Date: 20010510
Docket: T-256-98
Neutral citation: 2001 FCT 463
BETWEEN:
ANTOINE ZARZOUR
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] The plaintiff brought an action by statement of claim, filed on February 16, 1998, seeking damages and a declaration that the defendant infringed his fundamental rights and caused him irreparable moral harm.
RELEVANT FACTS
[2] The plaintiff is currently an inmate at the La Macaza federal penitentiary, where he has been serving a term of life imprisonment since 1977. Since 1987 the plaintiff has been on conditional release several times.
[3] On April 17, 1997 the National Parole Board (hereinafter "NPB") allowed the plaintiff to participate in a monthly unescorted temporary absence program for 12 months.
[4] The plaintiff went out on seven consecutive occasions on dates chosen by him.
[5] The hearing in the case at bar lasted for several days and 12 witnesses were heard to inform the Court about the facts which resulted in the action at bar.
[6] According to the various witnesses, it appeared that Mr. Zarzour left the La Macaza institution on the morning of December 5, 1997 to go by taxi to the bus station and from there to the Montréal central station, where he arrived at about 12:30 p.m. Mr. Zarzour subsequently made a detour by a way of the Federal Court of Canada, where he filed a document, and driving a car which had been rented for him by his father he went to the Ville-Marie Correctional Service Office, where he arrived at about 2:00 p.m. That is where he was arrested for making threats against a lawyer of the Department of Justice. He was subsequently taken to the Pierrefonds police station and then transferred to the Bonsecours prison. The following day, on December 6, 1997, he was transferred to the Rivière des Prairies detention centre and finally transferred on Tuesday, December 9, 1997 to the Leclerc Institution.
[7] Although Mr. Zarzour was moved about several times in a few days, the procedure was relatively normal in the circumstances, following the cancellation of his temporary absence permit.
[8] In the days that followed Mr. Zarzour learned that a report recommending suspension of his leave had been prepared and sent to the NPB and that a final report on the threats would be sent subsequently.
[9] Before going any further, let us now see why the penitentiary authorities took the decision to terminate the temporary absence permit Mr. Zarzour had received.
[10] Daniel Perreault has been a preventive security officer for 11 years and worked for the Correctional Service for 20 years, always at the La Macaza penitentiary.
[11] In his testimony Mr. Perreault stated that his work involved conducting security investigations on information, preparing information and security reports, maintaining and building networks of informers and checking information and investigating various matters at the request of the director and deputy director.
[12] Mr. Perreault stated that in the forenoon of December 4, 1997 a Correctional officer gave him information from an informer that an inmate was going to attack one or more lawyers. Mr. Perreault added that in the course of his work he received a lot of information and he had to process and assess it.
[13] He accordingly tried to assess the credibility of the informer and checked his background by telephoning the Information Service of the Montréal Urban Community Police Service. He learned that the source who had given him the information had been in touch with the police in the past and that the information provided was positive and had made it possible to seize weapons and obtain information in a murder case. Mr. Perreault indicated that this information was checked in the afternoon of December 4, 1997.
[14] The information received was vague and he still could not connect it to any particular inmate. He mentioned that he told the deputy director and director about this information received verbally and he was able to assess the information as trustworthy.
[15] On December 5, 1997 he went to the kitchen for a second time and met with the same agent he had met the day before, who told him that his informer had given him the name of the individual who had made threats: it was the plaintiff Mr. Zarzour. Mr. Perreault at once informed the director and deputy director of the information received, since the latter were both already in the cafeteria.
[16] At about the same time Christian Gamache, a correctional officer, came to tell the director that he had received a call. The penitentiary director mentioned that she had to call Réjean Tremblay and asked Mr. Perreault to follow her and take part in the conference call. Before placing her call, she asked Mr. Perreault to give her a quick sketch of Mr. Zarzour as she had just learned that the latter was on a temporary absence. The director then contacted Mr. Tremblay, who told her that the general legal counsel Ginette Colin had received a call from the Department of Justice about a possible threat to one of her counsel and that the RCMP had also been informed by the Department of Justice that a threat might be made.
[17] Discussions were then held between the director, Mr. Tremblay, Ms. Ménard and the Ville-Marie Correctional Service, where the plaintiff was to be at 2:30 p.m. Mr. Perreault mentioned that he had to leave the conference call to locate certain individuals who might give him their views about action that could be taken in the circumstances. He went to find Huguette Comtois, who was not available, and her assistant Murielle Lemire, who was not really able to give proper advice in the circumstances. He finally got the relevant information from Michèle Boutet, case management coordinator.
[18] Mr. Perreault returned to the director's office and gave her a sketch of Mr. Zarzour. He repeated that the information source was reliable, he mentioned the nature of the information, its importance and the short time they had in which to make a decision, knowing that Mr. Zarzour was to be at the Ville-Marie Correctional Service at 2:30 p.m.: accordingly, they had between an hour and an hour and a half to decide and to analyze the various possibilities.
[19] The RCMP, which was aware of the situation, had considered setting up surveillance, but the option was rejected in view of the short time available.
[20] Reviewing Mr. Zarzour's file, it was also mentioned at the meeting that he had been on illegal release in the past, in 1991, when he was imprisoned for a violent crime, namely murder, and all these factors led Mr. Perreault to recommend that the director terminate the temporary absence.
[21] Audette Gravelle-Dunburry, penitentiary director, who also testified, confirmed Mr. Perreault's testimony in all respects and added that she had never received complete and final confirmation that the alleged threats were unfounded. According to her, they did not know and would never know, they proceeded to make the arrest and the threat disappeared with the loss of liberty.
[22] After the meeting, Mr. Perreault mentioned that he returned to his office in the late afternoon and looked at his mail. That was when he found an anonymous letter from an inmate, and he mentioned in passing that he often received them. This letter was not in an envelope but was folded. It mentioned that Mr. Zarzour would be bringing in drugs when he returned from his leave. Cocaine and heroin were mentioned. Mr. Perreault could not give the quantities as such information might make it possible to identify the informer.
[23] There was other information on other illegal activities in the document. He was able to attach some credibility to this letter because it corroborated the information obtained in an investigation of drug trafficking, loan of tobacco and collection of tobacco.
[24] In the late afternoon, at about 4:30 p.m., he told the director and assistant director of this new information he had received.
[25] Mr. Perreault mentioned he received a second anonymous letter dated December 7, 1997. It appeared that this was from the same source, with the same language used. Briefly, the letter mentioned that Mr. Perreault had not done the job right since he had not waited until Mr. Zarzour returned and brought in the drugs. The letter added that since the drugs had not come into the penitentiary as expected there might be problems.
[26] The following day, December 8, 1997, another source, the same one who had provided information about the threats to the Department of Justice lawyer, mentioned that Mr. Zarzour would be bringing the drugs back to the penitentiary.
[27] There was at the time a rumour already current in the penitentiary that Mr. Zarzour had been arrested because he was bringing drugs into the penitentiary. On December 8, 1997 another information source appeared, also trustworthy. This further information was to the effect that Mr. Zarzour would be bringing in drugs and the persons for whom the drugs were to be brought in were specifically indicated. Mr. Perreault mentioned that they might be rumours, but the source was trustworthy.
[28] A written report was signed on December 9, 1997 and counter-signed by Mr. Jacques and Ms. Dunburry, Assistant Director and Director of the penitentiary respectively. All three considered the matter serious since it involved drugs and recommended a more extensive investigation.
[29] The Director subsequently asked Mr. Perreault to meet Mr. Zarzour at the Leclerc Institution and investigate. This meeting took place on December 12, 1997 and Mr. Perreault was accompanied by Mr. Guimond. Mr. Perreault gave Mr. Zarzour the information he had obtained and it was Mr. Zarzour who gave him the name of Louis Sébastien, the lawyer handling his cases in the Federal Court. They discussed the information received from various sources and Mr. Zarzour told him that the information about threats was not credible. Mr. Perreault asked whether the inmates disliked him in the penitentiary and according to Mr. Perreault, Mr. Zarzour told him that several inmates could have felt some impatience shown by Mr. Zarzour because he put a lot of energy into the actions he had in the Federal Court and his attitude could have been misinterpreted by people who heard those comments.
[30] Mr. Perreault testified that he found Mr. Zarzour very persuasive and considered that the reply and explanations were satisfactory, and so he saw no reason to continue questioning him about threats. However, there was a lot of information about a possible entry of drugs and in this regard Mr. Perreault testified that Mr. Zarzour was very upset and stated that Mr. Perreault was mistaken and was looking for a way out.
[31] Mr. Zarzour was then confronted with the information that he was to meet Gisèle Busseau, an inmate's spouse, who was suspected of trafficking. Mr. Zarzour explained that he was helping the inmate and his spouse prepare parole proceedings. The individual in question had been involved in heroin trafficking and was transferred to a maximum security penitentiary.
[32] When he returned to his office Mr. Perreault had another anonymous letter from the same informant. This letter discussed the aborted entry of drugs at length and the participation of another inmate, Mr. Gunner, in an aborted attempt to bring in drugs. The letter also mentioned debts accumulated by several inmates and problems that would occur when Mr. Zarzour returned to the penitentiary.
[33] Mr. Perreault then testified that Mr. Zarzour returned to the penitentiary on December 17, 1997 and rejoined the general population on December 18, 1997. He mentioned he had recommended a return to the general population after leaving him in isolation for a day. He met the Inmate Committee, certain inmates who held key positions in the penitentiary and other inmates who were influential in the prison population and none of these persons saw any problems with Mr. Zarzour returning to the general penitentiary population.
[34] Mr. Perreault noted that on January 6, 1998, a little over two weeks later, following an investigation in co-operation with the Sûreté du Québec into the possibility that drugs might be brought in, 56 grams of hashish were seized at the home of an inmate's spouse. This hashish was to be taken into the penitentiary under a truck. The result of various events connected with the possibility of drugs being brought in was that a large quantity of drugs that were to have been brought into the penitentiary did not arrive, which caused significant losses of money and also created significant problems in the penitentiary.
[35] In his testimony Mr. Perreault explained that the selling price of drugs inside the penitentiary was 15 times higher than on the street. The result was collections, intimidation, an impact on the general atmosphere in the penitentiary, some inmates could not pay their debts and they asked for protection. All of this contributed to the rumour mill.
[36] He noted that on December 21, 1997 there was a fire in the arts and crafts room, where inmates had boxes with their tools. The fire occurred in front of two boxes belonging to inmates who were considered traffickers. This event was regarded as very serious and showed that traffickers were having problems as a result of what had happened. Subsequent police investigations were unable to locate the persons responsible.
[37] By a decision on December 24, 1997 the NPB cancelled the plaintiff's unescorted temporary absence program, relying on the preliminary report by the La Macaza internal review committee and information supplied by Mr. Perreault and his "informers".
[38] At the time of the hearing on January 21, 1998 the NPB reviewed the plaintiff's file and on the basis inter alia of the events mentioned above the NPB decided, after listening to the plaintiff's story, to continue the cancellation of the plaintiff's unescorted temporary absence authorization.
[39] On January 21, 1998 Mr. Perreault testified before the NPB at their request.
[40] Mr. Zarzour further suggested in his pleadings and his testimony that Mr. Perreault had tried to intimidate him into dropping the action at bar and also arranged for the plaintiff to be placed in administrative segregation in April 1998, and finally that Mr. Perreault had brought pressure on him to become one of his informers in the institution. None of these statements by Mr. Zarzour could be corroborated by other persons and were strenuously denied by Mr. Perreault himself.
[41] The many witnesses heard testified about the facts set out above and several other indirectly related circumstances affecting these events which I have not thought it useful to mention.
PLAINTIFF'S ARGUMENTS
[42] Essentially, Mr. Zarzour argued that the defendant, and in particular Mr. Perreault, acted maliciously, dishonestly and with a complete lack of concern for the plaintiff's personal safety and disregard for his constitutional guarantees provided in ss. 7, 9, 11(d) and 12 of theCanadian Charter of Rights and Freedoms.
[43] Mr. Zarzour argued that Mr. Perreault acted negligently in this matter and was seriously remiss in his duty and obligation to properly check the quality of the information received, from sources which were alleged to be credible and trustworthy, before deciding against the plaintiff.
[44] The plaintiff alleged with regard to the reasons for his arrest that the information about drugs being brought in was at most due to speculative rumours from the prison population and Mr. Perreault's informers.
[45] The plaintiff further maintained that Mr. Perreault's negligence, lack of responsibility and malice had misled the NPB, both on December 24, 1997 and January 21, 1998, thereby occasioning decisions fraught with consequences for the plaintiff and his family, since in principle he would have been released on day parole at the end of his unescorted temporary absence program.
DEFENDANT'S ARGUMENTS
[46] The defendant maintained that the penitentiary management was completely capable of assessing whether a situation was dangerous. She also maintained that Mr. Perreault was not in any way negligent and acted in accordance with the law at all times.
[47] The defendant alleged that the credibility of information received is always assessed.
[48] It was further submitted that the NPB is in no way bound by information supplied by Correctional Service Canada and makes its decisions by determining the credibility of the information itself.
[49] Finally, the defendant submitted that the exemplary damages claimed were grossly excessive and completely without foundation.
POINTS AT ISSUE
[50] Pursuant to a decision by the Associate Chief Justice on March 2, 2000, the conclusions sought by the plaintiff were reduced to two essential points:
(a) were the plaintiff's constitutional rights infringed?
(b) did the plaintiff suffer damages?
Did the defendant infringe the plaintiff's constitutional rights guaranteed by ss. 7, 9, 11(d) and 12 of the Canadian Charter of Rights and Freedoms?
[51] Section 7 of the Canadian Charter of Rights and Freedoms states the following:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[52] Section 9 provides:
9. Everyone has the right not to be arbitrarily detained or imprisoned.
[53] Section 11(d) states:
11. Any person charged with an offence has the right
. . . . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal . . .
[54] And finally, s. 12 indicates:
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
ANALYSIS
[55] The starting-point of the action now before the Court is the plaintiff's arrest on December 5, 1997.
[56] At the outset, it is important to note at once that in para. 4 of his written pleadings the plaintiff admitted that the arrest of December 5, 1997 was legal, but considered that things went wrong subsequently and that his rights were accordingly infringed from the time that, in his submission, his detention became arbitrary and the authorities did not take any action to correct the situation in his favour.
[57] Without going back over the sequence of events that occurred between December 5, 1997 and January 21, 1998, it appears to the Court that the penitentiary authorities observed the law and regulations applicable to the plaintiff Mr. Zarzour in all respects.
[58] In this regard, although the many shifts between the Ville-Marie Correctional Service Office, the Pierrefonds police station and the three other penal institutions undoubtedly caused the plaintiff inconvenience, the latter was unable to show that his constitutional rights were infringed and that he suffered damage thereby.
[59] The principal ground of the plaintiff's claim had to do with the attitude which he said Daniel Perreault, preventive security officer at the penitentiary, had toward him.
[60] Basically, Mr. Perreault obtained a quantity of information both before Mr. Zarzour's arrest, from December 4, 1997, and in the days following his arrest, up to the date of the hearing before the NPB, namely January 21, 1998.
[61] Mr. Perreault testified in Court at length and explained, with great precision and
professionalism, the way in which he proceeded to obtain information, to analyze it and to ensure that the penitentiary authorities were kept aware of his recommendations.
[62] The job of a preventive security officer in a penitentiary is not an easy one: he has to obtain information from various sources and the degree of reliability varies.
[63] Processing this information enables Mr. Perreault and his superiors and the penitentiary staff as a whole to provide effective control both of the penitentiary and of events which could disturb the general administration of the institution.
[64] Mr. Perreault explained that from December 12, 1997, the date of the meeting he had with Mr. Zarzour after his arrest, he was convinced by Mr. Zarzour, the plaintiff, that the information he might have threatened one or more of the Department of Justice counsel did not appear to be correct, and I quote:
[TRANSLATION]
He found Mr. Zarzour very persuasive and considered that the reply and explanations were satisfactory and saw no reason to continue questioning about this point.
Of course, this testimony still had to do with the threats to counsel at the Department of Justice.
[65] However, Mr. Perreault several times repeated that the information about the possibility that drugs might be brought in continued to arrive in his office from various sources and he could not simply dismiss the possibility that Mr. Zarzour might be involved in drug trafficking.
[66] Mr. Perreault explained the events relating to the interception of another inmate, Mr. Gunner, and the seizure of another quantity of drugs that were to be brought into the penitentiary under a vehicle.
[67] He also explained that the fire in the penitentiary had created a lot of tension in the prison population and he did not think it was unreasonable to associate this general nervousness with the fact that the bringing in of drugs to the penitentiary had been prevented by the vigilance of the staff.
[68] Mr. Perreault also testified and explained at great length the reasons leading him to prepare the report of December 9, 1997 and the following report dated January 5, 1998.
[69] Mr. Perreault further explained in what connection he testified before the NPB and that he testified at that time to the best of his knowledge on the basis of the information available to him at that time.
[70] Despite the serious accusations by the plaintiff that Mr. Perreault and certain other individuals acted in bad faith, I cannot unfortunately find any corroboration in the evidence to support the plaintiff's allegations in this regard.
[71] On the accusations that Mr. Perreault's attitude showed bad faith, I should say that the way in which the paragraphs in the plaintiff's written pleadings are drafted is quite tendentious, suggesting that Mr. Perreault would have done anything to cause the plaintiff injury. Unfortunately, these allegations are not supported by the evidence. Questioning Preston Gunner, a fellow inmate, who was intercepted with drugs that another person might have brought into the penitentiary to determine whether he had connections to the plaintiff, was entirely normal in the circumstances in view of the information received by Mr. Perreault at the time. That does not in any way constitute malice or serious negligence and does not in any way infringe the plaintiff's rights under the Canadian Charter of Rights and Freedoms.
[72] It is also hard to blame Mr. Perreault for not recommending that the plaintiff recover his authorization to leave the penitentiary, since in any case there had to be a hearing before the NPB and Mr. Perreault himself continued to receive information from various sources about the possibility of drugs being brought in.
[73] As to the allegation made by the plaintiff that Mr. Perreault tried to recruit him as an informer, this information was denied by Mr. Perreault and there is nothing in the evidence to support the plaintiff's suggestion.
[74] On the question of whether the plaintiff went to the Montréal Casino several times on previous absences, it appears that this information was not shared by the Correctional Service staff working around the plaintiff, but in any case as I see it this is not directly related to the issue. I do not see any point in drawing any conclusion from this whatever for purposes of the action at bar.
[75] As regards to s. 7 of the Canadian Charter of Rights and Freedoms, the plaintiff no longer disputes the legality of his arrest on December 5, 1997. Further, he was informed of the allegations that he made threats but was not told of the allegations of conspiracy to traffic in drugs. However, he was informed of the information received about drug trafficking the following December 12 at his meeting with Mr. Perreault and with Mr. Guimond. At that time he had an opportunity to deny these charges and also make representations to show that the allegations of threats had no validity.
[76] In Gough v. Canada (National Parole Board), [1991] 2 F.C. 117 (F.C.T.D.), Reed J. stated:
It is trite law that both at common law and under section 7 of the Charter the rules of fundamental justice require that an individual is entitled to know the case against him in a decision-making process which leads to a diminution of his liberty. The Board concedes that if the applicant were not a paroled inmate it would be a flagrant breach of his Charter rights for him to be deprived of his liberty without being given details of the allegations which underlie that deprivation. Concomitantly, counsel for the applicant points out that his client would be much better off if he had been charged with criminal offences in relation to the incidents which are alleged. If charges had been laid, there would be an obligation to reveal the names of the victims and to disclose some degree of specificity regarding dates, times and places of the events.
The requirement that an individual is entitled to know, and be given an opportunity to respond to the case against him is essential not only to prevent abuses by people making false accusations but also to give the person who has been accused the assurance that he or she is not being dealt with arbitrarily or capriciously . . .
Guarantees Provided by Section 7 Will Vary With the Circumstances
It is clear that the requirements of fundamental justice operate on a spectrum. The content of such requirements vary with the circumstances of the case. The Federal Court of Appeal made this very clear in Howard v. Stony Mountain Institution, [1984] 2 F.C. 642, at page 661:
. . . the standard of what is required to satisfy the section [section 7 of the Canadian Charter of Rights and Freedoms] in its procedural sense, as it seems to me, is not necessarily the most sophisticated or elaborate or perfect procedure imaginable but only that of a procedure that is fundamentally just. What that may require will no doubt vary with the particular situation and the nature of the particular case. An unbiased tribunal, knowledge by the person whose life, liberty or security is in jeopardy of the case to be answered, a fair opportunity to answer and a decision reached the basis of the material in support of the case and the answer made to it are features of such a procedure.
[77] In this argument, I am not persuaded that there was any breach of s. 7.
[78] As regards to the plaintiff's safety, G.-A. Beaudoin, in Les droits et libertés au Canada, Wilson & Lafleur, Montréal, 2000, indicates at p. 288:
[TRANSLATION]
The right to safety has so far been very broadly construed. There is a physical and psychological aspect to the individual's safety. In Morgentaler, the Supreme Court clearly stated that "any serious state-imposed psychological stress" is a breach of safety.
[79] The plaintiff argued that his security and liberty were infringed in the case at bar. However, it can be determined that the infringement was made in accordance with the rules of fundamental justice, as is the case here. The infringement of the plaintiff's rights will not be a breach of the Canadian Charter of Rights and Freedoms, particularly as the plaintiff no longer disputes that his arrest was legal.
[80] On s. 11(d), the plaintiff argued that he was entitled to be presumed innocent and that his rights should not be limited before his guilt had been established. The plaintiff argued that the rights which were infringed were the right to go out on the weekend of December 5, 1997 and the right to participate in the temporary unescorted absence program.
[81] Section 11(d) does not apply in respect of the plaintiff's arrest. The test is laid down in s. 117 and does not require proof of the plaintiff's guilt in order to proceed with his arrest. The test is that the director must be convinced it was necessary to return him to prison in order to protect society, based on information which could not reasonably have been provided to the NPB when the unescorted temporary absence was approved.
[82] Accordingly, s. 11(d) was not infringed. If the plaintiff wishes to argue that his right to participate in the unescorted temporary absence program was unjustly suspended on the basis of speculative information, he should proceed by judicial review of the NPB decision.
[83] Finally, s. 12 of the Canadian Charter of Rights and Freedoms was defined as follows in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519:
In order to come within the protection of s. 12, the appellant must demonstrate two things: first, that she is subjected to treatment or punishment at the hands of the state, and second, that such treatment or punishment is cruel and unusual . . .
The degree to which "treatment" in s. 12 may apply outside the context of penalties imposed to ensure the application and enforcement of the law has not been definitively determined by this Court. In R. v. Smith, [1987] 1 S.C.R. 1045, in which this Court struck down the minimum seven-year sentence for importing narcotics, Lamer J. (as he then was) referred to the lobotomisation of certain dangerous offenders and the castration of sexual offenders as examples of "treatment" which would be contrary to s. 12 as opposed to punishment. Even granting that there may be a distinction in purpose between punishments such as imprisonment or lashings, which involve the convicted person paying his debt to society for the wrong he has committed, and the examples of treatment offered by Lamer J. which are arguably primarily concerned with protecting society from the offender, I would note that these treatments are still imposed by the state in the context of dealing with criminal behaviour.
. . . . .
Certain decisions of lower courts have held that "treatment" should be seen to have a much broader scope than "punishment". In Soenen v. Director of Edmonton Remand Centre (1983), 6 C.R.R. 368 (Alta. Q.B.), a case dealing with restrictions imposed on an accused in remand custody while awaiting trial, McDonald J. stated as follows, at p. 372:
In my view the word "treatment" is not limited in its breadth by the word "punishment".... Moreover, the word "treatment" is a more general word than "punishment", and there is no apparent common denominator between the two which, even if the order of the words were reversed, could call the ejusdem generis rule into play.
Similarly, in R. v. Blakeman (1988), 48 C.R.R. 222 (Ont. H.C.), Watt J. held that, at a preliminary level, subjecting an ill individual to a trial may be cruel treatment. He commented as follows, at p. 239:
"Treatment" connotes any conduct, action or behaviour towards another person. It is a word of more expansive or comprehensive import than is its disjunctive partner "punishment", in that it extends, or potentially so, to all forms of disability or disadvantage and not merely to those imposed as a penalty to ensure the application and enforcement of a rule of law.
[84] In R. v. MacDonald, [1997] O.J. No. 1806, it was ruled:
The criterion to be applied in determining whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is whether the punishment prescribed is "so excessive as to outrage standards of decency": Smith v. The Queen (1987), 34 C.C.C. (3d) 97 (S.C.C.) at 139 per Lamer J. (as he then was). The test for s. 12 Charter review is thus one of gross disproportionality: it is aimed at punishments that are more than merely excessive.
[85] In the case at bar I cannot conclude that the plaintiff was subjected to any cruel or unusual treatment or punishment, based on his allegations.
[86] I have read the plaintiff's written pleadings carefully and it appeared that in para. 66 of his written pleadings Mr. Zarzour referred to the harm suffered by himself and his father.
[87] I should point out to the plaintiff that if his father wished to claim damages from the defendant he should bring an action to claim them himself and cannot do so through his son. There may be damages and it is also possible for the same act to occasion damage to two or more persons: however, each of those persons must bring an action against the person or institution from whom he or she is claiming the said damage.
[88] I must therefore dismiss all the allegations claiming damages for the plaintiff's father, since the latter is not a party to the action at bar.
[89] I have already mentioned earlier that it seemed clear that the plaintiff suffered considerable inconvenience in the series of events between December 4, 1997 and January 21, 1998, following his arrest on December 5, 1997.
[90] However, in order to succeed in his action Mr. Zarzour had to clearly establish what damage he sustained and how that damage could be compensated for by a sum of money.
[91] However, despite laudable efforts the plaintiff did not succeed in meeting the obligation upon him, to clearly and unequivocally establish the damage he had suffered, nor was he able to show that the Correctional Services in general, and Daniel Perreault in particular, since that was the person against whom the plaintiff's action was specifically brought, had committed any fault resulting in damage to the plaintiff.
[92] Mr. Zarzour left no stone unturned in his effort to show the Court that certain of the actions of the defendant's employees had been malicious and caused him injury. In this respect, he did not have an easy task.
[93] However, through her various employees the defendant provided a very detailed explanation of the circumstances surrounding the plaintiff's arrest and the revocation of his release right. These explanations also allowed the Court to see in detail how the penitentiary authorities have to deal with information and the various kinds of threat they receive from time to time and what actions the authorities must take from time to time to ensure that their institution is properly administered.
[94] The plaintiff is undoubtedly aware that when an inmate is not satisfied with an administrative decision given by the defendant he may initiate an action for judicial review to have that decision set aside: indeed, he has not hesitated to use this right and to exercise it quite effectively in the past.
[95] However, the Court did not have to analyze all the events that have occurred during the years the plaintiff has spent in prison: it had to confine itself to the facts alleged and the conclusions sought.
[96] In this regard, I have no hesitation in concluding, as I said earlier, that the fundamental rights guaranteed to the plaintiff by the Canadian Charter of Rights and Freedoms were not infringed by the actions of the defendant's employees, and that further the plaintiff was unable to establish that he had suffered damage associated with actions by the defendant's employees.
[97] Consequently, I have no choice but to dismiss the plaintiff's action with costs.
Pierre Blais Judge
OTTAWA, ONTARIO
May 10, 2001
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-256-98
STYLE OF CAUSE: ANTOINE C. ZARZOUR
- and -
HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 5, 6, 7, 8 and 15, 2001
REASONS FOR JUDGMENT AND JUDGMENT BY: BLAIS J.
DATED: May 10, 2001
APPEARANCES:
Antoine C. Zarzour FOR HIMSELF
Rosemarie Millar FOR THE DEFENDANT
Sébastien Gagné
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario