Canada (Minister of Justice) v Borowski

Canada (Minister of Justice) v Borowski, [1981] 2 S.C.R. 575 is a landmark Supreme Court of Canada decision on the standard for allowing public interests to gain standing to challenge a law. The Court developed what is known as the Borowski test for public interest standing.

Minister of Justice (Can) v Borowski
Supreme Court of Canada
Hearing: 27–28 May 1981 Judgment: 1 December 1981
Full case name	The Minister of Justice of Canada and the Minister of Finance of Canada v Joseph Borowski
Citations	[1981] 2 SCR 575
Prior history	APPEAL from Borowski v. Minister of Justice of Canada and Minister of Finance of Canada, 1980 CanLII 2279 (5 November 1980)
Ruling	Appeal dismissed
Court membership
Chief Justice: Bora Laskin Puisne Justices: Ronald Martland, Roland Ritchie, Brian Dickson, Jean Beetz, Willard Estey, William McIntyre, Julien Chouinard, Antonio Lamer
Reasons given
Majority	Martland J, joined by Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ
Dissent	Laskin CJ, joined by Lamer J

Background

Joseph Borowski was a prominent anti-abortion activist in Saskatchewan who wanted to challenge the abortion provisions under section 251(4), (5), and (6) of the Criminal Code as violations to right to life in the Canadian Bill of Rights.

In a seven to two decision the Court found that Borowski had standing to challenge the law.

Reasons of the court

Justice Martland, wrote the decision for the majority. Martland's reasoning was largely based on the previous decision of Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138. He stated that a plaintiff seeking a declaration to invalidate a law must show that they are directly affected by it, or have a genuine interest as a citizen and there be no reasonable and effective alternative means to challenge the law.

Borowski was found to meet this requirement as it would be difficult to bring such an issue to court without having an interest group make a challenge.

Commentary

The test was later re-articulated more narrowly in the decision of Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236.

See also

• List of Supreme Court of Canada cases (Laskin Court)
• Borowski v. Canada (Attorney General), [1989]

External links

• Full text of Supreme Court of Canada decision at LexUM and CanLII