Date: 20021017
Docket: T-679-01
Neutral citation: 2002 FCT 1085
BETWEEN:
ANTHONY DORSEY,
Applicant,
- and -
INDEPENDENT CHAIRPERSON
AT MILLHAVEN PENITENTIARY,
Respondent.
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] The applicant seeks judicial review of the decision of the Independent Chairperson at Millhaven Penitentiary. The decision, dated March 27, 2001, resulted in a sanction of punitive dissociation (disciplinary segregation) and loss of privileges (removal of access to radio, tape player and television) for five days.
[2] On January 2, 2001, the applicant, while incarcerated at Millhaven Penitentiary, was charged under subsection 40(h) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act) with a serious disciplinary offence. On January 1st, while mimicking the shape of a gun, the applicant pointed his finger at an officer and verbally threatened him, suggesting physical harm and death. The action was enhanced by the sound of a gun being discharged. The hearing was held on March 27, 2001. The applicant was convicted, sanctioned and filed his application for judicial review the same day.
[3] The applicant alleges that the Chairperson's interpretation of the legislative provisions of the Act was incorrect. Alternatively, if the legislative provisions are ambiguous and open to alternative interpretations, the ambiguity ought to be resolved in the applicant's favour.
[4] At the outset of the hearing for judicial review, I asked whether the applicant had served his sanction and was told that he had. In view of this response, I raised the issue of mootness. Applicant's counsel informed me that the issue had not been raised by the respondent. I advised counsel that I was concerned that the issue was moot. Applicant's counsel then referred to Borowski v. Canada (Attorney General) et al., [1998] 1 S.C.R. 342 and submitted that this application involves an issue that is a recurring one of short duration, which will never reach the Court in time. Counsel for the respondent declined to make submissions. I advised counsel that I reserved my decision regarding the issue of mootness; I then heard the submissions relative to the judicial review application in the event that I should ultimately find that this was an appropriate case to entertain the application for judicial review.
[5] After careful consideration of the law as stated in Borowski, supra, I have decided, for the reasons that follow, that the application for judicial review is dismissed on the basis of mootness.
[6] The two-part analysis, outlined in Borowski, involves consideration of: (i) whether the required tangible and concrete dispute has disappeared, and (ii) if the dispute has disappeared, whether the Court should exercise discretion to hear the case. If the answer to the first question is affirmative, then the issue is moot and regard must be had to the second part of the analysis.
[7] Under the second stage of the Borowski analysis, the Court may, notwithstanding that an issue is moot, elect to address the issue if the circumstances warrant it. The discretion is to be judicially exercised with due regard for established principles. The three-fold 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.
[8] It is common ground that there exists no live controversy between the parties in this case. The issue is moot. Therefore, determination as to whether I should nonetheless hear the matter turns on the second stage of the analysis.
[9] The first principle of the second stage of the analysis deals with the requirement of an adversarial context that is described, in Borowski, as a fundamental tenet of our legal system. There may, however, be instances where, despite the fact that a live controversy no longer exists, the adversarial relationship will continue to prevail such as in cases where there are collateral consequences of the outcome. I have no evidence before me with respect to collateral consequences, nor were any representations made in that regard.
[10] The second principle deals with the concern for judicial economy. In Borowski, Justice Sopinka described this principle as a need to ration scarce judicial resources among competing claimants. He determined that the concern may be alleviated if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. The mere fact, however, that a case raising the same point is likely to recur, even frequently, should not by itself be a reason for hearing a moot issue. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved. Here, I accept that the dispute will, in all likelihood, have always disappeared before it is ultimately resolved by judicial review. However, notwithstanding that counsel referred to the matter as a recurring one, I have no evidence or representations before me as to whether the recurrence of which counsel speaks is with respect to the sanctions, per se, or with respect to the interpretation of the legislation to which the applicant takes exception. Similarly, there was neither evidence nor representations regarding the frequency of the recurrences.
[11] Finally, the third principle of the rationale is the deployment of judicial resources in cases raising an issue of public importance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law. Again, there was neither evidence nor representations with respect to this factor.
[12] I adopt the words of Gibson, J. in Teng v. Canada (Minister of Citizenship and Immigration) 2001 FCT 155, [2001] F.C.J. No. 312 when he stated: "Under present resourcing arrangements, the resources of this Court at the Trial Division level are spread thin. A high priority must be given to directing those resources to matters where there remains a live controversy".
[13] In my view, where a matter is moot, if the Court is to be asked to exercise its discretion to hear and determine that matter in any event, there should be sufficient evidence and argument to enable the Court to make an informed decision as to whether to exercise its discretion in accordance with the reasoning set out in Borowski. That was not the situation here. I therefore decline to exercise my discretion in favour of the applicant. The application for judicial review is dismissed.
______________________________
Judge
Ottawa, Ontario
October 17, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-679-01
STYLE OF CAUSE: ANTHONY DORSEY v. INDEPENDENT CHAIRPERSON AT MILLHAVEN PENITENTIARY
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 1st, 2002
REASONS FOR ORDER : The Hounourable Madam Justice Layden-Stevenson
DATED: October 17, 2002
APPEARANCES:
Mr. Fergus J. O'Connor
613.546.5581
FOR PLAINTIFF / APPLICANT
Mr. John Unrau
613.941.4090 FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. Fergus J. O'Connor FOR PLAINTIFF/APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT/ RESPONDENT
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