Date: 20110530
Docket: T-1299-10
Citation: 2011 FC 602
Ottawa, Ontario, this 30th day of May
2011
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
NELSON DUARTE
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Minister of Public
Safety and Emergency Preparedness, brought pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, by Nelson Duarte (the “applicant”). The
decision was in respect of the applicant’s application to transfer to Canada
from the United States pursuant to section 10 of the International Transfer
of Offenders Act, S.C. 2004, c. 21 (the “Act”).
* * * * * * *
*
[2]
The
applicant was born on March 17, 1974 in Mozambique, and immigrated to Canada in 1986. He became a
citizen in 2001. He has three sisters who live in Ontario.
[3]
The
applicant resided in Canada prior to his arrest and
incarceration. He is a licensed mechanic, and was employed from 2000 to 2008
with Nabet 700 Film Union in Toronto, setting up lighting. He has a common-law wife in Georgetown, Ontario, and helped to care for
her son from a previous relationship. He allegedly traveled to Fort Worth, Texas, on the day of his
arrest for the purpose of committing the offence.
[4]
The
applicant is serving a sentence of imprisonment of six years in Big Spring
Correctional Institution in Big Spring, Texas, for the offences of conspiracy to possess with
intent to distribute more than five kilograms of cocaine, and criminal
forfeiture. On May 1, 2008 the applicant was apprehended in Fort Worth, Texas, along with an
accomplice, while attempting to purchase a large quantity of cocaine valued at
$960,000. He pled guilty to the charges and was sentenced to 72 months’
imprisonment, 3 years of supervised release and a $100 special assessment fee.
His request for transfer was approved by the United States on March 23, 2009.
[5]
The
applicant is presently being held in a minimum security facility. His application
to transfer to Canada was refused on July 19,
2010.
* * * * * * * *
[6]
In
his decision, the Minister noted that the purposes of 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, thereby enhancing
public safety in Canada.
[7]
The
Minister noted that the Act required him to consider whether, in his opinion,
after the transfer, the applicant will commit a criminal organization offence
within the meaning of section 2 of the Criminal Code, R.S.C. 1985,
c. C-46. The Minister noted that the applicant worked with an accomplice and
that the file and the nature of their activity suggested that other accomplices
were involved who were not arrested. The applicant had ties with a since
disbanded Canadian criminal organization, and has a Canadian criminal record
(theft under $1,000, possession of property obtained by crime under $1,000,
assault, and assault with a weapon). In the present case he was involved in the
commission of a serious offence that would likely have resulted in the receipt
of a material or financial benefit by the group he assisted.
[8]
In
considering whether the applicant’s return to Canada would constitute a threat to the security
of Canada, the Minister noted the
applicant’s role in a drug trafficking offence, the serious nature of the
offence and the amount of drugs involved. It was a premeditated criminal
enterprise involving multiple actors and could have had long-term implications
on society. While the applicant’s family and friends remain supportive, the
Minister concluded that a transfer would not achieve the purposes of the Act.
* * * * * * * *
[9]
The
following provisions of the International Transfer of Offenders Act are relevant:
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Purpose
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.
|
Objet
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.
|
|
|
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Factors —
Canadian offenders
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.
Factors —
Canadian and foreign offenders
(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.
|
Facteurs
à prendre en compte : délinquant canadien
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.
Facteurs
à prendre en compte : délinquant canadien ou étranger
(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).
|
|
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[10]
The
following provision of the Criminal Code is also relevant:
|
Definitions
2.
In this Act,
“criminal
organization offence” means
(a) an
offence under section 467.11, 467.12 or 467.13, or a serious offence
committed for the benefit of, at the direction of, or in association with, a
criminal organization, or
(b) a
conspiracy or an attempt to commit, being an accessory after the fact in
relation to, or any counselling in relation to, an offence referred to in
paragraph (a);
|
Définitions
2.
Les définitions qui suivent s’appliquent à la présente loi.
«
infraction d’organisation criminelle »
a) Soit une infraction prévue
aux articles 467.11, 467.12 ou 467.13 ou une infraction grave commise au
profit ou sous la direction d’une organisation criminelle, ou en association
avec elle;
b) soit le complot ou la
tentative en vue de commettre une telle infraction ou le fait d’en être
complice après le fait ou d’en conseiller la perpétration.
|
* * * * * * * *
[11]
The
only issue in this application is whether the Minister’s decision is
reasonable.
[12]
In Curtis
v. Minister of Public Safety and Emergency Preparedness, 2010 FC 943 at
para 28, Justice John O’Keefe canvassed the jurisprudence on this issue and
found that the standard of review applicable to a decision taken by the
Minister pursuant to section 10 of the Act is that of reasonableness. The
Minister’s decision is afforded a high degree of discretion (Kozarov v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 866, [2008]
2 F.C.R. 377 (F.C.) at para 14; Getkate v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 965, [2009] 3 F.C.R. 26 (F.C.) at para
11; both citing Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
* * * * * * * *
[13]
At
the hearing before me, counsel for the applicant indicated that the
constitutional issues originally intended to be argued in this case have been
decided upon by the Federal Court of Appeal in Divito v. Minister of Public
Safety and Emergency Preparedness, 2011 FCA 39, and are therefore no longer
in question. The Court of Appeal determined that while the Act does infringe an
offender’s constitutional rights under section 6 of the Canadian Charter
of Rights and Freedoms, this infringement is justified under section 1.
[14]
The
applicant submits that the Minister erred in coming to the conclusion that the
applicant “will” commit a criminal organization offence within the meaning of section
2 of the Criminal Code if he is returned to Canada. The applicant essentially
argues that the information or evidence before the Minister did not reasonably
support this conclusion.
[15]
The
applicant contends that his previous criminal record is dated and unrelated to
the present offences: two convictions were as a young offender and the assault
convictions were in 1993. He has never previously been charged or convicted of
a criminal organization offence. The applicant notes that he pled guilty to the
current offence and has accepted responsibility for it; he submits that he is
remorseful and has the strong support of his family and friends.
[16]
The
applicant further notes that the Correctional Service of Canada’s (CSC) report
on its verification with security and intelligence agencies advised that the
information obtained did not lead them to believe that the applicant posed a
threat to the security of Canada, nor that he would, after transfer, commit an act of
terrorism or organized crime. The CSC report, signed by the Director of
Institutional Reintegration Operations (found at page 15 of the Tribunal
Record) specifically states that “the information obtained to date does not
lead one to believe that [the applicant] would, after the transfer, commit an
act of terrorism or organized crime” (page 18). It also states that “the
information obtained to date does not lead one to believe that Mr. Duarte’s
return to Canada would pose a threat to the security of Canada” (page 17).
The report does make mention of the applicant’s membership at the time in the
Red Line Crew in Barrie,
Ontario, “a criminal
organization that has since dismantled”. The report assigns the applicant a
score of +8 on the Revised Statistical Information on Recidivism Scale, a
result that “suggests that 4 out of 5 offenders will not commit an indictable
offence after release”.
[17]
The
respondent submits that regardless of whether the circumstances of this case
fall neatly within the factor specified in paragraph 10(2)(a) of the
Act, the Minister’s discretion is not circumscribed by any of the section 10
factors, and the Minister retains the discretion to refuse or approve a
transfer request based on any other relevant consideration. The respondent
contends that in the present case the Minister was sufficiently concerned by
the circumstances as a whole as well as by the question of paragraph 10(2)(a),
which accordingly tipped the balance in favour of refusing the applicant’s
application.
[18]
In Holmes
v. Minister of Public Safety and Emergency Preparedness, 2011 FC 112,
Justice Michael L. Phelan held that:
[61] With
respect to the reasonableness of the decision, it is evident that the Minister
weighed the aspects of administration of justice, such as the nature of the
offence, its circumstances and consequences, more heavily than the other
purposes of the Act – rehabilitation and reintegration. However, he did not
ignore these other purposes. The Applicant’s challenge to the Minister’s
decision is a challenge to the relative weight the Minister gave.
[62] While
it is arguable that Holmes appears to be a perfect candidate for transfer given
the strong facts of rehabilitation and reintegration, the very essence of
deference in this case is to acknowledge that having addressed the relevant
considerations, the actual weighing or balancing is for the Minister to
conduct. Absent unreasonableness or bad faith or similar such grounds, it is
not for the Court to supervise the Minister.
[63] There
is nothing unreasonable in the Minister’s decision; it takes into consideration
the relevant factors and imports no new and unknown factors, and it is
intelligible and transparent as to how the Minister came to his conclusion. It
therefore meets the requirements of law and should not be disturbed.
[19]
In
my view, Justice Phelan’s reasoning applies to the case at bar.
[20]
In
view of the jurisprudence establishing the importance of the Minister’s
discretion in making such a decision, the Minister, in the present case, was
not bound by the CSC report’s conclusions, and was entitled to come to a
contradictory conclusion. While, as the applicant points out, there was
considerable evidence pointing in favour of him being transferred to Canada, such as the clear
support of his community and the CSC report, I find that the Minister clearly
set out the evidence upon which he chose to rely in coming to a different
conclusion. I do not see any factual error in the factors listed by the
Minister: the applicant’s ties to a criminal organization, the existence of a
criminal record in Canada, the likelihood that a criminal organization would
have benefited from the successful commission of the offence, the amount of
drugs involved, the premeditation of the enterprise involving multiple actors,
and the potential long-term implications on society. In my view these are all
relevant considerations and the Minister was entitled to come to a different
view than CSC.
[21]
I
also consider that the meaning of the term “will” in paragraph 10(2)(a) is
not necessarily that it is certain that the applicant will commit a criminal
organization offence, and that the Minister can interpret this factor as being
that there is a “significant risk” that the applicant will do so. As held by
Justice David Near in Grant v. Minister of Public Safety and Emergency Preparedness,
2010 FC 958, 373 F.T.R. 281, at paragraph 37:
In
any case, while Parliament could not have intended the Minister to be
clairvoyant, the term “will” is tempered by the preceding, “in the opinion of
the Minister.” In my opinion, the phrase “in the opinion of the Minister”
trumps the need for any continued academic debate on the exact meaning of “will”,
whether it be a significant or substantial risk of future action, in the
provision. A more helpful formulation of the issue at hand is whether, in the
opinion of the Minister, there is evidence that leads him to reasonably
conclude that an organized criminal offence will be committed by the Applicant
after the transfer.
[22]
Considering,
therefore, that there were significant elements of evidence before the Minister
which support his conclusions, including the Certified U.S. Case Summary of the
applicant, I find that the impugned decision is reasonable and that it meets
the requirements for transparency, intelligibility and acceptability required
under Dunsmuir, supra.
* * * * * * * *
[23]
For
the above-mentioned reasons, the application for judicial review is dismissed,
with costs.
JUDGMENT
The application for judicial
review is dismissed, with costs.
“Yvon
Pinard”
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