BY JERICO ESPINAS
Canadians have expressed a revitalized interest in the plight of refugees in recent weeks, precipitated in September 2015 by tragic photos circulated on social media depicting the Kurdi family’s attempted escape from Syria. Since then, activist groups, universities, and non-government organizations have put Canada’s refugee policies under a spotlight, asking whether refugees are receiving sufficient support. Many of these groups have proposed policies to increase the number of refugees Canada takes in and to speed up the refugee application process. Importantly, the federal government has reacted positively to these movements, succeeding in bringing over 25,000 refugees by early 2016. However, there is only some discussion about challenges that refugees face after they arrive in Canada.
One of these challenges is access to health care. Canada’s Interim Federal Health Program (IFHP) provides certain refugee groups, including protected persons, government-resettled refugees, and refugee claimants, with program benefits until they leave Canada or become eligible for provincial health care. Individuals apply for renewable one-year certificates that entitle them to similar health benefits afforded to low-income Canadians on social assistance.
The existence of the IFHP was in jeopardy in 2012 after cuts greatly reduced the effectiveness of the program. The Federal government decreased the number of refugee groups eligible for the program, denying coverage to claimants who failed to file their refugee claims on time, made an unsuccessful refugee claim, or originated from certain designated countries of origin. The scope of coverage was also reduced, limiting access to non-essential health care services such as preventative care, reproductive health care, and maternal health care.
In July 2014, a number of social advocacy groups mounted a constitutional challenge to the IFHP cuts in Canadian Doctors for Refugee Care v Canada (Attorney General) (2014 FC 651) (“Canadian Doctors“). In its decision, the Federal Court found that the cuts were unconstitutional because they infringed sections 12 and 15 of the Charter. The court held that the cuts constituted cruel and unusual treatment under section 12 because they imposed health- and life-endangering treatment on children. The court also held that it was discriminatory under section 15 to limit important but non-essential health care coverage based on an individual’s country of origin. The cuts were not saved by section 1, which subjects these rights to “reasonable limits”, and so they were declared invalid.
This decision is notable for its application of international legal principles in determining the constitutionality of a domestic statute. While international laws have no binding legal authority on Canadian courts without domestic legislation to bring them into force, the goals and tenets they espouse are often representative of Canadian societal values. These values include the “central humanitarian and compassionate values” that motivate duties to care for the sick and vulnerable. When there are clear parallels between Canadian values and international instruments, as in this case, these non-binding laws can have persuasive influence on judicial decisions.
In Canadian Doctors, Justice MacTavish of the Federal Court of Canada cited Canada’s obligations under multilateral human rights treaties to help justify its section 12 and 15 rulings. The Court noted that international treaties and conventions are not legally enforceable unless they are implemented by statute. However, the Court also recognized that international laws serve an important role in Canada’s legal system and should be seriously considered. Notably, international law has helped to define Charter rights, aid in the interpretation of Charter infringements, and provide evidence of principles of fundamental justice.
Two main international treaties were considered in the decision. The first is the UN Convention on the Rights of the Child (UNCRC). The UNCRC recognizes a children’s right to health and requires Canada to act in the best interests of children in guaranteeing this right. The Court held that the IFHP cuts adversely affected the children of refugee claimants, and referenced the UNCRC to support the conclusion that the cuts “potentially jeopardize the health, the safety and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency” and thereby violate section 12 of the Charter.
The second treaty is the Convention Relating to the Status of Refugees (the Refugee Convention). Article 3 of the Refugee Convention requires Canada to act without discrimination based on race, religion, or country of origin. The Court held that the cuts were discriminatory under section 15 of the Charter because they withheld health care coverage for refugees coming from certain designated countries of origin. Designated countries of origin are less likely to persecute individuals, often affecting the refugee claimant process. But this label does not mean that the government can withhold important healthcare services from these kinds of refugees. The Refugee Convention was used to help justify this interpretation of the Charter provision.
The IFHP cuts were reversed to the pre-2012 level of coverage in late 2014, returning important health care treatments to a vulnerable group of people. Formally, the federal government had the opportunity to appeal the ruling through the Federal Court of Appeal. The threat of an appeal, which could reverse the ruling and bring back the cuts, left the final state of the IFHP in doubt for more than a year.
However, the Trudeau administration has changed the federal government’s approach to refugee health care. The federal government has not only dropped the appeal, letting the trial court’s ruling on the IFHP cut’s unconstitutionality stand, but has also promised to expand coverage by April 2017. The additions would include coverage for immigration medical exams, pre-departure vaccinations, and medical supports for their travel to Canada. These extra services would cost the government almost $12.5 million per year.
Going forward, other international human rights instruments may enter the public discussion on refugees. One could be the International Covenant on Economic, Social, and Cultural Rights, which enshrines “the enjoyment of the highest attainable standard of physical and mental health.” Health activist groups may cite Canadian Doctors in order to bolster their campaigns about health inequities for vulnerable populations; although this right is not ratified, the Canadian public can give it persuasive force with enough political support.
Another could be the Sustainable Development Goals, which were unanimously adopted by the UN on September 25, 2015. As Canadians discuss how to implement the provisions of these treaties domestically and generate effective progress indicators, the sustainable and just treatment of refugees, migrants, and displaced persons will also be a major policy consideration.
Jerico Espinas is a IL student at Osgoode Hall Law School. He is a member of Canadian Lawyers for International Human Rights (Osgoode Chapter) and is interested in health as a human right. He can be contacted at email@example.com.