Amnesty International was represented in this case by Laïla Demirdache, Michael Bossin, and Vanessa Gruben.
WHAT IS THIS CASE ABOUT?
This case arises from changes made by the federal government to Canada’s Interim Federal Health Program (IFHP) in 2012. The changes resulted in a new, tiered system of health benefits which denied many asylum seekers and other persons in need of protection losing access to necessary health care such as insulin for juvenile diabetes, chemotherapy and anti-nausea drugs, allergy and asthma medication, urgent eye surgery, antiretroviral medication, and care during child birth.
A number of individual claimants as well as three organizations granted public interest standing – Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, and Justice for Children and Youth – brought a challenge to the constitutionality of the funding cuts to the IFHP. They argued that the changes to the program violated the right to life and security of the person, the right to be free from discrimination, and that they constituted cruel and unusual treatment under the Canadian Charter of Rights and Freedoms (Charter).
The Federal Court of Canada dismissed the section 7 right to life and security of person claim, finding that the constitutional right does “not include the positive right to state funding for health care.” However, the court did find that the cuts constituted cruel and unusual treatment under section 12 of the Charter, and that certain aspects – in particular denying asylum seekers health care based on their country of origin – were discriminatory in violation of section 15 of the Charter. However, the Federal Court rejected the argument that the cuts to the IFHP constituted discrimination generally on the ground of immigration status. The government appealed the decision to the Federal Court of Appeal.
AMNESTY INTERNATIONAL’S INTERVENTION
While Amnesty International welcomed many aspects of the Federal Court’s judgment, we were concerned about the court’s dismissal of the section 7 right to life and security of the person and section 15 discrimination claims. In our joint intervention with ESCR-Net, we argued that international law binding on Canada requires the government to guarantee the right to life by ensuring that all persons have access to the basic necessities of life, including health care. Under international law, Canada bears a responsibility to protect its must vulnerable and marginalized groups, including refugees and refugee claimants, from discrimination. Consequently, we argued that targeting refugees and asylum seekers by withholding access to necessary health care – and therefore limiting the right to life and security of the person – as a means to deter them from coming to Canada violates Canada’s obligations to protect vulnerable people from discrimination.
STATUS OF THE CASE
In October 2015, Canadians elected a new government that determined it would not continue pursuing the appeal of the Federal Court’s judgment. The government announced on December 16, 2015 that it was withdrawing the appeal. And on February 18, 2016, the government announced the full restoration of the IFHP program, with a plan to expand certain services by April 2017.