"...The first two decades of Charter litigation testify to a certain timidity – both on the part of litigants and the courts – to tackle head on the claims emerging from the right to be free from want." (Louise Arbour)

Claiming the Right to Healthcare, to Life and to Non-discrimination of Undocumented Migrants

Historic challenge based on sections 7 and 15 of the Canadian Charter. The case is now before the UN Human Rights Committe in a communication under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), alleging violations of various rights under the ICCPR including article 6, the right to life, article 7, cruel, inhuman or degrading treatment and the right to non-discrimination under articles 2(1) and 26.

The Petition to the United Nations Human Rights Committee (2013 ongoing)

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

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

 

 

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