Date: 20110331
Docket: T-1460-10
Citation: 2011 FC 396
BETWEEN:
|
|
GENTIAN BALILI
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT
HUGHES J.
[1]
The
Applicant Gentian Balili is a Canadian citizen currently incarcerated in the United
States
for a crime which committed in that country. He applied for a transfer to a
Canadian prison to serve the remainder of his sentence here. His application
was subject to review by officials of the Respondent Minister with the
resulting recommendation that the transfer be approved. The Respondent Minister
nevertheless refused the application for transfer, hence this judicial review.
[2]
The
Applicant was sentenced by a United States Court on January 29, 2008 for
conspiracy with intent to distribute five kilograms or more of cocaine. He was
sentenced at the low end of the guidelines for such an offence for a term of
seven years and three months. He is currently serving that sentence in a United
States
prison.
[3]
The
Applicant applied to the Respondent Minister for transfer to a Canadian prison
to serve the remainder of his sentence in Canada. Under the
provisions of the International Transfer of Offenders Act, S.C. 2000, c.21,
the Minister may consent to such a transfer. Section 10(1) of that Act
sets out the matters which the Minister shall consider. This does not restrict
the Minister from looking at and considering other relevant material. Section
10(1) says:
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.
[4]
If
the Minister does not give consent section 11(2) of that Act requires
the Minister to give reasons:
11. (1) A consent, a refusal
of consent or a withdrawal of consent is to be given in writing.
(2) If the Minister does
not consent to a transfer, the Minister shall give reasons.
[5]
In
this case the Minister provided reasons for refusing to give consent. These
reasons dated August 5, 2010 stated:
The purposes of the International
Transfer of Offenders Act (the Act) are 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. These purposes serve to enhance public
safety in Canada. For each application for
transfer, I examine the unique facts and circumstances as presented to
me in the context of the purposes of the Act and the specific factors
enumerated in section 10.
The applicant, Gentian Balili, is a
Canadian citizen serving a sentence of imprisonment for seven years and three
months in the United States (U.S.)
for “conspiracy with intent to distribute five kilograms or more of cocaine.”
Beginning in May 2007, Mr. Balili and a first accomplice agreed to meet with
another person at a hotel in the Bahamas to discuss the purchase of large
quantities of cocaine and its planned delivery to the Chicago area. On June 15, 2007, Mr.
Balili and a second accomplice met with two individuals to allegedly purchase
100 kilograms of cocaine. They were arrested after the U.S. Drug Enforcement
Agency searched their vehicle and found 22 separately sealed bags containing a
total of $500,915 in U.S. currency. The whereabouts of
the first accomplice are unknown.
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 at least two accomplices were involved in
the commission of the offence with the applicant. Furthermore, there is
information on file to suggest that the applicant is involved in drug
trafficking and is associated with members of an organized crime group.
The applicant was involved in a drug
transaction involving an amount off drugs and money. Furthermore, file
information suggests that the applicant and his accomplices were interested in
purchasing and distributing narcotics in the U.S. and other parts of the world. The
applicant was involved in the commission of a serious offence that, if
successfully committed, would likely have resulted in the receipt of a material
or financial benefit by him and those involved in the group he assisted.
I do note that the applicant expresses
remorse for his involvement in the offence, which he indicated in his
application for transfer to Canada.
The Act requires that I consider whether
the offender has social or family ties in Canada. I recognize the family ties of the
applicant in Canada, including the fact that the
applicant’s sister and godmother remain supportive.
Having considered the unique facts and
circumstances of this application and the factors enumerated in section 10, I
do not believe that a transfer would achieve the purposes of the Act.
[6]
The
Applicant raises four issues in seeking judicial review of this decision:
- Issue #1: Was there
a failure to disclose to the Applicant material information as found in
the record placed before the Member?
- Issue #2: Did the
Minister fail to have regard to relevant material filed by the Applicant
with the Minister’s officials;
- Issue #3: Were the
Minister’s reasons adequate?
- Issue #4: Did the
Minister fail to give appropriate weight to the policy considerations in
respect of the objectives of the Act?
[7]
The
fourth issue above was not seriously pursued by Applicant’s counsel and
requires no further consideration here.
[8]
The
remaining issues are considered collectively in the following discussion.
[9]
The
record of the materials placed before the Minister includes a Memorandum dated
April 27, 2010 which is a report to the Minister by his officials setting out a
good deal of information about the Applicant and his circumstances. Neither
this Memorandum nor a fair summary of its contents was given to the Applicant.
Therefore the Applicant had no opportunity to make submissions as to any facts
recited in the Memorandum that may be inaccurate or require explanation.
[10]
Included
in the Memorandum at two places are the following statements:
“…information recorded by CSC Ontario
regional security division Officer, indicates that Mr. Balili is involved in
drug trafficking and is associated with Eastern European Organized Crime
subjects from Detroit.”
and
“While the American documentation
indicates that Mr. Balili is not affiliated with a drug cartel or gang, CSC’s
Ontario Intelligence officer received information that Mr. Balili is involved
with drug trafficking and is associated with members of the Easter European
Organized Crime in Detroit.”
[11]
The
“American documentation” referred to above is most likely a reference to a Case
Summary prepared by the U.S. Department of Justice which concluded:
“The record does not indicate that
Gentian Balili is affiliated with a drug cartel or gang.”
The Applicant did have a copy of this Case
Summary whose conclusions are favourable to him.
[12]
Information
supporting the allegations as to a “Detroit” connection contained
in the Memorandum given to the Minister is nowhere to be found in the record.
The simple hearsay references recited above are all that is to be found.
[13]
The
Minister’s reasons state that the Minister has examined the “unique facts”
of the case and references information in the file that the Applicant “is
associated with members of an organized crime group”.
[14]
The
reasons do not clarify what the Minister is referring to when he says that the
Applicant is a member of an organized crime group. If it is reference to the “Detroit” entries in
the Memorandum that the Applicant did not see, the Applicant should have been given
a copy of that Memorandum or a fair summary. If it is a reference to something
else, there is nothing in the file to support the statement. The statement
clearly contradicts the conclusions reached by the U.S. Department of Justice.
As such the reasons are unclear and are not sufficiently transparent as to
provide an understanding as to the reasoning of the Minister.
[15]
The
Minister has not adhered to the principles of natural justice. He failed to
provide relevant information as to the “Detroit” allegations
to the Applicant. The Minster’s reasons are inadequate in that they fail to set
out clearly what information was considered and how it was weighed. In this
respect the case is similar to that decided by Justice Phelan of this Court in Singh
v Canada (Minister of Public Safety and Emergency Preparedness), 2011
FC 115 where he wrote at paragraphs 12 to 14:
[12] The Minister may reach
a conclusion which is at odds with the advice he is receiving. He may weigh
stipulated and other factors differently. However, it is incumbent on the
Minister to explain how he could reach the conclusion or concern.
[13] In this case, the
Minister had to explain how he was concerned that the Applicant would continue
his organized crime activities when the evidence was that the Applicant had no
links to organized crime. The need for reasoned explanation is even more acute
when the information from Correctional Service Canada’s counterparts in
Security and Intelligence areas, and in CSIS, did not lead the departmental
advisors to believe that the Applicant would, after transfer, commit an act of
organized crime.
[14] The Minister’s
decision does not meet the requirements for transparency, intelligibility and
acceptability required under Dunsmuir v. New Brunswick, 2008 SCC 9. The
reasons are wholly inadequate as they leave one guessing as to how the
Applicant could continue criminal organization activities when he had no links
to such organizations and where there is no finding that his drug importation
offence was a criminal organization offence. In these circumstances and against
the background of the advice received, there is a requirement for an
articulation of how the Minister reached his conclusion.
[16]
For
the same reasons as Justice Phelan gave in that case, this judicial review must
be allowed.
[17]
In
allowing this matter I am mindful that the Applicant raised as Issue #2 the
fact that the Minister’s officials failed to pass on to the Minister a
transcript of the Applicant’s sentencing hearing before the United
States Court.
That transcript shows that the Applicant was out on bail, that he expressed
remorse under oath and that he was given a light sentence. Some of this
information may already be elsewhere in the materials given to the Minister. I
remind the officials that section 10(1) of the Act does not mean that
only the matters referred to that section should be given to the Minister.
Where the officials have received apparently relevant material, that material
or a fair summary should be given to the Minister.
[18]
I
will give judgment accordingly with costs to the Applicant fixed at the sum of
$5,000.00 as discussed with Counsel at the hearing.
“Roger T. Hughes”
Toronto, Ontario
March
31, 2011
Email this Content