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
