Date: 20000712
Docket: T-84-00
BETWEEN:
ROBERT JAMES BULLIS,
Applicant,
- and -
THE SOLICITOR GENERAL OF CANADA,
THE WARDEN, BOWDEN INSTITUTION and
THE ATTORNEY GENERAL OF CANADA,
Respondents.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] In January 1999 Mr. Bullis was sentenced to two years in prison. He was assessed as a minimum security risk and therefore sent to the Bowden Institution Farm Annex. Subsequently the prison authorities believed he had been involved in the movement of drugs into the prison and therefore placed him in a medium security setting in September of 1999.
[2] Mr. Bullis, through the prison grievance procedure, challenged the transfer to medium security, but was unsuccessful. He therefore began this present judicial review proceeding in January 2000. However he was released in May of this year.
[3] These reasons arise out of a motion by the Respondents either to dismiss the judicial review application by reason of mootness or, alternatively, to have the issue of mootness heard at the commencement of the judicial review hearing. For the reasons which follow the first remedy, that of striking out at this point, is appropriate.
ANALYSIS
[4] The circumstances in this matter have changed so that there is no longer a live controversy between the parties that can be resolved a decision of the Court. Specifically, when the application for judicial review was commenced, the Applicant was incarcerated at the Bowden Institution in Alberta. He has now been released. Thus the matter is moot. However there remains the question of whether the Court should hear the application and render a decision, despite the mootness and here I would refer to Borowski v. Canada [1989] 1 S.C.R. 342.
[5] Mr. Bullis" only justifications to have this judicial review matter proceed to a full hearing, despite its mootness, is that it involves an alleged violation of his rights under the Canadian Charter of Rights and Freedoms and that the Privacy Commissioner has stated to him that his complaints are well founded. The judicial review application itself refers to section 7 of the Charter, that the rights to life, liberty and security of the person may only be removed in accordance with the principles of fundamental justice. Certainly a decision to transfer an inmate must be one which accords with procedural fairness: see for example R. v. Chester (1984) 5 Admin L.R. 111 at 144, a decision of the Ontario High Court. However, I am not at this point dealing with the merits of Mr. Bullis" application. In opposing this motion to strike out Mr. Bullis provides no specific submissions as to why the Court should hear his judicial review application now that it is moot.
[6] The Supreme Court of Canada, in Borowski, pointed out that it was up to the Court to decide, in its discretion, whether to hear an application despite its mootness. The considerations upon which this discretion ought to be exercised are set out in Borowski at pages 358 to 362. The first aspect to consider is whether there is still an adversarial context in which the hearing may take place. In some instances, there may still be an adversarial relationship even though there is no live controversy. However, in the present instance, I do not see that the Applicant has either a direct or a collateral interest in the outcome, other than, perhaps, to prove that during the grievance procedure he may have been right all along. This is not a ground for establishing a true adversarial relationship. From the Respondents" point of view, I do not see that they have any interest in establishing the correctness of the involuntary transfer from the Bowden Farm to the Institute itself, essentially an upgrade in security. As counsel for the Respondents points out, a decision in this matter will not establish any precedent as each such transfer depends upon its own facts.
[7] The second aspect is that of judicial economy. The issue here is whether it is worthwhile to apply scarce judicial resources to resolve a point that is moot. This Court is, essentially, fully booked until next year. There is no reason to expect that, when this matter is ready to go to a hearing, the waiting list will be any shorter. This, coupled with the fact that the decision will have no practical effect on the rights of the parties, constitutes strong reason why the Court should not hear this moot application, an application which raises no issues of either public importance or public interest.
[8] Third, there is, in some instances, a danger that by pronouncing a judgment, in the absence of a dispute affecting the rights of the parties, a court may in fact or in perception be viewed as intruding into the role of the legislative branch of government. Here, counsel for the Respondents concedes that there would be no intrusion into the role of the legislative branch of government.
[9] That the Crown concedes one element of the test is not a factor is not, in this instance, fatal to its motion. Indeed, as Mr. Justice Sopinka pointed out in Borowski at page 363, the three aspects of the test ought not to be applied mechanically for these principles "... may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa .". In the present instance, the first two principles, those of an adversarial context and the concern for judicial economy, clearly overbear the third principle.
[10] The issue now becomes whether this application for judicial review ought to be struck out, by reason of mootness, for the general rule is that applications for judicial review ought not to be terminated summarily at an early stage, but rather should go to a full hearing, for judicial review is a summary process which, for the most part, should not be interrupted by needless or time consuming motions: see David Bull Laboratories v. Pharmacia Inc. [1995], 1 F.C. 588 at 596-597. However, Mr. Justice of Appeal Strayer went on to point out, at page 600 in David Bull Laboratories ,that the Court had the power to dismiss in a summary manner any motion, there referring to an originating notice of motion, the predecessor to the present application "... which is so clearly improper as to be bereft of any possibility of success.".
CONCLUSION
[11] I have pointed out these proceedings now bring neither any real benefit nor any collateral consequence to either side. There is no adversarial context, for there is no longer a live controversy. It is clearly not worth while to apply the Court"s limited resources to a matter which will have no procedural effect on any rights on either side. The taxpayer"s limited resources ought not to be spent deciding such a matter, a matter which is neither of importance nor of interest to the public. While there is no need for the Court to here demonstrate any measure of awareness of its proper law making function and to avoid intruding into the legislative role of government, the absence of this third factor is of minimal importance compared with the first two factors.
[12] In summary, it would be futile to hope that the Court might hear this matter, notwithstanding its mootness, for the application is bereft of any possibility of success: there is no reason at all for a Court to make an exception, in favour of the Applicant, Mr. Bullis, and hear his moot judicial review application.
ORDER:
This application for judicial review is dismissed by reason of mootness.
(Sgd.) "John A. Hargrave"
Prothonotary
July 12, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-84-00
STYLE OF CAUSE: ROBERT JAMES BULLIS
v.
| THE SOLICITOR GENERAL OF CANADA, THE WARDEN, BOWDEN INSTITUTION and THE ATTORNEY GENERAL OF CANADA |
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF HARGRAVE J.
DATED: July 12, 2000
WRITTEN SUBMISSIONS BY:
Mr. Robert J. Bullis FOR APPLICANT
Ms. Tracy J. King FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
of Canada FOR RESPONDENT