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Borowski v. Canada (Attorney General)
Encyclopedia
| Borowski v. Canada (Attorney General) | ||||||
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 Supreme Court of Canada |
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| Argued October 3, 1988 Decided March 9, 1989 |
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| Holding | ||||||
| With section 251 of the Criminal Code having already been found unconstitutional, questions of whether it violates fetal rights are moot. | ||||||
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Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 is the leading Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on mootness
Mootness
In American law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law...
of an appealed legal issue. The Court declined to decide whether the fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
had a right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
under sections 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
and 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. Had they found in favour of Borowski, stricter laws against abortion in Canada
Abortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
would have to have been enacted. Thus, along with the later Supreme Court case Tremblay v. Daigle
Tremblay v. Daigle
Tremblay v. Daigle [1989] 2 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...
(1989), Borowski "closed off litigation opportunities by [the] pro-life
Pro-life
Opposition to the legalization of abortion is centered around the pro-life, or anti-abortion, movement, a social and political movement opposing elective abortion on moral grounds and supporting its legal prohibition or restriction...
".
Background
Joseph Borowski was a pro-lifePro-life
Opposition to the legalization of abortion is centered around the pro-life, or anti-abortion, movement, a social and political movement opposing elective abortion on moral grounds and supporting its legal prohibition or restriction...
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 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 mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
and equality of the foetus (because he felt the types of abortions permitted by the Therapeutic Abortion Committee
Therapeutic Abortion Committee
A Therapeutic Abortion Committee refers to a Canadian committee of three medical doctors who would decide whether an abortion fit an exemption to the Criminal Code of Canada, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm...
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, [1981] 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
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
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 mootMoot
Moot may refer to:* from Moot as an Old English language term for meeting:**Folkmoot**Jamtamót, the old assembly of Jämtland**Witenagemot, the High Council of Anglo-Saxon England...
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 justicable. 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.