We have reached a strange pass in Canada, when “it might be constitutional” is becoming a standard defence of government policies.
We have seen a proposed prostitution law carefully crafted to thread its way — maybe — through perceived loopholes. Now we have a court decision on refugee health care that, if it stands, will doubtless send the lawyers and bureaucrats back to the drawing board to change a hair here, a hair there, to get a bad policy through.
The result is a system of tape-and-chewing-gum fixes to bad laws, which is not a good use of our court system — or our Parliament.
In 2012, the Conservative government reduced or eliminated health-care coverage for many refugee claimants. On Friday, the Federal Court said these changes are unconstitutional.
The court did not buy the argument that the Charter guarantees of life, liberty and security of the person creates the right to state-funded health care in Canada. But it decided that the changes, in part because of their effect on children, do violate the Charter right “not to be subjected to any cruel and unusual treatment or punishment.”
“The 2012 modifications to the Interim Federal Health Program potentially jeopardize the health, the safety and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency,” the decision reads. And because the level of health coverage — for example, obstetric care — depends in part on the refugee claimant’s country of origin, the court ruled that the changes also violate the equality provisions in Section 15 of the Charter of Rights and Freedoms.
The government was unable to show to the court’s satisfaction that the policy reduced “bogus” refugee claims.
And what of the government’s argument, as famously seen in a petition on Jason Kenney’s website, that the original policy was unfair to “taxpaying Canadians” because it provided too much coverage to refugees?
That argument didn’t convince the court, which pointed out that many refugee claimants don’t have much money or, in many cases, the legal ability to earn money, and thus should be treated much the same as low-income Canadians while their status is under review by the government. The court’s conclusion that the law is unconstitutional is debatable, and we can be sure the government will debate it.
The judgment is worth reading, though, in part for the interesting analysis of several evolving areas of Canadian law, and in part for the heart-wrenching stories of the people affected by these changes.
Even if you come away unconvinced of the soundness of the court’s conclusion, it is hard to come away sanguine about the effects of this policy.
A policy that “shocks the conscience and outrages our standards of decency” is not defensible, politically and morally, even if it is legal. It is hard to argue against the court’s opinion that the government “has intentionally set out to make the lives of these disadvantaged individuals even more difficult than they already are in an effort to force those who have sought the protection of this country to leave Canada more quickly, and to deter others from coming here.”
This judgment might not be the final word on the constitutionality of refugee health care, but it’s a damning critique not only of a particular policy, but also of the way our government makes policy in general.
