Update:
In an order issued by the Federal Court of Appeal in February, LEAF was denied leave to intervene in this appeal.
The reasons for Justice Stratas’ order are of concern because he gives a narrow interpretation to the test for leave to intervene. In particular, he suggests that an intervenor must have a “direct interest” in the issues on appeal, which is a very challenging standard for a public interest organization to meet.
Contrary to Stratas JA’s reasons, LEAF did not seek to raise a new issue not raised at trial. Rather LEAF sought to emphasize an issue that did not receive sufficient attention at trial: the gendered impacts of the cuts to refugee health care. Our arguments about intersectionality would have provided the Court with important contextual submissions that would assist the Court in rendering a fair decision.
Stratas JA likened LEAF’s intervention on gender grounds to a pharmaceutical company seeking leave to intervene in a patent case simply because it has a patent. This is a troubling comparison given that LEAF carefully chooses the cases in which it seeks leave to intervene and does not do so lightly. LEAF is a non-profit, charitable organization that relies heavily upon pro bono assistance, rather than a multinational, well-resourced industry player. LEAF’s application to intervene, based on its expertise in gender issues, was welcomed by the respondents in the appeal.
Although Stratas JA stated that LEAF’s application was filed late, is should be noted that there is no time limit in the Federal Court of Appeal Rules for filing intervenor motions. LEAF filed within a reasonable time and caused no prejudice to the parties. Indeed, additional intervenor applications were filed not only later than LEAF’s application, but indeed after the February dismissal of LEAF’s application.
LEAF is deeply disappointed that the FCA has chosen not to hear about the gendered impacts of the cuts to refugee health care in this appeal, and will follow the fate of the additional intervenor applications with interest. LEAF will continue to monitor the appeal and is committed to working to protect and promote the equality rights of refugee claimants in Canada.
LEAF has filed a motion for leave to intervene before the Federal Court of Appeal in the Canadian Doctors for Refugee Care et al v Canada case.
In February, 2013, the Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, two affected individuals (Daniel Garcia Rodriguez and Hanif Ayubi), and Justice for Children and Youth challenged the legality of federal government health care cuts to refugee claimants before the Federal Court.
In a July 2014 judgment, Justice Anne Mactavish declared the 2012 Orders in Council creating the Interim Federal Health Program (IFHP) to be of no force or effect as of 4 November 2014. In granting the application, Justice Mactavish rejected the Applicants’ administrative law and s. 7 claims, but held that the 2012 changes to the IFHP violate both ss. 12 and 15 of the Charter in a manner that is not saved by s. 1.[1] Concerning the violation of s. 12, the Court found that the “affected individuals are being subjected to ‘treatment’ as contemplated by section 12 of the Charter, and that this treatment is ‘cruel and unusual’. This is particularly, but not exclusively, so as it affects children who have been brought to this country by their parents.”[2] Justice Mactavish found that the “2012 modifications to the IFHP potentially jeopardize the health, and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages Canadian standards of decency.”[3] She issued a declaration that the Orders in Council that created the 2012 IFHP are inconsistent with ss. 12 and 15 of the Charter and are of no force or effect.
The federal government unsuccessfully sought a stay against Justice Mactavish’s order while it appeals her judgment to the Federal Court of Appeal.
LEAF is seeking leave to intervene in the appeal because there is clearly a gendered impact to the 2012 IFHP cuts. If granted leave, LEAF will argue that refugee women are disproportionately affected by the IFHP cuts because of their gender – for example, the lack of coverage for prenatal and antenatal care severely affects refugee women. Further, as LEAF argued in Johnstone v CBSA, caregiving of children, family members with disabilities and elders still predominantly falls to women, and refugee women are no different. Thus when a refugee woman is ill and cannot get care, this creates a disproportionate, adverse and LEAF will argue, discriminatory effect upon refugee women.
Women are persecuted worldwide because of their gender. The dangers refugee women and girls face are often related to the gender roles assigned to them and to the lack of gender equality between the sexes. Women often suffer harms which are either unique to their gender, such as female genital mutilation/cutting, forced or early marriage, threats of violence and/or so-called “honour crimes”, dowry-related deaths or forcible abortion, or which are more commonly inflicted upon women than men, such as rape, sexual slavery, forced prostitution, forced or coerced sterilization, and trafficking, domestic violence and the imposition of the death penalty or other physical punishments existing in discriminatory justice systems. LEAF will argue that gender-related claims to asylum may intersect with other proscribed grounds of discrimination, including age, race, ethnicity/nationality, religion, health, class, caste, as well as being lesbian, bisexual or transgender and other status.
LEAF would offer a unique perspective to the Court given that the parties did not specifically focus upon the effects of the cuts upon women refugee claimants. LEAF would present the Court with an understanding of the situation of women refugees that causes these cuts to be particularly egregious. LEAF would draw upon our almost three decades of Charter litigation experience to assist the Court with its analysis of this critically important program for some of the most marginalized and vulnerable women in Canada.
Since 1985, LEAF has assisted the courts in numerous cases with the interpretation and application of equality rights under the Canadian Charter of Rights and Freedoms. LEAF’s mandate has also driven its active involvement in matters of public policy and law, particularly with respect to issues involving human rights and discrimination. Please support LEAF’s work and make your 2014 tax-deductible charitable donation today.
[1] Canadian Doctors for Refugee Care et al v Canada (CIC), 2014 FC 651 online FCC: <http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/72437/index.do> (CDRC v Canada); at paras 1078-1085
[2] Ibid. at paras 636-637, 690-691, 1080
[3] Ibid. at paras 638-640, 646-661
Since 1985, LEAF has assisted the courts in numerous cases with the interpretation and application of equality rights under the Canadian Charter of Rights and Freedoms. LEAF’s mandate has also driven its active involvement in matters of public policy and law, particularly with respect to issues involving human rights and discrimination. Please support LEAF’s work and make your 2014 tax-deductible charitable donation today.
