Sweet v. Canada, docket A-324-98

Date: 19991004

Docket: A-324-98

Ottawa (Ontario), Monday, October 4, 1999.

CORAM:      DÉCARY J.A.

         MacKAY J.

         McDONALD J.A.

BETWEEN:

JAMES ADAM SWEET

on his own behalf and that of all inmates in Canada serving life sentences

and subjected to the practice of "involuntary double-bunking"

in Her Majesty's medium and maximum security penitentiaries

under the Corrections and Conditional Release Act, including all

inmates whose signatures are affixed to Schedule I hereto, and all inmates

whose proceedings against the practice of involuntary double-bunking

were commenced in File T-213-88

Appellant

(Plaintiff)

     - and -

HER MAJESTY THE QUEEN

Respondent

(Defendant)

     JUDGMENT

     The appeal is allowed but only so as to add the following proviso to the Order made:

"without prejudice to the applicant's right to file an amended proceeding, in the form of an application for judicial review directed at the Correctional Service of Canada and drafted in such a way as to comply with the guidelines set out in the reasons for decision".

     The appellant will have thirty days from the date of this judgment to file an amended proceeding, which shall bear the same file number as the present Declaration in the Trial Division.

     This is not a case for costs.

     "Robert Décary"

     J.A.

Date: 19991004

Docket: A-324-98

Ottawa (Ontario), Monday, October 4, 1999.

CORAM:      DÉCARY J.A.

MacKAY J.

McDONALD J.A.

BETWEEN:

JAMES ADAM SWEET

on his own behalf and that of all inmates in Canada serving life sentences

and subjected to the practice of "involuntary double-bunking"

in Her Majesty's medium and maximum security penitentiaries

under the Corrections and Conditional Release Act, including all

inmates whose signatures are affixed to Schedule I hereto, and all inmates

whose proceedings against the practice of involuntary double-bunking

were commenced in File T-213-88

Appellant

(Plaintiff)

- and -

HER MAJESTY THE QUEEN

Respondent

(Defendant)

Heard at Toronto (Ontario) on Tuesday, September 21, 1999.

Judgment delivered at Ottawa (Ontario) on Monday, October 4, 1999.

REASONS FOR JUDGMENT BY:      DÉCARY J.A.

CONCURRED IN BY:      MacKAY J.

McDONALD J.A.

Date: 19991004

Docket: A-324-98

CORAM:      DÉCARY J.A.

         MacKAY J.

         McDONALD J.A.

BETWEEN:

JAMES ADAM SWEET

on his own behalf and that of all inmates in Canada serving life sentences

and subjected to the practice of "involuntary double-bunking"

in Her Majesty's medium and maximum security penitentiaries

under the Corrections and Conditional Release Act, including all

inmates whose signatures are affixed to Schedule I hereto, and all inmates

whose proceedings against the practice of involuntary double-bunking

were commenced in File T-213-88

Appellant

(Plaintiff)

     - and -

HER MAJESTY THE QUEEN

Respondent

(Defendant)

     REASONS FOR JUDGMENT

DÉCARY J.A.:

[1]      This appeal was heard in Toronto, in the absence of the appellant, an inmate of Warkworth penitentiary. The appellant had sent a letter to the Court expressly requesting that he be dispensed from attending at the hearing and asking that the appeal be decided on the basis of his written submissions. The Court granted the appellant"s request and the appeal proceeded in the presence of counsel for the Respondent.

Background

[2]      On February 25, 1998, the appellant, "on his own behalf and that of all inmates in Canada serving life sentences and subjected to the practice of "involuntary double-bunking" in Her Majesty's medium and maximum security penitentiaries [...]", filed a "declaration" in the Registry of the Federal Court of Canada in which he sought the following remedies:

(1)      taking judicial notice of the Bill of Rights 1688 and the Coronation Oath Act 1688 and, in accordance with Sections 12, 11 "SHALL", and 3(1) of the Interpretation Act applied judiciously to Section 17 "JUDICIAL NOTICE" of the Canada Evidence Act , of "the laws of God, the true profession of the Gospel" contained in the HOLY BIBLE , authorized King James Version ("KJV"), and in GOOD NEWS BIBLE , Today's English Version ("TEV") with Deuterocanonicals/Apocrypha, pleaded herein;

(2)      declaring the CSC's continued practice of involuntary double-bunking in contravention of Section 70 "FREE OF PRACTICES THAT UNDERMINE A PERSON'S SENSE OF PERSONAL DIGNITY" of the Corrections and Conditional Release Act , and the CSC's proper responsibilities owed inmates under "the laws of God, the true profession of the Gospel" and otherwise in contravention of the constitutional right of all inmates in the CSC's care and custody to equality in regards to their accommodations;

(3)      structuring an injunction under Sections 24(1) and 15(2) of the Canadian Charter of Rights and Freedoms and Sections 44 and 46(2) of the Federal Court Act so as to establish a comprehensive and effective remedy to restrain the CSC from exceeding the statutory limits legislated by Her Majesty's Parliament of Canada under Section 70 "FREE OF PRACTICES THAT UNDERMINE A PERSON'S SENSE OF PERSONAL DIGNITY" of the Corrections and Conditional Release Act and to fairly, expeditiously and forever end the practice of involuntary double-bunking in Her Majesty's medium and maximum security penitentiaries throughout Canada and, for greater certainty,

a.      from double-bunking inmates involuntarily;

b.      from double-bunking inmates voluntarily except in cells designed to accommodate two (2) inmates and their personal effects; and

c.      from admitting inmates to any penitentiary except those penitentiaries where a single cell will be available to them upon their admission, unless the inmate otherwise consents;

(4)      referring the matter in accordance with Rules 500 to 507 of the Federal Court Rules and Sections 44 and 46(2) of the Federal Court Act for the purpose of inquiry into and determination of

a.      the full terms of the injunction to be structured,

b.      how many inmates involuntarily double-bunked have been injured or killed as a result on the CSC's continued disregard for more than ten years of continued objections and fair warnings given it to end the deplored practice, and

c.      the quantum of damages properly owed the Plaintiff and other inmates subjected to the deplored practice of involuntary double-bunking;

(5)      enjoining the Order in accordance with Rules 1716(2)(b) and 2(2) of the Federal Court Rules OLE INGSTRUP, and whether by himself, his heirs or successors to office, their servants, agents or workmen, and all CSC staff members having knowledge of the Order, for the purposes of the injunction structured;

(6)      general, aggravated or consequential damages;

(7)      exemplary or punitive damages;

(8)      an Order in accordance with Rules 1716(2)(b), 1715, 1711, and 2(2) of the Federal Court Rules, Sections 50(1)(b) and 46(2) of the Federal Court Act, Sections 3(b) "LAW-ABIDING CITIZENS" and 73 "ASSEMBLE PEACEFULLY AND ASSOCIATE" of the Corrections and Conditional Release Act , and Section 2(c) and (d) "PEACEFUL ASSEMBLY... FREEDOM OF ASSOCIATION" of the Canadian Charter of Rights and Freedoms :

a.      ordering that all applicants named in File No. T-213-88 and all inmates whose signatures are affixed to Schedule 1 hereto be added as plaintiffs in this action,

b.      continuing the Order of the learned Prothonotary made in T-213-88 and extending it to this action as having Emile Marguerita Marcus Mennes represent all the plaintiffs, including me, in this action, and

c.      staying the proceedings in T-213-88 pending and until the trial or other final determination of these proceedings;

(9)      my costs;

(10)      such further and other remedy as this Honourable Court may consider appropriate and just so as to effectively bring the CSC and its Commissioner under the control and management of the Court in order to completely eliminate the deplored practice in Canada of involuntary double-bunking by the CSC, including an Order by way of mandamus ordering the CSC and Commissioner of Corrections to have me assigned a single cell immediately;

     (A.B. at 24-25)            

[3]      On March 25, 1998, the Respondent, relying on former rules 408(1) and 419(1), filed a motion for an order:

[...]      Striking out the Statement of Claim as it shows no reasonable cause of action;

[...]      Striking out the Statement of Claim on the basis that the pleadings are scandalous, frivolous or vexatious;

[...]      Striking out the Statement of Claim on the basis that the pleadings are immaterial or redundant; and

[...]      Striking out the Statement of Claim as it is an abuse of the process of the Court.

     or in the alternative:

[...]      an extension of time of 30 days to allow the Defendant to file the Statement of Defence; and

[...]      for such further and other relief as counsel may advise and this Honourable court may permit.

     (A.B. at 50)             

[4]      The Respondent, therefore, bases Her case on paragraphs (a) (no reasonable cause of action), (b) (immaterial or redundant pleadings), (c) (scandalous, frivolous or vexatious pleadings) and (f) (abuse of process) of former rule 419(1) which read as follows:

Rule 419. (1)    The Court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend, on the ground that      (a) it discloses no reasonable cause of action or defence, as the case may be,      (b) it is immaterial or redundant,      (c) it is scandalous, frivolous or vexatious,      [...]      (f) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly.      [now rule 221(1)]

Règle 419. (1) La Cour pourra, à tout stade d'une action ordonner la radiation de tout ou partie d'une plaidoirie avec ou sans permission d'amendement, au motif      a) qu'elle ne révèle aucune cause raisonnable d'action ou de défense, selon le cas,      b) qu'elle n'est pas essentielle ou qu'elle est redondante,      c) qu'elle est scandaleuse, futile ou vexatoire,      [...]      f) qu'elle constitue par ailleurs un emploi abusif des procédures de la Cour, et elle peut ordonner que l'action soit suspendue ou rejetée ou qu'un jugement soit enregistré en conséquence.      [maintenant règle 221(1)]

As no reasons were given by the Motions Judge, I shall assume for the purpose of the appeal that he found against the appellant on each ground.

[5]      I shall first dispose of a procedural equity argument raised by the appellant. The impugned order should be quashed, he says, because the Motions Judge made it on April 22, 1998, not knowing that the appellant had made a motion of his own on April 1, 1998, which only reached the Registry on April 24, 1998. Former rule 324 did not impose a time limit on a responding party to file written submissions. As four weeks had elapsed since the service of the motion to strike when the Motions Judge made his order, he cannot be faulted, on the face of the record, for having acted then on the motion in writing, when he was unaware of the existence of documents that only reached the Registry two days later. The late arrival of the documents might have been a ground for reconsideration of the order by the Motions Judge under former rule 330, but the appellant chose the appeal route instead.

The onus on a moving party in motions to strike

[6]      Statements of claim are struck out as disclosing no reasonable cause of action only in plain and obvious cases and where the Court is satisfied that the case is beyond doubt (see [1980] 2 S.C.R. 735">Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735 at 740; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 and Hunt v. Carey Canada. Inc., [1990] 2 S.C.R. 959). The burden is as stringent when the ground argued is that of abuse of process or that of pleadings being scandalous, frivolous or vexatious (see Creaghan Estate v. The Queen, [1972] F.C. 732 at 736 (F.C.T.D.), Pratte J.; Waterside Ocean Navigation Company, Inc. v. International Navigation Ltd et al., [1977] 2 F.C. 257 at 259 (F.C.T.D.), Thurlow A.C.J.; Micromar International Inc. v. Micro Furnace Ltd. (1988), 23 C.P.R. (3d) 214 (F.C.T.D.), Pinard J. and Connaught Laboratories Ltd. v. Smithkline Beecham Pharma Inc. (1998), 86 C.P.R. (3d) 36 (F.C.T.D.) Gibson J.). The words of Pratte J. (as he then was), spoken in 1972, in Creaghan Estate, supra, are still very much appropriate:

[...] a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding [...]

Rule 419(1)(f) (abuse of process)

[7]      The Respondent argues that the appellant's declaration constitutes an abuse of process because it seeks the very same remedy as did Mr. Mennes, back in 1988, in Court File T-213-88. On June 16, 1999, the proceedings in File T-213-88 were terminated by the Associate Chief Justice for failure of prosecution. Mr. Mennes, a co-detainee, had asked the Court, in vain, to represent Mr. Sweet before the Court of Appeal; according to the Respondent, he is the author of the appellant's declaration. I see no merit in the suggestion that Mr. Sweet should be bound by someone else's failure to pursue a court action. The issue is very much alive and it matters not by whom it is brought to the attention of the Court.

Rule 419(1)(a) (no reasonable cause of action)

[8]      The Respondent has three grounds for submitting that the appellant's declaration discloses no reasonable cause of action:     i) the appellant should have exhausted all avenues of appeal available to him under the grievance process;     ii) the appellant should have proceeded by way of judicial review rather than by way of an action; and     iii) the appellant has failed to plead any facts in support of his assertions. I note that the Respondent did not suggest that the issue of double-bunking in and by itself does not raise a reasonable cause of action. Counsel agreed, at the hearing, that the issue is, indeed, a serious one to be adjudicated. Such was also the view of Muldoon J. in Mennes v. Canada (1988), 23 F.T.R. 181 at 186, of McGillis J. in Williams v. Canada (Commission of Corrections), [1993] F.C.J. No. 646, T-618-93 [unreported] and of this Court in Piche v. Canada (Solicitor General) (1989), 98 N.R. 148 (C.A.), where MacGuigan J.A. examined the issue, accepted the "residual right to privacy and dignity as a theoretically tenable position" (at 153) but declined to decide the issue because of a lack of evidence.

[9]      I shall deal in turn with each of the Respondent's arguments.

     i)      Appeals not exhausted

[10]      Counsel for the Respondent argues that the appellant ought to have exhausted the appeal process provided by section 80 of the Corrections and Conditional Release Regulations before attacking the practice or policy of double-bunking. It is certainly not clear from the record at this stage of the proceedings that the appellant has failed to exhaust the appeal process " see paragraphs 35 and 36 of the declaration (A.B. at 20), which are deemed to be proven for the purpose of the motion to strike " and in any event it is not certain that the constitutional validity of the practice or policy could have been ruled upon in the grievance process.

[11]      What the appellant is attacking is not so much the decision of the Correctional Service of Canada ("the Service") to force him to share a cell, as much as the policy of double-bunking in itself. The thrust of the appellant's argument is that the policy of double-bunking, which affects the appellant and many other inmates, should be declared invalid. That policy is an on-going one which may be challenged at any time; judicial review, with the associated remedies of declaratory, prerogative and injunctive reliefs, is the proper way to bring that challenge to this Court (see Krause v. Canada, [1999] 2 F.C. 476 (F.C.A.)).

     ii)      Judicial review or action

[12]      Counsel for the Respondent argues that to the extent that the appellant's action is based on the Service's denial of his request for a single cell, the relief sought should be characterized as declaratory and injunctive relief against the Service that, pursuant to subsection 18(3) of the Federal Court Act ("the Act") (R.S.C. 1985, c. F-7, as amended), can be obtained only on an application for judicial review made under section 18.1 of the Act.

[13]      Prior to February 1, 1992, declaratory relief in the Federal Court of Canada could only be sought by way of an action (see former rule 603 and the comments in D. Sgayias et al., Federal Court Practice, (Toronto: Carswell, 1990) at 618ff)). As a result of amendments made in 1990 (S.C. 1990, c. 8, s. 4) which came into force on February 1, 1992, declaratory relief can now only be sought by way of judicial review. This amendment has created some procedural uncertainty, for the true nature of the remedy sought in a given case is not always crystal clear, especially when litigants assert infringement of rights guaranteed by the Canadian Charter of Rights and Freedoms. It is presumably in contemplation of such problems that Parliament gave the Trial Division the power to "direct that an application for judicial review be treated and proceeded with as an action" (Federal Court Act, sub. 18.4(2) as added by S.C. 1990, c. 8, s. 5). Perhaps inevitably, the Court would be seized with proceedings described as actions that were technically more akin to judicial review proceedings; the defendant would then move to strike out the action and the Court would generally oblige, reserving the plaintiff's right to file an application for judicial review. Eventually, because of the complexity of the factual issues raised, a great number of these applications for judicial review, once filed, would be treated by the Court, under the authority of subsection 18.4(2), as actions, which they had been in the first place.

[14]      This unfortunate merry-go-round is a waste of resources for the litigants as well as for the Court. I am not at all convinced that a motion to strike on the ground that pleadings show no reasonable cause of action is the proper vehicle in cases where the issue is whether a party should have proceeded by way of judicial review or by way of action. It seems to me that whether the procedure used is or is not the proper one does not relate to whether the procedure, if proper, discloses a reasonable cause of action. The intent of the Rules is precisely to avoid striking out pleadings that should have originated in another form. Once it is ascertained that a given proceeding falls into one or the other of the two categories (judicial review and action), the duty of the Court is to determine which is the applicable category and to allow the proceeding to continue in that way. Means must be found by counsel and by the Court to address the issue intelligently and with a sense of practicality.

[15]      The new Federal Court Rules, 1998 give the Court, and counsel, ample guidance to avoid resorting to drastic means such as motions to strike whenever possible. Rule 57 is particularly instructive. It ensures that " an originating document shall not be set aside only on the ground that a different originating document should have been used". While new in form, I venture to say that this rule codifies the practice already followed by the Court. Also significant, are rule 49 which authorizes a judge to order that a proceeding that has been commenced in one division of the Court be transferred to the other and rule 60 which allows the Court to draw the attention of a party to any non-compliance with the Rules and permit the party to remedy it on such conditions as the Court considers just.

[16]      It therefore serves no useful purpose to move to strike pleadings when, at the end of the day, the Court will allow the applicant or plaintiff to file a new, and correct, proceeding. A motion to attack the irregularity, under rule 58, could well prove to be a useful, yet less drastic, means to bring about the change required. I appreciate that rule 58 addresses irregularities resulting from non-compliance with the Rules and that the categories of proceedings are dictated by the Act. Yet, in my view, it is the Rules which determine how a proceeding is commenced (rule 61), and where a proceeding is commenced otherwise than in the form prescribed, the question then becomes one of non-compliance with the Rules, not one of non-compliance with the Act.

[17]      It seems to me that in a case where many different sorts of relief are claimed, some of which require an action and some of which require judicial review, the proper course is to determine which relief it makes more sense to decide first, then to determine whether the procedure taken is the proper one with respect to that relief and, if not, to allow the party to correct it with appropriate amendments.

[18]      In this case, I would have been prepared, had it not been for the decision I ultimately have made based on other grounds, to treat that part of the Respondent's motion to strike which rests on the "judicial review or action" argument as a motion to attack an irregularity under rule 58.

     iii)      No facts

[19]      The Respondent submits that the declaration contains bare assertions but no facts on which to base the assertions. A close examination of the declaration reveals about 35 paragraphs which contain allegations of fact, some of which concern the bases for the relief claimed that is in the Court's jurisdiction. Some elements may be missing (for example, with respect to the nature and extent of the damages claimed), and others may be incomplete (for example, with respect to the appellant's own involuntary double-bunking), but this declaration contains enough information to allow the Respondent to know with some certainty the case She has to meet if this proceeding were to continue as an action. The Respondent could then be at liberty to file a motion for particulars.

Rule 419(1)(b)and (c)      (immaterial or redundant, scandalous, frivolous or vexatious pleadings)

[20]      The Respondent argues that there are so many allegations in the appellant's statement of claim which are scandalous, frivolous, vexatious, immaterial or redundant, that the whole statement should be struck.

[21]      It is not the duty of a judge to redraft pleadings. It is his or her duty, however, to closely examine a proceeding before determining that it cannot be saved through proper amendments. To use the words of my brother Stone in Krause (supra at 493), the judge seized with a motion under rule 419(1)(b) and (c) must decide whether the document is "so defective that it cannot be cured by simple amendment". This determination requires a balancing act which cannot be subject to any definite norms. Each proceeding is to be assessed on its own merits, with consideration being given to, inter alia, the personal situation of the party, the issues and arguments raised, the manner and tone in which they are raised, the number and proportion of allegations that are defective and the readiness of the amendments needed. Where the Court is dealing with a self-represented litigant, it should resist being too easily put off by the mere phrasing of allegations and arguments that do not fall within established legal parameters.

[22]      In the case at bar, I find that some 43 out of the 58 allegations are acceptable ones, that 11 (i.e. paragraphs 8, 9, 11, 12, 29 and 41 to 46 incl.) are totally unacceptable, and that 4 (i.e. paragraphs 1, 16, 33 and 34) are partially unacceptable. I also find that most of the remedies sought are either drafted in such a confusing way as to be unmanageable or are directed at damages which can only be sought by way of action. The style of cause is also improper: since the proper proceeding would be an application for judicial review as I have found, the respondent should be the Correctional Service of Canada instead of Her Majesty the Queen.

[23]      These are defects which taint the whole proceeding and which cannot be cured by simple amendment. The motion to strike was thus properly granted by the Motions Judge. Yet, the nature of the issue raised, the number of paragraphs that are acceptable, the fact that the Respondent is made sufficiently aware of the main issue raised by the appellant and of some of the evidence which the appellant intends to bring forward, the respect for the judicial process implicit in the tone of the allegations, and the fact that the appellant is an inmate whose research and working facilities are very much limited, all lead me to conclude that this is a proceeding worthy of continuation and that the appellant should be allowed to file an amended proceeding in the form of an application for judicial review drafted in such a way as to follow the guidelines suggested in these reasons.

[24]      The appellant appears to be influenced by his strong belief in the laws of God and the teaching of the Gospel, which are not directly relevant in a judicial proceeding. I expect him, should he elect to file an amended proceeding, to adopt a more earthly approach.

Disposition

[25]      In the end, therefore, the appeal should be allowed, but only so as to add the following proviso to the Order made:

"without prejudice to the applicant's right to file an amended proceeding, in the form of an application for judicial review directed at the Correctional Service of Canada and drafted in such a way as to comply with the guidelines set out in the reasons for decision".

The appellant will have thirty days from the date of the decision of the Court in this appeal to file an amended proceeding.

[26]      This is not a case for costs.

     "Robert Décary"

     J.A.

"I concur.

     W. Andrew MacKay J."

"I concur.

     F. Joseph McDonald J.A."