Date: 19981105
Docket: T-85-98
T-86-98
T-85-98
BETWEEN:
DAVID WILLIAM LORD,
Applicant,
- and -
CORRECTIONAL SERVICES OF CANADA,
DIANE KNOPF, UNIT MANAGER, BRENDA LAMB,
UNIT MANAGER and VISITS REVIEW BOARD OF
KENT INSTITUTION,
Respondents.
T-86-98
AND BETWEEN:
CORALEE REBECCA LORD,
Applicant,
- and -
CORRECTIONAL SERVICES OF CANADA,
DIANE KNOPF, UNIT MANAGER, BRENDA LAMB,
UNIT MANAGER and VISITS REVIEW BOARD OF
KENT INSTITUTION,
Respondents.
REASONS FOR ORDER
WETSTON, J.
[1] The complainants, David Lord and Coralee Lord, are father and sister to Derik Lord who was incarcerated at the Kent Institution. The issue involves family visits by David Lord and Coralee Lord. The warden and the Visits Review Board which held a hearing on June 11, 1997, suspended both Applicants' visiting privileges at the Kent Institution.
[2] The application for judicial review raised a number of issues, the paramount one being whether or not David Lord and Coralee Lord's Charter rights were violated as a result of the denial of their family visit privileges. Mr. Lord contended that their Charter rights pursuant to section 2(d) of the Charter were breached in this case.
[3] At the commencement of the application for judicial review, counsel for the Respondents indicated that this application was moot. He indicated that approximately seven months ago, Derik Lord was transferred from the Kent Institution to the Matsqui Institution. He also indicated, and Mr. Lord agreed, that he and his daughter now have, what are known as, special visits but are not yet permitted to have open visits at Matsqui. He contends that the reason he does not get open visits is because of what transpired at Kent.
[4] I decided at the hearing of the application for judicial review that this application was moot. While the Applicants contended that their Charter rights were still being violated because they only had special visiting rights and not open visiting rights, I indicated that there was no record before this Court upon which to hear an application for judicial review regarding Matsqui. I indicated to Mr. Lord that another application for judicial review would have to be brought if it was still his view that their Charter rights were being breached.
MOOTNESS
[5] The issue of mootness was raised by counsel for the Respondents. While Mr. Lord contended that there were still issues that the Court should address, I disagreed for the following reasons.
[6] The issue of mootness was addressed by Mr. Justice Sopinka in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at page 353:
| "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 proceedings 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." |
Sopinka, J. laid out the approach the courts should follow in determining mootness at pages 353 and 354:
| "First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case ... In the King ex rel. Tolfree v. Clark, [1944] S.C.R. 69 ... Duff, C.J., on behalf of the Court, held at page 72: |
| 'It is one of those cases where, the state of facts to which the proceedings in the lower Courts related and upon which they were founded having ceased to exist, the sub-stratum of the litigation has disappeared. In accordance with well-settled principle, therefore, the appeal could not properly be entertained.'" |
[7] Obviously, a case having important constitutional implications should not be considered in the abstract. While the issue may very well be an important one for the Applicants, it must be considered only in the proper factual context and this context was not before the Court.
[8] Accordingly, for the reasons stated above, the application for judicial review shall be dismissed.
(Sgd.) "Howard I. Wetston"
Judge
Vancouver, British Columbia
November 5, 1998