Borowski v. Canada

Borowski v. Canada (Attorney General), [1989] 1 SCR 342, 1989 CanLII 123 (SCC)

• Case deals with issue of mootness
• The issues of appeal to the Supreme Court were concerning the constitutionality of section 251 of the Criminal Code, given Borowski’s arguments that it was too permissive in allowing for abortions. However, the earlier decision of R. v. Morgentaler had already struck down the provision (as being too restrictive on abortion, and therefore breaching the mother’s rights under section 7) and so it could not be at issue. As the section had been struck down, the primary issue instead concerned whether Borowski had lost his standing.

• The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.

• The approach with respect to mootness involves a two-step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case. (In the interest of clarity, a case is moot if it does not present a concrete controversy even though a court may elect to address the moot issue.)

• The second stage in the analysis requires that a court consider whether it should exercise its discretion to decide the merits of the case, despite the absence of a live controversy. Courts may be guided in the exercise of their discretion by considering the underlying rationale of the mootness doctrine.