Date: 20110614
Docket: T-1441-10
Citation: 2011 FC 688
Ottawa, Ontario, June 14, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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MATTHEW BOWDEN
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
A. Introduction
[1] This is an application for
judicial review of the July 14, 2010 decision of the Third Level Grievance
Adjudicator for Correctional Services Canada (CSC) to deny Matthew Bowden’s (the
applicant) grievance of his involuntary transfer from the Joyceville to the
Millhaven Institution.
B.
Facts
[2] The applicant is a 33 year old
first time offender serving a life sentence for second degree murder. While
housed at the Joyceville Institution, the applicant was implicated in a
gambling ring. Subsequent to an investigation, the applicant’s Security
Reclassification Score (SRS) was increased to 26.5, a medium security score
within the “discretion range” that allowed him to be classified as a maximum
security prisoner. As a result of his re-classification, on February 5, 2010,
the applicant was involuntarily transferred to the Millhaven Institution.
[3] The applicant filed three
grievances regarding the investigation into the gambling ring, his
re-classification and his transfer. All three grievances were denied at either
the second or third stages. The only grievance at issue, in this judicial
review, is the third stage decision to deny the applicant’s grievance regarding
his transfer.
[4] Since the filing of this application
for judicial review, the applicant has since been re-classified as a minimum
security prisoner and, on November 6, 2010, was consequently transferred once
again this time to a medium security institution. As a result, the Respondent
argues that the application is moot and that this Court should not exercise its
discretion to hear the matter.
For the reasons that follow, the Court
decides to exercise its discretion and will not hear the matter because it is
moot.
C.
Issues
and standard of review
[5] There are two issues before the
Court:
1.
Is
this application for judicial review moot?
2.
If
the application for judicial review is moot, should this Court exercise its
discretion to hear the matter in any event?
D.
Parties’
submissions
[6] The applicant
submits that the matter is not moot because there will always be a permanent
blemish on his record since his security rating has been increased and
subsequently downgraded. This Court should therefore hear the application for
judicial review which, according to the applicant’s counsel, is more in the
nature of a certiorari in the present case. According to counsel for the applicant,
there is an issue of public interest at stake since Correctional Services Canada
could use a similar procedure in other cases: raise an inmate’s security rating,
transfer the individual, subsequently reverse their decision and argue that the
matter is moot, thereby preventing this Court from reviewing their decisions.
[7] The Respondent submits that
because this application for judicial review is limited to the applicant’s
involuntary transfer to a maximum security prison, and not the adjustment of
his SRS score or the investigation of the gambling ring, the matter is moot. Because
the applicant has since been re-transferred to a medium security prison, the
decision of this Court could have no practical effect on his rights and would
be a purely academic exercise.
[8] The respondent further argues
that in the event that the matter is moot, this Court should not exercise its
discretion to hear the matter. There is, it argues, no matter of public
importance at stake and the applicant will still have an effective means of
asserting his rights in the event of a future involuntary transfer decision.
E.
Analysis
a) Is this
application for judicial review moot?
[9] In assessing whether or not a
matter is moot, it must be determined whether there is any tangible and
concrete dispute at issue or whether the matter is simply being argued in the
abstract (Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 at para
16 [Borowski]).
[10] The only question before this
Court is whether or not the decision maker erred in ordering an involuntary
transfer. The issues surrounding the applicant’s SRS score and the nature of
the investigation into the gambling ring are not the subject of this
application.
[11] Even if the Court was to
determine that CSC erred in deciding to transfer the applicant to a maximum
security institution, its decision would have no practical effect. The applicant
has already been re-transferred to a medium security institution. Since the
underlying basis of the dispute no longer exists, the question before this
Court is indeed moot.
b) Should this
Court exercise its discretion to hear the matter in any event?
[12] The conclusion that there is no
live controversy does not end the matter. As discussed in Borowski,
above, the Court may elect to address a moot issue if the circumstances
warrant. As stated by Justice Layden-Stevenson in her decision in Dorsey v
Millhaven Penitentiary, 2002 FCT 1085 at para 7, this discretion is to be “judicially
exercised with due regard for established principles.” She went on to explain
that the rationale behind the mootness doctrine is “concerned with the
requirement of an adversarial context, the concern for judicial economy and the
necessity of judicial awareness of its proper law making function.”
[13] Bearing in mind these grounds,
the Court is not persuaded that this issue should be heard despite its
mootness. While the adversarial context arguably still exists between the
parties, the outcome of this particular matter will have no effect on the applicant’s
rights. I agree with counsel for the Respondent when he states that the applicant
will still have an effective means of asserting his rights should any other
matters arise during his incarceration. In addition, this case raises no
question of general importance. It is a matter of well-settled law that does
not warrant the expenditure of judicial resources in this situation.
Furthermore, there is no evidence that CSC would revert to the practice alleged
by applicant.
JUDGMENT
THIS COURT’S JUDGMENT is
that
for the reasons above, this application for judicial
review is dismissed without costs.
"André
F.J. Scott"
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