Mind the Gap: Toussaint and the Reception of International Human Rights Law in Canada

Abstract

This article explores the reception of international human rights law (“IHRL”) in Canada and the enforcement gap that may arise when legislation is not passed expressly implementing human rights treaties that Canada has ratified. Despite establishing a variety of interpretive methods that may result in Canada’s binding IHRL obligations having domestic effect even when they are not expressly implemented, Canadian courts have struggled to provide clear and consistent guidance on how IHRL applies in Canada. The selective approach in Canada to implementing legislatively IHRL obligations may give rise to an enforcement gap when rights individuals purportedly enjoy under international law are found to have no domestic effect.

To demonstrate this gap, this article focuses on litigation brought by the late Nell Toussaint, who lived in Canada and was denied federal health insurance coverage when facing life-threatening medical conditions due to her then-irregular migrant status. Exploring Ms. Toussaint’s unsuccessful domestic claim that her rights to health, life, and non-discrimination were violated by Canada and her advocates’ ongoing efforts to ensure that Canada abides by the subsequent determination of the United Nations Human Rights Committee that Canada violated her rights to life and non-discrimination under the International Covenant on Civil and Political Rights, this article demonstrates how not expressly implementing ratified human rights treaties can create a barrier to IHRL being effective domestically in Canada.