ATTORNEY GENERAL OF CANADA Appellant v. BENOÎT DESROSIERS, 2021 FCA 203

Date: 20211020 Docket: A-93-20 Citation: 2021 FCA 203 [ENGLISH TRANSLATION] CORAM: GAUTHIER J.A. LOCKE J.A. LEBLANC J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Appellant and BENOÎT DESROSIERS Respondent Heard by online videoconference organized by the registry on October 20, 2021. Judgment delivered from the bench at Ottawa, Ontario, on October 20, 2021. REASONS FOR JUDGMENT OF THE COURT BY: LOCKE J.A. Date: 20211020 Docket: A-93-20 Citation: 2021 FCA 203 CORAM: GAUTHIER J.A. LOCKE J.A. LEBLANC J.A.

BETWEEN: ATTORNEY GENERAL OF CANADA Appellant and BENOÎT DESROSIERS Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Ottawa, Ontario, on October 20, 2021.) LOCKE J.A. [ 1 ] The appellant acknowledges that this appeal is moot. The decision under appeal quashed the decision that established the escape risk rating of the respondent, an inmate who is serving a life sentence, as " “moderate.” " The respondent’s escape risk has since been reassessed as " “low.” " [ 2 ] The appellant is asking this Court to exercise its discretion to hear this appeal despite its mootness.

In this respect, the appellant submits the following: A . The respondent’s grievance against a previous decision by the Warden of Archambault Institution (Julie Cobb) was allowed in part

(with respect to the escape risk) by the Assistant Commissioner, Policy, of the Correctional Service of Canada (Larry Motiuk). Mr.Motiuk’s decision ordered that a memorandum in which the respondent’s escape risk is reassessed be prepared and placed in therespondent’s file; B. This memorandum was prepared, and the respondent’s escape risk rating was reassessed as "“moderate.”" That same day, Ms.Cobb approved that reassessment; C. The respondent did not file any grievance against that second decision by Ms. Cobb; D. The notice of application filed with the Federal Court in this case against Mr.

Motiuk’s decision made no mention of thememorandum or of Ms. Cobb’s second decision; E. The Federal Court decided to consider the memorandum to be part of Mr. Motiuk’s decision and found that the memorandum (i)does not correct the error that he identified, and (ii) renders Mr. Motiuk’s decision unreasonable; F. The Federal Court erred in its decision. It should have limited its analysis to Mr. Motiuk’s decision and not considered thememorandum because the respondent could have filed another grievance against Ms. Cobb’s second decision approving thereassessment in the memorandum.

The respondent therefore did not exhaust his administrative remedies set out in the Correctionsand Conditional Release Regulations, S.O.R./92-620 (the Regulations); G. The Federal Court’s decision [translation] "“has a direct impact on the respect, predictability and proper functioning of theadministrative review process in place and could be transferable to other federal administrative schemes that include an analogousgrievance procedure”"; and H.

In the circumstances described above, he never had the opportunity to make the arguments described in points F and G before theFederal Court because the validity of Ms. Cobb’s second decision was not at issue. [3] The tests relevant to this Court’s exercise of discretion to hear an appeal are discussed in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at 358 to 363 (Borowski). These tests are: (

i) an adversarial relationship, (ii) judicialeconomy, and (iii) the Court’s proper law-making function. It is not necessary for all of the tests to be met. [4] The first test is not met. No adversarial relationship exists, and the respondent did not even appear. [5] As for the second test, it is relevant to consider whether the special circumstances of the case make it worthwhile to apply scarcejudicial resources to resolve a moot case. In our view, that test is not met in this case. [6] A decision by this Court will have no practical effect on the rights of the parties.

Furthermore, although the facts can often changequickly in correctional matters, we are not satisfied that this Court must examine the decision under appeal despite the mootness of thiscase.

In this respect, I note, as counsel for the appellant noted herself at the hearing, the doubly moot nature of this case given that thedecision in which the respondent’s escape risk was reassessed as "“low”" was rendered well before the Federal Court made its decisionin this case. [7] As counsel acknowledged, this case would very likely not be before this Court if that information had been brought to the FederalCourt’s attention, as it should have been.

As the Supreme Court reiterated in Borowski, the mere fact that a case raising the same point islikely to recur, even frequently, should not by itself be a reason for hearing an appeal if the underlying matter has become moot and ithas not been shown that the point the appellant wishes to submit to the Court will have always disappeared before it is ultimatelyresolved. [8] In light of all these circumstances, it is preferable to decide this issue in an adversarial context.

Moreover, the appellant did notconvince us that this issue is of such importance that it is in the public interest to decide it now, despite the mootness of the case. Inshort, the appellant did not convince us that this issue is likely to evade judicial review. The fact that a similar issue may arise underanother federal administrative scheme, as the appellant acknowledges, reinforces that conclusion. [9] The third test is in the appellant’s favour because a decision by this Court in this case is not likely to intrude into the role of thelegislative branch.

However, because the other tests are not in the appellant’s favour, we are of the view that the circumstances do notwarrant hearing this appeal. [10] Despite that conclusion, we want to note that we do not agree with paragraph 23 of the Federal Court’s decision, in which theFederal Court found that the memorandum subsequent to Mr. Motiuk’s decision should be considered to be part of that decision. [11] For these reasons, we will dismiss this appeal without costs. “George R. Locke” J.A. Certified true translation Melissa Paquette, Jurilinguist FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-93-20 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. BENOÎT DESROSIERS PLACE OF HEARING: BY ONLINE VIDEOCONFERENCE DATE OF HEARING: October 20, 2021 REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. LOCKE J.A. LEBLANC J.A. DELIVERED FROM THE BENCH BY: LOCKE J.A. APPEARANCES: Virginie Harvey Amélia Couture For the appellant SOLICITORS OF RECORD: A. François Daigle Deputy Attorney General of Canada For the appellant