Date: 20100921
Docket: T-984-09
Citation: 2010 FC 943
Ottawa, Ontario, September
21, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
BRENT
JAMES CURTIS
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
December 2007, the applicant pled guilty in United States District Court to one
count of conspiring to possess with intent to distribute cocaine. He was
sentenced to 57 months imprisonment plus three years supervised release.
[4]
In
an application dated March 24, 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
December 10, 2008, 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 decision reads in part:
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.
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 light of the volume of drugs
involved and his association with accomplices, the offence severity is assessed
as potentially having a significant impact on society. A review of the file
information suggests that the offence may have been committed for financial
gain and that Mr. Curtis’ role was that of the ‘money man’.
The U.S. case summary also indicates that one of
his accomplices labeled him as a “transporter”. 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.
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.
[12]
None
of the factors listed in subsections 10(1) and (2) of the ITOA are factors
which, if relied upon to deny a Canadian citizen a right of return under section
6 of the Charter, are reasonable limits within the meaning of section 1.
They are all inconsistent with the ITOA and the spirit and purposes of
international prisoner transfer treaties and conventions. Potential administrative
or economic reasons for denying a transfer cannot override a Charter
right. Further, the factors in section 10 of the ITOA are so broad and undefined
they give the Minister too broad a discretion to refuse a transfer.
[13]
Moreover,
the security of Canada and its citizens is better protected by
approving all transfers, because the person becomes a known offender in the
Canadian criminal justice system and is subject to classification, placement,
assessment and ultimately parole supervision. In most cases where transfers are
refused following the completion of his sentence, the individual will be
immediately deported to Canada and allowed to enter with no such
constraints. If such a prisoner were to re-offend in Canada, he or she
would be considered a first-time offender under the Corrections and
Conditional Release Act, S.C. 1992, c. 20.
Minister’s Decision
[14]
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.
[15]
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.
[16]
Secondly,
neither 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;
- 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;
Respondent’s Written Submissions
Constitutional Question
[17]
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.
[18]
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.
[19]
Although
the applicant challenges apparently all of the factors listed in section 10 of
the ITOA, this Court should refrain from ruling on all but paragraph 10(2)(a),
because that is the only factor on which the decision was made, making it the
only one with a factual foundation for judicial analysis.
[20]
The
applicant’s position can be distilled to the following proposition. A Canadian citizen
has a right to re-enter Canada and refusing the transfer would
effectively strip him of a right of citizenship. The respondent disagrees. A Canadian
citizen convicted, sentenced and incarcerated abroad, despite his Charter
rights, has no ability to exercise the right of re-entry into Canada without
access to the international transfer of 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.
[21]
The
Court in Van Vlymen above, decided the matter largely on the basis of
the conduct of the respondent in that case delaying a decision on the transfer
for over ten years. While the Court found that the citizen offender’s section 6
Charter rights existed and had to be taken into account at the time
consent is addressed by the Minister, it specifically refrained from conducting
a section 1 analysis. Since the Court did not complete the analysis, the
subsequent rulings in Kozarov and Getkate above, did not overrule
Van Vlymen above.
[22]
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.
[23]
In
regards to a section 1 analysis, the respondent first submits that the
objectives of the ITOA are pressing and substantial and those objectives are
reflected in the factors specified within section 10. The purpose of the
treaties and the legislation is humanitarianism and to contribute to the
administration of justice and the rehabilitiation and reintegration of
offenders. The factor set forth in paragraph 10(2)(a) directly relates to the
overall objective because the objectives of protecting society and
rehabilitating the offender are not served where, in the Minister’s view, the
applicant will be able to continue similar organized criminal activity. In
regards to minimal impairment, the respondent submits that a much more
exhaustive list of factors would leave the respondent with no discretion and
would be too restrictive. In regards to proportionality, there are simply no
deleterious effects associated with the factors specified under the ITOA.
Minister’s Decision
[24]
The
Minister considered the factors under 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 objective.
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.
[25]
In
this case, the Minister took advice and chose to refuse the request on the
basis that that applicant:
- Had committed a serious
offence which, in the Minister’s view, has a significant detrimental effect on
society, and
- Played a role in that offence
that could be characterized as more than a minor player contrary to the
applicant’s suggestions.
[26]
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
[27]
Issue
1
What is the appropriate
standard of review?
As I have stated in Dudas v.
Minister of Public Safety and Emergency Preparedness, 2010 FC 942, 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.
[28]
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.
[29]
With
respect to the constitutional question raised by the applicant, the applicable
standard of review is correctness.
[30]
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?
Again, as I have stated in Dudas
above, 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).
[31]
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.
[32]
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)
[33]
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.
[34]
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.
[35]
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?
The respondent Minister, in
making his discretionary decision, appeared to rely at least in part on the factor
listed at paragraph 10(2)(a) of the ITOA which provides as follows:
…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.
[36]
Indeed,
the Minister’s decision stated:
In light of the volume of drugs involved
and his association with accomplices, the offence severity is assessed as
potentially having a significant impact on society. A review of the file
information suggests that the offence may have been committed for financial
gain and that Mr. Curtis’ role was that of the ‘money man’.
The U.S. case summary also indicates that one of
his accomplices labelled him as a “transporter”. 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.
(Emphasis added)
[37]
While
this conclusion may have been open to the Minister, given the discretionary
nature of the decision, there is little in the way of evidence to support it
and it appears a key error was made in the analysis.
[38]
From
a plain reading of this decision, the apparent reason for the Minister’s final
conclusion that the applicant may commit a criminal organization offence, was
the nature of the offence for which the applicant was arrested and the
applicant’s role in that offence. Yet, there is a key error in coming to this
conclusion. The Minister believed that the file information suggested that the
applicant was the money man.
[39]
The
certified U.S. case summary
at page 40 of the certified record appears to clarify the error. Under the
heading, Description of the Offence, it states:
On October 12, 2007, BT, BC [the
applicant] and MR met with a confidential informant (CI) in Bal Harbour, Florida, to arrange to purchase
cocaine from the CI. BT and MR negotiated with the CI to purchase 100 kilograms
(one hundred kilograms) of cocaine, at a price of $14,500 per kilogram. MR
emphasized he was the “money man,” who was in charge of the operation. MR
clarified that BT and BC were the “transporters.”
[…]
[40]
As
I stated in Haque v. Canada (Minister of Citizenship and Immigration and
Minister of Public Safety and Emergency Preparedness), 2010 FC 703, when
reviewing an administrative decision against the reasonableness standard
articulated in Dunsmuir above, even the existence of a real error,
omission or misconstruction will not discharge the burden before the applicant.
Some errors may directly impugn the very merits of a decision, while other
errors may be of little consequence. Here, it appears that the error likely
went directly to the Minister’s appreciation of the applicant’s role in the
offence, which in turn heavily influenced his ultimate conclusion.
[41]
It
is not for this Court to speculate as to what weight was given to the above
error, but after removing the error from the decision, there is little else in
the way of evidence to support the Minister’s conclusion.
[42]
Unlike
the CSC memorandum in Dudas above, the CSC’s report on the proposed
transfer of the applicant did not contain a statement that CSC’s intelligence
believed the applicant had links to organized crime. In fact, the CSC conveyed its
belief that he would not commit an act of organized crime. Nor did the
applicant have any previous convictions.
[43]
As
a result of the preceding analysis, I find that the respondent Minister’s
decision was unreasonable and ought to be reconsidered.
[44]
The
application for judicial review is therefore 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 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 decision.
2. The applicant shall
have his costs of the application.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
International
Transfer of Offenders Act,
S.C. 2004, c. 21
|
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.
|
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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