Hyperlawhypertext legal database Minister of Justice (Can.) v. Borowski [1981] 2 SCR 575

← Cases

Minister of Justice (Can.) v. Borowski

[1981] 2 SCR 575 Court SCC Decision date 1981-12-01 English

PartiesThe Minister of Justice of Canada and the Minister of Finance of Canada (Defendants) Appellants·Joseph Borowski (Plaintiff) Respondent; and The Attorney General of Ontario, the Attorney General of British Columbia and the Attorney General of Alberta Interveners

Counsel (18)
Respondent, a prominent crusader against abortion, sought a declaration in Saskatchewan's Court of Queen's Bench that s. 251(4),(5),(6) of the Criminal Code permitting procurement of miscarriage were invalid and inoperative in that they abridged the right to human life contrary to the Canadian Bill of Rights. Appellant's argument that jurisdiction lay exclusively with the Federal Court was rejected in an order of the Court of Queen's Bench and on appeal from that order. This Court considered not only the issue of jurisdiction but also, on agreement of counsel, whether respondent had the legal standing necessary to maintain the action—a matter denied by the appellant but not addressed in previous proceedings.
Held (Laskin C.J. and Lamer J. dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Dickson, Beetz, Estey, Mcin­tyre and Chouinard JJ.: 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 validity, 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. Respondent met this test. As the legislation provides exemption from criminal liability, it would be difficult to find a class of person directly affected or exceptionally prejudiced by it who would have cause to attack the legislation. This issue could not reasonably be brought into Court unless proceedings were launched by an interested citizen.
The jurisdictional issue did not differ materially from two cases heard immediately prior to this case and its disposition should be the same.
Per Laskin C.J. and Lamer J., dissenting: The juris­dictional issue should be disposed of as in two earlier and similar cases.
Generally, it is not open to a person as a citizen and/or taxpayer to invoke the jurisdiction of a com­petent court to obtain a ruling on the interpretation or application of legislation or its validity, when the person is not directly affected by the legislation or threatened by sanctions for its breach. While exceptions to this general rule exist, none applies to respondent's case. The legislation here did not affect all members of the public alike, and this fact was a central consideration to the court's exercising its discretion against giving respond­ent standing. The difficulty of reaching a judicial con­clusion in the time following satisfaction of statutory requirements for therapeutic abortion but before birth or abortion was not preclusive; the point should be decided at the instance of a person having a greater interest than that of citizen and taxpayer, such as the doctors involved or the husband of a woman planning to have an abortion.
[Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, applied; Smith v. Attorney Gen­eral of Ontario, [1924] S.C.R. 331; MacIlreith v. Hart (1908), 39 S.C.R. 657, referred to.]
W. I. C. Binnie, Q.C., for the appellants.
Morris C. Shumiatcher, Q.C., for the respond­ent.
John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.
William Henkel, Q.C., for the intervener the Attorney General for Alberta.
E. R. A. Edwards, for the intervener the Attor­ney General of British Columbia.
Solicitor for the appellants: R. Tassé, Ottawa.
Solicitors for the respondent: Shumiatcher, Findlay & Newfeld, Regina.
Solicitor for the intervener the Attorney Gener­al for Ontario: H. Allan Leal, Toronto.
Solicitor for the intervener the Attorney Gener­al for Alberta: William Henkel, Edmonton.
Solicitor for the intervener the Attorney Gener­al of British Columbia: E. Robert A. Edwards, Victoria.

Judges Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio

Delivered by Majority

On appeal from Saskatchewan

Subjects Courts

Contents

The reasons of Laskin C.J. and Lamer J. were delivered by

The judgment of Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ. was delivered by

[1981] 1 W.W.R. 1; (1980), 6 Sask. R. 218.
[1978] C.S. 37, aff'd [1979] C.A. 351, aff'd [1978] 2 S.C.R. 1016.

Footnotes

  1. [1] [1981] 1 W.W.R. 1; (1980), 6 Sask. R. 218.
  2. [2] 2 (1908), 39 S.C.R. 657.
  3. [3] [1975] 1 S.C.R. 138.
  4. [4] [1976] 2 S.C.R. 265.
  5. [5] [1978] C.S. 37, aff'd [1979] C.A. 351, aff'd [1978] 2 S.C.R. 1016.
  6. [6] [1975] 1 S.C.R. 138.
  7. [7] [1924] S.C.R. 331.
  8. [8] (1908), 39 S.C.R. 657.
  9. [9] [1976] 2 S.C.R. 265.

Cases cited