Soon after its passage into Canadian law, the Canadian Council for Refugees joined up with a number of other organizations to challenge the agreement under ss. 7 and 15(1) of the Charter and were initially successful at the Federal Court of Canada.

Janet Dench, the executive director of the Canadian Council for Refugees, the group at the heart of both challenges, says she is “fairly confident the situation is different” this time.

“We have a different configuration of the case, and the situation in the U.S. is worse now than it was back then, all of which gives us confidence that we have a very compelling case,” she says.

In its June 2008 decision in Canadian Council for Refugees v. Canada, the Federal Court of Appeal took issue with the application judge’s conclusion that the CCR and two other groups had public interest standing to advance the claim on behalf of refugee claimants, due to their inability to find someone willing to approach the Canadian border to test the law for fear they would be returned to the U.S.

“In my respectful view, this hypothetical approach, which the applications Judge entertained, goes against the well-established principle that a Charter challenge cannot be mounted in the abstract,” reads Federal Appeal Court Justice Marc Noël’s decision.