The Right to Healthcare of Undocumented Migrants in Canada: Toussaint v. Canada
Historic Challenge to Homelessness in Canada: Tanudjaja et al v. Ontario and Canada
Access to Justice for Immigrants living in Poverty
Access to Justice: Advanced Costs Awards
National Right to Housing Bill (C-304) Reintroduced as Bill C-400
International Education and Advocacy
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights - Rules of Procedure, Strategic Ligation
Universal Periodic Review
Judicial and Legal Education
Expert Evidence in Recent Cases
Charter and International Human Rights Challenge: The Right to Healthcare of Undocumented Migrants in Canada
Application for Leave to Appeal to Supreme Court Denied (April 5, 2012)
The Supreme Court of Canada has denied leave to appeal in the case of Nell Toussaint v. Attorney General of Canada. The decision, announced April 5, 2012 is yet another stunning decision by the Supreme Court of Canada to refuse leave in a critical case involving low income and marginalized groups denied protection under the Canadian Charter of Rights and Freedoms in retrogressive decisions by lower courts. Ms. Toussaint, who has heroically risked deportation and other reprisals to advance the rights of undocumented migrants in Canada, has announced that she will file a petition under the Optional Protocol to the International Covenant on Civil and Political Rights to address the Canadian courts' failures to protect fundamental human rights recognized under international human rights law. Ms Toussaint is not arguing that undocumented migrants have a right to remain in Canada to receive necessary healthcare, only that as residents of Canada, they cannot be denied healthcare necessary to life and security.
While only a small proportion of applications for leave to appeal to the Supreme Court are granted, this case was widely seen as one which warranted a hearing before the highest court in order to protect the integrity of Canada's justice system. Many internatioal human rights organizations and even the Office of the United Nations Commissioner on Human Rights had indicated interest in intervening before the Supreme Court had the case been hear.
Applicant's Application for Leave to Appeal to SCC Memorandum
Letter from Office of the UN High Commissioner on Human Rights
Affidavit of Nathalie Des Rosiers
Affidavit of Denise Gastalso
Background to Nell Toussaint's Historic Challenge to Violation of the Right to Health of Undocumented Migrants
This historic challenge based on sections 7 and 15 of the Charter and on international human rights law, was launched by Nell Toussaint to the denial of healthcare to undocumented migrants under a Federal healthcare program which provides healthcare coverage for those who are ineligible for provincial healthcare coverage because of their citizenship status. The Applications judge found that ", in violation of the right to life. The decisions of the Federal Court and the Federal Court of Appeal shocked the human rights community in Canada and internationally. Both courts found that although the denial of healthcare violated Ms. Toussaint's right to life, it is permitted under s.7 of the Canadian Charter as being "in accordance with fundamental justice" to deny her healthcare because of her immigration status. It is a clear contravention of international human rights law to deny anyone health care necessary to life as a punitive measure to discourage illegal activity - even for the most serious of crimes. Discrimination on the basis of immigration or citizenship status in access to healthcare is also prohibited under international human rights law. Unchallenged expert evidence filed in the case showed that providing healthcare to undocumented migrants does not encourage illegal immigation. Manuel Carballo, the Director of the International Centre for Migration and Health established that illegal immigration is not motivated by healthcare needs. Rather, people migrate when they are young and healthy in search of work. Justice David Stratas of the Federal Court of Appeal chose to completely ignore the evidence and instead perpetuated the false stereotype that "boatloads" of migrants seeking healthcare would be smuggled to Canada.
Ms. Toussaint came to Canada in 1999 as a visitor and stayed on in Canada without a work permit. She worked for many years without accessing any publicly funded healthcare, though she paid income tax.
Documents from Federal Court and Federal Court of Appeal
See the Memorandum of Argument at Federal Court and
Affidavit of Manuel Carballo Executive Director of the International Centre for Migration, Health and Development (ICMHD) in Geneva.
The case was argued by Raj Anand, Andrew Dekany and Angus Grant on March 23, 2010 before Justice Russel Zinn of the Federal Court. The decision is reserved. See the article in the Toronto Star .
Justice Zinn of Federal Court of Canada ruled that denial of healthcare to undocumented migrants violates right to life, liberty and security of the person but is not inconsistent with principles of fundamental justice. See decision in Toussaint v. AG (Canada) 2010 FC Canada 810.
The applicant filed a Motion for Reconsideration of Justice Zinn's reasons with respect to the allegation of discrimination, arguing that the allegation of discrimination was mischaracterized. See the Applicant's Request for Reconsideration challenging mischaracterization of Discrimination Allegation
The case was appealed to the Federal Court of Appeal.
The Appellants' Memorandum of Fact and Law
Canadian Civil Liberties Association Intervenor Memorandum
Respondants Memorandum of Fact and Law
The Federal Court of Appeal upheld the decision of Justice Zinn that denying healthcare necessary to the protection of life and security of undocumented migrants in Canada violates the right to life but is in accordance with principles of fundamental justice.
Federal Court of Appeal Decision Toussaint v. Canada (Attorney General) 2011 FCA 213
Historic Charter Challenge to Homelessness and Violations of the Right to Adequate Housing in Canada - AGs File Motion to Dismiss. Five coalitions of organizations seeking to intervene.
See the Notice of Application
SRAC provided legal research and evidentiary support for an historic challenge to homelessness and violations of the right to acdequate housing in Canada. The challenge was filed in Ontario Superior Court on April 26, 2010 by claimants Jennifer Tanudjaja, Janice Arsenault, Ansar Mahmood, Brian Dubourdieu, and the Centre For Equality Rights In Accommodation (CERA). A broad coalition of individuals and organizations are working on the case, including ACTO, CERA, the Dream Team, Sistering, the June Callwood Centre, the Toronto Disaster Relief Committee, and laywers Fay Faraday, Leilani Farha (CERA), Tracy Heffernan (ACTO) and Peter Rosenthal.
The case is unique, particularly because of the nature of what is challenged and the remedy that is sought. The claim does not challenge a particular legislative provision or government action but rather the government's failure to develop and implement a national housing strategy, such as would be implemented under Bill C-400. Some media reports have misunderstood the claim as being about forcing the government to provide public housing, but the problem of homelessness is not solely or even primarily an issue of housing supply in Canada. What is needed is a coherent strategy including not only social housing but also income supports, rent supplements for those unable to afford housing, and supports for people with disabilities to live in the community.
For documents and further information on this case click here.
Access to Justice for Immigrants Living in Poverty
Critical Case on Discrimination on the Ground of Poverty Denied Leave by the Supreme Court of Canada
Toussaint v. Minister of Citizenship and Immigration SCC File No. 34336
More Information and Documents on this case
Federal Court of Appeal Finds Minister Must Consider Request for Fee Waiver in Toussaint Case but Rejects Important Constitutional Claims: Leave to Appeal to SCC Filed
CCPI Affidavit in Support of Application for Leave to the Supreme Court of Canada
Application for Leave to Appeal to the Supreme Court of Canada
Respondent's Memorandum on Application for Leave to SCC
Applicant's Reply on Application for Leave to SCC
SRAC co-ordinates the Charter Committee on Poverty Issues which has actively promoted social and economic rights in Canada and internationally for two decades,intervening in more than a dozen cases at the Supreme Court of Canada .
See the CCPI Memorandum filed June 29, 2010.
CCPI Memorandum of Fact and Law FCA
Federal Court of Appeal Decision
Nell Toussaint won the right to consideration of fee waiver request under section 25 of the Immigration and Refugee Protection Act in place at the time. Unfortunately, this decision will be of little use to claimants under the current IRPA, which has been amended by the Harper Government, in response to this litigation, to preclude fee waiver under section 25 of the Act. The Federal Court of Appeal proceeded to consider CCPI's constitutional and Charter arguments and, sadly, upheld the erroneous findings of Snider J. in the court below.
Access to Justice - Advance Costs Awards
CCPI joined in coalition with three other Equality Seeking Groups (LEAF, CCD, PHRC) to intervene at the Supreme Court of Canada in the case of Alberta v. Caron SCC File No. 33092. The case concerns the discretion of the Courts to award advance costs to claimants who would otherwise be unable to litigate their public interest claims.
Our arguments were successful at the Supreme Court of Canada. While advance costs awards do not solve the larger systemic issues of access to justice linked to inadequate civil legal aid and the cancellation of the Court Challenge Program, the decision of the Supreme Court is still a positive step in promoting access to justice for disadvantaged and marginalized groups. See
Interveners Motion Record and see Factum of CCD, CCPI, LEAF and PHRC in Caron
Decision of the Supreme Court of Canada R. v. Caron, 2011 SCC 5
Bill C-304/C-400 A Rights-Based National Housing Strategy
This important Housing Strategy Bill was reintroduced in Parliament by NDP Housing Critic Marie-Claude Morin in February 2012.
Bill C-304 was before the Parliament of Canada awaiting debate and third reading, with the committed support of the majority of parliamentarians, when the Conservative Government was defeated on a Motion of Non-Confidence on March 25, 2011. Introduced as a private member's bill by Libby Davies, MP, the bill had been significantly enhanced by amendments adopted by the Standing Committee on Human Resourceas, Skills and Social Development and the Status of Persons with Disabilities to conform with key recommendations from UN Human Rights bodies for a national housing strategy in Canada based on the right to adequate housing. The Bill includes.
The Bill had also been improved by an amendment from the Bloc Quebecois recognizing Quebec's unique commitment to the rights in the International Covenant on Economic, Social and Cultural Rights and its ability to participate in a national strategy through its own programs and policies.
View a copy of the Bill as amended and reported to parliament:
Secure, Adequate, Accessible and Affordable Housing Act
See also the Steering Committee on Human Rights Implementation in Canada letter to MPs
See: Bruce Porter & Martha Jackman, International Human Rights and Strategies to Address Homelessness and Poverty in Canada: Making the Connection Working Paper, (Huntsville, ON: Social Rights Advocacy Centre, September 2011).
International Education and Advocacy
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Read about SRAC's involvement in the successful compaign at the United Nations for the historic adoption of an optional complaints mechanism for economic, social and cultural rights, and the NGO Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) , the ESCR-Net Caselaw Database , and international legal education on social rights.
Considerations of the International NGO Coalition for an OP- ICESCR in relation to the OP-ICESCR and its Rules of Procedure
Bruce Porter, Working Paper Presented in Bogota, Columbia, May 6, 201 In Defense of Soft Remedies (Sometimes): Enforcing Principled Remedies to Systemic Social Rights Claims in Canada
Bolivia and Bosnia and Herzegovina join Argentina, Ecuador, El Salvador, Mongolia, Spain in ratifying the Optional Protocol to the ICESCR at the UN
Only three more ratifications are needed for the OP-ICESCR to come into force!
Optional Protocol to the International Covenant on Economic, Social and Culturaladopted by the UN General Assembly December 10, 2008
Justice Now: Ratify to Protect All Human Rights
Bruce Porter, The Reasonableness Of Article 8(4) ? Adjudicating Claims From The Margins,? Nordic Journal of Human Rights (NJHR), Vol. 27, No.1:2009.
SRAC conducts extensive human rights public education in Canada and around the world. In collaboration with the Centre for Equality Rights in Accommodation and an NGO Steering Committee SRAC co-ordinated Canadian NGOs in the process leading up to the Universal Periodic Review of Canada.
Judicial and Legal Education in Canada
SRAC provides expert evidence in key cases, most recently on poverty as an analogous ground of discrimination in
Boulter v. Nova Scotia Power Incorporation, 2009 NSCA 17
Unfortunately denied leave at the Supreme Court of Canada on September 10th to the Supreme Court of Canada
Gunther et al v. Canada (MCI); Krena et al v. Canada (MCI) Toussaint v. Canada (MCI) (Appealed to the Federal Court of Appeal and denied leave by the Supreme Court of Canada)
Also provided evidence on discrimination against persons with disabilities, poor people and people relying on social assistance in a challenge to a bylaw designed to prevent members of these groups from settling in the Cedar Hill neighbourhood of Kitchener.
Advocacy Centre For Tenants Ontario v. City of Kitchener and the Regional Municipality of Waterloo (Ontario Municipal Board PL050611)
SRAC is a member of the Court Challenges Program of Canada and does extensive research and public education on equality rights in Canada. See
Bruce Porter,'Expectations of Equality' (2006) 33 Supreme Court Law Review 23.
Promotes the proper interpretation and application of human rights legislation to protect social rights. See
Submission to the Ontario Human Rights Commission on the Right to Adequate Housing and the Human Rights Code
SRAC Promotes Social Rights In Other Countries
In Northern Ireland, providing a keynote address on proposals for a new Bill of Rights for Northern Ireland
In Beijing, China, at a workshop organized by Office of the UN High Commissioner on Human Rights and the Chinese Academy of Social Sciences for Judges, advocates and legal scholars in China on the justiciability of Economic, Social and Cultural Rights also available in Chinese.
The Social Rights Accountability Project
SRAC was a partner in a Social Science and Humanities Research Council, Community University Research Alliance five year research project into social rights accountability in Canada (www.srap.ca ), involving researching and promoting new mechanisms for holding governments accountable to social rights in the international, domestic and judicial arenas. Bruce Porter, the Director of SRAC was the Co-Director of the Project.
After the SRAP project received extremely positive peer reviews, as subsequent research project has been initiated to build on the foundations of the first project.
Reconceiving Human Rights Practice
SRAC Research Publication