2014 FC 651, 2014 FC 651

T-356-13 2014 FC 651 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 ) Indexed as: Canadian Doctors for Refugee Care v. Canada ( Attorney General ) Federal Court, Mactavish J.—Toronto, December 17 and 18, 2013, January 30, 2014; Ottawa July 4, 2014.

Citizenship and Immigration — Interim Federal Health Program — Judicial review of 2012 orders in council (OICs) reducing level of health care coverage for refugee claimants through Interim Federal Health Program (IFHP or Program), all but eliminating it for others pursuing risk-based claims — IFHP reformed to: modernize, clarify, reaffirm original intent as temporary, interim, short-term ex gratia program; ensure fairness to Canadians; protect public health, safety; defend integrity of refugee determination system; contain costs — 2012 IFHP providing three tier coverage — Type of coverage depending, inter alia, on whether individual from designated country of origin — Whether 2012 OICs ultra vires executive branch of government; whether Governor in Council breaching duty of procedural fairness; whether 2012 changes to IFHP violating Canadian Charter of Rights and Freedoms, ss. 7 , 12 , 15 ; whether any breaches of Charter rights saved under Charter, s. 1 — 2012 OICs not ultra vires prerogative powers of Governor in Council — Crown prerogative not displaced or extinguished by Immigration and Refugee Protection Act or Canada Health Act — No duty of procedural fairness owed by government in exercise of legislative functions — No legitimate expectation that stakeholders be accorded participatory rights — Charter, s. 7 claim dismissed — However, 2012 OICs inconsistent with Charter, ss. 12, 15, of no force or effect — Charter, s. 24 remedy appropriate, notwithstanding granting of declaratory remedy under Constitution Act, 1982, s. 52 — Application allowed.

Crown — Prerogatives — 2012 orders in council reducing level of health care coverage for refugee claimants through Interim Federal Health Program — Whether executive branch authorized to spend money for health care to refugees as exercise of Crown prerogative, whether such prerogative extinguished by Immigration and Refugee Protection Act (IRPA), Canada Health Act — Crown prerogative not displaced or extinguished by IRPA or Canada Health Act — Only abolished or exhausted by clear wording in statute — IRPA not dealing with health care — Federal government not required to provide health care to refugees — Crown’s prerogative power to spend in area not addressed by statute remaining intact.

Constitutional Law — Charter of Rights — Life, Liberty and Security — 2012 orders in council reducing level of health care coverage for refugee claimants through Interim Federal Health Program (IFHP) — Whether 2012 changes to IFHP violating Charter, s. 7 — Charter, s. 7 claim dismissed — Applicants seeking to impose positive obligation on government — Law not recognizing s. 7 Charter right to state-funded health care — Charter not imposing positive obligations on governments to provide social benefits programs — Decision of Governor in Council not engaging s. 7 Charter rights — Case law rejecting argument that decision to cut IFHP benefits reviewable under s. 7 — Discretionary power of Governor in Council in enacting IFHP not reviewable under Charter — 2012 IFHP not limiting ability of refugees to pay for own health care.

Constitutional Law — Charter of Rights — Criminal Process — 2012 orders in council (OICs) reducing level of health care coverage for refugee claimants through Interim Federal Health Program (IFHP) — Whether those seeking protection of Canada subjected to “treatment” within meaning of Charter, s. 12 , whether such treatment cruel, unusual — 2012 modifications to IFHP violating Charter, s. 12 — Those modifications intentionally targeting vulnerable, poor, disadvantaged group — 2012 OICs meant to deter abuse of refugee system — Making life harder for refugees — Actions of executive branch constituting cruel, unusual “treatment” — Not shown that 2012 changes to IFHP necessary to achieve government’s aims — IFHP cuts arbitrary, of limited social value — 2012 IFHP not conforming to Convention on the Rights of the Child — Denying health care to children as means of affecting behaviour of parents, others cruel, unusual treatment — Putting individuals affected by 2012 cuts in position of having to beg for lifesaving medical treatment, demeaning, cruel, unusual — Such intentional targeting outside realm of ordinary Charter challenges to social benefit programs.

Constitutional Law — Charter of Rights — Equality Rights — 2012 orders in council (OICs) reducing level of health care coverage for refugee claimants through Interim Federal Health Program (IFHP) — 2012 IFHP providing three tier coverage — Type of coverage depending, inter alia, on whether individual from designated country of origin (DCO) — 2012 IFHP violating Charter, s. 15(1) — Singling out refugee claimants from DCOs for adverse differential treatment — Governor in Council obliged to provide IFHP in non- discriminatory manner once choosing to provide such benefit — Eligibility requirements of 2012 OICs resulting in unequal access to IFHP based on claimant’s nation of origin — Terms “national”, “ethnic” origin in s. 15(1) not synonymous — Term “national origin” broad, including people not only born in particular country, but who come from that country — Such

interpretation consistent with Immigration and Refugee Protection Act, s. 109.1 , United Nations Convention Relating to the Status of Refugees, Art. 3 — Concept of DCO not insulating 2012 IFHP from scrutiny under Charter, s. 15 — Difficult to characterize DCO/non-DCO distinction as ameliorative — No evidence that IFHP tiered coverage corresponding to reality of claimants from DCO — Distinction not saved as “ameliorative program”.

Constitutional Law — Charter of Rights — Limitation Clause — 2012 orders in council (OIC) reducing level of health care coverage for refugee claimants through Interim Federal Health Program (IFHP) — 2012 IFHP violating Charter, ss. 12 , 15(1) — Whether breaches of Charter rights saved under Charter, s. 1 — Rights violations resulting from 2012 changes to IFHP not justified under Charter, s. 1 — Some 2012 OIC objectives (cost containment, protecting integrity of Canada’s immigration system) pressing, substantial, impairment of rights proportional to importance of objectives — However, as to minimal impairment, no reliable evidence of extent of cost savings — Respondents not showing no alternative to cutting IFHP benefits that would achieve goal of cost containment — With respect to protecting integrity of Canada’s immigration system, possible to achieve objective of faster refugee departures through additional resources — Charter, ss. 12, 15 rights of refugees receiving lower health insurance coverage not minimally impaired — Consequently, not demonstrated that IFHP changes minimally impairing Charter rights of those seeking protection of Canada — Beneficial impacts of

2012 changes to IFHP outweighed by negative impact thereof on constitutional rights of those seeking protection. Practice — Parties — Standing — 2012 orders in council reducing level of health care coverage for refugee claimants through Interim Federal Health Program — Applicants Canadian Doctors for Refugee Care, Canadian Association of Refugee Lawyers, Justice for Children and Youth (JFCY) meeting test for public standing articulated in Canada (Attorney General) v.

Downtown Eastside Sex Workers United Against Violence Society: case raising serious justiciable issues; applicant JFCY engaged with issues raised by application herein, granting standing best allowing for reasonable, effective litigation of issues.

This was an application for judicial review in respect of a decision by the Governor in Council to pass two orders in council (OICs) in 2012 that significantly reduced the level of health care coverage for refugee claimants and others who have come to Canada seeking its protection through the Interim Federal Health Program (IFHP or Program), and all but eliminated it for others pursuing risk-based claims. The pre-2012 IFHP initially authorized payment of hospitalization, medical care, dental care and expenses incidental thereto for immigrants who lacked the financial resources to pay these expenses themselves.

The focus of the IFHP later applied almost exclusively to refugee claimants, government-assisted refugees and others in humanitarian need. The IFHP was extended to cover members of the “deferred removal orders class” and persons detained by the Canada Border Services Agency. Later changes extended the IFHP to provide health insurance coverage for applicants for pre-removal risk assessments (PRRAs) and for victims of human trafficking.

The IFHP was reformed based on the need to modernize, clarify and reaffirm its original intent as a temporary, interim, short-term ex gratia program; ensure “fairness to Canadians”; protect public health and public safety in Canada; defend the integrity of the refugee determination system and deter its abuse; and contain its financial cost. The 2012 IFHP continues to provide limited, temporary health insurance coverage.

However, unlike the situation under the pre-2012 IFHP, individuals who are only entitled to make a PRRA application and not a refugee claim are no longer entitled to any form of IFHP coverage whatsoever, including people who are not admissible on security grounds, or because of criminal activity or human rights violations, those who fail to file their refugee claims in a timely manner and those who have previously made an unsuccessful refugee claim.

The 2012 IFHP regime now provides for three tiers of coverage: extended health care coverage (EHCC), public health or public safety health care (PHPS) coverage, and health care coverage (HCC). Which tier of coverage a person will be entitled to receive depends upon a number of factors, including whether the individual is a national of a designated country of origin (DCO).

EHCC is equivalent to the level of IFHP benefits provided under the pre-2012 Program, and is essentially the same level of publicly funded health care insurance coverage as is available to low-income Canadians under provincial or territorial benefit plans. Those entitled to EHCC benefits include most government-assisted refugees and some privately sponsored refugees, as well as victims of human trafficking and some individuals admitted under a public policy or on humanitarian and compassionate grounds.

HCC beneficiaries receive coverage for services and products such as hospital in-patient and out-patient services, physicians, nurses, and other health care professionals and laboratory, diagnostic and ambulance services, but these services and products are only covered “if they are of an urgent or essential nature”. Those entitled to HCC benefits include refugee claimants from non-DCO countries, refugees, successful PRRA applicants, most privately sponsored refugees, and all refugee claimants whose claims were filed before December 15, 2012, regardless of the claimant’s country of origin.

PHPS only insures those health care services and products that are necessary or required to diagnose, prevent or treat a disease posing a risk to public health, or to diagnose or treat a condition of public safety concern. Those entitled to PHPS coverage include refugee claimants from DCO countries whose claims were filed after December 15, 2012, refugee claimants whose claims have been suspended while they are under investigation for possible inadmissibility, and failed refugee claimants.

The applicants asserted, inter alia , that the 2012 modifications to the IFHP were unlawful as the orders in council were ultra vires the prerogative powers of the Governor in Council, and that prior consultations and past practice created a legitimate expectation on the part of stakeholders that substantive changes would not be made to the IFHP without prior notice and consultation with interested parties; that the 2012 changes breached Canada’s international obligations; and that the changes violate sections 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms (Charter) in a manner that cannot be saved under

section 1 of the Charter. The main issues were whether the 2012 OICs were ultra vires the executive branch of government; whether the Governor in Council breached its duty of procedural fairness; whether the 2012 changes to the IFHP violate sections 7 , 12 and 15 of the Charter ; and whether any breaches of Charter rights could be saved under

section 1 of the Charter. Held , the application should be allowed. The applicants Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, and Justice for Children and Youth (JFCY) met the test for public standing articulated by the Supreme Court of Canada in Canada (Attorney General) v.

Downtown Eastside Sex Workers United Against Violence Society : the present case raised serious justiciable issues; the applicant JFCY was engaged with the issues raised by the application, insofar as it affected the rights of children; and granting public interest standing to the three applicant organizations best allowed for the reasonable and effective litigation of the issues. The 2012 OICs were not ultra vires the prerogative powers of the Governor in Council.

The question here was 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 the Immigration and Refugee Protection Act (IRPA) and the Canada Health Act . While the funds for the IFHP are appropriated by Parliament, the terms and conditions under which they are disbursed are determined by the Governor in Council.

Any Crown prerogative that may have existed to make executive decisions regarding the expenditure of public funds on health care for those seeking the protection of Canada has not been displaced or extinguished by either IRPA or the Canada Health Act . The Crown prerogative can only be abolished or exhausted by clear words, or by necessary implication from words, in a statute. There is nothing in IRPA that deals with the provision of health care to individuals governed by the legislation.

The fact that the 2012 OICs may adopt terminology and concepts from IRPA such as “refugee” and “designated country of origin” does not mean that IRPA has occupied the field of creating and funding a scheme to provide insured health care benefits to refugee claimants, refugees, and failed claimants. There is no 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.

There was no duty of procedural fairness owed to stakeholders in connection with the changes made to the IFHP, whether as a result of a legitimate expectation or the nature of the rights affected by the 2012 OICs. The applicants did not adduce 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. No duty of fairness was owed by the government in the exercise of its legislative functions.

The 2012 OICs implementing the modifications to the IFHP were clearly “legislative and general”, and did not give rise to participatory rights on the part of what was clearly an amorphous and potentially infinite group of stakeholders. The applicants’

section 7 Charter claim had to be dismissed as what they sought was to impose a positive obligation on the Government of Canada to fund health care for those seeking the protection of Canada. To establish a breach of

section 7 of the Charter, the applicants had to demonstrate that the government action in issue deprives individuals of their right to life, liberty, security of the person; and, if so, that this deprivation was not carried out in accordance with the principles of fundamental justice. The law does not currently recognize a

section 7 Charter right to state-funded health care. It is well established in Canadian case law that the Charter does not impose positive obligations on governments to provide social benefits programs such as health insurance in order to secure their life, liberty or security of persons. The applicant’s argument that it was the decision to cut or eliminate the IFHP benefits available to affected individuals that made their claim reviewable under

section 7 of the Charter has been rejected in a number of cases. Consequently, the exercise of the discretionary power of the Governor in Council in enacting the IFHP was not reviewable under the Charter by virtue of the changes that were made to the Program in 2012. There is nothing in the 2012 IFHP that limits the ability of those seeking the protection of Canada to spend their own money to obtain health care. The cuts to health insurance coverage effected through the 2012 modifications to the IFHP violated

section 12 of the Charter . The questions that needed to be determined were whether those seeking the protection of Canada are being subjected to “treatment” within the meaning of

section 12 , and whether any such treatment is “cruel and unusual”. The decision to change the IFHP was not a neutral decision taken by the Governor in Council that has only incidentally had a negative impact on historically marginalized individuals who were covered under the former IFHP.

Rather, the executive branch of government intentionally targeted an admittedly vulnerable, poor and disadvantaged group for adverse treatment, making the 2012 changes to the IFHP for the express purpose of inflicting predictable and preventable physical and psychological suffering on many of those seeking the protection of Canada. One of the articulated objectives of the 2012 OICs was to deter the supposed abuse of the refugee system.

Thus, through the introduction of the 2012 changes to the IFHP, the Governor in Council intentionally tried to make life harder for vulnerable, poor and disadvantaged individuals who have lawfully come to Canada. It did this in order to encourage these individuals to leave the country more quickly once their refugee claims have been rejected. This intentional targeting distinguished 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.

The actions of the executive branch of government at issue here constituted “treatment” for the purposes of

section 12 of the Charter. This conclusion is consistent with the international case law. The affected individuals were being subjected to treatment that is “cruel and unusual”. With respect to the question of whether the treatment goes beyond what is necessary to achieve a legitimate aim, while deterring abuse of the refugee system is a legitimate goal, it was not shown that the 2012 changes to the IFHP were necessary to achieve the government’s aims.

There was no persuasive evidence to show that the changes to the eligibility and coverage provisions of the IFHP have served to deter unmeritorious claims, thereby reducing the cost of the Program. As a consequence, it could not be said that the 2012 changes to the IFHP were necessary to achieve a legitimate aim. The cuts to the IFHP were arbitrary and of limited social value. The cruelty of the changes to the IFHP was especially evident insofar as they affect children.

While the Convention on the Rights of the Child (Convention) has not been incorporated into Canadian law, it is nevertheless a valuable interpretive aid in determining whether there has been a breach of the Charter. The treatment of children under the new regime does not conform to

article 6 , paragraph 2 of the Convention, which requires Canada to act in the best interests of children, and codifies its obligation as a signatory to ensure to the maximum extent possible, the survival and development of children. Denying health care insurance coverage to children as a means of affecting the behaviour of their parents and others constitutes cruel and unusual treatment. Putting individuals affected by the 2012 cuts to the IFHP in the position where they have to beg for lifesaving medical treatment is demeaning. It sends the message that their lives are worth less than the lives of others. It is cruel and unusual treatment that violates

section 12 of the Charter. While it is open to government to assign priorities and set limits on social benefit plans such as the IFHP, the intentional targeting of an admittedly poor, vulnerable and disadvantaged group takes this situation outside the realm of ordinary Charter challenges to social benefit programs. The changes made to the IFHP through the promulgation of the 2012 OICs violate subsection 15(1) of the Charter , both in their purpose and in their effect. The test to be used in identifying whether there has been a

section 15 violation is whether an applicant can show that the government has made a distinction based on an enumerated or analogous ground and that the distinction’s impact on the individual or group creates a disadvantage by perpetuating prejudice or stereotyping. The 2012 IFHP draws a distinction, on its face, as to the level of health insurance coverage that will be provided to those seeking the protection of Canada based, in part, on the nation from which the claimant comes.

The 2012 IFHP provides a lesser level of health insurance coverage to refugee claimants from DCO countries than is afforded to refugee claimants from non-DCO countries, thereby singling out refugee claimants from DCO countries for adverse differential treatment. Although there may be no obligation on the Governor in Council to provide health insurance coverage to those seeking the protection of Canada, once it chooses to provide such a benefit, “it is obliged to do so in a non-discriminatory manner”.

The eligibility requirements established by the 2012 OICs resulted in unequal access to that benefit, providing an inferior level of benefits to some IFHP beneficiaries based on the claimant’s nation of origin. The question then was whether this unequal access constituted discrimination on the basis of the “national origin” of the claimants. Subsection 15(1) of the Charter prohibits discrimination on the basis of national or ethnic origin. The use of the disjunctive “or” suggests that the two terms are not synonymous.

An individual can have one national origin while having a different, or even several different ethnic origins. The plain meaning of the term “national origin” is broad enough to include people who are not only born in a particular country, but who come from that country. Indeed, such an

interpretation is consistent with the term used in

section 109.1 of IRPA . This

interpretation of “national origin” for the purposes of subsection 15(1) of the Charter as encompassing a prohibition on discrimination between classes of non-citizens based upon their country of origin is one that is also consistent with the provisions of the United Nations Convention Relating to the Status of Refugees ,

Article 3, which prohibits discrimination against refugees based upon their country of origin. The concept of a “designated country of origin” is one that is created by subsection 109.1(1) of IRPA, which allows the Minister of Citizenship and Immigration to designate countries for certain purposes under the Act. That does not, however, serve to insulate the 2012 changes to the IFHP from scrutiny under

section 15 of the Charter. It was difficult to understand how the DCO/non-DCO distinction in the IFHP could 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 that the tiered coverage structure of the IFHP corresponds to the reality of refugee claimants from DCO countries, or that there is a correlation between the distinction drawn in the IFHP and the disadvantage suffered by refugee claimants from DCO countries.

As a consequence, it could not be said that the distinction between refugee claimants from DCO countries and refugee claimants from non-DCO countries contributes to the stated purpose of “amelioration of the health conditions of refugee claimants, refugees and failed claimants in particular circumstances of need in Canada”. This distinction creates a disadvantage by perpetuating prejudice or stereotyping and could not be saved as an “ameliorative program” contemplated by subsection 15(2) of the Charter. It 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. The rights violations resulting from the 2012 changes to the IFHP were not justified under

section 1 of the Charter as a reasonable limit prescribed in a free and democratic society. The 2012 changes to the IFHP had to 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 were cost containment; fairness to Canadians; the protection of public health and safety; and of the integrity of Canada’s immigration system. Some of these objectives, including cost containment and protecting the integrity of Canada’s immigration system were pressing and substantial. The next step was to determine whether the impairment of the

section 12 and

section 15 rights at issue in this case was proportional to the importance of the government’s objectives. With respect to many of the stated objectives, it was not. However, while there were significant problems with the evidence adduced by the respondents as to the cost savings that will allegedly be achieved as a result of the 2012 changes to the IFHP, the effect of the 2012 changes to the IFHP has been to reduce the number of people eligible for benefits under the IFHP.

To that extent, it was reasonable to suppose that the cuts may result in a reduction of costs to the Program, and the changes to the IFHP were thus rationally connected to the goal of cost containment. As to protecting the integrity of Canada’s immigration system, the respondents’ claim that the availability of health care in Canada operates as a “pull factor” for refugee claimants from DCO countries was difficult to reconcile with their argument that refugee claimants from DCO countries do not need health insurance coverage while they are in Canada because they can get comparable health care back home.

However, all that is required at the “rational connection” stage is that it be “reasonable to suppose” that the changes to the IFHP may further the government’s goal of preventing abuse of the immigration system. It was. The unavailability of medical care in other countries can and has provided an incentive for some individuals to seek to stay in Canada after their refugee claims have failed. As a consequence, the 2012 changes to the IFHP were found to be rationally connected to the objective of protecting the integrity of Canada’s refugee determination system and deterring its abuse.

As to minimal impairment, there was no reliable evidence of the extent to which the 2012 changes to the IFHP would result in cost savings at the federal level. The respondents did not show that there were no alternatives to cutting the benefits to the IFHP that could reasonably achieve the government’s goal of cost containment “in a real and substantial manner”.

With respect to protecting the integrity of Canada’s immigration system, by devoting additional resources to the timely removal of failed refugee claimants, the Government of Canada can achieve its objective of faster departures without compromising the health and safety of those who have come to Canada seeking its protection. It cannot be said that the IFHP beneficiaries who only receive HCC level benefits or only have health insurance coverage for conditions that pose a threat to public health or public safety have minimally impaired

section 12 and 15 Charter rights. As a consequence, it was not demonstrated that the changes made to the IFHP through the promulgation of the 2012 OICs minimally impair the Charter rights of those seeking the protection of Canada. Turning to the final stage of the

section 1 analysis, i.e. whether there is proportionality between the deleterious effects of the program and its salutary objectives, while the protection of public health and public safety is a salutary objective of the IFHP, taking away health insurance coverage for conditions that pose a risk to public health or public safety from those seeking the protection of Canada who are only entitled to a PRRA does nothing to advance that objective.

It cannot be said that the beneficial impact of the 2012 changes to the IFHP in terms of cost containment, fairness to Canadian taxpayers, and protecting the integrity of Canada’s refugee determination process outweighs the negative impact of the 2012 changes to the IFHP on the constitutional rights of those seeking the protection of Canada. The orders in council that created the 2012 IFHP were declared inconsistent with sections 12 and 15 of the Charter and of no force or effect. The operation of this declaration was suspended for a period of four months.

The circumstances of this case came within the exceptional situation that was identified by the Supreme Court in Canada (Attorney General) v. Hislop where a

section 24 Charter remedy was appropriate, notwithstanding that a declaratory remedy under

section 52 of the Constitution Act, 1982 was also granted. The respondents were thus ordered to provide the applicant Hanif Ayubi with health insurance coverage that is equivalent to that to which he was entitled under the provisions of the pre-2012 IFHP. STATUTES AND REGULATIONS CITED Balanced Refugee Reform Act , S.C. 2010, c. 8. Canada Health Act , R.S.C., 1985, c. C-6. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2( b ), 7 , 11( b ), 12 , 15 , 24. Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1). Continuing Care Act , R.S.B.C. 1996, c. 70. Controlled Drugs and Substances Act , S.C. 1996, c. 19. Criminal Code , R.S.C., 1985, c. C-46. Faster Removal of Foreign Criminals Act , S.C. 2013, c. 16. Federal Courts Rules , SOR/98-106, rr. 3, 52.2, Sch. Health Insurance Act , R.S.O. 1990, c. H.6.

Immigration Act, R.S.C., 1985, c. I-2. Immigration Act (The), S.C. 1952, c. 42. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 87.4(1), 97, 99(3). Immigration and Refugee Protection Regulations, SOR/2002-227, s. 206(2).

Interpretation Act, R.S.C., 1985, c. I-21, s. 17. Old Age Security Act, R.S.C., 1985, c. O-9. Order Amending the Order Respecting the Interim Federal Health Program, 2012, SI/2012-49, s. 3. Order in Council P.C. 1952-4/3263. Order in Council P.C. 1957-11/848. Order Respecting the Interim Federal Health Program, 2012, SI/2012-26, ss. 1 “disease posing a risk to public health”, “health carecoverage”, “public health or public safety health coverage”, 4(3), 7. Protecting Canada’s Immigration System Act, S.C. 2012, c. 17. R.R.O. 1990, Reg. 552, s. 28.4(2)(a).

Rules Amending the Federal Courts Rules (Expert Witnesses), SOR/2010-176. TREATIES AND OTHER INSTRUMENTS CITED Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221, Art. 3. Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Arts. 2, 3, 6. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Arts. 3, 7. CASES CITED followed: Toussaint v.

Canada (Attorney General), 2010 FC 810, [2011] 4 F.C.R. 367, affd 2011 FCA 213, [2013] 1 F.C.R. 374, leave to appeal toS.C.C. refused [2012] 1 S.C.R. xiii. distinguished: Hospitality House Refugee Ministry Inc. v. Canada (Attorney General), 2013 FC 543, 284 C.R.R. (3d) 156; Tanudjaja v. Canada(Attorney General), 2013 ONSC 5410 , 116 O.R. (3d) 574; Grant v. Canada (Attorney General), , 77 O.R.(3d) 481 (S.C.J.); Lacey v. British Columbia, (B.C.S.C.); Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, (1993), 107 D.L.R. (4th) 342; Pawar v.

Canada, , 67 C.R.R. (2d) 284(F.C.A.). applied: Apotex Inc. v. Pfizer Canada Inc., 2014 FCA 54, 117 C.P.R. (4th) 401; Bristol-Myers Squibb Company v. Apotex Inc., 2011 FCA 34, 91C.P.R. (4th) 307; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Finlay v. Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607, (1986), 33 D.L.R. (4th) 321; Canada (Attorney General) v. Downtown Eastside Sex WorkersUnited Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Manitoba Metis Federation Inc. v. Canada (Attorney General),2013 SCC 14, [2013] 1 S.C.R. 623; Canadian Council of Churches v.

Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236, (1992), 88 D.L.R. (4th) 193; Eldridge v. British Columbia (Attorney General), (SCC),[1997] 3 S.C.R. 624, (1997), 151 D.L.R. (4th) 577; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1S.C.R. 3; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; RJR-MacDonald Inc. v.Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, (1995), 127 D.L.R. (4th) 1; Gosselin v. Quebec (AttorneyGeneral), 2002 SCC 84, [2002] 4 S.C.R. 429; R. v. Malmo-Levine; R. v.

Caine, 2003 SCC 74, [2003] 3 S.C.R. 571; Wynberg v. Ontario,, 82 O.R. (3d) 561 (C.A.); Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, 91 O.R. (3d) 412; Dunmore v.Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Adam, R. (on the application of) v. Secretary of State for the HomeDepartment, [2005] UKHL 66; R. v. Smith (Edward Dewey), (SCC), [1987] 1 S.C.R. 1045, (1987), 40 D.L.R. (4th) 435;Plyler v. Doe, 457 U.S. 202 (1982); Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, (1989), 56D.L.R. (4th) 1; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Law v.

Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th) 1; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396;Quebec (Attorney General) v. A., 2013 SCC 5, [2013] 1 S.C.R. 61; Alberta (Aboriginal Affairs and Northern Development) v.Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; Lovelace v. Ontario, , 33 O.R. (3d) 735 (C.A.), affd 2000 SCC 37,[2000] 1 S.C.R. 950; The Queen v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200; Alberta v.Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Canada (Attorney General) v.

Hislop, 2007 SCC 10, [2007] 1S.C.R. 429; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405. considered:

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Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, (1985), 24 D.L.R. (4th) 536; Amax Potash Ltd. et al. v. Government of Saskatchewan, (SCC), [1977] 2 S.C.R. 576, (1976), 71 D.L.R. (3d) 1; New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46, (1999), 216 N.B.R. (2d) 25; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; R. v.Askov, (SCC), [1990] 2 S.C.R. 1199, (1990), 75 O.R. (2d) 673; Inglis v. British Columbia (Minister of Public Safety),2013 BCSC 2309, 298 C.R.R. (2d) 35; Auton (Guardian ad litem of) v.

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Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877, (1997), 38 O.R.(3d) 735; Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC54, [2003] 2 S.C.R. 504; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; Canada (Human RightsCommission) v. Taylor, (SCC), [1990] 3 S.C.R. 892, (1990), 75 D.L.R. (4th) 577; Libman v. Quebec (Attorney General), (SCC), [1997] 3 S.C.R. 569, (1997), 151 D.L.R. (4th) 385; Schachter v. Canada, (SCC), [1992] 2S.C.R. 679, (1992), 93 D.L.R. (4th) 1. referred to: Saint Honore Cake Shop Limited v.

Cheung’s Bakery Products Ltd., 2013 FC 935; National Justice Compania Naviera S.A. v. PrudentialAssurance Co. Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd’s Rep. 68 (Q.B. (Com. Ct.)); Canada v. Stanley J. Tessmer LawCorporation, 2013 FCA 290, 297 C.R.R. (2d) 255; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36,[2013] 2 S.C.R. 559; Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; Winterhaven StablesLimited v.

Canada (Attorney General), 1988 ABCA 334 , 91 A.R. 114, leave to appeal to S.C.C. refused [1989] 1 S.C.R. xvi;YMHA Jewish Community Centre of Winnipeg Inc. v. Brown, (SCC), [1989] 1 S.C.R. 1532, (1989), 59 Man.R. (2d) 161;Reference Re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, (1991), 83 D.L.R. (4th) 297; Ross RiverDena Council Band v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816; Operation Dismantle Inc. et al. v. The Queen et al., (SCC), [1985] 1 S.C.R. 441, (1985), 18 D.L.R. (4th) 481; R. (on the application of) Bhatt Murphy (a firm) v.

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Davidson, (SCC), [1989] 1 S.C.R.1038, (1989), 59 D.L.R. (4th) 416; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Mohamed v. Canada (Citizenship andImmigration), 2012 FCA 112, 432 N.R. 328; C.-W. (C.) v. Ontario Health Insurance Plan (General Manager), , 95O.R. (3d) 48 (S.C.J.); R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, (1988), 44 D.L.R. (4th) 385; Sagharian v. Ontario(Education), 2008 ONCA 411, 172 C.R.R. (2d) 105; Alvero-Rautert v. Canada (Minister of Employment and Immigration), (FC), [1988] 3 F.C. 163, (1988), 18 F.T.R. 50 (T.D.); R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v.

Mills, (SCC), [1999] 3 S.C.R. 668, (1999), 244 A.R. 201; Tobar Toledo v. Canada (Citizenship and Immigration), 2013 FCA 226, 454 N.R.139; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1S.C.R. 222; Forrest v. Canada (Attorney General), 2006 FCA 400, 357 N.R. 168; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527;Harper v.

Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Reference re Remuneration of Judges of the Provincial Courtof Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, (1997), 156 Nfld. & P.E.I.R. 1; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489.

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application for judicial review in respect of a decision by the Governor in Council to pass two orders in council in 2012 (Order in Council P.C. 2012-433, Order Respecting the Interim Federal Health Program, 2012 , SI/2012-26, and Order in Council P.C. 2012-945, Order Amending the Order Respecting the Interim Federal Health Program, 2012 , SI/2012-49) that significantly reduced the level of health care coverage for refugee claimants and others who have come to Canada seeking its protection through the Interim Federal Health Program, and all but eliminated it for others pursuing risk-based claims.

Application allowed. APPEARANCES Lorne Waldman and Adrienne Smith for applicants Canadian Doctors for Refugee Care, Daniel Garcia Rodrigues and Hanif Ayubi. Pia Zambelli and Jacqueline Swaisland for applicant Canadian Association of Refugee Lawyers. Mary Birdsell and Emily Chan for applicant Justice for Children and Youth. Marie-Louise Wcislo , Neeta Logsetty and Hillary Adams for respondents. SOLICITORS OF RECORD Waldman & Associates , Toronto, for applicants Canadian Doctors for Refugee Care, Daniel Garcia Rodrigues, Hanif Ayubi and the Canadian Association of Refugee Lawyers.

Justice for Children and Youth , Toronto, for applicant Justice for Children and Youth. Deputy Attorney General of Canada for respondents. TABLE OF CONTENTS Paragraph I. Introduction 1 II. The Parties 17 A. Canadian Doctors for Refugee Care 17 B. Canadian Association of Refugee Lawyers 19 C. Justice for Children and Youth 21 D. Hanif Ayubi 22 E. Daniel Garcia Rodrigues 25 F. The Respondents 29 III. Background 31 A. The Pre-2012 IFHP 32 B. The Decision to Reform the IFHP 49 C. The 2012 IFHP 57

(1) Expanded Health Care Coverage 67

(2) Health Care Coverage 69

(3) Public Health or Public Safety Health Care Coverage 75

(4) PRRA-only Claimants 79

(5) Ministerial Discretion 80 D. The Impact of the 2012 Changes to the IFHP 88

(1) The Expert Evidence 89

(2) The Public Reaction 126

(3) Confusion in the Health Care Profession 133

(4) The Systemic Consequences of the 2012 Changes to the IFHP 142

(5) The Impact on Individual Claimants 157 (

a) The Frailties in the Applicants’ Non-expert Evidence 158 (

b) Mr. Ayubi’s Experience 174 (

c) Mr. Garcia Rodrigues’ Experience 198 (

d) Saleem Akhtar 215 (

e) Victor Pathiyage Wijenaike 221 (

f) Rosa Maria Aylas Marcos de Arroyo 229 (g) “Sarah” 234 (h) “BB” 241 (

i) Manavi Handa’s “Second Case” 247 (

j) Conclusion as to the Impact of the 2012 Changes to the IFHP on Individual Claimants 250 E. Alternative Sources of Health Care 251

(1) Provincial and Territorial Health Insurance 255

(2) Self-funding 269

(3) Community Health Centres and Refugee Shelters 273

(4) Midwifery Services 276

(5) Hospital Emergency Rooms 277

(6) Social Assistance 279

(7) Charity 284

(8) Section 7 Discretionary IFHP Coverage 287

(9) Conclusion Regarding the Alternatives to IFHP-Funded Health Care 294 IV. Issues 302 V. Standing 304 A. Serious Justiciable Issue 312 B. Does JFCY Have a Genuine Interest in this Proceeding? 314 C. Is Granting Public Interest Standing to the Applicant Organizations a Reasonable and Effective Way to Bring these Issues Before the Court? 327 VI. Are the 2012 OICs Ultra Vires the Governor in Council? 354 A. The Applicants’ Arguments 355 B. The Respondents’ Arguments 371 C. Analysis 377 VII.

Did the Government Breach its Duty of Procedural Fairness by Failing to Provide Notice and an Opportunity to Participate Prior to the Proclamation of the 2012 OICs? 403 A. The Applicants’ Arguments 405 B. The Respondents’ Arguments 418 C. Analysis 421 VIII. The International Law Arguments 441 IX. Introduction to the Charter Issues 476 X. Do the 2012 Changes to the IFHP Violate

Section 7 of the Charter ? 493 A. Positive Rights and

Section 7 of the Charter 511 B. Conclusion with respect to the Applicants’

Section 7 Claim 571 XI. Do the 2012 Changes to the IFHP Violate

Section 12 of the Charter ? 572 A. Do the 2012 Changes to the IFHP Constitute “Treatment” within the Meaning of

Section 12 of the Charter ? 577 B. Are the 2012 Changes to the IFHP “Cruel and Unusual” within the Meaning of

Section 12 of the Charter ? 612 C. Conclusion with Respect to

Section 12 of the Charter 689 XII. Do the 2012 Changes to the IFHP Violate

Section 15 of the Charter ? 692 A. Legal Principles Governing

Section 15 Claims 706 B. Does the 2012 IFHP Draw a “Distinction” Between Refugee Claimants from DCO Countries and Non-DCO Countries on the Basis of an Enumerated or Analogous Ground? 729 C. Is the Subsection 15(1) Breach Saved on the Basis that the IFHP is an Ameliorative Program? 778 D. Do the 2012 OICs Create a Disadvantage by Perpetuating Prejudice or Stereotyping? 810 E. Conclusion on the Subsection 15(1) Issue Relating to DCO Claimants 49 F. Does the 2012 IFHP also Violate Subsection 15(1) of the Charter on the Basis of Immigration Status? 852 G. Conclusions on the

Section 15 Issues 871 XIII. Have the Breaches of Sections 12 and 15 been Justified by the Respondents under

Section 1 of the Charter ? 873 A. Legal Principles Governing

Section 1 of the Charter 878 B. What were the Objectives of the Changes to the IFHP Brought About by the 2012 OICs? 884 C. Are the Objectives of the 2012 Changes to the IFHP “Pressing and Substantial”? 895

(1) Cost Containment 897

(2) Fairness to Canadians 912

(3) Protecting Public Health and Public Safety 929

(4) Protecting the Integrity of Canada’s Immigration System 930 D. Is the Impairment of the Charter Rights at Issue Proportional to the Importance of the Objectives of the 2012 OICs? 933

(1) Are the 2012 Changes to the IFHP Rationally Connected to the Objectives of the Governor in Council? 938 (

a) Cost Containment 944 (

b) Fairness to Canadians 946 (

c) Protecting Public Health and Safety 953 (

d) Protecting the Integrity of Canada’s Immigration System 963

(2) Do the 2012 Changes to the IFHP Impair Charter Rights Minimally or “As Little as Possible”? 984 (

a) Cost Containment 997 (

b) Protecting the Integrity of Canada’s Immigration System 1018 (

c) Other Minimal Impairment Arguments 1028

(3) Are the 2012 Changes to the IFHP Proportionate in their Effect? 1044 Paragraph

(4) Conclusion with Respect to

Section 1 Justification 1075 XIV. Final Conclusion 1076 XV. Remedy 1086 Paragraph The following are the reasons for judgment and judgment rendered in English by M actavish J.: I. Introduction [ 1 ] For more than 50 years, the Government of Canada has funded comprehensive health insurance coverage for refugee claimants and others who have come to Canada seeking its protection through the Interim Federal Health Program.

In 2012, the Governor in Council passed two orders in council 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. [ 2 ] The effect of these changes is to deny funding for lifesaving medications such as insulin and cardiac drugs to impoverished refugee claimants from war-torn countries such as Afghanistan and Iraq. [ 3 ] The effect of these changes is to deny funding for basic pre-natal, obstetrical and paediatric care to women and children seeking the protection of Canada from “designated countries of origin” such as Mexico and Hungary. [ 4 ] The effect of these changes is to deny funding for any medical care whatsoever to individuals seeking refuge in Canada who are only entitled to a pre-removal risk assessment, even if they suffer from a health condition that poses a risk to the public health and safety of Canadians. [ 5 ] The applicants assert that the 2012 modifications to the Interim Federal Health Program are unlawful as the orders in council are ultra vires the prerogative powers of the Governor in Council.

They also say that prior consultations and past practice created a legitimate expectation on the part of stakeholders that substantive changes would not be made to the Interim Federal Health Program without prior notice and consultation with interested parties.

According to the applicants, the Governor in Council breached its duty of procedural fairness by making radical changes to the Interim Federal Health Program without any advance notice or consultation. [ 6 ] The applicants further submit that the 2012 changes to the Interim Federal Health Program breach Canada’s obligations under the 1951 United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] and the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3].

In addition, the applicants say, the changes violate sections 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms [being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter)] in a manner that cannot be saved under

section 1 of the Charter. [ 7 ] For the reasons that follow, I have concluded that the orders in council are not ultra vires the prerogative powers of the Governor in Council, nor has there been a denial of procedural fairness in this case. [ 8 ] I have also concluded that the applicants’

section 7 Charter claim cannot succeed as what they seek is to impose a positive obligation on the Government of Canada to fund health care for individuals seeking the protection of Canada. The current state of the law in Canada is that

section 7 guarantees to life, liberty and security of the person do not include a positive right to state funding for health care. [ 9 ] I have, however, concluded that while it is open to government to assign priorities and set limits on social benefit plans such as the Interim Federal Health Program, the intentional targeting of an admittedly poor, vulnerable and disadvantaged group for adverse treatment takes this situation beyond the realm of traditional Charter challenges to social benefit programs. [ 10 ] With the 2012 changes to the Interim Federal Health Program, 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 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. [ 11 ] I am satisfied that the affected individuals are being subjected to “treatment” as contemplated by

section 12 of the Charter , and that this treatment is indeed “cruel and unusual”. This is particularly, but not exclusively so as it affects children who have been brought to this country by their parents. The 2012 modifications to the Interim Federal Health Program 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. They violate

section 12 of the Charter. [ 12 ] I have also concluded that the 2012 changes to the Interim Federal Health Program violate

section 15 of the Charter inasmuch as the Program now provides a lesser level of health insurance coverage to refugee claimants from designated countries of origin in comparison to that provided to refugee claimants from non-designated countries of origin. This distinction is based upon the national origin of the refugee claimants, and does not form part of an ameliorative program. [ 13 ] Moreover, this distinction has an adverse differential effect on refugee claimants from designated countries of origin.

It puts their lives at risk and perpetuates the stereotypical view that they are cheats and queue-jumpers, that their refugee claims are “bogus”, and that they have come to Canada to abuse the generosity of Canadians.

It serves to perpetuate the historical disadvantage suffered by members of an admittedly vulnerable, poor and disadvantaged group. [ 14 ] I have not, however, been persuaded that the Interim Federal Health Program violates subsection 15(1) of the Charter based upon the immigration status of those seeking the protection of Canada, as “immigration status” cannot be considered to be an analogous ground for the purposes of

section 15 . Consequently, this aspect of the applicants’

section 15 claim will be dismissed.

[ 15 ] Finally, the respondents have not demonstrated that the 2012 changes to the Interim Federal Health Program are justified under

section 1 of the Charter . [ 16 ] Consequently, the applicants’ application will be granted. II. The Parties A. Canadian Doctors for Refugee Care [ 17 ] Canadian Doctors for Refugee Care (CDRC) is a group of physicians specializing in the treatment of refugees and refugee health issues. It was formed on April 26, 2012, in response to the then-pending changes to the Interim Federal Health Program (IFHP [or Program]) that had been announced the previous day.

CDRC asserts that its members now face difficult moral, ethical and professional dilemmas as to whether to treat or continue to treat patients who no longer have IFHP coverage. [ 18 ] While CDRC’s memorandum of fact and law appears to suggest that its members have been directly affected by the changes to the IFHP, it became clear at the hearing that what it seeks is public interest standing to pursue this case. The standing issue will be addressed further on in these reasons. B.

Canadian Association of Refugee Lawyers [ 19 ] The Canadian Association of Refugee Lawyers (CARL) is an association of lawyers and academics with an interest in legal issues related to refugees, asylum seekers and the rights of migrants.

Its purposes include legal advocacy on behalf of these groups, in part through participation in public interest litigation dealing with issues affecting vulnerable refugees, asylum seekers and migrants. [ 20 ] Since its formation in 2011, CARL has been active in lobbying and public education, and it has intervened in litigation touching on the rights of refugees, asylum seekers and migrants. C. Justice for Children and Youth [ 21 ] Justice for Children and Youth (JFCY) is a non-profit legal aid clinic with a focus on the legal rights of children.

It has expertise in protecting and promoting the legal rights of children, and has experience working with child refugees. JFCY is the operating name for the Canadian Foundation for Children, Youth and the Law. D. Hanif Ayubi [ 22 ] Hanif Ayubi is one of the two individual applicants in this proceeding. Mr. Ayubi is a diabetic and a failed refugee claimant from Afghanistan. He has been in Canada since 2001 and has not been removed because Afghanistan is a “moratorium country”.

That is, the Government of Canada has suspended removals to Afghanistan because the country’s general conditions are such as to put the safety of the general population at risk. [ 23 ] Until June 30, 2012, Mr. Ayubi had coverage under the IFHP for his insulin and medical supplies, and for the medical care that he requires to manage his diabetes. After the changes to the IFHP came into effect, Mr. Ayubi no longer had health insurance coverage for any of his medical care or his medications as he is classified as a rejected refugee. [ 24 ] Mr. Ayubi works as a dishwasher and is a low-income person.

He says that he is unable to pay for the medications and the diabetic supplies that he needs to monitor his diabetes and its complications. Mr. Ayubi was eventually granted discretionary IFHP coverage by the Minister which pays for his medical services such as doctors’ appointments, but does not pay for his medication and diabetic supplies. Mr. Ayubi is currently being kept alive by free samples of insulin supplied to a community health centre by a pharmaceutical company. E. Daniel Garcia Rodrigues [ 25 ] Daniel Garcia Rodrigues [1] and his wife came to Canada from Colombia in 2007.

He claimed refugee protection based upon his fear of paramilitaries belonging to the Fuerzas Armadas Revolucionarias de Colombia (FARC) [Revolutionary Armed Forces of Columbia]. The Immigration and Refugee Board seems to have accepted that the FARC had attempted to forcibly recruit Mr. Garcia Rodrigues, but it was not persuaded that he would still be of interest to the organization. [ 26 ] While Mr. Garcia Rodrigues’ refugee claim was refused, his wife’s claim was accepted. She subsequently applied for permanent residence in Canada as a protected person, including Mr.

Garcia Rodrigues in her application. [ 27 ] Mr. Garcia Rodrigues had IFHP coverage until the changes to the IFHP came into effect on June 30, 2012. In July of 2012, he suffered a retinal detachment. Mr. Garcia Rodrigues was advised that he needed surgery, and that any delay in operating could put his vision at risk. He was scheduled for surgery in August of 2012, but the surgery was cancelled when it was determined that, as a failed refugee claimant, Mr. Garcia Rodrigues was ineligible for coverage under the IFHP. [ 28 ] Mr. Garcia Rodrigues could not afford to pay the $10 000 cost of the surgery himself.

However, his doctor ultimately agreed to operate on him for a fraction of the normal cost, in light of the fact that any further delay could have resulted in the permanent loss of Mr. Garcia Rodrigues’ vision. F. The Respondents [ 29 ] The Minister of Citizenship and Immigration is generally responsible for Canada’s immigration policy, and is also responsible for the development of strategic and operational policies and guidelines with respect to migration health.

The Minister’s Department, Citizenship and Immigration Canada (CIC), is responsible for overseeing health screening for newcomers migrating to Canada and for

managing the IFHP. CIC was also responsible for the policy review that culminated in the 2012 changes to the IFHP. [ 30 ] The Attorney General of Canada has also been named as a respondent in this matter. III. Background [ 31 ] I will address the facts giving rise to this application in greater detail as I consider each of the arguments raised by the parties. However, the following

summary will serve to provide a context for that discussion. A. The Pre-2012 IFHP [ 32 ] According to the affidavit of Sonia Le Bris, the acting manager of Migration Health Policy at CIC, even before Canada signed the 1951 United Nations Convention Relating to the Status of Refugees , it had long recognized that refugees often face more challenges than others in becoming established and self-sufficient in Canada.

It had also long been recognized that some such individuals required urgent or essential medical care soon after their arrival in this country and that they would not be able to pay for that care. [ 33 ] As a consequence, the program now known as the IFHP was created shortly after the end of the Second World War as an emergency humanitarian response in order to meet the needs of “refugee-like” individuals.

At the time, Canada had a private health care system, and the IFHP was created to fund basic and essential medical and health services for newcomers to Canada who urgently required medical care and lacked the resources to pay for it. [ 34 ] The respondents say that although the IFHP has evolved over time, the purpose of the Program has never been to provide health care coverage for everyone who comes to Canada, but rather to provide insurance coverage for urgent and essential health care to eligible beneficiaries for a limited and short duration. [ 35 ] The IFHP has always operated pursuant to an order in council (OIC) and has never been addressed in immigration legislation.

A 1952 OIC [P.C. 1952-4/3263] authorized the federal government to permit the Immigration Branch “to pay hospitalization, medical care, dental care and expenses incidental thereto, for immigrants, after being admitted to a port of entry and prior to their arrival at destination, or while receiving care and maintenance pending placement in employment, in cases where the immigrants lack the financial resources to pay these expenses themselves”. [ 36 ] In 1957, Order in Council P.C. 1957-11/848 was passed (the 1957 OIC).

It revoked the 1952 OIC and provided the authority for the IFHP until the 2012 changes came into effect on June 30, 2012.

The 1957 OIC authorized the Department of National Health and Welfare (DNHW) to pay the costs of “medical and dental care, hospitalization, and any expenses incidental thereto” for, amongst others, persons who were at any time: (b) … subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer, in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the Immigration Medical Services of the Department of National Health and Welfare. [ 37 ] Persons “subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible” were not specifically identified or defined in the 1957 OIC. [ 38 ] From 1957 to 1993, the DNHW managed what is now known as the IFHP.

With the advent of publicly funded health care in Canada in the 1950s and 1960s, and the subsequent enactment of the Canada Health Act , R.S.C., 1985, c. C-6, economic immigrants had access to provincial public health care schemes after a short qualifying residency period and the IFHP stopped funding health care for these individuals. [ 39 ] In 1993, a memorandum of understanding was signed between the DNHW and the Canada Employment and Immigration Commission (CEIC, now CIC) to transfer various programs, including the IFHP, from the DNHW to CEIC.

CEIC began delivering services under the IFHP in 1995. [ 40 ] Some provinces, notably Ontario and Quebec, had been covering the cost of health care for refugee claimants under their provincial health insurance schemes.

However, in the mid-1990s these two provinces announced that they would no longer do so, thereby increasing the cost of the Program to the federal government. [ 41 ] By 1996, the focus of the IFHP had shifted away from taking care of the medical needs of newly arrived indigent immigrants, and the Program now applied almost exclusively to refugee claimants, government-assisted refugees and others in humanitarian need. The IFHP was extended to cover members of the “deferred removal orders class” and persons detained by the newly created Canada Border Services Agency (CBSA).

Later changes extended the IFHP to provide health insurance coverage for applicants for pre-removal risk assessments (PRRAs) and for victims of human trafficking. [ 42 ] Those eligible for IFHP coverage prior to the 2012 changes also included protected persons, government-resettled refugees, privately sponsored refugees, refugee claimants, and refused refugee claimants whose negative decisions were under judicial review or appeal or who were awaiting removal from Canada.

These individuals could receive IFHP benefits until they either became eligible to receive provincial or territorial health care or left the country. No distinction was made in terms of level of coverage based upon the type of claim being advanced or the stage of the proceeding in issue. [ 43 ] Not entitled to coverage under the pre-2012 IFHP were refugee claimants and their dependent children who were not eligible to have their claims determined by the Immigration and Refugee Board, those who were determined under the pre-1993 Immigration Act [R.S.C., 1985, c.

I-2] to have “no credible basis” for a claim to refugee status, and those who had withdrawn or abandoned their claims.

[ 44 ] Under the pre-2012 IFHP, individuals were also ineligible for coverage if it was ascertained, usually in an interview at the first point of contact with the individual claiming refugee protection, that they had the means to pay for health care or if they were eligible or became eligible for provincial health insurance. [ 45 ] Those who were deemed eligible for the IFHP received an eligibility certificate valid for one year, which was typically renewable for 12-month periods. [ 46 ] For individuals claiming refugee protection at a port of entry, an eligibility certificate was usually issued at the port of entry once it was determined that the individual was eligible to make a refugee claim.

In the case of inland refugee claims, if delays were anticipated in processing the claims, inland claimants would be issued a 30-day certificate to provide them with health insurance coverage until their eligibility to make a claim was determined, at which point they would be issued a renewable eligibility certificate that was valid for one year. [ 47 ] An eligibility certificate entitled the individual to federally funded health insurance coverage for medical care of an urgent or essential nature that was roughly equivalent to the level of health care benefits that is provided to low-income Canadians on social assistance under provincial or territorial health insurance plans. [ 48 ] This included coverage for essential and emergency health services for the treatment and prevention of serious medical conditions and emergency dental conditions.

Also covered were immunizations and other forms of preventative medical care, contraception, dental and vision care, essential prescription medications, prenatal and obstetrical care and immigration medical examinations. B. The Decision to Reform the IFHP [ 49 ] Over the years, CIC had carried out several reviews of the IFHP. It made recommendations for the modernization of the Program in 1994 and again in 2004, neither of which resulted in substantial changes to the IFHP.

However, the cost of the IFHP continued to rise as a result of a general increase in the cost of health care in Canada, and the increasing number of people eligible for IFHP coverage. For example, there were 105 326 people eligible for IFHP benefits in 2003, whereas there were 128 586 people eligible for IFHP benefits in 2012. [ 50 ] The respondents also say that the original intent of the IFHP, namely to provide short- term, interim medical care to eligible individuals, had been eroded over time. The cost of the IFHP is directly affected by the length of time that people are eligible for benefits.

While the average period of IFHP eligibility was 548 days in 2003, the average eligibility period had climbed to 948 days by 2012. [ 51 ] The combined result of these factors was that the IFHP cost Canadian taxpayers $50 600 000 in 2002/2003 and almost $91 000 000 in 2009/2010. As a consequence, cost containment was a driving principle underlying the decision to reform the IFHP. [ 52 ] Another impetus for reform was this Court’s decision in Toussaint v.

Canada (Attorney General) , 2010 FC 810 , [2011] 4 F.C.R. 367 ( Toussaint (F.C.)), affd 2011 FCA 213 , [2013] 1 F.C.R. 374, leave to appeal to S.C.C. refused, [2012] 1 S.C.R. xiii. This decision traced the evolution and expansion of the IFHP since its inception, with this Court noting that the actual operation and beneficiaries of the IFHP in 2010 bore little resemblance to the terms of the 1957 OIC. The Court further observed that the current operation of the IFHP was based largely upon CIC’s own internal policies, and took little heed of the 1957 OIC.

As a result of this decision, CIC decided that a new IFHP policy had to be grounded in a new OIC. [ 53 ] As a consequence of these and other considerations, CIC decided that the IFHP was in need of reform, and that five key principles should guide that reform. The respondents identify these principles as including the need to: i. Modernize, clarify and reaffirm the original intent of the IFHP as a temporary, interim, short-term ex gratia program; ii. Change the IFHP to ensure “fairness to Canadians”; iii. Protect public health and public safety in Canada; iv.

Defend the integrity of Canada’s refugee determination system and deter its abuse; and v. Contain the financial cost of the IFHP. [ 54 ] In September of 2010, the Minister announced that CIC would undertake a complete policy review of the IFHP. The result of this review was the April 25, 2012 announcement of major changes to the IFHP as part of the federal budget. That same day, Order in Council P.C. 2012-433, the Order Respecting the Interim Federal Health Program, 2012 [SI/2012-26] (the April 2012 OIC), was published in the Canada Gazette .

The April 2012 OIC, together with the amendments made on June 28, 2012 by Order in Council P.C. 2012-945 [ Order Amending the Order Respecting the Interim Federal Health Program, 2012 , SI/2012-49] (the amending OIC), replaced the 1957 OIC, effective June 30, 2012. These two OICs will be referred to jointly in these reasons as the “2012 OICs”. [ 55 ] The respondents say that abuse of the IFHP was “not the issue which guided or motivated the reform”.

Rather, the changes were intended to support the overall objective of refugee reform, and were “but one way in which the government could deter unfounded claims and possibly discourage failed refugee claimants from remaining in Canada when they ought to be leaving”: transcript, Vol. 3, at page 38. [ 56 ] A statement made on behalf of the then-Minister of Citizenship and Immigration shortly after the 2012 changes to the IFHP came into force provides further insight into the rationale for the modifications made to the Program. The Minister’s spokesperson explained the changes in the following terms:

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. Our Government has listened and acted. We have taken steps to ensure that protected persons and asylum seekers from non-safe countries receive health care coverage that is on the same level as Canadian taxpayers receive through their provincial health coverage, no better.

Bogus claimants from safe countries, and failed asylum seekers, will not receive access to health care coverage unless it is to protect public health and safety. Shamefully, the NDP and the Liberals support bogus and rejected asylum seekers receiving gold-plated health care benefits. We disagree. Those who have been through our fair system and [are] rejected should respect Canada’s laws and leave the country. C.

The 2012 IFHP [ 57 ] The pre-2012 IFHP provided the same level of insurance coverage to all individuals eligible for benefits, whether they were refugees, refugee claimants, failed refugee claimants, individuals only entitled to a PRRA, victims of human trafficking or immigration detainees. Coverage was available to these individuals until they either became eligible to receive provincial or territorial health insurance, or left the country. [ 58 ] The 2012 IFHP continues to provide limited, temporary health insurance coverage to: i.

Protected persons, including resettled refugees, successful refugee claimants and positive PRRA recipients; ii. Refugee claimants and rejected refugee claimants; iii. Victims of human trafficking with temporary resident permits; iv. Persons granted permanent residency as part of a public policy or for humanitarian and compassionate reasons by the Minister, and who receive income support through the resettlement assistance program or the equivalent in Quebec; and v.

Foreign nationals and permanent residents detained under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 [IRPA]. [ 59 ] However, unlike the s

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