This past July, Justice Anne Mactavish of the Federal Court found that the 2012 changes to the Interim Federal Health Program violated the Charter under sections 12 and 15, that it amounted to “cruel and unusual” treatment and that these violations were not found to be justified under section 1. The legislation was consequently struck down by the Court. The declaration of invalidity was suspended for a period of four months for practical reasons such as allowing the government sufficient time to implement a new policy of health care for refugee claimants.
Unfortunately, rather than immediate compliance, following the ruling, the Government decided to appeal the decision. In the meantime, its four month deadline (November 4, 2014) to implement new changes was fast-approaching. In an attempt to gain more time, the Government sought to stay the judgment of the Federal Court pending the appeal of this decision. Thankfully, on Friday, October 31, 2014 Justice Webb dismissed the government’s stay motion.
Perhaps the decisions of Justice Mactavish and Justice Webb are a sign of what is to come if the Government in fact continues with the appeal of the Federal Court decision. The government must accept the rule of law, and the fundamental constitutional rights enshrined in the Canadian Charter of Rights and Freedoms (`Charter`). The writing is on the wall; not only will the Federal Court of Appeal uphold the Federal Court decision, so will the Supreme Court of Canada if the government insists to pursue this litigation.
The idea that it can ever be justified to deny access to health care to vulnerable refugees, including children as a cost saving measures is unthinkable, let alone rational or justifiable; it is also not in line with our Canadian values and long standing commitment to promoting international human rights and the rule of law. We are a proud nation of Canadians and yes, it seems we now have to safeguard what it means to be a Canadian!
For over fifty years, the Government of Canada has funded comprehensive health coverage for refugee claimants seeking protection within its borders. However, in 2012 the Conservative government adopted significant measures that considerably reduced the level of health coverage available to these vulnerable individuals. What has changed in these last two years? Why did the government believe these amendments could possibly meet the requirements of the Charter in the first place? In fact, nothing has changed, and the Charter does not permit the refugee health cuts regime that the government implemented, without due regard to its real life consequences on the lives of those affected; nor can these violations ever be justifiable in a free and democratic society.
In the stay motion brought by the government, the Court applied the three part test in the Supreme Court decision of RJR-Macdonald v. Canada . At stage two of the test, Justice Webb focused his analysis on the irreparable harm to the appellants if the stay was not granted. He disagreed with the government’s argument that a policy vacuum would be created because the 2012 program was deemed to be of “no force or effect”. In unequivocal terms, Justice Webb described his position at paragraph 10 of his judgment:
 It does not seem to me that this would be the result of denying the stay. The Judgment provides that the 2012 OICs “are of no force or effect”. This would mean that if the stay is not granted, everyone would be in the same position as if the 2012 OICs had not been adopted. Therefore, whatever changes the 2012 OICs made to the 1957 Program would not be made. There would be no policy vacuum. The 1957 Program would simply not be affected as there would not be any Order in Council to modify it. Since the 1957 Program operated for over 50 years (with some modifications), it is not at all clear while it could not continue awhile longer. I do not accept the appellants’ argument that not granting the stay would cause the harm as submitted by the appellants. [Emphasis Added]
The Appellants also argued at this stage of the test that additional costs would be incurred as a result of the new changes required and that there would be harm caused if the program was changed multiple times. Justice Webb disagreed with the above arguments and concluded that the government could mitigate any harm “by simply reverting back to the 1957 Program (which was in place for over 50 years, with some modifications)” until the appeal of the judgment was finally disposed of by the Court. Yet, because the government is charged with “promoting and protecting the public interest” and that the 2012 legislation was adopted pursuant to that responsibility, the Court assumed that the Appellants would indeed face irreparable harm if the stay was not granted.
However, the Government failed to meet the last prong of the test (balance of inconvenience), namely that the harm they would suffer would be greater than the one suffered by the Respondents if the stay was not granted. The Supreme Court inRJR-Macdonald clearly stated that “[t]he factors which must be considered in assessing the “balance of inconvenience” are numerous and will vary in each individual case”. It was also noted in that case that public interest considerations in constitutional cases can be assessed by the Court at this stage of the test.
The Respondents argued that children would be undoubtedly harmed if the stay was granted and the 2012 program stayed in effect despite being deemed unconstitutional. In July, Justice Mactavish had highlighted in her reasons for judgment the serious impact that children faced under the new 2012 health care system. She noted that they are particularly vulnerable and require protection and access to adequate health care. Justice Webb reiterated her sentiments on Friday in his reasons and stated at paragraph 23:
 […] If, however, the stay is not granted and during the period after the judgment is effective and before the appeal of the decision is determined by this Court, there is no one who would be affected by the changes made by the 2012 OICs, there would be no harm to the appellants since there would be no additional health care costs that the appellants would incur. On the other hand, if there is such a child (or other person) before the appeal is determined by this Court, there could be serious irreparable harm if the child (or other person) does not receive medical treatment. It seems to me that this tips the public interest in favour of the respondents. [Emphasis added]
The Appellants also argued that “other health care options” are available to individuals affected by the 2012 changes to the IFHP. Justice Mactavish had already addressed the “numerous shortcomings” of the other health care options that had been proposed by the Government in her judgment. Justice Webb noted in his reasons that a stay motion was not the appropriate forum to challenge that finding.
In the end, the Court found the Respondents had successfully demonstrated that the public interest component of the balance of convenience test was tipped in their favour and the motion was therefore dismissed. Justice Webb at paragraph 26 concluded by stating that:
 […] The harm that would be caused by reverting to the 1957 Program and delaying the implementation of the changes made by the 2012 OICs (if the stay is denied and the appellants are successful in the appeal before this Court) is outweighed, in this case, by the harm that would be suffered by those who would have reduced health coverage under the 2012 Program (if the stay is granted and the respondents are ultimately successful).
The Federal Government’s disappointing losing streak continues with this important decision though it still has plans to follow through with its appeal. According to the Canadian Press, Kevin Menard, a spokesman for Immigration Minister Chris Alexander was critical of the court’s decision. “Our government disagrees with the court’s flawed decision and will continue to do what’s necessary to protect the interests of Canadian taxpayers and genuine refugees,” he wrote in an email. Unfortunately, this will only mean more litigation, and more unnecessary time and resources wasted, which is certainly not in the interest of Canadians who are paying the legal bills for the government lawyers having to fight this losing battle!
 RJR – MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311 at 313.
 Canada (Attorney General) v. Canadian Doctors for Refugee Care 2014 FCA 252 at 10. Hereinafter, [Canadian Doctors].
 Ibid at para. 14.
 Canadian Doctors, Supra at 14.
 Canadian Doctors, Supra at 17.
 CBC News: The Federal government’s court-case losing streak, online at http://www.cbc.ca/news/politics/the-federal-government-s-court-case-losing-streak-1.2696593 [accessed on 6 November 2014].
 CBC News: Refugee health cuts: Ottawa has until Nov. 4 to put in place new policy, online at: http://www.cbc.ca/news/politics/refugee-health-cuts-ottawa-has-until-nov-4-to-put-in-place-new-policy-1.2820485 [accessed on 5 November 2014].