Claiming the Right to Life and to Non-discrimination of Undocumented Migrants in Access to Healthcare
Historic challenge based on sections 7 and 15 of the Canadian Charter. The UN Human Rights Committe has now ruled on a communication under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), finding that the denial of essential health care to Nell Toussaint violated article 6, the right to life and article 26, the right to non-discrimination. The decision of the Human Rights Committee shows that the decision of the Federal Court of Appeal in this case was fundamentally at odds with international human rights norms. .
The Petition to the United Nations Human Rights Committee (2013 ongoing)
Historic Decision: Toussaint v Canada (2018) CCPR, Communication No. 2348/2014
Motion for Leave to Appeal to the Supreme Court of Canada (2011-12)
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)
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)
Affidavit of Manuel Carballo Executive Director of the International Centre for Migration, Health and Development (ICMHD) in Geneva.
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.
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