Under Quebec’s Act respecting the laicity of the State (“Bill 21”), certain public sector employees are prohibited from wearing religious symbols while performing their duties.[1] Bill 21 further prohibits public sector employees and individuals accessing public services from wearing facial coverings and imposes sanctions such as disciplinary action or denial of service for failure to comply.[2] The Act has been challenged for violating religious freedom and gender equality, but Quebec has invoked the notwithstanding clause, which raises barriers for the law’s opponents. Rather than dealing broadly with these barriers, his article focuses on and critiques one specific issue: the way that the Quebec Court of Appeal used the doctrine of mootness to avoid ruling on the issue of Charter infringement.
In World Sikh Organization of Canada v Attorney General of Quebec (“World Sikh Organization”), the Quebec Court of Appeal found that the Quebec National Assembly’s use of the notwithstanding clause precluded judicial review of Bill 21 for possible infringement of the Canadian Charter of Rights and Freedoms (“Charter”).[3] The Court based this conclusion on their understanding of the legal effect of the notwithstanding clause. According to the Court, the notwithstanding clause exempts Bill 21 from judicial review for Charter infringement (at least in relation to sections 2 and 7 to 15 of the Charter) and shields it from being struck down as unconstitutional under section 52(1) of the Constitution Act, 1982.[4] Since there would be no practical effect from a finding of infringement, the Court found the issue moot.[5]
But courts still have discretion to rule on moot issues. In Borowski v Canada, Justice Sopinka established three criteria to guide courts in deciding whether to exercise their discretion to rule on moot issues: 1) whether there is an adversarial context, 2) whether resolving the issue is a worthwhile use of judicial resources, and 3) whether making a ruling would be in keeping with the proper role of the judiciary.[6]
In considering whether to exercise their discretion, the Quebec Court of Appeal imagined a scenario where they were empowered to review Bill 21 for all potential Charter infringements, maintained that it would such review would lack practical effect given the inoperability of section 52(1), and ultimately declined to use their discretion to rule on the issue because the Borowski criteria were not satisfied.[7] However, under the doctrine of mootness, as I will argue in this short post, it would have been appropriate for the Court to rule on the issue of infringement. Instead, the Quebec Court of Appeal read the Borowski criteria too narrowly and placed too much weight on the presence of an adversarial context.
The First Criterion: An Adversarial Context
An adversarial context is fundamental to our legal system.[8] According to Borowski, it helps ensure that issues are “well and fully argued by parties who have a stake in the outcome.”[9] The more effectively each side is argued, the more confident we can be that the winning side is the better one. This adversarial context is usually created by a live controversy between the parties. And without live controversy, issues are found to be moot.[10]
In World Sikh Organization, the Quebec Court of Appeal found there to be no adversarial relationship between the parties. While the appellants took the position that Bill 21 infringed the Charter, the Attorney General of Quebec did not concede this point, nor did they argue the contrary position. Therefore, according to the Court, the issue of infringement was only “halfway debated,” thus failing to meet the criterion of an adversarial context established in Borowski.[11]
However, other case law suggests that even in the absence of live controversy or a clear point of disagreement between the parties, a sufficient adversarial context may persist. For example, an adversarial context may exist if collateral consequences, even for third parties, remain.[12] This was the case in Vic Restaurant v Montreal, where the parties were in dispute over the City’s decision to deny a license to the appellant restaurant.[13] The restaurant had been sold by the time the appeal was heard, leaving the former owner without a direct interest in the outcome of the case. And yet, the former owner was still facing prosecution under the same bylaw under which they were denied a licence. The determination of the validity of the bylaw was therefore deemed to be a collateral consequence that provided the appellant with the interest necessary for the court to consider the case.[14]
Similarly, in R v Finlay, the Supreme Court of Canada addressed the issue of interpreting the word “careless” in a Criminal Code provision that was set to be repealed.[15] Chief Justice Lamer rejected the position that determining the standard of carelessness was a purely academic exercise because it did not have continued significance.[16] In fact, the possible incarceration of the applicant, Finlay, was deemed to be enough of an adversarial element to meet the threshold set out in Borowski.[17]
Analogously, while a finding of Charter infringement may not have direct legal significance given the use of the notwithstanding clause, the Quebec Court of Appeal could have found the adversarial relationship was maintained in light of the sanctions that would follow non-compliance with Bill 21, like job termination or denial of service. The Quebec Court of Appeal, however, did not consider this.
In addition to collateral consequences, two further considerations bolster a court’s discretion to rule on a moot issue: the first is whether there is a high likelihood of future interaction with the contested provision; the second is whether there is keen public attention on the issue.[18]
AAR v Alberta Hospital is an illustrative example of the first consideration. This case concerned a provision of Alberta’s Mental Health Act, under which patients deemed competent could still be forced to undergo treatments they had already refused.[19] When the case came to trial, the patient who brought the case forward had already received treatment and been released from the hospital. Despite this, the applicant still wanted the court to rule on the issue. In proceeding with the case, Justice Lee considered the applicant to be an individual who was representative of a class of persons that would interact with the law in the future, and proceeded to rule on the issue on this basis.
Similarly, in World Sikh Organization, there is a class of persons who will come into contact with Bill 21 more frequently due to the nature of, and their commitment to, their religious beliefs. While the context of the two cases differ, Justice Lee’s characterization of an adversarial relationship as one that goes beyond the immediate parties and has consequences for a whole class of persons would have been a valid precedent for the Quebec Court of Appeal to consider — albeit a non-binding one from another province.
On the final consideration, there is no shortage of keen public attention from civil rights groups, religious minorities, and the Canadian public as a whole towards Bill 21.[20] While this alone does not indicate an adversarial relationship, taken alongside the preceding factor, it strongly weighs in favour of finding one.
In fact, courts are often willing to hear a moot issue as a test case where one party has a “general ongoing interest.”[21] For example, in Toronto Star Newspaper Ltd v R, the constitutionality of section 517 of the Criminal Code was raised. The case garnered a high level of public attention given that the Charter had come into effect only two years prior. The Ontario Court of Appeal took the high level of public interest, along with Canada wishing to know the validity of the provision under the Charter, as indicative of a persisting adversarial relationship. In World Sikh Organization, Quebec did not demonstrate the same interest in knowing the law’s constitutionality, but taken together with the precedent that only one party needs to demonstrate an interest, this remaining consideration indicates the persistence of an adversarial relationship.
The key similarity between the above cases is that, regardless of the reason, the consequences attached to the law no longer applied to one of the parties, and yet the adversarial context remained, either by virtue of collateral consequences, a high likelihood of future interaction with the contested provision, or public controversy. In World Sikh Organization, the adversarial context seems to persist by virtue of all of these considerations. What the case law does not emphasize is the subjective attitudes of the parties towards the issue and whether the parties can be cleanly positioned in opposition to each other. On the contrary, the case law demonstrates ways to find an adversarial relationship where direct legal opposition is unclear.
As a final consideration, R v Bissonnette demonstrates how an adversarial relationship may persist even when one party chooses not to argue to the contrary of the other. In Bissonnette, the Supreme Court held that a Criminal Code provision violated section 12 of the Charter.[22] The Attorney General of Canada chose not to provide a section 1 justification, which led the court to find that they failed to discharge the onus of proof that the provision was justified even when the Attorney General did not take an explicit position on this. The fact that Canada didn’t argue section 1 didn’t pose any obstacle to the SCC finding the law unjustifiable and striking it down. The opposite was true, actually: Canada not arguing section 1 meant that it was guaranteed to lose.
Despite the purported tepidity of the Attorney General on the issue, the Borowski threshold for determining the existence of an adversarial context could have been met and the Court of Appeal had plenty of case law to ground such a finding.
[Part II of this article is forthcoming, November 2025]
Nicole Ibalio is a 2L law student at the University of Alberta and was a Centre for Constitutional Studies Summer Student in 2025
[1] An Act respecting the laicity of the State, CQLR c L-0.3, s 6 [Bill 21].
[2] Ibid, ss 8, 13.
[3] World Sikh Organization of Canada v Attorney General of Quebec, 2024 QCCA 254 at para 378 [World Sikh Organization]; Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[4] World Sikh Organization, supra note 3 at para 368; Constitution Act, 1982, s 52(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982].
[5] World Sikh Organization, supra note 3 at para 379.
[6] Borowski v Canada (Attorney General), [1989] 1 SCR 342 at 358-363 [Borowski].
[7] World Sikh Organization, supra note 3 at paras 378-402.
[8] Borowski, supra note 6 at 358.
[9] Ibid at 358-359.
[10] Ibid at 353.
[11] World Sikh Organization, supra note 3 at para 391.
[12] Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed (Toronto: Carsell, 2012) at 125 [Boundaries of Judicial Review].
[13] Vic Restaurant Inc v City of Montreal, 1958 CanLII 78 (SCC).
[14] Borowski, supra note 6 at 359.
[15] R v Finlay, [1993] 3 SCR 103, 1993 CanLII 63 (SCC) [cited to SCR].
[16] Ibid at 112.
[17] Ibid.
[18] Boundaries of Judicial Review, supra note 12 at 128-129.
[19] AAR v Alberta Hospital (Edmonton), 1999 ABQB 573 (CanLII).
[20] See Canadian Civil Liberties Association, “CCLA Reacts to Bill 21” (29 February 2024), online: <ccla.org/press-release/ccla-reacts-to-bill-21/> [perma.cc/WAX9-7MFD]; Jonathan Montpetit, “As Canadians seek to confront anti-Muslim bias, Quebec's Bill 21 is under scrutiny once again”, CBC News (10 June 2021), online: <cbc.ca/news/canada/montreal/bill-21-london-attack-1.6059756> [https://perma.cc/Y4LX-E4VA]; Alyssia Rubertucci, “Quebec’s Bill 21 ‘disturbing’ impact on religious minorities: study” (10 August 2022), online: <montreal.citynews.ca/2022/08/10/quebec-bill-21-religious-secularism/> [https://perma.cc/TVV6-BDPG].
[21] Boundaries of Judicial Review, supra note 12 at 128.
[22] R v Bissonnette, 2022 SCC 23; Charter, supra note 3 at 12.