Minister of Justice v. Borowski
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Minister of Justice (Canada) v. Borowski, 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.
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[edit] Background
Joseph Borowski was a prominent abortion activist in Saskatchewan who wanted the challenge the abortion provisions under section 251 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.
[edit] Opinion 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.
[edit] Commentary
Martland had been in dissent in the Thorson decision as he felt the standard of public interest standing was too broad. Here, he followed the reasoning of the majority in Thorson to its "logical" conclusion that produced results that many have found absurd.[citation needed]
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.
