Course:Public Law-Group 3-Section 7 of the Charter and Changes to the IFHP

Public Law
LAW 505
Section:	002
Instructor:	Robert Danay
Email:	rdanay@mail.ubc.ca
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How do you think a Canadian court should respond to the claim that the cuts to benefits under the Interim Federal Health Program violate s. 7 of the Charter?

Outline:

• Background of the issue

• Section 7 of the Charter

• Is s. 7 violated?

• Outcomes from Chaoulli’s case

• Application of outcomes to IFHP

• Conclusion

Analysis:

Government made changes to Interim Federal Health Program, which was administered by Citizenship and Immigration Canada. The altered program denied basic, emergency and life-saving medical care to refugee claimants who have lawfully sought Canada’s protection. These changes deeply affect the marginalized refugee people of Canada; especially people with prior medical conditions that lack resources and knowledge, these changes may have deadly consequences for them.

Section 7 of the Charter suggests “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 principles of fundamental justice.”

We are of the view that the cuts by the federal government clearly affect the life, liberty and security of the marginalized people. People are likely to suffer under the new policy. This policy is limiting the life, liberty and security of refugees, hence a clear infringement of s. 7 of the Charter.

In Chaoulli case that 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 onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair”

The new policy was not rationally justified by the government. Although the government has not given any explicit reason for the policy but it is evident the government may be trying to discourage false refugee claims. However, there is no rational connection between the amendments to the policy and the evidentiary purpose of the government. There is no evidence that indicates decrease in false refugee claims as a result of the amendments.

The Supreme Court of Canada had also made clear in the Chaoulli decision that “denying medical care can increase the risk of medical complications and cause severe psychological stress that threaten the security of the person and can even lead to death, in violation of section 7.”

Denying basic medical care to people who have lawfully sought protection in Canada is inconsistent with the basic principles of fundamental justice, hence a clear infringement of s. 7. These are standards far below any democratic country should provide for any human being regardless of their status in the country. The basic necessities should not be revoked until the refugees exhaust all their legal options to remain in Canada.

As far as the taxpayer’s money is concerned, there was no benefit to the taxpayers. The government transferred the tax to other expenditures, which is also not justifiable (cutting down on basic medical necessities to spend elsewhere). On the other hand, the medical emergency cost in the long run could result in much more costs than the preventive care that is being eliminated under this policy.

Keeping in view the previous decisions of Supreme Court of Canada and the facts, we believe the amendments to the IFHP are arbitrary and inconsistent with the principles of justice. They infringe rights guaranteed by the Charter. These changes are also a violation of international law. The court should not hesitate to strike down the policy changes based on the facts of the case. The court is in a position to make fully informed decision based on the amount of information available.

Reflecting on various perspectives, including those raised by Petter and Young, what are the risks and advantages that arise when s. 7 is used to advance the interests of marginalized communities?

Section 7 of the Charter of Rights and Freedoms states:

"Everyone has the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The wording of section seven is attractive to almost anyone who feels that their rights have been violated, and, correspondingly, the section has been the basis of arguments raised in much Charter jurisprudence. . In the instant case, the applicants (Canadian Doctors for Refugee Care, et al.) are making the argument that changes to the Interim Federal Health Program (IFHP) will result in certain individuals not having access to basic healthcare.  The applicants further argue that the drop in access to healthcare constitutes a breach of these individual's protected rights to life and security under section seven of the Charter.

However, it would appear that the jury is still out, so to speak, on whether founding an argument on section seven is always entirely prudent or effective .  Legal scholars have explored the both advantages and disadvantages of section seven.

In terms of advantages, Margot Young, in her article Context, Choice and Rights: PHS Community Services Society v. Canada (Attorney General), highlights some facets of section seven of the Charter which may serve beneficial to potential complainants.  Firstly, Young notes that the scope of section seven remains fairly vast and the limitation of its application are not entirely known.  The advantages of such a situation are obvious in that the greater the potential scope of the Charter right in question, the more likely that a potential claimant may be able to argue that that Charter right guarantees them protection on the issue in question.  A second, advantage flows from the one mentioned above.  Due to the fact that it is comparatively easy to argue that one's section seven rights have been breached, a marginalized community may have an easier time getting their case heard and, therefore, putting their issue in the public eye.  Referencing the PHS case, and suggests that via that case drawing closer attention to the issues surrounding the Insite supervised injection site, and injection drug use in general, that this resulted in increased public awareness as well as support for Insite and served to essentially gentrify the issues discussed.

However, as Young also notes there can also be pitfalls associated with the use of section seven of the Charter.  One of these disadvantages can be seen as the mirror image effect of its unknown scope.  The more complainants attempt to argue that section seven protects them, the more narrowed and constrained the scope of section seven will become as judgments continue to clarify its boundaries.  Young notes that the PHS case may actually end up restricting the application of section seven to future cases because much of the judgment which favoured PHS' argument that section seven was engaged focused on the injection drug users lack of choice.  Further elaborating on this, Young states that:

"But by using an understanding of addiction and Insite use that removes complainant choice from the calculus of reasonable responsibility for the outcome at issue, the courts leave open the possibility that the presence of choice—in another scenario—might result in just the kind of disentitlement for which the government pleads in [the PHS ] case."

Applying such a distinction to the issue which the applicants wish considered under judicial review, the outcome could work against their aspirations.  If choice were the key factor in deciding whether section seven of the Charter applied or not, how would this sway the outcome of the case if the ‘choice’ (albeit likely heavily prompted by economic or humanitarian crises) of the refugees in coming to Canada is considered?

Andrew Petter, writing in his article Wealthcare: The Politics of the Charter Revisited, would also likely concur with Young's assertions that use of arguments based on section seven of the Charter can result in negative outcomes for the parties who assert them.   Petter asserts that section seven, and more broadly the Charter in general, is ineffective in protecting the rights and freedoms of Canadians because it is mostly constructed of provisions which protect rights on a negative obligation footing.  In other words, he asserts that many Charter sections do not compel the government to take positive steps in ensuring that a particular right is upheld.   Furthermore, Petter makes the allegation that, at least in so far as it is used by the judiciary, the Charter creates outcomes which are biased in favour of property rights.  Providing evidence for this stance, Petter analyzes cases like Goselin v. Quebec (A.G.), asserting that the judgment, which saw the court denying the complainant's assertion that cuts to social assistance benefits violated her rights under section seven of the Charter, showed a clear attitude being implied into the Charter that:

"the state is not implicated in the distribution and protection of property entitlements in our society."

Petter also contends Chaoulli v. Quebec (A.G.) also showcases a result which illustrates this bias.  The Chaoulli case, which saw the Supreme Court rule that inefficient health services infringed the section seven rights of Quebecers and gave them a constitutionally founded right to purchase private healthcare, seems to speak to Petter's position.  Petter again states that cases like Chaoulli speak to the Charter's ability to act as a document which places the monetary and the tangible (in this case, the opportunity to buy private healthcare) above the more intangible notions of intrinsic rights.

If this is correct, it is again prudent to think what this could mean for the outcome of the applicant's request for judicial review.  If the Charter really is a document biased towards enforcing property rights, how will this impact the assessment of the applicant's arguments which are largely based on highlighting the infringements of the rights of individuals? This, again, could result in a negative outcome.

Extrapolating from Petter's argumentation, one way in which this problem, if accurate, could be mitigated to an extent would involve placing more rights in the Charter on a positive enforcement basis.  However, one must also consider that making positive enforcement for Charter rights incumbent upon the government may simply be administratively unworkable in a country of millions of individuals.

It therefore seems that section seven of the Charter, while being an attractive argumentative base for marginalized groups or individuals, may not always be the perfect legal fit.