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Andre Filion and Roger Poirier (Applicants)
v.
The Queen (Respondent)
Trial Division, Pratte J.—Montreal, November 13; Ottawa, November 17, 1972.
Practice—Jurisdiction—Crown—Witnesses—Action for injunction to compel transfer of prisoners to different institu- tion—Motion for interlocutory injunction—Motion to allow attendance of witnesses at hearing Dismissal of motion— Federal Court Rules 319, 321(1).
Two persons imprisoned in penitentiaries were trans ferred to the Special Correctional Unit of St. Vincent de Paul Penitentiary in Quebec. They brought an action in this Court for an injunction ordering their transfer to another penitentiary and at the same time applied for an interlocuto ry injunction, alleging that their transfer to the Correctional Unit infringed their rights and fundamental freedoms under section 2(1) of the Canadian Bill of Rights in that the conditions there were inhuman, barbaric and degrading, etc., and asking for an order to ensure that 48 witnesses, 47 of whom were in prison, should be present to testify at the hearing of their motion.
Held, that the application is dismissed. The applicants have not established a special reason for calling witnesses in support of their motion as required by Federal Court Rule 319.
Held also, that an application by respondent to dismiss the motion for an interlocutory judgment must be dismissed.
1. The Court's jurisdiction to refuse to grant an interlocu tory injunction should be determined by the judge who hears the motion.
2. Federal Court Rule 321(1) does not require notice of a motion to set forth facts, and hence applicants' motion should not be struck out even though the facts alleged therein might not constitute grounds for the relief claimed.
3. While an injunction cannot be awarded against the Crown, an amendment to substitute other parties will be permitted.
MOTION.
Pierre Cloutier for applicants.
Gaspard Côté and Alain Nadon for respondent.
PRATTE J.—Applicants ask the Court to issue the necessary orders so that 48 persons (47 of whom are in prison at the present time) will come and testify on the facts relating to a motion for an interlocutory injunction they wish to submit to the Court.
On November 7, 1972, Filion and Poirier, who are inmates at the Special Correctional Unit of St. Vincent de Paul Penitentiary, brought an action requesting the Court to issue an injunction ordering their transfer to another penitentiary. On the same day they filed with the Registry of the Court a written motion for an interlocutory injunction. In the first two paragraphs of the written motion applicants allege that they were transferred from the peni tentiaries in which they were imprisoned to the Special Correctional Unit of St. Vincent de Paul Penitentiary; the remainder of the document reads as follows:
3. Those transfers to the Special Correctional Unit seri ously infringe on the rights and fundamental freedoms of the applicants in that the detention conditions in that institu tion (a monster-producing factory) are in fact inhuman, barbaric, degrading, contrary to all inmate rehabilitation programs now in force in Canada and constitute a flagrant violation of s. 2(b) of the Canadian Bill of Rights, S.C. 1960, c. 44, which reads as follows:
Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(b) impose or authorize the imposition of cruel and unusual treatment or punishment;
4. The applicants wish to call the following persons in support of their application:
. . . (The names of 48 persons, 47 of whom are in prison at the present time, follow.)
The applicants therefore ask that subpoenas and orders to appear be issued by this Honourable Court so that the above-mentioned persons will be present at the hearing of this case.
The applicants further wish that orders to appear be issued in their names so that they will be present.
For these reasons, the applicants ask that this Honourable Court issue an injunction order against the respondent to take all necessary measures so that the applicants will be transferred immediately from the Special Correctional Unit to any other penitentiary that it may please her to choose, until a final judgment is rendered. The whole with costs against the defendant.
To this application were attached an affidavit by the two applicants (attesting the truth of the facts mentioned in the application), and a notice that "this application" would be presented on Monday, November 13, 1972.
On that date, after explaining the nature of the proceedings, counsel for the applicants asked the Court to make the necessary orders so that the 48 above-mentioned persons would be called as witnesses regarding the issues of fact raised by the motion for an interlocutory injunction which would be presented at a later date fixed by the Court.
Counsel for the respondent not only contest ed this application but argued that I should dismiss forthwith the motion for an interlocuto ry injunction for the following three reasons:
1. The Court does not have power to issue the said injunction because it does not have jurisdiction to control the exercise of a purely administrative discretion.
2. The allegations of fact contained in the written motion are such that, even if they were presumed to be true, applicants would not be entitled to the interlocutory injunction they are requesting.
3. The motion is directed against Her Majesty the Queen; the Courts do not have the power to issue an injunction against the Crown.
Before discussing these three points, a pre liminary comment is called for. Although appli cants have indicated their intention to make a motion for an interlocutory injunction, they have not yet done so. The only application they have made to the Court concerns the 48 wit nesses they wish to call. It was obvious from the written application served on respondent that what they were proposing to ask on November 13, 1972 was not that the Court issue an interlocutory injunction but, rather, that it take the necessary steps to enable the 48 witnesses mentioned in the application to testi fy. If I were to refuse the motion for an inter locutory injunction today—as counsel for the respondent contends I should—I would be
refusing a motion before it had been made. A party that has received notice that a motion will be made on a certain date may certainly ask, before that date, that the notice of motion be struck out. But anyone wishing to do so must himself give notice of his request to his adverse party before presenting his request. Counsel for the respondent, who intended to ask that the motion for an interlocutory injunction be refused before it was made, would therefore have had to give prior notice to counsel for the applicants. However, since the latter did not complain of not having received such notice I cannot, as I would otherwise have done, refuse to consider the arguments advanced by counsel for the respondent in support of her request that the motion for an interlocutory injunction be refused. I shall study those arguments in the order in which I have set them out above.
1. Should the motion for an interlocutory injunction be refused on the grounds that, by granting it, the Court would be exceeding its jurisdiction?
I do not think it wise to give an answer to this question at this stage of the proceedings. Before making their motion, applicants may decide to produce other evidence. For this reason, the judge to whom the motion is presented may be better able to rule on this difficult question than I am today.
2. Should the motion for an interlocutory injunction be struck out because the facts alleged therein would not constitute grounds for the relief claimed?
This question would perhaps have to be answered in the affirmative if procedure in the Federal Court were governed by the Code of Civil Procedure of Quebec. But such is not the case. According to the Rules of practice of the Court, anyone wishing to make a motion must do so orally at the hearing, after having served on the adverse party, in addi tion to affidavits attesting all the facts on which the motion is based, a notice of motion "which shall show, in addition to the subject of the motion, the date, time and place of the hearing" (Rule 321(1)). If applicants had complied with the Rules, therefore, they would have filed and served not a written
motion but only a notice of motion in which no fact would have been alleged. Respondent cannot therefore complain that the allegations in the motion are insufficient.
3. Should the injunction motion be struck out because it is directed against the Crown?
Counsel for the applicants admitted that the Court could not issue an injunction against the Crown. He explained that he had first wanted to direct both his action and his motion for an interlocutory injunction against "Aubert Laferrière, Director General of fed eral penitentiaries in Quebec" and against "The Minister of Justice and Attorney Gener al of Canada". Apparently it was only after an officer of the Registry of the Court had told him that proceedings of this sort had to be brought against Her Majesty the Queen that counsel for the applicants had amended, in pen, the title of his declaration and motion. Having given these explanations, counsel for the applicants asked for leave to amend his motion and his declaration so that the pro ceedings would no longer be directed against Her Majesty the Queen but against "Aubert Laferrière Director General of federal peni tentiaries in Quebec" and against "The Minis ter of Justice and Attorney General of Cana- da". I indicated at the hearing that I intended to allow the request for amendment, and I have not changed my mind. Counsel for the applicants is therefore permitted to amend, without costs, his declaration and his motion in the way that I have just stated. The amend ed declaration and a new notice of motion for an interlocutory injunction will have to be served on Aubert Laferrière.
Therefore I have come to the conclusion that, at this stage of the proceedings, the motion for an interlocutory injunction cannot be struck out on the grounds cited by counsel for the respondent. Now I must still dispose of appli cants' request to call as witnesses the 48 per sons mentioned in their motion. Normally, I should not dispose of this request before notice has been given to the party against whom appli cants wish to obtain an interlocutory injunction. In the circumstances, I do not believe that I
would be serving the ends of justice by post poning my decision on this point.
Under Rule 319, all the facts on which a motion is based (with the exception of those that appear from the record) must be supported by one or more affidavits. It is only "by leave of the Court" and "for special reason" that a witness can be called to testify in relation to an issue of fact raised by an application. In the present instance, counsel for the applicants nei ther proved, nor even mentioned, any special reason that would justify my permitting him to call witnesses in support of the motion for an interlocutory injunction.
The application is therefore dismissed. The hearing of the motion for an interlocutory injunction will be on November 27, unless the Court, at the request of either party, decides otherwise. Until the hearing, counsel for the applicants may, if he deems fit, produce and serve other affidavits attesting the facts on which the motion for an interlocutory injunc tion is based.
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