The B.C. Court of Appeal has upheld an earlier court ruling preventing George Carruthers and Michael Whelton from continuing a civil suit against the North and West Vancouver Hospital Society. Carruthers and Whelton are former members of the hospital society and are attempting to sue the hospital on the basis that abortions are authorized and performed in Lions Gate Hospital, contrary to the hospital by-laws and the Criminal Code of Canada. In their suit they named the society, the hospital and twelve doctors who were on the therapeutic abortion committee from September 1st, 1979 to August 31, 1982, as defendants.
Prior to beginning their law suit, Carruthers and Whelton had made efforts, as directors, to have the hospital change its abortion policy. They had asked the Minister of Health to exercise his power under S. 251(5) of the Criminal Code to investigate the operation of the T.A.C. of the hospital and of all the therapeutic abortion committees in the Province. Specifically, they had asked the Minister to instruct all those committees not to employ the World Health Organization definition of the word “health” as it appears in the Criminal Code. However, after beginning their court action, they were defeated in an hospital board election.
In order to proceed with the suit, Carruthers and Whelton had to have the consent of the Attorney General or would have to demonstrate to the court that they had a special interest in the matter. They asked the Attorney General of British Columbia and the Minister of Justice for Canada for their consent to proceed with the lawsuit. Each of them refused. Carruthers and Whelton commenced their proceedings in the provincial court. Mr. Justice Legg ordered that the action not proceed because they did not have status to bring the action — that is, they did not have a sufficient special interest.
That decision was appealed by Carruthers and Whelton to the Court of Appeal. It was heard by a panel of three judges including the Chief Justice of British Columbia. In an unanimous decision the Court confirmed the ruling of Mr. Justice Legg that the plaintiffs did not have the required status. The plaintiffs had argued they had the required status and cited the Judgment of the majority in the Supreme Court of Canada in the Borowski case. In that case, Mr. Justice Martland said:
… a person need only show that he is affected by it directly (that is, the Legislation) 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.
Nevertheless, the Appeal Court judges ruled that there was not sufficient interest to bring the action. They stated that the words of the Supreme Court applied only where an individual was seeking a declaration that legislation is invalid. In this case, the judges noted, the plaintiffs were seeking that a particular definition be employed and were not asking for a declaration of invalidity.
Carruthers, in an interview with The B.C. Catholic, stated:
“We’re disappointed. But we’re still determined to do all we can to assert the traditional rights of the members of the Society and the duties of its directors, particularly when it involves an issue as important as this.”
The two men have instructed their lawyer to seek permission to appeal the decision to the Supreme Court of Canada. Permission to appeal to the full nine-member bench must be obtained from three members of the court within the next two months.
“If it (the B.C. Court of Appeal ruling) is upheld, it could have the effect of preventing taxpayers from raising legitimate challenges to the use of public funds and resources for what we believe to be unlawful procedures,” said Carruthers.
“The decision suggests it is for the doctors to define the meaning of health in the abortion section of the Criminal Code of Canada. The effect of this would be to allow each abortion committee to rewrite Canada’s abortion laws to its own viewpoint on the issue.
“We say the law should be interpreted consistently across Canada,” he added. “The refusal of the provincial attorney-generals to take any action to clarify Canada’s abortion law is helping to perpetrate a policy of abortion on demand in Canada’s largest hospitals.”