Court of Appeal for Ontario

Date: 2018-01-25

Docket: C63325, C62584

Judges: Doherty, LaForme and Paciocco JJ.A.

Between

Anthony Wong Appellant

and

The Attorney General of Canada Respondent

Counsel

Ian B. Kasper, for the appellant

Sanam Goudarzi and Korinda McLaine, for the respondent

Heard

January 15, 2018

On Appeal

On appeal from the order of Justice Tranmer of the Superior Court of Justice, dated September 15, 2016, dismissing an application for habeas corpus.

Reasons for Decision

[1] The parties agree that this appeal is moot. The appellant submits that the court should exercise its discretion and hear the appeal on the merits.

[2] The appellant was serving a lengthy sentence for manslaughter. In June 2015, he was reclassified as a maximum security offender. He had previously been classified as medium security. In October 2015, he was ordered transferred to a different penitentiary outside of Ontario. The appellant challenged both decisions by way of habeas corpus.

[3] The habeas corpus application was dismissed in September 2016. The appellant appealed.

[4] The appellant was transferred back to medium security in May 2017 while this appeal was pending. He did not challenge that decision. He was released on parole in the fall of 2017, again while this appeal was pending.

[5] The appellant has no remaining legal interest, direct or indirect, in these proceedings.

[6] In urging the court to hear the appeal, despite its mootness, counsel raises two issues. The first relates to the scope of the disclosure obligation placed on the correctional authorities by s. 27(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The second relates to the operation of the exception to the disclosure obligation set out in s. 27(3) of the same Act.

[7] Both provisions were examined by the Supreme Court of Canada in Mission Institution v. Khela, 2014 SCC 24. It is clear from the record in this case that Khela led the correctional authorities to significantly alter their approach to the requirements of s. 27. Counsel for the appellant submits that this case, and the companion case of Earhart v. The Attorney General of Canada (C62584) afford this court the opportunity to confirm what the appellant submits are the clear statements in Khela. He argues that the submissions of the respondent in this case suggest that Khela has been misunderstood. Alternatively, counsel submits that if Khela is unclear, this case and its companion case afford an excellent opportunity for this court to build on and explain Khela.

[8] There is merit to the appellant's submissions. He also correctly notes that the case law in this area demonstrates that the status of prisoners often changes before the prisoner is able to fully pursue his habeas corpus rights. The difficulty in effecting timely review supports the argument that the court should hear the appeal even though it is moot.

[9] In this case, however, the issues which the appellant now seeks to raise were not raised before the application judge. The applicant's material and his written argument before the application judge say virtually nothing about either issue. The proper application of s. 27(3) and, in particularly, the practice of filing sealed affidavits to demonstrate compliance with s. 27(3) was mentioned, but only peripherally in argument before the application judge. Consequently, not only does the appellant ask the court to hear a moot appeal, he asks the court to entertain arguments that were not raised in the record or proceeding giving rise to the order under appeal.

[10] In the course of oral submissions, the court heard arguments on the merits. Those arguments left us convinced that any attempt to go beyond the legal guideposts in Khela, absent a proper record and factual foundation, would at best provide limited assistance, and at worst set the law off in the wrong direction. We are not persuaded that we should exercise our discretion in favour of hearing this appeal, despite its mootness.

[11] The appeal is dismissed as moot.

"Doherty J.A."

"H.S. LaForme J.A."

"David M. Paciocco J.A."