Opinion: Refugee health fight will carry on to the ballot box (Embassy)

July 9, 2014

Peter Showler

See original post in Embassy here.


What do we do when our government imposes bad policy with bad consequences on particular groups of people within Canadian society? Some of the answers to that question have been provided in the recent Federal Court decision on refugee health cuts.

The policy in question is the reduction and elimination of health-care benefits to refugees under the Interim Federal Health Program. The federal cabinet ordered the health-care cuts in June 2012. The policy change was purportedly intended to save money, deter so-called bogus refugees and hasten the departure of failed refugee claimants.

The policy was buttressed by a series of half-truths and falsehoods. A spokesperson for Jason Kenney, then the immigration minister, said in 2012:

"Canadians have been clear that they do not want illegal immigrants and bogus refugee claimants receiving gold-plated health-care benefits that are better than those Canadian taxpayers receive."

In a democracy, we challenge bad policy by speaking to government. Twenty-one medical associations, including the Canadian College of Physicians, raised their concerns. Leading medical authorities such as Dr. Philip Berger, medical director of the Inner City Health Program with St. Michael's Hospital in Toronto, and Dr. Meb Rashid, medical director of the Crossroads Clinic at Women's College Hospital in Toronto, were turned away from the minister's door. The minister also ignored the comments of the Canadian Association of Refugee Lawyers and the Canadian Bar Association.

Opposition questions in the House of Commons were met with scorn and misinformation.

Minister Kenney's spokesperson said: "Shamefully, the NDP and the Liberals support bogus and rejected asylum seekers receiving health-care benefits."

Calls for consultation from provincial health ministers were similarly ignored.

In a democracy, if government consultations are denied, concerned citizens can go to the media and the public. Both the doctors and the lawyers wrote op-eds, gave interviews and speeches, and held demonstrations. The medical practitioners-doctors, nurses, therapists and hospital administrators-were particularly strong and persuasive. They were the ones who were up front and personal with the consequences of the policy.

Children with asthmatic and diabetic conditions were being denied medical care and medications until in critical need. Pregnant women were denied pre-natal care even when they were at risk. Victims of persecution suffering from post-traumatic stress disorder were denied care or medication unless they were deemed a risk to Canadians. The medical practitioners personally experienced the suffering and chaos caused by the policy.

The government response was denial, repetition of the same misinformation, and insults. Sly innuendo suggested that some doctors were politically motivated. The refugee lawyers were a self-interested lobby in it for the big bucks. That would certainly be news to their accountants.

In a democracy, when public advocacy fails, concerned citizens can go to court. The Canadian Association of Refugee Lawyers and the Canadian Doctors for Refugee Care, along with two refugee claimants who had been denied benefits, filed an application in Federal Court to strike down the health cuts. They were later joined by Justice for Children and Youth, a non-profit legal aid clinic.

Before considering the court's conclusion, it is worth looking at the court's factual findings in its 266-page decision.

The government had justified its policy by saying:

  • Refugees received "gold-plated" health care, better than tax-paying Canadians.
  • The health cuts only applied to bogus refugees and those illegally in Canada.
  • Millions of dollars would be saved over a five-year period.
  • The health cuts would deter fraudulent refugees and hasten the departure of failed claimants.

All of these allegations were found to be incorrect by the court. More specifically:

  • Refugees only received basic health care, comparable to Canadians on welfare. No gold-plating.
  • Virtually all of the refugees were legally in Canada.
  • Under the new program, almost all refugees, even privately sponsored refugees resettled from overseas, have received some health cuts. The only exception is government-assisted refugees from overseas.
  • The more drastic cuts (no care unless a public health risk, for instance) also applied to some who would be accepted as refugees.
  • Refused claimants were not necessarily fraudulent. Many with genuine fears of persecution were refused on technical legal grounds.
  • There was no evidence that the government had saved money.The denial of cheaper preventative care often resulted in very expensive emergency care. Many costs were downloaded to the provinces and charitable medical institutions.
  • There was no evidence that health cuts deterred fraudulent claimants.

In court, evidence is important. Political pronouncements are easily punctured. On virtually every point of fact, the government produced flimsy evidence or no evidence at all.

The first lesson from this decision is that the government did not have a sound factual basis for its health cuts.

The second lesson is a matter of law. The legal conclusion is that the health cuts violate sections 12 and 15 of the Canadian Charter of Rights and Freedoms, that denying basic health care to a " poor, vulnerable, and disadvantaged group" can be "cruel and unusual treatment" as well as discriminatory under section 15, the equality provision of the Charter.

Justice Anne Mactavish was restrained in her approach. She made it clear that the court must respect the executive authority of government and should only overturn executive policy decisions under unusual circumstances.

However, she also concluded that it is an unusual circumstance when poor and vulnerable people, particularly children, are unnecessarily targeted for treatment that puts their health and lives at risk. Then the court must strike down the offending policy.

Unfortunately for refugees and medical practitioners, the final act has not been written. Immigration Minister Chris Alexander has already said the government will appeal the decision, repeating the same half-truths that were already discredited by the court.

The government will undoubtedly ask the Federal Court of Appeal to stay the court order to reinstate the health benefits within four months. If the stay is granted, the health and lives of refugees will continue to be at risk.

Provinces, medical clinics, health-care providers, even pharmaceutical companies will continue to fill some of the gaps with their charitable efforts. But we are talking about preventative health care and continuing medication-there will be gaps. Refugee health will be impaired, lives will be lost.

Inevitably, this case, after a matter of years, will arrive at the Supreme Court. In the meantime, what can we do as Canadians when our government acts badly?

In a democracy, when government is stubborn and wrong-headed, the final role is not for the courts, it is for its citizens, who can demand better from their elected representatives, and can also, ultimately, vote.


Peter Showler is a co-chair of the Canadian Association of Refugee Lawyers' Advocacy Committee, the former director of the Refugee Forum at the University of Ottawa and former chair of the Immigration and Refugee Board of Canada.