Background
Prior to this case standing for public-interest litigants was governed by the "Borowski test," which was given broad application. During the hearings for Thorson and Borowski Justice Martland and Chief Justice Laskin were fiercely at odds over the issue on interpreting the standard. Laskin felt that the Borowski test allowed in people who merely wanted to challenge law for political reasons and not because they were truly affected, while Martland felt the test followed the original principles in Thorson v. Attorney General of Canada . [1]
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 judicial declaration that the amendments were unconstitutional, and therefore of no force or effect. The Attorney General of Canada moved to strike out the claim on the basis that the Council did not have standing to bring the action. At first instance, it was held that the Council had standing, but this was overturned on appeal. The issue before the Supreme Court of Canada was whether the Council has standing to challenge the validity of the amendments. The Court found that the Council did not have standing, and dismissed the appeal.
Opinion of the Court
The Court acknowledged the need for public-interest standing in principle, to ensure that government is not immunized from constitutional challenges to legislation. However, the Court also stressed the need to strike a balance between ensuring access to the courts and preserving judicial resources, citing the concern of an "unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important."
The current test for standing, as summarized in this decision, considers 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.
In law, standing or locus standi is a condition that a party seeking a legal remedy must show they have, by demonstrating to the court, sufficient connection to and harm from the law or action challenged to support that party's participation in the case. A party has standing in the following situations:
A strategic lawsuit against public participation (SLAPP), SLAPP suit, or intimidation lawsuit is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
Bora Laskin was a Canadian lawyer, academic and judge. He served on the Supreme Court of Canada for fourteen years, including a decade as the 14th Chief Justice of Canada.
Ronald Martland, was a Canadian lawyer and Puisne Justice of the Supreme Court of Canada. He was the second Albertan appointed to the Supreme Court of Canada, taking the place of Justice Nolan, who died after only a short time on the Court.
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