Federal government to appeal ruling reversing 'cruel' cuts to refugee health

The federal government will appeal a court decision overturning its cuts to refugee health-care funding, Immigration Minister Chris Alexander said today.

Earlier Friday, the Federal Court released a decision giving the government four months to change federal cuts to refugee health care. The court threatened to strike down the changes.

Alexander told reporters at a news conference the government "vigorously defends the interests of Canadian taxpayers" and said he wants to emphasize "genuine refugees." The appeal goes to the Federal Court of Appeal, but could end up in the Supreme Court if one side challenges the Federal Court of Appeal's eventual decision.

• Refugee health-care ruling adds to government's legal losing streak

The distinction between what the government calls "bogus" and "genuine" refugees has drawn substantial criticism from opponents of its immigration and refugee system reforms.

The Federal Court found the government's treatment of refugees is "cruel and unusual" because it jeopardizes their health and shocks the conscience of Canadians.

Judge Anne Mactavish ruled the federal cabinet has the power to make such changes and that the procedure was fair, but that the people affected by the changes are being subjected to "cruel and unusual" treatment.

• Read the Federal Court decision (pdf) 
• Listen to refugees and doctors talk about how the cuts affect them

"This is particularly, but not exclusively, so as it affects children who have been brought to this country by their parents," Mactavish wrote in the 268-page decision.

"The 2012 modifications to the [Interim Federal Health Program] potentially jeopardize the health, the safety and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages Canadian standards of decency. 

"I have found as a fact that lives are being put at risk."

'Extremely compelling' findings 

The Canadian Doctors for Refugee Care, Canadian Association of Refugee Lawyers and Justice for Children and Youth welcomed the decision.

Dr. Philip Berger, co-founder of Canadian Doctors for Refugee Care, took aim at Alexander and his assertion that some refugee claimants are "bogus." Alexander wasn't the first Conservative minister to use the phrase: Jason Kenney, his predecessor in the file, used it liberally when he was the minister in charge of immigration.

"It is breathtaking to me how uninformed Minister Alexander is about his own portfolio," Berger said, asking how Alexander can declare any claimants to be bogus when the changes apply to those who haven't yet had hearings to determine their status.

"Their claims were lawfully within our borders.... They've not had a determination yet, yet through some clairvoyant power of deduction, Minister Alexander seems to know that they're bogus before they've had their hearing. Perhaps he can explain that finally after the last year of accusing all refugee claimants of being bogus."

Lorne Waldman, the lawyer who represented the doctors in court, called Mactavish's findings of fact "extremely compelling."

No coverage for heart problems, pregnancy

Waldman said the government is likely to ask for a stay on the decision in advance of its appeal, and said that he will fight against a stay. It will take much longer than four months to argue the appeal, so whether a stay is granted will determine when the new rules are reversed.

The changes created a pile of paperwork for doctors who refused to deny care to refugees, leaving them to figure out who to bill for the costs. Canadian Doctors for Refugee Care has been trying to meet with Alexander for more than a year, but has failed to land a get-together.

Ottawa trimmed medical benefits for newcomers in 2012, leaving most immigrants with basic, essential health care but without supplementals such as vision and dental care.

However, rejected refugee claimants — and refugee claimants from countries the government considers safe — are eligible under the new law for care only when they pose a threat to public health.

That means no coverage for heart problems, pregnancy, infant vaccinations, diabetes, and any other ailments that threaten the health of the refugee but aren't a risk to public health.

Ottawa doctor Doug Gruner said Alexander isn't being truthful with Canadians when he says the policy only affects failed refugee claimants. Gruner calls the changes "horrific."

"That's 100 per cent false information. Not only does this policy affect all refugee claimants, of which almost half become Canadian citizens, it also affects refugees that come here as landed immigrants, soon to become Canadian citizens. These are the privately sponsored refugees. They're sponsored by church groups and other social organizations in conjunction with the federal government of Canada. And when they come here, this policy is preventing them from accessing health care," he said.

Ontario reinstated the benefits Jan. 1, a move that drew strong criticism from Ottawa, which accused the province of intruding into an area of federal responsibility.

$91M cost cite for reform

The government argued in front of the court that the cost of the program had skyrocketed over the years, as more refugees used the program and the number of days they spent under the program increased. The government said 105,326 people were eligible for benefits in 2003 and spent an average of 548 days covered by the program. As of 2012, 128,586 people qualified for benefits and spent an average of 948 days on it.

"The IFHP cost Canadian taxpayers $50,600,000 in 2002/2003 and almost $91,000,000 in 2009/2010. As a consequence, cost containment was a driving principle underlying the decision to reform the IFHP," Mactavish summarized in her decision.

But Mactavish wrote in her ruling that there is "no persuasive evidence to show that the changes to the eligibility and coverage provisions of the IFHP have served to deter unmeritorious claims, thereby reducing the cost of the program."

"While the respondents have provided information regarding the overall reduction in refugee claims following the recent changes to the refugee process, there has been no attempt to identify how much of a reduction in refugee claims, if any, is actually attributable to the cuts to the IFHP, as opposed to the other changes that have been made to the refugee determination process. As a consequence, it cannot be said that the 2012 changes to the IFHP were necessary to achieve a legitimate aim.​"

New Democrat MP Jinny Sims says the cuts were "penny-wise, pound foolish."

"By cutting health care, we have put some of the most vulnerable in a very, very difficult position," she said in an interview with CBC News.

Liberal immigration critic John McCallum credited the Charter of Rights and Freedoms for protecting refugee health care, though he noted the government can appeal the decision to the Supreme Court.

"I think it's a great day for refugees who are extremely vulnerable, for the Ontario government which stood up to the government on this, and for Canada," McCallum said.

"They [the Conservatives] don't like the Charter ... but it is the law of the land."

Mobile users, read the ruling here.