Law Times

Law Times • March 9, 2015 Page 11 www.lawtimesnews.com Refugee health-care ruling Groups abandon fight over government compliance BY MICHAEL McKIERNAN For Law Times dvocacy groups that successfully challenged the constitutional- ity of cuts to refugee health care in court have reluctantly aban- doned a fight to force the federal govern- ment to comply with the ruling after the judge who made it refused to wade back into the case. In July last year, Federal Court Justice Anne Mactavish declared changes to the interim federal health program in 2012 unconstitutional for violating ss. 12 and 15 of the Charter of Rights and Freedoms but suspended its effect for four months to give the government time to respond. After failing to get Mactavish's deci- sion stayed while under appeal, rather than simply reversing the 2012 cuts the federal government responded with a temporary health-care policy in November. This new version reversed some, but not all, of the 2012 cuts, prompting accusations that the government had failed to comply with Mactavish's decision from the Canadian Association of Refugee Lawyers, Cana- dian Doctors for Refugee Care, and Justice for Children and Youth, the groups that launched the initial challenge. The groups asked Mactavish to clarify her judgment and order the government to comply with it. But on Feb. 5, the judge dis- missed their motion. "While the applicants may have other avenues of recourse available to them to ad- dress their concerns, I have concluded that having already issued a fi- nal judgment in relation to this application, I no lon- ger have jurisdiction over this matter," she wrote. Mactavish found the groups were effectively seeking "not the 'enforce- ment' of my July 2014 judgment, but a ruling that the 2014 Federal Health Program violates sections 12 and 15 of the Charter." As a result, they'd need to seek a separate judicial review, according to Mac- tavish. "While there may be a question as to whether this new policy is Charter- compliant, that question should be decided in the context of a new application for judi- cial review, on the basis of a proper eviden- tiary record." Emily Chan, who acted for Justice for Children and Youth in court, says she was disappointed by Mactavish's latest decision. "The end result means that the only way to challenge the temporary measures is to start from scratch, and the reality is that we are not going to start from scratch. It's unre- alistic as a matter of resources because the time, effort, and money it would take is just immense," says Chan. Lorne Waldman, who represented Ca- nadian Doctors for Refugee Care in the Federal Court application, says the groups still believe the government has violated Mactavish's original decision and even considered bringing con- tempt proceedings against it to enforce compliance with the judgment. How- ever, he says they've now agreed to focus their ener- gy on the government's ap- peal of the original ruling. "We are very hopeful we will be successful at the Federal Court of Appeal. Justice Mactavish made some very strong findings that we think are pretty un- assailable from a legal point of view which will make it very difficult for the gov- ernment to overturn." In a statement, Citizen- ship and Immigration Canada spokesman Remi Lariviere said the government's tem- porary health-care measures are consistent with Mactavish's ruling. In addition, he said the government's "position is that the 2012 reforms are consistent with the Charter." The 2012 cuts at the heart of the dis- pute removed refugee claimants' access to coverage for supplemental health services such as drugs, dental, and vision care. The program would cover medication and immunization only where there was a risk to public health or safety. For failed claimants and those from designated countries, the government cut off access to even the basic coverage plan. Following Mactavish's ruling declaring those cuts unconstitutional, the govern- ment introduced its temporary measures pending the outcome of its appeal with services restored to various groups of claimants on a sliding scale. At one end, children under 19 now have the same cov- erage as under the pre-2012 program while pregnant women have access to all except a few supplemental benefits. The policy also removed the distinction between refugees based on their country of origin. However, the temporary measures have left several groups of claimants without ac- cess to drugs or supplemental benefits, in- cluding privately sponsored refugees and protected persons. Failed claimants also re- main ineligible for any coverage unless they pose a risk to public health or safety. "We are doing this because the court has ordered us to do it," Citizenship and Im- migration Minister Chris Alexander told Parliament in November. Maureen Silcoff, who acted for the Ca- nadian Association of Refugee Lawyers in court, says she was unimpressed with the minister's motivations. "It's a little alarming that the minister has only decided to cover health care for pregnant women and children only be- cause a court has ordered him to," she says. "I find it shocking that despite a very clear ruling from the court, the govern- ment feels at liberty to allow whole groups of people to remain at risk. There are still a lot of people who it seems Justice Mac- tavish intended to be covered who are not covered under the new policy. The gov- ernment has basically cherry-picked who they want to cover and who they want to remain at risk." LT FOCUS New Edition The 2015 Annotated Citizenship Act Henry M. Goslett and Barbara Jo Caruso Gain an up-to-date understanding of how the Citizenship Act works, how it has been applied, and what principles of law are relevant to making determinations. New in this Edition Completely updated and revised to reflect all noteworthy developments to the Citizenship Act since the last edition, The 2015 Annotated Citizenship Act includes: • Amendments to the Citizenship Act, including those introduced by the Economic Action Plan 2013 Act, No. 1 (S.C. 2013, c. 33) and the Strengthening Canadian Citizenship Act (S.C. 2014, c. 22) • Amendments to the Citizenship Regulations, 1993, including those introduced by SOR/2014-20 and SOR/2014-186 • Amendments to the Canadian Passport Order, SI/81-86, including those introduced by the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) • Numerous updates to the case law and commentary comprising the annotations Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986442-65203 $124 Softcover + CD-ROM approx. 400 pages November 2014 978-0-7798-6442-3 00226ID-A47487 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. A 'The government has basically cherry- picked who they want to cover and who they want to remain at risk,' says Maureen Silcoff.

• Cover