 I'm Constance McIntosh, I'm the Director of the Health Law Institute, and I'm here at this moment to introduce Audrey Macklin. Audrey holds a chair in Human Rights Law at the University of Toronto. She formerly served on the Immigration and Refugee Board. And since taking her post at the University of Toronto Law School about 13 years ago, she has worked in human rights aspects of migration and administrative law. Audrey was extensively involved in the Omar Carter case, and more recently was the academic lead in challenging the lawfulness of federal decisions to attract health care from asylum seekers and refugees. I've had the pleasure of working with Audrey on this case. I'm going to step aside now. We have until close to about one, so we've got 45 minutes for Audrey to stand and deliver, and then hopefully we'll have time for some engaged and robust questions. Thank you, and Audrey. Thank you everyone. It's a great honour to be here. I love having any reason to come back to Halifax and to Dalhousie, and I'm happy to do it to talk about this particular issue, which I consider very important and in need of greater public awareness. I'm going to discuss changes to what is called the Interim Federal Health Program, which is a system of providing publicly insured health care to certain categories of refugees and people I will call asylum seekers. It is delivered federally, which of course distinguishes it from what you know about most health care in Canada, which is delivered provincially. So the story, if you will, of the Interim Federal Health Program arises at the intersection of two regimes, that of health care and immigration law. My area of specialty is much more in immigration law. I expect many of you have much greater expertise than I do in health law, but hopefully over the course of this discussion there'll be exchanges, and I'm sure that I will learn from your comments and questions as well. But let me begin by telling you a few things about the refugee regime on the assumption that perhaps not all of you are familiar with it. Refugees are defined as people who are outside their country of nationality and are unable or unwilling to return to that country for reasons of a well-founded fear of persecution based on race, religion, nationality, something called membership in a particular social group, or political opinion. The refugee definition in law is somewhat narrower perhaps than what you might otherwise assume to be encompassed by the term refugees. There are two ways in which refugees can come to Canada. One is by being sponsored from abroad. That is to say the government of Canada and private individuals can select refugees from abroad and bring them to Canada. The government brings over around 5,000 or so per year. That number has been declining over the past few years, and in fact there's something of a mismatch between what the government declares it will bring over in terms of numbers and the numbers they actually bring over. The number of privately sponsored refugees similarly, there is a quota the government sets, and there are many individuals who want to sponsor, but the numbers who are actually unable to come over to Canada are also smaller than often projected, again in the 5,000 range. So those are sponsored refugees, and they come over already having been recognized as refugees. The other and larger category are people I will call asylum seekers. Those are people who arrive at Canada's border and claim refugee status. They say, I am a refugee. What is the legal regime that authorizes that? Well, in 1969 Canada signed the United Nations Convention relating to the status of refugees. This convention was actually initially promulgated in 1954, but Canada didn't sign on until 1969. And what it does is commit Canada to not send back to their country of origin people who meet the definition of a refugee. That international legal obligation has been incorporated into Canadian law. So the Immigration and Refugee Protection Act of Canada says, if you meet the international definition of a refugee, we will not send you back to your country of origin except in certain limited circumstances. So I emphasize this to say those who come to Canada claiming asylum are claiming a right that we have created and enshrined in our law. They're not coming here to do anything other than what Canada has promised it will do. But of course Canada has a system in place for determining whether people do or do not in fact, follow the definition. Lots of people show up at the border, say I'm a refugee, but of course somebody has to decide, and it's in Canada's Immigration and Refugee Board, whether the person actually meets the definition or not. Now, in 2012 the current government brought in significant reforms to the refugee system regarding asylum seekers. And these were publicized and promoted by the government as a response to a refugee determination system that it described as slow, expensive, and broken. Broken in the sense that it was widely and systematically abused by people who knowingly and deliberately came to Canada saying they were refugees, but in fact were not. Now, this idea of casting suspicion and denigrating those who seek asylum in Canada is not new nor is it unique to Canada. Virtually all industrialized states that have signed on to, that have ratified the convention relating to the status of refugees simultaneously exert extraordinary effort to deflect, deter, and discredit asylum seekers, to prevent them from getting to the countries that have signed on to the refugee convention and claiming the rights that these countries have voluntarily assumed as obligations. So countries do it in two ways. They do it discursively by talking about the people who come to seek refugee protection as if they are, and I'm hoping you recognize these words, frauds, bogus, cheats, scammers, economic migrants, smuggled, terrorists, security threats in ways that make us prime us for believing that the people who come are not genuine even before any process has happened to actually determine the authenticity of any individual claim. So we make them disappear in our discourse. The people who come saying they're refugees, well, they're really not refugees and we know that. Having laid the groundwork for that, then the government can in fact go ahead and promulgate policies that actually make them disappear by making it impossible to come to Canada legally to claim refugee status, by enacting processes that make it very difficult for one to fairly present one's refugee claim and by limiting the recourse that people have for challenging a decision that is negative and so on and so forth. I give all of this to you as background in order that you might better understand how to situate the changes to the Interim Federal Health Program. So let me start by describing the Interim Federal Health Program. I'm not expecting you to read this. There was an order in council in 1957, over 50 years ago, before Canada signed on to the Refugee Convention and before the rise of publicly funded provincial health care. There was an order in council arising out of the post World War II migrations to Canada that said when immigrants arrive in Canada and before they get settled, if you will, the federal government will as a gesture of generosity cover their short-term emergency, urgent, essential health care costs. And this was the order in council. This is as long as it was, barely a page. Certainly no details. This order in council is the basis of the Interim Federal Health Program as it existed until 2012. It's not legislation, it's not even a regulation, it is some kind of an undertaking by the cabinet. In the ensuing 50 years between this order in council creating the Interim Federal Health Program and the time of its change in 2012, there were two major developments. One, of course, was the introduction of publicly insured health care delivered by provinces and framed, if you will, by the Canada Health Act principles of universality, portability, et cetera. So at the time the order in council was made, there was no, in a sense, systematic, nationwide publicly insured provincial health care. But over the 50 years this grew up around the order in council. So that the idea of providing government-funded health care to a group of individuals was no longer simply an exception, but rather just a different way of delivering what had become the norm. Secondly, as I mentioned, in 1969, Canada ratified the refugee convention and then incorporated it into Canadian law and we saw a very large increase in the number of refugee claimants coming to Canada, of course, and the development of a whole bureaucratic administrative regime around refugee determination. And so over time the Interim Federal Health Program under this order in council, which had been a program devised for just incoming immigrants, if you will, became largely dedicated to providing health care for people who came to Canada either as government sponsored refugees or as asylum seekers from the time that they entered Canada until such time as they were either eligible for provincial health care because then they were remaining in Canada permanently or they left the country. And there was an elaborate system of health insurance. It provided basically to refugees who were not yet eligible for provincial health care and asylum seekers who were at some point in the system, health care that was more or less equivalent to the health care provided to low income for people on social assistance by the provinces. So in other words, what somebody would get under the IFHP, who is eligible, would be what you get under Nova Scotia Health Care, the basic health care, plus some supplemental benefits that are typically available to people on social assistance or low income people or sometimes elderly people. And those are, roughly speaking, certain prescription drugs, certain emergency dental and vision care and some assistive devices. So there was basic health care plus the supplement. So that's the key point I want you to take away from this is that by 2012, the IFHP provided to all beneficiaries basic health care plus a basket of supplements roughly equivalent to that which a person on social assistance who is a Canadian resident of a province would get. So then what happened in 2012? What we have are changes to the system that take the pool of people who used to get this health care, government sponsored, privately sponsored refugees and asylum seekers who all used to get the same basket that I just described. Now they were being allocated into separate classes and different levels of health care were being delivered, if you will, depending on which class you fell into. So starting at the top, you have government sponsored and some of the privately sponsored refugees. They remained in receipt of the status quo ante, that is what they got before under the IFHP, basic and some supplemental. Then you had ordinary refugee claimants by which I mean ordinary asylum seekers, people who show up at the border and claim refugee status. They got a smaller basket labeled urgent and essential health care, kind of a basic minimum. Then there were refugee claimants who were called designated country of origin, DCO refugee claimants. These were people who came from countries that the Minister of Citizenship and Immigration decided were safe countries by which the Minister meant these people are coming from countries that are safe so they must be not genuine refugees. These are probably people who are bogus, they are cheats, they are liars, they are Roma and they are Mexican predominantly. The government named a bunch of other countries but basically the real targets here were Hungary and Mexico. And so people from those countries and a list of other EU countries were considered to be coming from safe countries. The Minister considered people who came from those countries to not be in need of refugee protection, at least presumptively. They still got to go through the refugee determination process but through an expedited shorter process with fewer recourses in case they were refused. So in anticipation that these people were going to be refused because they were not genuine, they were denied all health care. So from a safe country, a designated safe country, you get nothing except what is called public health and public safety. The same applies to people whose refugee claims are heard and refused. They also get nothing except public health and public safety. So I'll tell you what that is. Public health and public safety health coverage is not health coverage that is first and foremost designed to resolve, address, a health problem of the individual. This is coverage that is designed to protect other people from the contagious or dangerous sickness that that person has. So that might be in the case of public health, tuberculosis, HIV, meningitis, public safety. That would typically be some kind of psychotic condition that might provoke violent conduct. So the idea is that people in these categories from safe countries or who are refused, they don't get health care. They get health care delivered via them. We are protected from the danger they pose to us. Then there are other people, people who have abandoned or withdrawn their refugee claims so they started the process and then they pulled out of it, or they missed a deadline and are deemed to have abandoned their refugee claim and just know that, again, under the current law, the deadlines are very tight and difficult to meet, but if they have been deemed abandoned or if they didn't show up for a hearing deliberately or inadvertently, or if they have actually affirmatively withdrawn their claim, said, I don't want to make a refugee claim anymore, or people who are ineligible, I won't tell you much about those, or people who entered Canada or remained in Canada surreptitiously. That is people who are often regarded as so-called illegals and I'll refer to as people without status. Those people get no health care at all. Nothing, nothing, nothing. And so that's the status quo ante. They were never covered under the Interim Federal Health Program and they continue not to be covered under the Interim Federal Health Program. So they don't even get public health and public safety coverage. So what I have here on the far right is a way of understanding how you might distinguish between these classes. You can't distinguish between these people on the basis of their need for health care, right? You can't read off of how somebody entered Canada or what country they're from, whether they do or will or will not need any health care. So how can you understand these differential classes? Well, I would suggest to you that one way of understanding them is in relation to the role of the government in choosing them. Government sponsored and privately sponsored to a lesser extent refugees are people the government gets to go out and choose. Refugee claimants are people the government didn't get to choose. People who are rejected or refused refugee claimants are those who have arrived unbidden, unwanted and have been determined not to fit the refugee definition. And of course then there are people who have withdrawn from the program and they have in a sense selected themselves out. So one way of understanding this hierarchy, if you will, is along the line of the role of the state in being able to pick who comes in and who doesn't. And I mention that to you is an important metric of immigration law. The idea of sovereign states being able to choose who comes in is very important to people's idea of what it means to be a sovereign nation. And the refugee regime in some sense represents an incursion into that sovereignty because it says if you show up at the border even though we didn't pick you, if you happen to meet the refugee definition, we have bound ourselves not to exercise our sovereign right to exclude you. And as I mentioned right at the outset, this is something that states have grown to really dislike about the refugee regime. They really deeply resent that their ability to decide who gets in and who doesn't has been constrained. And I'm going to come back to this, this kind of what I describe as a kind of moral hierarchy in a moment. Now, how does this all play out? That's really, you know, what's, okay, most useful here. So let me just give you, rather than try to drill down into these definitions, I want to just give you illustrations of what this means operationally, this classification system that I've described. Okay, so imagine then you've got a Congolese refugee claimant who has a heart attack. That person is a refugee claimant in the second category. That refugee claimant will get medical treatment if he has a heart attack. If the person who has a heart attack is Roma from Hungary, no medical care. No insured medical care. Let's say you are a diabetic and you're Syrian and you've been brought over by the government as a refugee. You will get coverage for your insulin. If you've shown up at the border as a Syrian who's diabetic, you will get no insulin. Say you're pregnant North Korean woman with something called preeclampsia, which is a fairly serious pregnancy condition that has to be closely monitored and treated. If you show up at the border and you are pregnant North Korean refugee claimant with preeclampsia, you will get prenatal care. If, as that period of your pregnancy is passing, your refugee claimant is heard and refused, you'll be cut off healthcare. You'll get no prenatal care, you'll get no care during the delivery. If you're a Mexican refugee claimant with tuberculosis, you'll get diagnosis and treatment. If you're a Mexican refugee claimant with a detached retina, you won't. If you are a refused refugee claimant who is psychotic and dangerous, you will get treatment and medication. If you are a refused refugee claimant who's merely suicidal, you won't. If you are a government-sponsored Tibetan refugee and you're a child and you've got asthma, you'll get anti-asma medication. If you are an Afghan child who's a refugee claimant who's showed up at the border with her parents and you're asthmatic, you will get no anti-asma medication. But if you have an asthma attack and you go to the hospital, you will get treated. But you won't get the medication when you leave. And of course, if you're a Hungarian child who happens to have asthma, you'll get nothing at all. So that's how this interim federal health program sorts, classifies, categorizes for purposes of allocating healthcare. So what I'd like to do now is turn to what the government objectives are behind this. That is, the government objectives that they state are advanced by this policy. And this emerges from affidavit evidence that we have been in receipt of in the course of litigating a charter challenge to the interim federal health program. So the government produced three affianths, three government officials who work in the Department of Citizenship and Immigration Canada to explain what the purposes of this policy were. Interestingly, they did not produce as an affianth the director of the medical section of CIC who happens to be a physician. All of their affianths are non-physicians. And one of the things we wonder about is why she was not brought forward as an affianth. Because she is somebody who could be asked and presumably could respond to questions about the medical consequences and significance of these changes. So one reason for revoking the 1957 Order and Counsel and producing a new one was simply to modernize the system, modernize and rationalize and have a policy that actually explained what was going on. And that seems to make some sense because as I showed you, the 1957 Order and Counsel wildly outdated, completely vague and had no detail whatsoever. So that seems to make some sense. Another reason for changing the policy as it was from what I have just shown you it has become was to advance the idea of fairness to Canadians. So this new policy is fair to Canadians. So right away you are primed to think, huh, so there is a problem here of unfairness to Canadians. That was a problem that this policy is solving. So there was something about the way in which refugees and refugee claimants were being treated that was unfair to Canadians and this policy is correcting that. So what were some of the problems that this policy is solving? The problem of formal equality. I don't know if you heard in defense of the Interim Federal Health Program the claim that refugees, refugee claimants were receiving so-called gold-plated health care and a claim that what they were getting was better than what Canadians got and how unfair is that. And you might say that would be unfair. You can imagine that on a basic formal equality one population is getting more better health care coverage than another. Well that claim turns in part on who you're comparing the population to. So in the case of the IFHP as I told you the people were in receipt of health care coverage approximately the same as what somebody on social assistance would get in the provinces. But since people in that situation get some supplemental coverage that other people don't then that was thought to be then the government is using as a comparator people who are not on social assistance. So if IFHP recipients get prescription coverage and people who are not on social assistance in the provinces don't get prescription coverage that's unfair. So right away you might want to think about what the appropriate comparison is or comparator group. But the other point is just to go back to where we were before recall that I said even if you wanted to attain so-called formal equality all that would lead you to is removing the supplemental benefits. So you have at least two categories three categories who receive nothing whatsoever. So even if your goal was so-called formal equality the IFHP goes far beyond that by stripping health care to nothing or virtually nothing for a large swath of the affected people. Okay. Excuse me while I flip pages here. Okay. I want to move on to this idea of moral dessert as another justification fairness to Canadians the way that this is pitched is that health care of course can be allocated according to a number of different metrics. You can allocate health care according to the market up until Obamacare I suppose comes in that's how notionally it's done in the United States your ability to access health care is directly related to your ability to pay or to pay for insurance. You could allocate health care access public health care access according to residents depends where you live and how long you've lived there. Okay. You can accord health care of course according to moral dessert some people deserve health care more than others and we will allocate health care according to how much people deserve to have their health problems dealt with. So you calibrate entitlement to health care according to whether one is deserving of refugee protection or not that's what the IFHP does right the government assisted refugees well they're the most deserving because the government has picked them. Refugee claimants less deserving because we're not really sure about them they're showing up at the border uninvited we're not sure that they're deserving so we're going to give them less than those we got to choose we're going to give even less to those who come from countries where we are presuming that refugee claimants are bogus and frauds okay and we're going to give least of all of you know to those who have been refused because we now know they are bogus and fraud and they certainly don't deserve anything they shouldn't be here therefore they don't deserve health care so one way of understanding then the system is to understand it being calibrated according to a notion of moral dessert that is derived from one's immigration status okay one's entitlement to be in Canada then is transposed into the availability and quantum of health care that one is entitled to so that's another kind of way in which fairness to Canadians is advanced it is fair to Canadians to withhold health care from those who don't deserve it another objective of the system is to protect public health and safety so I suppose that explains why even those who are undeserving of health care those who are from safe countries, designated safe countries and those who are refused nevertheless get public health and safety coverage because we need to be protected from them in case they have a contagious disease or they are otherwise dangerous to us so I guess that explains why we have public health and safety coverage for refused refugee claimants and claimants from so-called safe countries it doesn't actually explain why we don't even give that to the last category of people, right the people who are abandoned withdrawn or without status they don't want to be protected from them if they are contagious as well but we don't or we aren't and finally, most clearly the goal is to deter abuse of the refugee system now actually this is in the final of the fourth so how is it that the refugee system is being abused and how will withholding health care help resolve that problem well if you believe that refugee claimants are coming to Canada in order to access health care that is they aren't really refugees but they wake up and decide that they want to go to Canada because they can get better health care coverage there then you might be concerned that there is abuse of our health care system and therefore withdraw access to health care in order to deter that just so happens there is no actual evidence of that but that might be an argument alternatively and more broadly to the view that people who seek Canada's protection are mainly, largely, mostly people who are not genuine who are so-called economic migrants and are just coming here to abuse the refugee system in order to enter Canada for other purposes then you might want to deter them by making conditions here as unpleasant as possible to discourage them from coming or to discourage those who are here by making their lives miserable as it were and sending a message to others not to come because if you come your life will be miserable too so you might have this deterrence strategy and here is where it's important to think about the discursive work of making refugees disappear the more you are persuaded that that's really what's going on then the less troubled you may be by stripping away health care from people by the idea that if a Hungarian boy or girl gets hit by a car we might otherwise think that that's something we should be concerned about and provide health care coverage but if you know that that kid's a fraud then maybe you'll be less concerned about denying health care to that person and finally there is cost containment which is always I think a very live issue in any kind of health care allocation decision so just to give you a sense of that and of course the government talks about how much money it will save in cutting health care coverage for people under the IFHP so in 2011-12 the IFHP cost the federal government $83 million that amounts to about 0.04 that is four one hundredths of one percent of total health care expenditures across Canada and in addition of course there aren't very many health care expenditures made by the federal government they're mostly made by the provincial government in any event so from 2009 you might say well how much does that work down we say $83 million but what does that actually work out to well per person so in 2009 which is the last year I had figures for the annual per capita cost that is the amount of money spent on each person eligible under the IFHP per year was $552 the average per capita cost for Canadians in 2009 was $5,401 in other words about a tenth per capita so refugee claimants cost about one tenth per capita of health care for Canadians now there are lots of variables to take into account about that but suffice to say one thing if you thought that refugee claimants were coming to Canada to exploit the health care system you might have thought they'd make better use of it now the cost of health care per taxpayer is something worth thinking about because of course this is often cast in the language of taxpayers paying for these refugee claimants we the taxpayer are paying for their health care so just to know what this $552 per year means to the taxpayer the annual cost per taxpayer is $0.60 now one of the other factors about cost containment is whether when the federal government stops paying the cost of health care services what happens to people who are sick well lots of sick people of course will not get any health care that's obvious but something else that happens is that some people who might otherwise go to get basic routine health care that can resolve problems at an early stage will just get sicker and sicker that one way or another they end up in emergency wards well the cost of emergency care is a whole order of magnitude greater than the cost of preventive care for those people who end up in emergency wards the consequences can be variable but in some provinces and Nova Scotia may be one of them hospitals either are obliged by law or by a kind of ethical commitment not to turn away people who show up in emergency wards people may still get treatment if they show up in emergency wards they will be billed for it and they won't be able to pay and what happens then well it becomes part of the bad debt of hospitals what happens to that bad debt typically it is transferred or it is ultimately eaten by the province so if the federal government does not provide any health care coverage there will be an increase in the use of emergency health care services those health care costs will end up being absorbed ultimately by the province so what does that mean when the federal government says we are going to save $83 million per year on this what it has not included in its calculation of course is the extent to which that cost will be transferred to the provinces and then and apparently the people who pay those costs are also taxpayers so it is not at all obvious that the cost savings projected by the government federal government would be realized in any event so these changes that I described to you were rolled out suddenly without notice or consultation and they led to significant concern and protest by a number of constituencies including the health providers and I have to say that the physicians were extraordinary in stepping up and really being in your face in their objections to this it had great consequences for them in their ability to do their job they became in effect immigration extensions of the immigration bureaucracy and the consequences for physicians were that not only were they being told that they could not provide services to people in need but they could not understand what the heck was going on because these things were rolled out fast they were rolled out in a confusing way with no consultation, no preparation there are a lot of inconsistencies even Meda V the health insurer who was managing this didn't understand it, systems were crashing rules were changing just to give you one random example so contagious diseases public health, public safety and payment for running a test to see if somebody had TB but they wouldn't get any payment for running a test to see what else the person might have or if the person had something else so you could do the thing to demonstrate if the person had TB but not if they had pneumonia because pneumonia is not covered as a public health disease or HIV, HIV was designated as a public health risk so an individual could get coverage but not antibiotics that were caused because of the secondary infections that people with HIV often get there are just a couple of examples but what it also meant was that the confusion generated the inevitable and predictable confusion generated by this had a chilling effect on many health providers who just said you know what, I'm getting out of this I'm not going to provide any services to people in IFHP anymore because I can't figure it out I don't know if I'm going to get paid or I don't know what the system actually requires of me this was particularly acute I think with respect to pregnancy because what it meant is that typically a physician takes on someone who a woman is pregnant at an early stage and sees her through to delivery if the physician doesn't know if at some point during this this person is going to transition to some new class and be denied healthcare what is this going to mean for the physician's ability to do her or his job so this had a chilling effect even beyond what the law actually prescribed because of the confusion generated so people who might have been eligible for IFHP were being turned away by doctors who were confused and uncertain so, I just want to show you this because I think it's pretty cool I'll just give you an illustration of how impressive The announcement has the potential to help medical facilities like Toronto General patients across Canada and the field of medical imaging worldwide I'll answer those questions after my announcement I will be very happy to answer those questions after the most vulnerable members of our society refugees were coming from war-torn countries fleeing hatred, fleeing crimes against humanity and your government is about to cut the very essential medicines and very essential services that people require in order to continue living this is not the legacy of Canada this is not the kind of country that we want to live in I am not alone we have medical associations across this country the CMA, the OMMA all of these organizations are denouncing your government's cuts to the Interim Federal Health Program what do you have to say for yourself? absolutely, I could give the minister a courtesy of finishing this remarks the minister will be disrupted from this point on members of the Conservative Government will be disrupted from this point on by Canadian doctors across this country do you want an answer to your question? please do the answer to the question is that our government believes as most Canadians believe that all Canadians should be given the same health care and we do not believe that people who just arrived recent refugees should be given superior health care to that of Canadian residents and Canadian citizens we are equalizing the health care so that everyone in this country is treated equally okay I hope I persuaded you by now that that's false but it was reiterated as recently as yesterday by the current immigration minister Chris Alexander okay but you know the doctors were absolutely courageous indefatigable tireless in their protests and kept it up and have been keeping it up and that's I think really impressive for which they deserve great kudos but here's the thing I think there's no probably no constituency in Canada that has greater social and moral capital than physicians and the government was completely and resolutely absolutely intransigent the government has not budged on it and if a bunch of physicians can't do anything I think it demonstrates just how committed the government is to the current policy indeed this was one of the responses to Jason Kenny then immigration minister posted a petition on his own website thanking himself for his efforts to streamline benefits of 42 refugee claimants under the IFHP and bring them in line with the benefits received by tax-paying Canadians including new Canadians you'll notice as well here the taxpayer versus the taxpayer just want to mention something to you in passing although many refugee claimants are in receipt of social assistance for reasons that should be obvious a lot of them are out there working too they also are paying taxes so it will be erroneous to assume that the population of refugee claimants does not include people who are working and in any event paying taxes as we all do every time we buy something so this all led then to litigation which I have been part of and Constance McIntosh has been a part of as have countless volunteers all doing this on a pro bono basis there have been over we have through our work gathered over 30 affidavits and over a thousand pages of affidavit evidence in a relatively short time and we are now before the federal court we have completed two days of hearing and we have one more day of hearing to go in this case include two individuals Daniel Rodriguez and Hanif Ayubi Daniel Rodriguez is from Columbia he came to Canada he made a refugee claim his refugee claim was rejected his wife's refugee claim was accepted what that actually means is that she is now in a position to sponsor him as a spouse but in the meantime Daniel himself is subject to he is a refused refugee claimant and subject to removal he has not had the opportunity to go through the sponsorship process yet during that time when he was waiting he experienced a detached retina he was at risk of going blind he was cut off ISHP he asked for discretion to be exercised in its favor to cover him he was rejected he was told he was illegal he should get out of the country a doctor provided well provided the surgery at a low cost and other costs were waived and ultimately his eye was saved but he would have otherwise gone blind in that eye Hanif Ayubi an Afghan refugee claimant who came to Canada his refugee claim was denied he is diabetic and as a refused refugee claimant he is cut off meds he is cut off all treatment in fact and he relies on donations of insulin from a clinic to keep him going he cannot leave Canada because Afghanistan is what's called a moratorium country it is so dangerous that people aren't being returned there even if their claims have been refused so he's a refused refugee claimant he does not receive any healthcare but he also can't leave Canada alright the public interest litigants Canadian doctors for refugee care the Canadian Association of Refugee Lawyers which I'm a part of and justice for children and youth are the public interest litigants we have been seeking public interest standing without going into detail it would perhaps be surprising but not surprising it's very difficult to find people to come forward as refugee claimants to litigate this thousands and thousands of people who have been cut off healthcare can't be that hard to find a few people to step forward well it is it actually turned out to be extraordinarily difficult and for reasons that have to do with fear people are legitimately fearful that if they come forward they're going to be targeted for immediate deportation and who are we to say that fear is not valid so anyway the case has been heard ok now it is argued under principles of public law and the charter and I'll just mention a couple of things here about the charter aspects of the case ok one of the charter arguments is under section 7 the idea that the IFHP changes deprive individuals of life and security of the person in a manner not in accordance with principles of fundamental justice now I'm not going to go through the whole argument what I'd like to do is point out what I think is the weak spot of the argument from the perspective of those of us who are litigating it and just to put on the table what some of the challenges that come from trying to argue this case there is I think you might be aware a jurisprudence out there that shows the courts are resistant to recognizing positive rights or positive obligations on the state to do things as part of section 7 and in particular the idea that there is ambiguity and certainty contestation around whether one can say one has a charter right to health care whether the state has a positive obligation to provide health care our way of dealing with this for purposes of this case is to say we're not saying we have to argue that there is a positive right to health care what we are arguing is the government was doing this and then it withdrew it and in the retraction of it in the deprivation of it then it violated the rights to life and security of the person and there certainly is a long line of jurisprudence that when the state actively takes something away that can constitute a charter breach it is certainly arguable that there is an ought to be a positive right to public health care it's just that frankly it's a tougher argument to make and we don't feel like we have to push that argument first and foremost it is complicated of course by the fact that there are categories of non-citizens who don't have access to public health care and never have people who are so called non-status people so called illegals they've never had access to the IFHP nor have tourists for example people who are in Canada temporarily and sort of transiently as an aside let me just explain come back to non-status but with respect to tourists it's important to recall that refugee claimants aren't like tourists tourists make a decision to come to Canada to visit they do it on their own schedule and presumably they can and do make provision for their own health care needs before they come they can have insurance from their home country they can purchase insurance and so on they're not in the same position as refugee claimants who in some sense are compelled to flee and don't have the luxury or perhaps the means of organizing their own health insurance before they come the other argument under the charter is section 15 equality under the law and so the idea here of course is two-fold that this deprivation of health care discriminates against refugees and asylum seekers so as compared to other residents in Canada, Canadians and permanent residents and so on it discriminates against a historically disadvantaged group the other section 15 argument is that within this hierarchy that the IFHP establishes there is discrimination as between different types of refugees and refugee claimants now I think again there's lots to be said about this but from what I could say Justice McTavish's questions were in the course of the hearing what she kept coming back to was a proper mind around why government sponsored refugees privately sponsored refugees refugee claimants even claimants from designated countries of origin were all entitled to health care after all they were either found to be refugees or had not yet been determined they were in that interim period but people have been refused well they aren't supposed to be in Canada at all so it can't be discriminatory to deny them public benefits and I think that's probably the tough difficult point for her and I would say that the position that we are taking on that point is excuse me a moment I'll find it that refused refugee claimants should not be understood as there's a temptation to do as so-called illegals as people who are here in Canada without any kind of legal authorization that process ends when they depart from Canada or when they are given permanent residence status many people who are rejected as refugee claimants have other recourses that they are exercising indeed all the way up to the end it's also the case that many people actually don't have the means to leave and they may be subject to deportation but until they've been deported they're not here illegally they're not hiding out they're not doing anything that is in fact immigration law the other point I think that we will be making is or that we have made is it may be the case that refugee claimants who have been refused ought to be leaving Canada and it may be that there are things that one can say about the inequality of people who are not citizens they're not entitled to remain but doesn't mean that just because you are unequal in your entitlement to remain in Canada because you're not a citizen and you don't fall into any of the categories that allow you to remain you can thereby be denied essential services so for example if I'm a refused refugee claimant can the government say we're not going to provide you with police services so if somebody assaults you and you call the police too bad you're not entitled to police protection because you are a failed refugee claimant and you shouldn't be here at all would we think that that was problematic after all police protection police services are also public good would we say that just because you have no entitlement to remain in Canada therefore we can treat you any way we want with respect to the full range of public services and would say I don't think so or flip around another example let's say we decide you believe that people who are refused refugee claimants don't deserve to be here they don't deserve any of the benefits that come from being here like health care they have done something wrong they are I don't know they are if you will bad people or wrongdoers well there are all sorts of wrongdoers in our society there are people we put in jail for committing wrongdoing what if we decided to allocate health care in accordance with what kind of crime you have committed after all if you are a wrongdoer in the criminal law maximum security get better health care than people in maximum security and by the way this will serve as an effective deterrent if you don't want to be denied health care services then maybe you shouldn't go around committing crimes do we actually think that inequality in one domain inmates are deprived of their liberty they are unequal in that respect justifies and allows unequal treatment in all domains so the last thing I think I will just mention about this in terms of explaining the inequality steps outside of a technical section 15 argument let me just say this one of the curious things I noticed about this litigation is that in all of the evidence presented by the government and there hasn't been much actually what the government did not present is any evidence of any impact analysis it did what would the impact of denying health care coverage to this population of people be now I assume that when people make health care decisions they do impact analysis on things like morbidity and mortality to see what happens to people when you change access to health care nothing was done here not done for refugee claimants as a population or even done for children nothing at all so in the government's arguments there is no claim that there is a cost benefit analysis of how much will be what is the cost to people's health if you do this to them it is as if there is no cost because these people don't matter so it's not just that they don't matter very much they don't matter at all because if they mattered at all you would want to say what's the impact on them going to be but there has been in the government's evidence absolutely nothing about that so when you think about what it means to be unequal it suggests that what it means to be unequal is to be somebody who doesn't matter at all to have no moral status that your pain and your suffering simply doesn't count it doesn't even enter into the calculus it isn't even the subject of a cost benefit analysis and that to me is perhaps the most striking evidence of what I would call the kind of moral inequality of those subject to the interim federal health program changes they count so little that they don't even count at all let me just close by saying I have a couple of quotes from a decision by the German constitutional court which I'm not going to ask you to read but I'll tell you that the way it approaches it is the idea that everybody is entitled to under the law to basic human dignity and that in turn entitles everyone to a dignified minimum existence and that dignified minimum existence does not depend on one's immigration status if you are going to allocate healthcare or any kind of benefit according to one's immigration status then you have to show that one's immigration status or one's residence in the country is related to one's need so I'm not suggesting and I don't think anybody who's argued this case has suggested that there's no differentiation possible between citizens and non-citizens and frankly if all the IFHP had done was take away the supplemental health benefits the prescription drugs and the assistive devices I don't think we'd be in court it's much more dramatic than that and the significance I think goes much deeper than that and I've already spoken longer than I did so perhaps I'll just stop now and ask thank you and ask questions there's not so much a question is that a comment because you know listening to you today it puts me in mind of the current struggle to oppose bill 214 the doctrine of responsibility I regret to say that I see so many parallels the government there and here is determined to ignore expert opinion and evidence the government is adopting a judgmental and punitive standard concerning a group that we have previously said they are especially vulnerable and deserve moral and legal protection the government has constructed victims that require vengeance here in the Canadian taxpayer and there is the victims of persons who committed the penance as well without sensibility disorders and the government doesn't even try to achieve any consistency in its proclaimed legislative objectives and what the legislation is actually going to do in my experience with the bill C14 struggle is that they are resolution determined not to listen to anything I don't want to be too depressing for you maybe the court action here will produce something as it might in response to bill C14 but things are operating at a level which unfortunately makes it seem that there is a full of a range of objectives here that are beyond one's grasp as a decent human being I agree I think the Canadian Association of Refugee Lawyers formed somewhat reluctantly and with the idea that we have reached the point where litigation is sadly the first recourse instead of the last recourse for the reasons that you give nobody thinks litigation is a good way to go nobody and frankly it's not that I or anybody at Carl have excessive confidence in the courts either but for the reasons that you give that is this is the position we've been forced into there might be things that can hang at home and I hope that you find those things I hate this young lady the lovely yellow scarf I don't know my colleague for the question and so first of all I just want to stand up and applaud just to play double that I can see the federal government making argument that if the provinces wanted to provide and maybe they have made this argument and so then this way they get to a field and they get to the institutions while at the same time we have someone else holding the day I need to address that I was looking at the clock and I haven't talked about the provinces yet so that's great let me find out how to give a couple of historical explanations because refugee health care is at the Venn Diagram the overlap of immigration and health care you might have thought why haven't the provinces been providing this all along the historical explanation for it is because it arose before the provinces got into health care now had the federal government wanted to say look this is really a health care issue more than an immigration one we think the provinces should be footing the bill for health care that would have been a federal provincial argument that presumably could have been dealt with through consultation negotiation between the feds and the provinces indeed in the early 1990s something like that did happen Ontario provided more health care coverage to refugee claimants than it does now and it said feds we want you to do this and there was a wrangling and the feds ended up taking on more that could have been a productive engagement with the issue if one's goal was to say somebody's got to provide health care to these folks and we think it should be you if that's what's animating it that's what would have happened that wasn't the objective the objective was not actually to ensure that these people were covered so then of course what the feds say is oh well now Ontario has gone and done it well if you're suckers enough to do this fine but we're not paying for it so what happened to your argument about taxpayers then so really you just care about which taxpayer pays for it not whether taxpayers pay for it at all and of course the provinces stepping in is difficult for them they've said we're doing this on an interim basis we're not conceding that it's our responsibility we're going to do it we're going to build a feds for it that of course I think is political rhetoric so I think the story of the provincial federal involvement is a little bit complicated by issues of jurisdiction and history but suffice to say that had the feds actually been concerned more about who pays rather than whether somebody pays then this would have unfolded in quite a different way provinces like spoken out and taken a position of course I mean Ontario many provinces have spoken out Quebec was the first to step up and Quebec partially filled the gap Ontario most recently but the two partially filled the gap and what they have said is we are having to pay costs anyway because as predicted there are people coming to emergency wards bad debt going into hospitals and we're having to pay anyway and besides it's an intolerable situation it is intolerable morally, it's intolerable no matter public policy so the feds can now say great someone else can pay for it if you want to be a sucker as it were but it has happened in a way that is very problematic and the coverage is not ideal it's not complete but there it is Marisa? I'm wondering and I'm really not sure whether the discussion related so much with your efforts to radiate it but how international convention on basic and social and cultural rights would the fact that it would be in contravention of the basic requirements where all countries and now Canada doesn't have one of the international conventions directly in terms of immigration through domestic legislation but it seems in contraventions I mean so we've been part of the argument that we are making is that this violates various international legal obligations that Canada has some of which have been incorporated into Canadian law so we have we're making arguments both about the refugee convention so here just to randomly list a few that we think Canada is violating the refugee convention the convention on the rights of the child the international covenant and civil and political rights the convention on the elimination of discrimination against women so we certainly are arguing it and as a way of both buttressing the claim that this violates the charter and both and directly as part of Canada's international legal obligations in addition perhaps it's worth knowing that no other wealthy industrialized state does this and indeed under the European Union what are called the asylum directives all states are required to furnish minimum essential emergency care to all asylum seekers and even those who are refused asylum nobody else is as draconian as Canada in this way now the United States is a somewhat different case because of their they don't have the same sort of public healthcare system but even under the US system I think it's all pregnant women and children get public healthcare under Medicaid or Medicare including asylum seekers anyway nobody does it like this I think I'm sorry I'm kind of usurped I was just talking about this the two examples you gave were encouraging because the people didn't get the care they needed are there some examples of people who were equally ill who were denied care because I think the important thing is I think Canadians left right and sent their values that people get cared for when they need them and whether which pocket pays for it seems less important than ensuring that people who get the care they need some cover well there certainly are people going without care difficulty for us is that in trying to bring the case forward we need to have affidavits we proceeded by way of affidavits and what do we get we get doctors swearing affidavits about the people who have come to them some of whom have been turned away by other doctors but we can only hear about the ones who have actually come to them because we could not get apart from our litigants those people who either never went for medical care because they didn't think they were covered rightly or wrongly or those whose health conditions have deteriorated and who knows what has happened to them to swear affidavits and put their names on them but do we think it's happening do the doctors think it's happening yes everybody thinks it's happening and so how do you get those stories out so the media would want us to produce people like that it's just really hard to get people willing to talk about it because they and I have to emphasize this they legitimately fear reprisal it's not in their imagination yeah just to respond to a couple of points there was a case I believe in Saskatchewan where there was a woman she was a Belief of Latin America was in Saskatchewan and the diagnosed with cancer and required chemotherapy treatment and federal government and it hit the media and Saskatchewan ended up covering it so there are certainly cases that have made the news where individuals have been denied coverage by through ISHP where provinces and two your question around yes there are other provinces Nova Scotia and other provinces are in the process of developing interim programs similar to what Quebec and Ontario have we're not in a position to talk about it though Ontario has gone public because that's not your cabinet it's fully approved it's not public Nova Scotia it's still in development I guess if this came out of nowhere Nova Scotia is going to be a lag time there's been a huge lag time for us you know and if physicians who have already been doing building are suddenly confused about it you know and it's a tremendous piece of work to put in place in terms of what are we going to cover how are we going to cover who gets what ensuring that people get access to essential basic care and yeah and I know all of these ministries and all of the reporting all of those mechanisms that support that and I just thank you for providing those examples I should say and I to expand on that certainly people have been providing care on an ad hoc basis and provinces have been covering on an ad hoc basis I think from the provincial perspective if correct me if I'm wrong and certainly from any kind of healthcare perspective it is far less than ideal to have care provided on an ad hoc basis you know it just depends on the confluence of circumstances about who can get somebody's attention at the right time that's no way to run a healthcare system right and this is a situation that provinces have been forced into because of the way in which the federal government has introduced their regime there's a question back there I thought but I might have missed it I was just wondering is treatment for STIs other than HIV you know I looked at the list of it the other day and I don't remember let me just as a little footnote it's sort of interesting about HIV because in immigration law HIV has been resisted as a communicable disease or a public health risk for purposes of enabling people to visit and immigrate to Canada so there's a funny thing going on here because obviously anybody gets you healthcare that's what matters but curiously there was real controversy over labeling HIV as a public health risk because that was used to prevent people from entering Canada so it's a curious thing about the status of HIV in particular under this regime but I could directly to where the list is and you can look oh thanks so much that was excellent we took us through two sections of the charter section 7 and 15 and talked about some of the challenges that the case is encountering or is anticipating on those you didn't talk about section 1 and about the principles of fundamental justice and I wonder what sort of arguments the government has made and how effective this seems to be it's interesting on section 7 they do almost nothing under principles of fundamental justice and they have very little under section 1 their strong argument overarching argument is this is a legitimate policy choice get out of our way and on the principles of fundamental justice certainly we have argued that it is both arbitrary and disproportionate it's arbitrary to allocate healthcare on this basis it is arbitrary in the sense that there is no the claim what is called instrumental rationality you claim this is a cost saving measure here are the cost implications you claim this as deterring non you know deterring asylum seekers there is no evidence that this is a draw much less denying it as a deterrent we have gone after the arbitrariness and the obvious disproportionality of its impact on section 1 the government does is put forward reiterate the arguments that I gave to you as the fairness system integrity and so on and so forth but it's absolutely short on any kind of evidence in two questions rapid fire I suspect Joanna has been waiting patiently and then she results so I guess I'll build on the arbitrariness question because I think there is this presumptive rationality to the scheme and in turn the persuasive rationality on the basis of its following categories which are already existing in refugee law there's something about categories being inherent to that body of law that why if they're legitimate they are are they not legitimate to healthcare and so I wondered if this challenge has something to move on the underlying logic of the system of refugee claims and how arbitrary are those categories inside that scheme of sponsored, non-sponsored so forth and attacking some of the seemingly rationality of that scheme because that is the presumptive rationality that's driving the healthcare policy and you see the parallel being in the Aboriginal health context where the government uses the Indian Act and the rationality of existing distinctions in categories in the Indian Act to then run healthcare distributions so it seems like there's this presumption of non-arbitrariness of rationality because there's an underlying policy that short of challenging that will give you the foundation for the legitimacy of this policy so I tried to sort of get to that in a not very coherent way by saying even if you thought that there was rationality to the refugee regime classification for purposes of refugee law that does not demonstrate its rationality in its application in another domain namely healthcare so for example you may legitimately distinguish between minimum and maximum security inmates for purposes of how you house them but it's irrational to do that for purposes of healthcare allocation but let me also say apart from that there is certainly there's a constitutional challenge going on now to the safe country, the so-called designated country of origin because that's the new I guess category that's been introduced under the whoa under the new law so there are independently of the IFHP challenges going on to the rationality of that regime healthcare can actually be used to challenge going the other way too yeah to demonstrate yes all of that so this is all I have to say that it is almost impossible to keep up with all of the litigation litigation issues that are presented by the changes to immigration law but certainly we are challenging those as well one of the things that's very hard about using in a particularly section 15 to challenge what happens in immigration law is that the distinction between citizen and non-citizen is the ultimate inequality that is sanctioned by law and you're always bumping up against that always that yes unequality right and so it is particularly difficult to challenge and when you see that inequality between citizen and non-citizen then radiating metastasizing if you will, metastasizing outwards in fact all other domains to say that that inequality makes you unequal here too and there too and everywhere else that's really what's going on and what we're trying to get at so she was meant for and I'm just going to thank you very much for joining us today and just hold off that final round of applause as well as our next seminar is in just two weeks time on January 24th and we have the Honourable Ann McClellan the former Federal Minister of Health and our topic is the federal government, leader in health care Mr. Mark I hope I see many of you here with us again in two weeks thank you for your engaged questions and thanks