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.

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 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.

Sopinka characterized the doctrine of mootness as part of a general policy of the court to decline to hear hypothetical and abstract questions.

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.