Mootness

R. v. K.G.S., 2011 NUCA 01 deals with a situation where a custodial sentence was appealed but the matter came before the Court only after the sentence was served.  The Court found the matter was moot and declined to determine the issue.  The Court held:

  

[6]         Borowski v. Canada, 1989 CanLII 123 (S.C.C.), [1989] 1 SCR 342, 57 DLR (4th) 231 is the leading authority on the question of dismissal for mootness. A court may decline to decide a case which raises a merely hypothetical or abstract question. Borowski sets out a two step test to be applied by a court in considering whether to decline to hear a case. First, the court must determine whether the required tangible and concrete dispute has disappeared, rendering the appeal moot. If so, the court must then determine whether it should nevertheless exercise its discretion to hear the appeal, having regard to the presence of an adversarial context, the concern for judicial resources, and the awareness of the court’s proper law-making function.