Part II: Charter Infringement Apparently Moot? The Quebec Court of Appeal’s Narrow Application of the Doctrine of Mootness in World Sikh Organization

The Second and Third Criteria: Judicial Economy and the Proper Adjudicative Role of the Courts

The Quebec Court of Appeal’s discussion on the final two criteria for assessing mootness was relatively brief, which further highlights their narrow reading of Borowski.

The criterion of judicial economy concerns whether resolving a moot issue would be a worthwhile use of judicial resources.^[1] The practical effects on the rights of the parties, the likelihood that an issue will reoccur, and whether resolving it is in the public interest are all factors that may inform whether this criterion is met.^[2] Each of these factors was interpreted narrowly by the Court of Appeal, leaving it to reason that proceeding with the issue was not worthwhile.

The first factor, the lack of practical effects on the rights of the parties, is perhaps the overriding factor that led the Quebec Court of Appeal to find the issue of infringement moot. However, while the notwithstanding clause clearly shields Bill 21 from being struck down on certain Charter grounds, a finding of Charter infringement could arguably trigger section 24(1) and entitle affected parties to other legal remedies, including declaratory relief.^[3] And yet, before assessing the question of mootness, the Court had already held that where the notwithstanding clause is involved, section 24(1) will not be engaged either, leaving claimants with no available remedies at all.^[4]

In my view, this finding was particularly short-sighted on the part of the Court, given the social value of section 24(1) remedies such as declarative relief. As Leckey and Mendelsohn argue, Charter review in the context of the notwithstanding clause furnishes the public with guidance on how they should regard the law,^[5] and gives important institutions like the media, academics, and opposition parties a resource they can cite as an authoritative reason to criticize the government and appeal to the public for support. This may not be a direct legal effect, but it is a potentially strong practical effect that merits consideration.

The Court was similarly short-sighted on the second and third factors informing the criterion of judicial economy. While the Court acknowledged that another challenge to Bill 21’s validity may occur, it went on to reason that any ruling it issued would be a hypothetical or speculative judgment that would not be in the interest of the public.^[6] In saying this, the Court relied again on the first Borowski criterion, reasoning that the public would not benefit from a ruling based on an incomplete adversarial debate.^[7] And yet, in Hughes v Children’s Aid Society of Metropolitan Toronto, Justice Wilson determined that it was in the public’s interest to rule on an issue when the rights and obligations of the parties needed to be clarified, even where the live controversy had dissipated.^[8] The Quebec Court of Appeal, however, did not consider whether there would be a social cost in failing to provide clarification regarding the rights and obligations at stake.

Finally, the third Borowski criterion asks whether, in ruling on a moot issue, a court would be playing its proper adjudicative role.^[9]  In considering this criterion, the Quebec Court of Appeal found that if they ruled on the issue of Bill 21’s infringement of Charter rights, they would be overstepping their proper adjudicative function by acting in an advisory manner, despite the National Assembly’s lack of request for a reference.^[10] This was the limited extent to which the Court considered the third criterion, and there are good reasons to regard it as an incomplete and narrow understanding of the threshold.

Justice Sopinka’s concern in Borowski was on whether courts were encroaching on the role of the legislature.^[11] Similarly, in Catholic Children’s Aid Society of Metropolitan Toronto v O(LM), Justice Chapnik held that if a matter concerned interpretation of legislation, rather than striking it down or influencing what could be legislated in the future, then ruling on the issue would not be a departure from the traditional role of courts.^[12] The same would be true of declaratory relief in cases like World Sikh Organization: such relief does not impact the validity of legislation, but merely gives the public guidance that may impact how they vote moving forward, leaving the legislature’s institutional power fully intact.

Moreover, there is nothing in law to suggest that reference cases are the only time when it is appropriate for courts to play an advisory role. Courts do this all the time when they rule on Charter issues, including by providing non-binding guidance on how the laws might be reformed to make them justifiable under section 1. Even more importantly, though, courts’ role as “guardians of the Constitution” gives them a special obligation to provide guidance where constitutional rights and obligations are at stake. By refusing to engage with the issue here, the Quebec Court seems to be only guarding the notwithstanding clause.

 

Conclusion

The Quebec Court of Appeal only discussed the doctrine of mootness to address a subsidiary argument regarding the availability of declaratory relief. While the Court already ruled that Bill 21 was protected by the notwithstanding clause from being struck down, they discussed the mootness issue to further rule out the possibility of declaratory relief. The result of this for those claiming Charter infringement is that they’ve been effectively gridlocked: they are not entitled to relief under sections 52(1) or 24(1).

The main thrust of the Court’s discussion is clear: the ability to rule on whether declaratory relief is available came down to the attitude of the Attorney General. In my view, however, the Court’s almost exclusive focus on the first Borowski criterion is not supported by that case, and it fails to reflect how subsequent case law has come to interpret the first criterion. Moreover, it allowed the Court to avoid giving due weight to the other criteria.

Should the position, or lack thereof, taken by the Attorney General really negate the adversarial context when the appellants claim something as serious as Charter infringement? I argue that it shouldn't, but the Court repeatedly chose to distance itself from the issue. The Court already ruled that judicial review for Charter infringement was not possible by virtue of section 33, but they felt the need to go further and apply the doctrine of mootness to drive home their point.

In declining to use its discretion to rule on the issue, the Court deprived the appellants of certainty regarding whether their rights have been infringed. A finding of infringement would not be a pointless exercise, but would provide vital information to the public on the nature of Bill 21 and its interaction with Charter law. For the Quebec Court of Appeal to leave the status of Charter rights under Bill 21 in limbo based on a narrow application of the Borowski criteria is harmful both to the appellants and to the general public because it displays the unwillingness of the Court to get involved when the notwithstanding clause is used, even when Charter rights are on the line.

The Court misconstrued the first part of the Borowski test by failing to realize the extent to which an adversarial relationship actually did exist, legally, despite Quebec’s decision not to contest the relevant Charter challenges. In doing so, they deprived claimants of the opportunity to have their Charter infringement claim meaningfully examined.

Nicole Ibalio is a 2L law student at the University of Alberta and worked as a Centre for Constitutional Studies Summer Student in 2025

^[1] Borowski v Canada (Attorney General), [1989] 1 SCR 342 at para 360 [Borowski].

^[2] Borowski, supra note 1 at paras 360-362.

^[3] 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, s24(1) [Charter].

^[4] World Sikh Organization of Canada v Attorney General of Quebec, 2024 QCCA 254 at para 362 [World Sikh Organization].

^[5] Robert Leckey and Eric Mendelsohn, “The Notwithstanding Clause: Legislatures, Courts, and the Electorate” (2022) 72:2 UTLJ 189 at 199.

^[6] World Sikh Organization, supra note 4 at para 400.

^[7] Ibid at para 396.

^[8] Hughes v Children’s Aid Society of Metropolitan Toronto, 1996 CanLII 8153 (ONSC) at para 34.

^[9] Borowski, supra note 1 at 362.

^[10] World Sikh Organization, supra note 4 at para 398.

^[11] Borowski, supra note 1 at 362.

^[12] Catholic Children's Aid Society of Metropolitan Toronto v O(LM), 1996 CanLII 7271 (ONSC) at para 60.