Interim Federal Health Program

Updates

21 February, 2016The Government of Canada has announced that the Interim Federal Health Program, which provides medical services for refugee claimants, will be fully restored to its pre-2012 levels by April 1, 2016. The Liberal Party of Canada originally pledged to restore the program during the 2015 election campaign, and reiterated it in the Ministerial Mandate Letter to the Minister of Immigration, Refugees and Citizenship.
 
The government also announced that it plans to bring in new services under the program by April 1, 2017, including pre-departure vaccinations, services to manage disease outbreaks in refugee camps, coverage of the immigration medical examination, and medical supports during travel to Canada.

What Happened

On July 4, 2014, the Federal Court of Canada rendered its decision on a constitutional challenge to the Harper government's cuts to health care for refugee claimants and others seeking the protection of Canada. The Court struck down changes to the Interim Federal Health Program [IFHP] that reduced access to health care, finding that the cuts constituted “cruel and unusual treatment,” contrary to section 12 of the Canadian Charter of Rights and Freedoms.

In unusually strong terms, the Court said that the Canadian government had intentionally targeted vulnerable people in order to achieve cost savings. As a result, “the 2012 modifications to the Interim Federal Health Program potentially jeopardize the health, the safety and indeed the very lives, [especially] of innocent and vulnerable children, in a manner that shocks the conscience and outrages our standards of decency.”

Not only did the cuts to the IFHP constitute cruel and unusual treatment, but the Court also held that they violated equality rights based on national origin.

Ordered to restore health care to refugee claimants and others seeking protection, the federal government has temporarily reinstated some of the IFHP but not all of the cuts have been reversed. This on-going battle has now cost at least $1.4 million and the government's appeal of the July 2014 court ruling is still outstanding.


Background

The Canadian federal government’s IFHP has been in place, in one form or another, since shortly after the Second World War. It reflects the recognition that many people need urgent or essential medical care soon after arrival but cannot pay for it.

Throughout its history, the IFHP has been implemented by the executive branch of government, using a legal instrument called an Order in Council (OIC).

The OIC governing the IFHP prior to June 30, 2012 was passed in 1957.1 It provided that the federal government would pay for medical and dental care, hospitalization, and incidental expenses for immigrants and others who were at any time “subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible.”

By 1996, the IFHP had changed, focusing almost exclusively on the needs of refugee claimants, government-assisted refugees and others in humanitarian need.2 Until 2012, no distinction was made between people based on their status (immigrants, refugees or others) or where they were in the refugee determination process.

The IFHP offered health care at levels comparable to those accessed by people receiving social assistance in Canada.

For a variety of reasons, costs for the program rose steadily over the years. In fiscal year 2009/2010, the program cost $91 million. Following a two-year program review, the government decided to reduce costs by cutting health care under the IFHP, and even eliminating it for certain classes of persons.

According to estimates, these cuts would generate about $100 million of savings.

The cuts were buried in the March 2012 federal budget and, as a result, the implications were not fully understood until the actual cuts were announced a month later. According to a Globe and Mail report, documents obtained through Access to Information requests show that civil servants were frantically trying to preserve the program months before the cuts were announced. Despite the lack of consultation with health care professionals and with the provinces, on April 25, 2012, the government announced the cuts and implemented them through two Orders in Council.3

Vulnerable newcomers to Canada suffer the consequences

Changes to the regulatory framework governing the IFHP, effective July 1, 2012, meant that the federal government drastically reduced or eliminated health services for certain refugee claimants and others seeking the protection of Canada.

The ensuing withdrawal of health care for many patients, along with confusion about who was eligible for health services and who was not, was compounded by chaotic implementation and uncertainty about who was eligible for what.

The results were so dire that medical doctors and other health care professionals, as well as many Canadians, were outraged.

Hanif Ayubi from Afghanistan, for example, could not be sent home after his refugee claim was rejected because of a moratorium on deporting people to that country. Ayubi could no longer obtain insulin for his Type 1 diabetes, and was forced to rely on free samples of insulin from a community medical clinic in Ottawa. The Federal Court noted that Ayubi was attempting to work, and paid taxes, but could not afford medication and tests: “He has already suffered at least one health crisis as a result of his lack of access to necessary medications, and he is now dependent on the charity of others.”

Health care professionals speak out

A group of doctors created Canadian Doctors for Refugee Care on April 26, 2012, the day after the announcement was made. They carefully documented specific cases of patients with serious illnesses and those requiring urgent medical attention, including children. Together with the Canadian Association of Refugee Lawyers and Justice for Children and Youth, a non-profit legal aid clinic, Canadian Doctors for Refugee Care launched a legal challenge in the Federal Court of Canada in 2013.

A spokesperson for the then-Minister of Citizenship and Immigration, Jason Kenney, said the doctors were “activists” who were purposefully altering the status of patients. Opponents of the cuts were labelled ideologues by Kenney. Refugees and others were branded as bogus queue jumpers seeking “gold plated” health care.4

In its 2014 decision on the challenge, the Federal Court of Canada held that the 2012 OICs were unconstitutional and amounted to cruel and unusual treatment under the Canadian Charter of Rights and Freedoms. The Court described the impact of these changes in stark terms:

The effect of these changes is to deny funding for life-saving medications such as insulin and cardiac drugs to impoverished refugee claimants from war-torn countries such as Afghanistan and Iraq.

The effect of these changes is to deny funding for basic pre-natal, obstetrical and paediatric care to women and children seeking the protection of Canada from “Designated Countries of Origin” such as Mexico and Hungary.

The effect of these changes is to deny funding for any medical care whatsoever to individuals seeking refuge in Canada who are only entitled to a Pre-removal Risk Assessment, even if they suffer from a health condition that poses a risk to the public health and safety of Canadians.5

Cruel and unusual treatment

Few court decisions have discussed the concept and meaning of cruel and unusual “treatment” as opposed to punishment, which is the section of the Charter most often used in connection with torture and other forms of cruel and unusual punishment. As a result, the Canadian Doctors case is of particular interest for lawyers and for people supporting migrant rights.

The Court relied on case law defining what constitutes “cruel and unusual,” namely as treatment or punishment that would outrage our standards of decency, based on evolving standards that “mark the progress of a maturing society”.6

The federal government had argued in favour of the social value of the changes, but the Court held that the social value was limited. The court highlighted the arbitrary nature of the changes to the IFHP, the lack of rational connection to the stated goal of fairness to Canadians, and the apparent economic consequence of downloading significant health costs onto the provinces, charities and individual doctors' pro bono efforts.7

The Court further noted the cruelty of the measures and their impact on people who are among the most vulnerable in Canada. The Court carefully considered the evidence regarding the public outrage about the impacts of the Orders in Council:

There is, thus, substantial evidence before me, not just of philosophical differences with a government policy choice, but of real outrage on the part of informed, affected individuals and groups at what has been done through the 2012 changes to the IFHP. While this is by no means determinative, it is a strong indication that the cuts to the IFHP are unacceptable to at least a segment of the Canadian population and do not, in the view of these individuals and organizations, accord with public standards of decency or propriety.8

The Court thus found that the Orders in Council were unconstitutional and violations of sections 12 and 15 of the Canadian Charter of Rights and Freedoms and could not be saved under section 1 by being found reasonable or justifiable.

Equality denied

The court also held that the 2012 OICs created an unlawful distinction between refugee claimants from Designated Country-of-Origin (DCO) countries and those from non-DCO countries.9 The result was refugee claimants from DCO countries receiving a lower level of health insurance coverage, based upon their national original, which is a prohibited ground of discrimination.10 The distinction put the lives of the DCO group at risk, based on stereotypes perpetuated or implied by government officials that the claimants were “cheats” or queue jumpers, that their refugee claims were “bogus,” or that they abused the generosity of Canadians.11

The Court declined, however, to find that immigration status constituted an analogous ground under section 15 of the Charter, relying on the Federal Court of Appeal’s decision in an earlier case called Toussaint.12

Conclusion

Decisions concerning the implementation of social programs and allocation of scarce resources are usually the prerogative of government. Courts are generally reluctant to intervene in such decisions.

While deference to government or Parliament is still an important feature of how social programs are understood and litigated in Canada, Canadian Doctors suggests that this deference will not survive government actions that shock standards of common decency and propriety.

Until the Canadian Doctors case, non-profit organizations, advocacy organizations, and charities have had little success in challenging cuts to social programming. However, they should find considerable encouragement in this case, at least when the consequences of cuts are so extreme and shocking.

When human rights defenders, professionals, and civil society organizations speak out on the public record against fundamental violations of human rights, the public record then becomes part of the documentation before a court, supporting allegations that the resulting disadvantage not only inflicts pain and suffering on vulnerable groups, but also that it outrages standards of common decency, thus engaging the test for s. 12 of the Charter.

The government has appealed the ruling.

In the interim, the Federal Court ordered the government to implement a Charter-compliant system by November 2014. While the temporary program does expand health coverage available to refugee claimants, including children and pregnant women, not all claimants have access to the same levels of coverage, nor has there been a return to the full IFHP. As a result, in January 2015, advocates returned to court to challenge the temporary plan, arguing that it is insufficient and in violation of the original court order. The judge reserved decision.

The government's appeal is still outstanding and no date has been set.

Relevant Dates

  • Late 1940s: Canadian federal government begins its Interim Federal Health Program (IFHP).
  • 1957: Order in Council (OIC) governing the IFHP is passed, providing that the federal government will pay for medical and dental care, hospitalization, and incidental expenses for immigrants and others who are at any time “subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible.”
  • 1996: IFHP changes, focusing almost exclusively on the needs of refugee claimants, government-assisted refugees, and others in humanitarian need.
  • 2009-2010: IFHP is costing $91 million/year. The government begins a two-year program review.
  • March 2012: The federal budget is tabled, including proposed cuts to the IFHP.
  • April 25, 2012: The government announces cuts to health care under the IFHP, drastically reducing or eliminating health services for certain refugee claimants and others seeking protection, implemented by two new OICs.
  • April 26, 2012: A group of doctors creates Canadian Doctors for Refugee Care.
  • July 1, 2012: Changes to the regulatory framework governing the IFHP come into effect.
  • February 25, 2013: Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, and Justice for Children and Youth launch a legal challenge in the Federal Court of Canada.
  • July 4, 2014: Federal Court strikes down the changes to the IFHP that reduced access to health care, finding that the cuts constituted “cruel and unusual treatment,” contrary to section 12 of the Canadian Charter of Rights and Freedoms. The court also holds that an unlawful distinction between refugee claimants from Designated Country-of-Origin (DCO) countries and those from non-DCO countries has been created.
  • October 1, 2014: The government appeals the ruling.
  • November 5, 2014: CIC implements a new temporary health coverage plan.
  • January 27, 2015: Advocates return to court to argue the new plan is in violation of the Court's original ruling. The judge reserves decision. As well, the government's appeal is still outstanding.

1 Order in Council P.C. 1957-11/848

2 Canadian Doctors, para 41.

3 P.C. 2012-433, the “Order Respecting the Interim Federal Health Program, 2012” (the April 2012 OIC); Order in Council P.C. 2012-945 (the amending OIC), effective June 30, 2012.

4 Canadian Doctors. at para 56.

5 Ibid, at paras 2-4.

6 R v. Smith, at para 83, citing Trop v. Dulles (1958), 356 U.S. 86 at p. 101.

7 Canadian Doctors, at paras 624-625.

8 Ibid. at para 635.

9 Designated countries of origin are countries which are considered by the government to be generally safe, “non-refugee producing” nations, and are thus "designated" as such. These countries are generally seen as having health care systems that are comparable to Canada’s own. As such, they are seen to be deserving of a minimum level of state-funded health care while claimants were in Canada making a refugee claim.

10 Canadian Doctors. at para 850.

11 Ibid at paras 839- 840.

12 Toussaint v. Canada (Attorney General), 2010 FC 810, [2011] 4 FCR 367 [Toussaint FC], aff’d 2011 FCA 213, [2013] 1 FCR 374, leave to appeal to SCC refused, [2011] SCCA No. 412.

 

Role or Position

The Canadian federal government’s Interim Federal Health Plan has been in place since shortly after the Second World War. It reflects the recognition that many people need urgent or essential medical care soon after arrival but cannot pay for it.

From 1957 to 2012, under the IFHP, the federal government paid for medical and dental care, hospitalization, and incidental expenses for immigrants and others who were at any time “subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible.”

By 1996, the IFHP had changed, focusing almost exclusively on the needs of refugee claimants, government-assisted refugees and others in humanitarian need. The IFHP offered health care at levels comparable to those accessed by people receiving social assistance in Canada.

In 2012, budget cuts and changes to regulatory framework drastically reduced or eliminated health services for certain refugee claimants and others seeking the protection of Canada.

Implications and Consequences

Human Rights: Government cuts to social programs that are designed to help the most marginalized and vulnerable groups must comply with the Canadian Charter of Rights and Freedoms, including sections 12 (cruel and unusual treatment and punishment) and 15 (equality rights).

Democracy: The mobilization of social groups and non-profits to litigate government attempts to scale back social programming and social justice initiatives appears to be having an impact on the way in which the courts look at and respond to such programs.

Equality: Government cuts to existing programs cannot be implemented by distinguishing between people in a discriminatory manner. 

Image: Canadian Public Health Association

Published: November 14, 2014

Updated: February 10, 2015

Sources