



COURT OF APPEAL FOR ONTARIO

CITATION: Wong v. Canada (Attorney General), 2018 ONCA 68

DATE: 20180125

DOCKET: C63325, C62584

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Anthony Wong

Appellant

and

The Attorney General of Canada

Respondent

Ian B. Kasper, for the appellant

Sanam Goudarzi and Korinda McLaine, for the respondent

Heard:  January 15, 2018

On appeal from the order of Justice Tranmer of the Superior
    Court of Justice, dated September 15, 2016, dismissing an application for
habeas
    corpus
.

REASONS FOR DECISION

[1]

The parties agree that this appeal is moot. The appellant submits that
    the court should exercise its discretion and hear the appeal on the merits.

[2]

The appellant was serving a lengthy sentence for manslaughter. In June
    2015, he was reclassified as a maximum security offender. He had previously
    been classified as medium security. In October 2015, he was ordered transferred
    to a different penitentiary outside of Ontario. The appellant challenged both
    decisions by way of
habeas corpus
.

[3]

The
habeas corpus
application was dismissed in September 2016. The appellant appealed.

[4]

The appellant was transferred back to medium security in May 2017 while
    this appeal was pending. He did not challenge that decision. He was released on
    parole in the fall of 2017, again while this appeal was pending.

[5]

The appellant has no remaining legal interest, direct or indirect, in
    these proceedings.

[6]

In urging the court to hear the appeal, despite its mootness, counsel
    raises two issues. The first relates to the scope of the disclosure obligation
    placed on the correctional authorities by s. 27(1) of the
Corrections and
    Conditional Release Act
, S.C. 1992, c. 20. The second relates to the
    operation of the exception to the disclosure obligation set out in s. 27(3) of
    the same Act.

[7]

Both provisions were examined by the Supreme Court of Canada in
Mission
    Institution v. Khela
, 2014 SCC 24. It is clear from the record in this
    case that
Khela
led the correctional authorities to significantly
    alter their approach to the requirements of s. 27. Counsel for the appellant
    submits that this case, and the companion case of
Earhart v. The Attorney
    General of Canada
(C62584) afford this court the opportunity to confirm what
    the appellant submits are the clear statements in
Khela
. He argues
    that the submissions of the respondent in this case suggest that
Khela
has been misunderstood. Alternatively, counsel submits that if
Khela
is unclear, this case and its companion case afford an excellent opportunity
    for this court to build on and explain
Khela
.

[8]

There is merit to the appellants submissions. He also correctly
    notes that the case law in this area demonstrates that the status of prisoners
    often changes before the prisoner is able to fully pursue his
habeas corpus
rights. The difficulty in effecting timely review
    supports the argument that the court should hear the appeal even though it is
    moot.

[9]

In this case, however, the issues which the appellant now seeks to raise
    were not raised before the application judge. The applicants material and his
    written argument before the application judge say virtually nothing about
    either issue. The proper application of s. 27(3) and, in particularly, the
    practice of filing sealed affidavits to demonstrate compliance with s. 27(3)
    was mentioned, but only peripherally in argument before the application judge.
    Consequently, not only does the appellant ask the court to hear a moot appeal,
    he asks the court to entertain arguments that were not raised in the record or proceeding
    giving rise to the order under appeal.

[10]

In
    the course of oral submissions, the court heard arguments on the merits. Those
    arguments left us convinced that any attempt to go beyond the legal guideposts
    in
Khela
, absent a proper record and factual foundation, would at best
    provide limited assistance, and at worst set the law off in the wrong
    direction. We are not persuaded that we should exercise our discretion in
    favour of hearing this appeal, despite its mootness.

[11]

The
    appeal is dismissed as moot.

Doherty J.A.

H.S. LaForme J.A.

David M. Paciocco
    J.A.


