| Canadian Council Of Churches V. Canada (minister Of Employment And Immigration) |
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BACKGROUND Prior to this case standing for public groups was determined through to borowski test, which was given extremely broad meaning. Academics had noted that there were very few people who ''could not'' challenge a law under the test. The Canadian Council of Churches is an incorporated interest group that represents the interests of a number of churches. The group's focus had been the current government policy on refugee protection and resettlement. In particular, they had been critical of the changes in the determination process of evaluating whether a refugee came within the definition of Convention Refugee as part of recent amendments to the Immigration Act, 1976 . The Council sought a declaration to challenge the constitutionality of the amendments. The Attorney General of Canada motioned to strike out the claim as the Council did not have standing to bring the action before the court nor did they have a cause of action. At trial, it was held that the council had standing, but this was overturned on appeal. The issue before the Supreme Court was whether the Council has standing to challenge the validity of the amendments. The Court found that the Council did not have standing, and they dismissed the appeal. OPINION OF THE COURT The court acknowledged the need for public interests groups to have standing. Status is often granted in order to ensure the government is not immunized from legislative challenges. However, they agree that the previous interpretation of the Borowski Test was overly broad and was straining the resources of the courts. Generally, standing is given if it can be show that the law will not likely be challenged by a private litigant. The current test must consider three factors: # is there a serious issue raised as to the invalidity of legislation in question? # has it been established that the plaintiff is directly affected by the legislation or, if not, does the plaintiff have a genuine interest in its validity? # is there another reasonable and effective way to bring the issue before the Court? On the facts of the case the court found that the claim did raise some serious questions. Moreover, the claimant had a "genuine interest" in its validity. However, the claim must fail on the third and most onerous factor. Since a refugee would have standing to challenge the law, there would clearly be a reasonable and effective way to bring the issue to the Court. The Court dismissed the argument that refugees did not have effective access to the courts to bring a claim. Evidence showed that many are capable of making claims, which, in all, were better ways to challenge a law as there are concrete facts behind it. The Court further dismissed the claim that the potential imposition of a removal order would bar them from challenging it, as the Federal Court could grant an injunction to prevent deportation. EXTERNAL LINKS |
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