''Borowski v Canada (AG)'', 9891 S.C.R. 342 is the leading Supreme Court of Canada decision on

mootness The terms moot and mootness are used in both in English and American law, although with different meanings. In the legal system of the United States, a matter is moot if further legal proceedings with regard to it can have no effect, or eve ...

of an appealed legal issue. The Court declined to decide whether the

fetus A fetus or foetus (; plural fetuses, feti, foetuses, or foeti) is the unborn offspring that develops from an animal embryo. Following embryonic development the fetal stage of development takes place. In human prenatal development, fetal dev ...

had a right to life under sections 7 and 15 of the

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...

. Had they found in favour of Borowski, laws against

abortion in Canada Abortion in Canada is legal at all stages of pregnancy and is publicly funded as a medical procedure under the combined effects of the federal Canada Health Act and provincial health-care systems. However, access to services and resources varies ...

would have to have been again enacted. Thus, along with the later Supreme Court case ''

Tremblay v Daigle ''Tremblay v Daigle'' 9892 S.C.R. 530, was a decision of the Supreme Court of Canada in which it was found that a fetus has no legal status in Canada as a person, either in Canadian common law or in Quebec civil law.Dunsmuir, Mollie. 1991 Revie ...

'' (1989), ''Borowski'' "closed off litigation opportunities" by anti-abortion activists.Christopher P. Manfredi; Scott Lemieux, "Judicial Discretion and Fundamental Justice: Sexual Assault in the Supreme Court of Canada," ''The American Journal of Comparative Law'', Vol. 47, No. 3. (Summer, 1999), p. 500.

Background

Joseph Borowski was an anti-abortion activist in Saskatchewan who wanted to challenge the abortion provisions under section 251 of the Criminal Code as violations of the ''Charter'' rights to life,

security of person Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly defined and guaranteed by the European Convention on Human Rights, th ...

and equality of the foetus (because he felt the types of abortions permitted by the

Therapeutic Abortion Committee Therapeutic Abortion Committees (commonly known as TACs) were committees established under the Canadian Criminal Code. Each committee consisted of three medical doctors who would decide whether a request for an abortion fit within the exception t ...

s were too liberal). He had previously been successful in gaining public interest standing to challenge the abortion law in the decision of '' Minister of Justice of Canada v. Borowski'',

981 Year 981 ( CMLXXXI) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar. Events Births * Abu'l-Qasim al-Husayn ibn Ali al-Maghribi, Arab statesman (d. 1027) * Giovanni Orseolo, Venetian ...

2 S.C.R. 575. At trial the Court of Queen's Bench found that there was no violation as the foetus was not protected by the ''Charter'' rights that were argued. The Court of Appeal agreed that sections 7 and 15 did not apply. The issues of appeal to the Supreme Court were concerning the constitutionality of section 251, 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.

Opinion of the Court

Justice Sopinka wrote the decision for a unanimous Court. He held that the appeal was

moot Moot may refer to: * Mootness, in American law: a point where further proceedings have lost practical significance; whereas in British law: the issue remains debatable * Moot court, an activity in many law schools where participants take part in s ...

and that Borowski had lost his standing. Sopinka characterized the doctrine of mootness as part of a general policy of the court to decline to hear hypothetical and abstract questions. He described a two step test for determining whether the issue is justiciable. First, the Court must determine "whether the requisite tangible and concrete dispute has disappeared rendering the issues academic," and if so, the court must decide whether it should exercise its discretion to hear the case anyway. Sopinka found that the "live controversy" had disappeared with the striking down of section 251 of the Criminal Code, and that the Court should not exercise its discretion in these circumstances.

References

External links

* {{Abortion Supreme Court of Canada cases Canadian abortion case law 1989 in Canadian case law

Background

Opinion of the Court

See also

References

External links