T-3777-82
George C. Carruthers and Michael S. Whelton
(Plaintiffs)
v.
All past and present members of the Therapeutic
Abortion Committees of Lions Gate Hospital
(Appointed by the Board of Directors of the North
and West Vancouver Hospital Society under sec
tion 251 of the Criminal Code of Canada), and the
said Therapeutic Abortion Committees (Defend-
ants)
Trial Division, Collier J.—Vancouver, September
13, 1982 and May 16, 1983.
Jurisdiction — Trial Division — Relief against any 'federal
board, commission or other tribunal" — Definition in s. 2,
Federal Court Act — Hospital's Therapeutic Abortion Com
mittee — Plaintiff seeking declarations, mandatory orders and
injunction — Doctors moving to dismiss action for want of
jurisdiction — Criminal Code s. 251(4) not conferring federal
powers on abortion committees — Providing defence to crimi
nal charge — Want of jurisdiction on further ground that
abortion committees bodies constituted under provincial law as
referred to in s. 2 — Motion granted — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 18 — Criminal Code,
S.C. 1953-54, c. 51, ss. 209, 237 (as am. by S.C. 1968-69, c.
38, s. 18) — Criminal Code, R.S.C. 1970, c. C-34, s. 251 (as
am. by S.C. 1974-75-76, c. 93, s. 22.1) — Hospital Act,
R.S.B.C. 1979, c. 176 — Societies Act, R.S.B.C. 1948, c. 311.
Life members and directors of the North and West Vancou-
ver Hospital Society commenced an action against the Thera
peutic Abortion Committees of Lions Gate Hospital. The state
ment of claim attacks, on various grounds, abortion
authorizations and the relief sought includes declarations, man
datory orders and an injunction. The plaintiffs say that the
Trial Division has, under section 18 of the Federal Court Act,
jurisdiction to entertain this action in that an abortion commit
tee is a "federal board, commission or other tribunal". This is
questioned by some doctors who have brought application to
dismiss the action for want of jurisdiction.
Held, the motion should succeed. The words "federal board,
commission or other tribunal" are defined in section 2 of the
Act as meaning "any body or any person or persons having,
exercising or purporting to exercise jurisdiction or powers
conferred by or under an Act of the Parliament of Canada,
other than any such body constituted or established by or under
a law of a province..." If the Committee is not exercising
jurisdiction conferred by the Criminal Code, the Court lacks
jurisdiction to grant section 18 relief. Code section 251 merely
declares what is not criminal and what is. It does not confer
federal jurisdiction or powers on a therapeutic abortion com
mittee. Subsection (4) was intended to provide a defence to
what would otherwise be a criminal offence. Section 251 gave
no express powers to therapeutic abortion committees. The
Federal Court therefore had no jurisdiction in respect of this
action.
Furthermore, the committee is a body, in the words of
section 2, "constituted or established by or under a law of a
province". The Hospital Society was created pursuant to the
Societies Act of British Columbia. It operates the hospital. The
hospital has a Medical Staff as required by the Society's
by-laws and by the B.C. Hospital Act regulations. In turn, the
rules of the Medical Staff provide for the appointment of
members to the therapeutic abortion committee. In Code sub
section 251(4), Parliament merely described the kind of abor
tion committee which could be relied on as a defence to a
section 251 charge; it did not establish such committees.
CASES JUDICIALLY CONSIDERED
APPLIED:
Morgentaler v. The Queen, [1976] 1 S.C.R. 616; (1975),
20 C.C.C. (2d) 449; Canadian Pacific Transport Com
pany Limited v. Highway Traffic Board, [1976] 5
W.W.R. 541 (Sask. C.A.); Re Bicknell Freighters Ltd. et
al. (1977), 77 D.L.R. (3d) 417 (Man. C.A.).
DISTINGUISHED:
Lingley v. Hickman, [1972] F.C. 171 (T.D.).
REFERRED TO:
Coughlin v. The Ontario Highway Transport Board,
[1968] S.C.R. 569.
COUNSEL:
D. W. Gibbons for applicant, Dr. Myron
MacDonald.
D. Brander Smith for other applicants.
A. G. Henderson for plaintiffs.
SOLICITORS:
Deverell, Harrop, Vancouver, for applicant,
Dr. Myron MacDonald.
Bull Housser & Tupper, Vancouver, for other
applicants.
Davis & Company, Vancouver, for plaintiffs.
The following are the reasons for judgment
rendered in English by
COLLIER J.: Twelve doctors, who have been
served with the statement of claim in this suit,
apply to dismiss the action on the grounds this
Court has no jurisdiction.
The plaintiffs, at the time the statement of claim
was filed, were life members and directors of the
North and West Vancouver Hospital Society. On
May 31, 1982, they commenced this action against
"all past and present members of the Therapeutic
Abortion Committees of Lions Gate Hospital ...
and the Therapeutic Abortion Committees." The
statement of claim alleges (paragraph 3) that the
defendant committees were appointed pursuant to
section 251 of the Criminal Code, R.S.C. 1970, c.
C-34 [as am. by S.C. 1974-75-76, c. 93, s. 22.1],
by the Board of Directors of the Hospital Society
"for the purpose of considering and determining
questions relating to terminations of pregnancy
within Lions Gate Hospital". The first committee,
appointed by the Board of Directors, came into
existence on November 21, 1979. It is asserted
(paragraph 6) the committees are federal boards,
commissions or other tribunals as defined in sec
tion 2 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10. The statement of claim goes on (and
I describe the allegations in a very general way) to
attack, on various grounds, authorization for abor
tions, certificates (in effect) authorizing the abor
tions, and the abortions carried out at Lions Gate
Hospital from September 18, 1979 on. The claim
for relief requests a number of declarations against
the committees, two mandatory orders, and an
injunction.
The plaintiffs' claim appears to be based on
section 18 of the Federal Court Act:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
"Federal board, commission or other tribunal"
is defined, in section 2 of the same statute, as
follows:
2....
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada, other than any such body
constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, 1867;
The applicants, in this motion against jurisdic
tion, contend the therapeutic abortion committees
of the Lions Gate Hospital are not a "federal
board, commission or other tribunal"; that section
18 relief cannot therefore be granted.
The plaintiffs and the applicants filed an agree
ment as to facts. I attach it as Schedule I to these
reasons.
It is desirable, before going into the facts, to set
out the relevant portions of section 251 of the
Criminal Code:
Abortion
251. (1) Every one who, with intent to procure the miscar
riage 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.
(4) Subsections (1) and (2) do not apply to
(a) 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 pur
pose 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.
(6) For the purposes of subsections (4) and (5) and this
subsection
"accredited hospital" means a hospital accredited by the
Canadian Council on Hospital Accreditation in which diag
nostic services and medical, surgical and obstetrical treat
ment are provided;
"board" means the board of governors, management or direc
tors, or the trustees, commission or other person or group of
persons having the control and management of an accredited
or approved hospital;
"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.
I return to the relevant facts.
The North and West Vancouver Hospital Socie
ty was incorporated under the provisions of the
then Societies Act of British Columbia, R.S.B.C.
1948, c. 311. The Society, by its constitution and
by provisions of the Hospital Act of British
Columbia, R.S.B.C. 1979, c. 176, has the control
and management of Lions Gate Hospital: The
hospital is an accredited hospital within subsection
251(6) of the Code. A therapeutic abortion com
mittee was, as I have earlier stated, first appointed
by the Board of Directors of the Society in
November of 1979. Subsequently, members of the
committee have been appointed by resolution of
the Board of Directors. The applicants are, or have
been, members of the committee.
I turn now to the question of jurisdiction.
The two main issues are:
(1) Is the committee a body "... having,
exercising or purporting to exercise jurisdic
tion or powers conferred by or under an Act
of the Parliament of Canada ..."?
(2) Is the committee a body "... constituted
[...] by or under a law of a province ..."?
If the committee is not exercising jurisdiction or
powers conferred by, in this case, the Criminal
Code, then this Court has no jurisdiction to grant
section 18 relief. Even if the first issue were decid
ed "yes", there would still not be jurisdiction if the
second issue were decided in the affirmative as
well.
I go to the first issue.
Prior to 1969, the Criminal Code provisions
dealing with the procuring of miscarriages con
tained no exceptions, or "saving" provisions, in
respect of the crime (see S.C. 1953-54, c. 51, s.
237). The then Code, in another section (s. 209),
provided that one who caused the death of a child
that had not become a human being was guilty of
an indictable offence. But the subsection 209(1)
did not apply to someone, who by means that, in
good faith, he considered necessary to save the life
of the mother, caused the death of the unborn
child.
Then in 1969, Parliament added the so-called
therapeutic abortion provisions to section 237 (see
S.C. 1968-69, c. 38, s. 18). The section was later
renumbered 251. Dickson J. in Morgentaler v. The
Queen [[1976] 1 S.C.R. 616]; 20 C.C.C. (2d) 449,
at page 676 [Supreme Court Reports], said of
section 251:
Parliament in s. 251 has proscribed as criminal conduct surgery
procuring a miscarriage, except in conformity with precise and
detailed protective measures including a qualified medical prac
titioner and an accredited or approved hospital ....
and, at [the same] page:
s. 251 contains a comprehensive code on the subject of
abortions, unitary and complete within itself ....
In the Morgentaler case, it was held that Parlia
ment, in section 251, was validly exercising its
criminal law powers. As Laskin C.J.C. said, at
page 627:
... Parliament may determine what is not criminal as well as
what is, and may hence introduce dispensations or exemptions
in its criminal legislation.
Parliament, in subsection 251(4), makes inappli
cable the criminal sanction of subsections 251(1)
and (2), when certain requirements are met. There
is, to my mind, no conferring of federal jurisdic
tion or powers on a therapeutic abortion commit
tee. All that has been done is to provide an answer
and defence to, what otherwise, is a criminal
offence.
Subsection (4) is of the utmost importance to any medical
practitioner contemplating the use of any means to procure the
miscarriage of a female person. This subsection is intended to
afford, and does afford, a complete answer and defence to those
who respect its terms. (Dickson J. in Morgentaler, at p. 673)
No express powers are given by section 251 to
therapeutic abortion committees. Nor are there, in
my view, any implied powers given. The commit
tee, by a majority, comes to an opinion as to the
termination, or otherwise, of a pregnancy. It may
then issue a certificate setting out its opinion that
the continuation of the pregnancy would be likely
to endanger the life or health of the female person.
A certificate having been issued, a medical practi
tioner may then procure a miscarriage.'
I am unable to see what "jurisdiction or pow
ers", arising from the Criminal Code or any other
federal statute, in the sense those words are used in
section 18 of the Federal Court Act, have been
conferred on therapeutic abortion committees.
This Court therefore has no jurisdiction in
respect of this action.
I turn to the next main issue. The applicants
contend the committee is a body "... constituted
or established by or under a law of a province".
I agree with the applicants.
The North and West Vancouver Hospital Socie
ty is an entity brought into existence by virtue of a
provincial law: the then Societies Act of British
Columbia. Its constitution and by-laws were
authorized under that and successor statutes. It
operates the hospital. By paragraph 2(1)(c) of the
Hospital Act, R.S.B.C. 1979, c. 76, a hospital
shall
' I have merely set out the essentials of subsection 251(4). A
detailed summary is found in the reasons of Dickson J. in
Morgentaler v. The Queen, at pp. 673-674.
2.(1)...
(c) have a properly constituted board of management and
bylaws, rules or regulations thought necessary by the minis
ter for the administration and management of the hospital's
affairs and the provision of a high standard of care and
treatment for patients, and the constitution and bylaws, rules
or regulations of a hospital are not effective until approved
by the minister;
That is the case with Lions Gate Hospital.
The hospital has a Medical Staff as required by
the Society's by-laws and by regulation 5 of the
B.C. Hospital Act regulations. The rules and regu
lations of the Medical Staff in turn recite, inter
alia, the appointment by the Board of Directors of
the hospital of members of the therapeutic abor
tion committee. The composition, function and
procedures of the committee are then set out.
There is, in my view, no doubt the committee is
constituted or established by a law or laws of
British Columbia. Parliament, in subsection
251(4), has described the kind of therapeutic com
mittee which can set in motion an answer or
defence to a charge under subsections 251(1) or
(2). Parliament has not, as I see it, established the
committee, or constituted it.
The plaintiffs contend that the true test is not
the entity by whose act the body is constituted, nor
the instrument by which the body is constituted,
but rather, the authority by virtue of which the
entity acts and the instrument is promulgated. The
authority here, it is said, comes from the federal
criminal power, and not from a law of British
Columbia.
I cannot agree.
The authority, under which the therapeutic
abortion committee acts and the mechanisms of
setting it up, comes from provincial law. I have
already outlined the particular legislation and
regulations. Parliament has said, and this is some
what repetitive, a certificate issued by a committee
and the termination of a pregnancy, all under
certain conditions, will remove a surgically pro
cured miscarriage from the operation of subsec
tions 251(1) and (2).
Assistance for this interpretation can be found
in the following cases: Canadian Pacific Transport
Company Limited v. Highway Traffic Board,
[1976] 5 W.W.R. 541 (Sask. C.A.); Coughlin v.
The Ontario Highway Transport Board, [1968]
S.C.R. 569; Re Bicknell Freighters Ltd. et al.
(1977), 77 D.L.R. (3d) 417 (Man. C.A.).
In the Canadian Pacific Transport case, the
Highway Traffic Board of Saskatchewan had
issued an extra-provincial licence for vehicles used
by the plaintiff. The Board was appointed pursu
ant to the relevant Saskatchewan statute. The
federal Motor Vehicle Transport Act [R.S.C.
1970, c. M-14] empowered a board of a province
to issue extra-provincial licenses. In proceedings in
respect of the plaintiff's extra-provincial license,
granted by the provincial board, Culliton C.J. said
at page 547:
It is beyond dispute that the board is a body constituted and
established under The Vehicles Act, a law of the Province of
Saskatchewan. While subs. (2) of s. 3 of the Motor Vehicle
Transport Act provides that the provincial transport board
may, in its discretion, issue a licence to permit an extra-provin
cial undertaking to operate into or through the province, that in
no way alters the basic nature and character of the provincial
board; it is still a body constituted and established by and under
the law of the province. That being so, in the clear language of
the definition in s. 2, it is not a "federal board, commission or
other tribunal" as therein defined. The jurisdiction, therefore,
in the matter involved in this action is not given by s. 18 to the
exclusive jurisdiction of the Federal Court as contended by the
appellant, but rests in, and remains with, the Court of Queen's
Bench of Saskatchewan.
In the Bicknell case, the Manitoba Court of
Appeal, in a similar case, applied the principle of
the Coughlin case, and followed the Canadian
Pacific Transport case.
The plaintiffs relied on Lingley v. Hickman,
[1972] F.C. 171 [T.D.]. It was distinguished by
Culliton C.J. in the Canadian Pacific Transport
case at page 546:
In support of this position, reference was made to the case of
Klingbell v. Treasury Board, [1972] 2 W.W.R. 389 (Man.);
and Lingley v. Hickman, [1972] F.C. 171, 10 C.C.C. (2d) 362,
33 D.L.R. (3d) 593. In Klingbell v. Treasury Board, supra, the
remedy sought by way of certiorari was to quash an adjudica
tion made pursuant to the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, a federal statute. In that case Martin,
who heard the grievance, was exercising a power and a jurisdic
tion conferred by an Act of the Parliament of Canada and
came clearly within the definition of a federal board, commis-
sion or other tribunal in respect of which exclusive jurisdiction
was vested in the Federal Court by s. 18 of the Federal Court
Act. Similarly, in Lingley v. Hickman, supra, an action was
taken for declaratory relief to replace the judgment made by a
board of review appointed by the Lieutenant-Governor in
Council of the Province of New Brunswick pursuant to the
provisions of the Criminal Code, R.S.C. 1970, c. C-34. Again it
is evident that the board was a "federal board, commission or
other tribunal" as it was established pursuant to an Act of the
Government of Canada, and was exercising jurisdiction under
that Act.
I think the principle to be drawn from these two decisions is
that whether the board or the person is a "federal board,
commission or other tribunal" lies to be determined from the
definition as set out in s. 2 of the Federal Court Act.
I adopt those views.
I decide the second issue in favour of the
applicants.
There was a third issue having to do with the
applicants' submission that the defendants are
sued as individuals, not as members of the thera
peutic abortion committee. In view of the conclu
sions I have earlier reached, it is not necessary to
decide this issue. Nor is it desirable to do so. It
may well be there are identical, or similar, pro
ceedings in the British Columbia Courts. I would
not want any obiter, one way or another, to have
any influence in any other proceeding.
The motion to dismiss for want of jurisdiction
succeeds. The action is dismissed. The applicants
are entitled to costs.
SCHEDULE I
IN THE FEDERAL COURT OF CANADA
TRIAL DIVISION
BETWEEN:
GEORGE C. CARRUTHERS
MICHAEL S. WHELTON
PLAINTIFFS
AND
ALL the past and present MEMBERS OF THE THERAPEUTIC
ABORTION COMMITTEES OF LIONS GATE HOSPITAL (APPOINT-
ED BY THE BOARD OF DIRECTORS OF THE NORTH AND WEST
VANCOUVER HOSPITAL SOCIETY UNDER SECTION 251 OF THE
CRIMINAL CODE OF CANADA), and the said Therapeutic Abor
tion Committees
DEFENDANTS
AGREEMENT AS TO FACTS
I. The North and West Vancouver Hospital Society was incor
porated on September 13, 1954, by authority of and pursuant
to the provisions of The Societies Act of British Columbia,
R.S.B.C. 1948, Chapter 311, now The Society Act, R.S.B.C.
1979, Chapter 390. Appendix "A" hereto is the most recent
revision of its Constitution and By-laws.
2. By the provisions of the said Act and Constitution and by the
further provisions of The Hospital Act of British Columbia,
R.S.B.C. 1979, Chapter 176, the Society has been given the
control and management of Lions Gate Hospital and has been
authorized to make rules and regulations not inconsistent with
its Constitution or with any statute.
3. At all times material to this action the Lions Gate Hospital
was accredited by the Canadian Council on Hospital Accredi
tation and Diagnostic Services and medical, surgical and
obstetrical treatment were and are provided in that Hospital.
4. At all times material to this action the Therapeutic Abortion
Committee of Lions Gate Hospital consisted of not less than
three qualified medical practitioners entitled to engage in the
practice of medicine under the laws of British Columbia.
5. On or about November 21, 1979, the Board of Directors of
the Hospital appointed a Therapeutic Abortion Committee
comprised of the following physicians:
Dr. Arthur Barker
Dr. H.M.O. Brown
Dr. Don Lang
Dr. Stuart Madill
Dr. Kathleen Perry
Dr. James Wilde.
The appointment of the said Therapeutic Abortion Committee
on November 21, 1979 was made by resolution of the Board of
Directors of the North and West Vancouver Hospital Society
dated November 21, 1979, a true copy of which is annexed
hereto as Appendix "B".
6. Subsequent to November 21, 1979, members of the Thera
peutic Abortion Committee were, in general, appointed by
resolution of the Board of Directors of the North and West
Vancouver Hospital Society.
7. The Rules and Regulations of the Medical Staff of Lions
Gate Hospital have, at all times material to this action con
tained, in Article XIII, a section respecting a Therapeutic
Abortion Committee. These Rules and Regulations of the said
Medical Staff have been approved by the Board of Directors of
the Society. Hereunto annexed as Appendix "C" is the most
recent revision of the Rules and Regulations of the Medical
Staff including the Rules and Regulations respecting a Thera
peutic Abortion Committee, dated and approved and adopted
by the Board of Directors on April 21, 1982.
8. Hereunto annexed and marked Appendices "D" and "E" are
true copies of the By-laws and Rules and Regulations of the
Medical Staff of Lions Gate Hospital insofar as they relate to
the said Therapeutic Abortion Committee as approved and
promulgated by the said Board of Directors as at:
a) September 15, 1976; and
b) September 16, 1980.
9. The members of the said Therapeutic Abortion Committee
as at May 31, 1982, were Doctors Elliott, Langley, Chubb,
Crossen and MacDonald.
10. Doctors Madill, Wilde, Barker, Perry, Brown, Lang and
Hay had been at some time members of the said Committee,
but each had resigned as a member and no one of them was a
member of the said Committee on or about May 31, 1981-2.
11. At no time material to this action has a director of the
North and West Vancouver Hospital Society been a member of
a Therapeutic Abortion Committee of the Hospital.
12. At all times material to this action the Therapeutic Abor
tion Committee of the Hospital has issued certificates in writ
ing, and annexed hereto as Appendix "F" is a copy of the blank
form of certificate which has been used by the Therapeutic
Abortion Committee of the Hospital from 1977 to the present.
13. At all times material to this action, the Therapeutic Abor
tion Committee of Lions Gate Hospital performed the func
tions set out in the by-laws and the rules and regulations of the
medical staff annexed hereto.
14. Annexed hereto as Appendix "G" is a true copy of a
resolution of the Medical Staff Advisory Council of Lions Gate
Hospital dated August 19, 1969. Prior to November 21, 1979,
the Therapeutic Abortion Committee of Lions Gate Hospital
was appointed by the Medical Staff Advisory Council on the
recommendation of the Chief of Staff, in accordance with the
by-laws annexed hereto as Appendix "H" and approved by The
Board of Directors on June 17, 1970. The by-laws contained in
Appendix "H" were also approved by the B.C. Hospital Insur
ance service on July 27, 1970 by the letter annexed hereto as
Appendix "I".
DATED at Vancouver, British Columbia, this 3rd day of
SEPTEMBER, 1982.
"A. G. Henderson"
Solicitor for the Plaintiffs
"H. R. Bowering"
Solicitor for the Defendants,
Dr. N.S. Madill, Dr. J.M.
Wilde, Dr. A.J. Barker, Dr.
K.V. Perry, Dr. H.M.O.
Brown, Dr. D.W. Lang, Dr.
D.A. Langley, Dr. Jon Elliott,
Dr. P.D. Chubb, Dr. D.S.A.
Hay,
"David W. Gibbons"
Solicitor for the Defendant,
Dr. Myron MacDonald
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.