Getting the “Treatment”

The woof and warp of the law is fascinating . A recent Judgment of the Federal Court about immigration raises intriguing issues about the Government’s anti-crime agenda.

Specifically, the case hints that some of the Governments corrections policies may fall  under the ambit of Section 12 of the Canadian Charter of Rights and Freedoms.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.(my emphasis)

The case is rather busily titled –  Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, Daniel, Garcia Rodriguez, Hanif Ayubi and Justice for Children and Youth v. Attorney General (Canada) and Minister of Citizenship and Immigration. It deals with the Government’s policy of denying health care services that are similar to those given to welfare recipients to refugee claimants from “Designated Countries of Origin”.  DCO’s are those that the Government deems safe and almost never giving rise to legitimate claims. The government wished to dissuade presumptively “bogus” claimants from DCO’s from seeking asylum in Canada and therefore invoked a series of penalties to that end. These included various means of fast-tracking DCO claimants toward early rejection and of reducing their legal recourses within the refugee settlement process, as well as restricting their entitlement to health services. The idea was that potential fraudulent claimants would hesitate to come to Canada faced with such restrictions.

In fact there has been a reduction of claimants from these countries, so in a strictly numerical sense the policy has worked. The problem, as is often the case, is the collateral damage. At the end of the day, there will be folks from abroad who may or may not have good asylum cases who are denied the health services that are afforded our poorest citizens. These people may not have the means to repatriate and might have a legitimate fear of doing so.

The question became whether the specific purpose of dissuading immigration by depriving disadvantaged immigrants of basic means was a “treatment” under s.12 and then whether it was cruel and unusual.  If so ,the question remained of whether, under s.1 of the Charter, the measures were:

s.1…………demonstrably justified in a free and democratic society.

The Court held that the health care deprivation, although not “punishment”, was indeed a treatment in that it consisted of “…a process or manner of behaving towards or dealing with a person or thing” in a context of “… an active state process in operation, involving an exercise of state control over the individual”.

The Court then decided that the measure was indeed cruel and unusual because it disclosed conduct which is “so excessive as to outrage [our] standards of decency” as assessed having regard to”…. the evolving standards of decency that mark the progress of a maturing society”.

With respect to the “demonstrable justification” of the measure, the Court acknowledged that the Government’s purposes of cost containment, fairness to Canadian taxpayers and the integrity of the refugee determination system were legitimate. Nevertheless it held that there was no “pressing and substantial need” to take the health care decision in order to attain those purposes. (Herein the court cited the rules established to consider s.1 in the R. v.Oakes Supreme Court Judgment.) The court decided that the other provisions in the legislation were sufficient to meet the government’s legitimate ends and that it was not necessary to “pile on” by depriving people of possible essential health care.

The case has been appealed and it must be admitted that the Court’s interpretation seems to stretch the envelope a bit. For one thing, it is not clear that the health care measures would “outrage” the public, as was required in the original Supreme Court decision on whether cruel and unusual punishment or treatment apply. That said, a novel perspective on how to deal with patently mean-spirited policy is raised – and we do indeed live in an era of “evolving standards of decency” (well, changing standards, anyway.)

Since mean-spiritedness is the hallmark of much of the Government’s legislation on prisons and parole, the question can at least be asked of whether immigration Judgment might be used to strike down patently punitive corrections policies – measures that were enacted for clearly political means in order to satisfy the conservative core.

One example might be the cuts to inmate allowances and pay that were enacted in October 2013. These seriously curtail offenders and their families’ ability to make ends meet and to make a successful reintegration in the community. Moreover, their justification and their effect, from a financial perspective, is minuscule at best.

Could a s.12 analysis prevail? Hard to say.

At least it would feel good to make the argument.

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