T-1362-83
Bailey Bedard (Applicant)
v.
Correctional Service of Canada and Director of
the Leclerc Institution (Respondents)
Trial Division, Muldoon J.-Ottawa, September
23 and 30, 1983.
Penitentiaries - Convict serving sentence in federal peniten
tiary for narcotics offence - Numerous outstanding warrants
of committal for unpaid parking tickets and highway traffic
offences - Convict seeking mandamus ordering Correctional
Service and Institution Director to receive and execute out
standing warrants - No statute imposing on respondents duty
to execute municipal and provincial warrants of committal
No federal-provincial agreement wherein Quebec Government
agreeing such warrants to be executed by federal penitentiary
officials - Durand v. Forget et al. (1980), 24 C.R. (3d) 119
(Que. S.C.) explained - Application denied - Penitentiary
Act, R.S.C. 1970, c. P-6, s. 15 (rep. and sub. S.C. 1976-77, c.
53, s. 39) - Penitentiary Service Regulations, C.R.C., c. 1251
- Prisons and Reformatories Act, R.S.C. 1970, c. P-21
Parole Act, R.S.C. 1970, c. P-2.
Constitutional law - Charter of Rights - Whether Charter
rights to liberty, not to be arbitrarily detained or imprisoned,
to trial within reasonable time and to benefit of lesser punish
ment violated when convict in federal penitentiary denied
possibility of serving concurrently sentence for narcotics
offence and sentences for non-payment of parking and traffic
fines under provincial legislation - Federal Court not "court
of competent jurisdiction" under s. 24 of Charter with respect
to administration of provincial laws - Mandamus denied
Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4 - Criminal
Code, R.S.C. 1970, c. C-34, ss. 2, 659(1),(2) (rep. and sub. S.C.
1974-75-76, c. 93, s. 79), (3),(4) - Penitentiary Act, R.S.C.
1970, c. P-6, s. 15 (rep. and sub. S.C. 1976-77, c. 53, s. 39)
Summary Convictions Act, R.S.Q. 1977, c. P-15, ss. 1(4),
63.14, 72 (as am. by S.Q. 1982, c. 32, s. 9) - 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, 9, 11(6),(i), 24 - Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52(1).
Jurisdiction - Federal Court, Trial Division - No juris
diction in Court, under s. 24 of Charter, with respect to
administration of provincial laws as regards crediting appli
cant's time in federal penitentiary towards provincial sen-
tences, or arbitrary detention or imprisonment — Mandamus
denied — Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4 —
Criminal Code, R.S.C. 1970, c. C-34, ss. 2, 659(1),(2) (rep. and
sub. S.C. 1974-75-76, c. 93, s. 79), (3),(4) — Penitentiary Act,
R.S.C. 1970, c. P-6, s. 15 (rep. and sub. S.C. 1976-77, c. 53, s.
39) — Summary Convictions Act, R.S.Q. 1977, c. P-15, ss.
1(4), 63.14, 72 (as am. by S.Q. 1982, c. 32, s. 9) — 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, 9, 11(b),(i), 24 — Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52(1).
The applicant, who is serving a five-year sentence in a federal
penitentiary in Quebec for trafficking in narcotics, seeks a writ
of mandamus ordering the respondents to receive and execute
all extant warrants of committal for non-payment of parking or
traffic fines incurred under Quebec legislation. The applicant,
relying on subsection 659(2) of the Code, seeks to serve his
sentences concurrently. The question is whether that subsection
applies to sentences imposed not only under federal laws but
also under municipal by-laws and provincial laws. The appli
cant also relies on the provisions of a 1983 Quebec statute
concerning warrants of committal, fines and penalties.
Sections 7, 9, 11(b) and (i) of the Charter are also invoked in
support of the argument that subsection 659(2) creates prejudi
cial inequality in light of subsection 659(4).
Held, the application for mandamus should be dismissed.
Mandamus will not lie to compel a public authority to do
something which is not required by law, especially where no
federal officer has authority to overrule or amend warrants
issued by provincial judicial officers and where there is no
federal-provincial agreement on the subject. The Durand case
is not authority to the contrary.
Section 7 of the Charter is of no help to the applicant since
there is no violation of his right to liberty. Furthermore, the
Federal Court is not "a court of competent jurisdiction" within
the meaning of section 24 of the Charter to compel the Quebec
authorities to credit the applicant's time in the penitentiary
towards his provincial sentences. Neither is it competent with
respect to the administration of the laws of Quebec, preventing
it from intervening even if the unfounded allegation of arbi
trary detention or imprisonment had been true. As for the right
to be tried within a reasonable time, guaranteed by paragraph
11(b) of the Charter, it cannot be read as a right to undergo
one's imprisonment within a reasonable time. Paragraph 11(i)
of the Charter, guaranteeing the right to the lesser punishment
where it is varied between the commission of the offence and
sentencing, has no application in the circumstances of this case.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Durand v. Forget et al. (1980), 24 C.R. (3d) 119 (Que.
S.C.).
REFERRED TO:
St-Germain v. The Queen, judgment dated February 10,
1976, Quebec Court of Appeal, 10-000108-744, not
reported; Olson v. The Queen, [1980] 1 S.C.R. 808; Re
Dinardo and the Queen (1982), 67 C.C.C. (2d) 505 (Ont.
C.A.); Re Federal Republic of Germany and Rauca
(1982), 70 C.C.C. (2d) 416 (Ont. H.C.); Quebec Asso
ciation of Protestant School Boards et al. v. Attorney-
General of Quebec et al. (1982), 140 D.L.R. (3d) 33
(Que. S.C.).
COUNSEL:
Céline Pelletier for applicant.
Stephen Barry for respondents.
SOLICITORS:
Sirois, Rumanek, Denault, Corte, Spagnoli &
Carette, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
MULDOON J.: The applicant is presently serving
a term of five years' imprisonment, to which he
was sentenced on 19 July, 1977, upon a conviction
of an indictable offence contrary to section 4 of the
Narcotic Control Act [R.S.C. 1970, c. N-1]. He is
presently incarcerated in the Leclerc Institution, a
federal penitentiary, situated in the City of Laval,
in the district of Montreal, Province of Quebec.
By his affidavit, the applicant alleges that there
are 37 warrants of committal extant for non-pay
ment of some $860 in fines exclusive of costs,
directed to peace officers to apprehend the appli
cant and to deliver him to the warden of the
common gaol, who is directed to keep him under
custody for a total of 123 non-concurrent days,
unless the fines, together with the costs be sooner
paid. Each of the fines was levied for a conviction
pronounced pursuant either to City of Montreal
parking by-laws or regulations, or to provisions of
the Highway Code [R.S.Q. 1977, c. C-24] of the
Province of Quebec. The earliest warrant was
issued on 30 April, 1979, and last one on 22
September, 1980.
The applicant now seeks a writ of mandamus, or
an order of the nature of such a writ, ordering the
respondents to receive and to execute immediately
all of the warrants of committal which he has
disclosed in his affidavit. The applicant's reasons
for seeking mandamus are stated to be that:
1. The refusal by the respondents to receive and to
execute the warrants of incarceration above
alleged, runs counter to subsection 659(2) of the
Criminal Code [R.S.C. 1970, c. C-34 (rep. and
sub. S.C. 1974-75-76, c. 93, s. 79)]; and
2. The respondents' refusal to execute the warrants
of incarceration before the expiration of the sen
tence which he is presently serving will cause
prejudice to the applicant.
The cited provision of the Criminal Code, in
context, is
659. (1) Except where otherwise provided, a person who is
sentenced to imprisonment for
(a) life,
(b) a term of two years or more, or
(c) two or more terms of less than two years each that are to
be served one after the other and that, in the aggregate,
amount to two years or more,
shall be sentenced to imprisonment in a penitentiary.
(2) Where a person who is sentenced to imprisonment in a
penitentiary is, before the expiration of that sentence, sentenced
to imprisonment for a term of less than two years, he shall be
sentenced to and shall serve that term in a penitentiary, but if
the previous sentence of imprisonment in a penitentiary is set
aside, he shall serve that term in accordance with subsection
(3).
(3) A person who is sentenced to imprisonment and who is
not required to be sentenced as provided in subsection (1) or
(2) shall, unless a special prison is prescribed by law, be
sentenced to imprisonment in a prison or other place of confine
ment within the province in which he is convicted, other than a
penitentiary, in which the sentence of imprisonment may be
lawfully executed.
(4) Where a person is sentenced to imprisonment in a
penitentiary while he is lawfully imprisoned in a place other
than a penitentiary he shall, except where otherwise provided,
be sent immediately to the penitentiary and shall serve in the
penitentiary the unexpired portion of the term of imprisonment
that he was serving when he was sentenced to the penitentiary
as well as the term of imprisonment for which he was sentenced
to the penitentiary.
Neither the applicant nor the respondents dis
pute that the applicant is "a person who is sen-
tenced to imprisonment in a penitentiary" and that
this application is brought "before the expiration
of that sentence". It is also beyond dispute that the
applicant has been "sentenced to imprisonment for
a term of less than two years" being the aggregate
of 123 non-concurrent days conditionally imposed,
in default of payment of the fines and costs, for
offences against municipal parking by-laws or
regulations and the Highway Code of Quebec.
In seeking mandamus, the applicant is asserting
that the respondents are legally obliged to receive
the 37 warrants and to execute them in order that
the applicant may serve those 123 non-concurrent
days of imprisonment at the same time as he
purges the rest of the sentence which was imposed
upon him on 19 July, 1977, under the Narcotic
Control Act. The question, in effect, is: does sub
section 659(2) comprehend sentences imposed not
only pursuant to the Criminal Code and other laws
of Canada, but also sentences imposed pursuant to
the laws of a province and one of its municipali
ties?
Counsel for the applicant points first to those
provisions of section 2 of the Criminal Code
whereby, for purposes of that Code, the expression
Act or "loi" includes
2....
(a) an Act of the Parliament of Canada,
(b) an Act of the legislature of the former Province of
Canada,
(c) an Act of the legislature of a province ....
She produces, in second place, those provisions of
the Summary Convictions Act of Québec R.S.Q.
1977, c. P-15, which, she argues, have relevance to
the case. Those provisions were amended by S.Q.
1982, c. 32 [s. 9]:
63.14 A warrant of commitment issued while a defendant is
already imprisoned in a house of detention or a penitentiary
must be given forthwith to the director of the house of deten
tion where the defendant is detained.
The justice of the peace who issues the warrant may order
that imprisonment for the new conviction be served consecu
tively to any other period of imprisonment. However, the
justice must order that imprisonment for failure to pay the fine
be served consecutively if it is proved to him that imprisonment
currently being served has itself been imposed for failure to pay
a fine.
72. (1) Whenever a fine or a penalty may be imposed for any
offence, the amount of such fine or penalty shall, within such
limits, if any, as are prescribed in that behalf, be in the
discretion of the court or person passing sentence or convicting.
(2) The term of imprisonment in pursuance of any conviction
shall, unless otherwise directed in the conviction, commence on
and from the day of imprisonment following the conviction, but
no time during which the convict is out on bail or during an
escape shall be reckoned as part of the term of imprisonment to
which he is condemned.
Section 63.14 is a new provision, having been
enacted, in common with other provisions on the
same subject in January, 1983.
Counsel for the applicant also contends, in the
alternative, that 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.)], particularly sections 7, 9 and 11(b)
(and perhaps 11(i) also), when read with section
52(1) of the Constitution Act, 1982, had the effect
of rendering subsection 659(2) of the Criminal
Code to be of no force or effect, because, she
argues, subsection 659(2) creates prejudicial ine
quality of treatment in light of subsection 659(4)
of the Code.
Counsel for the applicant cites, in support of the
application, the following jurisprudence: St-Ger-
main v. The Queen, a unanimous decision of the
Quebec Court of Appeal rendered on February 10,
1976, in Montreal as No. 10-000108-744 [not
reported]; Olson v. The Queen, [1980] 1 S.C.R.
808 rendered unanimously "by the Court";
Durand v. Forget et al. (1980), 24 C.R. (3d) 119,
a decision of Mr. Justice Boilard of the Superior
Court of Quebec; Re Dinardo and the Queen
(1982), 67 C.C.C. (2d) 505, a unanimous decision
of the Ontario Court of Appeal; Re Federal
Republic of Germany and Rauca (1982), 70
C.C.C. (2d) 416, a decision of Chief Justice Evans
of the High Court of Ontario; and Quebec Asso
ciation of Protestant School Boards et al. v.
Attorney-General of Quebec et al. (1982), 140
D.L.R. (3d) 33, a decision of Chief Justice Des-
ch - dries of the Superior Court of Quebec.
Counsel for the respondents accepts the appli
cant's challenge and asks: Is there a public duty
imposed on the respondents for which mandamus
will lie? He asserts, and quite correctly, that man-
damus will not lie to compel a public authority to
do something which is not required by law. The
respondents' duties are defined by the Penitentiary
Act, R.S.C. 1970, c. P-6, and the Penitentiary
Service Regulations, C.R.C., c. 1251, together
with the directives, standing orders and routine
orders promulgated thereunder. Counsel for the
respondents remarks that no provision can be
found in the Criminal Code, the Penitentiary Act,
supra, the Parole Act, R.S.C. 1970, c. P-2, or the
Prisons and Reformatories Act, R.S.C. 1970, c.
P-21, which imposes any duty upon the respond
ents requiring them to execute the 37 municipal
and provincial warrants of committal for non-pay
ment of fines and costs. I agree. Certainly, the
provisions of section 659 of the Criminal Code
create no such obligation. Apart from the mere
mention of "penitentiary" in section 63.14 of the
Summary Convictions Act of Quebec, which men
tion serves only to identify the defendant, nothing
in that statute authorizes federal penitentiary ser
vice members to intervene in its administration.
Indeed, subsection 1(4) of that Act specifically
excludes a penitentiary from the meaning of a
"house of detention". There is no incorporation by
reference of provisions of the Quebec statute by
the Criminal Code and vice versa. Accordingly, no
federal officer has any authority to overrule or
amend the warrants issued by the provincial judi
cial officers.
Neither counsel was able to cite any federal-pro
vincial agreement, of the sort provided in section
15 of the Penitentiary Act or of any other sort,
whereby the Government of Quebec agrees that
warrants of incarceration for non-payment of
fines, issued pursuant to provincial or municipal
legislation, are to be executed by federal peniten
tiary officials. Even if this Court were to order the
respondents to receive and to execute the warrants,
their compliance with such order would be futile,
in so far as the applicant is concerned, if his
serving of the 123 consecutive days in the Leclerc
Institution were not credited to him under the law
of Quebec.
Counsel for the applicant contends that the
Durand case (supra) is authority for the proposi
tions advanced on behalf of the applicant. That
case is summarized in Martin's Criminal Code,
1982, thus [at page 634]: "This sub-section
[659(2)] applies and requires the additional term
of imprisonment to be served in the penitentiary
even where it is imposed for violations of provin
cial statutes". Careful perusal of the reasons and
order expressed by Mr. Justice Boilard does not
support that proposition. The respondents in the
Durand case, according to the signed transcript of
the judgment (District of Montreal No.
05-013346-802) were "Maurice Forget, es -qualité
de commandant section des mandats pour la police
de la Communauté Urbaine de Montréal, et La
Communauté Urbaine de Montréal -et- Le Procu-
reur général de la Province de Québec, et le Procu-
reur général du Canada, mis -en-cause". Neither
the signed typescript, nor the published report of
the case in 24 C.R. (3d), indicates any representa
tions by counsel for the two attorneys general or
that they participated in any manner whatsoever
in the proceedings. The operative effective order
pronounced by Boilard J. did not purport to com
mand penitentiary officials to do anything. His
words, reported at 24 C.R. (3d) 124-125 are:
[TRANSLATION] For all of these reasons, the application for
mandamus is granted. I order the immediate issue of the writ
addressed to the respondent Maurice Forget and enjoining him
to execute forthwith all of the warrants of committal concern
ing the applicant Gilles Durand in his possession with respect to
sentences which might have been imposed on him for the
offences set out in paragraphs 3.1 to 3.27 inclusive of the
application. And I further order that he deliver the warrants to
the warden or such other officer designated by the warden of
the federal penitentiary having jurisdiction over the person of
Gilles Durand, who is now in the Philipp -Pinel Hospital.
I also order that the judgment which I have just now
rendered be executory forthwith, notwithstanding the appeal.
All of the applicant's legal recourses against whomsoever are
preserved. The proceedings taken by the applicant are dis
missed with respect to the Montreal Urban Community. Costs
of this application to follow.
While one can sympathize with Mr. Justice Boi-
lard's enlightened desire to permit Durand to serve
the sentences imposed for his provincial offences at
the same time as he was serving criminal offence
sentences in the federal penitentiary, it is clear
that Mr. Justice Boilard did no more than to order
a municipal official to remit the warrants to the
federal official in charge of the penitentiary.
It would, no doubt, seem to be a reasonable and
desirable result to permit the applicant herein to
serve his sentences for failure to pay his provincial
and municipal fines during his present incarcera
tion in the federal penitentiary. Since neither the
provincial nor the federal legislation under con
sideration produces that result, the applicant
invites the Court to invoke the Canadian Charter
of Rights and Freedoms in order to obtain that
result.
In the circumstances, section 7 of the Charter
would not help the applicant. It is true that he has
been deprived of his liberty, because he is presently
an inmate in a federal penitentiary. But it is not
alleged by the applicant that such deprivation of
liberty upon conviction under the Narcotic Control
Act ran counter to the principles of fundamental
justice. His right to liberty then has not been
infringed or denied. The applicant does allege that
his right to liberty will be infringed or denied
when, instead of serving his provincial sentences
while in the penitentiary, he may be required to
serve them afterwards. The Attorney General of
Quebec is not a party to these proceedings. The
Federal Court of Canada is not "a court of com
petent jurisdiction" for purposes of section 24 of
the Charter to compel the Quebec authorities to
credit the applicant's time in the penitentiary
towards his provincial sentences.
In regard to the applicant's rights under section
9 of the Charter, it is apparent that he is not
arbitrarily detained or imprisoned. If he has a
complaint against the application of the laws of
Quebec in his present plight, it is equally apparent
that the Federal Court is still not "a court of
competent jurisdiction" to accord him any remedy
in that regard. Neither federal law, nor the Feder
al Court, can interfere in the administration of the
laws of Quebec.
Paragraph 11(b) exacts that "Any person
charged with an offence has the right ... to be
tried within a reasonable time". Counsel urged
that by analogy this provision should be read to
mean that one should be permitted to undergo
one's imprisonment within a reasonable time. The
analogy is unworkable. The reasonable time for
undergoing imprisonment can only be such as is
provided according to a law which itself retains its
force and effect in contemplation of the Charter.
Here again, no infringement of rights and free
doms can be levied against the laws of Canada, in
these circumstances.
Paragraph 11(i) of the Charter has no applica
tion in regard to the laws of Canada in the circum
stances of this case, because no punishment for the
applicant's offence has been varied in the manner
described in that paragraph.
For all these reasons, and not without some
regret, I conclude that I cannot accede to the
applicant's request. In such a situation, the
respondents are entitled to an order for their costs,
if they wish to seek them.
ORDER
1. The application for mandamus is denied with
costs, if sought by the respondents.
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.