Ottawa overstepped its bounds when it clawed back health-care coverage for refugee claimants without consulting the provinces and other stakeholders, doctors and lawyers charged Tuesday.
Lawyers for Canadian Doctors for Refugee Care and the Canadian Association of Refugee Lawyers told a federal court the move wasn't an act of Parliament, nor was it a regulation – which they argue makes it invalid.
"When governments act, they have to have the legal authority to act – they can pass a law or enact a regulation," Lorne Waldman, who represents the doctors, said outside court.
"This is not a law, this is not a regulation, so what is it then?"
He said the federal government's explanation that the decision was made through the royal prerogative – which grants the government certain discretionary powers – doesn't hold up, since both health care and immigration are governed by law and law trumps the royal prerogative.
The two groups are challenging the changes announced last year along with two refugee claimants who say losing their coverage caused them "severe psychological distress."
They accuse the federal government of violating the charter and international obligations by discriminating against refugee claimants based on their country of origin and jeopardizing their right to life and security of person.
While health care itself isn't a charter right, when the government puts a health-care system in place, it must then comply with the charter in administering it, Waldman said.
Withdrawing previously available care amounts to deprivation, he added.
Earlier this year, then immigration minister Jason Kenney defended the changes, saying "legitimate refugees" would still receive generous coverage, while the cuts would mostly affect "folks who are basically overstaying in Canada."
Lawyers for the ministry are scheduled to make their opening submissions in court Wednesday. A third hearing is planned for Jan. 30.
Until June 30 of last year, Ottawa covered the costs of drugs and medical care for refugee claimants until they were eligible for provincial coverage or their claims had been rejected.
But the government put an end to almost all supplemental health-care benefits, slashing coverage in some cases to care only when it was a public health emergency.
The changes depend on whether the claimant comes from a list of countries that Ottawa has deemed safe and where it is less likely someone will be persecuted.
Refugee claimants from those countries, including Mexico and Hungary, have no coverage for medical services or medications except when there is a public health or public safety concern.
Others still have most medical services covered, though the only medications that are covered for them are ones for conditions posing a threat to public health or safety.
Government-sponsored refugees saw no change to their health coverage.
The policy drew widespread criticism from immigration advocates and medical professionals.
Several provincial leaders have also opposed the changes, and last week, Ontario announced it would reinstate access to essential and emergency health care for refugee claimants starting Jan. 1.
The province said it was following in the footsteps of Alberta, Manitoba, Saskatchewan, Nova Scotia and Quebec in addressing gaps left by the federal government.
Lawyers Tuesday recognized Ontario's efforts but questioned whether all six provinces who announced such programs were providing the same level of care to refugee claimants.