Date: 20090930
Docket: T-1094-08
Citation: 2009 FC 983
Montréal,
Quebec, September 30, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MICHAEL DIVITO
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
After
spending ten years in prison in Canada, Michael DiVito was extradited to the United States in June
2005, where a Florida court
sentenced him to 90 months in prison. He is seeking a transfer to Canada under the International
Transfer of Offenders Act, S.C. 2004, c. 21, but the Minister of Public
Safety at the time, the Honourable Stockwell Day, denied his request for a
transfer. The Minister based his decision on the alleged fact that:
the offender has been identified as an
organized crime member, convicted for an offence involving a significant
quantity of drugs. The nature of his offence and his affiliations suggest that
the offender’s return to Canada would constitute a potential threat to the
safety of Canadians and the security of Canada.
This is the judicial review of that
decision.
FACTS
[2]
In
March 1995, Mr. DiVito was sentenced to 12 years in prison for conspiracy to
traffic in cocaine and conspiracy to import narcotics, namely, the importation
of 5,400 kilograms of cocaine by ship. Two years later, the U.S. authorities
requested Mr. DiVito’s extradition. They were accusing him of conspiracy
to possess cocaine with intent to distribute in Florida. His
go-between in Florida allegedly agreed
to purchase 300 kilograms of cocaine.
[3]
He
was “released” on parole on March 28, 2003, having served two-thirds of his
Canadian sentence, but in fact remained in prison under an extradition order. He
was extradited to the United States in June 2005. He
subsequently pleaded guilty and was sentenced to 90 months’ imprisonment.
[4]
The Act
specifies the circumstances under which Canadians serving sentences outside Canada can be transferred to serve
the remainder of their sentence in Canada.
It also allows for foreign nationals incarcerated in Canada to be transferred. The Act gives effect
to a treaty between the United States and Canada.
[5]
This
process consists of three stages: the offender must request a transfer, the United States must agree to the request and
Canada must give its consent. The
decision-maker in Canada is the Minister of Public
Safety and Emergency Preparedness, who may delegate this responsibility. In the
case at bar, the Honourable Stockwell Day made the decision himself.
[6]
Mr.
DiVito raises three issues. First, that the sections of the Act relied on by the
Minister are unconstitutional because they violate his mobility rights
guaranteed by section 6 of the Charter. Second, that the Minister misconstrued
the Act. Once it was established that Mr. DiVito is a Canadian citizen, as is the
case here, the Minister had no other choice but to consent to his return. Lastly,
that the decision violates the principles of natural justice. On this last
point, the applicant submits that the Minister’s decision was unreasonable.
CONSTITUTIONAL QUESTION
[7]
Mr. DiVito indicated the
following in his Notice:
[translation]
The applicant intends to challenge the
constitutional validity, applicability or effect of subsection 8(1) and
paragraphs10(1)(a) and 10(2)(a) of the International Transfer of
Offenders Act.
[8]
The legal
basis is as follows:
[translation]
As a Canadian citizen, the applicant has
a constitutional right, under subsection 6(1) of the Charter, to enter Canada, and the Minister of Public
Safety does not have the right to refuse his entry […]
[9]
Paragraphs 8(1)(a) and
10(2)(a) of the Act
provide as follows:
|
8. (1) The consent of the three parties to
a transfer — the offender, the foreign entity and Canada — is required.
|
8. (1) Le transfèrement nécessite
le consentement des trois parties en cause, soit le délinquant, l'entité
étrangère et le Canada.
|
|
10. (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
|
10. (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;
|
[10]
Subsection
6(1) of the Charter reads as follows:
|
6. (1) Every
citizen of Canada has a 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.
|
[11]
I would
answer the constitutional question in the negative.
[12]
As I
indicated in Kozarov v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 866, [2008] 2 F.C.R.
No. 377 at paragraphs 27 and 28, ‘‘current restrictions on the mobility’’ of
Mr. DiVito, in this case, ‘‘arise from his own actions, his own criminal
activities. A natural and foreseeable consequence of a criminal conviction …’’.
[28] However the American
authorities have put a condition on his transfer. The condition is that he
serve his sentence here. Upon his transfer he could not immediately invoke his
constitutional right as a citizen to leave Canada. His freedom would properly be restricted
in accordance with the Corrections and Conditional Release Act. I have come to the
conclusion that neither section 8 of the International
Transfer of Offenders Act which requires the consent of the offender,
the foreign entity and Canada, nor subsections 10(1) (b)
and (c) which call upon the Minister to consider
whether Mr. Kozarov has social or family ties here or whether he left or
remained outside Canada with the intention of abandoning Canada as his place of
permanent residence offends his mobility rights under the Charter.
[13]
Consequently,
I conclude that the Act does not violate Mr. DiVito’s mobility rights. On the
contrary, I find, as Justice Kelen did in Getkate v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 965, that the Act
constitutes a reasonable limit as can be demonstrably justified in a free and
democratic society (section 1 of the Charter).
[14]
Mr. DiVito
relies on Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, and on
the recent judgment of Justice Zinn in Abdelrazik v. Canada (Minister of Foreign Affairs),
2009 FC 580. These
decisions underscore the importance of citizenship and demonstrate that a
citizen has a different status than a permanent resident or temporary resident.
I fail to see the relevance of Abdelrazik: the issue in that case
involved the government’s obligation to issue an Emergency Travel Document.
[15]
Sauvé invalidated provisions of the
Canada Elections Act preventing inmates serving a sentence of more than
two years from voting in federal elections. One of the government’s arguments
was that disenfranchisement was a legitimate punishment (paragraph 45). This
argument was dismissed.
[16]
At
paragraph 47, however, Chief Justice McLachlin added: ‘‘Certain rights are
justifiably limited for penal reasons, including aspects of the rights to
liberty, security of the person, mobility, and security against search and
seizure.’’
[17]
The case
of Mr. Kozarov illustrates the limits on mobility rights. Mr. Kozarov appealed
the decision, but was released by the U.S.
authorities before the appeal could be heard. The Court of Appeal refused to
hear the case because it was moot: Kozarov v. Minister of Public Safety and
Emergency Preparedness, 2008 FCA 185. Similarly, if the U.S. authorities
pardoned Mr. DiVito tomorrow, he would have an absolute right to return to
Canada. He would even be deported to
Canada.
INTERPRETATION OF THE ACT
[18]
For the
reasons given in Kozarov, I cannot accept that the Minister’s responsibility
is limited, according to the Act, to confirming Mr. DiVito’s citizenship. The
Act gives the Minister discretionary powers and requires him to take various
factors into consideration.
STANDARD OF REVIEW
[19]
Kozarov was decided when three
standards of review existed: correctness, reasonableness, and patent
unreasonableness. Relying on Maple Lodge Farms v. Canada, [1982] 2 S.C.R.
2, I found that the applicable standard of review was patent unreasonableness.
Since then, the Supreme Court handed down its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190. In light of this, the applicable standard of review is now reasonableness
(Getkate, at paragraph 11).
[20]
Minister
Day, who personally made the decision, had before him a summary examined and
approved by the Director of the Institutional Reintegration Operations Division
indicating that Mr. DiVito had not left Canada with the intent to abandon this
country as his place of permanent residence, that he had social and family ties
here and that he did not constitute a threat to Canada’s security.
[21]
There was
also information from the RCMP suggesting that Mr. DiVito was a member of
traditional organized crime. It was noted that his father received a sentence
of 18 years’ imprisonment in Canada and was then extradited to
the United States, where he remains
incarcerated.
[22]
The report
by the U.S. authorities contained no
adverse information. In the community assessment report prepared by the Correctional
Service of Canada, the criminologist who met with Mr. DiVito’s sister concluded
that [translation] “we therefore have no reason not to recommend
Mr. DiVito’s transfer from the United States to Canada; on the contrary, we
believe that it would be extremely beneficial for both the subject and resource
person.” It would have been reasonable if the Minister had agreed to the
transfer. The question, however, is whether it was unreasonable to refuse the
transfer. In his affidavit Mr. DiVito stated:
[translation]
21. I am not, nor have I ever been, part
of any criminal organization whatsoever.
22. I have never had any links or contact
with a criminal organization or network.
[23]
The
Minister had evidence to the contrary. Some of this information is a matter of
public record: see, for example, Her Majesty the Queen v. Rumbaut, [1998]
N.B.R. (2d) (Supp.) No. 61, 1998 CanLII 9816 (NB Q.B.), the trial of Mr.
Carlos Rumbaut, who was accused of having conspired with Mr. DiVito, his
father Pierino and others to import cocaine into Canada.
[24]
One might wonder
whether Mr. DiVito, who has been incarcerated for fifteen years, including four
outside of Canada, has severed his contacts
with organized crime. Yet the Correctional Service of Canada’s Commissioner’s
Directive 568-3 entitled ‘‘Identification and Management of Criminal
Organizations’’ lists, among other objectives of the Service, “prevent[ing]
members or associates of criminal organizations from exercising influence and
power in institutions and in the community”. It is not unreasonable for the
Minister to fear that Mr. DiVito would renew these contacts once returned to a
Canadian prison.
[25]
As stated
in Dunsmuir at paragraph 47:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead, they may give rise
to a number of possible, reasonable conclusions. Tribunals have a margin of
appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[26]
While it
has been suggested that the decision was made in bad faith, I gave “a
respectful attention to the reasons offered” (Dunsmuir, at paragraph 48)
and reached the conclusion that the decision was reasonable and must not be set
aside.
ORDER
THE COURT ORDERS that:
- The matter be dismissed with costs.
- Subsection 8(1) and paragraphs 10(1)(a)
and 10(2)(a) of the International Transfer of Offenders Act are
constitutionally valid and applicable.
- A copy of these reasons and order be
placed in docket T-1093-08.
‘‘Sean Harrington’’
Certified
true translation
Sebastian
Desbarats, Translator
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