Reasons for Judgment — Wagner C.J. (Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. concurring)
The Chief Justice — The test to be applied in this case is a two-part test as stated in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, and R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385.
The test requires the court to first determine whether the case is moot. If the matter is moot, the court may nevertheless choose to exercise its discretion to hear the case on the merits based on the factors set out in Borowski and Smith.
In this case, the majority of the Court of Appeal erred at the first stage of the test because the case is clearly not moot. The mere fact that an individual has been deported, even if he has been deported to a country with which Canada does not have an 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.
Justice Abella, concurring on the result, is of the view that the appeal is moot, but based on the factors set out in para. 50 of Smith, thinks that the Court of Appeal should have exercised its discretion to decide the merits having heard the full argument over two days.
We would all therefore allow the appeal and remit the matter to the Quebec Court of Appeal for decision on the merits.
Cases cited
- Borowski v. Canada (Attorney General) 20411-1989-03-09 ¶ 1, ¶ 2
- R. v. Smith 2004 SCC 14 ¶ 1, ¶ 2, ¶ 5