T-258-74
Louis Joseph Rossi (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, January 21;
Ottawa, March 22, 1974.
Mandamus—Penitentiaries—Mandamus does not lie
against Crown—Considered on merits as against officers of
Penitentiary Service—Demand by inmate for documents on
his file—No public duty to furnish documents—Penitentiary
Act, R.S.C. 1970, c. P-6, s. 29—Canadian Bill of Rights,
S.C. 1960, c. 44.
The plaintiff, an inmate of a Canadian penitentiary, sought
mandamus to the defendant Crown, as represented by the
Solicitor General and officers of the Canadian Penitentiary
Service, requiring them to show cause why the Court should
not order them to furnish the plaintiff with all papers and
information pertaining to warrants outstanding against the
plaintiff in the hands of 'authorities in the States of Florida
and Connecticut, in the United States of America. It was
alleged that the failure to give such information was con
trary to the Canadian Bill of Rights and the penal law of
Canada and resulted in the inmate's being deprived of a full
defence to criminal charges.
Held, dismissing the application, mandamus does not lie
against the Crown. As for the Crown officers named as
representing the Crown, mandamus lies to secure the
performance of a public duty, in the performance of which
the applicant has a sufficient legal interest. It does not lie to
compel the performance of a moral duty or to order any
thing to be done contrary to law. The custody and treatment
of penitentiary inmates are governed by Regulations under
the Penitentiary Act, R.S.C. 1970, c. P-6, section 29. Subject
to such Regulations, the Commissioner of Penitentiaries can
issue directives for custody and treatment. A directive pro
hibiting the giving to the inmate of documents or copies on
his file is a decision by an administrative officer within the
scope of his authority and based on the need for keeping
information confidential and within the limits of security.
There is nothing in the directive contrary to the Canadian
Bill of Rights and no abuse of natural justice. Any moral
obligation owing by the Crown officers to the plaintiff
inmate was fulfilled by their furnishing him with particulars
of the warrants held against him by authorities in Miami,
Florida, and New Haven, Connecticut.
MOTION.
COUNSEL:
Plaintiff not represented.
J. P. Belhumeur for defendant.
SOLICITORS:
Plaintiff not represented.
Deputy Attorney General of Canada for
defendant.
WALSH J.—Plaintiff applies for a writ of man-
damus against defendant as represented by the
Honourable Warren Allmand, Mr. Paul Faguy,
Mr. Gerald Marineau, Mr. Robert Martin, and
Mr. Jean Fouquette, enjoining them to show
cause why the Court should not order them to
furnish plaintiff with all papers and information
pertaining to the alleged outstanding warrants
and/or hold orders issued against plaintiff by the
offices of the District Attorneys in the States of
Florida and Connecticut in the United States of
America. The application alleges that their fail
ure to do so deprived him of his constitutional
rights as an American citizen and his rights as a
Canadian resident in contravention of the
Canadian Bill of Rights and Canadian penal
laws, thereby depriving him of a full and com
plete defence to any and all criminal charges.
Plaintiff in his motion requests that the Court
obtain copies of the said warrants and/or hold
orders and of the Commissioner's Directive No.
2471(1) signed by Mr. Paul Faguy. He further
indicated that he would like to present the
motion himself and requested the Court to issue
a writ of habeus corpus ad testificandum in
order that he might attend. The motion is sup
ported by a solemn declaration and makes refer
ence to the statement of claim indicating the
facts in support of the motion.
The facts as set out in the statement of claim
indicate that plaintiff is an inmate at the max
imum security Archambault Institution in Ste-
Anne des Plaines, Quebec, that the classifica
tion department maintains a file pertaining to
each inmate which files are not open to inspec
tion and that since a summary of the contents is
not given to the inmate they may contain facts
unknown to the inmate, including correspond-
ence sent to or by inmates, accusations or other
allegations unknown to the inmate without his
having had the opportunity to refute them or
having had a fair trial or hearing, that the con
tents of these files are not confined to use in the
particular penitentiary but are also available to
other departments within the Canadian peniten
tiary system, the National Parole Board and
possibly others. The statement of facts goes on
to say that in the course of an interview with
Mr. Robert Martin, the Chief Classification
Officer, plaintiff was told that he could not be
transferred to a medium security institution
because there were outstanding warrants and/or
hold orders issued against him by the offices of
the District Attorneys in the States of Florida
and Connecticut. On requesting to see these
documents he was referred to Mr. Jean Fou-
quette, his Classification Officer, and was not
permitted to see them on the basis of Directive
No. 2471(1) dated December 13, 1973 signed
by Mr. Paul Faguy, the Commissioner of Peni
tentiaries. Plaintiff has requested the Institution
al Director, Mr. Gerald Marineau, to see the
said warrants and hold orders and his request
has been unanswered. He contends that the
Directive No. 2471(1) is a violation of existing
rules, laws and regulations governing the
administration of justice in Canada such as the
Canadian Bill of Rights and Canadian penal law
which guarantees a complete and full answer to
any criminal charges against an accused. He
also contends that by being denied access to
these warrants he is unable to prepare a defence
against these charges and is denied his rights as
an American citizen to a just and speedy trial
according to the United States Constitution. He
further contends that in view of his lengthy
incarceration in Canada the applicable statutes
of limitation on these warrants or hold orders
may invalidate them so they would no longer
serve as justification in preventing his transfer
to a medium security institution.
At the hearing of the application for a writ of
mandamus plaintiff was not represented, no
writ of habeus corpus ad testificandum having
been issued. Defendant was represented by
counsel and was asked by the Court for an
explanation as to why the information plaintiff
requested from his classification file could not
be given to him. A letter dated January 17, 1974
from Mr. Fouquette to the Crown counsel was
filed which stated that on October 26, 1973 the
Canadian Penitentiary Service had received
from the Department of Justice in the United
States, Florida District, Miami, correspondence
advising that that department held an arrest
warrant against Louis Joseph Rossi whose real
name is Salvatore Raffone, and that there were
also against him two failures to appear in New
Haven, Connecticut. On December 4, 1973 a
telex from the Royal Canadian Mounted Police
advised the Canadian Penitentiary Service that
Louis Joseph Rossi had been identified by the
F.B.I. as being D. Salvatore J. Raffone, alias
Vincent Louis Durso whose criminal record had
commenced in the United States in 1960 and
that he was wanted by the F.B.I. at New Haven,
Connecticut. On December 6, 1973 the detailed
criminal record of Rossi was received from the
American Department of Justice. On December
18, 1973 plaintiff had an interview with the
Classification Supervisor, Mr. Robert Martin,
who told him that they were aware of his
American criminal record which was probably
the reason for the refusal to transfer him into a
medium security institution. On December 20,
1973 Rossi requested from his Classification
Officer a copy of any warrants against him. He
was advised that a Directive of the Commission
er prohibited the giving to an inmate of the
documents or copies of documents in his file.
He was also advised that there was no warrant
against him in his file save the committal war
rant. On December 28, 1973 he sent a request
to the Director of the institution complaining
that he was unable to get from his Classification
Officer permission to himself copy the contents
of the information against him.
The Court took the matter under advisement,
suggesting that counsel for defendant might
endeavour to see whether it was not possible,
without actually giving plaintiff access to his
file, to give him precise information with
respect to the contents of same on the basis that
it might at first sight appear unreasonable that a
person should not know what he is accused of if
this information is, in fact, being acted upon to
his detriment. Further documentation has now
been placed in the file consisting of a letter
dated January 23, 1974 from counsel for
defendant to Mr. Fouquette, requesting a copy
of the rules dealing with confidentiality of files
of inmates in penitentiaries, and confirmation
that the prisoner had been informed of the
information in his file concerning the accusa
tions brought against him and warrants issued
against him by the American authorities. A
reply to this dated January 31, 1974 repeated
that the file contained no arrest warrant against
plaintiff but merely correspondence from the
Department of Justice in Florida indicating that
they hold a federal warrant against him and that
there are also two unlawful flight to avoid pros
ecution warrants from New Haven, Connecti-
cut. The plaintiff was informed of this so that he
can, if he wishes, obtain any further information
from the American authorities in Miami or New
Haven.
Dealing with the merits of the application, it
would be simple to say that it should be dis
missed since, in any event, mandamus does not
lie against the Crown. Since the proceedings
could be amended, however, or recommenced
so as to direct them to the various penitentiary
officers named in them, described in the
application as representing the Crown, it is not
desirable that the application should be dis
missed on the question of procedure alone with
out some consideration on the merits.
The application must also fail on the merits,
however. A writ of mandamus lies to secure the
performance of a public duty, in the perform-
ance of which the applicant has a sufficient
legal interest. It does not lie to compel the
performance of a mere moral duty or to order
anything to be done that is contrary to law (see
S. A. de Smith: Judicial Review of Administra
tive Action, 2nd ed., at pages 561-563. "Nor .. .
will it issue in respect of a merely private duty,
... or against a respondent who is not com-
mandable by the court or by whom the duty is
not owed." Op. cit. page 579. Even if all the
conditions for the issue of a mandamus exist, it
is a discretionary remedy and the Court will
refuse to issue it if it is unnecessary or the
object of which the application was made has
already been attained—op. cit. 579).
In the present case it is likely that plaintiff
was already well aware of the warrants out
standing against him in the United States and
the reasons for which they had been issued;
even if he were not, the verbal information
given him by Mr. Fouquette as to the corre
spondence in his file relating to these warrants
is sufficient to make him aware of the nature of
the charges outstanding against him. The war
rants themselves are not in his file in Canada
and if he requires further information with
respect to them he should address himself to the
American authorities by whom they were
issued. It is certainly not the responsibility of
the Canadian penitentiary authorities to repre
sent him in seeking to obtain for him any further
information which he may require. In disclosing
the information they have in their file they have
fulfilled any obligation of natural justice which
they may have toward him.
The Penitentiary Act' contains provision for
the committal, reception and transfer of
inmates. Section 29 provides that the Governor
in Council may make regulations, inter alia, for
the custody and treatment of inmates and gener
ally for carrying into effect the purposes and
provisions of the Act. Subject to any such regu
lations, the Commissioner may issue directives
for, inter alia, the administration and good gov-
' R.S.C. 1970, c. P-6.
ernment of the Service and for the custody and
treatment of inmates. Although Directive
2471(1) is not in the file, the correspondence
refers to the Commissioner's Directive prohibit
ing the giving to the inmate of documents or
copies of documents in his file. The reason for
such a directive is readily apparent since such
information might well be confidential or should
not be disclosed for security reasons, and the
Act empowers him to make such a directive.
There is certainly nothing contrary to the
Canadian Bill of Rights or any abuse of natural
justice resulting from the existence of such a
directive which appears to be purely an adminis
trative matter and the Courts cannot interfere
when an administrative decision is made by an
administrative officer within the scope of his
authority.
For all the above reasons, therefore, no man-
damus lies in the present case.
JUDGMENT
Plaintiff's application for issuance of a writ of
mandamus is dismissed.
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.