Date: 20100921
Docket: T-983-09
Citation: 2010 FC 942
Ottawa, Ontario, September 21, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MICHAEL
DUDAS
Applicant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a Canadian citizen currently incarcerated in the United
States.
This is an application for judicial review of a decision of the Minister of
Public Safety and Emergency Preparedness (the respondent Minister), dated May
14, 2009, denying the application to transfer the applicant to Canada pursuant
to paragraph 10(2)(a) of the International Transfer of Offenders Act,
S.C. 2004, c. 21 (the ITOA) and under the terms of the Treaty Agreements between
the two countries, on the grounds that, in the Minister’s opinion, the
applicant will after the transfer, commit terrorism or an organized criminal
offence within the meaning of section 2 of the Criminal Code, R.S.
1985, c. C-46 (the Criminal Code).
[2]
The
applicant requests:
1. Relief in the nature
of certiorari to quash the decision of the respondent Minister made the
14th day of May, 2009, denying the applicant’s application for transfer of his
sentence to Canada under the
provisions of the ITOA.
2. A declaration that
the applicant, by virtue of his Canadian citizenship and subsection 6(1) of the
Canadian Charter of Rights and Freedoms, has a constitutional right to
enter Canada and that the respondent Minister has no lawful jurisdiction to
deny, refuse or postpone such entry and return to Canada, once the United
States of America, in the circumstances, has granted him permission to go home
to serve the balance of his sentence under the ITOA.
3. A declaration that
the respondent Minister is obliged and is under a legal duty to approve the
applicant’s application for transfer pursuant to the ITOA and section 6 of the Canadian
Charter of Rights and Freedoms, subject only to the applicant being a
Canadian citizen and that any other limitations in the ITOA on the section 6 Charter
mobility rights are not reasonable within the meaning of section 1 of the Charter.
4. A declaration that
the provisions of the ITOA, namely, section 10 and in particular, 10(2)(a), is
unconstitutional as being inconsistent with subsection 6(1) of the Canadian
Charter of Rights and Freedoms and, as such, are of no force or effect by
virtue of section 52 of the Charter and are not saved by section 1 of
the Charter.
5. A declaration that
the constitutional rights of the applicant, pursuant to section 6 of the Canadian
Charter of Rights and Freedoms, have been violated by the respondent
Minister and therefore that the applicant is entitled to an appropriate and
just remedy pursuant to subsection 24(1) of the Charter, including an order
for his immediate transfer back to Canada pursuant to the terms of the ITOA and
the applicable Treaty or Convention between Canada and the United States of
America.
6. An order for the
reimbursement to the applicant of all costs and expenses and legal fees
incurred in pursuing his constitutional rights.
Facts
[3]
In
September 2008, the applicant pled guilty to one count of conspiracy to import
marijuana in the United States District Court for the Western District of
Washington. He was sentenced to 60 months imprisonment plus four years
supervised release.
[4]
In
an application dated September 25, 2008, the applicant requested, pursuant to
the provisions of the ITOA, that he be transferred to Canada in order to
serve the remainder of the sentence of imprisonment that had been imposed on
him in the United
States of America. The respondent Minister is vested, under the ITOA, with
the authority to grant or deny such requests. Along with the information in the
application, the applicant submitted letters in support. Supplementary
material, in the form of an assessment prepared by the Correctional Service of Canada
(CSC), a U.S. certified case summary and a comprehensive community assessment
prepared by CSC was also presented to the Minister for his consideration.
[5]
On
February 23, 2009, the application for transfer was approved by the United
States.
[6]
On
May 14, 2009, the respondent Minister denied the transfer based on paragraph
10(2)(a) of the ITOA. The relevant part of the decision reads:
The purpose of the International
Transfer of Offenders Act is to contribute to the administration of justice
and the rehabilitation of offenders and their reintegration into the community.
In each application for transfer, it is necessary to examine the application on
its merits, taking into account the unique factors and circumstances in the
context of the statutory framework that applies.
There is evidence to suggest that Mr.
Dudas has links to organized crime where he is involved in the trafficking of
marijuana from Canada to the United
States.
Drug trafficking is deemed to have a
significant impact on the community given the possibility of an extensive
victim pool of both users and non-drug users. In this situation Mr. Dudas
organized several helicopter flights into the United States as a method of importing marijuana. In
addition, Mr. Dudas is identified as having ties to an organized crime group.
These descriptions indicate deliberate
planning of drug trafficking, actions and decisions that show that the
applicant has already taken several steps down the road toward involvement in a
criminal organization offence. Given the nature of the applicant’s acts, I
believe that he may, after the transfer, commit a criminal organization
offence.
Issues
[7]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Are the provisions
of the ITOA which give the respondent Minister the jurisdiction to deny a
Canadian citizen entry into Canada unconstitutional and as such, of no force
or effect?
3. Did the respondent
Minister act in a wholly unreasonable manner in exercising his discretion under
the ITOA or come to an unreasonable conclusion?
Applicant’s Written
Submissions
Constitutional Question
[8]
The
individual elements of the Constitution must be interpreted by reference to the
structure of the Constitution as a whole. The isolation of section 6 from the notwithstanding
clause in section 33 demonstrates that any breach of section 6 must be subject
to a very high degree of judicial scrutiny under section 1. Reasonable government
interference with individual rights in one context may not be reasonable in the
context of section 6.
[9]
This
point is strengthened by the limiting of the rights in section 6 to citizens.
Canadian citizens have a special status conferred on them by sections 3, 6 and
23 of the Charter; a status that is not enjoyed by foreigners or
permanent residents. There is a clear distinction between citizens and
non-citizens and citizenship is held only by those specified in the Citizenship
Act, R.S. 1985, c. C-29. Once citizenship exists by birth, it cannot be
lost or taken away on the basis of any personal characteristic such as bad
conduct. If Canada revoked an
individual’s citizenship leaving him stateless, this would amount to a serious
breach of international law, even if the individual was a criminal.
[10]
As
stated in Van Vlymen v. Canada (Solicitor General), 2004 FC 1054, [2005]
1 F.C.R. 617, the section 6 rights of a Canadian citizen incarcerated in the
U.S. remain unenforceable until such time as the U.S. approves his transfer, at
which point they become enforceable and the Minister is required to recognize
them. The decisions of this Court to the contrary in Kozarov v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 866, [2008]
2 F.C.R. 377 and Getkate v. Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 965, [2009] 3 F.C.R. 26, are wrongly decided because
they erred by distinguishing extradition cases as involving the state in an
active way from international transfers where the state is being passive.
[11]
In
view of the above, the applicant submits that as a Canadian citizen, he had a
constitutional right to enter Canada once the United States of America approved
his leave and he should have been given the opportunity to return to Canada at the next
available reasonable time. The provisions of the ITOA (contained in sections 8
and 10) which purport to allow the Minister to prevent him from doing so
violate the applicant’s constitutional rights under section 6 of the Charter
and are not saved by section 1. Since paragraph 10(2)(a) of the ITOA was used
to prevent the applicant from entering Canada, this particular
section is impugned as unconstitutional in this application.
Minister’s Decision
[12]
In
the alternative, the applicant submits that even if the applicant’s section 6 Charter
rights are not found to be engaged or if paragraph 10(2)(a) of the ITOA is
found to be a reasonable limit, the Minister erred in fact and law in
concluding that the applicant would, after the transfer, commit a criminal
organization offence.
[13]
Firstly,
the Minister applied the wrong legal test for which the standard of review is
correctness. Paragraph 10(2)(a) requires the Minister to be of the opinion that
the applicant will commit such offences, not simply may, as the Minister stated
in his decision.
[14]
Secondly,
neither the U.S. nor Canadian investigations into his background and the
circumstances of his offending have specifically identified the applicant as
associated or involved with any specific criminal organization. In fact, the evidence
points to the contrary and to conclude otherwise was unreasonable. Certainly,
the evidence does not support that the applicant will commit a criminal
organization offence. The evidence provided the following things:
- The applicant had no previous
criminal record;
- Upon being arrested in Canada, he waived
extradition and turned himself over to U.S. authorities
and pled guilty to the offence;
- The CSC only had a belief
that he had links to organized crime;
- CSC concluded that the
applicant should experience little difficulty securing employment on release;
- U.S.
investigators determined that he was not affiliated with a drug cartel or gang;
- The district attorney for the
Western District of Washington expressed the opinion that he did not view the
applicant as a significant future violator, but rather a person who “regrets
ever having gotten involved in this kind of thing in the first place” and one
who “would like to turn the page and get on with the rest of his life with his
wife, child, father and remaining family”.
Respondent’s Written Submissions
Constitutional Question
[15]
The
applicant’s constitutional challenge has been previously addressed and answered
by this Court in Kozarov above. In that decision, the Court determined
that sections 8 and 10 of the ITOA do not infringe upon the rights contained in
section 6 of the Charter. Section 6 rights are not absolute.
[16]
The
context in which the applicant has placed himself affects his Charter rights
and his ability to exercise them. In that regard, although he is a Canadian citizen,
he is also an offender and is in the custody of a foreign state. In those
circumstances, there has been no infringement of section 6 at the hands of the
Crown. The applicant’s section 6 rights have already been qualified by his own
actions in a foreign state and as a result, full recognition of section 6
rights cannot be had. In Getkate above, this Court has had a further
opportunity to consider this same constitutional argument and concurred with
the result in Kozarov above.
[17]
A
Canadian citizen convicted, sentenced and incarcerate abroad, despite his Charter
rights has no ability to exercise the right of re-entry into Canada without
access to the international transfer of an offender’s regime. One privilege of
the regime is to serve the sentence in Canada. However,
access to that privilege is not unrestricted. The sending state and Canada have agreed
pursuant to an international treaty, to terms that establish parameters of any
transfer. Indeed, the power to refuse a transfer 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 and only following that to the provisions of
the ITOA and the discretion of the Minister. In that context, the approval of
the sending state is not unconditional. It expects Canada to fulfill
its obligations pursuant to the agreement and satisfy itself that the
objectives of the transfer system can be achieved through the transfer. The
system is designed in that fashion because the foreign state is not in a
position to conduct community assessments and analyze whether the Canadian
correctional system can effectively rehabilitate the offender.
[18]
In
the alternative, if the Court found an infringement of section 6 of the Charter,
it would determine the extent of the infringement and then consider whether the
interference was justifiable under section 1. In that regard, the respondent
points out that the main thrust of section 6 is to prevent banishment or exile (see
United States of America v. Cotroni, [1989] 1 S.C.R. 1469). The
legislative scheme governing the international transfer of offenders does not
strike at the core of those rights. At most, it imposes a temporary
restriction. The infringement in this context is at the outer edge of the
values protected by section 6.
Minister’s Decision
[19]
The
Minister considered the factors in section 10 as required and also took into
account the material submitted by the applicant, but came to the conclusion
that approval of the transfer would not assist in achieving the objectives of
the ITOA. Irrespective of whether the circumstances of this case fall neatly
within the factor specified in paragraph 10(2)(a) of the ITOA, the fact is that
the Minister’s discretion is not circumscribed by any of the factors contained
within section 10. The Minister is perfectly entitled to base his decision to
refuse or approve a transfer request on any other relevant consideration in the
context.
[20]
In
this case, the Minister took advice and chose to refuse the request on the
basis that the applicant:
- Was responsible for
orchestrating a complex criminal activity that demonstrated a significant
degree of sophistication and planning, including the purchase of a helicopter
and the recruitment of several individuals to facilitate the transport;
- Was identified by several of
his associates, including the subject of the community assessment prepared by
CSC as the leader of the group; and
- Had committed a serious
offence which, in the Minister’s view, has a significant detrimental effect on
society.
[21]
On
those facts, it cannot be said that the Minister improperly exercised his
discretion or acted in a wholly unreasonable manner. There was a factual
foundation for the decision and the Minister was entitled to act as he did. As
a result, this Court’s intervention is neither warranted nor necessary.
Analysis and Decision
[22]
Issue
1
What is the appropriate
standard of review?
Discretionary decisions of a
Minister are to be afforded the highest degree of deference. It was held in Maple
Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, 44 N.R. 354 by Mr. Justice
McIntyre at pages 7 and 8:
Where the statutory discretion has been
exercised in good faith and, where required, in accordance with the principles
of natural justice, and where reliance has not been placed upon considerations
irrelevant or extraneous to the statutory purpose, the courts should not
interfere.
[23]
The
Supreme Court has done much to revise the approach to standard of review since
then and in particular, has eliminated the standard of patent unreasonableness
in favour a simpler approach with just two standards, correctness and reasonableness
(see Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190). Even so, it has been recently held that discretionary
decisions such as in the present case, are to be afforded the maximum degree of
deference (see Kozarov above at paragraph 14 and Getkate above at
paragraph 11). In following those decisions, the respondent Minister’s ultimate
decision is entitled to significant deference and will be reviewed on the
reasonableness standard.
[24]
With
respect to the constitutional question raised by the applicant, the applicable
standard of review is correctness.
[25]
Issue
2
Are the
provisions of the ITOA which give the respondent Minister the jurisdiction to
deny a Canadian citizen entry into Canada
unconstitutional, and as such, of no force or effect?
While the applicant raises an
interesting argument with respect to the application and scope of his section 6
Charter rights, I must be cognizant of the fact that this is not a new
argument raised before this Court. In fact, this is at least the fourth time
that this precise argument has been raised, all on very similar circumstances.
Although there has been a degree of inconsistency in the answers this Court has
given, the more recent and more numerous decisions, most notably Kozarov and
Getkate above, have answered the applicant’s constitutional question in
the negative. The principles of judicial comity require me to follow those more
recent precedents unless they are shown to be manifestly wrong or made without
regard to a statute or an authority that ought to have been followed (see Glaxo
Group Ltd. v. Canada (Minister of National Health and Welfare) (1995), 64
C.P.R. (3d) 65, 103 F.T.R. 1 (T.D.) per Richard J).
[26]
The
applicant has not convinced me that the decisions in Kozarov and Getkate
above, are manifestly wrong, nor has the applicant provided me with convincing
reasons not to follow them. I do not read Kozarov above, as being based
on the distinction between the active state in extradition cases versus the passive
state in transfers, which Mr. Justice Harrington referred to at paragraph 30.
Later in Getkate above, Mr. Justice Kelen analyzed the constitutional
question thoroughly and came to the same conclusion as Mr. Justice Harrington
without any reliance on that distinction.
[27]
In
Getkate above, Mr. Justice Kelen engaged in a thorough analysis of the
constitutional argument raised by the applicant and canvassed the decisions of Mr.
Justice Russell in Van Vlymen above, and Mr. Justice Harrington in Kozarov
above. Ultimately, Mr. Justice Kelen concluded:
27 I agree with Justice Harrington's
conclusion that in the context of a transfer under the Act, an applicant's
Charter mobility rights under section 6 are not engaged and, if they were, the
provisions contained in the Act are a reasonable limitation on those rights
given that the applicant has already had his mobility restricted due to his own
illegal activity.
(Emphasis added)
[28]
Mr.
Justice Kelen thus indicated two possible, constitutionally valid explanations
for the impugned scheme within the ITOA. First, he held that those provisions
do not infringe citizens’ section 6 rights. Secondly, he found that even if
they did, the scheme within the ITOA is saved by section 1. While I am more
inclined to believe that the latter is the correct explanation, I am satisfied
that the impugned provisions are constitutional.
[29]
There
is further support for this position in the applicant’s own submissions, as the
applicant now does not contest the vires of section 8 of the ITOA. In
oral argument before me, the applicant conceded the vires of the
provision, yet subsection 8(1) is precisely the provision which expressly gives
Canada the right to refuse transferee citizens whose transfer back to Canada has been
approved by the sending state.
[30]
Issue
3
Did the respondent Minister
act in a wholly unreasonable manner in exercising his discretion under the ITOA
or come to an unreasonable conclusion?
I am mindful that transfers
under the ITOA are a discretionary privilege for offenders incarcerated abroad.
There is no right to a transfer under the ITOA at any time. The Minister may
lawfully come to his or her own conclusion. The fact that a Minister has come
to a given conclusion before, does not prevent that same Minister or a
different Minister from lawfully changing his or her mind if faced with the
same set of facts at a later date.
[31]
The
applicant challenges the Minister’s statements to the effect that the applicant
has links to organized crime as a factual finding made without regard to the
evidence and says that in fact the evidence points to the contrary.
[32]
In
this regard, the applicant does not take issue with the facts in the U.S. case summary
indicating that the applicant had purchased a helicopter with cash over a year
before the date that his accomplices were arrested. The pilot of the helicopter
told U.S. drug enforcement agents that he was paid by the applicant a fee of
$150 per pound of marijuana transported and that he had previously flown to the
secluded location three times to deliver drugs. Another of the accomplices
provided a statement that he was paid a flat fee by the applicant for his
assistance on the ground during such operations.
[33]
In
the memorandum before the Minister from the CSC, it was stated that:
… given the nature of the offence it is
the belief of CSC’s Regional Security Intelligence that Mr. Dudas has links to
organized crime where he is involved in the trafficking of marijuana from Canada to the United States.
[34]
In
an interview conducted for the community assessment, a friend of the applicant
thought identifying him as the leader of the operation was an overstatement and
thought of it more as friends asking the help of other friends. Many letters
were also before the Minister from individuals accepting the applicant’s
mistake and conveying their belief that he would not get involved in that
behaviour again.
[35]
Because
of my final conclusion, I need not make a decision on this issue.
[36]
Next,
the applicant challenges the last sentence of the Minister’s decision:
Given the nature of the applicant’s acts,
I believe that he may, after the transfer, commit a criminal organization
offence.
The applicant points out that the Minister
used the word may instead of will as is used in the relevant legislated factor
in paragraph 10(2)(a) of the ITOA.
[37]
Again,
because of my final conclusion, I need not make a decision on this issue.
[38]
It
may at times be quite desirable for duly elected members of the government to
have the discretion to make such decisions as they see fit. It may also be
desirable that such discretionary authority not be confined and thus allow
decision-makers to take into account any and all considerations they deem
relevant, both explicit and tacit. Indeed, such freedom may best facilitate
honest and effective governance. The courts, however, cannot condone nor accept
completely unstructured discretion. In circumstances where a decision has such
a dramatic effect on the citizen in question, the law requires a complete
explanation, however short, for the decision. The Supreme Court of Canada has
long held that no public official is above the law (see Roncarelli v.
Duplessis, [1959] S.C.R. 121).
[39]
Recently
in Grant v. Minister of Public Safety and Emergency Preparedness
(March 4, 2010), T-1414-09, Mr. Justice Barnes explicitly dealt with the
requirement on the Minister to provide a complete decision.
1. Ms. Lawrence made the point,
and I accept it, that the Minister’s decision under s. 10 of the International
Transfer of Offenders Act, S.C. 2004, c. 21 (Act) attracts considerable
deference on judicial review. At the same time the Minister has a statutory
duty under ss. 11(2) to provide reasons for his refusal to consent to a
transfer. Given the discretionary nature of the Minister’s authority and the
importance of such a decision to an offender incarcerated in a foreign jail,
the Minister’s reasons must be complete, intelligible and sufficient to allow
the offender to know that all of the factors set out in s. 10 of the Act were
fairly considered.
2. The Minister is under no duty
to mention every piece of evidence considered. But in a case such as this one
where the Minister decides not to follow the advice received, he has a duty to
explain why and to clearly identify where his assessment differs from that of
his advisors. I accept Ms. Lawrence’s argument that the Minister is under no
obligation to adopt the advice of his officials or to weigh the available
evidence in any particular way. But the stronger the case in favour of relief
the more onerous the responsibility to justify a contrary view. A decision
which fails to meet this minimal standard is unreasonable and must be set
aside.
[40]
In
the case at bar, the Minister’s decision seems to rely solely on his statements
in the final paragraph which correspond to the factor listed at paragraph
10(2)(a) of the ITOA:
These descriptions indicate deliberate
planning of drug trafficking, actions and decisions that show that the
applicant has already taken several steps down the road towards involvement in
a criminal organization offence. Given the nature of the applicant’s acts, I
believe that he may, after the transfer, commit a criminal organization
offence.
[41]
No
other explanation is given for the Minister’s refusal. The reader is reasonably
lead to believe that the factor in paragraph 10(2)(a) was the only reason for
the refusal. If this was indeed the case, the Minister has effectively turned
that factor into the test he set out for himself and as discussed above, would
have erred in law by applying the test incorrectly.
[42]
The
respondent, however, insists in his written argument and in oral submissions,
that the Minister “took into account all relevant considerations and came to
the conclusion that approval of the transfer request would not assist in
achieving the objectives of the international transfer of offenders system”,
yet no such statement appears in the Minister’s decision.
[43]
If
this was the case, it would have been incumbent on the Minister to state that
this was the ultimate test he set out for himself. He would also need to have
expressed which purpose or purposes were most crucially relied on in coming to
his ultimate conclusion.
[44]
By
reason of these deficiencies in the Minister’s decision, I would allow the
judicial review. The Minister’s decision is set aside and the matter is
referred back to the Minister for redetermination within 45 days of the date of
this decision.
[45]
The
applicant shall have his costs of the application.
JUDGMENT
[46]
IT
IS ORDERED that:
1. The application for
judicial review is allowed, the decision of the Minister is set aside and the
matter is referred back to the Minister for redetermination within 45 days of
the date of this order.
2. The applicant shall
have his costs of the application.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
|
6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada.
|
6.(1)
Tout citoyen canadien a le droit de demeurer au Canada, d'y entrer ou d'en
sortir.
|
International
Transfer of Offenders Act,
S.C. 2004, c. 21
|
3. The purpose of this 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.
. . .
8.(1) The
consent of the three parties to a transfer — the offender, the foreign entity
and Canada — is required.
(2) A foreign
offender — and, subject to the laws of the foreign entity, a Canadian
offender — may withdraw their consent at any time before the transfer takes
place.
(3) The
Minister or the relevant provincial authority, as the case may be, shall
inform a foreign offender, and the Minister shall take all reasonable steps
to inform a Canadian offender, of the substance of any treaty — or
administrative arrangement entered into under section 31 or 32 — that applies
to them.
(4) The
Minister shall, in writing, inform a Canadian offender as to how their
foreign sentence is to be served in Canada and shall deliver to a foreign
offender the information provided to the Minister by the foreign entity as to
how their Canadian sentence is to be served.
(5) In respect
of the following persons, consent is given by whoever is authorized to
consent in accordance with the laws of the province where the person is
detained, is released on conditions or is to be transferred:
(a) a child or
young person within the meaning of the Youth Criminal Justice Act;
(b) a person
who is not able to consent and in respect of whom a verdict of not criminally
responsible on account of mental disorder or of unfit to stand trial has been
rendered; and
(c) an
offender who is not able to consent.
. . .
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.
(3) In
determining whether to consent to the transfer of a Canadian offender who is
a young person within the meaning of the Youth Criminal Justice Act, the
Minister and the relevant provincial authority shall consider the best
interests of the young person.
(4) In
determining whether to consent to the transfer of a Canadian offender who is
a child within the meaning of the Youth Criminal Justice Act, the primary
consideration of the Minister and the relevant provincial authority is to be
the best interests of the child.
|
3. La
présente loi a pour objet de faciliter l'administration de la justice et la
réadaptation et la réinsertion sociale des délinquants en permettant à
ceux-ci de purger leur peine dans le pays dont ils sont citoyens ou
nationaux.
. .
.
8.(1)
Le transfèrement nécessite le consentement des trois parties en cause, soit
le délinquant, l'entité étrangère et le Canada.
(2)
Le délinquant étranger et, sous réserve du droit de l'entité étrangère, le
délinquant canadien peuvent retirer leur consentement tant que le transfèrement
n'a pas eu lieu.
(3)
Le ministre ou l'autorité provinciale compétente, selon le cas, informe le
délinquant étranger de la teneur de tout traité applicable ou de toute
entente administrative applicable conclue en vertu des articles 31 ou 32; le
ministre prend les mesures voulues pour en informer le délinquant canadien.
(4)
Le ministre informe le délinquant canadien par écrit des conditions
d'exécution de sa peine au Canada et transmet au délinquant étranger les
renseignements que lui a remis l'entité étrangère sur les conditions
d'exécution de sa peine.
(5)
À l'égard de telle des personnes ci-après, le consentement est donné par
quiconque y est autorisé en vertu du droit de la province où la personne est
détenue, est libérée sous condition ou doit être transférée :
a) l'enfant ou
l'adolescent au sens de la Loi sur le système de justice pénale pour les
adolescents;
b) la personne
déclarée non responsable criminellement pour cause de troubles mentaux ou
inapte à subir son procès, qui est incapable de donner son consentement;
c) le
délinquant incapable de donner son consentement.
. . .
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).
(3)
Dans le cas du délinquant canadien qui est un adolescent au sens de la Loi
sur le système de justice pénale pour les adolescents, le ministre et
l'autorité provinciale compétente tiennent compte de son intérêt pour décider
s'ils consentent au transfèrement.
(4)
Dans le cas du délinquant canadien qui est un enfant au sens de la Loi sur le
système de justice pénale pour les adolescents, son intérêt est la
considération primordiale sur laquelle le ministre et l'autorité provinciale
compétente se fondent pour décider s'ils consentent au transfèrement.
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