Recent Context of Toussaint v. Canada

In 2018, the Human Rights Committee issued its Views in Toussaint v. Canada, finding that Canada had violated articles 6 (right to life) and 26 (non-discrimination) of the ICCPR by denying Nell Toussaint—an irregular migrant—access to essential health care under the Interim Federal Health Program (IFHP). The Committee concluded that this denial exposed her to a reasonably foreseeable risk of loss of life and irreversible harm to her health.

The Committee affirmed that: The right to life entails positive obligations on States parties; and States must ensure access to existing health care services where denial would expose individuals to a reasonably foreseeable risk of death or irreversible harm.

Despite these findings, Canada explicitly rejected the Committee’s interpretation of article 6 and informed the Committee that it would take no further measures to give effect to the Views. As a result, an estimated 500,000 irregular migrants in Canada continue to be denied access to essential health care, even where their lives are at serious risk.

Following the Committee’s Views, Nell Toussaint commenced new Charter proceedings in Canada, seeking measures of non-repetition and challenging Canada’s refusal to review its legislation and policies to ensure access to essential health care where life is at risk. Ms. Toussaint died in 2023 and her mother, Ann Toussaint, was authorized to continue the claim, keeping open a critical case on how domestic courts may respond to findings of international human rights bodies.

Importance of Toussaint v. Canada

The Toussaint Case is significant for several reasons:

• It clarifies the scope of the right to life, reaffirming that it includes positive obligations where state inaction exposes individuals to reasonably foreseeable risks of death or irreversible harm.
• It challenges the systemic exclusion of irregular migrants from access to essential public services, highlighting discriminatory effects arising from immigration status.
• It places the effectiveness of the international human rights system at a crossroads, particularly whether States parties may disregard treaty body Views when they disagree with the interpretation of the Covenant.
• It raises critical questions regarding access to effective domestic remedies, including whether individuals found by the Committee to be victims of ICCPR violations may subsequently access domestic courts to seek redress.

The case has direct implications for the effectiveness of the individual communications procedure under the Optional Protocol and for the obligation of States parties to engage with treaty body findings in good faith.

Key Elements of the Joint Submission and Calls to Action

The joint submission identifies systemic failures in Canada’s compliance with its obligations under the ICCPR and calls for the following actions:

1. Failure to implement Human Rights Committee Views → Good-faith implementation required

Canada treats implementation of the Committee’s Views as discretionary. ESCR-Net and SRAC call for the good-faith (pacta sunt servanda) implementation of the Views in Toussaint v. Canada. Canada’s refusal to engage with the Committee’s Views undermines the obligation to perform treaties in good faith and threatens the integrity of the international human rights system.

1. Lack of access to effective domestic remedies → Access to courts must be ensured
   Victims of ICCPR violations face barriers in accessing domestic courts capable of considering the implications of the Committee’s Views. This approach undermines the individual communications procedure and weakens international accountability mechanisms. Canada must ensure access to effective domestic remedies in accordance with article 2(3) of the Covenant. 
2. Denial of protection where positive measures are required → Rights must be interpreted consistently with interdependence and indivisibility
   Claims engaging the rights to life and non-discrimination have been wrongfully denied by Canada where their protection requires positive measures, such as access to publicly funded health care. Canada must interpret and apply these rights in a manner consistent with the interdependence and indivisibility of human rights. 
3. Discrimination based on immigration status → Immigration status must be recognized as a prohibited ground for discrimination
   Canada must recognize immigration status as a prohibited ground of discrimination under the ICCPR and promote Charter interpretations consistent with this obligation.
   

Denial of essential health care where life is at risk → Access to publicly funded essential health care must be guaranteed
Canada must ensure access to essential health care as a constitutive component of the right to life, where denial would expose individuals to a reasonably foreseeable risk of loss of life or irreversible harm, regardless of immigration status.