The courts vs the Harper cabinet: This time it's over refugee health care

This morning, Federal Court of Canada Justice Anne Mactavish delivered a sharply worded judgement slamming a decision, made by Prime Minister Stephen Harper’s cabinet, to deny some refugee claimants the benefits of Canada’s publicly funded health care system.

It’s the latest clash between the Harper government and the country’s judges.

• Harper versus the Supreme Court of Canada [May 2014]
• Harper versus the judges [August 2012]
• Harper’s judicial losing streak reveals the limits of government action [April 2014]

Some quotes from the 256-page judgement [which you can read for yourself here]:

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.

The effect of these changes is to deny funding for life-saving medications such as insulin  and cardiac drugs to impoverished refugee claimants from war-torn countries such as Afghanistan and Iraq.

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.

.. 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.

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/

Justice Mactavish has given the federal government four months to change its policy. Here’s some ‘insta-reaction’ on Twitter from Emmett Macfarlane, a political scientist at the University of Waterloo:

The s12 ruling is novel, and may be ripe for appeal. So this probably isn’t over yet. #cdnpoli

— Emmett Macfarlane (@EmmMacfarlane) July 4, 2014

If the s15 infringment stems from treating different types of refugees differently, that’s an easy (lamentable) fix for the gov’t.

— Emmett Macfarlane (@EmmMacfarlane) July 4, 2014

And, here for some contrast, is what Jason Kenney, who was the immigration minister when these changes were announced in 2012, was telling the House of Commons about the cabinet decision on refugee health care:

41:1 Hansard – 185 (2012/11/26) 

Hon. Jason Kenney (Minister of Citizenship, Immigration and Multiculturalism, CPC):

Asylum claimants continue to receive comprehensive, medically necessary physician and hospital services. There has been no change in that respect. They do not, however, receive supplementary and extended benefits that are not normally available to Canadians. However, in most of the cases to which the member refers we are not talking about refugees. I repeat, they are not refugees. They are people whose claims for asylum have been rejected, people who by definition are not refugees, people who are pending deportation and are avoiding their removal. 

41:1 Hansard – 266 (2013/6/10) 

Hon. Jason Kenney (Minister of Citizenship, Immigration and Multiculturalism, CPC):

Mr. Speaker, I have listened to Canadians and I have not cut refugee health care.   We have ended gold-plated health benefits to false, rejected asylum claimants who have no legal right to be in Canada.   Most Canadians think that universal health care means health coverage for Canadians and permanent residents. Apparently the NDP thinks universal health coverage means universal, for everyone, including illegal migrants in Canada. It could not be more wrong.

41:1 Hansard – 271 (2013/6/17) 

Hon. Jason Kenney (Minister of Citizenship, Immigration and Multiculturalism, CPC):

Mr. Speaker, let us be clear. The thousands of resettled refugees whom Canada welcomes every year, the largest number per capita in the world, all receive comprehensive federal health insurance. The bona fide asylum claimants who are demonstrated to be real refugees in need of our protection receive comprehensive federal health insurance until they qualify for provincial insurance. However, those people whose claims are rejected as being from fake or bogus asylum claimants no longer receive federal health insurance. They never should have in the first place because they are here illegally, are no longer welcome in Canada and we respectfully ask that they leave.