Date: 20110202
Docket: T-1298-09
Citation: 2011 FC 113
Ottawa, Ontario, February 2,
2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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RADGE MARKEVICH
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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
I. INTRODUCTION
[1]
This
is one of the five judicial reviews heard together in Vancouver arising from
decisions and reconsiderations of the Minister’s refusal to approve requests to
transfer from U.S. prisons to
Canadian prisons pursuant to the International Transfer of Offenders Act,
S.C. 2004, c. 21.
[2]
The
principal legal issues and analysis are contained in Holmes v. Canada (Minister of
Public Safety and Emergency Preparedness), 2011 FC 112, which
deals with the administrative law issues as well as Charter issues. As
the Court finds in this judicial review that the Minister’s decision is
reasonable, its findings in Holmes on the Charter issues are
equally applicable.
II. FACTUAL
BACKGROUND
[3]
Markevich
is a mid-forties Canadian sentenced to 7 years and 3 months in a U.S. prison to be
followed by a 3 year term of supervised release. He was arrested attempting to
take possession of a plastic bag containing 100,000 Ecstasy pills from a
co-accused who had been collaborating with authorities.
[4]
In
the 1st departmental assessment by Correctional Service Canada,
officials noted to the Minister that Markevich was born in the Ukraine and obtained
Canadian citizenship in 1995. He moved to New York on a
temporary work permit approximately one year before his arrest. Prior to his
arrest he travelled to Vancouver every two months to see
his parents and daughter (he was separated from his wife).
[5]
Of
critical importance is the Department’s advice that Markevich was believed to
be linked to organized crime, where he was involved in trafficking Ecstasy in
the U.S.A. He had been
a Vancouver police informant from 1990 to 1992 after which he was imprisoned in
Ecuador.
[6]
In
the portion of the departmental assessment dealing with Public Safety Risk, it
was noted that Markevich had an unverified criminal history of serving an eight-year
sentence for cocaine trafficking in Ecuador. He was believed to
have escaped from that prison. Officials noted their concern, arising from
intelligence sources, that Markevich had links to a sophisticated organized
crime syndicate, and that if the information about Ecuador was correct,
then his current offences are reflective of his offence cycle and he presents
some risk to the community. His post-release support was considered questionable,
and the likelihood of his return to a pro-social life, given his ties to a
crime syndicate, also questionable.
[7]
The
Minister’s 1st refusal decision cited his consideration of various
interests and factors said to be consistent with the Act but which went beyond
the s. 10 factors in the Act. These interests and factors and their
relationship to the statutory purpose of the Act were unspecified and
unexplained.
[8]
Despite
these unspecified interests and factors, the Minister did address factors more
clearly linked to the Act in denying the request. The Minister found that it
was not in the interests of or consistent with the goal of administration of
justice to have Markevich forego the rehabilitative purpose of the 3 years of
supervised release which would occur if he were transferred to a Canadian
prison.
[9]
The
Minister focused particularly on the limited ties to Canada (social and
familial ties) in comparison to Markevich’s links to organized crime. In that
regard, he found that it was neither acceptable in the context of the
administration of justice nor s. 10(2)(a) or s. 10 (1)(a) of the
Act to allow this transfer.
[10]
To
justify his conclusions and authority, the Minister referred again to the
unspecified factors in the Act, unspecified factors said to be consistent with
the Act and claimed to be available to the Minister as part of his residual
decision making powers.
[11]
In
the reconsideration of the 1st refusal decision, the 2nd
departmental assessment is more favourable to the Applicant. The Department’s
conclusion, apparently based on verifications from Correctional Service Canada’s
counterparts in Security and Intelligence areas and from CSIS, is that the
information available would not lead one to believe that Markevich would commit
an act of terrorism or organized crime.
[12]
The
2nd departmental assessment contains curious references to
Markevich’s incarceration in Ecuador. In one paragraph it is
noted that Markevich indicated that he had served eight years in an Ecuadorian
prison for cocaine trafficking; in the next paragraph, however, there is
reference to the absence of substantiating information that Markevich had
served an eight-year sentence but it is concluded that, if true, it reflected
his offence cycle. There is no explanation of the basis for doubting the
Applicant’s admission that he had been jailed in Ecuador for drug
trafficking.
[13]
The
2nd departmental assessment concludes on the issue of likelihood of
re-offending that the U.S. information is that Markevich has no
affiliations with drug cartels or gangs.
[14]
In
the Minister’s 2nd decision (a different Minister), the Minister
abandons the highly problematic conclusions about unspecified factors and
interests and returns attention to the stated purposes of the Act. The Minister
finds that Markevich has links to organized crime.
[15]
The
Minister acknowledges the Applicant’s admission of his eight-year Ecuadorian
incarceration and his continued involvement in drug trafficking.
[16]
Most
importantly, the Minister focuses on the issue of abandonment – whether
Markevich left Canada with the intent to abandon Canada as his place
of permanent residence. Consideration of the issue of abandonment is mandated
by s. 10(1)(b) of the Act.
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10.
(1) In determining whether to consent to the transfer of
a Canadian offender, the Minister shall consider the following factors:
…
(b) whether the
offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;
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10.
(1) Le ministre tient compte des facteurs ci-après pour
décider s'il consent au transfèrement du délinquant canadien :
…
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;
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[17]
The
Minister took into consideration Markevich’s obtaining a work visa; his working
in the U.S.A. for 11 months prior to his arrest; his use of his own apartment
in making periodic visits to Canada to visit family; and his ex-wife’s evidence
that Markevich had indicated that as long as there was work in New York, he had
no intention of returning to Vancouver. The Minister concluded that Markevich
intended to abandon Canada as his place of permanent residence. The result
of the Minister’s consideration of the factors enumerated in s. 10 was the
refusal to consent to the transfer.
III. ANALYSIS
[18]
The
standard of review has been described in Holmes, above.
[19]
It
is evident from the nature and content of the Minister’s 2nd
decision that it was a true reconsideration of the present case. It reverts to
the proper legal framework, the purposes of the Act, and it takes the relevant
factors into account in a manner which is clear and understandable. In this
regard, the decision meets the Dunsmuir v. New Brunswick, 2008 SCC 9,
test of transparency and intelligibility potentially lacking in the 1st
decision.
[20]
The
Minister’s decision does not follow the departmental advice – nor is it
required to do so. However, to the extent that it departs from that advice or
emphasizes other relevant factors, the decision clearly explains the departure
and the shift of emphasis (except in respect of one area, that of links to
organized crime).
[21]
The
Minister reaches a conclusion on Markevich’s links to organized crime which is
inconsistent with the current evidence before him. There is no explanation of
how the Minister arrived at his conclusion in the face of all of the contrary
evidence. However, that unreasonable finding is not fatal to this decision.
[22]
The
Minister found that Markevich had abandoned Canada; a finding
which can stand on its own as a basis for the exercise of the Minister’s
decision. On the evidence before the Minister, it was open to him to make that
finding even where his departmental officials did not do so. The basis of that
decision is articulated, clear and falls within a range of acceptable outcomes.
[23]
In
this regard, the Court ought to defer to the Minister’s judgment on whether
this factor is sufficient to justify the Minister’s exercise of his discretion
to refuse to consent to the transfer. The Minister’s decision must be examined
both on its constituent parts and as a whole. There is nothing unreasonable in
the Minister’s conclusion.
IV. CONCLUSION
[24]
For
these reasons, this judicial review will be dismissed with costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the judicial review is dismissed with costs.
“Michael
L. Phelan”
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