Date: 20100622
Docket: A-524-09
Citation: 2010 FCA 170
Present: EVANS
J.A.
BETWEEN:
MARTHA KAHNAPACE
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
EVANS J.A.
[1]
I have
before me a motion by the Attorney General of Canada to dismiss for mootness
the appeal of Martha Kahnapace from a decision of the Federal Court (2009 FC
1246), in which Justice Snider dismissed her application for judicial review of
a Third-level Grievance Decision upholding her maximum security classification.
[2]
Justice
Snider rendered her decision on December 4, 2009. At that time, Ms Kahnapace
was serving a life sentence for second degree murder. Because of the
seriousness of her offence, she was incarcerated for more than two years in a
maximum security facility pursuant to Policy Bulletin 107 (Policy 107), which
also restricts the frequency of security classification reviews to once every
two years. She alleged in her application for judicial review that, among other
things, Policy 107 had not been applied properly to her and that, in any event,
it was invalid because it contravenes the governing legislation and violates
her rights under sections 7 and 9 of the Canadian Charter of Rights and Freedoms.
[3]
On May 7,
2010, this Court (Sexton J.A.) dismissed a motion by the Crown that Ms
Kahnapace’s appeal should be dismissed for mootness because she had been
transferred from a maximum to a medium security facility. The basis of the Court’s
Order was that Ms Kahnapace “continues to be affected by the decision to
classify her as maximum security”, and that the appeal was therefore not moot.
[4]
On May 10,
2010, the British Columbia Court of Appeal allowed Ms Kahnapace’s appeal, set
aside her conviction, and ordered a new trial. As a result of this decision, Ms
Kahnapace was released from federal custody and thus ceased to be subject to
federal correctional policies, including Policy 107. She was held in a
provincial facility awaiting a new trial.
[5]
Accordingly,
the Attorney General says that the appeal from Justice Snider’s decision is now
moot since the outcome of the appeal cannot affect her rights. Moreover, if the
appeal is moot, the Court should not exercise its discretion to allow it to
proceed: the appeal can serve no useful purpose, no adversarial relationship
exists between the parties, and there are no special circumstances that
outweigh the public interest in judicial economy.
[6]
Ms
Kahnapace submits that the validity of Policy 107 remains a live controversy because
her rights may still be affected by the Policy. In particular, she says, she
has an unresolved grievance with Correctional Service Canada concerning the
application of the Policy to her, namely, the date of her classification
review. In this grievance, she raises, among other things, the validity of
Policy 107. She submits that her release following the successful appeal
against her conviction does not terminate the grievance. Although not raised by
Ms Kahnapace, the validity of the Policy would remain a live controversy if she
commenced an action for damages on the basis that her liberty interests had
been infringed as a result of the application to her of an invalid Policy.
[7]
These considerations,
as well as possible future impacts of the Policy, may well be sufficient to
prevent the appeal from being moot. However, I need reach no concluded opinion
on the issue because I am satisfied that, even if the appeal is moot, the Court
should exercise its discretion to allow it to proceed.
[8]
In Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 358-63 (Borowski),
the Supreme Court of Canada outlined the three broad rationales for the
mootness doctrine that a court must take into consideration when deciding
whether to depart from the normal practice of not determining a matter that is
moot.
[9]
First, in
order to ensure that a matter is fully argued there must be an adversarial
relationship between the parties. In my view, the consequences of the past
application of Policy 107 to Ms Kahnapace and the possibility that she may be
subject to it in the future are sufficient to satisfy this rationale. The
quality and thoroughness of the submissions that have already been made in this
matter by Ms Kahnapace’s legal counsel also indicate that the issues will be
fully argued before the Court.
[10]
Second, in
the interests of conserving scarce judicial resources for cases where the legal
rights and duties of the parties are at stake, courts generally do not
determine moot cases. The present appeal involves a challenge to the validity
of an existing policy on Charter and non-Charter grounds. Since the issues
raised by Ms Kahnapace in her appeal are not limited to her particular
situation, the disposition of the appeal may effectively eliminate, or reduce,
the possibility of future legal challenges to the validity of Policy 107 by
other inmates to whom it is applied. In my opinion, to permit Ms Kahnapace’s
appeal to proceed does not offend the judicial economy rationale.
[11]
Third, the
mootness doctrine serves to remind courts that, in pronouncing judgments in the
absence of a live controversy between the parties, they are in danger of
straying beyond their adjudicative function and intruding into the legislative
sphere. However, this is a matter on which it is important to retain some
flexibility: Borowski at 362.
[12]
In my
opinion, if the Court permitted this appeal to proceed, it could not be said to
be exceeding its adjudicative role. The appeal raises the statutory and
constitutional validity of Policy 107, questions of law of public importance
that affect a number of penitentiary inmates. Moreover, the Policy may otherwise
prove evasive of review because of recurring changes to inmates’ status.
[13]
For these
reasons, the Attorney General’s motion to dismiss Ms Kahnapace’s appeal is
denied with costs.
“John M. Evans”
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