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

 

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The Toussaint case on right to life of irregular migrants and healthcare

The Tanudjaja Charter challenge to the failure to address homelessness

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CCPI/CHC/FCJRC and AI/ESCR-Net file facta in Toussaint v Canada

Presentations to Dept of Justice and OGD on National Housing Strategy Act with NRHN and WNHHN

The progressive realization of the right to housing: Paper prepared for the National Housing Council

Three papers on implementing the right to housing under the National Housing Strategy Act

Co-ordinated Legal Action to challenge Canada and other States obstructing #TRIPS Waiver at the #WTO! Letter to Minister NG

CERA and National Right to Housing Network Make first SUBMISSION under the National Housing Strategy Act.

Charities liberated to engage in public policy after groundbreaking decn of Justice Ed Morgan in Canada Without Poverty v Canada


New Publications

Bruce Porter, La interdependencia de · los derechos humanos in Derechos sociales y el momento constituyente de Chile: Perspectivas globales y locales para el debate constitucional (Distrito Global, 2021)

Jackie Dugard, Franziska Sucker & Bruce Porter & Jamie Burton, Supporting the TRIPS COVID-19 waiver is an essential step to support international human rights (Open Global Rights, 2021)

Bruce Porter, Implementing the Right to Adequate Housing Under the National Housing Strategy Act: The International Human Rights Framework (2021) (en francais)

Jackie Dugard, Bruce Porter, Daniela Ikawa and Lilian Chenwi (eds) Research Handbook on Economic, Social and Cultural Rights as Human Rights

Elizabeth McIsaac and Bruce Porter "Housing Rights: Ottawa takes an historic step forward"Literary Review of Canada,(November, 2019)

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.

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

From the Archives

1992 Alternative Social Charter 

See Further publications

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Historic Victory at the UN Human Rights Committee and Ongoing Litigation in Canada:

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

 

Decision of the UN Human Rights Committee:

Toussaint v Canada CCPR/C/123/D/2348/2014 (30 August 2018)

Decision of August 17, 2022 of Perell J. dismissing Canada's Motion to Strike Nell Toussaint's Challenge to Canada's Refusal to Implement the Committee's Decision

Toussaint v. Canada (Attorney General) 2022 ONSC 4747

 

Background

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 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

Bruce Porter of SRAC, along with Nell's lawyer Andrew Dekany, assisted Nell in filing 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.

Canada responded to the Committee' decision on February 1, 2019, stating that it did not agree with the Committee's interpretation of Canada's obligations under the ICCPR and would not be taking further measures to give effect to the Views.

Ms. Toussaint applied to the Suprememe Court of Canada for reconsideration of its application for leave to appeal in light of the Committee' decision, but the application was denied.

Ms Toussaint then filed a Claim in Ontario Superior Court alleging that Canada's refusal to implement the Committee's decision and continuing to deny access to essential health care to irregular migrants is a violation of the Canadian Charter which must now be interpreted in light of the Human Rights Committee's Decision. Canada brought a motion to strike the claim without an evidentiary hearing and filed a factum in support of the motion to strike. Four Coalitions of Interveners were greanted leave to intervene in the Motion to Strike.

Justice Perell dismissed Canada's Motion to Strike, criticizing Canada for bringing its motion to strike and advancing "a dog whistle argument that reeks of the prejudicial stereotype that immigrants come to Canada to milk the welfare system."

Statement of Claim (as amended May 25 2021) in Ontario Superior Court

Amended Amended Statement of Claim (May 25, 2021) Nell Toussaint v Attorney General of Canada (Ontario Superior Court of Justice Court File No. CV-20-00649404-0000)

Motions for Leave to Intervene in Motion to Strike

Charter Committee on Poverty Issues/Canadian Health Coalition/FCJ Factum for Leave to Intervene

Amnesty International/ESCR-Net Factum for Leave to Intervene

Colour of Poverty Coalition Factum for Leave to Intervene

Canadian Civil Liberties Association Factum for Leave to Intervene

Intervention Motions Granted in Motion to Strike

See Decision of Justice Belobaba on Intervention Motions (Jan 14, 2022) granting intervener status four groups of interveners:

1. Amnesty International, International Network on Economic, Social and Cultural Rights (ESCR-Net),

2. Charter Committee on Poverty Issues (CCPI), Canadian Health Coalition, FCJ Refugee Centre,

3. Colour of Poverty Coalition, the Black Legal Action Centre (BLAC), the South Asian Legal Clinic of Ontario (SALCO), and the Chinese and Southeast Asian Legal Clinic and

4. Canadian Civil Liberties Asociation

Canada Opposes Motions for Leave to Intervene

AG Canada's Factum on Intervention Applications

Intervention Motions Granted

Decision of Justice Belobaba on Intervention Motions (Jan 14, 2022)

 

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BACKGROUND:

The Petition to the UN Human Rights Committee (Under the Optional Protocol to the ICCPR)

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

Opinion Letter of Constitutional and Health Law Experts

The Human Rights Copmmittee's decision:

Toussaint v Canada CCPR/C/123/D/2348/2014 (30 August 2018)

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Application for Reconsideration of the earlier decision of the Supreme Court of Canada to deny leave to appeal in light of the decision of the UN Human Rights Committee

Affidavit of Bruce Porter

Notice of Motion

Memorandum of Argument

Decision of SCC Registrar (June 9, 2020)

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EXHAUSTION OF DOMESTIC REMEDIES PRIOR TO FILING PETITION WITH THE UN HUMAN RIGHTS COMMITTEE

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 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

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 is in accordance with principles of fundamental justice under section 7 of the Charter.. Without even considering uncontroverted evidence on the record, Justice Stratas relied on the false stigma and stereotype about migrants, finding 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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At the 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 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.

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 AG Canada's misinterpretation of comments from Chief Justice McLachlin in Chaoulli, which the AG 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.

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 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

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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