Friday, 4 July 2014
Refugee Health cuts – a legal and rhetoric win, though not necessarily a win for refugees.
Federal Court Judge Anne Mactavish released her decision on the legal challenge that the cuts to refugee health were an infringement on human rights. Read the decision carefully (paragraphs 1076 through 1097 if you are not interested in the full 268 pages) and what arises is somewhat reassuring and likewise somewhat disturbing. Decision on refugee health cuts
The good news in the decision.
“the executive branch has intentionally set out to make the lives of these disadvantaged individuals even more difficult”
“It has done this an effort to force those who have sought the protection of this country to leave Canada more quickly, and to deter others…”
“this treatment is indeed ‘cruel and unusual’”
“jeopardize the health, and indeed the very lives, of these innocent children in a manner that shocks the conscience and outrages our standards of decency.”
As such the program as structured violates section 12 of the Charter
She further challenges that the program is inequitably applied based on the designated country list and that distinction is a violation of section 15 of the Charter.
The bad news
“I have concluded that the 2012 “decisions” are not ultra vires the prerogative powers…” meaning that the government acted within its powers. “nor has there been a denial of procedural fairness” meaning they acted appropriate for implementing such changes.
The charter is not a document that can be used to justify a right to state funded health care
That while international law is a valuable aid in interpretation, it is not binding on domestic rights or remedies.
The final bit of bad news is that the decision was immediately suspended for four months (in essence framing a suspension pending an appeal to the Supreme Court which could take years)
As the case involves just two persons, one of whom has subsequently been granted permanent residency, that its application to the thousands awaiting relief is not of value.
Hence, round one goes to the refugee coalitions, but with big enough loopholes that the government need not aggressively respond in providing reasonable care to refugees in need of health services in the immediate future.
Based on the reaction by the current immigration Minister Chris Alexander, an appeal is expected CBC coverage . The orchestrator of the debacle (Jason Kenney) having safely moved aside to stir up a new hornet’s nest and running away before getting stung.