"...The first two decades of Charter litigation testify to a certain timidity – both on the part of litigants and the courts – to tackle head on the claims emerging from the right to be free from want." (Louise Arbour)

The Right to Health, Right to Life of Refugees and Asylum Seekers: Interventions in Canadian Doctors for Refugee Care v. Canada (Attorney general)

Immediately after the Supreme Court of Canada denied leave to appeal the decision of the Federal Court of Apeal in Toussaint v. Canada, the federal government announced revisions to the Interim Federal Health Program (IFHP) to exclude from access to health care further classes of migrants, including refugee claimants from designated countries of origin, and failed refugee claimants. These further exclusions were challenged by a number of individuals and organizations as violations of sections 7, 12 and 15 of the Canadian Charter.

In her decision, Justice Mactavish of the Federal Court found that the deliberate exclusion of these additional groups constituted "cruel and unusual treatment or punishment" under section 12 of the Charter, and was also prohibited discrimination on the ground of national or ethnic origin under section 15 of the Charter. On this basis, the changes to the IFHP were declared to be of no force and effect. However, Justice Mactavish also found that even where the denial of access to the IFHP placed life or long term health at risk, barring access to the IFHP did not violate of the right to life under s.7 because, according to Justice Mactavish, such a violation would rely on finding that there is a freestanding right to public funding for health care in the Charter. Justice Mactavish also held that discrimination on the ground of immigration status is not prohibited under section 15 of the Charter and found against the claimants on this ground. With respect to international human rights law and the right to health, Justice Mactavish held that the right to health under international human rights law is "contested" and that the Canadian Charter does not protect the right to health care necessary to life when publicly funded health care is required to protect life. In this way Justice Mactavish distingished the claimants in the Chaoulli case, whose right to life was found by the Supreme Court of Canada to have been violated when they were denied access to private health care, from the claimants in the present case -- impoverished migrants who are unable to afford private health care. In essence, Justice Mactavish held that protections of the right to life in relation to access to health care only apply to those who are wealthy enough to afford private health care. While the decision in this case was celebrated for its important result -- striking down the governments' vicious attackes on further classes of vulnerable migrants, refugees and asylym seekers -- her findings with respect to section 7 and 15 of the Charter were in fact more retrogressive than those in the Toussaint health care case, where the courts at least acknowledged that section 7 applies to publicly funded health care and that the right to life had been violated. This was therefore seen as a critical case for CURA researchers to engage, following up on many of the issues addressed in previous research in relation to the Chaoulli and Toussaint cases.

The Government of Canada has appealed the decision to the Federal Cout of Appeal and the applicants (now respondents) have cross-appealed Justice Mactavish's decision that there was no violation of s.7 and also her decision that discrimination on theground of immigration status is permitted under s. 15. ESCR-Net has joined with Amnesty International to seek leave to intervene in the case to explain ways in which international human rights law should be considered and applied in the interpretation of the Canadian Charter in this case. The Charter Committee on Poverty Issues (CCPI), in conjunction with the Canadian Health Coalition, is also seeking leave to intervene to challenge Juctice Mactavish's finding that those who rely on publicly funded health care do not enjoy the same protection of the right to life in access to health care that were found, in the Chaoulli case, to apply to those who can afford privately funded health care. CURA researchers have provided assistance to both interveners in relation to the relevant domestic and international law and jurisprudence

See the following documents relavent to this case:

Canadian Doctors for Refugee Care v. Canada (Attorney general), 2014 FC 651 (CanLII)

Appellants (Attorney General of Canada) Memorandum

Respondents Memorandum

Amnesty International and ESCR-Net Motion for Leave to Intervene

CCPI/CHC Written Representations for Leave to Intervene

CCPI/CHC Denied standing; Amnesty-ESCR-Net Granted Limited Standing to Intervene but prohibited from making the three key arguments they had proposed to make!

Decision of Gauthier J. on Intervention Applications

Memorandum of Amnesty International and ESCR-Net

Department of Justice Reply to AI-ESCR-Net Memorandum


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