Federal Court

Constitutional Law

Decision to eliminate benefit previously provided was ‘cruel and unusual’


Interim Federal Health Program (IFHP) provided health insurance coverage to refugee claimants and others seeking Canada’s protection. Governor in Council passed Orders in Council (OICs), which significantly modified IFHP. Level of coverage was reduced for many and eliminated for others. Three public interest organizations and two individuals brought application to declare OICs invalid. Application granted. OICs violated s. 12 of Canadian Charter of Rights and Freedoms and not saved by s. 1. GIC had intentionally targeted group of poor, vulnerable and disadvantaged individuals, to encourage them to leave country more quickly once refugee claims rejected, and to deter “bogus” claimants from seeking protection of Canada. In unusual circumstances of case, decision to limit or eliminate benefit previously provided to discrete minority of individuals coming within administrative control of government subjected them to “treatment” for purposes of s. 12. Treatment was “cruel and unusual”, particularly as it affected children who had been brought to Canada by their parents. Cuts to health insurance affected by OICs potentially jeopardized health, and indeed very lives, of innocent and vulnerable children in manner that shocked the conscience and outraged our standards of decency. Declaration of invalidity suspended for four months.

Canadian Doctors for Refugee Care v. Canada (Attorney General)

(Jul. 4, 2014, F.C., Anne L. Mactavish J., File No. T-356-13) 244 A.C.W.S. (3d) 73.

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