Refugee healthcare in Canada: responses to the ...

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federal health policy' presented at Refugee Settlement/Resettlement Meeting ... Canada's first Immigration Act was passed in 1869, two years after ... unusual treatment or punishment and guarantees of equal protection and benefit under the.
Int. J. Migration and Border Studies, Vol. X, No. Y, xxxx

Refugee healthcare in Canada: responses to the 2012 changes to the interim federal health program Richard Enns* Faculty of Social Work, University of Calgary, Edmonton, Alberta, Canada Email: [email protected] *Corresponding author

Philomina Okeke-Ihejirika Faculty of Arts, Department of Women’s and Gender Studies, University of Alberta, Edmonton, Alberta, Canada Email: [email protected]

Anna Kirova Faculty of Education, Department of Elementary Education, University of Alberta, Edmonton, Alberta, Canada Email: [email protected]

Claire McMenemy Faculty of Social Work, University of Calgary, Edmonton, Alberta, Canada Email: [email protected] Abstract: From its inception in 1957, Canada’s Interim Federal Health Program (IFHP) offered comprehensive healthcare coverage to refugees regardless of their status. In 2012, Canada’s federal government introduced changes to the IFHP that differentiated between basic and expanded or supplemental levels of care, and coverage depending upon status. These changes were broadly opposed by many Canadians who feared that Canada was no longer meeting its healthcare obligations for refugees, and through a successful legal challenge in the Federal Court of Canada. The analysis presented here interrogates these changes against the international obligations assumed by the Government of Canada through ratification of international instruments since 1948 and national commitments contained in the 1982 Canadian Charter of Rights and Freedoms.

Copyright © 20XX Inderscience Enterprises Ltd.

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R. Enns et al. Keywords: Canada; refugees; healthcare; interim federal health program; Canadian Charter of Rights and Freedoms. Reference to this paper should be made as follows: Enns, R., Okeke-Ihejirika, P., Kirova, A. and McMenemy, C. (xxxx) ‘Refugee healthcare in Canada: responses to the 2012 changes to the interim federal health program’, Int. J. Migration and Border Studies, Vol. X, No. Y, pp.000–000. Biographical notes: Richard Enns is an Associate Professor and Associate Dean in the Faculty of Social Work, University of Calgary, and is located in Edmonton, Alberta. He served as the Domain Leader for the Housing Domain of the Prairie Metropolis Centre and examined the housing circumstances of refugees in major centres across western Canada. He has also researched concepts and indicators of integration across immigrant and non-immigrant populations and is active in the local resettlement sector. This current research extends his examination of policies and practices that promote or discourage inclusion and full civic participation. Philomina Okeke-Ihejirika is a Professor and Acting Chair for the Department of Women’s and Gender Studies, University of Alberta. She is an Economist and Gender Analyst with expertise on gender, development and migrant experiences. She works with several Canadian immigrant and public agencies, including Women’s Advocacy Voice of Edmonton (WAVE), a 15-member advisory committee to Edmonton’s City Hall. Her publications include Negotiating Power and Privilege: Igbo Career Women in Contemporary Nigeria (Ohio University Press, 2004) and Gendering Transformations: Gender, Culture, Race, and Identity co-edited with C. Korieh (Routledge 2009). Anna Kirova is a Professor in the Faculty of Education, University of Alberta. She has served as the Education Domain Leader and Children, Family and Youth Research Domain Leader with the Prairie Metropolis Centre of Excellence in Research on Immigration, Integration, and Diversity, and on the Board of Governors of Immigration Research West (IRW). Her research focuses on the need for understanding culturally and linguistically diverse families with young children’s experiences in school, and the possibility such an understanding offers for culturally responsive pedagogy. Her international work in this area has resulted in the book, global migration and education: schools, children and families. Claire McMenemy is a member of the Law Societies of Upper Canada and Alberta. She is a former Lawyer with the Department of Foreign Affairs, and Crown Attorney, and is currently located in Edmonton where she is a graduate student in the Faculty of Social Work, University of Calgary. This paper is a revised and expanded version of a paper entitled ‘Canada’s compliance to conventions relating to the status of refugees: an examination of federal health policy’ presented at Refugee Settlement/Resettlement Meeting 2013, Auckland, NZ, 14 December 2013.

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Introduction

Canada’s first Immigration Act was passed in 1869, two years after Confederation, and immigration figured prominently in early efforts to promote European settlement and to build and manage the economy and workforce. However, formal mechanisms to evaluate refugee claims and to manage the entry of refugees into the country only emerged in 1969, after Canada acceded to the 1951 United Nations Convention Relating to the Status of Refugees (UNCRSR) and the 1967 Protocol Relating to the Status of Refugees (PRSR), having adopted the Universal Declaration of Human Rights (UDHR) in 1948. In addition, Canada signalled its commitment to the rights of all children in 1991 when it ratified the 1989 Convention on the Rights of the Child (CRC). The 1982 Canadian Charter of Rights and Freedoms (Charter) echoed obligations already assumed by Canada’s ratification of international instruments through its affirmation of fundamental freedoms and the right to life, liberty and the security of the person, along with prohibitions against cruel and unusual treatment or punishment and guarantees of equal protection and benefit under the law; its application to refugees was established in Singh v Canada (1985) within three years of coming into force (Dauvergne, 2013). Canada’s commitment to the resettlement of refugees since the end of the Second World War has been both lauded and criticised. Previous efforts to resettle refugees from Hungary, Vietnam and Kosovo, have been cited as examples of Canada’s humanitarian impulse on the international stage (Jones and Baglay, 2007) while, more recently, critics have pointed to a reduction in the number of refugees admitted to Canada, coincident with an increase in economic class immigrants and temporary transnational workers (Arat-Koc, 1999; Bragg and Wong, 2015). Recent changes to the Interim Federal Health Program (IFHP), initially designed to provide comprehensive healthcare and other medical and diagnostic services to refugees and refugee claimants, have also been cited as evidence of dwindling support for refugee resettlement, and of Canada’s failure to meet the international obligations it has assumed through the United Nations and its own Charter commitments. Geddes (2003) highlighted the role of civil society in supporting or challenging exclusionary immigration policies and Ambrosini and Van Der Leun (2015) and Ambrosini (2015) recently affirmed the value of case studies for examining the response of civil society to immigration policies deemed to be exclusionary, including efforts to overturn what some in civil society consider to be objectionable legislation. This paper will utilise a case study approach to examine civil opposition to recent changes to the IFHP. The first section will consider the history of the IFHP and changes that were introduced through orders-in-council in 2012. The second section will consider civil opposition to the new IFHP, as established through the 2012 orders-in-council, and a recent Federal Court (hereafter referred to as the Court) challenge.

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Although responsibility for immigration is divided between the provinces and the federal government under the terms of the British North America Act (Constitution Act) of 1867, provincial legislation cannot be “repugnant to any Act of the Parliament of Canada” (Sec. 95; Constitution Act, 1867) and refugee policy has largely remained the exclusive domain of the federal government.1 Moreover, while healthcare is primarily a provincial

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responsibility in Canada, the federal government retains constitutional responsibility for the provision of healthcare to First Nations and Inuit peoples and has also assumed responsibility for providing healthcare to military personnel and federal penitentiary inmates and, as demonstrated through the creation of the IFHP, Convention refugees and refugee claimants upon arrival. Table 1

Healthcare coverage by refugee type effective June 30, 2012 Basic healthcare coverage: hospital services; access to licensed healthcare professionals; laboratory, diagnostic and ambulance services

• Government-assisted refugees • Joint assistance refugees • Visa office referrals

Expanded (supplemental) healthcare coverage: prescribed medications; dental and vision care; prosthetics and mobility devices; home care and long-term care; post-arrival health assessment

Yes, until person qualifies for provincial or territorial support

Yes, while person receives income support through government or other sponsor

Yes, but only if considered ‘urgent or essential’

No, but medications and vaccines available if there is a ‘risk to public health’ or a ‘public safety concern’

• Victims of human trafficking • Other privately-sponsored refugees • Successful refugee claimants • Failed claimants with positive pre-removal risk assessment • Pending refugee claimants not from DCOb • Pending refugee claimants from DCO • Failed refugee claimants • Refugee claimants in detention, including irregular arrivals

Yes, but only if there is a ‘risk to public health’ or a ‘public safety concern’ Same services as provided to others in detention

Same services as provided to others in detention

Notes: aRefers to designated country of origin. DCOs include countries that, according to the government of Canada, do not ‘normally’ produce refugees and are judged to protect human rights and offer state protection. See, for example, http://www.cic.gc.ca/english/refugees/reform-safe.asp. Source: Adapted from Alboim and Cohl (2012)

What came to be known as the IFHP was established by the Canadian government in 19572 and administered through Health Canada until 1995 when Citizenship and Immigration Canada (CIC) assumed responsibility for the program. The IFHP provided emergency and essential healthcare, including medical, dental, vision and prescription costs; services by doctors and other healthcare providers; and laboratory, diagnostic and ambulance services. From its inception in 1957, the beneficiaries were primarily refugees and refugee claimants at various stages of the appeals process who were typically not eligible for provincial coverage while their claim was being considered and, more recently, privately-sponsored refugees who arrived as permanent residents but were unable to access prescription medications and dental work through provincial programs for low income citizens within the first year of their arrival (CIC, 2004; CCR, 2013).

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Failed refugee claimants awaiting removal were also covered prior to the changes that were introduced in 2012. In 2010, the federal government, led by Conservative Prime Minister Stephen Harper, began to consider changes to the IFHP and in April 2012 the 1957 order-in-council establishing the Interim Federal Health Program was repealed in favour of the Order Respecting the Interim Federal Health Program authorising the Minister of Citizenship and Immigration to administer the IFHP in accordance with the new Order.3 These changes were followed by the Order Amending the Order Respecting the Interim Federal Health Program, 2012 and took effect on June 30, 2012.4 The new legislation established two levels of healthcare coverage – basic and expanded or supplemental coverage – and, in order to determine eligibility for coverage, distinguishes between government-assisted refugees, victims of human trafficking, and privately-sponsored refugees entering Canada through the Joint Assistance Sponsorship Program (JASP)5 or as visa office referrals on the one hand, and all other privately-sponsored refugees and successful or failed refugee claimants, whether from designated safe countries of origin or not, on the other [Alboim and Cohl, (2012), p.39]. Various reasons were given for these changes including, cost containment, the need to deter apparent abuses of the system and ‘bogus’ refugee claimants6 and to “streamline’ the benefits system, and a stated commitment to ensure that the benefits extended to refugees did not exceed those offered to Canadian citizens, even though a 2004 audit of the controls for the program had concluded that “the program parameters appear comparable with the coverage granted to Canadian residents through provincial and municipal health and social assistance programs” (CIC, 2004). Although there has been some measure of support for these changes there has also been much criticism. Critics claim that serious gaps in healthcare have arisen as a result of these changes and the delivery of healthcare has been confounded by confusion regarding who is eligible to receive what, and complicated procedures that provide a disincentive to providing services or recovering costs for services that are provided (CCR, 2013). Political, popular and some professional criticism has evaluated the changes against past practices and a presumed sense of Canadian fairness while a notable and recent legal challenge referenced the Canadian Charter of Rights and Freedoms and various international instruments to argue that Canada is now failing to meet national and international obligations relating to the care of refugees. The following section examines popular and political opposition to the new IFHP and more formal legal actions undertaken by Canadian Doctors for Refugee Care (CDRC) and others in CDRC v. Canada (2013). These examples of opposition are offered as empirical evidence of a broadly-held concern across many sectors of Canadian society that, as a result of changes to the IFHP, Canada is no longer meeting its domestic and international obligations relating to the healthcare of some refugees and all refugee claimants or, at the very least, has begun to abandon past and more humane programs.

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Opposition to the new IFHP

The general public, academic and professional organisations, immigrant-serving agencies, advocacy groups and provincial governments expressed opposition to many of the changes that were introduced in 2012. Informal efforts to oppose changes to the IFHP through persuasion and public pressure – often in response to or framed around specific

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cases or circumstances – and formal efforts at redress through the Federal Court are presented here as empirical evidence that Canada is no longer meeting obligations to refugees that it had assumed and met for over 50 years.

3.1 “We are extremely concerned”: seeking remedies through moral suasion7 Non-governmental and professional organisations played an important role in identifying and publicising the consequences of the recent changes to the IFHP, often citing specific cases of hardship to highlight the personal and tragic impact of the changes. As an example, the Canadian Council for Refugees (CCR)8 presented the case of a 6-year-old boy who was deemed ineligible for corrective surgery to repair a cleft palate, and refugee claimants denied chemotherapy and prosthetics.9 In addition, the Council noted “support services are no longer available for [certain] refugees who are survivors of torture, rape, or other organized violence” and described widespread confusion regarding who is covered for what and who pays. Notably, the Council argued that, according to the federal government’s own data, per-capita annual healthcare costs for refugee claimants are significantly below the annual costs for Canadian citizens, and the federal government has merely shifted expenses from one level of government to another as provinces are choosing to step in and provide many of the services that are no longer covered. The Wellesley Institute10 referred to administrative complexities and noted that physicians have identified ethical issues surrounding the provision of treatment caused, in part, by these complexities; one physician described the changed IFHP as a “painful bureaucratic maze” [Marwah, (2014), p.6]. Pregnant women were deemed to be particularly at risk since some were being denied care, regardless of immigration status, as a result of the complexities involved in determining their coverage, and because their immigration status might change over the course of their pregnancy. In a report commissioned by the Maytree Foundation11 Alboim and Cohl noted that the changes significantly affected private sponsors, and privately-sponsored refugees entering outside of the JASP, and speculated that this might deter private sponsors, and would likely discourage sponsorship of refugees with complex health needs [Alboim and Cohl, (2012), p.40]. Professional associations also objected in unison. An open letter signed on behalf of eight professional associations to Jason Kenney, then Minister of CIC in 2012, about six weeks before the changes came into effect, reported that the groups were “extremely concerned over the health impacts that this decision will have on the most vulnerable members of our society, many of whom will eventually become Canadian citizens”. The associations noted that the proposed changes would not save money because costs, through actual and in-kind contributions, would be downloaded to the provinces, community-based health programs, the charitable sector and “other public programs that provide the uninsured with health benefits” and future costs would climb if preventive care was not provided or if public health was endangered. They ended the letter by noting that a “wholesale cancellation of supplemental benefits” was counterproductive and certainly not in keeping with “Canadian principles of compassion and inclusiveness”.12 In a letter dated December 5, 2012, the same associations noted that the federal government had acted, through the order-in-council dated June 28, 2012, to extend supplemental benefits to government-assisted refugees and privately-sponsored refugees entering through the JAS Program but they insisted that the program changes continued to

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“compromise access to healthcare for a vulnerable population” and once again argued that these changes were not cost effective. In a separate submission in November 2012, the Canadian Healthcare Association called for policy decisions to be made on the basis of available evidence and suggested that the evidence did not support the notion that refugees had been receiving an unfair advantage on the basis of healthcare they had been receiving, when compared to other Canadian citizens, and that many refugees were particularly vulnerable in the early days of resettlement, adding that the changes implemented just months before would “almost certainly reduce access to primary and preventive care” for this group.13 Finally, the Ontario Psychiatric Association added its voice in a letter to then Minister Kenney in July 2012 when it declared as inhumane any policy that deprived any refugees of the basic healthcare available to all other Canadians and as unethical any policy that withheld any service in the face of clinically determined need. The Association listed the psychological needs of refugees who had experienced trauma as among those that should not be left unaddressed.14 A number of provinces also stepped forward to provide the care that was withdrawn by the federal government. In 2012, in a very public break between otherwise like-minded politicians, Premier Brad Wall of Saskatchewan denounced the changes introduced by the federal government and announced that the province would cover the costs of chemotherapy for a refugee claimant who was denied coverage by the federal government shortly after the changes to the IFHP. Echoing what he considered to be the sentiment of many others in the province, Wall effused “this is the kind of country we are. You cover it”.15 In January 2014, the province of Ontario launched the Ontario Temporary Health Program for refugee claimants in order to “address gaps in health care coverage for refugee claimants and rejected refugee claimants created by the downscaling of the Interim Federal Health Program”.16 The province, home to the largest number of refugee claimants in the country,17 joined the provinces of Alberta, Saskatchewan, Manitoba, Nova Scotia and Québec in responding to federal cuts with expanded programs or expanded funding. The responses offered by non-governmental and professional organisations, and at the political level, are instructive on at least two counts. First, respondents consistently referred to the inevitably of federal cuts being assumed, through cash and in-kind contributions, by the provinces, non-governmental and not-for-profit providers, and the charitable sector; and they challenged federal claims that the country lacked the resources to provide longstanding services, or that monies saved would be redirected to other areas of urgent need. Second, respondents consistently indicated that federal actions challenged the sensibilities of the Canadian population and frequently referred to their ethical struggles with denying care when past practices and a widely-held ethic of compassion compelled them to respond to refugees described as amongst the most vulnerable of the population.18 Popular opposition to the changes introduced by the federal government in 2012 was bolstered by a legal challenge citing the Canadian Charter of Rights and Freedoms and international instruments and obligations in its effort to find the Canadian government in violation of its domestic and international obligations regarding the provision of healthcare to refugees. This legal challenge reflected the concerns that many in civil society had been raising and provided a foothold for the broadly-based opposition that, until that point, had been unable to effectively challenge the government’s legislative and policy decisions. This court challenge is examined below.

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3.2 “ … in breach of Canada’s international obligations”: seeking remedy through Canada’s Federal Court19 In CDRC v. Canada (2013) CDRC, a national group of doctors who provide medical services to refugees, joined with the Canadian Association for Refugee Lawyers (CARL), a national association of lawyers, academics and students that conducts research about, and provides services to, refugees, and Justice for Children and Youth (JCY), a Toronto-based non-profit clinic offering legal advice and representation on child and youth rights, in a legal challenge against the new IFHP in the Federal Court of Canada. Two individual plaintiffs who had both been denied medical coverage under the restricted health benefits of the new IFHP were named in the action. Daniel Garcia Rodrigues was a refused claimant from Colombia sponsored by his wife, whose refugee claim had been granted. Rodrigues had been refused eye surgery for a retinal detachment under the new IFHP. The second plaintiff, Hanif Ayubi, was a refused claimant who remained in Canada due to a moratorium on removals to Afghanistan in effect at the time. Mr. Ayubi was a type 1 diabetic and, under the changed program, was no longer eligible to receive the insulin or other necessary medications that he had been receiving. All benefits were withdrawn on July 1, 2012. In their final factum CDRC and the CARL joined to claim that the federal government had, “without advance notice or consultation” and “without any evidence” that the IFHP was problematic, repealed the 1957 order-in-council establishing the program with orders-in-council dated April 5 and June 28, 2012.20 The applicants submitted that the reduction or elimination of insured coverage had had the “predicted effect of depriving some refugees and asylum seekers, who are both vulnerable and indigent, of access to basic, primary, essential, life-sustaining medical care” and submitted that federal actions were “ultra vires, unfair, contrary to the Charter [of Rights and Freedoms], and in breach of Canada’s international obligations under the 1951 Convention.21 With reference to the Charter, the plaintiffs asked whether the changes to the IFHP were a violation of sections 7, 12 and 15 and, if so, whether Section 1 of the Charter provided cause for any violation. Section 7 of the Charter states that “everyone has 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”; Section 12 affirms the right “not to be subjected to any cruel and unusual punishment or treatment”; and Section 15 declares that “every individual is equal before and under the law and has the right to equal protection and equal benefit of the law, and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical ability”. Notably, Section 15 does not obviate programs or activities designed to ameliorate disadvantage that has occurred on the basis of race or other factors cited in the section. Section 1 of the Charter guarantees the rights and freedoms set out “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.22 According to the submission prepared by CDRC and the CARL Sections 7, 12 and 15 establish the basis for benefits previously offered under the IFHP and these rights can not be limited through reference to Section 1. In their factum JCY focused on the threat the changes to the IFHP pose for children, arguing that health services were now being offered or withheld on the basis of “putative merit” determined by refugee status, and the changes were contrary to the Charter and the United Nation’s Convention [on the Rights of the Child]. The JCY relied on the submissions of CDRC and the CARL to argue that the changes violated Sections 7, 12

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and 15 of the Charter but added that the particular vulnerabilities of children and the obligation of the state to act in parens patriae placed a special obligation upon the government in this instance. With reference to international obligations, the JCY argued that the changes to the IFHP violated Article 3 of the Convention, which obligates “public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” to consider the best interests of the child as primary in all matters involving children and Article 24 which recognises “the right of the child to the enjoyment of the highest attainable standard of health”. Article 24 further compels signatories to ensure that “health and other relevant services are available and accessible to all children with special attention to under-served areas and populations”. Given this presumed breach of responsibilities and the apparent failure of strategies of engagement and offers of consultation, a legal remedy was considered to be a necessary course.

3.2.1 Toussaint v. Attorney General (Canada) 2011 Two previous cases helped to clarify the legal landscape for CDRC v. Canada. In Toussaint v. Attorney General (Canada) 201123 the plaintiff asked the Federal Court of Appeal to reverse a 2009 decision denying her benefits under the old IFHP. The plaintiff had entered Canada under a visitor’s visa in 1999 and remained after her visa expired. The Court accepted that Section 7 interests were engaged but concluded that any deprivation of the plaintiff’s security of the person was caused by her decision to remain in Canada illegally after her 1999 visa expired. The Court further ruled that no violation of Section 15 had occurred and the government had a real, valid and justifiable interest in expecting those present in Canada to have a legal right to be in the country. The Court’s decision signalled a recognition that different health entitlements may exist on the basis of immigration status – even when the individual is in need – and it showed sympathy for the federal government’s concern, presented at trial, over the spectre of possible immigration abuse.

3.2.2 Hospitality House Refugee Ministry Inc. v. Canada (Attorney General) 2013 Hospitality House Refugee Ministry Inc. v. Canada (Attorney General) 201324 challenged the new IFHP on four counts. Hospitality House was a volunteer-run refugee sponsorship organisation reporting to the Anglican diocese and had sponsored 1,940 refugees in the year prior to launching its suit against Canada, with 6,000 awaiting sponsorship, all of whom would be limited to reduced benefits following the changes to the IFHP. Hospitality House argued that the government had breached its agreement with sponsors and the obligation to take into account the “best interests of the private sponsors [and] refugees”. The applicants argued that, through its alleged breach, the government had imposed an additional expense upon the applicants of about $430 per claimant per year. In addition, they argued that the government had breached its duty of fairness by failing to consult with private sponsors beforehand, and the changes violated Sections 7 and 15 of the Charter. Finally, they argued that the government had acted ultra vires through orders-in-council given provisions in existing legislation that exempted refugees from being found inadmissible on medical grounds. The Court dismissed all arguments. Referring to the alleged breach, the Court ruled that the agreements between the churches and the government were silent on the matter

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of healthcare so the government could not be held in breach. The Court also held that the agreements were silent on how the government needed to take into account the interests of all parties prior to making changes and that the government had properly exercised its prerogative powers – and stated that prerogative power could only be reviewed on constitutional grounds and not through an action of alleged contractual breach. With reference to the fairness argument presented by the applicants, the Court ruled that fairness must be evaluated against a number of factors including the subject matter of the decision, the number of people affected, and the nature of this effect. Against these measures the Court found that the principle of fairness had not required consultation with the applicants given the “relatively small number of persons and modest amounts” involved25 and given that the changes were judged not to represent a direct or intentional attack upon the applicants as refugee sponsors. The Court noted that some consultation had occurred between the two orders-in-council since the revised order separated government-assisted from privately-sponsored refugees and reinstated full coverage for the former group. Finally, the Court also declined to consider the applicants’ Charter arguments on the basis that they lacked standing to bring them before the Court. In order to establish standing there needed to be a “serious, judiciable issue” at stake, the applicants needed to have a “genuine interest” in the issue, and the application needed to be a “reasonable and effective way to bring the issue before the courts”.26 Specifically, the Court found that, while the applicants had a genuine interest in the case, a ‘factual vacuum’ existed due to the lack of evidence about the specific impact of the changes upon any individual.

3.2.3 CDRC v. Canada (2013) While CDRC v. Canada represented the strongest challenge yet to the new IFHP, the applicants faced significant hurdles in their action, given the judgments in the two cases just reviewed, including the judicial acceptance in Toussaint of different health entitlements based upon immigration status and the rejection in Hospitality House of the procedural fairness arguments raised, and the need to establish that they had a ‘genuine interest’ in a ‘serious judiciable issue’ and could, on that basis, be granted public interest standing. In their memoranda to the Court the applicants argued first for public interest standing and then claimed the “current IFHP is ultra vires, unfair, contrary to the Charter, and in breach of Canada’s international obligations under the 1951 Convention relating to the Status of Refugees”.27 While Rodriguez and Ayubi represented members of the ‘refused claimant’ class, CDRC and CARL sought to represent unnamed individuals including refugee and failed claimants from non-DCO and DCO countries, privately-sponsored refugees, and individuals who had applied for pre-removal risk assessments; and JCY sought to represent the interests of unnamed children and youth from all categories, and particularly unaccompanied minors. All three organisations argued for public interest standing on the grounds that the case raised a judiciable interest and that they have an actual stake in the proceedings as professionals serving refugee claimants; doctors represented by CDRC had faced “moral, ethical and professional dilemmas” about treating people who have no legal coverage and members of CARL, as lawyers, academics and students, had a proven and continuing stake in “protecting the legal rights of refugees”.28 The applicants also argued that their court action constituted a reasonable and effective means of bringing the issue before the court, given their experience and

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expertise, as stipulated in Downtown East Side and Manitoba Métis Federation.29 Their standing on behalf of unnamed individuals was further justified because the individual applicants in the case represented only one class of individuals and ‘considerable practical difficulties’ likely deterred privately-sponsored refugees or claimants from other classes, including those from designated or non-designated countries, or those awaiting pre-removal risk assessments, from coming forward even though claimants from these classes were all subject to reductions under the new IFHP.30 Having argued for standing, the applicants questioned whether the government had acted within its powers in enacting the IFHP. To succeed in this argument, they sought to distinguish the Hospitality House finding that the government exercised its prerogative power when it introduced the 2012 orders primarily on grounds the latter finding was made in the specific context of private parties’ sponsorship agreements with the federal government as compared to the circumstances of the CDRC case. Further, they argued that the IFHP is not, as described by the government, an ex gratia or benevolent payment falling outside of its statutory obligations and within its prerogative powers. The applicants argued that the government had never described the IFHP in these terms when accounting for it before Canada’s Receiver General, under the terms of the Federal Administration Act, and any prerogative that might have held when the IFHP was first instituted had been extinguished through the enactment of national legislative schemes for health and immigration that have established entitlements in law. Consequently, the applicants argued that prerogative power could not be exercised in this instance, and the 2012 orders-in-council must be considered ultra vires because there was “no remaining executive prerogative in relation to immigration and heath care”.31 The applicants next turned to the issue of fairness and the legitimate expectation for notice and consultation prior to the introduction of the 2012 orders-in-council. To be successful, they needed to establish, as was not found in Hospitality House, that fairness had required this type of stakeholder participation. The applicants argued that the use of orders-in-council circumvented the legislative process in the Canadian House of Commons and the Senate. They submitted that the parliamentary appropriation of funds could not be considered as a substitute as the “tenuous Parliamentary engagement occasioned by appropriation is exacerbated in the present case, where the appropriation was located in a budget document hundreds of pages long, and shielded from advance disclosure by claims to budget secrecy”.32 The applicants argued that a legitimate expectation of participation could be made based on the 55-year history of the program, over which time the scope of coverage had been adjusted to reflect national initiatives regarding healthcare and immigration, but no groups had previously been unexpectedly deprived of some or all of their coverage and no healthcare providers had previously been required to triage patients and provide care on the basis of refugee classification rather than according to medical need. Further, they submitted that past practices have created the legitimate expectation that the IFHP would not be “radically altered without a public process of notice and consultation” involving the provinces, health professionals, and refugee-serving organisations and other affected parties or individuals.33 They also argued that it was inconsistent with natural and fundamental justice, and therefore, contrary to the duty of fairness, for the government to alter the IFHP without consultation and some chance for stakeholder engagement. The Charter arguments advanced by the applicants referenced Section 7 on the right to life, liberty and the security of the person; Section 12 on the right to protection from cruel and unusual treatment and punishment; and Section 15 on the right to equality

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before and under the law and to equal protection and benefit under the law. In order to establish a Section 7 breach an applicant must demonstrate that 1

legislation or government action has limited a Section 7 right creating a deprivation

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the limitation was not in accordance with the principles of fundamental justice.34

The applicants submitted that the risk to life and long-term physical and mental health consequences from being denied ‘basic and necessary’ healthcare was sufficient to establish a Section 7 breach; they did not argue the government has a duty to provide state-funded healthcare, but rather that state action was implicated through the withdrawal of previous state-funded IFHP benefits. Having addressed engagement of a Section 7 right, and the causal effect of state action, the applicants argued that the changes to the IFHP were discriminatory, arbitrary and disproportionate, and thus not in accordance with the principles of fundamental justice. As an example, the applicants noted that the federal government had argued that these changes were necessary to bring benefits in line with those received by other Canadians, to contain costs and safeguard public health and safety, and to deter abuse of the immigration system by ‘bogus’ refugee claimants coming to Canada for healthcare or seeking to delay deportation through false health claims. The latter characterisation was offered as a potent example of the disproportionate and arbitrary nature of the new IFHP and, it was argued, was contrary to Chaoulli, where the Court held that “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 … The more serious the impingement on the person’s liberty and security, the more clear must be the connection”.35 Finally, the ministerial discretion that can override the limitations set out in the new IFHP, it was argued, did not mitigate the effects of the changes and actually highlighted the arbitrary nature of the changes because exceptions could be granted without explanation and did not require or establish precedent. Section 12 of the Charter provides everyone with the “right not to be subjected to any cruel and unusual treatment or punishment” and the applicants referenced this section as the “functional equivalent” of the international prohibition against “cruel, inhuman or degrading treatment or punishment” found in Article 7 of the International Covenant on Civil and Political Rights and Article 3 of the European Convention on Human Rights.36 According to the Court in Rodriguez v. British Columbia (Attorney General), there must be an “... active state process in operation, involving an exercise of state control over the individual, in order for the state action in question, whether the state action be positive action, prohibition or inaction, to constitute treatment”37 and such action must be “so excessive as to outrage standards of decency”.38 The applicants argued that eligible refugee claimants fall under the administrative control of the state as they await the outcome of their refugee application and the withdrawal of medical care under the new IFHP constitutes “a state process of inaction, prohibition or under-inclusive action”.39 With regard to the second leg of the test, the applicants argued that the withdrawal of benefits shocked the public and professional conscience in Canada, as evidenced by numerous public statements, demonstrations and petitions against the action. Further, the applicants cited case law from other jurisdictions, including R. v. Secretary of State for the Home Department ex parte Adam et al., in the UK, where it was held that withholding of service can be considered as treatment and that the withholding or denial

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of treatment constitutes degrading treatment. As such, the applicants argued that a breach of Section 12 had occurred. Section 15 of the Charter states that everyone is equal before and under the law and is entitled to equal protection and benefit under the law without discrimination and, in particular, without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. To establish a Section 15 breach it must be demonstrated that the impugned law creates a distinction based on an enumerated or analogous ground, and that the distinction creates a disadvantage by perpetuating a prejudice or stereotype.40 The applicants stated that the new IFHP created a ‘healthcare hierarchy’ whereby refugees and refugee claimants are deemed to be less worthy of the protections granted in Section 15, even though they are recognised, historically, as a disadvantaged group, and their presence in Canada is both anticipated and authorised under Canadian law.41 Further the applicants argued that the 2012 orders-in-council distinguish on either enumerated or analogous grounds and, in both cases “the end result is discriminatory”.42 Discrimination on an enumerated ground occurs if distinctions are made on the basis of any characteristic listed in the section, and the applicants argued that the distinction between refugee claimants from designated and non-designated countries of origin, with a disadvantage accruing to refugee claimants from designated countries, constituted discrimination on the basis of national or ethnic origin. A similar argument was made for claimants lawfully in Canada seeking protection, and other legal residents. In judgments like Corbiere, the Court established that discrimination on analogous grounds occurs if based on grounds that are similar to or analogous to those enumerated in Section 15 and specifically on “characteristics that we cannot change or that the Government has no legitimate interest in expecting us to change to receive equal treatment under the law”.43 On this basis the applicants argued that asylum seekers are unable to change their immigration status given that they have fled due to fear of persecution, and they must reside in Canada until their claims are heard and often, even if their claims are rejected, cannot be sent home. Consequently, refugee claimants face discrimination under the new IFHP and contrary to Section 15, on the basis of their immigration status, which they cannot change, and which is analogous to the essentially immutable characteristics listed in Section 15. In their factum, CDRC and CARL referenced the 1951 Convention and its application to refugees and refugee claimants, but not to failed claimants, and noted that the Charter should “be presumed to provide at least as great a level of protection as is found in the international human rights instruments that Canada has ratified”.44 They referenced Article 3 of the Convention that prohibits discrimination “between and among refugees” on the basis of “race, religion or country of origin”45 and Article 7(1) that prohibits differential treatment between refugees and other aliens lawfully resident within a country’s borders. The applicants submitted that the new IFHP contravenes both provisions. The differential and reduced level of health services provided to refugee claimants coming from countries appearing on the federal government’s list of Designated Countries violated Article 3; and the inferior healthcare provided to certain refugees and refugee claimants under the revised IFHP violated Article 7(1) because it is less than that offered to other foreign nationals lawfully residing in Canada, such as permanent residents, students from abroad and persons on long-term work visas. While they noted the provisions do not apply to refused claimants, CDRC and CARL also reminded that refugee claimants remain under the protection of the UNHCR and should

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nonetheless be treated humanely since some may be seeking remedy to decisions that have been made while others remain in limbo if unable to return to their country of origin. The applicants also referenced Articles 19 and 20 of Directive 2013/33/EU of the European Union “laying down standards for the reception of applicants for international protection”.46 Article 19 commits 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” and that assistance be provided to applicants who have “special reception needs” and Article 20 stipulates that care can be withdrawn or reduced only after consideration on an individual and case-by-case basis; and a level of care adequate to ensure a “dignified standard of living” must be offered in all cases. The new IFHP, enacted through the 2012 orders-in-council, limited primary healthcare coverage categorically, and on the basis of distinctions noted above, and arguably placed Canada in violation of international standards and obligations, such as those reflected in the European Union’s Receptions Directive. In its factum, JCY referenced the Convention on the Rights of the Child, noting its overriding consideration that “the best interests of the child shall be a primary consideration” in all actions concerning children and undertaken by “public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”47 and state parties “shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind.48 In its factum, JCY submitted that, through its actions, the government had failed to consider or take measures to protect the best interests of children, particularly with reference to “the right of the child to the enjoyment of the highest attainable standard of health”.49 Having argued that the new IFHP breached Sections 7, 12 and 15 of the Charter, and represented a failure of previously assumed and still affordable international commitments, the applicants addressed Section 1 of the Charter to determine whether the presumptive violations were saved by that section. Section 1 “guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The legal test set out in, among other cases, Divito v. Canada (2013) established that rights and freedoms guaranteed elsewhere in the Charter might be limited if such limitations address a pressing and substantial objective and the impairment of the rights is proportional to the objectives, in that the chosen means are rationally connected to the objectives and impair rights as little as possible, and the salutary effects outweigh the deleterious effects of the legislation. On July 4th, 2014, the Honourable Madam Justice Mactavish of the Federal Court of Canada ruled that individuals affected by changes to the Interim Federal Health Program “are being subjected to ‘treatment’ as contemplated by Section 12 of the Charter” and that the changes to the program constituted “cruel and unusual” treatment and were, as a consequence, in violation of Section 12 of the Charter. The Court noted that the cuts “particularly, but not exclusively” affected children “in a manner that shocks the conscience and outrages our standards of decency”. The Court also determined that the cuts violated Section 15 of the Charter “inasmuch as the program now provides a lesser level of heath care coverage to refugee claimants from Designated Countries of Origin” and the distinction created by the government likely placed the lives of those claimants at risk and perpetuated stereotypical views of queue-jumping and ‘bogus’ claims apparently intended to abuse the generosity of Canadians. Finally, the Court ruled that the federal

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government had failed in its argument that the changes to the IFHP were justified under Section 1 of the Charter but it ruled against the plaintiffs’ Section 7 challenge, stating that guarantees to life, liberty and the security of person did not extend to a positive right for state funded healthcare.50 Earlier in the judgment, Justice Mactavish noted that the Supreme Court of Canada had previously established that Charter protections should be at least equal to protections contained in international instruments ratified by Canada, and the Federal Court signalled its intent to use the instruments for that purpose in the present action. The effect of the Convention on the Rights of the Child may be seen in the Court’s decision that federal changes to the IFHP were likely to have a disproportionately detrimental effect on children and were contrary to the Convention’s commitment to act in the best interests of the child and to ensure “to the maximum extent possible, the survival and development of children”.51 Recognising that “a certain degree of administrative disruption” was likely to ensue from its decision, and that such disruption might further harm those seeking protection in Canada, the Federal Court ordered that the results of its decision be suspended for a period of four months so the government could “act in response to this decision”.52 The federal government took advantage of the suspension to prepare a rebuttal, rather than address the administrative disruptions and policy consequences the Court anticipated, and on September 22nd, 2014, approximately six weeks ahead of the deadline set by the Court, announced that it would seek leave to appeal the Court’s decision.53 The leave to appeal was denied on October 31st, 2014 and the federal government, under protest, agreed to reinstate some benefits even as it announced its intention to appeal the decision.54 The Canadian Association of Refugee lawyers argued that the government had moved to reintroduce “healthcare for some refugees but not for all” and returned to court in January 2015 over what it considered to be the government’s failure to comply with the original order of the Court.

4

Conclusions

For more than half a century Canada’s expanding Interim Federal Health Program was often regarded as a tangible expression of the country’s efforts to meet the international obligations to refugees that it had assumed, and changes to the program, through orders-in-council beginning in 2012, were seen by many in civil society as an abdication of those responsibilities. According to the federal Conservative government, changes were needed in order to save costs, to bring healthcare offered through the IFHP in line with care offered to most other Canadians, and to act as a deterrent against ‘bogus’ or ‘unfounded’ refugee claims. The applicants in the federal court action argued that there was no need for the government to act as it had done. They noted that federal costs associated with the IFHP had generally been transferred from the federal to other jurisdictions and service providers, and even the federal government had previously stated that coverage under the IFHP was not as extensive as coverage provided through provincial health plans.55 Nor was there evidence that Canada’s immigration system was threatened by ‘bogus’ refugees and frivolous claims. The applicants’ reference to Sections 7, 12 and 15 of the Charter, and to the Convention of the Rights of the Child, were upheld and formed the basis of a successful court action against the Conservative government that had reduced coverage under the IFHP.

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In ruling against the federal Conservative government, Justice Mactavish underscored the significant impact of the cuts to the IFHP and the government’s failure to assume or to meet healthcare obligations for refugees recognised by previous Liberal and Progressive Conservative governments. Justice Mactavish also considered the likely intent and consequences of these cuts on the resettlement of refugees in Canada, stating that “the executive branch of the Canadian government has intentionally set out to make the lives of these disadvantaged individuals even more difficult than they already are” and “it has done so in an effort to force those who have sought the protection of this country to leave Canada more quickly, and to deter others from coming here to seek protection”.56 The use of orders-in-council and the Conservative government’s failure to fully and immediately restore healthcare benefits, when ordered by the courts to do so, signal the ease with which determined governments can attempt to override previous commitments to recognize and safeguard human rights and protections enshrined in international and national instruments, and the possibility that governments can persist in their efforts to ignore previously recognized obligations, virtually by fiat, even in the face of civil opposition and direction from the courts. Such caprice recalls the slow embrace of the Universal Declaration of Human Rights by Canadian politicians and diplomats in the early years following its adoption (Schabas, 1998) and more recent difficulties extending Charter rights and protections to non-citizens (Dauvergne, 2013) and underscores the role of civil society in monitoring political efforts to ensure that governments strive to meet the international obligations and national commitments that have been assumed.

References Alboim, N. and Cohl, K. (2012) Shaping the Future: Canada’s Rapidly Changing Immigration Policies, Maytree Foundation, Toronto, ON. Ambrosini, M. (2015) ‘NGOs and health services for irregular immigrants in Italy: when the protection of human rights challenges the laws’, Journal of Immigrant and Refugee Studies, Vol. 13, No. 2, pp.116–134. Ambrosini, M. and Van Der Leun, J. (2015) ‘Introduction to the special issue: implementing human rights: civil society and migration policies’, Journal of Immigrant and Refugee Studies, Vol. 13, No. 2, pp.103–115. Arat-Koc, S. (1999) ‘Neo-liberalism, state restructuring and immigration: changes in Canadian policies in the 1990s’, Journal of Canadian Studies/Revue d’études canadiennes, Vol. 34, No. 2, pp.31–56. Bragg, B. and Wong, L. (2015) ‘“Cancelled dreams”: family reunification and shifting Canadian immigration policy’, Journal of Immigrant and Refugee Studies, advance online publication, doi: 10.1080/15562948.2015.1011364 [online] (accessed 21 September 2015). Canadian Council for Refugees (CCR) (2013) Refugee Health Care: Impact of Recent Cuts, The Council, Montréal, QC [online] http://ccrweb.ca/en/refugee-health-care-impacts-recentcuts (accessed 21 September 2015). Citizenship and Immigration Canada (CIC) (2004) Audit of the Control Framework for the Interim Federal Health Program, Gov’t. of Canada, Ottawa, ON [online] http://www.cic.gc.ca/ english/resources/audit/ifh.asp (accessed 21 September 2015). Dauvergne, C. (2013) ‘How the Charter has failed non-citizens in Canada: reviewing thirty years of Supreme Court of Canada jurisprudence’, McGill Law Journal/Revue de droit de McGill, Vol. 58, No. 3, pp.663–728. Geddes, A. (2003) The Politics of Migration and Immigration in Europe, Sage, London, UK.

Comment [t1]: Author: Please provide the complete web address/URL.

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Jones, M. and Baglay, S. (2007) Refugee Law, Irwin Law, Toronto, ON. Marwah, S. (2014) Refugee Health Care Cuts in Canada: System Level Costs, Risks and Responses, Wellesley Institute, Toronto, ON. Schabas, W. (1998) ‘Canada and the adoption of the Universal Declaration of Human Rights’, McGill Law Journal/Revue de droit de McGill, Vol. 43, No. 2, pp.403–441.

Notes 1

2 3 4 5

6

7

8

9 10

11

12

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The principle of paramountcy, retained in the Constitution Act of 1982, stipulates that federal law prevails when conflicts arise between the federal and provincial governments in areas of shared jurisdiction such as immigration and agriculture. Government of Canada, Order-in-council, PC 1957-11/848. Order-in-council, PC 2012-433; http://laws-lois.justice.gc.ca/eng/regulations/SI-201226/FullText.html. Order-in-council, PC 2012-945; http://canadagazette.gc.ca/rp-pr/p2/2012/2012-07-18/html/sitr49-eng.html. Under the Joint Assistance Sponsorship Program refugees receive support from the federal government and a private sponsor for up to 24 months. This program is intended to resettle refugees with special needs who may otherwise not be sponsored. See http://www.cic.gc.ca/english/refugees/sponsor/index.asp. References to ‘bogus’ refugees or refugee claims refer to comments by Jason Kenney, Minister of Citizenship and Immigration at the time the changes to the IFHP were implemented. For example, at a news conference following the tabling of Bill-C31, Protecting Canada’s Immigration Act, Minister Kenney stated that for “too many years, our generous asylum system has been abused by too many people making bogus refugee claims”. Kenney and other Conservative politicians repeated these references frequently in the political and public discussions that followed. See http://www.cic.gc.ca/english/department/media/speeches /2012/2012-02-16.asp. Dr. Lillian Linton, in a joint letter to Jason Kenney, then Minister of Citizenship and Immigration, on behalf of 8 professional colleges and associations referring to the federal government announcement of pending changes to the IFHP. See http://www.cnaaiic.ca/~/media/cna/page-content/pdf-en/ifhp_open_letter_e.pdf. The Canadian Council for Refugees (CCR) is a “national non-profit umbrella organization committed to the rights and protection of refugees and other vulnerable migrants in Canada and around the world and to the settlement of refugees and immigrants in Canada”. See https://ccrweb.ca/en/about-ccr. See https://ccrweb.ca/en/refugee-health-care-impacts-recent-cuts. The Wellesley Institute is a “Toronto-based non-profit and non-partisan research and policy institute … [focusing] … on developing research, policy and community mobilization to advance population health”. See http://www.wellesleyinstitute.com/about/. The Maytree Foundation describes itself as “a private Canadian charitable foundation established in 1982, committed to reducing poverty and inequality in Canada and to building strong civic communities”. See http://maytree.com/about-us/mission-vision. Available at http://www.cna-aiic.ca/~/media/cna/page-content/pdf-en/ifhp_open_letter_e.pdf. The letter was forwarded on behalf of the Canadian Association of Social Workers, Canadian Association of Optometrists, Canadian Nurses Association, Canadian Pharmacists Association, Royal College of Physicians and Surgeons, Canadian Dental Association, Canadian Medical Association, and the College of Physicians and Surgeons of Canada and dated May 18, 2012. See http://www.healthcarecan.ca/wp-content/uploads/2012/11/IFHP-reform-policy-statementNovember-2012.pdf, p.6.

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14 Individual professionals have also stepped forward, such as Dr. Phillip Berger, Chief of the Department of Family and Community Medicine at St. Michael’s Hospital at the University of Toronto, who stated “the State has issued guidelines on the practice of medicine that is [sic] totally unrelated to the interests and welfare of patients” [cited in Canadian Medical Association Journal, 2012, Vol. 184, No. 10, E511]. 15 See http://www.theglobeandmail.com/news/politics/saskatchewan-premier-decides-to-coverhealth-care-of-ailing-refugee/article5657175/. 16 See http://www.health.gov.on.ca/en/pro/programs/othp/. 17 About 55% of refugee claimants, or approximately 48,900 claimants, were thought to be residing in Ontario at the time. See http://www.thestar.com/news/canada/2013/12/09/ontario _reinstates_basic_health_care_for_refugees.html. 18 These views were expressed, for example, in an editorial in the Canadian Medical Association Journal, in July 2012, that noted the potential offloading of costs from the federal government and identified some of the ethical and practical implications of the changes. The editorial noted that Kenney had previously argued the financial costs would be minimal since total federal spending on the IFHP amounted to .04% of total health care costs in Canada, and the services being cut amounted to a smaller percentage of program costs, suggesting, as he responded to criticisms, that there were likely no financial stressors preventing the government from meeting national or international obligations the country had assumed. See Canadian Medical Association Journal, 2012, Vol. 184, No. 10, E511. 19 Canadian Doctors for Refugee Care, et al v. Canada (Attorney General of Canada & Minister of Citizenship and Immigration) [2013], Memorandum of Fact and Law, Reg. No. T-356-13, 2; hereafter cited as CDRC et al., final factum. 20 CDRC et al., final factum, para. 2. 21 CDRC et al., final factum, para. 3. 22 CDRC et al., final factum, para. 153. See also http://laws-lois. justice.gc.ca/eng/const/page15.html. 23 CDRC et al., final factum; see also the Federal Court of Appeal in Toussaint v. Canada at http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do. 24 CDRC et al., final factum; see also the Federal Court in Hospitality House Refugee Ministry Inc. v. Canada (Attorney General) at http://www.canlii.org/en/ca/fct/doc/2013/2013fc543/ 2013fc543.html. 25 Hospitality House, para. 19. 26 Hospitality House, para. 22, citing Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45. 27 CDRC et al., final factum, para. 3. 28 CDRC et al., final factum, paras. 28 and 30. 29 CDRC et al., final factum, para. 25. 30 CDRC et al., final factum, para. 32. 31 CDRC et al., final factum, p.16. 32 CDRC et al., final factum, para. 54. 33 CDRC et al., final factum, para. 51. 34 Canada (A.G.) v. P.H.S. Community Services Society, [2011] 3 S.C.R. 134 at para. 84; Gosselin, para. 75). 35 CDRC et al., final factum, para. 88; Chaoulli v. Quebec (A.G.), [2005] 1 S.C.R. 791 at para. 131. 36 CDRC et al., final factum, para. 123. 37 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at para. 182; CDRC et al., final factum, para. 124. 38 R. v. Smith, [1987] 1 S.C.R. 1045 at para. 83.

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39 CDRC et al., final factum, para. 125. 40 Withler v. Canada (Attorney General), 2011 SCC 12 at para. 30; Quebec (A.G.) v. A., [2013] 1 S.C.R. 61 at para. 324. 41 CDRC et al., final factum, para. 102. 42 CDRC et al., final factum, para. 104. 43 Corbiere v. Canada (Minister of Indian Affairs), (1999) 2 S.C.R. 203 at para. 13. 44 CDRC et al., final factum, para. 141. 45 CDRC et al., final factum, paras. 142 and 51. 46 Also referred to as Receptions Directive; see http://www.refworld.org/docid/51d29db54.html. 47 United Nations, Convention on the Rights of the Child, A. 3(1); hereafter referred to as Rights of the Child. 48 Rights of the Child, A. 2(1). 49 Rights of the Child, A. 24(1). 50 See http://www.canlii.org/en/ca/fct/doc/2014/2014fc651/2014fc651.html#, paras. 1080, 1081, 1084 and 1077. 51 See http://www.canlii.org/en/ca/fct/doc/2014/2014fc651/2014fc651.html#, paras. 443, 444 and 459. 52 See http://www.canlii.org/en/ca/fct/doc/2014/2014fc651/2014fc651.html#, paras. 1095 and 1097. 53 See http://www.carlacaadr.ca/articles/ lastminuteappealofFederalCourtrulingprolongsunnecessarysuffering. 54 See http://www.cbc.ca/news/politics/refugee-health-care-temporarily-restored-in-mostcategories-1.2823265. 55 CDRC et al., final factum, paras. 95 and 7. 56 See http://www.canlii.org/en/ca/fct/doc/2014/2014fc651/2014fc651.html#, para. 1079.