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.
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.