The Harper government’s recent decision to continue denying health care benefits to certain groups of refugees is deeply problematic not only because it means vulnerable people in this country will continue to suffer, and possibly die.
All Canadians — regardless of their views on refugee health care — should also be deeply alarmed by the fact that this week our government chose to blatantly ignore an explicit court order. This type of action cuts directly against the rule of law, one of the most fundamental principles in any democracy. Canadians need to know that this has happened. And they need to care.
In the refugee health care cuts case, the government lost in court. In July 2014, Justice Anne Mactavish of the Federal Court determined that cuts to refugee health care amounted to cruel and unusual punishment that could not be justified. She found that changes made in 2012 are putting lives at risk in a way that is unconstitutional.
The rule of law requires that we all obey court rulings — even when we lose or disagree. Respect for the rule of law makes sure that no person, organization or government is above the legal regimes that enable our society to function. It is a key mechanism for ensuring that the power we give to the powerful does not become absolute.
The rule of law does not mean that every court decision is always right. When parties lose in court, they have a right to appeal the decision through legal channels. When a government loses in court, it also has the right to propose new laws that aim to meet the same objectives or, even, to trigger a constitutional mechanism that allows it to proceed notwithstanding a rights violation.
No party, however, has the right simply to ignore what a court has required them to do. Even the government.
In the refugee health care cuts case, the government has chosen to appeal its loss to the Federal Court of Appeal. While some may find this decision disappointing, it is absolutely within the government’s right to do so.
The government’s decision to appeal the case has no impact, however, on the validity of the Federal Court’s original decision. After concluding that the 2012 changes to refugee health care were having a “devastating impact,” Justice Mactavish ordered that the legal instrument that changed the refugee health care scheme in Canada would stop having legal force on Nov. 4.
Once that instrument (an order in council issued in 2012) became legally “void,” it ceased having any effect on the laws that existed before it was passed. As a result, the government has, since Nov. 5, been legally required to provide refugee claimants with the same coverage it had before the 2012 changes.
To be clear, the government still has the power to change the scope and content of the health care coverage it provides to refugees. It can pass new laws or repeal the old scheme. It has done neither, which means it is bound by the legal order that existed before the changes in 2012.
The government also had the right to ask the Federal Court of Appeal to put a temporary “freeze” on Justice Mactavish’s order until after its appeal of her decision has been heard.
This freeze is called a “stay” and it ensures that a party is not required to comply with a lower court order that would cause it irreparable harm if the decision ends up being reversed on appeal.
The government chose to exercise this right and asked for a stay in the refugee health care cuts case. It lost this request: on Oct. 31 the Federal Court of Appeal confirmed that the government had to follow Justice Mactavish’s order beginning last week.
It has not done so. While certain refugee claimants have had their coverage restored, others have not.
Since the 2012 changes creating different levels of coverage for different people became void on Nov. 4, the government has no legal authority to draw these distinctions.
Its public statements that it is following the court’s order are blatantly false.
The result is that our government is now ignoring a court order and acting outside of the law. When individuals do this, there are severe consequences, including potential jail time. Canadians need to pay attention to what is happening and make sure there are consequences here too.
- Jennifer Bond is an Assistant Professor of Law at the University of Ottawa