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The Charter of Rights versus the government of wrongs

In two landmark rulings, the Federal Court of Canada has determined that aspects of government policy aimed at discouraging refugee claimants from choosing Canada as a safe haven, and accelerating their departure from Canada, violates the Charter of Rights and Freedoms.

The first case involved a challenge brought by a coalition of Canadian doctors, called Canadian Doctors for Refugee Care, to the Federal Health Program (IFHP), a program established to provide interim health care coverage to refugee claimants in Canada in Canadian Doctors for Health Care v. AG Canada.

Prior to 2012, all refugee claimants could access IFHP while awaiting their refugee hearings. In 2012, the government enacted a policy that restricted access to health care for some claimants and for claimants from so-called “safe countries,” who were allowed care only if they posed a public health risk.

The court, on judicial review, determined the purpose of the restrictive policy was to intentionally make the lives of disadvantaged individuals more difficult in order to force those seeking refuge in Canada to leave more quickly. In some cases, this policy jeopardized the lives of vulnerable children from so-called designated countries who could not obtain health care while in Canada.

The evidence before the court indicated that life-saving operations and chemotherapy were denied some refugee patients or, when provided at all, were delivered by compassionate doctors acting for free.

The court found that the purpose and effect of the policy was cruel and unusual and violated s. 12 of the Charter, particularly, but not exclusively, due to the effect on children. The cuts potentially jeopardized the health and safety of innocent and vulnerable children in a manner that shocked the conscience and outraged standards of decency.

The Court also found that this policy discriminated against refugee claimants on the basis of national origin as it was only refugee claimants from “designated countries” who were denied all health care except care related to public health, such as infectious diseases.

Section 15 of the Charter was violated as a distinction was created based on national origin that did not form part of an ameliorative program and had adverse differential effects that perpetuated a problematic stereotype and historical disadvantage.

The court struck down the ban on refugee claimants’ health care, allowing the government four months to impose the ruling.

An aggressive and politically driven attempt to discourage those seeking refuge in Canada had been dealt a serious setback. The case is under appeal to the Federal Court of Appeal, however. The hearing is scheduled for later this fall.

Almost a year after the Federal Court struck down the health care restrictions to refugees, a second Federal Court judge ruled in Y.Z. v. Canada (Minister of Citizenship and Immigration) that restrictions imposed on some refugee claimants to an appeal body called the Refugee Appeal Division violated s. 15 of the Charter.

In 2012, the RAD was created and empowered to hear and decide appeals from decisions of the Refugee Protection Division. The RPD determines whether or not a refugee claimant has established a well-founded fear of persecution for a convention grounds (race, religion, particular social group, nationality, or political opinion) or a risk of cruel and inhuman treatment. If not, and the claim is denied, some claimants can appeal the refusal to the RAD.

Those not entitled to this appeal, claimants from designated countries of origin must seek judicial review in Federal Court. This procedural distinction is significant as the RAD is empowered to consider an appeal based on questions of law, fact, or mixed law and fact. This jurisdiction has been interpreted to include a “full fact based appeal” in which the RAD is empowered to conduct a reconsideration of the RPD decision.

New evidence can be relied on in the appeal provided one of two conditions are met: the evidence must have arisen after the rejection of his or her claim; or the evidence was not reasonably available, or the person could not reasonably have been expected in the circumstances to have presented it, at the time of the rejection.

If these conditions are met, the appeal becomes similar to a de novo process, allowing a claimant a second chance to prove the merits of his claim. Persons from DCO countries do not get this appeal and de novo process. They get judicial review, based largely on the deferential reasonableness standard. This is a significant difference in procedural rights.

The Court in Y.Z. v. Canada recognized the discriminatory nature of this difference and held that the RAD bar to members of DCO countries “draws a clear and discriminatory distinction between refugee claimants . . . based on the national origin of the claimants.”

The government’s evidence of its purpose in creating the DCO designation (there are 42 countries in that class) was to “deter abuse of [Canada’s] refugee system by people who come from countries generally considered safe and ‘non-refugee producing,’ while preserving the right of every eligible refugee claimant to have a fair hearing before the IRB.”

In other words, DCO claimants are allegedly bogus claimants.

Not so, say the statistics. For example, in 44 per cent of the claims made to the RPD from citizens of Hungary, a DCO country, the RPD found the claimants were genuine refugees or persons in need of protection. This was in the period after the creation of the DCO and RAD.

Justice Keith Boswell of the Federal Court noted the government’s stated purpose of the DCO designation and said it served to “marginalize, prejudice, and stereotype refugee claimants from DCO countries which are generally considered safe and “non-refugee producing.”

He also held that it perpetuated a stereotype that refugee claimants from DCO countries are somehow queue-jumpers or “bogus” claimants who only come here to take advantage of Canada’s refugee system and its generosity. This is the essence of discrimination.

Sadly, this case is also under appeal with no fixed date for a hearing.

  • Defence counsel

    Jonathan Lemieux
    Never has a government brought such shame and embarrassment to Canada.