Date: 20041015
Docket: T-2359-03
Citation: 2004 FC 1429
Ottawa, Ontario, this 15th day of October, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
DOUG BUTLER
Applicant
- and -
THE NATIONAL PAROLE BOARD
and the SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] In 1999, after being convicted of certain criminal offences, Mr. Butler was declared to be a "Long Term Offender", pursuant to Part XXIV of the Criminal Code of Canada, and was sentenced to imprisonment for three years followed by five years of supervision in the community. In 2002, Mr. Butler was released from custody and began to serve the supervision portion of his sentence. On October 8, 2003, the National Parole Board ("NPB") suspended his long-term supervision order (the "Suspension Order") and remanded Mr. Butler back into custody. The NPB determined that Mr. Butler had prolonged contact with children on September 27, 2003, in direct violation of a condition of his supervision. The reasons stated for the Suspension Order were:
You have a long history of sexual and violent offending. You are assessed as a high risk to re-offend in the community. Your violation of a special condition, your misrepresentation of the total time of this event and your rationalization that you could not be rude and leave, clearly indicate that your risk has escalated.
[2] On November 27, 2003, the NPB, upon review of the Suspension Order and all of the surrounding circumstances, cancelled the Suspension Order and released the Applicant from custody.
[3] Mr. Butler seeks judicial review of the Suspension Order dated October 8, 2003.
Issues
[4] This application raises three issues:
1. Because the NPB, on November 27, 2003, cancelled the October 8, 2003 Suspension Order of the NPB, is this application moot?
2. Even if the question is moot, should the Court exercise its discretion to hear this application?
3. Was the decision of the NPB patently unreasonable?
Analysis
Issue #1: Is this question moot?
[5] The Respondent submits that this application is moot because Mr. Butler seeks to quash a Suspension Order that has already been cancelled by virtue of the post-suspension hearing held November 27, 2003; there is no longer a "live issue or controversy" between Mr. Butler and the NPB.
[6] Mr. Butler argues that the decision of the NPB is not moot. He compares this decision to an appeal of a criminal sentence that has already been served. In such a case, there is no argument that the sentencing decision is moot and the appeal court may overturn the sentence in spite of it having been served. Mr. Butler did not refer me to any jurisprudence to support this argument. He also argues that this decision stands in that there has been no overturning of the decision; the role of the NPB in the post-suspension hearing is not that of an appeal.
[7] The first step in assessing whether a matter is moot is to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at para. 16). In this case, there is no dispute that Mr. Butler is no longer subject to the Suspension Order. The subsequent panel of the NPB, reviewed the circumstances of the Suspension Order and decided to cancel the suspension.
[8] The statutory scheme for long-term supervision is contained in Part II of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"). Section 135.1(1) provides that, when an offender breaches a condition of a long-term supervision order or when a member of the NPB is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition or to protect society, the NPB may suspend the long-term supervision. That is what was done here. In the Suspension Order, the NPB took a decision to suspend the supervision.
[9] Once an offender has been suspended, there are two statutory reviews of the decision to suspend. Firstly, the person who signs the warrant of apprehension must review the case and, no later than 30 days after the commitment, either cancel the suspension or refer the case to the NPB (CCRA, s. 135.1(5)). Secondly, once the case has been referred to the NPB, the NPB must review the case and, within 60 days after the date of the referral, cancel the suspension and release the offender on the same or modified conditions or take other action that is not relevant to this application (CCRA, s. 135.1(6)). It is clear to me that the second assessment of a suspension of supervision is in the nature of a review or appeal of the first decision. In this case, a post-suspension hearing was held and Mr. Butler was released, by decision dated November 27, 2003, with one added condition to his supervision.
[10] In my view, the matter is moot. Since the decision of the NPB was reviewed and Mr. Butler was subsequently released, the underpinning or sub-stratum of this application has disappeared. There is no live controversy between the parties.
[11] Even if I were to determine that the NPB erred in reaching its decision, my decision would have no direct practical effect. Quashing the decision would not change the position of Mr. Butler who has already been released.
Issue #2: Should I exercise my discretion to hear the application?
[12] The conclusion that there is no live controversy does not end the matter. As discussed in Borowski, supra, at p. 353, the Court may elect to address a moot issue if the circumstances warrant.
[13] Mr. Butler argues that, even if the application is now moot, I should exercise my discretion to hear this application. He points out that s.101(b) of the CCRA allows the NPB to take into consideration all available information when making a decision concerning the release status of an offender. Mr. Butler claims that allowing the Suspension Order to stand places him at risk for an adverse future finding, based on the fact that at one time he was found to be in "contact" with children, even where that finding was overturned. Thus, he argues, the interests of justice are served by hearing this application. I do not agree.
[14] The only possible reason for hearing this moot application would be the impact that the Suspension Order - and, more specifically, the conclusion that Mr. Butler had breached a condition of his supervision - could have on future interactions between Mr. Butler and the authorities. However, the argument that the Suspension Decision would be held against Mr. Butler is speculative. In any subsequent review of Mr. Butler's file, both decisions will be put before a reviewing authority. Anyone looking at the file would conclude that the later decision was a review and reversal of the earlier decision. Thus, it is difficult to foresee a situation where the Suspension Order would negatively affect Mr. Butler without its impacts being counterbalanced by the second decision of November 27.
[15] There is another reason for not exercising my discretion in this case. As identified by Justice Sopinka in Borowski, supra at para. 40:
[An] underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.
[16] Pronouncing a judgment on the Suspension Order of the NPB may be viewed as intruding into the role of the legislative branch. As in Borowski, supra, it is a consideration of this principle which is most damaging to Mr. Butler's case. The CCRA includes a very detailed legislative scheme for dealing with the decisions made by designated personnel in situations as arose in Mr. Butler's situation. Prescribed in the legislation is, not one, but a series of review procedures and an appeal route. The staff and members of the NPB were scrupulous in complying with the prescribed procedures. To intrude where no intervention by the Court is needed is to introduce uncertainty into an otherwise certain system.
[17] On the facts of this case, I am not persuaded that there are circumstances that warrant intervention by this Court on this moot issue.
Issue #3: Was the decision of the NPB patently unreasonable?
[18] Given my conclusion that the issue is moot and having decided that I will decline to exercise my discretion to hear the matter, the question of whether the Suspension Order was patently unreasonable need not be decided.
[19] The application will be dismissed with costs to the Respondent.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed, with costs to the Respondent.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET T-2359-03
STYLE OF CAUSE: DOUG BUTLER v. THE NATIONAL PAROLE
BOARD ET AL
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 13, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: October 15, 2004
APPEARANCES:
Mr. Charles B. Davison FOR APPLICANT
Ms. Susan Dej ROR RESPONDENTS
SOLICITORS OF RECORD:
Barrister & Solicitor FOR APPLICANT
Edmonton, Alberta
Morris Rosenberg FOR RESPONDENTS
Deputy Attorney General of Canada