Do concerns about Canada becoming a “health care safe haven”* justify denying irregular migrants medical coverage when doing so could put the person’s life at risk? This is a question on which people can—and no doubt will—disagree. It is also a question on which Canadian courts and the United Nations Human Rights Committee (a body of experts that oversees compliance with the International Covenant on Civil and Political Rights [ICCPR]) have disagreed.
When faced with this question in Toussaint v Canada (Attorney General), Canada’s Federal Court and Federal Court of Appeal found that the denial of health care coverage to irregular migrants is justified. In contrast, the United Nations Human Rights Committee concluded that Canada had violated the rights to life and non-discrimination of a then irregular migrant, Nell Toussaint, by denying her medical coverage when she was suffering from serious health issues that put her life at risk.
In the Committee’s view, Canada was obliged to remedy the violation of the ICCPR by, among other things, paying Ms. Toussaint compensation and reviewing its “legislation to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life.” To date, although it has done away with the program under which Ms. Toussaint was denied coverage and made possible discretionary coverage on a case-by-case basis, Canada has not complied with the views of the Committee—despite the fact that Canada has recognized the Committee’s competence to determine whether Canada has met its obligations under the ICCPR. Rather, as noted by the Committee’s Deputy Special Rapporteur in July 2020, Canada has “rejected the Committee’s assessment of the case,” “[has] refused to take any further measures to give effect to the Views,” and has “seemed mistakenly to view the [Committee’s] follow-up procedure as an opportunity to reargue the case.”
Ms. Toussaint’s case raises a number of issues. In this post, I am focusing on how it highlights that Canada has failed to implement effectively at home some international human rights to which it has committed internationally to respecting. As I explain below, Canada’s general practice of not passing legislation to implement human rights treaties can create an enforcement gap, where Canada’s international human rights law obligations are not capable of being enforced by individuals using the Canadian court system.
International human rights law and Canadian courts
Human rights protection stands at the crossroads between international and domestic law. It is likely safe to say that international human rights law is the most internally-focused area of international law, as its purpose is to create obligations for the state towards individuals. Despite this fact, whether international human rights law obligations can be enforced domestically by individuals may depend on how the domestic legal system treats international law. In some systems, international obligations are directly enforceable domestically—that is, individuals can take the state to court when they allege that their rights have been violated. In others, international law needs to be “transformed” or “incorporated” into the domestic legal system to support claims.
How Canada’s legal system receives international law can pose a hurdle to people seeking to enforce their international human rights. Parliament has left it to our courts to determine how international law is received. As a result, Canada inherited a hybrid approach from England, according to which how international law is received depends on the type of international law at issue (this is part of the reason why I explored the types of international law in my last blog post). Customary international law applies directly, as long as there is no legislation to the contrary effect. This makes customary international law essentially the same as Canadian common law, or the law that is developed by our courts. In contrast, treaty-based international law needs to be incorporated into Canadian law, usually by passing legislation.
Canada has adopted a general practice for human rights treaties that, unintentionally or not, poses a hurdle for enforcing some of its international human rights obligations. Usually, no legislation is passed expressly implementing human rights treaties. Instead, the Department of Justice reviews existing laws, policies, and procedures to see whether Canada is meeting its obligations under a human rights treaty Canada is considering ratifying. If it is meeting its obligations, Canada will generally proceed with ratifying the treaty. If it is not, changes to existing laws, policies, and procedures may be made before ratification.
Canada reports to treaty-monitoring bodies that it is meeting its human rights treaty obligations through existing laws, policies, and procedures. It asserts publicly that its seeks the support of provinces and territories before acceding to an international human rights treaty “to ensure effective domestic implementation of Canada’s international obligations.” With respect to the International Covenant on Economic, Social and Cultural Rights [ICESCR], Canada also notes that, “By acceding to a treaty, Canada accepts the obligation to domestically implement the provisions of the treaty.” Despite all of this, Canadian courts often conclude that Canada’s human rights treaty obligations are unimplemented and not capable of domestic enforcement through the courts if legislation has not been passed to implement the treaties from which the obligations arise.
The enforcement gap
A potential way for litigants to invoke human rights treaties that have not been expressly implemented into domestic law is to tie a right in a treaty to existing legislation. Usually, this occurs when the international human right has a domestic equivalent in the Charter. (The right to life, for example, is found in the Canadian Charter of Rights and Freedoms and human rights treaties including the ICCPR.) In such instances, international human rights law can play an important role in the outcome of a case, as the Supreme Court of Canada has established that the Charter should be interpreted as providing, at a minimum, the same level of protection for the right as binding international human rights law. In other words, international human rights law is supposed to form a threshold below which our courts’ interpretation of a corresponding Charter right should not fall.
Although tying international human rights to the Charter may allow claimants to invoke international human rights law domestically, an enforcement gap may arise when the international right does not have a clear domestic equivalent or if our courts interpret our domestic right more narrowly than the international right. Such a gap potentially exists for some socio-economic rights because the Charter does not reflect all of Canada’s binding international human rights obligations and primarily protects civil and political rights.
The ICESCR has been considered in a number of Canadian cases. In some, it has influenced the interpretation of Charter rights, while in others, it has been considered unimplemented and unable to support a claim. Saskatchewan Federation of Labour v Saskatchewan is an example of the former. In that case, the Supreme Court of Canada relied on the ICESCR and other international human rights law sources to overturn its prior jurisprudence and recognize that the right to strike exists as part of the right to freedom of association under the Charter. As Saskatchewan Federation of Labour shows, international human rights law can play a key role in our courts recognizing a more expansive understanding of an existing domestic right—even if the specific right (in that case, to strike) has not been legislatively implemented.
When, however, a link to domestic legislation cannot be made, litigants may be unable to advance claims. Toussaint is an example of this. In addition to arguing that her rights to life and equal treatment under the Charter had been violated, Ms. Toussaint attempted to argue that she had a right to health care under the ICESCR (which protects, among other things, the right to health). Canada has formally agreed to be bound by the ICESCR; however, it has not passed legislation expressly implementing it. Although Justice Zinn at the Federal Court noted that, “[i]t is… well-established that international law can be used to interpret domestic law,” he concluded that the ICESCR needed to be legislatively implemented to support Ms. Toussaint’s claim. He therefore went on to decide the case solely based on the Charter without recourse to international human rights law.
The scope of the right to life
The conclusion that Ms. Toussaint was not entitled to medical coverage despite the fact that her health conditions were life threatening and she potentially could not access the care she required in her country of origin is in direct contrast with the finding of the United Nations Human Rights Committee. The Committee found that the right to life imposes positive obligations on countries that are party to the ICCPR—including Canada—and that the right to life includes an “entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity.” The Committee specifically noted that “as a minimum States parties have the obligation to provide access to existing health care services that are reasonably available and accessible, when lack of access to the health care would expose a person to a reasonably foreseeable risk that can result in loss of life.” This highlights how our courts’ domestic interpretation of the right to life under the Charter may be falling below the international understanding—which could be contrary to the minimum protection approach for Charter rights as outlined above. (I will explore this issue in more detail in my next blog post.)
Canada’s commitment to social, economic, and cultural rights
In the view of the Committee on Economic, Social and Cultural Rights, effective domestic implementation requires that, “appropriate means of redress, or remedies… be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.” It also asserts that, “[i]n general, legally binding international human rights standards should operate directly and immediately within the domestic legal system… thereby enabling individuals to seek enforcement of their rights before national courts and tribunals.” The Committee has also repeatedly called for Canada to address the inability for individuals to bring ICESCR claims before Canadian courts.
Canada has ratified the ICESCR, which means it has formally agreed to be bound by the treaty. However, in addition to not implementing the ICESCR through legislation, an enforcement gap has been perpetuated because Canada has not ratified an optional protocol to the ICESCR that would allow the Committee on Economic, Social and Cultural Rights to hear complaints about violations of the ICESCR. In light of Canada’s current practice of not passing legislation implementing human rights treaties, it may be difficult to not question the political branch’s commitment to truly “effective” implementation of its human rights obligations.
In 2001, Senator Andreychuk noted for the Canadian Standing Senate Committee on Human Rights that, “one of the major issues needing to be addressed is the gap that has developed between our willingness to participate in human rights instruments at the international level and our commitment to ensuring that the obligations contained in these instruments are fully effective within this country.” In January 2020, Justice Abella of the Supreme Court of Canada reiterated that, under Canadian law, “where there is a right, there must be a remedy for its violation.”
Canada has voluntarily assumed an international obligation to respect many international human rights; isn’t it time to explore seriously whether the enforcement gap its practices have created should be closed?
*I should note that questions may be asked about the true risk of Canada becoming a “health care safe haven,” which could undermine the justification for denying medical coverage to irregular migrants. This risk was accepted by the federal courts as an acceptable reason to deny coverage, but this was in spite of uncontested evidence before the Federal Court that it is a myth that people are motivated to migrate by the prospect of free health care. Nevertheless, this concern led the Federal Court of Appeal to envisage the potential for a humanitarian catastrophe if Ms. Toussaint were successful:
If the appellant were to prevail in this case and receive medical coverage… without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.
