The international human rights movement is saddened by the passing of groundbreaking human rights defender and champion Nell Toussaint on 9 January 2023.
Ms. Toussaint fought courageously for equal access to essential health care for people with irregular immigration status in Canada, herself having been denied access to public health benefits due to her irregular migrancy status, placing her life at risk and leading to serious long-term health consequences. When the Canadian justice system failed to recognize her claim to the right to life and non-discrimination under the Canadian Charter of Rights and Freedoms, Ms. Toussaint successfully brought her case to the United Nations (UN) Human Rights Committee, achieving a precedent-setting decision in 2018 that the right to life under the International Covenant on Civil and Political Rights (ICCPR) covers “essential health care to prevent a reasonably foreseeable risk that can result in loss of life.” The decision also stressed that these guarantees apply without discrimination against persons with irregular migrancy status. This was the first decision of its kind and represented a significant advance in the equal protection of migrants and access to essential health care under international law.
Canada is required under international law to ensure effective remedies to violations of the ICCPR, and the UN Committee directed Canada to provide Ms. Toussaint with adequate compensation and to change its laws and policies to ensure that people with irregular immigration status have access to existing health care services that are “reasonably available and accessible.”
Unconscionably, Canada stated that it disagreed with the Human Rights Committee’s views and would not implement its decision. Canada refuses to ensure access to essential health care to people with irregular immigration status and has now, tragically, denied Ms. Toussaint justice in her lifetime.
The Canadian government has maintained this position despite its international legal duty to implement treaties in good faith, including the Optional Protocol to the ICCPR, which Canada voluntarily ratified to give the UN Human Rights Committee jurisdiction to hear individual cases, like Ms. Toussaint’s. The Committee gave Canada the lowest implementation grade of E for its response, noting that the government was simply rearguing the case rather than taking measures to ensure an effective remedy.
Ms. Toussaint bravely refused to accept the denial of justice and returned to court in Canada, to seek an interpretation of Canadian law, including the Canadian Charter of Rights and Freedoms, that gives due regard to the UN Human Rights Committee’s views. Canada has again chosen to fight Ms. Toussaint every step of the way. It brought a Motion to Strike Ms. Toussaint’s claim as having no reasonable prospect of success. The court firmly rejected the Motion, finding that Canada was invoking discriminatory stereotypes about migrants seeking access to “free health care” rather than recognizing Ms. Toussaint’s claim to the fundamental right to life. The case is currently stayed, pending a decision on the government’s appeal.
ESCR-Net and Amnesty International provided expert opinions on international human rights law in the UN Human Rights Committee proceedings and jointly intervened on the more recent Motion to Strike brought by the Canadian government. We are committed to ensuring international human rights are vindicated in this case.
If there is ultimately to be justice done for Ms. Toussaint, the government of Canada must drop its rejection of the Committee’s decision, implement its directives in good faith, and even though belatedly, honour the legacy of a ground-breaking human rights defender.
Nell Toussaint, death may have taken you, but it will never take your work, vision and achievements away. Your legacy will continue because of the way you fought for the realization of human rights with courage and tenacity. May you now rest in eternal power.