Soper v. Canada (Attorney General), 2004 FC 669

Date: 20040506

Docket: T-1828-03

Citation: 2004 FC 669

Vancouver, British Columbia, Thursday, the 6^th day of May, 2004

Present:           THE HONOURABLE MR. JUSTICE S. NOËL                            

BETWEEN:

                                                         SUSAN MARIE SOPER

                                                                                                                                            Applicant

                                                                         - and -

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The Applicant is asking the Court to declare invalid, unlawful, quash, or set aside the Mission Penitentiary Visitors Review Board (VRB) decision dated July 9^th, 2003, suspending her visiting privileges for a period of six months and furthermore to issue an order that the VRB, and specifically the Chair, Mr. Rick Heriot, to "...cease and desist the harassment the Applicant has experienced and the attempts to impugn her character and to deny inmates their right to the Applicant visiting them". She is also seeking an award for costs.

[2]                The Respondent has filed a motion to either dismiss the application by reason of mootness or, in the event that the Court declines to do so, the Respondent alternatively requests a 20-day extension of time from the date of the order disposing of the motion. It has been dealt with in writing in accordance with Rule 369.

FACTS

[3]                The Applicant, who is self-represented, is an outreach worker at the Carnegie Health Outreach Program in Vancouver, British Columbia, and in this capacity, she attended at Mission Institution during an "open house" on June 14^th, 2003 to visit an inmate.

[4]                At the entrance of the Mission Institution, a search with a detector dog was conducted and the dog indicated that the Applicant had been in contact with drugs which she submits most likely occurred through work-related contact with someone who must have sat beside her.

[5]                Following Correctional Service Canada (CSC) policy, a risk assessment was done and the Applicant was informed that her visiting privileges were suspended until the VRB could review the situation.

[6]                Upon being informed of the decision, the Applicant proceeded to take off all her clothes in full view of the staff as well as some visitors and requested that she be strip-searched. As a consequence, her actions created a disturbance which was disruptive to the "open house" visits and prevented staff from processing other visitors.

[7]                The VRB rendered a decision in writing on July 16^th, 2003, by which her visitation privileges were suspended for a six month period to be reviewed on or before January 8^th, 2004.

[8]                On January 14^th, 2004, the VRB advised the Applicant that her visiting privileges had been fully reinstated.

ANALYSIS

[9]                In order to come to the conclusion as to whether or not an application is moot, it is essential to first consider whether the facts giving rise to the dispute as well as the underlying background have disappeared, therefore rendering the issues purely academic and devoid of any practical purpose. If that is the situation, it then becomes necessary for the Court to decide if it should exercise its discretion to hear the case (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. page 342 at page 353).

[10]            As indicated in the first paragraph of these reasons, the Applicant is not only seeking to quash the July 9^th, 2003 VRB decision, but is also asking for an order that the VRB, and specifically the Chair, cease and desist the harassment as well as the attempts to impugn her character so that inmates can receive her visit if they so require.

[11]            Although it is true that the January 14^th, 2004 VRB decision, reinstates her visiting rights, this application raises other issues which this decision does not deal with such as: the alleged breach of the rules of natural justice as well as the allegations against the Chairperson including the accusation of bias and the motion to recuse.

CONCLUSION

[12]            While the circumstances in this case have changed somewhat with time, the controversy concerning the VRB, the Chairman and the attitude of CSC personnel during the future visits of the Applicant to the Mission Institution, have yet to be resolved. This leads me to conclude that the legal dispute between the parties is still in existence and therefore the application is not moot. Having thus concluded, it is not necessary to proceed to the second stage of the assessment of the decision.

[13]            Costs have been sought by both parties. Considering the particular situation of this application, I do not think that it is appropriate to grant costs at this time; therefore costs will be in the cause.

                                                                       ORDER

Therefore, the Court orders that:

-            The motion to strike out the Applicant's application is dismissed, costs will be in the cause;

-            Grant to the Respondent for a 20-day extension of time to file the Respondent's record from the date of the present Reasons for Order and Order

(Sgd.) "Simon Noël"     

Judge

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1828-03

STYLE OF CAUSE:                          SUSAN MARIE SOPER

                                                                                                                                              Applicant

- and -

ATTORNEY GENERAL OF CANADA

                                                                                                                                          Respondent

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER AND ORDER BY:                     MR. JUSTICE S. NOËL

DATED:                                                                                  May 6, 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: