Butler v. Canada (National Parole Board), 2006 FCA 76

: 20060215

Docket: A-612-04

Citation: 2006 FCA 76

CORAM:        DESJARDINS J.A.

                        EVANS J.A.

                        PELLETIER J.A.

BETWEEN:

DOUG BUTLER

Appellant

- and -

THE NATIONAL PAROLE BOARD

and

THE SOLICITOR GENERAL OF CANADA

Respondents

Heard at Edmonton, Alberta, on February 15, 2006.

Judgment delivered from the Bench at Edmonton, Alberta, on February 15, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                    DESJARDINS J.A.

Date: 20060215

Docket: A-612-04

Citation: 2006 FCA 2006 76

CORAM:        DESJARDINS J.A.

                        EVANS J.A.

                        PELLETIER J.A.

BETWEEN:

DOUG BUTLER

Appellant

- and -

THE NATIONAL PAROLE BOARD

and

THE SOLICITOR GENERAL OF CANADA

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Edmonton, Alberta, on February 15, 2006)

DESJARDINS J.A.

[1]                The appellant, Mr. Doug Butler, was declared, in 1999, a "Long Term Offender", pursuant to Part XXIV of the Criminal Code of Canada. He appeals a decision of the Federal Court (Butler v. Canada (National Parole Board), Snider, J., 2004 FC 1429, [2004] F.C.J. No. 1710) which denied his application for judicial review of a decision of the National Parole Board (N.P.B.or the Board), dated October 8, 2003, made pursuant to subsection 135.1(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act) ordering the suspension of his long term supervision order for breach of a condition and his incarceration.

[2]                The ground for denying the appellant's application for judicial review was mootness considering that the N.P.B. Order of October 8, 2003, the first decision made, was reversed on November 27, 2003, by a second decision of the Board, following a mandatory post suspension hearing required by subsection 135.1(6) of the Act. Consequently, Mr. Butler was released on that day with one added condition to his suspension related to his address of residence.

[3]                The application judge was satisfied that the conditions for mootness elaborated in Borowski v. Canada(Attorney General), [1989] 1 S.C.R. 342, were met and that there was no remaining live controversy between the parties. She was also of the view that, in the exercise of her discretion, she should refuse to review the matter notwithstanding its mootness.

[4]                While the application judges may have misdescribed the nature of the second decision of the Board "as a review or appeal of the first decision" (para. 9 of her reasons) rather than a review of the case (subsection 135.1(6) states that "The Board shall ... review the case..."), we are not satisfied, reading her reasons as a whole, that she made any reviewable error in the exercise of her discretion.

[5]                This appeal will be dismissed without costs.

"Alice Desjardins"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               A-612-04

STYLE OF CAUSE:                                                               DOUG BUTLER and THE NATIONAL PAROLE BOARD and the SOLICITOR GENERAL OF CANADA

PLACE OF HEARING:                                                         Edmonton, Alberta

DATE OF HEARING:                                                           February 15, 2006

REASONS FOR JUDGMENT OF THE COURT BY:        Desjardins, J.A.

                                                                                                Evans, J.A.

                                                                                                Pelletier, J.A.

DELIVERED FROM THE BENCH BY:                             Desjardins, J.A.

APPEARANCES:

SOLICITORS OF RECORD: