A-294-83
Raymond Lussier (Appellant)
v.
Robert Collin (Respondent)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.—Montreal, December 11 and 12, 1984.
Judicial review — Prerogative writs — Trial Judge granting
certiorari setting aside transfer to other penitentiary and
awarding damages — Allegation transfer jeopardizing person
al security not established — Awarding of damages unfounded
— Validity of transfer academic as respondent free.
Constitutional law — Charter of Rights — Penitentiaries —
Appeal from decision quashing transfer and damages award
— Damages claim based on contravention of Charter s. 7 —
Respondent in poor health — Allegation transfer to other
penitentiary jeopardizing security of person not established —
Presuming respondent's right to damages under s. 24, rules of
procedure not allowing such order on motion — Part of
judgment a quo awarding damages unfounded — 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, 24.
Practice — Relief under Charter s. 24 unavailable by
motion — Charter not permitting disregard for practice rules
— Proceeding by motion prejudicial to right of defendant to
raise all defences — Order to pay damages to be deleted from
judgment a quo — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 24.
COUNSEL:
S. Barry for appellant.
N. Daignault for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Daignault & Lemonde, Montreal, for
respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The judgment a quo granted an
application for certiorari made by the respondent
while he was serving a sentence of imprisonment in
a federal institution. The judgment [[1983] 1 F.C.
218] quashed the decision ordering the respondent
to be transferred from the Leclerc Institution to
the Laval Institution and ordered the appellant to
pay the respondent the sum of $18,136 in
damages.
The Judge based his order to pay damages on an
alleged infringement of section 7 of 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.)] an infringement
alleged to have resulted from the fact that, in view
of the respondent's state of health, his transfer to
another penitentiary jeopardized the security of his
person. In my view this part of the judgment a quo
is clearly unfounded. There was nothing in the
evidence on the basis of which it could be said that
the respondent's transfer jeopardized the security
of his person. Moreover, even if the respondent
had been entitled to claim damages, he could
certainly not do so simply by means of an applica
tion. Even if it is presumed that section 24 of the
Charter gives a right to claim damages, it certainly
does not permit the rules of procedure prescribing
how such claims must be made to be ignored. It
follows that the part of the judgment a quo which
awarded the respondent damages must be
quashed.
There is no need to rule on the merits of the
remainder of the judgment. The only issue it raises
is the validity of the decision respecting the
respondent's transfer. This issue is no longer of any
practical interest since according to what counsel
told us at the hearing, the respondent has now
been released.
For these reasons I would quash that part of the
judgment a quo which ordered the appellant to
pay the respondent damages and would amend the
judgment accordingly; with respect to the remain
der of the judgment, I would dismiss the appeal
without costs on the ground that the problem it
raises is now devoid of any practical interest.
MARCEAU J.: I concur.
* * *
The following is the English version of the
reasons for judgment rendered by
HUGESSEN J.: In agreement with my brother
Judges, I am of the view that the order to pay
damages must be deleted from the judgment a
quo. The rules of procedure do not allow such an
order to be made on a mere motion; to maintain
the contrary would seriously prejudice the right of
the defendant to raise all his defences.
With respect to the remainder of the judgment a
quo, we were informed at the hearing that the
respondent is no longer being detained in a federal
institution and that he is now on full parole.
Hence, in my view, the debate regarding the legal
ity of his transfer from one institution to another
no longer has any purpose, whatever the reasons
given by the Trial Judge for setting aside this
transfer. In these circumstances I do not think that
we should rule on the issues raised.
I would dispose of this appeal in the same way
as my brother Judges.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.