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T-258-74
Louis Joseph Rossi (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, January 21; Ottawa, March 22, 1974.
Mandamus—Penitentiaries—Mandamus does not lie against Crown—Considered on merits as against officers of Penitentiary Service—Demand by inmate for documents on his file—No public duty to furnish documents—Penitentiary Act, R.S.C. 1970, c. P-6, s. 29—Canadian Bill of Rights, S.C. 1960, c. 44.
The plaintiff, an inmate of a Canadian penitentiary, sought mandamus to the defendant Crown, as represented by the Solicitor General and officers of the Canadian Penitentiary Service, requiring them to show cause why the Court should not order them to furnish the plaintiff with all papers and information pertaining to warrants outstanding against the plaintiff in the hands of 'authorities in the States of Florida and Connecticut, in the United States of America. It was alleged that the failure to give such information was con trary to the Canadian Bill of Rights and the penal law of Canada and resulted in the inmate's being deprived of a full defence to criminal charges.
Held, dismissing the application, mandamus does not lie against the Crown. As for the Crown officers named as representing the Crown, mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. It does not lie to compel the performance of a moral duty or to order any thing to be done contrary to law. The custody and treatment of penitentiary inmates are governed by Regulations under the Penitentiary Act, R.S.C. 1970, c. P-6, section 29. Subject to such Regulations, the Commissioner of Penitentiaries can issue directives for custody and treatment. A directive pro hibiting the giving to the inmate of documents or copies on his file is a decision by an administrative officer within the scope of his authority and based on the need for keeping information confidential and within the limits of security. There is nothing in the directive contrary to the Canadian Bill of Rights and no abuse of natural justice. Any moral obligation owing by the Crown officers to the plaintiff inmate was fulfilled by their furnishing him with particulars of the warrants held against him by authorities in Miami, Florida, and New Haven, Connecticut.
MOTION. COUNSEL:
Plaintiff not represented.
J. P. Belhumeur for defendant.
SOLICITORS:
Plaintiff not represented.
Deputy Attorney General of Canada for defendant.
WALSH J.—Plaintiff applies for a writ of man- damus against defendant as represented by the Honourable Warren Allmand, Mr. Paul Faguy, Mr. Gerald Marineau, Mr. Robert Martin, and Mr. Jean Fouquette, enjoining them to show cause why the Court should not order them to furnish plaintiff with all papers and information pertaining to the alleged outstanding warrants and/or hold orders issued against plaintiff by the offices of the District Attorneys in the States of Florida and Connecticut in the United States of America. The application alleges that their fail ure to do so deprived him of his constitutional rights as an American citizen and his rights as a Canadian resident in contravention of the Canadian Bill of Rights and Canadian penal laws, thereby depriving him of a full and com plete defence to any and all criminal charges.
Plaintiff in his motion requests that the Court obtain copies of the said warrants and/or hold orders and of the Commissioner's Directive No. 2471(1) signed by Mr. Paul Faguy. He further indicated that he would like to present the motion himself and requested the Court to issue a writ of habeus corpus ad testificandum in order that he might attend. The motion is sup ported by a solemn declaration and makes refer ence to the statement of claim indicating the facts in support of the motion.
The facts as set out in the statement of claim indicate that plaintiff is an inmate at the max imum security Archambault Institution in Ste- Anne des Plaines, Quebec, that the classifica tion department maintains a file pertaining to each inmate which files are not open to inspec tion and that since a summary of the contents is not given to the inmate they may contain facts unknown to the inmate, including correspond-
ence sent to or by inmates, accusations or other allegations unknown to the inmate without his having had the opportunity to refute them or having had a fair trial or hearing, that the con tents of these files are not confined to use in the particular penitentiary but are also available to other departments within the Canadian peniten tiary system, the National Parole Board and possibly others. The statement of facts goes on to say that in the course of an interview with Mr. Robert Martin, the Chief Classification Officer, plaintiff was told that he could not be transferred to a medium security institution because there were outstanding warrants and/or hold orders issued against him by the offices of the District Attorneys in the States of Florida and Connecticut. On requesting to see these documents he was referred to Mr. Jean Fou- quette, his Classification Officer, and was not permitted to see them on the basis of Directive No. 2471(1) dated December 13, 1973 signed by Mr. Paul Faguy, the Commissioner of Peni tentiaries. Plaintiff has requested the Institution al Director, Mr. Gerald Marineau, to see the said warrants and hold orders and his request has been unanswered. He contends that the Directive No. 2471(1) is a violation of existing rules, laws and regulations governing the administration of justice in Canada such as the Canadian Bill of Rights and Canadian penal law which guarantees a complete and full answer to any criminal charges against an accused. He also contends that by being denied access to these warrants he is unable to prepare a defence against these charges and is denied his rights as an American citizen to a just and speedy trial according to the United States Constitution. He further contends that in view of his lengthy incarceration in Canada the applicable statutes of limitation on these warrants or hold orders may invalidate them so they would no longer serve as justification in preventing his transfer to a medium security institution.
At the hearing of the application for a writ of mandamus plaintiff was not represented, no writ of habeus corpus ad testificandum having been issued. Defendant was represented by counsel and was asked by the Court for an explanation as to why the information plaintiff requested from his classification file could not be given to him. A letter dated January 17, 1974 from Mr. Fouquette to the Crown counsel was filed which stated that on October 26, 1973 the Canadian Penitentiary Service had received from the Department of Justice in the United States, Florida District, Miami, correspondence advising that that department held an arrest warrant against Louis Joseph Rossi whose real name is Salvatore Raffone, and that there were also against him two failures to appear in New Haven, Connecticut. On December 4, 1973 a telex from the Royal Canadian Mounted Police advised the Canadian Penitentiary Service that Louis Joseph Rossi had been identified by the F.B.I. as being D. Salvatore J. Raffone, alias Vincent Louis Durso whose criminal record had commenced in the United States in 1960 and that he was wanted by the F.B.I. at New Haven, Connecticut. On December 6, 1973 the detailed criminal record of Rossi was received from the American Department of Justice. On December 18, 1973 plaintiff had an interview with the Classification Supervisor, Mr. Robert Martin, who told him that they were aware of his American criminal record which was probably the reason for the refusal to transfer him into a medium security institution. On December 20, 1973 Rossi requested from his Classification Officer a copy of any warrants against him. He was advised that a Directive of the Commission er prohibited the giving to an inmate of the documents or copies of documents in his file. He was also advised that there was no warrant against him in his file save the committal war rant. On December 28, 1973 he sent a request to the Director of the institution complaining that he was unable to get from his Classification Officer permission to himself copy the contents of the information against him.
The Court took the matter under advisement, suggesting that counsel for defendant might endeavour to see whether it was not possible, without actually giving plaintiff access to his file, to give him precise information with respect to the contents of same on the basis that it might at first sight appear unreasonable that a person should not know what he is accused of if this information is, in fact, being acted upon to his detriment. Further documentation has now been placed in the file consisting of a letter dated January 23, 1974 from counsel for defendant to Mr. Fouquette, requesting a copy of the rules dealing with confidentiality of files of inmates in penitentiaries, and confirmation that the prisoner had been informed of the information in his file concerning the accusa tions brought against him and warrants issued against him by the American authorities. A reply to this dated January 31, 1974 repeated that the file contained no arrest warrant against plaintiff but merely correspondence from the Department of Justice in Florida indicating that they hold a federal warrant against him and that there are also two unlawful flight to avoid pros ecution warrants from New Haven, Connecti- cut. The plaintiff was informed of this so that he can, if he wishes, obtain any further information from the American authorities in Miami or New Haven.
Dealing with the merits of the application, it would be simple to say that it should be dis missed since, in any event, mandamus does not lie against the Crown. Since the proceedings could be amended, however, or recommenced so as to direct them to the various penitentiary officers named in them, described in the application as representing the Crown, it is not desirable that the application should be dis missed on the question of procedure alone with out some consideration on the merits.
The application must also fail on the merits, however. A writ of mandamus lies to secure the performance of a public duty, in the perform-
ance of which the applicant has a sufficient legal interest. It does not lie to compel the performance of a mere moral duty or to order anything to be done that is contrary to law (see S. A. de Smith: Judicial Review of Administra tive Action, 2nd ed., at pages 561-563. "Nor .. . will it issue in respect of a merely private duty, ... or against a respondent who is not com- mandable by the court or by whom the duty is not owed." Op. cit. page 579. Even if all the conditions for the issue of a mandamus exist, it is a discretionary remedy and the Court will refuse to issue it if it is unnecessary or the object of which the application was made has already been attained—op. cit. 579).
In the present case it is likely that plaintiff was already well aware of the warrants out standing against him in the United States and the reasons for which they had been issued; even if he were not, the verbal information given him by Mr. Fouquette as to the corre spondence in his file relating to these warrants is sufficient to make him aware of the nature of the charges outstanding against him. The war rants themselves are not in his file in Canada and if he requires further information with respect to them he should address himself to the American authorities by whom they were issued. It is certainly not the responsibility of the Canadian penitentiary authorities to repre sent him in seeking to obtain for him any further information which he may require. In disclosing the information they have in their file they have fulfilled any obligation of natural justice which they may have toward him.
The Penitentiary Act' contains provision for the committal, reception and transfer of inmates. Section 29 provides that the Governor in Council may make regulations, inter alia, for the custody and treatment of inmates and gener ally for carrying into effect the purposes and provisions of the Act. Subject to any such regu lations, the Commissioner may issue directives for, inter alia, the administration and good gov-
' R.S.C. 1970, c. P-6.
ernment of the Service and for the custody and treatment of inmates. Although Directive 2471(1) is not in the file, the correspondence refers to the Commissioner's Directive prohibit ing the giving to the inmate of documents or copies of documents in his file. The reason for such a directive is readily apparent since such information might well be confidential or should not be disclosed for security reasons, and the Act empowers him to make such a directive. There is certainly nothing contrary to the Canadian Bill of Rights or any abuse of natural justice resulting from the existence of such a directive which appears to be purely an adminis trative matter and the Courts cannot interfere when an administrative decision is made by an administrative officer within the scope of his authority.
For all the above reasons, therefore, no man- damus lies in the present case.
JUDGMENT
Plaintiff's application for issuance of a writ of mandamus is dismissed.
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