This case concerned the ability of public interest organizations to challenge legislation under the Charter

LEAF intervened in partnership with the Canadian Disability Rights Council (CDRC) before the Supreme Court of Canada.  

Facts 

The Canadian Council of Churches, an advocacy group, initiated a Charter challenge against provisions in the federal Immigration Act regarding refugee status. In particular, they argued that provisions that affected the process for determining refugee status threatened the personal security of refugees in violation of the Charter and Bill of Rights

The Canadian government claimed the organization had no standing to challenge the legislation. It also filed a motion to strike the challenge, arguing that the Council did not have a cause of action. The Federal Court held that the Council had standing, and dismissed the government’s motion to strike. The Federal Court of Appeal agreed that the Council had standing, but narrowed the number of issues the Council would be allowed to argue before the court. Both sides appealed to the Supreme Court of Canada. 

LEAF and CDRC’s arguments 

LEAF and CDRC argued that standing should be based on the Charter, in particular s. 15 of the Charter. The traditional test for standing was based on private, proprietary interests and reinforced power imbalances between the advantaged and the disadvantaged.  

LEAF and CDRC proposed a new approach to the law of standing in constitutional cases. They argued that “as of right” standing should be available to groups of disadvantaged persons or their collective representatives looking to bring Charter challenges, meaning these groups would not need to obtain permission from courts to bring a challenge. They also argued for changes to the rules on public interest standing. Courts should center not only private rights, but also group rights, and should take into account the systemic and less direct effects of legislation.  

Outcome 

The Supreme Court of Canada held that the Council did not have standing. The Court focused on the need to balance between ensuring access to the courts and preserving judicial resources. It did not expand the principles for public interest standing, although it said that they should be generously interpreted. While the Council raised serious issues about the legislation and had a genuine interest in the case, the court felt there was another reasonable and effective way to bring the issue before the court – through individual claims by refugees. 

LEAF is grateful to Mary Eberts and Dulcie McCallum, counsel in this case, as well as Catherine Aitken, Ottawa agent for LEAF and CDRC. 

Download the factum here.

Read the Supreme Court of Canada’s decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].