[1] The Applicant seeks, by the judicial review remedies of mandamus or prohibition, to prevent the destruction, by the order of the Warden of Kent Institution, of some 28 boxes of appeal documents with which the Applicant intends to use in the prosecution of an appeal from the conviction for attempted murder.

[2] Mr Lena, in his affidavit of 12 November 2002, deposes that he has "... been advised that the Warden of Kent Institution intends to destroy approximately two dozen boxes filled with my appeal documents.". He goes on to say that destruction of the documents would cause undue hardship, inducing delay in his appeal and that he believes some of the documents are irreplaceable. The affidavit of Garth Barriere, barrister and solicitor, sets out 15 October 2002 advice from the Warden that inmates are entitled to three cubic feet of storage for all of their belongings, and that excess personal effects, including appeal files, would ultimately be destroyed if not moved out of the Kent Institution in a timely manner.

[3] Also in the material is a memorandum in answer to 18 September 2002 complaint form which , unfortunately, has suffered in photocopying so that the response from one of the correctional officers bears only the date of October 2002. The officer's response is that:

Inmate Lena can have his legal files sent out to the street or picked up. A & D has not intentions of disposing [of] his legal files. As of November 6, the Warden has written a memo stating that i/m Lena's effects shall remain in A & D until the above stated date. Until then, there will be a review and decision regarding Lena's case.

"... The above stated date" seems to refer to nothing in that memo.

[4] Counsel for the Crown says that this memo indicates that "Admissions and Discharge has no intention of disposing of the material in question as per the direction of the Warden contained in the memorandum dated 15 October 2002 ..." (affidavit of the Acting Warden of Kent Institution). I do not agree that the memorandum says anything of the kind. However, a memorandum of the Warden of 15 October 2002 does read that Mr Lena's material not be removed until there has been a review of "this decision" by 6 November 2002. Finally, on 31 October 2002 the Acting Warden of Kent Institution wrote to counsel for the Applicant to say, among other things,:

We have no intention to destroy Mr Lena's material at this time. We have only stated that the situation will be reviewed by the Warden on his return. Any decision will be in consultation with Mr Lean's legal counsel and in line with Kent Institution's Standing Orders and Commissioner's Directives.

All of this stop short of an assurance that justice will not be interfered with by the destruction of appeal material, the importance of which material everyone agrees.

[5] This matter would be simple, or would not arise, if there were an absolute assurance that the material would not be destroyed and would not be "out to the street" given that Mr Lena apparently has no one who is able to pick it up and store it for him.

ANALYSIS

[6] The Respondent, in moving to strike out the judicial review proceeding, is faced with the difficulty that preliminary motions, including motions to strike out judicial review proceedings, are discouraged in order to preserve the summary nature of judicial review proceedings. This is set out in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995], 1 F.C. 588 at 596 where, after referring to the summary nature of a judicial review proceeding, Mr Justice of Appeal Strayer said:

Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself.

The Court of Appeal did, however, acknowledge in David Bull that in very exceptional circumstances a court might, either through inherent jurisdiction or by way of Rule 5 and analogy to other Rules, summarily dismiss "... a notice of motion which is so clearly improper as to be bereft of any possibility of success.". Mr Justice Strayer then went on to say that to be subject to such dismissal the case must be very exceptional. While the exception in David Bull has been applied in many instances, in many more instances the remedy of striking out has been denied.

[7] In support of having this application struck out the Respondent raises two issues:

the Respondent says that no decision has been made, the matter being ongoing and thus the Court's jurisdiction has not been invoked; and

the Applicant has not pursued the grievance procedure and by [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561, the extraordinary relief requested by the Applicant is not available, for there is an adequate alternative remedy.

[8] Dealing with the jurisdiction of the Court to grant a remedy to prevent the destruction of the files, I am concerned that the Respondent cannot give an absolute assurance that the files will not be destroyed until Mr Lena's appeal or appeals have run their course. However, the Applicant's counsel raises several interesting and applicable points.

[9] In the present instance we have a decision of some sort, although it may not be a final decision. Counsel for the Applicant submits that the lack of a set date for destruction of legal files is not fatal, referring to Canada (AG) v. Purcell (1994), 86 F.T.R. 232. There, at page 234, Mr Justice Denault makes the point that section 18.1(2) of the Federal Court Act, requiring that judicial review be pursuant to a decision on an order, does not specify that the decision need be the final judgment. There has been some sort of a decision made as to the destruction of the Applicant's files. The Court could well have the jurisdiction under section 18 of the Federal Court Act to prohibit destruction of the files and to allow, as requested in the application, access to the files beyond the limited access presently being allowed.

[10] Second, in the event that no decision had been made, the Applicant relies upon Alberta Wilderness Association v. Canada, [1999] 1 F.C. 483 (F.C.A.). There, Mr Justice of Appeal Sexton adopted a comment of Mr Justice Hugessen in an earlier proceeding:

Prohibition (like mandamus and quo warranto) is a remedy specifically envisaged in section 18 of the Federal Court Act and like them it does not require that there be a decision or order actually in existence as a prerequisite to its exercise.

(p. 492)

The Applicant submits that there is an intention to destroy the Applicant's legal material and that the remedies under judicial review, which are allowed in this situation, include an order of prohibition.

[11] Third and in the alternative, the Applicant refers to Tyler v. MNR, [1991] 2 F.C. 68, again a decision of the Court of Appeal for the concept that prohibition may issue to prevent an anticipated infringement of the Applicant's Charter rights. In many ways, prohibition is a forward-looking remedy subject, of course, to the discretion of the Court to deny that remedy at an early stage on the basis that a better course would be to avoid delay and unnecessary litigation by awaiting a final decision. Be that as it may, Mr Justice Evans, in his work on Judicial Review of Administrative Action in Canada, observes that :

... prohibition is invoked at an earlier stage of the administrative proceedings, before a final decision has been made.

(p. 1-6-August 2002 looseleaf)

In the present instance the Applicant's submission is that prohibition could be appropriate to prevent an anticipated infringement of the Applicant's Charter rights under section 7 of the Charter and that prohibition could issue to prevent the destruction of legal material necessary to the Applicant's exercise of the section 7 Charter rights.

[12] These are not arguments on which the Applicant will necessarily succeed, however they are arguable. I am thus unable to say that the proceeding ought to be struck out because it "is so clearly improper as to be bereft of any possibility of success". I now turn to the argument that the proceeding ought to be struck out because there is an adequate alternative remedy.

[13] The Respondent, on the basis of [1979] 2 S.C.R. 561">Harelkin (supra), submits that there is an adequate alternate remedy which must be pursued before turning to the Court. Here I accept that in many instances the internal grievance procedure available to inmates has been held to be an adequate alternative remedy. However the Applicant does raise an arguable point in reply in paragraphs 22 and 23 of the Applicant's brief:

22. The "adequate alternative remedy" suggested by the Respondent and contemplated by the courts in the cases the Respondent relies upon fails [to] consider the unique fact pattern present in the Applicant's case. The inmate grievance process, in however timely a manner in which it is conducted, cannot be guaranteed to be fast enough to forestall the destruction of the Applicant's legal files regardless of his continued participation in the process should the designated date arrive before he has exhausted his internal appeal process.

23. Once that date passes and the legal files are destroyed, the damage is irreversible: this is not simply a case where an Applicant can be transferred back to his original location or his security classification modified and pen placement reinstated. As a result of the drastic effect should the internal grievance process fail to keep pace with the Warden's destruction schedule, the Applicant submits that his circumstances require quick and decisive action only available through relief provided by this Court.

[14] Counsel for the Applicant, who does not act for the Applicant himself in connection with the appeal of an attempted murder conviction, makes an arguable prima facie case that the Applicant could satisfy the test for extraordinary relief of an injunctive nature. I do not need to decide whether that argument is in fact completely valid, but rather merely note that it is an arguable position that the time involved in the grievance procedure and the final and irreversible damage which might result in the destruction of the files at the end of the grievance procedure does not necessarily constitute a grievance procedure an adequate alternative remedy. Indeed section 4(h) of the Corrections and Conditional Release Act may require some concessions to be made to the Applicant, as a person with special needs. The Applicant, an American citizen, with no local contacts, attempting to prepare to represent himself on an appeal of attempted murder conviction, may well be within a small group of offenders with special needs as contemplated by section 4(h) of the Corrections and Conditional Release Act, a special need to prevent the Respondent from possibly destroying required legal materials.

[15] This judicial review proceeding may well not succeed. However, I am guided by the David Bull case, I have not found in the present application exceptional circumstances which make it "is so clearly improper as to be bereft of any possibility of success" that the proceeding ought to be struck out. The judicial review application may proceed. Costs to the Applicant.

(Sgd.) "John A. Hargrave"

Prothonotary

11 February 2003

Vancouver, British Columbia

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET: T-1844-02

STYLE OF CAUSE: Michael Angelo Lena v. Paul T.L. Urmson, Warden of Kent Institution

REASONS FOR ORDER OF: Hargrave P.

DATED: 11 February 2003

WRITTEN REPRESENTATIONS BY:

Donna M Turko FOR APPLICANT

Curtis Workun FOR RESPONDENT

SOLICITORS ON THE RECORD:

Donna M Turko FOR APPLICANT

Barrister & Solicitor

Vancouver, British Columbia

Morris A Rosenberg FOR RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Vancouver, British Columbia

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Lena v. Urmson, 2003 FCT 145

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2003 FCT 145