Promoting and claiming social and economic rights through an inclusive human rights practice

What's New

UN Human Rights Committee Issues ground breaking decision in Toussaint v Canada. Canada violated the right to life by denying irregular migrants access to essential healthcare. Read more.

Canada Without Poverty v Canada - Historic Win for Charities

Grounding the Rights-Based National Housing Strategy in the Right to Housing: Here's How See the "Draft Legislation, and the  Consensus Proposals.

Bruce Porter Enhancing the Rights-Based Framework for Canada's National Housing Strategy

Special Rapporteur on the Right to Housing Report on Rights-Based Housing Strategies A/HRC/37/53.

Summary of 10 Principles in a Rights Based Housing Strategy

Canada's UPR#3. Check out the Key UPR Recommendations

Application for Leave to Appeal to Supreme Court of Canada denied in Tanudjaja (Homeless peoples' rights to life, security and equality) Affidavit of Bruce Porter
All other documents

New Book. Martha Jackman & Bruce Porter (eds)  Advancing Social Rights in Canada now published and available at Irwin Law

See the ESCR Case Law Database

Past but Relevant NOW

Bill C-400 model housing strategy legislation.

1992 Alternative Social Charter



New Publications

Martha Jackman and Bruce Porter (eds)  Advancing Social Rights in Canada (Toronto: Irwin Law, 2014)

Martha Jackman & Bruce Porter "Social and Economic Rights" in P. Oliver, P. Macklem and N. Des Rosiers, The Oxford Handbook of the Canadian Constitution (New York, Oxford Univesity Press, 2017) at pp 843-866.

Bruce Porter, Inclusive Interpretations: Social Rights and Judicial Accountability in Helena Alviar García, Karl Klare and Lucy Williams (eds), Social and Economic Rights in Theory and Practice: Critical Inquiries (London and New York: Routledge, 2015)


 

From the Archives

Bruce Porter, Human Rights and the Right to Housing in Housing - A Right, a publication to coincide with an exhibition at the Power Plant Gallery on homelessness and the right to housing. Now Magazine, Toronto, 1989.

See Further publications

Historic Victory: The right to life and non-discrimation of irregular migrants in access to essential healthcare

Nell Tousaint, who had lived and worked in Canada as an irregular migrant for almost a decade was in the process of seeking to regularize her status in Canada when she developed life-threatening health problems. She sought access to the Interim Federal Health Program (IFHP) but was denied because of her irregular immigration status. She courageously challenged this as a violation of her rights to life and security of the person under section 7 of the Canadian Charter and her right to equality under section 15.

The Federal Court and the Federal Court of Appeal agreed that her life and long term health had been put at risk but they held that the violation of the right to life was justiified as a means to promote compliance with immigration law. The courts simply ignored uncontested evidence filed in the case showing that most irregular migrants, like Ms. Toussaint, migrate for work, not to acces health care, and that providing access to essential health care has no effect on irregular migration. The Supreme Court of Canada denied Ms Toussaint leave to appeal these shocking decisions

This is the kind of situation when we realize how important international complaints procedures are!! SRAC, along with Nell's lawyer Andrew Dekany, assisted Nell in filing a petition to the UN Human Rights Committe alleging violations of the right to life in article 6 of the Internatoinal Covenant on Civil and Political Rights, and the right to non-discrimination under article 26.

On August 7, 2018 the Human Rights Committee issued its historic decision, finding that Canada had violated Nell's right to life and non-discrimination and that the government is obliged to review all legislation to ensure that no one is denied access to essential health care because of irregular immigration status. This is the first decision of a UN treaty monitoring body to consider access to health care for irregular migrants as a right to life issue.

 

Historic Decision of the Human Rights Committee: Toussaint v Canada 2018

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The Petition to the United Nations Human Rights Committee

Executive Summary of the Petition

Petition: Nell Toussaint v Canada HRC No 2348-2014

Canada's Response on Admissibility

Author's Comments on Admissibility

Canada's Response on Merits

Author's Comments on Canada's Submissions

Amnesty International's Opinion in Support of the Author

ESCR-Net's Opinion in Support of the Author

Canada's Supplementary Response

Author's Response to Canada's Supplementary

Motion for Leave to Appeal to the Supreme Court of Canada (2011-12)

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

The leave application was dismissed by a panel of Justices LeBel, Abella and Cromwell on March 5, 2012.

At the Federal Court of Appeal (2011)

Appellant's Memorandum of Fact and Law

Canadian Civil Liberties Association Intervenor Memorandum

Respondants Memorandum of Fact and Law

The Federal Court of Appeal unanimously 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.

See the Federal Court of Appeal Decision Toussaint v. Canada (Attorney General) 2011 FCA 213

At the Federal Court (2009-2010)

Notice of Application issued August 10, 2009

Applicant's Memorandum of Argument  

Affidavit of Nell Toussaint sworn August 23, 2009

Supplementary Affidavit of Nell Toussaint sworn January 3, 2010

Affidavit of Manuel Carballo  Executive Director of the International Centre for Migration, Health and Development (ICMHD) in Geneva.

Exhibit A – Curriculum Vitae and Resumé of Manuel Carballo

Report of Dr. Gordon H. Guyatt August 21, 2009

Affidavit of Stephen W. Hwang sworn August 25, 2009

Affidavit of Ilene Hyman sworn August 25, 2009

See decision of Justice Zinn 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 Reconsideration application was dismissed by Justice Zinn after the Attorney General agreed not to object to the applicant arguing on appeal that discrimination on the ground of immigration status is prohibited under s.15 of the Charter.

See Decision of Zinn J on Application for Reconsideration

CURA research partner the Social Rights Advocacy Centre and co-director Bruce Porter provided research and drafting assistance for the Charter and international human rights components of the case. The case was ably argued by counsel for Nell Toussaint: Raj Anand, Andrew Dekany and Angus Grant. See the article in the Toronto Star .

 

The Original Decision (2009) and the Order-in-Council

Letter of aplication for IFHP dated May 6, 2009

Decision of Craig Shankar dated July 10, 2009 re Application for IFHP

Order-in-Council P.C. 157-11/848, effective June 20, 1957