An Indigenous inmate sought judicial review on a decision which revoked his statutory release. The Court decided that judicial discretion would not be exercised because the dispute had become moot and because a reviewing court has a traditional role of which it will not depart.

Indigenous Law Centre CaseWatch Blog

Justin Germa, the Applicant, is an Indigenous inmate in a federal institution. He sought to obtain the judicial review of a decision made by the Parole Board of Canada. The decision revoked the statutory release of the Applicant. The Appeal Division confirmed this decision because the Applicant had failed to cite reasons justifying intervention. The Court had to decide if judicial discretion should be exercised in these circumstances.

The Applicant did not learn that he was Indigenous until 2016 while serving a sentence in a penitentiary and met his biological father there. He alleged that the Board had not adequately considered his Indigenous status. He further alleged that the Board used actuarial tools inappropriately as part of a psychological assessment contrary to the precedent set in Ewert v Canada, 2018 SCC 30.

A case becomes moot when the decision to be made can no longer have any practical effect on the rights of the parties, for example, because events have occurred such that a live controversy no longer exists (Borowski v Canada (AG), [1989] 1 SCR 342). The Court acknowledged that the live controversy that may have then existed in this case no longer exists. The issue has become abstract and the dispute cannot lead to any decision resolving it. The parties agreed that this dispute has become moot.

The Applicant argued that this case invokes a standard of correctness and falls under one of the exceptions raised in Vavilov v Canada (Minister of Citizenship and Immigration), 2019 SCC 65. However, the Applicant wanted to refer to this Court a moot question not originating in facts giving rise to an administrative decision in a context that is highly specific. This would lead to a significant departure from the traditional role played by a reviewing court. The Court concluded that judicial discretion would not be exercised to hear the application for judicial review despite its mootness.