T-2-89
Canadian Council of Churches (Plaintiff)
v.
Her Majesty The Queen and Minister of Employ
ment and Immigration (Defendants)
INDEXED AS: CANADIAN COUNCIL OF CHURCHES V. CANADA
(T.D.)
Trial Division, Rouleau J.—Toronto, March 21,
22 and April 26, 1989.
Constitutional law — Charter of Rights — Standing —
Plaintiff meeting criteria for standing to challenge constitu
tional validity, for alleged Charter and Bill of Rights viola
tions, of 88 provisions of immigration legislation: serious
issue; genuine interest in validity of legislation; no other
reasonable, effective or practical manner to bring issue before
Court.
Immigration — Canadian Council of Churches attacking 88
provisions of Act and amending legislation, alleging Charter
and Bill of Rights violations: denial of right to counsel,
arbitrary detention of certain classes of immigrants, denial of
rights to life, liberty and security of person, criminal sanctions
imposed on those who assist refugees and immigrants
Plaintiff having standing to challenge constitutional validity of
legislation.
Practice — Parties — Standing — Canadian Council of
Churches meeting criteria for standing to challenge constitu
tional validity of immigration legislation: serious issue; gen
uine interest in validity of legislation; no other reasonable,
effective or practical manner to bring issue before Court.
Practice — Pleadings — Motion to strike — Plaintiff
attacking 88 provisions of immigration legislation as violating
Charter and Bill of Rights — Defendants failing to establish
plaintiffs case would undoubtedly fail — Statement of claim
raising serious, justiciable issues as to constitutional validity
of legislation — Fact each allegation not supported by factual
basis no reason to strike statement of claim — Defendants can
request particulars, if needed — Fact some provisions not yet
interpreted and applied by immigration officials irrelevant.
The plaintiff is attacking approximately 88 provisions of the
Immigration Act, /976 and recent amendments thereto on the
Charter and Bill of Rights grounds that they violate refugees'
right to counsel, provide for arbitrary detention of certain
classes of immigrants entering the country, violate refugees'
right to life, liberty and security of the person and impose
criminal sanctions, in certain instances, on those who assist
refugees and immigrants. The defendants seek an order to
strike out the statement of claim on the ground that the
plaintiff lacks standing and that it discloses no reasonable cause
of action.
Held, the motion should be dismissed.
The plaintiff has succeeded in demonstrating that it meets
the criteria set down by the Supreme Court of Canada in the
Borowski, Thorson and McNeil cases to be granted standing.
(1) A serious and justiciable question is raised as to the
constitutional validity of the impugned legislation. (2) The
plaintiffs mandate of coordinating church policies and actions
related to the protection and resettlement of refugees both
within and outside Canada gives it a genuine interest in the
validity of the legislation. (3) There exists no reasonable,
effective or practical manner for the class of persons more
directly affected by the legislation, i.e. refugees, to bring before
the Court the constitutional issues raised in the statement of
claim.
In this case, the defendants have not succeeded in meeting
the onus of proving that the plaintiffs case will undoubtedly
fail and that the claim should accordingly be struck. Serious,
justiciable issues as to the constitutional validity of the attacked
provisions have been raised. The fact that each of the plaintiffs
allegations is not supported by a factual basis is not grounds to
strike the statement of claim. This situation is not unusual in
constitutional cases of this nature. In any event, the defendants
can always request particulars, if needed.
The fact that some of the provisions have yet to be interpret
ed and applied by immigration officials is irrelevant. If the
legislation, on its face, offends the Charter or Bill of Rights, it
will be struck by the Court regardless of how it is being
interpreted and applied by those responsible for administering
it.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to amend the Immigration Act, 1976 and the
Criminal Code in consequence thereof, S.C. 1988, c.
36.
An Act to amend the Immigration Act, 1976 and to
amend other Acts in consequence thereof, S.C. 1988, c.
35.
Canadian Bill of Rights, R.S.C., 1.985, Appendix Ill.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. II (U.K.) [R.S.C., 1985, Appendix 11,
No. 44].
Federal Court Rules, C.R.C., c. 663, RR. 415, 419.
Immigration Act, 1976, S.C. 1976-77, c. 52.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of Justice of Canada et al. v. Borowski, [1981]
2 S.C.R. 575; Thorson v. Attorney General of Canada et
al., [1975] 1 S.C.R. 138; Nova Scotia Board of Censors
v. McNeil, [1976] 2 S.C.R. 265; Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342; [1989] 3
W.W.R. 97; Operation Dismantle Inc. et al. v. The
Queen et al., [1985] 1 S.C.R. 441; Attorney General of
Canada v. Inuit Tapirisat of Canada et al., [1980] 2
S.C.R. 735.
COUNSEL:
Michael Code, Barbara L. Jackman and
Nancy Goodman for plaintiff.
Graham Garton for defendants.
SOLICITORS:
Ruby & Edwardh, Toronto; Jackman, Zam-
belli & Silcoff, Toronto; Nancy Goodman,
Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
ROULEAU J.: This is a motion by the defendants
for an order pursuant to Rule 419 of the Federal
Court Rules [C.R.C., c. 663] striking out the
plaintiffs statement of claim on the grounds that
the plaintiff lacks the standing necessary to bring
the action specified in its statement of claim and
that the statement of claim discloses no reasonable
cause of action.
On January 3, 1989 the plaintiff commenced an
action in this Court by way of statement of claim
wherein it seeks a declaration that certain provi
sions of the Immigration Act, 1976, S.C. 1976-77,
c. 52 as amended, An Act to amend the Immigra
tion Act, 1976 and to amend other Acts in conse
quence thereof, S.C. 1988, c. 35 and An Act to
amend the Immigration Act, 1976 and the Crimi
nal Code in consequence thereof, S.C. 1988, c. 36,
violate certain of the fundamental rights and free
doms guaranteed by the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44]] and the Canadian Bill of Rights [R.S.C.,
1985, Appendix III] and are accordingly of no
force and effect.
The statement of claim is quite lengthy and
impugns the constitutional validity of approxi
mately eighty-eight provisions of the above-cited
legislation. I am not inclined, in a motion of this
nature, to summarize each attack made by the
plaintiff. Furthermore, I will be making reference
to some of the plaintiffs allegations in the dis
course of my reasons. However, by way of intro
duction I would summarize the plaintiffs allega
tions in its statement of claim as follows:
Certain sections of the Immigration Act, 1976 contravene the
Charter and the Bill of Rights by limiting or denying a person's
right to counsel.
Certain sections of the amending legislation contravene the
Charter and the Bill of Rights by subjecting specified classes to
cruel and unusual punishment.
Certain provisions of the amending legislation contravene the
Charter and the Bill of Rights by failing to provide a fair
hearing to those making refugee claims in Canada.
Certain provisions of the Immigration Act, 1976 fail to protect
a refugee's life, liberty and security of the person thereby
contravening the Charter and the Bill of Rights.
Certain provisions of the amending legislation contravene sec
tion 15 of the Charter and section 1(b) of the Bill of Rights.
It is the defendant's position that the plaintiff
lacks the standing necessary to challenge the con
stitutional validity of the impugned legislation
because the plaintiff is not itself directly affected
by the challenged provisions, which apply for the
most part to aliens who seek Convention refugee
status under the statute. Further, the defendants
argue, the plaintiffs attacks are based, in the
main, on section 7 and 15 of the Charter, that is,
on rights which it, as a corporation, does not
possess.
The question which this Court must ask, accord
ing to the defendants, is whether there is anyone
with a more direct interest in launching the chal
lenge than the plaintiff. In the defendants' view,
any person to whom the legislation is sought to be
applied would be capable of raising the constitu
tional issues put forward in the statement of claim.
In addition to these considerations, the defend
ants maintain that the constitutional validity of
several of the provisions attacked by the plaintiff
cannot, in any event, be determined in the
abstract. Rather, a specific factual setting is
required in order to assess whether rights and
freedoms have been detrimentally affected by the
exercise of the discretionary powers challenged in
the statement of claim. Therefore, the defendants
submit, the plaintiffs claim lacks concreteness and
is not the appropriate subject of an action for
declaratory relief.
In the alternative, the defendants argue that
even if the Court finds the plaintiff has standing to
litigate the issues raised in the statement of claim,
most of the allegations should be struck out in any
event. The defendants deny that the Immigration
Act, 1976 and the amending legislation contravene
the Charter and the Bill of Rights by denying a
person's right to counsel, by subjecting specified
classes to cruel and unusual punishment, by failing
to provide a fair hearing to those making refugee
claims, or by failing to protect a refugee's life,
liberty and security of the person.
The defendants maintain that there is no indica
tion of any evidence to be raised at trial which
would be relevant to argument. Various para
graphs of the statement of claim are not, according
to the defendants, supported by any law or any
particulars. It is the defendants' submission that
there should be sufficient particulars pleaded by
the plaintiff in its statement of claim for the
defendants to be able to prepare their defence.
Since the statement of claim in this case lacks
sufficient particulars to create a proper plea, it
should be struck out on the grounds that it shows
no reasonable cause of action.
The plaintiff, on the other hand, submits that it
meets the criteria for public interest standing as
set out by the Supreme Court of Canada in Minis
ter of Justice of Canada et al. v. Borowski,
[1981] 2 S.C.R. 575; Thorson v. Attorney General
of Canada et al., [1975] 1 S.C.R. 138; Nova
Scotia Board of Censors v. McNeil, [ 1976] 2
S.C.R. 265 and Borowski v. Canada (Attorney
General), [1989] 1 S.C.R. 342; [1989] 3 W.W.R.
97. It is submitted that the plaintiff is entitled to
assert that another party's constitutional rights are
violated as was done in McNeil, Thorson and
Borowski as well as in Operation Dismantle Inc. et
al. v. The Queen et al., [1985] 1 S.C.R. 441.
Furthermore, the plaintiff argues, there exists
no reasonable, effective or practical manner for
the class of persons most directly affected by the
legislation in question, that is, Convention
refugees, to raise the constitutional issues raised by
the plaintiff in its statement of claim. The most
obvious difficulty is that a person directly affected
by the legislation is subject to a seventy-two hour
removal. An injunction against a removal order
cannot be considered by the Court before a mini
mum of ten days has elapsed from the time of
filing the applicant's materials. Accordingly, by
the time any remedy is granted by the Court, the
harm to the refugee will most likely have already
occurred.
In any event, the plaintiff submits, it is an error
on the part of the defendants to assume that all
claimants will have access to the courts. In practi
cal terms, a claimant may be unable to retain and
instruct counsel within seventy-two hours.
It is the plaintiff's position that even if it is
assumed that a few "directly affected" refugees
could manage to surmount the practical hurdles
referred to above and were successful in getting
their cases before the courts, obtaining stays per
mitting them to remain in the country and then
challenging the constitutionality of the legislation,
the Thorson, McNeil and Borowski decisions
make it clear that this is not a bar to the plaintiff
having standing. In other words, the plaintiff
should be granted standing in order to make an
attack on the constitutional validity of the legisla
tion that is unencumbered by the practical difficul
ties encountered by "directly affected" refugees.
Finally, on the question of standing, the plaintiff
maintains that employees and volunteer members
of the plaintiff and its member churches are
"directly affected" by those sections of the
impugned legislation which impose criminal sanc-
tions on persons who are involved in assisting
refugees gain access to the legislative provisions
concerning refugee determination. That direct in
terest is, by itself, sufficent to grant standing to the
plaintiff.
As to the defendants' second argument, that the
statement of claim discloses no reasonable cause of
action and should be struck, the plaintiff submits
that the defendant has failed to satisfy the heavy
onus upon them. In order to succeed in a motion to
strike out a statement of claim, the Court must be
satisfied beyond any doubt that the plaintiffs
action could not possibly succeed. This, the plain
tiff submits, the defendants have failed to do.
It is further submitted by the plaintiff that if the
claim is arguable and has some chance of succeed
ing, it is not to be struck on the basis that some of
the allegations plead bare conclusions of law,
unsupported by particulars. If the defendants are
of the view that they cannot answer the pleading
because they do not know the case to be met, they
should have requested particulars pursuant to Rule
415. The solution is not, in the plaintiffs view, to
strike out the statement of claim on the grounds
that it shows no reasonable cause of action.
I intend to deal first with the issue of standing.
All legal systems have had to incur the problem of
adjusting conflicts between two aspects of the
public interest; the desirability of encouraging
individual citizens to participate actively in the
enforcement of the law, and the necessity of dis
couraging the professional litigant to meddle in
matters that do not concern him. In attempting to
strike an acceptable balance between these two
concerns, the courts have, over time, developed
certain principles in relation to the issue of locus
standi.
The long standing principle that the Attorney
General is the sole representative of the public
interest in our courts has been circumscribed
greatly by a set of exceptions that have enabled
private parties to advance their interpretation of
the public interest by engaging in litigation.
Certainly a private individual has long been able
to sue to prevent interference with a right, pro
vided the interference entails an interference with
a public right. The courts have often given these
exceptions generous construction so as to enable,
not only individuals, but also public interest organ
izations, to bring issues of public interest into the
judicial arena.
In the area of standing to challenge the constitu
tional validity of legislation, the exception has
virtually swallowed the rule and the Supreme
Court of Canada has relaxed the requirements for
locus standi in litigation of this nature by its
decisions in Borowski, Thorson and McNeil. In
those cases the Court held that the question of
standing involves a determination of issues of both
fact and law as well as an exercise of judicial
discretion. The exercise of the Court's discretion to
grant standing in an action for a declaration that
legislation is invalid depends upon the existence of
certain criteria. First, a serious and justiciable
issue must be raised in the action; second, the
plaintiff must be either directly affected by the
legislation or the plaintiff must have a genuine
interest in the validity of the legislation; and third,
there must be no other reasonable, effective or
practical manner in which the issue may be
brought before the Court.
In my view the plaintiff has succeeded in
demonstrating that it meets the above criteria and
should accordingly be granted status.
To begin with, I accept the plaintiff's contention
that a serious question is raised as to the constitu
tional validity of the impugned legislation. The
plaintiff raises a serious and justiciable issue in its
attack on the constitutional validity of the Immi
gration Act, 1976 and the amending legislation.
The issue is one of sufficient importance that, in
the interest of the plaintiff, of those immigrants
and refugees directly affected by the legislation
and of the public in general, the plaintiff should be
allowed to raise it. In Thorson, Laskin J. [as he
then was] stated at page 151:
The question of the constitutionality of legislation has in this
country always been a justiciable question.
Secondly, the plaintiff has demonstrated that it
has a genuine interest in the validity of the legisla
tion. In McNeil, Thorson, Borowski and Opera
tion Dismantle Inc. et al. v. The Queen et al., the
applicants had no personal legal rights that were
affected more severely than those of the general
public. Nevertheless, they were entitled to chal
lenge legislation on the basis that the government
had failed to act in accordance with the constitu
tion and that it had thereby denied or infringed the
right to be governed according to constitutional
laws. In the Borowski decision, the Court was
unequivocal that standing is not dependant on
whether there is someone with a more direct inter
est than the plaintiff. The Court stated at page
596:
This decision [McNeil] went beyond the Thorson judgment
in that it recognized the possibility of a person having status to
attack the validity of legislation in the circumstances defined in
that case even though there existed classes of persons who were
specially affected and who might be exceptionally prejudiced
by it. (Emphasis added.)
In this case, one of the plaintiffs specific man
dates is the coordinating of church policies and
actions related to the protection and resettlement
of refugees both within and outside Canada. The
plaintiff is involved in direct assistance to refugees
and refugee claimants. In my opinion, this involve
ment in the refugee process on the part of the
plaintiff, as well as the criminal sanctions which
members of the plaintiff may face under certain
circumstances outlined in the impugned legislation
are sufficient, to lead to a finding that the plaintiff
does indeed have a genuine interest in the constitu
tional validity of the legislation.
Finally, I am satisfied that there exists no
reasonable, effective or practical manner for the
class of persons more directly affected by the
legislation, that is refugees, to bring before the
Court the constitutional issues raised in the plain
tiffs statement of claim. There is little question
that this new legislation has accelerated the proce
dure for those persons making application for
refugee status in this country. Such applicants are
subject to a seventy-two hour removal order. In
that short period of time an applicant must consult
with counsel; a procedure which in itself may take
a fair amount of time due to language barriers and
the difficulty of a solicitor establishing a proper
solicitor-client relationship with an individual who,
in some instances, may be from a country where
human rights have been disregarded and who is
understandably slow to trust anyone in authority.
Even accepting the defendants' argument that a
refugee who has had a removal order made against
him may seek a stay or injunction from the Feder
al Court in order to challenge the removal order,
such an injunction cannot be considered by the
Court before a minimum of ten days has elapsed
from the time of filing the applicant's materials.
Consequently, the harm to the refugee will have
already occurred and any remedy granted by the
Court may be illusory given that the refugee will
be under the jurisdiction of another State.
As I view this case, it closely parallels the
situation which existed in Borowski. Certainly
there were persons more directly affected by the
abortion legislation in question than Mr. Borowski
himself. In his decision, Martland J. uses the
example of the husband of a pregnant wife who
wished to prevent an abortion. At pages 597-598
his Lordship stated:
There is no reason why a pregnant woman desirous of
obtaining an abortion should challenge the legislation which is
for her benefits. The husband of a pregnant wife who desires to
prevent an abortion which she desires may be said to be directly
affected by the legislation in issue in the sense that by reason of
that legislation she might obtain a certificate permitting the
abortion if her continued pregnancy would be likely to endan
ger her life or health and thus prevent the abortion from
constituting a crime. However, the possibility of the husband
bringing proceedings to attack the legislation is illusory. The
progress of the pregnancy would not await the inevitable
lengthy lapse of time involved in court proceedings leading to a
final judgment. The abortion would have occurred, or a child
would have been born long before the case had been finally
terminated, perhaps in this Court.
In the light of the Thorson and McNeil cases, it is my
opinion that the respondent should be recognized as having
legal standing to continue with his action. In the Thorson case,
the plaintiff, as an interested citizen, challenged the constitu
tional validity of the Official Languages Act. The legislation
did not directly affect him, save in his position as a taxpayer.
He had sought, without avail, to have the constitutional issue
raised by other means. He was recognized to have status. The
position is the same in the present case. The respondent is a
concerned citizen and a taxpayer. He has sought unsuccessfully
to have the issue determined by other means.
In the McNeil case, the plaintiff was concerned about cen
sorship of films in Nova Scotia. He had sought by other means
to have the validity of the Theatres and Amusements Act
tested, but without success. In that case there were other classes
of persons directly affected by the legislation who might have
challenged it. Nonetheless, he was recognized as having legal
standing because it also affected the rights of the public. The
position of the respondent in this case is at least as strong.
There are in this case no persons directly affected who could
effectively challenge the legislation.
I interpret these cases as deciding that to establish status as a
plaintiff in a suit seeking a declaration that legislation is
invalid, if there is a serious issue as to its invalidity, a person
need only to show that he is affected by it directly or that he
has a genuine interest as a citizen in the validity of the
legislation and that there is no other reasonable and effective
manner in which the issue may be brought before the Court. In
my opinion, the respondent has met this test and should be
permitted to proceed with his action.
In my view, the plaintiff in this case has also
met the test and status is hereby accorded to it so
that it may proceed with its action.
I turn now to the issue of whether the statement
of claim discloses a reasonable cause of action or
whether it should be struck out pursuant to Rule
419 of the Federal Court Rules.
In an action for striking out pleadings, the appli
cant bears the heavy onus of satisfying the Court
that it is beyond any doubt that the plaintiff's
action could not possibly succeed even with proper
amendments to the statement of claim. This prin
ciple, which reflects the Court's traditional reluc
tance to strike claims thereby denying plaintiffs
the right to be heard, has been stated as follows by
the Supreme Court of Canada in Attorney General
of Canada v. Inuit Tapirisat of Canada et al.,
[ 1980] 2 S.C.R. 735, at page 740:
As I have said, all the facts pleaded in the statement of claim
must be deemed to have been proven. On a motion such as this
a court should, of course, dismiss the action or strike out any
claim made by the plaintiff only in plain and obvious cases and
where the court is satisfied that "the case is beyond doubt".
Ross v. Scottish Union and National Insurance Co. ((1920), 47
O.L.R. 308 (App. Div.)).
In the case at bar, I am not satisfied that the
defendants have succeeded in meeting the onus
upon them of proving that the plaintiff's case will
undoubtedly fail and the claim should accordingly
be struck. The defendants' argument, that the
allegations made by the plaintiff fall outside the
protections and guarantees of the Charter as that
statute has been interpreted to date, is in my view
not a persuasive one. As I read the plaintiff's
statement of claim, it raises serious, justiciable
issues as to the constitutional validity of some of
the provisions of the Immigration Act, 1976 and
the amending legislation, concerning refugee's
right to counsel, arbitrary detention of certain
classes of immigrants entering the country, a
refugee's right to life, liberty and security of the
person, and criminal sanctions imposed in some
instances on those who assist refugees and immi
grants, to name but a few.
Counsel for the defendants argued before me
why the impugned legislation did not contravene
the Charter. With due respect, that is not a matter
to be decided on a motion of this nature but rather
is to be left for determination by the trial judge.
The fact that the defendants spent considerable
time trying to persuade me that the impugned
legislation does not contravene any constitutional
guarantees, puts into doubt their argument that
they do not know how to answer the allegations
made by the plaintiff in its statement of claim. I
would suggest that counsel for the defendants
draft their statement of defence in the same
manner that they argued before me; for each of
the plaintiff's allegations the defendants must state
why the legislative provisions under attack do not
contravene the Charter or Bill of Rights or if they
do contravene the Charter how they are saved by
section 1 of the Charter. I do not see the matter as
being any more complicated than that.
Neither am I convinced that I should strike out
the plaintiffs statement of claim on the grounds
that some of its provisions plead bare conclusions
of law, unsupported by particulars. This situation
is not unusual in constitutional cases of this nature
where a party alleges that each impugned provi
sion of a statute is invalid on its face because its
effects, in some cases, are unconstitutional. Clear
ly, in Borowski, there did not exist any fact situa
tion on which the Supreme Court based its deci
sion, yet that was not seen as a bar to rendering of
a judgment. I am not prepared to dismiss the
plaintiff's action, which in my view, raises valid
questions of law, solely on the ground that each of
the plaintiff's allegations is not supported by a
factual basis. I agree with the plaintiff that if the
defendants are truly at a loss to answer the plead-
ings, it is open to them to request particulars
pursuant to Rule 415 of the Federal Court Rules.
The defendants argued before me that the plain
tiff's statement of claim should be struck as no
decision can be made by the Court as to the
constitutional validity of the impugned legislation
because some of the provisions have yet to be
interpreted and applied by immigration officials.
This argument must also fail. It is the constitution
al validity of the legislation itself, as the Court
interprets that legislation, which is in issue, not the
interpretation given to the statute by immigration
officials. If the legislation, on its face, offends the
Charter or Bill of Rights, it will be struck by the
Court regardless of how it is being interpreted and
applied by those responsible for administering it.
For the above reasons, the defendants' motion to
strike the plaintiff's statement of claim pursuant to
Rule 419 of the Federal Court Rules is dismissed.
Furthermore, I am satisfied that the plaintiff has
the standing necessary to proceed with its action
and the defendants' motion in that regard is dis
missed as well. The defendants will be granted ten
days from the date of the order to file their
statement of defence.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.