Minister of Justice v. Borowski: The Inapplicability of the
Standing Rules in Constitutional Litigation
Sara Blake*
In the Borowski case, the Supreme Court
confirms the trend toward more lenient rules
of standing in division of powers litigation
first adopted in cases such as Thorson and
McNeil. The author argues that this trend is
disturbing and ought to be reversed. The
courts typically confuse issues of standing
with the substantive merits of a case. Often-
times this confusion permits the doctrine of
standing to be used as a defacto merits lever,
allowing a court to dismiss cases it simply
does not wish to hear. Under the existing law
of standing, the courts permit private parties
to challenge statutes on the grounds of the
constitutional division of legislative powers.
By and large, the private parties who take
advantage of this privilege are corporations
and individual businessmen. The author
asserts that these parties are not appropriate
challengers because often their motives are
improper. They do not seek to have constitu-
tional norms enforced. They seek to avoid
government regulation by having the im-
pugned statute declared ultra vires. They
then hope that the other level of government
will be more laissez-faire in its regulatory
undertakings. The courts are not the proper
forum to attain such a “remedy”. The author
concludes that private litigants should be de-
nied standing in division of powers cases
except on the rare occasions when indi-
viduals are confronted directly with conflict-
ing legislation in which case they are entitled
to a judicial decision establishing para-
mountcy.
Dans l’affaire Borowski, la Cour supreme a
assoupli les r~gles concernant l’int6r~t du
demandeur dans les litiges constitutionnel
portant sur la s6paration des pouvoirs, adop-
tant ainsi l’approche consacrde dans les ar-
rats Thorson et McNeil. L’auteur se porte
critique de cette tendance et souhaite un revi-
rement jurisprudentiel dans l’avenir. Selon
lui, les tribunaux ayant rarement fait ]a dis-
tinction entre les questions de proc6dure et
de fond soulev6es dans un litige, un manque
de clart6 a ainsi permis un filtrage des de-
mandes par ceux-ci. Sous le droit actuel, les
tribunaux permettent aux individus de
contester les lois au motif que l’assemble
16gislative qui les a adoptdes aurait outre-
pass6 sajuridiction. En g6n6ral, les citoyens
qui tirent le plus grand profit de ce privilege
seraient les soci6t6s et les hommes d’af-
faires: l’auteur soutient que ces personnes ne
sont pas des demandeurs addquats parce
qu’ils ont des motifs d6plac6s. Ainsi, ils ne
recherchent pas la bonne application des
normes constitutionnelles autant que ]a dis-
parition de r~glements ex6cutifs encom-
brants, espdrant par 1A assouplir le contr6le
de leurs activit6s par les divers paliers admi-
nistratifs du gouvemement. Selon l’auteur,
ces disputes ne devraient pas 6tre r6solues
par les tribunaux. Celle-ci soutient en
conclusion qu’il y aurait int6r~t h limiter
l’acc~s dontjouissent les citoyens ordinaires
pour r6gler les questions de partage des
comp6tences l6gislatives, sauf dans les cas
exceptionnels oib l’individu est directement
affect6 par un conflit de lois, et ott une d6ci-
sion serait n~cessaire afin de d6terminer la-
quelle doit pr6valoir.
*LL.B. I, Osgoode Hall Law School. The author is grateful to Associate Dean Edward
Belobaba of Osgoode Hall for his useful comments. Of course, any errors orinfelicities remain
the responsibility of the author alone.
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Synopsis
Introduction
I.
The Relationship Between Standing and the Substantive Issues
The Confusion Between Standing and the Merits
A. There Must be a Justiciable Issue
B.
C. The Relationship Between Standing and the Evidence
D. The Relationship Between Standing and the Remedy
The Types of Parties Typically Granted Standing
Standing as a De Facto Merits Lever
II.
Ill.
IV. Alternatives to the Present Standing Rules
A. The Motives of the Plaintiff
B. Enforcing the Division of Powers
Conclusion: Deny Standing to Private Litigants
Introduction
The Supreme Court of Canada’s decision in Minister of Justice of
Canada v. Borowski I will be seen by many as a final and definitive clarifica-
tion of the law of standing in constitutional litigation. With the majority’s
endorsement of the “genuine interest” test,’ the confusion surrounding the law
of standing has arguably been resolved. Undoubtedly, many will believe that
the law in this area has now been settled. In my view, the law of standing,
even after Borowski, is, in practical terms, far from settled. Indeed, this
recent decision exemplifies all that is wrong in this important area of the law.
In the Borowski case, the court made no distinction between a declaratory
action to challenge the validity of an act under s. 91 or s. 92 of the Constitution
Act, 18671 and standing to obtain a declaratory judgment on operative effect
in the face of the Canadian Bill of Rights.4 1 argue that such a distinction is
critical. While it may be suggested that a “genuine interest” test is adequate to
1(1981) 130 D.L.R. (3d) 588, (1981) 39 N.R. 331 (S.C.C.) [hereinafter Borowski].
21bid., 606.
130& 31 Vict., c. 3 (U.K.). Indeed Mr Justice Martland rejects explicitly such a distinction
in Borowski, ibid, 596 as does Chief Justice Laskin in dissent at 605.
‘R.S.C. 1970, Appendix II.
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decide standing questions under the Bill of Rights and, more importantly,
under the new Charter ofRights and Freedoms,5 the standing rules, as stated
in Borowski, should not be applied to constitutional litigation involving the
division of legislative powers. In that context the rules are used arbitrarily by
the courts and they are abused readily by litigants.
In this comment I analyze the inherent defects in the law of standing in
light of the decision in Borowski. First, I discuss the confusion between the
law of standing and the merits in constitutional division of powers cases.
Secondly, I examine the types of plaintiffs who are granted standing to
challenge the constitutional validity of legislation. Thirdly, I argue that the
present standing rules are no more thah a convenient but arbitrary de facto
merits lever. And fourthly, I discuss how the privilege of standing that is
granted to individuals has been abused and for this reason ought to be
curtailed significantly.
The facts in Borowski are simple. Joseph Borowski had challenged the
therapeutic abortion provisions of the Criminal Code I arguing that they were
inoperative as being in violation of the right to life as guaranteed by the
Canadian Bill of Rights.7 The Minister of Justice challenged Borowski’s
standing to bring this action. It was not Borowski’s own life that was at stake
but rather the lives of foetuses who were unrelated to Borowski. The earlier
standing rules, as outlined in Smith v. A.-G. Ontario,8 had required that the
plaintiff have a direct stake in the issue. To be granted standing the plaintiff
had to show that he was personally affected by the impugned statute. Smith,
for example, wishing to import alcoholic beverages into Ontario, challenged
the validity of the Order in Council which proclaimed the Canada Temper-
ance Act 9 in force in Ontario. The Supreme Court denied Smith standing
because, as he had not violated the Act and was consequently not threatened
with sanctions, he did not have sufficient interest to test its validity.
The standing rules relating to division of powers litigation were
broadened considerably in recent years. In Thorson v. A.-G. Canada,'” the
appellant challenged the validity of the Official Languages Act ” because he
did not agree with the federal government’s views on bilingualism and he
thought the Act a waste of taxpayers’ money. He argued that the Act was ultra
vires the Federal Parliament. Thorson was not personally affected by the Act
5Part I of Schedule B, Canada Act 1982, 1982, c. I1 (U.K.).
6R.S.C. 1970, c. C-34, s. 251.
7R.S.C. 1970, Appendix III, s. l(a).
8[1924] S.C.R. 331, [19241 3 D.L.R. 189 [hereinafter cited to S.C.R.].
9R.S.C. 1906, c. 152, as am. S.C. 1919, c. 8.
10[1975] 1 S.C.R. 138, (1974) 43 D.L.R. (3d) 1 [hereinafter cited to S.C.R.].
“R.S.C. 1970, c. 0-2.
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and, therefore, did not have a direct stake in the issues. However, the
Supreme Court held that he had raised a justiciable issue and granted him
standing specifically because the Act, being declaratory, affected everyone
alike; to deny Thorson standing would preclude the Court from ever pro-
nouncing upon the Act’s validity. Thorson had also met several other pro-
cedural requirements. He was a citizen and a taxpayer: two requirements that
the Court adopted from Macllreith v. Hart 2 where the plaintiff, as resident
and ratepayer, had been granted standing to challenge a municipal expendi-
ture which the Court had found to be ultra vires the powers of the local
government. Thorson had also attempted without success to persuade the
Attorney-General to bring this action –
a requirement adopted from Lord
Denning’s decision in McWhirter.3
The Supreme Court broadened the standing rules even further in Nova
Scotia Board of Censors v. McNeil.’4 McNeil, wanting to see the film Last
Tango in Paris which had been censored by the provincial Board of Censors,
challenged their constitutional authority to do so, arguing that censorship was
in pith and substance criminal law, a federal matter under s. 91(27) of the
Constitution Act, 1867. In this case the provincial Act “5 was regulatory and
had a more direct effect on film exchanges and theatre owners than on the
film-viewing public. All parties conceded that the issue was justiciable.
McNeil was granted standing because the Act affected the general public in
one of its central aspects and the Court could see no other way to subject it to
judicial review. McNeil, too, had asked the Attorney General to refer the
constitutionality of the Act to the provincial Supreme Court but to no avail.
With such broad standing rules laid down in Thorson and McNeil it came
as no surprise that Borowski was granted standing to challenge the therapeutic
abortion provisions of the Criminal Code. 6 It should be noted again that,
unlike the other standing cases, Borowski did not involve a challenge with
respect to the division of legislative powers and, as I will argue, the liberal-
ized standing rules contained in that case are not appropriate in division of
powers litigation. With this distinction in mind, it can be stated fairly that
Joseph Borowski did meet the tests for standing set down in Thorson and
McNeil. Borowski was both a citizen and a taxpayer and he had done all he
could to persuade public officials to impugn the validity of the therapeutic
abortion provisions including resigning’from his position as Cabinet Minister
in the Manitoba Government, opposing a provincial budget that allocated
“2(1908) 39 S.C.R. 657.
“A.-G. ex rel. McWhirter v. Independent Broadcasting Authority [1973] Q.B. 629, [1973]
1 All E.R. 689 (C.A.).
.4 [1976] 2 S.C.R. 265, (1975) 55 D.L.R. (3d) 632 [hereinafter cited to S.C.R.].
“Theatres and Amusements Act, R.S.N.S. 1967, c. 304.
‘6R.S.C. 1970, c. C-34, s. 251.
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funds to abortions, refusing to pay income tax in protest against tax money
spent on abortions, corresponding with the Manitoba Premier and the Prime
Minister and with Manitoba and federal Cabinet Ministers and, finally,
requesting the Manitoba Official Guardian to take legal action, all to no
avail. 17
Martland J., writing for the majority, 8 and Laskin C.J.C., in dissent, 9
agreed that the issue was a justiciable one. Their disagreement seems to have
revolved around whether or not there was a better plaintiff: someone affected
more directly by the provisions who would be likely to challenge them.
Martland J. held that, to meet the requirements of standing, the plaintiff must
show (a) that he is affected directly by the statute or that he has a genuine
interest in its validity and (b) that “there is no other reasonable and effective
manner in which the issue may be brought before the court”.” The latter
requirement is, in effect, the “no better plaintiff” rule. Martland J. granted
Borowski standing because Borowski had a genuine interest in the validity of
the therapeutic abortion provisions and because Martland J. believed that
“[t]here are in this case no persons directly affected who could effectively
challenge the legislation”. 2 1 In his dissenting notes, the Chief Justice stated
that Borowski should be denied standing because “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”.2 It was agreed that women who had
abortions, doctors who performed them and the hospitals in which they were
performed all had more direct interests in the issues. Martland J. believed that
these parties would be unlikely to challenge provisions that exempted them
from criminal liability. Laskin C.J.C., although he did not contemplate the
likelihood that any of these parties would challenge the provisions, expressed
concern that, if Borowski was granted standing, the Court would hear argu-
ment from a party having an emotional concern with the question but not from
those with more compellifig and immediate interests.24 Thus Martland J.
granted Borowski standing because he believed there was no better plaintiff
while Laskin C.J.C. would have denied him standing because he believed
there were better plaintiffs.
This disagreement suggests that, although the standing rules in constitu-
tional litigation have ostensibly been settled by the Supreme Court, they
lVBorowski, supra, note 1, 600-1.
“Ibid., 600 and 606.
“9Ibid., 596.
2 Ibid., 606.
21Ibid.
“Ibid., 596.
Ibid., 605.
SIbid., 597.
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CHRONIQUE DE JURISPRUDENCE
cannot be applied easily in practice. The purpose of this comment is to discuss
why they are so difficult to apply. I will commence by analyzing the relevance
of the merits of a constitutional case to the issue of standing. Then, after
briefly noting who is typically granted standing, I will discuss the arbitrary
fashion in which standing rules are applied. Finally, I will examine suggested
alternative standing rules taking into consideration the prevalent abuse of the
privilege of standing by private litigants.
I.
The Confusion Between Standing and the Merits
Standing is considered to be a separate procedural issue to be decided
before the substantive issues are considered. However, in previous standing
cases, the Justices have been unable to ignore the merits of the case when
deciding the standing issue. Duff J., in Smith, said that he “was loath to give a
judgment against the appellant solely based upon a fairly disputable point of
procedure” and then went on to dismiss the case on the merits as well.’
Davies J., in Macllreith,6 approached the problem backwards. He first
decided for the plaintiff on the merits and then went on to find that the plaintiff
had standing. Both the standing issue and the substantive issues of these cases
were before the Supreme Court at the same time.
In Thorson, McNeil, and Borowski, the standing issue was decided
separately, before the substantive issues were argued. The standing issue was
decided in Thorson’s favour mainly because he had raised a justiciable issue.
Laskin J., as he then was, said this:
The substantive issue raised by the plaintiff’s action is a justiciable one; and, primafacie,
it would be strange and, indeed, alarming, if there was no way in which a question of
alleged excess of legislative power, a matter traditionally within the scope of the judicial
process, could be made the subject of adjudication.”
To decide whether the issue is justiciable the court must look to the merits. In
McNeil, the parties conceded that a justiciable issue had been raised.’ Las-
kin C.J.C. granted standing but regretted doing so without hearing arguments
as to the merits of the case. He said:
it is preferable to have all the issues in the case, whether going to procedural regularity or
propriety or to the merits, decided at the same time. A thoroughgoing examination of the
challenged statute could have a bearing in clarifying any disputed question on standing.”
“Supra, note 8, 338.
“Supra, note 12.
‘Supra, note 10, 145.
“Supra, note 14, 267.
“Ibid.
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He again considered the merits of the case to be relevant to the issue of
standing. In my view, the merits of a case are in fact irrelevant to this issue.
Much of the confusion surrounding the standing rules is caused by uncertainty
on the bench as to the relevancy of the merits of the case in deciding the
standing issue.
A.
There Must be a Justiciable Issue
In the more recent cases, although the merits are considered, they are not
dealt with in depth. To get standing the plaintiff need not show that the merits
weigh in his favour. He need only show that his case has “some merit” in it. Is
this really a standing issue? Courts do not wish to hear arguments on hypothe-
tical or moot points and they will dismiss any case that is frivolous or
vexatious. The purpose of the requirement of standing is not to ensure that
only cases with merit in them come before the court but to ensure that the
proper parties argue the case. The court has other methods to dismiss cases
lacking in merits. Whether or not there is a justiciable issue is a separate
hurdle that must be overcome regardless of standing. That hurdle being
crossed, are the merits of the case relevant to the issue of standing? In McNeil,
Laskin C.J.C. thought So3
0 but did not explain how they are relevant.
B.
The Relationship Between Standing and the Substantive Issues
In contract and tort cases, standing is a substantive issue as well as a
procedural issue. Unless a plaintiff can prove he was a party to the contract he
cannot sue for its breach because his rights are no more than those set out in
the contract.3′ Unless a plaintiff can prove he suffered a personal injury he
cannot bring a tort action for damages because carelessness does not become a
tort until someone is injured.32 Standing to sue is the pivotal issue out of which
all other issues flow. The issues turn on facts, rights and duties peculiar to the
parties and the court must decide whether one party’s rights have been
infringed or the other has breached his duties. As the merits revolve around
the plaintiff’s personal rights, standing must be decided before any other
issues, such as whether the contract has been breached or whether the
defendant caused the injury, can be considered.
30Ibid.
“SeeDunlop Pneumatic Tyre Co. v. Seifridge & Co. [1915] A.C. 847 (H.L.); Scruttons Ltd
32J. Fleming, The Law of Torts 5th ed. (1977) 104; G. Fridman, Introduction to the Law of
v. Midlands Silicones Ltd [1962] A.C. 446, [1962] 1 All E.R. 1 (H.L.).
Torts (1978) 48.
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In constitutional cases involving the division of legislative power, the
standing of private parties has little if anything to do with the substantive
issues. The merits do not turn on any complaints peculiar to the plaintiff.33 It is
the validity of the legislation that is at stake. The court is not asked to decide
whether the plaintiff has suffered a wrong, but rather to determine which level
of government has the power to legislate with respect to a certain matter.
Being personally affected by a statute may be a motive for challenging it but it
is not a relevant factorin assessing the validity of the statute. The degree to
which the plaintiff is affected is irrelevant to the validity of the legislation.’ It
is valid or invalid regardless of whether the party challenging it is imprisoned
for violating it or not touched by it at all.
C.
The Relationship Between Standing and the Evidence
Adjudication of private disputes involves the application of contract and
tort law to concrete sets of facts. The decision is based on facts peculiar to the
plaintiff which the plaintiff is best able to prove. Constitutional adjudication,
on the other hand, involves interpretation of a statute and of the constitution.
There is no application of law to specific facts as there is in private adjudica-
tion. Facts may be of assistance in interpreting the statute and in determining
whether its actual effect is intra vires or ultra vires. The facts peculiar to Mr
McNeil were that he was deprived of the opportunity to see Last Tango in
Paris by the Nova Scotia Board of Censors 5.3 The issue in the case was
whether the province had the constitutional authority to censor films where
the federal government had already dealt with the matter under its criminal
law power. The fact that McNeil was not allowed to see Last Tango is relevant
only to show that the province had censored a film. Whether or not the
province had the power to do so could be argued by anyone interested in the
issue whether or not they cared to see Last Tango. The case does not turn on
facts peculiar to the plaintiff but rather on judicial interpretation of the
Constitution Act, 1867.36 Facts are relevant only to determine the scope of the
impugned legislation; that is, whether the statute intrudes directly into a field
of the other level of government or whether the effect is merely an ancillary
overlap on the other’s jurisdiction. Thus inA.-G. Canada v. LabattBreweries
of Canada Ltd,37 for example, evidence showing whether the federal Food
33 Of course, the same argument does not apply to constitutional cases brought under s. 23 of
the Canadian Charter of Rights and Freedoms, Part I of Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.). An application under s. 23 is essentially a request for enforcement of apersonal
right.
14B. Strayer, Judicial Review of Legislation in Canada (1968) 122.
31Supra, note 14, 268.
130 & 31 Vict., c. 3 (U.K.).
3[1980] 1 F.C. 241, (1979) 26 N.R. 617 (C.A.), rev’d [1980] 1 S.C.R. 914.
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and Drugs Act 3” had the nationwide effect of protecting consumers from
deception or showing that it was aimed at particular local industries would
have been relevant to demonstrate the extent of the possible intrusion into
provincial jurisdiction. Labatt was in no better position than any other food or
drug company or consumer to present the relevant evidence. The fact that the
Act affected Labatt directly is only one example of intrusive effect and does
not show whether this effect was merely ancillary or was the main purpose of
the Act. Therefore, granting or denying standing to a particular private litigant
has little impact upon the final outcome of a case, the purpose of which is to
determine the validity of a legislative exercise of purported jurisdiction.
D.
The Relationship Between Standing and the Remedy
In tort and contract cases, the remedy accrues to the plaintiff. The
purpose of the remedy is to compensate the plaintiff for injuries suffered. The
plaintiff must have suffered a direct harm. Damages cannot be assessed and
awarded unless some actual and measurable harm has been incurred. In
constitutional division of powers cases, the remedy that may be granted by the
courts is declaratory. It does not accrue directly to the plaintiff or to anyone
else. A declaration that one level of government rather than the other has the
power to legislate with respect to a certain matter has the potential of affecting
everyone in Canada to some degree. There exists a continuum on which every
resident of Canada has a place depending on the degree to which he is
affected. At one end is the mere citizen and close to him is the taxpayer; at the
other end is the person whose daily conduct is regulated by the statute in
question.39 Any division of powers decision affects everyone, whether the
effect be to denigrate or further the citizen’s concept of federalism, to increase
or decrease however minimally the financial burden on the taxpayer, or to
affect substantially the regulatee’s daily conduct. Of these potential interests
in the validity of legislation, it is the citizen’s concept of federalism that is
most relevant to the substantive issue of the case, the validity of the statute.
Yet, it is the regulatee who is deemed to have the necessary interest in the
validity of the legislation because it affects directly his daily conduct. But it is
the specific statute that disturbs him, not really the question of its constitution-
al validity. The effect on the regulatee of having the statute declared ultra
vires is simply to allow one level of government, rather than the other, to
regulate his conduct. Whether the other level of government would be more
benevolent in its regulation is relevant to neither the issue of validity nor
‘R.S.C. 1970, c. F-27.
9Jaffe, Standing to Secure JudicialReview: Public Actions (1961) 74 Harv. L. Rev. 1265,
1267.
1982]
CHRONIQUE DE JURISPRUDENCE
standing, although this is the outcome that the hopeful plaintiff intends.
Benevolence or lack of interest in the plaintiff’s affairs on the part of the other
level of government is the “remedy” that the plaintiff actually seeks. This is
not a remedy the court is empowered to grant, nor is it a matter that ought
properly to concern the court.
II.
The Types of Parties Typically Granted Standing
It is interesting to note that courts have been quite willing to grant
standing to private parties to protect their interests from intrusions that the
governments declare to be in the public interest but have been very unwilling
to grant standing to public interest groups who challenge legislation in favour
of certain private interests.0 Thus, Labatt succeeded in challenging the food
and beverage content regulations in the Food and Drugs Act which were
enacted to protect consumers from deception, 4 but taxpayers have been
unsuccessful in challenging tax rulings in favour of various private interests .42
It is unlikely that the Consumers’ Association of Canada would be granted
standing to challenge marketing legislation enacted for the benefit of produc-
ers although it might be granted standing as amicus curiae if a party more
directly affected (e.g., a producer) were to challenge the legislation.
This anomaly likely arises in part from the court’s perception of itself as
the protector of individuals from the excesses of the State. Public interests are
believed to be protected adequately by democratically elected governments.
The anomaly also arises out of the fiction of the corporation as an individual
entity. Corporations which are often large groups consisting of thousands of
people are seen as individuals while public interest groups whose numbers are
often only in the hundreds are seen as groups of individuals. A corporation
need only show that its group interests are affected. It need not show that the
interests of each individual within it are affected unlike a public interest group
which, in order to get standing, must show that a substantial number of its
members are individually affected. 43
The “no better plaintiff’ rule, as it is stated in Borowski,’ increases the
likelihood of a party being granted standing to challenge the validity of a
statute, but it does nothing to alter the arbitrariness of the standing rules. “No
4Johnson, Locus Standi in Constitutional Cases After Thorson [1975] Pub. L. 137, 140.
” Supra, note 37.
4″Evans, Standing to Challenge Unlawful Tax Expenditures (1981) 3 Can. Tax. J. 17.
4’This was the underlying assumption of the Qu6bec Court of Appeal in Jeunes Canadiens
pour une civilisation chr~tienne v. La Fondation du Th6Otre du Nouveau-Monde [19791 C.A.
491.
“Supra, note 1, 605-6.
McGILL LAW JOURNAL
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better plaintiff’ means simply that there is no one who is more directly
affected by the legislation and who is likely to challenge it. As the disagree-
ment between the majority and the dissenters in Borowski made plain, the
court can always find a better plaintiff if it so chooses. Who is to say that
someone else is more or less likely than the plaintiff to challenge the statute in
dispute, especially when such person has not yet challenged it? The key to the
door is still given only to those who show that there is a justiciable issue, that
the case has merits. But even with that key, it is still very much a flip of the
coin as to whether standing will be granted or denied to those who are not
directly touched by the statute in question.
H. Standing as a De Facto Merits Lever
Is it fair to speculate that standing will be granted where the issue is one
that a judge wishes to decide in favour of the plaintiff but denied when the
court is not interested? In McNeil, Laskin C.J.C. granted standing and then in
his dissent on the merits he argued that the Nova Scotia censorship laws were
ultra vires as the plaintiff alleged.45 In his dissent in Borowski he denied
Borowski standing. Will he also decide against Borowski on the merits?
There are hints of the Justices’ opinions regarding the merits of the case
at bar in their decisions on the standing issue. Laskin C.J.C. characterized the
abortion issue as “highly charged”, “abstract” and lacking in
“concreteness”. 46 Martland J. characterized the issue as being one of “con-
siderable importance”.47 It can be inferred from Chief Justice Laskin’s com-
ments that he did not want to tackle the abortion issue, The opposite inference
cannot be drawn from Mr Justice Martland’s comments. We do not know
whether Martland J. really wished to deal with the emotionally-charged
abortion question, for when he authored his opinion on the preliminary issue
of standing, his retirement was imminent.
Many constitutional cases involve such volatile political questions about
which there is no national consensus. This is because a constitution is by its
very nature a political instrument. Where the question is political and the
present law is as the judge likes it, the arbitrary standing rules provide an easy
out. They relieve the judge from the duty of explaining on the merits why the
law should be upheld and enable him to avoid the appearance of political bias.
The standing rules are a convenient de facto merits lever. The important
45Nova Scotia Board of Censors v. McNeil [1978] 2 S.C.R. 662, (1978) 84 D.L.R. (3d) 1
(merits).
46Borowski, supra, note 1, 598.
4 Ibid., 606.
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COMMENTS
question is this: Assuming that the goal of the standing rules –
number of cases before the court –
an arbitrary and, with all respect, dishonest method?
to limit the
is desirable, must it be achieved by such
IV. Alternatives to the Present Standing Rules
Because the present standing rules, as they relate to division of powers
litigation, are so unfair and arbitrary, they ought to be discarded. However,
merely discarding them will not make the problems surrounding them go
away. The question remains: Who ought to be allowed to challenge the
constitutional validity of a statute on the basis of the division of powers?
In my view, there are only two viable alternatives to the present standing
rules. Either every citizen ought to be allowed to bring constitutional cases or
no private individuals should be allowed to do so. Any line drawn between
these poles will be no less arbitrary than the present standing rules because, as
I have attempted to argue above, the identity and position of the challenger are
quite irrelevant to the validity of the challenged statute. If the cut-off point for
granting and denying standing lies between the two poles, it will depend
invariably on factors that are peculiar to the challenger. Such factors hold no
logical connection to the validity of the statute in question. In support of the
view that standing should be broadened so that anyone may challenge the
validity of a statute, Professor Strayer argues:
It is submitted that the courts should be especially willing to exercise their discretion in
favour of conferring standing in constitutional cases. The importance of enforcing
constitutional norms transcends the existence or non-existence of a legal right in a private
individual in a particular case. If the constitution is to be effective, the courts must be able
to act in situations where a failure to act would permit a legislature to achieve a result
beyond its legal powers.’
He suggests that the only limitations on the availability of judicial review
should be those that are related to the effective operation of the courts, such as
the traditional substantive levers like “ripeness” and “justiciable issue”,
which are not standing issues. Professor Strayer has considerable faith in the
ability of the judiciary to deal with constitutional questions. 49 In support of the
contrary view that private litigants should be denied standing to challenge the
validity of a statute, Professor Weiler asserts his lack of faith in the ability of
the courts to deal with the difficult issues that arise in constitutional cases. 50
4 Supra, note 34, 123.
49Ibid., ch. 8.
‘OP. Weiler, In the Last Resort [:] A Critical Study of the Supreme Court of Canada (1974)
ch. 6.
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However, this dispute misses the point. There is no connection between
standing and the problems of judicial review, and we should not base deci-
sions regarding standing on our faith or lack of faith in the judiciary. Any
flaws in judicial review are not caused by allowing individuals to challenge
the validity of statutes in the courts. Denying individuals standing on these
grounds will result simply in our being reminded less often of the flaws in
judicial review. However, there is another, more telling, argument in favour
of restricted access to the courts in cases involving constitutional division of
powers –
the often improper motives of private litigants.
A.
The Motives of the Plaintiff
One way to determine whether private individuals ought to be able to
bring constitutional cases is to investigate their motives for doing so. Rarely
do individuals challenge the validity of a statute solely because they believe
sincerely that the statute in question is concerned with a matter that is properly
within the sphere of the other level of government. One may think of a
situation where a public interest group might challenge a statute because the
group believes that the matter governed by the statute ought to be dealt with by
the other level of government. An example of such a situation might occur if
the Consumers’ Association of Canada challenged provincial consumer pro-
tection legislation on the grounds that consumers could be protected more
effectively by uniform national legislation. 5′
One motive, in the past, for challenging the validity of legislation has
been the protection of civil liberties. In ReAlberta Statutes 52 and in Saumur v.
City of Quibec,53 for example, the fact of divided powers was used to protect
freedom of the press and freedom of religion, respectively, from intrusions by
provincial legislatures. The effectiveness of these decisions in protecting civil
liberties depended on the laissez-faire attitude of the federal government in
these matters. To preclude individuals like Saumur from challenging the
validity of legislation would have, in the past, left them with no means of
protecting their civil liberties from government infringement. However, now
that the Canadian Charter of Rights and Freedoms has been proclaimed
ment of the constitution.
“For the courts to accede to this argument would amount, of course, to a judicial amend-
2[1938] S.C.R. 100, [1938] 2 D.L.R. 81.
53[1953] 2 S.C.R. 299, [195314 D.L.R. 641. More recently the same method was used in
an attempt to protect the freedom of assembly in Canada. It failed. See A.-G. Canada and
Dupond v. The City of Montrial [1978] 2 S.C.R. 770, (1978) 84 D.L.R. (3d) 420.
‘Part I of Schedule B, Canada Act 1982, 1982, c. I1 (U.K.).
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individuals need no longer use the fact of divided jurisdiction to protect their
civil liberties .” They may- now challenge directly any legislation that violates
the Charter. The protection of civil liberties is no longer a justification for
granting standing in division of powers cases.
The primary motive that has led private individuals and corporations to
challenge the validity of legislation has been the desire to avoid governmental
regulation. As Professor Hogg observes:
Apart from the reference procedure… judicial review usually occurs on the initiative of a
private individual (or corporation) who is attempting to resist the application of a statute
which appears to apply to him. The private party who makes a constitutional challenge to a
statute is rarely motivated by a public-spirited concern with the federal distribution of
powers; on the contrary, his desire is to avoid, by whatever legal means are at hand, the
duty ostensibly imposed upon him by the statute. Mallory is accurate for most of the cases
when he says that “the force that starts our interpretive machinery in motion is the reaction
of a free economy against regulation”.-
Many challengers do not care which level of government has the power to
regulate their conduct. Their sole hope is that the level of government holding
the power will choose not to exercise it. As I have argued above, 57 when
private corporations challenge the validity of a statute the remedy that they
seek is to have the power to regulate their conduct granted to the level of
government least interested in their affairs. In my opinion, this is an abuse of
the federal system of government and an abuse of any right to have input with
respect to the appropriate division of powers. Professor Weiler recognizes
this motive of private parties and argues that it is one reason for denying such
parties standing:
In my view, there is something wrong with a legal system which allows a private business
to impeach in this way the validity of laws enacted by a representative legislature. … We
should simply not allow private individuals of their own motion to impeach the validity of
statutes on the ground that they infringe the “exclusive” jurisdiction of another legislative
body. . . .The point of a federal system is to allocate governing power to different regions
and groups, not to confer immunities from regulation on private citizens (unlike the
Canadian Bill of Rights).”
What possible justification can there be for allowing such insincere private
interests to use the Constitution to evade their legal duties?
Professor Mullan, who advocates the broadening of the law of standing,
does not seem concerned about this abuse. He says that “the scope for
51The only exception may be challenges based on so-called “equality rights” because
s. 32(2) of the Charter states that s. 15 does not have effect until three years after the date the
remainder of the Charter comes into force.
“P. Hogg, Constitutional Law of Canada (1977) 78.
-“See discussion supra, Part I(D).
58Supra, note 50, 180-1.
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allowing interventions at the Supreme Court level ensures that other legiti-
mate interests will be represented”. 59 In other words, although improper legal
motives of the challenger have caused the statute in question to be brought
before the Court, intervention by the Attorney-General of the government that
enacted the legislation will ensure that the Court hears adequate argument
defending the validity of the statute. Why should a government be forced to
defend its exercise of power with respect to a certain matter when the other
level of government, whose power has ostensibly been “trenched upon”, has
no objection? Professor Weiler argues that a private citizen who wishes to
challenge a particular statute, as well as being required to give notice of the
challenge to the offending jurisdiction, ought to be required to obtain consent
for the challenge “from the Attorney-General of the jurisdiction whose ‘turf’
he is defending”. 60 In my view, private litigants should not even be permitted
this much. The consent of the latter Attorney-General does not alter the
litigant’s initial motives for bringing the action. The insincerity remains.
Furthermore, if the Attorney-General, as representative of the legislature
whose powers are allegedly being trenched upon, does not consider the issue
of sufficient importance to initiate the challenge himself, how can he justify
granting permission to others to trouble the courts and the enacting legisla-
ture? In my view, there is only one situation where private citizens ought to be
granted standing to challenge the validity of a statute on the basis of division
of powers. That is where there is a direct conflict of laws so that obedience to
one statute constitutes a violation of the other. I agree with Professor Weiler’s
submission that, in this situation, the affected individual should be entitled to
ask “for the minimal judicial decision about paramountcy”.’,
B.
Enforcing the Division of Powers
The argument that the effectiveness of a constituition requires that
individuals be able to challenge ultra vires acts in the courts 62 ignores the fact
that governments can and do protect their own spheres of power from being
chiselled away by other levels of government. This is evident in the recent
federal-provincial battles over, for example, energy and offshore resources. I
have less faith than Professor Weiler in the ability of the various governments
to negotiate the appropriate division of powers,63 especially after having
witnessed the recent negotiations surrounding the new Constitution. How-
S9Mullan, Standing After McNeil (1976) 8 Ottawa L. Rev. 32, 47.
1″Supra, note 50, 181.
61Ibid.
62See Strayer, supra, note 34, 123.
6Supra, note 50, 175.
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ever, I do have faith in the ability of the respective governments to take their
jurisdictional disputes to court; for example, the recent Newfoundland and
Federal references with respect to offshore resources. ‘ I do not believe that
we need worry that the courts will not be able to give effect to the Constitution
if private citizens are denied standing. After all, as Professor Hogg notes,
one-third of all constitutional cases are references by governments.65
Conclusion: Deny Standing to Private Litigants
Individuals and corporations should be denied standing to challenge the
constitutional validity of legislation except in the occasional case where they
are directly confronted with conflicting legislation. The purpose of granting
individuals standing was to give them a tool whereby they could enforce “the
constitutional norms”. Cases are rare where a private citizen has used this
privilege for this purpose. This privilege has been abused consistently by
individuals and corporations seeking to avoid governmental regulation of
their activities. Furthermore, the need to protect civil liberties from gov-
ernmental intrusion is no longer a justification for granting standing to
division of powers litigants. The decision in Borowski, rather than resolving
the problems surrounding the law of standing, may serve to facilitate the
abuse by private litigants of the privilege granted them to enforce “the
constitutional norms” if the decision is incorrectly applied in cases involving
the division of legislative powers. To prevent this abuse, private litigants
must be denied standing in such constitutional litigation.
For Newfoundland, see In the Matter of s. 6 of the Judicature Act, R.S.N. 1970, c. 187 as
am. and in the Matter of a Reference by the Lieutenant-Governor in Council Concerning the
Minerals and Other Natural Resources of the Continental Shelf Appertinent to the Province of
Newfoundland, (1982) No. 23, Supreme Court of Newfoundland (C.A.). Arguments in the
Supreme Court of Canada heard 29 November 1982.
65Supra, note 56, 78.
“Strayer, supra, note 34, 123.
