nor was there any consultation with stakeholders prior to the enactment of the 2012 OICs - At issue was whether, either as a result of a legitimate expectation on the part of stakeholders or the nature of the rights affected by the OICs, the Governor in Council owed a duty of procedural fairness - The Federal Court found that no such duty arose - "The applicants have not adduced evidence of any clear, unambiguous and unqualified practices, conduct or representations that could reasonably have been relied upon so as to create a legitimate expectation on the part of stakeholders that they would be accorded participatory rights in this case. Moreover, ... no duty of fairness is owed by the government in the exercise of its legislative functions" - See paragraphs 403 to 440.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - The applicants challenged the decision implemented by the 2012 Orders in Council to cancel the pre-2012 Interim Federal Health Program (IFHP) and replace it with a modified IFHP - The changes included the institution of tiered coverage tied to the immigration status of the individual - The international law arguments advanced by the applicants were based primarily on the Convention on the Rights of the Child, and the Convention Relating to the Status of Refugees - The Federal Court, before considering the various Charter issues raised by the application, accepted the respondents' contention that because none of the operative portions of the two Conventions had been incorporated into Canadian law, "they do not have the force of law in Canada, nor are they the source of domestic rights or remedies. That said, the Supreme Court has been clear that the Conventions to which Canada is a signatory are relevant as interpretive guides in a Charter analysis and they will thus be taken into account for that purpose." - See paragraphs 441 to 474.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - The applicants challenged the decision of the Governor in Council implemented by the 2012 Orders in Council to change the Interim Federal Health Program (IFHP) - The changes, which included the institution of tiered coverage tied to the immigration status of the individual, limited access to health care insurance for the majority of program beneficiaries, and eliminated it altogether for certain individuals who had previously received coverage - The applicants asserted that the changes to the IFHP violated s. 7 of the Charter, effectively erecting a barrier to essential health services for refugees and asylum seekers - They noted that the executive branch had, for more than 50 years, chosen to provide health care insurance to those seeking the protection of Canada - The Federal Court dismissed the s. 7 claim - What the applicants sought was "to impose a positive obligation on the Government of Canada to fund health care for those seeking the protection of Canada. As sympathetic as the applicants' arguments may be, the law does not currently recognize a section 7 Charter right to state-funded health care." - See paragraphs 493 to 571.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - The applicants challenged the decision of the Governor in Council implemented by the 2012 Orders in Council to change the Interim Federal Health Program (IFHP) - The effect of the changes was to deny funding: for life-saving medications to impoverished refugee claimants from war-torn countries; for basic pre-natal, obstetrical and paediatric care to women and children seeking the protection of Canada from Designated Countries of Origin; and for any medical care to those only entitled to a pre-removal risk assessment - The applicants asserted that the changes constituted cruel and unusual treatment of a poor, vulnerable and disadvantaged group by the executive branch of the Canadian government, within the meaning of s. 12 of the Charter - There was limited judicial consideration of the meaning of "treatment" - The Federal Court held that the 2012 changes violated s. 12 of the Charter - The actions at issue constituted "treatment" for the purposes of s. 12 - The "intentional targeting of a vulnerable, poor and disadvantaged group distinguishes this case from the usual situation involving the assigning of priorities and the drawing of lines by government in relation to the availability of social benefit programs." - See paragraphs 572 to 591, 689 and 690 - The Court was also satisfied that the treatment was cruel and unusual, "particularly, but not exclusively, as it affects children who have been brought to this country by their parents." - See paragraphs 612 to 691.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - The applicants challenged the decision of the Governor in Council implemented by the 2012 Orders in Council (OICs) to change the Interim Federal Health Program (IFHP) - The applicants asserted that the 2012 changes violated s. 15 of the Charter by drawing a distinction between classes of refugee claimants based upon their country of origin (a lower level of health insurance coverage was provided to individuals coming from Designated Countries of Origin (DCO countries) than was provided to refugee claimants coming from non-DCO countries) - The Federal Court, in concluding that the 2012 OICs did indeed create a distinction based on national origin, addressed the respondents' submission that the concept of a DCO was created by s. 109.1(1) of the Immigration and Refugee Protection Act (IRPA) - The inclusion of s. 109.1(1) in IRPA was not at issue in this case, "but rather the decision of the Governor in Council to import the concept of 'Designated Countries of Origin' into the 2012 OICs, using it as a criterion for determining who will be eligible for health insurance coverage, and at what level. This decision is clearly reviewable under section 15 of the Charter." - See paragraphs 729 to 777.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - As a result of the changes brought about by the Governor in Council through the promulgation of two Orders in Council (OICs), the 2012 Interim Federal Health Program now drew a distinction, on its face, as to the level of health insurance coverage to refugee claimants based, in part, on the nation from which the claimant came - The applicants asserted that the changes violated s. 15 of the Charter - The Federal Court, having concluded that the 2012 OICs created a distinction based on national origin, next addressed the respondents' assertion that the IFHP was an ameliorative program and the distinction was thus saved by s. 15(2) of the Charter - The changes to the IFHP were being challenged on behalf of some of the very individuals that the program was purportedly designed to benefit, namely refugee claimants from Designated Countries of Origin (DCO countries) and failed refugee claimants - "[I]t is difficult to understand how the DCO/non-DCO distinction in the IFHP can be characterized as ameliorative when one of the stated goals of the 2012 modifications to the program was to make things harder for refugees from DCO countries in order to deter other so-called 'bogus' claimants from coming to Canada and abusing the generosity of Canadians" - There was no evidence to show a correlation between the distinction drawn in the IFHP and the disadvantage suffered by the target group (refugee claimants from DCO countries) - Thus, the respondents failed to demonstrate that the changes to the IFHP could be saved as an ameliorative program - See paragraphs 778 to 808.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - The applicants challenged the decision of the Governor in Council implemented by two 2012 Orders in Council (OICs) to change the Interim Federal Health Program (IFHP) - The changes drew a distinction as to the health insurance benefits that were available to refugee claimants from Designated Countries of Origin (DCO countries) relative to those provided to refugee claimants from non-DCO countries - The applicants asserted that the distinction violated s. 15 of the Charter - The respondents, having failed to demonstrate that the 2012 changes to the IFHP could be saved as an ameliorative program, argued that the distinction did not create a disadvantage by perpetuating prejudice or stereotyping - The Federal Court rejected that argument - "By limiting the health insurance benefits that are provided to refugee claimants from DCO countries, the executive branch of the Canadian government is perpetuating the stereotypical view that refugee claimants from these countries are undesirable, thereby reinforcing existing prejudice and disadvantage. ... [T]he fact is that some refugee claimants from DCO countries are indeed genuine refugees." - See paragraphs 810 to 848.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - The Federal Court concluded that the changes made to the Interim Federal Health Program (IFHP) through the promulgation of the two 2012 Orders in Council at issue violated s. 15(1) of the Charter, both in their purpose and in their effect, for the following reasons - (1) "The 2012 IFHP draws a distinction between refugee claimants from DCO-countries [Designated Countries of Origin] and those from non-DCO countries, providing a lesser level of health insurance coverage to refugee claimants from DCO countries based upon the national original of these claimants." - (2) "This distinction cannot be saved as an 'ameliorative program' contemplated by subsection 15(2) of the Charter." - (3) "The DCO/non-DCO distinction drawn in the IFHP has an adverse differential effect on refugee claimants from DCO countries. It puts their lives at risk and perpetuates the stereotypical view that they are cheats, that their refugee claims are 'bogus', and that they have come to Canada to abuse the generosity of Canadians. This aspect of the applicants' section 15 claim thus succeeds." - See paragraphs 849 to 851.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - Under the 2012 Interim Federal Health Program, individuals legally in Canada (such as the two individual applicants in this case) were now prevented from obtaining the same level of health benefits as other legal residents in Canada - According to the applicants, that distinction in entitlement to health benefits was based upon the analogous ground of immigration status and thus violated s. 15(1) of the Charter - The jurisprudence relating to immigration status as an analogous ground for the purpose of s. 15(1) was "mixed" - The applicants argued that the issue should be approached on a case-by-case basis, having regard to the particular immigration status at issue - The Federal Court, in rejecting that argument, stated that "If the recognition of an analogous ground stands for all situations and does not have to be re-litigated in every case, it follows that the refusal to recognize a particular ground as an analogous ground for the purpose of section 15 of the Charter should also stand for all cases and should not be judicially revisited whenever the issue arises in a different context. The Federal Court of Appeal has already held that 'immigration status' does not qualify as an analogous ground under section 15 of the Charter. That finding is binding on me, and is dispositive of the applicants' argument." - See paragraphs 852 to 870.

Government Programs - Topic 5224

Health and social services - Entitlement - Interim Federal Health Program - Aliens - The Governor in Council, in modifying the Interim Federal Health Program (IFHP) in 2012, reduced the level of health insurance coverage for some classes of individuals seeking the protection of Canada, and eliminated it altogether for orders - The applicants established that the changes, created pursuant to two 2012 Orders in Council (OICs), breached ss. 12 and 15 of the Charter - The respondents asserted that the changes were justified under s. 1 of the Charter as a reasonable limit prescribed in a free and democratic society - The Federal Court held that the respondents had not satisfied their onus of demonstrating that the rights violations were justified under s. 1 - The Court first identified the objectives of the government action - "[T]he 2012 changes to the IFHP must be viewed in context as forming part of a larger government program of reform to the immigration and refugee system. Within that broader context, the specific objectives of the 2012 OICs may be summarized as being: 1. Cost containment; 2. Fairness to Canadians; 3. The protection of public health and safety; and 4. The protection of the integrity of Canada's immigration system." - Next, the Court addressed whether those goals were "pressing and substantial" - The Court was satisfied that some, but not all of the objectives of the 2012 changes did qualify as "pressing and substantial" objectives - The analysis then moved on to the question of whether the impairment of the s. 12 and s. 15 rights at issue was proportional to the importance of the government's objectives (issues of rational connection, minimal impairment and balancing/proportionality) - In the result, the Court was satisfied that "the profoundly deleterious effects of the 2012 changes to the IFHP greatly outweigh the salutary goals of the Governor in Council in making these changes. This is especially so in light of the fact that it has not been established that the changes will in fact contribute in a material way to the realization of any of these goals" - See paragraphs 873 to 1075.

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing - [See first Government Programs - Topic 5224 ].

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See fourth Government Programs - Topic 5224 ].

Statutes - Topic 5503

Operation and effect - Delegated legislation - Orders-in-council - Authority to enact - [See second Government Programs - Topic 5224 ].

Statutes - Topic 5517

Operation and effect - Delegated legislation - Orders-in-council - Judicial review - [See second Government Programs - Topic 5224 ].

Cases Noticed:

Toussaint v. Canada (Attorney General), [2011] 4 F.C.R. 367; 372 F.T.R. 63; 2010 FC 810, affd. [2013] 1 F.C.R. 374; 420 N.R. 364; 2011 FCA 213, leave to appeal refused (2012), 435 N.R. 381 (S.C.C.), refd to. [para. 52].

Es-Sayyid v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 432 N.R. 261; 2012 FCA 59, refd to. [para. 106].

Saint Honore Cake Shop Ltd. v. Cheung's Bakery Products Ltd., [2013] F.T.R. Uned. 635; 2013 FC 935, refd to. [para. 108].

Apotex Inc. v. Pfizer Canada Inc. (2014), 461 N.R. 295; 2014 FCA 54, refd to. [para. 115].

Apotex Inc. v. Bristol-Myers Squibb Co. et al. (2011), 414 N.R. 162; 2011 FCA 34, refd to. [para. 115].

National Justice Compania Naviera S.A. v. Prudential Assurance Co., [1993] 2 Lloyd's Rep. 68, refd to. [para. 123].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 165].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 166].

Minister of National Revenue v. Tessmer (Stanley J.) Law Corp. (2013), 455 N.R. 366; 2013 FCA 290, refd to. [para. 166].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 167].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 169].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 283].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 304].

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General), [2012] 2 S.C.R. 524; 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, refd to. [para. 307].

Manitoba Metis Federation Inc. v. Canada (Attorney General) (2013), 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 307].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 309].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2014] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 325].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 325].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 348].

Ezokola v. Canada (Minister of Citizenship and Immigration) (2013), 447 N.R. 254; 2013 SCC 40, refd to. [para. 348].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 349].

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215 (C.A.), refd to. [para. 365].

Hospitality House Refugee Ministry Inc. et al. v. Canada (Attorney General) (2013), 433 F.T.R. 118; 284 C.R.R.(2d) 165; 2013 FC 543, refd to. [para. 371].

Reference as to the Effect of the Exercise of Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269; [1933] 2 D.L.R. 348, refd to. [para. 384].

Winterhaven Stables Ltd. v. Canada (Attorney General), [1989] 1 W.W.R. 193; 91 A.R. 114; 53 D.L.R.(4th) 413 (C.A.), leave to appeal refused [1989] 1 S.C.R. xvi; 101 N.R. 233; 95 A.R. 236, refd to. [para. 388].

YMHA Jewish Community Centre of Winnipeg Inc. v. Brown and Labour Board (Man.), [1989] 1 S.C.R. 1532; 97 N.R. 161; 59 Man.R.(2d) 161, refd to. [para. 388].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 388].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 388].

Reference Re Canada Assistance Plan (B.C.) - see Reference Re Constitutional Question Act (B.C.).

Pharmaceutical Manufacturers Association of Canada v. British Columbia (Attorney General) (1997), 96 B.C.A.C. 165; 155 W.A.C. 165; 149 D.L.R.(4th) 613 (C.A.), leave to appeal refused (1998), 227 N.R. 145; 108 B.C.A.C. 320; 176 W.A.C. 320 (S.C.C.), refd to. [para. 389].

R. v. Criminal Injuries Compensation Board, ex parte Lain, [1967] 2 Q.B. 864, refd to. [para. 390].

Ross River Dena Council Band et al. v. Canada et al., [2002] 2 S.C.R. 816; 289 N.R. 233; 168 B.C.A.C. 1; 275 W.A.C. 1; 2002 SCC 54, refd to. [para. 396].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 402].

R. (Bhatt Murphy) v. Independent Assessor, [2008] E.W.C.A. Civ. 755, refd to. [para. 411].

Apotex Inc. v. Canada (Attorney General) et al., [2000] 4 F.C. 264; 255 N.R. 319; 24 Admin. L.R.(3d) 279 (F.C.A.), refd to. [para. 412].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, refd to. [para. 414].

Oberlander v. Canada (Attorney General), [2005] 1 F.C.R. 1; 320 N.R. 366; 2004 FCA 213, refd to. [para. 416].

Inuit Tapirisat of Canada and National Anti- Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 416].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 422].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 423].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 425].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269; 177 D.L.R.(4th) 73, refd to. [para. 427].

Québec (Minister of Justice) v. Canada (Minister of Justice) (2003), 175 C.C.C.(3d) 321 (Que. C.A.), refd to. [para. 443].

R. v. Hape (L.R.) (2007), 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 444].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 444].

Ahani v. Canada (Attorney General) (2002), 156 O.A.C. 37; 58 O.R.(3d) 107 (C.A.), refd to. [para. 444].

Divito v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 3 S.C.R. 157; 448 N.R. 71; 2013 SCC 47, refd to. [para. 445].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 446].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 446].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 447].

Mohamed v. Canada (Minister of Citizenship and Immigration) (2012), 432 N.R. 328; 2012 FCA 112, refd to. [para. 471].

Sauvé v. Canada (Chief Electoral Officer) et al., [2002] 3 S.C.R. 519; 294 N.R. 1; 2002 SCC 68, refd to. [para. 472].

Li v. Canada (Minister of Citizenship and Immigration), [2012] 4 F.C.R. 479; 420 N.R. 30; 2011 FCA 110, refd to. [para. 482].

A.O. Farms Inc. v. Canada (Minister of Agriculture) et al., [2000] F.T.R. Uned. 510; 28 Admin. L.R.(3d) 315 (T.D.), refd to. [para. 484].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 485].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 487].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 489].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 490].

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 490].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 495].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 495].

Wynberg et al. v. Ontario (2006), 213 O.A.C. 48; 82 O.R.(3d) 561 (C.A.), refd to. [para. 514].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 516].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 518].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 520].

Inglis et al. v. British Columbia (Minister of Public Safety and Solicitor General) et al., [2013] B.C.T.C. Uned. 2309; 2013 BCSC 2309, refd to. [para. 523].

Tanudjaja et al. v. Canada (Attorney General) et al., [2013] O.T.C. Uned. 5410; 2013 ONSC 5410, refd to. [para. 524].

Grant v. Canada (Attorney General), [2005] O.T.C. 771; 77 O.R.(3d) 481 (Sup. Ct.), refd to. [para. 530].

Lacey v. British Columbia, [1999] B.C.T.C. 38 (S.C.), refd to. [para. 530].

Flora v. Ontario Health Insurance Plan (2008), 238 O.A.C. 319; 91 O.R.(3d) 412; 2008 ONCA 538, refd to. [para. 539].

C.C.-W. v. Ontario Health Insurance Plan (2009), 246 O.A.C. 115; 95 O.R.(3d) 48 (Div. Ct.), refd to. [para. 539].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385, refd to. [para. 544].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 544].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 549].

Covarrubias et al. v. Canada (Minister of Citizenship and Immigration) et al. (2006), 354 N.R. 367; 2006 FCA 365, refd to. [para. 550].

Ferrell et al. v. Ontario (Attorney General) (1998), 116 O.A.C. 176; 42 O.R.(3d) 97 (C.A.), refd to. [para. 558].

Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (2001), 153 O.A.C. 1; 56 O.R.(3d) 505 (C.A.), refd to. [para. 560].

Masse v. Ontario (Minister of Community and Social Services) (1996), 89 O.A.C. 81; 134 D.L.R.(4th) 20 (Div. Ct.), refd to. [para. 561].

Sagharian et al. v. Ontario (Minister of Education), [2008] O.A.C. Uned. 726; 2008 ONCA 411, refd to. [para. 566].

British Columbia (Minister of Education) v. Moore et al. (2012), 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 566, footnote 7].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 207 D.L.R.(4th) 193; 2001 SCC 94, refd to. [para. 568].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 575].

McNeill v. Ontario (Solicitor General) et al. (1998), 66 O.T.C. 270; 126 C.C.C.(3d) 466 (Gen. Div.), refd to. [para. 575].

Alvero-Rautert v. Minister of Employment and Immigration, [1988] 3 F.C. 163; 18 F.T.R. 50 (T.D.), refd to. [para. 578].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161; 2 Admin. L.R.(2d) 125, refd to. [para. 580].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Adam, [2005] N.R. Uned. 169; 1 A.C. 396; [2005] UKHL 66, refd to. [para. 591].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 594].

Trop v. Dulles (1958), 356 U.S. 86; 78 S. Ct. 590, refd to. [para. 612].

R. v. Wiles (P.N.), [2005] 3 S.C.R. 895; 343 N.R. 201; 240 N.S.R.(2d) 1; 763 A.P.R. 1; 2005 SCC 84, refd to. [para. 641].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 641].

Toledo v. Canada (Minister of Citizenship and Immigration) et al. (2013), 454 N.R. 139; 2013 FCA 226, refd to. [para. 657].

Plyler v. Doe (1982), 102 S. Ct. 2382; 457 U.S. 202; refd to. [para. 665].

Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, refd to. [para. 668].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 706].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 707].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 714].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 719].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 720].

A. v. B., [2013] 1 S.C.R. 61; 439 N.R. 1; 2013 SCC 5, refd to. [para. 721].

Quebec (Attorney General) v. A. - see A. v. B.

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 743].

Pawar v. Canada, [1999] 1 F.C. 158; 154 F.T.R. 271 (T.D.), affd. (1999), 247 N.R. 271 (F.C.A.), dist. [para. 753].

Tabingo v. Canada (Minister of Citizenship and Immigration) (2013), 431 F.T.R. 118; 2013 FC 377, dist. [para. 756].

Nova Scotia Confederation of University Faculty Associations v. Human Rights Commission (N.S.) et al. (1995), 143 N.S.R.(2d) 86; 411 A.P.R. 86 (S.C.), refd to. [para. 760].

Simon Fraser University International Students v. Simon Fraser University, [1996] B.C.C.H.R.D. No. 13, refd to. [para. 760].

Lavoie et al. v. Canada et al., [2002] 1 S.C.R. 769; 284 N.R. 1; 2002 SCC 23, refd to. [para. 771].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 773].

Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 781].

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham - see Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Perry et al. v. Ontario (1997), 100 O.A.C. 370; 33 O.R.(3d) 735 (C.A.), affd. [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 790].

Lovelace v. Ontario - see Perry et al. v. Ontario.

Jaballah, Re (2006), 278 F.T.R. 60; 2006 FC 115, refd to. [para. 857].

Forrest v. Canada (Attorney General) (2006), 357 N.R. 168; 2006 FCA 400, refd to. [para. 861].

Irshad et al. v. Ontario (Minister of Health) et al. (2001), 141 O.A.C. 239; 55 O.R.(3d) 43 (C.A.), refd to. [para. 864].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, appld. [para. 880].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 881].

R. v. Edwards Books & Art Ltd. - see R. v. Videoflicks Ltd. et al.

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 884].

R. v. Bryan (P.C.) et al., [2007] 1 S.C.R. 527; 359 N.R. 1; 237 B.C.A.C. 33; 392 WA.C. 33; 2007 SCC 12, refd to. [para. 885].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 847; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 239 D.L.R.(4th) 193; 2004 SCC 33, refd to. [para, 885].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 904].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, [2004] 3 S.C.R. 381; 326 N.R. 25; 242 Nfld. & P.E.I.R. 113; 719 A.P.R. 113; 2004 SCC 66, refd to. [para. 905].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 941].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 942].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [para. 971].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 121 Man.R.(2d) 1; 156 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 997].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 1088].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 1102].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 1109].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 1111].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 873]; sect. 7 [para. 493]; sect. 12 [para. 572]; sect. 15(1) [para. 692]; sect. 15(2) [para. 693].

European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (November 4, 1950), E.T.S. 5, 213 U.N.T.S. 222, art. 3 [para. 592].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 109.1(1) [para. 775].

International Convention Relating to the Status of Refugees (June 4, 1969), 189 U.N.T.S. 150; Can. T.S. 1969, No. 6, art. 3, art. 7 [para. 441].

International Convention on the Rights of the Child (November 20, 1989), 3 U.N.T.S. 1577; Can. T.S. 1992/3, No. 3, generally [para. 441]; art. 2(1) [para. 460]; art. 3(1) [para. 461]; art. 6(2) [para. 459].

Authors and Works Noticed:

Black, William and Smith, Lynn, The Equality Rights, in Beaudoin, Gérald and Mendes, Errol, Canadian Charter of Rights and Freedoms (4th Ed. 2005), p. 969 [para. 713].

Beaudoin, Gérald and Mendes, Errol, Canadian Charter of Rights and Freedoms (4th Ed. 2005), p. 969 [para. 713].

Cameron, Jamie, Positive Obligations under Sections 15 and 7 of the Charter: A Comment on Gosselin v. Québec (2003), 20 S.C.L.R.(2d) 65, generally [para. 512, footnote 5]; pp. 70 [para. 520]; 71 [paras. 519, 520].

Citizenship and Immigration Canada, Interim Federal Health Program Reform: Examples of Coverage for Selected Conditions, pp. 5 [para. 670]; 6 [para. 671].

Cousins, Mel, Health Care and Human Rights after Auton and Chaoulli (2009), 54 McGill L. J. 717, generally [para. 512, footnote 5]; p. 725 [para. 519].

Davidov, Guy, Separating Minimal Impairment from Balancing: A Comment on R. v. Sharpe (B.C.C.A.) (2000), 5 Rev. Const. Stud. 195, generally [para. 935].

Dicey, Albert V., Introduction to the Study of the Law of the Constitution (8th Ed. 1915), p. 420 [para. 384].

Flood, Colleen and Chen, Brandon, Charter Rights and Health Care Funding: A Typology of Canadian Health Rights Litigation (2010), 19 Annals Health L. 479, generally [para. 512, footnote 5].

Hathaway, James , The Rights of Refugees under International Law (2005), pp. 238 [para. 448]; 278, 279 [para. 450].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.), p. 1-19 [para. 392].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2008 Update, Release 1), pp. 1 to 17 [para. 385].

Hogg, Peter W., Monahan, Patrick J., and Wright, Wade K., Liability of the Crown (4th Ed. 2011), c. 1.5(b), pp. 23, 24 [para. 369].

Jackman, Martha, Charter Review as a Health Care Accountability Mechanism in Canada (2010), 18 Health L.J. 1, p. 29 [para. 512, footnote 5].

Kelly James B. and Manfredi, Christopher P., Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (2009) 129, p. 137 [para. 491, footnote 3].

Manfredi, Christopher P., and Maioni, Antonia, Judicializing Health Policy: Unexpected Lessons and an Inconvenient Truth, in Kelly, James B. and Manfredi, Christopher P., Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (2009) 129, p. 137 [para. 491, footnote 3].

Roach, Kent W., Constitutional Remedies in Canada (Looseleaf), para. 5.120 [para. 318].

United Nations Committee on the Rights of the Child, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (May 29, 2013), paras. 14, 16, 32 [para. 463]; 77 [para. 462].

United Nations High Commissioner for Human Rights and World Health Organization, Fact Sheet No. 31: The Right to Health (June 2008), p. 19 [para. 468].

United Nations High Commission for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (1992), para. 28 [para. 450].

Voell, Matthew Rottier, PHS Community Services Society v. Canada (Attorney General): Positive Health Rights, Health Care Policy, and Section 7 of the Charter (January 2012), 31 W.R.L.S.I. 41, generally [para. 512, footnote 5]; pp. 12 [para. 537]; 16 [para. 491, footnote 3].

Wilkie, Cara and Gary, Meryl Zisman, Positive and Negative Rights under the Charter: Closing the Divide to Advance Equality (2011), 30 W.R.L.S.I. 37, generally [para. 512, footnote 5]; p. 38 [para. 519].

Counsel:

Lorne Waldman and Adrienne Smith, for the applicants, Canadian Doctors for Refugee Care, Daniel Garcia Rodrigues and Hanif Ayubi;

Pia Zambelli and Jaqueline Swaisland, for the applicant,  The Canadian Association of Refugee Lawyers;

Mary Birdsell and Emily Chan, for the applicant, Justice for Children and Youth;

Marie-Louise Wcislo, Neeta Logsetty and Hillary Adams, for the respondents.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicants, Canadian Doctors for Refugee Care, Daniel Garcia Rodrigues and Hanif Ayubi;

Waldman & Associates, Toronto, Ontario, for the applicant, The Canadian Association of Refugee Lawyers;

Justice for Children and Youth, Toronto, Ontario, for the applicant, Justice for Children and Youth;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondents.

This application was heard at Toronto, Ontario, on December 17-18, 2013, and January 30, 2014, before Mactavish, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated July 4, 2014.