COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Mapara v. Ferndale Institution (Warden),

2014 BCCA 49

Date: 20140128

Docket: CA040831

Between:

Sameer Mapara

Appellant
(Petitioner)

And

Bobbi Sandhu,
Warden of Ferndale Institution

Barb van Vugt,
Warden of Mission Institution

Respondents
(Respondents)

Before:

The Honourable Madam Justice Garson

The Honourable Madam Justice MacKenzie

The Honourable Mr.
  Justice Willcock

On appeal from: Supreme
Court of British Columbia, February 14, 2013
(
Mapara v. Sandhu
, Vancouver Registry No. 26236)

Oral Reasons for Judgment

Counsel for the Appellant:

J. Martin Peters

Counsel for the Respondent:

L.Y. Bantourakis

Place and Date of Hearing:

Vancouver, British
  Columbia

January 28, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2014

Summary:

The appellant, Sameer Mapara,
is a federally incarcerated inmate who was involuntarily transferred from
minimum to medium security. He subsequently brought a petition for an order in
the nature of habeas corpus with certiorari in aid. Mr. Mapara appealed
from the dismissal of that petition, but after the petition was dismissed, and
before the appeal was heard, he was transferred back to minimum security.

Held: Appeal dismissed.
First, the appeal was moot. Secondly, all the factors, as set out in Borowski
v. Canada (Attorney General), [1989] 1 S.C.R 342, militated against the court
exercising its discretion to hear the appeal.

[1]

A. MACKENZIE J.A.
: Sameer Mapara
is a federally
incarcerated inmate who was involuntarily transferred on July 5, 2012 from
minimum to medium security. In response, Mr. Mapara brought a petition for an
order in the nature of
habeas corpus
with
certiorari
in aid. The
petition was dismissed on February 14, 2013, and Mr. Mapara appeals from that
order.

[2]

I agree with the respondents, Bobbi Sandhu and Barb Van
Vugt, the respective Wardens of Ferndale and Mission Institutions, that this
appeal is now moot because Mr. Mapara was returned to minimum security on
November 25, 2013, on the basis of good behaviour. Thus, the factual foundation
for his
habeas corpus
application no longer exists and the relief he
seeks on appeal has become academic.

[3]

Furthermore,
I am not persuaded we should exercise our
discretion to hear the appeal, which I would dismiss as moot.

Background

[4]

Following
his conviction for first degree murder, Mr.
Mapara was sentenced to life in prison with no eligibility for parole for 25
years. He was serving his sentence at Ferndale Institution, a facility for
offenders classified as a minimum security risk. On June 1, 2012, Mr. Mapara
was transferred to Mission Institution, a medium security facility, and placed
in segregation. This transfer is not the subject of this appeal.

[5]

On June 20, Mr. Mapara was returned to Ferndale pending
a full review of his status. On July 5, 2012, Mr. Mapara was involuntarily
transferred on an emergency basis to Mission Institution.

[6]

Mr.
Mapara was provided with documents setting out the
basis for his transfer, and exercised his right to provide a written rebuttal.
On August 22, 2012, after considering Mr. Maparas rebuttal, the respondent
Warden for Ferndale Institution provided written reasons approving the increase
in Mr. Maparas security classification from minimum to medium and his
involuntarily transfer to Mission Institution (the Transfer Decision). The
provisions of the
Corrections and Conditional Release Act,
S.C. 1992, c.
20 (
CCRA
) and the
Corrections and Conditional Release Regulations
,
S.O.R./92-620 relating to the system of classification and reclassification on
which the placement of inmates into different levels of security is based, is
described in
Khela v. Mission Institution (Warden)
, 2011 BCCA 450 at
paras. 6 and 7.

[7]

The
Transfer Decision was based on Mr. Maparas
history, in particular, his conduct at Ferndale Institution where he was
thought to have displayed a pattern of inappropriate behaviour. The correction
authorities found he made misrepresentations regarding a fundraiser proposal
and producing misleading documentation on an unknown charitable organization
called the 365 Foundation. The correction authorities learned Mr. Mapara and
several members of his family were, or had been, directors.

[8]

In brief,
an important feature of Mr. Maparas criminal
offence history involves his questionable financial dealings. A psychological
assessment by Dr. Ronald LaTorre of January 12, 2011 included this caution:
Any grandiose financial dealings will require close supervision. This should
be considered part of his offense (
sic
) cycle at this time.

[9]

On December 13, 2012,
Mr. Mapara filed an application
for
habeas corpus,
challenging the Transfer Decision and seeking this
relief:

1.

An
order in the nature of
habeas corpus
with
certiorari
in aid directing the respondent(s) to forthwith reinstate Mr. Maparas minimum
security classification; and

2.

An
order directing the respondent(s) to return Mr. Mapara to the general
inmate population of Ferndale Institution or be transferred to the general
inmate population of Kwìkwèxwelhp Healing Village forthwith;

3.

An order for costs.

[10]

On
February 14, 2013, Mr. Justice Silverman dismissed
Mr. Maparas
habeas corpus
application.

[11]

On
April 24, 2013, Mr. Mapara filed this appeal. In his
amended notice of appeal
,
filed September 4, 2013
,
he asserts the
judge erred in finding disclosure regarding the Transfer Decision was adequate
and erred in finding that this decision was reasonable.

[12]

On
May 22, 2013, Mr. Mapara applied to the correction
authorities for a reduction in security classification and a voluntary transfer
from Mission Institution to Ferndale Institution.

[13]

On
October 11, 2013, the correction authorities
completed an Assessment for Decision to address Mr. Maparas application. The
Assessment for Decision recommended Mr. Maparas security classification be
reduced to minimum and that he be voluntarily transferred back to Ferndale
Institution.

[14]

On
November 12, 2013, the respondent Warden of Mission Institution
approved the reduction in Mr. Maparas security classification to minimum and
his transfer to Ferndale Institution. Thus, on November 25, 2013, Mr. Mapara
was physically transferred to Ferndale Institution.

The mootness analysis

[15]

The leading case on mootness is
Borowski v. Canada (Attorney General)
,
[1989] 1 S.C.R. 342 which established a two-step analysis for deciding whether
an appeal ought to be dismissed on the grounds it is moot:

a.         has the required tangible and
concrete dispute disappeared and the issues become academic; and if so

b.         should the court exercise its discretion to hear
the case in any event?

(See
also
Lising v. Kent Institution,
2008 BCCA 10 at para. 14).

[16]

The
doctrine of mootness is part 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 will not resolve some controversy which affects or may affect the
rights of the parties. Generally, once the court has determined the matter is
moot, it ought not to hear the appeal:
Borowski
(at 353).

[17]

Mr. Mapara argues his appeal is not moot, stating:

8. Contrary
to the assertion of the [respondents] in paragraph 26 of their submissions, Mr.
Mapara has not attempted to resurrect a moot appeal by changing the relief he
has sought. Mr. Mapara specifically raised before the Chambers Judge the lack
of reasonableness of his Transfer Decision. Mr. Mapara has appealed to this
Court,
inter alia
, this same issue. This substratum of the litigation
has not disappeared. Pursuant to the first stage of the
Borowski
test,
the decision of this Court with regards to the reasonableness of the Transfer
Decision will have the effect of resolving a controversy which affects or may
affect the rights of the parties

[Citations
omitted]

[18]

Of note, he submits, This Court found in
Khela
that in
determining lawfulness it is entitled to consider whether the deprivation of
liberty was reasonable. As noted by Mr. Justice Chiasson in
Khela
an
unreasonable decision is not lawful. He seeks  a decision overturning Mr. Justice
Silvermans decision on the basis that the Transfer Decision was unreasonable
and, accordingly, the Respondents have not met their onus to show that Mr.
Maparas deprivation of liberty was lawful.

[19]

I do not agree with Mr. Mapara that his appeal is not moot. As this
Court
observed in
Lising
(at para. 17)
,
The
writ of
habeas corpus
is a prerogative writ at common law, the purpose
of which is to allow the timely examination of the legality of imprisonment.
Here, as in
Lising
, the deprivation of liberty which was the subject
matter of the
habeas corpus
application was Mr. Maparas increase in
security classification and transfer up to a higher security prison.

[20]

In similar circumstances,
the Court in
Lising
had
no difficulty in determining the appellants transfer back to a lower security
correctional facility, following his formal request through correction
authorities and before the hearing of the appeal, made his grounds of appeal,
and the relief sought, academic. The Court concluded, In other words, the
raison
detre
of the
habeas corpus
application no longer exists and the
appeal from the order dismissing the application is moot (Para. 18).

[21]

Similarly,
I conclude Mr. Maparas appeal is moot. It
is academic because the factual foundation for the
habeas corpus
application no longer exists and the relief sought on appeal has become academic.
Mr. Mapara has already obtained the relief sought in his notice of petition of
a reduction in his security classification to minimum, and a return to a
minimum security institution.

[22]

On appeal,
Mr. Mapara frames the relief he seeks, in
part, as an order, quashing the decision of the Warden of Ferndale to
involuntary (
sic
) transfer Mr. Mapara on the basis that it was
unreasonable and not in compliance with the
CCRA
and the
CCRR
Regulations
(
sic)
; however, such an order cannot be made on
habeas
corpus
for which the available remedy is release. As this Court said in
Khela:

[86] The
object of an order for release in the context of a case such as this is to
return the prisoner to the
status quo
prior to the decision that
deprived him or her of liberty. In my view, the appropriate order in this case
would have been to order that Mr. Khela be returned to a medium security
institution. This is consonant with the order made by the Supreme Court of
Canada in [
May v. Ferndale Institution
, 2005 SCC 82].

[88] In
addition, the order that the transfer decision is null and void is an order
quashing the decision. That form of relief is available only in the Federal
Court. The correct order in this case would have been to release Mr. Khela from
detention in Kent Institution and to return him to incarceration in a medium
security institution to be dealt with there as the prison authorities
considered appropriate.

Thus, I agree with the respondents the request
for an order quashing the Transfer Decision cannot provide a basis on which to
argue the appeal is not moot. I conclude it is clearly moot.

Should the
appeals be heard?

[23]

In deciding whether to exercise its judicial discretion at the second
stage of the
Borowski
test, the court considers, in a non-mechanical way,
the extent to which each of the following three basic rationalia for
enforcement of the doctrine apply (
Borowski
at 358 - 363):

a.         the requirement of an
adversarial context, including the role of adverse collateral legal
consequences;

b.         the concern for judicial economy; and

c.         the need for the court to
demonstrate awareness of its proper law making function.

No adversarial
context

[24]

In
Borowski
, Sopinka J., for the Court,
explained
the requirement of an adversarial context may be satisfied if, despite the
cessation of a live controversy, the necessary adversarial relationships will
nevertheless prevail. He said, For example, although the litigant bringing the
proceeding may no longer have a direct interest in the outcome, there may be
collateral consequences of the outcome that will provide the necessary
adversarial context (359).

[25]

Mr.
Mapara submits that collateral consequences exist
in this case. He argues, This Courts ruling on the reasonableness of the
Warden of Ferndales decision to transfer, the fact of the transfer and the
substance of the reasons to transfer will have a long term impact upon [me].
These are the collateral consequences that warrant this appeal proceeding.

[26]

Mr. Mapara adds that all transfers are entered by the
Correctional Service of Canada (the CSC) into a system. He submits the status
of these recordings is shared by CSC for all conditional release decisions and
are included in Parole Eligibility Reports. Therefore, Mr. Mapara submits a
decision by this Court on the reasonableness of the Transfer Decision will
impact his future applications, especially for parole.

[27]

I do not find Mr. Maparas
arguments to be persuasive.

[28]

There
are no intervenors in this case and no collateral
consequences for Mr. Mapara that go beyond the realm of speculation should this
appeal not be determined. Because this is a
habeas corpus
appeal, the
only concrete impact could have been on the deprivation of Mr. Maparas liberty
by transfer to a medium security institution. However, that transfer has been
superseded by subsequent events.

[29]

Mr. Maparas
assertion that a decision in this appeal
will affect future correctional decisions involving him, or his prospect of
future parole applications, is without a proper evidentiary basis.

[30]

Any effect on
Mr. Maparas parole applications or other
correctional decisions, and the corresponding considerations involved in those
decisions, have no foundation at this point. It is common ground Mr. Mapara
will only be eligible for day parole in 2024 and for full parole in 2027. As
the respondents say, Mr. Maparas rapid return to minimum security based on
good behaviour could figure just as, if not more prominently, than his transfer
to medium security.

[31]

Significantly, as this Court said in
Lising
,
the
existence of the Transfer Decision will not have an impact on parole or other
applications. Instead, it is the substance of the conduct on which the Transfer
Decision was based that may affect parole. The conduct, and the records
maintained by the CSC with respect to Mr. Maparas conduct, will not be
affected by a decision on this appeal. At most, such a decision would be a
finding as to the adequacy of disclosure of the information and reports on
which the Transfer Decision was based.

[32]

As the
respondents note,
habeas corpus
applications are concerned solely with release. I agree with their statement
that, Mr. Maparas remedy for allegedly inaccurate allegations and/or records
of allegations is not
habeas corpus
, but instead to request under the [
CCRA
]
that the records be corrected, and to seek judicial review.

[33]

Overall, I agree with the respondents that this appeal lacks an
adversarial context to warrant this Court hearing a moot appeal. As this Court
concluded in
Lising
:

[31] In
summary, the appeal from the order dismissing the appellants
habeas corpus
application
is academic for there is no longer a live controversy between the parties.
Contrary to the submissions of the appellant, this is not a case in which there
are collateral consequences to the appellant riding on the outcome of the
appeal.

Judicial economy

[34]

In
Borowski

(at 360 - 362) Sopinka J. also
explained the second broad rationale for the mootness doctrine: concern for
judicial economy. He said this concern will be answered if the special
circumstances of the case make it worthwhile to apply scarce judicial resources
to resolve it. The concern for judicial economy may be answered
if:

a)

the courts decision will have some practical effect on the rights of
the parties even without the effect of determining the controversy that gave
rise to the action;

b)

the appeal raises an issue of a recurring nature but of necessarily
brief duration that might otherwise evade review; or

c)

the appeal raises an issue of public importance where a resolution is in
the public interest.

[35]

Mr.
Mapara argues this appeal involves special
circumstances and raises issues of public interest to warrant this Court hearing
the appeal. As to special circumstances, he submits, The expense of scarce
judicial resources is warranted as a decision on the reasonableness of the
Warden of Ferndales decision will affect Mr. Maparas rights throughout his
life sentence. Again, there is insufficient support for this statement.

[36]

Regarding
public interest, Mr. Mapara contends this
case is one of many in which the Respondents have orchestrated mootness in
order to avoid scrutiny by this Court. He submits this practice by the
respondents is short lived and difficult to review, and therefore justifies a
determination on appeal. I find no support for Mr. Maparas broad allegation of
such a practice. The example he provides is based on hearsay, does not indicate
a pattern, and fails to establish such an orchestrated mootness.

[37]

Mr. Maparas arguments do not address the concern for
judicial economy. The outcome of this appeal would have no practical effect on
Mr. Mapara because the deprivation of liberty arising from his transfer to a
medium security institution is no longer in effect. As the respondents point
out, the entire judicial proceeding has been directed to compelling a transfer
back to minimum security at Ferndale Institution, but that has now occurred and
this Court cannot make any meaningful order:
Webber v. Anmore (Village),
2012 BCCA 390 at paras. 20 - 21.

[38]

Nor is
the issue raised necessarily a matter of short
duration so as to inevitably become moot in every case. Instead, as in
Lising,
this appeal was made moot by circumstances specific to the appellant. His
habeas
corpus
application could have been heard on short notice and the appeal
expedited. But Mr. Mapara did not even make his
habeas corpus
application until December 2012, months after the authorities made the Transfer
Decision.

[39]

In addition,
Mr. Maparas own successful application to
transfer back to Ferndale was peculiar to him. Other inmates would not
inevitably make such an application, nor is there a sufficient foundation in
the evidence that correctional institutions routinely engage in a practice of
transfers back to reduced security while a
habeas corpus
appeal is
outstanding.

[40]

Finally,
the public interest does not require
this appeal be heard because the Supreme Court of Canada, on October 16, 2013,
heard and reserved its decision in
Khela
to appeal to SCC granted,
[2012] S.C.C.A. No. 14. Its decision

will address both issues Mr. Mapara
raises on this appeal:

(1) on an application for
habeas corpus
,
what is the scope of review by a provincial superior court of a CSC decision
that adversely affects an inmates liberty, and does it differ from that of the
Federal Court on an application for judicial review; and

(2) On an application for
habeas corpus
,
what is the scope of review by a provincial superior court of the sufficiency
of CSC disclosure to an inmate, and does it differ from that of the Federal
Court on an application for judicial review?

In these circumstances, there is no
utility in this Court making a pronouncement on the state of the law on those
very issues.

The Courts adjudicative function

[41]

Finally,
I am sensitive to a courts role as the
adjudicative, and not the legislative, branch of government. This Court
concluded in
Lising
(at para. 28), quoting from
Borowski
, In
other words, the court ought not to supplant the legislatures primary role as
a law-making body and [p]ronouncing judgments in the absence of a dispute
affecting the rights of the parties may be viewed as intruding in the role of
the legislative branch (at 362).

[42]

In summary, I do not find that any of
the factors
militating in favour of exercising our discretion to hear this moot appeal are
present in this case.

Disposition

[43]

In the result, I would dismiss the appeal as moot.

[44]

GARSON J.A.
: I agree.

[45]

WILLCOCK J.A.
: I agree.

[46]

GARSON J.A.
: The application to quash the appeal is granted and
the appeal is dismissed.

The Honourable Madam Justice A. MacKenzie