Van Vlymen v. Canada (Solicitor General)

Van Vlymen v. Canada (Solicitor General)
Court (s) Database
Federal Court Decisions
Date
2004-08-03
Neutral citation
2004 FC 1054
File numbers
T-211-00
Notes
Reported Decision
Decision Content
Date: 20040803
Docket: T-211-00
Citation: 2004 FC 1054
Ottawa, Ontario, this 3rd day of August, 2004
Present: The Honourable Justice James Russell
BETWEEN:
DAVID CLARE VAN VLYMEN
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
NATURE OF APPLICATION
[1] This is an application for judicial review of the significant delay by the Respondent in making a decision pursuant to s. 6 of the Transfer of Offenders Act, R.S.C. 1985, c. T-15 ("Act") and Regulations approving the transfer of the Applicant from the USA to Canada. The Applicant has, in fact, been transferred to Canada pursuant to a decision of the Respondent dated March 1, 2000. However, the Applicant has continued with this application because of the lengthy delay between the Applicant's request for transfer and the Respondent's decision to approve it.
BACKGROUND
[2] In July of 1986, having been charged in Ontario with the offences of robbery, unlawful confinement, assault causing bodily harm and sexual assault, the Applicant successfully eluded Canadian law enforcement officials by fleeing to the United States of America. While in that country, he was apprehended, charged, convicted, and sentenced on October 14 and November 18, 1987, to 55 years in prison for bank robbery and bank robbery by use of a dangerous weapon.
[3] In a letter dated January 11, 1991 to Serge Boudreau, Manager, International Transfers, Correctional Services of Canada, the Respondent was advised that the Applicant's Transfer Application to allow him to serve the remainder of his sentence in Canada had been approved by the U.S. Department of Justice. A long and voluminous correspondence then took place between the Applicant and Correctional Services Canada.
[4] It was not until February 3, 2000 that the Applicant filed an application for judicial review of the Respondent's conduct. Soon after the application was filed, the Respondent approved the Transfer Application so that the Applicant could return to Canada to serve out his sentence.
[5] Mr. Boudreau advised the U.S. Department of Justice of the Respondent's approval of the Transfer Application on March 1, 2000.
[6] The Applicant was then transferred back to Canada.
[7] On March 17, 2000, the Respondent brought a motion to have this application for judicial review dismissed on the basis that the matter was moot because the Applicant has been transferred back to Canada.
[8] In Reasons for Judgment dated May 3, 2000, Prothonotary Hargrave found that the matter was indeed moot, but he allowed the application for judicial review to proceed because "there remain substantial issues, and an adversarial climate in which to resolve those issues, the resolution of which will affect or which may affect the rights of the Plaintiff (sic)" and which "if left unresolved, may well have broader ramifications which will affect others."
[9] The Applicant requested disclosure under Rule 317 of the Federal Court Rules, 1998, and by Order of Mr. Justice Blanchard dated January 23, 2001, the Respondent was required to forward to the Registry all relevant materials in his possession that he relied upon in "considering, studying, and reviewing as well as reprocessing the applicant's case pursuant to its jurisdiction under the Transfer of Offenders Act and Regulations thereof."
[10] On November 7, 2003, pursuant to a status review and by decision of Mr. Justice Blanchard, the Court permitted the matter to continue.
ISSUES
[11] The Applicant raises the following issues:
Does the Applicant as a Canadian citizen have the constitutional right, by virtue of s. 6 (1) of the Canadian Charter of Rights and Freedoms, to enter Canada or does the Respondent, Solicitor General of Canada, have the right to deny or refuse him such entry?
Is the Respondent Minister obliged and under a legal duty to approve an application for transfer pursuant to s. 6 of the Transfer of Offenders Act if an applicant is a Canadian citizen and therefore in compliance with regulation 4(a) of the Transfer of Offender Act Regulations?
Are the Transfer of Offenders Act Regulations 4(b) - (f) unconstitutional as being inconsistent with s. 6(1) of the Canadian Charter of Rights and Freedoms and as such of no force and affect by virtue of s. 52 of the Canadian Charter of Rights and Freedoms?
Have the Applicant's constitutional rights pursuant to s.6 of the Canadian Charter of Rights and Freedom been violated by the Respondent since approximately January of 1991 and, if so, what is the appropriate and just remedy pursuant to s. 24(1) of the Charter in the circumstances?
Did the Respondent Minister fail to comply with s. 7 of the Canadian Charter of Rights and Freedoms and the common law duty to act fairly in processing the Applicant's Transfer Application for transfer back to Canada?
Should the Respondent Minister be required, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, to provide full disclosure of all the information, studies and other materials considered by the Respondent in relation to the Applicant's Transfer Application, including any denial of his Transfer Application and the basis for any such denial?
Is the Applicant entitled to reimbursement for all his costs and expenses and legal fees in pursuing his constitutional rights?
Is the Applicant entitled to special costs in all of the circumstances?
ARGUMENTS
Applicant
Does the Applicant as a Canadian citizen have the constitutional right, by virtue of s. 6 (1) of the Canadian Charter of Rights and Freedoms, to enter Canada or does the Respondent, Solicitor General of Canada, have the right to deny or refuse him such entry?
[12] Section 6 of the Charter appears under the heading "Mobility Rights" and the subheading "Mobility of Citizens". It provides in s. 6 (1) as follows:
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
6. (1) Tout citoyen canadien a le droit de demeurer au Canada, d'y entrer ou d'en sortir.
[13] The Supreme Court of Canada in its unanimous decision in Reference Re: Secession of Quebec, [1998] 2 S.C.R. 217 has said the interpretation of the Charter requires a "structural approach":
50. Our Constitution has an internal architecture that the majority of this Court in O.P.S.E.U. v. Ontario (Attorney General), [1987] 2 S.C.R. 2 at p.57, called a "basic constitutional structure." The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole.
[14] The structure of the Charter itself is a powerful interpretive tool because it represents the articulation of the underlying values of Canadian society. An examination of the Mobility Rights set out in s. 6 of the Charter in the context of the overall structure of the Charter is important in this case as regards the degree of deference that should be given to the government position under s. 1 of the Charter on the issue of whether the Regulations pursuant to the Transfer of Offenders Act constitute a reasonable limitation on the Mobility Rights in the Charter. The Applicant submits that the isolation of s. 6 from the "notwithstanding clause" in s. 33 demonstrates that any breach of s. 6 must be subject to a very high degree of judicial scrutiny under s. 1 of the Charter. Government interference with individual rights that are reasonable in one context may not be reasonable in the context of s. 6. Further, the specific use of the word "citizen" in s. 6 of the Charter provides strong support for the proposition that it is unconstitutional to deny any citizen, even a bad citizen, his or her constitutional Mobility Rights (See for example Sauve v. Canada (Chief Electoral Officer), 2002 SCC 68 per McLachlin C.J. at paras. 34 - 37)).
[15] Section 33 of the Charter only applies to s. 2 and ss. 7-15 and is not applicable to s. 6. Consequently, the Applicant argues that it is simply not possible for the federal or any provincial government to suspend the Mobility Rights of Canadian citizens.
[16] Further, the Applicant says that s. 6 Mobility Rights apply only to "citizens." A focus on the importance of citizenship is also grounded on a structural approach to Charter interpretation. Most Charter rights are held by "everyone" or "any person." The right to enter Canada in s. 6 is only accorded to "every citizen of Canada." Only s. 3 of the Charter (which gives a citizen a right to vote) and s. 23 (which protects minority language education rights) are held by "citizens." In Singh vs. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 (SCC), the Supreme Court of Canada held that a person was entitled to a right held by "everyone" merely by virtue of their physical presence within Canadian territory, even if they had entered the country illegally. A Canadian citizen, however, has a special status conferred by ss. 3, 6 and 23 of the Charter; a status that is not enjoyed by foreigners or permanent residents. A Canadian citizen who becomes a prisoner does not lose his or her citizenship because of his or her conviction or sentence.
[17] In Chiarelli v. Canada (Minister of Employment and Immigration) (1992), 90 D.L.R. (4th) 289 at 303-4, the Supreme Court held that non-citizens only have qualified rights and that, as regards Charter rights, there is a clear distinction between a citizen and non-citizen. Citizenship is a purely statutory creation governed by the Citizenship Act, R.S.C. 1985, c. C-29 . A person is either born into citizenship or acquires it by meeting the conditions set out in that Act. There is no "common law" or Charter concept of citizenship. The distinction between citizens and non-citizens is the constitutional source for the government's authority to deport illegal immigrants, permanent residents and other non-citizens. The courts have refused to extend the definition of citizenship beyond that contained in the Citizenship Act. In Solis v. Canada, (1998) 147 F.T.R. 272 at 279-80 (F.C.T.D.), a landed immigrant facing deportation argued an entitlement to s. 6 Mobility Rights. The Court rejected the argument holding that citizenship has always been a statutory matter and that to attempt to give any meaning to the word "citizen" outside of the definition in the Citizenship Act would render it meaningless.
[18] The Applicant says that, while the relevant minister may relax certain requirements in an application for citizenship on compassionate or other grounds, only the discovery of fraud in such an application can result in the loss of citizenship status. Once citizenship exists by birth, or has been officially acquired in accordance with the Citizenship Act, it cannot be lost or taken away. It is enjoyed thereafter as an essentially static concept. Canadian citizenship acquired by birth is not based on any personal characteristic. Once lawfully acquired, by birth or otherwise, it is not subject to deprivation on any ground, let alone on the basis of a personal characteristic such as bad conduct. Citizenship is strictly a consequence of the statutory definition in the Citizenship Act.
[19] In Lavoie v. Canada (1999), 174 D.L.R. (4th) 588 (F.C.A) the Federal Court of Appeal addressed the distinction between the rights, duties, responsibilities and interests of citizens and those of permanent residents in the context of s. 15 of the Charter. According to Marceau J. A. at p. 588, the Canadian constitution "recognizes the concept of citizenship as lying at the very foundation of the national political community." Marceau J. found, at p. 589, that citizenship is "universally held within a democratic context to be of value to both the citizen and the state, and inherently distinctive based as it is on the idea that certain rights, privileges, and obligations will be ascribed exclusively to citizens as attributes of their status." Desjardins J. A. agreed that the notion of citizenship depends on political entitlement. She specifically noted the link between the concept of citizenship and the Charter and how the Charter embodies a number of important rights to which only citizens are entitled. She also noted the corresponding responsibilities that attach to citizenship (Lavoie, supra, affirmed by S.C.C. in Lavoie v. Canada (2001), 210 D.L.R. (4th) 193 per Marceau J. A. at p. 604 and 608; per Desjardins J. A. at p. 614, 616-619, 621).
[20] Currently, the Citizenship Act does not allow for the revocation of citizenship once obtained, except if acquired on the basis of fraud. Neither the simple conviction for a criminal offence, the imposition of a federal sentence, or simply being a "bad citizen," can result in the loss of citizenship. While a person seeking to obtain citizenship may be denied such status on grounds relating to bad character, once citizenship status has been acquired such conduct becomes irrelevant to their status as "citizen." The revocation of citizenship for bad conduct would render the person "stateless" and amount to a serious breach of international law. Nationality of citizenship defines one as a legal person. It is the primary link between an individual and international law and creates an identity that can be supported by diplomatic protection. It is "the right, in fact, to have rights." According to the Convention of Stateless Persons, 360 U.N.T.S. 117, Article 1, a person is stateless if they are "not considered as a national by any state under the operation of its law" (Carol Batchelor, "Statelessness and the problem of Resolving Nationality Status," (1998) 10 Int'l Journal of Refugee Law 156 at 159.
[21] Canada is a signatory to the International Convention on the Reduction of Statelessness and has been since 1978. The Convention provides a few narrow circumstances in which citizenship can be revoked. Article 8 of the Convention arguably provides a basis for the removal of the citizenship of a prisoner. However, it requires the contracting state to reserve that right at the time of accession. Canada did not enter such a reservation at the time of accession to the Convention. Current scholarship on "statelessness" suggests that citizenship is a legitimate, albeit fledgling human right, and that its deprivation as a result of the imposition of a sentence, would not likely pass the developing international standards on "statelessness" (Chan J.M.M., "The Right to a Nationality as a Human Right: the Current Trend Towards Recognition", (1991)12 Human Rights Law Journal 1 at p.8).
[22] In United States of America v. Cotroni et al (1989), 48 C.C.C. (3d) 193(S.C.C.) La Forest J., for the Supreme Court of Canada, in the context of extradition, commented as follows at pp. 211-212 on the relationship between citizenship and country:
In approaching the matter, I begin by observing that a constitution must be approached from a broad perspective. In particular, this Court has on several occasions underlined that the rights under the Charter must be interpreted generously so as to fulfill its purpose of securing for the individual the full benefit of the Charter's protection: see the remarks of Dickson C.J.C. in Hunter v. Southam Inc. 14 C.C.C. (3d) 97 at pp. 105-6, 11 D.L.R. (4th) 641, [1984] 2 SCR 145 (SCC); R. v. Big M Drug Mart Ltd. (1985), 18 C.C.C. 93d) 985 at pp. 423-4, 18 D.L.R. 94th) 321, [1985] 1 S.C.R. 295 (SCC). The intimate relationship between a citizen and his country invites this approach in this context. The right to remain in one's country is of such a character that if it is to be interfered with, such interference must be justified as being required to meet a reasonable state purpose.
[23] La Forest J. then went on to consider the Canadian Bill of Rights, R.S.C. 1970, App. III that protects a person from exile in s. 2(a), and the European Convention on Human Rights, 4th Protocol, Article 3, para. 1 to the same effect, and Article 12 of the International Covenant on Political Rights as well as the 4th Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (1971). He then concluded as follows:
Like the international and constitutional documents I have referred to, the central thrust of s. 6 (1) is against exile and banishment, the purpose of which is the exclusion of membership in the national community.
...
An accused may return to Canada following his trial and acquittal or, if he has been convicted, after he has served his sentence. The impact of extradition on the rights of a citizen to remain in Canada appears to me to be of secondary importance. In fact, so far as Canada and the United States are concerned, a person convicted may, in some case, be permitted to serve his sentence in Canada... .
USA v. Cotroni et al, supra, per La Forest J. at pp.212-213
See also United States v. Burns 2001 SCC 7 at paras. 39 - 49.
[24] In view of the above, the Applicant submits that, as a Canadian citizen, he had a constitutional right to enter Canada by virtue of s. 6(1) of the Charter and that, once approved by the United States of America pursuant to the relevant treaties, and in compliance with the Transfer of Offenders Act, his constitutional right to enter Canada should have been effected promptly, and he should have been given the opportunity to return to Canada at the next available reasonable time. He says that the failure of the Respondent to allow his return violated his constitutional right to enter Canada by returning from the USA pursuant to the Treaty and the Transfer of Offenders Act.
Is the Respondent Minister obliged and under a legal duty to approve an application for transfer pursuant to s. 6 of the Transfer of Offenders Act if the Applicant is a Canadian citizen and therefore in compliance with regulation 4(a) of the Transfer of Offender Act Regulations?
[25] The Applicant argues that, for the reasons given above, the Respondent Minister, the Solicitor General of Canada, had a legal duty to approve the Applicant's transfer back to Canada subject only to confirmation of his being a Canadian citizen. Because of the Applicant's citizenship status, the Respondent was bound to approve his application and had a legal duty to approve the transfer. While the Respondent ultimately approved the transfer he did so within the framework of the former Transfer of Offender Regulations and has not admitted that the only question was the Applicant's Canadian citizenship. In fact, the second page of exhibit "U", to the affidavit of Meherun Kassam, the document approving the Applicant's transfer, contains a checklist indicating that the Minister took into account the other factors set out in the Regulations and not just the Applicant's Canadian citizenship. In light of s. 6 of the Charter it should be declared that the Respondent was under a legal duty to approve the Applicant's transfer subject only to his establishing or verifying his citizenship status and that other extraneous considerations were irrelevant.
Are the Transfer of Offenders Act Regulations 4(b) - (f) unconstitutional as being inconsistent with s. 6(1) of the Canadian Charter of Rights and Freedoms and as such of no force and affect by virtue of s. 52 of the Canadian Charter of Rights and Freedoms?
[26] The Transfer of Offenders Regulations in effect at the material time, in s. 4(b) - (f), required the Respondent Minister to take into account factors other than the Applicant's Canadian citizenship. The Applicant argues that, to the extent that these sub paragraphs purported to allow the Minister not to approve an application for transfer by a Canadian citizen, they were inconsistent with s. 6(1) of the Charter and, by virtue of s. 52, were of no force and effect.
[27] The Applicant asks the Court to declare that the Transfer of Offenders Act Regulations paras. 4(b) - (f) were unconstitutional as being inconsistent with s. 6(1) of the Charter and of no force and effect by virtue of s. 52 of the Charter.
Were the Applicant's Constitutional Rights pursuant to s.6 of the Canadian Charter of Rights and Freedom violated by the Respondent since approximately January of 1991 and, if so, what is the appropriate and just remedy pursuant to s. 24(1) of the Charter in the circumstances?
[28] The Applicant argues that his constitutional rights pursuant to s.6 of the Charter were clearly violated by the Respondent since approximately January of 1991 by the application, or purported application, of the Transfer of Offenders Act Regulations to him and by the entire process that the Respondent (and others with whom the Respondent secretly conspired) used to defeat his constitutional rights. In the result, the Applicant says that he was subjected to the following:
a. He was denied his constitutional right, as a Canadian citizen, to enter Canada in accordance with s.6 of the Charter;
b. He was denied a transfer and his constitutional right on an improper basis, namely unconstitutional regulations purporting to limit s. 6 of the Charter and on the basis of a charge for which he had not been tried or convicted, which was a basis for his return to Canada by way of extradition and not as a basis for preventing his return to his country of origin;
c. Instead of implementing the rule of law, the Solicitor-General at the time capitulated to the emotional claims of an alleged victim and supporters and the improper interference of the provincial crown as basis to refuse the transfer;
d. The Applicant was lied to and misled as well as misinformed, and was not told of denials and the basis for them, nor what was really going on in relation to his application;
e. Reprehensible conduct on the part of the government authorities and representatives who persisted in a course of deceptive action, knowing of the existence of the Applicants rights pursuant to the Charter, and, yet without due regard for them and by considering improper factors to the Applicants prejudice.
[29] The Applicant says that the Respondent Minister recognized his wrongdoing in relation to the Applicant and that is why he immediately effected the transfer back as soon as the Applicant filed this judicial review application. The initial remedy sought by the Applicant when he was still incarcerated in the USA has been accomplished. However, the disclosure, through the Rule 317 documents, of what in fact transpired in relation to the Applicant's case discloses a lengthy and improper denial of his constitutional rights over a 10 year period that resulted in the Applicant being held in the USA for that time instead of being allowed to return to Canada. During that delay the Applicant's mother, who was in ill health to the knowledge of the authorities, died. The conduct of the authorities in the circumstances was reprehensible to say the least, and the Applicant says he should be provided with a commensurate appropriate and just remedy.
[30] The Applicant says that, in all of the circumstances, the Court should consider any one or more of the following proposed remedies as being appropriate and just pursuant to s. 24(1)of the Charter:
a. Setting aside the Applicant's convictions for all chargers prosecuted in Sarnia, Ontario since his return to Canada on the basis that there was an unreasonable delay in the prosecution of those charges caused by the victim, her supporters, the Provincial Crown and the Federal Crown and that therefore the Applicant was not tried within a reasonable time for those offences, contrary to section 11(b) of the Charter;
b. Awarding the Applicant special costs or costs on a solicitor/client basis due to the reprehensible conduct of the authorities both before and during these proceedings as set out in more detail below;
c. Reducing the Applicant's sentence by at least the 10 years of delay he suffered while being held in the USA contrary to his Charter rights;
e. Converting this part of the Applicant's claims to an action for damages pursuant to section 18.4(2) of the Federal Court Act.
Did the Respondent Minister fail to comply with s. 7 of the Canadian Charter of Rights and Freedoms and the common law duty to act fairly in processing the Applicant's application for transfer back to Canada?
[31] The Applicant says that the Respondent, and particularly the Minister through his subordinates, and more particularly the representatives of the International Transfer Unit of the Correctional Service of Canada, clearly failed to tell the Applicant the case against him and, in the result, he never received a fair opportunity to respond to that case. The duty to act fairly is the minimal requirement for procedural fairness and as such amounts to a violation of s. 7 of the Charter in that the Applicant's liberty and the security of his person were adversely affected in a manner that was not in accordance with the principles of fundamental justice. (Martineau v. Inmate Disciplinary Board, Matsqui Institution, [1979] 50 C.C.C. (2d) 353 (S.C.C.); National Parole Board et al. v. Mooring, [1996] 104 C.C.C. (3d) 97 (S.C.C.)).
[32] The Applicant submits that, as early as the spring of 1991, the Respondent made a decision to keep from him the source of the pressure being applied to deny his transfer. The existence of a petition from Christine Strangway and others opposing his transfer was not disclosed to the Applicant until he undertook these proceedings. Nor was the fact that the record of outstanding Canadian charges had been removed from the Canadian Police Information Computer for a period of time, and that the basis for the opposition was an allegation of a crime for which he had not then been tried, let alone convicted. The authorities were alive to the fact that the denial of transfer, while in the discretion of the Minister, could still be challenged under the Charter. Indeed, the Minister even referred to the Charter and the Charter obligations of the Canadian government when opposing the transfer in or about November of 1991. It appears that the Minister's mind was clearly made up by December 1991. In conjunction with the Deputy Solicitor General, it was decided to rely on Regulation 4(b) to suggest that the Applicant's return would outrage public sensibilities. This was done without telling him that such public sensibilities had arisen through the Crown (Ontario) and victims' groups and other citizens, based on an allegation of an outstanding offence in Canada for which he had yet to be tried and for which they knew they could extradite him back to Canada. They also knew that such an allegation was not a valid basis to deny a transfer back to Canada. In other words, they never told the Applicant what was really going on.
[33] Furthermore, when representatives of the International Transfer Unit advised the Applicant that the Minister was considering denying his application under regulation 4 (b) of the Transfer of Offenders Act Regulations and invited him to make a submission to the Minister to comply with the duty to act fairly, the Applicant was still not told the case against him, namely the basis for the opposition, so as to enable him to fairly respond within the 60 days given to him. It appears that the Applicant and others were told that his application was with the Minister when, in fact, the Minister had already decided against him.
[34] Because the Applicant was not told what was really going on in terms of the case against him, but was told that the Minister was considering denying his application, he asked for some time to rectify certain aspects of his charge and sentence, with the hope that this might cause the Minister to look at his Transfer Application more favourably. He says that, if he had been told what was really going on, he would have addressed the real issues specifically, and would have realized what the real problem was. This process continued between 1991 until at least mid-1994 when the Applicant was told that his application was being reprocessed because it was so old.
[35] The Applicant feels that the Rule 317 documents reveal that, by July 12, 1994 the Applicant had, in fact, been denied on two previous occasions and had never been told the reasons for the denials. It was only because of the persistence of the Applicant and others on his behalf that the authorities were forced to keep dealing with this matter. Nevertheless, the authorities re-contacted the Crown in Sarnia, Ontario, and the Applicant continued to press his case, and specifically involved the services of Beth Parkinson, a paralegal with Prisoners Legal Services, who then sought, but to no avail, full disclosure of the case against the Applicant in order that she might assist him in responding to the case against him. While Mr. Boudreau was well aware of the Charter issues, and had in fact raised the Charter on behalf of the Applicant in his communications with the Sarnia police, he nevertheless led Beth Parkinson to believe that the delay was due to the Applicant, and then proceeded to use the Privacy Act as a stalling tactic to further delay the Transfer Application into 1996. After Ms. Parkinson gave up, the Applicant persisted, but again was led to believe by Mr. Boudreau that it was the Applicant's requests that caused the delays. The authorities never disclosed to him the real basis for the delays and non-disclosure.
[36] The Applicant says that it is apparent from his further correspondence with both federal and provincial government authorities that he still believed he could be extradited for the outstanding allegation in Sarnia, or transferred under the relevant treaty. He did not know the details of what had been transpiring between the authorities and that, in fact, it was the Sarnia Crown and others along with Mr. Boudreau's office and the Minister's office who had been doing and saying things to each other (without the Applicant's knowledge) that affected his transfer and that led him to believe that the delay was due to other factors. There had by this time been a 7 year delay since he had first applied and obtained US approval for a transfer. All efforts by the Applicant and others on his behalf were met with responses that they were either waiting for further information from the Applicant, or that another study was being done of his case because of how old it was, or that a decision was imminent and was being given "utmost consideration" and that he should "rest assured."
[37] The delays and obfuscation continued from 1998 until February, 2000 when this application for judicial review was filed and served. On March 1, 2000, the Applicant was finally told that his request for transfer had been approved by Canada. This occurred approximately 10 years after US approval was given. None of the provisions in the Regulations that were previously indicated as a basis for denial were relied upon by the authorities as a basis for refusal of his transfer. The Applicant finally became aware of what had been going on when he received the Rule 317 documents in these proceedings. However, notwithstanding the Order of this Court of January 23, 2001, requiring disclosure of all relevant material, even those documents contain portions that have been blanked out and disclosure precluded. No notice of objection or any claim of privilege has been filed or claimed to justify this continuing non-disclosure.
Should the Respondent Minister be required, pursuant to s. 24(1) of the Charter, to provide full disclosure of all the information, studies and other materials considered by the Respondent in relation to the Applicant's application, including any denials of his application and the basis for such denial?
[38] The Applicant assumes, subject to the continuing non-disclosure indicated above, that the Respondent has otherwise complied with this Court's order of January 23, 2001. The Applicant submits that, in the absence of a valid claim of privilege or other basis for continuing non disclosure, the Court should order the Respondent to complete the disclosure and should order the Respondent to provide the specific documents and reasons for the earlier denials of his transfer application.
Is the Applicant entitled to reimbursement for all his costs and expenses and legal fees in pursuing his constitutional rights and/or is the Applicant entitled to special costs or costs on a solicitor and client basis, in all of the circumstances?
[39] The discretion to award costs in this Court is set out in Rule 400 and, in particular, according to the factors set out in Rule 400(3). Solicitor-client costs come under Rule 400(6)(c). The Applicant submits that the Court, in assessing costs in these proceedings, should take into account not only the result of the proceeding (400(3)(a)), the importance and complexity of the proceeding (400(3)(c)),the amount of work(400(3)(g)), and the public interest in having this proceeding litigated (400(3)(h)) but also, as a further relevant factor(400(3)(o)) and as a basis for solicitor-client costs(400(6)(c)), the reprehensible conduct of the Respondent throughout in dealing with the Applicant's transfer application over the ten year period and, in effect, denying to him his constitutional right to return to Canada under s.6 of the Charter with full knowledge that this was being done without any valid basis. The Applicant was compelled to bring these proceedings and thereby incur costs and expenses to effect his transfer back to Canada in accordance with his Charter rights. The Respondent tried to not only have the rest of his claims dismissed as moot, never having tried to defend or explain the previous reprehensible conduct, but also tried to prevent the Applicant from finding out what, in fact, had transpired in relation to his Transfer Application by not complying with the Rule 317 request until ordered to do so, and by asserting that these documents were irrelevant and unnecessary to the remaining claims. Even then the Respondent continued to withhold certain information from the Court and the Applicant without any application to do so and without providing any formal basis for so doing.
[40] The Applicant submits that special costs, or costs on a solicitor/client basis, should be ordered where a party has acted reprehensibly. Reprehensible conduct includes conduct which is "milder" than conduct which could be described as scandalous or outrageous. It is conduct that is simply deserving of reproof or rebuke. Such costs are meant to show the court's disapproval of reprehensible conduct (Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740 (B.C.C.A.) at p.747, para b.; Fullerton v. Matsqui (1992), 74 B.C.L.R.(2d) 311 (B.C.C.A.) para 23; Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2S.C.R. 817 (S.C.C.); Amway Corp. v. The Queen, [1986] 2 C.T.C. 339 (F.C.A)).
[41] The Applicant also submits that, where an allegation is made that conduct should attract special costs or costs on its solicitor/client basis, the Court must "...consider all evidence that might cast light on the character of the ... conduct" of the party against whom the special costs order is claimed. Conduct which might attract an order for special costs can be conduct "...either in the circumstances giving rise to the cause of action, or in the proceedings" in which the special costs claim is made (Bank of Credit & Commerce International (Overseas) Ltd. (Liquidator of) v. Akbar 2001 BCCA 204, para 23; Stiles v. Workers' Compensation Board of British Columbia (1989), 38 B.C. L.R. (2d) 307 (B.C.C.A.) at 311; Koehlerv. Warkworth Institution (1991), 45 F.T.R. 87 (F.C.T.D.)).
[42] In addition, the Applicant says that special costs may be ordered for "...reprehensible conduct giving rise to the litigation, particularly where the fruits of the litigation do not provide an appropriate compensation in relation to the reprehensible conduct." (Sun Life Assurance Company of Canada v. Ritchie (BCCA) 2000 BCCA 231 at para 54 [leave to appeal refused: [2000] S.C.C.A.247]).
Respondent
The Issues
[43] The Respondent submits that the real points in issue on this review are as follows:
(a) Whether the Court should hear this application,
(i) irrespective of its mootness:
(ii) in the absence of a meaningful factual context in which to assess the constitutionality of the legislation at issue; and
(iii) in the face of proposed legislation that will repeal the legislation at issue in this proceeding.
(b) Whether the mere existence of sections 4(b) to 4(f) of the Transfer of Offenders Regulations SOR 79-171 (the "Regulations") contravenes section 6 of the Charter;
(c) In the event that the Court answers point (b) in the affirmative, whether such contravention is justified pursuant to section 1 of the Charter;
(d) Whether section 7 of the Charter is invoked in the circumstances of this case;
(e) In the event that the Court answers point (d) in the affirmative, whether the Applicant was denied fundamental justice in contravention of section 7; and
(f) In the event that the court answers point (e) in the affirmative, whether the denial was justified pursuant to section 1 of the Charter.
Mootness
[44] The Supreme Court of Canada, in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, stated the principles relating to mootness and the process to be followed when a court considers such an application. Essentially, if there is no live controversy, no adversarial relationship between the parties and no issue capable of judicial resolution, the Court may exercise its inherent jurisdiction and decline to hear the matter on the basis that it is moot. It is true that the Court retains a discretion to hear matters irrespective of their mootness. However, in exercising that discretion the Court is compelled to consider the factors of judicial economy, the lack of an adversarial relationship and whether such a review would be a departure from the traditional adjudicative role of the Court. In this case, all of these factors weigh against the Court permitting this matter to continue. As the Supreme Court of Canada stated at p. 353 of Borowski:
15. 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 proceedings, 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. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
16. The approach in recent cases involves a two-step analysis. 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. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test