Discriminatory, cruel and unusual treatment of refugees for provision of healthcare in Canada
The Federal Court reviewed the effects of changes to the Interim Federal Health Program (IFHP) in relation to sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms, pertaining to the right to life, liberty and the security of the person, the prohibition of cruel and unusual punishment and equal of treatment before and under law, equal protection and benefit of law respectively. Allegations brought by two individuals, as well as the Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers and Justice for Children and Youth, concerned the creation of a tiered refugee health care program in comparison to a previously more inclusive system. In 2012, financial coverage from the Federal Government for health care was significantly reduced, and in some cases eliminated, for those whose refugee claims were denied but had not yet left the country, or those coming from countries considered by the government to be safe, such as Mexico and Hungary, yet pursuing refugee claims based on personal risk.
In addition to assertions that the changes were beyond the legal prerogative of the government, and represented a breach of procedural fairness due to the dismissal of widespread criticisms (both dismissed by the Court), the applications also alleged that the policy changes were a breach of Canada’s obligations according to the 1951 Convention Relating to the Status of Refugees and the Convention on the Rights of the Child. Section 7 of the Charter of Rights and Freedoms was not examined by the court, which considered that a positive right to funding for health care is not established by the guarantees to life, liberty and security found therein. It was also determined that immigration status did not constitute prohibited grounds for discrimination, the differentiation of treatment for those with similar status according to their country of origin was however, found to be in violation of the legal guarantees to equality. A violation of the guaranteed rights in section 12 was also found with regards to the denial of basic and life-saving health care, with the Court emphasizing the impact on children and otherwise vulnerable individuals.
While the decision of the court recognized the capacity of the government to make decisions concerning social policies, such as health care, it expressed legal and human rights parameters that must be respected. It was determined that the treatment associated with the reduction and denial of a health services impacting both the dignity and life in this case “shocks the conscience and outrages our standards of decency“ to such an extent as to merit reprimand and revision (paras. 11 and 1080). The ruling also reiterated the importance of non-discrimination, particularly with regards to the “poor, vulnerable and disadvantaged.” (para. 9)
Case Title: Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, Daniel Garcia Rodriques, Hanif Ayubi and Justice for Children and Youth vs. Attorney General of Canada and Minister of Citizenship and Immigration
Date of the Judgement: 04 July 2014, [Link to official record]