Refugee health cuts: Unusual, but maybe not cruel

Should judges let the media be the gauge of outrage?

Richard Lautens/Toronto Star/Getty Images

Richard Lautens/Toronto Star/Getty Images

Pundits like me spend a lot of time feeling powerless. When a cabinetmaker or a farmer concludes his workday, he has got something of value he can literally point to. What does a columnist have? To use our own commonplace terminology: fish wrap—a printed object whose value deteriorates with each passing hour.

But the Federal Court of Canada has given us a miracle, an unexpected proof of our power. Hon. Justice Anne Mactavish, you may have heard, issued a ruling July 4 that reversed Conservative cuts made in 2012 to the Interim Federal Health Program (IFHP) for refugees and refugee claimants. She found, making pioneering use of Section 12 of the Charter of Rights, that the cuts resulted in “cruel and unusual treatment” for claimants who lost insurance privileges they would once have enjoyed.

As Justice Mactavish concedes, deprecating the removal of a welfare entitlement as “cruel and unusual treatment” is a fairly radical legal novelty. And a separate issue is the way in which “cruel and unusual” is defined. This phrase is of great antiquity in the Anglo-Saxon tradition and is no longer held to mean only what its component words betoken.

There is a multi-part test for establishing “cruel and unusual” behaviour. Among the questions are: Is the treatment “unacceptable to a large segment of the population”? Does it “shock the general conscience”?

Well, a judge can’t go out and hire Ipsos Reid to whip up a poll. So Mactavish looked at—newspapers and magazines! Humble organs of opinion! She noted that there were three groups of people who were clearly horrified by the IFHP cuts: doctors, who gave dissatisfied statements to the press; provincial politicians, whose luminous anger was conveyed through that same press; and editorialists and columnists, whose collective indignation, plopped on a page in haste, was compiled into a “compendium” for her perusal.

When is the last time anyone asked a cabinetmaker or a farmer to speak for the “general conscience”? It seems journalists can make law—can even, acting through an appellate judge, supersede law as made by so-called legislators.

This is pleasing to the ego, yet I am not as confident as Justice Mactavish that the Conservative cuts to the old refugee health arrangements are shocking to Canadians. One obvious problem with using pundits as an index of conscience is that people who are angry about something will write about it, and people who aren’t, won’t.

The old IFHP provided not only the health care ordinarily given free to citizens by the provinces, but also extra entitlements working Canadians typically devote part of their paycheques to, including drug coverage, vision care, dentistry and contraception. Refugee claimants typically became eligible for IFHP immediately upon setting foot in the country—and remained eligible until they were removed from Canada, even if their refugee claims failed.

In her decision, Justice Mactavish works hard to convince us that this situation was not unfair to Canadian citizens. She shrugs off the idea that Canadians’ obligations to low-income fellow citizens might be different from their duties to foreign visitors whose formal claims to refugee assistance have failed. But the Conservatives certainly seem to have thought there was some ethical anomaly worth exploiting. In 2012, they took “non-essential” items like annual checkups away from successful refugees, and stripped nearly everything short of treatment for dangerous infectious diseases from the unsuccessful ones.

The Conservatives admitted that one purpose of this establishment of care tiers was to dissuade refugee claims. One of the individual applicants in the lawsuit is a diabetic Afghan gentleman whose refugee claim was rejected. Canada is too merciful to forcibly return him to a dangerous homeland, and in the meantime he does not earn enough to afford insulin. The other individual is another failed claimant from Colombia: he is in Canada lawfully because his wife’s claim succeeded, but his own failed claim, thanks to a donkey-like application of principles, rendered him ineligible for an urgent eye surgery.

These are hard cases that could have been rectified by means of modest tweaks. Justice Mactavish instead threw out the whole 2012 IFHP revision, citing a further panoply of ill-documented or downright hypothetical cases in which the effects of the revised IFHP might also be “cruel and unusual.”

This procedure has met with near-universal approval from journalists. We, after all, sort of helped write the ruling. But what if the Conservatives run against it in 2015, challenging the media’s reading of the nation’s “general conscience”. . . and they win? Should we really be so sure we speak for you?




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Refugee health cuts: Unusual, but maybe not cruel

  1. “These are hard cases that could have been rectified by means of modest tweaks.”

    Which is exactly what the government could have done in the first place instead of introducing the legislative equivalent of a sledgehammer to kill a couple of houseflies.

    • I imagine that making exceptions through “modest tweaks” would bring on more problems, with every needy refugee trying to claim that it must have something or other in order to maintain their health. Usually, with laws in general, that kind of tweaking becomes standard, doesn’t it, as loopholes must be closed or acknowledgment of a more effective means becomes apparent. I don’t see suggestions of more effective means of cutting down the refugee problem, or of preventing money going to where it’s not most needed. We have to put Canadians first, surely.

  2. “But what if the Conservatives run against it in 2015, challenging the media’s reading of the nation’s “general conscience”. . . and they win? ”

    That’s easy.
    Assuming the Conservatives are running on a “cutting of services” platform and receive 39% of the vote, while the remaining 61% of votes are captured by parties with “maintaining services” platforms, the Conservatives will get a majority and the media will declare that Canadians have expressed their desire to cut the services.

    • Which of the opposition parties is going to campaign on giving failed refugee’s services that Canadian taxpayers don’t receive? You really think that would win any votes?

      • Turned off the idiot box and read the ruling yet, Bill?
        It’ll save you begging questions.

  3. This ruling is coming dangerously close to establishing a positive right to publicly-funded health care. If courts start mandating public expenditures, we could be in serious trouble as a country.

  4. Those “Doctors” in the picture can work for FREE if they care so much………….

    • That’s exactly what health care workers are doing, though I don’t think it requires caring “so much” – just the possession of a normal human conscience.

      • There are not any healthcare workers working for free for refugees. Stop making things up.

        And shouldn’t those healthcare workers be working on Canadian taxpayers who pay their salaries, instead of on failed refugees? Wait times for all kinds of procedures are through the roof in Canada, yet treating failed refugees with greater services than Canadians receive is your priority?

        • Just about that entire comment is wrong – even the question.

  5. In response to Lenny, who argues that the doctors in the picture are working for free, I would like to say that anytime doctors working in Canada – who have gone through the required adaptation to Canada’s standards and at Canada’s expense – use their time to treat refugees, they are taking precious time away from Canada’s citizens. As we know, there is a shortage of family doctors in Canada and waiting times are still not great at hospitals.

    I don’t know why some people don’t appear to have a “conscience” when it comes to our own citizens, but extending generosity to others even though we can’t afford to is practically expected.

    • I guess the only thing worse than those Doctors who treat uninsured refugees are the ones that go overseas with Medecins Sans Frontieres or the Red Cross. They must be sociopaths.
      But seriously, let me know which Canadians are receiving diagnostic, prenatal, or any other essential care because their doctors are too busy treating uninsured refugees.

  6. As for the media wanting to speak for Canadians, in situations such as this, I just don’t know that hearing us third-hand is going to make a difference.

    Re the prostitution bill, I spoke out in discussions time after time about my concern over brothels and yet no mention of brothels has been made in the govt’s new regulations on prostitution, coming from the Supreme court’s overturning of the 3 issues.

    For that issue – of prostitution – there was a gov’t site where people could give their views (and again, I did that too). I think the media’s role is to draw such matters to the public’s attention and let them discuss them and be shown where they can inform the gov’t. But I don’t think that it should be seen as the media’s role to make decisions on our behalf. They’re still political, and will make interpretations their own way for their own agenda. How to stop that?

  7. If it’s “cruel and unusual” to not give free eye glasses to a failed refugee, how is it not “cruel and unusual” to not give free eye glasses to Canadians who actually pay taxes? It seems this “justice” is of the belief that the federal government should never cut services, to anybody, anywhere, ever.

    A quick perusal of Anne Mactavish’s rulings, however, indicates a very clear activist agenda from this “judge”, who seems to think that her job is to override the democratic will of Canadians at every turn. She seems to believe it’s her job to dictate Canada’s policies to it’s population, which is very scary for a judge to be thinking that way.

    • If you think it’s about “eye glasses” I’m pretty sure you didn’t read the ruling, or even have the faintest clue what you’re talking about.
      Let me guess, you heard that on Sun News?

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