Van Vlymen v. Canada (Solicitor General), 2004 FC 1054

Date: 20040803

Docket: T-211-00

Citation: 2004 FC 1054

Ottawa, Ontario, this 3^rd day of August, 2004

Present:           The Honourable Justice James Russell                                

BETWEEN:                                                                           

                                                   DAVID CLARE VAN VLYMEN

                                                                                                                                          Applicant

                                                                           and

                                             SOLICITOR GENERAL OF CANADA

                                                                                                                                     Respondent

                                            REASONS FOR ORDER AND ORDER

NATURE OF APPLICATION

[1]                This is an application for judicial review of the significant delay by the Respondent in making a decision pursuant to s. 6 of the Transfer of Offenders Act, R.S.C. 1985, c. T-15 ("Act") and Regulations approving the transfer of the Applicant from the USA to Canada. The Applicant has, in fact, been transferred to Canada pursuant to a decision of the Respondent dated March 1, 2000. However, the Applicant has continued with this application because of the lengthy delay between the Applicant's request for transfer and the Respondent's decision to approve it.

BACKGROUND

[2]                In July of 1986, having been charged in Ontario with the offences of robbery, unlawful confinement, assault causing bodily harm and sexual assault, the Applicant successfully eluded Canadian law enforcement officials by fleeing to the United States of America. While in that country, he was apprehended, charged, convicted, and sentenced on October 14 and November 18, 1987, to 55 years in prison for bank robbery and bank robbery by use of a dangerous weapon.

[3]                In a letter dated January 11, 1991 to Serge Boudreau, Manager, International Transfers, Correctional Services of Canada, the Respondent was advised that the Applicant's Transfer Application to allow him to serve the remainder of his sentence in Canada had been approved by the U.S. Department of Justice. A long and voluminous correspondence then took place between the Applicant and Correctional Services Canada.

[4]                It was not until February 3, 2000 that the Applicant filed an application for judicial review of the Respondent's conduct. Soon after the application was filed, the Respondent approved the Transfer Application so that the Applicant could return to Canada to serve out his sentence.

[5]                Mr. Boudreau advised the U.S. Department of Justice of the Respondent's approval of the Transfer Application on March 1, 2000.

[6]                The Applicant was then transferred back to Canada.

[7]                On March 17, 2000, the Respondent brought a motion to have this application for judicial review dismissed on the basis that the matter was moot because the Applicant has been transferred back to Canada.

[8]                In Reasons for Judgment dated May 3, 2000, Prothonotary Hargrave found that the matter was indeed moot, but he allowed the application for judicial review to proceed because "there remain substantial issues, and an adversarial climate in which to resolve those issues, the resolution of which will affect or which may affect the rights of the Plaintiff (sic)" and which "if left unresolved, may well have broader ramifications which will affect others."

[9]                The Applicant requested disclosure under Rule 317 of the Federal Court Rules, 1998, and by Order of Mr. Justice Blanchard dated January 23, 2001, the Respondent was required to forward to the Registry all relevant materials in his possession that he relied upon in "considering, studying, and reviewing as well as reprocessing the applicant's case pursuant to its jurisdiction under the Transfer of Offenders Act and Regulations thereof."

[10]            On November 7, 2003, pursuant to a status review and by decision of Mr. Justice Blanchard, the Court permitted the matter to continue.

ISSUES

[11]            The Applicant raises the following issues:

Does the Applicant as a Canadian citizen have the constitutional right, by virtue of s. 6 (1) of the Canadian Charter of Rights and Freedoms, to enter Canada or does the Respondent, Solicitor General of Canada, have the right to deny or refuse him such entry?

Is the Respondent Minister obliged and under a legal duty to approve an application for transfer pursuant to s. 6 of the Transfer of Offenders Act if an applicant is a Canadian citizen and therefore in compliance with regulation 4(a) of the Transfer of Offender Act Regulations?

Are the Transfer of Offenders Act Regulations 4(b) - (f) unconstitutional as being inconsistent with s. 6(1) of the Canadian Charter of Rights and Freedoms and as such of no force and affect by virtue of s. 52 of the Canadian Charter of Rights and Freedoms?

Have the Applicant's constitutional rights pursuant to s.6 of the Canadian Charter of Rights and Freedom been violated by the Respondent since approximately January of 1991 and, if so, what is the appropriate and just remedy pursuant to s. 24(1) of the Charter in the circumstances?

Did the Respondent Minister fail to comply with s. 7 of the Canadian Charter of Rights and Freedoms and the common law duty to act fairly in processing the Applicant's Transfer Application for transfer back to Canada?

Should the Respondent Minister be required, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, to provide full disclosure of all the information, studies and other materials considered by the Respondent in relation to the Applicant's Transfer Application, including any denial of his Transfer Application and the basis for any such denial?

Is the Applicant entitled to reimbursement for all his costs and expenses and legal fees in pursuing his constitutional rights?

Is the Applicant entitled to special costs in all of the circumstances?

ARGUMENTS                      

Applicant

Does the Applicant as a Canadian citizen have the constitutional right, by virtue of s. 6 (1) of the Canadian Charter of Rights and Freedoms, to enter Canada or does the Respondent, Solicitor General of Canada, have the right to deny or refuse him such entry?

[12]            Section 6 of the Charter appears under the heading "Mobility Rights" and the subheading "Mobility of Citizens". It provides in s. 6 (1) as follows:

[13]            The Supreme Court of Canada in its unanimous decision in Reference Re: Secession of Quebec, [1998] 2 S.C.R. 217 has said the interpretation of the Charter requires a "structural approach":

50.            Our Constitution has an internal architecture that the majority of this Court in O.P.S.E.U. v. Ontario (Attorney General), [1987] 2 S.C.R. 2 at p.57, called a "basic constitutional structure." The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole.

[14]            The structure of the Charter itself is a powerful interpretive tool because it represents the articulation of the underlying values of Canadian society. An examination of the Mobility Rights set out in s. 6 of the Charter in the context of the overall structure of the Charter is important in this case as regards the degree of deference that should be given to the government position under s. 1 of the Charter on the issue of whether the Regulations pursuant to the Transfer of Offenders Act constitute a reasonable limitation on the Mobility Rights in the Charter. The Applicant submits that the isolation of s. 6 from the "notwithstanding clause" in s. 33 demonstrates that any breach of s. 6 must be subject to a very high degree of judicial scrutiny under s. 1 of the Charter. Government interference with individual rights that are reasonable in one context may not be reasonable in the context of s. 6. Further, the specific use of the word "citizen" in s. 6 of the Charter provides strong support for the proposition that it is unconstitutional to deny any citizen, even a bad citizen, his or her constitutional Mobility Rights (See for example 2002 SCC 68">Sauve v. Canada (Chief Electoral Officer), 2002 SCC 68 per McLachlin C.J. at paras. 34 - 37)).

[15]            Section 33 of the Charter only applies to s. 2 and ss. 7-15 and is not applicable to s. 6. Consequently, the Applicant argues that it is simply not possible for the federal or any provincial government to suspend the Mobility Rights of Canadian citizens.

[16]            Further, the Applicant says that s. 6 Mobility Rights apply only to "citizens." A focus on the importance of citizenship is also grounded on a structural approach to Charter interpretation. Most Charter rights are held by "everyone" or "any person." The right to enter Canada in s. 6 is only accorded to "every citizen of Canada." Only s. 3 of the Charter (which gives a citizen a right to vote) and s. 23 (which protects minority language education rights) are held by "citizens." In Singh vs. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 (SCC), the Supreme Court of Canada held that a person was entitled to a right held by "everyone" merely by virtue of their physical presence within Canadian territory, even if they had entered the country illegally. A Canadian citizen, however, has a special status conferred by ss. 3, 6 and 23 of the Charter; a status that is not enjoyed by foreigners or permanent residents. A Canadian citizen who becomes a prisoner does not lose his or her citizenship because of his or her conviction or sentence.

[17]            In Chiarelli v. Canada (Minister of Employment and Immigration) (1992), 90 D.L.R. (4^th) 289 at 303-4, the Supreme Court held that non-citizens only have qualified rights and that, as regards Charter rights, there is a clear distinction between a citizen and non-citizen. Citizenship is a purely statutory creation governed by the Citizenship Act, R.S.C. 1985, c. C-29 . A person is either born into citizenship or acquires it by meeting the conditions set out in that Act. There is no "common law" or Charter concept of citizenship. The distinction between citizens and non-citizens is the constitutional source for the government's authority to deport illegal immigrants, permanent residents and other non-citizens. The courts have refused to extend the definition of citizenship beyond that contained in the Citizenship Act. In Solis v. Canada, (1998) 147 F.T.R. 272 at 279-80 (F.C.T.D.), a landed immigrant facing deportation argued an entitlement to s. 6 Mobility Rights. The Court rejected the argument holding that citizenship has always been a statutory matter and that to attempt to give any meaning to the word "citizen" outside of the definition in the Citizenship Act would render it meaningless.

[18]            The Applicant says that, while the relevant minister may relax certain requirements in an application for citizenship on compassionate or other grounds, only the discovery of fraud in such an application can result in the loss of citizenship status. Once citizenship exists by birth, or has been officially acquired in accordance with the Citizenship Act, it cannot be lost or taken away. It is enjoyed thereafter as an essentially static concept. Canadian citizenship acquired by birth is not based on any personal characteristic. Once lawfully acquired, by birth or otherwise, it is not subject to deprivation on any ground, let alone on the basis of a personal characteristic such as bad conduct. Citizenship is strictly a consequence of the statutory definition in the Citizenship Act.

[19]            In Lavoie v. Canada (1999), 174 D.L.R. (4th) 588 (F.C.A) the Federal Court of Appeal addressed the distinction between the rights, duties, responsibilities and interests of citizens and those of permanent residents in the context of s. 15 of the Charter. According to Marceau J. A. at p. 588, the Canadian constitution "recognizes the concept of citizenship as lying at the very foundation of the national political community." Marceau J. found, at p. 589, that citizenship is "universally held within a democratic context to be of value to both the citizen and the state, and inherently distinctive based as it is on the idea that certain rights, privileges, and obligations will be ascribed exclusively to citizens as attributes of their status." Desjardins J. A. agreed that the notion of citizenship depends on political entitlement. She specifically noted the link between the concept of citizenship and the Charter and how the Charter embodies a number of important rights to which only citizens are entitled. She also noted the corresponding responsibilities that attach to citizenship (Lavoie, supra, affirmed by S.C.C. in Lavoie v. Canada (2001), 210 D.L.R. (4^th) 193 per Marceau J. A. at p. 604 and 608; per Desjardins J. A. at p. 614, 616-619, 621).

[20]            Currently, the Citizenship Act does not allow for the revocation of citizenship once obtained, except if acquired on the basis of fraud. Neither the simple conviction for a criminal offence, the imposition of a federal sentence, or simply being a "bad citizen," can result in the loss of citizenship. While a person seeking to obtain citizenship may be denied such status on grounds relating to bad character, once citizenship status has been acquired such conduct becomes irrelevant to their status as "citizen." The revocation of citizenship for bad conduct would render the person "stateless" and amount to a serious breach of international law. Nationality of citizenship defines one as a legal person. It is the primary link between an individual and international law and creates an identity that can be supported by diplomatic protection. It is "the right, in fact, to have rights." According to the Convention of Stateless Persons, 360 U.N.T.S. 117, Article 1, a person is stateless if they are "not considered as a national by any state under the operation of its law" (Carol Batchelor, "Statelessness and the problem of Resolving Nationality Status," (1998) 10 Int'l Journal of Refugee Law 156 at 159.

[21]            Canada is a signatory to the International Convention on the Reduction of Statelessness and has been since 1978. The Convention provides a few narrow circumstances in which citizenship can be revoked. Article 8 of the Convention arguably provides a basis for the removal of the citizenship of a prisoner. However, it requires the contracting state to reserve that right at the time of accession. Canada did not enter such a reservation at the time of accession to the Convention. Current scholarship on "statelessness" suggests that citizenship is a legitimate, albeit fledgling human right, and that its deprivation as a result of the imposition of a sentence, would not likely pass the developing international standards on "statelessness" (Chan J.M.M., "The Right to a Nationality as a Human Right: the Current Trend Towards Recognition", (1991)12 Human Rights Law Journal 1 at p.8).

[22]            In United States of America v. Cotroni et al (1989), 48 C.C.C. (3d) 193(S.C.C.) La Forest J., for the Supreme Court of Canada, in the context of extradition, commented as follows at pp. 211-212 on the relationship between citizenship and country:

In approaching the matter, I begin by observing that a constitution must be approached from a broad perspective. In particular, this Court has on several occasions underlined that the rights under the Charter must be interpreted generously so as to fulfill its purpose of securing for the individual the full benefit of the Charter's protection: see the remarks of Dickson C.J.C. in Hunter v. Southam Inc. 14 C.C.C. (3d) 97 at pp. 105-6, 11 D.L.R. (4th) 641, [1984] 2 S.C.R. 145 (SCC); R. v. Big M Drug Mart Ltd. (1985), 18 C.C.C. 93d) 985 at pp. 423-4, 18 D.L.R. 94th) 321, [1985] 1 S.C.R. 295 (SCC). The intimate relationship between a citizen and his country invites this approach in this context. The right to remain in one's country is of such a character that if it is to be interfered with, such interference must be justified as being required to meet a reasonable state purpose.

[23]            La Forest J. then went on to consider the Canadian Bill of Rights, R.S.C. 1970, App. III that protects a person from exile in s. 2(a), and the European Convention on Human Rights, 4th Protocol, Article 3, para. 1 to the same effect, and Article 12 of the International Covenant on Political Rights as well as the 4th Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (1971). He then concluded as follows:

Like the international and constitutional documents I have referred to, the central thrust of s. 6 (1) is against exile and banishment, the purpose of which is the exclusion of membership in the national community.

...

An accused may return to Canada following his trial and acquittal or, if he has been convicted, after he has served his sentence. The impact of extradition on the rights of a citizen to remain in Canada appears to me to be of secondary importance. In fact, so far as Canada and the United States are concerned, a person convicted may, in some case, be permitted to serve his sentence in Canada... .

USA v. Cotroni et al, supra, per La Forest J. at pp.212-213

See also 2001 SCC 7">United States v. Burns 2001 SCC 7 at paras. 39 - 49.

[24]            In view of the above, the Applicant submits that, as a Canadian citizen, he had a constitutional right to enter Canada by virtue of s. 6(1) of the Charter and that, once approved by the 2001 SCC 7">United States of America pursuant to the relevant treaties, and in compliance with the Transfer of Offenders Act, his constitutional right to enter Canada should have been effected promptly, and he should have been given the opportunity to return to Canada at the next available reasonable time. He says that the failure of the Respondent to allow his return violated his constitutional right to enter Canada by returning from the USA pursuant to the Treaty and the Transfer of Offenders Act.

Is the Respondent Minister obliged and under a legal duty to approve an application for transfer pursuant to s. 6 of the Transfer of Offenders Act if the Applicant is a Canadian citizen and therefore in compliance with regulation 4(a) of the Transfer of Offender Act Regulations?

[25]            The Applicant argues that, for the reasons given above, the Respondent Minister, the Solicitor General of Canada, had a legal duty to approve the Applicant's transfer back to Canada subject only to confirmation of his being a Canadian citizen. Because of the Applicant's citizenship status, the Respondent was bound to approve his application and had a legal duty to approve the transfer. While the Respondent ultimately approved the transfer he did so within the framework of the former Transfer of Offender Regulations and has not admitted that the only question was the Applicant's Canadian citizenship. In fact, the second page of exhibit "U", to the affidavit of Meherun Kassam, the document approving the Applicant's transfer, contains a checklist indicating that the Minister took into account the other factors set out in the Regulations and not just the Applicant's Canadian citizenship. In light of s. 6 of the Charter it should be declared that the Respondent was under a legal duty to approve the Applicant's transfer subject only to his establishing or verifying his citizenship status and that other extraneous considerations were irrelevant.

Are the Transfer of Offenders Act Regulations 4(b) - (f) unconstitutional as being inconsistent with s. 6(1) of the Canadian Charter of Rights and Freedoms and as such of no force and affect by virtue of s. 52 of the Canadian Charter of Rights and Freedoms?

[26]            The Transfer of Offenders Regulations in effect at the material time, in s. 4(b) - (f), required the Respondent Minister to take into account factors other than the Applicant's Canadian citizenship. The Applicant argues that, to the extent that these sub paragraphs purported to allow the Minister not to approve an application for transfer by a Canadian citizen, they were inconsistent with s. 6(1) of the Charter and, by virtue of s. 52, were of no force and effect.

[27]            The Applicant asks the Court to declare that the Transfer of Offenders Act Regulations paras. 4(b) - (f) were unconstitutional as being inconsistent with s. 6(1) of the Charter and of no force and effect by virtue of s. 52 of the Charter.

Were the Applicant's Constitutional Rights pursuant to s.6 of the Canadian Charter of Rights and Freedom violated by the Respondent since approximately January of 1991 and, if so, what is the appropriate and just remedy pursuant to s. 24(1) of the Charter in the circumstances?

[28]            The Applicant argues that his constitutional rights pursuant to s.6 of the Charter were clearly violated by the Respondent since approximately January of 1991 by the application, or purported application, of the Transfer of Offenders Act Regulations to him and by the entire process that the Respondent (and others with whom the Respondent secretly conspired) used to defeat his constitutional rights. In the result, the Applicant says that he was subjected to the following:

a. He was denied his constitutional right, as a Canadian citizen, to enter Canada in accordance with s.6 of the Charter;

b. He was denied a transfer and his constitutional right on an improper basis, namely unconstitutional regulations purporting to limit s. 6 of the Charter and on the basis of a charge for which he had not been tried or convicted, which was a basis for his return to Canada by way of extradition and not as a basis for preventing his return to his country of origin;

c. Instead of implementing the rule of law, the Solicitor-General at the time capitulated to the emotional claims of an alleged victim and supporters and the improper interference of the provincial crown as basis to refuse the transfer;

d. The Applicant was lied to and misled as well as misinformed, and was not told of denials and the basis for them, nor what was really going on in relation to his application;

e. Reprehensible conduct on the part of the government authorities and representatives who persisted in a course of deceptive action, knowing of the existence of the Applicants rights pursuant to the Charter, and, yet without due regard for them and by considering improper factors to the Applicants prejudice.

[29]            The Applicant says that the Respondent Minister recognized his wrongdoing in relation to the Applicant and that is why he immediately effected the transfer back as soon as the Applicant filed this judicial review application. The initial remedy sought by the Applicant when he was still incarcerated in the USA has been accomplished. However, the disclosure, through the Rule 317 documents, of what in fact transpired in relation to the Applicant's case discloses a lengthy and improper denial of his constitutional rights over a 10 year period that resulted in the Applicant being held in the USA for that time instead of being allowed to return to Canada. During that delay the Applicant's mother, who was in ill health to the knowledge of the authorities, died. The conduct of the authorities in the circumstances was reprehensible to say the least, and the Applicant says he should be provided with a commensurate appropriate and just remedy.

[30]            The Applicant says that, in all of the circumstances, the Court should consider any one or more of the following proposed remedies as being appropriate and just pursuant to s. 24(1)of the Charter:

a. Setting aside the Applicant's convictions for all chargers prosecuted in Sarnia, Ontario since his return to Canada on the basis that there was an unreasonable delay in the prosecution of those charges caused by the victim, her supporters, the Provincial Crown and the Federal Crown and that therefore the Applicant was not tried within a reasonable time for those offences, contrary to section 11(b) of the Charter;

b. Awarding the Applicant special costs or costs on a solicitor/client basis due to the reprehensible conduct of the authorities both before and during these proceedings as set out in more detail below;

c. Reducing the Applicant's sentence by at least the 10 years of delay he suffered while being held in the USA contrary to his Charter rights;

e. Converting this part of the Applicant's claims to an action for damages pursuant to section 18.4(2) of the Federal Court Act.

Did the Respondent Minister fail to comply with s. 7 of the Canadian Charter of Rights and Freedoms and the common law duty to act fairly in processing the Applicant's application for transfer back to Canada?

[31]            The Applicant says that the Respondent, and particularly the Minister through his subordinates, and more particularly the representatives of the International Transfer Unit of the Correctional Service of Canada, clearly failed to tell the Applicant the case against him and, in the result, he never received a fair opportunity to respond to that case. The duty to act fairly is the minimal requirement for procedural fairness and as such amounts to a violation of s. 7 of the Charter in that the Applicant's liberty and the security of his person were adversely affected in a manner that was not in accordance with the principles of fundamental justice. (Martineau v. Inmate Disciplinary Board, Matsqui Institution, [1979] 50 C.C.C. (2d) 353 (S.C.C.); National Parole Board et al. v. Mooring, [1996] 104 C.C.C. (3d) 97 (S.C.C.)).

[32]            The Applicant submits that, as early as the spring of 1991, the Respondent made a decision to keep from him the source of the pressure being applied to deny his transfer. The existence of a petition from Christine Strangway and others opposing his transfer was not disclosed to the Applicant until he undertook these proceedings. Nor was the fact that the record of outstanding Canadian charges had been removed from the Canadian Police Information Computer for a period of time, and that the basis for the opposition was an allegation of a crime for which he had not then been tried, let alone convicted. The authorities were alive to the fact that the denial of transfer, while in the discretion of the Minister, could still be challenged under the Charter. Indeed, the Minister even referred to the Charter and the Charter obligations of the Canadian government when opposing the transfer in or about November of 1991. It appears that the Minister's mind was clearly made up by December 1991. In conjunction with the Deputy Solicitor General, it was decided to rely on Regulation 4(b) to suggest that the Applicant's return would outrage public sensibilities. This was done without telling him that such public sensibilities had arisen through the Crown (Ontario) and victims' groups and other citizens, based on an allegation of an outstanding offence in Canada for which he had yet to be tried and for which they knew they could extradite him back to Canada. They also knew that such an allegation was not a valid basis to deny a transfer back to Canada. In other words, they never told the Applicant what was really going on.

[33]            Furthermore, when representatives of the International Transfer Unit advised the Applicant that the Minister was considering denying his application under regulation 4 (b) of the Transfer of Offenders Act Regulations and invited him to make a submission to the Minister to comply with the duty to act fairly, the Applicant was still not told the case against him, namely the basis for the opposition, so as to enable him to fairly respond within the 60 days given to him. It appears that the Applicant and others were told that his application was with the Minister when, in fact, the Minister had already decided against him.

[34]            Because the Applicant was not told what was really going on in terms of the case against him, but was told that the Minister was considering denying his application, he asked for some time to rectify certain aspects of his charge and sentence, with the hope that this might cause the Minister to look at his Transfer Application more favourably. He says that, if he had been told what was really going on, he would have addressed the real issues specifically, and would have realized what the real problem was. This process continued between 1991 until at least mid-1994 when the Applicant was told that his application was being reprocessed because it was so old.

[35]            The Applicant feels that the Rule 317 documents reveal that, by July 12, 1994 the Applicant had, in fact, been denied on two previous occasions and had never been told the reasons for the denials. It was only because of the persistence of the Applicant and others on his behalf that the authorities were forced to keep dealing with this matter. Nevertheless, the authorities re-contacted the Crown in Sarnia, Ontario, and the Applicant continued to press his case, and specifically involved the services of Beth Parkinson, a paralegal with Prisoners Legal Services, who then sought, but to no avail, full disclosure of the case against the Applicant in order that she might assist him in responding to the case against him. While Mr. Boudreau was well aware of the Charter issues, and had in fact raised the Charter on behalf of the Applicant in his communications with the Sarnia police, he nevertheless led Beth Parkinson to believe that the delay was due to the Applicant, and then proceeded to use the Privacy Act as a stalling tactic to further delay the Transfer Application into 1996. After Ms. Parkinson gave up, the Applicant persisted, but again was led to believe by Mr. Boudreau that it was the Applicant's requests that caused the delays. The authorities never disclosed to him the real basis for the delays and non-disclosure.

[36]            The Applicant says that it is apparent from his further correspondence with both federal and provincial government authorities that he still believed he could be extradited for the outstanding allegation in Sarnia, or transferred under the relevant treaty. He did not know the details of what had been transpiring between the authorities and that, in fact, it was the Sarnia Crown and others along with Mr. Boudreau's office and the Minister's office who had been doing and saying things to each other (without the Applicant's knowledge) that affected his transfer and that led him to believe that the delay was due to other factors. There had by this time been a 7 year delay since he had first applied and obtained US approval for a transfer. All efforts by the Applicant and others on his behalf were met with responses that they were either waiting for further information from the Applicant, or that another study was being done of his case because of how old it was, or that a decision was imminent and was being given "utmost consideration" and that he should "rest assured."

[37]            The delays and obfuscation continued from 1998 until February, 2000 when this application for judicial review was filed and served. On March 1, 2000, the Applicant was finally told that his request for transfer had been approved by Canada. This occurred approximately 10 years after US approval was given. None of the provisions in the Regulations that were previously indicated as a basis for denial were relied upon by the authorities as a basis for refusal of his transfer. The Applicant finally became aware of what had been going on when he received the Rule 317 documents in these proceedings. However, notwithstanding the Order of this Court of January 23, 2001, requiring disclosure of all relevant material, even those documents contain portions that have been blanked out and disclosure precluded. No notice of objection or any claim of privilege has been filed or claimed to justify this continuing non-disclosure.

Should the Respondent Minister be required, pursuant to s. 24(1) of the Charter, to provide full disclosure of all the information, studies and other materials considered by the Respondent in relation to the Applicant's application, including any denials of his application and the basis for such denial?

[38]            The Applicant assumes, subject to the continuing non-disclosure indicated above, that the Respondent has otherwise complied with this Court's order of January 23, 2001. The Applicant submits that, in the absence of a valid claim of privilege or other basis for continuing non disclosure, the Court should order the Respondent to complete the disclosure and should order the Respondent to provide the specific documents and reasons for the earlier denials of his transfer application.

Is the Applicant entitled to reimbursement for all his costs and expenses and legal fees in pursuing his constitutional rights and/or is the Applicant entitled to special costs or costs on a solicitor and client basis, in all of the circumstances?

[39]            The discretion to award costs in this Court is set out in Rule 400 and, in particular, according to the factors set out in Rule 400(3). Solicitor-client costs come under Rule 400(6)(c). The Applicant submits that the Court, in assessing costs in these proceedings, should take into account not only the result of the proceeding (400(3)(a)), the importance and complexity of the proceeding (400(3)(c)),the amount of work(400(3)(g)), and the public interest in having this proceeding litigated (400(3)(h)) but also, as a further relevant factor(400(3)(o)) and as a basis for solicitor-client costs(400(6)(c)), the reprehensible conduct of the Respondent throughout in dealing with the Applicant's transfer application over the ten year period and, in effect, denying to him his constitutional right to return to Canada under s.6 of the Charter with full knowledge that this was being done without any valid basis. The Applicant was compelled to bring these proceedings and thereby incur costs and expenses to effect his transfer back to Canada in accordance with his Charter rights. The Respondent tried to not only have the rest of his claims dismissed as moot, never having tried to defend or explain the previous reprehensible conduct, but also tried to prevent the Applicant from finding out what, in fact, had transpired in relation to his Transfer Application by not complying with the Rule 317 request until ordered to do so, and by asserting that these documents were irrelevant and unnecessary to the remaining claims. Even then the Respondent continued to withhold certain information from the Court and the Applicant without any application to do so and without providing any formal basis for so doing.

[40]            The Applicant submits that special costs, or costs on a solicitor/client basis, should be ordered where a party has acted reprehensibly. Reprehensible conduct includes conduct which is "milder" than conduct which could be described as scandalous or outrageous. It is conduct that is simply deserving of reproof or rebuke. Such costs are meant to show the court's disapproval of reprehensible conduct (Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740 (B.C.C.A.) at p.747, para b.; Fullerton v. Matsqui (1992), 74 B.C.L.R.(2d) 311 (B.C.C.A.) para 23; Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2S.C.R. 817 (S.C.C.); Amway Corp. v. The Queen, [1986] 2 C.T.C. 339 (F.C.A)).

[41]            The Applicant also submits that, where an allegation is made that conduct should attract special costs or costs on its solicitor/client basis, the Court must "...consider all evidence that might cast light on the character of the ... conduct" of the party against whom the special costs order is claimed. Conduct which might attract an order for special costs can be conduct "...either in the circumstances giving rise to the cause of action, or in the proceedings" in which the special costs claim is made (Bank of Credit & Commerce International (Overseas) Ltd. (Liquidator of) v. Akbar 2001 BCCA 204, para 23; Stiles v. Workers' Compensation Board of British Columbia (1989), 38 B.C. L.R. (2d) 307 (B.C.C.A.) at 311; Koehlerv. Warkworth Institution (1991), 45 F.T.R. 87 (F.C.T.D.)).

[42]            In addition, the Applicant says that special costs may be ordered for "...reprehensible conduct giving rise to the litigation, particularly where the fruits of the litigation do not provide an appropriate compensation in relation to the reprehensible conduct." (Sun Life Assurance Company of Canada v. Ritchie (BCCA) 2000 BCCA 231 at para 54 [leave to appeal refused: [2000] S.C.C.A.247]).

Respondent

The Issues

[43]            The Respondent submits that the real points in issue on this review are as follows:

(a)             Whether the Court should hear this application,

(i)                     irrespective of its mootness:

(ii)                   in the absence of a meaningful factual context in which to assess the constitutionality of the legislation at issue; and

(iii)                  in the face of proposed legislation that will repeal the legislation at issue in this proceeding.

(b)            Whether the mere existence of sections 4(b) to 4(f) of the Transfer of Offenders Regulations SOR 79-171 (the "Regulations") contravenes section 6 of the Charter;

(c)             In the event that the Court answers point (b) in the affirmative, whether such contravention is justified pursuant to section 1 of the Charter;

(d)            Whether section 7 of the Charter is invoked in the circumstances of this case;

(e)             In the event that the Court answers point (d) in the affirmative, whether the Applicant was denied fundamental justice in contravention of section 7; and

(f)             In the event that the court answers point (e) in the affirmative, whether the denial was justified pursuant to section 1 of the Charter.

Mootness

[44]            The Supreme Court of Canada, in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, stated the principles relating to mootness and the process to be followed when a court considers such an application. Essentially, if there is no live controversy, no adversarial relationship between the parties and no issue capable of judicial resolution, the Court may exercise its inherent jurisdiction and decline to hear the matter on the basis that it is moot. It is true that the Court retains a discretion to hear matters irrespective of their mootness. However, in exercising that discretion the Court is compelled to consider the factors of judicial economy, the lack of an adversarial relationship and whether such a review would be a departure from the traditional adjudicative role of the Court. In this case, all of these factors weigh against the Court permitting this matter to continue. As the Supreme Court of Canada stated at p. 353 of Borowski:

15.            The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if subsequent to the initiation of the action or proceedings, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

16.            The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

[45]            The Respondent's position is that the decision of March 1, 2000 allowing the Applicant to return to Canada renders this matter moot. The basis for judicial review has disappeared. There is no decision or other matter that is capable of being reviewed. An adversarial relationship no longer exists and the relief sought will have no practical effect upon the Applicant as there is no ongoing issue capable of judicial resolution. The Applicant has obtained his relief because he is back in Canada.

[46]            Further, the Respondent says there is nothing that would warrant the court exercising its discretion to hear this matter irrespective of its mootness and in the absence of a decision that could be affected by a judicial determination. The Respondent submits that the lack of an adversarial relationship, the expenditure of resources, and the potential intrusion into the role of the legislature, are not outweighed by any issue of public interest presented by the Applicant.

[47]            This is not, says the Respondent, an issue capable of repetition yet evasive of review, especially in light of pending legislation that will replace the legislation at issue in this matter. Where Parliament has evinced an intention to act in such a manner, this Court should refrain from intruding into the legislator's role.

Charter

[48]            The Court is being asked to address the constitutionality of the Regulations in the absence of any meaningful factual context. In essence, the Court is being asked to determine whether the Regulations violate the Charter, and possibly whether the Regulations impose a reasonable limit, when in fact the Regulations have not imposed any limit on any Charter right because they have not prevented the Applicant's return to Canada. The legislation has not affected the Applicant's Mobility Rights because the Applicant has been allowed to return. The legislation must be reasonable if it has not in any manner imposed a limit. As was stated in MacKay v. Manitoba (1989), 61 D.L.R. (4th) 385 at p. 388, by Cory J.:

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather it is essential to a proper consideration of the Charter issues... .

[49]            The Respondent submits that the Court ought to decline to hear this matter.

New Legislation

[50]            At the time this application was heard, legislation was pending before Parliament to replace the Regulations. Since then, Bill C-15: International Transfer of Offenders Act received Royal Assent on May 13, 2004. Clause 42 of the new Act repeals the previous Transfer of Offenders Act, R.S.C., 1985, c. T-15 and any regulations under it. To utilize the Court's resources to assess the constitutionality of legislation that Parliament has repealed serves little purpose. The Court should decline to engage in such an exercise.

[51]            The Regulations did not violate s. 6 or s. 7 of the Charter. Alternatively, they were a justifiable limit under s. 1.

Section 6 Infringement

[52]            Consideration of the Regulations by the Respondent, in arriving at a decision respecting transfers under the Act and associated treaties, did not infringe upon or violate the Applicant's rights under s. 6 of the Charter. The existence of the Regulations did not, in fact, prevent the Applicant's return to Canada and did not affect his Mobility Rights under the Charter.

[53]            The Respondent says that the Regulations did not create or restrict any right of re-entry to Canada. Rather, they addressed the privilege afforded offenders of being able to serve their sentence in their country of origin. The Regulations were merely part of a mechanism for the transfer of offenders pursuant to international treaties. Those treaties establish the parameters of any transfer. An offender has no right to be transferred if the governing treaty conditions are not met.

[54]            The process for the transfer of offenders is international in scope with 10 bilateral treaties and 3 multilateral conventions in effect involving over 60 sovereign entities. The transferring countries do have a say in the process. The treaties confer upon participating countries the discretion to refuse transfers in certain circumstances. There is no automatic right to transfer. Any right to a transfer is curtailed by the terms of the treaties.

[55]            The power to refuse a transfer did not arise from the Regulations. That power initially resides in the hands of the sending country whether or not a treaty exists. The power is then subject to the terms of any treaty that exists between the sending and receiving countries and, only then, to the provisions of s. 6(1) of the Act which require the Respondent to advise as to whether he or she approves or disapproves of the transfer.

[56]            The Regulations, in turn, did not dictate or compel a refusal but merely provided clarity in the process of exercising ministerial discretion. Both the Act and the Regulations provided for the orderly process of transfer. Neither infringed any Charter rights.

Section 1

[57]            In the alternative, the Respondent submits that the Regulations were a reasonable limit prescribed by law pursuant to s. 1 of the Charter.

[58]            In R. v. Oakes, [1986] 1 S.C.R. 103, the Supreme Court of Canada prescribed the test for meeting the requirements of s. 1 of the Charter. First, an analysis of the objectives served by the limits imposed must be undertaken. These objectives must be sufficiently important to justify overriding the Charter right in question. Essentially, they must be pressing and substantial. The second part of the test requires an analysis of the means employed to obtain the objectives. The means employed: must be rationally connected to the objectives; they must impair the right as minimally as is necessary to achieve the objectives; and there must be a proportionality between the deleterious effects of the means and the objectives, as well as between the actual deleterious and salutary effects of the means (Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835)

Objectives

[59]            Canada has an overriding interest in the welfare of Canadian citizens and the future conduct of those citizens.

[60]            The Act came into force in 1978. Its purpose was to implement treaties relating to the transfer of offenders between countries. The purposes of the treaties are humanitarian. Essentially, both the treaties and the Act assisted in the rehabilitation of offenders by allowing them to reintegrate in a familiar culture and by removing the aspect of additional punishment associated with serving a sentence in a different culture. The best interests of the offenders and society as a whole were therefore at the core of this legislative scheme.

[61]            The terms of some of the treaties, subject to the Act, specifically require that the best interests of the offenders be taken into account. However, the terms of those treaties were not incorporated into the Act by reference.

[62]            To ensure that the best interests of offenders are always taken into account, and to reconcile the Act with the Charter, Parliament enacted the Regulations.

[63]            Following the proclamation of the Charter, the Statute Law (Canadian Charter of Rights and Freedoms) Amendment Act, S.C. 1985, c. 26 was passed for the purpose of bringing certain legislation into compliance with the Charter. The necessity of the Regulations was the subject of discussion in the Commons Debates. In the case of the Act, Parliament deemed it necessary to specifically address the right, conferred by s. 6 of the Charter, of a Canadian citizen to be repatriated within reasonable limits. The Statute Law Amendment Act therefore made provision for the making of regulations pursuant to the Act. Section 24 of the Act provides that regulation making authority.

[64]            The Regulatory Impact Analysis Statement sets forth the purpose of the Regulations:

The Transfer of Offenders Act enables Canada to negotiate multilateral and bilateral treaties with other countries to allow persons convicted of offences in foreign countries to serve their sentences in their home country. The Act, as it currently stands, makes no reference to criteria for refusing or granting a transfer to a Canadian sentenced abroad, but merely gives the Solicitor General the power to authorize such a transfer.

Section 6(1) of the Charter grants every citizen "the right to enter, remain in and leave Canada", subject only to such reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society", as provided in Section 1. This new regulation will reflect the spirit of the Act and the Charter while enabling the Solicitor General to exercise his authority within reasonable and well-defined statutory parameters.

[65]            The Regulations specifically addressed the prime objectives of the treaties and the Act, being humanitarianism and rehabilitation through reintegration. The Regulations ensured that the minister responsible considered the best interests of the offender by providing criteria that directly related to the objectives. The Regulations constituted reasonable limits upon the right conferred by s. 6 of the Charter.

[66]            The Respondent submits that the objectives of the Regulations were so pressing and substantial to Canadian society that any resulting limit on a Charter right would be proportional.

Rational Connection

[67]            The Respondent submits that the criteria set forth in s. 4(b) - (f) of the Regulations directly related to the objectives. The criteria were designed to allow the best interests of offenders to be taken into account when making a decision respecting a transfer. The Respondent notes the following:

Paragraph 4(b): Serious Crimes - This consideration addresses situations that involve a disparity in sentences imposed between the sending and receiving country, such as when a lenient sentence is imposed outside the country for a crime considered very serious in Canada. By allowing the transfer the offender will serve a lesser sentence than those convicted in Canada for the same offence. This could well have a negative impact on rehabilitation. Further, if there was such an outpouring of public sentiment against the individual, the offender and his family could be subject to such pressures that would hinder any prospect of rehabilitation.

Paragraph 4(c): Threat to national security - Justice and rehabilitation are obviously not served by allowing the offender to return to a country where this is a concern.

Paragraph 4(d): Organized crime - Transferring an individual to a situation that promotes rather than curtails that illegal activity does not serve to promote rehabilitation.

Paragraph 4(e): Abandoned country - If the offender lacks any ties to the country of origin then the objective of rehabilitation is not further advanced.

Paragraph 4(f): Previous transferee - Where an offender has again been involved in a criminal activity abroad the objective of rehabilitation through previous transfers back has obviously not been achieved. To transfer once again would not further serve that purpose.

Minimal Impairment

[68]            The Regulations provided criteria that ensured that the offender's best interests were taken into account.

[69]            A more exhaustive list of considerations would have left the Respondent without any discretion. Such a list would have been too restrictive, hampered treaty negotiations, and reduced flexibility in the decision making process.

[70]            A more general list of considerations would have lacked clarity and permitted too wide a discretion. This option would have reflected the same weakness inherent in a process devoid of regulations. Assuming that the individual offender is entitled to reasons for a decision, either alternative would have been subject to claims of arbitrariness and denial of fundamental justice.

[71]            A reference to specific provisions of treaties would have required an incorporation of the terms of the treaties into the legislation by reference and would have left no discretionary power or clearly articulated view of the objectives. Further, not every treaty includes a reference to the best interests of the offender.

[72]            The Respondent submits that the option that least impairs the right and falls within the reasonable alternatives was chosen and embodied in the Regulations. There was no other alternative that would have achieved the objectives as effectively.

[73]            Parliament considered the options, balanced the competing interests and had a reasonable basis to conclude that its choice would have the least impact on an offender's rights while still achieving the desired objectives (Irwin Toy Ltd. v. Québec (A.G.), [1989] 1 S.C.R. 927; Sauve v. Canada (Chief Electoral Officer), [2000] 2 F.C. 117 (C.A.); Sauve v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519).

Proportionality

[74]            The Respondent submits that there were no deleterious effects associated with the Regulations. The Regulations merely provided criteria that required consideration prior to the Minister making a decision. They did not compel a refusal based on that consideration.

[75]            To the extent that the Applicant argues that consideration of the criteria led to disapproval under s. 6 of the Act, the Respondent refers the Court to the statistics provided by the Applicant and the number of total refusals which they reveal. Further, in this particular case, there has been no deleterious effect upon the Applicant because he has been allowed to return to Canada.

Section 1 - Conclusion

[76]            Essentially, the Respondent's view of the Applicant's position is that the existence of the Regulations could prevent an individual from returning to Canada, thus curtailing a right so fundamental to citizenship that citizenship itself was effectively denied. But the Applicant ignores the fact that an individual subject to the Regulations already had his or her mobility restricted by the actions of a foreign state in prosecuting, convicting and incarcerating the individual for a violation of its laws. The individual in those circumstances has no right to "come and go" as he or she pleases. The only rights that such an individual has arise from the relevant treaty between Canada and the foreign state that, in some cases if the requirements of the treaty are satisfied, might have permitted a transfer back to Canada through the application of the Act and Regulations. The Applicant appears to argue that, once the foreign state agrees to have the individual serve his or her sentence in Canada, Canada has no discretion to refuse to approve the transfer. This position ignores the justifiable state purpose, outlined in the preceding paragraphs, of assisting the rehabilitation of the offender by considering his or her best interests. Such a position also ignores the subsidiary purpose of fostering international relations and respect for the rule of law as set forth in the preamble to the Charter, Cotroni, supra.

Section 7

[77]            The Respondent takes the position that s. 7 is not invoked in the circumstances of this application. The Applicant has been deprived of his liberty not by the actions of the Respondent but by the actions of a foreign state through a criminal process similar to the Canadian system of justice. Whether the Applicant was within or outside Canada during the period in question, his liberty would have been curtailed by virtue of his incarceration. The Respondent's view is that the evidence fails to demonstrate that the Applicant would have enjoyed any greater degree of liberty in Canada than he experienced in the USA.

[78]            Alternatively, the Respondent submits that the Applicant has not been denied fundamental justice in contravention of s. 7 of the Charter. The Applicant was afforded every opportunity to present his case in support of his Transfer Application. The Respondent continually acceded to the Applicant's repeated requests for extensions or deferrals in making the decision respecting the transfer. Further, the Respondent kept the Applicant informed throughout the process. The Applicant was dealt with fairly and in accordance with the principles of fundamental justice.

[79]            In the alternative, any denial of fundamental justice in these circumstances is justified under s. 1 of the Charter and the Respondent relies upon the preceding submissions made in relation to this point.

Analysis

General Remarks

[80]            The real "matter" that is the focus of this application is not, in my opinion, the March 1, 2000, decision by the Respondent approving the Applicant's return to Canada to serve out his prison sentence; it is, rather, the roughly ten years of procrastination, evasiveness, obfuscation and general bad faith by the Respondent that ensured the Applicant remained in the U.S. prison system as long as possible, and that postponed the transfer decision in favour of the Applicant until formal legal proceedings were commenced against the Respondent on February 3, 2000.

[81]            The Respondent says that, because of the Respondent's March 1, 2000, decision to approve the Applicant's transfer back to Canada, this application for judicial review is neither warranted or legally feasible. I find it a matter of concern that the Solicitor General of Canada would seek to resist judicial scrutiny of a matter that, to my mind, can only be described as a particularly sorry and discreditable episode in the history of Corrections Canada. Having examined the evidence on the record as to how the Applicant has been treated during the course of his efforts to return to Canada to serve out his sentence, I can certainly understand the instinctive impulse to ensure that this matter never sees the light of day, but I cannot condone the travesty of Canadian judicial and social values that such an avoidance would involve.

[82]            In my opinion, the difficulty with this Application lies not in the factual determination of whether the Applicant's constitutional rights have been stymied, or in whether the Respondent has committed a reviewable error; the difficulty is to identify and fashion a legally available remedy that, given the Respondent's reluctant and belated rectification of the situation, will adequately express disapproval of the Respondent's past treatment of the Applicant and, at the same time, rectify in some way whatever real harm the Applicant has suffered.

[83]            Before I come to the legal analysis of the issues raised, I would like it to be clear that I harbour no illusions about the Applicant's past as an offender who thoroughly deserves the punishment that has been meted out to him by the US and Canadian judicial systems. His own lawyer says that "he is no choirboy," and I assume that this is putting it mildly. But the Applicant's criminal conduct is not the issue before this Court. He has been tried, found guilty and sentenced for his wrongdoing. He continues to experience the deprivations of a long prison term that I have no reason to assume he does not richly deserve. There is always a temptation when dealing with such people as the Applicant appears to have been to exacerbate the punishment by suspending basic constitutional and human rights, or at least consigning them a very low priority when it comes to the deployment of finite (and they are always finite) resources. But, as I believe the Supreme Court of Canada has made abundantly clear, this is a misguided and myopic approach to dealing with convicted criminals that does not assist in the process of rehabilitation and betrays and undermines the values, rights and responsibilities we should encourage the incarcerated to espouse and join with the law abiding community in promoting.

BACKGROUND

[84]            My review of the voluminous record compiled from the Rule 317 disclosure in this case leads me to the view that Applicant's counsel is generally correct in the conclusions to be drawn from the long and frustrating interaction between the Applicant and Corrections Canada.

[85]            I see little to seriously question in the account of events as summarized by Counsel for the Applicant from the documentation that was produced as part of the Rule 317 disclosure.

[86]       Looking back over the sequence of events as evidenced in the Rule 317 documents, my own principal conclusions are as follows:

1.          The Respondent has been well aware since April 1989 that the Applicant wanted to transfer to Canada under the Transfer of Offenders Act;

2.          The Respondent has been well aware since January 1991 that such a transfer was approved by the US authorities;

3.          Notwithstanding approval by the US authorities in January 1991, the Respondent's approval for the transfer (a decision that typically takes between 3 and 5 months to make) was not given until March, 2000 and only after it was provoked by the Applicant commencing formal legal proceedings to assert his constitutional rights in February 2000;

4.          Since the time of the US approval in January, 1991, the Respondent has engaged in a course of conduct aimed at thwarting the Applicant's request for transfer approval and postponing a decision until forced to address the matter in February and March of 2000;

5.          The Applicant has been consistently led to believe by the Respondent that his request for transfer was being actively considered by the Respondent when, in truth, the Respondent has been engaged in a course of conduct aimed at keeping the Applicant in a US prison as long as possible by inventing various reasons why a decision on the transfer application should be postponed;

6.          The Respondent has deliberately ensured that the Applicant has not received the details of the case he has to meet and he has been consistently denied the opportunity to respond to any objections to his transfer;

7.          Because the Applicant has been consistently kept guessing about what has delayed the decision on his request for transfer, he has been engaged in trying to speculate about and meet perceived concerns about his transfer that have led him to request delays. These requests for delay have been readily adapted by the Respondent as an excuse to postpone the decision and to paint the Applicant as the author of the delays. But any requests for delay by the Applicant have been the result of the Respondent's not informing him of what has prompted the delay and allowing him to answer the case against him. In effect, the Applicant has been kept in the dark about what was really going on and has been manipulated to say and do things that have not been in his best interests. This is particularly sinister in light of the consistent mantra that he can "rest assured" that matters are proceeding as they should and that his concerns will be addressed in a timely manner.

Reviewability

[87]            I regard this "matter," or decision not to make a decision, as being entirely within the purview of the powers granted to this Court under ss. 18 and 18.1 of the Federal Court Act. It would indeed be a travesty of justice if the Respondent could resist making a decision for roughly ten years and then avoid review of such conduct by granting the request for transfer and offering the Applicant no real explanation as to why it has taken so long to reach a decision that typically takes a matter of months to decide.

[88]            The Respondent does not argue that this is not a reviewable matter. The Respondent says that the Court should decline review because the matter is now moot and can lead to no practical consequence. To a considerable extent the Respondent's arguments in this regard have already been answered by Prothonotary Hargrave and Mr. Justice Blanchard in their orders of May 3, 2000 and January 23, 2001 respectively. These orders were not appealed by the Respondent. However, the Respondent argues a change of circumstances since these issues were before Prothonotary Hargrave and Mr. Justice Blanchard and the Court believes it is appropriate to answer the mootness argument as it was presented at the time of the hearing.

[89]            The Respondent says that the Court should decline to hear this matter on the grounds that: it is moot; the constitutionality of the impugned legislation should not be determined in the absence of a meaningful factual context; and new legislation has repealed the legislation that is the subject matter of this review.

[90]            Bearing in mind the guidance of the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, I am of the view that there continues to be a live controversy on the facts of this case and that an adversarial relationship continues between the parties. It is an adversarial relationship that, in my opinion, is capable of judicial resolution even though the full scope of the relief sought by the Applicant may not be available in judicial review proceedings.

[91]            I cannot agree with the Respondent that the decision of March 1, 2000, allowing the Applicant back into Canada renders this matter moot. The conduct under review is not that decision; it is, rather, the conduct of the Respondent that delayed the making of that decision by some ten years and, in the process, denied the Applicant's constitutional rights.

[92]            There is very much an issue capable of repetition (at least as regards other parties similarly situated to the Applicant) that is not evasive of review.

[93]            Parliament has now enacted a new International Transfer of Offenders Act to replace the impugned legislation. But the issues raised in this application need to be considered so that the constitutional impact of any new provisions can be gauged against the way this matter was actually handled by Corrections Canada.

[94]            In short, this is a live debate. Rights and practical consequences remain in play, and as the history of the Respondent's treatment of the Applicant reveals, there is a detailed factual context within which to conduct an inquiry into the constitutional and personal issues raised by this application. In lay terms, we need to know whether legislation that allows the Minister to deny or postpone the transfer of a prisoner following approval by a sending state is a denial of constitutional rights, whether it can be justified under s. 1 of the Charter, whether the Applicant's constitutional rights were, in fact, denied in this case, and whether any legal consequences should flow from any such denial, given the fact that the Applicant has, belatedly, been allowed back into Canada.

The Applicant's Constitutional Rights under s. 6(1) of the Charter

[95]            By and large, I feel that the Applicant's arguments on this issue are sound. Section 6 Mobility Rights are special in that they apply only to citizens of Canada. The Applicant, at the material time and although incarcerated in a US prison, remained a citizen of Canada. The Citizenship Act does not allow the revocation of citizenship once obtained (unless it was acquired on the basis of fraud).

[96]            As LaForest J. pointed out in Cotroni at pp. 212-213:

An accused may return to Canada following his trial and acquittal or, if he has been convicted, after he has served his sentence. The impact of extradition on the rights of a citizen to remain in Canada appears to me to be of secondary importance. In fact, so far as Canada and the 2001 SCC 7">United States are concerned, a person convicted may, in some cases, be permitted to serve his sentence in Canada.

[97]            As a Canadian citizen, and notwithstanding his conviction in the 2001 SCC 7">United States, the Applicant retained his constitutional rights under s. 6(1) of the Charter. Those rights were subject to the practical limitations imposed by the US authorities and the need for their approval before he could return. They were also subject to whatever limitations s. 1 of the Charter may allow Parliament to impose by way of "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

[98]            At the hearing of this matter, counsel for the Respondent mounted a spirited and able argument to the effect that the Applicant's Charter mobility rights were somehow displaced by the international regime that Canada has negotiated with the US and other states to transfer prisoners and effect their rehabilitation. He argued that this international regime would be jeopardized if we were to allow the Applicant's s. 6 Mobility Rights to rule the day.

[99]            I cannot accept the Respondent's arguments that the only rights the Applicant had while he remained incarcerated in the US were whatever rights had been negotiated under the international regime. I also do not believe that the recognition of s. 6 Mobility Rights in a context such as this will hamper Canada's international efforts regarding the rehabilitation of Canadian citizens.

[100]        While he remained incarcerated in the US, the Applicant's s. 6 rights remained unforceable until such time as the US approved his transfer. But they did not cease to exist and, once a transfer was possible and the Applicant decided to exercise them in the limited fashion available to him, they came to the fore and the Minister was required to recognize them in whatever action, or inaction, he engaged in concerning the Applicant's transfer. In my opinion, the international regime for the transfer of prisoners back to Canada does not displace Mobility Rights under the Charter. The regime exists to allow those Charter rights to be exercised, albeit in the limited context of continuing incarceration.

Approving the Applicant's Transfer

[101]        Was the Respondent, given the Applicant's s. 6 Charter rights, under a legal duty to approve the Applicant's transfer back to Canada once US approval was given and once the Applicant's Canadian citizenship had been verified?

[102]        For reasons already given, I believe that this question must be answered in the affirmative, but subject to whatever powers Parliament has granted the Respondent to resist transfer that are consistent with s. 1 of the Charter.

[103]        The Respondent argues that the impugned Regulations in this case were a reasonable limit prescribed by law pursuant to s. 1 of the Charter. To support this position, the Respondent refers the Court to the well-known test prescribed by the Supreme Court of Canada in R. v. Oakes, [1988] 1 S.C.R. 103.

[104]        The impugned Regulations read as follows:

[105]        One of the problems that arises on the facts of the case at bar is that the Applicant has never been told why he was denied a transfer for so long. It would appear that the decision was delayed until March, 2000, at which time the Respondent took the position that the Applicant satisfied the criteria in the Regulations and approved the transfer.

[106]        My review of the record leads me to the conclusion that the impugned Regulations were never used to refuse the Applicant a transfer back to Canada. What happened, rather, was that the Respondent never told the Applicant why a decision had not been made and kept him in the dark concerning the objections that had been raised about his transfer.

[107]        Hence, it is difficult to characterize the role that the impugned Regulations played in this matter. On the one hand, it might be said that such a long delay was, in effect, a decision to refuse the transfer request. Such a decision could only have been made in accordance with the Regulations. Hence, we need to decide whether the Regulations can survive a constitutional challenge of the kind mounted by the Applicant.

[108]        On the other hand, we could say that the Respondent's conduct was, in effect, a refusal to apply the Regulations and make a decision. The Respondent made a decision and applied the Regulations in March 2000, at which time the Regulations did not stand in the way of the Applicant's transfer.

[109]        On the whole, I am inclined to think that the Respondent's conduct under review was a refusal to make a decision in accordance with the Regulations and the Applicant's Charter rights. Hence, I do not believe that the constitutionality of the Regulations arises on these facts.

Were the Applicant's Constitutional Rights Violated?

[110]        For the reasons given by the Applicant, I am of the view that his constitutional rights were violated. A delay of 10 years in making the decision to allow his transfer back to Canada following the January 1991 decision by the US authorities is totally unacceptable. In fact, I am convinced on the evidence before me that the Respondent's conduct during this period was aimed at keeping the Applicant out of Canada as long as possible. No real justification has been offered by the Respondent for doing this. The Respondent says that the Applicant had no Charter rights and the March, 2000 decision shows that the Applicant's rights were being attended to. But this is merely a refusal by the Respondent to address the real "matter" or decision under consideration, which is the delay and the reasons for the delay.

Section 7 and the Failure to Act Fairly

[111]        Once again, the Respondent has raised no evidence or argument that convinces me that the Applicant is not correct on these issues. The Respondent clearly failed to tell the Applicant of the case against him that led to the refusal or delay, and he was clearly given no opportunity to respond to whatever it was that caused the Respondent to leave him languishing in a US prison for 10 years.

Remedies

[112]        In view of the fact that a decision has now been made by the Respondent to approve the Applicant's transfer application and he is now back in Canada, the question of an appropriate remedy needs some consideration.

[113]        I believe that the Applicant has already brought sufficient evidence before the Court as a result of his Rule 317 application (resisted by the Respondent) to justify and satisfy the grounds for declatory relief. I am satisfied on the evidence and on the argument that the Applicant had rights under s. 6(1) of the Charter to enter Canada provided he remain incarcerated, and that those rights were denied in this case.

[114]        On the facts, however, I am not convinced that there are sufficient grounds for attacking Regulations 4(b) - (f), principally because I do not believe the Regulations were applied in this case until the decision to approve the Applicant's transfer occurred in March 2000, at which time the Regulations did not prevent the transfer. The Regulations have, in any event, now been repealed.

[115]        I believe that the Respondent refused and/or delayed the transfer process in the Applicant's case. This resulted in a denial of the Applicant's s. 6 Charter rights between January 1991 and March 2000.

[116]        I am also convinced that the Respondent's impugned conduct in this case is a clear breach of s. 7 of the Charter and the common law duty to act fairly in processing the Applicant's transfer application.

[117]        On the issue of costs, expenses and legal fees to date, I believe that the conduct of the Respondent has been sufficiently reprehensible to warrant an award on a solicitor/client basis for this Application. See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

[118]        I believe that any further costs to which the Applicant may be entitled for the whole period under consideration should await the outcome and be subject to the discretion of the judge who considers any further action undertaken by the Applicant to assert his rights and acquire just compensation for any damages he may have suffered, or may be entitled to, as a result of the Respondent's conduct towards him.

[119]        As a result of the Respondent's breach of his Charter and common law rights, the Applicant has also been subjected, at the very least, to significant emotional and psychological hardship. A remedy in damages should be considered but it is well recognized that the Court has no jurisdiction to award damages in judicial review proceedings. See Al-Mhamad v. CRTC, 2003 CarswellNat 186, 2003 F.C.A. 45. I have also considered whether, as a result of the Charter breaches in this case, the Court might consider assessing and awarding damages on the basis of s. 24 of the Charter alone. Mr. Justice Pratte, writing for the Federal Court of Appeal in Raymond Lussier v. Robert Collin, [1985] 1 F.C. 124 had the following to say on this issue at p. 2:

Even if it is presumed that section 24 of the Charter gives a right to claim damages, it certainly does not permit the rules of procedure prescribing how such claims must be made to be ignored. It follows that part of the judgment a quo which awarded the respondent damages must be quashed.

[120]        I have also considered the Applicant's request that this part of the application dealing with damages and/or other appropriate relief should be converted to an action pursuant to s. 18.4(2) of the Federal Court Act.

[121]        I would gladly have acceded to this request but I do not believe that this is possible on the facts of this case. Section 18.4(2) appears to contemplate that the Court may direct that an application for judicial review be treated and proceeded with as an action. As the Applicant requested, the Court has now completed the judicial review process of the application. Having granted the Applicant most of the relief he sought by way of judicial review, it is now not possible to convert the judicial review application to an action.

[122]        Consequently, it is the Court's view that it is not in a position to accede to the Applicant's requests as regards other relief that may be available to the Applicant as a result of the Respondent's actions.

ORDER

THIS COURT HEREBY ORDERS AND DECLARES AS FOLLOWS:

1.          As a Canadian citizen, the Applicant had a constitutional right, by virtue of s. 6(1) of the Canadian Charter of Rights and Freedoms to enter Canada provided he remain incarcerated, which right was subject only to his securing the approval of the US authorities for his transfer back to Canada, and such reasonable limits as Parliament, in accordance with s. 1 of the Charter might prescribe by law and as can be demonstrably justified in a free and democratic society;

2.          The Respondent Minister was under a legal duty to consider and apply the Applicant's s. 6 Charter rights when called upon to consider the application for transfer of a Canadian citizen pursuant to the Transfer of Offenders Act and Regulations;

3.          The Applicant's constitutional rights pursuant to s. 6 of the Charter were violated in this case by the Respondent between approximately January 1991 and March 2000, when the Respondent neglected and/or deliberately failed to consider the Applicant's request for transfer under the Transfer of Offenders Act and/or refused the Applicant's transfer request pursuant to the Transfer of Offenders Act;

4.          The Respondent's conduct towards the Applicant between approximately January 1991 and March 2000, in neglecting and/or deliberately failing to consider the Applicant's transfer request, and/or in refusing the Applicant's transfer request, was a breach of s. 7 of the Charter and a breach of the common law duty to act fairly in processing the Applicant's application for transfer;

5.          The Respondent shall forthwith complete disclosure of all materials and documentation in its possession that are relevant to the matters complained of by the Applicant, such materials and documents to be unredacted except as may be agreed to by the parties or allowed by this Court upon motion by the Respondent to be brought within 20 days of this order;

6.          The Applicant shall have the costs of this Application on a solicitor/client basis, payable forthwith.

   "James Russell"

JFC

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:T-211-00

STYLE OF CAUSE:DAVID CLARE VAN VLYMEN

- and -

       SOLICITOR GENERAL OF CANADA

PLACE OF HEARING:Vancouver, B.C.

DATE OF HEARING:April 8, 2004

REASONS FOR ORDER

& ORDER: RUSSELL, J.

DATED:August 3, 2004

APPEARANCES:

John W. ConroyFOR APPLICANT

Keitha RichardsonFOR RESPONDENT

and

Curtis Workun

SOLICITORS OF RECORD:

CONROY & COMPANYFOR APPLICANT

Barristers & Solicitors

2459 Pauline Street

Abbotsford, B.C.

V2S 3S1

Morris RosenbergFOR RESPONDENT

Deputy Attorney General of Canada

Department of Justice

900-840 Howe Street

Vancouver, B.C.

V6Z 2S9