Federal Court of Appeal Dismisses Appeal for Mootness

Date: 20260707 Docket: A-56-25 Citation: 2026 FCA 127 CORAM: [NAME]. [NAME] J.A. [NAME]. BETWEEN: [NAME] Appellant and THE [NAME] OF CANADA Respondent Heard at Vancouver, British Columbia, on May 26, 2026. Judgment delivered at Ottawa, Ontario, on July 7, 2026.

REASONS FOR

JUDGMENT BY: [NAME]. CONCURRED IN BY: [NAME]. [NAME] J.A. Date: 20260707 Docket: A-56-25 Citation: 2026 FCA 127 CORAM: [NAME]. [NAME] J.A. [NAME]. BETWEEN: [NAME] Appellant and THE [NAME] OF CANADA Respondent

REASONS FOR

JUDGMENT OF THE [NAME].

I. Overview [ 1 ] This is an appeal of a decision of the Federal Court dated January 17, 2025 ( [NAME] v. Canada ([NAME]) 2025 FC 99 per Whyte Nowak J.), which dismissed an application for judicial review of a decision of the [NAME] – Appeal Division (Appeal Division) maintaining the continued detention of the appellant, [NAME]. This appeal raises issues relating to the meaning of the term “recalculation” and when the recalculation of statutory release dates under paragraph 129(3)(b) and subsection 129(3.1) of the Corrections and Conditional Release Act , S.C. 1992, c. 20 ( Act ) occurs, as well as whether the documentary disclosure obligations of the [NAME] (Board) to an offender under subsection 141(1) of the Act extend to the person assisting the offender during a detention hearing when that person is also the offender’s legal counsel. [ 2 ] However, the parties agree that the issues raised in this appeal became moot when [NAME] completed his sentence on February 16, 2025. As I have not been persuaded that this Court should exercise its discretion in accordance with the principles established by the Supreme Court in [NAME] v. Canada ([NAME]) , 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 ( [NAME] ) to nonetheless hear the present appeal despite its mootness, I would dismiss the appeal.

II. Background [ 3 ] [NAME] had been serving a sentence of 5 years, 5 months, and 20 days for various offences including aggravated assault since August 28, 2019. In December 2022, he was convicted of second-degree murder, bringing with it an indeterminate sentence. When the Court of Appeal for Saskatchewan quashed [NAME]’s second-degree murder conviction on Thursday, September 14, 2023 and ordered a new trial, Correctional Service Canada (Service) recalculated his new eligibility dates and confirmed them to [NAME] on Friday, September 15, 2023; in particular, [NAME]’s statutory release date reverted to April 22, 2023—a date which had by then passed—and his warrant expiry date to February 16, 2025. [ 4 ] As a result of the change in [NAME]’s statutory release date due to the recalculation, and believing on reasonable grounds that [NAME] was likely, before the expiration of his sentence, to commit an offence causing death or serious harm to another person, the Acting Senior Deputy Commissioner of the Service (Commissioner) referred [NAME]’s case to the Chairperson of the Board (Chairperson) on Tuesday, September 19, 2023 for detention review in accordance with paragraph 129(3)(b) of the Act (referral for detention). As [NAME]’s statutory release date had by then passed, subsection 129(3.1) of the Act required that the referral be made within two working days after the recalculation under paragraph 129(3)(b). In fact, the Commissioner’s Directive 712-2, at paragraph 45, provides that where as a result of a recalculation of sentence, the statutory release date has passed, jurisdiction for a detention referral will be lost, resulting in an inability to refer an offender for detention, if, amongst other reasons, the referral to the Board is not submitted within two working days after recalculation. [ 5 ] [NAME] did not seek judicial review of the referral for detention. He would however eventually argue before the Board and the Appeal Division that recalculation under paragraph 129(3)(b) and subsection 129(3.1) of the Act took place on Thursday, September 14, 2023, as a function of what [NAME] characterizes as the change in sentence resulting from the Court of Appeal for Saskatchewan’s decision quashing his second-degree murder conviction. Thus, [NAME] contends that by the following Tuesday, the Commissioner had lost jurisdiction to refer the matter to the Chairperson; as a result, the referral for detention was invalid and the Board was without jurisdiction to conduct the detention hearing. [ 6 ] An interim hearing of the Board was held on September 22, 2023, during which the Board ordered a regular detention hearing (detention hearing) and for [NAME] to remain in custody pending his detention review. Subject to the limitation imposed by subsection 140(4) of the Act , subsection 140(7) of the Act allows for an offender to be assisted by a person of his choice during a hearing at which the offender is present. Prior to his detention hearing before the Board, [NAME] retained a lawyer to act as his hearing assistant. [NAME]’s hearing assistant sought disclosure from the Service of the material that accompanied the referral for detention sent to the Chairperson (disclosure material). Subsection 141(1) of the Act provides that at least fifteen days prior to a detention hearing, the Board shall provide or cause to be provided to the offender , in writing, the information that is to be considered in the review of the case or a summary of that information. The Service refused to provide the disclosure material directly to [NAME]’s hearing assistant, taking the position that disclosure would be provided directly to [NAME], who would then be charged $1 per page by the Service, as part of its administrative process, to fax the pages [NAME] selected to be sent to his hearing assistant (disclosure process). [NAME] argued that this process compelled him to assess the relevance of the documents given the significant financial cost imposed by the Service, to decide which documents to have sent to his hearing assistant. [ 7 ] Unable to obtain the disclosure material directly from the Service during October and early November, except through the prescribed disclosure process, [NAME]’s hearing assistant wrote to the Board on November 6, 2023 (November 6, 2023 letter), arguing that the Service’s disclosure process hindered his ability to provide [NAME] with adequate legal advice in advance of the hearing, and compromised [NAME]’s rights to procedural fairness and to legal counsel under section 7 of the Charter . The hearing assistant requested that the Board intervene and direct the Service to provide his office with a copy of the material that was before the Board. In response, the Board explained that the Service conducts the disclosure requirements under the Act on behalf of the Board, and that consequently, [NAME]’s hearing assistant was encouraged to address the matter directly with the Service. [ 8 ] The dispute over the Board’s disclosure obligations led to [NAME]’s detention hearing being postponed, eventually taking place on December 20, 2023. During oral submissions before this Court, [NAME] conceded that the disclosure obligations of the Board towards him under subsection 141(1) of the Act were fulfilled prior to his detention hearing. However he argues that such disclosure was hindered by the “roadblock” of the fax charges, which he claims violated principles of fundamental justice and his right to counsel.

Accordingly, [NAME] contends that the obligation of disclosure under subsection 141(1) of the Act should extend to his hearing assistant when that individual is also his legal counsel, and that a failure to do so constitutes a breach of his right to procedural fairness and right to counsel under the Charter . [ 9 ] I should note that the fax charges, totalling over $175 and debited from [NAME]’s account, were eventually reimbursed to him in late November or December 2023, following his complaint against the Service in relation thereto. [NAME] accepted during questioning by the Court that once reimbursement was made and the “roadblock” removed, he could have requested that full disclosure materials be sent to his hearing assistant. However, as his counsel pointed out, it is unclear from the evidence whether [NAME] was aware of this option prior to the detention hearing. There is also nothing in the record regarding the nature or manner in which the disclosure process was undertaken by the Service other than [NAME] saying that he was being charged a $1 per page fax charge and that at some point in late November or early December 2023 the charges were reimbursed. [ 10 ] Thus, the two issues at the core of this appeal, when it was instituted, were whether the Board had the jurisdiction to conduct the detention hearing within the time limit specified in subsection 129(3.1) of the Act (the jurisdiction issue) and whether [NAME]’s right to disclosure under section 141(1) of the Act extends to his hearing assistant when that individual is also acting as his legal counsel (the disclosure issue). [ 11 ] The record includes an audio recording of the detention hearing before the Board held on December 20, 2023, which confirms that the hearing assistant raised the jurisdiction issue during his oral submissions before the Board—what he referred to as a fundamental jurisdictional issue—but that he did not raise the disclosure issue, either as a matter of procedural fairness or as a breach of [NAME]’s right to counsel under section 7 of the Charter . On December 28, 2023, the Board rendered its decision (the Board’s decision), determining that [NAME] continued to pose a risk to the community if released and ordering that he be held in confinement until the expiration of his sentence or until the Board directs otherwise. Regarding the jurisdiction issue, the Board determined that recalculation took place on Friday, September 15, 2023.

Accordingly, the referral for detention made on Tuesday, September 19, 2023 was timely, and the Board possessed the necessary jurisdiction to proceed with the detention hearing. Although the Board acknowledged in its reasons the letter of November 6, 2023, in which the disclosure issue was raised by [NAME] in the context of seeking the Board’s intervention with the Service, it did not address the disclosure issue in its decision. [ 12 ] On appeal of the Board’s decision, although [NAME] did not raise the disclosure issue during his oral submissions to the Board, he raised it in his written submissions to the Appeal Division. Relying on the November 6, 2023 letter, [NAME] took issue with the Board’s failure to address the disclosure issue and argued that the disclosure process obstructed his right to access fulsome legal advice by requiring him to assess the relevance of documents himself, and to choose which documents to be sent to his hearing assistant, all while facing significant costs imposed by Service. As a result, argued [NAME], his hearing assistant was never able to obtain a complete understanding of record before the Board, either prior to or during the hearing. [ 13 ] On April 5, 2024, the Appeal Division upheld the Board’s decision. Regarding the jurisdiction issue, the Appeal Division determined that the recalculation of [NAME]’s statutory release date under paragraph 129(3)(b) and subsection 129(3.1) of the Act occurred on Friday, September 15, 2023, when the Service undertook the process of recalculating, updated the sentence in its computer system, and established the new release date. In addition, the Appeal Division addressed the disclosure issue as one of procedural fairness and fundamental justice. It concluded that [NAME] was not denied procedural fairness regarding access to legal counsel under the circumstances, noting that if [NAME] believed he lacked access to key documentation prior to his hearing, he had the opportunity to request a postponement, which he did twice in this case. The Appeal Division’s reasons did not reference the Charter —in fairness, possibly due to how the issue was framed and argued in the submissions before it. [ 14 ] As stated, on January 17, 2025, the Federal Court dismissed [NAME]'s application for judicial review. The Federal Court found the Appeal Division’s determination on the jurisdiction issue was reasonable. Regarding the disclosure issue, the Federal Court concluded that the Board satisfied its disclosure obligations under section 141(1) of the Act and that [NAME]’s rights to procedural fairness were not impeded by the Service’s disclosure process. Moreover, citing this Court’s decision in [NAME] v. Canada ([NAME]) (CA), 1996 CanLII 4088 (FCA), [1997] 1 F.C. 115 ( [NAME] ), the Federal Court determined that denying [NAME]’s request to essentially expand the Board’s disclosure obligations under subsection 141(1) to include legal counsel acting as a hearing assistant—thus broadening the role of the hearing assistant under paragraph 140(8)(b) of the Act —does not violate the principles of fundamental justice under section 7 of the Charter ( [NAME] at pp. 126, 129).

III. Consideration of the issues [ 15 ] In the present appeal, [NAME] requests that the decisions of the Board and Appeal Division be set aside. In addition, [NAME] seeks two declarations: one that his right to counsel under section 7 of the Charter was breached, and one that the Commissioner’s referral to the Board is invalid because it was made outside the time limit. In his response, the [NAME] of Canada defends the Appeal Division’s decision and the findings of the Federal Court, and also raises the issue of mootness, noting that [NAME] has since completed his sentence. [NAME] has not filed written submissions, nor has he sought to introduce new evidence addressing the mootness issue. Prior to the hearing, the Court directed the parties to address the mootness issue prior to arguing the other issues on appeal. [ 16 ] The parties agree that the controlling authority on the issue of mootness is the Supreme Court’s decision in [NAME] (reaffirmed in [NAME] v. [NAME] , 2026 SCC 5 at para. 44 ( [NAME] ) ; [NAME] v. Canada (AG) , 2026 FCA 78 at para. 10 ) and there is no dispute that the Court may decline to decide a case if it raises only a hypothetical question that will have no practical effect on the parties’ rights. As stated, [NAME] concedes that the matter is now moot as there is no longer a live issue between the parties. Therefore, it appears that assessing the reasonableness of the Appeal Division’s decision or returning the matter to the Appeal Division for reconsideration would serve no purpose and have no practical effect. However, [NAME] contends that this Court should nonetheless exercise its discretion to determine the issues, if only for the purposes of issuing the two declarations he seeks. In this regard, it bears noting that “ordinarily, courts do not pronounce on the law when their decisions will have no practical effect on the rights of the parties. However, they will in exceptional circumstances” : [NAME] at para. 42; [NAME] & [NAME], Boundaries of Judicial Review: The Law of Justiciability in Canada , 3 rd ed ([NAME]: Thomson Reuters, 2024) at p. 246. [ 17 ] The three factors guiding the Court’s discretion to hear an otherwise moot case are (1) the existence of an adversarial context, (2) whether there is any practical utility in deciding the matter or if doing so would be a waste of judicial resources and (3) whether the Court would be exceeding its proper role by making law in the abstract, a task that is reserved for Parliament ( [NAME] at para. 44; [COMPANY] v. Canada ([NAME]) , 2022 FCA 220 ( Right to Life ) at para. 20; [NAME]) v. [NAME] , 2015 FCA 248 ( [NAME] ) at para. 4). [ 18 ] In addition, a declaration should only be granted where the party seeking it demonstrates that the question is real and not theoretical, that they have a genuine interest in its resolution, and that the declaration will have practical utility by settling a “live controversy” between the parties ( [NAME] v. Canada ([NAME] ), 2016 SCC 12 at para. 11; Right to Life at para. 13). Underlying the exercise of discretion is the need for restraint. As stated by Justice Stratas in [NAME] , at paragraph 5, “[w]hile [NAME] and cases that apply it do not forbid courts in appropriate circumstances from determining a proceeding after the real dispute has disappeared, this underlying rationale reminds us that the discretion to do so must be exercised prudently and cautiously.” [ 19 ] Having considered the parties’ submissions, I am of the view that the criteria relevant to the Court’s exercise of discretion militates against hearing this matter. [ 20 ] First, I am not satisfied an adversarial context still exists between the parties: [NAME] no longer has a “stake in the outcome” as he has completed his sentence and has been reimbursed the amount charged to him when the Service faxed the disclosure documents to his hearing assistant. Moreover, I have not been convinced of any collateral consequences to support a continuing adversarial context ( [NAME] at pp. 358–59). There is no evidence that [NAME] was held in custody beyond his warrant expiry date or that his current circumstances would support such a claim. As there is no evidence, any argument that he may be prejudiced in future administrative proceedings or detention hearings by the Board’s decision remaining on his record may be mere speculation. [ 21 ] While a declaration that the Charter was breached may under certain circumstances constitute a live controversy ( Right to Life at para. 13), in this case, the practical utility of the declarations [NAME] seeks has not been made out. [ 22 ] I recognize that [NAME]’s arguments on the jurisdiction issue involve statutory interpretation, and that those regarding the disclosure issue are arguments of principle. However, understanding the Service’s role and functions under the Act —particularly concerning the jurisdiction issue—and the nature and extent of any purported breach—regarding the disclosure issue—are factors the Court may consider when exercising its discretion to hear the matter that is now moot and to issue the declarations [NAME] seeks. [NAME] is requesting is essentially for the Court to issue declarations in somewhat of a factual vacuum. [ 23 ] Regarding concerns over judicial economy, [NAME] has not demonstrated any special circumstances that would justify the allocation of scarce judicial resources to resolve the issues he raises ( [NAME] at pp. 359–61). He is not challenging the constitutionality of any provisions of the Act , and as noted earlier, neither of the declarations he seeks would go to resolving any live issue between the parties. Additionally, I do not consider this to be a case where the issues are evasive of review ( [NAME] at pp. 360–61). As stated by the Supreme Court, “an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration.” : [NAME] at p. 360 (emphasis added). The mootness of this case is primarily due to the specific calculation of [NAME]’s eligibility dates—namely, his statutory release date and warrant expiry date—within the context of his determinate sentence. However, even if were to accept the jurisdiction issue is somewhat evasive of review, the fact remains that the other factors weigh against hearing the appeal. In any event, I am not satisfied the issue is of a recurring nature since [NAME] acknowledges that the jurisdiction issue only arises when a change in sentence has occurred and the statutory release date was in the past, what [NAME] concedes to be a “rare event” . [ 24 ] As stated by the Supreme Court in [NAME], at page 361, it “is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved” ; I am not convinced that such circumstances exist in this case. [ 25 ] Furthermore, as regards the jurisdiction issue, there is no evidence regarding the procedures the Service follows when undertaking recalculation or how it assesses whether a detention referral is warranted. Additionally, as regards the disclosure issue, there is no information about which disclosure documents [NAME]’s hearing assistant had—or did not have—prior to the detention hearing that could support the declaration he seeks under section 7 of the Charter . Nor is there any evidence regarding what the Service considered when implementing its disclosure policy, nor whether that policy is still in effect, given that [NAME] had been reimbursed the fax charges. In short, there is no evidence that the disclosure process caused [NAME] any prejudice. [ 26 ] I recognize that considerations of judicial involvement are weighed against the social cost of continued uncertainty in the law ( [NAME] at p. 361). However, introducing a novel argument does not necessarily generate uncertainty in the law. In any event, hearing the moot appeal is unlikely to settle the law regarding “recalculation.” On judicial review, the court usually does not perform a de novo analysis to determine the correct interpretation of a disputed provision : [NAME] at para. 124. [NAME] has not persuaded the Court that there is a single reasonable interpretation of “recalculation” under subsection 129(3.1). In fact, [NAME]’s notice of appeal acknowledges that there is “ambiguity present in s. 129(3.1).” As indicated earlier, sending the matter back to the Appeal Division would serve no purpose. [ 27 ] Furthermore, any assertion that this Court should hear the appeal, risking the decisions below becoming binding precedent, implies that the only remaining interest in pursuing this case is purely jurisprudential. Such an interest alone is insufficient to justify maintaining an otherwise moot appeal, as a purely jurisprudential concern does not meet the requirement for a concrete and tangible controversy ( Right to Life at para 24; Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67 at para. 7; [NAME]  at p. 353). Consequently, I am not convinced that this is a case where it is in the public interest to address the issues. [ 28 ] Finally, I am mindful of the risk of overstepping the Court’s institutional role by issuing judgments in the absence of a dispute affecting the parties ( [NAME] at pp. 362–63). This consideration further weighs against exercising discretion to hear this case under the circumstances. Given the paucity of evidence to support the relief [NAME] seeks, he is essentially asking this Court to make law in the abstract, something this Court cannot do. [ 29 ] As none of the [NAME] factors favour hearing this appeal, I would dismiss the appeal for mootness. As no costs were requested by the [NAME], no costs should be awarded. "[NAME]" J.A. “I agree. [NAME] J.A.” “I agree. [NAME] J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-56-25 STYLE OF CAUSE: [NAME] v. THE [NAME] OF CANADA PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA DATE OF HEARING: May 26, 2026

REASONS FOR

JUDGMENT BY: [NAME]. CONCURRED IN BY: [NAME]. [NAME] J.A. DATED: JULY 7, 2026 APPEARANCES : [NAME] For The Appellant [NAME] For The Respondent SOLICITORS OF RECORD : [COMPANY], British Colombia For The Appellant [NAME] of Canada For The Respondent