The Committee affirmed the positive obligation of States to ensure that everyone has access to essential health care necessary to prevent foreseeable risks to life, regardless of migration status. Further, Canada must provide both a systemic and individual remedy, reviewing its national legislation to ensure that irregular migrants have access to essential health care and providing compensation to Nell Toussaint, the plaintiff or author, for the harm she suffered.
Nell Toussaint challenged Canada’s denial of health care coverage to undocumented immigrants under the under the federal government’s program of health care to immigrants, called the Interim Federal Health Benefit Program. After exhausting domestic remedies, Toussaint brought her claims to the United Nations Human Rights Committee (Committee) under the optional complaints procedure (first optional protocol) to the International Covenant on Civil and Political Rights, which Canada ratified in 1976.
Toussaint claimed Canada violated her rights to non-discrimination (articles 2.1, article 26); effective remedy (article 2.3.a); life (article 6); not be subjected to torture and cruel, degrading and inhuman treatment (article 7) ; and liberty and security of person (article 9.1) under the International Covenant on Civil and Political Rights (Covenant) by denying, on the basis of her irregular immigration status, access to health care necessary for the protection of her life and health.
Canada argued that Toussaint’s claim, challenging the law to ensure health care coverage regardless of immigration status, was rendered moot because she had since gained permanent residency status and thereby obtained full health coverage. Canada further argued that her claim constituted an inadmissible actio popularis, challenging the scheme as a whole as it applies to others, rather than an individual violation.In her response to the State party’s submissions, the author appended two amicus briefs, referenced as legal opinions by the Committee, one from Amnesty International and a second from a coalition of member organizations of the International Network for Economic, Social and Cultural Rights (ESCR-Net).
The UN Committee agreed with Toussaint and the supporting organizations, finding that the petition was not an actio popularis and was not moot. The Committee noted that Toussaint had been personally and directly affected by the policy, and that the health care she subsequently received did not remedy the harm she had already suffered. The State further argued that their burden had been satisfied by the existence of emergency health care services available to everyone, as well as community health centers and other pro bono services. The Committee decided that emergency health care alone is not sufficient to ensure protection of the right to life, that immigration status is a prohibited ground of discrimination under the ICCPR and that denying irregular migrants access to health care necessary for life is not based on reasonable and objective criteria.
The Committee held that Toussaint had not provided sufficient evidence to establish that her rights had been violated under articles 7 and 9(1) of the Covenant. The Committee held that Toussaint’s rights to life and to non-discrimination had, however, been violated under articles 6 and 26 of the Covenant, noting that the right to life has been too often narrowly interpreted and cannot be understood in a restrictive manner. The Committee rejected the State party’s assertion that the author was in effect claiming a right to health care that is not included in the ICCPR. It found that the State party had a positive obligation to protect Ms. Toussaint’s right to life which, in her particular circumstances, required provision of essential health care. The right to life includes being free from acts or omissions which are intended or expected to cause unnatural or premature death and ensures the entitlement to enjoy a life with dignity. At a minimum, the Committee held, States are required under article 6 to provide access to existing health care services that are reasonably available and accessible when a lack thereof would expose a person to a reasonably foreseeable risk that can result in death.
Pursuant to article 2 (3) (a) of the Covenant, which obligates the State to provide an effective remedy, the UN Committee’s decision requires Canada to 1) adequately compensate Toussaint for the harm she suffered, and 2) take steps to prevent similar violations in the future, including reviewing its laws to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that could result in loss of life.
The UN gave the State 180 days to provide information evincing the measures taken to effectuate this decision and required the State to publish and widely disseminate the UN opinion. Human rights groups in Canada are pressuring the federal government to implement the decision. Nell Toussaint has suffered a number of severe health set-backs. She, however, remains resilient and hopes to be able to arrange community-based care. Her spirits have been raised by the international response to her victory.
This decision is the first time a UN human rights treaty body has considered a situation in which a person with irregular migrant status was denied access to essential health care necessary for the protection of life. The Committee also affirmed states must take positive measures to protect the right to life. The decision emphasized the interconnectedness of all human rights, in particular the relation between health care and the right to life. The decision therefore provides authority for advocacy for access to health care in all countries that have ratified the ICCPR, or which otherwise recognize the right to life and non-discrimination. The decision also provides authority for arguing that States have positive obligations in other areas linked to ESC rights, such as access to housing, food, water and sanitation, to challenge denial of access to essentials for the protection of life.
In addition, the Committee’s consideration of the legal opinions from Amnesty International and from a coalition of organizations coordinated by ESCR-Net is a helpful precedent in emerging practice at UN treaty bodies through which Committees can be provided with necessary expertise and argument from a range of sources. It also demonstrates the power of collective work by civil society organizations.
Finally, this decision can also be of assistance in applying the Committee’s new General Comment 36 on the Right to Life, recently adopted in October 2018. General Comment 36 also strongly underscores the indivisibility and interdependence of rights and strengthens the ability to challenge structural violations of the right to life arising from economic, social and cultural rights violations. For more details on the general comment and member contributions in shaping its content, please click here).
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University and Social Rights Advocacy Centre (SRAC).
Last updated on 12 December 2018
