Date: 20040521
Docket: T-819-04
Citation: 2004 FC 738
Ottawa, Ontario, May 21, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
DIANE MAGAS AND RICHARD CONDO
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicants seek an interlocutory injunction allowing them to participate in the Private Family Visits (PFV) program at the Bath Institution, until such time as the application for judicial review of the third level decision rendered by the Drummond Institution is decided.
BACKGROUND
[2] The Applicant Richard Condo is presently serving a five-year sentence, which commenced on July 26, 2001. He married the Applicant, Diane Magas in November 2003. Ms. Magas is a lawyer and represented her husband in this matter until the Respondent requested her removal as solicitor in this case pursuant to section 82 of the Federal Court Rules, 1998, SOR/98-106. In a letter dated April 29, 2004, Mr. Condo indicated he did "not wish to have any further representations nor retain a lawyer for the court action T-819-04". He states he is satisfied with Ms. Magas presenting her action in her personal name. This question is thus resolved.
[3] The Applicants were allowed to have PFV while Mr. Condo was incarcerated at Cowansville, La Macaza and Donnacona. Their last PFV took place from November 7 to 10, 2003. Mr. Condo was then transferred to the Drummond Institution, where he had to re-apply to participate in the PFV program. On February 19, 2004, the Institutional Head at Drummond denied Mr. Condo's request to participate in such a program because he presented a risk of becoming violent towards Ms. Magas during PFV. Mr. Condo proceeded with his internal remedies and the second and third level upheld the decision of the Institutional Head. He then filed an application for judicial review of the decision of the third level grievance. The decision in this judicial review has not yet been rendered.
[4] On April 21, 2004, Mr. Condo was transferred to the Bath Institution. The next day, he applied to participate in the PFV program in that institution. As shown in Charles Stickel's affidavit, the authorities at the Bath Institution have not yet rendered their decision. Mr. Stickel, who is the Deputy Warden at the Bath Institution, specifies that a decision is usually rendered within 30 days following the application. This information is also stated in the PFV Standard Operating Practices 700-12, s. 9.
ANALYSIS
[5] Leaving aside the application for judicial review that is still pending at the Drummond Institution, it is clear that the present motion is premature as Mr. Condo applied to participate in the PFV program at the Bath Institution and a decision has not been rendered yet.
[6] I will turn to the three criteria developed in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 to decide whether an interlocutory injunction should be granted. All three criteria need to favor the person requesting the injunction in order for the Court to grant it.
[7] In this case, without deciding if there is a serious issue to be tried, it is clear that no irreparable harm would be suffered by the Applicants as a result of the injunction not being granted. The Applicants argue that they have not yet had the opportunity to consummate their marriage because of Drummond Institution's denial of their PFV application. They also say that they are attempting to have another child before Joshua, their 5 year-old son, is too old and the PFV program is their only opportunity to conceive another child. They submit that to deprive a person of the right to consummate their marriage and their right to procreate is an irreparable harm, in that it cannot be properly be compensated by an award of damages.
[8] I cannot agree that these are valid reasons to grant an interlocutory injunction. Here, it cannot be said that irreparable harm is inflicted upon the Applicants as the question of whether it is beneficial or not for them to be allowed PFV is the very question that they applied to have determined by the institutional authorities, which decision is in the process of being rendered. They want to obtain, via an interlocutory injunction, what is in the process of being decided via the normal PFV application and decision procedure. It would be fast-tracking the decisional process on the ultimate issue. The reasons invoked by the Applicants, consummation of marriage and conception of a child, are not so pressing that they cannot wait for a couple of days for the Bath institutional authorities to decide on Mr. Condo's PFV application. The integrity of the PFV application and decision process needs to be safeguarded in order to preserve its usefulness.
[9] Having concluded to the absence of irreparable harm, there is no need to analyse the balance of convenience.
ORDER
THIS COURT ORDERS that the Applicant's motion for an interlocutory injunction allowing them to participate in the Private Family Visits (PFV) program at the Bath Institution is denied.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-819-04
STYLE OF CAUSE: DIANE MAGAS AND RICHARD CONDO v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: May 3, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: May 21, 2004
APPEARANCES:
Diane Magas FOR THE APPLICANTS
Éric Lafrenière FOR THE RESPONDENT
SOLICITORS OF RECORD:
Diane Magas
Magaas Law Office
Ottawa, Ontario FOR THE APPLICANTS
Morris A. Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR THE RESPONDENT
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