Larouche v Court of Queen’s Bench of Alberta, 2015 ABQB 25

Court of Queen ’ s Bench of Alberta Citation: Larouche v Court of Queen’s Bench of Alberta, 2015 ABQB 25 Date: 20150112 Docket: 0603 04866 Registry: Edmonton Between: Eric Larouche Applicant - and - The Honourable (Former) Chief Justice of the Court of Queen's Bench, A.H.

Wachowich, Her Majesty the Queen, and the Clerk of the Court of Queen's Bench of Alberta (Criminal) Respondents Corrected judgment: A corrigendum was issued on January 12, 2015; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment on Motion to Dismiss for Mootness of the Honourable Mr. Justice J. Watson _______________________________________________________

I Introduction [ 1 ] The Rule of Law is an organization of principles which are not only foundational to our Constitutional order but crucial to our democracy, to our security, to our rights and freedoms, and to our equal status as members of humanity. The Rule of Law is also an expression of our collective and inherited wisdom and socialization. It is our cloak and our shelter from oppression on the one hand and from disorder on the other. As the Governor General of Canada wisely observed on Remembrance Day, November 11, 2014, freedom without peace is agony, and peace without freedom is slavery.

Without the Rule of Law, we can have neither freedom nor peace. [ 2 ] A crucial element of the Rule of Law is that no exercise of power emanating from the structure of our social order of governance can be considered above or beyond the reach of law. The integrity and validity of the exercise of legal authority are necessarily linked to its own legality. Power and its exercise must be legitimate. That includes what judges and Chief judges do in the exercise of their powers.

This motion to declare a proceeding before the Court of Queen’s Bench moot, and the proceeding itself, raise the Rule of Law. [ 3 ] That is because the applicant in the proceeding itself seeks a declaration that a putative exercise of the authority of the former Chief Justice of the Court of Queen’s Bench to make a direction, translated into a form of policy or regulation and carried out by Court administrative staff, was unlawful when, on March 22, 2006, it impeded the applicant’s ability to make an application to the Court at Edmonton under the Criminal Code respecting review of an order of judicial interim release.

For simplicity here I call this the “direction” of the former Chief Justice. [ 4 ] The direction was not a Rule or even a Practice Note as commonly recognized in this jurisdiction. Essentially he made a business management decision with a policy element, so instructed the court administration staff and, of course, the court staff carried it out.

Invoking various provisions of the Canadian Charter of Rights and Freedoms and other legal principles, the applicant seeks to quash the direction by certiorari and seeks a declaration that the direction was contrary to law, was ultra vires , and, notably, was contrary to those Charter provisions. In other words, the core question challenges the exercise of legal authority by the Chief Justice to individually regulate the business of his Court in the administration of criminal justice in a manner other than by the more formalized and elaborate enactment and promulgation of a Rule or Practice Note.

No other remedy is sought in the underlying proceeding but certiorari and a declaration of various things. [ 5 ] In sum, the impugned direction set a pre-condition for scheduling such release review motions. Its operative effect here was to delay the applicant’s motion being placed on a hearing list and being heard by a judge of the Court until the pre-condition was overcome.

Although the elements of the pre-condition were not completely free of ambiguity, the essence of it was that no applicant’s motion would go onto the hearing list until the applicant had arranged with Crown counsel to have any related or unrelated outstanding warrants for the applicant’s apprehension or detention organized to be dealt with in advance or at the same time as the hearing before the Court. [ 6 ] The direction did not target the applicant as such. It just affected him. It is not entirely clear from the record before me how much practical impact the direction actually had on the applicant.

He was not in custody at the time. He was simply seeking a variation of release terms which variation was later consented to by the Crown. The outstanding warrant he evidently faced was for a traffic offence fine from Calgary in the amount of $150 which was soon thereafter paid. His counsel did contend that this direction caused a significant interference with his Charter rights.

The extent of breach, if breach, is not in agreement between the parties. [ 7 ] It is also in evidence that either the direction or an ad hoc administrative arrangement to a similar effect (along with other elements) was put in place in 2004. When it was first approved by the Chief Justice is not entirely clear. In any event, the record before me provides no basis to draw any firm conclusions about the practical effect of the direction on anyone other than the applicant (whether in custody or not) either before or after 2006.

More is said about this below. [ 8 ] It is common ground that the direction was only formally rescinded in February, 2014. In that respect, some form of this arrangement was arguably in place for a decade and the direction itself, if dated from the explanatory letter of the Chief Justice dated March 23, 2006, was in place for at least eight years.

It is the removal in 2014 of the direction by the Court which principally underlies the Crown’s motion to have the applicant’s motion for certiorari and for declaratory relief declared moot in all its aspects as against all respondents, and dismissed. [ 9 ] The applicant’s initial challenge to the direction was made in the Court of Queen’s Bench directly out of the original criminal proceedings against the applicant.

But a judge of that Court on April 7, 2006, stayed the applicant’s initial application as procedurally misplaced, with leave to the applicant to convert the proceeding into one by way of originating notice for a declaration and for certiorari .

No appeal was taken from that decision. The applicant’s replacement originating notice was filed on April 18, 2006. [10] For reasons not specified to me, the proceeding then seems to have gently eased into a form of stasis for some years.Meanwhile, the Rules of Court were changed in 2010 and overtook the application. By operation of Rule 15.2, the ‘originating notice’proceeding was transmogrified into an ‘originating application’ proceeding governed by Division 2 of

Part 3 of the Alberta Rules ofCourt. No one raised either delay or procedural defect about the form of the present application by the applicant before me, so I was notasked to use the modern adaptation Rule 15.6 to rectify anything. [11] The significance of this format of proceeding is that, in the Crown’s submission, the originating application can now bedismissed summarily by operation of modern Rule 7.3(1)(

b) of the Rules. Rule 7.3(1)(

b) provides that a civil proceeding, which is whatthis now is, can be dismissed if the Court is satisfied that there is “no merit to a claim or part of it”. On this aspect, the Crown contendsthat nothing about the application survives the crucible of mootness and that the Court should not exercise its discretion to entertain anyof it. During the hearing of the motion, however, counsel were advised that I would, in taking the matter in reserve, have to considerwhether “part” of it would indeed survive either as not moot or as moot but a proper subject for a hearing on discretionary grounds. [12] That said, the governing test for

summary judgment in Alberta finds expression in Windsor v CPR, 2014 ABCA 108 at para 13, 572 AR 317; Sherwood Steel Ltd v Odyssey Construction Inc., 2014 ABCA 320, at paras 7 to 8, 59 CPC 7th 22; Maxwell v Wal-Mart, 2014 ABCA 383 at para 12 and cases mentioned therein, inter alia. From the process perspective,

summary judgment can begiven if a disposition that is fair and just to both parties can be made on the existing record: Hryniak v Mauldin, 2014 SCC 8, [2014] 1SCR 87. [13] From the substantive perspective,

summary judgment can be granted if, in light of what that fair and just process reveals, thereis no merit to the claim.

No ‘merit’ in my view means that, even assuming the accuracy of the position of the non-moving party as to anymaterial and potentially decisive matters -- matters which would require ordinary forensic testing through a full trial procedure and whichcannot be resolved through the fair and just alternative -- the non-moving party’s position viewed in the round has no merit. [14] Stated another way, in order for the non-moving party’s case to have merit, there must be a genuine issue of a potentiallydecisive material fact in the case which cannot be summarily found against the non-moving party on the record revealed by the ‘fair andjust process’.

The mere assertion of a position by the non-moving party, or the mere hope of the non-moving party that something willturn up at a trial, does not suffice. The key is whether the circumstances require a full regular trial on that issue in order to properlyresolve the case: see Canada v Lameman, 2008 SCC 14 at paras 10 to 11, [2008] 1 SCR 372.

The concept of “merit” in this respect is tobe distinguished from the test for striking out pleadings under Rule 3.68 which involves deciding “whether there is any reasonableprospect that the claim will succeed, erring on the side of generosity in permitting novel claims to proceed.”: compare Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 at paras 13 to 15, 85 CELR 3rd 39, under motion [2014] SCCA No 497(QL). [15] The Crown as the moving party on the current motion submits that the evidential record placed before me by the effectiveagreement of the parties demonstrates that mootness is a complete answer to adjudicating on the merits of this originating application.The Crown also submits that I should not exercise my discretion to allow the matter or any part of it to proceed.

As the non-moving partyat this stage, the applicant has to, accordingly, put his best foot forward to show ‘merit’ in the sense of non-mootness, or ‘merit’ in thesense of a reason for me to exercise discretion to proceed with any aspect of the underlying application. [16] My involvement in this matter, since I am a member of the Court of Appeal of Alberta, should be explained.

On the initiativeof counsel for the applicant by letter dated February 28, 2014, to the Registrar of the Court of Appeal, and apparently with the consensusof counsel for the respondents (as well with the support of a judge of the Court of Queen’s Bench who was initially assigned to thewithin Crown motion and who also felt it was correct to ask a member of the Court of Appeal to deal with the matter), the Chief Justiceof Alberta was asked to designate a member of the Court of Appeal to hear the Crown’s motion.

That is why I am dealing with it. [17] Nonetheless, in doing so, I am still acting as an ex officio member of the Court of Queen’s Bench of Alberta, which is part ofthe judicial architecture in Alberta. Accordingly, any ruling that I make would seem, to me at least, to be subject to appeal under theJudicature Act to the Court of Appeal. II Broader Context of the Proceedings [18] There is no need to discuss initiative jurisdiction of the Court of Queen’s Bench in the present context.

It is not necessary to beelaborate about the ability of courts under s 96 of the Constitution Act, 1867 to adopt policies or practices, including those manifested inspecific directions affecting the management of court business, whether in the administration or justice generally, or affecting someaspect of public law or private law. Although the applicant’s ‘originating notice’ asserts the illegality of “ultra vires” against thedirection, there is no such problem in this case.

Within the territorial jurisdiction of the Court, the Court of Queen’s Bench as a superiorcourt under s 96 of the Constitution Act, 1867, possesses “constant, concurrent and complete” jurisdiction to perform both its inherentand its statutory functions, and all necessarily incidental authority pertaining thereto is also possessed. The Court in exercise of thisjurisdiction may err in law, and consequently act unlawfully, but where the jurisdiction is apparent from the outset, there is no questionof ultra vires.

For similar (indeed allied) reasons, there is no question of certiorari being available against this direction of the ChiefJustice: this is discussed more below. [19] Nonetheless, the applicant is not out of bounds to argue that, under the Rule of Law, the legality of even a businessmanagement direction by a Chief Justice of a superior trial court under s 96 – to the extent that it directly affects the legal right of anyperson to have access to the Court -- would be justiciable by means of a motion for a declaration in the same Court.

As McLachlin J (asshe then was albeit dissenting) succinctly put it: “The Charter belongs to the people. All law and law-makers that touch the people mustconform to it.” See Martin v Nova Scotia (WCB), 2003 SCC 54, per Gonthier J at para 29, [2003] 2 SCR 504, approving that aspect ofher dissent in Cooper v Canada (HRC), (SCC), [1996] 3 SCR 854 at para 70. [20] Bringing a motion for a declaration is an available method despite the fact that the only court to which the motion for a

declaration could be presented is the same court that promulgated the rule in the first place: see BCGEU v BC, (SCC), [1988] 2 SCR 214, 44 CCC 3rd 289 where the initial challenge to the direction of then Chief Justice MacEachern of the British ColumbiaSupreme Court was taken to him.

Only a s 96 Court has the authority to make general declarations of legality: see Alberta Union ofProvincial Employees v Alberta, 2014 ABCA 43, 566 AR 380, reconsideration refused 2014 ABCA 197, 575 AR 338, under motion [2014] SCCA 387 (QL); see also R v Lloyd, 2014 BCCA 224, 12 CR 7th 190 under motion [2014] SCCA 304 (QL); see also Martin,para 31, re-affirmed (albeit on the corollary point about tribunal legal jurisdiction) in Okwuobi v Québec, 2005 SCC 16 at paras 28 to37, [2005] 1 SCR 257. [21] In this respect, an analogy to the ‘rule of necessity’ comes into play when a challenge is made to a court about the legality ofsomething the Court itself did: see Reference re Remuneration of Judges of the Provincial Court), (SCC), [1998] 1SCR 3, at para 5, reaching back to a case decided in 1430 “in which it was held that the judges of the Common Pleas were notdisqualified from judging an action against all of them, because there was no other court in which the case could be brought: Year Book,8 Hen 6, 19b; 2 Rolle’s Abridgment (1668), at p 93.” The Supreme Court in that Judge’s Reference noted authority in England,Australia, Canada and the United States affirming that rule. [22] Strictly speaking, however, this rule does not need to be applied here.

That is because it was entirely open to any member ofthe Court of Queen’s Bench to entertain the applicant’s application for a declaration. The fact that the application sought to challenge thisdirection by the same Court’s Chief Justice (or former Chief Justice) would not be disqualifying of a judge of the same Court to considerthe application. I need say nothing about an application for a declaration against a formally promulgated Rule of the Court which raisesother considerations. Nor is this present situation one that raises concepts of res judicata or abuse of process.

For what it is worth,though, I do not discern any basis of disqualification of a judge of the Court because, after all, someone has to decide and the judges canbe expected to abide their responsibilities. [23] One case that has some comparable characteristics to the present one is the case of Société Radio-Canada v Québec, 2011SCC 2 at paras 58 to 63, [2011] 1 SCR 19 where rules of practice as to media and public conduct within court buildings were altered tofurther restrict what was happening there and “to provide an ordered environment so as to ensure the serenity of judicial proceedings”.The rules of practice were evidently created in a process involving representatives of both the judiciary and executive as well as otherinput (although it is not entirely obvious how much consultation was involved). [24] That case proceeded through the Quebec courts before it got to the Supreme Court.

No one suggested it should not proceed inthat manner. In the end, the Supreme Court found that the rule content was “prescribed by law” for the purposes of s 1 of the Charter,such as to limit media and expressive freedom under s 2(

b) of the Charter. In the end, the Supreme Court there concluded: 98 Freedom of the press and the fair administration of justice are essential to the proper functioning of a democratic society and mustbe harmonized with one another. Each one is just as vital as the other. Freedom of the press cannot foster self-fulfilment, democraticdiscourse and truth finding if it has a negative impact on the fair administration of justice. In the instant case, the government has takenaction to reconcile those two values.

Since no right is absolute, this reconciliation must be accepted. [25] As mentioned above, it is contended by the applicant that the direction impugned in the present case adversely, andunlawfully, affected both access to justice under the Criminal Code and the liberty of the applicant as reflected in several provisions ofthe Charter. This is an important issue. The applicant’s position is not banal.

Access to justice has been recently explained (if not re-positioned) at an untouchable Constitutional level in Trial Lawyers Association of British Columbia v Attorney General of British Columbia, 2014 SCC 59 at paras 24 to 43, (2014) 375 DLR (4th) 599. [26] It is argued by the applicant that the direction improperly impeded in a legally cognizable manner the exercise of liberty-related legal rights by the applicant.

It is surmised by the applicant that the same direction probably adversely affected the similarliberty-based legal rights of untold other individuals during the operational period of this direction, which appears to be a period ofalmost a decade, until the direction was rescinded earlier in 2014 as mentioned. [27] Before addressing the Crown’s motion for dismissal on the grounds of mootness squarely, it is necessary to more clearlysituate the applicant’s motion as it presently exists and in light of the procedural history. This follows.

III Specific Context of the Mootness Motion [28] Counsel for the applicant, counsel for the Attorney General of Alberta, standing in for the former Chief Justice and for theClerk of that Court, and counsel for Her Majesty the Queen in right of Alberta efficiently addressed this motion and the relevantcontextual circumstances seem to be largely in agreement. [29] The relevant circumstances appear to have commenced with a letter dated May 28, 2004, signed by the then Chief CrownProsecutor for Edmonton and addressed to the then Supervisor of the Criminal and Jury

Section of the office of the Clerk of the Courtsetting out an understanding that “Bail applications will not be scheduled in the Court of Queen’s Bench for persons with outstandingwarrants.” The letter refers to other alleged understandings but only the paragraph including the foregoing words was approved by ahandwritten endorsement by the then Chief Justice which appears to have been ascribed to the letter on March 23, 2006 as “Approved”. [30] The supervisor’s affidavit refers to a follow up document entitled “Bail Review Application Procedures – Effective June 1,2004” which instructed the desk clerks that defence counsel could set dates for hearings by “call in or apply at the counter”.

Thescheduling forms must, however, be completed with the information required. The Procedures include the requirement that the matter notbe set down for hearing if there are “outstanding warrants in Alberta”. There were other elements not in issue here. Checking forwarrants was to be done by the desk clerks via the Information System the Court used called “JOIN”. [31] The specific arrangement under consideration here appears to have been a step in an evolution of the “bail review” process

which had been described in an announcement called a “Notice to All Members of the Bar” made by the former Chief Justice dated February 5, 2004. While that February 5, 2004 announcement did not specifically mention the impugned management direction here, the announcement shows that the Court was seeking to establish an efficient system conducive to access, particularly by reduction of the “collapse” rate of motions set for hearing. Forms for bail review applications were proposed.

The need of the Court to set a manageable list for each judge, to avoid wasting of time and resources of counsel and the Court, and to address priorities in processing of the case load goes without saying. [ 32 ] As with the way of all flesh, those forms came to be revised. Another such Notice dated November 9, 2004 was issued by the Chief Justice.

The affidavit of the supervisor also indicates that the Chief Crown Prosecutor told her on June 23, 2004, that the Chief Justice had agreed that “bail reviews were not to be set for people with outstanding arrest warrants”. [ 33 ] On February 3, 2006, the applicant was granted judicial interim release by a Justice of the Court of Queen’s Bench in Edmonton. On March 21, 2006, counsel for the applicant filed an application for review of that order at Edmonton.

After checking the JOIN system, the desk clerk took the application off of the hearing list because she determined that there was a warrant for a fine of $150 from a traffic matter in Calgary. As noted above, that fine was paid and the warrant discharged on March 30, 2006. [ 34 ] In the meantime, then counsel for the applicant had written to the Chief Justice asking why the application was taken off the list.

The Chief Justice wrote back as follows by letter dated March 23, 2006: This is to confirm that I approved a directive that if counsel came to the Clerk’s Office to make an application for bail review or to vary the terms of release and if there was at that time an outstanding warrant on the record, that counsel was to first deal with the Crown and make arrangements to deal with the outstanding warrant at the same time that the application was scheduled to come before our Court.

This was an administrative decision and it prevents the situation of the person being immediately re-arrested upon the application being heard by the Court if the outstanding warrant was not to be addressed at the same time. If there are no outstanding warrants, the clerk might be approached for a hearing date in the usual manner. If there are outstanding warrants, counsel are to first make arrangements with the Crown and then come before the clerk for a hearing date.

I believe these are the instructions given to you when you approached the clerk in this matter. [ 35 ] This letter sets out the rationale and scope of the pre-condition for getting onto the ‘bail review’ hearing list than, for example, what the Chief Crown Prosecutor of the day may have said to the court office supervisor. What the Chief Crown Prosecutor may have thought, of course, is neither here nor there.

Certainly there is no reason not to take the letter of the former Chief Justice as other than accurately expressing the intent and scope of his direction: compare R v O’Brien , 2011 SCC 29 at para 18 , [2011] 2 SCR 485. [ 36 ] On April 5, 2006, the conditions of the judicial interim release order of the applicant were adjusted by consent order of a judge of the Court.

On or around April 6, 2006, an effort was commenced in the Court of Queen’s Bench to attack the direction, but, as noted above, the judge who then addressed the matter found procedural defect and stayed that first foray with leave to the applicant to file his originating notice of motion. [ 37 ] In support of his new application, the applicant’s counsel also filed an affidavit of a legal assistant indicating that a bail review motion was faxed on June 27, 2007 and returned with a notation that a warrant was outstanding.

The affidavit went on to say that the legal assistant was told by a desk clerk that the matter would remain on the hearing list and Crown counsel would decide then whether to proceed with the matter anyway despite that fact. The desk clerk was reported to have told the legal assistant that “the only time that the Clerk takes it off the list is when the client is not in custody”. [ 38 ] Crown Counsel advises that on January 23, 2014, in unrelated proceedings, the issue as to the propriety of the direction was brought to the attention of the current Associate Chief Justice by a different defence counsel.

Having looked into the matter, the Associate Chief Justice communicated with representatives of the Federal and Provincial Crown, and the Criminal Trial Lawyers’ Association, asking whether there was good reason to maintain the policy.

On February 13, 2014, the Associate Chief Justice wrote to the heads of prosecution offices and to the President of the Criminal Trial Lawyers Association to advise that in response to a meeting conducted on February 12, 2014: As a result of that discussion and a review of the matter, please be advised that henceforth the fact that an accused person in custody may have outstanding warrants other than for which s/he is being detained, will not be a basis for a refusal to

schedule a bail review application under s. 520 of the Criminal Code . While the fact that there are outstanding warrants may be relevant to the determination on such a hearing, it will not be a bar to setting the hearing. The consequences that flow from or after the decision on any such bail review will be what they are. [Emphasis in letter] [ 39 ] It is noteworthy that the letter of February 13, 2014, only refers to applications by people in custody. It therefore did not, at least expressly, address the situation such as that which the applicant found himself in, nor did it expressly address the

interpretation said to have been suggested by a desk clerk in late June, 2007. In so saying, I hasten to add that I am not suggesting that the Associate Chief Justice intended to leave that aspect of the direction as to non-custodial cases in place. On the face of that letter alone, it is not possible to say.

However, the Associate Chief Justice has written again since: see below. [ 40 ] As it happens, following February, 2014, request of counsel to the Registrar of the Court of Appeal for the selection of a Justice of the Court of Appeal to deal with the Crown’s motion, the Associate Chief Justice wrote an additional letter to counsel for the applicant dated March 25, 2014, that read as follows:

I write because, as I will explain below, I believe this issue has become moot for two reasons: (1) the bail review of the subject accused, Mr. Larouche (and two others mentioned since) was (were) dealt with at the time on the merits, notwithstanding the application to him (them) of the directive discussed below; and (2) more importantly, independent of (and without me recalling) this litigation, the directive was reversed by me effective February 13, 2014. In the intervening 15 months from December 2012 to March 11, 2014, I had, as noted, forgot about the matter and it had not been brought to my attention.

Coincidentally, the same issue was raised with me by Mr. Fix, on behalf of an accused, on January 23, 2014. In response to the issue, I wrote to the Provincial and Federal Crowns, and the President of the Criminal Trial Lawyers Association on February 10, 2014 (copy attached). Subsequently there was a meeting with those representatives and others on February 10, 2014, and I wrote to all on February 13, 2014 (copy attached), confirming that the directive had been discontinued by me effective February 13, 2014.

During this time, as I said, I had not recalled this litigation, nor did anyone mention it to me, nor did I raise it with Ms. Lowe, and thus in the result, the decision to suspend the directive was made independent of consideration of the litigation. I leave it for you and Mr. Hurlburt to discuss and to proceed as you may be instructed. From the point of view of our Court, no further action is required and the action could be discontinued. [ 41 ] Before me, the Crown counsel adds and counsel for the applicant does not dispute that following the letters of the Associate Chief Justice, the court criminal

section office does not apply the direction to any applicant for bail review, whether in or out of custody. [ 42 ] The language of the March, 2014, letter of the Associate Chief Justice also sheds light on the rationale for asking a member of the Court of Appeal to at least address the question of mootness. No member of the Court of Queen’s Bench would be bound by the opinion of the Associate Chief Justice on the topic of mootness. All of them could be expected to act appropriately. None of them would have had to recuse on this basis.

Nevertheless, counsel evidently felt the appearance of justice would be better served by having a judge of the Court of Appeal step in and at least the first judge on the recent mootness motion was inclined to agree. By comparison, the transcript of the appearance before the judge on April 7, 2006, shows that, albeit in obiter , he was of a mind that at least some of the matter was not moot. In the face of this history, I can understand why a call was made to the bullpen. [ 43 ] This brings me back to the originating notice of motion.

It set out the following requests for remedy: An Order for judicial review in the nature of certiorari, quashing the directive of the Respondent Chief Justice of the Court of Queen’s Bench that accused persons are not permitted to make applications for review of judicial interim release orders if they have outstanding warrants; A declaration that the said directive and refusal of the Clerk to set such applications down for hearing is ultra vires and in breach of s. 520 of the Criminal Code of Canada and ss. 7, 9, 15 and 11(

e) of the Charter of Rights and Freedoms, and that, in this case, a declaration pursuant to s. 24(1) that the Applicant’s rights were so violated. ..... [ 44 ] During the hearing of the argument on mootness, I asked if any counsel would object to my subdividing the topics raised in the notice of motion for the purposes of assessment of whether the mootness answer should terminate the whole or any part of the application. Counsel did not express any objection. Following that course, I now turn to the subject of mootness and to the related topic of discretion.

IV Mootness and Discretion Is the Application Moot? [ 45 ] The answer is yes. The issues of “ultra vires” and the remedy of “certiorari” are certainly moot because there is nothing left to quash or to declare void. The reality is that neither of those contentions had any merit in the first place for reasons adverted to above. There is no need to be ornate about this. The subject of “ultra vires” is narrowly interpreted even for tribunals where it still exists as a topic of legality: see eg Imperial Oil Ltd v Calgary (City) , 2014 ABCA 231 at para 28 , 374 DLR (4 th ) 489.

But for s 96 courts, certiorari and the rightly hallowed ‘great writ’ of habeas corpus simply do not lie against any exercise of judicial power (including necessarily incidental administrative judicial power) by a s 96 judge or court.

Those prerogative writs (and their modern judicial review classification) are immanent powers of s 96 courts and have been for the ancestors of s 96 courts for centuries. [ 46 ] As for the declaration remedy aspects, the Crown essentially offered several overlapping reasons to have the application of the applicant found to be moot and not a proper subject of discretion to entertain it: (1) the legality of the direction does not require assessment, because no such direction exists any longer; (2) there are no other forms of practical remedy that were or are sought by the applicant and none were or are available to the applicant individually; (3) a declaration of legality has no utility as a matter of social policy as it is not likely to recur at all let alone in a form to which the declaration could be usefully applied in future and (4) the impact of the direction upon the applicant, even if the topic generally raises significant Charter interests, is not significant enough to justify entertaining the matter. [ 47 ] The substratum of principles shared by the doctrine of mootness and the doctrine of standing include the “natural reluctance on the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between parties, not academic or hypothetical questions.”: see Robinson v Western Australian Museum , (1977) 138 CLR 283 at 327 ; [1977] HCA 46; see also Kuczborski v Queensland , [2014] HCA 46; Director- General Department of Home Affairs v Mukhamadiva , [2013] ZACC 47; United States v Windsor , 570 US (2013).

In other words, there is a judicial wisdom involved in choosing not to adjudicate where, in effect, the

party seeking the opinion of the Court has nothing directly at stake in the answer, even as to future behaviour by that person. [48] For Canadian law, a helpful

summary of mootness appears in the text of Prof. Hogg, Constitutional Law of Canada, [Toronto:Carswell, 2009] at pp 59-17 to 59-18 where the learned author writes: A case is “moot” when there is no longer any dispute between the parties. Mootness is like an absence of standing in that the court isbeing invited to rule on an issue that has no direct impact on the parties to the proceedings ..... A case becomes moot when the repeal of astatute, the expiry of a lease, the death of a party, the settlement of the dispute, or some other new circumstance, resolves the dispute ormakes it irrelevant.

Normally, of course, the parties to litigation will not wish to proceed after their case has become moot. If they do, it will usually bebecause they perceive that some principle is at stake, although the mundane question of who is to be responsible for costs is for someparties a sufficient incentive. If the parties do wish to proceed with the litigation, should they be permitted to do so?

The general rule isno: a court should not decide a case that has become moot. [49] A party’s purely subjective belief that what happened to him in the past provides a compelling “principle at stake” to goforward with the case cannot be decisive for mootness any more than it can be for standing: compare Downtown Eastside Sex Workers vCanada, 2012 SCC 45 at paras 1 to 2, 22, [2012] 2 SCR 524. [50] In this respect, one can also conceive of situations where a non-moot matter is “marginal or redundant” to use languagementioned in Downtown Eastside.

Despite the triviality, a party may wish to press that matter forward with a view to actually pursuingextensions or lines of legality inquiry that are moot or abstract. This is not to impugn the motives of the applicant here as purelystrategic, namely using the alleged Charter breach as a ‘hook’ to attack the ability of the Chief Justice of the Court of Queen’s Bench tomake case flow management or other administrative decisions without consultation.

Even if that were so, it is not for me to say themotive is unholy. [51] But where the remedy sought is declaratory, it often has the essential nature of being abstract to begin with.

The sort ofjudicial self-discipline referred to in the mootness authorities is also reflected in the existence of discretion not to make a declarationabout the legality of a past event which is clearly unlikely to recur, or which is a matter of such low significance that even if it does occurthat investment in judicial resources to develop an answer to the issue would be inconsistent with the practical as well as foundationalrole of the courts to declare what the law is in a way that is useful and not spurious. [52] In other words, the basis for a remedy of a declaration may be “moot” even if a private law remedy, howsoever modest andbased on the same circumstances, would not be.

That is because, while a private law claimant may be entitled to press forward with aminor claim before a competent court, a claimant who is venturing into the field of public law declarations before a s 96 court should beable to show that the public law aspects of the matter are not academic and are important enough to necessitate a judicial declaratoryanswer. [53] That sort of non-moot point is not escalated to significance merely by the colouration of the debate. There needs to be featuresof the potential debate which give the point some gravity.

The lack of such features may be because the question is premature or becauseit is finished with. Consequently, even if a non-moot point can be linked in logical terms to legal issues of moment, but those legal issuesof moment are themselves unmoored from the case, mootness doctrine can apply to the entire composite. [54] Put another way, it is not the role of courts to provide advisory opinions about prospective but purely inchoate legaldevelopment possibilities.

Nor is it the role of the courts to provide a form of adjudicative solace to assuage a sense of grievance,howsoever burning, of litigants over trivial inconveniences in their interactions with legal institutions. As Lamer CJC observed in adifferent context in Delgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010 at para 186: “Let us face it, we areall here to stay.” It is the ordinary lot of mankind to be bumped in the jostling of life.

So the fact that the applicant may have personallysuffered some form of a set-back in his attempt to process a motion to adjust the terms of the judicial interim release order does not itself,according to the respondents, provide any reasonable basis for not declaring his applications moot. [55] For his part, counsel for the applicant asserts firmly that his proceeding is not moot, and that his claim of injury to his legalrights remains unchanged.

In his submission, the rescinding decision by the Associate Chief Justice does not revise history, particularlythe applicant’s personal history, any more than a claim against the state vanishes because the legal situation has changed or its legalfoundation has, in a sense, disappeared. He says that there remains a significant public interest in addressing the legality of the directionbecause the rescission of the direction cannot bind the future.

In other words, he says that the decision to rescind is evidence of howevasive of review the question of legality could be in such cases. [56] In this respect, one might compare, albeit acknowledging important differences in the comparator, the situation in Hislop vCanada, 2007 SCC 10 at para 76, [2007] 1 SCR 429, a case where an estate sought to continue a s 15 of the Charter claim by thedeceased claimant, even though, in law, a deceased person had no equality or dignity rights at stake in any decision: “Although s 15(1) rights are personal, the constitutional issues raised here are issues of public importance.

Given the public interest inensuring that questions of law related to such rights be correctly decided, an appeal from a judgment raising such issues must be allowedto survive the party's death pending the appeal.” [57] But in Hislop there was a real and substantial question of law and it affected others. The applicant says that the fact that he isnot seeking, as part of his position, any claim for an individual remedy such as damages under public or private law, does not mean hehas no valid basis to seek a declaration. He says that his rights were violated and that the courts should say so.

He does not accept thatthe impact upon him is of such a minor effect not merely for him personally but for the public interest generally that it renders hisapplication a Quixotic private reference into an abstract question or questions.

[58] The fact that the case raises interesting legal points cannot itself justify the Court looking into and making declarations aboutthe broad questions of legality, including Constitutional legality, that are asserted by the applicant. The reality is that none of thecircumstances here provide a compelling practical nexus either to current reality or to real prospects of future effects such as to makethem anything but moot for those purposes. It is not just that the matter is premature, as adverted to in cases such as Phillips v NovaScotia, [1995 ] (SCC), 2 SCR 97 at paras 118 to 123.

It is also that the instructive nature of such a declaration would bespeculative for the future. It is not possible to readily predict a situation, let alone a regularly occurring situation arising that is evasive ofreview, for which a present declaration of legality would help to ensure the Chief Justice does not go astray. This case is not as clear asG(

J) v New Brunswick, (SCC), [1999] 3 SCR 46 at paras 41 to 49 where the absence of a tangible case of present rightdid not mean there was not a pressing and substantial legal concern that needed to be addressed. Nor is it like Trial Lawyers (BC), 2014SCC 59. [59] In this case, on this record, the sole utility of a declaration would be in characterizing the legality of past events and how theytouched legal rights of the applicant then.

The question whether the Court should exercise its discretion to so legally characterize pastevents despite mootness becomes the crucial point, and, as indicated above, will be assessed topic by topic below. [60] In doing so, I acknowledge that declaratory relief to characterize past events is a legitimate, if discretionary, remedy in its ownright even if it has no present cash value to the litigant. That is so provided a statement of legality characterizing what happened to theparty is of a matter of genuine and significant public interest and not just something individual to the party.

The exercise of discretion toconsider such a declaratory remedy clearly exists: see Haig v The Queen, (SCC), [1993] 2 SCR 995 at para 130;Ravndahl v Saskatchewan, 2009 SCC 7, [2009] 1 SCR 181; Manitoba Metis Federation Inc v Canada, 2013 SCC 14, [2013] 1 SCR623. [61] But it should not be forgotten by the Court that there are hazards associated with giving opinions unmoored from any recordto which future cases could be compared. The incremental evolution of the common law is very much done by comparing prior caseswith present ones. It is ordinarily the province of legislators to state law by category

definitions, or, in other words, stating law in ageneralized structural manner with no need to build it on a pattern of decisions from the past. That is why one of the principles both ofmootness and of standing is recognition of the limits of the law making function of the Court. [62] This reference brings the reasoning back the Rule of Law. The law making function of the Court is most controversial when itis seen to be intrusive into the proper law making function of the legislative branch of government.

But insofar as what the courtsthemselves do, and particularly s 96 courts, the courts themselves have a unique legitimacy in declaring whether what they didconformed to the law.

There is considerable force in the applicant’s position that where the Court itself, or in this case where the ChiefJustice of the Court, is said to have acted unlawfully, it is important for the Court not to be seen to shirk its duty to conform to legality, orto use mootness as a means to evade finding fault with itself. [63] As compared with situations where judicial restraint would be understood by the enlightened citizenry when it relates tojudicial irradiation of laws otherwise duly enacted by Parliament, or relates to actions of Ministers of the Crown, the same enlightenedcitizenry might react with skepticism about the Court if there were a flagrant illegality in the past in something the Court did, and theCourt failed to own up to it and used mootness as the bar.

This point of judicial responsibility is a factor in the exercise of discretion, inmy view, and therefore I consider it as to each of the topics mentioned in the applicant’s originating notice, quoted above. Should I Exercise Discretion to Hear Any of the Application? [64] Inasmuch as I have covered the topics of certiorari and ultra vires above, I will not repeat myself. Suffice it to say that thosetopics are moot, and are not such as to warrant a hearing. I must mention in passing, so the reader does not think it has been overlooked, s 32(1) of the Charter.

In light of R v Mian, 2014 SCC 54, 13 CR 7th 1, it does not appear to be open to me to express any opinion as towhether that provision would be relevant to consideration of the legality of judicial action, particularly this impugned direction, upon anyof the rights actually identified by the applicant. In light of the important function of s 32 as part of the remedial framework I shouldrefrain from any further commentary. [65] Further, it is important to bear in mind that I have not heard any submissions from any counsel as to the substance of any ofthe alleged Charter breaches.

The basis for consideration of them here is solely focused on whether the framework of the application issuch as to answer the motion to declare the application moot and induce discretionary hearing. As pointed out in Mian, a party is to beexpected to advance jurisdictional arguments without prompting. And in reply to a motion for

summary judgment, a non-moving partymust make the best of what the record offers, or must supplement the record. Here, the applicant appears to have made the best of whathe can about the circumstances. No fault finding there. So I turn to each point. [66] The applicant’s motion for a declaration raises s 9 of the Charter dealing with arbitrary detention. The applicant was notdetained in the sense defined by case law as to s 9 of the Charter. Moreover, there is nothing in this record that speaks to arbitrariness asthat topic is involving in the modern law.

As noted in R v Vuozzo, 2013 ABCA 130, at para 544 AR 271, leave denied [2013] SCCA No314 (QL): 29 The terms "arbitrary" and "detention" each involve legal concepts. As to what is "arbitrary", McLachlin CJC observed in Canada(Attorney General) v. PHS Community Services Society, 2011 SCC 44 at para 132, [2011] 3 SCR 134 that the concept of arbitrariness -albeit in the context of principles of fundamental justice under s. 7 of the Charter - was not settled. One line of reasoning linkedarbitrariness to state agent action "unnecessary" to the law.

Another line of reasoning had it that arbitrariness arose when "[a] deprivationof a right ... bears no relation to, or is inconsistent with, the state interest that lies behind the legislation": see Chaoulli v. Quebec(Attorney General), 2005 SCC 35 at para 232, [2005] 1 SCR 791. (The latter approach seems favoured in Canada (Attorney General) v.Bedford, 2012 ONCA 186 at paras 145-147, 109 OR (3d) 1, leave to appeal to SCC granted, [2012] SCCA No 159 (QL)).

30 In our view, it is helpful here to view arbitrariness in terms of what "bears no relation to, or is inconsistent with" the law which founds the state action, whether that be statute or common law. That brings up for consideration the law's objectives, which looks at the scope of police authority to interact with the individual in the first place: see e.g.

PHS Community at para 129. [ 67 ] While Vuozzo was talking about ‘state action’, and the action here is by a Chief Justice, it may be appropriate to consider the legality of the direction from the perspective whether what he did “bears no relation to, or is inconsistent with” the law on which it is based. I am not in a position to decide whether the direction was arbitrary by that standard. On the other hand, it is hard to envision what evidence would shed light on it. It is true that, for the test of arbitrariness, the applicant impugns the process by which the direction came into being.

The applicant notes that the impetus for the direction appears to have come from the Chief Crown Prosecutor in a ‘pre- consultative’ manner. Whether or not that was the main prompt, the fact remains that the reasons of the former Chief Justice state the rationale for his direction. There is simply not a suitable framework for an adjudication on whether the direction infringed the rights of the applicant under s 9. Accordingly, I am not persuaded that I should exercise discretion to hear argument on this topic. [ 68 ] The applicant also refers to s 15 of the Charter .

There was little said about this in the hearing or written material. This is unsurprising. I am not persuaded that there is a record upon which a useful discussion can be had on whether the applicant fell into an enumerated or analogous ground under s 15 of the Charter , or whether there was any stereotyping or other ill motives or effects involved in the direction. The record is a void on this. Accordingly, I am not persuaded that I should exercise discretion to hear argument on this topic. [ 69 ] The applicant also refers to s 11(

e) of the Charter . As to the latter, it is an interesting question, not to mention a profoundly important one, whether the right to “reasonable bail” under s 11(

e) of the Charter embraces not merely the alternative between detention on the one hand and “bail” on the other, but also includes the types of conditions which vary the level of liberty that the individual may have even if not actually in custody. This goes to questions about what may be properly annexed to a “bail” order: compare R v Shoker , 2006 SCC 44 , [2006] 2 SCR 399. This case also arguably goes to what sort of processes should exist for the achievement of hearings as to “bail” and the carrying out of “bail” orders when made.

Obviously Court resources are not infinite and a Chief Justice has to organize affairs somehow. That said, a veritable garden of interesting, if entirely potential, questions can be seen here. The difficulty is that none of them have any real root in the soil of the case. As much as I might personally like to embrace the horticultural challenge involved, I am not persuaded that I should exercise discretion to hear argument on this topic. [ 70 ] Finally there is s 7 of the Charter .

The applicant seems to me to be on solid ground to submit that his right to liberty is at least arguably engaged when one is dealing with his right to access judicial remedy of limitations on his liberty. But as earlier set out in these reasons, the foothold is not even the entire question of what rights a person not in actual custody may have to promptly access a court (without infinite resources) to rectify some element of his release terms. It is even more narrowly focused than that since it goes to timing primarily.

An applicant could well miss a cut off time, or the list may be full, or there may be a shortage of judges or court rooms, or any number of factors may be involved in contributing to the development of a priority like the one evidently chosen by the former Chief Justice. Moreover, the Charter debate largely turns on whether any breach of s 7 conforms with the principles of fundamental justice. [ 71 ] On this topic of principles of fundamental justice, the position of the applicant is not outside the range of reasonable inquiry.

The manner in which this direction was promulgated, how it was publicized, and the ambiguities of its meaning and application are the types of questions that a “principles of fundamental justice” discussion might engage. I hasten to emphasize that, by saying this, I am not asserting a position, nor for that matter seeking to limit the scope of what might be talked about. [ 72 ] Plainly, the course of the Court of Queen’s Bench in developing case management and processes for the administration of criminal justice is a challenging one.

The Court must ensure the processes actually work fairly as well as conform with the law. For instance, giving priority to cases of people in custody over cases of condition variances does not seem irrational. The tradition of the Court appears to be to consult as best as the Court can (which is difficult with an amorphous and changing cadre of Crown counsel and defence counsel as well as other potential ‘stakeholders’). The situation in Société Radio-Canada , 2011 SCC 2 is an example of one way to address a major development.

Not every tweak of the administration of justice, however, requires the same level of scrutiny or consultation. It may in some cases be both sufficient and fair to effect the change and wait for reaction. [ 73 ] That said, the record of circumstances here simply do not provide a sufficient framework to make any orderly and useful assessment of such extremely important topics. A fortiori is that so after so many years. In the end, after anxious consideration of the utility of an inquiry into this, I am not persuaded that I should exercise discretion to hear argument on this topic.

V Conclusion [ 74 ] The application of the applicant is moot in all its particulars. I am not persuaded that the Court should embark onto an inquiry and assessment of any of them as a matter of discretion. The originating application of the applicant is dismissed. Heard on the 12 th day of November, 2014. Dated at the City of Edmonton, Alberta this 12th day of January, 2015.

Justice of the Court of Queen’s Bench (ex officio) Appearances: T. Engel for the Applicant T. Hurlburt, Q.C. / R. J. Normey for the Respondents _______________________________________________________ Corrigendum of the Reasons for Judgment on Motion to Dismiss for Mootness of The Honourable Mr. Justice J. Watson _______________________________________________________ On the first page of the judgment, the citation has been corrected to read Larouche v Court of Queen’s Bench of Alberta, 2015 ABQB 25.