Borowski v. Can. (A.G.) (1989), 92 N.R. 110 (SCC)
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Joseph Borowski v. The Attorney General of Canada, Interfaith Coalition on the Rights and Well-being of Women and Children, Real Women of Canada and Women’s Legal Education and Action Fund (LEAF)
(20411)
Indexed As: Borowski v. Canada (Attorney General)
Supreme Court of Canada
Dickson, C.J.C., McIntyre, Lamer, Wilson, La Forest, L’Heureux-Dubé and Sopinka, JJ.
March 9, 1989.
Summary:
Borowski, as a Canadian citizen and taxpayer, was granted standing to bring an action claiming that the therapeutic abortion provisions of the Criminal Code violated foetal rights guaranteed by the Canadian Bill of Rights (s. 1) and the Canadian Charter of Rights and Freedoms (ss. 7, 15).
The Saskatchewan Court of Queen’s Bench, in a judgment reported 29 Sask.R. 16, dismissed the action. The court held that the Canadian Bill of Rights did not give the courts the right to assess the substantive content or wisdom of legislation. The court held that a foetus was not afforded the protection of ss. 7 and 15, because a foetus was not included in the words “everyone” or “every individual”, as defined in ss. 7 and 15. Borowski appealed.
The Saskatchewan Court of Appeal, in a judgment reported 56 Sask.R. 129, dismissed the appeal. Borowski applied for, and was granted, leave to appeal to the Supreme Court of Canada. Before the appeal was heard the challenged abortion provisions of the Criminal Code were struck down by the Supreme Court of Canada in R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1. The issues then became whether the appeal was moot; if so, whether the court should exercise its discretion to decide whether foetal rights were protected under the Charter, and whether Borowski lost his standing.
The Supreme Court of Canada held that the appeal was rendered moot by R. v. Morgentaler and the court would not exercise its discretion to decide the appeal. The court also held that Borowski no longer had standing.
Courts – Topic 2286
Jurisdiction – Bars – Academic matters or moot issues – [See first Courts – Topic 3040 below].
Courts – Topic 3040
Supreme Court of Canada – Jurisdiction – Moot issues – The Supreme Court of Canada stated that the doctrine of mootness was an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question – An appeal is moot if there is no “live controversy” which affects or may affect the rights of the parties – If the court’s decision will have no practical effect on the parties, the court will decline to decide the case – A live controversy must exist when the action is commenced and also when the court is called upon to decide the issue – The court also stated that there was a discretion to decide moot issues in appropriate circumstances – See paragraph 15.
Courts – Topic 3040
Supreme Court of Canada – Jurisdiction – Moot issues – Borowski brought an action claiming that the therapeutic abortion provisions of the Criminal Code violated foetal rights guaranteed by the Canadian Bill of Rights (s. 1) and the Charter of Rights and Freedoms (ss. 7 and 15) – The trial judge dismissed the action – The Saskatchewan Court of Appeal affirmed the decision – Borowski obtained leave to appeal to the Supreme Court of Canada – Before the appeal was heard, the challenged abortion provisions were struck down by the Supreme Court of Canada in another case – The Supreme Court of Canada held that the appeal was moot, as there was no longer a live controversy or concrete dispute, where the substratum of the appeal disappeared – The court stated that the foetal rights issue was not severable from the context of the original challenge to s. 251 – The issue of foetal rights was ancillary to the central issue of the alleged unconstitutionality of the abortion provisions of the Criminal Code – See paragraphs 26 to 28.
Courts – Topic 3040
Supreme Court of Canada – Jurisdiction – Moot issues – The Supreme Court of Canada set out the guidelines respecting whether a court should exercise its discretion to decide a moot issue – The court stated that where a live controversy no longer exists, the court looks to whether the necessary adversarial relationship continues, such as cases where there are collateral consequences affecting the rights of parties – The court referred to the need of judicial economy, where the court’s resources limited the number of appeals it could hear – The court stated that the concern for conserving judicial resources was partially answered where deciding moot issues would still have some practical effect on the rights of parties – The expenditure of judicial resources may be warranted in moot cases of a recurring nature, where the issue will almost always be moot by the time it reaches the Supreme Court of Canada, and in moot cases involving issues of public importance, where there is a social cost in leaving the matter undecided – The court cautioned that it must be aware of its proper lawmaking function; that deciding moot issues may be viewed as intruding into the role of the legislative branch – See paragraphs 29 to 42.
Courts – Topic 3040
Supreme Court of Canada – Jurisdiction – Moot issues – Borowski brought an action claiming that the therapeutic abortion provisions of the Criminal Code violated foetal rights guaranteed by the Canadian Bill of Rights (s. 1) and the Charter of Rights and Freedoms (ss. 7 and 15) – Before Borowski’s appeal was heard by the Supreme Court of Canada, the challenged abortion provisions were struck down by the Supreme Court of Canada in another decision – The Supreme Court of Canada held that the appeal was moot and the court, after considering the factors of adversarial relationship, judicial economy and the proper role of the court, declined to exercise its discretion to decide the issue of foetal rights – The court stated that there was no reason to expend judicial resources – The court stated that Borowski was requesting a legal opinion on the interpretation of the Charter in the absence of legislation or other governmental action which would otherwise bring the Charter into play – Borowski was seeking to turn the appeal into a private reference, which would intrude on the right of the executive to order a reference and would pre-empt a possible decision of Parliament by dictating the form of legislation it should enact – See paragraphs 43 to 48.
Practice – Topic 219
Persons who can sue and be sued – Individuals – Status or standing – Validity of legislation – Borowski was granted standing in 1981 to commence an action claiming that the therapeutic abortion provisions of the Criminal Code violated foetal rights guaranteed by the Canadian Bill of Rights (s. 1) and the Charter of Rights and Freedoms (ss. 7 and 15) – The basis for Borowski’s standing was his “genuine interest” in the validity of the legislation – Since standing was granted there were two significant changes – Borowski’s claim was now primarily based on foetal rights under the Charter and the challenged legislation had been struck down – The Supreme Court of Canada held that since the original basis for Borowski’s standing was gone, Borowski lacked standing to pursue the appeal – The court noted that the two sources of standing under the Charter, being s. 24(1) of the Charter and s. 52(1) of the Constitution Act, did not apply, because there was no alleged denial of Borowski’s own Charter rights (s. 24 (1)) and no law or governmental action being challenged (s. 52(1)).
Practice – Topic 7106
Costs – Party and party costs – Special orders – Moot cases – Borowski’s appeal to the Supreme Court of Canada was rendered moot when the legislation challenged was struck down in another Supreme Court of Canada decision – The federal government applied to adjourn the appeal – The Supreme Court of Canada dismissed the application – The Supreme Court of Canada stated that “in lieu of applying to adjourn the appeal, the [federal government] should have moved to quash. Certainly, such a motion should have been brought after the adjournment was denied. Failure to do so has resulted in the needless expense to the appellant of preparing and arguing the appeal before this court. In the circumstances, it is appropriate that the [federal government] pay to the appellant the costs of the appeal incurred subsequent to the disposition of the motion to adjourn.” – See paragraph 57.
Practice – Topic 9093
Appeals – Supreme Court of Canada – Stating of constitutional questions – The Supreme Court of Canada stated that “this court is not bound by the wording of any constitutional question which is stated. Nor may the question be used to transform an appeal into a reference … The procedural requirements of rule 32 of the Rules of the Supreme Court of Canada are not designed to introduce new issues but to define with precision the constitutional points in issue which emerge from the record … The question cannot, therefore, be employed as an independent basis for supporting an appeal that is otherwise moot.” – See paragraph 27.
Cases Noticed:
R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 1].
Borowski v. Minister of Justice of Canada, [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 5].
R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277, refd to. [para. 8].
Dehler v. Ottawa Civic Hospital (1980), 29 O.R.(2d) 677 (C.A.), refd to. [para. 8].
King ex rel. Tolfree v. Clark, [1944] S.C.R. 69, refd to. [para. 18].
Moir v. The Corporation of the Village of Huntingdon (1891), 19 S.C.R. 363, refd to. [para. 19].
Attorney General of Alberta v. Attorney General of Canada, [1939] A.C. 117 (P.C.), refd to. [para. 19].
Coca-Cola Company of Canada Ltd. v. Mathews, [1944] S.C.R. 385, refd to. [para. 20].
Sun Life Assurance Company of Canada v. Jervis, [1944] A.C. 111, refd to. [para. 20].
Vic Restaurant Inc. v. City of Montreal, [1959] S.C.R. 58, refd to. [para. 21].
International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628, refd to. [para. 21].
Cadeddu and The Queen, Re (1983), 41 O.R.(2d) 481 (C.A.), refd to. [para. 22].
Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 22].
Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 9 D.L.R.(4th) 161; 8 C.R.R. 193; 11 C.C.C.(3d) 481, refd to. [para. 23].
Maltby et al. v. Saskatchewan Attorney General et al. (1984), 34 Sask.R. 177; 10 D.L.R.(4th) 745 (C.A.), refd to. [para. 23].
Hall v. Beals (1969), 396 U.S. 45, refd to. [para. 24].
United States v. W.T. Grant Co. (1953), 345 U.S. 629, refd to. [para. 24].
Sibron v. New York (1968), 392 U.S. 40, refd to. [para. 24].
Vadeboncoeur v. Landry, [1977] 2 S.C.R. 179; 10 N.R. 469, refd to. [para. 27].
Bisaillon v. Keable et al., [1983] 2 S.C.R. 60; 51 N.R. 81, refd to. [para. 27].
Southern Pacific Co. v. Interstate Commerce Commission (1911), 219 U.S. 433, refd to. [para. 32].
Syndicat des Employes du Transport de Montréal v. Attorney General of Quebec, [1970] S.C.R. 713, refd to. [para. 36].
Wood, Wire and Metal Lathers’ Int. Union v. United Brotherhood of Carpenters and Joiners of America, [1973] S.C.R. 756, refd to. [para. 36].
Hardayal v. Minister of Manpower and Immigration, [1977] 1 S.C.R. 470; 15 N.R. 396, refd to. [para. 37].
Constitutional Amendment References 1981 (Manitoba, Newfoundland and Quebec), [1982] 2 S.C.R. 793; 39 N.R. 1, refd to. [para. 38].
Forget v. Quebec (Procureur général) and Office de la langue franeaise, [1988] 2 S.C.R. 90; 87 N.R. 37; 17 Q.A.C. 241, refd to. [para. 39].
Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 50].
McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 50].
Statutes Noticed:
Criminal Code, R.S.C. 1970, c. C-34, sect. 251(4), sect. 251(5), sect. 251(6) [para. 1].
Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1.
Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 15(1), sect. 24(1).
Constitution Act, 1982, sect. 52(1) [para. 55].
Rules of the Supreme Court of Canada, SOR/83-74, rule 32 [para. 27].
Authors and Works Noticed:
The Mootness Doctrine in the Supreme Court (1974), 88 Harv. L.R. 373, p. 374 [para. 24].
Tribe, American Constitutional Law (2nd Ed. 1988), pp. 67 [para. 40]; 84 [para. 25].
Kates and Barker, Mootness in Judicial Proceedings: Toward a Coherent Theory (1974), 62 Calif. L.R. 1385, generally [para. 25]; pp. 1387 [para. 29]; 1429-1431 [para. 37].
Sharpe, Mootness, Abstract Questions and Alternative Grounds: Deciding Whether to Decide, Charter Litigation [para. 34].
MacKlem, P., and E. Gertner, Re Skapinker and Mootness Doctrine (1984), 6 Supreme Ct. L. Rev. 369, p. 373 [para. 41].
Counsel:
Morris C. Shumiatcher, Q.C., and R. Bradley Hunter, for the appellant;
Edward Sojonky, Q.C., and Mark R. Kindrachuk, for the respondent;
Claude R. Thomson, Q.C., and Robert W. Staley, for Interfaith Coalition on the Rights and Well-being of Women and Children;
Angela M. Costigan and Karla Gower, for REAL Women of Canada;
Mary Eberts and Helena Orton, for Women’s Legal Education and Action Fund (LEAF).
Solicitors of Record:
Shumiatcher – Fox, Regina, Saskatchewan, for the appellant;
Campbell, Godfrey & Lewtas, Toronto, Ontario, for the intervenor, Interfaith Coalition on the Rights and Well-being of Women and Children;
Angela M. Costigan, Toronto, Ontario, for the intervenor, REAL Women of Canada;
Frank Iacobucci, Q.C., Ottawa, Ontario, for the respondent;
Tory, Tory, DesLauriers & Binnington, Toronto, Ontario, for the intervenor, Women’s Legal Education and Action Fund (LEAF).
This appeal was heard on October 3 and 4, 1988, before Dickson, C.J.C., McIntyre, Lamer, Wilson, La Forest, L’Heureux-Dubé and Sopinka, JJ., of the Supreme Court of Canada.
On March 9, 1989, the judgment of the Supreme Court of Canada was delivered by Sopinka, J., in both official languages.
