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T-1362-83
Bailey Bedard (Applicant) v.
Correctional Service of Canada and Director of the Leclerc Institution (Respondents)
Trial Division, Muldoon J.-Ottawa, September 23 and 30, 1983.
Penitentiaries - Convict serving sentence in federal peniten tiary for narcotics offence - Numerous outstanding warrants of committal for unpaid parking tickets and highway traffic offences - Convict seeking mandamus ordering Correctional Service and Institution Director to receive and execute out standing warrants - No statute imposing on respondents duty to execute municipal and provincial warrants of committal No federal-provincial agreement wherein Quebec Government agreeing such warrants to be executed by federal penitentiary officials - Durand v. Forget et al. (1980), 24 C.R. (3d) 119 (Que. S.C.) explained - Application denied - Penitentiary Act, R.S.C. 1970, c. P-6, s. 15 (rep. and sub. S.C. 1976-77, c. 53, s. 39) - Penitentiary Service Regulations, C.R.C., c. 1251 - Prisons and Reformatories Act, R.S.C. 1970, c. P-21 Parole Act, R.S.C. 1970, c. P-2.
Constitutional law - Charter of Rights - Whether Charter rights to liberty, not to be arbitrarily detained or imprisoned, to trial within reasonable time and to benefit of lesser punish ment violated when convict in federal penitentiary denied possibility of serving concurrently sentence for narcotics offence and sentences for non-payment of parking and traffic fines under provincial legislation - Federal Court not "court of competent jurisdiction" under s. 24 of Charter with respect to administration of provincial laws - Mandamus denied Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4 - Criminal Code, R.S.C. 1970, c. C-34, ss. 2, 659(1),(2) (rep. and sub. S.C. 1974-75-76, c. 93, s. 79), (3),(4) - Penitentiary Act, R.S.C. 1970, c. P-6, s. 15 (rep. and sub. S.C. 1976-77, c. 53, s. 39) Summary Convictions Act, R.S.Q. 1977, c. P-15, ss. 1(4), 63.14, 72 (as am. by S.Q. 1982, c. 32, s. 9) - Canadian Charter of Rights and Freedoms, being Part I of the Constitu tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 9, 11(6),(i), 24 - Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52(1).
Jurisdiction - Federal Court, Trial Division - No juris diction in Court, under s. 24 of Charter, with respect to administration of provincial laws as regards crediting appli cant's time in federal penitentiary towards provincial sen-
tences, or arbitrary detention or imprisonment — Mandamus denied — Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4 — Criminal Code, R.S.C. 1970, c. C-34, ss. 2, 659(1),(2) (rep. and sub. S.C. 1974-75-76, c. 93, s. 79), (3),(4) — Penitentiary Act, R.S.C. 1970, c. P-6, s. 15 (rep. and sub. S.C. 1976-77, c. 53, s. 39) — Summary Convictions Act, R.S.Q. 1977, c. P-15, ss. 1(4), 63.14, 72 (as am. by S.Q. 1982, c. 32, s. 9) — Canadian Charter of Rights and Freedoms, being Part I of the Constitu tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 9, 11(b),(i), 24 — Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52(1).
The applicant, who is serving a five-year sentence in a federal penitentiary in Quebec for trafficking in narcotics, seeks a writ of mandamus ordering the respondents to receive and execute all extant warrants of committal for non-payment of parking or traffic fines incurred under Quebec legislation. The applicant, relying on subsection 659(2) of the Code, seeks to serve his sentences concurrently. The question is whether that subsection applies to sentences imposed not only under federal laws but also under municipal by-laws and provincial laws. The appli cant also relies on the provisions of a 1983 Quebec statute concerning warrants of committal, fines and penalties. Sections 7, 9, 11(b) and (i) of the Charter are also invoked in support of the argument that subsection 659(2) creates prejudi cial inequality in light of subsection 659(4).
Held, the application for mandamus should be dismissed. Mandamus will not lie to compel a public authority to do something which is not required by law, especially where no federal officer has authority to overrule or amend warrants issued by provincial judicial officers and where there is no federal-provincial agreement on the subject. The Durand case is not authority to the contrary.
Section 7 of the Charter is of no help to the applicant since there is no violation of his right to liberty. Furthermore, the Federal Court is not "a court of competent jurisdiction" within the meaning of section 24 of the Charter to compel the Quebec authorities to credit the applicant's time in the penitentiary towards his provincial sentences. Neither is it competent with respect to the administration of the laws of Quebec, preventing it from intervening even if the unfounded allegation of arbi trary detention or imprisonment had been true. As for the right to be tried within a reasonable time, guaranteed by paragraph 11(b) of the Charter, it cannot be read as a right to undergo one's imprisonment within a reasonable time. Paragraph 11(i) of the Charter, guaranteeing the right to the lesser punishment where it is varied between the commission of the offence and sentencing, has no application in the circumstances of this case.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Durand v. Forget et al. (1980), 24 C.R. (3d) 119 (Que. S.C.).
REFERRED TO:
St-Germain v. The Queen, judgment dated February 10, 1976, Quebec Court of Appeal, 10-000108-744, not reported; Olson v. The Queen, [1980] 1 S.C.R. 808; Re Dinardo and the Queen (1982), 67 C.C.C. (2d) 505 (Ont. C.A.); Re Federal Republic of Germany and Rauca (1982), 70 C.C.C. (2d) 416 (Ont. H.C.); Quebec Asso ciation of Protestant School Boards et al. v. Attorney- General of Quebec et al. (1982), 140 D.L.R. (3d) 33 (Que. S.C.).
COUNSEL:
Céline Pelletier for applicant. Stephen Barry for respondents.
SOLICITORS:
Sirois, Rumanek, Denault, Corte, Spagnoli & Carette, Montreal, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
MULDOON J.: The applicant is presently serving a term of five years' imprisonment, to which he was sentenced on 19 July, 1977, upon a conviction of an indictable offence contrary to section 4 of the Narcotic Control Act [R.S.C. 1970, c. N-1]. He is presently incarcerated in the Leclerc Institution, a federal penitentiary, situated in the City of Laval, in the district of Montreal, Province of Quebec.
By his affidavit, the applicant alleges that there are 37 warrants of committal extant for non-pay ment of some $860 in fines exclusive of costs, directed to peace officers to apprehend the appli cant and to deliver him to the warden of the common gaol, who is directed to keep him under custody for a total of 123 non-concurrent days, unless the fines, together with the costs be sooner paid. Each of the fines was levied for a conviction pronounced pursuant either to City of Montreal parking by-laws or regulations, or to provisions of the Highway Code [R.S.Q. 1977, c. C-24] of the Province of Quebec. The earliest warrant was
issued on 30 April, 1979, and last one on 22 September, 1980.
The applicant now seeks a writ of mandamus, or an order of the nature of such a writ, ordering the respondents to receive and to execute immediately all of the warrants of committal which he has disclosed in his affidavit. The applicant's reasons for seeking mandamus are stated to be that:
1. The refusal by the respondents to receive and to execute the warrants of incarceration above alleged, runs counter to subsection 659(2) of the Criminal Code [R.S.C. 1970, c. C-34 (rep. and sub. S.C. 1974-75-76, c. 93, s. 79)]; and
2. The respondents' refusal to execute the warrants of incarceration before the expiration of the sen tence which he is presently serving will cause prejudice to the applicant.
The cited provision of the Criminal Code, in context, is
659. (1) Except where otherwise provided, a person who is sentenced to imprisonment for
(a) life,
(b) a term of two years or more, or
(c) two or more terms of less than two years each that are to be served one after the other and that, in the aggregate, amount to two years or more,
shall be sentenced to imprisonment in a penitentiary.
(2) Where a person who is sentenced to imprisonment in a penitentiary is, before the expiration of that sentence, sentenced to imprisonment for a term of less than two years, he shall be sentenced to and shall serve that term in a penitentiary, but if the previous sentence of imprisonment in a penitentiary is set aside, he shall serve that term in accordance with subsection (3).
(3) A person who is sentenced to imprisonment and who is not required to be sentenced as provided in subsection (1) or (2) shall, unless a special prison is prescribed by law, be sentenced to imprisonment in a prison or other place of confine ment within the province in which he is convicted, other than a penitentiary, in which the sentence of imprisonment may be lawfully executed.
(4) Where a person is sentenced to imprisonment in a penitentiary while he is lawfully imprisoned in a place other than a penitentiary he shall, except where otherwise provided, be sent immediately to the penitentiary and shall serve in the penitentiary the unexpired portion of the term of imprisonment that he was serving when he was sentenced to the penitentiary as well as the term of imprisonment for which he was sentenced to the penitentiary.
Neither the applicant nor the respondents dis pute that the applicant is "a person who is sen-
tenced to imprisonment in a penitentiary" and that this application is brought "before the expiration of that sentence". It is also beyond dispute that the applicant has been "sentenced to imprisonment for a term of less than two years" being the aggregate of 123 non-concurrent days conditionally imposed, in default of payment of the fines and costs, for offences against municipal parking by-laws or regulations and the Highway Code of Quebec.
In seeking mandamus, the applicant is asserting that the respondents are legally obliged to receive the 37 warrants and to execute them in order that the applicant may serve those 123 non-concurrent days of imprisonment at the same time as he purges the rest of the sentence which was imposed upon him on 19 July, 1977, under the Narcotic Control Act. The question, in effect, is: does sub section 659(2) comprehend sentences imposed not only pursuant to the Criminal Code and other laws of Canada, but also sentences imposed pursuant to the laws of a province and one of its municipali ties?
Counsel for the applicant points first to those provisions of section 2 of the Criminal Code whereby, for purposes of that Code, the expression Act or "loi" includes
2....
(a) an Act of the Parliament of Canada,
(b) an Act of the legislature of the former Province of Canada,
(c) an Act of the legislature of a province ....
She produces, in second place, those provisions of the Summary Convictions Act of Québec R.S.Q. 1977, c. P-15, which, she argues, have relevance to the case. Those provisions were amended by S.Q. 1982, c. 32 [s. 9]:
63.14 A warrant of commitment issued while a defendant is already imprisoned in a house of detention or a penitentiary must be given forthwith to the director of the house of deten tion where the defendant is detained.
The justice of the peace who issues the warrant may order that imprisonment for the new conviction be served consecu tively to any other period of imprisonment. However, the justice must order that imprisonment for failure to pay the fine be served consecutively if it is proved to him that imprisonment currently being served has itself been imposed for failure to pay a fine.
72. (1) Whenever a fine or a penalty may be imposed for any offence, the amount of such fine or penalty shall, within such limits, if any, as are prescribed in that behalf, be in the discretion of the court or person passing sentence or convicting.
(2) The term of imprisonment in pursuance of any conviction shall, unless otherwise directed in the conviction, commence on and from the day of imprisonment following the conviction, but no time during which the convict is out on bail or during an escape shall be reckoned as part of the term of imprisonment to which he is condemned.
Section 63.14 is a new provision, having been enacted, in common with other provisions on the same subject in January, 1983.
Counsel for the applicant also contends, in the alternative, that the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)], particularly sections 7, 9 and 11(b) (and perhaps 11(i) also), when read with section 52(1) of the Constitution Act, 1982, had the effect of rendering subsection 659(2) of the Criminal Code to be of no force or effect, because, she argues, subsection 659(2) creates prejudicial ine quality of treatment in light of subsection 659(4) of the Code.
Counsel for the applicant cites, in support of the application, the following jurisprudence: St-Ger- main v. The Queen, a unanimous decision of the Quebec Court of Appeal rendered on February 10, 1976, in Montreal as No. 10-000108-744 [not reported]; Olson v. The Queen, [1980] 1 S.C.R. 808 rendered unanimously "by the Court"; Durand v. Forget et al. (1980), 24 C.R. (3d) 119, a decision of Mr. Justice Boilard of the Superior Court of Quebec; Re Dinardo and the Queen (1982), 67 C.C.C. (2d) 505, a unanimous decision of the Ontario Court of Appeal; Re Federal Republic of Germany and Rauca (1982), 70 C.C.C. (2d) 416, a decision of Chief Justice Evans of the High Court of Ontario; and Quebec Asso ciation of Protestant School Boards et al. v. Attorney-General of Quebec et al. (1982), 140 D.L.R. (3d) 33, a decision of Chief Justice Des- ch - dries of the Superior Court of Quebec.
Counsel for the respondents accepts the appli cant's challenge and asks: Is there a public duty imposed on the respondents for which mandamus
will lie? He asserts, and quite correctly, that man- damus will not lie to compel a public authority to do something which is not required by law. The respondents' duties are defined by the Penitentiary Act, R.S.C. 1970, c. P-6, and the Penitentiary Service Regulations, C.R.C., c. 1251, together with the directives, standing orders and routine orders promulgated thereunder. Counsel for the respondents remarks that no provision can be found in the Criminal Code, the Penitentiary Act, supra, the Parole Act, R.S.C. 1970, c. P-2, or the Prisons and Reformatories Act, R.S.C. 1970, c. P-21, which imposes any duty upon the respond ents requiring them to execute the 37 municipal and provincial warrants of committal for non-pay ment of fines and costs. I agree. Certainly, the provisions of section 659 of the Criminal Code create no such obligation. Apart from the mere mention of "penitentiary" in section 63.14 of the Summary Convictions Act of Quebec, which men tion serves only to identify the defendant, nothing in that statute authorizes federal penitentiary ser vice members to intervene in its administration. Indeed, subsection 1(4) of that Act specifically excludes a penitentiary from the meaning of a "house of detention". There is no incorporation by reference of provisions of the Quebec statute by the Criminal Code and vice versa. Accordingly, no federal officer has any authority to overrule or amend the warrants issued by the provincial judi cial officers.
Neither counsel was able to cite any federal-pro vincial agreement, of the sort provided in section 15 of the Penitentiary Act or of any other sort, whereby the Government of Quebec agrees that warrants of incarceration for non-payment of fines, issued pursuant to provincial or municipal legislation, are to be executed by federal peniten tiary officials. Even if this Court were to order the respondents to receive and to execute the warrants, their compliance with such order would be futile, in so far as the applicant is concerned, if his serving of the 123 consecutive days in the Leclerc Institution were not credited to him under the law of Quebec.
Counsel for the applicant contends that the Durand case (supra) is authority for the proposi tions advanced on behalf of the applicant. That case is summarized in Martin's Criminal Code, 1982, thus [at page 634]: "This sub-section [659(2)] applies and requires the additional term of imprisonment to be served in the penitentiary even where it is imposed for violations of provin cial statutes". Careful perusal of the reasons and order expressed by Mr. Justice Boilard does not support that proposition. The respondents in the Durand case, according to the signed transcript of the judgment (District of Montreal No. 05-013346-802) were "Maurice Forget, es -qualité de commandant section des mandats pour la police de la Communauté Urbaine de Montréal, et La Communauté Urbaine de Montréal -et- Le Procu- reur général de la Province de Québec, et le Procu- reur général du Canada, mis -en-cause". Neither the signed typescript, nor the published report of the case in 24 C.R. (3d), indicates any representa tions by counsel for the two attorneys general or that they participated in any manner whatsoever in the proceedings. The operative effective order pronounced by Boilard J. did not purport to com mand penitentiary officials to do anything. His words, reported at 24 C.R. (3d) 124-125 are:
[TRANSLATION] For all of these reasons, the application for mandamus is granted. I order the immediate issue of the writ addressed to the respondent Maurice Forget and enjoining him to execute forthwith all of the warrants of committal concern ing the applicant Gilles Durand in his possession with respect to sentences which might have been imposed on him for the offences set out in paragraphs 3.1 to 3.27 inclusive of the application. And I further order that he deliver the warrants to the warden or such other officer designated by the warden of the federal penitentiary having jurisdiction over the person of Gilles Durand, who is now in the Philipp -Pinel Hospital.
I also order that the judgment which I have just now rendered be executory forthwith, notwithstanding the appeal.
All of the applicant's legal recourses against whomsoever are preserved. The proceedings taken by the applicant are dis missed with respect to the Montreal Urban Community. Costs of this application to follow.
While one can sympathize with Mr. Justice Boi- lard's enlightened desire to permit Durand to serve the sentences imposed for his provincial offences at the same time as he was serving criminal offence sentences in the federal penitentiary, it is clear that Mr. Justice Boilard did no more than to order
a municipal official to remit the warrants to the federal official in charge of the penitentiary.
It would, no doubt, seem to be a reasonable and desirable result to permit the applicant herein to serve his sentences for failure to pay his provincial and municipal fines during his present incarcera tion in the federal penitentiary. Since neither the provincial nor the federal legislation under con sideration produces that result, the applicant invites the Court to invoke the Canadian Charter of Rights and Freedoms in order to obtain that result.
In the circumstances, section 7 of the Charter would not help the applicant. It is true that he has been deprived of his liberty, because he is presently an inmate in a federal penitentiary. But it is not alleged by the applicant that such deprivation of liberty upon conviction under the Narcotic Control Act ran counter to the principles of fundamental justice. His right to liberty then has not been infringed or denied. The applicant does allege that his right to liberty will be infringed or denied when, instead of serving his provincial sentences while in the penitentiary, he may be required to serve them afterwards. The Attorney General of Quebec is not a party to these proceedings. The Federal Court of Canada is not "a court of com petent jurisdiction" for purposes of section 24 of the Charter to compel the Quebec authorities to credit the applicant's time in the penitentiary towards his provincial sentences.
In regard to the applicant's rights under section 9 of the Charter, it is apparent that he is not arbitrarily detained or imprisoned. If he has a complaint against the application of the laws of Quebec in his present plight, it is equally apparent that the Federal Court is still not "a court of competent jurisdiction" to accord him any remedy in that regard. Neither federal law, nor the Feder al Court, can interfere in the administration of the laws of Quebec.
Paragraph 11(b) exacts that "Any person charged with an offence has the right ... to be tried within a reasonable time". Counsel urged that by analogy this provision should be read to
mean that one should be permitted to undergo one's imprisonment within a reasonable time. The analogy is unworkable. The reasonable time for undergoing imprisonment can only be such as is provided according to a law which itself retains its force and effect in contemplation of the Charter. Here again, no infringement of rights and free doms can be levied against the laws of Canada, in these circumstances.
Paragraph 11(i) of the Charter has no applica tion in regard to the laws of Canada in the circum stances of this case, because no punishment for the applicant's offence has been varied in the manner described in that paragraph.
For all these reasons, and not without some regret, I conclude that I cannot accede to the applicant's request. In such a situation, the respondents are entitled to an order for their costs, if they wish to seek them.
ORDER
1. The application for mandamus is denied with costs, if sought by the respondents.
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