Date: 20020405
Docket: T-480-01
Ottawa, Ontario, the 5th day of April, 2002
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
JOCELYN BRISSON
Applicant
AND:
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
For the reasons stated, the application for judicial review is dimissed without costs.
"François Lemieux"
J U D G E
Certified true translation
Mary Jo Egan, LLB
Date: 20020405
Docket: T-480-01
Neutral Citation: 2002 FCT 377
BETWEEN:
JOCELYN BRISSON
Applicant
AND:
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] On February 15, 2001, the Chairperson of the Disciplinary Court sitting at Cowansville Institution found Jocelyn Brisson (the applicant), who was then an inmate, guilty of having committed an offence under subsection 40(m) of the Corrections and Conditional Release Act (the Act) by creating or participating in a disturbance that is likely to jeopardize the security of the penitentiary. The Chairperson sentenced him to seven days in segregation.
[2] By way of an application for judicial review, the applicant is asking the Court to set aside that decision and to award him fair and equitable compensation for the damage suffered.
[3] At the hearing of the application, counsel for the respondent raised a preliminary issue. He submitted that the applicant's application for judicial review has become academic and moot because Mr. Brisson is under mandatory supervision as of October 1, 2001. He was released pursuant to section 127 of the Act after serving two thirds of his sentence.
ANALYSIS
[4] Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 sets out the principles
that apply in this case. Mr. Justice Sopinka, for the Supreme Court of Canada, explains the doctrine of mootness at page 353:
15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. . . . Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. [Emphasis added.]
[5] Sopinka J. is of the view that two questions must be asked to resolve the issue. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become moot. Second, if the issue has become moot, it is necessary to decide if the court should exercise its discretion to hear the case.
[6] Sopinka J. considers "that a case is moot if it fails to meet the 'live controversy' test". He cites several examples of situations where the authorites have found an appeal to be moot. He writes at page 355:
[23] As well, the inapplicability of a statute to the party challenging the legislation renders a dispute moot . . . This is similar to those situations in which an appeal from a criminal conviction is seen as moot where the accused has fulfilled his sentence prior to an appeal. [Emphasis added.]
[7] Guidelines formulated by Sopinka J. for the exercise of discretion despite the mootness of the dispute include the following: a collateral consequence, the concern for judicial economy, the presence of an issue of national importance and the law-making role of the courts.
CONCLUSIONS
[8] The applicant has been released and will not find himself in a correctional institution again as long as he complies with the conditions of his release.
[9] To repeat the words of Sopinka J. in Borowski, supra, this event has affected the relationship between the applicant and the respondent so that no present live controversy exists which affects the rights of the parties.
[10] Maintaining or setting aside the Disciplinary Court's decision concerning the offence has no consequences for the parties and cannot affect their relationship; these are different circumstances from those that were before Cullen J. in Gingras v. Canada, [1987] F.C.J. No. 426, where the offences could influence the granting of parole.
[11] Moreover, the applicant cannot be awarded damages on an application for judicial review.
[12] It follows that this application has been rendered moot.
[13] The Federal Court of Appeal dealt with a similar case in Fortin v. Donnacona Institution, [2000] F.C.J. No. 235. It held that an application for judicial review challenging the lawfulness of a decision of the prison administration refusing a request for transfer from a maximum security institution to a medium security institution was rendered moot because the appellant was on mandatory supervision and was no longer in detention.
[14] The decision of Rouleau J. in Zarzour v. Canada (Attorney General), [2000] F.C.J. No. 103, is in the same vein.
[15] Should the Court exercise its discretion despite the mootness of the application? Counsel for the applicant has asked me to determine that. He maintains that the offence is still part of the applicant's file and that the applicant regards the sentence as illegal.
[16] One of the factors mentioned in Borowski, supra, that supports the exercise of discretion is a collateral consequence of the sentence.
[17] Counsel for the applicant has not demonstrated to me how this offence to correctional discipline could have an effect, whether direct or indirect, on the applicant.
[18] For these reasons, the application for judicial review is dismissed without costs.
"François Lemieux"
J U DG E
Ottawa, Ontario
April 5, 2002
Certified true translation
Mary Jo Egan, LLB
.
.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-480-01
STYLE OF CAUSE: JOCELYN BRISSON v. ATTORNEY GENERAL
OF CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 19, 2002
REASONS FOR ORDER BY FRANÇOIS LEMIEUX J.
DATE OF REASONS: APRIL 5, 2002
APPEARANCES:
DANIEL ROYER FOR THE APPLICANT
DOMINIQUE GUIMOND FOR THE RESPONDENT
SOLICITORS OF RECORD:
LABELLE, BOUDRAULT, COTÉ FOR THE APPLICANT
ET ASSOCIÉS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA