Date: 20041029
Dockets: T-2223-01
T-2227-01
T-307-02
T-1210-02
Citation: 2004 FC 1528
OTTAWA, ONTARIO, OCTOBER 29, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
ALBERT DUTERVILLE
Applicant
- and -
HER MAJESTY THE QUEEN
- and -
ATTORNEY GENERAL OF CANADA
- and -
COMMISSIONER OF CORRECTIONAL
SERVICES OF CANADA
- and -
DEPUTY COMMISSIONER OF CORRECTIONAL
SERVICES OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] By written motion filed with the Court on June 7, 2004, the respondents seek the summary dismissal of the four applications for judicial review filed by the applicant, Albert Duterville, between December 2001 and July 2002, in dockets T-2223-01, T-2227-01, T-307-02 and T-1210-02 (the cases in issue). The respondents submit in this case that the first three applications have become moot, while none of the remedies sought by the applicant in the fourth application may be granted by the Court.
[2] Since November 13, 2002, the undersigned has been the case management judge in the cases in issue. The written motion by the respondents, which they were given leave to make by the undersigned judge, is comparable to a motion to strike out (rules 4 and 221 of the Federal Court Rules, 1998, SOR/98-106, as amended (the Rules) and will be treated as such in the cases in issue. The applicant is representing himself. He filed lengthy submissions against the motion to strike. At this stage, I am prepared to assume the following facts as alleged by the applicant, although without deciding as to their relevance to the matters actually in issue in the cases in issue.
[3] The applicant, who is now 49 years of age, was formerly a police officer in Haiti. In December 1981, he fled his country to settle in Canada, and was granted refugee status. He retrained for work as a taxi driver, and occasionally worked as a police informer. In 1987, he met Lynn Pierrette Richer, with whom he cohabited and from whom he separated in February 1990. On April 17, 1990, he killed Claude Dubeau, his former partner's new boyfriend, who appears to have been a fellow traveller of the Hells Angels. In December 1990, as a result of the homicide, he was found guilty of second-degree murder. The applicant is currently serving his sentence at the Port-Cartier Institution, in the province of Quebec, a maximum security institution. He has been in administrative segregation since 1997. To date, the applicant has never stopped proclaiming his innocence, based on the following assertions, inter alia: that he was acting in self-defence; that the officers of the Sûreté du Québec involved in the criminal investigation that led to his being charged concealed evidence; and that those officers incited his former partner to perjure herself and also perjured themselves. The applicant will be eligible for parole in April 2005.
[4] After the applicant was arrested, in April 1990, he was first incarcerated at the Parthenais Detention Centre in Montréal. He then learned that the inmates at the Archambault Institution were waiting for him, to [translation] "get revenge". After he was convicted, in January 1991, he was transferred to the Regional Reception Centre of the Correctional Service of Canada, Quebec Region. Because he had been a police officer in Haiti, he did not want to be placed in a maximum security institution, and in particular at the Archambault Institution, because he had enemies there. He informed the relevant authorities of his concern.
[5] Based on a report, the legality of which need not be considered here, the applicant was given an initial security classification of maximum. Accordingly, on February 26, 1991, he was transferred to the Archambault Institution, which at that time was a maximum security institution. On March 15, 1991, the victim was assaulted the first time by a half-dozen inmates, and in the course of that assault suffered a fracture to his face, lost teeth and received a head wound. He then had to be hospitalized. When he returned from hospital, he was placed in administrative segregation.
[6] On May 29, 1991, he was transferred, against his will, to the Port-Cartier Institution, another maximum security institution. There, he was assaulted by inmates. In one assault by a group of inmates that occurred on May 30, 1991, the inmate suffered a fracture to the left side of his face. He was again placed in segregation.
[7] Three years later, the applicant's security classification was lowered. On November 21, 1994, the applicant was transferred to the Archambault Institution, which had been converted to a medium security institution since the time he was first there. On June 21, 1995, however, after being found guilty of possession of contraband ($190), disobeying an order and acting disrespectfully toward an individual, he was again transferred to a maximum security institution, this time to Donnacona Institution, where a number of members of the Hells Angels were incarcerated. Apparently, there had been no time wasted when it came to spreading rumours in the institution about the applicant having formerly been a police officer in Haiti. The applicant then pressured the correctional authorities, unsuccessfully, for a transfer to another institution. On August 31, 1996, he was savagely assaulted by a group of inmates. He had to be hospitalized for multiple facial fractures and other bodily injuries. Charges were eventually laid against eight inmates. An internal investigation was requested by the Deputy Commissioner. In the meantime, after his hospitalization, he was placed in segregation until being transferred to another institution. The assault left him with permanent physical sequelae. In fact, the applicant still has difficulty standing today, and uses crutches to move about.
[8] On December 18, 1996, the applicant was transferred to another medium security institution: Drummond Institution, in Quebec. On November 2, 1997, correctional officers found 16.7 grams of hashish in the applicant's cell. On November 25, 1997, officers found 45 grams of hashish hidden in his television. The applicant was then found guilty by a disciplinary tribunal, and on December 11, 1997, his security classification was raised. The applicant claims today that the drugs were put there by correctional officers without his knowledge, in order to have him unjustly convicted, so he would lose his minimum security classification and again be placed in a maximum security institution. I note in passing that no applications for judicial review were brought in respect of those decisions in the cases in issue, and that, as we shall see later, those cases relate to decisions communicated to the applicant in 2001 and 2002.
[9] On March 10, 1998, the applicant was again transferred, against his will, to the Port-Cartier Institution, and he grieved that transfer. There, he had serious problems adjusting. Upon his arrival, the applicant refused to move into the general population, one reason being that he had enemies in that institution. As a result, he was placed in segregation. On this point, the applicant claims in his pleadings that while he was in segregation, he was assaulted and tortured by officers of the Correctional Service. On September 23, 1999, the applicant was transferred from the long-term segregation area to the special unit section. According to reports in the Court record, the applicant's general conduct became increasingly [translation] "worrisome". The case management team was then concerned about the possibility of a [translation] "mental breakdown". On March 27, 2001, the applicant was transferred, against his will, to the Regional Mental Health Centre (RMHC) at Archambault Institution for psychiatric assessment. On March 27, 2001, however, the same day he was admitted to the RMHC, the applicant was released, based, it seems, on the [translation] "absence of psychological distress". On the other hand, according to the applicant, he was again assaulted by a half-dozen correctional officers at the Archambault Institution.
[10] Normally, after his negative assessment at the Archambault Institution RMHC, the applicant would have been sent back to Port-Cartier, but the authorities in question instead preferred to send him to the Atlantic maximum security institution in Renous, New Brunswick. On July 6, 2001, he disputed the transfer, by third-level grievance. In the meantime, he continued to reside at the psychiatric centre in the Archambault medium security institution, but with a maximum security classification. His grievance was rejected at the third level on October 16, 2001. From the applicant's pleadings, it is not clear what date he was actually transferred to the Atlantic Institution. The applicant seems to be suggesting that the transfer took place on August 14, 2001, before his grievance had been decided at the third level. He claims that on that occasion, before he left the Archambault Institution, correctional officers beat him.
[11] Given that he had enemies in the two units that make up the Atlantic Institution, the applicant was placed in administrative segregation as soon as he arrived. On November 28, 2001, the applicant's security classification was reassessed. It was kept at maximum. During his time in Renous, the applicant received a number of offence reports. On this point, according to the reports in the Court's files, he was causing [translation] "a lot of problems" for the correctional authorities at the Renous institution. On December 12, 2001, Simone Poirier, the Warden at the Atlantic Institution, decided to transfer the applicant urgently to the psychiatric centre at Dorchester Penitentiary, and the applicant lost no time grieving the decision, although this did not delay his transfer. In his pleadings, the applicant submits that the real reason for the transfer was that the correctional authorities wanted to do this to prevent him from speaking to a Radio-Canada journalist who wanted to interview him. In the meantime, all of the documents the applicant had in his possession were seized by the prison authorities at the Atlantic Institution. The applicant also alleges that on December 28, 2001, during his time at the psychiatric centre at the medium security Dorchester Institution, he was assaulted by correctional officers.
[12] In his pleadings, the claimant alleges that he was prevented from filing the two applications for judicial review that he had previously given to the prison authorities, seeking a review of the decision to transfer him to the Atlantic Institution, with the Court. That is the context in which, on December 17, 2001, the two applications for judicial review made by the applicant in dockets T-2223-01 and T-2227-01 were filed. Essentially, those applications challenge the decision made by the Warden of the Atlantic Institution on November 20, 2001, to refuse to mail two envelopes containing the two applications for judicial review challenging his transfer to the Atlantic Institution, which had been given to the prison authorities to be submitted to the Court.
[13] On January 8, 2002, the applicant was returned to the Atlantic Institution. He then attempted to recover the documents that had been seized by the prison authorities when he was at the Dorchester Institution psychiatric centre, but was unsuccessful. Also at that time, on January 10, 2002, disciplinary reports were made against the applicant, which he tried unsuccessfully to obtain. On February 22, 2002, he filed a third application for judicial review challenging the refusal by the correctional officer on January 23, 2002, to provide him with a copy of the disciplinary reports in question. That application is docket T-307-02, which is also in issue here.
[14] On February 21, 2002, the claimant sent a very detailed letter to the Solicitor General of Canada. He said that he had been abused by the Sûreté du Québec (SQ) officers who conducted the police investigation that led to him being charged with murder in 1990. He alleged that they had concealed evidence, forced him to make false statements, denied him the right to contact his lawyer and threatened him at his trial, and that they had subsequently conspired to send him to the Archambault Institution with the intention that he be assaulted by inmates. The applicant also said that he had been abused in various ways by managers and/or officers of the Correctional Service. The applicant accuses them of committing assaults and encouraging inmates to beat him and damage his personal effects. He claims that, among other things, they let it be known that the applicant is a former police officer, and that they transferred him to the Port-Cartier institution with the intention that he be assaulted by inmates. He claims that they gave false information to the CSST and to the police ethics committee. He says that they placed him in segregation against his will and denied him health care, dental care, food, pay, personal effects, television and radio (before they were destroyed) and visiting rights. In addition, he says that they obstructed his efforts to bring legal proceedings, among other things by contacting his lawyer, his family and the media, by seizing his documents, his pay and his pens, by sabotaging his computer, by stealing his mail and his money, and by refusing to swear him and to follow up on mailing documents addressed to the Court. The applicant also says that he was subject to disciplinary reports, improper transfers and mistreatment. For example, he was always handcuffed, even in the shower. The applicant therefore seeks the return of his personal effects, his money and his legal documents. He wishes to be reimbursed and to have the correctional services managers compelled to comply with the orders made by the Court. He is also asking to be transferred to an institution in the Montréal region, and to have his segregation terminated. As well, he is asking that a public inquiry and a police investigation be done into his situation.
[15] On March 22, 2002, the representative of the Solicitor General of Canada responded to the applicant. The Solicitor General of Canada could not comment on the allegations referred to in the applicant's previous correspondence because of the legal proceedings that had been initiated by the applicant.
[16] On April 12, 2002, the applicant again wrote to the Solicitor General of Canada and also to the Minister of Justice. He reiterated his earlier requests, and alleged the same facts in support of them.
[17] On June 14, 2002, the representative of the Solicitor General of Canada again replied to the applicant. On the question of the request for an investigation into all the improper actions by the SQ officers, it was noted that this question did not fall within the jurisdiction of the Solicitor General of Canada, and was rather a matter for the appropriate provincial authorities. On the question of the internal improper actions complained of by the applicant, and as previously stated in the correspondence of March 22, 2002, given that legal proceedings had been initiated, the Solicitor General of Canada could not intervene or comment on the situation. The applicant received that decision on June 27, 2002.
[18] The documents in the record do not indicate whether the Minister of Justice replied to the letter from the applicant dated April 12, 2002.
[19] In any event, on July 29, 2002, the applicant filed a fourth application for judicial review, in docket T-1210-02, seeking review of the negative decision by the Solicitor General of Canada dated June 14, 2002. As the notice of motion in question indicates, the Court is asked for:
[translation]
(a) An order of mandamus directing the Solicitor General of Canada and the Minister of Justice of Canada:
(i) to give the applicant the same protection offered to Quebec and Canadian former police officers in order to put a stop to the dozens of assaults suffered while incarcerated in maximum security penitentiaries;
(ii) to give the claimant remuneration (wages, pay);
(iii) to initiate a criminal investigation with the objective of bringing the guilty parties before the courts;
(iv) to initiate a public inquiry to shed light on the acts of torture committed by managers of the Correctional Service that the applicant has suffered over several years;
(b) an order directing the Minister of Justice to remedy the wrongful acts committed against the applicant by officers of the Sûreté du Québec by recommending a new trial.
[20] At the time when this fourth application for judicial review was filed, the applicant learned that he might again be transferred, to another maximum security institution, still outside the Montréal region. On May 1, 2002, a final level grievance to the Deputy Commissioner, challenging his transfer outside the Montréal region, was filed by the applicant (No. V20A00002871). In that grievance, the applicant asked the Deputy Commissioner to return him immediately to the Montréal region, to terminate his segregation and to give him the same protection offered to former police officers. On June 18, 2002, the applicant received a negative reply. The legality of that negative decision will not be considered here by the Court, because it was not the subject of any of the applications for judicial control that are now before the Court.
[21] On July 24, 2002, the applicant was given a notice of involuntary transfer to the Port-Cartier Institution. The applicant lost no time in submitting a third level grievance to the Commissioner, which he did on July 30, 2002, to challenge the notice of transfer; the grievance was apparently returned to him on August 7, 2002, because he had already filed a grievance on that question. On October 1, 2002, the applicant received an apparently final decision dated September 17, 2002, concerning his upcoming transfer to the Port-Cartier Institution. That decision is also not the subject of these proceedings.
[22] In the fall of 2002, the Court was asked to dispose of the multiple written motions for "interim orders" under section 18.2 of the Federal Courts Act, R.S.C., 1985, c. F-7, which had been made in the interim by the applicant in the cases in issue. A conference call was held by the undersigned judge on October 1, 2002.
[23] On October 3, 2002, the undersigned judge made an interlocutory order in the cases in issue containing various directions to facilitate the conduct of the proceedings in the cases in issue. The obstacles and irritations complained of in the applicant's pleadings, which had meant that until then, it seems, the applicant had been unable to submit his pleadings to the Court or to have them sworn, were eliminated. Accordingly, interim orders were made concerning the applicant's access to his personal computer, the swearing of his pleadings, the preparation and service of documents, the completion of the record by the Court, the production of affidavits and examinations on affidavits, and so on (those orders were varied in part by the Court on October 8, 2003, after a motion by the respondents was allowed in part). The applications for judicial review in the four cases in issue were joined, and the proceedings were thereafter managed as specially managed proceedings. A precise timetable was set.
[24] On October 11, 2002, the applicant's grievance challenging his transfer to the Port-Cartier Institution was rejected at the third level. On October 24, 2002, the applicant filed an application for judicial review of the decision to transfer him to Port-Cartier (docket T-1826-02). That decision is also not in issue today. By letter dated October 29, 2002, the applicant applied to the Court to have the Court hear his request for a stay of execution of his transfer on an urgent basis. On that date, Blais J. denied the request for an urgent hearing. The applicant was then admitted to the Port-Cartier Institution on October 29, 2002.
[25] When he arrived at the Port-Cartier Institution on October 29, 2002, the applicant was placed in the regular living accommodations. However, on January 20, 2003, he was moved to an administrative segregation unit. In the meantime, on November 13, 2002, I was assigned as the case management judge for applications in the cases in issue. The applicant has remained at the Port-Cartier Institution since that time, except for an interlude of a few weeks in the summer of 2003 when he was again sent to the RMHC at the Archambault Institution for psychiatric assessment. He was released after a few weeks. On October 8, 2003, I dismissed the applicant's motion for a stay to prevent his being returned to the Port-Cartier Institution (docket T-1805-03). Since then, he has returned to that institution.
[26] Since the fall of 2002 there have been a number of case management conferences. In the cases in issue, the initial timetable had to be amended to take into account the special circumstances the applicant was in. Some 34 new files relating to the applicant's applications for judicial review were opened in 2003 and 2004. A list of those new proceedings is attached to these reasons (Appendix A). On September 29, 2003, after notices of status review had been served, sixteen of those new applications for judicial review were dismissed by the Court for delay. Since then, most of the other applications have been placed under case management. I have also been the case management judge for those new proceedings, and Mireille Tabib, Prothonotary, was assigned to assist me. The new proceedings have been stayed for the time being, pursuant to orders made by Ms. Tabib.
[27] In late winter 2004, the first steps toward perfecting the applications in the cases in issue were completed. The applicant filed a lengthy affidavit and a number of documents in addition to the ones that had been filed by the federal tribunal under Rules 317 and 318. The respondents chose not to submit affidavits and not to cross-examine the applicant. By letter dated March 29, 2004, the solicitor for the respondents informed the court that [translation] "[t]he next procedural step in these cases will be to hold a pre-trial conference. This is a special proceeding that does not normally take place in applications for judicial review. The purpose of the pre-trial conference will be to simplify subsequent procedural steps." At the same time, the applicant submitted a written motion dated March 22, 2004, to the Registrar of the Court, for filing in the cases in issue, seeking a writ of habeas corpus and various remedies under section 24 of the Canadian Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the Charter) and various interim orders under section 18.2 of the Federal Courts Act, R.S.C., 1985, c. F-7 while awaiting a final disposition of the cases in issue.
[28] On May 21, 2004, a video-conference was held by the undersigned judge in the cases in issue. At that time, the solicitor for the respondents announced that, as a preliminary matter, he wanted to make a written motion on the respondents' behalf for summary dismissal of the applications for judicial review in the cases in issue. The applicant asked the Court to hear his motion for a writ of habeas corpus which had been submitted for directions in the meantime. The applicant also asked to Court to give him leave to file a supplementary affidavit in the cases in issue.
[29] After hearing oral submissions by the parties, I then decided to allow the respondents to make a motion to strike in the related cases, and not to allow the applicant to file a supplementary affidavit at this stage. On the motion for a writ of habeas corpus, given that in that proceeding the applicant was asking the Court to order the respondents to put an end to his administrative segregation and give him the same protection as is given to former police officers, revise his initial security classification and re-evaluated security classification, and grant him his residual liberty, I then gave an oral direction that the motion of March 22, 2004, be treated as an application for judicial review and that a separate file be opened for this new proceeding brought by the applicant to be filed (hereinafter the application for habeas corpus). This is docket T-1361-04.
[30] In the summer of 2004, this motion to strike was filed. Essentially, the respondents are asking that the applications for judicial review in the cases in issue be struck out on the ground that the first three applications have become moot and that none of the remedies sought by the applicant may be granted by the Court, in the fourth application.
[31] Whether the Court will strike a pleading is a discretionary decision. Generally speaking, it is not in the interests of justice to deny a party the right to be heard. The general rule is that motions, applications or actions that have been perfected for hearing by the Court will be heard.
[32] Subsection 18.4(1) of the Federal Courts Act provides as follows:
| 18.4 (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way. |
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18.4 (1) Sous réserve du paragraphe (2), la Cour fédérale statue à bref délai et selon une procédure sommaire sur les demandes et les renvois qui lui sont présentés dans le cadre des articles 18.1 à 18.3. |
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| (2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action. |
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(2) Elle peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action.
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[33] Rules 300 et seq., which govern the procedure that applies to applications for judicial review, among other things, are silent as to whether a motion may be made for summary dismissal before an application for judicial review is heard. Nonetheless, it must be recalled, as Rule 3 provides, that the "Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits". The Federal Court of Appeal, for instance, held in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) that it was open to the Court, either by virtue of its inherent jurisdiction or by analogy to other rules, to dismiss in summary manner "a notice of motion which is so clearly improper as to be bereft of any possibility of success". Accordingly, we may refer, by analogy, to Rule 221 in this case.
[34] In addition, since the decision in David Bull Laboratories (Canada) Inc., supra, this Court has held, in cases involving inmates, that the fact that an application for judicial review has become moot may be sufficient ground for having a notice of application struck out before a hearing is held or an application for judicial review dismissed at the hearing. However, even if an application for judicial review has become moot, the Court recognizes that it may nonetheless, in the exercise of its discretion, decide to hear the case if circumstances so warrant (see Tehrankari v. Canada (Correctional Services), [2001] F.C.J. No. 1206 (F.C.T.D.) (QL); Rahman v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 198 (F.C.T.D.) (QL); Zarzour v. Canada (Attorney General), [2000] F.C.J. No. 103 (F.C.T.D.) (QL); Chartrand v. Canada (Attorney General), [2000] F.C.J. No. 766 (F.C.T.D.) (QL)).
[35] For the following reasons, I find that the motion to strike should succeed.
Dockets T-2223-01 and T-2227-01
[36] These two applications for judicial review relate to the decision made on November 20, 2001, by the director of the Atlantic Institution, to return to the applicant the two envelopes containing the applications for judicial review that the applicant had asked the prison authorities to send to the Court so that he could challenge his transfer to the Atlantic Institution. Apparently, the envelopes were returned to the applicant on the ground that they did not have sufficient postage.
[37] At this stage in the proceedings, I accept that the applicant may have been prevented, in the fall of 2001, from instituting legal proceedings in order to have this Court review the legality of his transfer to the Atlantic Institution. I also accept the applicant's allegations that the notices of judicial review, the affidavits and the supporting documents challenging the transfer to the Atlantic Institution that were in the two envelopes in question were seized by the correctional authorities in December 2001. Nonetheless, the applicant himself acknowledges that in March 2002 the seized documents were returned to him. He was thus able to recover the two envelopes containing the applications for judicial review.
[38] Once it was no longer impossible for the applicant to act, there was nothing to prevent him from filing a notice of application for judicial review, if he wished, to challenge his transfer to the Atlantic Institution (by making an application for an extension of time in his application, if necessary). In fact, I note that in 2003 and 2004, some 34 notices of application for judicial review were filed with the Court (Appendix A). In addition, on October 24, 2002, the applicant did file a notice of application to challenge the decision made on October 11, 2002, to transfer him from the Atlantic Institution to the Port-Cartier Institution (docket T-1826-02). It is therefore clear that the applicant decided not to continue to challenge his previous transfer to the Atlantic Institution. I would also note in passing that his application for judicial review dated October 24, 2002, in response to a notice of status review, was dismissed by the Court on September 29, 2003, for delay. The notices of application in dockets T-2223-01 and T-2227-01 thus became moot. In addition, the circumstances do not warrant my exercising my discretion to allow the continuation of the proceedings brought in these two cases. The notices of application in dockets T-2223-01 and T-2227-01 will therefore be struck out.
Docket T-307-02
[39] The application for judicial review in docket T-307-02 has also become moot. In May 2003, the applicant obtained a copy of the disciplinary reports that he had requested on January 23, 2002, when the documents in the cases in issue were provided by the respondents in accordance with Rule 318. As well, I note that the disciplinary decision of January 10, 2002, was itself the subject of an application for judicial review (docket T-1903-02). After doing a status review, the Court dismissed that application for delay. The application for judicial review in docket T-307-02 has therefore become moot. As well, the circumstances do not warrant my exercising my discretion to allow the continuation of the proceedings in this case. Accordingly, the notice of application in docket T-307-02 will be struck out.
Docket T-1210-02
[40] I am of the opinion that the notice of application in docket T-1210-02 must also be struck out, given that it is apparent here, for the reasons that follow, that the relief sought by the applicant, that mandamus be issued against the Solicitor General of Canada and the Minister of Justice, has no chance of being granted by the Court in this case. As well, the present notice of application in this case is plainly defective. Under Rule 302, unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. In this case, this can refer only to the negative decision made on June 14, 2002, by the Solicitor General of Canada. It is clear here that the Court has no authority in this case to consider the legality of the earlier decisions of the correctional authorities in respect of the determination of the applicant's security classification, placement, transfers and administrative segregation. The Court could also not rule, at this stage, as to the application for habeas corpus filed in docket T-1361-04. The application for habeas corpus is not covered by the respondents' motion to strike, and is therefore not affected by the order made today striking out the notices of application for judicial review in the cases in issue.
[41] Absent a legal duty, the Court has no power to issue a writ of mandamus against the Minister of Justice and the Solicitor General of Canada to compel them to conduct a police investigation and public inquiry relating to the allegations of mistreatment, brutality and torture that the applicant has made against the correctional services officers or managers. It is clear that the Minister of Justice and the Solicitor General of Canada have discretion. Whether a criminal investigation is held is a matter that is primarily within the discretion of the competent police authorities, and not the Minister of Justice, even though the Royal Canadian Mounted Police (whose actions are not in issue here) are under the authority of the Solicitor General of Canada. The holding of a departmental inquiry under the Inquiries Act, R.S.C., 1985, c. I-11 is entirely a matter to be decided by the Solicitor General of Canada and the Governor in Council (s. 6 of the Inquiries Act).
[42] The subject of this application for judicial review is not a specific decision (other than the decision of the Solicitor General of Canada on June 14, 2002); rather, it complains of a series of possibly wrongful acts or omissions committed by the correctional authorities between 1990 and 2002 that allegedly caused the applicant serious harm. The applicant asserts that acts of torture and brutality were committed with impunity, and within a federal institution, by correctional officers or their managers. As well, it is alleged that they allowed the applicant to be assaulted on several occasions by other inmates. It is not appropriate for such actions to be examined in the judicial review proceedings in this case. If the applicant wishes, he may bring an action against the Crown in this Court, as provided by section 17 of the Federal Courts Act, R.S.C., 1985, c. F-7. In an action of that nature, assuming that the limitation had not passed, the Court could hear witnesses and, if need be, determine the liability of the correctional authorities and dispose of any claim for a remedy, including by awarding damages. The applicant would then have the onus of proving that the correctional authorities acted wrongfully or negligently or that they otherwise violated their duty of care (Wild v. Canada (Correctional Services), [2004] F.C.J. No. 1166 (F.C.T.D.) (QL); Timm v. Canada, [1965] 1 Ex.C.R. 174; Abbott v. Canada, [1993] F.C.J. No. 673 (F.C.T.D.) (QL); Oswald v. Canada, [1997] F.C.J. No. 203 (F.C.T.D.) (QL)). I make no ruling here as to the permissibility or merits of such a future action by the applicant against the Crown.
[43] The Court also cannot, by mandamus, compel the Minister of Justice of Canada and the Solicitor General of Canada to place the applicant in a medium security institution in the Montréal region. The decision to establish the applicant's initial security classification and to reassess that classification periodically is within the exclusive purview of the correctional authorities. It is also those authorities who determine whether an inmate must be placed in administrative segregation. The placement of inmates and the assignment of security classification to inmates are governed by, inter alia, sections 28 to 30 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 and are within the exclusive authority of the Correctional Service. The legality of such a decision may ultimately be considered by the Court on an application for judicial review (C.E.I.C. v. Lewis, [1986] 1 F.C. 70 at p. 96; Pitre v. Canada (Attorney General), [1999] F.C.J. No. 143 (F.C.T.D.) (QL); Mallette v. Canada (Attorney General), [2004] F.C.J. No. 196 (F.C.T.D.) (QL); Murray v. Canada (Correctional Service, S.H.U. National Review Board Committee), [1996] 1 F.C. 247; Hay v. Canada (National Parole Board), [1985] F.C.J. No. 610 (F.C.T.D.) (QL)).
[44] In addition, it is clear that the Solicitor General of Canada and the Minister of Justice have no legal obligation to offer the applicant any pay. While the directives issued by the Commissioner of the Correctional Service (the Directive) do provide that an inmate may be offered pay, in particular for the inmate's participation in a correctional plan, this is a matter that is, once again, under the exclusive authority of the Correctional Service and not of the two Ministers. Accordingly, if the applicant believes that he should be given pay, he may request it or challenge any decision made in that regard through the grievance procedure, and then by application to this Court for judicial review. As well, in an application for judicial review, under subsection 18.1(3) of the Federal Courts Act, R.S.C., 1985, c. F-7, the Court has no power to award damages or financial compensation. Such damages may only be awarded in an action against the Crown (Sweet v. Canada (Attorney General), [2003] F.C.J. No. 1845 (F.C.T.D.) (QL) at paragraph 30).
[45] That being said, I make no ruling as to the legality of any decision made by the Correctional Service regarding the security classification assigned to the applicant, his placement in a maximum security institution outside the Montréal region and his administrative segregation. In particular, I make no ruling here as to the permissibility or merits of the application for habeas corpus made by the applicant in docket T-1361-04 or on the permissibility or merits of the other applications for judicial review in any of the cases referred to in Appendix A. On that point, there is no longer any reason why the proceedings in those cases should continue to be stayed. The parties will have to take the necessary action to pursue and complete their pleadings. The parties are therefore invited to contact Ms. Tabib, who will be able to hold a case management conference in those cases and give the appropriate directions to that they can be perfected for hearing by the Court.
[46] In conclusion, I am of the opinion that the first three applications for judicial review (dockets T-2223-01, T-2227-01 and T-307-02) have become moot and that the circumstances do not warrant my exercising my discretion to allow the continuation of the proceedings in those cases. On the fourth application for judicial review (docket T-1210-02), I am of the opinion that it has no chance of being allowed by the Court, given that none of the remedies sought by the applicant may be granted on a review of the decision dated June 14, 2002, which is the subject of that application. Accordingly, this motion to strike should be allowed and the notice of application for judicial review struck out in the cases in issue, with costs against the applicant.
ORDER
HAVING REGARD TO the foregoing reasons, THE COURT ORDERS:
1. The respondents' motion to strike is allowed with costs against the applicant.
2. The notices of application in the cases bearing the Court's docket numbers T-2223-01, T-2227-01, T-307-02 and T-1210-02 (the cases in issue) are accordingly struck out.
3. These reasons and this order shall be entered in the record of each of the cases in issue.
"Luc Martineau"
Judge
Certified true translation
Jacques Deschênes, LLB
APPENDIX A
Other Applications for Judicial Review by the Applicant
[1] On October 29, 2002, the applicant brought an application recorded as number T-1826-02 in the Court's files. The applicant sought judicial review of the decision made by Taunya Goguen on behalf of the Commissioner of the Correctional Service of Canada, Lucie McClung, dated October 11, 2002, relating to the applicant's transfer to the Port-Cartier Institution. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[2] On October 30, 2002, the applicant brought an application recorded as number T-1833-02 in the Court's files. The applicant sought judicial review of the decision made by the medical team at the Atlantic Institution on October 3, 2002, relating to the applicant's health. The applicant asked that he be sent to hospital so that he could be given the care necessitated by his health. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[3] On November 13, 2002, the applicant brought an application recorded as number T-1896-02 in the Court's files. The applicant sought judicial review of a decision made by the unit manager at the Atlantic Institution, Daniel Newton, on April 12, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[4] Also on November 13, 2002, the applicant brought an application recorded as number T-1897-02 in the Court's files. The applicant sought judicial review of a decision made by the independent chairperson of the disciplinary committee at the Atlantic Institution, John Wigmore, dated July 18, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[5] Also on November 13, 2002, the applicant brought an application recorded as number T-1898-02 in the Court's files. The applicant sought judicial review of a decision made by the unit manager at the Atlantic Institution, Daniel Newton, on February 7, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[6] Also on November 13, 2002, the applicant brought an application recorded as number T-1899-02 in the Court's files. The applicant sought judicial review of a decision made by Joel Banks on August 6, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[7] Also on November 13, 2002, the applicant brought an application recorded as number T-1900-02 in the Court's files. The applicant sought judicial review of a decision made by Serge Laverone on July 29, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[8] Also on November 13, 2002, the applicant brought an application recorded as number T-1901-02 in the Court's files. The applicant sought judicial review of a decision made by the independent chairperson of the disciplinary committee at the Atlantic Institution, John Wigmore, on February 7, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[9] Also on November 13, 2002, the applicant brought an application recorded as number T-1902-02 in the Court's files. The applicant sought judicial review of a decision made by the independent chairperson of the disciplinary committee at the Atlantic Institution, John Wigmore, on February 28, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[10] Also on November 13, 2002, the applicant brought an application recorded as number T-1903-02 in the Court's files. The applicant sought judicial review of a decision made by the unit manager at the Atlantic Institution, Daniel Newton, on January 10, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[11] Also on November 13, 2002, the applicant brought an application recorded as number T-1904-02 in the Court's files. The applicant sought judicial review of a decision made by the Warden of the Atlantic Institution, Simone Poirier, on October 10, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[12] Also on November 13, 2002, the applicant brought an application recorded as number T-1905-02 in the Court's files. The applicant sought judicial review of a decision made by the independent chairperson of the disciplinary committee at the Atlantic Institution, John Wigmore, on March 28, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[13] Also on November 13, 2002, the applicant brought an application recorded as number T-1906-02 in the Court's files. The applicant sought judicial review of a decision made by the independent chairperson of the disciplinary committee at the Atlantic Institution, John Wigmore, on September 20, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[14] Also on November 13, 2002, the applicant brought an application recorded as number T-1907-02 in the Court's files. The applicant sought judicial review of a decision made by the independent chairperson of the disciplinary committee at the Atlantic Institution, John Wigmore, on June 25, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[15] Also on November 13, 2002, the applicant brought an application recorded as number T-1908-02 in the Court's files. The applicant sought judicial review of a decision made by the independent chairperson of the disciplinary committee at the Atlantic Institution, John Wigmore, on July 29, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[16] Also on November 13, 2002, the applicant brought an application recorded as number T-1909-02 in the Court's files. The applicant sought judicial review of a decision made by the independent chairperson of the disciplinary committee at the Atlantic Institution, John Wigmore, on October 3, 2002, relating to minor offences with which the applicant had been charged. On September 29, 2003, in a status review, Prothonotary Tabib dismissed the application for delay.
[17] On December 27, 2002, the applicant brought an application recorded as number T-2173-02 in the Court's files. The applicant sought judicial review of the decision made by the Commissioner of Correctional Services of Canada, Lucie McClung, on November 20, 2002, relating to the applicant's mail. The applicant alleged that the correctional services were refusing to send out his mail within the time required, or were simply making off with his mail. As well, the applicant asserted that the correctional services were stealing the funds in his account so that he could not pay the costs associated with sending his mail. The applicant therefore sought a review of the Commissioner's decision, to have the respondents return the documents that had been taken, and to have a police investigation conducted into the mail theft. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[18] Also on December 27, 2002, the applicant brought an application recorded as number T-2174-02 in the Court's files. The applicant sought judicial review of the decision made by the Warden of the Atlantic Institution, Simone Poirier, on November 26, 2002, relating to the numerous disciplinary reports against the applicant. The applicant alleged that the correctional services had generated a number of disciplinary reports for improper motives in order to justify maintaining the applicant's security classification at maximum. In the applicant's submission, the ultimate purpose of maintaining the security classification at that level was to keep the applicant in a maximum security penitentiary in order to interfere with his legal proceedings. As well, in the applicant's submission, the numerous disciplinary reports made prevented him from obtaining his pay, accessing certain telephone numbers and accessing a telephone. The applicant also seemed to be challenging his transfer, since he claimed long distance charges relating to the transfer to a remote penitentiary. To conclude, the applicant asserted that Simone Poirier had not addressed all the problems that the applicant had brought to her attention in his correspondence in the decision in question, which he sought to have reviewed. Accordingly, the applicant asked that this Court make an order so that those problems could be solved. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[19] Also on December 27, 2002, the applicant brought an application recorded as number T-2175-02 in the Court's files. The applicant sought judicial review of the decision made by the acting Warden of the Port-Cartier Institution, Jean-Yves Bergeron, on November 27, 2002, relating to a number of requests that the applicant had made to Jean-Yves Bergeron. The applicant had allegedly informed Mr. Bergeron that he wanted to have access to a computer, a right that the applicant said had been granted to him by the Court but that was not always being respected. As well, the claimant complained about his conditions of detention. According to the applicant, the managers of the penitentiary were being uncooperative with him and had authorized the seizure of documents and permitted the applicant to be transferred to other institutions on a number of occasions. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[20] Also on December 27, 2002, the applicant brought an application recorded as number T-2176-02 in the Court's files. The application for judicial review related to a decision made by the Warden of the Port-Cartier Institution, Benoît Boulerice, on December 9, 2002. By that decision, the Correctional Service had allegedly prevented the applicant from attending the hearing of the appeal of the CSST decision concerning his claim for benefits arising out of the 1996 attack. In fact, according to the applicant, the penitentiary managers had refused to make a wheelchair or a pair of crutches available to the applicant. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[21] Also on December 27, 2002, the applicant brought an application recorded as number T-2177-02 in the Court's files. The applicant sought judicial review of the decision made by the Warden of the Port-Cartier Institution, Benoît Boulerice, on November 27, 2002, relating to access to certain telephone numbers. It seems that the applicant had been unable to communicate with friends and family because their telephone numbers had been blocked by the correctional authorities at the penitentiary. As well, the applicant claimed long distance charges relating to the fact that he had been transferred to a remote penitentiary. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[22] Also on December 27, 2002, the applicant brought an application recorded as number T-2178-02 in the Court's files. The applicant sought judicial review of the decision made by the Warden of the Atlantic Institution, Simone Poirier, on November 26, 2002, relating to the applicant's access to certain telephone numbers. It seems that it had been impossible for the applicant to contact his son. As well, the applicant claimed long distance charges relating to the fact that he had been transferred to a remote penitentiary. The applicant also relied somewhat generally on section 24 of the Canadian Charter of Rights and Freedoms to seek a remedy for his mail being taken, dental care, the numerous disciplinary reports made against him and the prohibition on telephoning. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[23] On February 24, 2003, the applicant brought an application recorded as number T-121-03 in the Court's files. The applicant sought judicial review of the decision made by the chairperson of the major disciplinary court on January 27, 2004, relating to a disciplinary report concerning the applicant. It seems that the disciplinary report concerned the applicant's conduct when he blocked the hatch to his cell. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[24] On March 17, 2003, the applicant brought a number of applications recorded as number IMM-1853-03 in the Court's files. The applicant made an application for leave to file an application for judicial review (under section 72 of the Immigration Act) of the decision made by Nicole St-Jacques, of Corporate Services, on behalf of Denis Coderre, Minister of Citizenship, on January 23, 2003, and an application for an extension of time for filing the application for leave to file an application for judicial review. The decision being challenged related to a removal order made against the applicant and an application by the applicant for his fiancée to be admitted to Canada. On July 11, 2003, the leave application filed by the applicant was dismissed because of the applicant's failure to file a record. As well, on September 23, 2003, an application for review of the decision made on July 11, 2003, was dismissed by Mr. Justice Noël because the Federal Court had no jurisdiction to review one of its own judgments. The applicant subsequently filed two applications: a motion to reconsider the decision made on July 11, 2003, and a motion for a police investigation into the actions of the correctional authorities at the Port-Cartier Institution. Both were dismissed on June 17, 2004, by Mr. Justice Noël, because the record had not been filed and the Federal Court had no jurisdiction to order an investigation on the mere bringing of a motion, and not an application for judicial review under section 18.1 of the Federal Courts Act.
[25] On April 9, 2003, the applicant brought an application recorded as number T-554-03 in the Court's files. The applicant sought judicial review of the decision made by the employee responsible for admitting and releasing personal effects at the Port-Cartier Institution, Yves Deschamplains, on March 10, 2003, relating to the applicant's access to his personal effects. It seems that the applicant had been unable to gain access to his personal effects, which had been stored by the correctional authorities, against the applicant's wishes, since December 18, 1996. Briefly, the applicant asserted that Mr. Deschamplains had refused to grant his request for access to his personal effects. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[26] On April 9, 2003, the applicant brought an application recorded as number T-555-03 in the Court's files. The applicant sought judicial review of the decisions made by the correctional officer II (AC-II) at the Port-Cartier Institution, Christine Lévesque, on March 15, 2003, and by the correctional supervisor, Gineau Bougoin, on March 16, 2003. That decision apparently related to the applicant's access to legal organizations and to his lawyer, Serge Lamontagne. It appears that the correctional authorities blocked the numbers for the legal services and prevented the applicant from communicating with his lawyer. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[27] On April 29, 2003, the applicant brought an application recorded as number T-684-03 in the Court's files. The applicant sought judicial review of the decision made by Nathalie Gagné on behalf of Benoit Boulerice, Warden of the Port-Cartier Institution, on April 7, 2003. That decision apparently stated the refusal to receive grievances against the Warden of the Port-Cartier Institution. The Warden had allegedly transferred the applicant to segregation at Port-Cartier against his wishes, and simply because the applicant's safety could not be guaranteed. As well, the applicant sought judicial review of the decision by Nathalie Gagné not to forward the applicant's grievance. The grievance concerned the reduction in the applicant's pay. In fact, a number of deductions relating to cable television services had been made from the applicant's pay. However, the applicant said that he did not have access to a television set. Accordingly, he challenged the deductions made from his pay cheques. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[28] Also on April 29, 2003, the applicant brought an application recorded as number T-685-03 in the Court's files. The application was styled as an application for judicial review of a decision by the correctional authorities concerning the applicant's religion and diet. In fact, the applicant was seeking mandamus to compel compliance with section 75 of the Corrections and Conditional Release Act. The case is currently before Mr. Justice Lemieux of this Court.
[29] On July 25, 2003, the applicant brought an application recorded as number T-1320-03 in the Court's files. The applicant sought judicial review of the decision made by Jean-Yves Bergeron, Deputy Warden of the Port-Cartier Institution, on June 27, 2003, relating to the applicant's change of cell. The applicant had changed cells. He had been transferred to Range J in Block H at the Port-Cartier penitentiary. After he was transferred, the applicant was assaulted and suffered physical injuries. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[30] On September 29, 2003, the applicant brought an application recorded as number T-1805-03 in the Court's files. The applicant sought judicial review of the decision made by the parole officer, Nancy Massicotte, on September 11, 2003, relating to the applicant being returned to the Port-Cartier Institution after a temporary stay, during the summer of 2003, at the Regional Mental Health Centre (RMHC) at the Archambault Institution for psychiatric assessment. On October 8, 2003, the Court denied a motion to stay by the applicant who was seeking to remain at the Archambault Institution RMHC while waiting for his application for judicial review to be decided by the Court. On February 27, 2004, Prothonotary Tabib ordered that the application go forward as a specially managed proceeding.
[31] On July 19, 2004, the applicant brought an application recorded as number T-1354-04 in the Court's files. The applicant sought judicial review of the decision made by the Canadian Human Rights Commission manager, Suzanne Best, on March 2, 2003, refusing, for the time being, to pursue the applicant's discrimination complaint. The Commission referred the question, under subsections 40(5) and (6) of the Canadian Human Rights Act, to the Minister of Citizenship and Immigration, since the applicant was subject to a removal order made against him and the Commission had doubts as to his status. Not only did the applicant seek to have that decision quashed and mandamus issued, but he also asked the Court to review the actual constitutional validity of subsections 40(5) and (6) of the Canadian Human Rights Act. At present, this case is the subject of a request by the applicant for special management.
[32] On July 20, 2004, the applicant brought an application recorded as number T-1358-04 in the Court's files. The applicant sought judicial review of the decision made by the head of Financial Services, Joël Martin, and the assistant director of correctional programs, Richard Lacroix, on March 3, 2004, relating to the wage paid to the applicant. In support of the application, the applicant argued that since he had complained to the Canadian Human Rights Commission, his pay had been reduced. At present, this case is the subject of a request by the applicant for special management.
[33] Also on July 20, 2004, the applicant brought an application recorded as number T-1359-04 in the Court's files. The applicant sought judicial review of the decision made by the chairperson of the disciplinary court at the Port-Cartier Institution, Hubert Besnier, on March 11, 2004, relating to a disciplinary report accusing the applicant of having blocked the hatch to a cell. At present, this case is the subject of a request by the applicant for special management.
[34] On July 21, 2004, the Court opened docket T-1361-04 in the Court's files in which, pursuant to an oral direction by the Court, the applicant's motion dated March 22, 2004, in dockets T-2223-01, T-2227-01, T-307-02 and T-1210-02 were filed. By that motion, styled as an urgent motion for an interim order, which must be dealt with as an application for judicial review, the applicant sought a writ of habeas corpus, review of his security classification and a remedy under subsection 24(1) of the Charter of Rights and Freedoms. In support of his application, the applicant reiterated all the facts he had cited in his other applications. At present, and in response to a letter from the applicant dated July 29, 2004, this case is the subject of a request by the applicant for special management, a request to be heard by the Court on a special date, a special application to have his security classification reviewed and a special application for certain documents that were seized.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS: T-2223-01, T-2227-01, T-307-02 and T-1210-02
STYLE OF CAUSE: ALBERT DUTERVILLE v. HER MAJESTY THE QUEEN ET AL.
PLACE OF HEARING: RULE 369
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE OF REASONS: OCTOBER 29, 2004
APPEARANCES:
ALBERT DUTERVILLE FOR THE APPLICANT
REPRESENTING HIMSELF
ME ÉRIC LAFRENIÈRE FOR THE RESPONDENTS
SOLICITORS OF RECORD:
ALBERT DUTERVILLE FOR THE APPLICANT
REPRESENTING HIMSELF
MORRIS ROSENBERG FOR THE RESPONDENTS
DEPUTY ATTORNEY GENERAL OF CANADA
Date: 20041029
Dockets: T-2223-01
T-2227-01
T-307-02
T-1210-02
OTTAWA, ONTARIO, OCTOBER 29, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
ALBERT DUTERVILLE
Applicant
- and -
HER MAJESTY THE QUEEN and
ATTORNEY GENERAL OF CANADA and
COMMISSIONER OF CORRECTIONAL SERVICES OF CANADA and
DEPUTY COMMISSIONER OF CORRECTIONAL SERVICES OF CANADA
Respondents
ORDER
HAVING REGARD TO the notice of motion by the applicant dated June 25, 2004, and filed with the Court on September 17, 2004, seeking an order of this Court in dockets T-2223-01, T-2227-01, T-307-02 and T-1210-02 (the cases in issue):
1. That the respondents:
(a) Return the applicant to his ordinary cell;
(b) Reassess his list of visitors and restore his right to have visits with his close family and friends;
(c) Reimburse the applicant for all items of his personal effects that have been broken and stolen, and purchase them within a reasonable time;
(d) Return to the applicant all items of his personal effects that have been seized or stored against his wishes, within a reasonable time;
2. In the event that the Court wishes to wait before deciding in respect of paragraphs 1(c) and (d), that under section 18.2 of the Federal Courts Act, 1998:
(a) The respondents reimburse the applicant for the following items of his personal effects most urgently needed for his proceedings in the Court, within one week:
(i) one of his two computers that were seized and broken;
(ii) one of his two printers that were seized and broken;
(iii) the two most recent of his eighteen stolen computer programs;
(iv) one of his two cassette radios having a value of $300.00 that were seized and broken, so that he can listen to his cassettes and make copies if necessary;
(v) his Criminal Code and his Canadian Charter of Rights and Freedoms having a value of $400.00;
(b) Allow the applicant to recover the files stored on the hard disk of the broken computer;
(c) Allow the applicant to transfer the files on the computer seized on May 25, 20004, to diskettes;
(d) Return to him all the documents seized from his cell on May 26, 2004.
3. Under Rule 45 of the Federal Court Rules, 1998, that the respondents bring the applicant before the Court;
4. Under Rule 384 of the Federal Court Rules, 1998, that the application be managed as a specially managed proceeding;
5. Under Rule 431 of the Federal Court Rules, 1998, that the respondents execute the order made on October 3, 2002, as amended on October 8, 2003;
6. Under Rules 466 and 467 of the Federal Court Rules, 1998, for contempt;
7. Directions under Rule 53 of the Federal Court Rules, 1998, that the respondents comply with the order made by the Court;
8. Directions under Rule 59 of the Federal Court Rules, 1998, concerning the procedure to be followed in the event that his application is irregular.
HAVING REGARD TO the motion and reply records submitted by the parties;
WHEREAS the applicant's motion may properly be decided on the written submissions of the parties and there is no need to order that the motion be made orally or that the Court make an order under Rule 45 for the respondents to bring the applicant before the Court;
WHEREAS the applicant cannot by motion make fresh applications for judicial review seeking orders to compel the respondents to return the applicant to his ordinary cell, reassess his list of visitors and grant him the right to have visits with his close family and friends;
WHEREAS the applicant was placed back in his ordinary cell on September 7, 2004;
WHEREAS the applicant cannot by motion seek reimbursement for all his broken or stolen personal effects and such a claim must be made by action, because the Court cannot award compensation in an application for judicial review (De-Nobile v. Canada (Attorney General), [1999] F.C.J. No. 1727 (QL), at para. 23);
WHEREAS the Court has today ordered that the notices of application for judicial review in the cases in issue be struck out;
THE COURT ORDERS that this motion by the applicant be dismissed with costs.
"Luc Martineau"
Judge
Certified true translation
Jacques Deschênes, LLB