Toussaint Petition to UN Human Rights Committee and Follow-up
Petition materials, decision, and follow-up documents in Toussaint v Canada.
The Petition to the UN Human Rights Committee (Under the Optional Protocol to the ICCPR)
After exhausting domestic remedies before Canadian courts, Nell Toussaint filed a petition to the UN Human Rights Committee alleging violations of the right to life in article 6 of the International 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 must take necessary measures 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.
Executive Summary of the Petition
Petition: Nell Toussaint v Canada HRC No 2348-2014
Canada's Response on Admissibility
Author's Comments on Admissibility
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
Opinion Letter of Constitutional and Health Law Experts
The Human Rights Committee's decision:
Toussaint v Canada CCPR/C/123/D/2348/2014 (30 August 2018)
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Attempt to Secure Domestic Remedies Prior to the Petition to the UN Human Rights Committee (Exhaustion of Domestic Remedies)
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
The leave application was dismissed by a panel of Justices LeBel, Abella and Cromwell on April 5, 2012.
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Appeal to the Federal Court of Appeal (2011)
Appellant's Memorandum of Fact and Law
Canadian Civil Liberties Association Intervenor Memorandum
Respondent's 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 is in accordance with principles of fundamental justice under section 7 of the Charter. Justice Zinn did not refer to uncontroverted evidence on the record. Justice Stratas found, on the basis of no evidence whatsoever, that providing access to health care to irregular migrants when their life is at risk would undermine Canada's immigration laws and that many "might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores."
See the Federal Court of Appeal decision:
Toussaint v. Canada (Attorney General) 2011 FCA 213
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Application for Reconsideration of One Component of Federal Court Decision
The applicant filed a motion for reconsideration of Justice Zinn's reasons with respect to the allegation of discrimination, arguing that her allegation of discrimination based on irregular citizenship status was mischaracterized. See 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.
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Claim at Federal Court (2009-2010)
Notice of Application issued August 10, 2009
Applicant's Memorandum of Argument
Respondent's Memorandum of Argument
Affidavit of Nell Toussaint sworn January 26, 2009
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.
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 810.
See the article in the Toronto Star.
Justice Zinn found that "the record before the Court establishes that the applicant’s exclusion from IFHP coverage has exposed her to a risk to her life as well as to long-term, and potentially irreversible, negative health consequences."
Justice Zinn rejected the Attorney General of Canada's misinterpretation of comments from Chief Justice McLachlin in Chaoulli, which the Attorney General argued precluded any protection of the right to life in the context of publicly funded health care. Justice Zinn explained that: "The present case is concerned with a scheme (the IFHP) that the government has put in place to provide health care to certain individuals; it is not concerned with whether non-citizens, or citizens for that matter, have a freestanding right to healthcare."
Unfortunately, Justice Zinn made no reference to the uncontested Affidavit of Manuel Carballo establishing that a fear that providing access to health care will increase irregular migration or lead to increased health care costs is a myth based on false stereotypes. Instead, he simply surmised that allowing irregular migrants to die for lack of access to health care is rationally connected to an objective of preventing Canada from becoming a "health care safe haven." Justice Zinn held that the violation of the right to life in this case was in accordance with principles of fundamental justice under section 7 because it was not arbitrary.
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The Original Decision (2009) and the Order-in-Council
Letter of application for IFHP dated May 6, 2009
Decision of Craig Shankar dated July 10, 2009 re Application for IFHP