Date:
20121220
Docket:
T-1414-12
Citation: 2012
FC 1500
Ottawa, Ontario, December 20, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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YVES LEBON
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a Canadian citizen who is currently incarcerated in a low-security
correctional institution in Pennsylvania in the United States and wishes to
serve the remainder of his sentence in a correctional facility in Canada. This is the second time the Court is asked to review the legality of a decision by
the Minister of Public Safety and Emergency Preparedness [Minister] refusing
his request for a transfer.
[2]
In
August 2007, the applicant entered the United States near Champlain, New York by car. A few days later, he was stopped by an Illinois state trooper for a minor
traffic violation, but it turned out that there were 119 kilograms of cocaine
in the vehicle. The applicant pled guilty to charges of possession with intent
to distribute cocaine and improper entry into the United States. He was
sentenced in July 2008 to 120 months of imprisonment, to be followed by 5 years
of supervised release.
[3]
In
November 2008, the applicant requested to be transferred to a Canadian
correctional facility pursuant to section 7 of the International Transfer of
Offenders Act, SC 2004, c 21 [Act]. As set out in section 3, the purpose of
the Act is “to contribute to the administration of justice and the rehabilitation
of offenders and their reintegration into the community by enabling offenders
to serve their sentences in the country of which they are citizens or
nationals”. The offender, the foreign state and the Minister are each required
to consent to any transfer (subsection 8(1)). In March 2009, the American
authorities approved his request.
[4]
In
the exercise of the discretion conferred to the Minister, the factors
enumerated in subsections 10(1) and (2) must be considered:
10.
(1) In determining whether to consent to the transfer of a Canadian offender,
the Minister shall consider the following factors:
(a)
whether the offender’s return to Canada would constitute a threat to the
security of Canada;
(b)
whether the offender left or remained outside Canada with the intention of
abandoning Canada as their place of permanent residence;
(c)
whether the offender has social or family ties in Canada; and
(d)
whether the foreign entity or its prison system presents a serious threat to
the offender's security or human rights.
(2) In
determining whether to consent to the transfer of a Canadian or foreign
offender, the Minister shall consider the following factors:
(a)
whether, in the Minister’s opinion, the offender will, after the transfer,
commit a terrorism offence or criminal organization offence within the
meaning of section 2 of the Criminal Code; and
(b)
whether the offender was previously transferred under this Act or the Transfer
of Offenders Act, chapter T-15 of the Revised Statutes of Canada, 1985.
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10.
(1) Le ministre tient compte des facteurs ci-après pour décider s’il consent
au transfèrement du délinquant canadien :
a)
le retour au Canada du délinquant peut constituer une menace pour la sécurité
du Canada;
b)
le délinquant a quitté le Canada ou est demeuré à l'étranger avec l'intention
de ne plus considérer le Canada comme le lieu de sa résidence permanente;
c)
le délinquant a des liens sociaux ou familiaux au Canada;
d)
l'entité étrangère ou son système carcéral constitue une menace sérieuse pour
la sécurité du délinquant ou ses droits de la personne.
(2)
Il tient compte des facteurs ci-après pour décider s’il consent au
transfèrement du délinquant canadien ou étranger :
a)
à son avis, le délinquant commettra, après son transfèrement, une infraction
de terrorisme ou une infraction d'organisation criminelle, au sens de
l'article 2 du Code criminel;
b)
le délinquant a déjà été transféré en vertu de la présente loi ou de la Loi
sur le transfèrement des délinquants, chapitre T-15 des Lois révisées du
Canada (1985).
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[5]
In
August 2010, contrary to the conclusion of an absence of risk and the positive
recommendation made by the Correctional Service of Canada [CSC], the Minister
refused to consent to the transfer, essentially because, in his personal opinion,
the applicant was likely to commit a “criminal organization offence”
considering the absence of cooperation with the police and the nature of the
offence:
The Act requires that I consider whether, in my
opinion, the offender will, after the transfer, commit a criminal organization
offence within the meaning of section 2 of the Criminal Code. In
considering this factor, I note that the nature of the criminal activity
suggests that other accomplices were involved who were not apprehended and is
indicative of a serious criminal organization activity. I also note that the
applicant did not provide a statement to the police after his arrest and it
appears from the file that the applicant did not cooperate with the police in
identifying other participants in the crime. Furthermore, the offence involved
a large quantity of cocaine, which is destructive to society. The applicant
was involved in the commission of a serious offence involving a significant
quantity of drugs that, if successfully committed, would likely result in the
receipt of a material or financial benefit by the group he assisted.
[My
emphasis]
[6]
In
view of the foregoing, despite the fact that there were many positive factors
in terms of admission of guilt and rehabilitation, including strong family ties
and a very supportive network in Canada, the Minister did not believe that a
transfer “would achieve the purposes of the Act”, and accordingly, refused the
request, leading to the first judicial review. In August 2011, Justice Shore dismissed the application (2011 FC 1018), and in April 2012, the Federal
Court of Appeal allowed the appeal of this decision (2012 FCA 132) [LeBon
FCA].
[7]
The
issue before both the Federal Court and the Federal Court of Appeal was whether
the refusal of the transfer fell “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”, considering
that this requires of the courts “not submission but a respectful attention to
the reasons offered or which could be offered in support of a decision”: Dunsmuir
v New Brunswick, 2008 SCC 9 at paras 47-48 [Dunsmuir].
Interestingly, the Federal Court of Appeal’s judgment postdates Dunsmuir
as well as the clarification made by the Supreme Court of Canada in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paras 14-16, as to the nature of review on the reasonableness
standard.
[8]
The
Federal Court of Appeal acknowledged that transfers under the Act are a
privilege for Canadian offenders and that the Minister was not bound to follow
the advice of the CSC (LeBon FCA, at para 19). However, because the
Minister’s decision was not “justified, transparent and intelligible”, it was
unreasonable and was set aside by the Federal Court of Appeal: “[w]here, as in
the present case, there are factors that support a transfer, the Minister must
demonstrate some assessment of the competing factors so as to explain why he
refused to consent to a transfer.” Otherwise, the Minister’s decision is
“neither transparent nor intelligible”, nor does it comply with the statutory
requirement to provide reasons imposed to the Minister by subsection 11(2) of
the Act (LeBon FCA, at para 25).
[9]
In
particular, the Federal Court of Appeal found that the Minister’s decision was
unreasonable when “read fairly in light of the evidentiary record”, and this,
notwithstanding the very strong view personally held by the Minister that “the
likelihood that [the applicant] would commit an act of organized crime outweighed
the positive effect of [the applicant]’s supportive family ties so that the
transfer would not achieve the purposes of the Act” (my emphasis) (LeBon FCA,
at para 20). As noted by the Federal Court of Appeal, the opinion of the CSC
was “unequivocal” that it did not believe that the applicant “would, after the
transfer, commit an act of organized crime”, nor was he “likely to commit any
indictable crime” (LeBon FCA, at para 23).
[10]
The
Federal Court of Appeal remarked that during oral argument, counsel for the
Attorney General of Canada “could not point to any cogent evidence in the
record that could reasonably undermine or contradict the opinions of the CSC” (LeBon
FCA, at para 23). I pause to mention that at best, the opinion of the
Minister was speculative. Section 10 of the Act calls for an objective
assessment by the Minister. In other words, his conclusion of risk must be
based on the evidence on record and must also be rationally measured against
positive factors indicated by the evidence.
[11]
Accordingly,
the Minister must engage in a true balancing exercise, which he failed to do in
this case. Indeed, the Federal Court of Appeal considered that two fundamental
questions had been left unanswered in the first assessment made by the
Minister:
a. On
what basis did the Minister depart from the CSC’s advice?
b. How
did the Minister assess the relevant factors so as to conclude that the factors
which did not favour Mr. LeBon’s return outweighed those which favoured his
return?
[12]
Thus,
in setting the Minister’s decision aside and remitting the matter back for
redetermination, the Federal Court of Appeal specifically directed the Minister
“to decide [the applicant’s] transfer request in accordance with the
Court’s reasons within 60 days” (my emphasis). The Minister chose not to appeal
the judgment of the Federal Court of Appeal to the Supreme Court of Canada, so
it became final. The Minister rendered his redetermination decision on June 22,
2012. The result was the same, leading to the present judicial review.
[13]
Having
read the new decision as a whole in light of the facts and the law, including
the additional evidence adduced by the applicant, it is apparent that the
Minister only paid lip service to the reasons and directions given by the
Federal Court of Appeal. The Minister basically reasserted his previous
reasoning to support his opinion that the applicant was likely to commit an
organized crime offence after his transfer and that the transfer would be
contrary to the objectives of the Act, particularly the administration of justice.
I have examined the Minister’s first and second decisions in this file very
closely. I agree with the applicant that although the second decision is
longer, it is essentially a rewording of the Minister’s first decision.
[14]
In
his reconsideration of the applicant’s request, despite extensive new evidence
favouring rehabilitation and an absence of risk, including updated assessments
by the CSC, the Royal Canadian Mounted Police and the Canadian Security
Intelligence Service, the Minister, again, denied the applicant’s transfer to a
Canadian correctional facility. Again, it is not possible to understand on what
rational basis the Minister disagreed with the expert opinions of the CSC and
the criminologist who provided in May 2012 an affidavit in support of the
reconsideration of the request for transfer. Moreover, there is no effort to
explain how the Minister balanced the factors mentioned in section 10 of the
Act and other relevant factors he retained against the positive factors
mentioned in the impugned decision. As a whole, I find this second decision of
the Minister unreasonable.
[15]
In
comparison with Canadian correctional facilities, no similar rehabilitation
programs are available to the applicant at his present institution and the
detention conditions are more severe in his case (notably because he is a
French-speaking Canadian citizen). A reasonably informed person would have the
clear impression that the Minister, in denying the applicant’s transfer
request, simply wanted to punish him because he was caught transporting a large
quantity of drugs and did not provide the names of his accomplices. This
illustrates an intransigency which is symptomatic of a closed mind and leads to
the conclusion that a reasonable apprehension of bias existed on the part of the
Minister.
[16]
The
Minister acknowledged the existence of a number of positive factors in the
applicant’s file that would support his transfer to Canada, including the fact
that this was his first offence, that he is married and has a son, that the
CSC’s evaluation indicated his social and family ties are very strong, that he
has had a good behaviour in prison and that he benefitted from a sentence
reduction because of his admission of responsibility. Be that as it may, the
Minister disagreed with CSC’s opinion and considered that there was an
“important risk” that he will commit a criminal organization offence within the
meaning of section 2 of the Criminal Code, RSC 1985, c C-46. The
Minister inferred from the distance travelled by the applicant and the large
quantity of drugs found in the vehicle that there were at least two other
persons involved in the “transaction” which would be for the benefit of a
criminal organization. The Minister also noted that the applicant refused to
name his accomplices in his transfer application and did not provide a
declaration to the police after his arrest.
[17]
Regarding
the first unanswered question noted by the Federal Court of Appeal, which was
on what basis the Minister departed from the CSC’s advice, I agree with the applicant
that the considerations raised by the Minister are spurious, illogical,
speculative and not evidence-based. The fact that the applicant pled guilty to
a charge of possession with intent to distribute – which can be perhaps
qualified as a “criminal organization offence” – is not sufficient in itself
for denying a transfer under the Act (Divito v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FCA 39 at para 57). Paragraph
10(2)(a) of the Act is forward looking (Del Vecchio v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 1135 at para 53 [Del
Vecchio]) and there is absolutely no objective and cogent evidence on
record that the transfer of the applicant represents a serious risk in terms of
committing a criminal organization offence.
[18]
The
inferences made by the Minister are not supported by the evidence on record.
Although transporting drugs in such a large quantity must be for the benefit of
a criminal organization, there is no evidence allowing the Minister to conclude
that the applicant was a party to a “transaction” and that he was not just
acting as a “mule”. More importantly, the Minister failed to address the
positive evidence on record that “this inmate’s prediction scores for future
criminal recidivism are low for future criminal recidivism” and that “[t]here
is no evidence that he was a significant, decision-making member of a criminal
organization as traditionally defined”, as noted by Mr. Matthew G. Yeager,
Ph.D., in his affidavit dated May 10, 2012
[19]
More
particularly, Mr. Yeager provides the following rationale which is not really
discussed by the Minister in the impugned decision:
With this conviction (in the U.S.), Mr. LeBon will not be permitted to re-enter the United States in the future, once transferred
back to Canada. His criminal conviction will make him less attractive to
members of criminal organizations, their networks and formations. Further,
based on his institutional record at Loretto Federal Correctional Institution,
there is evidence that Mr. LeBon has no intention of any further involvement in
any criminal conspiracy. Even in the U.S. Government defines Mr. LeBon as low
risk. In other words, Mr. LeBon is likely to have decided that the penal cost
of involvement in organized crime, however defined, is not worth his liberty
interest.
[20]
The
Minister also found that the transfer of the applicant would discredit the
administration of justice. I am not persuaded that the fact the applicant was
caught outside Canada in possession of a very large amount of cocaine can
reasonably justify the finding that the transfer would discredit the
administration of justice. Even if this finding were reasonable, it is not a
sufficient explanation, in itself, for refusing the transfer.
[21]
Indeed,
the Minister has previously consented to the transfer of other convicted drug
offenders, including the offenders in the following cases where the Minister’s
initial decision to deny the transfer request was set aside on judicial review:
Del Vecchio, Curtis v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 943, and Vatani v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 114. In Del Vecchio, the
applicant even had proven ties to known criminal organizations.
[22]
I
also agree with the applicant that the Minister’s reasoning regarding what he
believes to be the applicant’s lack of frankness in the transfer application is
a more longwinded version of the Minister’s first decision and falls woefully
short of being reasonable. I would add that, where the offence for which an
applicant was convicted did not involve other accomplices also serving a
sentence, it is not clear that the CSC Transfer Request Form requires an
applicant to provide names of accomplices. During questioning by the Court,
counsel for the respondent was unable to explain why it is relevant for the
consideration of a transfer application that an applicant who pleaded guilty to
an offence for which he is serving his sentence disclose the names of unknown
“accomplices”.
[23]
I
do not believe that on the guise of the “administration of justice”, the
Minister can refuse a transfer request because an applicant is not willing to
act as an informant for the police or jail authorities. In view of my
conclusion that the inferences made by the Minister are unreasonable in light
of the facts in the law, it is not necessary to decide whether the same also
violates the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982 by drawing an adverse conclusion from the silence of the
applicant.
[24]
For
the above reasons, the application for judicial review shall be allowed and the
impugned decision shall be set aside by the Court.
[25]
In
the case the application is granted, the applicant has asked the Court to make
a “directed verdict”, while the respondent has invited the Court to set aside
the impugned decision and to remit the matter back to the Minister for
redetermination in accordance with the reasons or other directions of the
Court. I agree with the applicant that the exceptional circumstances of the
case at bar require the Court to order the Minister to accept the transfer
request.
[26]
There
is no factual substratum in this case which is in dispute. The Minister made a
conclusion based on speculation that cannot be rationally inferred from the
facts. More than four years have elapsed since the request for transfer has
been made. The Minister has shown a bias and has ignored the clear evidence on
record supporting a transfer. The continued refusal of the applicant’s transfer
request has had a serious impact on him, including alienation from his family
and support network, frustration of his rehabilitation and deprivation of
superior programming in a Canadian prison.
[27]
In
the better administration of justice, the Court seems fit to order the Minister
to act in accordance with the directions of the Court within 45 days of the
judgment. More particularly, the Minister shall be directed to accept the
transfer request made by the applicant and confirm in writing to the applicant
that all reasonable steps have been taken for his prompt transfer to a
correctional facility in Canada.
[28]
In
view of the result, costs shall be in favour of the applicant. Should the
parties be unable to agree on a reasonable amount, any party may at any time make
a motion in writing to the Court to fix the amount of reasonable costs, whether
on a party-to-party basis or a solicitor-and-client basis, as the case may be, in
view of the particular circumstances of the case and all relevant factors.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
applicant’s application for judicial review is allowed;
2.
The
impugned decision is set aside and the matter is remitted to the Minister who
must act in accordance with the directions of the Court within 45 days;
3.
The
Minister is directed to accept the transfer request by the applicant and to confirm
in writing to the applicant that all reasonable steps have been taken for his
prompt transfer to a correctional facility in Canada;
4.
Costs
are in favour of the applicant. Should the parties be unable to agree on a
reasonable amount, any party may at any time make a motion in writing to the
Court to fix the amount of reasonable costs, whether on a party-to-party basis
or a solicitor-and-client basis, as the case may be, in view of the particular
circumstances of the case and all relevant factors.
“Luc Martineau”