Ottawa, Ontario, February 5, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] Other than immigrants subject to a removal order, almost all other inmates in custody are entitled to apply for day parole or unescorted temporary absence before the inmate is eligible for full parole. In general terms an offender is eligible for full parole after serving one-third (⅓) of their sentence and may be eligible for day parole before that. A recent change in the applicable legislation had the effect of depriving an immigrant inmate of the opportunity to apply for day parole without a hearing or any other consideration applicable to other inmates in similar circumstances.
[2] The issue in this judicial review is whether the current prohibition from day parole for persons subject to a removal (deportation) order is contrary to sections 7, 9 and 15 of the Charter.
[3] The current provision of s. 128(4) of the Corrections and Conditional Release Act (CCRA) prohibits an immigrant inmate from seeking day parole until he is eligible for full parole. Once he is eligible for full parole, the removal order generally becomes operative and the person is deported. S. 128(4) reads as follows:
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128. (4) Despite this Act or the Prisons and Reformatories Act, an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole. |
128. (4) Malgré la présente loi ou la Loi sur les prisons et les maisons de correction, l’admissibilité à la libération conditionnelle totale de quiconque est visé par une mesure de renvoi au titre de la Loi sur l’immigration et la protection des réfugiés est préalable à l’admissibilité à la semi-liberté ou à l’absence temporaire sans escorte. |
II. BACKGROUND
[4] The Applicant is an Ethiopian citizen who was granted permanent residence on January 1, 2001. He plead guilty to one count of obstruction of justice and received a 24-month sentence. He was also convicted of several lesser offences including fraud and fabricating evidence. His total sentence was four years and four months.
[5] He was initially told that he would be eligible for day parole on February 27, 2005 and full parole on November 17, 2005.
[6] On December 14, 2004, the Immigration Division ordered the Applicant deported because he had been sentenced under an Act of Parliament for a term of imprisonment of more than six (6) months.
[7] On January 6, 2005, a parole officer advised the Applicant that as a result of the deportation order, his day parole eligibility had been changed to his full parole eligibility date of November 17, 2005 in accordance with the operation of s. 128(4) of the CCRA.
[8] The Minister issued an arrest warrant under s. 55(1) of the Immigration and Refugee Protection Act (IRPA) which is based on reasonable grounds to believe that the person is not only inadmissible but also that he is either a danger to the public or unlikely to appear for his removal from Canada.
[9] Pursuant to s. 59 of the IRPA, when a warrant is issued, the prison officials are required to deliver the person to the Minister’s officials at the end of the inmate’s period of incarceration. Therefore, the person can be removed as soon as he is released on full parole.
[10] That is what appears to have happened in this case. The Applicant was not given day parole; he was released on full parole and deported. He is now out of the country and would be unaffected by any decision in this matter.
[11] It is noteworthy that day parole and unescorted temporary absence is available to certain immigrant offenders who have obtained stays of removal either from this Court or from the Immigration and Refugee Board (IRB).
[12] The Applicant says that s. 128(4) of the CCRA violates s. 9 or 7 of the Charter, s. 15 of the Charter and is not saved by s. 1.
The Applicant orally amended the wording of his request that subsections 128(4) to 128(7) of the CCRA be declared of no force and effect and that the following words in italics be read into s. 59 of the IRPA:
If a warrant for arrest and detention under this Act is issued with respect to a permanent resident or a foreign national who is detained under another Act of Parliament in an institution,
a) the detention consequent on that warrant for arrest and detention shall be reviewable under section 57 as soon as is practicable after the person is granted day parole or unescorted temporary absence and every six months thereafter till the expiry of sentence of the person, and
b) the person in charge of the institution shall deliver the inmate to an officer at the end of the inmate’s period of detention in the institution.
III. ANALYSIS
[13] In the absence of any motion by the Respondent to strike this judicial review on the grounds of mootness, the Court raised the issue with counsel. Both parties were prepared to argue the merits of the review and have the Court decide this Charter challenge. The Court is not prepared to do so for the following reasons.
[14] In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Court further articulated the doctrine of mootness. The general rule is that a court need not hear a hypothetical or abstract question. When the issue of mootness arises, the issues to be faced are: (1) has the dispute between the parties disappeared; and (2) if so, should the Court exercise its discretion to hear the case.
[15] In exercising its discretion to hear an appeal (the same principle applies to a judicial review), the rationale for mootness should be considered:
1) Usually the presence of a live controversy ensures that the case will be argued fully. In the current circumstances, there is no issue that Mr. Matas acted fully and as if the controversy as regards his client was alive. The only potential element missing was the interests of possible intervenors since the issues could touch upon different classes of immigrants.
2) Judicial resources should be conserved for pressing cases. In this instance the resources were expended and the Court was in a position to render judgment.
3) The Court must be aware of its proper function as pronouncing judgments in the absence of a dispute may be an intrusion into the role of the legislative branch. This rationale is particularly apt. The Applicant wishes the Court to read into the provisions of s. 59 of the IRPA certain words so as to remove the Charter infirmity of the existing language.
[16] In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, the Supreme Court expanded on the Borowski rationale. The Court, at paragraphs 5 and 9-12, held that issues of law which are not necessary for the resolution of an appeal should not be decided. This is particularly true with respect to constitutional issues where the foundation upon which the proceedings were launched had ceased to exist.
[17] In this case, the very basis for the Applicant’s claim, a right to apply for day parole, disappeared when he was deported from Canada.
[18] This is not the type of issue which will only come before the Court in hypothetical circumstances because the type of case only arises in fast paced circumstances where the events overtake the Court process.
[19] Particularly in cases involving incarceration, this Court can set the matter down for hearing in a short period of time. The issues are clear, the principles in issue are reasonably well developed. This is not to suggest that their application in those types of circumstances is easy but it can be done in a reasonably expeditious manner.
[20] Therefore, in my view, it is not appropriate to decide these Charter issues and potentially read in words to a statute except in circumstances where there is meaningful impact on the litigant.
[21] For these reasons, the Court exercises its discretion not to decide this matter. As the Respondent did not raise mootness, it is not entitled to its costs.
[22] This judicial review will be dismissed without costs.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed without costs on the basis of mootness.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-371-05
STYLE OF CAUSE: DANIEL BEDADA
and
SOLICITOR GENERAL
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: January 22, 2007
APPEARANCES:
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Mr. David Matas
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Mr. Scott D. Farlinger
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SOLICITORS OF RECORD:
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MR. DAVID MATAS Barrister & Solicitor Winnipeg, Manitoba
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Winnipeg, Manitoba
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