“Moot” is commonly used to mean “hypothetical.” Whether a case is legally “moot” or not is a narrower question than common usage may suggest.
It is a question which may, depending on the case, require some analysis.
The framework for determining whether a case is moot was set out in the 1980s in Borowski v. Canada (Attorney General). In that case, Mr. Borowski sought court orders striking down laws that permitted abortions when a woman’s life or health was in danger. He alleged that abortions violated the rights of the fetus under the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada granted leave (permission) to hear his case in September, 1987.
However, in January, 1988, the Supreme Court of Canada released its decision in R. v. Morgentaler (No. 2). It struck down the Criminal Code‘s abortion provisions. They constituted a “profound interference with a woman’s body” and thus an unjustified violation of women’s Charter rights.
Following Morgentaler, the Court was then faced with Mr. Borowski’s case. In Borowski, the court defined mootness:
The doctrine of mootness is 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. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. … [when] no present live controversy exists which affects the rights of the parties, the case is said to be moot.
It then specified a two-step analysis for courts to follow when faced with an argument that it should not hear a case because it is moot:
- Has “the required tangible and concrete dispute” disappeared and have the issues become academic? Is there no longer a “live controversy” between the parties? Has the “sub-stratum, the raison d’être, of the litigation disappeared?
- If the answer to the first question is yes, the court must decide if the circumstances warrant exercising its discretion to hear the case anyway. It discussed examples where that may be so.
Fifteen years later, the Court heard R. v. Smith. The accused, who was convicted of murder, died before his appeal was heard. The Court refined the second step of the analysis to be whether special circumstances exist that make it “in the interests of justice” to hear the case. At para. 50, the Court set out the following five “helpful rather than exhaustive” factors to consider when determining whether a case already deemed moot should still be heard anyway:
- Whether there is “a proper adversarial context”;
- the strength of the grounds of the appeal;
- whether there are special circumstances that transcend the death of the individual appellant/ respondent, including: (a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review; (b) a systemic issue related to the administration of justice; and (c) collateral consequences to the family of the deceased or to other interested persons or to the public;
- whether the nature of the order which could be made by the appellate court justifies spending limited judicial (or court) resources to resolve an appeal that is moot;
- whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.
In the end, the Court in Smith decided that special circumstances did not exist. So, the case went no further.
A 2019 case, R. v. Poulin, also involved an accused who died before his appeal was heard. Unlike Smith, the Supreme Court of Canada proceeded to hear Poulin. This was in part because the case involved important Charter questions.
Mootness was alleged in another 2019 case, R. v. Thanabalasingham. This immigration case involved an individual who was already deported. The Supreme Court of Canada held that the mere fact of deportation, even to a country with which Canada has no extradition treaty, does not render a case moot. The “underlying basis for the criminal proceedings has not disappeared and there remains a live controversy even if the accused’s return to Canada is unlikely.” It proceeded to hear the case.
Sometimes a party tries to argue that a case is moot when there is no basis for this argument. When this argument is credibly made, the individual case must be assessed to determine first whether it is moot, and second, if it is, whether special circumstances require it to be heard anyway.
This is a slightly modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications on or about April 10, 2020. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.
