Judgments

Decision Information

Decision Content

T-7306-82
Charles Lawrence LeBar (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: LEBAR V. CANADA
Trial Division, Muldoon J.-Kingston, Ontario, October 2, 1986; Ottawa, January 12, 1987.
Crown - Torts - False imprisonment - Crown refusing or neglecting to give plaintiff benefit of recent Federal Court of Appeal decision establishing "new" method of sentence com putation - Plaintiff's devaluation of own liberty by life of crime considered in assessing general damages - Substantial exemplary damages awarded for oppressive, arbitrary and unconstitutional conduct - Penitentiary Act, R.S.C. 1970, c. P-6, s. 24.2 (as added by S.C. 1976-77, c. 53. s. 41) - Parole Act, R.S.C. 1970, c. P-2, s. 14(1) (as am. by R.S.C. 1970 (1st Supp.), c. 31, s. 1; 1977-78, c. 22, s. 19) - Criminal Code, R.S.C. 1970, c. C-34, s. 137 (as am. by S.C. 1972, c. 13, s. 9; 1976-77, c. 53, s. 6) - Federal Court Rules, C.R.C., c. 663, RR. 338(2), 1708, 1711.
Parole - Crown obligation, following appeal level decision establishing method of sentence computation, to apply forth with said method to all current cases - Crown refusing or neglecting to recompute plaintiffs release date according to "new" method - General and exemplary damages awarded for false imprisonment - Penitentiary Act, R.S.C. 1970, c. P-6, s. 24.2 (as added by S.C. 1976-77, c. 53, s. 41) - Parole Act, R.S.C. 1970, c. P-2, s. 14(1) (as am. by R.S.C. 1970 (1st Supp.), c. 31, s. 1; 1977-78, c. 22, s. 19) - Criminal Code, R.S.C. 1970, c. C-34, s. 137 (as am. by S.C. 1972, c. 13, s. 9; 1976-77, c. 53, s. 6).
Practice - Judgments and orders - Declaratory judgment settling interpretation of statutory provision concerning sen tence computation - Argument Crown free to ignore declara- tory judgment unless each similarly placed person wins own declaration, rejected - Matter of stare decisis rather than res judicata - Binding precedent where same issue arising in subsequent case.
While the plaintiff was serving terms of imprisonment for robbery and for escaping while undergoing imprisonment, the Federal Court of Appeal, on July 19, 1982, in Maclntyre v. The Queen, [1983] 1 F.C. 603, established a method of computing unexpired terms of imprisonment where one of the terms was imposed for escaping. The Crown did not seek leave to appeal to the Supreme Court of Canada nor did it seek to delay the
coming into effect of the judgment. If that decision had been applied in the plaintiff's case, it would have entitled him to release on August 10, 1982, more than two months earlier than his "expected release date", October 22, 1982. The Maclntyre decision was handed down three weeks before the "new" release date according to the "new" method of sentence computation.
Even though the plaintiffs counsel notified the Correctional Service of Canada that according to the Maclntyre decision, his client should be released forthwith, the plaintiff was not set free until September 22, 1982-43 days after he should have been according to the newly-established method of computa tion.
This is an action for declaratory relief and for general and exemplary damages for negligence and false imprisonment.
Held, the action should be allowed.
The question was the same as that in Maclntyre: the judicial interpretation of the words "the sentence he was then serving" in section 24.2 of the Penitentiary Act in relation to the provisions of subsection 14(1) of the Parole Act and of subsec tions 137(1) and (2) of the Criminal Code which deal with the offence of escaping. The Maclntyre decision, even if it resulted "only" in declaratory relief, stands as a binding precedent—if not by virtue of res judicata, given the lack of mutuality of parties—then at least by virtue of stare decisis. It clarified a part of the method of computation of terms of imprisonment which, given the complexity and dispersion of the statute law, cries out for reform.
The judgment of the Appeal Division in Maclntyre took effect upon its being signed by the judge and, as of then, it expressed the law on that aspect of sentence computation just as authoritatively as a statute would. The inference to be drawn from the unexplained delay in releasing the plaintiff was negli gence and wilful or wanton disregard of the plaintiff's right to liberty.
The compensatory general damages for negligence should be assessed on a per diem basis. The plaintiff should, however, be compensated only according to the value of that of which he had been deprived. Given the plaintiff's criminal record and his more than twenty years spent behind bars, the general damages for the liberty which the plaintiff himself has so apparently despised both before and after his "new" release date herein is set at $10 per day (double the daily wage of an inmate in a penal institution) for a total of $430.
Exemplary damages should be awarded because the plain tiffs unlawful imprisonment constituted oppressive, arbitrary and fundamentally unconstitutional conduct by servants of the defendant. Unjustified by any explanation, their misconduct was legally unjustifiable. In light of the case law, exemplary damages are assessed at $10,000.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Maclntyre v. The Queen, [1983] 1 F.C. 603 (C.A.).
APPLIED:
Emms v. The Queen et al., [1979] 2 S.C.R. 1148; 102 D.L.R. (3d) 198; Can. Transport (U.K.) Ltd. v. Alsbury and Atty.-Gen. of B.C. (1952-53), 7 W.W.R. (N.S.) 49 (B.C.C.A.); Liberty Ornamental Iron Ltd. v. B. Fertle- man & Sons Ltd., [1977] 1 F.C. 584 (C.A.).
DISTINGUISHED:
Cavanaugh v. Commission (sic] of Penitentiaries, [1974] 1 F.C. 515 (T.D.).
CONSIDERED:
Canadian Warehousing Association v. The Queen, [1969] S.C.R. 176; Angle v. M.N.R., [1975] 2 S.C.R. 248; 102 D.L.R. (3d) 193; Minister of Employment and Immigration v. Widmont, [1984] 2 F.C. 274 (C.A.); Maxie v. National Parole Board, [1985] 2 F.C. 163 (T.D.); Tanner v. Norys, [1979] 5 W.W.R. 724 (Alta. S.C.); reversed by [1980] 4 W.W.R. 33 (Alta. C.A.), leave to appeal refused [1980] 1 S.C.R. xii; Hejduk v. R. in Right of B.C., [1981] 4 W.W.R. 122 (B.C.S.C.).
REFERRED TO:
Dyson v. Attorney-General, [1911] 1 K.B. 410; [1912] 1 Ch. 158 (C.A.); Bradley v. Town of Woodstock (1978), 22 N.B.R. (2d) 45 (Q.B.); Campbell v. S.S. Kresge Co. Ltd. et al. (1976), 74 D.L.R. (3d) 717 (N.S.S.C.); Eagle Motors (1958) Ltd. v. Makaoff, [1971] 1 W.W.R. 527 (B.C.C.A.); Bahner v. Marwest Hotel Co. Ltd. and Muir (1970), 75 W.W.R. 729 (B.C.C.A.); Roberts v. Buster's Auto Towing Service Ltd. et al. (1976), 70 D.L.R. (3d) 716 (B.C.S.C.); Hayward v. F.W. Woolworth Co. Ltd. et al. (1979), 98 D.L.R. (3d) 345 (Nfld. S.C.); Carpenter & al. v. MacDonald & al. (1978), 21 O.R. (2d) 165 (Ont. Dist. Ct.).
COUNSEL:
Fergus J. O'Connor for plaintiff. Donald J. Rennie for defendant.
SOLICITORS:
O'Connor, Ecclestone & Kaiser, Kingston, Ontario, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
MULDOON J.: The plaintiff sues to recover com pensation and exemplary damages for negligence
or the intentional tort of unlawful imprisonment. He is entitled to succeed, but not for the sums he seeks, and he is entitled to his costs of this action.
The plaintiffs statement of claim together with his motion for interim injunctive relief, being release from custody, and his affidavit in support thereof, were lodged in Court on September 14, 1982. The motion was returnable on September 23, 1982. The plaintiff, in his examination in chief (Transcript: page 17), recalled that he was released from the penitentiary on the day before he was to go to Court, thus placing his date of release as having been September 22, 1982.
During the summer of 1982, the plaintiff was serving a term of imprisonment of 14 years for having committed armed robbery and a subse quent term to which he had been sentenced for escape pursuant to section 137 of the Criminal Code [R.S.C. 1970, c. C-34 (as am. by S.C. 1972, c. 13, s. 9; 1976-77, c. 53, s. 6)]. It is a matter of agreement by the respective parties' counsel (Transcript: page 3) that the plaintiff's expected release date then was October 22, 1982.
On July 19, 1982, the Appeal Division of this Court released its decision in the case of MacIn- tyre v. The Queen, [1983] 1 F.C. 603. At the trial, the parties' respective counsel agreed (Transcript: page 2) that paragraph 3 of the statement of defence might be amended to state—and they agreed that the fact is:
3. ... The effect of that decision, if it were applied to the plaintiff, would be to vary the plaintiffs sentence calculation so as to entitle the plaintiff to release on August 10, 1982.
The salient dates may be tabulated in summary, thus:
1982 —Summer—the parties were expecting that the plaintiff would be entitled to be released from Collins Bay Penitentiary on October 22, 1982;
July 19 —Federal Court of Appeal released its unani mous decision in Maclntyre v. The Queen, [1983] 1 F.C. 603;
August 10 —Plaintiffs correct date for release according to the law's interpretation which was expressed and decided in Maclntyre;
August 13 —The Correctional Service of Canada, through notification of the sentence administrator at Collins Bay Penitentiary, (all servants of the defendant) were notified that the Maclntyre decision affected the plaintiff's duration of his term and that his solicitor opined that the plaintiff ought to be released forthwith; (Transcript: page 4)
September 14 —Statement of claim and notice of motion for interim injunction filed, the latter return able on September 23;
September 22 —The plaintiff was released from incarcera tion:
—Defendant's solicitor confirms consent to the plaintiff's withdrawal of the above-men tioned motion, without costs;
March 3, 1983 —Statement of defence filed; and
April 11 —Discontinuance of action in regard to all defendants other than Her Majesty. (The title of this action has been amended as a consequence.)
This action came on for trial on October 2, 1986, at Kingston, Ontario. The reason for the lengthy passage of time from the date on which this action was at issue in 1983, until the trial in 1986, is probably related to the plaintiff's convic tion for breaking and entering in March, 1983. The plaintiff explained this situation in testimony which is recorded at pages 26 to 28 of the Tran script. The plaintiff testified that he was released on or about September 5, 1986, and that he might nearly have been unable to attend at this trial in October because of a miscalculation of his term of imprisonment which would have run until Decem- ber, 1986, had his counsel not succeeded in having the error rectified.
LIABILITY
The defendant's counsel argues that the Crown is not legally responsible for the plaintiff's extra 43 days of incarceration being the period from and including August 11, 1982, to and including Sep- tember 22, 1982. Counsel argues that the method of computation of the term of imprisonment which was defined in the Maclntyre case was not appli cable to the plaintiff and that the Crown's servants were not obliged to apply it to the plaintiff and, therefore, the Crown is not liable for their failure to do so. The basis of the defendant's contention is not a denial that the prescribed method of compu-
tation applied to the plaintiff's circumstances. It did, and it would still apply to such circumstances. That is a crucial factor. The defendant's counsel adduced no evidence at the trial. The defendant's servants' conduct is factually unexplained and, as will be perceived, legally unexplainable. Both counsel are commended for their agreement about the plaintiff's release date being August 10, 1982, which they discovered only by application of the Appeal Division's interpretation of the law in the Maclntyre case.
The basis of the defendant's contention is, rather, that because the Maclntyre case resulted in declaratory relief it is and was "not coercive against the Crown; that no obligations flow from a declaratory judgment". (Transcript: page 62.) Counsel for the defendant concedes that, in prac tice, governmental authorities implement declara- tory judgments in regard to all persons in the same plight and circumstances as a successful plaintiff, but he adamantly asserts that in law the Crown is quite free to ignore such a judicial declaration unless and until each similarly placed person becomes a plaintiff and wins his or her own par ticular declaration. Counsel suggested (Transcript: page 67) "that the proposition of law goes this far: Even with respect to Maclntyre, Maclntyre's declaratory judgment alone does not guarantee his release by virtue of the nature of [a] declaration. He would have to couple it, properly, with an application for habeas corpus, or any other coer cive remedy. Of course, Mr. MacIntyre didn't have to do that." It may be noted that the remedy could be mandamus or mandatory injunction (as the plaintiff sought here) in this Court, to the same effect as the writ of habeas corpus which a provincial superior court could issue. The plain tiff's counsel here chose the most apt proceedings by commencing an action in which declaratory relief, injunctive relief and damages are all sought concurrently, in avoidance of multiplicity of proceedings.
The defendant's counsel did acknowledge that if the earlier plaintiff, Maclntyre, had only sued pursuant to Rules 1708 and 1711 [Federal Court Rules, C.R.C., c. 663], in a representative capacity on behalf of himself, Maclntyre and all other prisoners serving time for escape, having escaped prior to the relevant date, the Maclntyre decision might well have bound this same defendant in regard to the present plaintiff, LeBar (Transcript: pages 72 to 74.). In that event, counsel noted, Rule 1711(4) would have operated so as to render Maclntyre's decision res judicata between the Crown and the plaintiff herein.
In support of the defendant's contentions, coun sel cites the following jurisprudence, statutes and learned writings:
Dyson v. Attorney-General, [1911] 1 K.B. 410; [ 1912] 1 Ch. 158 (C.A.);
Canadian Warehousing Association v. The Queen, [1969] S.C.R. 176;
Cavanaugh v. Commission [sic] of Penitentiaries, [ 1974] 1 F.C. 515 (T.D.);
Angle v. M.N.R., [1975] 2 S.C.R. 248; (1974), 47 D.L.R. (3d) 544;
Emms v. The Queen et al., [1979] 2 S.C.R. 1148; 102 D.L.R. (3d) 193;
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, section 33;
Supreme Court Act, R.S.C. 1970, c. S-19; (1st Supp.), c. 44; S.C. 1974-75-76, c. 18, sections 14 and 64;
Zamir, The Declaratory Judgment, Stevens & Sons, London 1962, pages 1 to 3, 247 to 252, 282 to 284;
Sarna L., The Law of Declaratory Judgments, Carswell, 1978, pages 87, 176 to 178.
It is readily apparent that this Court's decision in Cavanaugh v. The Commission [sic] of Peni tentiaries, above, is not germane to the matters in issue here.
The short reasons for judgment of Mr. Justice Pigeon for a unanimous Supreme Court of Canada
in the Canadian Warehousing case can be ever more shortly excerpted in order to extract the pertinent kernel of authority. By agreement, the parties submitted a question of law to the Exche quer Court, in regard to which Pigeon J. is quotec thus at page 178:
The question was answered in the affirmative by Gibson J An appeal is now brought to this Court by leave granted b) Fauteux J. under s. 83 of the Exchequer Court Act as relatin€ to a "matter or thing where rights in future might be bound".
A declaratory judgment is undoubtedly binding on the par ties as res judicata, not merely by application of the doctrine of stare decisis. As a direct result of the judgment of the Excheq uer Court it is no longer open to the appellant to contend ir, other judicial proceedings that the storage or transportation of household goods does not come within the purview of s. 32(2) of the Combines Investigation Act.
In Angle v. M.N.R., the Supreme Court divided three to two with Mr. Justice Dickson, presently Chief Justice of Canada, writing the majority opinion. He is reported to express these came() explanations of res judicata, including issue estop- pel, at pages 253 to 255 S.C.R.; 555-556 D.L.R.:
In earlier times res judicata in its operation as estoppel was referred to as estoppel by record, that is to say, estoppel by the written record of a court of record, but now the generic term more frequently found is estoppel per rem judicatam. This form of estoppel, as Diplock L.J. said in Thoday v. Thoday ([ 1964] P. 181), at p. 198, has two species. The first, "cause of action estoppel", precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction .... The second species of estoppel per rem judica- tam is known as "issue estoppel", a phrase coined by Higgins J. of the High Court of Australia in Hoystead v. Federal Com missioner of Taxation ((1921), 29 C.L.R. 537), at p. 561:
I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point or issue of fact has already been decided (I may call it "issue-estoppel").
Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) ([1967] 1 A.C. 853), at p. 935, defined the require ments of issue estoppel as:
...(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceed ings in which the estoppel is raised or their privies ....
The question out of which the estoppel is said to arise must have been "fundamental to the decision arrived at" in the earlier proceedings: per Lord Shaw in Hoystead v. Commis sioner of Taxation ([1926] A.C. 155). The authors of Spencer Bower and Turner, Doctrine of Res Judicata, 2nd ed. pp. 181, 182, quoted by Megarry J. in Spens v. I.R.C. ([1970] 3 All. E.R. 295), at p. 301, set forth in these words the nature of the enquiry which must be made:
... whether the determination on which it is sought to found the estoppel is "so fundamental" to the substantive decision that the latter cannot stand without the former. Nothing less than this will do.
Dickson J. further explained at pages 257 S.C.R.; 557 D.L.R.:
As long ago as 1893, Lord Hobhouse said in the Privy Council in Attorney General for Trinidad and Tobago v. Eriché ([1893] A.C. 518), at p. 522:
It is hardly necessary to refer at length to authorities for the elementary principle that in order to establish the plea of res judicata the judgment relied on must have been pro nounced by a Court having concurrent or exclusive jurisdic tion directly upon the point. In the Duchess of Kingston's Case, Sm. L.C. vol. ii. p. 642, which is constantly referred to for the law on this subject, it laid down that in order to establish the plea of res judicata the Court whose judgment is invoked must have had jurisdiction and have given judg ment directly upon the matter in question; but that if the matter came collaterally into question in the first Court, or were only incidentally cognizable by it, or merely to be inferred by argument from the judgment, the judgment is not conclusive.
The question not being eadem questio, I am of the opinion that this is not a case for application of the principle of issue estoppel.
Here, in the case at bar, the issue being indeed eadem questio, and the Appeal Division's resolu tion of that same question having been a final decision, the only deficiency from perfect issue estoppel is that, whereas the Crown is the same defendant both in the Maclntyre case and the case at bar, this present plaintiff is LeBar and not Maclntyre. Thus there is no exact mutuality of parties, but in light of the circumstances it will be observed that such lack affords no comfort to the defendant.
The same question in both cases does not, of course, exact the very same record of convictions nor yet the very same release date for both prison ers. Those factors are different.
The same question or issue in the two cases is the judicial interpretation of the words "the sen tence he was then serving" found in section 24.2 of the Penitentiary Act [R.S.C. 1970, c. P-6 (as added by S.C. 1976-77, c. 53, s. 41)] in relation to the provisions of subsection 14(1) of the Parole Act [R.S.C. 1970, c. P-2 (as am. by R.S.C. 1970 (1st Supp.), c. 31, s. 1; 1977-78, c. 22, s. 19)] and of subsections 137(1) and (2) of the Criminal Code which latter provide for the imposition of terms of imprisonment as punishment for the offence of escaping while undergoing imprison ment. The identical issue then is the judicially declared correct method of computation of the remaining days to be served in the term of impris onment imposed by sentence of the court of crimi nal jurisdiction. The plaintiff articulates that same question in paragraphs 9 through 13 of his state ment of claim.
The case of Emms v. The Queen et al., previous ly cited, is instructive here. There are majority and minority judgments both concurring in the disposi tion or result of the adjudication by the Supreme Court of Canada. The majority judgment written by Mr. Justice Martland, in which Messrs. Jus tices Beetz and Estey concur, is marvellously brief and pithy. The plaintiff Emms had sued for rein statement and compensation for having been rejected as a permanent public servant, wrongfully as he claimed, during a purported extension of his probationary employment period. Here are the pertinent passages of the reasons of Martland J., at pages 1151 and 1152 S.C.R.; 194 and 195 D.L.R.:
Briefly stated, s. 28 of the statute provides for the position of employees on probation. The period of probation is to be established by the Commission. The deputy head may reduce or waive the probationary period if an appointment is made from within the Public Service. The deputy head may at any time during the probationary period, upon giving required notices to the employee and the Commission of his intention to reject the employee, set in motion the procedure which results in his ceasing to be an employee.
The Regulations establish the probationary periods for defined groups or classes of employees. The probationary
period applicable to the appellant was twelve months. No notice of an intention to reject the appellant was given during that period. Instead, the deputy head purported to extend the proba tionary period for a further six months and the rejection of the appellant occurred during the extended period.
The extension of the probationary period by the deputy head was based upon subs. 30(2) of the Regulations.
If the deputy head did not have power to extend the proba tionary period, then the rejection of the appellant occurred after his probationary period had expired and could not legally be justified. The respondent's case, therefore, depends upon the validity of subs. 30(2) of the Regulations.
Subsequent to the judgment of the Federal Court of Appeal in the present case, that Court, in the case of Ouimet v. The Queen ((1978), 21 N.R. 247, [1979] 1 F.C. 55), confirmed the judgment in the Trial Division [[1978] 1 F.C. 672] that subs. 30(2) of the Regulations was ultra vires of the Commission to enact. I agree with the reasons delivered by Jackett C.J., for the Court, for reaching that conclusion.
I am therefore of the opinion that this appeal should succeed. I agree with the disposition of the appeal proposed by my brother Pigeon. [Emphasis added.]
It will be noted that the majority express neither concern about, nor mention of, the question of res judicata. Nor does the majority judgment trouble even to consider mutuality of parties. They simply applied the pronouncement that the impugned sub- regulation was ultra vires asserted by and in the Ouimet case, to the issues raised by, and the plight of, the plaintiff Emms, in the matter before them. They accepted that the unappealed decision of the Appeal Division in Ouimet was correct and, that being so, it interpreted and proclaimed the law to which servants of the Crown, and the Crown itself, are bound to render acquiescence and obedience. That surely is little different, if at all, from the state of affairs in the case here at bar.
The majority's reasons in Emms were not cited by the defendant's counsel. Instead, he relied on the minority opinion, with whose final disposition of the appeal, only, the majority agreed. Mr. Jus tice Pigeon, with whom Mr. Justice Pratte con curred, wrote these passages at pages 1158 S.C.R.; 199 D.L.R. cited by the defendant's counsel:
At the hearing in the instant case, counsel for the respondent informed the Court that no appeal had been taken from the Ouimet judgment but invited us to overrule it. When asked why leave to appeal had not been sought, he could only say that he did not know but he did not apply for leave or for an extension of time in which to apply.
I must confess being troubled by this situation. The Crown is faced with a formal declaration made by the Court below of the invalidity of the very provision of the Public Service Employ ment Regulations on which its appeal in this case depends. This declaration was made in another case and it is allowed to stand in favour of another claimant but the Court is asked to decide otherwise as against the appellant herein.
The situation created some anxiety on the part of Pigeon and Pratte JJ., but no head-on solution or stated principle, as evinced at pages 1161 and 1162 S.C.R.; 201 and 202 D.L.R., thus:
Thus it will be seen that if a formal declaration of invalidity of an administrative regulation is not considered effective towards all those who are subject thereto, it may mean that all other persons concerned with the application of the regulation, including subordinate administrative agencies, have to keep on giving effect to what has been declared a nullity. It is obviously for the purpose of avoiding this undesirable consequence that, in municipal law, the quashing of a by-law is held to be effective "in rem".
Should it be possible for an administrative agency to allow a declaration of invalidity to stand in a given case while ignoring it towards other parties, on the chance that in another case it might succeed in having it overruled by a higher court, if not by a different judge? Should the situation be viewed in the same way as in the case of declarations of invalidity of statutes which seem to have always been considered only as precedents?
After anxious consideration, I find it unnecessary to express an opinion on this difficult question because, assuming the respondent is entitled to ask that the judgment in Ouimet be overruled, I find no reason to do so. No argument was submit ted to support the validity of s. 30(2) of the Public Service Employment Regulations which had not been considered and dealt with by the trial judge and the Federal Court of Appeal and no error was shown in the decisions rendered thereupon.
The important aspect of this jurisprudence resides in the common law's notion of stare decisis, which is imported into all of the public law in and of Canada, being absent only from the private law of Québec. The action at bar sounds in tort, which is a matter of private domestic law, but requires the interpretation of public law statutes as was performed by the Appeal Division in the MacIn- tyre case, above cited. As mentioned in passing by Pigeon J. in Emms, one ought, in application of his dictum, to accept that the MacIntyre decision stands here as a binding precedent. It is, if not perfectly res judicata so as to bind these parties in an issue estoppel, then at least it is a matter of stare decisis by which the defendant ought to
abide in computing the plaintiff's term of imprisonment.
The defendant's effort in avoidance of a finding of res judicata because of lack of mutuality of parties is irrelevant. The legal consequence of the different facts in this case and that of Maclntyre is of no consequence. The legal consequence of con viction of escaping lawful imprisonment—that is, the correct interpretation of the law—in identical circumstances to which the law is to be uniformly applied, is the gravamen of the issue. That correct interpretation, in such circumstances, now stands decided. In their commendable article, "Issue Estoppel: Mutuality of Parties Reconsidered", (1986) 64 C.B.R. 437, the authors Herman and Hayden urge Canadian courts to obviate the necessity of mutuality, as U.S. courts have done. This is not necessarily the case in which to embrace their attractive advice.
Of course, if the defendant, by her servants, decline to abide by the law as proclaimed by the unappealed and firmly standing decision of the Federal Court of Appeal, then this Court, which is bound by the MacIntyre decision, must according ly visit upon the defendant the consequences of neglecting or otherwise failing to comply with the law. The practical approach of the majority of the Supreme Court of Canada in the Emms case can hardly be denied. After all it was the same regal defendant who declined to seek leave to appeal to the Supreme Court of Canada from the Maclntyre decision, thereby assuring its finality and authority as a precedent in and for the case at bar.
Indeed, it would appear that the matter of stay ing the operation and effect of the Maclntyre judgment was never raised by the defendant, for it is not mentioned in the Court's reasons. A case involving the same solicitor, the Deputy Attorney General of Canada, was decided somewhat later with a different appeal panel, but it evinces a technique which may be useful where serious consequences can be set in motion before an appeal can be taken. Thus, in Minister of
Employment and Immigration v. Widmont, [1984] 2 F.C. 274 (C.A.), at page 294, Mr. Justice Mahoney, for the majority, is reported as staying execution of the judgment "until the later of the expiration of the time fixed for the respondent to apply for leave to appeal to the Supreme Court of Canada, the refusal of such leave if sought, or the rendering of its judgment should leave be grant ed". Nor does it appear that the respondent in the Maclntyre case sought to have that judgment post dated pursuant to Rule 338(2). It is not certain that either sort of application by the respondent there (the defendant here) would have succeeded. However, no record of an attempt either to have a stay or to persuade the Court to postdate its judgment being evident leads to the conclusion that the defendant was content to see the MacIn- tyre judgment serve as a definitive and authorita tive expression of the law unless or until it were reversed on appeal. The defendant here, who was the respondent in Maclntyre, never sought leave to appeal to the Supreme Court of Canada.
The computation of terms of imprisonment is rendered difficult because of the complexity and dispersion of the statute law. In the case of Maxie v. National Parole Board, [1985] 2 F.C. 163 (T.D.), the file discloses an affidavit sworn by an affiant who described himself as "Chief of Sen tence Administration in the Canadian Penitentiary Service". His duty is to supervise the calculation of terms of incarceration imposed on penitentiary inmates in accordance with advice in law received from lawyers in the Department of Justice. While that affiant ought to be an expert, he nevertheless made six possible computations, each resulting in a different release date in the Maxie case. Provisions of law which keep on generating Court decisions cry out for reform.
However, notwithstanding the difficulty of cal culating release dates, the Appeal Division in Maclntyre expressed the method of computing the terms of imprisonment to which escapers are sen tenced. The judgment of the Appeal Division expressed the law just as authoritatively as if its
prescribed interpretation of the statute law had been veritably articulated in the statute law.
The defendant's counsel avers that in the time constraints of the circumstances the defendant's servants were not negligent, nor wilfully or wan tonly oblivious of the unlawfulness of keeping the plaintiff imprisoned for 43 days without any war rant for so doing. The judgment of a superior court, it is trite to emphasize, has full force and effect unless and until stayed or reversed on appeal: Can. Transport (U.K.) Ltd. v. Alsbury and Atty.-Gen. of B.C. (1952-53), 7 W.W.R. (N.S.) 49 (B.C.C.A.), per Sidney Smith J.A., at page 71. A judgment of the Appeal Division (as distinct from reasons for judgment) takes effect upon its being signed by the presiding judge: Liberty Orna mental Iron Ltd. v. B. Fertleman & Sons Ltd., [1977] 1 F.C. 584 (C.A.), per Jackett C.J., at page 587. The Court's record reveals that the Maclntyre judgment was in fact signed on July 19, 1982. The defendant's servants were notified of its effect in regard to the plaintiff by his solicitor on August 13, 1982. He was not released until Sep- tember 22, 1982. The defendant's solicitor knows the law. The clear inference of that unexplained prodigious delay is negligence and wilful or wanton disregard of the plaintiff's right to liberty. This Court so finds. Pondering the possibility of seeking leave to appeal further to the Supreme Court of Canada does not excuse the unlawful imprisonment. Accordingly, this Court finds that the plaintiff was, and remains, entitled to have the term of his imprisonment calculated in accordance with the judgment in Maclntyre v. The Queen, signed and released by the Federal Court of Appeal on July 19, 1982, and now reported in [1983] 1 F.C. 603. The Crown's servants were obliged to apply it to the defendant. They refused or neglected to do so. Accordingly, the defendant is liable to the plaintiff in damages for having kept him involuntarily and unnecessarily imprisoned in Collins Bay penitentiary during the 43 days from and including August 11, 1982, through Septem- ber 22, 1982.
Upon the finding of liability being determined, the considerations of quantum, or perhaps distinct quanta, of damages, and whether exemplary or
punitive damages are to be awarded, must now be addressed.
QUANTA OF DAMAGES GENERAL DAMAGES
The subject of general damages presents itself at once, since the plaintiff neither claimed nor proved any specific damages.
As noted by Linden, Canadian Tort Law, (3rd ed., 1982, Butterworths, Toronto), at pages 44 and 45, "because this tort [unlawful imprisonment] is a descendant of the trespass action, no actual loss is required as a prerequisite of recovery."
In addition to the trespass of unlawful imprison ment and concurrently blended with it, there was the tort of negligence on the part of the defen dant's servants. The two torts are so intertwined here as to be almost indistinguishable except to note that among the distinct ingredients of the latter tort is the element of damage having result ed from the breach of duty. It is possible to argue that the deprivation of the plaintiff's liberty deprived him of monetary returns at least the equivalent of the minimum wage during the days in prison after he ought to have been released. The evidence of the plaintiff's past performances in securing legitimately gainful employment supports that argument. In view of the other evidence of the plaintiffs squandering of his liberty both before and after his unlawful imprisonment, that argu ment presents only scant possibilities of quantify ing the plaintiffs true damages. However, for purposes of assessing a quantum of damages, the Court considers that the tort of negligence has been made out at a notionally real, but negligible quantum of damages.
It must be found on the plaintiff's behalf that, through his solicitor, he did everything which could be reasonably exacted, in order to minimize the damages. It is now known that application of the law as enunciated in the Maclntyre decision rendered on July 19, 1982, produced a release date for the plaintiff of August 10, 1982. Counsel announced their agreement on that date only at
the opening of the trial. (The need for a clear and straightforward, consolidated method of comput ing terms of imprisonment enacted in just one statute, perhaps with tables or graphs, if needed, is surely illustrated in the attempts to fix an agreed date for release in this litigation.) In any event, the plaintiff's solicitor did notify the sentence adminis trator at Collins Bay Penitentiary on August 13, 1982, that the plaintiff's term of incarceration was affected by the Maclntyre decision and that, in his solicitor's opinion, the plaintiff ought to have been released forthwith. That is admitted by paragraph 4 of the statement of defence amended nunc pro tunc on the agreement of counsel at the trial (Transcript: page 4).
A further attempt at mitigation was undertaken and is revealed by the pleadings. In paragraph 5 of the statement of defence the defendant admits paragraph 17 of the statement of claim, which runs thus:
By letter, dated August 18th, 1982, the Solicitor-General of Canada, a servant of the defendant, was notified personally of the Plaintiff's situation. By a letter dated September 1st, 1982, the Solicitor-General of Canada personally acknowledged receipt of the said letter.
Because the effect of the Maclntyre decision had been known, or ought to have been known, and appreciated, by the defendant's solicitor and counsel during the three-week period following July 19, 1982, the defendant must bear compensa tory responsibility from and after August 10, 1982, even although the sentence administrator was for mally notified only three days later.
Had the Appeal Division's judgment become effective on or after the correct release date, the Court would have allowed the defendant a reason able time of a few days either after the date of the judgment, or after the date of notice to the defend ant in mitigation of damages, but, in effect, no such adjudication needs to be effected in this case. However, since the judgment took effect long before the plaintiff's correct release date, it is reasonable to assess damages for the wrong done to the plaintiff from and after midnight on August 10, 1982, up to which time the plaintiff could have been lawfully imprisoned, but not thereafter.
The plaintiff's counsel urges that an apt method of reckoning the quantum of general damages would be per diem compensation. That is a reason able method in this case.
Cases in which compensatory general damages have been awarded for imprisonment of one day or a very much shorter period are these, which were cited for the plaintiff:
Bradley v. Town of Woodstock (1978), 22 N.B.R. (2d) 45 (Q.B.);
Campbell v. S.S. Kresge Co. Ltd. et al. (1976), 74 D.L.R. (3d) 717 (N.S.S.C.);
Eagle Motors (1958) Ltd. v. Makaoff, [1971] 1 W.W.R. 527 (B.C.C.A.);
Bahner v. Marwest Hotel Co. Ltd. and Muir (1970), 75 W.W.R. 729 (B.C.C.A.);
Roberts v. Buster's Auto Towing Service Ltd. et al. (1976), 70 D.L.R. (3d) 716 (B.C.S.C.);
Hayward v. F.W. Woolworth Co. Ltd. et al. (1979), 98 D.L.R. (3d) 345 (Nfld. S.C.); and
Carpenter & al. v. MacDonald & al. (1978), 21 O.R. (2d) 165 (Ont. Dist. Ct.).
In the Hayward case, exemplary damages were awarded. In the Carpenter case damages were separately assessed under two heads, one being false arrest and false imprisonment and the other being malicious prosecution.
Cases in which damages were assessed for allegedly false imprisonment of a few separated days, and for a term of imprisonment of 30 days, were these which were also cited by counsel for the plaintiff:
Tanner v. Norys, [1979] 5 W.W.R. 724 (Alta. S.C.); and Hejduk v. R. in Right of B.C., [1981] 4 W.W.R. 122 (B.C.S.C.).
In Tanner v. Norys, the Trial Judge awarded what he called "general and aggravated damages" for each of the three incidents, and exemplary damages for the latter two. (Counsel did not dis close to the Court the utter reversal of liability found by the Trial Judge on the part of a unani mous panel of the Alberta Court of Appeal, [1980] 4 W.W.R. 33, nor the refusal of leave on
the part of the Supreme Court of Canada, [ 1980] 1 S.C.R. xii.)
Lieberman J.A., in wholly allowing Nory's appeal in regard to liability, wrote (at page 66, W.W.R.):
In view of the conclusions at which I have arrived, it is unnecessary for me to deal with the question of damages either as posed by the appeal or by the cross-appeal.
Because the Trial Judge in Tanner v. Norys assessed both categories of damages in relation to [page 744] "the defendant's abusive, insolent, malicious and outrageous conduct regarding the plaintiff, and his totally unjustified disregard for the liberty of the plaintiff and the sanctity of his person", but the Appeal Judges unanimously held the Trial Judge's conclusions totally wrong and that the defendant's conduct was justified, one must regard the Trial Judge's awards in Tanner v. Norys with some caution.
In the Hejduk case, Chief Justice McEachern, having regarded the exemplary damages alone of $10,000 awarded by the Trial Judge for the third incident in Tanner v. Norys, assessed damages at $15,000 for Hejduk's imprisonment for 30 days, but he dismissed the action. He expressed no more than that in effecting that assessment in the Hejduk case.
The cited cases are of interest, of course, but in none are there analogous circumstances or a simi lar situation with those of Charles Lawrence LeBar this plaintiff or his lifestyle. Liberty is sweet. Some folk assert that liberty is essential for human fulfilment and happiness. In Canada liber ty is highly prized and is, accordingly, a condition al right of everyone, which right is conditionally protected by the Constitution. The liberty to come and go, to achieve one's best position and status in society, to be as useful a member of thereof as one can, to pursue happiness, and ultimately, so long as one does not subordinate the rights of others or generally the rights of their legitimate collectivity, the freedom to be left unmolested by governmental authorities, are the hallmarks of a civilized, if not also a free and democratic, society. Liberty, how-
ever, is a conditional right. One can forfeit it by personal misconduct, or waive it by the free, informed consent of oneself, or even that of the majority of Canadians in times of great and dan gerous emergency. In the above cited jurispru dence all of the plaintiffs appeared to be individu als who, all their lives, prized, cherished and respected their own liberty. All were, in that regard, very differently situated from the plaintiff herein.
How has this plaintiff valued and cherished his own liberty all his life? Since he invokes the power of the Court to compensate him for a 43-day deprivation of his liberty, he is to be compensated according to the value of that, and only that, of which he has been deprived. Now, because liberty is a constitutionally protected value, to which everyone is conditionally entitled, a Canadian court would always be reluctant to assess liberty's monetary compensation at naught in any individu al case. A desparate, depraved and determined terrorist, a career contract-killer, and any predato ry person who dedicates his life and talents to preying on society by habitually fraudulent or violent misconduct, would however be prime can didates to have the value of their liberty—to them selves and to society—assessed at zero. There is, of course, the eternal hope of rehabilitation, but it does not enter into the calculus of compensation for past squandering of one's own liberty.
It must be acknowledged that there is the possi bility, if not the likelihood, of the plaintiffs upbringing having been morally deficient or even savagely brutal, but, if so, he made no mention of that in his pleadings or oral testimony. One cannot be blamed for an inadequate moral formation or a dismal deformation inflicted in childhood. How ever, enjoyment of the right to liberty exacts from everyone the prudent effort to preserve it, by not jeopardizing it through criminal activities.
The plaintiff was first incarcerated in Guelph, Ontario, in 1942, when he was about fifteen or sixteen years of age, for a term of two years or less. He had been previously employed as a stock- chaser for parts in a factory which manufactured tanks during the war years. Upon release he again
achieved legitimately gainful employment with Colonial Dress Company in Guelph, for about eighteen months. He joined the army, remained in Canada and was discharged upon the end of hos tilities in 1945. After he left the army, in Guelph, he was convicted for "a car incident" as he put it and again lost his liberty. In 1949 he was convicted for car theft, he seems to recall, and sentenced to a term of three years in Kingston Penitentiary from which he was released in 1952. After holding a job with Humber Cleaners in Toronto for about four months he lost his liberty again, having been sen tenced to Burwash provincial reformatory for a six-month term upon conviction for taking a car without its owner's consent. He worked in Guelph for a dry-cleaning firm and for a Toronto firm making radar components, but the plaintiff says he was released from that job because of his criminal record. The sequence of events, related by the plaintiff on cross-examination, (Transcript: pages 17 to 28) is somewhat blurred, no doubt because of lapses of the plaintiff's memory and his distaste for relating it all in public.
After being released from his job in the radar factory, the plaintiff found further employment under a pseudonym in the United States, manag ing two dry cleaning shops in Pittsburgh. He was living in the U.S.A. for about two years. In 1962, in Hamilton, Ontario, the plaintiff was convicted of two offences of armed robbery and was sen tenced to concurrent terms of 10 and 14 years imprisonment respectively. He was lodged in the penitentiaries in Kingston, Millhaven, Joyceville and Collins Bay, from which he escaped, and returned to the U.S.A. staying there about five years. The plaintiff again found employment, again under a pseudonym, but was convicted in the U.S.A. of possession of stolen goods, a cheque writing machine and a pistol, for which offence he was sentenced to a term of five years. Upon release from the U.S. prison the plaintiff was returned to Toronto where he was taken into custody by the Ontario Provincial Police to face the charge of escape. He was returned to Collins Bay, where he remained until he was released on that significant
22nd day of September, 1982. He was under sen tence of imprisonment from 1962 until 1982.
Even after he instituted this action, the plaintiff again squandered his liberty when in March, 1983, he was convicted, at Toronto, of breaking and entry and sentenced to a term of two years in prison. In August, 1983, while in custody for revocation of mandatory supervision, the plaintiff suffered a cardiac crisis and received appropriate medical treatment and medication which he must continue to take. It is provided free of charge to him. He also suffers from hernia which has been surgically treated. He obtained a divorce in 1973. The plaintiff, at the time of the trial, said he resides with his sister in Toronto. He said he was then unemployed but received welfare benefits of "about $50 a month".
The above recitation indicates why the damages awarded in the cases cited for the plaintiff are greater than he can expect to recover here. Upon becoming sui juris, if one does not exercise that restraint which nourishes personal liberty but con tinually victimizes others by means of criminal depredations, one is responsible for the devaluation of one's own liberty. Such a person cannot reason ably require the people and government of Canada to pay him a princely price for the liberty which he himself has constantly under-valued and squan dered. The plaintiff is a virtually life-long tax consumer who seeks to impose the price of his 43 days of loss of his cheap liberty on the taxpayers of Canada. Indeed, if all monetary values were coun- terpoised as sums, it is almost certain that the plaintiff would owe the people of Canada, whom he has cheated and robbed, more for food and lodging, social burden and criminal misconduct than he could ever pay. In that regard, it may be wondered why the defendant did not assert a set-off herein.
How, then, is the plaintiff to be compensated for his self-devalued, squandered liberty? His behavi oural record and his subsequent misconduct indi-
cate the probability that, left at large to his own devices on August 10, 1982, the plaintiff could well have incurred negative gain during the follow ing 43 days. Yet, he would (but for how long?) have been able to draw the sweet air of liberty and, arguably, might have been able to find legitimate employment. That counts for something, but in the plaintiff's particular case, not much. In 1982 he was being paid a wage of $35 per week in Collins Bay. If that were his measure of fixed compensa tion—$5 per day—his damages would be assessed at $215 for the 43 days. But even to the Charles LeBars of this world loss of liberty is worth more than that. Doubling that sum to $10, and realizing that if he had been so paid over the last 20 years, 1962 to 1982, when he was incarcerated (gener- ously overlooking his periods of being unlawfully at large, when self-help was his necessity), it is evident that he could have emerged from prison in 1982 with ($10 x 365 days x 20) $73,000, plus interest if he had frugally saved it all. The taxpay ers of Canada cannot reasonably be expected to pay more than $10 per day in general damages for the liberty which Mr. LeBar himself has so appar ently despised both before and after August 10, 1982. The Court therefore awards the plaintiff $430 in general damages for his unlawful impris onment between midnight of August 10, 1982, and whatever time he was released on September 22, 1982.
EXEMPLARY DAMAGES
Counsel for the defendant pleaded in argument that there was at the relevant time no computer whereby the defendant's servants could immedi ately identify the "20 or so" prison inmates (Tran- script: pages 73 and 74) out of a total inmate population of "13,000 people incarcerated in some seven provinces" (Transcript: page 89) who were in the same plight as the plaintiff's. As counsel rightly noted, there is no evidence before the Court about the necessity of effecting a manual search of inmate records, but even so, one may in law ask, "So, what?" Complex as the legislative provisions are, the judgment in the Maclntyre case did not further complicate computation of terms of impris onment. The statutory provisions remain as com plex as before.
It must be remembered that, through his solici tor and counsel the plaintiff attempted appropri ately to mitigate damages by reasonably timely notification of the defendant's proper servants, and even the Minister, to the effect that he ought to be released on the basis of a proper method of calcu lation declared by the Federal Court of Appeal. If the prison authorities had set a sentence adminis trator immediately to the task of computing and verifying the plaintiff's release date, and if he had thereupon been released, the Court would not now be considering exemplary damages. No one would begrudge the defendant's officials taking several hours, even a day, after notification, to calculate the plaintiff's correct date of release.
To ignore the Court's decision rendered the previous July 19 until September 22, 1982, was to evade the duty which it lawfully imposed for a period of 65 days. To ignore the solicitor's notifica tion of the effect of the Court's decision from August 13 to September 22 was to purport to repudiate both the decision and the duty it imposed for a period of 40 days. That is high- handed and arbitrary detention of the plaintiff. The Court's interpretation of the pertinent law, as already noted, became operative and authoritative upon its judgment having been rendered.
Exemplary damages are those which are also called "punitive", "aggravated", "retributory" and according to Linden (op. cit., page 51) even `vin- dictive" and "penal". Such a varied, but single- minded and strong nomenclature certainly conveys the judicial intention to denounce the defendant's misconduct. Although keeping the plaintiff unlaw fully for 43 days after his 20 years of imprison ment, excepting periods of his being unlawfully at large, could hardly inflict any additional humilia tion or loss of reputation upon him, it did consti tute oppressive, arbitrary and fundamentally unconstitutional conduct by servants of the defen dant. In this country where liberty is a constitu tionally, albeit conditionally, protected individual right and societal value, it is not tolerable to treat even this plaintiffs self-cheapened liberty, or anyone else's precious liberty, with insouciant disregard.
In all the circumstances here, however, there is one pejorative quality of the defendant's servants' misconduct which was not proved on the part of anyone in particular and which cannot be inferred, and that is malice. Their negligence and their oppressive and wilful or wanton disregard of the plaintiff's right to be released were amply abusive to support the award of exemplary damages. Despite reasonably timely notification, they per sisted in deliberately detaining him in prison until the day before his motion for a mandatory injunc tion was returnable in this Court in September, 1982. Unjustified by any explanation, their mis conduct is legally unjustifiable.
Here in the matter of exemplary damages, the taxpayers again will have to pay but now a more substantial assessment for the misconduct of the defendant's servants. This task of assessment is not an exact science. The assessment of exemplary damages must be an adequate disapproval of those servants' reprehensible misconduct in ignoring the law whose authoritative interpretation was clearly signalled to them, and in oppressively, abusively and deliberately disregarding the plaintiffs right to regain his conditional liberty and liberation from unlawful imprisonment. In light of the juris prudence, which, unfortunately for the assessor of damages, does not present any exactly, or even nearly, similar situation, the Court awards the plaintiff the sum of $10,000 exemplary damages.
The plaintiff is also entitled to his taxable costs of this action.
CONCLUSION
In summation: the plaintiff will have the judicial declaration which he seeks, that he is entitled to have the term of imprisonment to which he was sentenced calculated in accordance with the Feder al Court of Appeal's decision in Maclntyre v. The Queen, dated July 19, 1982; the plaintiff is to be paid general damages in the amount of $430 by the defendant; and the plaintiff is to be paid exemplary damages in the amount of $10,000 by the defendant; together with his taxable costs of this action.
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