LEGAL OPINION SUBMITTED BEFORE THE UNITED NATIONS HUMAN RIGHTS COMMITTEE REGARDING ISSUES ARISING IN NELL TOUSSAINT V. CANADA, COMMUNICATION NO. 2348/2014
WHAT IS THIS PETITION ABOUT?
Nell Toussaint lived and worked in Canada as an undocumented migrant from 1999 to 2008. In November 2008, Ms. Toussaint became too ill to work but remained in Canada. She applied for health care coverage under Canada’s Interim Federal Health Program (IFHP), which is authorized to provide health coverage for “anyone under immigration jurisdiction or for whom immigration authorities feel responsible” where a person cannot afford the costs of medical care. Canada denied Ms. Toussaint access to the IFHP on the basis that she did not fit into any of the four categories of persons eligible for health coverage set out in Citizenship and Immigration Canada guidelines: refugee claimants, resettled refugees, persons detained under the Immigration and Refugee Protection Act, and victims of human trafficking.
Ms. Toussaint sought to judicially review the denial at the Federal Courts. Both the Federal Court of Canada and Federal Court of Appeal found that denying health coverage put Ms. Toussaint’s life and health at serious risk. However, both courts held that the deprivation of her right to life and security of the person was justified because the “operative cause” of the risk to Ms. Toussaint’s life was her own decision to remain in Canada without legal status. The Federal Court of Appeal also rejected her argument with respect to discrimination, stating that “immigration status” does not constitute a prohibited ground of discrimination.
Leave to appeal the Federal Court of Appeal’s judgment to the Supreme Court of Canada was denied, leaving Ms. Toussaint with no other domestic recourse. Consequently, she brought a petition before the UN Human Rights Committee alleging that a number of her rights under the International Covenant on Civil and Political Rights (ICCPR) were violated by both the government denying her access to necessary healthcare and the Federal Courts for permitting the continued deprivation of her rights.
On 30 January 2013, Ms. Toussaint was approved for permanent residency status through a spousal sponsorship, and as such became eligible for and has been receiving provincially insured health care since 30 April 2013. However, the challenged federal policy for migrants without status in Canada remains in place.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International provided an amicus brief in support of Ms. Toussaint’s petition to the UN Human Rights Committee. In our submissions, Amnesty International argued that any policy that denies health care necessary for life to irregular migrants on the basis of their immigration status is inconsistent with Canada’s obligations under the ICCPR. It amounts to unlawful discrimination under Article 26 of the ICCPR. Further, we argued that under the ICCPR, Canada is required to implement policies and measures to provide necessities of life to everyone on its territory or under its jurisdiction. Finally, Amnesty International stressed that Canadian law is capable of providing effective remedies for irregular migrants deprived of necessary health care. The Canadian Charter of Rights and Freedoms, properly interpreted, is capable of requiring positive actions of Canadian governments.
STATUS OF THE PETITION
The petition is under ongoing consideration by the Human Rights Committee. On 30 March 2016, the government of Canada provided supplementary submissions arguing that Ms. Toussaint had failed to exhaust domestic remedies because she had not sought health care coverage from the province of Ontario, that the petition was moot because Ms. Toussaint began to receive health care when she regularized her status, and maintaining that the ICCPR does not include a right to publicly funded, primary health care for undocumented migrants.
Amnesty International strongly disputes Canada’s position that it can deny health care necessary to life based on a person’s immigration status. The Human Rights Committee petition is an important avenue to reinforce the interdependence and indivisibility of all human rights, and to ensure that all people are protected regardless of their immigration status.
Federal Court of Canada Judgment in the Nell Toussaint case
Federal Court of Appeal Judgment in the Nell Toussaint case
UN Human Rights Committee