Do the 2012 Changes to the IFHP Violate Section 7 of the Charter?

[493] Section 7 of the Charter provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

3 Indeed, some academic commentators have suggested that the Supreme Court’s decisions in Chaoulli and Insite make it “clear that the Charter has become ... an important tool for policy change in the health care field”: Matthew Rottier Voell, “PHS Community Services Society v. Canada (Attorney General): Positive Health Rights, Health Care Policy, and Section 7 of the Charter” (January, 2012) 31 W.R.L.S.I. 41 at p. 16 citing Christopher P. Manfredi & Antonia Maioni, “Judicializing Health Policy: Unexpected Lessons and an Inconvenient Truth” in James B. Kelly & Christopher P. Manfredi, eds, Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (Vancouver: UBC Press, 2009) 129 at 137.

[494] I understand the parties to agree that the onus is on the applicants to prove the violation of constitutional rights: Chaoulli, above at para. 30. This violation must be proved on a balance of probabilities: Khadr, above at para. 21.

[495] I also understand it to be common ground that the test to be applied in determining whether or not there has been a violation of section 7 of the Charter is the two-part test established by the Supreme Court of Canada in cases such as Gosselin v. Quebec (Attorney General), 2002 SCC 84 at para. 75, [2002] 4 S.C.R. 429; Chaoulli, above at paras. 29 and 109, Insite, above at para. 84, and R. v. Malmo-Levine, 2003 SCC 74 at para. 83, [2003] 3 S.C.R. 571.

[496] That is, the applicants must demonstrate:

1. That the government action in issue deprives individuals of their right to life, liberty, security of the person;

2. If so, that this deprivation was not carried out in accordance with the principles of fundamental justice.

[497] The first question, then, is whether the modifications to the IFHP implemented through the 2012 OICs deprive persons seeking the protection of Canada of their right to life, liberty or security of the person. In addressing this question, I note that the Supreme Court has held that government action that interferes with any of these rights will “engage” this provision of the Charter or constitute a “deprivation” under section 7: Insite, above at para. 85.

[498] The applicants say that the 2012 modifications to the IFHP have affected individuals’

section 7 rights to life and to security of the person. Because those seeking the protection of

Canada are generally unable to afford to pay for medical services, the changes to the IFHP will expose them to a risk of not having access to basic and necessary health care, which will in turn put lives and the security of these persons at risk.

[499] The right to security of the person is also implicated in this case, the applicants say, because of the severe psychological distress caused by being denied the health insurance coverage that had previously been made available to those seeking the protection of Canada.

[500] The applicants acknowledge that although the government may not be prohibiting refugees and asylum seekers from obtaining health care per se, the government is nevertheless creating a situation of deprivation in which the lives and the security of the person of vulnerable individuals are being jeopardized.

[501] According to the applicants, the government should have known that the vast majority of affected individuals would be unable to pay for health care or private health insurance. It should, moreover, have also been aware that philanthropic access to health care for these individuals might not be consistently and uniformly available to them.

[502] By reducing IFHP health insurance coverage for individuals who cannot afford to pay for their own health care or for private health insurance, and for whom alternative avenues of access to health care may be neither consistent nor satisfactory, the applicants say that the Governor in Council has effectively erected a barrier to essential health services for refugees and asylum seekers.

[503] According to the applicants, this constitutes a deprivation of section 7 rights that is at least as serious as the bar to accessing private health insurance that was found to constitute a section 7 deprivation in Chaoulli.

[504] The applicants further submit that their argument does not require a finding by this Court that the Government of Canada has a positive duty to provide state-funded health care to those seeking its protection. Rather, what they challenge is the withdrawal of a previously available service, which exposes vulnerable individuals to risks to their lives and to the security of their persons.

[505] The respondents say that what the applicants are asserting is a right to state-funded health care under section 7 of the Charter, and that there is no positive obligation on the Government of Canada to provide health insurance coverage to those seeking its protection. In support of this contention, the respondents note that Canadian law to date has overwhelmingly held that section 7 of the Charter does not create or impose a positive obligation on the state to provide any necessities to maintain life and the security of the person.

[506] The respondents recognize that in Chaoulli, the Supreme Court held that while the

Charter does not confer a free-standing constitutional right to health care, if the government does choose to put a health insurance scheme in place, it must comply with the Charter.

[507] However, the respondents say that the 2012 OICs do not cause a deprivation of medical care, nor do they prevent or prohibit access to it. According to the respondents, it remains open to any refugee, refugee claimant or failed refugee claimant who is not otherwise eligible for

IFHP coverage or specific services or products under the IFHP to obtain such care, services or products by other means.

[508] This distinguishes this case from the situation in Chaoulli, where the question was

whether residents of the Province of Québec who were prepared to spend their own money to get speedier access to health care could be prevented from doing so by the state. As a result, the respondents say that the rights at issue in this case are economic in nature, and are not protected by section 7 of the Charter.

[509] Finally, the respondents say that even if there is a deprivation of section 7 Charter rights in this case, the 2012 OICs are not the operative cause of that deprivation.

[510] As will be explained in the next section of these reasons, after giving their arguments careful consideration, I have concluded that the applicants’ section 7 claim must be dismissed as what they seek is to impose a positive obligation on the Government of Canada to fund health care for those seeking the protection of Canada. As sympathetic as the applicants’ arguments may be, the law does not currently recognize a section 7 Charter right to state-funded health care.