SUPREME COURT OF CANADA
Minister of Justice (Can.) v. Borowski, 1981 CanLII 34 (SCC), [1981] 2 SCR 575
The Minister of Justice of Canada and the Minister of Finance of Canada (Defendants) Appellants;
and
Joseph Borowski (Plaintiff) Respondent; and
The Attorney General of Ontario, the Attorney General of British Columbia and the Attorney General of Alberta Interveners.
1981: May 27, 28; 1981: December 1.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Courts — Standing — Respondent seeking declaration that abortion provisions of Criminal Code violating Canadian Bill of Rights and therefore invalid — Respondent's only interest that of concerned citizen — Whether respondent should be given standing — Criminal Code. R.S.C. 1970, c. C-34, s. 251(4),(5),(6) — Canadian Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(a), 2(e), (g).
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
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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, 1974 6 (SCC), [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, 1975 14 (SCC), [1976] 2 S.C.R. 265, applied; Smith v. Attorney General of Ontario, 1924 3 (SCC), [1924] S.C.R. 331; MacIlreith v. Hart (1908), 1908 64 (SCC), 39 S.C.R. 657, referred to.]
APPEAL from a decision of the Saskatchewan Court of Appeal1, dismissing appellant's appeal from a ruling of Hughes J. on a special motion, dealing with jurisdiction, in an action before the
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Court of Queen's Bench. Appeal dismissed, Laskin C.J. and Lamer J. dissenting.
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.
The reasons of Laskin C.J. and Lamer J. were delivered by
Dissenting Reasons
THE CHIEF JUSTICE (dissenting)—This appeal, which is here by leave of this Court given on terms as to costs, arises out of a taxpayer's action brought in the Court of Queen's Bench of Saskatchewan. The purpose of the action was to obtain a declaration against the appellants, the Minister of Justice of Canada and the Minister of Finance of Canada, that the so-called abortion provisions of Criminal Code, s. 251(4),(5) and (6) are inoperative as offending subss. 1(a) and 2(e) and (g) of the Canadian Bill of Rights and that any expenditure of public money to support therapeutic abortions under the aforesaid provisions of the Criminal Code is consequently illegal. Issue was taken by the defendants appellants as to the jurisdiction of the Court of Queen's Bench to entertain the action, the contention being that exclusive jurisdiction resided in the Federal Court of Canada under ss. 17 and 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. In their statement of defence, the defendants also challenged the standing of the plaintiff to maintain the action, regardless, apparently, of the appropriateness of the forum.
The issue of jurisdiction was made the subject Of a special motion which was heard and determined adversely to the defendants by Hughes J. An appeal to the Saskatchewan Court of Appeal failed. The leave given to come here related only to the issue of jurisdiction but, during the course of
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the hearing in this Court, counsel for the respective parties agreed to argue the question of the plaintiff's standing before this Court and formally asked the Court to hear them on that point. The Court agreed and argument was heard accordingly.
It is unnecessary to embark here on an examination of the issue of jurisdiction. This very issue, namely, whether exclusive jurisdiction resides in the Federal Court of Canada because of the character of the defendants, was raised and fully argued in two cases heard together immediately preceding the hearing in the present case. It was conceded that there were no material differences between those cases, Attorney General of Canada et al. v. The Law Society of British Columbia and Victor McCallum and Donald Jabour v. The Law Society of British Columbia et al. and Attorney General of Canada heard on May 25, 26, 27, 1981 and the present one, so far as the claim of exclusive jurisdiction in the Federal Court of Canada is concerned. The disposition in the two British Columbia cases on the point will be equally dispositive here. I turn, therefore, to the issue of standing, which arises whatever be the proper forum for the action if it is one maintainable by the plaintiff.
Standing
I start with the proposition that, as a general rule, it is not open to a person, simply because he is a citizen and a taxpayer or is either the one or the other, to invoke the jurisdiction of a competent court to obtain a ruling on the interpretation or application of legislation, or on its validity, when that person is not either, directly affected by the legislation or is not threatened by sanctions for an alleged violation of the legislation. Mere distaste has never been a ground upon which to seek the assistance of a court. Unless the legislation itself provides for a challenge to its meaning or application or validity by any citizen or taxpayer, the prevailing policy is that a challenger must show some special interest in the operation of the legislation beyond the general interest that is common to all members of the relevant society. This is especially true of the criminal law. For example, however passionately a person may believe that it
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is wrong to provide for compulsory breathalizer tests or wrong to make mere possession of marijuana an offence against the criminal law, the courts are not open to such a believer, not himself or herself charged or even threatened with a charge, to seek a declaration against the enforcement of such criminal laws.
The rationale of this policy is based on the purpose served by courts. They are dispute-resolving tribunals, established to determine contested rights or claims between or against persons or to determine their penal or criminal liability when charged with offences prosecuted by agents of the Crown. Courts do not normally deal with purely hypothetical matters where no concrete legal issues are involved, where there is no lis that engages their processes or where they are asked to answer questions in the abstract merely to satisfy a person's curiosity or perhaps his or her obsessiveness with a perceived injustice in the existing law. Special legislative provisions for references to the courts to answer particular questions (which may be of a hypothetical nature) give that authority to governments alone and not to citizens or taxpayers. Merely because a government may refuse a citizen's or taxpayer's request to refer to the courts a question of interest to the taxpayer does not per se create a right in the citizen or taxpayer to invoke the court's process on his or her own, or by way of a class action on behalf of all citizens or taxpayers with the same interest.
There are exceptions to the general rule and to the policy. One of the earliest recognized has been a municipal taxpayer action to restrain an allegedly illegal municipal expenditure: see Macllreith v. Hart2. An explanation of this exception is that it involved a public right to see that municipal expenditures were lawfully made, being expenditures which were limited by considerations that do not apply to a province or to Canada. No municipal taxpayer could raise a lis in the ordinary sense or court a penalty or other sanction in respect of an allegedly illegal municipal expenditure and, hence,
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unless a taxpayer action was permitted the illegality would go unchallenged and unchallengeable.
In the provincial and federal field, the issue of an illegal, or perhaps unconstitutional, expenditure would not likely arise per se but, in the main, only (as is alleged in this case) in connection with the operation of challenged legislation; the challenge to the expenditure would thus depend on the outcome of the challenge to the legislation.
Another exception (but a more limited one in view of the discretion associated with it) is shown in the judgment of this Court in Thorson v. Attorney General of Canada3. That case involved a taxpayer's class action to obtain a declaration of the invalidity of the Official Languages Act, now R.S.C. 1970, c. 0-2, and of the illegality of the appropriation of money to administer it. It was clear that a justiciable question was raised by the claim of invalidity, namely, whether Parliament had respected the limits of its legislative authority under the British North America Act. Again, the Official Languages Act was not a regulatory type of statute nor a penal one but rather, uniquely, a declaratory and directory statute, a statute which created no offences and imposed no penalties. Unless, therefore, a citizen or taxpayer action was permitted to question its validity, there would be no way in which its validity could be tested unless the federal Attorney General did so through a reference and a request to this end had been denied.
In allowing the taxpayer suit to proceed in the Thorson case, this Court made it clear that it did so in the exercise of a controlling judicial discretion which related to the effectiveness of process. It went on to say, inter alia, that "Central to that discretion is the justiciability of the issue sought to be raised" and that "Relevant as well is the nature of the legislation whose validity is challenged,
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according to whether it involves prohibitions or restrictions on any class or classes of persons who would thus be particularly affected by its terms beyond any effect upon the public at large. If it is legislation of that kind, the Court may decide .. . that a member of the public ... is too remotely affected to be accorded standing" (at p. 161). The Court concluded on this note (at p. 161):
On the other hand, where all members of the public are affected alike, as in the present case, and there is a justiciable issue respecting the validity of legislation, the Court must be able to say that as between allowing a taxpayers' action and denying any standing at all when the Attorney General refuses to act, it may choose to hear the case on the merits.
The Criminal Code provisions whose operation is challenged here are of a different order from the legislation with which the Thorson case was concerned. They are, moreover, exculpatory provisions which exclude criminality that is prescribed under s. 251(1) and (2) for the intentional procurement of a miscarriage. A distinction is made under s. 251 between unlawful abortions and permitted abortions. It is the latter which the plaintiff attacks as violative of the Canadian Bill of Rights. No attack is made on the constitutionality of any part of s. 251, it being recognized that what Parliament may validly proscribe under its criminal law power may at the same time be limited by fixing conditions under which the proscription is lifted. That is the case with the abortion provisions of s. 251. The plaintiff objects to any alleviating provisions that would (and in this case do) relieve against criminality for procuring abortions. Far from objecting that the criminal provisions are too strict in the face of the Canadian Bill of Rights, his objection is that they are too lax.
There is, in this respect, in the permissive provisions of s. 251(4), (5) and (6), some similarity perhaps to the directory features of the legislation in the Thorson case. However, these provisions are
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part of a scheme which embraces sanctions as well, and I do not find the similarity to be sufficient to put the legislation here on the same level as the statute involved in the Thorson case. Indeed, to borrow from the words of this Court in the Thorson case, the present case is not one where all members of the public are affected alike. This, in my view, is a central consideration in the exercise of the Court's discretion against giving standing here to the plaintiff respondent.
It is contended on the plaintiff's behalf that if he cannot bring himself within the Thorson case, his position as to standing is as strong as that of the respondent in this Court's follow-up decision to Thorson in Nova Scotia Board of Censors v. McNeil4. That was also a case where a taxpayer action challenging the validity of legislation, provincial legislation in that case, was held to be maintainable. The statute attacked in the McNeil case was a regulatory statute and not merely a declaratory one as in the Thorson case. This, however, was held, in the circumstances of the McNeil case, not to be a controlling distinction that should, in itself, be sufficient to deny standing, "especially [to use the words of the Court, at p. 269] in the light of the reserve of discretion in the Court, and more especially because the word or term 'regulatory' is not a term of art, not one susceptible of an invariable meaning which would in all cases serve to distinguish those in which standing to a taxpayer or citizen would be granted and those in which it would not".
The Theatres and Amusements Act of Nova Scotia, whose validity was challenged in the McNeil case, was a regulatory statute directed to film exchanges, theatre owners and cinematograph operators and apprentices. It also provided for the appointment of a Board, empowered to permit or prohibit the use or exhibition in Nova Scotia, for public entertainment, of any film or performance in any theatre. Licensing regulations were provided
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for in respect of theatres and film exchanges, in respect of cinematograph operators and apprentices and in respect of theatre performances. Unfettered discretion to suspend or revoke any licence was vested in the Board. It had, to put it shortly, complete control over the exhibition of films and over theatres in the Province. Although there was a statutory right of appeal to the Lieutenant Governor in Council, it was not open to a member of the public.
The Nova Scotia courts, before whom the question of standing came, and this Court on appeal, construed the challenged statute as involving members of the public in so far as the Board had the power to determine what members of the public were entitled to view in theatres and other places of public entertainment. This Court assessed the matter as follows (at p. 271):
Since the issue of validity does not fall for determination here and, indeed, has not even been argued in relation to the question of standing, I would not, in this case, go beyond the tentative conclusion that there is an arguable case under the terms of the challenged legislation that members of the Nova Scotia public are directly affected in what they may view in a Nova Scotia theatre, albeit there is a more direct effect on the business enterprises which are regulated by the legislation. The challenged legislation does not appear to me to be legislation directed only to the regulation of operators and film distributors. It strikes at the members of the public in one of its central aspects.
In my view, this is enough, in the light of the fact that there appears to be no other way, practically speaking, to subject the challenged Act to judicial review, to support the claim of the respondent to have the discretion of the Court exercised in his favour to give him standing.
This passage underlines at least one important difference between the situation in McNeil and the present case. In McNeil, the plaintiff could legitimately complain (on this Court's construction of the challenged statute) that he was a person within its terms who was being deprived of a right to view a film because of an allegedly unconstitutional exercise of legislative and administrative power. In the present case, there is no deprivation under or
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by reason of the challenged legislation of which the plaintiff can complain. In short, the plaintiff here is not in the same position under the legislation which he challenges as was McNeil in his case. There he was a person within the compass of the enactment that he was challenging; the plaintiff is outside the Criminal Code provisions that he is attacking.
I am of the opinion that the plaintiff in this case cannot bring himself within the McNeil case nor within the Thorson case, so far as concerns the character of the legislation involved here as compared with the legislation in those cases. It was urged, however, that he was, nonetheless, in as favourable a position to warrant the exercise of discretion to accord him standing. This was because there was no other way in which the alleged inoperability of s. 251(4), (5) and (6) of the Criminal Code in the face of the Canadian Bill of Rights could be tested; the plaintiff was not seeking to challenge the prohibitions of s. 251—and, presumably, as a mere taxpayer, not threatened by any sanction, he could not do so—but rather was seeking to challenge the exculpating provisions.
I would not draw any distinction between a declaratory action to obtain a decision on validity under the British North America Act and a declaratory action to obtain a decision on operative effect in the face of the Canadian Bill of Rights. Justiciable issues are presented in both situations. The only question that remains is whether, neither the Thorson case nor the McNeil case being strictly applicable according to the character of the legislation there and here, this is an appropriate case for the Court to exercise its discretion to accord standing. My reason for distinguishing the legislative situation is that here there are persons with an interest in the operation of s. 251(4), (5) and (6) who might challenge it as offending the Canadian Bill of Rights. I refer to doctors and to hospitals, both having a clearer interest in the operation of s. 251(4), (5) and (6) than does the plaintiff. Husbands who might object to their pregnant wives seeking a therapeutic abortion also have a clearer interest. It may be that in their case there would be a dilemma, having regard to the
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inexorable progress of a pregnancy. In short, even if the statutory requirements for a therapeutic abortion were satisfied, it might be difficult to initiate and exhaust the judicial processes to obtain a ruling as to the compatibility of s. 251(4), (5) and (6) with the Canadian Bill of Rights before the abortion or birth, as the case might be, takes place. In principle, however, this should not be preclusive; the point will have been decided at the instance of a person having an interest and not at that of a person having no interest other than as a citizen and taxpayer.
It may be urged, however, that because doctors who perform therapeutic abortions under proper auspices are protected from criminal liability, they would have no reason to challenge the provisions for such abortions, and correlatively doctors who do not would also have no reason to challenge them. So too with respect to hospitals through which therapeutic abortion committees are set up or not set up. In my opinion, these aspects of the matter do not affect the direct interest of hospitals and doctors in the authorization and performance of abortions or in challenging them. Apart from what may be subsidiary questions of budgeting and operating space, which are important to hospitals, there is the doctor-patient relationship to be considered. Patients may seek advice from doctors even if the doctors themselves do not perform abortions, or the doctors may be moved because of their relationship with patients to wish to perform abortions unless they cannot lawfully be done. The willingness or refusal of a hospital board to establish a therapeutic abortion committee can create tensions, whatever the outcome. The interest of hospitals and of doctors is, in my view, a direct interest arising from the Criminal Code provisions under challenge here, but at worst is a more compelling and immediate interest than that asserted by the plaintiff. His interest is not connected with the administration of the legislation but with an emotional response to its operation. I see
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nothing in such a response which should persuade this Court to open its judicial doors to him.
The position of doctors, hospitals and husbands under s. 251(4), (5) and (6) is not unlike the position of the plaintiffs in Blaikie, Durand and Goldstein v. Attorney General of Quebec5. This case was put forward by the plaintiff as a case where standing was granted in circumstances not too different from those here. There is, in fact, a considerable difference between the Blaikie case, the Bill 101 case, and the present case. It is true that the question of the plaintiff's interest or standing in attacking the validity of Chapter III of Title I of the Charter of the French Language, 1977 (Que.), c. 5, was put in issue by the Attorney General of Quebec in his defence. The plaintiffs had alleged in their declaration that they were members of the legal profession engaged in litigation in the courts of Quebec and before quasi-judicial tribunals, and that they represented clients whose ordinary language was English. They were entitled, they said, to plead in English and to have the Statutes of Quebec published in English as well as in French, relying of course on s. 133 of the British North America Act. Deschênes C.J., in granting the declaration, dealt preliminarily with a number of points, including the question of standing.
In his reasons on this issue he said that the plaintiffs possessed a sufficient interest to satisfy art. 55 of the Quebec Code of Civil Procedure. That article reads as follows:
- Whoever brings an action at law, whether for the enforcement of a right which is not recognized or is jeopardized or denied, or otherwise to obtain a pronouncement upon the existence of a legal situation, must have a sufficient interest therein.
Chief Justice Deschênes went on to say that in the circumstances the Attorney General of Quebec, in the course of the hearing, abandoned the paragraph of his defence which contested the plaintiffs' standing. The issue of standing was,
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consequently, not pursued in the Quebec Court of Appeal nor in this Court.
The present case lacks concreteness despite the fact that it raises a highly charged issue. Moreover, it appears to me that to permit the issue to be litigated in as abstract a manner as would be the case in having the plaintiff alone carry it against two Ministers of the Crown would hardly do justice to it, absent even any interveners who might, with the same obsessiveness on the opposite side of the issue, argue for the valid operation of the challenged provisions. Even accepting, as is probable, that if standing was accorded to the plaintiff, other persons with an opposite point of view might seek to intervene and would be allowed to do so, the result would be to set up a battle between parties who do not have a direct interest, to wage it in a judicial arena.
I would hold, therefore, that not only has the plaintiff failed to establish any judicially cognizable interest in the matter he raises but, on any view of this case, the discretion of the Court should be exercised to deny him standing. It follows that his action should be dismissed. In accordance with the terms of the order granting leave, the appellants will pay to the respondent his costs of the appeal to this Court on the solicitor and client basis. There will be no other order as to costs.
The judgment of Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ. was delivered by
Majority Reasons
MARTLAND J.—The respondent brought action against the appellants seeking, primarily, a declaration that subss. (4), (5) and (6) of s. 251 of the Criminal Code were, by reason of the operation of the Canadian Bill of Rights, invalid and inoperative. These subsections were added to s. 237 (now s. 251) of the Criminal Code by s. 18 of the Criminal Law Amendment Act, 1968-69, 1968-69 (Can.), c. 38. Prior to this amendment, s. 237 consisted of three subsections. Subsections (1) and (2) provided as follows:
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- (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.
(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.
Subsection (3) was a definition section.
The subsections in issue in these proceedings provided for exceptions to the application of subss. (1) and (2) cited above. Subsection (4) provided:
(4) Subsections (1) and (2) do not apply to
(a) qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or
(b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means described in paragraph (a) for the purpose of carrying out her intention to procure her own miscarriage,
if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of such female person has been reviewed,
(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and
(d) has caused a copy of such certificate to be given to the qualified medical practitioner.
Subsection (5) enabled the Minister of Health of a province to obtain a copy of a certificate and additional information from a therapeutic abortion committee and from a medical practitioner who has procured a miscarriage of a female person named in a certificate. Subsection (6) defined, inter alia, the words "accredited hospital", "approved hospital" and "therapeutic abortion
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committee". Subsection (6) defined such a committee as follows:
"therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practitioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital.
It is the contention of the respondent that the permission which is given by subss. (4), (5) and (6) for the procurement of a miscarriage, in the circumstances provided, abridges the human right to life declared in s. 1 of the Canadian Bill of Rights and is therefore invalid and inoperative by virtue of s. 2 of the Canadian Bill of Rights. Section 1 provides that:
- It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
Section 2 provides that, unless it is expressly declared that it shall operate notwithstanding the Canadian Bill of Rights, every law of Canada shall be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights declared.
The issue raised is a difficult and important one, involving the question as to whether the human rights declared in the Canadian Bill of Rights protect a human foetus.
In his statement of claim, the respondent states that he is a citizen of Canada and a taxpayer to the Government of Canada. He goes on to state in the following paragraphs of the statement of claim:
- On February 20, 1969 the Plaintiff was elected by the voters of the provincial constituency of Thompson, Manitoba to represent them in the Legislative Assembly of Manitoba, a position he maintained until June 28,
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In his capacity as taxpayer, elected representative of the people in the Legislative Assembly, a member of the governing party in the Legislative Assembly of Manitoba and Minister of and adviser to Her Majesty the Queen in Right of the Province of Manitoba, the Plaintiff has continuously promoted and defended the rights of individual human foetuses, including their right to life.
The Plaintiff has canvassed all practicable means to invoke action on the part of both Provincial and Federal Governments to repeal or to impugn the validity of the abortion sections of the Criminal Law Amendment Act, Statutes of Canada, 1968-69, chapter 38, section 18, (now section 251, subsections (4), (5) and (6), of the Criminal Code of Canada, hereinafter referred to as "the abortion section of the Criminal Code") and to cease and desist from spending public funds to abort and destroy individual human foetuses.
The steps taken by the Plaintiff included:
(a) His resignation, on or about September 9, 1971, inter alia, because as Minister of and adviser to Her Majesty the Queen, he "could not be a party to, or accept, child-destroying legislation in which we (are) involved";
(b) His address in the Legislative Assembly of Manitoba, on May 4, 1973, opposing adoption of the budget presented by the Provincial Treasurer that proposed to finance the abortion and destruction of individual human foetuses by the expenditure of public funds;
(c) His continuous objections over a term of years to payment of his personal income tax to the Federal Government to protest its expenditures of public moneys collected by personal income taxes, to finance and to promote the abortion and destruction of individual human foetuses, and his conviction and sentence to terms in jail for his stand;
(d) His personal correspondence with the Premier and Cabinet of the Province of Manitoba, with the Prime Minister of Canada and with Members of his Cabinet including the Minister of National Health and Welfare, the Minister of Justice, the Minister of Finance, and the Solicitor-General of Canada requesting that they take appropriate legal action to protect the rights of individual human foetuses;
(e) His request addressed to the Official Guardian of Manitoba in the year 1977, to take legal proceedings
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on behalf of individual human foetuses to prevent their abortion and destruction, and to protect their right to life.
In every instance, the efforts of the Plaintiff to move public officials to impugn the validity of the abortion provisions referred to in paragraph 4 hereof by judicial proceedings met with negative response. No one undertook to subject these provisions, of great public importance, to judicial review.
For the purpose of these proceedings, all of these statements must be accepted as being true.
The proceedings were commenced in the Court of Queen's Bench of the Province of Saskatchewan. In their defence, the appellant pleaded that the Court lacked jurisdiction because exclusive jurisdiction in the matter belonged to the Federal Court of Canada. It was also stated that the appellants did not admit that the respondent had the legal standing necessary to maintain the action.
The respondent then moved for an order that the Court of Queen's Bench did have the necessary jurisdiction. This order was granted and an appeal from the order by the appellants was dismissed. The issue of the respondent's legal standing was not raised in these proceedings. Leave to appeal to this Court was granted.
On the argument before this Court, the issue of legal standing was raised and counsel on both sides finally agreed that the issue of legal standing should be determined by this Court.
Standing
In order to decide whether the respondent should be recognized as having legal standing, it is necessary to consider the two leading decisions of this Court dealing with that issue. The first of these is Thorson v. Attorney General of Canada6. The real purpose of the proceedings in that action was to obtain a declaration that the Official Languages Act, 1968-69 (Can.), c. 54, was unconstitutional. The action was framed as being brought by a taxpayer on his own behalf and on behalf of all taxpayers and a declaration was also sought in relation to the Appropriation Acts providing
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money to implement the legislation. A preliminary issue of law was raised as to the legal standing of the plaintiff to bring the action. The plaintiff's action was dismissed by Houlden J. (as he then was) on the ground that the plaintiff did not have status to challenge the constitutional validity of the statute. In his reasons, he referred to and relied upon the judgment of this Court in Smith v. Attorney General of Ontario7, and he distinguished the judgment of this Court in Macllreith v. Hart8. His reasons are reported in 1971 662 (ON SC), [1972] 1 O.R. 86 and his conclusion is stated at p. 90 as follows:
While the plaintiff has argued this application with great force and his memorandum of law is most comprehensive, I cannot agree with his submissions. In my judgment, the principle stated in the Smith case is one of general application. This principle is that an individual has no status or standing to challenge the constitutional validity of an Act of Parliament in an action of this type unless he is specially affected or exceptionally prejudiced by it: see also Grant v. St. Lawrence Seaway Authority, 1960 130 (ON CA), [1960] O.R. 298 at p. 303, 23 D.L.R. (2d) 252 at p. 256; Cowan v. Canadian Broadcasting Corp., 1966 225 (ON CA), [1966] 2 O.R. 309 at p. 311, 56 D.L.R. (2d) 578 at p. 580, and Burnham v. A.-G. Can. (1970), 1958 329 (ON CA), 15 D.L.R. (2d) 6 at pp. 11-2, 74 W.W.R. 427. The fact that the taxes of the plaintiff and the taxes of every taxpayer in Canada will be raised as a result of the implementation of the Official Languages Act is not, in my opinion, sufficient to constitute special damage or prejudice to the plaintiff so as to enable the plaintiff to bring this action.
The Court of Appeal agreed with this judgment and dismissed the appeal. The three dissenting judges in this Court were of the same view.
The appeal to this Court was allowed. It was recognized that the claim to legal standing could not be founded solely on the damage resulting from an illegal expenditure of public funds. Laskin J. (as he then was), who delivered the majority reasons, said at pp. 162-63:
I recognize that any attempt to place standing in a federal taxpayer suit on the likely tax burden or debt resulting from an illegal expenditure, by analogy to one of the reasons given for allowing municipal taxpayers'
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suits, is as unreal as it is in the municipal taxpayer cases. Certainly, a federal taxpayer's interest may be no less than that of a municipal taxpayer in that respect. It is not the alleged waste of public funds alone that will support standing but rather the right of the citizenry to constitutional behaviour by Parliament where the issue in such behaviour is justiciable as a legal question.
At page 161 he said this:
In my opinion, standing of a federal taxpayer seeking to challenge the constitutionality of federal legislation is a matter particularly appropriate for the exercise of judicial discretion, relating as it does to the effectiveness of process. Central to that discretion is the justiciability of the issue sought to be raised, a point that could be said to be involved (although the case was not decided on that basis) in Anderson v. Commonwealth [(1932), 47 C.L.R. 50], where the High Court of Australia denied standing to a member of the public to challenge the validity of an agreement between the Commonwealth and one of the States. Relevant as well is the nature of the legislation whose validity is challenged, according to whether it involves prohibitions or restrictions on any class or classes of persons who would thus be particularly affected by its terms beyond any effect upon the public at large. If it is legislation of that kind, the Court may decide, as it did in the Smith case, that a member of the public, and perhaps even one like Smith, is too remotely effected to be accorded standing. On the other hand, where all members of the public are affected alike, as in the present case, and there is a justiciable issue respecting the validity of legislation, the Court must be able to say that as between allowing a taxpayers' action and denying any standing at all when the Attorney General refuses to act, it may choose to hear the case on the merits.
It was pointed out that the plaintiff had sought unsuccessfully to have the Attorney General of Canada take appropriate proceedings to test the validity of the Official Languages Act. It was also noted that that Act was not a regulatory type of statute, but was declaratory and directory in respect of the use of English and French by and in federal authorities and agencies and did not, itself,
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create offences or impose penalties. There was thus no person or class of persons particularly aggrieved who might raise the issue of its constitutional validity.
The plaintiff was recognized as having status to make his challenge to the statute and was permitted to proceed with his action. In substance, the case was decided on the basis that the validity of the legislation raised a serious constitutional issue and there was no reasonable way to have its validity tested unless an individual citizen could proceed in the manner sought by the plaintiff. This was a decision of major importance in that it recognized that although a person might not be specially affected or exceptionally prejudiced by the legislation which he sought to attack, he might be able to seek a declaratory judgment in the circumstances described.
The Thorson case was followed shortly afterwards by the case of Nova Scotia Board of Censors v. McNeil9.
In that case the plaintiff sought to challenge the constitutional validity of certain sections of the Theatres and Amusements Act, R.S.N.S. 1967, c. 304 and certain regulations made thereunder. He was a resident and taxpayer in the Province of Nova Scotia. He was concerned about the powers of censorship provided in that Act. He had attempted to appeal to the Lieutenant Governor in Council from the decision of the Board of Censors to prohibit the exhibition of a particular film but was not recognized as having any right of appeal. He had also sought, without success, to have the Attorney General of Nova Scotia test the constitutional validity of certain sections of the Act and certain regulations. He then commenced action for a declaratory judgment.
Preliminary objection was taken to his status to institute the proceeding but this failed in both courts in Nova Scotia. An appeal to this Court was dismissed.
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This case differed from the Thorson case. The legislation under attack was regulatory legislation. The Theatres and Amusements Act provided for the appointment of a Board empowered to permit or prohibit the use or exhibition in Nova Scotia for public entertainment of any film or any performance in a theatre. Provision was made for licensing regulations in respect of theatres and film exchanges and in respect of cinematograph operators. Regulations could be enacted in respect of the exhibition, sale, lease and exchange of films. A licence from the Board was necessary for a film exchange to exhibit any film. The Board was given complete power over the showing of films. Penalties were prescribed for breaches of the Act or the regulations.
It is obvious that in this case certain classes of persons were directly affected by the operation of the Act and the regulations, i.e. film exchanges, theatre owners and cinematograph operators. A theatre owner who wished to challenge the validity of the Act could have done so by showing a film whose exhibition had been refused by the Board and, thereafter, resisting the imposition of a penalty.
Notwithstanding these circumstances, the plaintiff was recognized by this Court as having the necessary legal standing to seek a declaration that the legislation was constitutionally invalid. Chief Justice Laskin, who delivered the reasons of the Court, said at p. 271:
Since the issue of validity does not fall for determination here and, indeed, has not even been argued in relation to the question of standing, I would not, in this case, go beyond the tentative conclusion that there is an arguable case under the terms of the challenged legislation that members of the Nova Scotia public are directly affected in what they may view in a Nova Scotia theatre, albeit there is a more direct effect on the business enterprises which are regulated by the legislation. The challenged legislation does not appear to me to be legislation directed only to the regulation of operators and film distributors. It strikes at the members of the public in one of its central aspects.
In my view, this is enough, in the light of the fact that there appears to be no other way, practically speaking, to subject the challenged Act to judicial review, to
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support the claim of the respondent to have the discretion of the Court exercised in his favour to give him standing.
This decision 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.
In both the Thorson and McNeil cases, the challenge to the legislation in question was founded upon their alleged constitutional invalidity. In the present case, the challenge is based upon the operation of the Canadian Bill of Rights. I agree with the view expressed by the Chief Justice that no distinction should be made between a declaratory action to obtain a decision on validity under the British North America Act and a declaratory action to obtain a decision on the operative effect in the face of the Canadian Bill of Rights.
The legislation under attack here is not declaratory or directory as in the case of the Official Languages Act nor is it regulatory as in the case of the Theatres and Amusements Act. It is exculpatory in nature. It provides that in certain specified circumstances conduct which otherwise would be criminal is permissible. It does not impose duties, but instead provides exemption from criminal liability. That being so, it is difficult to find any class of person directly affected or exceptionally prejudiced by it who would have cause to attack the legislation.
Doctors who perform therapeutic abortions are protected by the legislation and would have no reason to attack it. Doctors who do not perform therapeutic abortions have no direct interest to protect by attacking it, and, consequently, an attack by a doctor in that category would be no different from that made by any other concerned citizen. The same thing applies to hospitals. A hospital which appoints a therapeutic abortion committee has no reason to attack the legislation. A hospital which does not appoint such a committee has no direct reason to attack the legislation.
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There is no reason why a pregnant woman desirous of obtaining an abortion should challenge the legislation which is for her benefit. 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 endanger 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.
The legislation proposed to be attacked has a direct impact upon the unborn human foetuses whose existence may be terminated by legalized abortions. They obviously cannot be parties to proceedings in court and yet the issue as to the scope of the Canadian Bill of Rights in the protection of the human right to life is a matter of considerable importance. There is no reasonable way in which that issue can be brought into court unless proceedings are launched by some interested citizen.
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 constitutional 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 censorship of films in Nova Scotia. He had sought by other means to have the validity of the
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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.
Jurisdiction
The issue which alone was raised in the courts below was as to whether exclusive jurisdiction to deal with the issue rested in the Federal Court of Canada because of the character of the appellants. The same issue is before the Court arising out of two other cases heard immediately prior to the hearing of the present appeal. These cases were Attorney General of Canada et al. v. The Law Society of British Columbia and Victor McCallum and Donald Jabour v. The Law Society of British Columbia et al. and The Attorney General of Canada. It is conceded that there are no material differences between those cases and the present one in respect of that issue. The disposition of this issue in the present case should be the same as its disposition in those cases.
Under the terms of the order which granted leave to appeal, the respondent is entitled to the costs of this appeal on a solicitor and client basis.
Appeal dismissed with costs, LASKIN C.J. and LAMER J. dissenting.
Solicitor for the appellants: R. Tassé, Ottawa.
Solicitors for the respondent: Shumiatcher, Findlay & Newfeld, Regina.
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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.
Footnotes
- 1980 2279 (SK CA), [1981] 1 W.W.R. 1; (1980), 6 Sask. R. 218.
- 2 (1908), 1908 64 (SCC), 39 S.C.R. 657.
- 1974 6 (SCC), [1975] 1 S.C.R. 138.
- 1975 14 (SCC), [1976] 2 S.C.R. 265.
- 1978 2185 (QC CS), [1978] C.S. 37, aff'd [1979] C.A. 351, aff'd [1978] 2 S.C.R. 1016.
- 1974 6 (SCC), [1975] 1 S.C.R. 138.
- 1924 3 (SCC), [1924] S.C.R. 331.
- (1908), 1908 64 (SCC), 39 S.C.R. 657.
- 1975 14 (SCC), [1976] 2 S.C.R. 265.
