Date: 19990528
Docket: T-1368-97
Ottawa, Ontario, May 28, 1999
| PRESENT: THE HONOURABLE MR. JUSTICE DENAULT |
BETWEEN:
ANTOINE C. ZARZOUR,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
JUDGMENT
The Court:
- orders that the letters of France Bélanger to the National Parole Board dated January 22 and May 16, 1994 be deleted from the record of the inmate Antoine Zarzour both with the Board and Correctional Service Canada, and that no further account be taken of them;
- orders the defendant to pay the plaintiff damages of $15,000 with interest from the date of service and costs and disbursements incurred.
PIERRE DENAULT
Judge
Certified true translation
Bernard Olivier, LL.B.
Date: 19990528
Docket: T-1368-97
BETWEEN:
ANTOINE C. ZARZOUR,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR JUDGMENT
[1] The question in the case at bar is whether the fact that an inmate"s ex-wife, working as a community case management officer with Correctional Service Canada, contacted the National Parole Board and represented herself as a victim, and was so regarded by the Board, infringes the inmate"s rights and can be a basis for an action under s. 24 of the Canadian Charter of Rights and Freedoms .
[2] It will be necessary to briefly summarize the facts in support of this action brought by the plaintiff, who argued his case without representation by counsel. In short, the facts are not in dispute and the testimony of several individuals heard at the trial, which required three days of hearing, only confirmed the voluminous documentary evidence filed in support of the action.
[3] The plaintiff has been serving a term of life imprisonment since 1977. In 1986, during a visit which France Bélanger, a student of criminology, made to the penitentiary where the inmate was being held, the parties met, soon after began seeing each other and eventually married in March 1998. A child, Alexandre, was born of this union. The parties lived together when the plaintiff was on parole but marital difficulties soon appeared. In December 1989 the parties took the decision to separate. In May 1990 the plaintiff moved to Western Canada, to Vancouver, where he worked, but as he had broken the conditions of his parole he had to be returned to prison. In November 1993, when he was again on day parole, the plaintiff returned to the Montréal area. His day parole was again suspended in February 1994 as the plaintiff failed to report to the Montréal Detention Centre at the time set in his parole conditions.
[4] On January 22, 1994 France Bélanger, who had just learned that her ex-husband, from whom she was now divorced, had returned to Quebec, and who feared that he would take steps to see or make contact with his son Alexandre again, decided to write a long letter to the National Parole Board (NPB) in which she described the difficulties which she said she encountered before their marriage broke up and asked that if her ex-husband was again paroled a specific condition that he not communicate directly or indirectly with her or members of her family be imposed on him. This letter did not have the effect expected by Ms. Bélanger, as the Board decided to approve the cancellation of the plaintiff"s parole, but without making any comment on the truth or otherwise of the facts alleged in her letter: however, the Board noted its presence in the record.
[5] In another letter to the Board on May 16, 1994 France Bélanger objected to the fact that the Board had not taken her prior written submissions into account. On this occasion she clearly described herself as a victim, stating that the Board did not have the right to question the statements she had made in her previous letter.1
[6] The plaintiff argued that these two letters were the cause of a series of problems he had to undergo before the NPB, which he said in its subsequent decisions unjustly imposed on him a condition that he not communicate with his ex-wife and his son. An attempt to obtain justice in the Superior Court by an action for defamation ended in failure due to a lack of jurisdiction by the Superior Court, and the plaintiff brought the action at bar in June 1997.
[7] In his action the plaintiff objected primarily to the fact that in his inmate record with Correctional Service Canada ("Correctional Service") and the National Parole Board his ex-wife France Bélanger was unjustly and unlawfully regarded as a victim. Essentially, he also maintained that the Board took his ex-wife"s statements into account without ascertaining the relevance of this information and continued to impose a condition of non-contact on him, which he considered to be unreasonable, without determining that the information supplied by his ex-wife was reliable and persuasive. The plaintiff therefore asked the Court to rule pursuant to s. 24 of the Canadian Charter of Rights and Freedoms that his constitutional guarantees had been infringed by the defendant, who should have ensured that his ex-wife"s allegations were reliable and trustworthy before proceeding to impose punitive and arbitrary penalties; that as compensation the Court order that his ex-wife"s letter be struck out, as well as any part of the record tainted by it; and that he be awarded real and exemplary damages.
[8] In legal terms, the plaintiff alleged that the legal rights and guarantees he enjoys under ss. 1, 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms2 were infringed. In particular, he argued that the Correctional Service and the National Parole Board wrongly regarded his ex-wife as a victim, which she was not within the definition of that word in s. 2 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("the Act"), in that the reason for his term of imprisonment had nothing to do with France Bélanger, and moreover there was no evidence to show that she was a person mentioned in ss. 26(3) and 142(3) of the Act, that is a person to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offence, and that a complaint was made accordingly. He alleged in this connection that both the Correctional Service and the Board gave France Bélanger information about him to which she was not entitled even before she had made written application for access to the registry pursuant to s. 144(2) of the Act.
[9] The defendant, for her part, denied that her officials and employees had committed any fault whatever in respect of the plaintiff and stated that she had acted at all times in accordance with the Corrections and Conditional Release Act, especially as under s. 101 of the Act the Board had discretion to treat the letters from the plaintiff"s ex-wife as relevant. Finally, she argued that in the course of their duties members of the Board enjoyed the immunity conferred on them by s. 154 of the Act.
[10] The trial of this matter consisted primarily of an exhaustive analysis of the documents accumulated by the plaintiff over the years. They were numerous, were evidence of their contents and were all the more conclusive as they were not contradicted by the defendant. The witnesses were only called to confirm the existence and the content of the documents and provide further details on the handling of the inmate Zarzour"s record at the Correctional Service and at the Board. However, the legal aspect of the case, which does raise very delicate and important points, was neglected as the plaintiff was not represented by counsel and counsel for the defendant only touched lightly on certain aspects of the law, omitting among other points to deal with the procedural aspect of this action. This makes it even more difficult to render judgment as the analysis can only deal essentially with the facts without the Court having the benefit of a brief discussion of the points of law.
Whether France Bélanger was a victim
[11] Analysis of the evidence leaves no doubt that France Bélanger, who in January 1994 had just learned that her ex-husband had returned to the Montréal area, had a specific purpose in mind when she wrote her first letter to the Board: by it she was seeking to prevent the plaintiff contacting her so he could not have his custody and visiting rights in respect of Alexandre, which had been suspended, reviewed by the ordinary courts. Her letter of January 22, 1994 (P-1) is quite clear and indicates [TRANSLATION] "Re: special condition prohibiting contact by Antoine Zarzour". After describing this doomed love affair at length Ms. Bélanger, in her own words, [TRANSLATION] ". . . therefore decided to use legal means to ensure that he stops his search" (p. 5). The objective sought was clear (p. 6):
| [TRANSLATION] |
| On account of my fears since Mr. Zarzour is on day parole in a halfway house in the Montréal area and is looking for me, I ask that the NPB impose on Mr. Zarzour the special condition that he not contact me or any other member of my family directly or indirectly: what is at issue is the safety of my son Alexandre, my own safety and that of those connected with me. |
In short, despite a judgment by the Superior Court dating from October 1990 (P-27), which awarded her separation from bed and board and suspended the father"s rights to visit Alexandre, followed by a divorce decree in February 1991, the ex-wife decided to use the Board to prevent the plaintiff from even looking for her.
[12] In her subsequent letter of May 16, 1994 (P-5), in which France Bélanger objected to the treatment she was given by the Board in ignoring her submissions, she clearly regarded herself both as a victim within the meaning of the Act3 and a victim of marital violence. Correctional Service Canada and the National Parole Board also, without any investigation, regarded France Bélanger as a victim. The evidence to this effect is clear and conclusive: the documents taken from the plaintiff"s inmate record, where mention is made of his ex-wife France Bélanger, bear the stamp "Victim" (P-11 and P-12) from as early as April 25, 1994. This fact was also confirmed by Raymond Fortin, preventive security officer at the institution where the plaintiff was being held. The plaintiff did deny these allegations by his ex-wife and make protests in this regard to both the Assistant Commissioner of Penitentiaries (P-17 and P-19) and the Chairperson of the Board (P-23): but to no avail. Instead, he received a reply from Assistant Commissioner J.C. Perron (P-18):
| [TRANSLATION] |
| . . . we can assure you that we were aware of your ex-wife"s previous status [community case management officer at the Québec office of Correctional Service Canada]. After investigating we can also assure you that she has never consulted your record either electronically or by any other means. In fact, your ex-wife only used her right as a victim when she made submissions to the National Parole Board. |
[My emphasis.]
These same remarks were later repeated by Assistant Commissioner Perron (P-20) and even by the Assistant Commissioner for Communications and Executive Services, K.D. Wiseman (P-26). Finally, the evidence showed that even at the time of the trial in January 1999 France Bélanger was still shown as a victim in the inmate"s record with Correctional Service Canada (P-10).
[13] As to the Board, community liaison officer Diane Bélisle, to whom all Ms. Bélanger"s correspondence was sent, also had the duty of determining whether a person claiming to be a victim had that status. Nonetheless, she admitted that there was no evidence causing her to think that France Bélanger met this requirement and that nothing was done to determine whether she was a victim or whether she met the requirements of s. 142(3) of the Act.
[14] In short, there was nothing in the evidence to show that France Bélanger met the definition of a victim contained in the Act, namely "a person to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offence", nor that she took any steps whatever to satisfy either the Commissioner (s. 26(3)) or the Chairperson (s. 142(3)) that harm was done to her or she had suffered physical or emotional damage as a result of the plaintiff"s actions, nor that a complaint was made to the police or the Crown attorney, or that such conduct was the subject of an information laid under the Criminal Code . At the same time, the evidence showed that the plaintiff"s ex-wife was regarded as a victim both at Correctional Service Canada and at the National Parole Board.
Whether information submitted by an alleged victim who did not have that status was relevant
[15] The analysis of this point will allow me to discuss certain legal and procedural problems raised by this action.
[16] In this regard, the plaintiff challenged the content of the information submitted by his ex-wife in his letter of January 22, 1994 (P-1) and argued that it was not the "available information that is relevant to a case" which under s. 101(b ) of the Act the Board could take into account in arriving at its decisions. In that letter France Bélanger dwelt at length on the difficult experiences during their marriage and at the time of their separation, events which all occurred before 1990. In particular, she described the plaintiff as committing certain aggressive acts towards herself and her son Alexandre. All these facts were vigorously denied by the plaintiff and by his father Henri Zarzour, who although close to husband and wife during the period of their marriage had never learned of such aggressiveness and never heard his daughter-in-law complain of it. Further, none of the clinical officers concerned with the plaintiff at the time, David Williams and Patrick Altimas, mentioned such aggressiveness in their reports (P-3 and P-38). Nevertheless, the evidence showed that when the plaintiff wanted to provide further clarification of these facts at a hearing before the Board on January 17, 1996 (P-15), a witness for the plaintiff was not allowed to contradict [TRANSLATION] "a written document" (p. 80) and one Board member regarded the acts mentioned by France Bélanger as proven for all practical purposes (pp. 70 to 78).
[17] Relying on Mooring v. Canada (NPB), [1996] 1 S.C.R. 75, the plaintiff objected that the Board had not given him a fair and impartial hearing and had not ensured that the information on which it based its decision was reliable and persuasive. In this connection even the community liaison officer of the National Parole Board, Diane Bélisle, admitted that no investigation was done to check the information submitted by Ms. Bélanger.
[18] This argument raises a serious procedural problem which the parties did not address.4 In the case at bar the Board has rendered several decisions referring to and discussing the content of Ms. Bélanger"s letters.
[19] Except for the decision of April 18, 1994 (P-13), in which the Board noted the presence of the letter of January 22, 1994 in the record without ruling on the veracity or otherwise of the facts alleged in it, in its other decisions it commented on the letter (P-16, P-25 and P-36) and gave it at least in part as the basis for refusal of any type of parole he might request (P-16) or that he should be subjected to the condition that his ex-wife wanted to see imposed on him, namely prohibiting any direct or indirect contact with her (P-36). Even at the Correctional Service the letter had a negative effect (see P-3, P-14 and P-34) on the inmate"s applications for parole.
[20] However, none of these decisions has been the subject of an application for judicial review although, under s. 18.1 of the Federal Court Act, that is the procedural vehicle which should have been used. In Mills v. The Queen, [1986] 1 S.R.C. 863, a criminal law case it is true, McIntyre J. nonetheless laid down general rules regarding the jurisdiction of the courts under s. 24(1) of the Charter. He thus admitted that (at 953):
| The task of the court will simply be to fit the application into the existing jurisdictional scheme of the courts in an effort to provide a direct remedy, as contemplated in s. 24(1). |
McIntyre J. then went on to consider the procedure to be followed, and wrote (at 956):
| Problems have arisen in connection with the procedure to be followed relating to Charter remedies and some confusion has existed in various courts. As has been said on many occasions, the Charter was not enacted in a vacuum. It was created to form a part " a very important part " of the Canadian legal system and, accordingly, must fit into that system. It will be noted at once that s. 24(1) gives no jurisdictional or procedural guide. This absence makes it clear that the procedures presently followed must be adapted and used for the accommodation of applications for relief under s. 24(1) |
| [My emphasis.] |
Accordingly, in the case at bar the Court could not quash, reverse or qualify decisions which have not been challenged in the manner and within the time limits specified by the Federal Court Act.
[21] In this connection, the plaintiff"s action is largely inadmissible in so far as in his conclusions the plaintiff argues that his constitutional rights were infringed during these hearings and in these decisions. I consider that he should have made his arguments by an application for judicial review. However, in view of the actions committed by Correctional Service and Board officers in maintaining the plaintiff"s record and their insistence on keeping prejudicial documents in it, the plaintiff has not lost all right to a remedy.
[22] I will now discuss two other points raised at trial, namely access by the plaintiff"s ex-wife to information contained in his inmate file, and having such access even before she had made a written application for access to the registry.
Whether France Bélanger had access as an alleged victim to information contained in the inmate Zarzour"s file
[23] Under ss. 26 and 142 of the Act access to the information contained in an inmate"s file is limited to the victim or a person who satisfies the Commissioner or Chairperson respectively that harm was done to him or her as the result of an act by the offender and a complaint has been made. The person may then on application be given certain information, including the date of a hearing or the parole conditions (26(1)(b )(iv) and (v) and 142(1)(b)(iv) and (v)).
[24] In the case at bar, as indicated earlier, it appears that the plaintiff"s ex-wife was neither a victim nor a person covered by ss. 26(3) and 143(3) of the Act. The evidence was that France Bélanger nevertheless undertook to contact the Board, which could give her information on the plaintiff"s parole applications. A channel of communication was thus opened between the plaintiff"s ex-wife and Diane Bélisle, who sent her the Board"s decisions (see D-1, P-8, P-9 and P-5), without France Bélanger even being entered in the registry: this point will be considered below. At trial Diane Bélisle even admitted that she had telephone conversations with France Bélanger, which only confirms the existence of a special line of communication, as both letters P-1 and P-5 were addressed to her by name. This undoubtedly explains how France Bélanger could be informed of the hearing of April 18, 1994. The evidence did not show that France Bélanger obtained this information by virtue of her status as an employee of the Correctional Service, but in so far as she mentioned that status in her letter of January 22, 1994 it can be assumed that at the very least this made it easier for her to have access to the information.
Application for access to registry
[25] During the trial the plaintiff argued that the Board had improperly provided his ex-wife with copies of decisions made concerning him without her being entered in the registry kept by the Board. Under s. 144 of the Act the Board is required to maintain a registry [sic] of the decisions rendered by it under Part II of the Act regarding the conditional parole of an inmate. Only a person who demonstrates an interest in a case " except for the offender, of course, to whom a copy of any decision must be given (s. 143(2)(b )) " may have access to this registry and consult certain information on making a written application to the Board.
[26] Analysis of the documentary evidence in the case at bar (P-8, P-5 and D-1) shows without the shadow of a doubt that the Board gave France Bélanger copies of decisions concerning the plaintiff even before a written application for entry in the registry had been made, at an unspecified date some time around January 1996. When questioned on this point the witness Diane Bélisle in fact spontaneously confirmed that she had sent France Bélanger the Board"s decision of April 18, 1994, which also mentions the latter"s letter of May 16, 1994 (P-5).
[27] The Court concludes from analysis of the evidence that both Correctional Service Canada and the National Parole Board unlawfully provided information about the plaintiff"s inmate file to a victim who did not have that status or a person who had not shown that she was entitled to such information.
[28] As the question of the immunity of National Parole Board members was barely touched on by counsel for the defendant, I will not discuss this point further. It will suffice in this connection to mention the opinion of Lamer C.J. in Nelles, [1989] 2 S.C.R. 170, at 196, which questioned whether a common law immunity or legislation could prevent the courts from awarding suitable and fair compensation under s. 24(1) of the Charter.5 Furthermore, the immunity relied on by counsel for the defendant under s. 154 of the Act applies only to members of the NPB (s. 103), not to the Board"s staff. It is the latter who are in question in the case at bar.
[29] In the circumstances I feel that, by treating the plaintiff"s ex-wife as a victim, sending her information to which she was not entitled and giving her copies of decisions concerning the plaintiff contrary to the clear provisions of the Corrections and Conditional Release Act , the defendant"s officials infringed the plaintiff"s right to liberty of the person, protection against unusual treatment and the right to equal protection and equal benefit of the law without discrimination.
[30] By way of compensation the plaintiff is asking the Court to strike from his inmate file the letters from his ex-wife France Bélanger (P-1 and P-5) and is seeking exemplary damages ($50,000) and damages ($166,000) for loss of salary, loss of enjoyment of life, injury to his reputation, psychological harm and various forms of hardship.
[31] Clearly France Bélanger"s letters included in the plaintiff"s inmate file have caused him and are causing him serious hardship in that they have served to tarnish his reputation with the agencies concerned without any evidence being presented of the truth of their contents.6 They have also had the effect of conditions being imposed on his parole applications which should not have been imposed. These letters will therefore be deleted from the file and no further account will be taken of them. However, in this connection as the decisions already rendered by the Board have not been challenged the remedy can only apply for the future.
[32] The claim for damages is more difficult of resolution. First, it should be noted that the plaintiff presented no evidence of loss of salary. Additionally, since the person responsible for the injury to his reputation, his ex-wife, was not a party to the action the defendant could not be held liable for damages in this connection. The plaintiff dwelt at length on the psychological harm and loss of enjoyment of life occasioned to him by the treatment of the letters from his ex-wife by the defendant"s officials, requiring him to [TRANSLATION] "shadow-box" for several years. This is not to mention the various hardships resulting from both legal and administrative steps which he had to take to remove these prejudicial documents from his file. The amount of damages on this head can only be arbitrary. The Court sets them at $10,000.
[33] That leaves the question of the exemplary or punitive damages of $50,000 claimed by the plaintiff. In LeBar v. Canada, [1987] 1 F.C. 585, my brother Muldoon J. ordered Her Majesty to pay $10,000 exemplary damages to an inmate who had been kept in prison at the expiry of a long sentence for 43 days more than the usual length of his term. That decision was approved by the Court of Appeal, [1989] 1 F.C. 603, and the Court also dismissed the appeal by the Crown, which found the award of exemplary damages to be excessive. The cross-appeal filed by the respondent, who regarded the amount as insufficient, was also dismissed. In that unanimous judgment MacGuigan J.A., citing Lord Devlin in Rookes v. Barnard, [1964] 1 All E.R. 367 (H.L.), noted that ""outrageous" or "oppressive" conduct on the part of the Government is quite different from similar conduct by powerful corporations or individuals, and that it is much more serious, "for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service"" (at 615). As Muldoon J. had done at trial, the judges of the Court of Appeal recognized that the defendant"s conduct fell into the category of "oppressive, arbitrary or unconstitutional action by the servants of the government". The Court also recognized that "malice is not necessary for the existence of "oppressive, arbitrary or unconstitutional action by the servants of the government"".
[34] In light of these statements of the law and the analysis of the evidence, I feel that in the case at bar the defendant"s officials committed oppressive and arbitrary acts justifying an order to pay exemplary damages. In LeBar the Federal Court of Appeal noted that ". . . the necessity for the government and its officials to obey the law is the fundamental aspect of the principle of the rule of law, which is now enshrined in our Constitution by the preamble to 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.]]" (at 611). As discussed above, the government servants in the case at bar failed to carry out this duty. Clearly they cannot plead mistake or good faith in treating France Bélanger as "victim": though duly warned by the plaintiff that his ex-wife was not and could not be regarded as a victim, both the Assistant Commissioner of Penitentiaries and the Assistant Commissioner for Communications and Executive Services maintained that she had only " wrongfully " used her victim"s right and even refused to hold an administrative inquiry into this matter. I feel in the circumstances that the plaintiff is entitled to exemplary damages of $5,000.
[35] As the plaintiff was not represented by counsel he is not entitled to fees. However, he will be reimbursed for all his costs and disbursements incurred.
PIERRE DENAULT
Judge
Ottawa, Ontario
May 28, 1999
Certified true translation
Bernard Olivier, LL.B.
APPENDIX to decision rendered on May 28, 1999 in case
T-1368-97 " Antoine C. Zarzour v. Her Majesty the Queen
Canadian Charter of Rights and Freedoms
[ORIGINAL FRENCH AND ENGLISH FOLLOW]
Corrections and Conditional Release Act
[ORIGINAL ENGLISH AND FRENCH FOLLOW]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-1368-97
STYLE OF CAUSE: Antoine C. Zarzour v. Her Majesty the Queen
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 11, 12 and 13, 1999
REASONS FOR JUDGMENT BY: DENAULT J.
DATED: May 28, 1999
APPEARANCES:
Antoine C. Zarzour for himself
Louis Sébastien for the defendant
SOLICITORS OF RECORD:
Antoine C. Zarzour for himself
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
__________________1 The plaintiff"s statement of claim does not mention the existence of this letter either in the allegations or in the conclusions. However, the filing of the letter was authorized at the trial when the evidence disclosed that he was not given a copy of the letter at the time (May 1994), he only learned of its existence in February 1997 and he did not have a copy of it until August 1998 after counsel for the defendant referred to it in his affidavit of documents.
2 So as not to unduly lengthen the judgment the sections of the Charter and the Act to be referred to are set out in an appendix.
3 [TRANSLATION] ". . . we have the Act which tells us to take victims" stories into account . . ." (P-5).
4 After the filing of the action (June 25, 1997) and the filing of the defence (August 11, 1997) and the reply (August 13, 1997), counsel for the defendant on October 26, 1997 filed a motion to strike the plaintiff"s statement of claim based on Rule 419(1)(a ) of the Federal Court Rules. This motion was dismissed as counsel had filed an affidavit in support of the motion contrary to Rule 419(2). This argument was not repeated at trial.
5 See also the analysis by Rousseau-Houle J. in Proulx v. Quebec (A.G.) , [1997] R.J.Q. 419, C.A.
6 Case management officers André Bellemare and Patrick Altimas, who checked the allegations of marital violence made by France Bélanger, both concluded that they were not consistent with their observations at the respective times when they were responsible for the plaintiff"s file (see P-34 and P-38).