A B.C. Supreme Court judge has rejected a petition asking him to declare Surrey Pretrial鈥檚 decision not to grant a transgender inmate a transfer to a women鈥檚 prison unreasonable and unfair.
Bianca Bailey Lovado, who identifies as a transgender female, unsuccessfully sought the order in B.C. Supreme Court in New Westminster under the Judicial Review Procedure Act, with Justice Paul Riley presiding.
Counsel for respondent Ken Bush, acting warden of Surrey Pretrial Services Centre, argued that because Lovado was granted judicial interim release 鈥� bail 鈥� between when the petition was filed and the date of the hearing, the court should dismiss the petition as moot.
鈥淎fter hearing submissions on that issue, I concluded the matter was moot, and that it was not an appropriate case for the court to exercise its discretion to entertain the petition,鈥� Riley explained in his Nov. 8 .
The court heard Lovado requested to be transferred to the Alouette Correctional Centre for Women after being arrested Oct. 22, 2018 on 鈥渃riminal charges鈥� and being held at Surrey Pretrial, a provincial lock-up for male inmates.
Lovado did this pursuant to the Transgender Inmates Policy found in the B.C. Corrections branch鈥檚 Adult Custody Policy Manual. But the request was denied, resulting in Lovado filing a complaint under Section 37 of the Correction Act Regulation.
The acting warden dismissed the complaint on March 20, 2019. That same day, Lovado launched an action aimed at quashing the acting warden鈥檚 decision, alleging it was not unreasonable and not rendered in a 鈥減rocedurally fair鈥� manner. The petitioner was subsequently granted bail on Sept. 25.
Riley noted that between June 3, 2015 and Sept. 30, 2015 Lovado did time at the Kamloops Regional Correctional Centre for men before being transferred to the Alouette Correctional Centre for Women. Lovado was released from there on Feb. 16, 2016, and then was held at Surrey Pretrial from Nov. 6, 2017 to Dec. 22, 2017, from January 11, 2018 to May 1, 2018, and from June 17, 2018 to July 30, 2018.
The judge noted that as Lovado did not seek a 鈥渄eclaration as to future rights, but rather a declaration that a past, case-specific decision was either made in a procedurally unfair manner or was unreasonable,鈥� he did not see how 鈥渟uch a declaration would be of practical utility to the Petitioner or to anyone else.鈥�
Riley said the relief sought in Lovado鈥檚 petition 鈥渄oes not weigh in favour of an expenditure of scarce judicial resources.鈥�
鈥淎nother important consideration is the notion that pronouncing on the merits of the petition despite the absence of a continuing concrete legal controversy would take the court beyond its proper adjudicative role, and would thus intrude on the legislated decision making authority of those charged with administering provincial remand facilities.鈥�
tom.zytaruk@surreynowleader.com
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