Her Majesty the Queen v. Adam Simeunovich
OSHAWA COURT FILE NO.: CR-21-15514 MO
DATE: 20210319
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
ADAM SIMEUNOVICH Applicant
COUNSEL:
D. Bouchedid, for the Respondent
Mitchell Huberman, for the Applicant
HEARD: March 16, 2021
REASONS FOR DECISION
J. Speyer J.
A. Introduction
[1] This decision concerns whether the applicant’s challenge to the constitutional validity of a regulation that governs when parolees whose parole has been suspended are afforded a post-suspension hearing before the Parole Board of Canada will be considered and determined in this case. The post-suspension hearing determines whether parole will be re-instated or revoked. The respondent argues that the application should be dismissed because it is moot.
[2] The applicant filed a notice challenging the constitutionality of s. 163(3) of the Correctional and Conditional Release Regulations, SOR/92-620 (CCRR), on February 11, 2021. The essence of his constitutional challenge is that s. 163(3) permits the Parole Board of Canada (PBC) to defer indefinitely the holding of a post-suspension hearing if the event that is said to trigger such a hearing, the transfer of a prisoner to the custody of the Correctional Service of Canada, does not occur for any reason. The applicant seeks an order declaring that section 163(3)(e) of the Correctional and Conditional Release Regulations, violates s. 7 of the Canada Charter of Rights and Freedoms (the Charter), and a remedy pursuant to s. 52 of the Charter that reads language necessary to cure the unconstitutional aspect of the section into the impugned provision.
[3] Upon receiving the applicant’s notice of application, the PBC promptly took steps to arrange the applicant’s post-suspension hearing even as he remained in the custody of a provincial correctional centre. The hearing was conducted on March 8, 2021, eight days before the date scheduled for the hearing of this application. The PBC revoked the applicant’s parole and he is now serving the sentence in respect of which he was released on parole.
[4] The respondent (Canada) argues that the application should be dismissed because it is moot, and I should not exercise my discretion to hear and determine it. The respondent also resists the applicant’s alternative claim for public interest standing for himself and/or his law firm Hicks Adam LLP.
[5] The applicant’s position is two-pronged. He argues that although the application is moot because his post-suspension hearing has occurred, the court should exercise its discretion to hear the application. Alternatively, the applicant argues that he, or the law firm that is representing him, should be granted standing as a public interest applicant and the application should proceed.
[6] I will first address the question whether I should exercise my discretion to hear this application, even though it is moot. I will then address the applicant’s claim to public interest standing.
B. The factual context
[7] A bare bones sketch of the events giving rise to this application is sufficient to situate the present issue in its relevant context.
[8] The applicant is a federal offender, so classified because he is serving a sentence of two years or more. On September 4, 2020, he was granted day parole.
[9] On November 11, 2020, the applicant was arrested and charged with committing a number of criminal offences. His Parole Officer suspended his day parole and on November 23, 2020, referred his file to the PBC for a post-suspension hearing.
[10] When a federal offender’s parole is suspended, s. 135(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, stipulates that the person who signs the parole suspension warrant (or other designated person) has 30 days to either cancel the suspension, whereby the offender is released on previously imposed or modified conditions, or to refer the matter to the PBC for post-suspension review whereupon the PBC may cancel the suspension, or terminate or revoke the parole. Subsection 163(3) of the CCRR provides that the PBC has 90 days to then review the matter, and either cancel the suspension, or revoke the offender’s parole. Section 163(3) provides: “the Board shall render its decision within 90 days after the date of the referral, or the date of admission of the offender to a penitentiary or to a provincial correctional facility where the sentence is to be served in such a facility, whichever date is the later”. The PBC appears to interpret s. 163(3) as providing that the 90-day timeline for decision begins either on the date of the referral, or the date of the offender’s admission to a penitentiary where the offender is serving a sentence of two years or more, whichever is later.
[11] On November 26, 2020, the applicant was granted bail on his new charges. However, he remained incarcerated at the Central East Correctional Centre (“CECC”) further to the suspension of his day parole. He remained in provincial custody. He was not afforded a post-suspension hearing by the PBC because he was not transferred back to the penitentiary to serve the remainder of his federal sentence. That transfer did not occur as it would in unexceptional times, because transfers of prisoners from provincial to federal correctional facilities have been interrupted to reduce the risk of transmission of the COVID-19 virus within and between those congregate living facilities.
[12] On February 11, 2021, the applicant filed an application challenging the constitutional validity of s. 163(3) of the CCRR. The application alleges that s. 163(3) violates the right to liberty protected by s. 7 of the Charter in an arbitrary manner inconsistent with the principles of procedural fairness. Under s. 52 of the Constitution Act, 1982, he seeks a declaration that s. 163(3) of the CCRR is invalid. He also asks the Court to read into s. 163(3) a requirement that post-suspension decisions be rendered within 90 days of the date of referral or the date that the offender remains in custody solely due to the parole suspension, whichever is the later, while severing the following language: “or the date of admission of the offender to a penitentiary or to a provincial correctional facility where the sentence is to be served in such a facility, whichever date is the later”.
[13] When the application was filed, the applicant was awaiting his post-suspension hearing. His counsel had been advised by a Senior Case Review Officer with the PBC that the applicant would not have a post-suspension hearing until after he was transferred to federal custody, and that the PBC would not accommodate remote hearings for prisoners held at provincial custodial institutions.
[14] After the Notice of Application was filed, the PBC held a remote post-suspension hearing for the applicant on March 8, 2021 while he remained confined in a provincial correctional facility. The board decided to revoke his day parole.
C. Is the application moot?
[15] In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353, the Supreme Court explained the doctrine of mootness as follows:
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. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. 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. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.
[16] The applicant agrees with the respondent that his application is moot because he has had his post-suspension hearing. I conclude that the application is moot.
D. Even though the case is moot, should it be heard and decided?
(a) The governing principles
[17] In Borowski, at pp. 358-363, the Supreme Court of Canada described three criteria that are relevant to the court’s decision to elect to address a moot issue if the circumstances warrant. These criteria may be summarized as:
(i) whether an adversarial context still exists between the parties;
(ii) whether the expenditure of judicial resources is justified; and
(iii) whether a decision of the court on the matter would be an intrusion into the functions of the legislative branch
[18] Borowski does not require that each of these three factors favour continuation of a case in order for a court to exercise its discretion to grant a hearing on the merits. As Sopinka J. noted, at p. 363:
In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above 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.
[19] More recently, in R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385 (S.C.C.), at para. 50, the Supreme Court of Canada set out five non-exhaustive factors for determining whether there are exceptional circumstances warranting the adjudication of an appeal rendered moot by the accused's death. These factors are relevant to whether a moot application should be heard at first instance. The five factors, modified to suit the present context are:
whether the application will proceed in a proper adversarial context;
the strength of the grounds for the application;
whether there are special circumstances that transcend the interest of the individual appellant, including:
(a) a legal issue of general public importance, particularly if it is otherwise evasive of judicial review;
(b) a systemic issue related to the administration of justice;
(c) collateral consequences to other interested persons or to the public;
whether the nature of the order which could be made by the court justifies the expenditure of limited judicial (or court) resources to resolve a moot application; and,
whether continuing the application would go beyond the judicial function of resolving concrete disputes and involve the Court in free-standing, legislative-type pronouncements more properly left to the legislature itself.
[20] Recently, in R. v. Penunski, 2019 SCC 39, at para. 10, the Supreme Court of Canada noted that a court’s discretion to hear a moot case is grounded in the interests of justice.
The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard" (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 17).
See also: Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99 (S.C.C.), at para. 11.
[21] The five factors identified in Smith strike me as a detailed re-statement of the three Borowski criteria. They provide an analytical framework to guide an assessment of what the interests of justice require in a particular case. I will organize my analysis by reference to the five criteria described in Smith.
(i) Is there an ongoing adversarial context?
[22] This application has been case-managed, and a schedule for filing materials was set by the court before the applicant’s post-suspension hearing occurred. The applicant has filed a factum and record. The respondent was directed by Bird J. to file responding materials by today, March 19, 2021. Therefore, the court will have the benefit of adversarial evidence and submissions if this application is permitted to proceed. I have no doubt that each party is committed to presenting its position forcefully on the basis of a complete record. My ability to properly determine the constitutional issue will not be diminished because there is no longer a legal dispute between the parties.
[23] While I have found that there is an ongoing adversarial context in this case, I wish to explain that I have not based my conclusion about that on the applicant’s argument that if s. 163(3) is unconstitutional in the manner alleged, then the parole board lost jurisdiction over him on February 26, 2021, and he should be released unconditionally, a position that he says he may chose to advance in a yet to be initiated habeus corpus application. He has not brought such an application. If he does, he could equally litigate his constitutional challenge in the context of that application.
(ii) The strength of the grounds for the application
[24] The respondent does not dispute that the applicant was entitled to a post-suspension hearing. It is notable that upon receipt of the notice of application, the respondent moved swiftly to conduct the applicant’s hearing utilizing virtual hearing technology. That tells me that the respondent recognizes that the applicant was entitled to his hearing before his return to the penitentiary, notwithstanding the respondent’s interpretation of its governing regulation as previously communicated to counsel for the applicant. Alternatively, it might be inferred that the respondent does not wish to litigate the constitutionality of that regulation in this case.
[25] Either inference can reasonably be taken to reflect the respondent’s assessment of the strength of the grounds for the application, and its conclusion that the application has merit.
[26] The approach taken by the respondent to the applicant’s right to a post-suspension hearing is not unique. The respondent reacted in like manner to an application and notice of constitutional question filed by a Mr. Rilling. I will have more to say about the Rilling application presently. For the moment, it appears that the respondent has decided to grant hearings to prisoners who have the where-with-all to assert their constitutional rights by means of an application to the court.
[27] The respondent reasonably conceded that the constitutional validity of s. 163(3) of the CCRR under s. 7 of the Charter raises a serious justiciable issue. I conclude that the grounds for the application are, at minimum, arguable.
(iii) Are there special circumstances that transcend the interest of the applicant?
[28] The applicant has provided evidence that there are other prisoners held in Ontario correctional facilities who have not been afforded timely post-suspension hearings because transfers of provincial prisoners to federal penitentiaries have been suspended during the COVID-19 pandemic. There is presently no way to know when such transfers can safely resume at their pre-pandemic levels.
[29] The affidavit of Peter Ketcheson indicates that since the start of the pandemic in March 2020, the PBC has taken the position that it will not provide inmates in provincial custody with remote post-suspension hearings because section 163(3) of the Regulations does not require them to. If this is so, the question raised by this application is not restricted to the facts of this case. The application engages a systemic issue related to the administration of justice.
[30] In response to a question posed by me to counsel for the respondent during oral argument, counsel for the respondent provided me with a letter, advising that as of March 18, 2021, 126 federal offenders who have had their conditional release suspended are in provincial correctional facilities. The letter explains that not all these offenders are presently entitled to a post-suspension hearing for a variety of reasons. The letter does not tell me how many of these offenders are presently entitled to a post-suspension hearing. The letter also explains the capacity of the Correctional Service of Canada (CSC) to receive offenders from provincial correctional facilities, but also notes that steps to combat the pandemic are interfering with normal transfer routines. The letter concludes that “the Parole Board and CSC are taking measures to ensure that federal offenders awaiting post-suspension hearings in provincial institutions are either being transferred back to federal custody or afforded a remote post-suspension review. The letter does not describe the status or efficacy of those measures.
[31] Counsel for the respondent also asked me to consider two affidavits, prepared by officials of the CSC and the PBC. I have done so. They provide helpful and thorough descriptions of the parole suspension process and the difficulties that the global pandemic, and the steps necessarily taken as a result in the interests of public health and safety, have presented for the timely conduct of post-suspension hearings. They reinforce the applicant’s position that it is necessary for this court to hear this application even though it is moot.
[32] The information received from the correctional authorities confirms that there are special circumstances in this case that transcend the interests of the applicant. It is good that the PBC and CSC are “taking measures”, but in the absence of evidence as to what those measures are, and that they have solved the problem, I conclude that the issues raised on this application need to be resolved, and that they need to be resolved expeditiously because the liberty interests of others are at stake.
(iv) The importance of conserving judicial resources.
[33] The experience of a prisoner awaiting a post-suspension hearing is not unlike that of a person detained in custody while awaiting trial. Such matters are, by reason of their temporary nature, inherently evasive of judicial review. This is especially so when the party responsible for conducting a hearing to determine the liberty interests of the offender controls the timing of the hearing and can therefore manipulate that timing to evade judicial review.
[34] The situation in which the applicant found himself is of a recurring nature but of a limited duration and, as such, is evasive of review. It has been noted that this sort of thing arises with some regularity in relation to the rights of prisoners where the factual background of the matter has changed quickly but the larger underlying issue not specific to the party remained. See: R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105; and R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250.
[35] This is a case that presents an issue of importance to a number of offenders. I have not been provided with evidence as to what that number is. There is a tremendous cost in leaving this matter undecided and that cost can be measured in the number of days a suspended parolee is detained in custody without having the necessity for that detention determined in a hearing before the NPB, a hearing that is mandated by statute.
[36] There is also a clear cost in leaving this matter undecided that can be measured in the amount of judicial time and court resources that will be expended to deal with each individual application that will need to be brought if the measures being undertaken by the correctional authorities are ineffective or slow. In this case, the principle of conservation of judicial resources militates in favour of continuing the present application. While a decision not to adjudicate this application might save this court some resources in the short term, it would undoubtedly cost other courts and justice system participants additional resources in the longer term.
[37] The respondent leans heavily to support its position on the fact that another application that challenges the constitutionality of the provision at issue in this case is presently scheduled to be heard in another jurisdiction in Ontario in Rilling v. Canada. The problem with that submission is that Rilling has been scheduled to be heard on September 30 and October 1, 2021. That is more than half a year from now. This court can accommodate the hearing of this application within four to six weeks. The respondent’s expressed concern about the possibility of inconsistent decisions is purely speculative and provides no good reason to defer the timely resolution of the issue raised in this case. Likewise, the slightly different circumstances presented by the Rilling case and the applicant’s case are in my view a distinction without a difference. Both cases raise the constitutional validity of the very same provision of the CCRR. The resolution of that issue will not depend on whether the offender was on conditional release subject to parole or statutory release.
[38] On balance, the importance of conserving judicial resources favours the hearing of the present application.
(v) The need for sensitivity to the court’s proper law-making function
[39] Courts must be sensitive to their proper law-making function as an adjudicator of disputes affecting the rights of parties. The concern is that pronouncing a declaration in the absence of a concrete dispute between the applicant and the respondent risks intruding into the legislative function of Parliament.
[40] It is for the courts, not Parliament, to assess the constitutional validity of legislation. If a constitutional infringement is established, this court will be guided by the jurisprudence that governs s. 56 remedies. The need for sensitivity to the court’s proper function can be accommodated while the court proceeds to hear a case that needs to be heard for the reasons I have described.
E. Conclusion
[41] Having assessed the five factors described in Smith, and I am satisfied that there is a continuing controversy about when post-suspension decisions are to made by the PBC which, notwithstanding that the applicant has received his post-suspension hearing, requires resolution in the interests of justice. The resolution of this controversy is of importance to the administration of justice as there are other offenders whose liberty interests are at stake, who will have to individually bring applications like this one. Many, and perhaps most of those offenders, are marginalized and lack resources to bring such application. The issue is elusive of judicial review because the respondent can act to render any application that is brought moot.
F. Does the applicant have standing because he is a public interest applicant?
[42] The applicant advanced an argument for public interest standing for himself, and for his legal representatives, as an alternative to his primary position that the court should hear his case even though it is moot.
[43] I have concluded that the concept of public interest standing is not engaged in this case because the applicant’s private interest was at stake when the application was initiated, and the impact of subsequent events is properly and best addressed by the application of the principles that govern the court’s exercise of its discretion to hear a moot case.
[44] The principles that animate the law of standing are the same as those that govern the court’s discretion to hear moot cases. In Canada (A.G.) v. Downtown Eastside Sex Workers, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 25, Cromwell J. identified the traditional concerns that justify limitations on standing. Those concerns are:
properly allocating scarce judicial resources and screening out the mere busybody; ensuring that courts have the benefit of contending points of view of those most directly affected by the determination of the issues; and preserving the proper role of courts and their constitutional relationship to the other branches of government.
[45] Like the decision whether to hear and determine a matter that is moot, “the question of standing has been viewed as one to be resolved through the wise exercise of judicial discretion”. See: Downtown Eastside, at para. 35. As Cromwell J. noted at para. 35: “[t]he decision to grant or refuse standing involves the careful exercise of judicial discretion through the weighing of the three factors (serious justiciable issue, the nature of the plaintiff’s interest, and other reasonable and effective means)”. These factors have already been considered and resolved in favour of the applicant in relation to the mootness issue.
[46] In Downtown Eastside, at para. 37, Cromwell J. concluded that “[a]ll of the other considerations being equal, a plaintiff with standing as of right will generally be preferred”. In this case, the applicant has standing as of right. That standing has withstood the respondent’s efforts to make his case moot. Therefore, this matter will proceed with the applicant’s participation as of right.
Justice J. Speyer
Released: March 19, 2021