Course:Public Law - Unit 5.7 - Section 7 and the Provision of Health Care to Refugees

LAW 505
Section:	002
Instructor:	Robert Danay
Email:	rdanay@mail.ubc.ca
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Question 1

Section 7

The right to life, liberty and security of the person is enshrined in s. 7 of the Charter. It provides as follows: 7. 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.

Background

In 1957, the federal government enacted Order in Council OIC 1957-11/848. This Order gave rise to the Interim Federal Health Program (IFHP), which was designed to provide interim health care support to refugees, until such time as they were either accepted and therefore became eligible for provincial health care, or refused and left Canada.

The federal government assumed responsibility for the medical care of refugees, by reason of its jurisdiction over ‘aliens’ under section 91 of the Constitution Act 1867.

In 2012, the Federal Government introduced changes to the IFHP. In effect, the changes introduced deep funding cuts for privately sponsored refugees and all categories of refugee claimants. The exact level of support was based on certain refugee categories. For example, refugees from designated countries of origin would have no coverage for medical services or medications except for contagious diseases and psychotic states involving a risk to others.

The changes introduced by the Federal Government were justified on three main grounds - achieving cost savings, deterrence of bogus claims and equity (that is, to ensure that refugees did not receive better health coverage that Canadians in the same economic circumstances).

The new regime did include a mechanism by which an application could be made to the Minister for coverage in “exceptional circumstances”. However, there was no possibility of obtaining prescription medication under this mechanism – unless it concerned a condition that was a danger to public health or safety. The mechanism expressly indicated that there would be no guarantee that any applications would be processed urgently. Indeed, a recent CIC notice indicated that a request for urgent coverage could be treated as evidence that the evidence warrants Ministerial action to oppose the claim.

The evidence presented during trial established that the changes had an adverse impact on the health of those who ceased to receive health support. Indeed, a number of the cases referred to involved persons with serious health conditions, who were in very urgent need of medical care.

The Federal Court observed that neglect of these medical conditions sometimes led to medical emergencies. At that point hospitals were obliged to provide care, but such costs were borne by the provincial health care system. Such medical care is obviously at a much higher cost than the cost of preventative care.

Section 7 Analysis

Step 1 – Do the changes infringe the life, liberty or security of the person?

Charter 7 introduces a constitutional right to the “security of the person”.

In R v Morgentaler, delays in treatment giving rise to psychological and physical suffering were found to infringe a persons’ right to security of the person. In Morgentaler, the legislative scheme had the effect of delaying treatment, which had the effect of increased health risks and psychological suffering.

One point of distinction that should be noted is that Morgentaler involved a law involving criminal sanction – the present law involves no such element. As was noted by Dickson CJ in Morgentaler:

“The case law leads me to the conclusion that state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person. It is not necessary in this case to determine whether the right extends further, to protect either interests central to personal autonomy, such as a right to privacy, or interests unrelated to criminal justice.”

In Chaoulli v. Quebec (Attorney General), the law in question did not involve any threat of criminal sanction. The law provided for an effective ban on private health insurance for services provided by the public health care system. So, the nature of the law was – as it is here – administrative in nature.

Noting the difference in the nature of the law in Morgentaler and Chaoulli, McLachlin CJ in Chaoulli observed as follows:

“That the sanction in Morgentaler was criminal prosecution while the sanction here is administrative prohibition and penalties is irrelevant. The important point is that in both cases, care outside the legislatively provided system is effectively prohibited.”

The nature of the law considered in Chaoulli is similar in nature of the changes to the IFHP introduced in 2012. While neither involves the threat of criminal sanction, both have the effect of restricting access to health services. The law in Chaoulli did so by prohibiting private health insurance for services available in the public health service. The law in the present case does so by removing federal funding for health services for certain categories of person. In both cases the result is the same – absent financial support of their own, the person will be without access to medical services, with the obvious risk that their health may decline.

In the present case, the evidence has clearly established that the removal of federal health funding has had a direct impact on the health of those concerned.

In such circumstances, it must be concluded that the law is one which does infringe the security of the person.

Step 2 – Has the infringement occurred in accordance with the principles of fundamental justice?

The next step of the analysis is to consider whether the law infringes the right in accordance with the principles of fundamental justice. If it does, then there is no violation under section 7 of the Charter.

The Supreme Court elaborated on the concept of fundamental justice in Reference re Section 94(2) of the Motor Vehicle Act (BC) . Noting that sections 8-14 of the Charter are an “invaluable key to the meaning of the principles of fundamental justice”, Lamer J observed as follows:

“All have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in “the dignity and worth of the human person” (preamble to the Canadian Bill of Rights, RSC 1970, App. III) and on “the rule of law” (preamble to the Canadian Charter of Rights and Freedoms).”

One recognised principle of fundamental justice is that laws must not be arbitrary

A law is arbitrary where “it bears no relation to, or is inconsistent with, the objective that lies behind [it].” To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect.

The government has stated that the new regime was designed to achieve cost savings, deter bogus claims and provide for equity (vis-à-vis other Canadians).

In terms of cost savings - the evidence presented showed that those who were denied care often developed more serious health conditions, which required more extensive (and expensive) medical care. For that reason, it is perhaps difficult to reconcile the stated goal with the eventual outcome.

In terms of deterring bogus claims –it was noted by the Federal Court that some of those affected by the changes included children [Federal Decision at para 638]. It is difficult to accept that children might be behind bogus claims – but they are nonetheless directly affected by the restrictions introduced by the new law. Moreover, it is difficult to understand how the risk of ‘bogus’ claims is addressed by the ‘categorisation’ of refugees as set out in the new law. Is it contended that the risk of ‘bogus’ claims is somehow dependent on the country of origin? Such an approach would be offensive on the grounds that is discriminatory, both in purpose and effect.

In terms of equity – it is difficult to see how the claims of equity can be supported, given that certain categories of refugee only receive care if they present a danger to the community. Is this the basis upon which the Canadian health care system operates for other persons? No, it is not.

The nature of the law as being arbitrary in nature is compounded when one recognises that the law is directed at one of the most vulnerable sections of the community – refugees.

Given the above, we must conclude that the infringement has not occurred in accordance with the principles of fundamental justice. Indeed, the measures seem entirely punitive in nature.

Section 1 Analysis

Having concluded that the law does infringe section 7, we must next consider whether the law can be saved under clause 1. This involves application of the test developed in R. v. Oakes.

Step 1 – Pressing and substantial

The first step is to ask whether the law in question is one that is pressing and substantial.

The law in question concerned matters regarding the allocation of scarce health care resources. This is a significant matter, and one which should be properly regarded as pressing and substantial.

Step 2 – Rational connection

The second step is to ask whether the law is “internally rational”. That is, whether the limitation of the right must be rationally connected to the objective of the law in questionr.

The supposed objectives of the law have been previously discussed. In our analysis, it is questionable whether the supposed goals of cost savings, deterrence of bogus claims or equity are advanced by the law.

The current circumstance seems similar to that in Chaoulli. In that case, McLachlin CJ’s view of the evidence was that it did not establish that the prohibition on the purchase and sale of private health insurance served to protect the health care system. On that basis, McLachlin CJ decided that the rational connection element was not made out.

In similar vein, we are unable to accept that the present law serves to achieve its supposed objectives. It may provide for cost savings – at least in the first instance. However, the evidence presented shows that those who are denied health insurance may develop more serious conditions as a result. Such conditions must be treated by provincial hospitals – and so at the public’s expense.

We conclude that the rational connection element is not made out.

Having concluded that the law does not meet the requirement for a rational connection, it is not necessary for us to go further with the analysis under section 1.

Deference

In Chaoulli, McLachlin CJ noted the ‘polarising’ nature of the debate, and so accepted that “the question of deference to the government … must be addressed”.

In accepting the need to consider this question, McLachlin CJ noted that the courts have a duty to rise above the political debate. However, when government policy infringes Charter rights, “the courts cannot shy away from considering them”.

McLachlin CJ further observed that: “In short, a court must show deference where the evidence establishes that the government has assigned proper weight to each of the competing interests. Certain factors favour greater deference, such as the prospective nature of the decision, the impact on public finances, the multiplicity of competing interests, the difficulty of presenting scientific evidence, and the limited time available to the state.”

In the present case, the government has contended that one of the goals of the legislation was to achieve cost savings. This would fall within the category of public finances, and so suggest greater deference.

At trial, it was noted that the annual per-capita cost per recipient under the IFHP was $552. The evidence also showed that the withdrawal of support lead to greater health problems, which resulted in higher treatment costs – a cost that was borne by the public purpose.

As was previously noted, the claim of cost savings seems questionable. Indeed, the effect of the legislation seems to have potentially the opposite effect.

In such circumstances, deference cannot be justified on the grounds that the law relates to impact on public finances.

Conclusion

In conclusion, we find that the law infringes section 7 in a manner which is not consistent with fundamental justice.

Our analysis also indicates that the law is not one that falls within section 1 of the Charter.

Question 2

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

Introduction

Section 7 of the Charter of Rights and Freedoms provides the following: 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 .

As with every right contained in the Charter, they are not absolute. Parliament can enact legislation contrary to the Charter, if they can justify it under section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society .

Para 12 of the Federal Court judgment stated: The justification for the changes and withdrawal of coverage was said to be cost savings, deterrence of bogus claims and equity — i.e. to ensure that refugees and refugee claimants did not receive better public health coverage than Canadian residents in the same economic circumstances .

Background

The changes to the IFHP create a situation where individuals will not have access to basic and necessary health care, which will affect them both physically and psychologically thus engaging life and security of the person interests guaranteed by s. 7. (Chaoulli v Quebec, 2005 1 SCR 791; R. v. Morgenthaler, 1988 1 SCR 30)

The Federal Court went on to hold that because the refugee’s have an established status in Canada and the government in the past had assumed responsibility for providing health care coverage, section 7 was engaged. The Court held the changes were arbitrary as no rational justifications were provided for the sudden change.

Dr. Meb Rashid, founding member of Canadian Doctors for Refugee Care and medical director of the Crossroads Clinic at Women's College Hospital stated: “The Court decision [was] very clear and persuasively made the fact-based arguments frontline health workers have been making for over two years. It’s time for the government to listen”

Following the Federal Court’s ruling, the Conservative Government decided to appeal last minute.

Petter Perspective

Andrew Petter provided a number of interesting perspectives in relation to section 7 of the Charter and advancing the interests of marginalized communities. Petter organized his paper around the case of Chaoulli v Quebec, 2005 , in which the Supreme Court of Canada ruled in favor of parties seeking to legalize a two-tier system of health care so that Quebec citizens could choose to pay for private health care.

When Charter cases were first being heard following its enactment, Petter made the following observation: “At best, the Charter will divert progressive energies, inhibit market regulation, and legitimize prevailing inequalities in wealth and power. At worst, it will undermine existing programmes and block future reforms”

While the caused quite a bit of backlash at the time, that statement resonates a certain amount of truth in relation to health care for refugees as it has undermined a programme that was around since 1957. Petter made a startling statement, when he point out that “while the Charter provides Louise Gosselin no right to call upon the state to provide her with food, clothing or shelter, it provides her the right to purchase private health insurance in the marketplace…Like champagne and lobster tails, Charter rights are only available to those who can afford them”.

Petter was leading into his argument that Canada is leading down the path similar to the United States that John Hart Ely called a ‘systematic bias’, which “is embedded in the system of rights favoured by the ‘upper-middle class, from which most lawyers and judges…are drawn from”.

Petter quoted Mr. Justice Peter Seaton in his address to the graduating class of University of Victoria, when he stated: "The key is, we do not have one system for the rich and another for the poor. When people in authority are making decisions about health care, they are dealing with health care for themselves and their families. So long as tat is the case, we will have a good system. It seems as though the Minister of Health and the Conservative Government were only thinking of dollar signs when they made the changes to health care for refugee’s in Canada".

Young Perspective

Similarly, Margot Young used a Supreme Court of Canada decision of PHS judgments, where the Court held that Parliaments changes to criminalize the safe supervision of narcotics was illegal by engaging section 7 of the Charter. Here, Young commended the Court for relying on the factual findings of the trial judge that blaming or willful choice were not significant factors in generating harm on the claimants and the complaints. Like John Ely, Young did not believe judges were best suited for disentangling social and individual factors that limit choice:

This judicial inability tells most true in relation to those individuals most marginalized or disadvantaged in Canadian society, those individuals whose social, economic, and cultural features are likely far from the typical biographical facts of the average judge.

Conclusion

As I’ve indicated, a number of advantages and disadvantages arise when dealing with section 7 surrounding interests of marginalized communities. I believe the Federal Court made the correct ruling as refugee’s need the basic necessities of life, which encompasses health care. I believe the Court took into consideration the proper evidence and witnesses when deciding the case, unlike Chaoulli v Quebec, 2005, in which the Court decided in an afternoon sitting that private health care was permitted in Quebec, with very little evidence from the claimants.

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